Gujarat High Court

Bhartiben Pradhuman Dave vs State Of Gujarat on 28 February, 2022

Bench: Biren Vaishnav

    C/SCA/18681/2021                               JUDGMENT DATED: 28/02/2022



            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 18681 of 2021

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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                         BHARTIBEN PRADHUMAN DAVE
                                   Versus
                         STATE OF GUJARAT & 2 other(s)
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Appearance:
SHIVANG P JANI(8285) for the Petitioner(s) No. 1
MR.KURVEN DESAI, AGP for the Respondent(s) No. 2
MR AR THACKER(888) for the Respondent(s) No. 3
NOTICE SERVED BY DS for the Respondent(s) No. 1
SHIVANG A THACKER(7424) for the Respondent(s) No. 3
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    CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV

                               Date : 28/02/2022

                               ORAL JUDGMENT

1. RULE returnable forthwith. Mr.Kurven Desai

learned AGP waives service of notice of Rule on

behalf of the respondent State.

C/SCA/18681/2021 JUDGMENT DATED: 28/02/2022

2. With the consent of learned advocates for the

respective parties, the petitions are taken up for

final hearing.

3. Today, while dealing with a similar issue as raised in

the present petition, this Court in Special Civil

Application No.14383 of 2019 and allied matters,

has delivered the following judgment:

"1. RULE returnable forthwith. Mr.Kurven Desai learned AGP waives service of notice of Rule on behalf of the respondent State.

2. With the consent of learned advocates for the respective parties, the petitions are taken up for final hearing.

3. The issue involved in these petitions is no longer a matter of debate in view of the decision of the Division Bench of this Court rendered in Letters Patent Appeal No.2259 of 2017 and allied appeals decided on 02.05.2019.

4. Considering the law laid down by this Court in previous decisions, the Division Bench of this Court held as under:

"(d) What is evident from the service details of the respondents is that they had two spells of service. The first spell was prior to 01.04.1982 and the second one after 01.04.1982. As far as the first spell is concerned there was only one scheme CPF, therefore there was no question of exercising option. In the second spell, when they joined there was no question of exercising option as the pension scheme was compulsory.

They were, to use the words of clause 4 of the

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resolution, "automatically" governed by the pension scheme as therefore there was no fault, inaction or omission which would disentitle them to claim pension. The disability of filling in the option form or asking for switching over belatedly cannot be held against them."

5. The coordinate bench of this Court relying on the aforesaid Division Bench judgment, in Special Civil Application No.19369 of 2016 and allied matters, held as under:

"3.2 The claim of the petitioners for benefit of GPF Scheme was rejected by the State authorities on the ground that they had not exercised the option within stipulated time. In the affidavit-in-reply filed by the Joint Commissioner, Higher Education, same contention was advanced that the option was not exercised within time limit.

4. It appears that the controversy and the issue was subject matter of petitions before this Court which culminated into decision in State of Gujarat v. Kalhans Harilal Patel being Letters Patent Appeal NNo.2259 of 2017 and cognate Letters Patent Appeals arising from different writ petitions, which Letters Patent Appeals came to be finally decided by judgment dated 02nd May, 2019.

5. In Kalhans Harilal Patel (supra), following was held in paragraph 11(d) as under.

"(d) What is evident from the service details of the respondents is that they had two spells of service. The first spell was prior to 01.04.1982 and the second one after 01.04.1982. As far as the first spell is concerned there was only one scheme CPF,

C/SCA/18681/2021 JUDGMENT DATED: 28/02/2022

therefore there was no question of exercising option. In the second spell, when they joined there was no question of exercising option as the pension scheme was compulsory. They were, to use the words of clause 4 of the resolution, "automatically" governed by the pension scheme as therefore there was no fault, inaction or omission which would disentitle them to claim pension. The disability of filling in the option form or asking for switching over belatedly cannot be held against them."

5.1 It was further held in paragraph 12.1 onwards as under.

"12.1 In the cases of L.P. Joshi (supra), Banuben Dhakkan (supra), Bhupendra Chudasama (supra) and Uma Chudasama (supra), this Court has reiterated and revisited the entire scheme of the Government Resolution dated 15.10.1984 and in no uncertain terms held that if clause no. 3 of the resolution is perused there are two types of employees who have to exercise option namely (a) members of the existing staff recruited before 01.04.1982 (b) Those staff who have retired on or after 01.04.1982 and prior to the issuance of the Government Resolution dated 15.10.1984. it is therefore the relief of option. Once an employee is a recruit post 01.04.1982, he automatically comes over to the pension scheme.

13. The objection of the State therefore that the subsequent decision of the respondents herein to ask for a switch over due to the rise in pension amounts to the revision of pay will also not hold good. Their coming over to pension being automatic, the State is obliged to extend the benefits. Once the learned Single Judge of the judgement under challenge had asked the State to so consider, the State was bound to consider the same positively in light of the directions so issued

C/SCA/18681/2021 JUDGMENT DATED: 28/02/2022

and not reject the same on the ground of financial implications. In fact, financial burden is no ground to deny benefits arising from the pension rules.

14. It is required to be noted that so far as the teaching staff is concerned, there is no concept of automatic promotion on higher posts on completion of certain number of years. An employee has to acquire educational qualification and put in number of service to secure eligibility criteria for recruitment on higher post. Any appointment either direct or by transfer or by changing the post in the same institute and or in different institute for securing higher post or on a same post made after 1982 is covered under pension scheme - GPF for which option is not to be given as CPF scheme is discontinued with effect from 01.04.1982. It is settled that the employees even though recruited before 01.04.1982 on a given post but subsequently i.e. After 01.04.1982 if they are again recruited after following the procedure prescribed therein, then such employees are not required to give any option to switch over from CPF to GPF because of requirement of clause 4 of the Government Resolution dated 15.10.1984. The said clause 4 at the cost of repetition is reproduced hereinbelow:

"4. The member of the staff recruited on or after 1st April, 1982 shall automatically be governed by this scheme. Such staff will not be allowed to opt for contributory provident fund scheme."

14.1 Moreover, any recruitment/appointment made after 01.04.1982 for the teaching staff is through advertisement and selection hence it is fresh appointment and therefore pension scheme I.e. GPF is automatically applicable. Further, for the non teaching staff also, their promotion at a particular time is to be considered as recruitment and therefore they

C/SCA/18681/2021 JUDGMENT DATED: 28/02/2022

need not give the option at the time of promotion. In view of the overall facts of the case we are not inclined to entertain these appeals and therefore the appeals deserve to be dismissed.

15. For the aforesaid reasons, the judgements rendered by the learned Single Judges in the respective Letters Patent Appeals are confirmed. The State authorities are directed to grant the benefit of the pension scheme to all the respondents in view of the Government Resolution dated 15.10.1984 from the date of their respective retirement. The respondents who have not refunded/repaid the amount of Contributory Provident Fund, their case be considered by the authorities by paying the amount of pension after adjusting/setting off the amount of Contributory Provident Fund payable by the respondents. In case of the respondents who have refunded/repaid the amount of Contributory Provident Fund, they shall be entitled for interest at the rate of 9% per annum on the amount of pension from the date of their repaying/refunding the amount of Contributory Provident Fund. The respective parties shall act upon these directions and implement the same within 8 weeks from the date of receipt of the writ of the order of this Court. Appeals are accordingly dismissed. Civil Applications also stand disposed of accordingly."

5.2 In view of the above law laid down by the Division Bench, the petitioners would be entitled to have the benefit of GPF Scheme.

6. The case of the present petitioners is governed by the decision rendered in Letters Patent Appeal No.2259 of 2017 and allied appeals followed by the coordinate bench of this Court in the above quoted order.

C/SCA/18681/2021 JUDGMENT DATED: 28/02/2022

7. It is also pointed out by Mr.D.V.Shah that the Division Bench decision of this Court rendered in Letters Patent Appeal No.2259 of 2017 and allied appeals is confirmed by the Hon'ble Supreme Court in Civil Appeal No.9018 of 2016. Paragraph No.7 of that order reads as under:

"7. The position which emerges is that the judgment of the High Court has attained finality in respect of one batch of pensioners. No distinction exists in fact between the cases of the pensioners who are respondents to the present batch of cases with the pensioners in the earlier batches, who are governed by the orders by which the Special Leave Petitions by the State of Gujarat were dismissed. Consequently, it would be wholly iniquitous to apply a different yardstick to a batch of pensioners who are respondents to these proceedings, when the judgment of the High Court has attained finality in respect of a similar batch of pensioners who are governed by the same judgment. They are receiving pensions."

8. Mr.Kurven Desai learned AGP would submit that the petitioners are fence-sitters inasmuch as they retired in the year 2015 and are now claiming the benefit of GPF.

9. In view of this particular objection, the Division Bench had specifically taken care of such employees in paragraph no.15 of the judgment in Letters Patent Appeal that the same will also govern the case of the present petitioners. Paragraph no.15 of the judgment of the Division Bench reads as under:

"15. For the aforesaid reasons, the judgements rendered by the learned Single Judges in the

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respective Letters Patent Appeals are confirmed. The State authorities are directed to grant the benefit of the pension scheme to all the respondents in view of the Government Resolution dated 15.10.1984 from the date of their respective retirement. The respondents who have not refunded/repaid the amount of Contributory Provident Fund, their case be considered by the authorities by paying the amount of pension after adjusting/setting off the amount of Contributory Provident Fund payable by the respondents. In case of the respondents who have refunded/repaid the amount of Contributory Provident Fund, they shall be entitled for interest at the rate of 9% per annum on the amount of pension from the date of their repaying/refunding the amount of Contributory Provident Fund. The respective parties shall act upon these directions and implement the same within 8 weeks from the date of receipt of the writ of the order of this Court. Appeals are accordingly dismissed. Civil Applications also stand disposed of accordingly."

10. In the result, the petitions are allowed. The State authorities are directed to grant the benefit of the pension scheme to all the petitioners in view of the Government Resolution dated 15.10.1984 from the date of their respective retirement. The petitioners who have not refunded/repaid the amount of Contributory Provident Fund, their case be considered by the authorities by paying the amount of pension after adjusting/setting off the amount of Contributory Provident Fund payable by the petitioners. In case of the petitioners who have refunded/repaid the amount of Contributory Provident Fund, they shall be entitled for interest at the rate of 9% per annum on the amount of pension from the date of their repaying/refunding the amount of

C/SCA/18681/2021 JUDGMENT DATED: 28/02/2022

Contributory Provident Fund. The respective parties shall act upon these directions and implement the same within a period of 16 weeks from the date of receipt of the writ of the order of this Court. Rule is made absolute to the aforesaid extent. "

4. In view of the above decision, the present

petition is allowed. The State authorities are

directed to grant the benefit of the pension

scheme to the petitioner in view of the

Government Resolution dated 15.10.1984 from

the date of her retirement. The petitioner if

has not refunded/repaid the amount of

Contributory Provident Fund, then her case be

considered by the authorities by paying the

amount of pension after adjusting/setting off

the amount of Contributory Provident Fund

payable by the petitioner. In case if the