SCA/25357/2007 8/ 8 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 25357 of 2007 ====================================== DEVEN G. DESAI - Petitioner(s) Versus STATE OF GUJARAT & 1 - Respondent(s) ====================================== Appearance : MR PF MAKWANA for Petitioner(s) : 1, MR SHIVANG SHUKLA, ASST. GOVERNMENT PLEADER for Respondent(s) : 1, NOTICE SERVED for Respondent(s) : 2. ====================================== CORAM : HONOURABLE MR.JUSTICE R.H.SHUKLA Date : 29/07/2008 ORAL ORDER
The
present petition has been filed by the petitioner for the prayer of
declaration that the petitioner is entitled to have the voluntary
retirement from service on the basis of his notice dated 18.2.2005
with effect from 4.6.2005. Further prayers have also been sought for
and the present petition has been filed for the retirement benefits
contending that had he been treated as voluntarily retired on the
basis of his notice, he would have otherwise earned the amount of Rs.
19 lakhs.
2. The
short facts of the case, briefly stated, are that the petitioner has
been working as an Associate Professor with the B.J. Medical College,
Forensic Medicine Department, at the time of giving notice for
voluntary retirement dated 18.2.2005 seeking voluntary retirement
from the service with effect from 4.6.2006. This notice is purported
to have been given by the petitioner as per Rule 49 of the Gujarat
Civil Services (Pension) Rules, 2002 (for short ‘the Rules’) and as
averred in the petition no reply confirming or rejecting his request
was given by the authorities and ultimately he came to be retired on
reaching superannuation with effect from 31.7.2007. Therefore, the
present petition has been filed.
3. Learned
Advocate Mr. P.F. Makwana for the petitioner has referred to the
pleadings including the Annexure A at p. 14 stating that he be
voluntarily retired with effect from 4.6.2005. Thereafter also he
has, according to him, made a representation or the request and it
was not specifically conveyed that his request is not being accepted
and he has to serve till he reached the superannuation. Therefore,
learned advocate Mr. Parmar strenuously contended that the petitioner
ought to have been permitted to retire voluntarily as requested by
him. It was contended that as per the observations of the Hon’ble
Apex Court in a judgment in the case of Dinesh Chandra Sangma v.
State of Assam and ors., reported in AIR 1978 SC 17, it is a
right of the employee to seek voluntary retirement and no employee
can be detained or continued against his will. For the purpose he
referred to the observations made in para 8 of the judgment. The
learned advocate has also referred to and relied upon the judgment of
the Hon’ble Apex Court in the case of Ashok Kumar Sahu v. Union of
India and ors., reported in (2006) 6 SCC 704 and referring to
Head Note C has pointedly submitted that as the notice or the request
made by the petitioner seeking voluntary retirement has not been
responded, he should be treated to have been voluntarily retired as
per the notice as he could not have been detained against his desire
or wish. Therefore, had the petitioner been permitted to retire
voluntarily as per the notice dated 18.2.2005 at Annexure A, it would
not have caused loss to the petitioner and, therefore, the present
petition has been filed seeking the said declaration.
4. Though
various contentions have been raised, a brief reference to the
factual matrix is also required to be borne in mind. The petitioner
was selected pursuant to the Gujarat Public Service Commission
Examination in 1978 and was appointed as a Tutor and thereafter was
promoted and ultimately at the time of seeking voluntary retirement
he was Associate Processor, Forensic Medicine Dept. with B.J. Medical
College. He served the notice under rule 49 of the Rules and on that
basis he has filed the petition for the declaration that he should be
treated to have been voluntarily retired in light of his notice dated
18.2.2005. Though the submissions have been made that it was not
conveyed either way to the petitioner as to whether his request for
voluntary retirement has been accepted or not, his submissions are
contrary to the record itself. A perusal of Annexure D, page 24,
which is a communication from the Dean, B.J. Medical College,
Ahmedabad to the petitioner dated 9.10.2005 is clearly referring to
the fact that a suit was filed with regard to the outstanding dues at
the City Civil Court and his request for voluntary retirement was
therefore pending for consideration. Not only that, it has been
specifically conveyed to him that as his prayer or request for
voluntary retirement has not been acceded to, he should resume duty
and he cannot be treated as relieved till then unless and until
specific orders of his voluntary retirement are issued by the
government/authorities. In spite of this, the petitioner had not
resumed duty. Not only that, in fact, there is another
correspondence to him which was returned back. Thereafter also the
petitioner had made a correspondence with the authority at Annexure-E
being letter dated 4.11.2005 addressed to the Dean (page 27)
suggesting that as per rule 49(1)(2) he has retired from
service. He has further stated that if the government desires or if
the government requires him, a special order may be passed
sanctioning his leave from 5.6.2005 and then only he will join.
5. In
this factual backdrop, the provisions of rule 49 of the Rules which
refer to voluntary retirement on completion of qualifying service,
which has been relied upon, has to be appreciated. However, one is
also required to refer to the BCSR itself which specifically mention
that the person would be entitled to the retirement benefits on
satisfactory completion of the service. Even the provisions of rule 2
of rule 49 of the Rules, which has been relied upon by the
petitioner, is required to be appreciated. Therefore, proviso to
rule 2 clearly states that notice or voluntary retirement given under
sub-rule (1) shall require acceptance by the appointing
authority (emphasis supplied). Moreover, the proviso also makes it
clear that it shall be effective from the date of expiry of the said
period. There is a reference to some correspondence as well as a
civil suit pending and the office of the Dean, vide letter dated
6.8.2005, has conveyed that it is not proper that he may treat
himself as voluntarily retired giving the charge and had called upon
him to resume duty within two days. Thereafter also, as per the
communication dated 9.10.2005 (Annexure-D), there was a specific
mention about the circumstances for which the permission is not
granted and he was directed to resume duty stating that his request
for voluntary retirement has not been accepted as yet and, therefore,
he is not relieved. It was also made clear that unless there is a
specific order in that regard, he is not relieved and he should
resume duty. It is in the background of these circumstances the
submissions made by learned advocate Mr. Makwana are required to be
appreciated.
6. There
is no quarrel with regard to the proposition of law and the
principles and the observations by the Hon’ble Apex Court in a
judgment reported in the case of Dinesh Chandra Sangma (supra)
that a government servant has a right to seek voluntary retirement
and he cannot be detained. However, that right is again regulated. As
discussed hereinabove, subject to the restrictions, if the right is
to be accepted as an absolute right, then, in a given situation,
the Government employee who is facing serious charges and the inquiry
is contemplated, he may send a letter for voluntary retirement
contending that he has an absolute right to seek voluntary
retirement.
7. Therefore,
the facts of the present case are also required to be considered that
there was some litigation pending in the City Civil Court and the
suit was filed. Even if it is accepted that it has nothing to do
with his request for voluntary retirement and also considering his
own letter or communication dated 7.11.2005 at Annexure-E by which he
has informed that the outstanding dues may be deducted from his
amount of gratuity, meaning thereby he has volunteered for repayment
and adjustment from his dues. Therefore, there should not be any
reason for the authority for refusing the voluntary retirement of the
petitioner and, therefore, it could not have been withheld. However,
the issue in the present case is not precisely the voluntary
retirement and/or non-acceptance thereof as in course of time the
petitioner has retired admittedly on reaching the age of
superannuation.
8. However,
the present petition and the relief in the present petition under
Art. 226 are required to be focused. By way of this petition under
Art. 226 of the Constitution of India, he has sought a declaration
for the fact that he should be deemed to have voluntarily retired
with effect from 4.6.2005 on the basis of his notice dated 18.2.2005
and has further prayed that he should be allowed to have all
consequential benefits considering him as on duty on 31.7.2007, the
date of his superannuation, and the respondents may be directed to
pay the benefits like gratuity, provident fund, etc. However, the
fact remains that he has retired on attaining the age of
superannuation with effect from 31.7.2007 as per the order of the
Government, Health and Family Welfare Dept., dated 30.7.2007 stating
that on reaching the age of superannuation on 31.7.2007 the
petitioner stands retired. Another letter at Annexure-F dated
31.7.2007 also clearly refers that he stands relieved and it is not
disputed that his eligible dues of retirement are not paid to him.
What has been contended and claimed is that had he been permitted to
retire voluntarily as per his notice in the year 2005, he would not
have suffered monetary loss of Rs. 19 lakhs. He has prepared a
statement for the calculations contending that had he been permitted
to retire voluntarily, he had an offer of appointment by K.M. Shah
Charitable Trust offering a salary of Rs. 40,000/- per month which is
the loss he has suffered as he was not permitted to retire
voluntarily. It is contended that he could not accept this
assignment because of the fact that he was not relieved and could not
produce the certificate.
9. Thus,
the reliefs are claimed which has no basis or foundation inasmuch as
it is not in dispute that on attaining the age of superannuation with
effect from 31.7.2007 he has been permitted to retire and he has been
paid his retirement dues. What has been claimed is the so-called
loss which he has suffered. In other words, it is a sort of claim for
the compensation which cannot be entertained in a petition under Art.
226 of the Constitution of India. The petitioner could have filed a
suit for any inaction or any negligence or mala fide action of the
Government in not relieving him, but the present petition under Art.
226 cannot be a remedy for that. It is in these circumstances this
court is of the opinion that the petition is misconceived.
10. Further,
reference to the judgment of the Hon’ble Apex Court in the case of
Ashok Kumar Sahu (supra) also does not help the case of the
petitioner. In that case, in para 18, the expression ýSapprovalýý,
ýSacceptanceýý, etc. has been discussed and it has been observed
that the ýSapprovalýý presupposes an existing order. ýSAcceptanceýý
means communicated acceptance. A distinction exists between the
expressions ýSapprovalýý and ýSacceptanceýý as discussed by the
Hon’ble Apex Court.
11. In
the present case where the reference is made to rule 48 and 49 of the
Rules, the words used are ýSshall acceptýý. Therefore, as observed
in the case of Ashok Kumar Sahu (supra), in case of
ýSacceptanceýý, reference to application of mind on the part of
competent authority is made and, therefore, the acceptance would
imply that it has to be accepted as provided in the statute.
12. Therefore,
as the present petition has been filed by the petitioner who is
retired on reaching the age of superannuation with effect from
31.7.2007 and has also been relieved, the petition is directed
against the claim for the alleged loss which he is said to have
suffered on account of non-acceptance of his voluntary retirement
pursuant to his notice dated 18.2.2005 (Annexure-A). However, it is
required to be mentioned, at the cost of repetition, that after the
notice of voluntary retirement, he has refused to join in spite of
the fact he has been called upon to resume duty and he has, on the
contrary, stated that in view of his notice he stands relieved.
Further, it has been contended that he had an offer of employment/job
which he would have accepted had his notice for voluntary retirement
been accepted and that appears to be his grievance that as a result
thereof, he has suffered a loss. Again, as he has failed to resume
after his notice for voluntary retirement till he reached the age of
superannuation, during the interregnum period whether he had employed
himself or not is again a matter of dispute which could be decided as
per the evidence that could be led. Therefore, it is required to be
mentioned that as the correspondence reflects, he has merely
intimated the Government that he should be treated as retired and had
stopped attending duties in spite of the fact that he has been
repeatedly called upon to resume. In background of these, the
petition and the averments in the petition are required to be
appreciated, which again will require his claim to be proved as it
involves some disputed questions of facts and the claim for such loss
or damages or the compensation cannot be entertained in a petition
under Art. 226 of the Constitution of India.
12. In
the circumstances, the entire petition is misconceived and,
therefore, the present petition deserves to be dismissed in
limine.
The
petition accordingly stands dismissed in limine. Notice is
discharged.
(Rajesh
H. Shukla, J.)
(hn)