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2009 DIGILAW 247 (GUJ)

P. N. Bavishi v. State Of Gujarat

2009-04-02

H.N.DEVANI, MOHIT S.SHAH

body2009
JUDGMENT : Mohit S. Shah, J. In this petition under Article 226 of the Constitution, the petitioner challenges the communication dated 28.8.2008 from the State Government in the Legal Department to the High Court on the administrative side by which the petitioner's request for granting 5 notional increments is rejected. 2. The petitioner was appointed as Civil Judge (J.D.) and JMFC in the State Judicial Service in the year 1962. Departmental inquiry came to be instituted against the petitioner on the charge that when the petitioner was working as Chief Judicial Magistrate, Junagadh, the petitioner had engaged a taxi on hire for travelling to various places in the district. Thereafter, when the taxi driver requested the petitioner to pay him the taxi fare, the petitioner paid him merely Rs. 55/- as against the demand for Rs. 120/- as the rate fixed was Rs. 1 per km. and the petitioner had travelled a distance of about 120 km. Even the aforesaid amount was paid after the taxi driver had made repeated demand. The High Court on the administrative side took a view that this is a clear abuse of official position held by the petitioner and the petitioner's conduct was unbecoming of a Judicial Officer and reflects his integrity. 3. When the petitioner was called upon to explain the charge, the petitioner advanced a story that he had not undertaken any journey in the taxi. The High Court on the administrative side took a view that this act of fabricating an excuse and making a misrepresentation and attempt to misguide the superior authority is an act unbecoming of a Government servant. 4. Upon conclusion of the departmental inquiry from the above charges, the High Court on the administrative side came to the conclusion that the petitioner was guilty of first para of the charge levelled against him and recommended to the Government to remove the petitioner from service. Accordingly, by G.R. dated 5.2.1988, the petitioner was removed from service and a notification to that effect was also issued on 5.2.1988. 5. The petitioner challenged the above decision before this Court by filing Special Civil Application No. 3362 of 1988, wherein the following order came to be passed on 27.2.1992 :- "Mr. Accordingly, by G.R. dated 5.2.1988, the petitioner was removed from service and a notification to that effect was also issued on 5.2.1988. 5. The petitioner challenged the above decision before this Court by filing Special Civil Application No. 3362 of 1988, wherein the following order came to be passed on 27.2.1992 :- "Mr. Amit Panchal, Learned A.G.P. produces on record a letter written by the Registrar of this Court dated February 2, 1992 wherein it is stated that it has been decided by this Court on its administrative side to permit the petitioner to retire voluntarily from service with effect from the date of his removal on making an application to that effect. 2. In view of the above letter, Mr. A.H. Mehta, learned counsel for the petitioner seeks permission to withdraw this petition. He also states that the petitioner will make necessary application on or before March 3, 1992. In view of this letter, the learned counsel for the petitioner seeks permission to withdraw the petition. Permission granted. Petition stands disposed of as withdrawn. Rule discharged with no order as to costs. Liberty to apply in case of difficulty." 6. The petitioner accordingly made a representation and the High Court on the administrative side recommended the petitioner's case for voluntary retirement. The Government accepted the said recommendation and cancelled notification dated 5.2.1988 removing the petitioner from the service. The said Government permitted the petitioner to retire voluntarily from service with effect from the date of order of removal dated 5.2.1988. While granting the said permission to retire voluntarily, the G.R. specifically stated as under :- "However, Shri Bavishi is not permitted to get benefit of weightage of additional service in accordance with G.R.F.D. No. NVN-1070-3158-J dated 8.10.1970." 7. The relevant portion of the aforesaid G.R. dated 8.10.1970 reads as under :- "The question of liberalising the existing orders for voluntary retirement of Government servants was under consideration of the Govt. for sometime. Govt. after careful consideration is now pleased to direct that in relaxation of the provision contained in B.C.S.R. 254 and Rule 8 of the Revised Pension Rules, 1950 all Govt. servants (including Class IV employees) but excluding technical officers shall have an option to retire after completion of 25 years of qualifying service after 3 months, notice to Govt. ...... 2. Government is further pleased to direct that the Govt. servants (including Class IV employees) but excluding technical officers shall have an option to retire after completion of 25 years of qualifying service after 3 months, notice to Govt. ...... 2. Government is further pleased to direct that the Govt. Servants who seek voluntary retirement under these orders may be allowed the retirement benefits calculated in accordance with the rules existing on the date of their retirement after taking into account the additional years of notional service as mentioned below : (i) For Government servants governed by Pension Rules-(i) The service qualifying for retirement benefits should be enhanced by the addition of 5 years in such a case." 8. The petitioner thereafter went on making representations to the State Government to grant the petitioner benefit of 5 notional increments for the purpose of fixation of his pension. By reply dated 19.6.1998, the petitioner was informed by the State Government in the Legal Department that the Government had taken a decision regarding 5 notional increments after careful consideration and that the petitioner is, therefore, not entitled to notional service/increment. The said reply is produced at Annexure-D to the petition. 9. It is the petitioner's case that as it seemed to him that the said reply dated 19.6.1998 had been taken by respondent No.1 without consulting respondent No.2, the petitioner again wrote two letters to the respondents requesting for the benefit of the above-referred resolution. As the said representations were not decided, the petitioner filed Special Civil Application No. 2634 of 2006 to direct the State Government to reconsider the representation of the petitioner for granting the benefit of 5 notional increments. The petition was disposed of on 19.6.2006 by directing the Government to consider the petitioner's representation for granting him 5 notional increments which was denied to him at the time of voluntary retirement. The Court also made it clear that the representation may be considered strictly in accordance with law. The petition was accordingly permitted to be withdrawn. Ultimately, the said representation came to be rejected and the decision to that effect came to be communicated to the High Court on the administrative side by Government letter dated 28.8.2008. It is the said decision which is challenged in the present petition. 10. Mr. The petition was accordingly permitted to be withdrawn. Ultimately, the said representation came to be rejected and the decision to that effect came to be communicated to the High Court on the administrative side by Government letter dated 28.8.2008. It is the said decision which is challenged in the present petition. 10. Mr. IS Supehia, learned advocate for the petitioner has submitted that the Government Resolution dated 8.10.1970 confers the right upon the Government servant who is permitted to voluntarily retire, the benefit of 5 additional years of service for the purposes of grant of notional increments and that the Government has no discretion in the matter. Mr. Supehia further submits that the High Court on the administrative side having recommended in favour of the petitioner, the Government was bound to accept such representation and therefore also, the impugned decision is illegal. Lastly, Mr Supehia submitted that the Government decision proceeds on the basis that the Government has taken irrelevant practice into account while taking the impugned decision and therefore also, the same is illegal. 11. Having heard the learned advocate for the petitioner and having considered the submissions carefully, we do not find any substance in the petition. 12. The petitioner's grievance cannot be considered in isolation. The petitioner has faced the departmental inquiry for a serious charge. Since the petitioner was found to be guilty and the High Court had requested removal of the petitioner from service and thereby, the State Government had passed the order of removal during the course of hearing of the writ petition challenging the said order of removal, it appears that a suggestion was made to permit the petitioner to retire voluntarily from service rather than to remove the petitioner from the service. The High Court on the administrative side accordingly agreed to recommend to the Government to permit the petitioner to retire voluntarily from service with effect from the date of his making an application to that effect. Accordingly, the High Court recommended substitution of the order of removal by the order permitting the petitioner to retire voluntarily from service. The Government accepted that recommendation with a clear rider that the petitioner would not be granted benefit of weightage of additional service in accordance with the resolution dated 8.10.1970. Accordingly, the High Court recommended substitution of the order of removal by the order permitting the petitioner to retire voluntarily from service. The Government accepted that recommendation with a clear rider that the petitioner would not be granted benefit of weightage of additional service in accordance with the resolution dated 8.10.1970. The petitioner undisputedly received the said communication and obtained all the benefits of voluntary retirement such as pension and gratuity on the basis of about 25 years of service rendered by the petitioner. If the petitioner had not accepted the said order of voluntary retirement, the petitioner would have been required to move this Court for revival of the writ petition and to proceed with the challenge to the order of removal. The petitioner, however, did not take that chance and preferred to accept the benefits of voluntary retirement for the period of 25/26 years service actually rendered by him and made representations to get the benefit of 5 notional increments. 13. As far as the merits of the challenge to the impugned decision are concerned, we do not find any substance in the said challenge. Clause (2) of the G.R. dated 8.10.1970 provides that Government servants who seek voluntary retirement under these orders may be allowed the retirement benefits ... ... ... ... ... after taking into account the additional years of notion of 5 years. 14. In the first place, the petitioner had not applied for voluntary retirement under the aforesaid orders in the ordinary course. Faced with the order of removal, the petitioner opted for voluntary retirement. Therefore, it cannot be said that the petitioner had applied for voluntary retirement under the orders dated 8.10.1970 in the ordinary course. Secondly, the word "may" ordinarily conveys the nature of the power. "May" ordinarily implies discretion. Hence, the Government servant seeking voluntary retirement cannot claim as a matter of right the benefit of 5 additional years of notional service. 15. The Government has given cogent reasons in the impugned communication for not accepting the petitioner's request for the additional 5 notional increments. The petitioner had faced departmental inquiry for a serious charge and had been removed from the service and a liberal view was taken and the petitioner was permitted to retire voluntarily. 15. The Government has given cogent reasons in the impugned communication for not accepting the petitioner's request for the additional 5 notional increments. The petitioner had faced departmental inquiry for a serious charge and had been removed from the service and a liberal view was taken and the petitioner was permitted to retire voluntarily. If in such cases also the Government servant is held to be entitled as a matter of right to get 5 additional increments for notional service, there would be no difference between Government employees retiring voluntarily after putting in honest, sincere and dedicated services and the Government servants who are permitted to retire voluntarily in lieu of facing departmental inquiries. Moreover, the apprehension voiced in the main communication that if the petitioner is given such benefits, the other Government servants who have committed misconduct and who are found to be guilty of such misconduct but are ultimately permitted to retire voluntarily, such Government servants will also claim such benefit as a matter of right. 16. We, therefore, do not find any substance in any of the contentions raised in the petition. The petition is, therefore, summarily dismissed. Petition dismissed.