The appeal stands allowed and the impugned order dated 8.7.2021 passed by the learned Single Judge of this Court in W.P. No.13815/2021 is hereby set aside by HIGH COURT OF MADHYA PRADESH AT INDORE in the case of DR. DURGESH RATHI V. STATE OF M.P. through HON’BLE JUSTICE SUBODH ABHYANKAR
FACTS OF THE CASE
The facts of the case are that the petitioner was appointed on the post of Insurance Medical Officer by order dated 15.05.1989. Vide order dated 12.09.1992 he was confirmed into the service. After rendering 30 years of qualifying service, he submitted his application on 12.12.2019, seeking voluntary retirement from service, in a prescribed format i.e., Form-28 under Rule 42(1)(a) of the M.P Civil Services (Pension) Rules, 1976 (for short ‘the Rules of 1976’). The application was forwarded by the Director, E.S.I.C. to the Secretary, Labour Department with the endorsement that no show cause notice/disciplinary proceedings or recovery are pending against the petitioner. The period of notice expired on 29.02.2020, but by that time the Government had imposed Essential Services Management Act, 1968 (hereinafter referred as ESMA) Covid-19 in the State. Vide letter dated 27.07.2020, hence the petitioner sent a reminder to the Secretary and requested for issuance of necessary orders, and vide impugned the order dated 09.09.2020, the State Government has rejected the applications of the petitioner and 4 other doctors due to applicability of ESMA Covid-19 in the State. Being aggrieved, the petitioner preferred W.P.No.13815/2020 which was dismissed by the learned judge of the writ court vide its order dated 08.07.2021. Hence this Writ Appeal.
In this case, on perusal of the record, prima facie it is found that the learned Judge has quoted Rule 56 -A of the Fundamental Rules as amended in the State of U.P. Vis-a-vis Rule 46 of the Rules of 1976 but has not referred to the explanation appended to the Fundamental Rule 56 as amended in U.P., which has been dealt with by the Supreme Court in para 11 of Achal Singh’s case. On careful scrutiny of the impugned order passed by the writ court and the submissions as advanced by Shri Patne, this court is of the considered opinion that the learned judge of the writ court erred in holding that the provisions of Rule 56 -A of the Fundamental Rules as amended in the State of U.P. are in pari materia with the Rule 46 of the Rules of 1976. A bare perusal of the aforesaid dictum of the Supreme Court itself reveals that it was passed while considering the provisions of Rule 56 of the Fundamental Rules as amended in the State of Uttar Pradesh. Rule 42(1)(a) of the M.P Civil Services (Pension) Rules, 1976. Notice of Voluntarily retirement does not require corresponding acceptance of appointing authority. State of Madhya Pradesh vs. Dr.Harendra Jaseja reported in 2014 SCC Online MP 5940; Ruksana Begum Siddiqui vs. State of M.P & others reported in 2009 (5) MPHT 74; Dr.Ashish Kumar Pal vs. State of M.P & others (W.P.No.4127/2014 decided on 14.10.2014); Dr.Nagion Chandra Jain vs. State of M.P & others (W.P No.8484/2014 decided on 21.11.2014) & Dr. Bharat Singh Chauhan vs. State of M.P & others (W.P.No.6549/2015 decided on 22.9.2015) which have been distinguished by the writ court in the impugned judgement are held to be good and still holding the field, in which the similar controversy has been resolved by considering the provisions of Rule 42 (1)(a) of the Rules of 1976 which does not require corresponding acceptance of appointing authority as it is a unilateral act of the government servant to quit the Government service at his will after rendering the minimum service. Relied upon: Dr. Durgesh Rathi vs. State of Madhya Pradesh & others (W.A.No.247 of 2021 dated 17.6.2021) Distinguished: State of Uttar Pradesh & others vs. Achal Singh held, is distinguishable and has no bearing on Rule 42 of M.P. Rules. The appeal stands allowed and the impugned order dated 8.7.2021 passed by the learned Single Judge of this Court in W.P. No.13815/2021 is hereby set aside. Resultantly, the impugned order dated 09.09.2020 passed by the respondent no.1 is hereby quashed and the respondents are directed to release all the retiral dues such as pension, gratuity, leave encashment, Family Benefit Fund, Group Insurance Scheme, GPF, etc. by treating the petitioner/appellant retired from the post of Insurance Medical Officer from the services of respondent No.1/Department w.e.f. 01.3.2020 with all consequential and monetary benefits along with Bank interest rates.
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JUDGEMENT REVIEWED BY SHREYA NIDHI