If all the doctors are permitted to retire, in that situation, there would be a chaos and no doctor would be left in the Government hospitals, which would be against the concept of the welfare state and injurious to public interest.
New Delhi: Calling the Uttar Pradesh government’s move to disapprove the voluntary retirement application of doctors, completely acceptable, the Supreme Court has set aside the order passed by the High Court.
The case concerns Dr Achal Singh, who was working as a Joint Director in Medical, Health and Family Welfare, along with other members of the Provincial Medical Services. The doctors had filed an application seeking voluntary retirement from their government services.
After receiving no response on their application, these government employees filed a writ petitions with the Allahabad High court. During the hearing, the high court allowed their petitions and decided the doctors to have retired voluntarily on the dates specified by them in their applications. The court took the decision on the basis of the following observations:-
- It is the responsibility of the authorities to monitor the health system in the State and they have to sincerely examine the issues as to how the working of the Government hospitals can be improved for the betterment of the general public and find out why doctors are opting for voluntary retirement every day.
- The doctors are not interested in joining the Government service when fresh recruitments take place.
- Posts of Medical Officers are not being filled up on account of non-availability of candidates.
- Those who have entered into Government service are continuously opting for voluntary retirement from service causing serious scarcity of doctors in Government hospitals and Primary Health Centres.
- It should be the object of the Government to provide doctors with good opportunities so as to retain them in services.
However, stating that the high court has made contradictory statements in its judgment, the Uttar Pradesh government moved the Supreme Court adding that the high court judgment is a misinterpretation of Rule 56 of the Fundamental Rules of UP.
Before the bench of honourable Judge Arun Mishra and Judge S Abdul Nazeer, the counsel on behalf of the Uttar Pradesh government pointed out, “As per Explanation attached to Rule 56 of the Fundamental Rules as amended in the State of Uttar Pradesh, it was open to the State Government to take a decision whether to retire an employee voluntarily under Rule 56(a) duly considering the public interest or decline the applications for voluntary retirement.”
It was submitted that there is a scarcity of doctors in the Provincial Health Services in UP, thus, the State Government had not accepted their applications.
Adding that the right of the employee to retire voluntarily corresponds with the right of the State Government to retire him in the case of deficiency in services, the state government affirmed, “The directions issued by the High Court is based on a misinterpretation of Rule 56 of the Fundamental Rules and is against the public interest. An employee is not required to give reason while giving a notice for voluntary retirement and in any such event, such reasons are not justiciable.”
On the contrary, the counsel for the doctors relying on previous judgement contended, “The rule provides right to retire and not to seek it. The acceptance of the appointing authority is required only when the disciplinary einquiryis pending and its pendency has been communicated to the employee. Once notice of three months is given, the doctor is deemed to have retired and any action of attempting to reject the notice of voluntary retirement after the said date is ineffective in law.”
It was also urged that the state government was discriminating between the doctors in the Provincial Medical Services with the doctors working in the State-owned Hospitals and Medical Colleges. In many other medical colleges, doctors are being permitted to retire.
Hearing all the arguments made by both the parties, the apex court noted the main question ahead of them which was,
“As to whether under Rule 56 of the Uttar Pradesh Fundamental Rules as amended, an employee has unfettered right to seek voluntary retirement by serving a notice of three months to the State Government or whether the State Government under the Explanation attached to Rule 56 of the Fundamental Rules, is authorised to decline the prayer for voluntary retirement in the public interest.”
The court observed that the state government’s decision was solely based upon the public interest.
“In our considered opinion, under Rule 56 as applicable in the State of Uttar Pradesh, notice of voluntary retirement does not come into effect automatically on the expiry of the three months period. Under the rule in question, the appointing authority has to accept the notice for voluntary retirement or it can be refused on permissible grounds.”
Further, the court stated that the State had not “committed any illegality” by not sanctioning the retirement applications, and stated,
“Poorest of the poor obtain treatment at the Government hospitals. They cannot be put at the peril, even when certain doctors are posted against the administrative posts. It is not that they have been posted against their seniority or to the other cadre. Somebody has to man these administrative posts also, which are absolutely necessary to run the medical services which are part and parcel of the right to life itself.”
In its observation, the apex court incontrovertibly directed that the right to retire is not supreme to the right to life. It observed that if all the doctors are permitted to retire, in that situation, there would be a chaos and no doctor would be left in the Government hospitals, which would be against the concept of the welfare state and injurious to public interest.
“In view of the scarcity of the doctors and the unfortunate privatization and commercialization of the noble medical profession, for maintaining the efficiency of the State Medical Services, the decision taken by the Government is permissible as per rules and cannot be interfered with,” the apex court ruled.
The court further noted- “The preface given by the High Court is just opposite to its conclusion. The High Court ought to have rejected and not to allow the prayer of voluntary retirement made by the doctors.”
On the contention made by the doctors claiming that the state is discriminating against them, the court said,
“Even otherwise in view of the scarcity of the doctors, no ground of equality can be claimed and the doctors of different services form different class, apart from that there is no concept of negative equality that too against the public interest.”
Ultimately, the court concluded that the action of the state government was appropriate in disallowing the prayer seeking voluntary retirement.
“The Government may fill the vacancies if any. But that would not bring doctors of experience at senior level and exodus of doctors cannot be permitted to weaken the services when the public interest requires to serve for the sake of efficient medical profession and fulfil Directive Principles of State Policy once they found statutory expression in the rules cannot be made mockery. When services are required, denial of voluntary retirement is permissible under the Rules applicable in the State of Uttar Pradesh.”