Kanksinh Baldevsinh Solanki vs State Of Gujarat
2022 Latest Caselaw 8427 Guj

    C/SCA/16977/2022                             JUDGMENT DATED: 26/09/2022




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 16977 of 2022


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE BIREN VAISHNAV

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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 ?

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                       KANKSINH BALDEVSINH SOLANKI
                                  Versus
                            STATE OF GUJARAT
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Appearance:
MR KB PUJARA(680) for the Petitioner(s) No. 1
MR. SOAHAM JOSHI, ASSISTANT GOVERNMENT PLEADER, for the
Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 1,2,3,4
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    CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV

                             Date : 26/09/2022

                             ORAL JUDGMENT

1 Rule returnable forthwith. Mr.Soaham Joshi, learned

AGP, waives service of notice of rule on behalf of the

C/SCA/16977/2022 JUDGMENT DATED: 26/09/2022

respondent - State. Heard Mr.K.B.Pujara, learned counsel

for the petitioner and Mr.Soaham Joshi, learned Assistant

Government Pleader for the State.

2 Can a resignation of an employee serving under the

Police Force and wanting to accept a job which is offered

to him as a Vidya-Sahayak on he being so appointed,

despite a criminal prosecution and / or the suspension

pending against him for his alleged omission while

discharging his duties under the Police Department be

accepted is the question.

3 Facts in brief would indicate that the petitioner was

appointed as a State Reserve Police Constable on

18.10.2013. On 05.11.2020, pursuant to lodging of an FIR

being FIR No. 5/2020 dated 01.11.2020 for offences

under Sections 7,12 and 13(2) of the Prevention of

Corruption Act, the petitioner was suspended by an order

dated 02.11.2020.

C/SCA/16977/2022 JUDGMENT DATED: 26/09/2022

3.1 While under suspension for over a period of two

years, due to the pendency of the criminal case, on he

having applied for the post of Vidya-Sahayak, by the order

dated 09.09.2022, the District Panchayat Education

Committee, Banaskantha, has appointed the petitioner as

Vidya-Sahayak.

3.2 As a result of District Selection held on 18.08.2022,

the petitioner tendered his resignation from the Police

Department on 22.08.2022. On 05.09.2022, the petitioner

also tendered one month salary in light of Rule 36 of the

Gujarat Civil Services (General Conditions of Service)

Rules, 2002.

3.3 Mr.Pujara, learned counsel for the petitioner would

submit that having tendered his resignation in

accordance with law, though the position prevailing

before the amendment would entitle the previous

employer to reject the resignation of the petitioner, but

now in view of the amendment of 03.01.2006 by which

C/SCA/16977/2022 JUDGMENT DATED: 26/09/2022

the proviso has been added to Rule 36, it is open for the

department to accept his resignation even if a criminal

prosecution is pending and the order relieving him can

specify of the pendency of the criminal prosecution. He

would therefore submit that once one month has gone by

post his information to the department and there being no

order of rejection, the proviso of Rule 36 should operate

and the petitioner should be relieved from his duties as

an SRP Constable so that he be permitted to report as

Vidya-Sahayak under the District Primary Education

Committee, Banaskantha.

4 Mr.Soaham Joshi, learned AGP, would submit that

the petitioner was suspended on 02.11.2020 in light of a

criminal case being lodged against the petitioner under

the Prevention of Corruption Act. The allegation is that

the petitioner has demanded an amount of Rs.3 lakhs of

which an FIR is filed. The allegation is serious for which

the petitioner is suspended, and therefore, in light of sub-

rule (b) of Rule 36 of the General Conditions of Service

C/SCA/16977/2022 JUDGMENT DATED: 26/09/2022

Rules, the resignation cannot be accepted.

4.1 Alternatively, the submission of Mr.Joshi, learned

AGP is that the Civil Services Rules will not apply. The

applicable rules in the case of the petitioner would be the

Bombay Police (Discipline & Appeal) Rules from time to

time under Sec.25 of the Bombay Police Act, 1951, which

prescribes for appointments to the members of the

subordinate ranks of the Police Department. Reliance was

placed on a Circular of the Government dated 07.10.2006

which indicates that such an employee must be continued

under suspension and/or his request for transfer need not

be entertained.

5 Considering the submissions made by the learned

counsels for the respective parties, what needs to be

appreciated is that the petitioner was suspended on

02.11.2020 pursuant to lodging of an FIR under the

Prevention of Corruption Act. The petitioner has been

enlarged on bail by an order of this Court dated

C/SCA/16977/2022 JUDGMENT DATED: 26/09/2022

20.04.2021. The suspension pursuant to the FIR has

continued for over a period of two years. Obviously

therefore, the pendency of the criminal case and the

prosecution time lag which is uncertain would keep the

petitioner under suspension without a particular time

schedule. Reading the order of suspension would indicate

that but for an involvement in a criminal case, the

suspension would not have occurred.

5.1 The appointment letter of 09.09.2022 indicates that

the petitioner was to report for his duty as Vidya-Sahayak

within a period of seven days from the date of the

appointment letter. Reading the Gujarat Civil Services

(General Conditions of Service) Rules, indicates that

except where it is otherwise expressly or impliedly

provided, these rules apply to all members of service and

holders of posts whose conditions of service the

Government of Gujarat is competent to prescribe. Rule 36

of the Rules, reads as under:

" 36. Resignation from Government Service:-

C/SCA/16977/2022 JUDGMENT DATED: 26/09/2022

(1) A Government employee may at any time resign from the services of the State by giving a notice of one month in writing to the appointing authority. Provided that in the case of a temporary employee who has put in service of less than one year, the period of such notice shall be one week.

Note : Nothing in this rule shall affect the provisions of any special contract of service or bond entered into by the Government employee with the Government, or the provisions of any special rules, if any, applicable to him, in respect of the period of notice to be given for resignation from service or payment of any sum by the Government employee, to the Government for premature resignation by him.

(2) The resignation tendered by a Government employee shall be effective from the date on which it is accepted by the appointing authority; but if it is not accepted before the expiry of the period of notice for resignation to be given by such employee under subrule (1), it shall be deemed to have become effective on the date of the expiry of such period, unless the Government employee is informed before such date, that his resignation has been rejected and of the reasons for such rejection :

Provided that the resignation of a Government employee shall not be rejected except in a case where -

(a) any ascertained or ascertainable amount of money is found outstanding against him and payment thereof is not made by him within the period mentioned above,

(b) he is under suspension,

(c) any departmental inquiry or criminal prosecution is contemplated or pending against him.

C/SCA/16977/2022 JUDGMENT DATED: 26/09/2022

(3) A Government employee shall not be relieved from his office, if his resignation is rejected.

(4) Where a Government employee remains absent from duty before his resignation has become effective or if his resignation has been rejected without prior grant of leave for such absence, it shall be lawful for the competent authority to treat his absence as leave without pay and to take disciplinary action against him for unauthorised absence from duty.

(5) Any notice of resignation from service shall not be permitted to be withdrawn after the resignation has become effective, except on exceptional ground or in public interest.

(6) Where the temporary Government employee has put in service for a period exceeding one year, the period of such notice shall be one month and where such Government employee has put in service for one year or any period less than one year the period of such notice shall be one week. Provided that the service of any such Government employee may be terminated forthwith by payment to him of a sum equivalent to the amount of his pay plus allowance for the period of the notice at the same rates at which he was drawing pay and allowances immediately before the termination of his service, or as the case may be, for the period by which such notice falls short of the notice period.

(7) Where a notice is given by the authority other than Government terminating the services of a temporary Government employee or where the services of any such Government employee is terminated by an authority other than the Government either on the expiry of the period of such notice or forthwith by payment of pay plus

C/SCA/16977/2022 JUDGMENT DATED: 26/09/2022

allowances, the Government may, of its own motion or otherwise reopen the case and after calling of the records of the case and after making such inquiry as it deemed fit

(i) confirm the action taken by the authority;

(ii) withdraw the notice;

(iii) re-instate the Government employee in service, or

(iv) make such other order in the case as it may consider proper. Provided that except in special circumstances, which shall be recorded in writing, no case shall be reopened under this sub-rule after the expiry of three months.

(i) from the date of notice in case where notice is given;

(ii) from the date of termination of service, in a case where no notice is given.

(8) Where a Government employee is re-instated in service under sub-rule-(7), the order of re- instatement shall specify -

(i) the amount or proportion of pay and allowance, if any, to be paid to the Government employee for the period of his absence between the date of termination of his service and the date of his reinstatement; and

(ii) whether the said period shall be treated as a period spent on duty for any specified purpose or purposes."

5.2 Subsequent amendment by a Notification dated

03.01.2006 which added proviso to the rules, read as

under:

"36. Resignation from Government Service:

XXX XXX XXX

(c) any departmental inquiry or criminal prosecution

C/SCA/16977/2022 JUDGMENT DATED: 26/09/2022

is contemplated or pending against him.

"Provided further that in case where criminal prosecution is pending against a Government Employee and resignation is accepted, the order in this regard shall specify that the criminal prosecution is pending against him.".

6 Apparent therefore it is that in case of a pending

criminal prosecution, as is the case on hand, it is open for

the authorities to relieve and accept resignation on a

condition that his relieving order shall reflect the

pendency of such criminal prosecution. This brings us to

the question of whether the applicability of the Bombay

Police (Punishment, Appeal & Discipline) Rules can apply

to the case on hand. Section 25 of the Bombay Police Act

when read indicates that it relates to the powers of the

police force to pass orders of punishment in departmental

proceedings. Resort to suspension is one of such powers

in light of the Bombay Police (Punishment & Appeal)

Rules, 1956.

6.1 Be it noted that in the present case, suspension is

not reflected as a penalty as departmental punishment is

C/SCA/16977/2022 JUDGMENT DATED: 26/09/2022

sought to be relied upon by the learned AGP. True it is

that the petitioner is suspended, and therefore, while

objecting to the applicability of the Civil Services Rules,

the government falls back upon Sub-Rule 2 of the Civil

Services Condition Rules, stating that since he is under

suspension he cannot be relieved.

6.2 What needs to be appreciated is that but for the

pending criminal prosecution, the petitioner could not

have been suspended. It is an admitted position that no

departmental proceedings are pending against the

petitioner. The proviso to Rule 36, in the opinion of this

Court will be applicable and in light of the petitioner

having complied with the provisions of Rule 36(1)

inasmuch as, even a notice of one month by paying the

salary for the month of August 2022, there is no reason

that his resignation should not be accepted with a rider

as provided in the proviso to Rule 36 of the Gujarat Civil

Services (General Conditions of Service) Rules.

C/SCA/16977/2022 JUDGMENT DATED: 26/09/2022

7 Accordingly, the petition is allowed. The respondents

Nos. 1 to 3 are directed to forthwith accept the

resignation of the petitioner dated 22.08.2022 and relieve

him from the post of S.R.P Constable within a period of

two weeks from the date of receipt of the copy of this

order so as to enable the petitioner to join his services

under the District Primary Education Officer,

Banaskantha, as Vidya-Sahayak pursuant to the order

dated 09.09.2022. On the resignation being accepted, the

petitioner shall report within a week thereafter. Rule is

made absolute to the above extent. Direct service is

permitted.

(BIREN VAISHNAV, J) BIMAL