Pankajbhai Manubhai Patel vs State Of Gujarat
2021 Latest Caselaw 6091 Guj

      C/SCA/7522/2020                            JUDGMENT DATED: 16/06/2021




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                R/SPECIAL CIVIL APPLICATION NO. 7522 of 2020

FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.Y. KOGJE
================================================================

1      Whether Reporters of Local Papers may be allowed               Yes
       to see the judgment ?

2      To be referred to the Reporter or not ?                        Yes

3      Whether their Lordships wish to see the fair copy               No
       of the judgment ?

4      Whether this case involves a substantial question               No
       of law as to the interpretation of the Constitution
       of India or any order made thereunder ?

================================================================
                        PANKAJBHAI MANUBHAI PATEL
                                  Versus
                            STATE OF GUJARAT
================================================================
Appearance:
MR. HJ KARATHIYA(7012) for the Petitioner(s) No. 1
ULLASH N GOHIL(8357) for the Petitioner(s) No. 1
DS AFF.NOT FILED (N)(11) for the Respondent(s) No. 4
MR. ISHAN JOSHI, AGP, (1) for the Respondent(s) No. 1,2
NOTICE SERVED(4) for the Respondent(s) No. 3
===============================================================
 CORAM: HONOURABLE MR. JUSTICE A.Y. KOGJE

                             Date : 16/06/2021
                             ORAL JUDGMENT

[1] Rule. Learned Assistant Government Pleader waives service of rule on behalf of respondent Nos. 1 and 2.

[2] Draft amendment is allowed. To be carried out forthwith.

[3] This petition under Article 226 of the Constitution of India is filed by the petitioner challenging the communication dated

C/SCA/7522/2020 JUDGMENT DATED: 16/06/2021

02.03.2020 issued by the Education Department by which the General Provident Fund Account (For short "GPF Account") of the petitioner was ordered to be closed. Pending the petition, order came to be passed dated 25.02.2021 effectively closing the GPF account of the petitioner. Hence, the amendment.

[4] Learned advocate Mr. H.J.Karathiya appearing for the petitioner submits that the petitioner was appointed as Ad-Hoc Lecturer in Computer Engineering Department on 25.03.1997. During continuing Ad-Hoc appointment, as per the policy for Provident Fund, GPF Account was opened and was being operated regularly. Thereafter, the petitioner cleared the examination conducted by GPSC and was given regular appointment on 25.09.2006 as Head of the Department (E.C. Engineering Department). Learned advocate submits that pursuant to the communication dated 02.03.2020 by the Education Department in view of the Government Resolution dated 18.03.2005 more particularly Clause-3, for the employees who were appointed subsequent to 01.04.2005, the new policy of Contributory Pension Scheme would be made applicable. As per this, treating the appointment of the petitioner after GPSC selection in the year 2006, the case of the petitioner was treated to be covered under the Resolution dated 18.03.2005 and therefore, the impugned action has been taken by which the GPF Account of the petitioner was ordered to be closed.

[4.1] Learned advocate has relied upon two Government Resolutions dated 03.07.1998 and 6.09.2005 and submitted that as the petitioner though on Ad-Hoc basis was in Government service and had GPF Account which was being operated continuously. Thereafter, after GPSC selection the

C/SCA/7522/2020 JUDGMENT DATED: 16/06/2021

petitioner was again appointed on regular post though a different one from the previous one still the status of the petitioner as Government servant would continue and therefore, the clarification made in the subsequent Government Resolution dated 06.09.2005, the GPF Scheme as applicable in the year 1972 would be applicable to the petitioner and therefore, error is committed by the respondent authorities in treating the petitioner as a newly appointed Government employee in the year 2006 to be covered under the new defined Contributory Pension Scheme.

[4.2] Learned advocate further submitted that even after the petitioner was appointed in the year 2006 on a new post, till date the GPF Account has been operated regularly.

[5] As against this, learned Assistant Government Pleader has opposed the petition by submitting that the case of the petitioner will be covered by the Government Resolution dated 18.03.2005 as the original appointment of the petitioner was as an Ad-Hoc Lecturer in Computer Engineering Department from 25.03.1997 and such appointment was made on Ad-Hoc basis for a period of 11 months or till the regularly selected candidate through the GPSC is available. Thereafter, the petitioner in the year 2006 had applied through GPSC for new post altogether namely Head of the Department Class-I in Electronics and Radio Engineering and after due process of selection, was appointed by an order dated 14.06.2006. Therefore, for all practical purpose and especially in terms of Government employment, the petitioner has been given fresh appointment and therefore, be covered under the Government Resolution dated 18.03.2005.

C/SCA/7522/2020 JUDGMENT DATED: 16/06/2021

[5.1] Learned AGP further submitted that even reading of the Government Resolution dated 03.07.1998, it would indicate that if the new appointment after GPSC selection is on the very post on which the petitioner was appointed as Ad-Hoc employee, in that case, Government Resolution dated 03.07.1998 would have an application to consider the petitioner to be in continuous service on one post. The Government Resolution dated 03.07.1998 does not give understanding as canvased by the petitioner. Similarly, the amendment issued by the Finance Department dated 06.09.2005 in connection with the Government Resolution dated 18.03.2005 also has to be read to mean that the employee who was appointed on Ad-Hoc basis subsequently upon clearing the requirement of GPSC selection process is appointed as regular employee on the same post, in that case only, the GPF Account opened earlier as Ad-Hoc employee would be treated to have continued.

[6] Heard learned advocates for the parties and perused the documents placed on record. The question that falls for consideration is whether the case of the petitioner falls within the explanation by the Finance Department dated 06.09.2005 to the Government Resolution of the Finance Department dated 18.03.2005 and therefore, entitled to continue the GPF Account.

[7] The facts which are relevant and not in dispute are that the petitioner was appointed as Ad-Hoc Lecturer in Computer Engineering Department on 25.03.1997. During his employment as Ad-Hoc employee, the GPF Account of the petitioner was opened as per the prevailing rules pertaining to the GPF under Circular dated 20.09.1975 issued by the Finance

C/SCA/7522/2020 JUDGMENT DATED: 16/06/2021

Department as well as Circular dated 29.05.1988 again issued by the Finance Department. Both these provide for opening of GPF Account compulsory for those Government servants/officers who though may not be permanent, but have put in three years of continuous service. The petitioner thereafter, faced selection procedure and after successfully cleared the selection procedure by the GPSC was appointed against the regular post of the very Department as the Head of the Department w.e.f. 25.09.2006. The relevant portion of the Government Resolution dated 18.03.2005 and Clause-3 read as under:-

"Announcement was made in the budget of the year 2003- 04 in the parliament to insert new structure known as Defined Pension Scheme for the the new candidates recruited in the service of central government and towards the first step of its implementation, the Government of India introduced a New Defined Contribution Pension Scheme for its employees (Except armed forces) w.e.f. 01/01/2004. The Government of India has formed interim scheme for implementation of the said scheme as detailed rules and regulations are yet to be formed.

At the end of careful consideration, as it was decided to implement the said new defined pension scheme (NEW DEFINED CONTRIBUTION PENSION SCHEME) w.e.f. 01st April, 2005, New Defined Pension Scheme shall be applicable to the employees appointed on or after 01st April, 2005 as mentioned hereunder

"Clause-3 The employees who have been appointed with respect to the Monthly Lump Sum Pay Policy implemented by the State Government and the employees who shall be appointed on or after 01/04/2005 in the regular pay scale."

[8] The amendment to the Government Resolution dated 18.03.2005 issued by the Finance Department on 06.09.2005 would read as under:-.

"New Pension Scheme becomes applicable vide Order dated

C/SCA/7522/2020 JUDGMENT DATED: 16/06/2021

18/03/2005 cited at Preamble (1) to the employees of the State Government recruited on or after 01/04/2005. But as per the Orders of the Government of India cited at Sr.(2) of the preamble, the employees who have been in the service of the state government prior to the date of implementation of new pension scheme i.e. 01/04/2005 and are entitled to the benefit of the pension scheme pursuant to their original appointment / service, if such employees/officers get selected and appointed on new post in the government on or after 01/04/2005 by direct recruitment from their original appointment/service by recognized process and if they required to tender resignation for technical reasons to join new appointment, present scheme (Pensions Scheme of 1972) of the government shall be applicable to such employees/officers."

[9] It would be pertinent to refer to the Government Resolution dated 03.07.1998 for the better understanding of application of the benefits of employment, wherein the employee shifts from Ad-hoc basis to regular post. The Clause- 2 of Government Resolution dated 03.07.1998, reads as under:-

"2.After a careful consideration, the Government has resolved that, if a government employee has been appointed in any cadre on ad-hoc basis and later, gets appointment after selection through Gujarat Public Service Commission or Centralized Recruitment or any recognized process and if there is no break in the service, then such earlier ad-hoc service shall be counted only for the purpose of pension in consultation with the Finance Department and the General Administrative Department and if there is a break between two services, then such breaks shall be counted as leave without pay in consultation with the Finance Department and the General Administrative Department."

[10] From the combine reading of the aforesaid resolutions and the subsequent amendment, the Court is of the view that the amendment was specifically moved by the Finance Department so as the benefit which has accrued to employee who is already in Government service prior to the date

C/SCA/7522/2020 JUDGMENT DATED: 16/06/2021

specified in the Government Resolution dated 18.03.2005 i.e. 01.04.2005 in terms of the pensionary benefits and that for the technical reason required to be resign from the post in question to join the new post, in that case, the pensionary benefits under the scheme which is prevailing prior to 01.04.2005 and which was already in favour of the employee then such benefit should continue to accrue even after fresh appointment after 2005.

[11] In the instant case, when the petitioner was appointed in the year 1997 on Ad-Hoc basis the GPF Account was already opened and was being operated and when in the year 2006, the petitioner was appointed after due selection against the regular post, then the benefit of the GPF Account opened prior to 01.04.2005 in favour of the petitioner is required to be continued as the case of the petitioner will squarely be covered by the amendment dated 06.09.2005 to the Government Resolution dated 18.03.2005.

[12] The argument on the part of the Government to treat the appointment of the petitioner in the year 2006 to be fresh appointment, cannot be accepted as in the amendment of 06.09.2005, the emphasis and requirement to continue in the old GPF scheme is to be made available to a "Government servant" and is not related to the scale, grade or post. Therefore, only the requirement is to see that the petitioner prior to 01.04.2005 is a Government servant is already beneficiary of the GPF scheme. With these two aspects, requirement of the amended Resolution dated 18.03.2005 is fulfilled and would squarely cover the case of the petitioner.

C/SCA/7522/2020 JUDGMENT DATED: 16/06/2021

[13] In view of the aforesaid, the case of the petitioner for continuing the GPF as a Ad-Hoc employee in the year 1997 is required to be continued without any break upon his being appointed as regular employee after due selection by the GPSC.

[14] With the aforesaid, present petition is allowed. the impugned order dated 25.02.2021 issued by the respondent No.4 is ordered to be quashed and set aside. Rule is made absolute to the aforesaid extent.

(A.Y. KOGJE, J) SIDDHARTH