Gujarat High Court

Bhaskarray Premshankar Jani vs Director Of Pension And Provident ... on 21 April, 2022

Bench: Biren Vaishnav

    C/SCA/12074/2020                              JUDGMENT DATED: 21/04/2022



            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 12074 of 2020


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE BIREN VAISHNAV

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

2    To be referred to the Reporter or not ?

3    Whether their Lordships wish to see the fair copy
     of the judgment ?

4    Whether this case involves a substantial question
     of law as to the interpretation of the Constitution
     of India or any order made thereunder ?

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                    BHASKARRAY PREMSHANKAR JANI
                                Versus
               DIRECTOR OF PENSION AND PROVIDENT FUND
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Appearance:
MR GM AMIN(124) for the Petitioner(s) No. 1
MR.KURVEN DESAI, AGP for the Respondent(s) No. 4
MR PRANAV V SHAH(2516) for the Respondent(s) No. 2
MS HARSHAL N PANDYA(3141) for the Respondent(s) No. 3
RULE SERVED for the Respondent(s) No. 1,4
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    CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV

                              Date : 21/04/2022

                             ORAL JUDGMENT

1. Heard Mr.G.M.Amin learned counsel for the

petitioner.

2. By way of this petition under Article 226 of the

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Constitution of India, the petitioner prays for a

direction to fix the pension and pensionary benefits

of the petitioner. The order under challenge is that

of the Gujarat Water Resources Development

Corporation of year 2019 which indicates that the

petitioner's services were for nine years, four

months and 13 days and therefore the petitioner is

not entitled to the benefits of pension.

3. Mr.Amin learned counsel for the petitioner would

submit that the petitioner was initially appointed on

01.06.1972 with the respondent no.1 District

Panchayat on creation of the Corporation in the year

1978. Employees from the different departments

including that of the Panchayat were brought to the

Corporation on 16.06.1978 by way of en block

transfer. No options were invited from the

employees who have been transferred and therefore

the State Government issued a circular on

14.10.1981 inviting options from the employees

transferred to the Corporation. The petitioner

served the Corporation till 31.03.2001. He was not

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given any option for the services rendered with the

previous employer. The case of the petitioner is that

for the purposes rendered with the previous

employer i.e. District Panchayat for the period from

03.02.1969 to 16.06.1978, the petitioner is entitled

to the benefits of pension. Reliance is placed on

several decisions of this Court.

4. Having heard the learned counsel for the respective

parties, what needs to be taken into consideration is

a decision rendered in Letters Patent Appeal No.307

of 2017 and allied appeals of the Division Bench

dated 28.02.2017.

5. Considering the question of whether pensionary

benefits should be granted to the respondents in the

appeal, for the period for which they had worked

with the Government or District Panchayat, as the

case may be, even when they had not completed

qualifying services of 10 years, the Division Bench

held as under:

"13. Having considered the submissions canvassed on behalf of the learned advocates

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appearing for the parties and having gone through the material produced on record, it emerges that the petitioners were appointed in the District Panchayat or in the Irrigation Department and because of the Resolution dated 08.06.1978 all the activities pertaining to tubewells/irrigation which were made under the Panchayat/Government, were transferred to the Corporation and entire staff including the petitioners came to be transferred to the Corporation and thereafter on 14.10.1981 resolution was issued by the respondent Government, whereby options were invited and those employees who did not exercise their options were treated to be the employees of the Corporation. The concerned petitioners have served with the Corporation and on attaining the age of superannuation, they retired from service. At the time of retirement, the Corporation has granted all the retiral benefits including CPF, leave encashement, gratuity, etc. Thus, we are of the view that the direction issued by the learned Single Judge to the appellant Corporation to pay the pensionary benefits is required to be modified by clarifying that the appellant Corporation is not liable to pay the pensionary benefits to the petitioners. Orders accordingly.

14. However, so far as the appellant District Panchayat in Letters Patent Appeal No.307 of 2017 is concerned, the original petitioner in the said petition served with the District Panchayat for more than 8 years and 7 months. However, because of the resolution passed by the Government, services of the said petitioner were transferred to the Corporation and he was absorbed in the Corporation. The contention of the learned advocate Mr. Munshaw that petitioner has not completed qualifying service of 10 years is misconceived, as for calculating the qualifying service, the services rendered by

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the petitioner from the date of his initial appointment till the date of his retirement is required to be counted. However, it is to be clarified at this stage that when the petitioner has completed service of 8 years and 7 months, he is entitled to the benefit of pension for the said period and for the purpose of qualifying service his continuous service is required to be taken into consideration. Thus, we are of the view that all the petitioners are eligible for pensionary benefits for the period for which they have worked with the State Government or the District Panchayat, as the case may be.

15. At this stage, it is also required to be noted that the similar issue has been decided by the Division Bench of this Court in an order dated 07.03.2011 passed in Letters Patent Appeal No.1552 of 2009 and order dated 10.04.2015 passed in Letters Patent Appeal No.1374 of 2011 and allied matters.

16. In view of the aforesaid discussion and in view of the reasons recorded by the learned Single Judge, Letters Patent Appeal No.307 of 2017 is dismissed. Whereas, other Letters Patent Appeal filed by the Corporation are partly allowed by clarifying that the appellant Corporation is not liable to pay the pensionary benefits to the concerned petitioners but the concerned District Panchayat and the State Government, as the case may be, are liable to pay the pensionary benefits to the concerned petitioners. The other appeals are accordingly disposed of with aforesaid modification in the order of the learned Single Judge.

Consequently, civil applications also stand disposed of."

6. Considering the order of the Division Bench, what is

observed therein is that in case of one of the

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petitioners, who had completed eight years and

seven months of service, the bench opined and

directed that his period of service should be treated

as qualifying service for the purposes of pension.

The Division Bench clarified that the Corporation

will not be liable to pay the pensionary benefits to

the concerned petitioner but the District Panchayat

and the State, as the case may be, are liable to pay

the pensionary benefits to the concerned petitioners.

Even in Letters Patent Appeal No.1552 of 2009

dated 13.09.2012, the Division Bench in the case of

an employee of Ahmedabad Jilla Panchayat, the

respondent in the present petition on the facts akin

to the one in this petition, held as under:

"3. The argument of Mr H.S. Munshaw, learned counsel appearing for respondent No.1 is that the appellant's services were transferred to the Corporation on 8.6.1978 and, therefore, on that date, the appellant had not completed 10 years' service which is qualifying service for grant of pension with the Ahmedabad Zilla Panchayat. According to the learned counsel for the petitioner, he was on deputation with the Corporation till 13.12.1981 and, therefore, his services till 13.12.1981 has to be treated in his parent cadre i.e. Ahmedabad Jilla Panchayat.

This question came up for consideration before the learned Single Judge of this Court in

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Special Civil Application No. 6690 of 1989 in the case of Narubha Mahobatsinh Jhala v. District Development Officer & Ors. decided on 11.8.2000 wherein the learned Single Judge took the view that till the work-charged employees of Ahmedabad Jilla Panchayat were absorbed in the services of the Corporation he was on deputation with the Corporation and, therefore, he has to be treated to be an employee of the Ahmedabad Zilla Panchayat and if he has completed 10 years of service prior to his absorption in the services of the Corporation then he would be entitled for pension. Operative portion of the order dated 11.8.2000 is reproduced hereunder:

"As a result of the discussion above, the petition succeeds and is hereby allowed. Respondents Nos. 1 and 3 - i.e. Panchayat Department represented through the District Development Officer and Director of Pension and Provident Fund, Government of Gujarat, are directed to entertain the claim of the petitioner for fixation of his pension and allow him pensionary benefits by treating him to have completed ten years of qualifying service. Since the petitioner retired in 1988, on his making suitable approach in writing to

and 3, within a period of one month, necessary orders in his favour would be passed to enable him to obtain pension within outer limit of three months from the date of receipt of representation. His pension be fixed from the due date and arrears to be also paid to him."

This decision of the learned Single Judge was affirmed in LPA No. 831 of 2000 in the case of District Development Officer & Ors. v. Narubha Mahobatsinh Jhala decided on 12.1.2005. Para No.5 of the said decision is reproduced as under:

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"5. Under the circumstances, when the learned Chief Justice of this Court allowed the petition of the original petitioner and directed the present appellant No.1-District Development Officer, Ahmedabad and original respondent No.3-The Director of Pension and Provident Fund, Government of Gujarat at Ahmedabad to entertain the claim of the petitioner for fixation of his pension and allowing him pensionary benefits treating him to have completed 10 years of qualifying service, then on peculiar facts and circumstances of the case, we would not like to interfere with such order in our Letters Patent Jurisdiction."

The above decision became final and binding on the respondent-Panchayat namely Ahmedabad Jilla Panchayat. Therefore, the controversy involved in this case is squarely covered by the aforesaid decision and since the appellant remained on deputation with the Corporation till 13.12.1981 and joined services of Ahmedabad Jilla Panchayat in the year 1968, he completed more than 10 years of qualifying service and so he is entitled to pension from Ahmedabad Jilla Panchayat, consequently the appellant shall be paid. Therefore, Ahmedabad Jilla Panchayat, has to forward papers to respondent No.2 for payment of pension to the appellant.

4. Learned Single Judge has dismissed the writ petition filed by the appellant-petitioner on the ground that the petitioner should have claimed and challenged that he had completed more than 10 years' service in the year 1981 itself. According to learned Single Judge, the cause of action for getting his service calculated arose to the petitioner in the year 1981 and, therefore, the writ petition was barred by delay and laches. In paras 8,9 and 10 of the order, the learned Single Judge has observed as under:

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8. Heard the learned Advocate for the respective parties.

Admittedly earlier the petitioner was in Panchayat Department. It is only because of option given to him the petitioner was taken in the respondent Corporation. Admittedly, even according to the petitioner, the respondent is not entitled to pension after the period of 1981. Thus the claim of the petitioner is prior to 1981 which is claimed in the present petition. Even looking to the clauses of the Resolution of 1981 it is clear that the petitioner had no objection in opting the service with the Corporation, otherwise, the petitioner would not have got the employment as his services would have been terminated or retrenched.

In any case, the cause of action as contended in the petition is of the year 1981 and there is a gross delay in filing the petition which cannot be condoned in view of the settled legal position.

In the case of Shiv Dass v. Union of India and others, reported in AIR 2007 SC 1330 it is held that if petition is filed beyond reasonable period, say three years, normally Court would reject the same or restrict the relief. The learned Advocate had unsuccessfully argued that the cause of action has arisen in the year 1995, but on the facts it is otherwise.

9. It is required to be noted that in the year 1981 it would have been retrenchment and not a retirement, and therefore the petitioner would not have become eligible for pension.

10. In the premises aforesaid, I do not find any merits in this petition. This petition is, therefore, dismissed."

In our opinion, the view taken by the learned Single Judge is not correct. The cause of action

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arose to the petitioner after retirement when the respondents failed to count his service of 10 years from 1978 till 1981 prior to the petitioner's absorption of service in the Corporation. Prior to it there was no question of payment of any pension. Therefore, the petitioner could not have raised any grievance for counting of service in 1981 itself. For the aforesaid, the order of the learned Single Judge cannot be maintained and deserves to be set aside. We may make it clear that barring this the appellant will neither raise any other claim nor the respondent will entertain any such claim on the part of the appellant.

5. In the result this appeal succeeds and is allowed. The judgment of the learned Single Judge dated 30.1.2009 passed in Special Civil Application No.7066 of 1999 is set aside. We hold that the appellant has actually worked with the respondent No.1 Ahmedabad Jilla Panchayat from 17.10.1968 to 13.12.1981 and he was entitled to pension from respondent No.1 as he has completed more than 10 years of qualifying service. The pension papers shall be prepared by respondent No.1 and sent to respondent No.2 within a period of 8 weeks from today and respondent No.2 shall in turn pass appropriate orders for payment of pension within a further period of 12 weeks. Parties shall bear their own costs."

7. Quoting the Division Bench decision in the appeals

aforesaid in Special Civil Application No.16887 of

2017, this Court on 17.03.2016 allowed the petitions

directing the respondents to entertain the claim of

the petitioners for fixation of their pension treating

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them to have completed 10 years of service.

8. The present petition is therefore allowed in terms of

the orders referred to herein above. The

respondents are directed to entertain the claim of

the petitioner for fixation of a pension and grant of

pensionary benefits treating the petitioner to have