State Of Gujarat vs Dharnantbhai Lakhmanbhai Suva
2021 Latest Caselaw 16820 Guj

     C/LPA/982/2021                               ORDER DATED: 26/10/2021




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/LETTERS PATENT APPEAL NO. 982 of 2021

           In R/SPECIAL CIVIL APPLICATION NO. 8543 of 2017

                                 With
              CIVIL APPLICATION (FOR STAY) NO. 1 of 2020
              In R/LETTERS PATENT APPEAL NO. 982 of 2021
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                            STATE OF GUJARAT
                                  Versus
                      DHARNANTBHAI LAKHMANBHAI SUVA
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Appearance:
MR SAHIL TRIVEDI, AGP (1) for the Appellant(s) No. 1,2,3,4
MR KB PUJARA(680) for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIA
       and
       HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE

                              Date : 26/10/2021

                        ORAL ORDER

(PER : HONOURABLE MR. JUSTICE N.V.ANJARIA)

Heard learned Assistant Government Pleader Mr.Sahil Trivedi for the appellant State and its authorities and learned advocate Mr.K.B.Pujara for the respondent.

2. In the judgment dated 27.1.2020 impugned in the present Letters Patent Appeal, learned Single Judge has allowed the petition by granting the relief in alternative manner. The paragraph No.18 reads as under.

"18. While quashing the order dated 31.03.2017 on the aforesaid grounds, I leave the authorities with two options:

(A) The petitioner applied for voluntary retirement by an application dated 11.10.2011. For the reasons recorded above, I have found that the stand of the

C/LPA/982/2021 ORDER DATED: 26/10/2021

department that the petitioner was willfully or unauthorizedly absent, is without any authority of law, therefore the petitioner can be treated to have voluntarily retired with effect from 31.03.2017, the date on which the impugned order was passed and pay the petitioner all consequential terminal benefits as if the petitioner was in service upto 31.03.2017.

Secondly, in the alternative;

(B) On quashing of the order of 31.03.2017, the petitioner be reinstated in service forthwith so that the petitioner can serve the remaining tenure of service upto 30.06.2023 subject to the rider that in the event the respondents deem it fit, they can resort to the provisions of Discipline and Appeal Rules for issuing an appropriate charge-sheet for the period which the respondents think that the petitioner remained unauthorizedly absent. The reinstatement shall follow forthwith. In the event the respondents fail to take any decision of issuing any charge-sheet after his reinstatement within a period of six weeks from the date of receipt of the order, that option shall stand closed. "

3. The basic facts were that the petitioner was serving as Senior Assistant in Public Health Department and was posted in Kachchh. It appears that he after having rendered more than twenty-three years of service applied for voluntary retirement and that his application was forwarded to the competent authority thereafter the petitioner wanted to proceed on leave. He addressed letter to the said respondent No.4 Superintendent and he was on leave from 11.10.2011 till 12.10.2011 and thereafter sick leave up to 28.1.2012. Since the petitioner did not join the duties, thereafter show cause notice was issued to him, as request for leave was rejected.

3.1 The authorities invoked the provisions of Rule 16(2) of Gujarat Civil Services (Leave) Rules, 2002 and treated the unauthorized absence of the petitioner as deemed resignation.

C/LPA/982/2021 ORDER DATED: 26/10/2021

In the Special Civil Application, the prayer was to set aside order dated 31.3.2017 whereby the petitioner was treated to have been given deemed resignation. Learned Single Judge accepted the case of the petitioner and granted both the alternative reliefs as above.

4. When the appeal came up for consideration, learned Assistant Government Pleader produced office order dated 26.8.2021 stating that pursuant to the order of learned Single Judge, contempt application was filed by the petitioner for treating him as deemingly retired from 31.3.2017 and to grant the consequential benefits. As per the said office order, the first part of the relief granted by learned Single Judge came to be complied with. The petitioner has been treated to have been retired by deeming fiction under Rule 16(2) of the Gujarat Civil Services (Leave) Rules, 2002 and order is also passed to pay him the consequential benefits.

5. In view of the implementation of the order in respect of the relief granted by learned Single Judge and petitioner having accepted the same, the present challenge hardly survives.

The appeal is disposed of accordingly.

ORDER IN CIVIL APPLICATION In view of disposal of the main Appeal, the present Civil Application will not survive. Accordingly, it is disposed of.

(N.V.ANJARIA, J)

(ANIRUDDHA P. MAYEE,J) Manshi