Patna High Court
Case Details
ORISSA HIGH COURT : CUTTACK WA No.526 of 2025 In the matter of an Appeal under Article 4 of the Odisha High Court Order, 1948 read with Clause 10 of the Letters Patent constituting the High Court of Judicature at Patna and Rule 6 of Chapter-III and Rule 2 of Chapter-VIII of the Rules of the High Court of Odisha, 1948 *** Dr. Snigdha Prava Mishra Aged about 56 years Wife of Dr. Jayanta Kumar Mishra At. Flat No. 306, Nadighosh Aawas RC Das Lane, Kamapalli Berhampur, District: Ganjam, Ex-Professor and HOD Department of Physiology MKCG Medical College, Berhampur District: Ganjam, Now transferred as Superintendent SRMMCH, Bhawanipatna District: Kalahandi. … -VERSUS- 1. State of Odisha Represented through Commissioner-cum-Secretary Health and Family Welfare Department Lokseva Bhawan, Bhubaneswar District: Khordha. Appellant WA No.526 of 2025 Page 1 of 52 2. Director Medical Education and Training, Odisha Bhubaneswar, District: Khordha. 3. Dean and Principal MKCG (Medical College and Hospital) Berhampur, District: Ganjam. 4. Dean and Principal SRM (Medical College and Hospital) Bhawanipatna District: Kalahandi … Counsel appeared for the parties: Respondents. For the Appellant : Mr. Budhdev Routray, Senior Advocate Assisted by Sri Jagdish Biswal, Advocates For the Respondents : Mr. Bimbisar Dash, Additional Government Advocate P R E S E N T: HONOURABLE CHIEF JUSTICE MR. HARISH TANDON AND HONOURABLE JUSTICE MR. MURAHARI SRI RAMAN Date of Hearing : 01.07.2025 :: Date of Judgment : 08.07.2025 J UDGMENT BY THE BENCH.— This intra-Court appeal is directed against the Judgement dated 14.02.2025 rendered by a learned WA No.526 of 2025 Page 2 of 52 Single Bench in an application, bearing W.P.(C) No.27920 of 2024, under Article 226/227 of the Constitution of India, with the following prayer(s): “It is, therefore, prayed that in the interest of justice, this Hon‟ble Court may graciously be pleased to admit this writ appeal, call for the records and after hearing the parties, allow the writ appeal and set aside the Judgement dated 14.02.2025 (Annexure-9 ) passed in W.P.(C) No. 27920/2024; And also pleased to quash the letter dated 17.9.2024 and allow the prayer as made in the writ petition; And pass any other order/s, direction/s as may deem fit and proper in the facts and circumstances of the case And For this act of kindness the Appellant shall as in duty bound ever pray.” Facts: 2. As is unfurled in the Judgment dated 14.02.2025 passed by the learned Single Judge in the writ petition filed at the instance of the appellant read with pleadings, averments and contents of the writ petition as well as the writ appeal it has come to fore that being appointed and joined as Assistant Surgeon in the Office of Chief District Medical Officer, Kalahandi on 25.05.1992, the appellant, on completion of post graduate study as in- service candidate, was posted as Lecturer in Maharaja WA No.526 of 2025 Page 3 of 52 Krishna Chandra Gajapati Medical College and Hospital, Berhampur and thereafter she was posted as Assistant Professor on 20.01.2004 and then joined as Associate Professor. While she was posted and performing her duties as Professor at School of Nursing at Maharaja Krishna Chandra Gajapati Medical College and Hospital, Berhampur, since 13.02.2019, vide Notification dated 28.02.2024 she was transferred and directed to join at Saheed Rendo Majhi Medical College and Hospital, Bhawanipatna in Kalahandi District, where she did not join due to health issues. 2.1. Though the appellant, by way of an application/notice to the Commissioner-cum-Secretary, Health and Family Welfare Department, Government of Odisha, requested to accept voluntary retirement from Government service, the same stood refused vide Letter dated 17.09.2024 issued from the Health and Family Welfare Department. 2.2. Questioning the rejection of application for voluntary retirement, the appellant preferred writ petition, being W.P.(C) No.27920 of 2024, which came to be dismissed by a learned Single Judge of this Court by Judgment dated 14.02.2025 (for short, “impugned Judgment”). 2.3. Said Judgment is subject-matter in the instant writ appeal at the instance of the appellant/writ petitioner. Hearing: WA No.526 of 2025 Page 4 of 52 3. Since a short point, whether the learned Single Judge was justified in acceding to the reasons ascribed by the Health and Family Welfare Department, Government of Odisha for refusing acceptance of voluntary retirement of the appellant, is involved, at the request of counsel for
Decision
the both sides, this matter is disposed of at the stage of “Fresh Admission”. 3.1. Heard Sri Budhadev Routray, learned Senior Advocate along with Sri Jagdish Biswal, Advocate for the appellant and Sri Bimbisar Dash, learned Additional Government Advocate for the respondents. 3.2. In course of hearing, learned counsel for the appellant submitted written note of submission and the matter is concluded and kept reserved for preparation and delivery of Judgment/Order. Rival contentions and submissions: 4. Sri Budhadev Routray, learned Senior Advocate along with Sri Jagdish Biswal, submitted that working under aegis of the Health and Family Welfare Department, Government of Odisha, the appellant having joined in the service since 1992, has completed more than 32 years bearing unblemished service career. On account of serious health issues, at this age of around 56 years, she is not in a position to continue further. Therefore, it is onerous for her to perform as Professor in the Odisha WA No.526 of 2025 Page 5 of 52 Medical Service and Education Cadre, even as her application for voluntary retirement is rejected by the Government of Odisha in Health and Family Welfare Department. 4.1. Despite the fact that the appellant has been suffering from “Fuchs Corneal Dystrophy” with progressive loss of vision in both eyes and also other complications, like angina attack multiple times, the opposite parties- authorities without considering the health conditions and capability to discharge her duties of such arduous responsible post ought not to have refused voluntary retirement in a mechanical manner. Legally untenable ground depicted in the order of refusal warrants intervention by setting aside the impugned Judgment. 4.2. Sri Budhadev Routray, learned Senior Advocate contended that none of the exceptions for rejection of application seeking permission to retire voluntarily stipulated in Rule 42 of the Odisha Civil Services (Pension) Rules, 1992 (“Pension Rules”, for brevity) being present in the instant case, the rejection of application of the appellant does suffer infirmity in law. 4.3. He forcefully urged that as the reason cited by the Government of Odisha to reject the application seeking voluntary retirement is not in consonance with the avowed guidelines prescribed under the Pension Rules, WA No.526 of 2025 Page 6 of 52 the writ Court should have delved into merit of the matter and set aside the order of refusal as reflected in the Letter dated 17.09.2024 (Annexure-5). 4.4. It is submitted that the learned Single Judge while dismissing the writ petition and upholding the decision of the Commissioner-cum-Secretary to the Government of Odisha in Health and Family Welfare Department assigned extraneous ground that the scarcity of doctors is not a mere inconvenience but a matter of grave public concern and to permit the petitioner to retire voluntarily would set a precedence that risks unravelling the very fabric of the healthcare system. He would submit that instead of being swayed away by irrelevant considerations, the learned Single Judge should have appreciated the health issues with the appellant- petitioner. 4.5. It is argued that forcing the appellant to perform despite being appraised of difficulties faced by the appellant, in the present case, non-allowance of prayer of the appellant for voluntary retirement rather poses danger to the “larger public interest” notwithstanding “dearth of faculties in the Government Medical College & Hospitals and PG Institutes of the State”. 4.6. To fortify his argument, Sri Budhadev Routray, learned Senior Advocate placed reliance on a Judgment of this WA No.526 of 2025 Page 7 of 52 Court rendered in the case of Dr. Manoranjan Mallik Vrs. State of Odisha, 2024 (II) ILR-CUT 260, wherein the self- same reason ascribed by the Health and Family Welfare Department to reject the application for voluntary retirement has been disfavoured. He submitted that the subsequent co-ordinate Bench should have followed the earlier decision of this Court of same strength without any variation. Discriminatory treatment could not have been militated against the appellant. 4.7. Having not gone into the merit of the matter by analysing individual issues, the decision of learned Single Judge upholding the rejection of application seeking for voluntary retirement after having served for more than 32 years would not only be de hors material on record but also inconsistent with guiding factors contained in Rule 42 of the Pension Rules. 4.8. The learned Senior Counsel submitted that it is not the stand of the respondents that on account of dearth of faculties in this State none of the doctors has been allowed voluntary retirement. To justify such contention, he would submit that in the case of Dr. Arpita Priyadarshini, a Professor, in the same department as that of the appellant, the respondent No.1 allowed voluntary retirement on 12.10.2023. Further, on 27.12.2024 the respondent No. 1 also allowed voluntary retirement in respect of another doctor namely, Dr. WA No.526 of 2025 Page 8 of 52 Santosh Kumar Routray, Senior Consultant (Medicine) in the District Headquarters Hospital, Puri on health ground. In the present case, though the appellant has material to support serious health issues, which requires constant medical attention, the respondent No. 1 has assigned flimsy ground, i.e., public interest. 4.9. Explaining further by way of written note of submission dated 01.07.2025, he submitted that the respondents were well aware about the medical condition of the appellant as she was on medical leave on and from 01.03.2024 and every month she appeared before the Medical Board for assessment of her health condition. Despite such fact being within the knowledge of the respondents that the appellant has been on medical leave for more than a year, the respondent No.l instead of allowing her request to voluntarily retire, rejecting such prayer would be to force her to continue with her job. Though the factual position was placed by way of rejoinder affidavit, the learned Single Judge ignored to discuss in the impugned Judgment. 4.10. Arguing that each individual case should receive consideration on facts, the learned Senior Counsel, therefore, insisted for indulgence in the present matter with appropriate directions to the respondents-opposite parties for (re)consideration of application for voluntary retirement favourably. WA No.526 of 2025 Page 9 of 52 5. Sri Bimbisar Dash, learned Additional Government Advocate, per contra, would submit that it is the prerogative of the employer to retain employees as the State is undergoing acute shortage of “faculties in the Government Medical College & Hospitals and PG Institutes of the State”. As the appellant is experienced and has been handling the position as Professor in a Medical College and Hospital, her services in that capacity would not only benefit medical students of Saheed Rendo Majhi Medical College and Hospital, Bhawanipatna in Kalahandi District but also indispensable in the larger public interest. Therefore, he submitted that decision taken to cater to the needs of larger interest of the public needs no interference. 5.1. In order to justify the action of the Health and Family Welfare Department he went on to lay emphasis on provisions contained in Rule 42 of the Pension Rules to strenuously urge that such Rule does not confer upon an employee unfettered right to retire voluntarily and by merely serving a notice of three months ipso facto would not entitle the employee to retire at his/her sweet will, but such fact is required to be considered by the Appointing Authority/State Government and acceptance thereof. The present case does not deserve consideration for voluntary retirement, but from circumstances it may be inferred that the appellant seeks to avoid transfer to WA No.526 of 2025 Page 10 of 52 Kalahandi district. The rejection of application for voluntary retirement has aptly been done by the Health and Family Welfare Department, which is appropriately considered by the learned Single Judge. 5.2. Learned Additional Government Advocate submitted that in the Meeting held on 27.08.2024, a Committee constituted for the purpose of consideration of voluntary retirement of not only the appellant but also other faculties, after due deliberation, decided unanimously not to permit voluntary retirement to faculties as there was acute shortage of doctors in the Government Medical College & Hospitals of the State and that the Department was in a tight position to satisfy the Minimum Standard Requirements (MSRs) as prescribed by National Medical Commission (NMC) in respect of minimum number of faculties to be in position at Government Medical Colleges. Consequently, the representation of appellant-Dr. Snigdha Prava Mishra was rejected vide Letter dated 17.09.2024. 5.3. Referring to State of Uttar Pradesh Vrs. Achal Singh, (2018) 17 SCC 578, wherein the State of Uttar Pradesh had declined to accept the voluntary retirement applications of certain doctors on the ground of “public interest”, the learned Additional Government Advocate sought to justify the action of the Government of Odisha as reflected in Letter dated 17.09.2024 and support the WA No.526 of 2025 Page 11 of 52 decision of the learned Single Judge vide impugned Judgment dated 14.02.2025. 5.4. Therefore, he fervently prayed to dismiss the writ appeal. Analysis and discussions: 6. It is undisputed that on showing ground of health issues, at the age of around 56 years and after being in the Government service in the Health and Family Welfare Department for more than 32 years having unblemished service career, the appellant having submitted application/notice seeking acceptance of voluntary retirement, the same got rejected with the following reason vide Letter dated 17.09.2024: “In inviting a reference to the subject cited above, I am to say that the Government after careful consideration, have been pleased to reject your prayer for the voluntary retirement (VR) from Government service in the larger public in the interest owing to dearth of faculties Government Medical College & Hospitals and P.G. Institutes of the State.” 6.1. The writ petition of the appellant against such decision of the Government of Odisha has come to be dismissed being assigned with the following reason vide Judgment dated 14.02.2025: “24. For the reasons set forth, this Court finds no merit in the Writ Petition. The scarcity of doctors is not a mere inconvenience but a matter of grave public WA No.526 of 2025 Page 12 of 52 concern. To permit the petitioner‟s retirement would set a precedent that risks unravelling the very fabric of the healthcare system. The demands of individual preference must yield where the greater public good is at stake. 25. Moreover, the concerned Department shall amend the provisions on voluntary retirement in the OCS (Pension) Rules, 1992, aligning them with the evolving framework in other States. This reform shall be undertaken within three months from the date of this judgment. 26. Accordingly, this Writ Petition is disposed of as dismissed.” 6.2. Provisions of Rule 42 of the Pension Rules read thus: “42. Voluntary Retirement on completion of 20 years Qualifying Service.— (1) At any time after a Government servant has completed twenty years qualifying service, he may, by giving notice of not less than three months in writing to the appointing authority, retire from service. (2) The notice of voluntary retirement given under sub- rule (1) shall require acceptance by the appointing authority. NOTE.— Such acceptance may be generally given in all cases except those (a) in which disciplinary proceedings are pending the Government or contemplated against Page 13 of 52 WA No.526 of 2025 (b) servant concerned for the imposition of a major penalty and the disciplinary authority, having regard to the circumstances of the case, is of the view that the imposition of the penalty of removal or dismissal from service would be warranted in the case or it If in which prosecution is contemplated or have launched in a Court of Law against the Government servant concerned. is proposed to accept the notice of voluntary retirement in such cases, approval of the Government should be obtained: Provided that where the appointing authority does not refuse to grant the permission for retirement before the expiry of the period specified in the said notice, the retirement shall become effective from the date that of expiry of the said period. (3) (a) A Government servant desirous of retiring under sub-rule (1) may make a request in writing to the appointing authority to accept notice of voluntary retirement of less than three months giving reason therefor. (b) On receipt of a request under clause (a), the appointing authority subject to the provision of sub-rule (2), may consider such request for the curtailment of the period of notice of three months on merits and if he is satisfied that the curtailment of the period of notice will not cause any administrative inconvenience, the appointing authority may relax the requirement of notice of three months on the condition that the Government servant shall not apply for WA No.526 of 2025 Page 14 of 52 commutation of a part of his pension before the expiry of the period of notice of three months. (4) This rule shall not apply to a Government servant who retires from Government service for being absorbed permanently in an autonomous body or a public sector undertaking is on to which he deputation at time of seeking voluntary retirement. the Explanation.— For the purpose of the rule the expression “APPOINTING AUTHORITY” shall means the authority which is competent to make appointment to the service or post from which Government servant seeks voluntary retirement. (5) The qualifying service as on the date of intended retirement of the Government servant retiring under this rule, with or without permission shall be increased by the period not exceeding five years, subject to the condition that the total qualifying service rendered by the Government servant does not any case exceed twenty five years and it does not take him beyond the date of superannuation with effect from 01.12.2008. (6) The pension and retirement gratuity of the Government servant retiring under this rule shall be based on the emoluments as specified under Rule 48 and the increase not exceeding five years in his qualifying service not entitle him to any notional fixation of pay for the purposes of calculating pension and gratuity.” WA No.526 of 2025 Page 15 of 52 6.3. Reading of Rule 42 of the Odisha Civil Services (Pension) Rules, 1992, framed in exercise of powers conferred by the proviso to Article 309 of the Constitution of India, gives clear picture about the detail modality regarding voluntary retirement on completion of 20 years qualifying service. Whereas notice for voluntary retirement may require acceptance by the Appointing Authority, nevertheless, the same is to be “generally given in all cases”, subject, of course, to certain exceptions specified therein. A Note appended to sub- rule (2) thereof carves out situations where the acceptance of application for voluntary retirement can be refused by the Appointing Authority. 6.4. The reason ascribed by the Health and Family Welfare Department vide Letter dated 17.09.2024 refused acceptance of notice/application for voluntary retirement “in the larger public interest owing to dearth of faculties in the Government Medical College & Hospitals and PG Institutes of the State”. Such an exceptional situation does not find place as a ground under Rule 42 of the Pension Rules for denying voluntary retirement. 6.5. It is significant to take note of the term “generally” in the Note appended to sub-rule (2) of Rule 42, which in clear terms would indicate that the exercise of power by the Appointing Authority applies in most situations but is not absolute. It suggests a presumption in favour of WA No.526 of 2025 Page 16 of 52 acceptance, but this presumption can be overridden by specific circumstances which are enumerated in said sub-rule. In this context, it means that acceptance of a Government servant‟s request is the norm, but there are exceptions. 6.6. Therefore, it is unequivocal that the term „generally‟ in this context means that acceptance is the usual practice, but it is subject to exceptions. These exceptions are specifically enumerated to address situations involving disciplinary proceedings or legal prosecution against the Government servant (appellant). Nonetheless, the exceptions carved out do not envisage dearth of faculties to deny acceptance of notice seeking voluntary retirement. 6.7. Careful perusal of impugned Judgment reveals that the learned Single Judge has proceeded on the basis of general perception that accepting voluntary retirement in respect of one of faculties may lead to similar prayer being made by others. Hypothetically it was held that such situation may lead to distortion of health management system of this State. It is not the case of the respondents or is there any denial to the contention advanced by the learned Senior Counsel for the appellant that the State Government has been according similar relief of voluntary retirement to Professor of the same department as well as other doctors. WA No.526 of 2025 Page 17 of 52 6.8. While acknowledging that rules are silent with respect to rejection of notice for voluntary retirement on the ground of “public interest” qua dearth of faculties, the learned Single Judge has recommended amendment of the rules in the following tenor: “22. Recognizing the indispensable role of physicians in safeguarding public health and the growing crisis of attrition among medical professionals, this Court, in the exercise of its constitutional duty to uphold the right to healthcare, issues the following broad policy recommendations for the government‟s consideration in drafting a framework for the retention of doctors within the healthcare system: The Government shall ensure that compensation structures for physicians are reformed in a manner that is equitable, transparent, and commensurate with their professional contribution. Remuneration must be aligned with evolving healthcare priorities, ensuring that the pursuit of financial sustainability by health systems does not result in unjust diminution of physicians‟ wages. The State shall undertake necessary measures to integrate work-life balance principles the healthcare profession, ensuring that the physical and mental well-being of physicians is preserved. that undermine a Rigid physician‟s right to family life and personal wellness shall be subject to revision in favour of flexible and sustainable working conditions. schedules clinical into a) b) c) the provision of Physicians, being central healthcare, must be accorded a substantive role in Page 18 of 52 to WA No.526 of 2025 the decision-making processes that govern clinical operations, policy formulation. allocation, resource and d) Healthcare institutions must be mandated to adopt robust and effective staffing models that ensure sufficient support personnel, so that physicians are neither overburdened with administrative tasks nor that can be unduly encumbered with duties competently performed by allied healthcare professionals. e) f) interventions in The Government shall prioritize the technological administrative and documentary burdens imposed upon physicians. Any introduction of digital systems or artificial intelligence tools must be carried out in consultation with medical professionals. investment ease that The Government shall initiate and oversee the establishment of mental health and wellness programs specifically tailored to address physician burnout. A culture that stigmatizes help-seeking behaviours among medical professionals shall be actively dismantled, and systems of peer support, counselling, and psychological care shall be integrated within healthcare institutions. g) Given the critical nature of physician retention, the Government shall direct healthcare systems to including internal undertake periodic structured feedback mechanisms, to assess and address concerns raised by medical professionals regarding workplace conditions, compensation, and administrative inefficiencies. reviews, WA No.526 of 2025 Page 19 of 52 23. that It is expected that the Government shall act upon these recommendations with the urgency and the present crisis demands. The gravity retention of physicians within the healthcare system is not merely a matter of administrative efficiency or economic pragmatism but a question of ensuring the continuity of essential services that sustains the very framework of public health.” 6.9. As it appears there has been digression from the core issue whether the health issues of the appellant could be material factor for consideration of acceptance of notice for voluntary retirement which would comprehend within the meaning of expression “such acceptance may be generally given in all cases”. The recommendations suggested by the learned Single Judge leads to issue of direction to the opposite parties to amend the Rules which speaks about re-writing the provisions of statute, that is the domain of the subordinate legislation in exercise of power conferred under proviso to Article 309 of the Constitution of India. 6.10. This Court may take note of following ruling of the Hon‟ble Supreme Court of India with respect to exercise of power of judicial review and directing the legislative body to promulgate law in the case of State of Himachal Pradesh Vrs. Yogendera Mohan Sengupta, (2024) 1 SCR 973: WA No.526 of 2025 Page 20 of 52 “63. In the case of V.K. Naswa Vrs. Home Secretary, Union of India and Others, (2012) 2 SCR 912 = (2012) 2 SCC 542 = 2012 INSC 10, the petitioner-in- person had approached this Court to issue directions to the Central Government, through the Ministry of Law & Justice, to amend the law for taking action against a person for showing any kind of disrespect to the national flag or for not observing the terms contained in the Flag Code of India, 2002. In the alternative, it was prayed by the petitioner-in-person that this Court may be pleased to issue direction(s) in that regard. 64. This Court, in the said case, after surveying various earlier judgments on the issue, observed thus: „6. 7. It is a settled legal proposition that the court can neither legislate nor issue a direction to the legislature to enact in a particular manner. In Mallikarjuna Rao Vrs. State of A.P., (1990) 2 SCC 707 = AIR 1990 SC 1251 and V.K. Sood Vrs. Deptt. of Civil Aviation, 1993 Supp (3) SCC 9 = AIR 1993 SC 2285, this Court has held that the writ court, in exercise of its power under Article 226, has no power even indirectly to require the executive to exercise its law-making power. The Court observed that it is neither legal nor proper for the High Court to issue directions or advisory sermons to the executive in respect of the sphere which is exclusively within the domain of the executive under the Constitution. The the power under Article 309 Constitution the frame to legislative power. This power under the of is rules WA No.526 of 2025 Page 21 of 52 Constitution has to be exercised by the President or the Governor of a State, as the case may be. The courts cannot usurp the functions assigned to the executive under the Constitution and cannot even indirectly require the executive to exercise its law-making power in any manner. The themselves a courts cannot assume supervisory role over the rule-making power of the executive under Article 309 of the Constitution. While deciding the said case, the Court placed reliance on a large number of judgments, particularly Narinder Chand Hem Raj Vrs. UT, H.P., (1971) 2 SCC 747 = AIR 1971 SC 2399, where it has been held that legislative power can be exercised only by the legislature or its delegate and none else. to 8.