VRS not in effect after 3 month notice ?

Lahari Gurrala | Symbiosis Law School, Hyderabad | 17th December 2019

STATE OF UTTAR PRADESH AND OTHERS vs SUDARSHANA CHATTERJEE

Under Rule 56 of the Fundamental Rules of the Financial Handbook as applicable in the State of UP, notice of voluntary retirement does not come into effect automatically on the expiry of the three months period. The appointing authority has to accept the notice for voluntary retirement or it can be refused on permissible grounds.

Facts of the Case:

• Sudharshana Chatterjee (respondent) was appointed to the post of Lecturer (Anaesthesia) vide appointment order dated 25.03.1982 and she joined at Motilal Nehru Medical College, Allahabad. While working on the post of Lecturer (Anaesthesia) at Motilal Nehru Medical College, Allahabad, the respondent on 20.09.2003 sought a no-objection certificate (NOC) from the appellants in order to apply for the post of Associate Professor (Anaesthesia) at Chhattisgarh Institute of Medical Sciences (CIMS), Bilaspur. 
• Upon receiving an appointment letter dated 22.04.2004 and getting appointed at CIMS, the respondent sent a leave application dated 30.04.2004 addressed to the Secretary, Medical Education Department seeking sanction of leave for two years without pay for joining on the post of Reader in the Department of Anaesthesia at CIMS. 
• Though her leave application was pending consideration, the respondent joined as Lecturer in the Anaesthesia Department, CIMS. The respondent made another application for grant of one month earned leave on 23.07.2004 by citing the reason “personal work”. The said application was considered and leave was sanctioned vide order dated 07.08.2004 by granting the respondent earned leave from 23.07.2004 to 22.08.2004. 
• The respondent remained in the service of the appellants till 22.08.2004; thereafter she has not resumed duty with the appellants. It is stated that the respondent was drawing salary from two State Governments i.e. State of UP and also from CIMS-State of Chhattisgarh. The respondent again sent a leave application on 01.02.2005 seeking grant of leave preparatory to retirement from 23.07.2004 to the date of retirement i.e. 30.09.2006 (26 months 7 days). 
• The respondent also sought for permission to work as Associate Professor at CIMS during the leave period and also sought for grant of allowance in this behalf. On 02.01.2006, the respondent sent an application seeking voluntary retirement citing personal reasons. According to the respondent, none of her applications were replied to by the appellants.
• After retiring from CIMS, the respondent sent a letter to the Secretary, Department of Medical Education, Government of UP on 02.11.2012 seeking payment of gratuity, pension and leave encashment due on retirement (i.e. on 30.09.2006). In this letter, it was submitted by the respondent that she had applied for the post of Reader at CIMS through the proper channel and had also applied for NOC from the Government/appellant. 
• According to the respondent, she repeatedly applied for NOC. As there was no response, the respondent had no option but to leave the UP Medical Services and join the services at CIMS in June, 2004. The appellants rejected the request of the respondent vide reply dated 01.04.2015 observing that the respondent accepted the post at CIMS without obtaining approval/NOC from the competent authority and without getting her leave sanctioned. 
• In light of her working elsewhere, without leave having been granted and there being no provision with regard to ex-post facto grant of leave and approval for working elsewhere, the request of the respondent was found to be not acceptable. 
• Being aggrieved, the respondent filed Writ seeking issuance of writ of certiorari for quashing the order dated 01.04.2015 and also seeking issuance of writ of mandamus directing the appellants to sanction and pay all retiral benefits of the respondent along with arrears and also interest. 
• When the said writ petition was pending, vide order dated 16.02.2016, the appellants rejected the application of the respondent seeking voluntary retirement and payment of retiral benefits. 
• The High Court concluded that the services of the respondent in Motilal Nehru Medical College could not have been ignored for the purpose of pension/notional pension and on those findings, the High Court quashed the order dated 01.04.2015. The High Court remitted the matter to the Principal Secretary, Medical Education and Training Department, Government of Uttar Pradesh to examine the case of the respondent again and pass fresh orders in accordance with law. 
• Aggrieved by the decision dated 24.08.2018, the appellants filed the appeal before the Supreme Court contending that the impugned judgment suffers from patent error in finding that the respondent is entitled for retiral dues from the appellant-State of UP, when in fact, the respondent had joined the service of CIMS and got promoted there and eventually retired therefrom upon attaining the age of superannuation. 

Issue:

• Whether impugned judgment given by the High Court suffers from patent error in finding that the respondent is entitled for retiral dues from the appellant-State of UP?

Held:

• The High Court, with due respect, in our view, did not keep in view that even though the respondent’s leave application dated 30.04.2004 was pending consideration, the respondent on her own went and joined CIMS on 15.06.2004 and this has been suppressed by the respondent. Also, the respondent remained in the service of two State Governments i.e. State of UP and State of Chhattisgarh-CIMS and she is alleged to have drawn salary from both the State Governments for the period from June, 2004 to October, 2004.
• The High Court, in our view, did not keep in view the conduct of the respondent. The High Court appears to have proceeded merely on the ground that no orders came to be passed on the leave applications filed by the respondent. 
• Though the High Court directed the State Government to pass fresh orders in accordance with law, while directing the State Government to pass fresh orders in accordance with law, the High Court, in our view, was not right in putting restrictions upon the appellants by saying that the fresh orders will have to be passed in the light of the observations made by the High Court. In such view of the matter, we are of the view that the order passed by the High Court dated 24.08.2018 cannot be sustained and is liable to be set aside. 
• The High Court, in our view, was not right in directing the Principal Secretary to appear in the court and explain the reason for passing the order dated 04.01.2019. Observing that merely because an order has been passed by the officer, it does not warrant the personal presence of the officer in the Court and summoning of officers to the Court and eventually affect the public at large. The impugned order dated 15.03.2019 passed in writ is set aside and the appeal arising out of SLP is allowed. 
• In the result, the impugned order dated 24.08.2018 passed by the High Court of Allahabad in Writ. The impugned order dated 15.03.2019 passed by the High Court in Writ directing the presence of Principal Secretary (Medical Education and Training Department), Government of U.P. is set aside and the appeal arising out of SLP is allowed. 
• The High Court shall take up Writ and afford sufficient opportunities to both the parties and proceed with the matter in accordance with law without being influenced by any of the findings recorded by the High Court in Writ. Parties shall bear their respective costs.