The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.21060 of 2024 An application filed under Articles 226 and 227 of the Constitution of India. Dr. Rabi Narayan Dhar ..... Petitioner Mr. Sameer Kumar Das, Adv. -versus- State of Odisha & Ors. ..... Opposite Parties Mr. U.C. Jena, A.S.C. CORAM: JUSTICE A.K. MOHAPATRA _____________________________________________________ Date of Hearing : 05.02.2025 | Date of Judgment: 16.04.2025 _____________________________________________________ A.K. Mohapatra, J. : 1. The Petitioner has filed the present writ application with a prayer to quash the order dated 08.02.2024 of the OP No.1- State Government, under Annexure-14 and the consequential order dated 09.02.2024 of the OP No.3- Director, PGIMER, Capital Hospital, Bhubaneswar, under Annexure- 15 and further to direct the OP No.1- State Government to allow the Petitioner to avail Page 1 of 31 voluntary retirement from his service along with grant of all consequential retirement benefits. FACTS 2. The factual background leading upto filing of this writ application as pleaded by the Petitioner, in gist is that, the Petitioner started his service as an Asst. Surgeon in Class-II service under Odisha Medical and Health Services (hereinafter, “OHMS”) cadre on 01.07.1996. Thereafter, he was selected and recommended by the Odisha Public Service Commission (hereinafter, “OPSC”) for appointment as a Lecturer (Junior Teacher) in Orthopaedics Surgery and was posted at SCB Medical College and Hospital, Cuttack (hereinafter, “SCBMCH, Cuttack”) on 14.02.2003. Pursuant to the recommendation of OPSC, the Petitioner joined in the OMES cadre with continuity of his past service and with pay protection and other benefits on 17.02.2003. 3. In the course of employment, the Petitioner was posted to different medical colleges by transfer and worked as Asst. Professor and Associate Professor at SCBMCH, Cuttack and VIMSAR, Burla respectively. Subsequently, the Petitioner was promoted to the post of Professor in Orthopedics on 20.10.2020 Page 2 of 31 and he joined as Professor in Orthopedics, at B.B. Medical College and Hospital, Koraput on 21.10.2020. 4. Finally, after rendering his services as a doctor for decades, the Petitioner submitted application for voluntary retirement in terms of Rule-42 of Odisha Civil Services (Pension) Rules, 1992 on 27.12.2023, citing health ailment and some private/personal difficulties. The application for voluntary retirement was forwarded to OP No.3 Director, PGIMER, by letter no. 278 dated 27.12.2023. On receipt of the application for voluntary retirement of the Petitioner, OP No.3- Director, PGIMER, transmitted it to OP No. 2- DMET, and eventually, OP No.2- DMET, forwarded the application for voluntary retirement of the Petitioner to OP No.1- State Government, for its acceptance with a specific note that, the Petitioner has completed more than 27 years of Government service and that there is no departmental or criminal proceeding pending against the Petitioner, by letter dated 20.01.2024. 5. While recommending the application for voluntary retirement of the Petitioner from Government service, the OP No.2- DMET in Memo no. 1018 dated 20.01.2024 directed OP Page 3 of 31 No.3- Director, PGIMER, to furnish the original medical certificates pertaining to the treatment of the Petitioner, the information with regard to pendency of departmental/ vigilance proceeding against the Petitioner and the original service book of the Petitioner for verification. Complying with the aforesaid direction, OP No.3- Director, PGIMER, by its letter no. 535 dated 08.02.2024, directed the Petitioner to comply with the directions of the OP No.2- DMET. The Petitioner instantly produced all the required papers on the very same date before OP No.3- Director, PGIMER and resultantly, OP No.03- Director, PGIMER, transmitted the required information and documents to OP No.2- DMET, by its letter no. 537 dated 08.02.2024. 6. But before receipt of the required documents as submitted by the Petitioner, OP No.1- State Government, rejected the representation of the Petitioner for voluntary retirement from government service, by its letter no. 3796 dated 08.02.2024, on the ground that it will affect larger public interest and there is dearth of faculties in medical colleges. The aforesaid decision of OP No.1- State Government, was communicated to the Petitioner by OP No.3- Director, PGIMER, by letter no. 548 dated 09.02.2024. Page 4 of 31
Facts
Being aggrieved by the rejection of his application under Rule- 42 of OCS (Pension) Rules, 1992, for voluntary retirement, the Petitioner has filed the present writ application. 7.
Legal Reasoning
court would like to refer to view taken by this court in the case of Dr. Manoranjan Mallik v. State of Odisha & Ors., W.P. (C) No. 9003 of 2024, wherein the Petitioner‟s representation under Rule 42 for voluntary retirement from service was rejected citing the ground of dearth of faculties in the medical colleges in the State of Odisha on the ground of public interest. In the above noted case, this court in para- 26 of the judgment observed as follows:- “26. In view of the aforesaid analysis of law as well as keeping in view the factual matrix involved in the present writ application, this Court is of the considered view that Rule-42 of the OCS (Pension) Rules, 1992 does not specifically provide any ground on which an application seeking voluntary retirement from govt. service can be made by any of the govt. servant. Moreover, in view of the Note appended to Rule-42 (2) such application seeking for VRS is to be accepted generally and the exception to such general provision has also been provided in the Note appended to the said Rule. So far the present Petitioner is concerned, there is no dispute that the Petitioner complies with the minimum requirement for making such application and he has followed the procedure of giving a notice of not less than three months. Therefore, the Opposite Parties are not within their authority in rejecting the application of the Petitioner seeking VRS on the ground of dearth of faculties in the medical colleges in the State of Odisha and the ground of public interest involved in the present case. Moreover, such a ground is not available to the Opposite Parties in view of the specific provisions contained in Rule-42. xxx.” Page 29 of 31 35. Therefore, in view of the aforesaid analysis of law as well as keeping in view the factual matrix involved in the present writ application, this Court has no hesitation in coming to a conclusion that the Opposite Parties have committed an illegality by rejecting the application of the Petitioner seeking VRS from service. On such grounds, the writ application filed by the Petitioner is bound to succeed. Accordingly, the impugned order under Annexure-14 dated 08.02.2024 and under Annexure- 15 dated 09.02.2024 is hereby quashed. Further, the Opposite Party No.1 is directed to accept the VRS of the Petitioner with effect from the date of expiry of the three months‟ notice period calculated from the date of his initial application, which was admittedly submitted on 27.12.2023. In other words, the relationship of the employer and employee of the Petitioner with the Govt. of Odisha shall come to an end on completion of three months‟ notice period with effect from the date 27.03.2024. Moreover, it is made clear that if the Petitioner is continuing in service and discharging his duties, he shall be paid his salary and other emoluments for the period for which he has rendered his services. However, for all practical purposes, the relationship of the employer and employee shall come to an end w.e.f. 27.03.2024. Accordingly, the Opposite Page 30 of 31 Parties are directed to process the claim of the Petitioner for grant of retiral dues as well as pensionary benefits as is due and admissible to the Petitioner in the light of the aforesaid observation within a period of three months from the date of communication of a certified copy of this judgment. 36. Accordingly, the writ petition succeeds, however, there shall be no order as to cost. Orissa High Court, Cuttack The 16th April, 2025/ Anil/ Jr. Steno (A.K. Mohapatra) Judge Signature Not Verified Digitally Signed Signed by: ANIL KUMAR SAHOO Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa Date: 16-Apr-2025 17:54:18 Page 31 of 31
Arguments
Heard Mr. Sameer Kumar Das, learned counsel representing the Petitioner and Mr. UC Jena, learned Additional Standing Counsel. Perused the writ application and the documents annexed thereto. SUBMISSIONS FOR THE PETITIONER 8. Mr. Sameer Kumar Das, learned counsel representing the Petitioner, at the outset submitted that, the order of OP No.1 dated 08.02.2024, rejecting the application of the Petitioner for voluntary retirement is illegal, arbitrary, whimsical and discriminatory. It was submitted that Rule- 42 of the OCS (Pension) Rules, 1992, provides that a person at any time after completion of 20 years of government services, may by submitting a notice of not less than 3 months, to the appointing authority, apply for voluntary retirement from service. He further added that, it is also specifically provided in the proviso of the Rule that the appointing authority generally accepts all such applications where there is no disciplinary proceeding or a criminal proceeding Page 5 of 31 pending or contemplated against a government servant for imposition of major penalty. 9. Thereafter, Mr. Das drew the attention of the court to Rule- 42 of the OCS (Pension) Rules, 1992, which reads as- “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 or contemplated against the Government 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 (b) in which prosecution is contemplated or have launched in a Court of Law against the Government servant concerned. If it 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 Page 6 of 31 from Government service 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 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 for being absorbed retires permanently in an autonomous body or a public sector undertaking to which he is on deputation at the time of seeking voluntary retirement. 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 the date of superannuation with effect from beyond 01.12.2008. (Vide Finance Department Notification No.24142/F., dtd.04.09.2015) (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.” Mr. Das, submitted that, on a plain reading of Rule- 42(1) & (2) and the note appended thereto, it can be concluded that acceptance of the application for voluntary retirement is a rule, but the rejection thereof is an exception to the general rule. Only in the Page 7 of 31 event of pendency of disciplinary or criminal proceeding, application for voluntary retirement may be rejected or denied. He further contended that there is no other ground available to the appointing authority under the Rule- 42 to reject an application for voluntary retirement except on pendency of any proceeding or that the employee concerned has not completed 20 years of service. It was submitted by Mr. Das that, the Petitioner has uninterruptedly and without any blemish, has competed 27 years of service under the State Government and he has an unblemished service record, and that the case of the Petitioner complies with all the statutory requirement for availing voluntary retirement and he has an unblemished service record with no criminal or departmental proceeding either initiated or pending against him. Therefore, the OP No.1- State Government had no legal reason to reject the case of the Petitioner seeking voluntary retirement from service. 10. Learned counsel for the Petitioner further contended that, the ground assigned for rejection of the application of the Petitioner for voluntary retirement was that, there is involvement of larger public interest owing to dearth of faculties in the Government Medical Colleges and Hospital and P.G. Institutes of Page 8 of 31 the State, are absolutely baseless and unwarranted. He further substantiated the grounds, by stating that Rule- 42 doesn‟t prescribe “larger public interest” as a ground for rejecting application of voluntary retirement. He further argued that, even if without conceding, but admitting only for argument sake, that such ground of “larger public interest” is available with the state, then it should be applied to all the employees and not in isolation or selectively to the Petitioner. Additionally it was contended that, the OP No.1- State Government has accepted as many as five cases of the similar nature in the year of 2023 and is regularly accepting applications of voluntary retirement of the teacher of the Government Medical Colleges each year. He also submitted that, had there been any larger public interest involved or there is a dearth of faculties, numerous teachers of Government Medical Colleges, should not have been allowed voluntary retirement. Thus, the Opposite Parties by adopting a selective method have violated the principles envisaged in the Article- 14 and 16 of the Constitution of India. 11. Mr. Das, in support of his aforementioned plea, submitted that the Petitioner has obtained the information from the Page 9 of 31 Government under Right to Information Act, 2005 through one of his relatives Sri Sitakanta Mohanty. Such information discloses that numerous doctors including faculties in Government Medical Colleges have been allowed voluntary retirement under Rule- 42 of OCS (Pension) Rules, 1992. He further laid emphasis that the law is no more res integra that all the decision of the government should be equitable. When other similarly situated persons including one person namely Dr. Arpita Priyadarshini, Prof. & HOD Department of Physiology, SJMCH, Puri, has been allowed voluntary retirement on 12.10.2023, the Petitioner cannot be singled out and discriminated by rejecting his application for VRS. 12. On merits of the Petitioner‟s application seeking VRS, Mr. Das, submitted that, in view of consistent suffering of the Petitioner, he is on rest on the advice of his doctor. The Opposite Party No.2- DMET, Odisha in letter dated 09.07.2024, directed the Petitioner to appear before the medical board and after such examination, the medical board has allowed the Petitioner to take rest. Moreover, due to his consistent suffering, the Petitioner is unable as to perform his duties properly and unable as such to serve neither the public nor the Government to the best of his Page 10 of 31 abilities. Therefore, in such situation, it is in the interest of all, to grant voluntary retirement to the Petitioner. ARGUMENT ON BEHALF OF OP No.1 13. Per contra, Mr. U.C. Jena, learned Additional Standing Counsel, appearing on behalf of the OP No.1- State of Odisha, submitted that the application of the Petitioner for voluntary retirement dated 27.12.2023 has been rejected by the Government vide Letter No. 3796 dated 08.02.2014, because there is acute shortage of faculties in the Government Medical Colleges & Hospitals of the State and the Department is in a very precarious position to the fulfil the prescribed Minimum Standard Requirements (MSRs) of the National Medical Council (hereinafter “NMC”), in respect of minimum number of faculties to be in position in Government Medical Colleges. 14. Learned A.S.C., further stated that, upon promotion to the rank of Professor, Orthopaedics, the Petitioner was posted as Professor, Orthopaedics at BBMCH, Balangir vide Heath and Family Welfare Department Order No. 23997 dated 20.10.2020. After joining at BBMCH, Balangir on 21.10.2020, the Petitioner submitted various representations on 16.01.2023, 22.05.2023 and Page 11 of 31 18.09.2023 for transfer from BBMCH, Balangir. Being a senior Professor having vast experience and expertise in the field of Orthopaedics, the Petitioner was transferred and posted against the vacant post of Professor, Orthopaedics at PIGMER and Capital Hospital, Bhubaneswar, the standalone Post Graduate Institute in the State Capital, vide Notification No. 27367 dated 09.11.2023. In compliance with the said notification dated 09.11.2023, the Petitioner has submitted his joining report on 13.11.2023 at PIGMER and Capital Hospital, Bhubaneswar. But after joining there, he remained on frequent leaves on various grounds starting from 30.12.2023. This aspect was brought to the notice of the OP No.2- DMET by the OP No.3- Director, PGIMER and Capital Hospital, Bhubaneswar, vide Letter No. 3333 dated 04.07.2024 expressing the difficulties/ problems being faced at PGIMER & CH in patient care; in Post Graduate Education as well as in departmental and administrative functions. 15. Learned counsel for the petitioner further highlighted the fact that, the Petitioner was directed to appear before the Standing Medical Board- cum- CDM & PHO, Cuttack, vide Letter dated 09.07.2024 issued by the DMET. The Standing Medical Board Page 12 of 31 was convened on 03.08.2024, and the Petitioner duly appeared on the scheduled date. After proper examination of the Petitioner by the Standing Medical Board, the Petitioner was advised 1 month rest. Pursuant to the report of the standing Medical Board, the DMET again vide Letter No. 15723 dt.30.08.2024 directed the Petitioner to appear before the Standing Medical Board on 03.09.2024 i.e. exactly after one month. Instead of appearing before the standing Medical Board, vide E-mail communication dated.01.09.2024, the Petitioner again requested for extension of leave for an additional period of 4 weeks which was rejected by the DMET vide Letter No. 17114 dt.12.09.2024 and the Petitioner was directed to resume duty on or before 17.09.2024 positively. However, it was submitted by the Learned ASC that, instead of resuming the duty, the Petitioner is still continuing under leave. 16. It was reiterated by Mr. Jena, learned ASC, that the Petitioner has applied for voluntary retirement on 27.12.2023 which was rejected vide letter no. 3796/H dated 08.02.2024 in lager public interest owing to dearth of faculties in the Government Medical College and Hospitals and a leading PG Institutes of the State. Subsequently, the Petitioner represented Page 13 of 31 again for taking voluntary retirement from service for the second time on 29.07.2024 on the same ground of illness of self and the said representation has not been considered and was rejected by Department Letter no. 24040/H, dated 17.09.2024. 17. Furthermore, referring to Rule- 42(1) of OCS (Pension) Rules learned counsel for State submitted such provision lays down that, at any time after a government servant has completed twenty years of qualifying service, he/she may seek retirement, by giving a notice of not less than three months in writing to the appointing authority. Further, Rule- 42(2) of the OCS (Pension) Rules provides that the notice of voluntary retirement given under sub- rule (1) shall require acceptance by the appointing authority. He also stated that from the perusal of the provisions, it becomes apparent that an employee does not have an unfettered right to voluntary retirement by merely serving a notice of three months to the appointing authority. Rather, voluntary retirement would be granted subject to acceptance of the notice by the appointing authority, as provided in the relevant rules. 18. While substantiating his argument further, learned counsel for State contended that, the meeting of „VR Committee‟, which Page 14 of 31 was constituted to scrutinize the representations of the faculties of OMES Cadre seeking Voluntary Retirement/ Resignation, was held on 01.02.2024 & 27.08.2024 to consider the voluntary retirement application of the Petitioner along with representation of other faculties. After due deliberation, the committee unanimously recommended not to permit VR 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 fulfil the MSRs as prescribed by NMC. 19. Mr. Jena, learned counsel for the State, to support his submissions, placed reliance on the case of State of Uttar Pradesh v. Achal Singh, reported in (2018) 17 SCC 578, in which the State of Uttar Pradesh had declined to accept the voluntary retirement applications of certain doctors on the ground of public interest. He added that at Paras- 36,37,41,42 and 43 of the judgment, the Hon‟ble Supreme Court taking into consideration similar provisions in the UP- Rules and similar factual background as is involved in the present case has upheld the decision of the State of Uttar Pradesh in disallowing voluntary retirement to the Page 15 of 31 doctors and has further held that the State has not committed any illegality in rejecting VRS applications submitted by the doctors. 20. Additionally, it was contended by the learned counsel for the State that, the Directive Principles of State Policy as enshrined under Articles 36-51 in Part IV of the Constitution of India outlines the state‟s duties to ensure the right to health, such as improving Public Health, protecting the health of mothers and infants, securing the health of workers, etc. In order to fulfil these duties, the State Government is taking steps for providing universal and affordable healthcare services to the people of the State, by establishing 12 Medical Colleges and Hospitals, 2 PG Institutes and is in the process to open 2 new Medical Colleges at Talcher and Phulbani. Since there is acute shortage of faculties in the Government Medical Colleges and Hospitals in the State, the State Government is finding it difficult to fulfil the MSR as prescribed by the NMC with respect to minimum number of faculties to be recruited in Government Medical Colleges for getting approval of NMC. In view of contentions, provisions referred and precedents relied on, he further submitted that the order of rejection of the application for voluntary retirement of the Page 16 of 31 Petitioner, by OP No.1- State Government, is legal and is in conformity with spirit of Rule- 42 of OCS (Pension) Rules, 1992. Ultimately, learned counsel for the State urged that the writ application of the petitioner be dismissed in limine. REPLY ARGUMENTS FOR THE PETITIONER 21. Countering the arguments made by Mr. Jena, Mr. Das learned counsel for the Petitioner submitted that, the ground of so called larger public interest owing to dearth of faculties in government medical colleges and hospitals is nothing but an attempt by the Opposite Parties to draw sympathy of this Court and to justify their conduct. Due to non- filing of the vacant position of faculties in different government medical colleges and hospitals despite availability of good number of eligible candidates, an artificial scarcity of doctors/ faculties has been created by the government. He further stated that, the rules provide that the authorities should fill up the faculty position each year through OPSC. But there are still several vacancies. Such vacancies are being filled up on ad hoc or contractual basis, creating havoc in the medical institutions of the State. He also added that when the state government is contemplating to open Page 17 of 31 medical colleges in almost all districts and as of now there are about 10 medical colleges throughout the state, hardly any steps are being taken by the state to fill up such vacancies on regular basis by conducting recruitment drives through the OPSC at regular intervals. Thus, the Opposite Parties are logically and legally estopped to put the blame on the petitioner, which is a direct result of their failure to fill up vacancies on regular basis. 22. In the course of his submission, he drew the attention of this court‟s decision in W.P.(C) No. 14270 of 2024, wherein only after interference of this court, the faculty position in the rank of Associate Professor in Government Medical Colleges have been filled up by giving promotion to the existing Assistant Professors. The dearth of faculties in government colleges and hospitals is due to the inaction of the government itself, and the state government cannot be allowed to take advantage of its own inaction, he added. 23. Mr. Das, vehemently argued that, the Petitioner belongs to the Department of Orthopaedics and therefore, no one else other than him knows his own suffering. The Petitioner is not in a position to work as per the norms of the Government and he won‟t be able to give complete justice to not only to his job but to the Page 18 of 31 patients as well. He further submitted that the vacancy which is likely to ocuur, in the event of retirement of the Petitioner from service, can very well be filled up by many brilliant doctors who are ready and willing to serve the state and the public, subject to condition that they are eligible for the appointment. 24. In reply to the case law in State of Uttar Pradesh v. Achal Singh, reported in (2018) 17 SCC 578, relied upon by Mr. Jena, Learned ASC, was contended that, the same has no application to the facts of the present case. The above noted reported case was decided on different set of facts and different set of rules altogether. Whereas, the present writ application is required to be adjudicated strictly in terms of Rule 42 of the OCS (Pension) Rules, 1992, and on the basis of the principle flowing from the rule, i.e., “acceptance of the application for voluntary retirement is a rule, but the cancellation is an exception.” Therefore, in view of the arguments made, pleadings submitted, provisions of law referred to and legal principles relied on, Mr. Das prayed before the court to quash the order of rejection of the application of the Petitioner for voluntary retirement under Annexure 14 & 15 and to grant voluntary retirement to the Petitioner. Page 19 of 31 ISSUES FOR CONSIDERATION 25. Having regard to the submissions made by the learned counsel for the Petitioner and learned Additional Standing Counsel and, on a careful scrutiny of the materials placed before this Court, it is observed that this Court is required to examine the impugned rejection order strictly in the light of provisions contained in Rule- 42 of Odisha Pension Rules, 1992 and within the four corners of the said Rule. It would be profitable to mention here that the OCS (Pension) Rules, 1992 is a set of Rules frames under Article- 309 of the Constitution of India. Thus, the same is not executive instruction/ guidelines. Such Rule has definitely a statutory flavour. ANALYSIS OF THIS COURT 26. While considering the case of the Petitioner, this court by applying the provisions contained in Rule-42, which is the only provision that governs the subject of voluntary retirement from Government service in the State of Odisha, observes that the aforesaid rule provides that any government servant who has completed 20 years of qualifying service is eligible to submit an application for taking voluntary retirement from service. Page 20 of 31 Moreover, while submitting such application the Govt. servant is required to give a notice of not less than three months to the Appointing Authority. It is not disputed by either side that the Petitioner is having eligibility to make such an application, given that he has completed more than 20 years of service and, that he had given a notice as required under Rule-42 (1) of the OCS (Pension) Rules, 1992. For better appreciation of the Rules, Rule- 42 of the OCS (Pension) Rules, 1992, is quoted herein below- “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 or contemplated against the Government 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 (b) in which prosecution is contemplated or have launched in a Court of Law against the Government servant concerned. If it is proposed to accept the notice of voluntary retirement in such cases, approval of the Government should be obtained: Page 21 of 31 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 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 to which he is on deputation at the time of seeking voluntary retirement. 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. (Vide Finance Department Notification No.24142/F., dtd.04.09.2015) (6) The pension and retirement gratuity of the Government servant retiring under this rule shall be based on the Page 22 of 31 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.” 27. With regard to the grounds for seeking voluntary retirement under Rule-42, this Court is of the considered view that Rule-42 of the OCS (Pension) Rules, 1992 does not specify the ground on which an application can or cannot be made by the Government servant to the Appointing Authority for seeking voluntary retirement. Therefore, this Court has no hesitation in coming to a conclusion that the provision contained in Rule-42 (1) is an open provision subject to condition that the Govt. servant seeking voluntary retirement must have completed 20 years of qualifying service and must have given a notice of not less than three months to the Appointing Authority. Although, it is pertinent to mention that the minimum period of notice required can be waived by the Appointing Authority subject to the provisions contained in other sub-rules of Rule-42. Since the same is not the subject matter of dispute in the present writ application, this Court is not dealing with such aspects in the present case. 28. Coming back to the facts of the present case, this Court observes that the Petitioner has minimum qualifying service period Page 23 of 31 required for making an application for voluntary retirement. Further, it appears that he had given a notice of not less than three months to the Appointing Authority as required under Rule-42 (1) of the OCS (Pension) Rules, 1992. However, voluntary retirement is subject to the acceptance of the same by the Appointing Authority. At this juncture, this Court would like to refer to the Note which has been appended to Rule- 42 of OCS (Pension) Rules, 1992. The Note appended to Rule- 42(2) provides that generally the application seeking voluntary retirement by any Govt. employee may be accepted by the Appointing Authority. However, two exceptions have been specifically carved out under which the Appointing Authority is under no legal obligation to accept the voluntary retirement of the Govt. servant generally. Those two exceptions have also been specifically referred to in the preceding paragraphs. 29. On a careful consideration of the factual background of the Petitioner‟s case and on the basis of the materials placed before this court, this Court is of the considered view that the Opposite Party No.1 while rejecting the application of the Petitioner has not taken the ground of pendency of Disciplinary Proceeding or any Page 24 of 31 prosecution having been contemplated or having been launched against the Petitioner. Therefore, the two exceptions carved out in the note to the general rule of accepting the VRS, subject to the satisfaction of the twin conditions laid down in Rule-42, do not apply to the facts of the present Petitioner‟s case. Therefore, the case of the Petitioner does not fall within the exceptions as carved out in the note. As such, this Court has no hesitation in coming to a conclusion that the case of the Petitioner would be governed by the general principle as laid down in Rule-42, and as a result, such VRS application of the Petitioner should have considered keeping in view the Rule-42 and not on any extraneous ground. 30. With regard to the judgment relied upon by the learned Additional Standing Counsel reported in (2018) 17 SCC 578, this Court on a careful reading of the said judgment observes that the main question that fell for consideration before the Hon‟ble Supreme Court in the above-mentioned judgment was as to whether under Rule-56 of the U. P. Fundamental Rules, an employee has an unfettered right to seek voluntary retirement by serving a notice of three months to the State Govt. or whether the State Govt. under the explanation attached to Rule-56 of the U. P. Page 25 of 31 Fundamental Rules, is authorized to decline the prayer for voluntary retirement, under Clause-(c) of Rule-56 of the said rules, in the public interest. On a careful reading of the above-mentioned judgment, this Court observes that the judgment rendered by the Hon‟ble Supreme Court in Achal Singh‟s case (supra) was decided under a different provision of Rule than the Rule applicable to the case of the present Petitioner. 31. So far Achal Singh‟s case is concerned, the Hon‟ble Supreme Court was examining Clause-(c) of Rule-56 of the Fundamental Rules applicable to the employees of the State of Uttar Pradesh. The said Clause-(c) of Rule-56 confers a right is conferred on the appointing authority to require any government servant to retire after attaining the age of fifty years by giving a notice of three months, and a right on the government servant to voluntarily retire after attaining the age of 45 years or on completion of a qualifying service period of 20 years, by giving a notice of three months to the appointing authority. However, the explanation appended to the Rule-56 of Fundamental Rules of State of Uttar Pradesh provides that the decision of the Appointing Authority under clause-(c) shall be in the negative if it appears to Page 26 of 31 the said authority such acceptance is against public interest. Moreover, the explanation (2) to Rule-56 of the U. P. Fundamental Rules further defines the materials that are to be taken into consideration by the Appointing Authority in order to determine whether the voluntary retirement under Rule-56(c) is in public interest. In the case of Achal Singh, the Hon‟ble Supreme Court on a detailed analysis of the Fundamental Rules framed by the U.P. State Government, has categorically held that the State Govt. has the power to decline the prayer for voluntary retirement considering the public interest as provided in the rules, especially in the context of the public interest as provided in the explanation to Rule-56 of the U.P. Fundamental Rules. 32. The Hon‟ble Supreme Court has also referred to Article-47 and 51 (a) of the Constitution of India. On a careful analysis of the aforesaid judgment, this Court further observes that in para-42 of the above-mentioned judgment, the Hon‟ble Supreme Court while referring to some of the earlier judgments of the Hon‟ble Supreme Court has categorically observed that it would depend upon the scheme of the rules as to whether the application for voluntary retirement is to be accepted or not by the Appointing Authority. It Page 27 of 31 has also been observed that each and every judgment has to be considered in the light of the provisions which came up for consideration and question it has decided, language employed in the rules, and it cannot be said to be of general application as already observed by the Hon‟ble Supreme Court in the case of State of Haryana & ors. vs. S.K. Singhal reported in (1999) 4 SCC 293. 33. Reverting back to the facts of the case at hand and keeping in view the legal requirement, the case of the Petitioner is to be considered in the light of the provisions contained in Rule-42 of the OCS (Pension) Rules, 1992. Moreover, such Rule doesn‟t provide for a window to the Opposite Parties to take into consideration any other factor while considering the VRS application of the Petitioner. As such, this Court has no hesitation to come to a conclusion that the judgment in Achal Singh‟s case, which has been heavily relied upon by the learned Additional Standing Counsel, is not applicable to the facts of the present case as the same was considered and decided under the provisions contained in Rule-56(C) of the Fundamental Rules meant for U.P. State Govt. employees and the explanation appended thereto. Page 28 of 31 34. In the facts and circumstances of the present case, this