SURYAKANT CHIMANLAL PATEL Vs. STATE OF GUJARAT

JUDGEMENT

(1.) WITH the consent of the learned advocates, the Appeal is heard and finally decided today. Feeling aggrieved by the judgment and order dated 16th March, 2009 passed by the learned Single Judge, the appellant - writ petitioner has preferred the present Appeal under clause 15 of the Letters Patent.

(2.) THE appellant joined the service of the government of Gujarat in Class-III service as Laboratory Technician under the respondent No. 3 - Commissioner of Health, medical Services and Medical Education. After serving for more than 30 years; while he was posted as Senior Scientific Assistant (Class-II) at Dahod, on 6th September, 2005, he submitted application for voluntary retirement effective from 31st December, 2005. It appears that after 31st December, 2005, at the request of the superior Officer, the appellant continued to serve as Biologist till 30th November, 2006. The absence of the appellant since 1st December, 2006 was treated as absence from duty without pay. In view of Rule 16 of the Gujarat Civil Services (Leave) Rules, 2002 (hereinafter referred to as "the Leave Rules"), after a period of lapse of one year the appellant was deemed to have resigned from service. On 1st august, 2008 he was informed that his application for voluntary retirement was not accepted. By Resolution dated 18th October, 2008, weeks before the appellant reached the age of superannuation, the appellant was deemed to have resigned from service from 1st December, 2006, the date since when the appellant did not report for duty. Feeling aggrieved, the appellant preferred the above special Civil Application No. 13587/2008 before this Court.

(3.) THE petition was contested by the state Government. In the counter-affidavit, the State Government referred to the appellant's continuous absence from service since 1st December, 2006 and above referred Rule 16 of the Leave Rules.