Harshadkumar Kalidas Naik vs State Of Gujarat
2022 Latest Caselaw 4995 Guj

     C/SCA/6935/2016                                  JUDGMENT DATED: 09/06/2022




               IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                 R/SPECIAL CIVIL APPLICATION NO. 6935 of 2016


FOR APPROVAL AND SIGNATURE:                             Sd/-


HONOURABLE MR. JUSTICE A.Y. KOGJE

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

2     To be referred to the Reporter or not ?                               NO

3     Whether their Lordships wish to see the fair copy of the              NO
      judgment ?

4     Whether this case involves a substantial question of law as           NO
      to the interpretation of the Constitution of India or any
      order made thereunder ?

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                        HARSHADKUMAR KALIDAS NAIK
                                   Versus
                        STATE OF GUJARAT & 3 other(s)
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Appearance:
MR MUKUND M DESAI(286) for the Petitioner(s) No. 1
MS. DHWANI TRIPATHI, AGP for the Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 1,2,3,4
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    CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE

                               Date : 09/06/2022

                               ORAL JUDGMENT

1. RULE. Learned Assistant Government Pleader waives service of rule on behalf of the respondent-state.

2. This petition under Article-226 of the Constitution of India is filed with the prayer directing the respondent-State to hold the petitioner is

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entitled to pension as per the governing Government Resolution. Amongst other prayers, the petitioner has also prayed for grant of all the pensionary benefits to the petitioner with interest at the rate of 18%, which the petitioner, at the outset, does not pursue in so far as the interest is concerned.

3. At the outset, learned Advocate for the petitioner submitted that the issue of entitlement of the petitioner to receive the pension and pensionary benefits is covered by the decision of the Division Bench of this Court, which is confirmed by the Apex Court, wherein the Division Bench has extensively interpreted the Government Resolution dated 15- 10-1984 in its CAV Judgment dated 02-07-2015 in LPA No.981 of 2015.

4. Learned Advocate for the petitioner submitted that in considering the case of the petitioner, the Government appears to have misinterpreted the Government Resolution in not applying the same to the case of the petitioner in as much as not considering the previous qualifying service for pension, moreover, treating the appointment of the petitioner prior to dates specified in the Government Resolution dated 15-10-1984.

5. Learned Advocate for the petitioner has drawn attention of this Court to the documents placed on record to indicate that time and again, appointment of the petitioner has been in accordance with the law and with due prior sanction of the State Government. Therefore, on each occasion, the State Government was very well aware of the appointment of the petitioner and the service rendered by the petitioner, which will required to be construed towards the qualifying service.

6. Learned AGP opposed to the petition by submitting that the chronology of appointments shows that the appointment was prior to Government

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Resolution dated 15-10-1984 and therefore, the Government has rightly not consider the case of the petitioner. It is submitted that in so far as the reliance placed by the petitioner on the decision of the Division Bench of this Court, which is confirmed by the Apex Court. Against the judgment of the Apex Court, the State Government has filed Review Application. Moreover, as several issues have been raised in various petitions, which had reached the stage of contempt petition, the Chief Justice has ordered to undertake separate Lok Adalat proceedings, so as to verify claim of the various petitioners in that regard. It is submitted that the issues before the contempt Bench and referred to by the Chief Justice to Lok Adalat are quite different as the issues pertaining to those petitions were regarding exercise of options between CPF and GPF and such is not case in the facts of this case and therefore, matter may not be clubbed along with other petitions which are referred to the Lok Adalat.

7. Having considered the rival submissions of the parties and having perused the documents on record, it appears that the petitioner was originally appointed as Part-time Lecturer vide order dated 13-07-1969. However, that initial appointment of year 1969 may not be of relevance for the purpose of considering the period as the appointment to the post of Lecturer with effect from 15-07-1974 would be relevant for considering the period towards the pensionary service period.

8. From the record, it appears that the petitioner has served with V. S. Patel College of Arts and Science, Billimora as a Lecturer between 15- 07-1974 to 30-09-1993 and thereafter, the petitioner has been appointed to the post of Principal with Manav Kalyan Trust Sanchalit Arts and Commerce College, Virpur (Buhari) vide order dated 25-06- 1993. It appears that thereafter again on 08-01-2003, the petitioner was appointed to the post of Principal in J. P. Shroff Arts College, Valsad

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and continued to be in service till the date of his retirement by attaining the age of superannuation on 14-06-2008. The petitioner was in service and period of service is covered under Government Resolution dated 15-10-1984, wherein Clause-3 of the Government Resolution covers the case of the petitioner in so far as his date of appointment is concerned. Similarly, Clause-6 of Government Resolution dated 15-10-1984 covers the case of the petitioner in so far as calculating the period of qualifying service towards the pension service.

9. At this stage, it would be appropriate to refer to the decision of the Division Bench of this Court in identical facts in LPA No.981 of 2015 dated 02-07-2015, wherein this Court has extensively dealt with the Government Resolution dated 15-10-1984 by posing three questions of law for consideration, which are as under:

"1. Whether an employee like the original petitioner who has been appointed after the G.R. dated 15.10.1984 can be denied the pension / pensionary benefits under the G.R. dated 15.10.1984 on the ground that he had not exercised the option for GPF?

2. Whether past services of such an employee is required to be counted for qualifying services for pension?

3. Whether the past services is required to be counted / considered for fixation of the pension or for qualifying services for pension only?"

10. While answering those questions, the Court has extensively dealt with each and every Clause of the Government Resolution and held as under:

"From the aforesaid it appears that prior to 01.04.1982 the GPF Scheme / Pension Scheme and other retirement benefits admissible under the Gujarat State Government Servants was not applicable / admissible to the full time teaching staff of the University under the Education Department and in affiliated and aided non-government Arts, Science and Commerce Colleges in the State. By G.R. dated 15.10.1984, the State Government came out with a pension scheme for the teaching staff in the non-government affiliated colleges in the universities and by the G.R. dated 15.10.1984, which was made effective from 01.04.1982, the pension, gratuity and other retiral benefits admissible to the Gujarat State Government servants under

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the Revised Pension Rules, 1950 contained in Appendix XIV-C to BCSR Rules, Volumes II, as amended from time to time, the family pensions scheme sanctioned in Government Resolution, Finance Department No.FPS-1071-J dated 01.01.1972 as amended from time to time is made applicable to the full time teaching staff of the universities under the Education Department and in affiliated and aided non- Government Arts, Science, Commerce and Education Colleges in this State with effect from 01.04.1982. As noted hereinabove, the said scheme is made applicable with effect from 01.04.1982. If Clause 3 is perused, two types of employees were to exercise option viz. (1) members of the existing staff recruited before 01.04.1982 and (2) those staff who have retired on or after 01.04.1982 and prior to the date of issue of the G.R. dated 15.10.1984, even the period of one year from the above date, whether to continue in CPF or to go under the pension scheme and such option was to be final. The reason for giving such option by the aforesaid two types of employees was because at the time and prior to the issuance of G.R. dated 15.10.1984 which was made effective from 01.04.1982, the employee had no opportunity whasoever, whether to opt for pension or for any other scheme and/or such employee should be governed by the prevailing system of CPF. Clause No.4 of the G.R. dated 15.10.1984 makes it very much clear that member of the staff recruited on or after 01.04.1982 shall automatically be governed by the said scheme and such staff will not be allowed to opt for CPF. Therefore, all the employees recruited on or after 01.04.1982 shall automatically be governed by the Pension Scheme under the G.R. dated 15.10.1984 and only those employees who were recruited prior to 01.04.1982 meaning thereby the existing staff recruited before 01.04.1982 and those who have retired on or after 01.04.1982, but prior to the date of the issuance of the G.R. dated 15.10.1984 were required to exercise the option as to whether they would like to continue in CPF or to go under the pension scheme as per the G.R. dated 15.10.1984. Under the circumstances, as such the employee who was recruited after 01.04.1982 was not required to exercise any option as there was no such need under the G.R. dated 15.10.1984 to exercise such option by such employees who are recruited after 01.04.1982. Therefore, the contention of learned Government Pleader that the original petitioner was required to exercise option for pension and as at the time of joining original respondent No.4 College i.e. in the year 1987, he did not give any option and therefore, the petitioner is not entitled to the pension under the G.R. dated 15.10.1984 cannot be accepted and is hereby rejected. On fair reading of the entire G.R. dated 15.10.1984, it is observed and held that any staff and/or employee of the University under the Education Department and in affiliated and aided non- government Arts, Science and Commerce Colleges in the State, appointed / recruited after 01.04.1982 shall automatically be governed by the G.R. dated 15.10.1984 and shall be entitled to the pension scheme automatically and they are not required to give any

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option.

[6.2] Now, so far as question Nos.2 and 3 posed for consideration of this Court referred to hereinabove i.e. with respect to past services of such an employee is concerned, as such Clause 6 of the G.R. dated 15.10.1984 is very clear. Clause 6 of the G.R. dated 15.10.1984 confers benefits upon an employee of all previous services whether temporary, officiating or permanent, either in one or more than one non-government aided colleges, University Department, Higher Secondary School, who were being paid Grant-in-aid from Government, shall be taken into account for computing the length of qualifying service for pension under the said scheme. Therefore, all previous services whether temporary, officiating or permanent either in one or more than one non-government aided colleges, University Department, Higher Secondary School, who were being paid Grant-in- aid from the Government was required to be taken into account for computing the length of qualifying service for pension. For example if the qualifying service for pension is 10 years and after getting appointment after 01.04.1982 an employee does not have the qualifying service of 10 years, however his previous service prior to 01.04.1982 whether temporary, officiating or permanent either in one or more than one non-government aided colleges, University Department, Higher Secondary School who were being paid Grant-in- aid is counted and thereafter it is found that he is fulfilling the qualifying service for pension, in that case, his past services is required to be counted and/or taken into account for computing the qualifying length of service for pension. However, his previous service is not required to be considered for any other purpose other than for computing the length of qualifying service for pension i.e. for fixation of pension etc. Therefore, on fair reading of Clause 6 of the G.R. dated 15.10.1984, it is observed and held that all the previous services of the employee who has been appointed after 01.04.1982, is required to be counted and/or taken into account for computing the qualifying length of service for pension only."

11. The aforesaid clear pronouncement came to be upheld by the order of the Apex Court dated 17-12-2021 in Civil Appeal No.9018 of 2016, wherein the Apex Court has held in Para-7 as under:

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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."

12. Submission made at this stage by learned AGP regarding Review Application, it would be pertinent to observe that Review Application appears to be on the observations made by the Apex Court regarding no distinction existing in the facts of the cases decided in the previous batch of petitions and with the facts of the SLP dealt with by the Apex Court in order dated 17-12-2021.

13. The Court has also verified in so far as the similar facts which were dealt with by the Apex Court pertaining to SLP No.9531 of 2015 in case of L. P. Joshi. Learned Advocate having taken this Court through the order passed in case of L. P. Joshi would indicate that facts of present case and that case dealt with by this Court in LPA No.447 of 2014 in Special Civil Application No.12214 of 2005 dated 09-04-2014 and order of the Apex Court dated 23-03-2015 in Special Leave to Appeal, C.C. No.4577 of 2015, wherein the Apex Court is not inclined to entertain Special Leave Petition against order dated 09-04-2014 in LPA No.447 of 2014.

14. In view of the aforesaid facts situation, the Court is inclined to observe that the petitioner is entitled to pension / pensionary benefits upon the date of his retirement dated 14-06-2008 having retired as Principal of aided non-Government College with effect from the date of his retirement. In view of the aforesaid, the Court having held the petitioner entitled to pension / pensionary benefits to the petitioner by

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this order, there is no question of awarding any interest to the petitioner over the arrears in pension or pensionary benefits.

15. At this stage, learned Advocate for the petitioner has brought to the notice of this Court regarding the fact that though not pleaded about the contribution made by the petitioner to the Contributory Provident Fund Scheme, which the petitioner would be refunded in accordance with the law. This exercise being exercise of accounting, would be left upon to the Pension Branch of the Education Department to calculate the amount, which is required to be refunded and set it off against the dues of the petitioner. Such exercise to be undertaken expeditiously, preferably within period of six months from the date of receipt of writ of the order of this Court.

16. The petition stands allowed in the aforesaid terms. Rule is made absolute with no order as to costs. Direct service is permitted.

Sd/-

(A.Y. KOGJE, J) PARESH SOMPURA