{"id":234194,"date":"2008-07-29T00:00:00","date_gmt":"2008-07-28T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/deven-vs-state-on-29-july-2008"},"modified":"2016-05-20T18:57:36","modified_gmt":"2016-05-20T13:27:36","slug":"deven-vs-state-on-29-july-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/deven-vs-state-on-29-july-2008","title":{"rendered":"Deven vs State on 29 July, 2008"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Deven vs State on 29 July, 2008<\/div>\n
Bench: Rajesh H.Shukla<\/div>\n
  \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n \n \n\n\n\t \n\nSCA\/25357\/2007\t 8\/ 8\tORDER \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nSPECIAL\nCIVIL APPLICATION No. 25357 of 2007\n \n\n \n \n======================================\n \n\nDEVEN\nG. DESAI - Petitioner(s)\n \n\nVersus\n \n\nSTATE\nOF GUJARAT & 1 - Respondent(s)\n \n\n====================================== \nAppearance\n: \nMR PF MAKWANA for Petitioner(s)\n: 1, \nMR SHIVANG SHUKLA, ASST. GOVERNMENT PLEADER for Respondent(s)\n: 1, \nNOTICE SERVED for Respondent(s) : \n2. \n======================================\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM\n\t\t\t: \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE R.H.SHUKLA\n\t\t\n\t\n\n \n\n \n \n\n\n \n\nDate\n: 29\/07\/2008  \n \nORAL ORDER<\/pre>\n
\tThe
\npresent petition has been filed by the petitioner for the prayer of
\ndeclaration that the petitioner is entitled to have the voluntary
\nretirement from service on the basis of his  notice dated  18.2.2005
\nwith effect from 4.6.2005. Further prayers have also been sought for
\nand the present petition has been filed for the retirement benefits
\ncontending that had he been treated as voluntarily retired on the
\nbasis of his notice, he would have otherwise earned the amount of Rs.
\n19 lakhs.\n<\/p>\n
2.\tThe
\nshort facts of the case, briefly stated, are that the petitioner has
\nbeen working as an Associate Professor with the B.J. Medical College,
\nForensic Medicine Department,  at the time of giving notice for
\nvoluntary retirement dated 18.2.2005 seeking voluntary retirement
\nfrom the service with effect from 4.6.2006.  This notice is purported
\nto have been given by the petitioner as per Rule 49 of the Gujarat
\nCivil Services (Pension) Rules, 2002 (for short ‘the Rules’) and as
\naverred in the petition no reply confirming or rejecting his request
\nwas given by the authorities and ultimately he came to be retired on
\nreaching superannuation with effect from 31.7.2007. Therefore, the
\npresent petition has been filed.\n<\/p>\n
3.\tLearned
\nAdvocate Mr. P.F. Makwana for the petitioner has referred to the
\npleadings including the Annexure A at p. 14 stating that he be
\nvoluntarily retired with effect from 4.6.2005. Thereafter also he
\nhas, according to him, made a representation or the request and it
\nwas not specifically conveyed that his request is not being accepted
\nand he has to serve till he reached the superannuation. Therefore,
\nlearned advocate Mr. Parmar strenuously contended that the petitioner
\nought to have been permitted to retire voluntarily as requested by
\nhim. It was contended that as per the observations of the Hon’ble
\nApex Court in a judgment in the case of Dinesh Chandra Sangma v.
\nState of Assam and ors.<\/a>, reported in AIR 1978 SC 17,  it is a
\nright of the employee to seek voluntary retirement and no employee
\ncan be detained or continued against his will.  For the purpose he
\nreferred to the observations made in para 8 of the judgment. The
\nlearned advocate has also referred to and relied upon the judgment of
\nthe Hon’ble Apex Court in the case of Ashok Kumar Sahu v. Union of
\nIndia and ors.<\/a>, reported in (2006) 6 SCC 704 and referring to
\nHead Note C has pointedly submitted that as the notice or the request
\nmade by the petitioner seeking voluntary retirement has not been
\nresponded, he should be treated to have been voluntarily retired as
\nper the notice as he could not have been detained against his desire
\nor wish.  Therefore,  had the petitioner been permitted to retire
\nvoluntarily as per the notice dated 18.2.2005 at Annexure A, it would
\nnot have caused loss to the petitioner and, therefore, the present
\npetition has been filed seeking the said declaration.\n<\/p>\n
4.\tThough
\nvarious contentions have been raised, a brief reference to the
\nfactual matrix is also required to be borne in mind.  The petitioner
\nwas selected pursuant to the Gujarat Public Service Commission
\nExamination in 1978 and was appointed as a Tutor and thereafter was
\npromoted and ultimately at the time of seeking voluntary retirement
\nhe was Associate Processor, Forensic Medicine Dept. with B.J. Medical
\nCollege.  He served the notice under rule 49 of the Rules and on that
\nbasis he has filed the petition for the declaration that he should be
\ntreated to have been voluntarily retired in light of his notice dated
\n18.2.2005. Though the submissions have been made that it was not
\nconveyed either way to the petitioner as to whether his request for
\nvoluntary retirement has been accepted or not, his submissions are
\ncontrary to the record itself. A perusal of Annexure D, page 24,
\nwhich is a communication from the Dean, B.J. Medical College,
\nAhmedabad to the petitioner dated 9.10.2005 is clearly referring to
\nthe fact that a suit was filed with regard to the outstanding dues at
\nthe City Civil Court and his request for voluntary retirement was
\ntherefore pending for consideration.  Not only that, it has been
\nspecifically conveyed to him that as his prayer or request for
\nvoluntary retirement has not been acceded to, he should resume duty
\nand he cannot be treated as relieved till then unless and until
\nspecific orders of his voluntary retirement are issued by the
\ngovernment\/authorities. In spite of this, the petitioner had not
\nresumed duty.  Not only that, in fact, there is another
\ncorrespondence to him which was returned back.  Thereafter also the
\npetitioner had made a correspondence with the authority at Annexure-E
\nbeing letter dated 4.11.2005 addressed to the Dean (page 27)
\nsuggesting that as per  rule 49(1)(2) he  has retired from
\nservice.\tHe has further stated that  if the government desires or if
\nthe government requires him, a special order may be passed
\nsanctioning his leave from 5.6.2005 and then only he will join.\n<\/p>\n
5.\tIn
\nthis factual backdrop, the provisions of rule 49 of the Rules which
\nrefer to voluntary retirement on completion of qualifying service,
\nwhich has been relied upon, has to be appreciated.  However, one is
\nalso required to refer to the BCSR itself which specifically mention
\nthat the person would be entitled to the retirement benefits on
\nsatisfactory completion of the service. Even the provisions of rule 2
\nof rule 49 of the Rules, which has been relied upon by the
\npetitioner, is required to be appreciated.  Therefore, proviso to
\nrule 2 clearly states that notice or voluntary retirement given under
\nsub-rule (1) shall require  acceptance by the appointing
\nauthority (emphasis supplied).   Moreover, the proviso also makes it
\nclear that it shall be effective from the date of expiry of the said
\nperiod.  There is a reference to some correspondence as well as a
\ncivil suit pending and the office of the Dean, vide letter dated
\n6.8.2005, has conveyed that it is not proper that he may treat
\nhimself as voluntarily retired  giving the charge and had called upon
\nhim to resume duty within two days.  Thereafter also, as per the
\ncommunication dated 9.10.2005 (Annexure-D), there was a specific
\nmention about the circumstances for which the permission is not
\ngranted and he was directed to resume duty stating that his request
\nfor voluntary retirement has not been accepted as yet and, therefore,
\nhe is not relieved.  It was also made clear that unless there is a
\nspecific order in that regard, he is not relieved and he should
\nresume duty. It is in the background of these circumstances the
\nsubmissions made by learned advocate Mr. Makwana are required to be
\nappreciated.\n<\/p>\n
6.\tThere
\nis no quarrel with regard to the proposition of law and the
\nprinciples and the observations by the Hon’ble Apex Court in a
\njudgment reported in the case of Dinesh Chandra Sangma (supra)
\nthat a government servant has a right to seek voluntary retirement
\nand he cannot be detained. However, that right is again regulated. As
\ndiscussed hereinabove, subject to the restrictions, if the right is
\nto be accepted as  an absolute right, then, in a given situation,
\nthe Government employee who is facing serious charges and the inquiry
\nis contemplated, he may send a letter for voluntary retirement
\ncontending that he has an absolute right to seek voluntary
\nretirement.\n<\/p>\n
7.\tTherefore,
\nthe facts of the present case are also required to be considered that
\nthere was some litigation pending in the City Civil Court and the
\nsuit was filed.  Even if it is accepted that it has nothing to do
\nwith his request for voluntary retirement and also considering his
\nown letter or communication dated 7.11.2005 at Annexure-E by which he
\nhas informed that the outstanding dues may be deducted from his
\namount of gratuity, meaning thereby he has volunteered for repayment
\nand adjustment from his dues.  Therefore, there should not be any
\nreason for the authority for refusing the voluntary retirement of the
\npetitioner and, therefore, it could not have been withheld. However,
\nthe issue in the present case is not precisely the voluntary
\nretirement and\/or non-acceptance thereof as in course of time the
\npetitioner has retired admittedly on reaching the age of
\nsuperannuation.\n<\/p>\n
8.\tHowever,
\nthe present petition and the relief in the present petition under
\nArt. 226 are required to be focused.  By way of this petition under
\nArt. 226 of the Constitution of India, he has sought a declaration
\nfor the fact that he should be deemed to have voluntarily retired
\nwith effect from 4.6.2005 on the basis of his notice dated 18.2.2005
\nand has further prayed that he should be allowed to have all
\nconsequential benefits considering him as on duty on 31.7.2007, the
\ndate of his superannuation, and the respondents may be directed to
\npay the benefits like gratuity, provident fund, etc.  However, the
\nfact remains that he has retired on attaining the age of
\nsuperannuation with effect from 31.7.2007 as per the order of the
\nGovernment, Health and Family Welfare Dept., dated 30.7.2007 stating
\nthat on reaching the age of superannuation on 31.7.2007 the
\npetitioner stands retired.  Another letter at Annexure-F dated
\n31.7.2007 also clearly refers that he stands relieved and it is not
\ndisputed that his eligible dues of retirement are not paid to him.
\nWhat has been contended and claimed is that had he been permitted to
\nretire voluntarily as per his notice in the year 2005, he would not
\nhave suffered monetary loss of Rs. 19 lakhs.  He has prepared a
\nstatement for the calculations contending that had he been permitted
\nto retire voluntarily, he had an offer of appointment by K.M. Shah
\nCharitable Trust offering a salary of Rs. 40,000\/- per month which is
\nthe loss he has suffered  as he was not permitted to retire
\nvoluntarily.  It is contended that he could not accept this
\nassignment because of the fact that he was not relieved and could not
\nproduce the certificate.\n<\/p>\n
9.\tThus,
\nthe reliefs are claimed which has no basis or foundation inasmuch as
\nit is not in dispute that on attaining the age of superannuation with
\neffect from 31.7.2007 he has been permitted to retire and he has been
\npaid his retirement dues.  What has been claimed is the so-called
\nloss which he has suffered. In other words, it is a sort of claim for
\nthe compensation which cannot be entertained in a petition under Art.
\n226 of the Constitution of India.  The petitioner could have filed a
\nsuit for any inaction or any negligence or mala fide action of the
\nGovernment in not relieving him, but the present petition under Art.
\n226 cannot be a remedy for that.  It is in these circumstances this
\ncourt is of the opinion that the petition is misconceived.\n<\/p>\n
10.\tFurther,
\nreference to the judgment of the Hon’ble Apex Court in the case of
\nAshok Kumar Sahu (supra) also does not help the case of the
\npetitioner. In that case, in  para 18,  the expression \u00fdSapproval\u00fd\u00fd,
\n\u00fdSacceptance\u00fd\u00fd, etc. has been discussed and it has been observed
\nthat the \u00fdSapproval\u00fd\u00fd presupposes an existing order. \u00fdSAcceptance\u00fd\u00fd
\nmeans communicated acceptance. A distinction exists between the
\nexpressions \u00fdSapproval\u00fd\u00fd and \u00fdSacceptance\u00fd\u00fd as discussed by the
\nHon’ble Apex Court.\n<\/p>\n
11.\tIn
\nthe present case where the reference is made to rule 48 and 49 of the
\nRules, the words used are \u00fdSshall accept\u00fd\u00fd.  Therefore, as observed
\nin the case of Ashok Kumar Sahu (supra), in case of
\n\u00fdSacceptance\u00fd\u00fd, reference to application of mind on the part of
\ncompetent authority is made and, therefore, the acceptance would
\nimply that it has to be accepted as provided in the statute.\n<\/p>\n
12.\tTherefore,
\nas the present petition has been filed by the petitioner who is
\nretired on reaching the age of superannuation with effect from
\n31.7.2007 and has also been relieved, the petition is directed
\nagainst the claim for the alleged loss which he is said to have
\nsuffered on account of non-acceptance of his voluntary retirement
\npursuant to his notice dated 18.2.2005 (Annexure-A).  However, it is
\nrequired to be mentioned, at the cost of repetition, that after the
\nnotice of voluntary retirement, he has refused to join in spite of
\nthe fact he has been called upon to resume duty and he has, on the
\ncontrary, stated that in view of his notice he stands relieved.
\nFurther, it has been contended that he had an offer of employment\/job
\nwhich he would have accepted had his notice for voluntary retirement
\nbeen accepted and that appears to be his grievance that as a result
\nthereof, he has suffered a loss.  Again, as he has failed to resume
\nafter his notice for voluntary retirement till he reached the age of
\nsuperannuation, during the interregnum period whether he had employed
\nhimself or not is again a matter of dispute which could be decided as
\nper the evidence that could be led. Therefore, it is required to be
\nmentioned that as the correspondence reflects, he has merely
\nintimated the Government that he should be treated as retired and had
\nstopped attending duties in spite of the fact that he has been
\nrepeatedly called upon to resume.  In background of these, the
\npetition and the averments in the petition are required to be
\nappreciated, which again will require his claim to be proved as it
\ninvolves some disputed questions of facts and the claim for such loss
\nor damages or the compensation cannot be entertained in a petition
\nunder Art. 226 of the Constitution of India.\n<\/p>\n
12.\tIn
\nthe circumstances, the entire petition is misconceived and,
\ntherefore, the present petition deserves to be dismissed in
\nlimine.\n<\/p>\n
\tThe
\npetition accordingly stands dismissed in limine. Notice is
\ndischarged.\n<\/p>\n
(Rajesh
\nH. Shukla, J.)<\/p>\n
(hn)<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Deven vs State on 29 July, 2008 Bench: Rajesh H.Shukla 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) : […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-234194","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nDeven vs State on 29 July, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/deven-vs-state-on-29-july-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Deven vs State on 29 July, 2008 - 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