SHASHIKALA PARASHAR Vs. STATE OF GOA

JUDGEMENT

(1.) BY the present petition, the petitioner is challenging the order dated 10th October 1990 passed by the respondents retiring the petitioner with effect from 1st October 1990. The petitioner was working as an Associate Professor of Medicine in the Goa Medical College until the impugned order was served on her. While in service, the petitioner on account of personal reasons addressed a letter to the Government of Goa expressing her desire to retire from services with effect from 1st October 1990. However, on account of sudden development in the family circumstances, the petitioner wrote another letter dated 11th August 1990 requesting the Government to keep in abeyance her request for voluntary retirement. Being under the bona fide belief that her request for voluntary retirement having been kept in abeyance pursuant to her request, she continued to discharge her functions as Associate Professor of Medicine and even discharged the additional duties assigned to her during the resident doctors strike in Goa. The petitioner further states that she continued to work even after 1st October 1990 and went on leave on 12th October 1990 and on having resumed her duties on 13th October 1990, on the close of working hours of the said day itself she was served with the impugned order dated 10th October 1990 where she was informed that her letter seeking voluntary retirement was given effect to from the afternoon of 1st October 1990. According to the petitioner, she was totally dumb-founded on that turn of events. However, in view of the impugned order she did not attend to her duties from 14th October 1990. Moreover, on 13th October 1990 itself she submitted a letter through proper channel addressed to the Under Secretary, Health stating that she had worked till Saturday the 13th October 1990 even having done 24 hours duty during the strike period and that she has earned her vacation from Monday 15th October 1990 to 30th October 1990 by virtue of her working till 13th October 1990 and that she should be paid her salary upto 30th October 1990, a copy of the said letter dated 13th October 1990 is also placed on the record.

(2.) SHRI M. S, Sonak, the learned advocate appearing for the petitioner, while assailing the impugned order submitted that the respondents could not have given effect to her letter dated 5th July 1990 pursuant to her subsequent letter dated 11th August 1990 wherein she had requested to keep in abeyance her letter of 5th July 1990. Placing reliance on the judgment of the Apex Court in the matter of (Balram Gupta v. Union of India and another) reported in A. I. R. 1987 S. C. 2354, the learned advocate submitted that once the petitioner had expressed her desire to keep her request for voluntary retirement in abeyance, it ought to have been construed that she had changed her mind to retire from 1st October 1990 and that, therefore, there was no request from her available with the Government for voluntary retirement. The learned advocate further placed reliance upon the definition of the term abeyance in the Oxford English Dictionary as well as in Blacks Law Dictionary as well as from Legal Thesaurus (Second Edition) by William C. Burton to make his point good that by letter dated 11th August 1990, the petitioner had in fact communicated to the Government not to act upon her original letter by which she had expressed desire for voluntary retirement. Shri Sonak further submitted that in view of the fact that there has been no counter to the petition, the averments made in the petition are deemed to have been accepted and there being no dispute about any facts stated in the petition, the petitioner is entitled for the writ of mandamus to the respondents to allow the petitioner to resume her duties with effect from 14th October 1990 as if she had been in continuous employment and for payment of full back wages alongwith consequential benefits.

(3.) SHRI Sonak further submitted that from the fact that the petitioner continued to work even after 1st October 1990 and there had been no objection on the part of the respondents for her continuation in the employment from 1st October 1990 onwards, itself shows that the respondents had acted upon the letter dated 11th August 1990 wherein the petitioner had requested the Government not to act upon her original letter dated 5th July 1990. He further submits that the sudden change in the stand of the respondent No. 1 which was disclosed by the impugned order clearly discloses arbitrariness on the part of respondent No. 1 in issuing the said order inasmuch as that the said order has been passed on the basis of a letter which was withdrawn for all purposes and, therefore, a non-existing letter. According to Shri Sonak, the respondents were not entitled to act in terms of Rule 48-A of the Central Civil Services (Pension) Rules, 1972, in view of the fact that the petitioner by her letter dated 11th August 1990 had pointed out that the petitioner wanted to keep her letter of voluntary retirement in abeyance in view of family reasons.