SCA/995720/2000 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 9957 of 2000 HONOURABLE MR.JUSTICE KS JHAVERI ====================================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ====================================================== ASSISTANT AGRICULTURE DIRECTORSOIL CONSERVATION & 3 - Petitioner(s) Versus KANTILAL NARSANGBHAI KAVI - Respondent(s) ====================================================== Appearance : MR JASHWANT K. SHAH, AGP, for Petitioners MR DA BAMBHANIA for Respondent ====================================================== CORAM : HONOURABLE MR.JUSTICE KS JHAVERI Date : 14/11/2008 ORAL JUDGMENT SCA/995720/2000 2/5 JUDGMENT 1.0 The petitioners have challenged the order dated 7th February 2000 passed by learned Member, Gujarat Civil Services Tribunal, Gandhinagar in Appeal No.258 of 1997 whereby the appeal was allowed and it was ordered to count the period of approximately six years and to fix the pension of the respondent accordingly. 2.0 The respondent joined the service as Agriculture Assistant from 9.5.1961. He wanted to take voluntary retirement from service and therefore gave notice on 11th October 1989. But there was no reply to the said notice for a period of four months and therefore the respondent joined duty on 12th March 1990. The petitioners paid salary to the respondent upto 28th February 1990, but his salary from 1st March 1990 to 10th March 1990 in respect of medical leave was not sanctioned. The respondent was also not paid any amount from 12th March 1990 to 8th March 1997. However, there is an entry in his service book on 11th December 1996 and 26th March 1997 that he is treated on unauthorized absence on duty. After various correspondences the authority sanctioned his pension, but deducted or not accounted his 6 years service. Because of this his pension is fixed at Rs.2100/- instead of Rs.6625/-. Hence the respondent filed Appeal No.258 of 1997 before Gujarat Civil Services Tribunal, Gandhinagar, which allowed the appeal as stated hereinabove. 3.0 Mr. Jashwant K. Shah learned AGP appearing for the petitioners submitted that the Tribunal has failed to consider the aspect that the respondent has not given any notice for his voluntary retirement as per Rules and Regulations. It is submitted that the respondent was on earned leave from 1st February 1990 to 28th February 1990 for sickness of his wife, and during this period he had contested election without the SCA/995720/2000 3/5 JUDGMENT knowledge of the employer. A departmental inquiry was held and even though he was exonerated, he thereafter did not resume his duty with effect from 1.3.1990 and therefore he is not entitled to the benefits in question. 4.0 As against the above contentions, Mr.D.A. Bhambhania, learned Advocate for the respondent submitted that the respondent has tendered his application for voluntary retirement as per the provisions of rules and regulations, but the petitioners have not accepted the same. In fact the respondent was not permitted to resume duties on the ground of proposed inquiry and pending decision of posting on account of intra departmental disputes. He submitted that the respondent was exonerated by the Inquiry Officer and in the year 1996 he was posted in Surendranagar and on 31.7.1997 he attained the age of superannuation. Thus, he had retired from service without any blemish and therefore there was no reason for the authority not to count the period of six years. He, therefore, submitted that the petition deserves to be dismissed. 5.0 As a result of hearing and perusal of the record, certain aspects are not in dispute. The respondent has submitted notice for voluntary retirement and this was not accepted and the respondent joined duty. An inquiry was initiated, but ultimately the respondent was exonerated in the Departmental Inquiry. Thereafter he has gone to join duty and his letter for reporting duty was on record before the Tribunal. There were inter se disputes about the duties of the respondent. Ultimately the respondent was granted pension and other benefits, but deducting six years service. The Tribunal did not believe the say of the petitioners that the respondent had not gone for duties. Inter departmental correspondence clearly shows that the respondent had gone to the SCA/995720/2000 4/5 JUDGMENT office but they were in dilemma as to where he should be posted. The correspondence also shows that the petitioners were seeking guidance from one another as to where the respondent should report. 6.0 The ultimate finding of the Tribunal is that there is absolute inaction on the part of the department for absence of the respondent. There was no notice, no statements or not even a notice seeking the explanation of the appellant. There is no order by competent authority for absence and there is no order for not considering the said period in pensionary service. Without such order there should not be any endorsement in the service book. It is evident there was no notice of inquiry and reduction was made for which no explanation is tendered. I am in complete agreement with the findings recorded and conclusion arrived at by the Tribunal. 7.0 In view of the above, I am of the view that the petitioners have failed to point out any material on record to take a different view of the matter. The Tribunal has considered the matter in detail and the findings could not be controverted by the petitioners on any count. 8.0 Mr. Bhambhania, learned Advocate for the respondent has submitted that the petition is not maintainable in absence of any provision for an appeal against the appellate authority and in support of this contention he has relied upon a decision of this Court dated 5th December 1987 passed in Special Civil Application No.6003 of 1987. The said decision considered various provisions of law and found that neither the Panchayat Rules nor the Civil Services Tribunal Act provide for an appeal by the concerned officer. The Court held as under: “It is pertinent to note that neither the Panchayat Rules nor the Civil Services Tribunal Act provide for an appeal by the SCA/995720/2000 5/5 JUDGMENT concerned officer. When the Legislature did not think it proper to provide for an appeal by the officer whose order has been set aside in appeal and when the rule-making authority also did not think it proper to provide for an appeal by the officer whose order was set aside by the Appellate Authority, it is doubtful whether the officer whose order has been set aside by the Appellate Authority can approach this Court by filing an Application under Article 226 or 227 of the Constitution. It is in this light that probably this Court dismissed the Special Civil Application earlier by observing that the D.D.O. had no locus standi. Even if we may say so that he has locus standi to file such a petition, in my opinion, such a petition should not be entertained. An Officer whose order has been set aside by the Appellate Authority is bound by the said decision and he cannot make a grievance before any other authority that the Appellate Authority has wrongly set aside his order. If there are any remarks made against that officer while disposing of the appeal by the Appellate Authority, he may certainly have some remedy for getting the remarks expunged. But when the matter is decide don its own merits, the officer whose order is set aside cannot, by any stretch of imagination, approach this Court and say that the orders of the Appellate Authority are not correct either on facts or on law. In that sense, the D.D.O. has no locus standi to file this petition. This petition, therefore, deserves to be rejected on this ground alone.” 9.0 Thus, an officer whose order has been set aside by the Appellate Authority is bound by the said decision and there is no provision to file an appeal against such decision. Even on this ground also the present petition deserves to be dismissed. 10.0 In the premises aforesaid, I do not find any merits in this petition. The petition is therefore dismissed. Rule is discharged with no order as to costs. [K.S. JHAVERI, J.] ar