10 March 2023 4:00 PM GMT
The Supreme Court recently granted pensionary benefits to an auxiliary nurse working in service of Gujarat Government, who was embroiled in a long drawn litigation over a decision taken by her in 1993 to withdraw her resignation.The appellant, an auxiliary nurse midwife appointed by the district panchayat, Valsad had submitted her resignation on April 18, 1993, but withdrew it on November 23,...
The Supreme Court recently granted pensionary benefits to an auxiliary nurse working in service of Gujarat Government, who was embroiled in a long drawn litigation over a decision taken by her in 1993 to withdraw her resignation.
The appellant, an auxiliary nurse midwife appointed by the district panchayat, Valsad had submitted her resignation on April 18, 1993, but withdrew it on November 23, the same year. The order accepting the resignation was passed in December 20, 1994. This order was challenged by the appellant before the Gujarat High Court.
In 2000, a single bench of the High Court set aside the order accepting his resignation and declared that she will be entitled to all consequential service benefits. The State appealed to the division bench against this order. On February 22, 2001, the division bench held that the appellant will not be entitled to any benefits during the period her “resignation was in force”. Hence, as a consequence of the judgment, the appellant was not entitled to any consequential benefits between April 18, 1993 and December 20, 1994.
However, the State passed an order on April 8, 2002 holding that the period from 24 November 1993 to 30 March 2001 would be treated as unauthorized leave; and 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.
The two-state government orders were challenged before the High Court and were set aside. The Court directed the State to pay all the benefits for the period from November 24, 1993 till March 30, 2001, with interest at 9% from February 22, 2001.
While there was no appeal against the decision, a third order was passed by the State holding that 782 days are going to be treated as unauthorised leave as far as the appellant was concerned.
This was again challenged in court. The High Court had held that no continuity of service could be granted on account of her absence from service over a period of 782 days. The Division Bench affirmed this view. Aggrieved, the appellant filed a civil appeal before the Apex Court.
After going through the facts, the Court specifically held that the expression “for the period for which resignation was in force” cannot be stretched to a date after the resignation had been withdrawn on November 23, 1993 before it came into force.
Regarding 782 days of absence
As per the State's order dated 17 July, 2002, the following period was treated as unauthorized absence :
(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
The Court noted that the 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.
In this backdrop, the Court observed :
“Clearly, it was not open to the State to continue passing successive order of this nature once the dispute over the period of resignation and the manner in which the resignation had to be treated had attained finality”.
The Bench of Justices Chief Justice of India Dhananjaya Y Chandrachud, Justices P Narasimha and JB Pardiwala observed that the appellant was not entitled to any consequential benefits only for the period between 18 April 1993 to 23 November 1993.
The appellant was granted voluntary retirement from service on November 30, 2011. It indicated that the appellant had completed 24 years 10 months and 5 days of pensionable service out of a total service of 31 years 8 months and 15 days. For the last 11 years, the appellant was granted only provisional pension, the court noted.
The Court concluded 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.”
Case Title: Bhartiben Chandrakantbhai Thakor Vs State of Gujarat and Others | Civil Appeal No 24 of 2013
Citation : 2023 LiveLaw (SC) 181
Click Here To Read/Download Judgment