Gujarat High Court
State Of Gujarat vs R M Meghpara on 20 November, 2025
NEUTRAL CITATION
C/SCA/11692/2020 JUDGMENT DATED: 20/11/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 11692 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT
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Approved for Reporting Yes No
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STATE OF GUJARAT & ANR.
Versus
R M MEGHPARA & ORS.
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Appearance:
MR SIDDHARTH RAMI, ASST.GOVERNMENT PLEADER for the
Petitioner(s) No. 1
DS AFF.NOT FILED (N) for the Respondent(s) No. 2,3
MR KIRIT R PATEL(2802) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 20/11/2025
ORAL JUDGMENT
1. Rule returnable forthwith. Learned advocate Mr. Kirit R. Patel waives service of notice of rule on behalf of respondent No.1.
2. The presence of other respondents are not required for adjudicating the present matter.
3. With the consent of the parties, the matter is taken up for hearing.
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4. Heard learned Assistant Government Pleader Mr.Siddharth Rami for the petitioner - State and learned advocate Mr. Kirit Patel for respondent No.1.
5. The present writ application is filed under Articles 14, 16 & 226 of the Constitution of India, seeking following reliefs :-
"(A) YOUR LORDSHIPS may be pleased to admit and allow the present petition;
B) YOUR LORDSHIPS may be pleased to quash and set aside the order passed in Appeal No.18 of 2012 dated 30.06.2017;
(C) Pending the hearing your lordship be please to stay the order passed in Appeal No.18 of 2012 dated 30.06.2017;
(D) Be please to pass any further order."
SUBMISSIONS OF THE PETITIONER :
6. Learned Assistant Government Pleader Mr.Siddharth Rami for the petitioners would submit that there is undisputed fact on record that respondent No.1 being Teacher appointed in the Government School, remained unauthorizely absent for more than one year, thereby as per rule-16 of Gujarat Civil Services (Leave) Rules, 2002 (hereinafter referred to as "Leave Rules, 2002"), respondent No.1 deemed to have been resigned from his service. It is submitted that despite the aforesaid, the Tribunal has erroneously set aside the order dated 16.01.2013 passed by the District Education Officer, Junagadh.
6.1 Learned AGP Mr. Rami would further submit that as per rule-16 of Leave Rules, 2002, it is very much clear that when Page 2 of 15 Uploaded by GAURAV J THAKER(HC00951) on Fri Nov 21 2025 Downloaded on : Sat Nov 22 00:07:43 IST 2025 NEUTRAL CITATION C/SCA/11692/2020 JUDGMENT DATED: 20/11/2025 undefined employee remained absent for more than one year without any sanctioned leave, it would be considered as unauthorized absence from his services, thereby it would be a deemed resignation. It is further submitted that in past, respondent No.1 remained unauthorizedly absent, but his unauthorized absence was condoned/ regularized by the authority, but later in point of time, when respondent No.1 remained absent from 13.06.2005 till he reaches the age of superannuation i.e. on 31.12.2011, the authority has not condoned such lapses by regularizing the unauthorized absence of respondent No.1, thus, his service is deemed to have been discontinued in view of the aforesaid Leave Rules, 2002.
6.2 Learned AGP Mr. Rami would respectfully submit that the Tribunal has committed gross error in law by considering the order dated 16.01.2013 impugned before it that such order is illegal, having passed subsequent to superannuation of respondent No.1 i.e. 31.12.2011. It is submitted that the order impugned before the Tribunal passed by the District Education Officer, Junagadh was only a declaration/ decision whereby it was declared that respondent No.1 is deemed to have been resigned from his services w.e.f. 13.06.2006 and as such there was no departmental inquiry contemplated by the DEO, Junagadh before passing aforesaid order as not required as per rule-16 of the Leave Rules, 2002.
6.3 Making the above submissions, learned AGP Mr. Rami would request this Court to allow the present writ petition.
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7. Per contra, learned advocate Mr.Kirit Patel for respondent No.1 would submit that there is no error much less any gross error of law committed by the Tribunal while setting aside the order dated 16.01.2013 passed by the District Education Officer, Junagadh. It is submitted that at the relevant point of time, respondent No.1 though not remained present in service, but already requested to sanction VRS to him, but till date no decision was taken by the petitioner- authority.
7.1 Learned advocate Mr. Patel would further submit that when respondent No.1 reached the age of superannuation on 31.12.2011, no order of terminating his services could have been later on passed by the District Education Officer, Junagadh, inasmuch as, order impugned before the Tribunal came to be passed on 16.01.2013. It is submitted that such order passed by the DEO, Junagadh is without jurisdiction and contrary to the settle principle of law.
7.2 Learned advocate Mr. Patel would further submit that when the application of respondent No.1 seeking VRS was pending, he could not have been considered as unauthorizedly absent from his service and as such deeming fiction as envisaged as per rule-16 of Leave Rules, 2002 would not be applicable in the case of respondent No.1, as rule-16(2) came into effect on 01.12.2006, whereas period considered by petitioner authority of alleged unauthorized absence of respondent No.1 was between 13.06.2005 to 13.06.2006.
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7.4 Learned advocate Mr. Patel would humbly request this Court that even if respondent No.1 having not in service from 01.12.2006 till his date of superannuation i.e. 31.12.2011 thereby, respondent No.1 deemed to have been resigned from his service, considering his length of service and in view of decision rendered by this Court in the case of Rajeshkumar Ramubhai Bhatia Vs. State of Gujarat reported in 2009 (0) GLHEL-HC 223233 : 2010 (1) GCD 76, respondent No.1 is entitled to receive all retirement benefits which may be ordered to be processed by the petitioners and be paid to respondent No.1 at the earliest.
7.5 Making the above submissions, learned advocate Mr.Patel would request this Court to dismiss the present writ petition.
8. No other and further submissions are being made.
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9. Having heard learned advocates for the respective parties and after going through the impugned order passed by the Tribunal and so also the order passed by the District Education Officer, Junagadh impugned before the Tribunal, it remain undisputed on record that without sanction leave, respondent No.1 herein remained absent from his duty as a Teacher between period from 13.06.2005 till 31.12.2011 (date of his superannuation). This fact cannot be disputed by respondent No.1, but only contended that during such period, an application seeking VRS has been submitted by respondent No.1 which was not processed by the petitioners. Merely because, an application seeking VRS has been filed by respondent No.1 would not ipso facto give license to respondent No.1 to remain absent from his duty, that too being holding post of Teacher. When there is an unauthorized leave and such unauthorized leave is neither regularized nor rectified by the petitioner authority, it is considered to be leave without any sanction/ authority.
10. At this stage, it would be profitable to reproduce rule 16 of Gujarat Civil Services (Leave) Rules, 2002, which reads as under :-
"16. Maximum period of continuous leave:
(1). No Government employee shall be granted leave of any kind for a continuous period exceeding five years.
(2). A Government employee shall be deemed to have resigned from the service if, he, :Page 6 of 15 Uploaded by GAURAV J THAKER(HC00951) on Fri Nov 21 2025 Downloaded on : Sat Nov 22 00:07:43 IST 2025
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(a). is absent without authorization for a period of one year from the date of expiry of sanctioned leave or permission; or
(b) is absent from the duty for a continuous period exceeding five years even if the period of the unauthorized absence is for less than a year.
Provided that a reasonable opportunity to explain the reason for such absence shall be given to the Government employee before the provisions of sub-rule (2) are invoked."
11. As per the aforesaid, whenever any Government employee remains absent for more than one year from the date of expiry of sanction leave or permission, he shall be deemed to have been resigned from service. Only reasonable opportunity requires to be afforded to such employee before passing any formal order in this regard. It appears that such opportunity was afforded to respondent No.1 but not availed by him as can be seen from impugned order dated 16.01.2013 challenged before the Tribunal.
12. The Tribunal appears to have consider the impugned order dated 16.01.2013 passed by the District Education Officer, Junagadh, as an order of termination of service subsequent to the age of superannuation of respondent No.1 i.e. 31.12.2011. This seems fallacy on the part of the Tribunal in equating the impugned order dated 16.01.20213 with dismissal or termination order of respondent No.1.
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13. It is escaped from notice of the Tribunal that as per Rule 16(2) of Leave Rules, 2002, there would be a deeming fiction and on happening of such contingency as contemplated in Rule 16(2) of Leave Rules 2002, the Government employee shall be deemed to have resigned from service and as such, there is no requirement under law to pass any such order by holding any departmental inquiry except to afford reasonable opportunity to explain reason for such absence. If such would be the interpretation of Rule 16 of Leave Rules 2002, according to my view, the Tribunal has committed serious error of law by holding that the impugned order dated 16.01.2013 passed by the District Education Officer, Junagadh is illegal as the same is passed subsequent to superannuation of respondent No.1. To that extent, I am of the view that observation and declaration of Tribunal is not sustainable in law and requires interference of this Court.
14. At the same time, it is not in dispute that period of unauthorized absence considered by DEO, Junagadh to arrived at a decision that respondent No.1 is deemed to have resigned from his service, is between 13.06.2005 to 13.06.2006. In view of decision of Division Bench of this Court Page 8 of 15 Uploaded by GAURAV J THAKER(HC00951) on Fri Nov 21 2025 Downloaded on : Sat Nov 22 00:07:43 IST 2025 NEUTRAL CITATION C/SCA/11692/2020 JUDGMENT DATED: 20/11/2025 undefined in the case of Pravinlal Kalyandas Rana (supra), effect of aforesaid rule-16(2) is held to be prospective and not retrospective, thus, such rule came w.e.f. 01.12.2006 thereby, aforesaid period of absence considered by DEO, Junagadh while passing order impugned before the Tribunal could not form basis of passing such order. So, order impugned before the Tribunal also needs to be quashed and set aside and matter requires to be remanded back to the DEO, Junagadh to take decision afresh, keeping in mind undisputed fact that respondent No.1 having remained unauthorizedly absent from 01.12.2006 till 31.12.2011 (age of his superannuation).
15. As such, aforesaid fresh exercise to be undertaken by DEO, Junagadh may be academic, inasmuch as, if amended rule-16 of Leave Rules, 2002 consider afresh for period between 01.12.2006 till 31.12.2011 wherein respondent No.1 remained absent from his duty would lead to only one conclusion i.e. he shall be deemed to have resigned from service. Thus, net result would remain the same.
16. At this stage, learned advocate Mr.Patel for respondent No.1, under the instructions of his client, would requests this Court that instead of remanding the matter back to petitioner Page 9 of 15 Uploaded by GAURAV J THAKER(HC00951) on Fri Nov 21 2025 Downloaded on : Sat Nov 22 00:07:43 IST 2025 NEUTRAL CITATION C/SCA/11692/2020 JUDGMENT DATED: 20/11/2025 undefined authority, an appropriate direction may be issued to them to release all retirement benefits considering decision of Division Bench of this Court in Pravinlal Kalyandas Rana (supra), wherein another decision of Single Judge of this Court in the case of Rajeshkumar Ramubhai Bhatia (supra), taken note of and authority directed to release all retirement dues.
17. Having considered the aforesaid submission of respondent No.1 which appears reasonable, when this Court put to learned AGP Mr.Rami to show any contrary position of law than what has been held by this Court in the aforesaid decisions, learned AGP Mr.Rami is unable to lay his hand on any contrary decision. Nonetheless, learned AGP Mr.Rami would state that even if respondent No.1 is entitled to receive retiral benefits, period of service after 13.06.2005 till 31.12.2011 will not be considered as he was not in service from 13.06.2005 and remained unauthorizedly absent all throughout for such period till reached age of superannuation.
18. Having heard learned AGP Mr.Rami and learned advocate Mr.Patel on aspect of release of retiral benefits of respondent No.1, it is required to be taken note of the fact that even if respondent No.1 is deemed to have been resigned Page 10 of 15 Uploaded by GAURAV J THAKER(HC00951) on Fri Nov 21 2025 Downloaded on : Sat Nov 22 00:07:43 IST 2025 NEUTRAL CITATION C/SCA/11692/2020 JUDGMENT DATED: 20/11/2025 undefined from his service, in view of the decision of this Court in the case of Rajeshkumar Ramubhai Bhatia (supra) and Pravinalal Kalyandas Rana (supra), he would be entitled to receive all terminal benefits as per prevailing policy of the State as respondent No.1 having joined services on 11.08.1978 and actually worked till 12.06.2005, thereby having completed almost 27 years of service.
19. At this stage, it would be apt to refer pertinent observation of Division Bench of this Court in the case of Pravinalal Kalyandas Rana (supra), wherein held thus :
"15. There is yet another aspect which necessitates observations of this Court. The consequential effect of the impugned order is that the respondent is disentitled from his retirement benefits. No provision of law is pointed to the Court by the learned AGP which facilitates the appellant authorities to deny the retirement benefits to the employees who have been treated to be deemed to have resigned from service under Rule 16 of the Leave Rules, 2002. Deemed resignation under Rule 16 does not entail serious consequence of denial of retirement benefits to the employees who have otherwise become eligible to the same after rendering 20, 25 or 30 years of service as per Rule 47, 48 and 49 of Gujarat Civil Services (Pension) Rules, 2002. There can be no cavil on the law that an employee is not entitled to retirement benefits if he tenders his resignation from the service as service prior to his resignation is not treated as qualifying service(see Rule 25(i)(e) of Pension Rules, 2002), but the same will not apply in the cases of deemed resignation. We may endorse the view taken by the learned single judge of this Court in the case of Rajeshkumar Ramubhai Bhatia Versus State Of Gujarat, 2010 (1) GCD 76 , the same reads thus:
"It deserves to be recorded that the terminal benefits may not be available had the petitioner removed or dismissed from Page 11 of 15 Uploaded by GAURAV J THAKER(HC00951) on Fri Nov 21 2025 Downloaded on : Sat Nov 22 00:07:43 IST 2025 NEUTRAL CITATION C/SCA/11692/2020 JUDGMENT DATED: 20/11/2025 undefined service by the Government. Such is not the fact situation in the present case. The order itself speaks for the exercise of power by the Government under the Rules of 2002 for deemed resignation, therefore, the effect of the order would be that the petitioner is deemed to have resigned and the services are put to an end. When the power is exercised under Rule 16(2), it is no case of removal or dismissal from service but could be said as a statutory deeming fiction for the resignation and putting an end to the services. It is true that the order has been passed on 22.07.2008 but the perusal of the order shows that the petitioner has remained on duty and has worked upto 01.12.2001, thereafter, has not actually worked on the post therefore, the reasonable interpretation of the order of the State Government under Rule 16(2) of the Rules would be that the petitioner is deemed to have resigned from 01.12.2001. The learned counsel for the petitioner did contend that the retrospective effect may not be given to the order and as the order is passed on 22.07.2008, he should be termed as deemed to have resigned only from 22.07.2008." "
(emphasis supplied) 19.1 It is also profitable to refer and reproduce observation/direction issued by this Court in the case of Rajeshkumar Ramubhai Bhatia (supra), which requires to be taken note of by petitioner authority, which reads as under :-
"10. In view of the aforesaid observation, the conclusion would remain that the petitioner actually worked upto 01.12.2001 and by deeming fiction he is treated as resigned after 01.12.2001 and his services have come to an end accordingly. Further, as observed earlier, there is no valid reason shown by the learned AGP to deny the terminal benefits to the petitioner, as if he resigned from 01.12.2001.Page 12 of 15 Uploaded by GAURAV J THAKER(HC00951) on Fri Nov 21 2025 Downloaded on : Sat Nov 22 00:07:43 IST 2025
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11. Under these circumstances, it will be required by the respondents to consider the case of the petitioner for all terminal benefits, as may be available, as per the prevailing policy of the Government, as if the petitioner resigned from 01.12.2001 and to pay the same to the petitioner. The aforesaid exercise shall be completed within a period of four months from the date of receipt of order of this Court and the requisite amount shall be disbursed. The petitioner also will be required to undertake the necessary formalities for submitting the relevant papers for such purpose and after submission of the papers, within three months, the matter shall be finalized."
(emphasis supplied) 19.2 Thus, in view of the aforesaid dictum, respondent No.1 would entitle to receive retiral benefits as per norms of State.
20. This Court is conscious of the fact that the present writ petition is filed by the State through District Education Officer, Junagadh challenging the impugned order passed by the Tribunal against respondent No.1 but at the same time, considering the aforesaid peculiar facts and circumstances of the case, current age of respondent No.1, to avoid future litigation between parties and as such, having so held above that respondent No.1 deemed to have resigned from service w.e.f. 01.12.2007, then also in view of the aforesaid facts and decisions of this Court, respondent No.1 would entitle to receive retirement benefits as per law, then keeping in mind the aforesaid aspect of the case, this Court deems it appropriate to exercise its extraordinary discretionary power under Article 226 of the Constitution of India, thus, issue following directions.
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21. In view of the aforesaid observations, discussion and reasons, respondent No.1 though considered and deemed to have resigned from his service w.e.f. 01.12.2007 instead of 13.06.2006.
21.1 Accordingly, the impugned order dated 13.06.2017 passed by the Gujarat Civil Services Tribunal, Gandhinagar in Appeal No.18 of 2012 is hereby modified to the aforesaid extent.
22. Having so held above that respondent No.1 deemed to have resigned from his service as per rule-16(2) of the Leave Rules, 2002, but having completed 27 years of service prior thereto, respondent No.1 is entitled to receive all terminal benefits subject to prevailing rule of the Government.
22.1 Consequently, the petitioners are hereby directed to calculate and decide all terminal/retirement benefits available to respondent No.1 even though he deemed to have resigned from service w.e.f. 01.12.2007.
22.2 So far as the fact that respondent No.1 remained absent from duty from 13.06.2005 till 31.12.2011, as per norms/rules of Government, retiral dues of respondent No.1 be calculated.
22.3 In any case, all such calculation be undertaken on or before 31.01.2026 by petitioner authority and further, such retiral dues if found to be paid then same shall be paid to respondent No.1 on or before 15.02.2026, failing which, Page 14 of 15 Uploaded by GAURAV J THAKER(HC00951) on Fri Nov 21 2025 Downloaded on : Sat Nov 22 00:07:43 IST 2025 NEUTRAL CITATION C/SCA/11692/2020 JUDGMENT DATED: 20/11/2025 undefined respondent No.1 will be entitled to receive such benefits with interest at the rate of 6% p.a. from 16.02.2026 till its realization.
22.4 In a case where petitioner authority not found respondent No.1 entitle to receive any retiral benefits, in that eventuality reasoned order be passed and communicated to respondent No.1 on or before 31.01.2026. It goes without saying that in such event, it is always open for the respondent No.1 to challenge such decision in accordance with law.
23. In view of the foregoing conclusion, the present writ petition is hereby partly-allowed. Rule is made absolute, to the aforesaid extent. No order as to cost.
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