Gujarat High Court
State Of Gujarat vs Niranjana R Patel on 12 July, 2024
Author: A. S. Supehia
Bench: A.S. Supehia
NEUTRAL CITATION
C/LPA/472/2024 CAV JUDGMENT DATED: 12/07/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 472 of 2024
In R/SPECIAL CIVIL APPLICATION NO. 1081 of 2008
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2024
In R/LETTERS PATENT APPEAL NO. 472 of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.S. SUPEHIA Sd/-
and
HONOURABLE MRS. JUSTICE MAUNA M. BHATT Sd/-
=============================================
1 Whether Reporters of Local Papers may be NO
allowed to see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
=============================================
STATE OF GUJARAT & ANR.
Versus
NIRANJANA R PATEL
=============================================
Appearance:
MR ADITYA S. PATHAK, AGP for the Appellant(s) No. 1,2
MS TRUSHA K. PATEL, SENIOR ADVOCATE with
MR TATTVAM K PATEL(5455) for the Respondent(s) No. 1
=============================================
CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
And
HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Date : 12/07/2024
CAV JUDGMENT
(PER : HONOURABLE MR. JUSTICE A.S. SUPEHIA)
1. The instant Letters Patent Appeal filed under Clause 15 of the Letters Patent, 1865, is directed against the judgment and Page 1 of 23 Downloaded on : Fri Jul 12 22:44:34 IST 2024 NEUTRAL CITATION C/LPA/472/2024 CAV JUDGMENT DATED: 12/07/2024 undefined order dated 19.07.2023 passed by the learned Single Judge allowing the captioned writ petition filed by the respondent No.1. The learned Single Judge, while allowing the writ petition, has directed the State authorities to treat the petitioner (present respondent No.1) as "voluntarily retired", and to grant her all the consequential benefits.
BRIEF FACTS :-
2. The respondent No.1 was appointed as a Tracer in the office of the Executive Engineer, Drainage Division, Surat w.e.f. 02.01.1978 and again she was appointed at Technical Assistant in the same office, Canal Division Surat w.e.f. 21.03.1980. Thereafter, the respondent No.1 was appointed as Lecturer in the Department of Architecture, Govt. Polytechnic College for Girls, Surat, on 01.01.1982 and thus, the service of the respondent No.1 as a Lecturer commenced from 01.01.1982.
3. It is the case of the appellant - State authorities that the respondent No.1 went on unauthorized leave for the purpose of visiting abroad (Canada) and thereafter, she never returned and hence, as per the undertaking / declaration given by her on 05.04.2003, the State authorities passed an order treating her as resigned from the Government service with retrospective effect. The documents on record reveal that the respondent No.1 went on leave from 01.02.2001 to 19.02.2001 for the purpose of going aboard. By the letter dated 01.05.2001 written by her to the Director of Technical Education, Gandhinagar, she has stated that she was on leave from 01.02.2001 to 29.04.2001 as she wanted to go aboard Page 2 of 23 Downloaded on : Fri Jul 12 22:44:34 IST 2024 NEUTRAL CITATION C/LPA/472/2024 CAV JUDGMENT DATED: 12/07/2024 undefined however, she returned and reported on duty on 30.04.2001. She requested that the said leave period may be regularised and the leave may be sanctioned. By the order dated 02.02.2002, the leave for 88 days was sanctioned as a half pay leave. Thereafter, again on 05.04.2003, she made a Declaration that she intends to go aboard and if she fails to resume on duty as a Lecturer in Architecture Department, this Declaration may be considered as her resignation from the Government service and the Government may proceed further treating her as resigned from the Government service. She accordingly, applied for 'No Objection Certification' for going to Canada however, it appears that no decision was taken by the Principal, Government Polytechnic for Girls, Surat hence, vide communication dated 07.06.2003, she proceeded on leave and went to Canada in anticipation of receiving 'No Objection Certificate'(NOC). Thereafter, she went to Canada, and from Canada, by the letter dated 07.09.2003, she informed the Principal, Government Polytechnic for Girls, Surat that she was to attend the duties on 15.09.2003, but due to severe back- pain, she was unable to travel from Canada and she requested to extend her leave without pay upto 15.12.2003.
4. By the communication dated 25.09.2003, the Principal, Government Polytechnic for Girls, Surat replied to her communication that on the basis of NOC, she was only sanctioned leave till 15.09.2003 and since the academic session is going on, and the students are facing difficulty, she was directed to report for duty immediately.
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5. On 25.10.2003, the respondent No.1 informed the Principal, Government Polytechnic for Girls, Surat that she is unable to attend the duty as she is having severe back-pain problem and unable to travel.
6. On 19.12.2003, the Principal, Government Polytechnic for Girls, Surat, informed her that she immediately send a certification from the Civil Surgeon Certificate since she is on leave due to severe back-pain.
7. On 20.01.2004, she informed the Principal that since she is still suffering from back-pain and as advised by the doctor, she is unable to travel for long hours and she would not be able to report for her duty. Along with this communication dated 20.01.2004, she attached a Certificate issued by Dr.Charles J. Smith, certifying that she has chronic low back pain radiating to the left leg, which is a typical sign of sciatica and she is on anti-inflammatory medications. This certificate reveals that she was last assessed by the doctor in November, 2003.
8. On 23/24-03-2004, the Principal, Government Polytechnic for Girls, Surat informed her that she has remained absent from 01.05.2003 and due to the Model Code of Conduct declared by the Election Commission of India and as per the direction of the Election Commissioner, none of the employee is required to go on leave and hence, she has violated the Model Code of Conduct, which is very serious and thus, she was asked to immediately report on duty.
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9. On 09.04.2004, the respondent No.1 replied that in past, she had always been available for election duty however, she is on leave since June 3 rd and due to her sickness, she would be unable to attend the duties.
10. On 19.04.2004, a Memo was issued by the Joint Director of Technical Education, Gujarat State, warning her to remain present for duty within a period of 7 days and report to the duty and in case, she fails to do so, as per the Circular issued by the Education Department dated 13.02.2002, appropriate disciplinary action will be taken against her.
11. On 29.04.2004, the respondent No.1 informed the Joint Director of Technical Education that when the current term will end and there will be summer vacation and after recovering from her back pain, would be reporting for her duties. She further requested for allowing her to join the duty after summer vacation.
12. On 07.06.2004, she requested the Director of Technical Education to retire her voluntarily with effect from 07.07.2004. This letter was sent by her from Canada. Accordingly, she also gave an undertaking that she will not withdraw her request for voluntary retirement. Again similar request was made by her from Canada on 26.07.2004.
13. By the memo dated 26.08.2004, the Joint Director of Technical Education, Gujarat State, informed her that when an NOC was given to her, on 04.07.2003 to travel aboard, she has given an undertaking that if she does not report to the duties, she may be treated as resigned from the Government service.
Page 5 of 23 Downloaded on : Fri Jul 12 22:44:34 IST 2024NEUTRAL CITATION C/LPA/472/2024 CAV JUDGMENT DATED: 12/07/2024 undefined Accordingly, the Joint Director further issued a show-cause notice to report for duty within a period of 7 days, failing which, she would be treated as resigned from service.
14. On 24.09.2004, she informed the Joint Director of Technical Education that she would not be able to join her Government duties and that she has resigned and requested to accept her resignation with effect from 07.06.2004.
15. On 29.11.2004, the respondent No.1 addressed a communication to the Additional Chief Secretary, Education Department that her resignation may be considered as voluntary retirement not as a 'resignation' from the Government service and requested to pay other dues as per Rules.
16. On 07.02.2006, the respondent No.1 further clarified to the Additional Chief Secretary, Education Department that her request for voluntary retirement is not accepted so far and hence, needful may be done.
17. By the order dated 21.03.2006 passed by the Office of the Commission Technical Education, Gujarat State, the respondent No.1 was treated as resigned from service with effect from 01.05.2003 and accordingly, they accepted her resignation as per the Declaration given by her.
18. On 17.04.2006, the respondent No.1 informed the Commissioner of Technical Education, instead of considering her case for voluntary retirement, she has been treated as resigned and she has no intention to stay in Canada but due to Page 6 of 23 Downloaded on : Fri Jul 12 22:44:34 IST 2024 NEUTRAL CITATION C/LPA/472/2024 CAV JUDGMENT DATED: 12/07/2024 undefined her back pain, she is unable to come. She has stated that she has completed 27 years of service and hence, her request for voluntary retirement may be accepted instead of her resignation from service. It appears that since nothing was done in this regard, she filed a writ petition being Special Civil Application No.27514 of 2007 and by the order dated 25.10.2007, this Court disposed of the writ petition directing the respondent No.1 (petitioner) to file a representation. Accordingly, she filed a representation before the Commissioner of Technical Education (Gujarat State) on 05.11.2007. It appears that the writ petition was filed, after she returned from aboard (Canada) in the month of January, 2006.
19. By the order dated 20.12.2007, the Directorate of Technical Education, Gujarat State rejected representation of the respondent No.1 and maintained their earlier decision accepting her resignation.
20. Being aggrieved, the respondent No.1 again approached this Court by filing a writ petition being Special Civil Application No.1081 of 2008, which is allowed by the learned Single Judge, vide judgment and order dated 19.07.2023, which has given rise to the present Letters Patent Appeal.
SUBMISSIONS OF THE LEARNED AGP : -
21. Learned Assistant Government Pleader Mr.Pathak has submitted that the respondent No.1 had gone to Canada by giving an undertaking / declaration that in case, she does not return, she may be treated as resigned from the Government service. It is submitted that despite granting various Page 7 of 23 Downloaded on : Fri Jul 12 22:44:34 IST 2024 NEUTRAL CITATION C/LPA/472/2024 CAV JUDGMENT DATED: 12/07/2024 undefined opportunities to the respondent No.1 since she did not return, and joined her duties hence, the appellants have precisely accepted her resignation as it appears that she was not interested in resuming her duties.
22. The learned Assistant Government Pleader has further submitted that the learned Single Judge has erred in allowing the writ petition by observing that the conditional resignation cannot be treated as a resignation, when leave of the respondent No.1 was sanctioned till 15.09.2003 and she has applied for voluntarily retirement, before the resignation was accepted. It is submitted that before the effective date of voluntary retirement, i.e. 07.09.2004, the appellants had issued a Memo dated 26.08.2004 informing her that she should report for duty within 7 days, failing which she will be treated as resigned from service as per the declaration. He has submitted that the issuance of Memo by the appellants indicates that the authority did not intend to accept her voluntary retirement. It is submitted that this aspect is not considered by the learned single judge.
23. The learned Assistant Government Pleader has submitted that in fact, the respondent No.1 has unauthorizedly went on leave and due to her unauthorized leave, the studies of girls studying in the polytechnic have suffered and she did not even return to India and reported for duties during the Model Code of Conduct, despite she was having such knowledge. It is submitted that this aspect was not dealt by the learned Single Judge, while allowing the writ petition and the learned Single Judge has allowed the writ petition on the ground that before Page 8 of 23 Downloaded on : Fri Jul 12 22:44:34 IST 2024 NEUTRAL CITATION C/LPA/472/2024 CAV JUDGMENT DATED: 12/07/2024 undefined her resignation was accepted, she had already applied for voluntary retirement, which is permissible. It is submitted that in wake of the glaring facts that the respondent No.1 never cared to report on duties and ignored the show-cause notice given to her, the Director of Technical Education thought it fit to accept her resignation. Thus, it is urged that the present Letters Patent Appeal may be allowed by setting aside the judgment and order passed by the learned Single Judge.
SUBMISSIONS OF ON BEHALF OF THE RESPONDENT NO.1 :-
24. Learned Senior Advocate Ms.Trusha Patel, appearing for the respondent No.1 has submitted that the judgment and order passed by the learned Single Judge may not be disturbed since the same is precisely passed after considering the judgments of the Supreme Court as well as this Court. She has submitted that the respondent No.1 (petitioner) though had resigned from the services, her resignation was not accepted and before it was accepted, she had applied for voluntary retirement. It is submitted that the law on the issue of acceptance of resignation, before it become effective, is no more res integra. In support of her submissions, learned Senior Advocate Ms.Patel, has placed reliance on the judgments, which are referred by the learned Single Judge.
25. Learned Senior Advocate Ms. Patel, has also referred to the Rules 48 to 50 of the Gujarat Civil Services (Pension) Rules, 2002 (for short, "the Rules, 2002) and has submitted that as per the provisions of Rule 48(1) of the Rules, 2002, a Government employee on completion of twenty years' Page 9 of 23 Downloaded on : Fri Jul 12 22:44:34 IST 2024 NEUTRAL CITATION C/LPA/472/2024 CAV JUDGMENT DATED: 12/07/2024 undefined qualifying service by giving notice of not less than three months in writing to the appointing authority, retire from service and where the appointing authority does not refuse to grant the permission for retirement before the expiry of the said period, which is specified in the notice, the retirement shall become effective from the date of expiry of the said period. Thus, she has submitted that in the present case, when the respondent No.1 applied for voluntary retirement by the letter dated 07.06.2004, no decision was taken in this regard by the appointing authority hence, it can be presumed that she has voluntarily retired from the service in view of the said provision.
26. In support of her submissions, learned Senior Advocate Ms.Patel has further placed reliance on the judgment of the Supreme Court in the case of India Bank Vs. Mahaveer Khriwal, (2021) 2 SCC 632. She has also referred to the decision of the Supreme Court in the case of Sheelkumar Jain Vs. New India Assurance Company Limited, (2011) 12 SCC 197. Thus, she has urged that the judgment and order passed by the learned Single Judge may not be interfered with.
27. We have heard the learned advocates appearing for the respective parties. We have also perused the comprehensive judgment and order passed by the learned Single Judge.
FINDINGS : -
28. The facts, which are narrated hereinabove, with regard to the period of leave taken by the respondent No.1 are not in dispute. Before leaving for Canada, while applying for 'No Page 10 of 23 Downloaded on : Fri Jul 12 22:44:34 IST 2024 NEUTRAL CITATION C/LPA/472/2024 CAV JUDGMENT DATED: 12/07/2024 undefined Objection Certificate', the respondent No.1 gave a Declaration dated 05.04.2003, declaring that in case, she does not return from aboard, she may be considered as resigned from the Government service. When she left to Canada, no NOC was yet issued by the Principal, Government Polytechnic for Girls, Surat. It appears that subsequently, NOC was granted to her by the institution. Her leave was sanctioned till 15.09.2003 by the order dated 25.09.2003. Thus, by the order dated 25.09.2003, while grating NOC and sanctioning her leave from 15.09.2003, she was informed by the Principal, Government Polytechnic for Girls, Surat that since the academic session of the girl-students will be jeopardized, she was directed to immediately report on duty. Thereafter, the correspondence between the appellant authorities and the respondent No.1 went on. The respondent No.1 did not return to India on the pretext that she was suffering from back-pain. She also sent a medical certificate dated 19.01.2004 of Dr.Charles J. Smith certifying that she has chronic low back pain. This certificate further reveals that she was last assessed in November, 2003 by the Doctor. After that the Principal, Government Polytechnic for Girls vide communication dated 23/24-03-2004, recorded that the respondent No.1 was absent from 01.05.2003 and as per the directions issued by the Election Commissioner, she has to report on duty as no government employee is allowed to remain absent during the Model Code of Conduct and her absence is in violation of the Model Code of Conduct. Despite this communication, she did not resume her duty and did not come to India and in fact, by the communication dated 09.04.2004, the respondent No.1 informed the Principal, Government Polytechnic for Girls that she has no intention to Page 11 of 23 Downloaded on : Fri Jul 12 22:44:34 IST 2024 NEUTRAL CITATION C/LPA/472/2024 CAV JUDGMENT DATED: 12/07/2024 undefined remain away from the election duty.
29. A Memo dated 19.04.2004 was issued by the Principal, Government Polytechnic for Girls asking her that she should report her duty immediately and she had remained unauthorizedly absent from 26.06.2003 onwards during the academic session. Despite this, she did not return to India and went on requesting the State authorities and giving false hope to the State authorities that she would be returning to India after summer vacation. Such assurance was lastly given by her on 29.03.2004.
30. On 07.06.2004 i.e. after a period of two months, she addressed a letter to the Director of Technical Education, Gujarat State, requesting to treat her voluntarily retired with effect from 07.07.2004 i.e. after one month from 07.06.2004. Again, a request was made by her on 26.07.2004 to treat her voluntarily retired from 07.09.2004. Before 07.09.2004, the Joint Director of Technical Education issued a memo that if she doesn't report for duty within a period of 7 days, she will be treated as resigned from the Government service. By the Communication dated 24.09.2004, the respondent No.1 stated that she may be treated as resigned from service and requested to accept her resignation with effect from 07.06.2004. However, thereafter on 29.11.2004, she clarified that she did not intend to resign from service but, she opts to voluntary retire from the service. This clarification was again given by her on 07.02.2006 and requested that she had applied for voluntary retirement on 07.06.2004.
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31. By the order dated 21.03.2006, the resignation of the respondent No.1 was accepted with effect from 01.05.2003 with retrospective effect by observing that she has not remained on duty from 01.04.2003, after she went on leave. This rejection order gave rise to the writ petition, as mentioned hereinabove, being Special Civil Application No.27514 of 2007, which was disposed of vide order dated 25.10.2007, directing her to make appropriate representation and ultimately, by the impugned order dated 20.12.2007, the appellant State authorities maintained their earlier order accepting her resignation.
32. Thereafter, the respondent No.1 filed the captioned writ petition challenging the order passed by the appellant State authorities rejecting her representation seeking to consider her case as voluntary retired instead of treating her resigned from the Government service. The learned Single Judge vide impugned judgment and order dated 19.07.2023 allowed the writ petition by setting aside the action of the appellant State authorities.
33. The vital aspect, which has weighed upon the learned Single Judge to treat the respondent No.1 as voluntary retired from service after 20 years, is absence of refusal by the appellants on the application made by the respondent no.1 seeking voluntary retirement. By placing reliance on the judgment of the Supreme Court in the case of Ms.J.K. Cotton Spg. & Wvg. Mills Company Ltd., Kanpur Vs. State of U.P. and others, AIR 1990 S.C. 1808, the learned Single Judge has held that since the respondent No.1 had filed an application for Page 13 of 23 Downloaded on : Fri Jul 12 22:44:34 IST 2024 NEUTRAL CITATION C/LPA/472/2024 CAV JUDGMENT DATED: 12/07/2024 undefined voluntary retirement before her resignation was accepted, she cannot be treated as resigned from the Government service. It is also held that there cannot be conditional resignation as mentioned in the Declaration.
34. It is well settled legal precedent that an employee has right to withdraw the request of resignation before its acceptance, and the issue is required to be examined in light of the rules and regulations governing the same. There cannot be any cavil on the proposition of law as enunciated by the Supreme Court on which reliance is placed by the learned single judge and the learned senior advocate appearing for the respondent No.1 however, the same will not apply to the peculiar facts of the present case.
35. The learned Single Judge has placed reliance on the Rules 48 of the Rules, 2002, more particularly proviso to subrule-2 to Rule 48. The same reads as under:-
"RULE 48 : Retirement on completion of twenty years' qualifying service (1) A Government employee on completion of twenty years' qualifying service, 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 :
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 of expiry of the said period."Page 14 of 23 Downloaded on : Fri Jul 12 22:44:34 IST 2024
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36. The learned Single Judge has observed that since as per sub-rule (1) and sub-rule (2), the appointing authority has not refused to grant the permission for retirement before the expiry of the said notice period, the voluntary retirement as requested by the respondent No.1 becomes effective from the date of expiry of the notice. However, we do not subscribe to the view expressed by the learned single judge.
37. It is established that the respondent no.1 made the first application dated 07.06.2004 seeking voluntary retirement w.e.f 07.07.2004. It appears that since she realized that the period till 07.07.2004 did not satisfy three months notice period, as envisaged under Rule 48 of the Rules, 2002, subsequently another letter was addressed by her on 26.07.2004, wherein she requested to treat her voluntarily retired from 07.09.2004. As per Rule 48 of the Rules, 2002, it is mandatory for the employee to give three months' notice for seeking voluntary retirement. If the date of first application is considered, i.e. 07.06.2004, three months got over on 07.09.2004. Before the effective date of voluntary retirement, i.e. 07.09.2004, the Joint Director, Technical Education, while referring to her request for voluntary retirement issued a Memo dated 26.08.2004 calling upon her to return from aboard within a period of 7 days failing which, she will be treated as resigned from the service, as per her undertaking/declaration. The learned single judge has ignored this vital aspect. Thus, the respondent No.1 cannot contend that in fact, the appellants did not take any decision or did not refuse the request for voluntary retirement. Such submission is misconceived and does not merit acceptance in wake of the Page 15 of 23 Downloaded on : Fri Jul 12 22:44:34 IST 2024 NEUTRAL CITATION C/LPA/472/2024 CAV JUDGMENT DATED: 12/07/2024 undefined Memo dated 26.08.2004. The intention reflected in the memo, will satisfy the proviso to sub-rule (2) of the Rule 48 of the Rules, 2002. The Memo dated 26.04.2004 manifestly suggests that there was no intention on behalf of the appellants to accept her request for voluntary retirement, and instead she was called upon to report for duty within seven days, failing which she would be treated as resigned from service in view of her declaration. In the wake of the harsh facts, when the appellants were making consistent efforts asking her to return to India and report on duty; the refusal to accept the voluntary retirement may not be expressed in clear and unambiguous terms. The application for voluntary retirement was responded by the memo directing her to resume on duty. The appellants thus, intended to treat her as resigned from service in view of her Declaration, by not acceding to the request for voluntary retirement, and accordingly, when she did not resume for duties, vide order dated 21.03.2006, she was treated as resigned from service. Thus, the learned Single Judge has fell in error in treating her as voluntary retired from service by holding that since there was no refusal of the application seeking voluntary retirement; she has to be treated as voluntary retired under Rule 48(2) of the Rules, 2002. Thus, the application filed by the respondent no.1 seeking voluntary retirement cannot be considered as accepted.
38. However, the issue of grant of resignation and the acceptance of the same with retrospective effect by the appellants operates in different realm.
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39. The resignation from Government service is governed by Rule 36 of the Gujarat Civil Services(General Conditions of Service) Rules, 2002. The relevant provision are under:
"RULE 36 : Resignation from Government service (1) A Government employee may at any time resign from the services of the State by giving a notice of one month in writing to the appointing authority.
Provided that in the case of a temporary employee who has put in service of less than one year the period of such notice shall be one week.
Note.-Nothing in this rule shall affect the provisions of any special contract of service or bond entered into by the Government employee with the Government, or the provisions of any special rules, if any, applicable to him, in respect of the period of notice to be given for resignation from service or payment of any sum by the Government employee, to the Government for premature resignation by him.
(2) The resignation tendered by a Government employee shall be effective from the date on which it is accepted by the appointing authority; but if it is not accepted before the expiry of the period of notice for resignation to be given by such employee under sub-rule (1), it shall be deemed to have become effective on the date of the expiry of such period, unless the Government employee is informed before such date, that his resignation has been rejected and of the reasons for such rejection :
Provided that the resignation of a Government employee shall not be rejected except in a case where-
(a) any ascertained or ascertainable amount of money is found outstanding against him and payment thereof is not made by him within the period mentioned above,
(b) he is under suspension,
(c) any departmental inquiry 1 [*****] is contemplated or pending against him.2
Provided further that in case where criminal prosecution is pending against a Government Employee and resignation is accepted, the order in this regard shall specify that the criminal prosecution is pending against him.
Page 17 of 23 Downloaded on : Fri Jul 12 22:44:34 IST 2024NEUTRAL CITATION C/LPA/472/2024 CAV JUDGMENT DATED: 12/07/2024 undefined (3) A Government employee shall not be relieved from his office, if his resignation is rejected. (4) Where a Government employee remains absent from duty before his resignation has become effective or if his resignation has been rejected without prior grant of leave for such absence, it shall be lawful for the competent authority to treat his absence as leave without pay and to take disciplinary action against him for unauthorised absence from duty. (5) Any notice of resignation from service shall not be permitted to be withdrawn after the resignation has become effective, except on exceptional ground or in public interest.
40. The afore-mentioned Rule mandates giving of one months prior notice in writing by a Government employee, who seeks to resign, and the resignation tendered by a Government employee shall be effective from the date, on which it is accepted by the appointing authority; but if it is not accepted before the expiry of the period of notice for resignation to be given by such employee under sub-rule (1), it shall be deemed to have become effective on the date of the expiry of such period, unless the Government employee is informed before such date, that his resignation has been rejected and the reasons for such rejection. Sub-rule (4) of Rule 36 directs that in case of absence of duty and unauthorized leave, disciplinary action can be taken against the employee.
41. Keeping in mind the aforesaid provision of Rule 36 of the Rules, 2002, the issue of tendering the resignation by the respondent no.1 and the acceptance thereof has to be examined.
42. At this stage, it will be apposite to note the declaration dated 05.04.2003 given by her, which reads as under :-
Page 18 of 23 Downloaded on : Fri Jul 12 22:44:34 IST 2024NEUTRAL CITATION C/LPA/472/2024 CAV JUDGMENT DATED: 12/07/2024 undefined "DECLARATION I Shrimati Niranjana R. Patel Working as Lecturer in Architecture Dept. state that, I intend to go abroad. I hereby declare that if I fail to resume duties as Lecturer in Architecture Dept. under the Government of Gujarat in Tech. Edu. Department immediately after the expiry of the period of leave that may be granted to me, this declaration shall be considered as my resignation from Government Service and the Government may proceed further as if I have resigned from Government Service.
Sd/-
Signature and Designation.
Station: Surat Date: 5/4/2003.
In presence of
1. Signature:
Name: P.K. CHHATRAPATΤΙ.
Address:- Govt. Poly. For Girls. Surat.
2. Signature:
Hane: P. A. SHAH Address:- Govt. Poly. For Girls. Surat.
Accepted by:-
For and on behalf of the Govt. of Gujarat."
43. Indubitably, the Declaration of the respondent No.1 does not contain any date of resignation, and the resignation is made subject to the condition of 'not reporting for duty' in case she overstays the leave which 'may be granted'. Thus, the provisions of Rule 36 of the Gujarat Civil Services (General Conditions of Service) Rules, 2002, do not get satisfied in the Declaration. There is neither date nor one months' notice contemplated in the Declaration. Thus, the Declaration tendered by the respondent no.1 does not satisfy the statutory requirement of Rule 36 of the Gujarat Civil Services (General Conditions of Service) Rules, 2002, and ought not to have been invoked.
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44. By the order dated 21.03.2006, the Commissioner of Technical Education, Gujarat State accepted the resignation and treated her as resigned from the service with effect from 01.05.2003. From the communication dated 25.09.2003 written by the Principal, it appears that NOC was granted till 15.09.2003 after she went abroad, and her leave was sanctioned till 15.09.2003. Thus, even if her statement made in the Declaration is treated as it is, the appellant cannot be treated as resigned from service with retrospective effect from 01.05.2003. There is no provision pointed out to us, which allows the employer/authority to accept the resignation with retrospective effect. Rule 36 of the Gujarat Civil Services(General Conditions of Service) Rules, 2002, only envisages the situation of tendering and accepting the resignation from the date specified in the resignation, which can be only of future date and not of any anterior date.
45. The acceptance of the resignation of the respondent no.1 by the appellant w.e.f 01.05.2003 is also contrary to the service record. It appears that the Director of Technical Education vide his communication dated 24.08.2004 called for necessary information from the Principal relating to the certificate of qualifying service and provident fund. By the letter dated 09.09.2004, the Principal clarified the details of leave of the respondent no.1. It is mentioned in the letter dated 09.09.2004, that the respondent no.1 was present in the Institute till 30.04.2003 thereafter, by giving an application on 05.04.2003, she went on vacation leave from 01.05.2003 to 25.06.2003, and she requested for NOC for going abroad. It is Page 20 of 23 Downloaded on : Fri Jul 12 22:44:34 IST 2024 NEUTRAL CITATION C/LPA/472/2024 CAV JUDGMENT DATED: 12/07/2024 undefined also referred that as per the record of the service book as on 05.04.2003, she is entitled to 15 days half pay leave after 56 days' vacation leave from 01.05.2003 to 25.06.2003. It is clarified that in view of her Declaration, the date of resignation can be decided as 10.07.2003 after office hours, by considering her vacation from 01.05.2003 to 25.06.2003 and 15 days half pay leave from 26.06.2003 to 10.07.2003. Despite the clarification given by the Principal, after verification of her service record, the appellants have treated her as resigned from service w.e.f 01.05.2003 instead of 10.07.2003. Thus, the decision of the appellants in treating her as resigned from service with retrospective effect is illegal.
CONCLUSION : -
46. Thus, the finding recorded by the learned Single Judge treating the respondent no.1 as voluntary retired under the provision of Rule 48(2) of the Rules, 2002 is inopportune; but concurrently the action of the appellants in treating her as resigned with retrospective effect is also illegal. It was always open for the appellants to initiate appropriate disciplinary proceedings for unauthorized absence against the respondent No.1, after she returned to India in January, 2006 and reported before them. The appellants continuously made their efforts to convince her for resuming the duty since the academic session of girls, who were studying in the Polytechnic College, was suffering. She was supposed to impart education in academic session to the students of Girls Polytechnic. She has also violated Model Code of Conduct by remaining absent. During her long absence, the Institute faced tremendous hardship.Page 21 of 23 Downloaded on : Fri Jul 12 22:44:34 IST 2024
NEUTRAL CITATION C/LPA/472/2024 CAV JUDGMENT DATED: 12/07/2024 undefined These facts cannot be ignored. Thus, it was a fit case, for holding disciplinary proceedings against her. However, at this stage it would be a futile exercise, since the respondent no.1 has reached the age of superannuation on 31.05.2015.
47. The respondent No.1 is treated to have resigned from service w.e.f 01.05.2004. In her application dated 07.06.2004, she has mentioned that she has completed 26 years and 6 months of service. She was to retire on superannuation on 31.01.2015. She has accepted the judgment and order passed by the learned Single Judge treating her as voluntary retired from service, after completion of 20 years of service. Though, we do not approve the findings of the learned Single Judge allowing her to voluntary retire, in light of peculiar facts, and to meet with the ends of justice and in special case, we direct the appellants to treat her voluntary retired from service on completion of 20 years. We clarify that the instant directions may not be treated as precedent. The appellants are directed to pay all the retirement benefits to the respondent No.1 within a period of eight weeks after the receipt of the certified copy of the writ of this Court. If the benefits are not paid within the stipulated time, the same shall carry an interest of 9 percent per annum.
48. For the foregoing reasons and analysis, the present Letters Patent Appeal is allowed to the aforesaid extent only.
49. Consequently, the civil application, seeking stay on the execution and implementation of the judgment and order Page 22 of 23 Downloaded on : Fri Jul 12 22:44:34 IST 2024 NEUTRAL CITATION C/LPA/472/2024 CAV JUDGMENT DATED: 12/07/2024 undefined passed by the learned Single Judge, does not survive and the same stands disposed of accordingly.
Sd/- .
(A. S. SUPEHIA, J)
Sd/- .
(MAUNA M. BHATT,J)
MAHESH/01
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