A.S.SUPEHIA, J. - (1.) The present appeals emanate from the CAV judgment 9.7.2015 passed by the learned Single Judge in Special Civil Application No.14823 of 2010 and allied matters, whereby the writ petitioners were held to be entitled to subsistence allowance at the rate of 100%.
(2.) At the outset, Mr. D.G. Chauhan, learned advocate appearing on behalf of the appellants has submitted that the respondents were reinstated in service and presently, all of them have retired. He has invited the attention of this court to the statement produced in the memorandum of the appeal, wherein details of arrest of the respondents as well as their release on bail and the time spent in jail have been incorporated. The learned advocate has further submitted that the respondents herein are not entitled to the subsistence allowance at the rate of 100% in view of rule 5 of the Gujarat Civil Services (Discipline and Appeal) Rules, 1971 (hereinafter referred to as "the Rules"). It was submitted that the learned Single Judge has erred in granting full subsistence allowance to the present respondents for the reason that the suspension order was not revoked within a period of 90 days and hence, the same would lapse. Reference was made to the proviso to sub-rule (2A) of rule 5 of the rules in support of his contention that in the case of deemed suspension under sub-rule (2), if the Government servant continues to be under suspension at the time of completion of ninety days of suspension and the ninety days period in such case will count from the date the Government servant detained in custody and is released from detention or the date on which the fact of his release from detention is intimated to his appointing authority, whichever is later. The learned advocate submitted that in cases of deemed suspension, there is no need of reviewing the suspension order. It is urged that the present respondents were detained in connection with the criminal offence and they were put under deemed suspension as per the provision of rule 5 of the Rules. It was submitted that sub-rule (2) of rule 5 of the Rules provides for such deemed suspension if an employee remains in custody for a period exceeding forty eight hours. The learned advocate submitted that in fact, the suspension envisaged under rule 5 of the Rules would apply in case of the respondents and the period of ninety days mentioned therein will not be applicable in the case of deemed suspension since they were suspended in view of their detention. 2. 1. The learned advocate has further submitted that the learned Single Judge has exceeded his jurisdiction as there was no prayer made by the present respondents in the writ petitions for grant of subsistence allowance at the rate of 100%. In support of his contention, the learned advocate placed reliance upon the decision of the Apex Court in the case of Pyare Mohan Lal v. State of Jharkhand and others, (2010) 10 SCC 693. It was submitted that as observed by the Apex Court, if a relief is not specifically sought, then the same cannot be granted by the court. He also placed reliance upon the decision of the Apex Court in the case of Union of India v. Ibrahim Uddin and another, (2012) 8 SCC 148. The learned counsel, accordingly, urged that the impugned judgment and order of the learned Single Judge requires interference and the same deserves to be quashed and set aside.
(3.) Mr. Samir Gohil, learned advocate appearing on behalf of the respondents submitted that the proviso to rule 5 of the 1971 Rules relied upon by Mr. Chauhan, learned advocate for the appellants, will apply in the facts of the present case, because, the same are subsequent and have been inserted vide notification dated 6th August, 2008, wherein it provides powers of the State Government to continue the suspension period in case of deemed suspension till the suspension order is modified or revoked by the authority competent to do so. The learned advocate has placed reliance on the notification dated 4th July, 2007, whereby sub-rule (2A) to rule 5 of the Rules has been inserted which provides for review of suspension period before the expiry of ninety days from the date of order of suspension. It was submitted that since no review was done by the appellants herein, the suspension got revoked after the expiry of ninety days and hence, the respondents are entitled to the subsistence allowance at the rate of 100%. 3. 1. As regards the contention raised by the learned advocate for the appellants that the learned Single Judge has exceeded his jurisdiction in granting the prayer of 100% subsistence allowance over and above which is prayed for in the writ petitions, it was submitted that subsequently, by way of a draft amendment, the impugned suspension order was also challenged and a prayer was sought for that the same may be declared as invalid after a period of ninety days and hence, the learned Single Judge was justified in granting 100% subsistence allowance to the respondents herein. ;