BEENA KUMAR Vs. STATE OF M P

JUDGEMENT

(1.) This writ petition under Article 226 of the Constitution of India is filed with the grievance that petitioner while serving as gynecologist has applied for voluntary retirement vide application (Annexure P/1) dated 27/09/2013 under Rule 42(1)(a) of the M.P. Civil Services (Pension) Rules, 1976 (hereinafter referred to as the Rules of 1976) and in form No. 28, the reason for seeking voluntary retirement was personal to her due to sufferings in her right eye and was therefore, unable to perform surgery of any kind. Despite, application so filed by her, respondents have not decided the same, as required under Rule 42(1)(a) of the Rules of 1976 within one month, as a result, petitioner has approached this Court for the relief of the nature, that despite having fulfilled all the requirements for seeking voluntary retirement and more than one year period has passed by, respondents have not passed any order on her application for seeking voluntary retirement, or direction to respondents to treat the petitioner as having voluntary retired since 26/10/2013 and further direction to respondents to pay her retiral dues.

(2.) On notice, respondents have entered appearance and referred to the order dated 23/12/2014 (Annexure P/8) brought on record by the petitioner, whereby petitioner is given to understand that her application seeking voluntary retirement has been rejected by the Competent Authority.

(3.) Learned counsel for the petitioner contends that despite opportunity being afforded to respondents, till date no counter -affidavit has been filed. It is also submitted that the controversy involved in this writ petition is to the following effect: - Whether the application dated 27/09/2013 (Annexure P/1) filed by the petitioner under Rule 42(1) (a) of the Rules of 1976 after completion of 20 years of qualifying service seeking voluntary retirement from the post of gynecologist can be rejected by communication dated 23/12/2014 (Annexure P/8) in absence of disqualification incurred by the petitioner, as provided for under third proviso to Rule 42 (1) (a) of the Rules of 1976, which reads as under: - 42. Retirement on completion of (20/25 years) qualifying service - (1)(a) Government servant may retire at any time after completing 20 years qualifying service, by giving a notice in form 28 to the appointing authority at least one month before the date on which he wishes to retire or on payment by him of pay and allowance for the period of one month or for the period by which the notice actually given by him falls short of one month: Provided that this sub -rule shall not apply to the Government servants mentioned in brackets against each of the following Departments, until they have not completed 25 years qualifying service: -