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Judgment
BY THE BENCH.—
This intra-Court appeal is directed against the Judgement dated 14.02.2025 rendered by a learned 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 case
And
For this act of kindness the Appellant shall as in duty bound ever pray.”
Facts:
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 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:
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:
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 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, 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 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. 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.
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 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 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:
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 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.
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.
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 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 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.”
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 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.
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 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.
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:
“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.
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.
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 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.
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 will 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.’
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.’
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 legislation for the very good reason that it has no power to legislate. The power to legislate has not been conferred on the courts.’
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”.
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.
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 legislation. (See also State of J&K Vrs. A.R. Zakki, 1992 Supp (1) SCC 548 = AIR 1992 SC 1546.)
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.
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 India Vrs. Assn. for Democratic Reforms, (2002) 5 SCC 294, p. 309, para 19.]’
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.
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)
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.’
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.
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.
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.’
This Court, in the case of State of Himachal Pradesh and Others Vrs. Satpal Saini, (2017) 1 SCR 658 =(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.
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’.
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 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.
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 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 be 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.
***
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.’
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 whether 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.’
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; and
d. 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.”
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. Theauthority 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-Secretary
Health and Family Welfare Department Government of Odisha
Sub.: 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, Physiology
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) 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 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, the 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.
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 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.
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:
“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.”
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,
“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 (@ 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 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:
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.’
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 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 judgment 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.
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:
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.
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 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.
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.
.…………………………………..