W.P.No.1591 of 2009. Case: K. Meena Vs 1. State of Tamil Nadu, Represented by Secretary to Government, 2. Director of Medical Education, Chennai. High Court of Madras (India)
| Case Number | W.P.No.1591 of 2009 |
| Counsel | For Appellant: Mr.R.Muthukumaraswamy, Senior Counsel for Mr.A.Jinasenan and For Respondents: Mr.K.H.Ravikumar, Government Advocate |
| Judges | V. Ramasubramanian, J. |
| Issue | Fundamental Rules - Rule 56(3)(f); C.C.S. (Pension) Rules - Rules 48(1), 48(A) |
| Judgement Date | August 16, 2010 |
| Court | High Court of Madras (India) |
Judgment:
V. Ramasubramanian, J.
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The petitioner has come up with this writ petition challenging the orders by which her request for voluntary retirement was rejected.
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I have heard Mr.R.Muthukumaraswamy, learned Senior Counsel appearing for the petitioner. Mr.K.H.Ravikumar, learned Government Advocate for the respondents.
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The petitioner was originally selected and appointed as Assistant Surgeon on 29.4.1988 in the Tamil Nadu Medical Services. At that time, she had the qualifications of M.B.B.S., and D.G.O. Subsequently she was selected as a service candidate, for admission to the Post Graduate Medical Course in M.D. (O&G) and she completed the same in the year 1993. After completion of the Post Graduate Degree, the petitioner was appointed as a Tutor in the Kilpauk Medical College. Later she was promoted as Assistant Professor in which post she continued.
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The petitioner completed 20 years of service in April 2008 and also completed 50 years of age on 2.9.2008. Thereupon she served a notice dated 2.9.2008 on the respondents, seeking to proceed on voluntary retirement, after the expiry of the notice period of 3 months and seeking to be relieved with effect from 10.12.2008. According to the petitioner, the notice for voluntary retirement dated 2.9.2008 was served on and acknowledged by the respondents on 8.9.2008.
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The petitioner went on medical leave from 5.11.2008. When she was on leave, she was relieved by an order dated 15.11.2008 from the Government Peripheral Hospital, Anna Nagar and transferred to Kilpauk Medical College. Accepting the said order, the petitioner joined duty at Kilpauk Medical College on 20.11.2008.
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It is the case of the petitioner that till 10.12.2008, the date indicated by her in her notice for voluntary retirement, no order rejecting her request was served on her. Therefore, the petitioner stopped attending duties with effect from 11.12.2008, taking refuge under Rule 56(3)(f) of the Fundamental Rules.
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But on 20.1.2009, the petitioner was served with an order of the second respondent dated 24.11.2008, enclosing a copy of the Government letter dated 17.11.2008, rejecting her request for voluntary retirement on the ground that she belonged to the scarce category and that her continuation is essential in public interest. Therefore, challenging the Government letter dated 17.11.2008 and the covering letter of the second respondent dated 24.11.2008, the petitioner has come up with the above writ petition.
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Mr.R.Muthukumaraswamy, learned Senior Counsel for the petitioner assailed the impugned orders on two grounds viz.,
(i) that the impugned order does not satisfy the second limb of the new proviso inserted to Fundamental Rule 56(3)(f); and
(ii) that the Government letter dated 17.11.2008 was actually sent to the correct address of the petitioner only after 10.12.2008 and hence the petitioner is entitled to the benefit of the deeming fiction under FR 56(3)(f).
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In order to test the validity of the aforesaid contentions, it is necessary to have a look at FR 56(3)(f), as it stood before amendment. It reads as follows:-
(f) The appointing authority shall issue orders before the date of expiry of notice either accepting the voluntary retirement or not. Otherwise, the Government Servant shall be deemed to have been retired voluntarily from service at the end of the period of notice: Provided that where a Government Servant under suspension or against whom disciplinary or criminal action is pending, seeks to retire voluntarily, specific orders of the appointing authority for such voluntary retirement is necessary. The appointing authority may withhold the permission sought for by the Government Servant, if any of the conditions specified in clause (e) are not satisfied.
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However, by G.O.Ms.No.179, P&AR Department, dated 29.9.2008, the following proviso was inserted under FR 56(3)(f):-
"Provided further that the appointing authority may also withhold the permission for Voluntary Retirement sought for by a Government Servant, if the post held by him has been declared as "Scarce Category" by the Administration Department concerned in...
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