caselaws
Supreme Court of India
The State Of Uttar Pradesh vs Sudarshana Chatterjee on 10 December, 2019Author: R. Banumathi
Bench: R. Banumathi, A.S. Bopanna, Hrishikesh Roy
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 9300 OF 2019
(Arising out of SLP(C) No.10087 of 2019)
STATE OF UTTAR PRADESH
AND OTHERS …Appellants
VERSUS
SUDARSHANA CHATTERJEE …Respondent
WITH
CIVIL APPEAL NO. 9301 OF 2019
(Arising out of SLP(C) No.10542 of 2019)
JUDGMENT
R. BANUMATHI, J.
Leave granted.
2. Appeal arising out of SLP(C) No.10087 of 2019 has been filed
by the appellants against the judgment dated 24.08.2018 passed by
the High Court of Judicature at Allahabad in Writ-A No.65084 of
2015 in and by which the High Court has quashed the order dated
01.04.2015 passed by the appellants denying retiral benefits to the
Signature Not Verified
Digitally signed by
MADHU BALA
respondent on account of her having joined the service in
Date: 2019.12.10
16:13:15 IST
Reason:
Chhattisgarh Institute of Medical Sciences and the High Court
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directed the appellants to pass fresh order in accordance with law in
the light of observations made by the High Court. Appeal arising out
of SLP (C) No.10542 of 2019 has been filed against the interim
order dated 15.03.2019 passed in Writ-A No.3884 of 2019 whereby
the High Court directed the Principal Secretary, Department of
Medical Education and Training to appear in-person and explain
how the claim of the respondent has been rejected by order dated
04.01.2019 despite judgment of the High Court dated 24.08.2018.
3. Briefly stated facts of the case are that the respondent was
appointed to the post of Lecturer (Anesthesia) vide appointment
order dated 25.03.1982 and she joined at Motilal Nehru Medical
College, Allahabad. While working on the post of Lecturer
(Anesthesia) 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 (Anesthesia) at Chhattisgarh Institute of Medical Sciences
(CIMS), Bilaspur. Pursuant to her applying to CIMS, the respondent
received an appointment letter dated 22.04.2004 from CIMS. Upon
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
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joining on the post of Reader in the Department of Anesthesia at
CIMS. Though her leave application was pending consideration, the
respondent joined as Lecturer in the Anesthesia Department, CIMS
on 15.06.2004. 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.
4. 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.
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According to the respondent, none of her applications were replied
to by the appellants.
5. 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.
6. 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.
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7. Being aggrieved, the respondent filed Writ A. No. 65084 of
2015 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.
8. 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. In the said order, the appellants observed that the
respondent without approval from the State Government, left the
services in the State of UP and joined another service in State of
Chhattisgarh – CIMS. The appellants held that after joining another
service, the respondent no longer remains in the service of the
State of UP and as per the rules, the respondent is not entitled to
get the retiral benefits on attaining the age of superannuation.
9. The writ petition filed by the respondent in Writ A. No.65084 of
2015 was allowed by the High Court vide impugned judgment dated
24.08.2018. The High Court observed that Rule 73 of the
Fundamental Rules of the Financial Handbook has no application to
the facts of the present case. The High Court opined that it is not a
case where the respondent had remained absent without leave or
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had overstayed her leave and the respondent throughout submitted
her leave applications requesting permission for grant of leave to
join CIMS and when no action was taken, the respondent applied
for leave without pay and she actually sought voluntary retirement
and that was also never considered by the appellants. Pointing out
that the respondent had been submitting her leave applications from
2004 onwards, 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. Though the High Court has directed the
State to examine the case of the respondent in accordance with
law, the High Court directed that the examination of the case of the
respondent should be in the light of the observations made by the
High Court in the impugned order dated 24.08.2018.
10. Aggrieved by the decision dated 24.08.2018, the appellants
filed the appeal arising out of SLP(C) No.10087 of 2019 before the
Supreme Court contending that the impugned judgment suffers from
patent error in finding that the respondent is entitled for retiral dues
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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.
According to the appellant-State, the respondent never returned to
resume her service with the appellant-State of UP after 22.08.2004
(up to which date, her leave was sanctioned by the appellants) and
even prior to thereon, she had joined the service of the State of
Chhattisgarh – CIMS on 15.06.2004. As per Fundamental Rules
67-68 as applicable to the employees of the appellant-State, leave
cannot be claimed as a matter of right and the case of the
respondent is “abandonment of her service” and in such a situation,
there is no question of her becoming entitled to voluntary retirement.
Contention of the appellant is that the High Court erred in holding
that the respondent is entitled to voluntary retirement merely on
account of having submitted her application to that effect in the light
of the judgment of the Supreme Court in State of Uttar Pradesh and
others v. Achal Singh (2018) 17 SCC 578 wherein the Supreme
Court held that under Rule 56 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. It was held
that under the rule, the appointing authority has to accept the notice
for voluntary retirement or it can be refused on permissible grounds.
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11. SLP(C) No.10087 of 2019 was filed on 05.04.2019 with a
delay of 134 days. Even before the SLP was filed by the appellant-
State challenging the impugned judgment of the High Court in Writ
A. No.65084 of 2018 dated 24.08.2018, the respondent had initiated
contempt proceedings in Contempt Application (Civil) No.6822 of
2018 against the officers of the appellant-State alleging wilful
disobedience of the impugned judgment of the High Court dated
24.08.2018. The High Court entertained the contempt petition and
in view of the contempt proceedings, the appellants passed the
order dated 04.01.2019 whereby the claim of the respondent was
considered afresh and the same was rejected by passing a
speaking order. The contempt petition was disposed of by the High
Court vide order dated 31.01.2019 observing that the order dated
04.01.2019 passed by the Principal Secretary, Department of
Medical Education and Training has given rise to a fresh cause of
action and that the “direction contained in the order dated
24.08.2018 has been given effect to upon passing of the order
dated 04.01.2019” and accordingly, closed the contempt
proceedings.
12. Challenging the order dated 04.01.2019, the respondent filed
Writ A. No.3884 of 2019. In the said writ petition, the High Court
passed the order dated 15.03.2019 wherein the High Court
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observed that the order dated 04.01.2019 could not have been
passed since the order rejecting the request for voluntary retirement
already stood quashed in terms of the judgment in Writ A. No.65084
of 2015 rendered inter-parties. Being aggrieved, the appellants
have preferred appeal arising out of SLP(C) No.10542 of 2019
before the Supreme Court on 20.04.2019.
13. Ms. Aishwarya Bhati, learned Senior counsel appearing for
the appellants submitted that when in the Writ A. No.65084 of 2015,
the High Court has directed the authorities to consider the case of
the respondent afresh and in accordance with law, the order dated
04.01.2019 having been passed in accordance with law, the High
Court was not right in directing the Principal Secretary to be present
and explain as to how the appellants proceeded to reject the claim
of the respondent which already stood quashed in terms of the
judgment rendered inter-parties in Writ A. No.65084 of 2015. It was
submitted that the approach of the High Court in directing the
personal appearance is contrary to the well-settled principles as
held in Shri N.K. Janu, Deputy Director, Social Welfare Forestary
Division, Agra and others v. Lakshmi Chandra 2019 (6) SCALE 236
wherein the Supreme Court inter alia held that the practice of
summoning officers to court is not proper and does not serve the
purpose of administration of justice. Drawing our attention to the
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various leave applications and the order passed by the appellants,
the learned Senior counsel submitted that pursuant to the
appointment letter issued from CIMS on 22.04.2004, the respondent
had joined in CIMS even in June, 2004. The learned Senior
counsel further submitted that the High Court erred in ignoring the
conduct of the respondent and was not right in holding that the
respondent is entitled to voluntary retirement merely on account of
her submitting applications. Lastly, it has been contended that the
entire conduct of the respondent has throughout been to mislead
and misrepresent the facts and in her applications submitted to the
appellants even after she joined the service at CIMS, she had
deliberately been representing herself as “Associate Professor,
Motilal Nehru Medical College, Allahabad” which she did solely in
order to give the impression that she was still in the service at
Allahabad.
14. Mr. Kuriakose Varghese, learned counsel for the respondent
submitted that the respondent is aged 65 years and due to her old
age, after completing 22 full years of service with the appellant-
State, she wanted to shift to Chhattisgarh where she could live with
her daughter and work at CIMS and in spite of number of
applications, letters and representations seeking permission from
the appellants to join service in CIMS, the respondent could not
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obtain permission from the appellants. Drawing our attention to
various leave applications submitted by the respondent, the learned
counsel has submitted that since the respondent has not received
any reply from the authorities, she had no other option except to join
the services of the Institution-CIMS, Bilaspur on 15.06.2004. The
learned counsel further submitted that the appellants vide order
dated 15.12.2005 have superannuated the respondent with effect
from 30.09.2006 which still remains valid and the appellants are
estopped from taking a contrary view about the service of the
respondent by contending that the respondent has abandoned the
service of the appellants. The learned counsel further submitted
that in CIMS, Regular Pension Scheme ceased to operate from
2004 and any employee who joined the service after 01.01.2004
was not entitled for Old Pension Scheme. It was submitted that
since the respondent had the leave to her credit and it is not a case
of “absence” or “overstay”, the High Court rightly directed the
appellants to sanction and pay all the retiral benefits and the
impugned orders do not warrant interference.
15. We have heard learned counsel for both the parties and
considered the contentions and perused the impugned judgment
and materials on record.
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16. 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. It is also pertinent to note that after joining
CIMS and working in CIMS, the respondent made another
application for grant of one month earned leave on 23.07.2004 by
citing the reason “personal work”. This application came to be
sanctioned vide order dated 07.08.2004 by granting the respondent
earned leave from 23.07.2004 to 22.08.2004. In this manner, 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.
17. Be that as it may, in Writ A. No.65084 of 2015, 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,
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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.
18. While disposing Writ A. No.65084 of 2015, the High Court
directed the Principal Secretary (Medical Education and Training
Department), Government of U.P. to examine the case of the
respondent and pass fresh orders in accordance with law.
Accordingly, the Principal Secretary has passed the order on
04.01.2019 whereby the claim of the respondent was considered
afresh and the same was rejected by passing a speaking order. The
respondent filed Writ-A No.3884 of 2019 challenging the order dated
04.01.2019. While entertaining the said writ petition of the
respondent, vide the impugned order dated 15.03.2019, the High
Court observed that the order dated 04.01.2019 could not have
been passed since the order dated 01.04.2015 was already
quashed by the High Court by finding that the respondent is entitled
to pension and further for adjustment of the period of her absence
from the Motilal Nehru Medical College, Allahabad till the time of her
joining CIMS against such leave as may be available to her account
and for voluntary retirement. The High Court has observed that in
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the light of its earlier order dated 24.08.2018, the order dated
04.01.2019 could not have been passed and directed the Principal
Secretary (Medical Education and Training Department),
Government of U.P. to appear before the court and explain.
19. 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, in Shri N.K. Janu, Deputy Director Social Forestary
Division, Agra and Others v. Lakshmi Chandra 2019 (6) SCALE
236, the Supreme Court held as under:-
“22. Having said so, we find that the High Court was not justified in
passing orders from time to time to secure presence of the officers. The
officers of the State discharge public functions and duties. The orders
are generally presumed to be passed in good faith unless proved
otherwise. The officers pass orders as a custodian of public money.
Therefore, merely because an order has been passed, it does not
warrant their personal presence. The summoning of officers to the court
to attend proceedings, impinges upon the functioning of the officers and
eventually it is the public at large who suffer on account of their absence
from the duties assigned to them. The practice of summoning officers to
court is not proper and does not serve the purpose of administration of
justice in view of the separation of powers of the Executive and the
Judiciary. If an order is not legal, the Courts have ample jurisdiction to
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set aside such order and to issue such directions as may be warranted
in the facts of the case.”
The above observation squarely applies to the case in hand. When
Writ-A No.65084 of 2015 was disposed of directing the Principal
Secretary to pass orders in accordance with law, the Principal
Secretary considered the matter afresh and passed the speaking
order dated 04.01.2019. Merely because the Principal Secretary
has passed the said order, the High Court, in our view, was not right
in directing the presence of Principal Secretary in the Court and
explain as to the reasons in passing the said order dated
04.01.2019. The impugned order dated 15.03.2019 passed in Writ
A. No.3884 of 2019 is set aside and the appeal arising out of
SLP(C) No.10542 of 2019 is allowed.
20. In the result, the impugned order dated 24.08.2018 passed by
the High Court of Allahabad in Writ-A No.65084 of 2015 is set aside
and the appeal arising out of the SLP(C) No.10087 of 2019 is
allowed. The impugned order dated 15.03.2019 passed by the High
Court in Writ-A No.3884 of 2019 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(C) No.10542 of 2019 is allowed. The High Court shall take up
Writ-A No.3884 of 2019 and afford sufficient opportunities to both
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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-A No.65084 of 2015. Parties shall bear their respective
costs.
………………………..J.
[R. BANUMATHI]
..……………………..J.
[A.S. BOPANNA]
New Delhi;
December 10, 2019
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