STATE OF UTTAR PRADESH AND OTHERSversusSUDARSHANA CHATTERJEE

                          [2019] 14 S.C.R. 849                            849


          STATE OF UTTAR PRADESH AND OTHERS                               A
                                  v.
                  SUDARSHANA CHATTERJEE
                   (Civil Appeal No. 9300 of 2019)
                       DECEMBER 10, 2019                                  B
         [R. BANUMATHI AND A. S. BOPANNA, JJ.]
      Service Law:
       Retiral benefits – Denial of – Propriety – Employee (a
Lecturer in a Medical College in State of U.P.) applied for the post      C
of Associate Professor/Reader in a Medical College in the State
of Chhattisgarh through proper channel – After being appointed
she applied for two years leave for joining the post in Chhattisgarh
– While the leave application was pending, she joined the post in
Chhattisgarh – After superannuation from the Chhattisgarh
College, she sought retiral benefits from the State of U.P. which         D
was denied – Writ petition challenging denial of retiral benefits
– High Court allowed the petition directing the State to pass fresh
orders in the light of the observations made by the Court – The
State considered the case afresh and rejected the case of the
employee – Writ petition against the order – High Court directed          E
personal presence of the officer who had passed the order –
Petition was allowed holding that request for voluntary retirement
could not have been rejected as the same already stood quashed
by earlier order of High Court – Appeal to Supreme Court – Held:
The employee is not entitled to retiral benefits – The High Court
while directing the State to pass fresh orders was not right in putting   F
restriction that the same would be passed in the light of
observations made by the Court – High Court was also not right
in directing personal presence of the Officer.
      Allowing the appeals, the Court
                                                                          G
     HELD: 1. The High Court 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 Chhattisgarh Institute of Medical Sciences (CIMS)
on 15.06.2004 and this has been suppressed by the respondent.
The respondent remained in the service of two State                       H
                             849
850           SUPREME COURT REPORTS                     [2019] 14 S.C.R.


A     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 did not keep in view the conduct of the
      respondent. [Para 16] [856-E-G]
B           State of Uttar Pradesh and others v. Achal Singh
            (2018) 17 SCC 578 : [2018] 9 SCR 912 – referred
            to.
            2. The High Court while directing the State Government
      to pass fresh orders in accordance with law, was not right in
C     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. [Para 17] [857-A-B]
            3. The High Court was not right in directing the Principal
      Secretary to appear in the court and explain the reason for
D     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. [Para 19] [857-F-G]
E           Shri N.K. Janu, Deputy Director, Social Welfare
            Forestary Division, Agra and Others v. Lakshmi
            Chandra (2019) 6 SCALE 236 – relied on.
                            Case Law Reference
      [2018] 9 SCR 912                 referred to          Para 1
F
      (2019) 6 SCALE 236               relied on            Para 19
            CIVIL APPELLATE JURISDICTION : Civil Appeal No. 9300
      of 2019.
            From the Judgment and Order dated 24.08.2018 of the High
G     Court of Judicature at Allahabad in Writ-A No. 65084 of 2015.
            With
            Civil Appeal No. 9301 of 2019.
           Ms. Aishwarya Bhati, Sr.Adv. (AAG, U.P), Ankit Goel, Ms. Kirti
H     Khangoret, Gopal Singh Chauhan, Advs. for the Appellants.
         STATE OF UTTAR PRADESH AND OTHERS v.                               851
                SUDARSHANA CHATTERJEE

      Kuriakose Varghese, V. Shyamohan, Surya Prakash, Ms. Piyusha          A
Singh, Ms. Isha Ghai, Kmnp Law, Advs. for the Respondent.
      The Judgment of the Court was delivered by
      R. BANUMATHI, J.
      1. Leave granted.                                                     B
       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
                                                                            C
account of her having joined the service in Chhattisgarh Institute of
Medical Sciences and the High Court 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             D
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      E
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                F
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
                                                                            G
two years without pay for 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              H
852            SUPREME COURT REPORTS                        [2019] 14 S.C.R.


A     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.
B
              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
C     in this behalf. On 02.01.2006, the respondent sent an application seeking
      voluntary retirement citing personal reasons. 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
D     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
E     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
F     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.
            7. Being aggrieved, the respondent filed Writ A. No. 65084 of
G
      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
H     16.02.2016, the appellants rejected the application of the respondent
        STATE OF UTTAR PRADESH AND OTHERS v.                                853
      SUDARSHANA CHATTERJEE [R. BANUMATHI, J.]

seeking voluntary retirement and payment of retiral benefits. In the said   A
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            B
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      C
present case. The High Court opined that it is not a case where the
respondent had remained absent without leave or 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      D
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               E
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      F
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
                                                                            G
Supreme Court contending that the impugned judgment suffers from
patent error in finding that the respondent is entitled for retiral dues
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        H
854            SUPREME COURT REPORTS                        [2019] 14 S.C.R.


A     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”
B     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
C     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.
D
             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
E     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
F
      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
G     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 observed that the
      order dated 04.01.2019 could not have been passed since the order
H     rejecting the request for voluntary retirement already stood quashed in
        STATE OF UTTAR PRADESH AND OTHERS v.                                 855
      SUDARSHANA CHATTERJEE [R. BANUMATHI, J.]

terms of the judgment in Writ A. No.65084 of 2015 rendered inter-            A
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,          B
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              C
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                     D
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 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            E
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                 F
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.
                                                                             G
       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       H
856            SUPREME COURT REPORTS                        [2019] 14 S.C.R.


A     in CIMS, the respondent could not 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
B     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,
C     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.
D
            15. We have heard learned counsel for both the parties and
      considered the contentions and perused the impugned judgment and
      materials on record.
            16. The High Court, with due respect, in our view, did not keep
      in view that even though the respondent’s leave application dated
E     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
F     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
G     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
H     High Court directed the State Government to pass fresh orders in
        STATE OF UTTAR PRADESH AND OTHERS v.                                 857
      SUDARSHANA CHATTERJEE [R. BANUMATHI, J.]

accordance with law, while directing the State Government to pass fresh      A
orders in accordance with law, the High Court, in our view, 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.                                               B

       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           C
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         D
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            E
that in 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        F
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,          G
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          H
858             SUPREME COURT REPORTS                          [2019] 14 S.C.R.


A            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,
B
             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
C            the Executive and the Judiciary. If an order is not legal, the Courts
             have ample jurisdiction to 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
D     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
E     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.
F     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 the parties and proceed with the
G     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.


      Kalpana K. Tripathy                                          Appeals allowed.
H