Girishkumar Kanaiyalal Upadhyay vs Director, Pension And Provident ...
2022 Latest Caselaw 6382 Guj

     C/SCA/13590/2021                             ORDER DATED: 18/07/2022




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 13590 of 2021

                                 With
             R/SPECIAL CIVIL APPLICATION NO. 14243 of 2021
                                 With
             R/SPECIAL CIVIL APPLICATION NO. 14858 of 2021
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                  GIRISHKUMAR KANAIYALAL UPADHYAY
                                Versus
                DIRECTOR, PENSION AND PROVIDENT FUND
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Appearance:
MR GM AMIN(124) for the Petitioner(s) No. 1
for the Respondent(s) No. 2
MR KURVEN DESAI, ASST GOVERNMENT PLEADER for the
Respondent(s) No. 1,2,3
MRS. HIRAL TRIVEDI(5986) for the Respondent(s) No. 4
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 CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV

                            Date : 18/07/2022

                             ORAL ORDER

1. Rule returnable forthwith. Mr. Kurven Desai,

learned AGP appearing for respondent State waives

service of notice of rule. With the consent of the learned

advocates for the parties, the matter is taken up for final

hearing.

2. In these petitions, the prayer of the petitioners is to

fix their pensions and pay the arrears of pension.

3. Facts of Special Civil Application No. 14858 of 2021

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would indicate that the petitioners were initially working

in the office of the Executive Engineer, Irrigation

Department, State of Gujarat. On creation of the Gujarat

Water Resources Development Corporation, the

petitioners who were serving under the irrigation

department in the district panchayats were transferred to

the corporation. The question whether the petitioners

are entitled to pensionary benefits on the basis of their

services rendered in the panchayat to be counted for the

purposes of pension was decided by the Division Bench of

this court in Letters Patent Appeal No. 307 of 2017. The

relevant portion of the order reads as under:

"1. These appeals are filed under Clause 15 of the Letters Patent against a common judgment dated 17.03.2016 passed by learned Single Judge in Special Civil Application No.16887 of 2014 and allied matters. The learned Single Judge by the impugned judgment allowed all the petitions whereby the original respondents are directed to entertain the claims of the original petitioners for fixation of their pension and grant them the pensionary benefits treating to have completed 10 years of qualifying

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service.

2. As the issue involved in the present appeals are more or less same and the challenge made in these appeals is the common judgment passed by the learned Single Judge in a group of petitions, all these appeals are heard together and are being disposed of by this common order.

3. For the sake of convenience, the facts narrated in Special Civil Application No.16887 of 2014 are recorded in this order.

4. The case of the petitioner is that he was appointed as a Tracer in the Irrigation Department of the State of Gujarat. He was posted in the office of Deputy Soil Survey Officer, North Gujarat Region at Ahmedabad. Thereafter he was transferred to the office of Geo-hydrologist, Groundwater Division No.1, Paldi, Ahmedabad. His services were thereafter regularized and he was granted the benefit of

recommendations of the 2nd Pay Commission.

On 08.06.1978, a Resolution was passed, whereby all the activities pertaining to tube wells/irrigation which were carried out under the Panchayat/Government were transferred to

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Gujarat Water Resources Development Corporation (hereinafter referred to as the Corporation). The entire staff including the petitioner came to be transferred on 16.06.1978 and thereafter they started working with the Corporation.

5. It is the case of the petitioners that on 21.10.1981, a circular was issued, whereby all the employees recruited under different departments and transferred to the Corporation, are treated to be the employees of the State Government without any deputation allowance. In the meantime, another resolution dated 14.10.1981 was also issued wherein it was provided that all the employees were treated as employees of the State Government and options were invited whether the employees wanted to repatriate to the parent department or remain with the Corporation. The employees who did not exercise any option were treated to be the employees of the Corporation. On 19.12.1988, a certificate was issued by the Administrative Officer of the Corporation, inter alia, stating that the petitioner had been in Government service from 04.08.1966 to 13.12.1981. The petitioner

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thereafter retired on attaining the age of superannuation on 31.03.2004.

6. At this stage, it is required to be noted that it is not in dispute that the petitioner was covered under CPF Scheme of the Corporation and on attaining the age of superannuation, the benefit of CPF was given to him. However, the grievance of the petitioner is that though he has served with the concerned department of the Government and in some cases the concerned petitioners have worked with the District Panchayat, the pensionary benefits for the said period for which they worked with the Government or the District Panchayat, as the case may be, were not given to them. The request of the petitioners was not entertained by the concerned respondent authority on the ground that they had not completed qualifying service of 10 years and therefore they are not eligible for pension. Therefore, the captioned petitions were filed before this Court challenging the order passed by the concerned respondent authority by which the pensionary benefits were denied to them. The petitioners also prayed that necessary direction be issued to the respondents to grant pension with interest.

C/SCA/13590/2021 ORDER DATED: 18/07/2022

7. The learned Single Judge heard the captioned petitions together and by an impugned judgment dated 17.03.2016, allowed all the petitions whereby the respondent authorities are directed to entertain the claim of the petitioners for fixation of their pension and also directed to grant them the pensionary benefits treating to have completed 10 years of qualifying service. The Corporation and the District Panchayat have, therefore, preferred the present appeals.

8. Heard learned advocate Mr. D.G.Chauhan for the Corporation in all the aforesaid appeals except Letters Patent Appeal No.307 of 2017 and learned advocate Mr. H.S.Munshaw appearing for the Banaskantha District Panchayat in Letters Patent Appeal No.307 of 2017. We have also heard learned advocate Mr. G.M.Amin for the original petitioners and learned AGP Mr. D.M.Devnani for the respondent State.

9. Learned advocate Mr. D.G.Chauhan appearing for the appellant Corporation mainly contended that when the concerned petitioners were absorbed in the Corporation they were

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governed by CPF Scheme and therefore the said petitioners are not eligible for pensionary benefits. In spite of that the learned Single Judge has directed the present appellant Corporation to grant the pensionary benefits to the petitioners. The appellant Corporation is, therefore, aggrieved by the aforesaid direction and therefore the present appeals are filed.

10. Learned advocate Mr. H.S.Munshaw appearing in Letters Patent Appeal No.307 of 2017 for Banaskantha District Panchayat mainly contended that the original petitioner of Special Civil Application No.17990 of 2015 had not completed qualifying service of 10 years and therefore as per the rules he is not eligible for pensionary benefits. In spite of that the learned Single Judge has directed the appellant Panchayat to grant him pensionary benefit ignoring the qualifying service. Learned advocate Mr. Munshaw has pointed out the facts of the said appeal and submitted that the original petitioner was appointed as Tubewell Operator in Banaskantha District Panchayat w.e.f. 01.01.1970 and he worked in that capacity till 16.07.1978. Thus, he had not completed 10 years of qualifying service. It is contended that when the said petitioner has not

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completed qualifying service of 10 years, he is not entitled to the pension as per the Gujarat Civil Service (Pension) Rules, 2002. In spite of that, the learned Single Judge has passed the impugned order whereby direction is given to the present appellant Panchayat to grant him pensionary benefits for the said period. It is further contended that the said petitioner was granted various benefits of Contributory Provident Fund, Leave Encashment, Gratuity, etc. for the period of service which he rendered with the Corporation between 16.07.1978 to 30.11.2003. Thus, the service of the petitioner were counted by the Corporation for all the purpose during the aforesaid period and therefore there was no reason for the learned Single Judge to consider the prayer of the petitioner to grant him pensionary benefit for the aforesaid period for which petitioner worked with the appellant District Panchayat.

11. On the other hand, learned advocate Mr. G.M.Amin appearing for the original petitioners in the respective petitions contended that the petitioners are not claiming any pensionary benefits from the Corporation because they have already received all the retiral benefits including CPF from the Corporation. However,

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the petitioners are eligible for pension for the period during which they served with the concerned District Panchayat or the Government, as the case may be. It is submitted that the issue involved in the present case is squarely covered by the order passed by the Division Bench in Letters Patent Appeal No.1552 of 2009 upon which the reliance is placed by the learned Single Judge in the impugned order. Learned advocate Mr. Amin has also placed reliance upon the decision rendered by the Division Bench in Letters Patent Appeal No.1374 of 2011.

12. Learned advocate Mr. Amin further submitted that the concerned petitioners were appointed somewhere between 1968 to 1970 and their services were thereafter transferred to the Corporation and they were absorbed in the Corporation from a particular date. Thus, the State Government as well as the District Panchayat ought to have considered their continuous service from the date of their initial appointment. Thus, it is not correct on the part of the appellant to contend that the concerned petitioners have not completed qualifying service of 10 years. Learned advocate Mr. Amin has, therefore, submitted that the learned

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Single Judge has not committed any error while passing the impugned judgment and therefore these appeals be dismissed.

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

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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 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

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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.

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Consequently, civil applications also stand disposed of."

4. Even in the subsequent order of the Division Bench

in Letters Patent Appeal No. 1552 of 2009, this court has

held as under:

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:

"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

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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

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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 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

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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."

5. Accordingly, the petitions are allowed. The

petitioners are held to be entitled the benefit of pension

but as far as computation and payment of benefits are

concerned, the District Panchayat and State Government

are liable to pay pensionary benefits. The entire exercise

of computation and payment of pensionary benefits shall

be done within a period of eight weeks from the receipt of

the writ of this court. Rule is made absolute. Direct

service is permitted.

(BIREN VAISHNAV, J) DIVYA