Allowed

Dr. Satya Prasanna Nayak v. State of Odisha

Orissa HC24 Nov 2023WPC(OAC)/812/2019

Case brief

AI extract

What is this about?

The High Court held that the petitioner was deemed to have taken voluntary retirement upon the expiry of the 90-day notice period under the OCS (Pension) Rules. The Court directed the respondent to treat the actual date of relief from duty as the retirement date for sanctioning pension benefits.

What did the court decide?

Directed the respondent to treat 08.03.2019 as the date of voluntary retirement and to sanction and release pension and other pensionary benefits within three months.

Dr. Satya Prasanna Nayak Vs State of Odisha — Pension and Retirement Benefits | Orissa HC (2023)

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IN THE HIGH COURT OF ORISSA AT CUTTACK

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W.P.C.(OAC) No. 812 of 2019

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In the matter of an application under Section 19 of the Administrative Tribunal’s Act, 1985.

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………………
Dr. Satya Prasanna Nayak …. Petitioner
-versus-
State of Odisha & Ors. …. Opposite Parties
For Petitioner : M/s. P. Rath (Sr. Advocate)
Ms. S. Gumansingh (Advocate)
Ms. P. Mohanty (Advocate)
Ms. S. Mohanty (Advocate)
For Opp. Parties : Mr. Sangram Jena,
Addl. Govt. Advocate
PRESENT:
THE HON’BLE JUSTICE BIRAJA PRASANNA SATAPATHY

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--------------------------------------------------------------------------------------- Date of Hearing: 24.11.2023 & Date of Judgment: 24.11.2023 ---------------------------------------------------------------------------------------

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Biraja Prasanna Satapathy, J .

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The Petitioner has filed the present writ petition inter alia

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with the following prayer:-

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“a. prays for a mandate to quash the order dated 11.03.2019 under Annexure-4 and further to declare that the applicant deemed to be

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voluntarily retired from service w.e.f.12.02.2019, when the period of notice expired as per his voluntary retirement notice dated 12.11.2018 with all consequential service benefits.

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b. And pass such other orders or directions as the Hon’ble Tribunal may deem just and proper.”

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2. It is contended that while continuing as an Associate Professor,

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Orthopedics in SLN Medical College & Hospital, Koraput, Petitioner submitted his application to take voluntary retirement from service on 12.11.2018 under Annexure-1.

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3.1. It is contended that as provided under the proviso to Rule 42 of the OCS (Pension) Rules, 1992 (in short Rules) if any such application submitted to take voluntary retirement is not accepted within a period of 90 days from the date of receipt, it is to be held that it has been accepted after expiry of the

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period of 90 days.

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3.2. Rule 42 of the OCS (Pension) Rules, 1992 is quoted hereunder:-

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“42. Voluntary Retirement on completion of 20 years Qualifying Service-

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(1) At any time after a Government servant has completed twenty years qualifying service, he may, by giving notice of not less than three months in writing to the appointing authority, retire from service.

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(2) The notice of voluntary retirement given under sub-rule (1) shall require acceptance by the appointing authority.

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NOTE -Such acceptance may be generally given in all cases except those (a) in which disciplinary proceedings are pending or contemplated against the Government servant concerned for the imposition of a major penalty and the disciplinary authority, having regard to the circumstances of the case, is of the view that

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the imposition of the penalty of removal or dismissal from service would be warranted in the case or (b) in which prosecution is contemplated or have launched in a Court of Law against the Government servant concerned. If it is proposed to accept the notice of voluntary retirement in such cases, approval of the Government should be obtained:

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Provided that where the appointing authority does not refuse to grant the permission for retirement before the expiry of the period specified in the said notice, the retirement shall become effective from the date that of expiry of the said period.

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(3) (a) A Government servant desirous of retiring under sub-rule (1) may make a request in writing to the appointing authority to accept notice of voluntary retirement of less than three months giving reason therefor.

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(b) On receipt of a request under clause (a), the appointing authority subject to the provision of sub-rule (2), may consider such request for the curtailment of the period of notice of three months on merits and if he is satisfied that the curtailment of the period of notice will not cause any administrative inconvenience, the appointing authority may relax the requirement of notice of three months on the condition that the Government servant shall not apply for commutation of a part of his pension before the expiry of the period of notice of three months.

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(4) This rule shall not apply to a Government servant who retires from Government service for being absorbed permanently in an autonomous body or a public sector undertaking to which he is on deputation at the time of seeking voluntary retirement.

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Explanation- For the purpose of the rule the expression "appointing authority" shall means the authority which is competent to make appointment to the service or post from which Government servant seeks voluntary retirement.

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(5) The qualifying service as on the date of intended retirement of the Government servant retiring under this rule, with or without permission shall be increased by the period not exceeding five years, subject to the condition that the total qualifying service rendered by the Government servant does not in any case exceed [twenty five years w.e.f.01.12.2008] and it does not take him beyond the date of superannuation.”

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(6) The pension and retirement gratuity of the Government servant retiring under this rule shall be based on the emoluments as specified under rule 48 and the increase not exceeding five years in his qualifying service not entitle him to any notional fixation of pay for the purposes of calculating pension and gratuity.”

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3.3. It is contended that since the Petitioner submitted the application to take

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voluntary retirement on 12.11.2018, the period of 90 days expires on 12.02.2019. However, the Petitioner when was not communicated with any decision, Petitioner suo moto relieved himself from his duty w.e.f.08.03.2019 vide Annexure-3. Subsequent to such action taken by the Petitioner, Petitioner was communicated with the impugned order dtd.11.03.2019 by the Govt. indicating therein that his application to take voluntary retirement has not

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been accepted.

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3.4. Ms. Rath, learned Sr. Counsel contended that in view of the specific provision contained under Rule 42 if no decision is communicated within a period of 90 days from the date of receipt, it is to be held that it has been accepted. Therefore, after expiry of three (3) months period, the impugned order passed on 11.03.2019 is not sustainable in the eye of law and the Petitioner is to be treated to have been retired from service w.e.f.12.02.2019. In support of her submission learned Sr. Counsel relied on the decisions of the

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Hon’ble Apex Court reported in (1977) 4 SCC 441 (Dinesh Chandra Sangma Vs. State of Assam Ors.) and another decision reported in 1995 Supp (1) SCC 76 (Union of India & Ors. Vs. Sayed Muzaffar Mir) .

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3.5. Hon’ble Apex Court in Para 7, 8 & 17 of the decision in the case of

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Dinesh Chandra Sangma has held as follows:-

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“ 7. Before we proceed further we may read F. Rule 56 as amended:

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“F. Rule 56. (a) The date of compulsory retirement of a Government servant is the date on which he attains the age of 55 years. He may be retained in service after this age with sanction of the State Government on public grounds which must be recorded in writing, and proposals for the retention of a Government servant in service after this age should not be made except in very special circumstances.

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(b) Notwithstanding anything contained in these rules the appropriate authority may, if he is of the opinion that it is in the public interest to do so, retire government servant by giving him notice of not less than three months in writing or three months' pay and allowances in lieu of such notice, after he has attained fifty years of age or has completed 25 years of service, whichever is earlier.

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(c) Any government servant may, by giving notice of not less than three months in writing to the appropriate authority, retire from service after he has attained the age of fifty years or has completed 25 years of service, whichever is earlier.”

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It is clear from the above that under F. Rule 56(b) the Government may retire a government servant in the public interest by giving him three months' notice in writing or three months' pay and allowances in lieu thereof after he has attained the age of fifty years or has completed 25 years of service, whichever is earlier.

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8. As is well known government servants hold office during the pleasure of the President or the Governor, as the case may be, under Article 310 of the Constitution. However, the pleasure doctrine under Article 310 is limited by Article 311(2). It is clear that the services of a permanent Government servant cannot be terminated

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except in accordance with the rules made under Article 309 subject to Article 311(2) of the Constitution and the Fundamental Rights. It is also well-settled that even a temporary government servant or a probationer cannot be dismissed or removed or reduced in rank except in accordance with Article 311(2). The above doctrine of pleasure is invoked by the Government in the public interest after a government servant attains the age of 50 years or has completed 25 years of service. This is constitutionally permissible as compulsory termination of service under F. Rule 56 (b) does not amount to removal or dismissal by way of punishment. While the Government reserves its right to compulsorily retire a government servant, even against his wish, there is a corresponding right of the government servant under F. Rule 56(c) to voluntarily retire from service by giving the Government three months' notice in writing. There is no question of acceptance of the request for voluntary retirement by the Government when the government servant exercises his right under F. Rule 56 (c). Mr Niren De is therefore right in conceding this position.

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XXX XXX XXX

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17. The High Court committed an error of law holding that consent of the Government was necessary to give legal effect to the voluntary retirement of the appellant under F. Rule 56(c). Since the conditions of F. Rule 56(c) are fulfilled in the instant case, the appellant must be held to have lawfully retired as notified by him with effect from August 2, 1976.”

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3.6. Hon’ble Apex Court in Para 5 of the decision in the case of Sayed

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Muzaffar Mir has held as follows:-

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“ 5. The second aspect of the matter is that it has been held by a three-Judge Bench of this Court in Dinesh Chandra Sangma v. State of Assam [(1977) 4 SCC 441 : 1978 SCC (L&S) 7] , which has dealt with a pari materia provision finding place in Rule 56( c ) of the Fundamental Rules, that where the government

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servant seeks premature retirement the same does not require any acceptance and comes into effect on the completion of the notice period. This decision was followed by another three-Judge Bench in B.J. Shelat v. State of Gujarat [(1978) 2 SCC 202 : 1978 SCC (L&S) 208] .”

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4. Even though notice of the writ petition has been issued since 05.04.2019,

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but no counter affidavit has been filed by the State. Learned Addl. Govt. Advocate however contended that since the application submitted by the Petitioner on 12.11.2018 was received in the Department on 21.12.2018, the

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period of 90 days will be calculated from the said date. Taking the date of receipt of the application as 21.12.2018, the rejection of the application since was made within the stipulated time as prescribed under Rule 42 of the Rules on 11.03.2019, there is no illegality or irregularity with regard to rejection of the Petitioner’s application to take voluntary retirement vide Annexure-4. It is further contended that on the face of such rejection, since the Petitioner never rejoined his work w.e.f.09.03.2019, Petitioner is not entitled to get any service benefit.

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5. Having heard learned counsel appearing for the Parties and after going through the materials available on record, this Court finds that the Petitioner while continuing in SLN Medical College & Hospital, Koraput, he submitted the application to take voluntary retirement from service on 12.11.2018, which was also duly acknowledged on 12.11.2018. Therefore, the period of 90 days in terms of the provision contained under Rule 42 of the Rules is to

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be calculated from that date and the said period of 90 days expires on12.02.2019.

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5.1. Since prior to 12.02.2019 the application for VRS was never rejected,

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placing reliance on the proviso to Rule 42 and the decisions as cited supra , it is to be held that the Petitioner has been allowed to take voluntary retirement on completion of 90 days period, which falls due on 12.02.2019. However, taking into account the fact that the Petitioner has got himself relieved from duty w.e.f.08.03.2019 as reflected in Annexure-3, this Court directs Opp. Party No. 1 to treat the date 08.03.2019 as the date of retirement of the Petitioner on voluntary basis. While directing so, this Court directs Opp. Party No. 1 to sanction and release pension and other pensionary benefits as due

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and admissible by taking the date of voluntary retirement of the Petitioner as 08.03.2019 within a period of three (3) months from the date of receipt of this order.

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6. The writ petition is disposed of accordingly.

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(Biraja Prasanna Satapathy) Judge

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Orissa High Court, Cuttack Dated the 24^th of November, 2023/Sneha

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Signature Not Verified

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Digitally Signed Signed by: SNEHANJALI PARIDA Designation: Sr. Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 01-Dec-2023 11:39:34

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Dr. Satya Prasanna Nayak v. State of Odisha

Case brief

What is this about?

What did the court decide?

Dr. Satya Prasanna Nayak v. State of Odisha

Case brief

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What did the court decide?

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