Public Health Administration: Respondents-doctors members of Provincial Medical service filed applications for voluntary retirement – Since no order was communicated to them, respondents filed writ petition seeking voluntary retirement – High Court allowed the writ petitions – Aggrieved State Government filed instant appeal – Held: Under r.56 as applicable in the State of Uttar Pradesh, notice of voluntary retirement does not come into effect automatically on the expiry of the three months period – Under the said rule, the appointing authority has to accept the notice for voluntary retirement or it can be refused on permissible grounds – r.56(c) does not fall in the category where there is an absolute right on the employee to seek voluntary retirement – The respondents claimed right to retire under Part III of the Constitution – Such right cannot be supreme than right to life – It has to be interpreted along with the rights of the State Government in Part IV of the Constitution – Where right of public is involved in obtaining treatment, the State Government can decline the prayer for voluntary retirement considering the public interest – In case all the doctors are permitted to retire, in that situation, there would be a chaos and no doctor would be left in the Government hospitals, which would be against the concept of the welfare state and injurious to public interest – It is obligatory upon the State Government to make an endeavour under Art.47 to look after the provisions for health and nutrition – Therefore, the decision of State Government in declining the prayer for voluntary retirement considering the public interest did not suffer from any vice of arbitrariness – When services are required, denial of voluntary retirement is permissible under the Rules applicable in the State of Uttar Pradesh – Health laws – Service Law – Voluntary retirement – Uttar Pradesh Fundamental Rules – r.56(c) – Constitution of India – Art.47.
Uttar Pradesh Fundamental Rules: r.56 and its Explanation – Explanation attached to r.56 makes it clear that the decision of the appointing authority under clause (c) of r.56 to retire a Government servant shall be taken if it appears to be in public interest – The explanation is applicable to both the exigencies viz., when Government retires an employee or when an employee seeks voluntary retirement, not only when Government desires to retire an employee in public interest – The public interest is the prime consideration on which authority has to decide such a prayer as per the rules applicable in the State of Uttar Pradesh – Service Law – Voluntary retirement.
Constitution of India: Principle of liberty and its curtailment – Respondents-doctors members of Provincial Medical service seeking voluntary retirement – The submission made upon principle of liberty and its curtailment, the law must be just, fair and reasonable cannot be accepted as the Fundamental Rules are statutory rules and have been made by the Governor under s.241(2)(b) of the Government of India Act, 1935 and provisions of Fundamental Rules cannot be said to be unfair, unreasonable and oppressive – The concept of liberty not to serve cannot be attracted when the public interest demands as retirement can be subject to certain riders – The right under Art. 19(1)(g) is also subject to the interest of the general public and once service has been joined, the right can only be exercised as per rules and not otherwise – Such conditions of service made in public interest cannot be said to be illegal or arbitrary or taking away the right of liberty – In case of voluntary retirement, gratuity, pensions, and other dues etc. are payable to the employee in accordance with rules and when there is a requirement of the services of an employee, the appointing authority may exercise its right not to accept the prayer for voluntary retirement – Service Law – Voluntary retirement – Uttar Pradesh Fundamental Rules – r.56(c).
Constitution of India: Art.14 – Equality – Plea of discrimination – Respondents-doctors members of Provincial Medical service denied voluntary retirement – Plea that the State Government is discriminating between the doctors in the Provincial Medical Services with the doctors working in the State-owned Hospitals and Medical Colleges – Held: Not correct – Doctors of Medical Colleges are on a different footing than that of Provincial Medical Services – Even otherwise in view of the scarcity of the doctors, no ground of equality can be claimed and the doctors of different services form different class, apart from that there is no concept of negative equality that too against the public interest – In case, such a plea is allowed, none may be left to serve public at large – Public Health Administration.
Allowing the appeals, the Court
HELD: 1. The explanation attached to Rule 56 makes it clear that the decision of the appointing authority under clause
(c) of Rule 56 to retire a Government servant shall be taken if it appears to be in public interest. The explanation is applicable to both the exigencies viz., when Government retires an employee or when an employee seeks voluntary retirement, not only when Government desires to retire an employee in public interest. [Para 10] [925-F]
State of Bombay v. United Motors, AIR 1953 SC 252 : 1953 SCR 1069; Bengal Immunity v. State of Bihar AIR 1955 SC 661 : 1955 SCR 603; State of Haryana v. S.K. Singhal (1999) 4 SCC 293 : [1999] 2 SCR 714 – relied on.
Dinesh Chandra Sangma v. State of Assam (1977) 4 SCC 441 : [1978] 1 SCR 607 – distinguished
B.J. Shelat v. State of Gujarat (1978) 2 SCC 202 : [1978]
3 SCR 553 – held inapplicable
Himachal Pradesh Horticultural Produce Marketing & Processing Corporation Ltd. v. Suman Behari Sharma (1996) 4 SCC 584 : [1996] 3 SCR 1069; Padubidri Damodar Shenoy v. Indian Airlines Ltd. & Anr. (2009)
10 SCC 514: [2009] 14 SCR 356; C.V. Francis v. Union of India & Ors. (2013) 14 SCC 486: [2013] 8 SCR 53; Tek Chand v. Dile Ram (2001) 3 SCC 290 : [2001] 1 SCR 527 – referred to.
2.1 Under Rule 56 as applicable in the State of Uttar Pradesh, notice of voluntary retirement does not come into effect automatically on the expiry of the three months period. Under the rule in question, the appointing authority has to accept the notice for voluntary retirement or it can be refused on permissible grounds. Rule 56(c) does not fall in the category where there is an absolute right on the employee to seek voluntary retirement. No doubt under Rule 56(c) there is no requirement for an employee to give any reason, however, while considering the prayer, the appointing authority has to keep in mind the public interest as provided in the Explanation attached to F.R. 56. [Paras 25, 26, 28] [942-H; 943-A-B, E]
Mahant Dhanmir v. Madan Mohan, (1987) Supp SCC
528 : 1988 SCR 679 – relied on
Moti Ram Deka v. G.M., North East Frontier Railway (1964) 5 SCR 683 – held inapplicable
2.2 There is no doubt about it that Rule 56(d) provides that where a disciplinary enquiry is pending or contemplated and in the case of contemplated disciplinary enquiry, the Government servant shall be informed before the expiry of notice that it has not been accepted. The proviso to Rule 56(d) has no application where a disciplinary enquiry is not contemplated or pending. When the proviso itself is not applicable, in no case it will dilute the provisions of Explanation with respect to exigencies mentioned in clause (c) of Rule 56. [Para 31] [944-F-G]
3. The concept of liberty not to serve when the public interest requires cannot be attracted as retirement which carries pecuniary benefits can be subject to certain riders. The general public has the right to obtain treatment from super skilled specialists, not second rates. [Para 33] [945-A]
Jagadish Saran v. Union of India, (1980) 2 SCC 768: [1980] 2 SCR 831 – relied on
4.1 The concept of public interest can also be invoked by the Government when voluntary retirement sought by an employee, would be against the public interest. The provisions cannot be said to be violative of any of the rights. There is already paucity of the doctors as observed by the High Court, the system cannot be left without competent senior persons and particularly, the High Court has itself observed that doctors are not being attracted to join services and there is an existing scarcity of the doctors. Poorest of the poor obtain treatment at the Government hospitals. They cannot be put at the peril, even when certain doctors are posted against the administrative posts. It is not that they have been posted against their seniority or to the other cadre. Somebody has to man these administrative posts also, which are absolutely necessary to run the medical services which are part and parcel of the right to life itself. In the instant case, where the right of the public are involved in obtaining treatment, the State Government has taken a decision as per Explanations to decline the prayer for voluntary retirement considering the public interest. It cannot be said that State has committed any illegality or its decision suffers from any vice of arbitrariness. [Para 34] [945-D-G]
4.2 The provisions of the rule in question cannot be said to be against the Constitutional provisions. In case of voluntary retirement, gratuity, pensions, and other dues etc. are payable to the employee in accordance with rules and when there is a requirement of the services of an employee, the appointing authority may exercise its right not to accept the prayer for voluntary retirement. In case all the doctors are permitted to retire, in that situation, there would be a chaos and no doctor would be left in the Government hospitals, which would be against the concept of the welfare state and injurious to public interest. In the case of voluntary retirement, there is a provision in Rule
56 that a Government servant may be extended benefit of an additional period of five years then an actual period of service rendered by him there is the corresponding obligation to serve in dire need. [Para 35] [946-C-E]
5. In view of the scarcity of the doctors and the unfortunate privatisation and commercialisation of the noble medical profession, for maintaining the efficiency of the State Medical Services, the decision taken by the Government is permissible as per rules and cannot be interfered with. Unfortunately, the High Court has given the aforesaid observations pointing out the shortage of specialised doctors and at the same time has ultimately decided against the State Government on wrong interpretation without considering the Explanation attached to Rule 56 applicable in the State of Uttar Pradesh. The High Court ought to have rejected and not to allow the prayer of voluntary retirement made by the doctors. [Para 36] [946-G-H; 947-A-B]
6. Under Article 47, it is the duty of the State to improve the public health, which is a primary duty under the Directive Principles of the State Policy and the statutory expression which may be enforced. It is a duty of every citizen under Article 51A(g) to have compassion for living creatures. To have humanism is also contemplated under Article 51A(h) and to strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavours and achievement. It cannot be done by depriving poorest of the poor essential medical services and to leave them at the mercy of doctors. There cannot be an exodus from the Government Medical Services at large, which is being projected in the instant case, definitely this cannot be permitted to happen within four corners of law as it has to be living organism and has to live up to the essence and spirit of constitution and cannot ignore and overlook needs of poorest strata of the society. [Para 38] [947D-F]
7. Plea that the State Government is discriminating between the doctors in the Provincial Medical Services with the doctors working in the State-owned Hospitals and Medical Colleges cannot be accepted. Doctors of Medical Colleges are on a different footing than that of Provincial Medical Services. Even otherwise in view of the scarcity of the doctors, no ground of equality can be claimed and the doctors of different services form different class, apart from that there is no concept of negative equality that too against the public interest. In case, such a plea is allowed, none may be left to serve public at large. Thus, exodus of doctors cannot be permitted to weaken the services when the public interest requires to serve for the sake of efficient medical profession and fulfil Directive Principles of State Policy once they found statutory expression in the rules cannot be made mockery. [Paras 39, 42] [947-G-H; 948-A, F-G]
Dr. Anil Dewan v. State of Punjab, ILR 1 Punjab & Haryana 46; State of Punjab v. Dr. Harbir Singh Dhillon, 2010 SCC Online P&H 6159; Dr. Kalpana Singh v. State of Rajasthan, (2014) SCC Online Raj 6253 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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