BHARTIBEN CHANDRAKANTBHAI THAKOR versus STATE OF GUJARAT AND OTHERS on 27 February 2023

1. The appellant was appointed as an Auxiliary Nurse Midwife bythe District Panchayat, Valsad on 15 January 1980. She submitted herresignation from service on 18 April 1993, but on 23 November 1993,withdrew it. On 20 December 1993, she was called upon to resumeservice. She was however not permitted to join until 16 April 1994. On23/26 December 1994, an order was passed accepting her resignationwith effect from 31 March 1993. This gave rise to the institution of apetition[1] under Article 226 of the Constitution by the appellant.

2. By a judgment dated 12 October 2000, a Single Judge of theHigh Court of Gujarat set aside the order dated 23/26 December 1994and directed that the appellant would be entitled to all consequentialbenefits.

3. In a Letters Patent Appeal[2] filed by the State of Gujarat, aDivision Bench of the High Court found that the appellant had not beenallowed to resume her duties for no fault of hers. However, the DivisionBench directed that the appellant shall not be entitled to any benefits forthe period for which the resignation was in force.

4. The above narration indicates that the issue pertaining to theresignation of the appellant attained finality with the judgment of theDivision Bench dated 22 February 2001. Evidently, the appellant hadwithdrawn her resignation prior to its acceptance. The subsequent orderof the Government accepting her resignation in December 1994 witheffect from 31 March 1993 was of no consequence in law. Theconsequence of the decision of the High Court was that the resignationof the appellant from service which was withdrawn on 23 November1993 would not have any legal effect. The only consequence of thejudgment of the Division Bench was that whereas the Single Judge had 1 Special Civil Appeal No 10418 of 1995

2 Letters Patent Appeal No 97 of 2001

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Adirected that the appellant would be entitled to all consequential benefits,the Division Bench held that she would not be entitled to benefits for theperiod for which the resignation was in force. In other words, this periodwould be from 18 April 1993 until 23 November 1993.

5. Despite the above legal position, an order was initially passedBon 8 April 2002 by the respondent holding that (i) the period from 24November 1993 to 30 March 2001 would be treated as unauthorizedleave; and (ii) the above period would be considered as a break in servicewithout salary. Subsequently on 17 July 2002, a similar order was passedtreating the period of resignation as unauthorized leave.

6. The two orders dated 8 April 2002 and 17 July 2002 led to theCinstitution of fresh proceedings[3] under Article 226 of the Constitution.By a judgment dated 9 August 2004, a Single Judge of the High Courtquashed and set aside both the above orders dated 8 April 2002 and 17July 2002. The respondents were directed to pay all the benefits for theperiod from 24 November 1993 till 30 March 2001 together with interestDat 9% from 22 February 2001. The amount was paid in 2004 and theinterest element was paid in 2012. Significantly, the judgment of theHigh Court dated 9 August 2004 attained finality. There was no appealagainst the decision.

7. On 16 July 2005, a third order was passed by the respondentsEholding the following period as unauthorized leave and to be treated as abreak in service, namely; -(i) 21 June 1988 – 31 July 198841 days;(ii) 18 April 1993 – 23 November 1993 -220 days; and-F(iii) 6 November 1991 – 7 April 1993521 days

8. The above order gave rise to a third petition[4] under Article 226at the instance of the appellant. By its impugned judgment dated 25 July2006, the High Court has held that no continuity of service could begranted on account of her absence from service over a period of 782Gdays, as noted above. The judgment of the Single Judge dated 25 July2006 has been affirmed in appeal by the Division Bench on 17 February2009. The matter has hence travelled to this Court.

3 Special Civil Application No 9723 of 2002

4 Special Civil Application No 14636 of 2006

9. We have heard Mr Nachiketa Joshi, counsel appearing on behalfof the appellant and Ms Swati Ghildiyal, counsel for the State of Gujarat.

10. The appellant had submitted her resignation on 18 April 1993,but withdrew it on 23 November 1993. The order accepting the resignationwas passed much thereafter on 23/26 December 1994. This order wasset aside by the High Court. While the Single Judge had directed thegrant of all consequential benefits, the Division Bench in a Letters PatentAppeal modified the judgment to the extent that the appellant was heldnot to be entitled to any benefits for the period for which the resignationwas in force. Hence, as a consequence of the judgment of the DivisionBench in the Letters Patent Appeal, the appellant was not entitled to anyconsequential benefits between 18 April 1993 and 20 December 1993.

11. The expression “for the period for which resignation was inforce” cannot be stretched to a date after the resignation had beenwithdrawn on 23 November 1993 before it came into force.

12. Despite the above position, two orders were passed thereafteron 8 April 2002 and 17 July 2002. Both the orders were set aside by theHigh Court on 9 August 2004 with a direction to the respondents to payconsequential benefits between November 1993 and March 2001 withinterest.

13. Even after the appellant succeeded in the second writ petition,a further order was passed on 16 July 2005. Of the three periods whichare referred to in the third order dated 16 July 2005, it is evident that thefirst period of 41 days is between June 1988 and July 1988 which is priorto the date of the resignation from service. The second period betweenApril and November 1993 of 220 days is the period after the submissionof the resignation and till its withdrawal which already formed the subjectmatter of the order passed by the Division Bench on 22 February 2001.The final period of 521 days however is between 6 November 1991 and7 April 1993. This period has been set up in the order which was passedon 16 July 2005. Clearly, it was not open to the State to continue passingsuccessive order of this nature once the dispute over the period ofresignation and the manner in which the resignation had to be treatedhad attained finality. The appellant was not entitled to any consequentialbenefits only for the period between 18 April 1993 to 23 November1993.

14. The appellant has been granted voluntary retirement fromservice on 30 November 2011. For the last 11 years, the appellant has AB

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Abeen granted only provisional pension. The order by which the appellanthas been permitted to retire voluntarily indicates that the appellantcompleted 24 years 10 months and 5 days of pensionable service out ofa total service of 31 years 8 months and 15 days after deducting 6 years10 months and 5 days.

B15. For the reasons which we have indicated in the text of thisjudgment, we have come to the conclusion that the appellant should betreated to have completed the minimum pensionable service of 25 years.The pensionary dues payable to the appellant shall be computed on thatbasis regardless of any order which may have been passed by the Stategovernment. The pensionary payments to which the appellant is entitledCon the basis that she has completed 25 years of pensionable serviceshall be computed within a period of two months from the date of thisorder. The arrears of pension payable to the appellant with effect fromthe date on which her voluntary retirement from service was acceptedshall be paid over to the appellant within a period of one month thereafterDtogether with interest at the rate of 6% per annum.

16. The appeal is allowed in the above terms and the impugnedjudgment of the High Court dated 17 February 2009 is set aside.

17. Pending applications, if any, stand disposed of.

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Nidhi Jain(Assisted by : Rakhi, LCRA)

Appeal allowed.

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