LexSTATE OF WEST BENGAL & ORS. versus DR. TONMOY MONDAL
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STATE OF WEST BENGAL & ORS.
v.
DR. TONMOY MONDAL
(Civil Appeal No. 2928 of 2019)
MARCH 12, 2019
[ARUN MISHRA, NAVIN SINHA AND
INDIRA BANERJEE, JJ.]
West Bengal Service Rules, 1971:
Rule 75 – Interpretation of – Voluntary retirement sought –
Declined on the ground that it was not appropriate in the public
interest – Order declining voluntary retirement quashed by State
Administrative Tribunal – In writ petition High Court upheld the
order whereby prayer for voluntary retirement was declined –
Review petition was allowed restoring order of the Tribunal – On
appeal, held: Merely on entertaining a different view on
interpretation of rule 75, it was not open to Division Bench of High
Court to review previous judgment and order passed by a different
Division Bench of High Court – High Court while deciding the
review has committed a fundamental jurisdictional error – It has
acted as if it was exercising appellate power while exercising review
jurisdiction – Even in the review application no ground was raised
to constitute an error apparent on the face of record – Another
jurisdictional error was that the court while deciding the review
petition also decided the matter on merit instead of hearing the
matter afresh – Rule 75(aa) deals with retirement in public interest
which brings in the concept of compulsory retirement – Rule 75(aaa)
deals with voluntary retirement – Note 3 to Rule 75 (aaa) is not
confined in operation to sub-rule (aaa), it is applicable to both i.e.
sub-rule (aaa) and sub-rule (aa) of Rule 75 – The High Court had
taken a correct view while dealing with the writ petition – High
Court in review, illegally interfered with the same – Service Law –
Voluntary Retirement – Review.
State of Uttar Pradesh v. Achal Singh 2018 (10) SCALE
89 – relied on.
[2019] 5 S.C.R. 1049
1049
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SUPREME COURT REPORTS
[2019] 5 S.C.R.
Case Law Reference
2018 (10) SCALE 89
relied on
Para 9
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2928
of 2019
From the Judgment and Order dated 20.01.2017 of the High Court
at Calcutta in R.V.W. No. 18 of 2015
Anand Grover, Sr. Adv., Suhaan Mukerji, Ms. Astha Sharma,
Abhishek Manchanda, Amit Verma, Ms. Dimple Nagpal, M/s Plr
Chambers and Co, Advs. for the Appellants.
S. B. Upadhyay, Sr. Adv., Konark Tyagi, Deepayan Mondal, Rahul
Shyam Bhandari , Advs. for the Respondent.
The following Order of the Court was passed :
O R D E R
1. Leave granted.
2. The question involved in the appeal is the interpretation of Rule
75 of West Bengal Service Rules, 1971 [hereinafter ‘Rules’] framed in
exercise of powers conferred by the proviso to Article 309 of the
Constitution of India.
3. The respondent-Dr. Tonmoy Mondal had joined services initially
on 20.10.1986 as a Medical Officer in West Bengal Health Services on
ad hoc basis. He was confirmed in the said post vide Notification dated
15.11.2002. On 16.11.2011, he sought voluntary retirement. The prayer
made by the respondent was rejected by the Government vide order
dated 22.02.2013 on the ground that it was not considered appropriate in
the public interest to accept the request for voluntary retirement. Following
is the relevant portion of the order:
“We know that the public interest is the welfare or wellbeing of
general people. The welfare of the general public is ensured,
inter alia, through recognization, promotion, and protection of the
same by the Government or its agencies. The Government or its
department cannot adversely affect the rights, health, and finance
of the public at large. The applicant, i.e. Dr. Tanmoy Mondal is a
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doctor and his service is indispensable in public interest. At this
stage, the Health & Family Welfare Department is having many
vacancies and it is necessary to retain doctors to provide service
to people.
Considering all these aspects, I am inclined to hold that it is
not in public interest to retire Dr. Mondal. Consequently, it appears
to me that the prayer of Dr. Tanmoy Mondal should be rejected.
Moreover, voluntary retirement of a member of Health Services
is not maintainable as per provisions laid down in DCRB Rules.”
4. The respondent questioned the aforesaid order by way of filing
Original Application No.754 of 2013 before the West Bengal
Administrative Tribunal. The Tribunal vide order dated 18.11.2013 allowed
the application and quashed the order passed by the State government
declining voluntary retirement. The State of West Bengal filed WExcerpt shown. Read the full judgment & AI analysis in Lexace.