Gujarat High Court
State Of Gujarat vs Kiritkumar Chimanlal Joshi on 13 September, 2022
Bench: A.J.Desai
C/LPA/969/2022 ORDER DATED: 13/09/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO.969 of 2022
In R/SPECIAL CIVIL APPLICATION NO.6319 of 2016
With
CIVIL APPLICATION (FOR STAY) NO.1 of 2019
In R/LETTERS PATENT APPEAL NO.969 of 2022
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STATE OF GUJARAT
Versus
KIRITKUMAR CHIMANLAL JOSHI
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Appearance :
MR TIRTHRAJ PANDYA, AGP for the Appellants.
MR KB PUJARA for the Respondent.
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CORAM:HONOURABLE MR. JUSTICE A.J.DESAI
and
HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Date : 13/09/2022
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE A. J. DESAI)
1. By way of the present appeal under Clause 15 of the
Letters Patent, the appellant - State of Gujarat has challenged
judgment and order dated 23.10.2018 passed by learned Single
Judge in the captioned writ petition. The said writ petition was
filed by the respondent herein - original petitioner seeking a writ of
mandamus directing the appellant herein to forthwith sanction and
pay the pension and all the retirement benefits together with
interest @ 18% p.a. from 1.11.2001 on that basis that he has
voluntarily retired from service w.e.f. 1.11.2001 or from 31.5.2013
on the basis of superannuation on reaching the age of 58 years on
31.5.2013. Learned Single Judge by the impugned judgment and
order accepted the petition of the respondent herein and directed
the appellant to forthwith sanction and pay pension and all other
C/LPA/969/2022 ORDER DATED: 13/09/2022
retirement benefits to the respondent herein with interest @ 12%
p.a. on the basis that the original petitioner had superannuated
from service on and from 31.5.2013.
2. The short facts arise from the record are as under :-
2.1 The original petitioner - respondent herein who is a
senior citizen whose date of birth is 23.05.1955 had joined the
services with the appellant as a Range Forest Officer on
01.05.1978. It is his case that the original petitioner proceeded on
leave for a period of 47 days from 09.10.2000 to 24.11.2000 which
was duly sanctioned. Thereafter, the petitioner had applied for
further leave for a period from 25.11.2000 to 05.02.2001 (73 days),
06.02.2001 to 05.06.2001 (120 days) and from 06.06.2001 to
31.10.2001 (148 days). The said leaves were sanctioned by the
appellant authorities by communication dated 5.3.2001. In the
interregnum, the original petitioner tendered an application dated
31.07.2001 seeking permission to retire voluntarily from service
with effect from 01.11.2001, giving notice period of 90 days. In
response to the said application of the original petitioner, he
received a communication dated 11.10.2002 that till his application
for grant of leave is not decided, his application for voluntary
retirement cannot be considered and, therefore, he was asked to
resume his duties.
2.2 Thereafter, the original petitioner again made a request
to the respondent authorities by communication dated 13.2.2003 to
consider his voluntary retirement application. The Chief
Conservator of Forest, State of Gujarat addressed a letter to the
Deputy Conservator of Forest, Vadodara stating that application of
C/LPA/969/2022 ORDER DATED: 13/09/2022
the original petitioner for voluntary retirement cannot be
considered on two grounds (i) if he resumes duty and (ii) original
Service Book is provided and the application is filed within time.
Accordingly, the Deputy Conservator of Forest, Vadodara informed
the original petitioner to resume the duty. However, considering
the reasons assigned for not sanctioning voluntary retirement, the
original petitioner again requested by a communication dated
18.12.2003 that he had filed application way back on 31.7.2001 for
voluntary retirement from 1.11.2001 i.e. notice period of 90 days,
and, therefore, the reasons assigned by the authorities were not
proper. Thereafter, the original petitioner again made a
representation / application in the year 2004 as also in the year
2005. Meanwhile, the appellant authorities by internal
communication dated 12.12.2005 (Page 61 of the writ petition) the
concerned office of Forest Department requested to Deputy
Conservator of Forest to consider the application of the original
petitioner for voluntary retirement and asked for certain
documents to process the application. Thereafter, there was no
action on the part of the appellant authorities. In the meanwhile,
on 31.5.2013, the original petitioner retired upon attaining the age
of superannuation. Thereafter, the original petitioner made an
application under the R.T.I. Act, 2005 on 15.12.2015. The Deputy
Conservator of Forest, Vadodara by letter dated 11.2.2016
forwarded certain documents to the Conservator of Forest,
Bharuch for processing the voluntary retirement application of the
original petitioner. However, there is no decision on the part of the
appellant authorities permitting the original petitioner to voluntary
retirement and hence, the original petitioner preferred a writ
petition with the prayers stated herein above.
C/LPA/969/2022 ORDER DATED: 13/09/2022
2.3 In response to the notice issued by this Court, the
respondent authorities filed affidavit-in-reply dated 15.7.2016 and
opposed grant of relief. It was the case of the State authority that
application of the original petitioner was already rejected by
communication dated 24.11.2003 which was informed to him by
communication dated 8.12.2003 and, therefore, he was not entitled
for any reliefs as prayed for.
2.4 Learned Single Judge after considering the rival
submissions and having gone through the documents produced on
record, allowed the writ petition as stated herein above.
2.5 Hence the present appeal.
3. Mr. Tirthraj Pandya, learned Assistant Government
Pleader appearing for the appellants would submit that learned
Single Judge has committed error in directing the appellants to pay
pension and all other retirement benefits as if the original
petitioner has superannuated on 31.5.2013 though he has never
worked with the appellants after 2001. By taking us through
various communications, he would submit that the original
petitioner was informed that his application for voluntary
retirement is not considered. He would further submit that there
was no need to issue direction as referred in paragraph 18.2 of the
judgment of the learned Single Judge considering the fact that the
original petitioner has never continuously worked after 2001
onward till the date of his retirement. He, therefore, would submit
that the appeal may be admitted and the order passed by learned
Single Judge may be quashed and set aside.
C/LPA/969/2022 ORDER DATED: 13/09/2022
4. On the other hand, learned advocate Mr. K.B. Pujara
appearing for the respondent - original petitioner has supported
the reasons assigned by learned Single Judge. He would submit
that the original petitioner joined the services on 1.5.1978 and
after completing service of 23 years, by application dated
31.7.2001, he has sought permission for voluntary retirement w.e.f.
1.11.2001 giving notice period of 90 days. He would further submit
that by communication dated 8.12.2003, the original petitioner was
asked to resume his duties, but there is no decision on the part of
the State authorities as to whether the application of the original
petitioner seeking voluntary retirement is accepted or rejected. On
the contrary, it was stated that the respondent cannot be granted
voluntary retirement with back date as suggested in the
communication dated 24.11.2003 upon which heavy reliance has
been placed and, therefore, clarification was made in
communication dated 8.12.2003. Even otherwise, the State had
already sanctioned leaves of the original petitioner and, therefore,
there was no question of deciding the application of the original
petitioner for voluntary retirement subsequent to granting and/or
approving the leaves which were sought by the original petitioner.
He would further submit that the authority had kept the application
of the original petitioner seeking voluntary retirement pending for
years together and the communication dated 12.12.2005 amply
makes it clear that Officers of Forest department were inter alia
communicating and collecting some information to proceed further
with the application. He would further submit that on attaining the
age of 58 years, the original petitioner was superannuated and only
thereafter, when the pension was not granted, the original
petitioner was constrained to prefer the writ petition. Even till
today as per the communication dated 11.2.2016, the department
C/LPA/969/2022 ORDER DATED: 13/09/2022
has kept the application of the original petitioner for voluntary
retirement under process though the original petitioner has retired
way back on 31.5.2013. He, therefore, would submit that there is
total non-application of mind on the part of the appellant
authorities and, therefore, learned Single Judge has committed no
error in allowing the writ petition of the original petitioner. He
would further submit that even otherwise, the learned Single Judge
has granted pension and retiral benefits from 31.5.2013 and,
therefore, the present appeal may be dismissed.
5. We have heard learned advocates appearing for the
respective parties and gone through the documents produced along
with the writ petition. The undisputed facts are that the original
petitioner joined services as Range Forest Officer on 01.05.1978.
Thereafter, original petitioner proceeded on leave from 9.10.2000
and the said leaves were sanctioned by the State authorities. In
the interregnum, the original petitioner tendered an application
dated 31.07.2001 seeking permission to retire voluntarily from
service with effect from 01.11.2001, giving notice period of 90
days. Thereafter, correspondence ensued between the authorities
as well as with the original petitioner and ultimately, the original
petitioner got retired on 31.5.2013 upon attaining age of
superannuation. Hence, now the only question is to be considered
whether communication dated 24.11.2003 which is heavily relied
upon by the State authorities can be considered as if the
application for voluntary retirement was considered and rejected or
not. If the communication dated 24.11.2003 is perused, the gist of
the reference is that the application of the original petitioner for
voluntary retirement cannot be considered because he was seeking
voluntary retirement from back date. However, the same is not
C/LPA/969/2022 ORDER DATED: 13/09/2022
correct in view of the application dated 31.7.2001 (page 10 of the
writ petition). In the said application, it was made clear by the
original petitioner that he intends to voluntary retire from
1.11.2001 i.e. after completion of notice period of 90 days.
Therefore, it cannot be said that his application was rejected and
he was seeking voluntary retirement from back date. Apart from
this aspect, subsequent internal correspondence of the year 2005
as well as communication dated 11.2.2016 makes it clear that the
case of the original petitioner for voluntary retirement has never
been finalized and till date, no appropriate decision has been taken
by the appellant authorities. In the meantime, the original
petitioner got retired from service on reaching the age of
superannuation on 31.5.2013. Hence, we are of the opinion that
learned Single Judge has rightly accepted the case of the original
petitioner and has rightly awarded pension and other retiral
benefits from 31.5.2013. There is no merit in the present appeal
and hence, the present appeal stands dismissed. Connected
application also stands dismissed.
6. In view of the fact that the original petitioner is a senior
citizen and is waiting for the fruits of his retirement from 2001, this
Court would have imposed cost upon the appellant authorities.
However, since the order of learned Single Judge is complied with
by the appellant authorities, we deem it proper not to impose cost
upon the appellant authorities.
Sd/-
(A. J. DESAI, J)
Sd/-
(MAUNA M. BHATT, J)
SAVARIYA
