Gujarat High Court
Godharasarvjanikshikshan ... vs State Of Gujarat on 10 June, 2022
Bench: Bhargav D. Karia
C/SCA/10850/2017 CAV JUDGMENT DATED: 10/06/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 10850 of 2017
With
CIVIL APPLICATION (FOR VACATING INTERIM RELIEF) NO. 1 of 2018
In
R/SPECIAL CIVIL APPLICATION NO. 10850 of 2017
With
CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2020
In
R/SPECIAL CIVIL APPLICATION NO. 10850 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BHARGAV D. KARIA
==========================================================
1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
==========================================================
GODHARASARVJANIKSHIKSHAN MANDAL & 1 other(s)
Versus
STATE OF GUJARAT & 3 other(s)
==========================================================
Appearance:
MR ASIM PANDYA WITH MR GAURAV VYAS(9855) for the Petitioner(s) No. 1,2
DS AFF.NOT FILED (N) for the Respondent(s) No. 3
MS MAMTA R VYAS(994) for the Respondent(s) No. 4
NOTICE SERVED BY DS for the Respondent(s) No. 1,2
==========================================================
CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA
Date : 10/06/2022
CAV JUDGMENT`
C/SCA/10850/2017 CAV JUDGMENT DATED: 10/06/2022
1.Heard learned advocate Mr. Asim Pandya for
learned advocate Mr. Gaurav Vyas for the
petitioners, learned Assistant Government
Pleader Mr. K.M.Antani for the respondent-
State and learned advocate Ms. Mamta Vyas for
respondent No.4.
2.By this petition under Articles 226 and 227
of the Constitution of India the petitioners
have prayed for the following reliefs:
"A. This Hon'ble Court may be
pleased to quash and set aside the
order/decision/directions dated 27/4/2017,
24/4/2017 and 26/4/2017 annexed hereto as
Annexure P1, Annexure P2 and Annexure P3
being contrary to law and
unconstitutional, mala fide, arbitrary and
violative of Article 14 of the
Constitution of India.
B. Pending admission and final disposal
of the present petition this Hon'ble Court
may be pleased to stay the implementation,
enforcement, execution and operation of
the impugned order/decisions/directions
dated 27/4/2017, 26/4/2017 and 24/04/2017
at Annexure P1, Annexure P2 and Annexure
P3.
C. Ad interim relief in terms of clause
(B) may kindly be granted.
D. The petitioners have not been directly
communicated the decisions at Annexures P2
and P3 and hence, the petitioners may be
exempted from furnishing original with
this petition."
C/SCA/10850/2017 CAV JUDGMENT DATED: 10/06/2022
3.Brief facts of the case are as under:
3.1 The petitioner No.1 is a Public
Charitable Trust registered under the
provisions of Bombay Public Trust Act, 1950
and the Society Registration Act, 1860. The
petitioner No.1 runs various institutions at
Godhra.
3.2 The petitioner No.2 is a school run
by the petitioner No.1-Trust.
3.3 Respondent No.4 was initially
appointed in the New Era High School, Godhra
run by the petitioner-Trust, as Teacher which
was run by the Godhra Sarvajanik Sikshan
Mandal. The respondent No.4 thereafter
shifted to Morbi and left her services but
thereafter, returned to Godhra in the year
1979 and requested the petitioner No.1 to
appoint her as teacher in any other school.
Considering her request, respondent No.4 was
appointed as teacher with the petitioner
No.2-School w.e.f. 03.12.1979.
3.4 Respondent No.4 served in the
petitioner No.2-School up to the year 1997
and thereafter left the service and settled
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in the USA.
3.5 In the year 2000, respondent No.4
requested for voluntary retirement from
service. However, the said request was
rejected by the respondent-authorities as it
was found that the petitioner did not
complete the pensionable service period of 20
years as the details of her previous service
from the year 1974 to 1976 were not
available. Respondent No.2, by letters dated
21.01.2003 and 02.07.2003, rejected the
proposal of the respondent No.4 for voluntary
retirement. Respondent No.4 thereafter sent
an application dated 12.05.2003 to
respondent No.3-District Education Officer
for tendering her resignation from the
services w.e.f. 16.02.1998 in her own
handwriting which was forwarded on 24.06.2003
to the petitioner No.2.
3.6 It appears that thereafter the
respondent No.4 by applications dated
18.01.2010 and 03.02.2010 addressed to the
petitioner No.1 requested to grant pension
and retirement benefits on the ground of
voluntary retirement considering her total
service of 20 years including the service
during the period from 1974 to 1976.
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3.7 Respondent No.2 thereafter sent the
applications along with proposal for
considering the case of the respondent No.4
to the respondent-authorities for payment of
pension and correspondence continued from
2010 to 2016.
3.8 The respondent No.4 thereafter
preferred Special Civil Application No. 4482
of 2016 before this Court which was disposed
of by order dated 22.03.2016 with the
observation that if the service of the
petitioner from 09.07.1974 to 14.06.1976
years of service for the purpose of voluntary
retirement and it was directed to take
appropriate decision in accordance with law
within a period of four weeks from the date
of receipt of the order.
3.9 The respondent No.4 thereafter
preferred various representations before the
respondent-authorities to consider the
representation of the respondent No.4. The
respondent No.4 also preferred contempt
petition being Misc. Civil Application No.
697 of 2017.
C/SCA/10850/2017 CAV JUDGMENT DATED: 10/06/2022
3.10 It appears that pursuant to the
notice issued in the contempt petition, the
respondent No.1-Education Department passed
an order dated 24.04.2017 to consider the
service of the respondent No.4 from
09.07.1974 to 14.06.1976 as part of the total
service and calculated the service rendered
by the respondent No.4 for 20 years 01 month
and 19 days and voluntary retirement of the
respondent No.4 was sanctioned with
retrospective effect. Thereafter, by order
dated 26.04.2017, the respondent No.2-
Commissioner of School directed the District
Education Officer to implement the order
dated 24.04.2017 and by order dated
27.04.2017, the District Education Officer
directed petitioner No.2 to prepare and
forward the pension papers of respondent
No.4.
3.11 The petitioners therefore being
aggrieved by the impugned orders have
preferred this petition with the aforesaid
prayers.
4.Learned Senior Advocate Mr. Asim Pandya with
learned advocate Mr. Gaurav Vyas for the
petitioners submitted that the impugned
orders passed by the authorities granting
voluntary retirement benefits to the
C/SCA/10850/2017 CAV JUDGMENT DATED: 10/06/2022
respondent No.4 is erroneous inasmuch as the
same suffers from delay and laches. It was
pointed out that after 2003, the respondent
No.4 has not taken any action upto 2010 and
thereafter also respondent No.4 who is
residing at USA has remained inactive and has
persuaded matter through the power of
attorney holder.
4.1 It was submitted that the respondent
No.4 was aware about the rejection of the
proposal of voluntary retirement by the State
Government in 2003 and thereafter, has
tendered the resignation which was forwarded
to the District Education Officer from USA in
her own handwriting and therefore, as the
entire matter was concluded in the year 2003
itself, respondent No.4 could not be now
given the voluntary retirement benefit with
retrospective effect.
4.2 It was submitted that the respondent
authorities seem to have passed the impugned
order only in view of the pressure created by
respondent No.4 by preferring contempt
petition for deciding the representation as
directed by this Court while passing order in
Special Civil Application No. 4482 of 2016.
C/SCA/10850/2017 CAV JUDGMENT DATED: 10/06/2022
4.3 It was submitted that the respondent
No.4 has not challenged the orders dated
21.01.2003 and 02.07.2003 by which, the
request of the respondent No.4 for voluntary
retirement was rejected and therefore, the
impugned orders passed by the respondent-
authorities are contrary to the orders which
are already passed. It was submitted that the
resignation tendered by the respondent No.1
has been accepted w.e.f. 16.12.1998 and
therefore there was no question of allowing
her to opt for voluntary retirement with
pension and other benefits.
4.4 Learned Senior Advocate Mr. Pandya
submitted that this Court, while passing
order dated 22.03.2016 in Special Civil
Application No. 4482 of 2016 only directed
the authorities to decide the representation
in accordance with law and there is no
further direction or order passed by this
Court to grant voluntary retirement benefit
to the respondent No.4.
4.5 In support of his submissions
reliance is placed on the following
decisions:
Union of India and others vs. C. Girja and
ors reported in 2019 15 SCC 933
C/SCA/10850/2017 CAV JUDGMENT DATED: 10/06/2022
"5. Shri K.M. Nataraj, learned ASG
appearing for Union of India submitted
that the claim of applicant of inclusion
in the Panel declared on 09.01.2001 was
barred by laches and delay. The Tribunal
and High Court committed error in
entertaining the claim of the applicant
and issuing direction for inclusion in
panel. It is submitted that cause of
action arose to applicant when the
notification dated 14.10.1999 was issued
earmarking 05 vacancies under 30% LDCE
quota, out of which 04 were unreserved and
01 was reserved. The applicant
participated in the selection without
raising any objection and it was only
after more than 06 years, she filed a
representation on 25.09.2007. By filing of
the representation after more than 06
years, delay and laches cannot be
condoned. The mere fact that the
representation was replied on 27.12.2007
shall not give any fresh cause of action
to the applicant."
Nathubhai Dahyabhai Patel vs. A.Ayanger
reported in 1984 GLH 300
"6. In the instant case it is not disputed
that the resignation has not been accepted
by the Government within a period of one
month, and therefore, the resignation
becomes effective on the expiry of the
period of one month, i.e. 15-5-1976.
However, Mr. Mehta submits that this
deeming provision will come into operation
only if the resignation is either given to
the appointing authority or at the said
resignation is sent to the appointing
authority for its consideration. In the
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instant case it is admitted position that
the resignation was not addressed or given
to the appointing authority which is
according to the Government's case is the
State Government. The letter of
resignation which has now been produced by
the Government with the affidavit is
addressed to the Director of Health &
Medical Services and not to the
Government. Para 4 of the affidavit in-
reply in terms states that the said
resignation was sent for consideration of
the Government by the District Development
Officer along with his letter dated 23-3-
1978, i.e. after the said resignation was
withdrawn by the petitioner on March 21,
1978. Therefore, Mr. Mehta argues that the
subsequent acceptance of the resignation
by the Government by its order dated 24th
May, 1978 cannot terminate the services of
the petitioner because the same was passed
after the resignation was withdrawn.
7. Mr. Mehta is right on both the points.
The resignation was admittedly given to
the Director of Health and Medical
Services and not to the appointing
authority and, therefore, the resignation
was not in accordance with the statutory
Rule 33-A. Secondly, even if we give a
wider interpretation to the said rule that
at last the resignation was ultimately
sent to the appointing authority on 23-3-
1978, that fact will not help the
Government because the resignation was
forwarded to the Government only after the
date when the petitioner had withdrawn his
resignation. It is obvious that as soon as
the petitioner withdrew his resignation
the concerned officers became active and
immediately tried to send the resignation
C/SCA/10850/2017 CAV JUDGMENT DATED: 10/06/2022
letter to the appointing authority for
necessary action. Unfortunately they were
late. The petitioner had withdrawn the
same and, therefore, there was no
resignation before the appointing
authority which the appointing authority
can either accept or reject.
8. Mr. Mehta has relied upon the judgment
of this Court in the case of Hukumat Rai
v. State of Gujarat and Ors. 23(1) G.L.R.
641 : 1982 G.L.H. 85. Facts of that case
were similar to that of this petition. In
that petition, the petitioner Hukumat Rai
was appointed as Medical Officer Class-11
in Gujarat Public Health Services and
thereafter he was promoted to the cadre of
Medical Officer Class-1 and was confirmed
on the said post. On 15th September, 1975
Hukumat Rai gave resignation with effect
from 16th September, 1975. Instead of
giving one month's notice as required by
the relevant rules he deposited one
month's salary in the Government treasury
at Surat in lieu of notice. He further
stated in the letter of resignation that
no departmental inquiry was pending
against him and no Government dues were
outstanding as on that date. This letter
was addressed to the Director of Health
Services (Health Section) Public Health
Department, Government of Gujarat. After
the receipt of this letter a belated reply
dated 25th November, 1976 was sent to
Hukumat Rai slating that the notice pay
deposited by him by challan was
insufficient as it was not inclusive of
all allowances and that till the balance
was paid, the resignation could not be
forwarded to the Government for
acceptance. Hukumat Rai, instead of
depositing the balance of the amount as
required by the aforesaid letter, decided
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to withdraw his resignation as is clear
from his communication dated 18th January,
1977 wherein he stated that since the
resignation has not been accepted by the
appointing authority and that he failed to
deposit the balance as directed by the
authority, he was withdrawing the
resignation. However, on receipt of that
letter Hukumat Rai's resignation letter
was sent to the Government for acceptance
on 28th January, 1977 i.e. after ten days
of the withdrawal of the resignation.
Therefore, the question arose as to
whether the resignation was given to the
proper authority and whether the
withdrawal of the resignation was legal
and valid. While deciding the case A. M.
Ahmadi, J. observed as under:
It is, therefore, established beyond any
manner of doubt that the appointing
authority received the letter of
resigintion for the first time on 23th
January, 1977, that is, after the
resignation was actually withdrawn by the
petitioner. At the date of withdrawal the
letter of resignation was still with the
Director of Health Services and it appears
that along with that letter he
unfortunately did not forward the letter
of withdrawal also to the State
Government.
In that case also the respondents
contended that by virtue of Rule 33-A(2)
the resignation became effective on the
expiry of the period of notice. It was
contended by the respondents in that case
that the resignation became effective with
effect from 16th September, 1975 and,
therefore, the subsequent withdrawal was
of no consequence whatsoever. Rejecting
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this argument, my learned brother A. M.
Ahmadi, J. observed that:
There is no substance in this contention
for the simple reason that the appointing
authority had not received the letter of
resignation till 28th January, 1977. If
that is so, it is difficult to understand
how reliance can be placed on Rule 33A(2)
of Bombay Civil Services Rules for the
purpose of contending that the resignation
became effective with effect from 15th
September, 1975.
09. The aforesaid case totally supports
the contention of Mr. Mehta. Thereafter
Mr. Mehta relied upon the case of Rajkumar
v. Union of India In paragraph 5 of the
said judgment Their Lordships of the
Supreme Court have stated the proposition
of law in the following words:
Till the resignation is accepted by the
appropriate authority in consonance with
the rules governing the acceptance, the
public servant concerned has locus
poenitentiae but not thereafter.
Relying upon this observation Mr. Mehta
argues that till the resignation is
Accepted or it comes into operation by
deeming fiction the concerned public
servant can withdraw the same. I have,
therefore, no hesitation to come to the
conclusion that the petitioner was
entitled to withdraw his resignation
before the appointing authority has
accepted or rejected it or permitted it to
be effective by lapse of time. In view of
the aforesaid legal position the
acceptance letter of the State Government
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has no legal effect and is required to be
quashed and set aside."
Krishnadevi Malchand Kamathia vs. Bombay
Environmental Action Group reported in 2011 3
SCC 363:
"17. It is settled legal proposition that
even if an order is void, it requires to
be so declared by a competent forum and it
is not permissible for any person to
ignore the same merely because in his
opinion the order is void.
18. In State of Kerala v. M.K. Kunhikannan
Nambiar Manjeri Manikoth Naduvil (dead) &
Ors., AIR 1996 SC 906; Tayabbhai M.
Bagasarwalla & Anr. v. Hind Rubber
Industries Pvt. Ltd. etc, AIR 1997 SC
1240; M. Meenakshi & Ors. v. Metadin
Agarwal (dead) by L.Rs. & Ors. (2006) 7
SCC 470; and Sneh Gupta v. Devi Sarup &
Ors., (2009) 6 SCC 194, this Court held
that whether an order is valid or void,
cannot be determined by the parties. For
setting aside such an order, even if void,
the party has to approach the appropriate
forum.
19. In State of Punjab & Ors. v. Gurdev
Singh, Ashok Kumar, AIR 1991 SC 2219, this
Court held that a party aggrieved by the
invalidity of an order has to approach the
court for relief of declaration that the
order against him is inoperative and
therefore, not binding upon him. While
deciding the said case, this Court placed
reliance upon the judgment in Smith v.
East Ellore Rural District Council, [1956]
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1 All ER 855 wherein Lord Radcliffe
observed:-
"An order, even if not made in good
faith is still an act capable of legal
consequences. It bears no brand of
invalidity on its forehead. Unless the
necessary proceedings are taken at law
to establish the cause of invalidity
and to get it quashed or otherwise
upset, it will remain as effective for
its ostensible purpose as the most
impeccable of orders."
20. In Sultan Sadik v. Sanjay Raj Subba &
Ors., AIR 2004 SC 1377, this Court took a
similar view observing that once an order
is declared non-est by the Court only then
the judgment of nullity would operate erga
omnes i.e. for and against everyone
concerned. Such a declaration is
permissible if the court comes to the
conclusion that the author of the order
lacks inherent jurisdiction/competence and
therefore, it comes to the conclusion that
the order suffers from patent and latent
invalidity.
21. Thus, from the above it emerges that
even if the order/notification is
void/voidable, the party aggrieved by the
same cannot decide that the said
order/notification is not binding upon it.
It has to approach the court for seeking
such declaration. The order may be
hypothetically a nullity and even if its
invalidity is challenged before the court
in a given circumstance, the court may
refuse to quash the same on various
grounds including the standing of the
petitioner or on the ground of delay or on
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the doctrine of waiver or any other legal
reason. The order may be void for one
purpose or for one person, it may not be
so for another purpose or another person."
Taiyabbhai M. Bagasarwalla vs. Hind Rubber
Industries Private Ltd reported in 1997 3 SCC
443:
"15. In Shiv Chander Kapoor v. Amar Bose
[1990 (1) SCC 234], J.S.Verma, J. speaking
for a 3-Judge Bench observed thus, with
reference to the statement of law at pp.351-
353 of Wade's Administrative Law [6th Edn.]:
"`void' is meaningless in an absolute sense;
and `unless the necessary proceeding are
taken at law to establish the cause of
invalidity and to get it quashed or otherwise
upset, it will remain as effective for its
ostensible purpose as the most impeccable of
orders'. In the words of Lord Diplock, `the
order would be presumed to be valid unless
the presumption was rebutted in competent
legal proceedings by a party entitled to
sue'."
To the same effect is the opinion of
Jagannatha Shetty, J. in State of Punjab &
Ors. v. Gurdev Singh [1991 (4) SCC 1].
"If an Act is void or ultra vires it
is enough for the court to declare it
so and it collapses automatically. It
need not be set aside. The aggrieved
party can simply seek a declaration
that it is void and not binding upon
him. A declaration merely declares the
existing state of affairs and does no
`quash' so as to produce a new state
of affairs.
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But nonetheless the impugned dismissal
order has at least defacto operation
unless and until it is declared to be
void or nullity by a competent body or
court. In Smith v. East Elloe Rural
District Council, 1956 A (736) 769:
(1956) 1 All ER 855, 871) Lord
Radcliffe observed: `An order, even if
not made in good faith, is still an
act capable of legal consequences. It
bears no brand of invalidity on its
forehead. Unless the necessary
proceedings are taken at law to
establish the cause of invalidity and
to get it quash or otherwise upset, it
will remain as effective for its
ostensible purpose as the most
impeccable of orders.
Apropos to this principle, Prof. Wade
states: (See Wade: Administrative Law,
6th edn. p.352)' the principle must be
equally true even where the `brand' of
invalidity is plainly visible; for
there also the order can effectively
be resisted in law only by obtaining
the decision of the court. Prof. Wade
sums up these principles: (Ibid)
The truth of the matter is that the
court will invalidate an order only if
the right remedy is sought by the
right person in the right proceedings
and circumstances. The order may be
hypothetically a nullity, but the
court may refuse to quash it because
of the plaintiff's lack of standing,
because the does not deserve a
discretionary remedy, because he has
waived his rights, or fore some other
legal reason. In any such case, the
`void' order remains effective and is,
in reality, valid. It follows that an
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order may be void for one purpose that
an order may be void for one purpose
and valid for another; and that it may
be void against one person but valid
against another."
We may also refer to yet another decision of
this Court in Ravi S.Naik v. Union of India
[1994 Suppl. (2) SCC 641 at 662] S.C.
Agrawal, J., speaking for the Division Bench,
observed:
"In the absence of an authoritative
pronouncement by this Court the stay
order passed by the High Court could
not be ignored by the Speaker on the
view that his order could not be a
subject-matter of court proceedings
and his decision was final. It is
settled law that an order, even though
interim in nature, is binding still it
is set aside by a competent court and
it cannot be ignored on the ground
that the court which passed the order
has no jurisdiction to pass the same.
Moreover the stay order was passed by
the High Court which is superior Court
of Record, it is for the court to
consider whether any matter falls
within its jurisdiction or not. Unlike
a court of limited jurisdiction, the
superior court in entitled to
determine for itself questions about
its own jurisdiction. (See: Special
Reference No.1 of 1964; (1967) 3 SCR
84.)"
The Allahabad and Madras High Courts have
also taken the same view. In State of U.P.
V. Ratan Shukla [AIR 1956 All. 258], the
Allahabad High Court observed:
"The fact that Shri S.M. Ifrahim had
no jurisdiction to hear the appeals,
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however, does not mean that no
contempt could be committed of him. So
long as he was seized of the appeals,
no contempt could be committed of him.
It is not the law that a court
dealing with a matter which is beyond
its jurisdiction can be contemned
with impunity or that the liability
of a person to be punished for
contempt of a court depends upon
whether the court was acting within
its jurisdiction at the time when it
is alleged to have been contemned.
the oppositeparty, therefore, cannot
claim that he is not guilty of
contempt because Shri S.M. Ifrahim
had no jurisdiction to decide the
appeals."
In Nalla Senapati Sarkarai Mandariar
Pallayakottai v. Shri Ambal Mills Pvt. Ltd.
& Ors. [AIR 1966 Mad.53] similar view has
been expressed - without of course deciding
the question finally. Quoting Oswald on
Contempt (1910 Edn. at 106), the court
observed "an order irregularly obtained
cannot be treated as a nullity, but must be
implicitly obeyed, until by a proper
application, it is discharged.
In D.M. Samyulla v. Commissioner,
Corporation of the City of Bangalore &
Ors. [1991 Karnataka Law Journey 352], the
Karnataka High Court stated the law in the
following terms, with reference to the
decision of the Court of Appeal in
Hadkinson v. Hadkinson: "the principle
laid down in the said decision is, a party
who knows an order, whether it is null or
valid, regular or irregular, cannot be
permitted to disobey it and it would be
dangerous to allow the party to decide as
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to whether an order was null or valid or
whether it was regular or irregular".
In Hadkinson v. Hadkinson [1952 All.
E.R.567] the Court of Appeal held:
"It is the plain and unqualified
obligation of every person against, or in
respect of whom an order is made by a
court of competent jurisdiction to obey it
unless and until that order is discharged.
The uncompromising nature of this
obligation is shown by the fact that it
extends even to cases where the person
affected by an order believes it to be
irregular or even void. Lord Cottenham,
L.C. said in Chuck v. Cremer: (1) (1 Coop.
Temp. Cott.342).
A party, who knows of an order, whether
null or valid, regular or irregular,
cannot be permitted to disobey it....It
would be most dangerous to hold that the
suitors, or their solicitors, could
themselves judge whether an order was null
or valid-whether it was regular or
irregular. that they should come to the
court and not take upon themselves to
determine such a question. That the course
of a party knowing of an order, which was
null or irregular, and who might be
affected by it, was plain. He should apply
to the court that it might be discharged.
As long as it existed it must not be
disobeyed.
Such being the nature of this obligation,
two consequences will in general follow
from its breach. The first is that anyone
who disobeys an order of the court (and I
am not now considering disobedience of
orders relating merely to matters of
procedure) is in contempt and may be
punished by committal or attachment or
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otherwise. The second is that no
application to the court by such a person
will be entertained until he has purged
himself of his contempt."
In United States of America v. John F.Shipp
et al9 [51 L.Ed. 319], the following
statement by Holmes,J. Occurs:
"It has been held, it is true, that
orders made by a court having no
jurisdiction to make them may be
disregarded without liability to
process for contempt: Re Sawyer, 124
U.S. 200, 31 L. ed.402, 8 Sup. Ct.
Rep.482; Ex Parte Fisk. 113 U.S. 713,
28 L.ed. 1117, 5 Sup. Ct. Rep. 724; Ex
parte Rowland, 104 U.S. 604, 26 L. ed.
861. But even if the circuit court had
no jurisdiction to entertain Johnson's
petition , and if this court had no
jurisdiction of the appeal, court and
this court alone, could decide that
such was the law. It and it alone
necessarily had jurisdiction to decide
whether the case was properly before
it. On that question, atleast, it was
its duty to permit argument and to
take the time required for such
consideration as it might need. See
Mansfield, C. & L.M.R. Co. v. Swan,
111 U.S.379, 387, 278 L. ed. 462, 465,
4 Sup. Ct. Rep. 510. Until its
judgment declining jurisdiction should
be announced, it had authority, from
the necessity of the case to make
orders to preserve the existing
conditions and the subject of the
petition, just as the State court was
bound to refrain from further
proceedings until the same time. Rev.
Stat. 8 766; act of March 3; 1893
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chap. 226, 27 Stat. at L. 751, u.s.
Comp. Stat. 1901. p.597.
" The decision in Shipp has been
followed in several later decision of
the American Supreme Court.
A contrary opinion has, however, been
expressed in two decision of the Bombay
High Court. The first decision is of a
learned Single Judge in Dwarkadas Mulji v.
Shadilal Laxmidas (1980 MLJ 404). It was
held by the learned Judge that where the
court has no jurisdiction to try a suit, no
person can be punished for flouting the
interim orders made in such a suit. It is
significant that no reference was made to
Section 9-A of the Civil Procedure Code in
the said decision. In support of his view,
the learned Judge relied upon certain
United States' decisions and the statement
of law in Corpus Juris Secondum, Vol.XVII,
Para 19. Sri Sorabjee says that the United
States' decisions cited do not support the
proposition of the learned Judge. We do
not, however, wish to go into the said
controversy in view of Section 9-A of the
Civil Procedure Code and the correct
principle of law, as we understand it. The
above decision has been distinguished by
another learned Single Judge in Kapil v.
S.Anthony [1984 (2) Bombay Case Reporter
199] precisely on this ground, viz., with
reference to Section 9-A Civil Procedure
Code. The learned Judge has opined that by
virtue of Section 9-A, the court does
possess the jurisdiction to pass interim
orders and they have to be obeyed by the
person concerned even though ultimately it
may be found that the court had no
jurisdiction to entertain the said suit.
The other decision of the Bombay High
Court, which is also strongly relied upon
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in the order under appeal, is of the
Division Bench in Vivekanand Atmaram
Chitale and another v. Vidyavardhini Sabha
and others [1984 MLJ 520]. That was a case
where the Revenue Tribunal had no
jurisdiction to pass any interim order in
an appeal preferred under Section 71 of the
Bombay Public Trust Act, 1950. The
Tribunal, however, passed an interim order
restraining the holding of a meeting. The
persons, against whom the order was issued,
knowingly and deliberately disobeyed the
order stating that the order against them
was without jurisdiction. They were
proceeded against for contempt. The
Division Bench affirmed the general
principle with reference to this Court's
decision in Kiran Singh v. Chaman Paswan
[A.I.R. 1954 S.C. 340] that a decree passed
by a court without jurisdiction is a
nullity and that its invalidity can be set
up whenever and wherever it is sought to be
enforced or relied upon-even at the stage
of execution and even in collateral
proceedings and then relaying upon the
decision of the learned Single Judge in
Dwarka Dass Mulji v,. Shadilal Laxmidas,
the Bench held thus:
"In Dwarkadas Mulji and others v.
Shantilal Laxmidas and another Sawant J.
elaborately considered the question
whether the breach of an undertaking given
by a party in a proceeding, which is ab
initio void for lack of jurisdiction,
amounts to contempt. While answering the
question in the negative, the learned
Judge rightly distinguished the decision
of the Allahabad High Court in State of
U.P. v. Ratan Shukla [A.I.R. 1956 All.
258] and placed reliance upon the decision
of the Punjab High Court in Narayan Singh
v. S. Hardayal Singh [A.I.R. 1958
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Punj.180]. He also quoted American law on
the subject as found in Corpus Juris
Secondum Vol. XVII para 19. The relevant
quotation is as follows:-
"Disobedience of, or resistance to, a void
mandate, order, judgment or decree or one
issued by a Court without jurisdiction of
the subject matter and parties litigant,
is no contempt and where the Court has no
waiver can cut off the rights of the party
to attack its validity."
In support of the proposition, which the
learned Judge laid down he also placed
reliance on the decisions of the Supreme
Court of the United States in Ex Parte
Rowland [1881 U.S.S.C.R. 26 L Ed. 604], Ex
Parte Fisk [1884 U.S.S.C.R. 28 L Ed. 117],
Ex Parte Sawyer [1887 U.S.S.C.R. 32 L Ed.
2001], United States of America v. United
Mine Workers of America [1946 U.S.S.C.R.
91 L Ed.884] and Joseph F. Maggio v.
Raymond Zeitz [1947 U.S.S.C.R. 92 L
Ed.476], in which unanimous view was taken
that there is no contempt when breach is
of the order passed in the proceedings,
which are ab initio void for lack of
jurisdiction from their very inception."
It is necessary to point out that the
order violated in Vivekanand Atmaram was
an order of the Revenue Tribunal and not
of a civil court. Probably, for that
reason, the Bench has not referred to
Section 9-A of the Civil Procedure Code.
Be that as it may, for the reasons given
by us hereinbefore and in the light of the
law laid down in the decisions of this
Court referred to above, it must be held
that the decision of the Bombay High Court
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in Dwarkadas Mulji was wrongly decided and
that the decision in Vivekanand Atmaram
Chitale must be held to be in applicable
to the orders of a civil court."
5.On the other hand, learned advocate Ms. Mamta
Vyas submitted that it is not in dispute that
the respondent No.4 rendered the services as
teacher from 09.07.1974 to 14.06.1976 and
thereafter from 1979 to 1997 and hence, her
total service is more than 20 years and the
respondent No.4 is eligible for voluntary
retirement. It was therefore submitted that
the respondent- authorities have rightly
considered the case of the respondent No.4 on
a representation on behalf of the respondent
No.4 by granting voluntary retirement with
retrospective effect from 16.12.1998.
5.1 Learned advocate Ms. Vyas relied
upon the provisions of section 36 (4) of the
Gujarat Secondary and Higher Secondary
Education Act, 1972 [for short 'the
Act,1972'] to submit that resignation
tendered by the respondent No.4 on 12.05.2003
was not given in-person to the District
Education Officer concerned and further, the
said resignation is never accepted by the
respondent-authorities and as such, there is
a contravention of sub-section (4) of section
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36 of the Act,1972 and therefore, it cannot
be said that the respondent No.4 has tendered
the resignation.
5.2 It was submitted that in the writ
petition filed before this Court in the year
2016 being Special Civil Application No. 4482
of 2016, the respondent No.4 did not suppress
any material fact. Reference was made to the
averments made in the memo of the said
petition filed before this Court to point out
that respondent No.4 in her petition
disclosed that her resignation application
was never approved because it was not
submitted as per the Act and Rules. It was
submitted that in view of the averments made
in the petition filed by respondent No.4,
this Court passed the order dated 22.03.2016
directing the respondent-authorities to
consider the representation made on behalf of
the respondent No.4 to take in to account
the services rendered by respondent No.4 from
1974 to 1976.
5.3 It was further submitted that the
respondent No.4 cannot be deprived of her
legitimate right to get the pension as the
respondent- authorities have granted
sanction to the voluntary retirement with
retrospective effect.
C/SCA/10850/2017 CAV JUDGMENT DATED: 10/06/2022
5.4 In support of her submissions
learned advocate Ms. Vyas relied upon the
following decisions to submit that it is the
right of the respondent No.4 to get the
pension for rendering service for more than
20 years and the petitioner could not have
objected or raised any grievance for claim of
the pension benefits to be paid to the
respondent No.4 pursuant to the impugned
order passed by the respondent authorities.
Ahmedabad Municipal Transport-Service
vs. Rahimbhai Muradbhai in Letters Patent
Appeal No. 871 of 2017 and allied matters
rendered on 08.10.2018:
"11. This brings us to the next
question that is whether once having
accepted voluntary retirement, was
it open for the claimants to turn
around and claim pension. On an
overall consideration of the pension
scheme and the voluntary retirement
scheme and on a conjoint reading of
all these which have been
extensively reproduced by the
learned Single Judge, what comes
forth is that when the claimants
accepted the voluntary retirement
scheme, it was specifically made
clear to them that such a scheme was
made applicable in view of the fact
that they were not entitled to
pension. Little knowing that such an
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interpretation was made in
contravention of the regulations and
rules providing for the benefit of
pension and realising that but for
their denial of their tenure of
service as a daily wager they would
otherwise complete the qualifying
service of 20 years, the claimants
came forth for the redressal of the
grievance which they were otherwise
legally justified to. As rightly
suggested by Mr. Pandya, learned
advocate appearing on behalf of the
respondents claimants by relying on
the judgment in the case of Kerala
State Road Transport Corporation vs.
K.O Varghese and Others reported in
(2003) 12 SCC 293 that pension is
not a bounty. Being a valuable right
and taking reliance that on a wrong
interpretation of the provisions of
law that an employer is denying such
a benefit to the employee, the
claimants were justified in
approaching the Industrial Tribunal.
11.1 That pension is not a bounty
and right to receive pension be
treated as a right to property was
laid down by the Supreme Court also
in the case of Deokinandan Prasad
vs. State of Bihar reported in
(1971) 2 SCC 330. In the case of
State of Himachal Pradesh vs. Rajesh
Chander Sood and Others reported in
(2016) 10 SCC 77, the Apex Court
held that review of a pension scheme
is permissible however and
government can fix a cut-off date
looking to its financial viability
but a review so as to take away a
right of pension retrospectively is
not permissible. However, the
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position that pension is a right to
property still holds good."
Asger Ibrahim Amin vs Life Insurance
Corporation of India reported in (2016)
13 SCC 797:
"13. The Appellant ought not to be
deprived of pension benefits merely
because he styled his termination of
services as "resignation" or because
there was no provision to retire
voluntarily at that time. The
commendable objective of the Pension
Rule is to extend benefits to a
class of people to tide over the
crisis and vicissitudes of old age,
and if there are some
inconsistencies between the
statutory provisions and the avowed
objective of the statute so as to
discriminate between the
beneficiaries within the class, the
end of justice obligates us to
palliate the differences between the
two and reconcile them as far as
possible. We would be failing in our
duty, if we go by the letter and not
by the laudatory spirit of statutory
provisions and the fundamental
rights guaranteed under Article
14 of the Constitution of India.
14. Reserve Bank of India v. Cecil
Dennis Solomon, (2004) 9 SCC 461 relied
upon by the Respondent, although
distinguishable on facts, has ventured to
distinguish "voluntary retirement" from
"resignation" in the following terms:
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"10. In service jurisprudence, the
expressions "superannuation",
"voluntary retirement", "compulsory
retirement" and "resignation" convey
different connotations. Voluntary
retirement and resignation involve
voluntary acts on the part of the
employee to leave service. Though
both involve voluntary acts, they
operate differently. One of the basic
distinctions is that in case of
resignation it can be tendered at any
time, but in the case of voluntary
retirement, it can only be sought for
after rendering prescribed period of
qualifying service. Other fundamental
distinction is that in case of the
former, normally retiral benefits are
denied but in case of the latter, the
same is not denied. In case of the
former, permission or notice is not
mandated, while in case of the
latter, permission of the employer
concerned is a requisite condition.
Though resignation is a bilateral
concept, and becomes effective on
acceptance by the competent
authority, yet the general rule can
be displaced by express provisions to
the contrary. In Punjab National Bank
v. P.K. Mittal (1989 Supp (2) SCC
175) on interpretation of Regulation
20(2) of the Punjab National Bank
Regulations, it was held that
resignation would automatically take
effect from the date specified in the
notice as there was no provision for
any acceptance or rejection of the
resignation by the employer. In Union
of India v. Gopal Chandra
Misra ((1978) 2 SCC 301) it was held
in the case of a judge of the High
Court having regard to Article 217 of
the Constitution that he has a
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unilateral right or privilege to
resign his office and his resignation
becomes effective from the date which
he, of his own volition, chooses. But
where there is a provision empowering
the employer not to accept the
resignation, on certain circumstances
e.g. pendency of disciplinary
proceedings, the employer can
exercise the power.
The legal position deducible from the
above observations further amplifies that
the so-called resignation tendered by the
Appellant was after satisfactorily serving
the period of 20 years ordinarily
qualifying or enabling voluntary
retirement. Furthermore, while there was
no compulsion to do so, a waiver of the
three months notice period was granted by
the Respondent Corporation. The State
being a model employer should construe the
provisions of a beneficial legislation in
a way that extends the benefit to its
employees, instead of curtailing it."
5.5 With regard to contention that there
was no valid resignation, learned advocate
Ms.Vyas relied upon the decision of the
Division Bench of this Court in case of
Meeraben Hasmukhbhai Kharecha vs. Secretary,
Primary Education & Ors. in Letters Patent
Appeal No. 1163 of 2010 rendered on
03.07.2013 wherein the Division Bench after
considering the provisions of Rule 36 of the
Gujarat Civil Service Rules has held as
under:
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"20. In the case of North Zone Cultural
Centre and another v. Vedpathi Dinesh Kumar
reported in AIR 2003 SC 2719, relied upon by
the learned counsel for the respondents, so
far as the appellant Organisation before the
Supreme Court was concerned, there was no
rule which required the acceptance of the
resignation to be communicated before the
resignation could become effective. Even
under the consolidated guidelines and
instructions issued by the Government of
India vide letter of February 11, 1988
dealing with the subject of acceptance and
withdrawal of resignation, there was no
requirement which stated that even in cases
where the resignation was accepted with
immediate effect, the same could be withdrawn
before such acceptance was communicated to
the Government servant concerned. On the
contrary, these guidelines also indicated
that the resignation would take effect the
moment the same was accepted. In the above
case before the Supreme Court, the
resignation letter was dated November 18,
1988 and the same was accepted on the
selfsame date as would appear from the
following endorsement: "Accepted, hand over
charge. Signed-18/11.". The formal
communication of acceptance of resignation
was on December 1, 1988 about 13 days
thereafter which, in the opinion of the
Supreme Court, was not an undue delay in the
facts of the said case so as to draw an
inference that there had been no acceptance
of the resignation. According to the Supreme
Court, even the fact that in the meantime the
respondent either attended duty or signed the
attendance register would be of no assistance
to claim that his resignation had not taken
effect. Even otherwise, the Supreme Court
proceeded, because there was no responsible
officer in the headquarters from November 18,
1988 after the resignation was accepted till
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December1, 1988 and the respondent took
advantage of the same and marked his
attendance, such attendance could not be
treated as lawful attendance in view of the
acceptance of his resignation on November 18,
1988. In the case before us, we have already
pointed out that the condition of appointment
does not permit submission of resignation
without giving notice of seven days which is
absent and there is also no formal decision
of acceptance of the resignation before the
appellant joined and at the same time, the
employer gave salary for the next two months.
We have already pointed out that physical
acceptance of the resignation letter is not
sufficient to conclude that the employer has
accepted the same unless the same is in
conformity with the conditions of service.
Thus, the above decision does not apply to
the facts of the present case.
21. In the case of Ramniklal M Purohit vs.
District Education Committee and others
(Letters Patent Appeal no. 963 of 2010
disposed of on July 6, 2010), an unreported
decision of a Division Bench of this Court,
relied upon by Mr. Baxi, the appellant
approached this High Court for quashing the
impugned action of the respondent in not
permitting him to discharge his duty as a
primary teacher and for permitting him to
join with full back wages and continuity of
service but the same was dismissed. In the
said case, the appellant tendered a
resignation letter on July 30, 1990 after
joining the service under a different
employer by giving effect to the same from
July 17, 1990. In such a fact, the Division
Bench held that the appellant having joined
the service of another employer cannot be
permitted to come back and say that since
there was no communication of acceptance, he
should be permitted to come back and join. In
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the case before us, we have already held that
there was no lawful tender of resignation
letter at the instance of the appellant and
at the same time, the employer not only
failed to take any decision of its acceptance
but also permitted the employee to work for
two months and gave salary for the same.
Thus, the said decision does not help the
respondents in any way in the peculiar facts
of this case.
22. We, therefore, allow the writ-application
and declare that there was no valid
resignation letter at the instance of the
appellant and the services of the appellant
should be deemed to have been continuing so
long her service is not legally terminated.
However, having regard to the fact that the
appellant of her own had joined Kendriya
Vidyalaya for two days, we do not pass any
order of backsalary for the period for which
she has not rendered services to the school.
The appellant in her Special Civil
Application has also not prayed for back-
salary. The respondent authorities are
directed to permit the appellant to join her
services within a fortnight from today. We,
however, make it clear that this order will
not stand in the way of the school
authorities in taking appropriate steps
against the appellant if she has violated any
other terms of her services by joining the
Kendriya Vidyalaya for two days."
6.Having heard learned advocates for the
respective parties and having gone through
the material on record, it is not in dispute
that the respondent No.4 rendered services
from 1974 to 1976 and thereafter from 1979 to
1997 in the school run by the petitioner
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No.1-Trust. The respondent- authorities have
also held that the respondent No.4 has
rendered service of more than 20 years. Thus,
the respondent No.4 is entitled to the
pension benefits as her application for
voluntary retirement ought to have been
accepted in the year 2003 itself. However,
the same was rejected because the relevant
details of the service rendered from 1974 to
1976 was not made available to the competent
authority.
7.Respondent No.4 along with the affidavit-in-
reply filed in this petition has placed on
record certificate issued by the school
wherein she has rendered the service from
1974 to 1976 and thereafter from 1979 to 1997
and therefore, the impugned orders passed by
the respondent-authorities are in consonance
with the services rendered by the respondent
No.4 and respondent No.4 cannot be denied the
pension benefits only on the ground that
respondent No.4 has persuaded the matter of
entitlement to the pension benefits belatedly
after a gap of 07 years in the year 2010. The
fact remains that the respondent No.4 has
completed the qualifying service for granting
retirement for sanction of the voluntary
retirement as per the impugned orders passed
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by the competent authorities. In such
circumstances, as held by the Apex Court in
case of Asger Ibrahim Amin vs. Life insurance
Corporation of India(supra), the respondent
No.4 cannot be deprived of pension benefits
as the commendable objective of the Pension
Rule is to extend the benefits to a class of
people to tide over the crisis and
vicissitudes of old age, and if there are
some inconsistencies between the statutory
provisions and the avowed objective of the
statute so as to discriminate between the
beneficiaries within the class, the end of
justice obligates the Court to palliate the
differences between the two and reconcile
them as far as possible. It was therefore
observed by the Apex Court that it is duty of
the Court to go by the letter and not by the
laudatory spirit of statutory provisions and
the fundamental rights guaranteed under
Article 14 of the Constitution of India. In
the facts of the case, respondent No.4 did
not tender the resignation in-person before
the District Education Officer as she had
sent such resignation from USA and therefore,
as per the sub-section (4) of section 36 of
the Act,1972 there is no valid resignation
tendered by the petitioner. Section 36(4) of
the Act,1972 reads as under:
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"36. Dismissal, removal and reduction in rank
of certain persons.
(4) Where a head-master, a teacher or a
member of the non-teaching staff of a
registered private secondary school desires
to submit his resignation, the resignation
shall be tendered by him in person to the
District Education Officer concerned and
shall not be accepted by the manager unless
it is so tendered and forwarded to him by
such officer duly endorsed. The acceptance of
any such resignation tendered in
contravention of this sub-section shall be
ineffective."
8.It is also not emerging from the record that
the resignation which was received by the
District Education Officer and forwarded to
the petitioner was ever accepted by the
petitioner. Thus, there is no acceptance of
the resignation tendered by the respondent
No.4.
9.As held by the Apex Court in case of State of
Himachal Pradesh vs. Rajesh Chander Sood and
others reported in (2016) 10 SCC 77 as well
as in case of Deokinandan Prasad vs. State of
Bihar reported in (1971) 2 SCC 330, the
pension is not a bounty and right to receive
pension be treated as a right to property and
therefore, the impugned orders passed by the
competent authority granting sanction to the
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voluntary retirement with retrospective
effect is in accordance with the settled
legal position.
10. In view of the foregoing reasons, the
petition is devoid of any merit and is
accordingly rejected. The respondent
authorities are directed to pay the pension
to the respondent No.4 within a period of
Eight weeks from the date of receipt of this
order.
11. With regard to the contention raised on
behalf of respondent No.4 to pay the interest
upon the delayed payment of accumulated
pension, it is held that as respondent No.4
did not take any action for almost more than
07 years from 2003 to 2010 and thereafter
also, the same was not persuaded till 2016
and this Court, by order dated 17.01.2018,
has stayed the implementation and operation
of the impugned orders to sanction the
voluntary retirement of the respondent No.4
and to pay pension benefits, no order for
interest is passed.
12. The petition along with Civil
Applications is accordingly dismissed. Rule
is discharged.
(BHARGAV D. KARIA, J)
JYOTI V. JANI
