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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
A.S. SUPEHIA, MAUNA M. BHATT, JJ.
STATE OF GUJARAT – Appellant
Versus
NIRANJANA R. PATEL – Respondent
Letters Patent Appeal No. 472 of 2024, Special Civil Application No. 1081 of 2008, Civil Application (For Stay) No. 1 of 2024
Decided On : 12-07-2024
Retirement - Voluntary Retirement - Gujarat Civil Services (Pension) Rules, 2002 - Rule 48, Rule 36 - The court interpreted the provisions regarding voluntary retirement and resignation, concluding that the absence of refusal by the appointing authority rendered the retirement effective, despite the resignation being treated as accepted with retrospective effect.
Fact of the Case:
The respondent was appointed as a lecturer and went on leave to Canada, later declaring her intention to resign if she did not return. The State treated her as resigned, but she argued for voluntary retirement, leading to a legal dispute.
Finding of the Court:
The court found that the respondent's application for voluntary retirement was not formally refused, thus it should be considered effective. However, the retrospective acceptance of her resignation was deemed illegal.
Issues: Whether the respondent's resignation was valid and whether her application for voluntary retirement was effectively accepted.
Ratio Decidendi: The court held that an employee's request for voluntary retirement must be considered if not formally refused, and resignation cannot be accepted retroactively without proper procedure.
Result: The appeal was allowed to the extent that the respondent is treated as voluntarily retired after 20 years of service.
JUDGMENT :
A.S. SUPEHIA, J.
1. The instant Letters Patent Appeal filed under Clause 15 of the Letters Patent, 1865, is directed against the judgment and 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 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 backpain, 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.
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, ce
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