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)

J U D G M E N T

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

respondent  on  account  of  her  having  joined  the  service  in

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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