VRAJKUMAR RAMANLAL SHAH Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Admit. We have heard the learned advocates for both sides on merits and at lengths. We therefore propose to dispose of this appeal finally. Ms. Gajjar learned assistant Government Pleader waives service of notice of admission on behalf of respondents.

(2.) Vrajkumar Ramanlal Shah original petitioner in petition bearing SCA No. 1041 of 1995 has preferred the present appeal against the order of dismissal of his petition passed by the learned Single Judge on 5th July, 1997.

(3.) Appellant Vrajkumar Joined the sevices of the State of Gujarat as an Assistant Engineer (Mechanical) on 1.8.1965. In May, 1896 the appellant had decided to go abroad (USA). He therefore, had applied for obtaining a passport and he had also applied for long leave. As per the Government circular dated 9th March, 1981 the appellant-petitioner had made a dcclarartion on 8th May, 1986 that if he falied to resume his duty under Government of Gujarat after the expiry of the period of the leave that may be granted to him, the said declaration shall be considered as his resignation from Government service and the Government may proceed further as if he has resinged from Government service. Thereafter, a No Objecrion certificate for the purpose of issuing passport was issued and he was granted leave from 4.11.1986 to 31.1.1987 with prefix 30.10.1986 to 6.11.1986 suffix. Thereafter the appellant left India and went to USA. 3A. But appellant did not resume his duty after the expiry of his leave and applied for extension of leave from 1.2.1987 to 30.6.1987. Again applied for half pay leave by sending application on 16.6.1987 for the period running between 1.8.1987 and 31.11.1987. But even thereafter the pertitioner never retuned from USA nor did he resume his duty. But he sent an application dated 20.1.1988 seeking voluuntary retirement. He then never resumed his duty and made repeated request to grant him vocuntary retirement and to award pensionary benefits by his letters of 17.5.1988 and 19.5.1988. Hence on 18.8.1989 the Disciplinary authority passed an order to treat the declaration given by the appellant as a resignation with effect from 4.11.1986. The petitioner-appellant has also alleged that he made an attempt to resume his duties by sending letter dated 20.6.86 but his request was refused by the letter dated 21.8.1988. He further alleged that the act of the respondents in not accepting his voluntary retirement and denial of retirement benefits to him is violative of Articles 14, 19 and 20 of the Constitution of India. He therefore, seeks a writ mandamus and to declare that the act of the respondents in not paying the retirtement benefits to the petitioner is absolutely wrong, illegel, arbitrary, malicious and contrary to the provision of Articles 14, 16, 19 and 20 of the Constitution of India and to direct the respondent to make payment of retirement benefits to the petitioner-appellant.