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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
BHARGAV D. KARIA, J.
MANAHARBALA AMRUTLAL GOSALIYA - Appellant
Versus
DISTRICT DEVELOPMENT OFFICER & others - Respondent
SPECIAL CIVIL APPLICATION NO. 12643 of 2015
Decided On : 02-07-2021
Constitution of India,1950 - Article 226 - Pleased to grant such other and further releif/s as may be deemed fit – Pension - Petitioner retired on superannuation in respondents did not finalize petitioner's case for pension and other retiral benefits for almost 6 years - Petitioner was compelled to file present petition years have passed the respondent Nos. 1 and 2 have neither filed reply nor even entered appearance - Court called upon said two respondents vide order answer the petition, until now said two respondents have not answered the petition and they have not cared to respond notice of this Court - Respondents shall personally remain present in Court explanation for not entering appearance and for not filing reply to this petition during last three years - Copy of this order shall be forwarded by the registry to the said two respondents by way of fax - Learned AGP will assist the registry by providing fax number to registry where order can be served - Petitioner is granted permission to serve copy of this order directly to said two respondents. The registry shall provide copy of this order to petitioner today itself before - Petitioner shall ensure that the order is served to the said two respondents tomorrow - It is clarified that if said two respondents do not remain present - Court will be compelled –
Finding of Court- Considering her unauthorised absence from 6.2.92 and the administrative instructions addressed by Under Secretary to the Govt. of Gujarat to the Director of Primary Education, Gujarat State, Gandhinagar drawing attention to a Notification issued by Finance Dept., it was thought fit by then District Primary Education Officer, Panchmahal District Panchayat to pass order treat the petitioner as resigned with effect and copies of notification are annexed as Annexure F and G respectively - petitioner herein has not come forward with an application for the benefit of General Provident Fund It is pertinent to note that the petitioner is not entitled to a benefit of leave encashment in absence of earned leave as she was unauthorisedly absent till she attained the age of superannuation impugned order - prejudice to the rights and contentions of the petitioner raised in this petition, this petition may be disposed of at this stage with liberty to the petitioner to pursue the appeal filed by the petitioner challenging the order dated 08.06.2018 and further keeping the right of the petitioner to claim pensionary benefits alive in any other proceedings which may be initiated by the petitioner at the appropriate time before the appropriate forum in accordance with law
Result - Petition is disposed of
ORDER :
1. Heard learned advocate Mr. M.A.Kharadi for the petitioner and learned advocate Mr. H.S.Munshaw for the respondents through video conference.
2. By this petition under Article 226 of the Constitution of India the petitioner has prayed for the following reliefs:
B. This Hon’ble Court may be pleased to grant interim relief in terms of para 12(A) in the interest of justice.
C. This Hon’ble Court may be pleased to award the costs of present petition throughout.
D. This Hon’ble Court would be pleased to grant such other and further releif/s as may be deemed fit, just and proper in the facts and circumstances of the case, in the interest of justice.”
3. After filing of the petition, the respondents did not respond by filing any affidavit-in-reply and therefore, this Court [Coram: Hon’ble Mr. Justice K.M.Thaker] passed the following order on 20.04.2018:
2. On 18.4.2018, it was brought to the notice of the Court that the petitioner retired in 2009 and for almost 6 years the respondents did not care to take any steps to pay retiral benefits.
3. The respondents neither informed the petitioner any reason for not processing her case for retiral benefits nor did the respondents inform the petitioner that she is not eligible for particular benefit and/ or the reason for such decision nor the respondents paid the retiral benefits.
4. Ultimately, somewhere in July, 2015 the petitioner filed present petition. The Court (Coram: Hon'ble Mr. Justice J.B.Pardiwala) passed below quoted order on 10.08.2015:
“Let Notice be issued to the respondents returnable on 09.09.2015. Direct service is permitted.”
5. The order passed in October, 2015 shows that the process issued pursuance to the order dated 10.08.2015 was not served for sometime. Therefore, vide order dated 26.10.2015 the Court passed order to issue fresh process. It is not in dispute that after 26.10.2015 the Court's process was immediately served to the respondent Nos. 1 and 2.
6. However, the said respondents No.1 and 2 did not even bother to enter appearance and they, did not even care to examine the case (even after service of Notice/ process of this Court) and take steps either to enter appearance and to support or oppose the petition.
7. The said 2 respondents did not care to come to the Court and to inform the Court atleast the reason for not paying retiral benefits to the petitioner for so many years.
8. The respondents clearly and defiantly ignored the notice of the Court.
9. On 3.8.2017, the Court was constrained to pass below quoted order:
“The petitioner in this case is claiming the pensionary benefits after superannuation in the year 2009. Despite notice having been issued, nobody is appearing for the respondent Nos.1 and 2. Further perusal of the file shows that the State should be one of the parties in this petition. Learned counsel for the petitioner will make necessary amendment in the memorandum of this petition by impleading the State as one of the parties and thereafter, the matter to be listed on 08.08.2017.”
10. Even thereafter the said 2 respondents did not take any steps either to enter appearance and to answer the petition and to honour the Notice of the Court, much less to process the petitioner’s case for retiral benefits.
11. In the meanwhile, the Court considered it appropriate and necessary that Director of Pension should be impleaded as party respondent. Therefore, below quoted order came to be passed on 12.10.2017:
“State is required to be joined as one of the respondents in this case. Learned counsel for the petitioner wants to move an application in this regard. Be filed before the next date. Matter to come up on 8th November, 2017.”
12. In pursuance of the said order the petitioner carried out the amendment on 31.10.2017 and thereafter, process came to be issued to newly add
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