M.K. JOSHI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) By this writapplication under Article 226 of the Constitution of India, the petitioner a former Assistant Geologist has prayed for the following reliefs: 8(A) declare and hold that the petitioner has retired from the service of the Government of Gujarat w.e.f.29/02/2008, and (B) further be pleased to direct the respondent authorities to make payment of retirement dues to the petitioner as per rules, with interest at the rate which the Honourable Court may consider as just and proper in the facts and circumstances of the case, and (C) award the cost of the petition, and (D) pending admission and final disposal of this petition, the Honourable Court may be pleased to direct the respondent authorities to make payment of provident fund, provisional pension, provisional gratuity and leave encashment to the petitioner, and (E) pending admission and final disposal of this petition, the Honourable Court may be pleased to restrain the respondent authorities from asking the petitioner to resume his duties and/or (F) grant any other relief or pass any other order which the Honourable Court may consider as just and proper in the facts and circumstances of the case.

(2.) The facts of the present case may be summarized as under: 2.1 The petitioner joined the service of the Government of Gujarat on 09/10/1979 in the Geology and Mining Department. On completion of more than 25 years of service, he preferred an application dtd. 03/11/2007 addressed to the competent authority for voluntary retirement w.e.f.29/02/2008. 2.2 The petitioner did not hear anything as regards his application for voluntary retirement and therefore, it was presumed that the same had been accepted and the petitioner stood voluntary retired w.e.f.29/02/2008. Since the Government did not sanction the retiral dues, he had to prefer a representation in that regard. The State Government informed the petitioner in writing on 03/05/2008 that the department had not received any application for voluntary retirement and therefore, there was no question of considering the same. He was further informed that, in view of the fact that no such application was received, there was no question of sanctioning any provisional pension. The petitioner thereafter sought necessary information in this regard under the Right to Information Act. By communication dtd. 22/07/2008, the petitioner was informed that his application dtd. 03/11/2007 for voluntary retirement was received on 06/11/2007 by his superior with the Inward No.1930 and the superior thereafter forwarded the same to the office of the Commissioner, Geology and Mining Department, on 16/11/2007. 2.3 As the petitioner has not been paid any retiral dues, he had to come before this Court by way of this writapplication.

(3.) Ms. Pandya, the learned counsel appearing for the petitioner submitted that her client had preferred an application for voluntary retirement in terms of the provisions of the Rule 49 of the Gujarat Civil Services (Pension) Rules 2002. Ms. Pandya laid much emphasis on the proviso to Rule 49(2) which provides that where the appointing authority does not refuse to grant the permission for retirement before the expiry of the period specified in the said notice, the retirement shall become effective from the date of expiry of the said period. According to Ms. Pandya, her client could be said to have retired from service on expiry of the period stated in the application by virtue of the deeming fiction.