State Of Gujarat vs Hasmukh Harjivandas Patel
2021 Latest Caselaw 17741 Guj

      C/LPA/882/2021                                    ORDER DATED: 25/11/2021




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                R/LETTERS PATENT APPEAL NO. 882 of 2021
            In R/SPECIAL CIVIL APPLICATION NO. 11195 of 2002
                                   With
                CIVIL APPLICATION (FOR STAY) NO. 1 of 2020
               In R/LETTERS PATENT APPEAL NO. 882 of 2021
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                            STATE OF GUJARAT
                                  Versus
                        HASMUKH HARJIVANDAS PATEL
==========================================================
Appearance:
Mr SOAHAM JOSHI AGP for the Appellant(s) No. 1,2
for the Appellant(s) No. 3
MR BHASKAR TANNA, SR ADVOCATE for TANNA ASSOCIATES(1410) for
the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE S.H.VORA
       and
       HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE

                              Date : 25/11/2021

                               ORAL ORDER

(PER : HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE)

1. The present Letters Patent Appeal takes exception to judgment and order dated 07.10.2019 passed in Special Civil Application No.11195 of 2002.

2. The brief facts leading to filing of the present appeal are as follow :-

2.1 The respondent herein retired with effect from 14.06.1991. The State Government by Government Resolution dated 26.09.1989 had announced a pension scheme for teaching and non-teaching staff. Vide another Government Resolution dated 17.09.1991, the State Government extended the said date for exercising the option for two months from the date of the aforesaid

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government resolution. The respondent thereafter exercised his option on 24.10.1991 which was duly accepted by the Commissioner of Higher Education in letter dated 24.01.1992. That the Account Department raised an objection on 27.11.1992 and the option exercised by the respondent herein came to be rejected. That thereafter, the respondent filed Special Civil Application No.6871 of 1998 which came to be disposed of by order dated 23.06.1999 directing the appellants to constitute a Committee to consider the case of the respondent for being included in the pension scheme. It was further directed that if the respondent is found eligible and entitled, he should be given all the consequential benefits of pension and arrears of amount of pension with interest. It appears that thereafter, the Committee came to be constituted. The respondent's case was examined and vide order dated 05.08.1999, the same came to be rejected.

2.2 Aggrieved, the respondent filed Special Civil Application No. 11195 of 2002 seeking to quash and set aside order dated 05.08.1999 with a further direction to pay all the pensionary benefits with arrears.

2.3 By impugned judgment and order, the learned Single Judge was pleased to allow Special Civil Application No. 11195 of 2002 and quashed and set aside order dated 05.08.1999 directing the appellants herein to fix and grant the pension to the respondent from the date of his retirement with 9 % interest.

2.4 Aggrieved, the appellants herein have filed the Letters Patent Appeal.

3. Learned Assistant Government Pleader Mr. Soaham Joshi submitted that the learned Single Judge erred in not interpreting Government Resolution dated 17.09.1991 in its true

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purport and context. It was submitted that the government resolution states only about the employees in service and ex- employees have been specifically not included in the said government resolution and the resolution being clear and unambiguous, its literal interpretation ought to have been afforded. It was further submitted that the respondent did not avail any opportunity to exercise his option to switch over to G.P.F. scheme during his service tenure and the same was done belatedly upon his retirement which was impermissible as per Government Resolution dated 17.09.1991. Learned AGP thus prayed that the impugned order be set aside and the Letters Patent Appeal be allowed.

3.1 Learned AGP also pointed out that Letters Patent Appeal No. 982 of 2015 which was decided by this Court vide judgment and order dated 02.07.2015 was assailed before the Hon'ble Supreme Court by way of filing Special Leave Petition (Civil) No. 15392 of 2016 wherein the Hon'ble Supreme Court has granted the stay till furthers orders vide order dated 02.09.2016 and the same is still pending consideration and adjudication. It was submitted that thereafter, similar Letters Patent Appeals came to be disposed of and the same were challenged before the Hon'ble Supreme Court and in some of the cases, the Special Leave Petitions came to be dismissed and in some other cases, only notice has been issued, but no stay has been granted. It was further submitted that all these Special Leave Petitions are tagged together for hearing.

4. Per contra, learned senior counsel Mr. Bhaskar Tanna appearing on behalf of the respondent submitted that in terms of Government Resolution dated 17.09.1991, the respondent had exercised his option on 24.10.1991 which was well within the limitation of two months and the same had been also accepted by the Commissioner of Higher Education in letter dated 24.01.1992. It was submitted that only upon the Account Department having

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raised an objection, the said application came to be rejected and the respondent was constrained to move this Court. It was further submitted that the respondent herein is aged 90 years old as on date and he is not getting any pension despite having served full length of service eligible for pension. In this background, it was urged that the Letters Patent Appeal be dismissed and the respondent be granted the pension as rightly directed by the learned Single Judge in Special Civil Application No.11195 of 2002.

5. Heard learned Assistant Government Pleader Mr. Soaham Joshi for the appellants and learned senior counsel Mr. Bhaskar Tanna for the respondent at length.

6. A perusal of the relevant government resolutions on the issue reveals that there are two sets of employees who had to exercise the option for pension scheme or contributory provident fund scheme (i) employees of the existing staff recruited before 01.04.1982 and (ii) employees who have retired on or after 01.04.1982 and prior to issuance of Government Resolution dated 15.10.1984. It is not disputed that the respondent herein had retired on 14.06.1991 and after his retirement, he opted for pension scheme vide his application dated 24.10.1991 under Government Resolution dated 26.09.1989. It is further seen that the respondent also deposited his provident fund contribution for availing the pension benefits on 25.02.1992. It is further seen that the Commissioner of Higher Education by letter dated 24.01.1992 accepted the option exercised by the respondent for claiming the pension and forwarded the same to the Director of Pension and Provident Fund for preparing the pension papers. It is only thereafter when the Account Officers in the Directorate of Pension and Provident Fund raised an objection that as the respondent was a member of Contributory Provident Fund Scheme, he would not be entitled for pension and the case of the respondent came to be rejected.

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7. As noticed and elaborately discussed by the learned Single Judge in the impugned judgment and order, the present issue has been put to rest by the Coordinate Bench of this Court in Letters Patent Appeal No.2259 of 2017 and other allied matters by its judgment and order dated 02.05.2019 wherein it has been directed that the benefit of pension scheme should be granted to all the employees in view of Government Resolution dated 15.10.1984 from the date of their respective retirement. Thereafter also, in many cases, this Hon'ble Court has followed the said decision of the Coordinate Bench. We see no reason to differ with the said legal position.

8. In the premises, the impugned judgment and order needs no interference and the same is in consonance with the law laid down by this Court. The Letters Patent Appeal is dismissed. No order as to cost. Consequently, connected Civil Application does not survive and accordingly, it stands disposed of.

(S.H.VORA, J)

(ANIRUDDHA P. MAYEE,J)

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