BHARTIBEN CHANDRAKANTBHAI THAKORversusSTATE OF GUJARAT AND OTHERS

712                        [2023]
                SUPREME COURT     5 S.C.R. 712
                               REPORTS                       [2023] 5 S.C.R.


A               BHARTIBEN CHANDRAKANTBHAI THAKOR
                                         v.
                     STATE OF GUJARAT AND OTHERS
                           (Civil Appeal No 24 of 2013)
B                         FEBRUARY 27, 2023
               [DR. DHANANJAYA Y CHANDRACHUD, CJI,
                PAMIDIGHANTAM SRI NARASIMHA AND
                        J. B. PARDIWALA, JJ.]
             Service law: Resignation – Pensionary dues – Appellant,
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      Auxiliary Nurse Midwife submitted her resignation, however,
      withdrew it prior to its acceptance – Subsequently, she was called
      upon to resume her service but was not allowed to join – Much
      thereafter an order was passed accepting her resignation – High
      Court set aside the said order and directed that the appellant was
D     entitled to all consequential benefits – However, the Division Bench
      modified the order of Single Judge 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 – On appeal, held: Expression “for the
      period for which resignation was in force” could not be stretched
      to a date after the resignation had been withdrawn, before it came
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      into force – 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 – Appellant not entitled to any consequential benefits
      only for the period between the date of submission her resignation
F     to the date she withdrew her resignation – Appellant has completed
      24 years 10 months and 5 days of pensionable service, thus, should
      be treated to have completed the minimum pensionable service of
      25 years – Pensionary dues payable to the appellant to be computed
      on that basis regardless of any order passed by the State
      government.
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              CIVIL APPELLATE JURISDICTION : Civil Appeal No.24 of
      2013.
            From the Judgment and Order dated 17.02.2009 of the High Court
      of Gujarat at Ahmedabad in LPA No.70 of 2007 and SCA No.14636 of
H     2006.
                                        712
    BHARTIBEN CHANDRAKANTBHAI THAKOR v. STATE OF                              713
                     GUJARAT

      Nachiketa Joshi, Ms. Himadri Haksar, Ajay Shukla, Advs. for the         A
Appellant.
     Ms. Swati Ghildiyal, Ms. Devyani Bhatt, Advs. for the
Respondents.
         The Judgment of the Court was delivered by
                                                                              B
       The Judgment of the Court was delivered by
       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,           C
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 was passed accepting her resignation
with effect from 31 March 1993. This gave rise to the institution of a
petition1 under Article 226 of the Constitution by the appellant.
       2. By a judgment dated 12 October 2000, a Single Judge of the          D
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 Appeal2 filed by the State of Gujarat, a
Division Bench of the High Court found that the appellant had not been        E
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       F
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              G
1993 would not have any legal effect. The only consequence of the
judgment of the Division Bench was that whereas the Single Judge had

1
    Special Civil Appeal No 10418 of 1995
2
    Letters Patent Appeal No 97 of 2001
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714                SUPREME COURT REPORTS                         [2023] 5 S.C.R.


A     directed that the appellant would be entitled to all consequential benefits,
      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
B     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
C
      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
D     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
E     holding the following period as unauthorized leave and to be treated as a
      break in service, namely;
                (i) 21 June 1988 – 31 July 1988        -      41 days;
                (ii) 18 April 1993 – 23 November 1993 -       220 days; and

F               (iii) 6 November 1991 – 7 April 1993 -        521 days
                                                             4
              8. The above order gave rise to a third petition 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
G     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.

      3
          Special Civil Application No 9723 of 2002
      4
          Special Civil Application No 14636 of 2006
H
 BHARTIBEN CHANDRAKANTBHAI THAKOR v. STATE OF                                   715
  GUJARAT [DR. DHANANJAYA Y CHANDRACHUD, CJI]

       9. We have heard Mr Nachiketa Joshi, counsel appearing on behalf         A
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            B
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 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.              C
      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
                                                                                D
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          E
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     F
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 once the dispute over the period of
resignation and the manner in which the resignation had to be treated           G
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           H
716              SUPREME COURT REPORTS                         [2023] 5 S.C.R.


A     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.
B            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
C     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
D     together with interest at the rate of 6% per annum.
           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.

E
      Nidhi Jain                                                    Appeal allowed.
      (Assisted by : Rakhi, LCRA)




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