Gujarat High Court
Shantilal Bhanabhai Tadvi vs State Of Gujarat on 3 August, 2021
Bench: A.S. Supehia
C/SCA/23242/2019 JUDGMENT DATED: 03/08/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 23242 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 23286 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.S. SUPEHIA Sd/-
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ? NO
2 To be referred to the Reporter or not ?
NO
3 Whether their Lordships wish to see the fair copy
of the judgment ? NO
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution NO
of India or any order made thereunder ?
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SHANTILAL BHANABHAI TADVI & 50 other(s)
Versus
STATE OF GUJARAT
================================================================
Appearance:
MR VK JOSHI(2329) for the Petitioner(s) No.
1,10,11,12,13,14,15,16,17,18,19,2,20,21,22,23,24,25,26,27,28,29,3,30,31,32,
33,34,35,36,37,38,39,4,40,41,42,43,44,45,46,47,48,49,5,50,51,6,7,8,9
ADVOCATE NOTICE SERVED(81) for the Respondent(s) No. 5
MS DHWANI TRIPATHI, AGP(1) for the Respondent(s) No. 1 (in SPECIAL
CIVIL APPLICATION NO. 23242 of 2019)
MR SAHIL TRIVEDI, AGP for the Respondent(s) No. 1 (in SPECIAL CIVIL
APPLICATION NO.23286 of 2019)
MR. ALKESH N SHAH(3749) for the Respondent(s) No. 2
DS AFF.NOT FILED (N)(11) for the Respondent(s) No. 3
NOTICE SERVED BY DS(5) for the Respondent(s) No. 4,6
==========================================================
CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
Date : 03/08/2021
COMMON ORAL JUDGMENT
(1) The petitioners are claiming the benefits of
Government Resolution dated 17.10.1988, which
include the fixation of pensionary benefits
counting their entire length of service from the
C/SCA/23242/2019 JUDGMENT DATED: 03/08/2021
dates of their joining till the dates of retirement
for all purposes. It is also prayed that the
benefits like leave encashment, etc. may also be
granted to the petitioners.
(2) Learned advocate Mr.V.K.Joshi appearing on
behalf of the petitioners has submitted that all
the petitioners have rendered services ranging from
20 to 44 years of service.
Petitioner No.44 has rendered 20 years of
service from 09.08.1974 to 28.02.1995.
(3) The respondents have accordingly fixed their
pension as per the Government Resolution dated
17.10.1988, by deducting the initial 10 years of
service, which is under challenge.
(4) Learned advocate Mr.V.K.Joshi appearing on
behalf of the petitioners has at the out set has
submitted that the issue is squarely covered by
catena of decisions of this Court. He has placed
reliance on the order dated 21.08.2019 passed by
the Coordinate Bench of this Court in Special Civil
Application No.11086 of 2019, wherein the Court has
considered various decisions of the Division Bench
as well as learned Single Judge for granting the
same reliefs.
(5) Learned advocate Mr.Alkesh Shah appearing on
behalf of the respondent authorities, while placing
C/SCA/23242/2019 JUDGMENT DATED: 03/08/2021
reliance on the affidavit, has submitted that the
petitioners are fixed and paid the pension as per
Government Resolution dated 17.10.1988. He has
submitted that the resolution is very clear that
for the purpose of pension the service of an
employee, after he becomes permanent, is required
to be considered. He has thus, submitted that the
resolution itself provides that after completion of
10 years of service, the pension is required to be
fixed and accordingly it was fixed in case of all
the petitioners. Thus, he has submitted that no
interference is required.
(6) I have considered the rival submissions. The
only issue which requires consideration is whether
the respondent authorities are justified in
ignoring the initial 10 years of service prior to
they are conferred the status of permanent
employees.
(7) The Coordinate Bench in the order dated
21.08.2019 passed in Special Civil Application
No.11086 of 2019, after considering the various
judgments, including the Division Bench judgement,
rendered in Letters Patent Appeal No.764 of 2019 in
the case of Sardarbhai Panabhai Chauhan vs. State
of Gujarat and in the case of Executive Engineer,
Panchayat vs. Samudabhai Jyotibhai Phedi, 2017 (4)
G.L.R. 2952 and other judgments on the similar
issue has held thus:
C/SCA/23242/2019 JUDGMENT DATED: 03/08/2021
"5.2 Thus it is a clear position of law emerging from
decision in Samudabhai Jyotibhai Phedi (supra) that
entire past services of daily-wager which was
continuous is liable to be reckoned for the purpose of
pensionary benefits and for the purpose of granting
pension. In the facts of the case of the petitioner,
the factum is not controverted and it is undisputed
that the petitioner has throughout worked since his
joining, to make his services continuous.
5.3 The only reason put-forth by the authorities to
deny the petitioner the pension is that after he was
made permanent, he has not completed 10 years of
qualifying service, however if the date of joining of
the petitioner which is 12th December, 1986 is
considered, the petitioner has evidently completed the
qualifying period to be entitled to pension as per the
law laid down in Samudabhai (supra).
6. While confirming the aforesaid decision, the
Letters Patent bench held thus,
"4. Learned Single Judge rightly addressed the
issue that only reason which weighed with the
authority to deny pension to the petitioner was
that after being made permanent, he had not
completed ten years of qualifying service,
however, if the date of joining of the
petitioner, which was 12.12.1986 is considered,
the petitioner would complete the qualifying
service as per law laid down in the case of
Executive Engineer, Panchayat v. Samudabhai
Jyotibhai Phedi [2017(4) GLR 2952].
5. Therefore, following declaration of learned
Single Judge in Paragraphs 7 and 8 of the
impugned order, reproduced hereinbelow, no
interference is warranted:
"7. For the foregoing reasons and
discussion, it is hereby declared that
the action on part of the respondents in
not making payment of pensionary benefits
to the petitioner and in not counting the
entire length of services of the
petitioner from 12th December, 1986 till
30th April, 2012 is arbitrary and
illegal. The respondents are directed to
fix the pension of the petitioner
counting his entire service period from
12th December, 1986 till the date of
retirement. The petitioner is also held
entitled to all other retirement benefits
including leave encashment and difference
C/SCA/23242/2019 JUDGMENT DATED: 03/08/2021
of gratuity, as may be payable. The total
amount payable towards pension to be
calculated as above, the arrears arising
thereby and the other retirement benefits
including those mentioned hereinabove,
shall be paid to the petitioner within a
period of six weeks from the date of
receipt of this order.
8. It is provided and directed that if
the amount is not paid within stipulated
period of six weeks, it shall carry
interest at the rate of 6.5% from the
date of filing of this petition. The
respondents are further directed to
continue to pay the pension to the
petitioner duly calculated as above."
6. As noted above, the subject-matter of this
appeal and the issues involved therein are no
more res-integra and are covered by a decision
of this Court in Letters Patent Appeal
No.2152/2017 in Special Civil Application
No.12350/2016, which attained finality by an
order dated 04.01.2019, passed by the Apex
Court dismissing Special Leave Petition
(Civil) Diary No.45860/2018 preferred by the
State of Gujarat and another."
7. As a result of the above discussion, the prayers
made in the petition deserves to be granted. It is
held and declared that the action on part of the
respondents in not making payment of pensionary
benefits to the petitioner by reckoning the entire
length of service from the date of initial joining of
the petitioner, is illegal. The respondents are
directed to fix the pension of the petitioner by
counting his services from the date of his initial
joining until the date of retirement. All other
retirement benefits shall be paid including the leave
encashment benefit. The amounts payable by virtue of
this order, shall be paid to the petitioner within a
period of six weeks from the date of receipt of this
order. If the amounts are not paid within the
stipulated time, it is directed that the due amount
shall carry interest at the rate of 6% from the date
of filling of the petition, that is from 26th June,
2019."
(8) Thus, the Coordinate Bench has declared the
action of the respondent authorities not making the
C/SCA/23242/2019 JUDGMENT DATED: 03/08/2021
payment of pension benefits to the daily wagers by
reckoning the entire length of service from the
dates of initial joining, as illegal.
(9) In the present case, the respondent
authorities, it appears, have misdirected
themselves by misinterpreting the Government
Resolution dated 17.10.1988 by counting only that
service of the petitioners for fixation of their
pension, which they have rendered after becoming
permanent employees. It is also noticed that the
aforesaid issue, which is raised in the present
petition is confirmed upto the Apex Court, as
observed by the Division Bench in case of
Samudabhai Jyotibhai Phedi (supra).
(10) In light of the undisputed position of law,
the impugned action of the respondent authorities
of ignoring the earlier services of the petitioners
from the dates of initial joining is hereby
declared as illegal. The respondent authorities are
directed to fix the pension of the petitioners by
counting their services from the dates of their
initial joining till the dates of retirement. It is
further directed that all the retirement benefits,
including the leave encashment benefits shall be
paid to them within a period of three months from
the date of receipt of the present order. It is
further directed if the amounts are not paid within
the stipulated time, the same shall carry interest
@ 6% from the date of filing of the petitions.
C/SCA/23242/2019 JUDGMENT DATED: 03/08/2021
(11) The present petitions are allowed accordingly.
RULE is made absolutely to the aforesaid extent.
Direct service is permitted.
(12) Registry to place a copy of this judgment in
the connected writ petition.
Sd/- .
(A. S. SUPEHIA, J)
Bhavesh-[PPS]*
