DURGESH RATHI Vs. STATE OF M. P.

JUDGEMENT

(1.) This Writ Appeal has been preferred under Sec. 2(1) of the Madhya Pradesh Uchcha Nyalaya (Khand Nyayapeeth Ko Appeal) Adhiniyam, 2005, against the order dtd. 8/7/2021 passed by the learned Judge of the Writ Court in Writ Petition No.13815/2020.

(2.) The case of the appellant/petitioner before the writ court was that the petitioner was appointed on the post of Insurance Medical Officer by order dtd. 15/5/1989. Vide order dtd. 12/9/1992 he was confirmed into the service. After rendering 30 years of qualifying service, he submitted his application on 12/12/2019, seeking voluntary retirement from service, in a prescribed format i.e. Form-28 under Rule 42(1)(a) of the M.P Civil Services (Pension) Rules, 1976 ( for short 'the Rules of 1976'). The application was forwarded by the Director, E.S.I.C. to the Secretary, Labour Department with the endorsement that no show cause notice/disciplinary proceedings or recovery are pending against the petitioner. The period of notice expired on 29/2/2020, but by that time the Government had imposed Essential Services Management Act, 1968 (hereinafter referred as ESMA) Covid-19 in the State. Vide letter dtd. 27/7/2020, hence the petitioner sent a reminder to the Secretary and requested for issuance of necessary orders, and vide impugned the order dtd. 9/9/2020, the State Government has rejected the applications of the petitioner and 4 other doctors due to applicability of ESMA Covid-19 in the State. Being aggrieved, the petitioner preferred W.P.No.13815/2020 which was dismissed by the learned judge of the writ court vide its order dtd. 8/7/2021. Hence this Writ Appeal.

(3.) Shri L.C. Patne, learned counsel for the appellant has submitted that the contention of the petitioner that as per Sub-rule (1) of Rule 42 of the Rules of 1976, after serving a prior notice of more than 2 months, in the absence of any departmental enquiry as contemplated under Proviso to Sub-rule (1), it has to be deemed that the appointing authority has allowed to such Government servant to retire from service on the date after expiry of the period of Notice did not find favour by the writ court by placing reliance on a decision rendered by the Supreme Court in the case of State of Uttar Pradesh & others vs. Achal Singh reported as (2018) 17 SCC 578. It is submitted by shri Patne that while drawing parity of the case of the petitioner with that of a decision rendered by the Supreme Court in the case of Achal Singh (supra), the learned Judge of the writ court, although quoted Rule 56 of the Fundamental Rules as amended in the State of U.P., but did not take note of the explanation attached to the aforesaid Rule which is the distinguishing feature as has also been rendered in para 12 of Achal Singh's (supra) case. It is submitted that Achal Singh's (supra) would not be applicable to the petitioner's case in the light of the Rule 42 of the Rules of 1976 which is different from Fundamental Rule (FR)-56 as amended in the State of Uttar Pradesh. Shri Patne has also relied upon a decision rendered by the Division Bench of this court in the case of Dr. Duresh Rathi vs. State of Madhya Pradesh & others (W.A.No.247 of 2021 dtd. 17/6/2021) to submit that deeming clause would be applicable in the case on hand as well.