Jashbhai Mathurbhai Patel vs State Of Gujarat
2021 Latest Caselaw 13069 Guj

     C/SCA/13340/2015                                 JUDGMENT DATED: 01/09/2021




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 13340 of 2015


FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE BHARGAV D. KARIA

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1     Whether Reporters of Local Papers may be allowed                     NO
      to see the judgment ?

2     To be referred to the Reporter or not ?                              NO

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 ?

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                         JASHBHAI MATHURBHAI PATEL
                                   Versus
                         STATE OF GUJARAT & 4 other(s)
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Appearance:
MS MAMTA R VYAS(994) for the Petitioner(s) No. 1
MR KURVEN DESAI, ASST. GOVERNMENT PLEADER(1) for the
Respondent(s) No. 1,2
RULE SERVED(64) for the Respondent(s) No. 3,4,5
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    CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA

                               Date : 01/09/2021
                               ORAL JUDGMENT

Heard learned advocate Ms.Mamta Vyas for the petitioner and learned Assistant Government Pleader Mr.Kurven Desai for the respondents.

2. By this petition, the petitioner has prayed

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for the following reliefs :

"(A) Your Lordships may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction holding that the service rendered by the petitioner in Primary Section of the Navdurga School (which is granted) from 1.9.1975 to 22.11.1987 and the service rendered in the Navdurga High School from 23.11.1987 to 31.05.2000 is continuous service for the purpose of pension and he is entitled for the pension for the whole period of service from 1.9.1975 to 31.5.2000 and further be pleased to direct the respondents to revise the pension considering his total service of 24 years and 6 months as continuous service for the purpose of pension;

(B) Your Lordships may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction directing the respondents to pay the arrears of pension and other pensionary benefits from the date of his retirement;

(C) Pending admission, hearing and final disposal of this Writ petition, Your Lordships may be pleased to direct the respondent to start paying adhoc revised pension every month regularly to the petitioner henceforth;

(D) Be pleased to pass such other and further relief as may be deemed just and proper by Your Lordships in the facts and circumstances of the case."

3. The brief facts of the case are that the petitioner was appointed as Assistant Teacher on 1st September, 1975 in Navdurga School which is granted Primary School and served up to 22nd November, 1987.

3.1 Since there was vacancy in the Secondary

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Section in the same school, the petitioner was selected and was given appointment order dated 18th November, 1987 and he joined the duties after giving resignation in the Primary Section with immediate effect on 23rd November, 1987.

3.2 The petitioner retired on attaining the age of superannuation on 31st May, 2000.

3.3 It is the case of the petitioner that the petitioner has continuously worked in the granted primary school and the granted secondary school and thereby he has rendered total service of 24 years and 6 months when the appointment of the petitioner was made in the Primary Section, there was no pension scheme at the relevant point of time.

3.4 As per the Government Resolution dated 28th August, 1990, it was decided to consider the previous services rendered in any of the Government School, college or department, to be treated as continuous service for the purpose of pension.

3.5 As per the Government Resolution dated 16th November, 1992 the earlier services rendered in any of the Government offices or institutions which are receiving the grant, are to be counted as continuous service for the purpose of pension and therefore, the previous service rendered by

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the concerned employee is required to be considered for the purpose of pension.

3.6 However, when the petitioner retired in the year 2000, he was informed that he is entitled for pension only for the service rendered in the Secondary Section as there was no provision for pension in the Primary Section.

3.7 It is the case of the petitioner that when the petitioner was appointed in the Primary Section, there was no provision for pension but it was introduced subsequently by Government Resolution dated 6th April, 2002 and the pension was payable to the employees of the Primary Section who had retired after 1st January, 1987 as per the terms of the Resolution.

3.8 It is the case of the petitioner that the petitioner is getting pension only for the period which he has worked in the Secondary Section from 23rd November, 1987 to 31st May, 2000 i.e. 12 years and 6 months.

3.9 The petitioner therefore, made a request on 11th April, 2015 before the Commissioner of Higher Education - respondent No.2, but the same was not replied and therefore, the petitioner has filed this petition with the aforesaid prayers.

4. Learned advocate Ms.Vyas appearing for the

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petitioner submitted that the facts of the case of the petitioner are similar to the facts of the case of the petitioner of Special Civil Application No.3582 of 2007, which is allowed by this Court (Coram: Honourable Mr.Justice A.S. Supehia) vide order dated 29th October, 2019. It was therefore, submitted that the petitioner is also entitled to the pension for the services rendered in the Primary Section in light of the Rule 25(10) of the Pension Rules, 2002 and the G.R. dated 6th April, 2002.

5. On the other hand, learned AGP Mr.Desai could not controvert the submissions made on behalf of the petitioner that the facts of the case of the petitioner would be covered by the judgment of this Court in Special Civil Application No.3582 of 2007.

6. In view of the above submissions, it would be necessary to refer to the judgment dated 29th October, 2018 passed by this Court in Special Civil Application No.3582 of 2007, which is as under :

"11. The undisputed fact is that the petitioner has rendered his service from 01.09.1965 to 31.05.2005 in the grant-in-aid institution vide Resolution dated 06.04.2002 wherein the State Government has introduced the pension scheme for primary teachers who are serving in grant in aid institution and were in service as on 01.01.1997 would be entitled to the pension. Hence, the petitioner will be entitled to

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pension for the earlier period rendered from 1.06.1965 till 12.08.1977. Rule 25 of Pension Rules, 2002 reads as under :-

"Pensionable service rendered by an employee in a grant-in-aid institution the pension liability in respect of which is borne by the Government to the extent as may be ordered by the Government from time to time."

12. Thus in the considered opinion of this Court, the petitioner is entitled for pension for the entire service from 1965 in view of the Rule 25 Sub- Rule 10 of the Pension Rules, 2002.The judgments cited by the Assistant Government Pleader cannot come to the rescue of the respondents since in the case before the Division bench. The concerned employee had retired on superannuation w.e.f. 31.03.2003 i.e. prior to the promulgation of scheme of 06.04.2002 whereas in the present petitioner has retired from service on 31.03.2003, and the entire service of the present petitioner rendered in grant in aid institution is to be considered for pension. In the writ petition and in Letters Patent Appeal has concerned petitioner had tendered his resignation on 04.04.1974 as recorded in the order dated 01/12/2008 in Special Civil Application No. 3622 of 2008 which is not in the case of the present petitioner. Thus, the case of the petitioner is required to be considered for pension in view of the Provision of Gujarat Civil Service Rules, 2002 and the scheme dated 06.04.2002. The respondent/s are hereby directed to examine the case of the petitioner in light of the Rule 25 (10) of the Pension Rules, 2002 and G.R. Dated 06.04.2002 and accordingly fix and grant the pension to the present petitioner. The entire exercise shall be carried out within the period of eight weeks from the date of receipt of the writ of this Court. The judgment and order dated 20.02.2006 passed by the Tribunal is quashed and set aside to the extent it denies the pension for the period of service rendered by the petitioner prior to 1977."

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7. In view of the above decision, this petition is also allowed. The respondents are directed to consider the services rendered by the petitioner in the Primary Section of the Navdurga School, which is granted school from 1st September, 1975 to 22nd November, 1987 and the services rendered in Secondary Section of the Navdurga High School from 23rd November, 1987 to 31st May, 2000 as continuous service for the purpose of pension and the petitioner is entitled to pension considering the entire period of service from 1st September, 1975 to 31st May, 2000 and accordingly, the pension of the petitioner is to be revised considering his total service of 24 years and 6 months as continuous service.

7.1 The respondents are further directed to carry out the calculation and pay the arrears within a period of eight weeks from the date of receipt of the writ of this Court, failing which, the respondents shall be liable to pay interest @ 9% per annum on the expiry of the period of eight weeks.

8. Rule is made absolute to the aforesaid extent. No order as to costs.

(BHARGAV D. KARIA, J)

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