Dr. B.S. Jayasree v. State of Kerala and Others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR** **THURSDAY, THE 21ST OCTOBER 2010 / 29TH ASWINA 1932** **WP(C).No. 12031 of 2008(G)** **-------------------------------------** **PETITIONER(S):** **-----------------------** **DR.B.S.JAYASREE, (FORMERLY CIVIL SURGEON) AMARJYOTHI, VIRUNTHIYOOR LANE, ATTINGAL, TRIVANDRUM DISTRICT** **BY . SRI. KURIAN GEORGE KANNANTHANAM, SENIOR ADVOCATE ADV. SRI.THOMAS GEORGE** **RESPONDENT(S):** **------------------------** **1. STATE OF KERALA REPRESENTED BY SECRETARY HEALTH & FAMILY WELFARE DEPARTMENT GOVERNMENMT SECRETARIAT, TRIVANDRUM.** **2. THE DIRECTOR OF HEALTH SERVICES TRIVANDRUM.** **3. THE DISTRICT MEDICAL OFFICER OF HEALTH TRIVANDRUM** **BY GOVERNMENT PLEADER ADV. SRI.SANDESH RAJA** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C) NO.12031/2008-G** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **P1 COPY OF THE APPLICATION DATED 13-9-2006 FROM THE PETITIONER TO THE 1ST RESPONDENT.** - **P2 COPY OF THE COVERING LETTER DATED 16-10-2006 FROM THE 3RD RESPONDENT.** - **P3 COPY OF THE REMINDER DATED 30-12-2006 FROM THE PETITIONER.** - **P4 COPY OF THE INTIMATION DATD 31-12-2006 FROM THE PETITIONER.** - **P5 COPY OF THE COMMUNICATION DATED 30-1-2007 FROM THE 2ND RESPONDENT.** - **P6 COPY OF THE COMMUNICATION DATED 20-3-2007 TO THE PETITIONER.** - **P7 COPY OF THE REQUEST DATED 27-9-2007 FROM THE PETITIONER.** - **P8 COPY OF THE SHOW CAUSE NOTICE DATED 31-3-2006 FROM THE 1ST RESPONDENT.** - **P9 COPY OF THE EXPLANATION DATED 1-10-2007 FROM THE PETITIONER.** - **P10 COPY OF THE ORDER DATED 15-11-2007 OF THE HEALTH & FAMILY WELFARE (A) DEPARTMENT.** - **P11 COPY OF THE ORDER DATED 10-3-2008 OF THE HEALTH& FAMILY WELFARE (A) DEPARTMENT.** ## **RESPONDENT'S EXHIBITS:** ## **/TRUE COPY/** ## **P.S.TO.JUDGE** ## **T.R. RAMACHANDRAN NAIR, J.** ## **~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.12031/2008-G ~~~~~~~~~~~~~~~~~~~~~~~~~~~** ## **Dated this the 21[st] day of October, 2010** ## **J U D G M E N T** The petitioner is mainly challenging the composite order refusing to grant her request for voluntary retirement and imposing a punishment and the further direction issued to her to rejoin duty. 2. The petitioner was working as Civil Surgeon in the Department of Health Services. After completion of 25 years, she submitted Ext.P1 application dated 13/09/2006 requesting for voluntary retirement from service. The voluntary retirement was sought with effect from 01/01/2007. Application was forwarded through proper channel as evident from Ext.P2 which is a letter addressed to the Director of Health Services, Thiruvananthapuram. Ext.P3 is the further reminder forwarded by the petitioner. Since she did not get any order refusing to allow her application, she gave an intimation by Ext.P4 stating that she is proceeding to voluntary retirement from service with effect from 01/01/2007. 3. Ext.P5 is a communication addressed to the Accountant General from the Directorate of Health Services with regard to the finalisation of the quantification of retirement benefits etc.. Ext.P6 is a communication from the Accountant General seeking certain clarifications from the petitioner in respect of House Building Advance, and ## W.P.(C). No.12031/2008 -:2:- Motor Conveyance Advance. Ext.P7 is a representation sent by her to the Government requesting to release her retirement benefits. 4. It is at that stage the petitioner was communicated a notice proposing punishment of barring one increment for one year without cumulative effect which is produced as Ext.P8. The same is dated 31/03/2006 which was served on the petitioner on 29/09/2007. The petitioner replied to the show cause notice by Ext.P9. Finally by Ext.P10 dated 15/11/2007, orders have been passed confirming the provisional decision taken for barring her one increment without cumulative effect for one year. Based on the same, the request for voluntary retirement also is rejected with a further direction to her to rejoin duty immediately. Ext.P11 is a further communication whereby she had been reposted to the post of IUD Officer, Directorate of Health Services, Thiruvananthapuram in the existing vacancy. 5. Heard the learned Senior Counsel for the petitioner, Shri Kurian George Kannanthanam and the learned Government Pleader appearing for the respondents. The learned Senior Counsel invited my attention to the relevant Rules of Part III K.S.R., namely, Rules 56(i)(iv) & (v) to contend for the position that in the light of the proviso to Sub Rule (iv), unless there is a refusal to grant permission for voluntary retirement before the date on ## W.P.(C). No.12031/2008 -:3:- which the petitioner has chosen to retire, it will be deemed that the retirement has become effective. It is further pointed out that in a case like this, merely because of the proposal for imposing a minor penalty, there could not have been a refusal for voluntary retirement also in the light of Sub Rule (v). 6. Going by Sub Rule (i) of Rule 56 of Part III K.S.R, the Officer concerned will have to give a notice proposing to retire from service voluntarily, at least three months before the date on which he/she wishes to retire. As per Sub Rule (iv), voluntary retirement of the employee shall become effective on the grant of permission to retire by the authority competent to make appointment to the post. The proviso is important in the context of this case. According to the same, unless the refusal is communicated prior to the date specified in the notice under clause (i), the retirement shall become effective from the date specified in the notice. There cannot be any dispute that the provision providing for voluntary retirement gives a right to the Officer concerned to avail the benefit. Here the proviso actually has introduced a positive provision which leads to only one conclusion that in the event of non refusal prior to the date on which the employee wishes to retire, the retirement shall become effective. ## W.P.(C). No.12031/2008 -:4:- 7. Herein, the stand taken by the respondents is that in the light of the disciplinary action taken, the Government was competent to take a decision otherwise. The contingencies provided under Sub Rule (v) of Rule 56 of Part III K.S.R, are therefore relevant. Going by the same, permission to retire shall be given in all cases except those in which disciplinary proceedings are pending for imposition of a major penalty or the disciplinary authority, having regard to the circumstances of the cases is of the view that the imposition of the penalty of removal or dismissal from service would be warranted or in which prosecution is contemplated or may have been launched in a Court of Law against the respective officer. The present case is not therefore covered by the contingencies provide in Sub Rule (v) also. Even in a case where the permission cannot be granted by the appointing authority, Sub Rule (vi) of Rule 56 of Part III K.S.R, obliges the said authority to refer the matter to the Government with intimation to the person concerned that also before the date specified in the notice as the date on which the employee wishes to retire. Therefore, the cumulative effect of these provisions reveals only one situation, viz., where there is no refusal prior to the date chosen by the Officer concerned, the retirement shall become effective. W.P.(C). No.12031/2008 -:5:- 8. This legal position has been examined by a Division Bench of this Court in **Venugopal v. State of Kerala [2010 (2) KLT 111]** . Therein, it was declared that “the effect of the proviso is that unless the authority competent to make appointment to the post refuses to grant permission for retirement before the date on which the employee wishes to retire as specified in the notice under Clause (i), the retirement shall become effective from the dates specified in the notice. The said provision is clear and categoric. It is part of the statutory rules made by the State in exercise of authority under the Kerala Public Services Act,1968, germinating from the Constitution. It is a rule which binds the employer and the employee”. The Division Bench followed the dictum laid down by the Apex Court in **State of Haryana v. S.K.Singhal [(1999) 4 SCC 293]** . In fact, the Apex Court therein was of the view that when there is a positive provision in terms of the Rules that if the competent authority does not refuse to grant permission for retirement before expiry of the period specified by the officer in the notice, the retirement of the Officer will become automatically effective from the date of expiry of the said period. In the light of the above, the refusal that is communicated by Ext.P10 order dated 15/11/2007, long after the crucial date i.e. 01/01/2007 cannot have any legal effect. The averments in the counter affidavit also reveals that the show cause ## W.P.(C). No.12031/2008 -:6:- notice proposing the punishment i.e. 31/03/2006 was communicated to the petitioner on 29/09/2007. In that view of the matter also, the petitioner will be deemed to have retired from service from 01/01/2007. 9. Then, the further question is whether the punishment ordered as per Ext.P10 can survive. Since it is well settled that no punishment can be imposed against an officer or employee after retirement, in that view of the matter also, when it is held that the petitioner will be deemed to have retired from service on 01/01/2007, Ext.P10 also cannot survive. Therefore, the same is quashed. Consequently, Ext.P11 whereby the petitioner is directed to rejoin duty is also quashed. 10. Writ Petition is accordingly allowed. There will be a direction to the competent authority to sanction to the petitioner the retirement benefits in accordance with Rules and disburse the same within a period of three months from the date of receipt of a copy of this Judgment. No costs. ## **(T.R. Ramachandran Nair, Judge.)** ms