Orissa High Court
Dr. Snigdha Prava Mishra vs State Of Odisha on 8 July, 2025
ORISSA HIGH COURT : CUTTACK
WA No.526 of 2025
In the matter of an Appeal under Article 4 of
the Odisha High Court Order, 1948
read with
Clause 10 of the Letters Patent constituting
the High Court of Judicature at Patna
and
Rule 6 of Chapter-III and Rule 2 of Chapter-VIII
of the Rules of the High Court of Odisha, 1948
***
Dr. Snigdha Prava Mishra
Aged about 56 years
Wife of Dr. Jayanta Kumar Mishra
At. Flat No. 306, Nadighosh Aawas
RC Das Lane, Kamapalli
Berhampur, District: Ganjam,
Ex-Professor and HOD
Department of Physiology
MKCG Medical College, Berhampur
District: Ganjam,
Now transferred as Superintendent
SRMMCH, Bhawanipatna
District: Kalahandi. … Appellant
-VERSUS-
1. State of Odisha
Represented through
Commissioner-cum-Secretary
Health and Family Welfare Department
Lokseva Bhawan, Bhubaneswar
District: Khordha.
WA No.526 of 2025 Page 1 of 52
2. Director
Medical Education and Training, Odisha
Bhubaneswar, District: Khordha.
3. Dean and Principal
MKCG (Medical College and Hospital)
Berhampur, District: Ganjam.
4. Dean and Principal
SRM (Medical College and Hospital)
Bhawanipatna
District: Kalahandi … Respondents.
Counsel appeared for the parties:
For the Appellant : Mr. Budhdev Routray,
Senior Advocate
Assisted by Sri Jagdish Biswal,
AdvocatesFor the Respondents : Mr. Bimbisar Dash,
Additional Government AdvocateP R E S E N T:
HONOURABLE CHIEF JUSTICE
MR. HARISH TANDON
ANDHONOURABLE JUSTICE
MR. MURAHARI SRI RAMANDate of Hearing : 01.07.2025 :: Date of Judgment : 08.07.2025
J UDGMENT
BY THE BENCH.–
This intra-Court appeal is directed against the
Judgement dated 14.02.2025 rendered by a learned
WA No.526 of 2025 Page 2 of 52
Single Bench in an application, bearing W.P.(C)
No.27920 of 2024, under Article 226/227 of the
Constitution of India, with the following prayer(s):
“It is, therefore, prayed that in the interest of justice, this
Hon‟ble Court may graciously be pleased to admit this
writ appeal, call for the records and after hearing the
parties, allow the writ appeal and set aside the
Judgement dated 14.02.2025 (Annexure-9 ) passed in
W.P.(C) No. 27920/2024;
And also pleased to quash the letter dated 17.9.2024
and allow the prayer as made in the writ petition;
And pass any other order/s, direction/s as may deem fit
and proper in the facts and circumstances of the caseAnd
For this act of kindness the Appellant shall as in duty
bound ever pray.”
Facts:
2. As is unfurled in the Judgment dated 14.02.2025 passed
by the learned Single Judge in the writ petition filed at
the instance of the appellant read with pleadings,
averments and contents of the writ petition as well as
the writ appeal it has come to fore that being appointed
and joined as Assistant Surgeon in the Office of Chief
District Medical Officer, Kalahandi on 25.05.1992, the
appellant, on completion of post graduate study as in-
service candidate, was posted as Lecturer in Maharaja
WA No.526 of 2025 Page 3 of 52
Krishna Chandra Gajapati Medical College and Hospital,
Berhampur and thereafter she was posted as Assistant
Professor on 20.01.2004 and then joined as Associate
Professor. While she was posted and performing her
duties as Professor at School of Nursing at Maharaja
Krishna Chandra Gajapati Medical College and Hospital,
Berhampur, since 13.02.2019, vide Notification dated
28.02.2024 she was transferred and directed to join at
Saheed Rendo Majhi Medical College and Hospital,
Bhawanipatna in Kalahandi District, where she did not
join due to health issues.
2.1. Though the appellant, by way of an application/notice to
the Commissioner-cum-Secretary, Health and Family
Welfare Department, Government of Odisha, requested
to accept voluntary retirement from Government service,
the same stood refused vide Letter dated 17.09.2024
issued from the Health and Family Welfare Department.
2.2. Questioning the rejection of application for voluntary
retirement, the appellant preferred writ petition, being
W.P.(C) No.27920 of 2024, which came to be dismissed
by a learned Single Judge of this Court by Judgment
dated 14.02.2025 (for short, “impugned Judgment”).
2.3. Said Judgment is subject-matter in the instant writ
appeal at the instance of the appellant/writ petitioner.
Hearing:
WA No.526 of 2025 Page 4 of 52
3. Since a short point, whether the learned Single Judge
was justified in acceding to the reasons ascribed by the
Health and Family Welfare Department, Government of
Odisha for refusing acceptance of voluntary retirement of
the appellant, is involved, at the request of counsel for
the both sides, this matter is disposed of at the stage of
“Fresh Admission”.
3.1. Heard Sri Budhadev Routray, learned Senior Advocate
along with Sri Jagdish Biswal, Advocate for the appellant
and Sri Bimbisar Dash, learned Additional Government
Advocate for the respondents.
3.2. In course of hearing, learned counsel for the appellant
submitted written note of submission and the matter is
concluded and kept reserved for preparation and
delivery of Judgment/Order.
Rival contentions and submissions:
4. Sri Budhadev Routray, learned Senior Advocate along
with Sri Jagdish Biswal, submitted that working under
aegis of the Health and Family Welfare Department,
Government of Odisha, the appellant having joined in
the service since 1992, has completed more than 32
years bearing unblemished service career. On account of
serious health issues, at this age of around 56 years, she
is not in a position to continue further. Therefore, it is
onerous for her to perform as Professor in the Odisha
WA No.526 of 2025 Page 5 of 52
Medical Service and Education Cadre, even as her
application for voluntary retirement is rejected by the
Government of Odisha in Health and Family Welfare
Department.
4.1. Despite the fact that the appellant has been suffering
from “Fuchs Corneal Dystrophy” with progressive loss of
vision in both eyes and also other complications, like
angina attack multiple times, the opposite parties-
authorities without considering the health conditions
and capability to discharge her duties of such arduous
responsible post ought not to have refused voluntary
retirement in a mechanical manner. Legally untenable
ground depicted in the order of refusal warrants
intervention by setting aside the impugned Judgment.
4.2. Sri Budhadev Routray, learned Senior Advocate
contended that none of the exceptions for rejection of
application seeking permission to retire voluntarily
stipulated in Rule 42 of the Odisha Civil Services
(Pension) Rules, 1992 (“Pension Rules”, for brevity) being
present in the instant case, the rejection of application of
the appellant does suffer infirmity in law.
4.3. He forcefully urged that as the reason cited by the
Government of Odisha to reject the application seeking
voluntary retirement is not in consonance with the
avowed guidelines prescribed under the Pension Rules,
WA No.526 of 2025 Page 6 of 52
the writ Court should have delved into merit of the
matter and set aside the order of refusal as reflected in
the Letter dated 17.09.2024 (Annexure-5).
4.4. It is submitted that the learned Single Judge while
dismissing the writ petition and upholding the decision
of the Commissioner-cum-Secretary to the Government
of Odisha in Health and Family Welfare Department
assigned extraneous ground that the scarcity of doctors
is not a mere inconvenience but a matter of grave public
concern and to permit the petitioner to retire voluntarily
would set a precedence that risks unravelling the very
fabric of the healthcare system. He would submit that
instead of being swayed away by irrelevant
considerations, the learned Single Judge should have
appreciated the health issues with the appellant-
petitioner.
4.5. It is argued that forcing the appellant to perform despite
being appraised of difficulties faced by the appellant, in
the present case, non-allowance of prayer of the
appellant for voluntary retirement rather poses danger to
the “larger public interest” notwithstanding “dearth of
faculties in the Government Medical College & Hospitals
and PG Institutes of the State”.
4.6. To fortify his argument, Sri Budhadev Routray, learned
Senior Advocate placed reliance on a Judgment of this
WA No.526 of 2025 Page 7 of 52
Court rendered in the case of Dr. Manoranjan Mallik Vrs.
State of Odisha, 2024 (II) ILR-CUT 260, wherein the self-
same reason ascribed by the Health and Family Welfare
Department to reject the application for voluntary
retirement has been disfavoured. He submitted that the
subsequent co-ordinate Bench should have followed the
earlier decision of this Court of same strength without
any variation. Discriminatory treatment could not have
been militated against the appellant.
4.7. Having not gone into the merit of the matter by
analysing individual issues, the decision of learned
Single Judge upholding the rejection of application
seeking for voluntary retirement after having served for
more than 32 years would not only be de hors material
on record but also inconsistent with guiding factors
contained in Rule 42 of the Pension Rules.
4.8. The learned Senior Counsel submitted that it is not the
stand of the respondents that on account of dearth of
faculties in this State none of the doctors has been
allowed voluntary retirement. To justify such contention,
he would submit that in the case of Dr. Arpita
Priyadarshini, a Professor, in the same department as
that of the appellant, the respondent No.1 allowed
voluntary retirement on 12.10.2023. Further, on
27.12.2024 the respondent No. 1 also allowed voluntary
retirement in respect of another doctor namely, Dr.
WA No.526 of 2025 Page 8 of 52
Santosh Kumar Routray, Senior Consultant (Medicine)
in the District Headquarters Hospital, Puri on health
ground. In the present case, though the appellant has
material to support serious health issues, which
requires constant medical attention, the respondent No.
1 has assigned flimsy ground, i.e., public interest.
4.9. Explaining further by way of written note of submission
dated 01.07.2025, he submitted that the respondents
were well aware about the medical condition of the
appellant as she was on medical leave on and from
01.03.2024 and every month she appeared before the
Medical Board for assessment of her health condition.
Despite such fact being within the knowledge of the
respondents that the appellant has been on medical
leave for more than a year, the respondent No.l instead
of allowing her request to voluntarily retire, rejecting
such prayer would be to force her to continue with her
job. Though the factual position was placed by way of
rejoinder affidavit, the learned Single Judge ignored to
discuss in the impugned Judgment.
4.10. Arguing that each individual case should receive
consideration on facts, the learned Senior Counsel,
therefore, insisted for indulgence in the present matter
with appropriate directions to the respondents-opposite
parties for (re)consideration of application for voluntary
retirement favourably.
WA No.526 of 2025 Page 9 of 52
5. Sri Bimbisar Dash, learned Additional Government
Advocate, per contra, would submit that it is the
prerogative of the employer to retain employees as the
State is undergoing acute shortage of “faculties in the
Government Medical College & Hospitals and PG
Institutes of the State”. As the appellant is experienced
and has been handling the position as Professor in a
Medical College and Hospital, her services in that
capacity would not only benefit medical students of
Saheed Rendo Majhi Medical College and Hospital,
Bhawanipatna in Kalahandi District but also
indispensable in the larger public interest. Therefore, he
submitted that decision taken to cater to the needs of
larger interest of the public needs no interference.
5.1. In order to justify the action of the Health and Family
Welfare Department he went on to lay emphasis on
provisions contained in Rule 42 of the Pension Rules to
strenuously urge that such Rule does not confer upon
an employee unfettered right to retire voluntarily and by
merely serving a notice of three months ipso facto would
not entitle the employee to retire at his/her sweet will,
but such fact is required to be considered by the
Appointing Authority/State Government and acceptance
thereof. The present case does not deserve consideration
for voluntary retirement, but from circumstances it may
be inferred that the appellant seeks to avoid transfer to
WA No.526 of 2025 Page 10 of 52
Kalahandi district. The rejection of application for
voluntary retirement has aptly been done by the Health
and Family Welfare Department, which is appropriately
considered by the learned Single Judge.
5.2. Learned Additional Government Advocate submitted that
in the Meeting held on 27.08.2024, a Committee
constituted for the purpose of consideration of voluntary
retirement of not only the appellant but also other
faculties, after due deliberation, decided unanimously
not to permit voluntary retirement to faculties as there
was acute shortage of doctors in the Government
Medical College & Hospitals of the State and that the
Department was in a tight position to satisfy the
Minimum Standard Requirements (MSRs) as prescribed
by National Medical Commission (NMC) in respect of
minimum number of faculties to be in position at
Government Medical Colleges. Consequently, the
representation of appellant-Dr. Snigdha Prava Mishra
was rejected vide Letter dated 17.09.2024.
5.3. Referring to State of Uttar Pradesh Vrs. Achal Singh,
(2018) 17 SCC 578, wherein the State of Uttar Pradesh
had declined to accept the voluntary retirement
applications of certain doctors on the ground of “public
interest”, the learned Additional Government Advocate
sought to justify the action of the Government of Odisha
as reflected in Letter dated 17.09.2024 and support the
WA No.526 of 2025 Page 11 of 52
decision of the learned Single Judge vide impugned
Judgment dated 14.02.2025.
5.4. Therefore, he fervently prayed to dismiss the writ appeal.
Analysis and discussions:
6. It is undisputed that on showing ground of health
issues, at the age of around 56 years and after being in
the Government service in the Health and Family
Welfare Department for more than 32 years having
unblemished service career, the appellant having
submitted application/notice seeking acceptance of
voluntary retirement, the same got rejected with the
following reason vide Letter dated 17.09.2024:
“In inviting a reference to the subject cited above, I am to
say that the Government after careful consideration, have
been pleased to reject your prayer for the voluntary
retirement (VR) from Government service in the larger
public interest owing to dearth of faculties in the
Government Medical College & Hospitals and P.G.
Institutes of the State.”
6.1. The writ petition of the appellant against such decision
of the Government of Odisha has come to be dismissed
being assigned with the following reason vide Judgment
dated 14.02.2025:
“24. For the reasons set forth, this Court finds no merit in
the Writ Petition. The scarcity of doctors is not a
mere inconvenience but a matter of grave public
WA No.526 of 2025 Page 12 of 52
concern. To permit the petitioner‟s retirement would
set a precedent that risks unravelling the very fabric
of the healthcare system. The demands of individual
preference must yield where the greater public good
is at stake.
25. Moreover, the concerned Department shall amend
the provisions on voluntary retirement in the OCS
(Pension) Rules, 1992, aligning them with the
evolving framework in other States. This reform shall
be undertaken within three months from the date of
this judgment.
26. Accordingly, this Writ Petition is disposed of as
dismissed.”
6.2. Provisions of Rule 42 of the Pension Rules read thus:
“42. Voluntary Retirement on completion of 20 years
Qualifying Service.–
(1) At any time after a Government servant has
completed twenty years qualifying service, he may,
by giving notice of not less than three months in
writing to the appointing authority, retire from
service.
(2) The notice of voluntary retirement given under sub-
rule (1) shall require acceptance by the appointing
authority.
NOTE.–
Such acceptance may be generally given in all cases
except those
(a) in which disciplinary proceedings are pending
or contemplated against the Government
WA No.526 of 2025 Page 13 of 52
servant concerned for the imposition of a major
penalty and the disciplinary authority, having
regard to the circumstances of the case, is of
the view that the imposition of the penalty of
removal or dismissal from service would be
warranted in the case or
(b) in which prosecution is contemplated or have
launched in a Court of Law against the
Government servant concerned. If it is
proposed to accept the notice of voluntary
retirement in such cases, approval of the
Government should be obtained: Provided that
where the appointing authority does not refuse
to grant the permission for retirement before
the expiry of the period specified in the said
notice, the retirement shall become effective
from the date that of expiry of the said period.
(3) (a) A Government servant desirous of retiring
under sub-rule (1) may make a request in
writing to the appointing authority to accept
notice of voluntary retirement of less than three
months giving reason therefor.
(b) On receipt of a request under clause (a), the
appointing authority subject to the provision of
sub-rule (2), may consider such request for the
curtailment of the period of notice of three
months on merits and if he is satisfied that the
curtailment of the period of notice will not
cause any administrative inconvenience, the
appointing authority may relax the requirement
of notice of three months on the condition that
the Government servant shall not apply for
WA No.526 of 2025 Page 14 of 52
commutation of a part of his pension before the
expiry of the period of notice of three months.
(4) This rule shall not apply to a Government servant
who retires from Government service for being
absorbed permanently in an autonomous body or a
public sector undertaking to which he is on
deputation at the time of seeking voluntary
retirement.
Explanation.–
For the purpose of the rule the expression “APPOINTING
AUTHORITY” shall means the authority which is
competent to make appointment to the service or
post from which Government servant seeks
voluntary retirement.
(5) The qualifying service as on the date of intended
retirement of the Government servant retiring under
this rule, with or without permission shall be
increased by the period not exceeding five years,
subject to the condition that the total qualifying
service rendered by the Government servant does
not any case exceed twenty five years and it does
not take him beyond the date of superannuation
with effect from 01.12.2008.
(6) The pension and retirement gratuity of the
Government servant retiring under this rule shall be
based on the emoluments as specified under Rule 48
and the increase not exceeding five years in his
qualifying service not entitle him to any notional
fixation of pay for the purposes of calculating
pension and gratuity.”
WA No.526 of 2025 Page 15 of 52
6.3. Reading of Rule 42 of the Odisha Civil Services (Pension)
Rules, 1992, framed in exercise of powers conferred by
the proviso to Article 309 of the Constitution of India,
gives clear picture about the detail modality regarding
voluntary retirement on completion of 20 years
qualifying service. Whereas notice for voluntary
retirement may require acceptance by the Appointing
Authority, nevertheless, the same is to be “generally
given in all cases”, subject, of course, to certain
exceptions specified therein. A Note appended to sub-
rule (2) thereof carves out situations where the
acceptance of application for voluntary retirement can be
refused by the Appointing Authority.
6.4. The reason ascribed by the Health and Family Welfare
Department vide Letter dated 17.09.2024 refused
acceptance of notice/application for voluntary retirement
“in the larger public interest owing to dearth of faculties
in the Government Medical College & Hospitals and PG
Institutes of the State”. Such an exceptional situation
does not find place as a ground under Rule 42 of the
Pension Rules for denying voluntary retirement.
6.5. It is significant to take note of the term “generally” in the
Note appended to sub-rule (2) of Rule 42, which in clear
terms would indicate that the exercise of power by the
Appointing Authority applies in most situations but is
not absolute. It suggests a presumption in favour of
WA No.526 of 2025 Page 16 of 52
acceptance, but this presumption can be overridden by
specific circumstances which are enumerated in said
sub-rule. In this context, it means that acceptance of a
Government servant‟s request is the norm, but there are
exceptions.
6.6. Therefore, it is unequivocal that the term „generally‟ in
this context means that acceptance is the usual
practice, but it is subject to exceptions. These exceptions
are specifically enumerated to address situations
involving disciplinary proceedings or legal prosecution
against the Government servant (appellant).
Nonetheless, the exceptions carved out do not envisage
dearth of faculties to deny acceptance of notice seeking
voluntary retirement.
6.7. Careful perusal of impugned Judgment reveals that the
learned Single Judge has proceeded on the basis of
general perception that accepting voluntary retirement
in respect of one of faculties may lead to similar prayer
being made by others. Hypothetically it was held that
such situation may lead to distortion of health
management system of this State. It is not the case of
the respondents or is there any denial to the contention
advanced by the learned Senior Counsel for the
appellant that the State Government has been according
similar relief of voluntary retirement to Professor of the
same department as well as other doctors.
WA No.526 of 2025 Page 17 of 52
6.8. While acknowledging that rules are silent with respect to
rejection of notice for voluntary retirement on the ground
of “public interest” qua dearth of faculties, the learned
Single Judge has recommended amendment of the rules
in the following tenor:
“22. Recognizing the indispensable role of physicians in
safeguarding public health and the growing crisis of
attrition among medical professionals, this Court, in
the exercise of its constitutional duty to uphold the
right to healthcare, issues the following broad policy
recommendations for the government‟s consideration
in drafting a framework for the retention of doctors
within the healthcare system:
a) The Government shall ensure that compensation
structures for physicians are reformed in a manner
that is equitable, transparent, and commensurate
with their professional contribution. Remuneration
must be aligned with evolving healthcare priorities,
ensuring that the pursuit of financial sustainability
by health systems does not result in unjust
diminution of physicians‟ wages.
b) The State shall undertake necessary measures to
integrate work-life balance principles into the
healthcare profession, ensuring that the physical
and mental well-being of physicians is preserved.
Rigid clinical schedules that undermine a
physician‟s right to family life and personal wellness
shall be subject to revision in favour of flexible and
sustainable working conditions.
c) Physicians, being central to the provision of
healthcare, must be accorded a substantive role in
WA No.526 of 2025 Page 18 of 52
the decision-making processes that govern clinical
operations, resource allocation, and policy
formulation.
d) Healthcare institutions must be mandated to adopt
robust and effective staffing models that ensure
sufficient support personnel, so that physicians are
neither overburdened with administrative tasks nor
unduly encumbered with duties that can be
competently performed by allied healthcare
professionals.
e) The Government shall prioritize investment in
technological interventions that ease the
administrative and documentary burdens imposed
upon physicians. Any introduction of digital systems
or artificial intelligence tools must be carried out in
consultation with medical professionals.
f) The Government shall initiate and oversee the
establishment of mental health and wellness
programs specifically tailored to address physician
burnout. A culture that stigmatizes help-seeking
behaviours among medical professionals shall be
actively dismantled, and systems of peer support,
counselling, and psychological care shall be
integrated within healthcare institutions.
g) Given the critical nature of physician retention, the
Government shall direct healthcare systems to
undertake periodic internal reviews, including
structured feedback mechanisms, to assess and
address concerns raised by medical professionals
regarding workplace conditions, compensation, and
administrative inefficiencies.
WA No.526 of 2025 Page 19 of 52
23. It is expected that the Government shall act upon
these recommendations with the urgency and
gravity that the present crisis demands. The
retention of physicians within the healthcare system
is not merely a matter of administrative efficiency or
economic pragmatism but a question of ensuring the
continuity of essential services that sustains the
very framework of public health.”
6.9. As it appears there has been digression from the core
issue whether the health issues of the appellant could be
material factor for consideration of acceptance of notice
for voluntary retirement which would comprehend
within the meaning of expression “such acceptance may
be generally given in all cases”. The recommendations
suggested by the learned Single Judge leads to issue of
direction to the opposite parties to amend the Rules
which speaks about re-writing the provisions of statute,
that is the domain of the subordinate legislation in
exercise of power conferred under proviso to Article 309
of the Constitution of India.
6.10. This Court may take note of following ruling of the
Hon‟ble Supreme Court of India with respect to exercise
of power of judicial review and directing the legislative
body to promulgate law in the case of State of Himachal
Pradesh Vrs. Yogendera Mohan Sengupta, (2024) 1 SCR
973:
WA No.526 of 2025 Page 20 of 52
“63. In the case of V.K. Naswa Vrs. Home Secretary,
Union of India and Others, (2012) 2 SCR 912 =
(2012) 2 SCC 542 = 2012 INSC 10, the petitioner-in-
person had approached this Court to issue directions
to the Central Government, through the Ministry of
Law & Justice, to amend the law for taking action
against a person for showing any kind of disrespect
to the national flag or for not observing the terms
contained in the Flag Code of India, 2002. In the
alternative, it was prayed by the petitioner-in-person
that this Court may be pleased to issue direction(s)
in that regard.
64. This Court, in the said case, after surveying various
earlier judgments on the issue, observed thus:
„6. It is a settled legal proposition that the court
can neither legislate nor issue a direction to the
legislature to enact in a particular manner.
7. In Mallikarjuna Rao Vrs. State of A.P., (1990) 2
SCC 707 = AIR 1990 SC 1251 and V.K. Sood
Vrs. Deptt. of Civil Aviation, 1993 Supp (3) SCC
9 = AIR 1993 SC 2285, this Court has held that
the writ court, in exercise of its power
under Article 226, has no power even
indirectly to require the executive to
exercise its law-making power. The Court
observed that it is neither legal nor proper for
the High Court to issue directions or advisory
sermons to the executive in respect of the
sphere which is exclusively within the domain
of the executive under the Constitution. The
power under Article 309 of the
Constitution to frame rules is the
legislative power. This power under the
WA No.526 of 2025 Page 21 of 52
Constitution has to be exercised by the
President or the Governor of a State, as
the case may be. The courts cannot usurp
the functions assigned to the executive
under the Constitution and cannot even
indirectly require the executive to exercise
its law-making power in any manner. The
courts cannot assume to themselves a
supervisory role over the rule-making power of
the executive under Article 309 of the
Constitution. While deciding the said case, the
Court placed reliance on a large number of
judgments, particularly Narinder Chand Hem
Raj Vrs. UT, H.P., (1971) 2 SCC 747 = AIR
1971 SC 2399, where it has been held that
legislative power can be exercised only by the
legislature or its delegate and none else.
8. In State of H.P. Vrs. Parent of a Student of
Medical College, (1985) 3 SCC 169 = AIR 1985
SC 910, this Court deprecated the practice
adopted by the courts to issue directions to the
legislature to enact a legislation to meet a
particular situation observing: (SCC p. 174,
para 4)„4. *** The direction given by the Division
Bench was really nothing short of an
indirect attempt to compel the State
Government to initiate legislation with a
view to curbing the evil of ragging, for
otherwise it is difficult to see why, after
the clear and categorical statement by the
Chief Secretary on behalf of the State
Government that the Government willWA No.526 of 2025 Page 22 of 52
introduce legislation if found necessary
and so advised, the Division Bench
should have proceeded to again give the
same direction. Thus the Division
Bench was clearly not entitled to do.
It is entirely a matter for the
executive branch of the Government
to decide whether or not to introduce
any particular legislation.‟
9. In Asif Hameed Vrs. State of J&K, 1989 Supp
(2) SCC 364 = AIR 1989 SC 1899 this Court
while dealing with a case like this at hand
observed: (SCC p. 374, para 19)
„19. *** While doing so the court must remain
within its self-imposed limits. The court
sits in judgment on the action of a
coordinate branch of the Government.
While exercising power of judicial review
of administrative action, the court is not
an appellate authority. The Constitution
does not permit the court to direct or
advise the executive in matters of
policy or to sermonise qua any matter
which under the Constitution lies
within the sphere of legislature or
executive.‟
10. In Union of India Vrs. Deoki Nandan Aggarwal,
1992 Supp (1) SCC 323 = AIR 1992 SC 96, this
Court similarly observed: (SCC p. 332, para 14)
„14. *** It is not the duty of the court either to
enlarge the scope of the legislation…. The
court cannot rewrite, recast or reframe the
WA No.526 of 2025 Page 23 of 52
legislation for the very good reason that it
has no power to legislate. The power to
legislate has not been conferred on
the courts.‟
11. Similarly in Ajaib Singh Vrs. Sirhind Coop.
Marketing-cum Processing Service Society Ltd.,
(1999) 6 SCC 82 = AIR 1999 SC 1351, this
Court held that the court cannot fix a period of
limitation, if not fixed by the legislature, as “the
courts can admittedly interpret the law and do
not make laws”. The court cannot interpret
the statutory provision in such a manner
“which would amount to legislation
intentionally left over by the legislature”.
12. A similar view has been reiterated by this
Court in Union of India Vrs. Assn. for
Democratic Reforms, (2002) 5 SCC 294 = AIR
2002 SC 2112 observing that the court
cannot issue direction to the legislature
for amending the Act or Rules. It is for
Parliament to amend the Act or Rules. In
District Mining Officer Vrs. TISCO, (2001) 7
SCC 358, this Court held that function of the
court is only to expound the law and not to
legislate.
13. Similarly, in Supreme Court Employees‟
Welfare Assn. Vrs. Union of India [(1989) 4
SCC 187, this Court held that the court cannot
direct the legislature to enact a particular law
for the reason that under the constitutional
scheme Parliament exercises sovereign power
to enact law and no outside power or
authority can issue a particular piece of
WA No.526 of 2025 Page 24 of 52
legislation. (See also State of J&K Vrs. A.R.
Zakki, 1992 Supp (1) SCC 548 = AIR 1992 SC
1546.)
14. In Union of India Vrs. Prakash P. Hinduja,
(2003) 6 SCC 195 = AIR 2003 SC 2612, this
Court held that if the court issues a direction
which amounts to legislation and is not
complied with by the State, it cannot be held
that the State has committed the contempt of
court for the reason that the order passed by
the court was without jurisdiction and it has no
competence to issue a direction amounting to
legislation.
15. The issue involved herein was considered by
this Court in University of Kerala Vrs. Council
of Principals of Colleges, (2010) 1 SCC 353 =
AIR 2010 SC 2532. The Court elaborately
explained the scope of separation of powers of
different organs of the State under our
Constitution; the validity of judicial legislation
and if it is at all permissible, its limits; and the
validity of judicial activism and the need for
judicial restraint, etc.
The Court observed: (SCC p. 361, para 13)
„13. ***
„19. At the outset, we would say that it is
not possible for this Court to give
any directions for amending the Act
or the statutory rules. It is for
Parliament to amend the Act and the
rules.‟ [Ed.: As observed in Union of
WA No.526 of 2025 Page 25 of 52
India Vrs. Assn. for Democratic
Reforms, (2002) 5 SCC 294, p. 309,
para 19.]‟
16. In State of U.P. Vrs. Jeet S. Bisht, (2007) 6 SCC
586, this Court held that issuing any such
direction may amount to amendment of
law which falls exclusively within the
domain of the executive/legislature and
the court cannot amend the law.
17. In Delhi Jal Board Vrs. National Campaign for
Dignity and Rights of Sewerage and Allied
Workers, (2011) 8 SCC 568, this Court while
dealing with the issue made the observation
that in exceptional circumstances where there
is inaction by the executive, for whatever
reason, the judiciary must step in, in exercise
of its constitutional obligations to provide a
solution till such time the legislature acts to
perform its role by enacting proper legislation to
cover the field. (See also Vishaka Vrs. State of
Rajasthan, (1997) 6 SCC 241 = AIR 1997 SC
3011; Common Cause Vrs. Union of India,
(2008) 5 SCC 511 = AIR 2008 SC 2116 and
Destruction of Public and Private Properties
Vrs. State of A.P., (2009) 5 SCC 212 = AIR
2009 SC 2266)
18. Thus, it is crystal clear that the court has a
very limited role and in exercise of that, it
is not open to have judicial legislation.
Neither the court can legislate, nor has it
any competence to issue directions to the
legislature to enact the law in a
particular manner.‟
WA No.526 of 2025 Page 26 of 52
65. Constitution of India recognizes the independence
and separation of powers amongst the three
branches of the State viz. the Legislature, the
Executive and the Judiciary. Each of the branches
are co-equal. The Parliament or the Legislature is
entrusted with the function of legislation, i.e.,
enacting the laws. The Executive is entrusted with
the function and power to implement those laws and
discharge their functions in accordance with the
provisions made in the Constitution of India and the
laws so enacted. The Judiciary is entrusted with
the function to ensure that the laws enacted by
the Legislature are within the four corners of
the Constitution of India and that the
Executive acts within the four corners of the
Constitution of India and the laws enacted by
the Legislature. As to what should be the laws
and the policy behind the said laws is clearly
within the domain of the Legislature. It is a
different matter for Judiciary to examine as to
whether a particular piece of legislation stands the
scrutiny of law within the limited grounds of judicial
review available. However, giving a direction or
advisory sermons to the Executive in respect of
the sphere which is exclusively within the
domain of the Executive or the Legislature
would neither be legal nor proper. The Court
cannot be permitted to usurp the functions
assigned to the Executive, the Legislature or
the subordinate legislature. The Court cannot
also assume a supervisory role over the rule-
making power of the Executive under Article
309 of the Constitution of India.
WA No.526 of 2025 Page 27 of 52
66. It is a settled law that the Constitution of India does
not permit the Courts to direct or advise the
Executive in the matters of policy or to sermonize
qua any matter which under the Constitution lies
within the sphere of Legislature or Executive. It is
also settled that the courts cannot issue directions to
the Legislature for enacting the laws in a particular
manner or for amending the Acts or the Rules. It is
for the Legislature to do so.
67. A Constitution Bench, in the case of Manoj Narula
Vrs. Union of India, (2014) 9 SCR 965 = (2014) 9
SCC 1 = 2014 INSC 568 was considering various
questions. One of the questions that has been
considered was whether by taking recourse to the
doctrine of advancing constitutional culture, could a
court read a disqualification to the already
expressed disqualifications either provided under
the Constitution or under the Representation of
People Act, 1951. Answering the question in the
negative, the Court observed thus:
„67. The question that is to be posed here is
whether taking recourse to this doctrine for the
purpose of advancing constitutional culture,
can a court read a disqualification to the
already expressed disqualifications
provided under the Constitution and the 1951
Act. The answer has to be in the inevitable
negative, for there are express provisions
stating the disqualifications and second, it
would tantamount to crossing the boundaries
of judicial review.‟
68. This Court, in the case of State of Himachal Pradesh
and Others Vrs. Satpal Saini, (2017) 1 SCR 658 =
WA No.526 of 2025 Page 28 of 52
(2017) 11 SCC 42, considered whether it was
permissible for the High Court to call upon the State
Government to amend the provisions of Section 118
of the Himachal Pradesh Tenancy and Land Reforms
Act, 1972. The directions were issued by the High
Court to the State Government to make amendment
within 90 days. Allowing the appeal filed by the
State Government, this Court held that the High
Court, while issuing the above directions, acted in a
manner contrary to the settled limitations on the
power of judicial review under Article 226 of the
Constitution of India. It held that the directions
cannot be issued to the legislature to enact a
law. The power to enact legislation is a plenary
constitutional power which is vested in the
Parliament and the State Legislatures.
69. It can thus be seen that it is a settled position
of law that neither the High Courts while
exercising powers under Article 226 of the
Constitution nor this Court while exercising
powers under Article 32 of the Constitution can
direct the legislature or its delegatee to enact
a law or subordinate legislation in a particular
manner. If the High Courts and this Court, in
their extra-ordinary powers under Articles 226
and 32 of the Constitution cannot do so, the
answer to the question as to whether a
Tribunal constituted under a statute, having a
limited jurisdiction, can do so or not, would be
obviously „No‟.
70. In that view of the matter, we find that the
first order of NGT is liable to be set aside on
the short ground that it has transgressed its
WA No.526 of 2025 Page 29 of 52
limitations and attempted to encroach upon
the field reserved for the delegatee to enact a
piece of delegated legislation. We are of the
considered view that when the TCP Act empowers
the State Government and the Director to exercise
the powers to enact a piece of delegated legislation,
the NGT could not have imposed fetters on such
powers and directed it to exercise its powers in a
particular manner.”
6.11. Thus viewed, it is not permissible in law to fix time-
frame for the Health and Family Welfare Department-
authorities to undertake exercise for amending the
provisions of law. On this score, the direction of the
learned Single Judge in the impugned Judgment
warrants interdiction.
7. From the aforesaid analysis it is led to believe that the
respondents-opposite parties have accepted the position
that the Pension Rules did not prescribe non-acceptance
of notice for voluntary retirement on the ground of
paucity of doctors in the State of Odisha and non-
availability of faculties in the Medical Colleges and
Hospitals. Cursory glance at provisions contained in
Rule 42 of the Pension Rules depicts two exceptions,
viz., (i) disciplinary proceedings must be pending or
contemplated against the Government servant concerned
for the imposition of a major penalty or (ii) the
disciplinary authority, having regard to the
circumstances of the case, is of the view that the
WA No.526 of 2025 Page 30 of 52
imposition of the penalty of removal or dismissal from
service would be warranted in the case; or prosecution is
contemplated or launched in a Court of Law against the
Government servant concerned. Save and except these
two contingencies, no other ground could be conceived
of to reject acceptance of notice for voluntary retirement
inasmuch as said Rule 42 in explicit terms expressed
that “acceptance may be generally given in all cases”.
7.1. The use of the word “may” in the said expression, as
reflected in the Note appended to Rule 42(2) may have
importance. In Odisha Administrative Tribunal Bar
Association Vrs. Union of India, 2023 LiveLaw (SC) 216,
the Hon‟ble Supreme Court of India has been pleased to
enunciate the purport and object of the word “may” as
opposed to the word “shall” in the following manner:
“34. However, in certain cases, the power to do
something may be coupled with a duty to exercise
that power. In Official Liquidator Vrs. Dharti Dhan
(P) Ltd., (1977) 2 SCC 166, this Court expounded on
when the word “may” carries with it an obligation to
exercise the power conferred by that word in a
particular manner:
„8. Thus, the question to be determined in such
cases always is whether the power conferred
by the use of the word “may” has, annexed to
it, an obligation that, on the fulfilment of certain
legally prescribed conditions, to be shown by
evidence, a particular kind of order must beWA No.526 of 2025 Page 31 of 52
made. If the statute leaves no room for
discretion the power has to be exercised in the
manner indicated by the other legal provisions
which provide the legal context. Even then the
facts must establish that the legal conditions
are fulfilled … It is not the conferment of a
power which the word “may” indicates
that annexes any obligation to its exercise
but the legal and factual context of it.
***
10. The principle laid down above has been
followed consistently by this Court whenever it
has been contended that the word “may”
carries with it the obligation to exercise a
power in a particular manner or direction. In
such a case, it is always the purpose of
the power which has to be examined in
order to determine the scope of the
discretion conferred upon the donee of the
power. If the conditions in which the
power is to be exercised in particular
cases are also specified by a statute then,
on the fulfilment of those conditions, the
power conferred becomes annexed with a
duty to exercise it in that manner.‟
35. In Dhampur Sugar Mills Ltd. Vrs. State of U.P.,
(2007) 8 SCC 338 this Court held that the intention
of the legislature must be discerned while
determining whether a provision is directory or
mandatory:
„36. *** In our judgment, mere use of word “may” or
“shall” is not conclusive. The question whetherWA No.526 of 2025 Page 32 of 52
a particular provision of a statute is directory or
mandatory cannot be resolved by laying down
any general rule of universal application. Such
controversy has to be decided by ascertaining
the intention of the legislature and not by
looking at the language in which the provision
is clothed. And for finding out the legislative
intent, the court must examine the scheme of
the Act, purpose and object underlying the
provision, consequences likely to ensue or
inconvenience likely to result if the provision is
read one way or the other and many more
considerations relevant to the issue.‟
36. In order for the word “may” to acquire the character
of the word “shall”, the following aspects of the
provision or legislation (or in this case, the
Constitution) must be analysed:
a. The legal and factual context of the conferment
of the power;
b. The purpose of the power;
c. Whether the statute (or the Constitution)
specifies the conditions in which the power is
to be exercised; andd. The intention of the legislature discerned inter
alia from the scheme of the enactment, the
purpose and object of the provision, the
consequences of reading the provision one way
or another, and other relevant considerations.
This is not an exhaustive list of factors which will
aid courts in interpreting whether a provision is
directory or mandatory.”
WA No.526 of 2025 Page 33 of 52
7.2. The salutary principle underlying the interpretation of
the beneficial piece of legislation is to uphold the
provisions in such a manner which would promote the
core object for which such enactment is made. The
Court should avoid such interpretation which would
frustrate the ethos underlying the purpose for which it is
put in place for the benefit of a person or a section of the
society. The incorporation of word “may” in a piece of
legislation is an enabling word conferring the power on
the authority in juxtaposition with the implication of the
discretion. Though the words “may” and “shall” are at
times interchangeable, but the interpretative tools
require harmonious construction keeping in mind the
object and purpose for which it is so incorporated. It
ordinarily implies not only something in the nature of
things empowered to be done, but also something should
be done in the object in which it is so done; although it
confers power on a person to be exercised in a manner
in which it is so intended. Ordinarily the enabling
provision, are construed as compulsory, as no object of
such power is to effectuate the legal right. The
conferment of such right, if discretionary, provides an
option to the person in whose favour such power is
conferred for its exercise and once such power is
exercised, in absence of any express stipulation being
vested in the authority, such exercise of power are to be
applied within the contour of the provisions. The
WA No.526 of 2025 Page 34 of 52
authority cannot import any words or expression within
the statutory provisions, but must travel within the four
corners thereof. It is no longer res integra that the word
„may‟ appearing in the statutory provision is regarded as
discretionary, yet exercise of the discretion is not
immune from the judicial scrutiny as it must withstand
the test of reasonability. The first and foremost duty of
the Court in interpreting the statutory provision is to
uphold the basic tenet of object and the conferment of
such discretion in favour of a person or the authority. In
the event the discretion is given to a person without
reserving any stipulation, the authority being a recipient
of said discretion having exercised by a person has to
consider the case in the manner intended in the
provisions with an avowed object of upholding the
provisions and not in a pedantic manner, but
pragmatically.
7.3. Bearing in mind such interpretation, in the presence of
the words “generally” and “may” in the Note to sub-rule
(2) of Rule 42, this Court may delve deep into the
material available on record.
7.4. The notice/representation of the appellant before the
competent authority reads thus:
“To
The Commissioner-cum-SecretaryWA No.526 of 2025 Page 35 of 52
Health and Family Welfare Department
Government of OdishaSub.: Request for acceptance of voluntary retirement of Dr
Snigdha Prava Mishra.
Respected Madam,
I, Dr Snigdha Prava Mishra, Professor, Department
of Physiology (OMES), to state that, I am suffering
from Fuchs Corneal Dystrophy with progressive loss
of vision in both eyes. This is a condition of cornea
with no specific medical treatment and the only
option is Keratoplasty with doubtful prognosis. At
present I am on supportive treatment. I also had
angina attack multiple times since last 5 years and
undergoing treatment for the same. I have been
advised to take rest and reduce stress. Two years
back I was diagnosed as a case of PID, following
severe low backache and subsequent investigations.
Madam, in my 32 years of service under Health &
Family Welfare Department of Odisha, I had the
opportunity to serve the people of Kalahandi for four
and half years. Till now I have discharged my duty
sincerely and efficiently with utmost dedication. But,
my present health condition is making it extremely
difficult to continue the same. I, therefore, request
you to be kind enough to grant me voluntary
retirement and obliged.
Thanking you
Sincerely yours
Sd/- 24.06.2024
Professor, PhysiologyWA No.526 of 2025 Page 36 of 52
Copy to Chief Secretary, Government of Odisha,
Copy to Additional Secretary, Health & Family
Welfare, Government of Odisha,
Copy to DMET Odisha.”
7.5. To highlight the health issues, the appellant has
enclosed to the writ petition as also the writ appeal the
documents (Annexure-4 series). On minute scrutiny of
enclosures available on record, this Court finds from a
document titled “Proceeding of the Committee Meeting
held on 27.08.2024 at 4.30PM to consider the voluntary
retirement retirement/resignation of medical faculties of
Odisha Medical and Education Service Cadre” the
following so far as the present appellant is concerned:
“***
Dr Snigdha Prava Mishra, Professor, Physiology, MKCG
MCH, Berhampur transferred and posted as
Superintendent. SRM MCH, Bhawanipatna. She was
relieved w.e.f.01.03.2024. Instead of joining in new place
of posting, she applied for leave and is continuing by
submitting piecemeal applications on health ground. Dr.
Mishra in her representation dated 24.06.2024 has
applied for voluntary retirement.
***
Due to the dearth of faculties in the medical colleges, the
National Medical Commission (NMC) has imposed
monetary penalty on all Government Medical Colleges
except SCB MCH, Cuttack. Further, owing to the shortage
of requisite number of faculties as per NMC norms, the
newly opened Medical College at Jajpur (JK MCH Jajpur)
WA No.526 of 2025 Page 37 of 52
was permitted for intake of only 50 UG MBBS students
instead of 100 students for which the application was
submitted before the NMC.
The Committee after due deliberation unanimously
recommended to not consider the representation of above
faculties as there is acute shortage of faculties in the
Government Medical College & Hospitals of the State. Also
the Department is in a very tight position to fulfil the
prescribed Minimum Standard Requirements (MSRs) of
the NMC in respect of minimum number of faculties to be
in position in Government Medical Colleges.”
7.6. Letter dated 17.09.2024, text of which has already been
extracted herein above, does not indicate fact of
consideration of veracity of health issues leading to
submission of notice for voluntary retirement. There
appears no objection/contradictory material available
before the Committee to discard the claim of the
appellant with respect to health issues.
7.7. It is glaring on the face of such consideration by the
Committee that:
i. individual case has not been taken for study
despite documents/prescriptions were made
available; yet no step appears to have been taken to
examine;
ii. the Committee has not taken into consideration the
existence of exception(s) contained in Rule 42(2) of
the Pension Rules specifying the contingencies
WA No.526 of 2025 Page 38 of 52
which confers power to refuse acceptance, else in
all cases acceptance of notice for voluntary
retirement is required to be generally accorded.
7.8. This apart, the Letter dated 17.09.2024 read with the
minutes of Meeting of the Committee reveals acute
shortage of faculties in the Government Medical College
& Hospitals of the State led the Committee to take a
decision not to consider the representation of the
appellant. In the opinion of this Court, in absence of any
material before the Committee to demonstrate falsity of
claim of health issues, the reason ascribed vide Letter
dated 17.09.2024 to refuse acceptance of notice/
representation for voluntary retirement is extraneous to
what is specified in Rule 42 of the Pension Rules.
7.9. Thus, it is but quite obvious that the Letter dated
17.09.2024 issued by the Health and Family Welfare
Department cannot be held to be tenable on the
touchstone of provisions contained in Rule 42. The
learned Single Judge having proceeded as if this Court
has the jurisdiction to add situations to the exceptions
to general provision. In other words, in view of ratio laid
down by the Hon‟ble Supreme Court of India as referred
to above, this Court in exercise of power under Article
226/227 of the Constitution of India cannot re-write the
provisions of Rules. What is not excepted in Rule 42, theWA No.526 of 2025 Page 39 of 52
respondents-opposite parties could not inhere
exceptions into said Rule.
7.10. While it is well-established that what is not explicitly
carved out as exception in provisions of the statute, it is
not the domain of the Court to introduce such situation/
event, when the language of the Rule is unambiguous
and certain. Ergo, Rule 42 of the Pension Rules framed
in exercise of power under proviso to Article 309 of the
Constitution of India spelt out in clear terms
circumstances while considering acceptance of notice for
voluntary retirement, the decision making process of the
Committee patently is devoid of any valid and proper
reasoning.
7.11. Rule 42 of the Pension Rules provides discretion in
favour of the Government servant who completed 20
years of qualifying service for premature retirement upon
giving not less than 3 months‟ notice to the competent
authority. Although the notice of premature retirement
by a Government servant requires acceptance by the
Appointing Authority, but the Note appended thereto, as
quoted above, is a guiding factor for exercise of such
authority. The Note indicates that the acceptance may
generally be given in all cases except the situations
stipulated therein.
WA No.526 of 2025 Page 40 of 52
7.12. The importance of the Note appended to a statutory
provision or a subordinate legislation is generally
regarded as explanatory in nature without diluting the
rigour of the main provision. It admits no ambiguity that
the Note appended to the statutory provision should be
read in the context of a substantive provision and not in
derogation thereof as held by the Supreme Court in V.B.
Prasad Vrs. Manager, P.M.D. Upper Primary School and
others, reported in (2007) 10 SCC 269. Paragraph-9
thereof is quoted hereunder:
“For the time being, we may assume that in view of fact
that he had also acquired the qualification of B.Ed. in
April 1989, his case also could be considered in terms of
Rule 45; although it is well-settled principles of law
that the Note appended to a statutory provision or
the subordinate legislation must be read in the
context of the substantive provision and not in
derogation thereof. Five years‟ teaching experience for
appointment to the post of Headmaster was a sine qua
non. Such teaching experience was to be „teaching
experience‟ and not a deemed teaching experience.”
7.13. At times, Note which is ordinarily regarded as
explanatory in nature assumes importance in exercise of
a discretion without frustrating the basic tenet of the
enabling provisions. Rule 42 of the Pension Rules in the
enabling provision vests discretion on the Government
servant to apply for voluntary retirement, but the Note
appended to such enabling provision is repository of
WA No.526 of 2025 Page 41 of 52
exercise of powers by the authority in the sense that the
acceptance by the authority shall not generally be
refused except in the eventualities contemplated therein.
7.14. The enabling provision does not confer any discretion on
the authorities to decline such option having exercised
by the Government servant except in a situation
contemplated in the Note. In absence of any such
stipulation, the authority cannot refuse the application
filed by the Government servant seeking option of
retirement voluntarily as it has to exercise such
discretion within the folds of the stipulations provided in
the Note. The explanatory nature of the Note assumes its
importance in exercise of the discretion and, therefore,
the extraneous factors cannot impede the very purpose
of the enabling provisions.
8. With regard to reference made in the impugned
Judgment to State of Uttar Pradesh Vrs. Achal Singh,
(2018) 17 SCC 578 in order to justify the action of the
Health and Family Welfare Department, the same is
distinguishable.
8.1. This Court is conscious of the following principle laid
down by the Supreme Court of India, which needs
mention from Union of India Vrs. Arulmozhi Iniarasu, AIR
2011 SC 2731 = (2011) 7 SCC 397:
WA No.526 of 2025 Page 42 of 52
“Before examining the first limb of the question,
formulated above, it would be instructive to note, as a
preface, the well settled principle of law in the matter of
applying precedents that the Court should not place
reliance on decisions without discussing as to how the
fact situation of the case before it fits in with the fact
situation of the decision on which reliance is placed.
Observations of Courts are neither to be read as Euclid’s
theorems nor as provisions of Statute and that too taken
out of their context. These observations must be read in
the context in which they appear to have been stated.
Disposal of cases by blindly placing reliance on a decision
is not proper because one additional or different fact may
make a world of difference between conclusions in two
cases.”
8.2. Having thus the ruling in mind, reading the decision of
the Hon‟ble Supreme Court rendered in Achal Singh
(supra) it is transpired that the provisions under
consideration was Rule 56 of the Uttar Pradesh
Fundamental Rules. Rule 56(e) vide Explanation thereof
envisaged thus:
“Explanation.–
(1) The decision of the appointing authority under
clause (c) to require the Government servant to retire
as specified therein shall be taken if it appears
to the said authority to be in public interest,
but nothing herein contained shall be construed to
require any recital, in the order, of such decision
having been taken in the public interest.”
WA No.526 of 2025 Page 43 of 52
8.3. In the said reported decision it has been stated thus
with reference to said Explanation:
“The explanation attached to Rule 56 makes it clear that
the decision of the appointing authority under clause (c) of
Rule 56 to retire a Government servant shall be taken if it
appears to be in public interest. The explanation is
applicable to both the exigencies viz., when
Government retires an employee or when an
employee seeks voluntary retirement, not only when
Government desires to retire an employee in public
interest. The Explanation attached to Rule 56 as
applicable in the State of Uttar Pradesh is clear and
precise.”
8.4. Rule 56 of the Uttar Pradesh Fundamental Rules having
specified “public interest” as one of the grounds for
rejection of accepting notice for voluntary retirement,
ratio of said decision, in the considered view of this
Court, may not be applicable to the present fact-
situation, more so when the provisions of Rule 42 of the
Pension Rules are silent with respect to “public interest”
as one of the circumstances to refuse acceptance of
voluntary retirement.
8.5. Reference to the decision of the Calcutta High Court
rendered in the case of State of West Bengal & Ors. Vrs.
Madhab Sarkar, 2023 SCC OnLine Cal 6674 may not be
appropriate in the present circumstances, as the said
Court was considering the nuances of Rule 75 of the
Service Rules and it was held in the said decision that,
WA No.526 of 2025 Page 44 of 52
“11. The Calcutta High Court also turned its
attention to Note-3 appended to Rule 75(aaa) of
the Service Rules, which affirms the
Government‟s authority to deny voluntary
retirement when public interest so demands. It
observed that once such a determination is made, it
must be given full force and effect unless the
provision is so rigid as to admit no reasonable
limitation. Finding no such infirmity in the rule, the
Court upheld its application and directed the doctor
to resume duty without delay.”
8.6. Under the above precinct, the action of the Appointing
Authority in refusing to accept voluntary retirement by
the Government of West Bengal was upheld.
8.7. Nevertheless, in the case at hand, the case of the
appellant was due to severe health issues, she would not
be in a position to undertake arduous task of Medical
and Education Service. The element of “public interest”
being conspicuously absent in Rule 42 of the Odisha
Civil Services (Pension) Rules, 1992, there cannot be any
doubt that the decision of the Committee is flawed being
beyond the scope of refusal to accept the application for
voluntary retirement.
8.8. The position with respect to exercise of discretion vested
with the public authority has succinctly been discussed
with reference to issue of writ of mandamus by the
Hon‟ble Supreme Court in the case of Union of India Vrs.
Bharat Forge Ltd., Civil Appeal No. 5294 of 2022 (@
WA No.526 of 2025 Page 45 of 52
SLP(C) No.4960 of 2021 decided on 16th August, 2022
[reported at (2022) 17 SCR 1012] as follows:
“Therefore, it is clear that a Writ of Mandamus or a
direction, in the nature of a Writ of Mandamus, is not to be
withheld, in the exercise of powers of Article 226 on any
technicalities. This is subject only to the indispensable
requirements being fulfilled. There must be a public duty.
While the duty may, indeed, arise from a Statute
ordinarily, the duty can be imposed by common charter,
common law, custom or even contract. The fact that a
duty may have to be unravelled and the mist around it
cleared before its shape is unfolded may not relieve the
Court of its duty to cull out a public duty in a Statute or
otherwise, if in substance, it exists. Equally, Mandamus
would lie if the Authority, which had a discretion, fails to
exercise it and prefers to act under dictation of another
Authority. A Writ of Mandamus or a direction in the
nature thereof had been given a very wide scope in
the conditions prevailing in this country and it is to
be issued wherever there is a public duty and there
is a failure to perform and the courts will not be
bound by technicalities and its chief concern should
be to reach justice to the wronged. We are not dilating
on or diluting other requirements, which would ordinarily
include the need for making a demand unless a demand
is found to be futile in circumstances, which have already
been catalogued in the earlier decisions of this Court.”
8.9. Given the scope and ambit of legal perspective as
discussed above, this Court is led to hold that by issuing
directive to amend the Rules, admitting the fact that the
provisions of Rules are silent with respect to denial of
WA No.526 of 2025 Page 46 of 52
acceptance of notice for voluntary retirement on the
ground of “public interest”, the learned Single Judge
could not proceed to affirm the decision taken by the
Committee in the Meeting held on 27.08.2024 read with
Letter dated 17.09.2024.
Scope of writ appeal to interfere with the decision of the
learned Single Judge:
9. Having found thus, the conclusion as arrived at by the
learned Single Judge does suffer from infirmity. This
Court takes note of principle laid down in the decision
rendered by this Court in State of Odisha & Others Vrs.
Shradhanjali Dash, Writ Appeal No.1204 of 2022 vide
Order dated 26.03.2025, wherein the scope of
interference in the Judgment of learned Single Judge in
an intra-Court appeal has been discussed in the
following terms:
“In the case of Management of Narendra & Company Pvt.
Ltd. Vrs. Workmen of Narendra & Company, reported in
(2016) 3 SCC 340, it has been observed as follows:
„5. *** Be that as it may, in an intra-Court appeal, on a
finding of fact, unless the Appellate Bench reaches a
conclusion that the finding of the Single Bench is
perverse, it shall not disturb the same. Merely
because another view or a better view is possible,
there should be no interference with or disturbance
of the order passed by the Single Judge, unless both
sides agree for a fairer approach on relief.‟WA No.526 of 2025 Page 47 of 52
In the case of Wander Ltd. Vrs. Antox India (P) Ltd.,
reported in 1990 Supp. SCC 727, following observation
has been made:
„14. The appeals before the Division Bench were against
the exercise of discretion by the Single Judge. In
such appeals, the appellate court will not interfere
with the exercise of discretion of the court of first
instance and substitute its own discretion except
where the discretion has been shown to have been
exercised arbitrarily, or capriciously or perversely or
where the court had ignored the settled principles of
law regulating grant or refusal of interlocutory
injunctions. An appeal against exercise of discretion
is said to be an appeal on principle. Appellate Court
will not reassess the material and seek to reach a
conclusion different from the one reached by the
Court below if the one reached by that court was
reasonably possible on the material. The Appellate
Court would normally not be justified in interfering
with the exercise of discretion under appeal solely on
the ground that if it had considered the matter at the
trial stage it would have come to a contrary
conclusion. If the discretion has been exercised by
the Trial Court reasonably and in a judicial manner
the fact that the Appellate Court would have taken a
different view may not justify interference with the
trial court‟s exercise of discretion.‟In the case of Anindita Mohanty Vrs. The Senior Regional
Manager, H.P. Co. Ltd., Bhubaneswar reported in 2020
(II) ILR-CUT 398, this Court had the occasion to examine
the scope of intra-Court appeal and observed as follows:
„11. *** Let us first examine the power of the Division
Bench while entertaining a Letters Patent appeal
WA No.526 of 2025 Page 48 of 52
against the judgment/order of the Single Judge. This
writ appeal has been nomenclatured as an
application under Article 4 of the Orissa High Court
Order, 1948 read with Clause 10 of the Letters
Patent Act, 1992. Letters Patent of the Patna High
Court has been made applicable to this Court by
virtue of Orissa High Court Order, 1948. Letters
Patent Appeal is an intra-Court appeal where under
the Letters Patent Bench, sitting as a Court of
Correction, corrects its own orders in exercise of the
same jurisdiction as vested in the Single Bench. (Ref:
(1996) 3 SCC 52: Baddula Lakshmaiah Vrs. Shri
Anjaneya Swami Temple). The Division Bench in
Letters Patent Appeal should not disturb the finding
of fact arrived at by the learned Single Judge of the
Court unless it is shown to be based on no evidence,
perverse, palpably unreasonable or inconsistent with
any particular position in law. This scope of
interference is within a narrow compass. Appellate
jurisdiction under Letters Patent is really a corrective
jurisdiction and it is used rarely only to correct
errors, if any made.‟In the case of B. Venkatamuni Vrs. C.J. Ayodhya Ram
Singh reported in (2006) 13 SCC 449, it is held that in an
intra-Court appeal, the Division Bench undoubtedly
may be entitled to reappraise both questions of fact
and law, but entertainment of a Letters Patent
Appeal is discretionary and normally the Division
Bench would not, unless there exist cogent reasons,
differ from a finding of fact arrived at by the Single
Judge. Even a Court of first appeal which is the final
Court of appeal on fact may have to exercise some
amount of restraint. Thus a writ appeal is an appeal on
principle where the legality and validity of the judgmentWA No.526 of 2025 Page 49 of 52
and/or order of the Single Judge is tested and it can be
set aside only when there is a patent error on the
face of the record or the judgment is against
established or settled principle of law. If two views
are possible and a view, which is reasonable and logical,
has been adopted by a Single Judge, the other view,
howsoever appealing may be to the Division Bench; it is
the view adopted by the Single Judge, which would,
normally be allowed to prevail. If the discretion has been
exercised by the Single Judge in good faith and after
giving due weight to relevant matters and without being
swayed away by irrelevant matters and if two views are
possible on the question, then also the Division Bench in
writ appeal should not interfere, even though it would
have exercised its discretion in a different manner, were
the case come initially before it. The exercise of
discretion by the Single Judge should manifestly be
wrong which would then give scope of interference
to the Division Bench.”
9.1. With the delineated position as enunciated in the
aforesaid judgment of this Court, there is no confusion
in mind that in case of patent flaw in application of
enunciation of principles laid down by the Courts, which
has significant bearing that had gone into the decision
making process of the learned Single Judge, the decision
being perverse or de hors the evidence/materials
available on record, this Court in exercise of the power
under Article 4 of the Rules of Orissa High Court, 1948
read with Clause 10 of the Letters Patent constituting
the High Court of Judicature at Patna can interfere with
the impugned judgment.
WA No.526 of 2025 Page 50 of 52
9.2. It is not a case of possibility of two views; rather the
decision of the Appointing Authority-Health and Family
Welfare Department, Government of Odisha vide Letter
dated 17.09.2024 read with reasons ascribed in the
minutes of Meeting of the Committee held on 27.08.2024
etched on provisions of Rule 42 of the Odisha Civil
Services (Pension) Rules, 1992 cannot be countenanced
in law. Thereby, the decision of the learned Single Judge
is vulnerable and liable to be intermeddled.
Conclusion:
10. Given the above factual matrix and circumstances and
the conspectus of enunciation of legal position, this
Court, having perceived infirmity and irregularity as
discussed supra, is inclined to show indulgence in the
Judgment dated 14.12.2025 rendered in W.P.(C)
No.27920 of 2024.
11. For the reasons ascribed supra and in the light of
discussions made in the foregoing paragraphs, as a
consequence thereof, the Judgment dated 14.12.2025
rendered in W.P.(C) No.27920 of 2024 impugned herein
is set aside and thereby, the decision of the Committee
communicated by the Commissioner-cum-Secretary,
Health & Family Welfare Department vide Letter dated
17.09.2024 is also quashed, being not in consonance
WA No.526 of 2025 Page 51 of 52
with the provisions of Rule 42 of the Odisha Civil
Services (Pension) Rules, 1992.
11.1. It is, therefore, directed that the Appointing Authority
shall consider the representation/notice dated
24.06.2024 submitted by the appellant to the
respondent/opposite party No.1-Commissioner-cum-
Secretary, Health & Family Welfare Department within a
period of two weeks hence, keeping in view the health
issues as highlighted by the appellant.
12. In the result, this writ appeal is allowed and all pending
interlocutory applications, if any, shall stand disposed of
accordingly, but in the circumstances, there shall be no
order as to costs.
(HARISH TANDON)
CHIEF JUSTICE
(MURAHARI SRI RAMAN)
JUDGE
Signature Not
Verified
Digitally Signed
Signed by: ASWINI KUMAR
SETHY
Designation: Personal Assistant
(Secretary-in-Charge)
Reason: Authentication
Location: ORISSA HIGH
COURT, CUTTACK
Date: 09-Jul-2025 13:36:08
High Court of Orissa, Cuttack
The 8th July, 2025//Aswini/MRS
WA No.526 of 2025 Page 52 of 52
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