Bhartiben Chandrakantbhai Thakor vs The State Of Gujarat

Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

Civil Appeal No 24 of 2013

Bhartiben Chandrakantbhai Thakor Appellant

Versus

State of Gujarat and Others Respondents

JUDGMENT

Dr Dhananjaya Y Chandrachud, CJI

1 The appellant was appointed as an Auxiliary Nurse Midwife by the District

Panchayat, Valsad on 15 January 1980. She submitted her resignation from

service on 18 April 1993, but on 23 November 1993, withdrew it. On 20

December 1993, she was called upon to resume service. She was however

not permitted to join until 16 April 1994. On 23/26 December 1994, an order

Signature Not Verified was passed accepting her resignation with effect from 31 March 1993. This Digitally signed by CHETAN KUMAR Date: 2023.03.02 16:11:34 IST Reason: CA 24/2013 2

gave rise to the institution of a petition 1 under Article 226 of the Constitution

by the appellant.

2 By a judgment dated 12 October 2000, a Single Judge of the High Court of

Gujarat set aside the order dated 23/26 December 1994 and directed that

the appellant would be entitled to all consequential benefits.

3 In a Letters Patent Appeal 2 filed by the State of Gujarat, a Division Bench of

the High Court found that the appellant had not been allowed to resume her

duties for no fault of hers. However, the Division Bench directed that the

appellant shall not be entitled to any benefits for the period for which the

resignation was in force.

4 The above narration indicates that the issue pertaining to the resignation of

the appellant attained finality with the judgment of the Division Bench dated

22 February 2001. Evidently, the appellant had withdrawn her resignation

prior to its acceptance. The subsequent order of the Government accepting

her resignation in December 1994 with effect from 31 March 1993 was of no

consequence in law. The consequence of the decision of the High Court was

that the resignation of the appellant from service which was withdrawn on 23

November 1993 would not have any legal effect. The only consequence of

the judgment of the Division Bench was that whereas the Single Judge had

directed that the appellant would be entitled to all consequential benefits,

1 Special Civil Appeal No 10418 of 1995 2 Letters Patent Appeal No 97 of 2001 CA 24/2013 3

the Division Bench held that she would not be entitled to benefits for the

period for which the resignation was in force. In other words, this period

would be from 18 April 1993 until 23 November 1993.

5 Despite the above legal position, an order was initially passed on 8 April

2002 by the respondent holding that (i) the period from 24 November 1993

to 30 March 2001 would be treated as unauthorized leave; and (ii) the above

period would be considered as a break in service without salary.

Subsequently on 17 July 2002, a similar order was passed treating the period

of resignation as unauthorized leave.

6 The two orders dated 8 April 2002 and 17 July 2002 led to the institution of

fresh proceedings3 under Article 226 of the Constitution. By a judgment

dated 9 August 2004, a Single Judge of the High Court quashed and set aside

both the above orders dated 8 April 2002 and 17 July 2002. The respondents

were directed to pay all the benefits for the period from 24 November 1993

till 30 March 2001 together with interest at 9% from 22 February 2001. The

amount was paid in 2004 and the interest element was paid in 2012.

Significantly, the judgment of the High Court dated 9 August 2004 attained

finality. There was no appeal against the decision.

7 On 16 July 2005, a third order was passed by the respondents holding the

following period as unauthorized leave and to be treated as a break in

3 Special Civil Application No 9723 of 2002 CA 24/2013 4

service, namely;

(i) 21 June 1988 – 31 July 1988 - 41 days;

(ii) 18 April 1993 – 23 November 1993 - 220 days; and

(iii) 6 November 1991 – 7 April 1993 - 521 days

8 The above order gave rise to a third petition4 under Article 226 at the

instance of the appellant. By its impugned judgment dated 25 July 2006, the

High Court has held that no continuity of service could be granted on

account of her absence from service over a period of 782 days, as noted

above. The judgment of the Single Judge dated 25 July 2006 has been

affirmed in appeal by the Division Bench on 17 February 2009. The matter

has hence travelled to this Court.

9 We have heard Mr Nachiketa Joshi, counsel appearing on behalf of 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 resignation was passed

much thereafter on 23/26 December 1994. This order was set aside by the

High Court. While the Single Judge had directed the grant of all consequential

benefits, the Division Bench in a Letters Patent Appeal modified the

judgment to the extent that the appellant was held not to be entitled to any

benefits for the period for which the resignation was in force. Hence, as a

4 Special Civil Application No 14636 of 2006 CA 24/2013 5

consequence of the judgment of the Division Bench in the Letters Patent

Appeal, the appellant was not entitled to any consequential benefits between

18 April 1993 and 20 December 1993.

11 The expression “for the period for which resignation was in force” cannot be

stretched to a date after the resignation had been withdrawn on 23

November 1993 before it came into force.

12 Despite the above position, two orders were passed thereafter on 8 April

2002 and 17 July 2002. Both the orders were set aside by the High Court on

9 August 2004 with a direction to the respondents to pay consequential

benefits between November 1993 and March 2001 with interest.

13 Even after the appellant succeeded in the second writ petition, a further

order was passed on 16 July 2005. Of the three periods which are referred to

in the third order dated 16 July 2005, it is evident that the first period of 41

days is between June 1988 and July 1988 which is prior to the date of the

resignation from service. The second period between April and November

1993 of 220 days is the period after the submission of the resignation and till

its withdrawal which already formed the subject matter of the order passed

by the Division Bench on 22 February 2001. The final period of 521 days

however is between 6 November 1991 and 7 April 1993. This period has

been set up in the order which was passed on 16 July 2005. Clearly, it was

not open to the State to continue passing successive order of this nature CA 24/2013 6

once the dispute over the period of resignation and the manner in which the

resignation had to be treated had attained finality. The appellant was not

entitled to any consequential benefits only for the period between 18 April

1993 to 23 November 1993.

14 The appellant has been granted voluntary retirement from service on 30

November 2011. For the last 11 years, the appellant has been granted only

provisional pension. The order by which the appellant has been permitted to

retire voluntarily indicates that the appellant completed 24 years 10 months

and 5 days of pensionable service out of a total service of 31 years 8 months

and 15 days after deducting 6 years 10 months and 5 days.

15 For the reasons which we have indicated in the text of this judgment, we

have come to the conclusion that the appellant should be treated to have

completed the minimum pensionable service of 25 years. The pensionary

dues payable to the appellant shall be computed on that basis regardless of

any order which may have been passed by the State government. The

pensionary payments to which the appellant is entitled on the basis that she

has completed 25 years of pensionable service shall be computed within a

period of two months from the date of this order. The arrears of pension

payable to the appellant with effect from the date on which her voluntary

retirement from service was accepted shall be paid over to the appellant

within a period of one month thereafter together with interest at the rate of

6% per annum.

CA 24/2013 7

16 The appeal is allowed in the above terms and the impugned judgment of the

High Court dated 17 February 2009 is set aside.

17 Pending applications, if any, stand disposed of.

….....…...….......…………………..CJI.

[Dr Dhananjaya Y Chandrachud]

..…....…........……………….…........J. [Pamidighantam Sri Narasimha]

..…....…........……………….…........J. [J B Pardiwala]

New Delhi;

February 27, 2023 CKB