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2022 DIGILAW 1166 (GUJ)

Daxaben Bharakumar Shah v. State Of Gujarat

2022-09-30

BHARGAV D.KARIA

body2022
JUDGMENT : 1. By this petition under Article 226 of the Constitution of India, the petitioner has prayed for the following reliefs : “(A) quash and set aside impugned order dated 3.4.1998, passed by the Deputy Commissioner of Sales Tax, Ahmedabad, Annexure-A to this petition, and (B) quash and set aside the order passed by Additional Commissioner of Sales Tax dated 27.1.2004, Annexure-B to this petition, and (C) quash and set aside the order passed by the Gujarat Civil Services Tribunal dated 29.9.2006 on Appeal No. 99 of 2004, Annexure-C to this petition, and (D) quash and set aside the order dated 20.12.2000, Annexure-T to this petition, (E) further be pleased to direct the respondent authorities to grant all consequential benefits to the petitioner, and (EE) Direct the respondent authorities to refund the amount recovered from the pay and retirement benefits of the petitioner as referred to in Annexure-A and C to this petition, with interest at the rate which the Honourable Court may consider just and proper in the facts and circumstances of the case and in the interest of justice. (F) pending admission and final disposal of this petition the Honourable Court may be pleased to grant the mandatory injunction against the further implementation and operation of the impugned order dated 3.4.1998, Annexure-A to this petition, and further be pleased to stay the orders dated 27.1.2004, Annexure-B to this petition and order dated 29.9.2006, Annexure-C to this petition, and order dated 20.12.2000, Annexure-T to this petition, (G) award the cost of the petition, and (H) grant any other relief or pass any other order which the Honourable Court may consider as just and proper in the facts and circumstances of the case...” 2. Brief facts of the case are as under : 2.1) In the year, 1980, the petitioner was selected as Junior Clerk by the Government, through the Centralized Recruitment Scheme and was allotted to the office of the Assistant Sales Tax Commissioner, Rajkot for being appointed on the post of Junior Clerk and accordingly, the petitioner had joined the service in the Sales Tax Department on 29.4.1980 and an order to that effect dated 7.5.1980 was passed by the Appointing Authority, the Assistant Commissioner of Sales Tax. 2.2) It is the case of the petitioner that in July, 1982, the petitioner was transferred to Ahmedabad. The name of the petitioner, before her marriage was Kum. 2.2) It is the case of the petitioner that in July, 1982, the petitioner was transferred to Ahmedabad. The name of the petitioner, before her marriage was Kum. Daxaben Trambaklal Parikh, which has been changed as Smt. Daxaben Bharatkmar Shah and the same was entered in her service record by the respondent authorities vide office order of June, 1983. 2.3) While working at Ahmedabad under the administrative control of the Sales Tax Officer, the petitioner had addressed a letter to the Sales Tax Officer, on 16.5.1986 that her resignation may be accepted with effect from 16.6.1986. Thereafter, the petitioner stopped attending the work. 2.4) It is the case of the petitioner that the competent authority i.e. the appointing authority i.e. Assistant Sales Tax Commissioner vide his letter dated 11.5.1989 and subsequent reminder dated 22.6.1989 informed the petitioner that her resignation cannot be accepted in view of the report of the Sales Tax Officer. 2.5) The petitioner by letter dated 20.6.1989 informed the Assistant Sales Tax Commissioner her desire about withdrawing her resignation. Subsequently, the Assistant Sales Tax Commissioner Ahmedabad, vide his letter dated 31.7.1990 asked the petitioner to immediately resume her duties. 2.6) It is the case of the petitioner that the petitioner had gone to her office however, since according to the office, there was no vacant post, the petitioner was asked to wait for appropriate posting order from the higher authorities. 2.7) Accordingly, the petitioner had, after waiting for a reasonable period, written an application on 18.1.1991, to the respondent no.2- Commissioner, inter-alia requesting that the petitioner may be permitted to resume her duties. 2.8) Thereafter, the petitioner received a letter dated 27.5.1991 from the office of the Assistant Sales Tax Commissioner, Ahmedabad, that the resignation of the petitioner has not been accepted and the petitioner is directed to immediately resume her duties. 2.9) Pursuant to the said order, the petitioner resumed her duties on 4.6.1991. 2.10) Thereafter, by an application dated 18.6.1991, the petitioner requested the authorities to treat the period of her absence from 16.8.1986 to 3.6.1991 as extraordinary leave. 2.9) Pursuant to the said order, the petitioner resumed her duties on 4.6.1991. 2.10) Thereafter, by an application dated 18.6.1991, the petitioner requested the authorities to treat the period of her absence from 16.8.1986 to 3.6.1991 as extraordinary leave. 2.11) It is the case of the petitioner that the decision on the said issue was taken by the authorities of Finance Department vide order dated 1.8.1996 that the period of absence of the petitioner from 4.2.1986 to 3.6.1991 was treated as willful absence and it was sanctioned as unauthorized absence and the said period shall not be treated as pensionable service of the petitioner. 2.12) In the meantime, the petitioner was promoted from the post of Junior Clerk to Senior Clerk vide order dated 12.7.1995. 2.13) Thereafter, the authorities issued an order on 3.4.1998 holding that as a consequence of the order dated 1.8.1996, the petitioner would lose her seniority in the cadre of Junior Clerk and therefore, she was reverted from the post of Senior Clerk. 2.14) Against the order dated 3.4.1998 passed by the respondent no.4 - Deputy Commissioner of Sales Tax, the petitioner filed an appeal before the Sales Tax Commissioner on 23.4.1998. The petitioner also separately preferred an application before the respondent no.4 on 12.5.1998 praying that the recovery ordered vide order dated 23.4.1998 may not be effected. 2.15) Vide letter/order dated 30.05.1998, passed in the said application, it was ordered that until the appeal is decided, recovery shall not be effected. 2.16) The appeal of the petitioner was disposed of by respondent no.2-Sales Tax Commissioner vide order dated 20.5.2000 directing the petitioner to approach the Gujarat Civil Services Tribunal. 2.17) The petitioner therefore, preferred an appeal being Appeal No. 205 of 2000 before the Gujarat Civil Services Tribunal, which was disposed of by the Tribunal vide order dated 3.8.2000, directing respondent no.2- Sales Tax Commissioner to hear the appeal and pass appropriate order. 2.18) Pursuant to the said order of the Tribunal, the petitioner was asked to remain present before the respondent no.3 - Additional Commissioner of Sales Tax for hearing on 11.1.2001. 2.19) Thereafter, the respondent no.3-Additional Commissioner of Sales Tax passed an order on 27.1.2004 rejecting the appeal of the petitioner. 2.18) Pursuant to the said order of the Tribunal, the petitioner was asked to remain present before the respondent no.3 - Additional Commissioner of Sales Tax for hearing on 11.1.2001. 2.19) Thereafter, the respondent no.3-Additional Commissioner of Sales Tax passed an order on 27.1.2004 rejecting the appeal of the petitioner. 2.20) Against the said order dated 27.1.2004, rejecting the appeal of the petitioner, the petitioner again approached the Gujarat Civil Services Tribunal at Gandhinagar vide Appeal No. 99 of 2004 which was dismissed vide order dated 29.9.2006. 2.21) The petitioner has retired from service on 31.1.2013 and it is the case of the petitioner that even at the time of retirement of the petitioner from service, an amount of Rs. 15,293/- is deducted from the retirement benefits of the petitioner for the period of unauthorized absence with 10% interest. Being aggrieved by the impugned orders passed by the respondents authorities the petitioner has approached this Court. 3. Learned advocate for the petitioner Mr. Vaibhav Vyas submitted that the action on the part of respondent authority of reverting the petitioner is passed without hearing the petitioner. 3.1) Learned advocate Mr. Vyas further submitted that the amount of salary paid to the petitioner, while the petitioner actually worked on the promotional post, could not have been recovered in view of settled position of law. Thus the action of respondent authorities of effecting recovery from the petitioner is contrary to the settled position of law. 3.2) It was further submitted that the letter of the petitioner dated 16.05.1986 requesting the Sales Tax Officer that the petitioner intended to resign was not accepted by the competent authority and not only that the petitioner was informed by the Assistant Commissioner of Sales tax vide order dated 27.05.1991 that the resignation of the petitioner was rejected and the petitioner was directed to resume the duties. 3.3) It was submitted that pursuant to such order, the petitioner resumed her duties and it was not a fresh appointment in any manner. 3.3) It was submitted that pursuant to such order, the petitioner resumed her duties and it was not a fresh appointment in any manner. It was submitted that even the Finance Department of the Government has passed order on 1.8.1996 stating that the period of absence of the petitioner from 4.2.1986 to 3.6.1991 shall be treated as non pensionable service and going by the said order, the inevitable consequence would be that from the total length of the petitioner from 29.04.1980 till her date of retirement, the period of absence of the petitioner from 4.2.1986 to 3.6.1991 shall be excluded as non pensionable service. It was therefore, submitted that even if it is assumed that the order dated 1.8.1996 was legal and valid, then also, the resumption of duty of the petitioner on 4.6.1991 cannot be treated as fresh appointment nor can it have the effect of pushing down the petitioner in the seniority list of Junior Clerk. 3.4) Learned advocate Mr. Vyas further submitted that impugned order dated 3.4.1998 would have effect of major punishment of reversion to the feeder cadre with consequential loss of seniority which could not have been imposed by the authorities though there was no disciplinary proceedings ever initiated by the authorities against the petitioner. It was therefore, submitted that the impugned orders passed by the respondents authorities are illegal and arbitrary. 4. On the other hand learned Assistant Government Pleader Mr. Trupesh Kathiriya submitted that the petitioner is not entitled to the benefits of continuity in service in view of the provisions of Rule 33(A)(2) of the Bombay Civil Services Rules as her resignation was deemed to have been accepted with effect from 16.06.1986. It was further submitted that as the petitioner was taken back in service on special consideration as Junior Clerk from 4.06.1991 and promoted as a Senior Clerk from 13.07.1995, the prolonged period of absence from 1986 to 1991 is rightly treated by the respondents as unauthorised leave and the same was rightly not considered for the purpose of computation of the pension benefits of the petitioner. 4.1) It was therefore, submitted that in such circumstances, the seniority of the petitioner is also required to be considered from her rejoining the service on 4.06.1991 and the promotion given to the petitioner without considering her seniority from the date of rejoining of service was required to be cancelled and therefore, the petitioner was rightly reverted to the rank of Senior Clerk vide order dated 03.04.1998. 4.2) It was submitted that Gujarat Civil Services Tribunal has also considered the decision of the Finance Department dated 1.08.1996 to consider the period of unauthorised leave by way of prolonged absence from duty for about five years and four months and no interference is required to be made in the impugned order passed by the Tribunal. 5. Having heard learned advocates for the parties and having considered the rival submissions, Gujarat Civil Services Tribunal has considered the facts in detail and as such, in view of undisputed fact that the petitioner submitted her resignation in 1986 and thereafter, was permitted to rejoin the service resulting into the unauthorised leave, the respondent authority has rightly not considered the petitioner eligible for promotion. 6.The contention raised on behalf of the petitioner for considering the period from 1986 to 1991 for seniority as the resignation of the petitioner was not accepted and hence that the decision of the respondent authority to revert the petitioner is not tenable, cannot be accepted as the petitioner has never challenged the order dated 1.08.1996 of the Finance Department treating the said period as unauthorised leave and consequence of the said order would be that the period of absence from the duty cannot be treated as continuity in service. The petitioner accordingly, has lost the seniority in view of the order dated 1.08.1996 passed by the Finance Department and effect of unauthorised absence would result into loss of seniority. 7. The contention raised on behalf of the petitioner that the amount of salary paid to the petitioner while petitioner actually worked on promotional post from 1995 till the date of reversion by effecting recovery from the petitioner and therefore, such amount should not be recovered from the petitioner is concerned, the petitioner is permitted to make representation before the respondents authorities for not effecting recovery. 8. 8. Considering the above factual aspects which are not in dispute and as order dated 01.08.1996 passed by the Finance department to the effect that long absence of the petitioner from service to be treated as unauthorised leave cannot be interfered while exercising writ jurisdiction under Article 227 of the Constitution of India. However, liberty is reserved to the petitioner to make appropriate representation before the authority for not recovering the amount of salary paid to the petitioner from the date of promotion till the date of reversion as the petitioner actually worked on such promotional post not due to the fault of the petitioner. 9. The petition is accordingly dismissed as devoid of any merit subject to aforesaid liberty to the petitioner. Rule is discharged. No order as to cost.