Nalini Jayantilal Karia vs State Of Gujarat
2021 Latest Caselaw 5902 Guj

     C/SCA/13592/2018                                       ORDER DATED: 14/06/2021




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 13592 of 2018

==========================================================
                            NALINI JAYANTILAL KARIA
                                     Versus
                          STATE OF GUJARAT & 5 other(s)
==========================================================
Appearance:
MR AMIT PANCHAL, ADVOCATE FOR MR ANGESH A PANCHAL(9138) for
the Petitioner(s) No. 1
MR ISHAN JOSHI, AGP(1) for the Respondent(s) No. 1,2,3,4,5,6
==========================================================

 CORAM: HONOURABLE MR. JUSTICE A.Y. KOGJE

                                 Date : 14/06/2021

                                     ORAL ORDER

1. This petition under Article 226 of the Constitution of India is filed praying for two reliefs one is to grant the Academic Term End Benefit till April, 2014 to the petitioner and secondly, directions to the respondent authorities to release the amount of interest calculated at the rate of 8% on the retirement benefits paid belatedly but paid to the similarly situated employees.

2. It is the case of the petitioner that the petitioner was appointed as Class-II employee in the post of Ad-hoc Demonstrator (Lecturer) in Indian System of Medicine and Homeopathy by the Department of Health and Family Welfare on 26.07.1984 and the petitioner had been discharging her duties against the permanent sanctioned post of Demonstrator. After serving for 29 years and 4 months, the petitioner retired after attaining the age of superannuation on

C/SCA/13592/2018 ORDER DATED: 14/06/2021

30.11.2013. It is submitted that the petitioner and other similarly situated persons had filed petitions before this Court seeking regularization of their services and granting the retirement benefits which with the indulgence of this Court was granted by Government Resolution dated 12.09.2015.

2.1 It is the case of the petitioner that some of the co-petitioners filed petitions for contempt before this Court seeking pensionary benefits and in those proceedings, vide order dated 21.10.2016, directions were issued to grant the retirement benefits to all 28 ad-hoc employees including the petitioner. Accordingly, the petitioner received retiremental benefits including pension, gratuity and leave encashment on 28.10.2016 pursuant to the order dated 19.10.2016.

2.2 It is the case of the petitioner that as the petitioner had retired upon attaining the age of superannuation on 30.11.2013, the petitioner is entitled to receive Academic Term Benefits up to April-2014 and for that purpose, the petitioner relies upon the benefit thus given to one of the employees viz. Mr.Ashok Somnath Pandya. It is submitted that the petitioner has not been given the same benefit.

3. Learned advocate for the petitioner does not vehemently press for this relief only in view of the fact that all the other co-employees except for one had not been granted the same benefit. However, much

C/SCA/13592/2018 ORDER DATED: 14/06/2021

emphasize is made on grant of interest at the rate of 8% for delayed payment of pensionary benefits. It is submitted that 14 employees out of 28 employees were granted 8% interest and in this regard, order dated 23.01.2017 was passed granting the interest at the rate of 8% to those 14 employees. The petitioner upon getting the knowledge that the interest is paid to those 14 other employees, she made a representation on 09.03.2017 claiming payment of interest at the rate of 8% on the retirement benefits. The representation of the petitioner was answered by rejecting her request by letter dated 22.02.2018, however, no reasons were assigned therein.

4. Learned advocate for the petitioner submitted that as the employees similarly situated to the petitioner had been participated in the subsequent proceedings, the petitioner cannot be deprive of the same benefit and the case of the petitioner has to be considered at par with other employees. The respondents are unable to offer any valid reason for differentiating the case of the petitioner.

5. Learned advocate for the petitioner drew attention of this Court to the calculation placed on record by which the payment has been made and which is the part of the Resolution dated 20.01.2017 by which interest has been paid to the co-employees.

6. Learned advocate for the petitioner drew attention of this Court to the order dated 21.10.2016 passed by this Court in Contempt Petition being

C/SCA/13592/2018 ORDER DATED: 14/06/2021

Misc.Civil Application No.2485 of 2016 particularly, to the statement of learned AGP to the effect that pay fixation and the benefits of higher pay-scale of Lecturer (Senior Scale) and Lecturer (Selection Scale) on completion of 8 years and 16 years of service including difference of salary, other benefits/pensionary and arrears of revision of pension on grant of higher pay scale shall be paid to the concerned employees within a period of 4(four) weeks from today and accordingly, the payment has been made, but only to those persons, who are the petitioners before the Court.

7. For the purpose of interest, the petitioner relies upon the decision of the Apex Court in the case of Alok Shanker Pandey Vs. Union of India & Ors. Reported in (2007) 3 SCC 545, more particularly relying on Paragraph Nos.8 and 9. The said Paragraphs read as under:-

"8. We are of the opinion that there is no hard and fast rule about how much interest should be granted and it all depends on the facts and circumstances of each case. We are of the opinion that the grant of interest of 12% per annum is appropriate in the facts of this particular case. However, we are also of the opinion that since interest was not granted to the appellant along with the principal amount, the respondent should then in addition to the interest at the rate of 12% per annum also pay to the appellant interest at the same rate on the aforesaid interest from the date of payment of installments by the appellant to the respondent till the date of refund of this amount, and the entire amount mentioned above must be paid to the appellant within two months from the date of this judgment.

9. It may be mentioned that there is misconception

C/SCA/13592/2018 ORDER DATED: 14/06/2021

abut interest. Interest is not a penalty or punishment at all, but it is the normal accretion on capital. For example if A had to pay B a certain amount, say 10 years ago, but he offers that amount to him today, then he has pocketed the interest on the principal amount. Had A paid that amount to B 10 years ago, B would have invested that amount somewhere and earned interest thereon, but instead of that A has kept that amount with himself and earned interest on it for the period. Hence, equity demands that A should not only pay back the principal amount but also the interest thereon to B.

8. As against this, learned AGP relying upon the affidavit as well as additional affidavit submitted that there is no delay much less an inordinate delay and unreasonable delay in making the payment of retirement dues to the petitioner which would entitle the petitioner to claim interest. It is submitted that the interest is required to be calculated from the date of entitlement to such benefits which, in the instant case, is in the year 2016 and it is matter of record that in the very year, within a span of couple of months, the petitioner has received retirement benefits as per her entitlement. Therefore, there is no question of delay and no interest is therefore payable.

9. With regards to the claim of the Academic Term Benfit, learned AGP submitted that the same has been granted to one co-employee Ashok Pandya, as the Court specifically directed that such benefit to be granted to such co-employee. There is nothing on record to indicate that the case of the petitioner can be considered on the terms of parity, as no other co- employees have either claimed or granted such

C/SCA/13592/2018 ORDER DATED: 14/06/2021

Academic Term Benefit.

10. It is submitted that the grant of interest from the date of retirement under resolution was not to be treated as precedent, as is mentioned in the resolution granting such benefits.

11. Learned AGP has, thereafter, drawn attention of this Court to the decision of Division Bench of this Court, wherein identical claim for interest of another co-employee has been rejected.

12. Having heard the learned advocates for the respective parties and having perused the documents on record, it is transpired that the petitioner was one of the petitioners in Special Civil Application No.3746 of 2016 filed by the 28 ad-hoc Demonstrators (Lecturers) with a prayer to regularize their service, as they were performing duties against the sanctioned post and grant them all the benefits, as available pursuant to such directions. As the directions of this Court in the same petition were not complied with, some of the co-petitioners had filed contempt petition being Misc.Civil Application No.2485 of 2016 and allied matters seeking compliance of the decision of this Court in Special Civil Application No.3746 of 2016. The contempt petition came to be disposed of vide order dated 21.10.2016, whereby it was indicated that the benefits flowing from the judgment and order passed by the co-ordinate bench of this Court in Special Civil Application No.3746 of 2016 such as pay fixation and the

C/SCA/13592/2018 ORDER DATED: 14/06/2021

benefits of higher pay-scale of Lecturer (Senior Scale) and Lecturer (Selection Scale) on completion of 8 years and 16 years of service including difference of salary, other benefits/pensionary and arrears of revision of pension on grant of higher pay scale shall be paid to the concerned employees within a period of 4(four) weeks from that day. Pending such application itself, resolution came to be passed on 12.09.2016 and the services of 28 Demonstrators cum Tutors/Lecturers were ordered to be regularized. By another resolution dated 16.11.2016, the co- petitioners including the present petitioner were granted the senior scale and selection scale and by resolution dated 23.01.2017, 16 petitioners, who were before the Court for the purpose of interest, considering the directions issued by this Court, interest was granted. However, said resolution was passed in special circumstances and was not to be treated as precedent.

13. Learned AGP submitted that pursuant to the said Resolution dated 12.09.2016, the petitioner was held entitled for the retiral benefits which were paid as under:-

Sr.No. Description             Gross        Net Pay         Cheque No.      Paid Date
                               Total
     1       Leave             912980       912980          328038          21.10.2016
             Encahsment                                     19.10.2016
     2       Leave             149870       149870          340181          01/03/17
             Encashment                                     03.01.2017
             Diff
     3       Senior &          1103819      770704          335616          12/09/16
             Section                                        08.12.2016
             Grade
     4       Gratuity          1000000      1000000         168362          27.10.2016






    C/SCA/13592/2018                                          ORDER DATED: 14/06/2021



                                                         27.10.2016
  5     C.V.P.                962832        962832       168361            27.10.2016
                                                         27.10.2016
  6     C.V.P.Diff            158413        158413       19.12.2016        19.12.2016
  7     Pension               1747277       1439277      168360            27.10.2016
                                                         27.10.2016
  8     Pension               306171        306171       19.12.2016        19.12.2016
        Diff.
  9     Juth Vimo             207976        207976       1010127261        08/02/14

                                                         02.08.2014
  10    GPF                   175800        175800       110889            02/06/14
                                                         06.02.2014

14. Learned AGP submitted that the rationale behind grant of interest is to ensure timely payment and in present facts, all the benefits are conferred within time hence, question of interest on any delayed payment does not arise. The computation of delay, if any, is to be computed from the date of Government Resolution i.e. 12.09.2016 and not from date of superannuation i.e. 30.11.2013 as she was regularized in 2016.

15. Learned AGP submitted that the Government decided to file LPA in these petitions, in between Government Resolution dated 12.09.2016 was passed by the State Government to Regularize ad-hoc services of all 28 ad-hoc employees subject to the final outcome of LPA No.616 of 2016 in Special Civil Application No.4269 of 2016. It is in this background, few employees, who had approached the Hon'ble Court at relevant point of time, and was directed by Court to grant interest, were thereafter, being granted

C/SCA/13592/2018 ORDER DATED: 14/06/2021

interest from the date of retirement vide resolution dated 20.01.2017. Hence, the Resolution dated 20.01.2017 granting interest from the date of retirement to 14 persons was issued specifically to comply with the directions of the Court and therefore it is not to be treated as precedent.

16. Learned AGP further submitted that the petitioner has remained silent till date and only approached the Court after the Resolution dated 20.01.2017. That, if the petitioner could have been aggrieved by non-grant of any benefit, she ought to have approached the authority or Court like other employees. She has neither raised any claim of interest after regularization nor at the time of payment of benefits. Hence, she cannot be granted interest from the date of retirement.

17. The judgment cited by the petitioner in support of the claim of the interest delivered by the Apex Court in the case of Alok Shanker Pandey (Supra) is in the contest of Monopolies and Restrictive Trade Practices Act, 1969, where private contract was in question, and therefore, may not be considered for the case of the petitioner.

18. In an identical claim raised by co-employee Susan Mathew, the division Bench of this Court has dealt with it in Letters Patent Appeal No.624 of 2020. The claim of co-employee of receiving the interest from the date of her retirement came to be negatived. In the case before the Division Bench, the

C/SCA/13592/2018 ORDER DATED: 14/06/2021

original petitioner retired on 30.11.2015, whereas entitlement to the benefits were declared in the year 2016. Similarly, the petitioner had retired in the year 2013 and the entitlement was declared in the year 2016 and if the period of deciding the entitlement and grant of the retirement benefits is concerned, then as it is indicated in the table reproduced herein above, this Court is of the view that there is no inordinate delay or unreasonable delay in making the payment of retirement benefits.

19. In that view of the matter, this Court is bound to follow the path adopted by the Division Bench of this Court in the case of co-employee and hence, the present petition is required to be rejected and the same is hereby rejected. Notice is discharged.

(A.Y. KOGJE, J) GIRISH