Bhavna Jayesh Parikh vs State Of Gujarat
2022 Latest Caselaw 3581 Guj

     C/SCA/8293/2021                             JUDGMENT DATED: 28/03/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 8293 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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                         BHAVNA JAYESH PARIKH
                                 Versus
                           STATE OF GUJARAT
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Appearance:
MR KB PUJARA(680) for the Petitioner(s) No. 1
MR MEET THAKKAR, ASSISTANT GOVERNMENT PLEADER for the
Respondent(s) No. 1
MR HS MUNSHAW(495) for the Respondent(s) No. 3
NOTICE SERVED for the Respondent(s) No. 2,4,5
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    CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV

                             Date : 28/03/2022

                            ORAL JUDGMENT

1 Rule returnable forthwith. Mr.Meet Thakkar, learned Assistant Government Pleader, waives service of rule on behalf of the State - respondent. Heard Mr.K.B.Pujara, learned counsel for the petitioner and Mr.Meet Thakkar, learned AGP, for the State-respondent.

       C/SCA/8293/2021                              JUDGMENT DATED: 28/03/2022




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

India, the prayer of the petitioner is that the Notification dated 11.01.2016 be quashed and set aside, inasmuch as, the notification states that the benefit of higher pay scale granted to the petitioner under the Tiku Pay Commission is liable to be withdrawn by virtue of the resolution dated 11.05.2001.

3 As such, the issue is covered by several decisions of this Court, which shall hereinafter be referred to. However, the facts of the present petition indicate as under:

3.1 The petitioner was appointed as a Medical Officer, Class-II, on 14.03.1990. She joined duties on 05.04.1990 in the pay scale of Rs.2,200- 4,000/-. The pay scale was revised to Rs.8,000-13,500/-, pursuant to the Gujarat Civil Service (Revision of Pay Rules) 1998. On being selected through the GPSC, the petitioner was appointed as a regular Medical Officer, Class-II, by a Government Resolution dated 22.11.1995 and regularized by a resolution of 17.01.2008.

3.2 As per the Scheme of the Tiku Pay Commission, the petitioner was granted the benefit of the first , the second and the third higher pay scales respectively on completion of 6, 7 and the requisite years of service based on the resolution. The matter of the entitlement of the petitioner was never in dispute.

3.3 Having rendered services qualifying for the purposes of pension and other terminal benefits, by an application dated 28.09.2015, the petitoner applied for voluntary retirement which was granted on 11.01.2016 with a condition that the same shall be sanctioned on her giving up the benefits of the Tiku Pay Commission. This was so done based on a resolution of the Government dated 11.05.2001. The

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petitioner's terminal benefits including pension, gratuity, commuted pension and leave encashment etc., were fixed on the basis of she having never drawn the benefits of the Tiku Pay Commission.

4 Mr.K.B.Pujara, learned counsel for the petitioner, would submit that the issue of such conditional acceptance of voluntary retirement has been a subject matter of litigation before this Court and in the case of Haresh Chandanani vs. State of Gujarat., rendered in Special Civil Application No. 12033 of 2014 which was decided by a co-ordinate Bench of this Court vide judgement and order dated 20.07.2015. The Court had held that the Government Resolution dated 11.05.2001 cannot be applied in case of the concerned petitioner and there was no justification on denying the benefits of the Tiku Pay Commission and passing orders of voluntary retirement conditionally on refunding the such benefits. The case of Chandanani (supra), was taken in appeal before the Division Bench in Letters Patent Appeal No. 1469 of 2015 and the Division Bench confirmed the view of the learned Single Judge and the State's Appeal before the Hon'ble Supreme Court also failed. 4.1 Mr.Pujara, learned counsel, would submit that yet in an another case in the case of Dr.Arpita Nitinkumar Dave, a Co-ordinate Bench of this Court on 31.01.2017 considering the similar issue allowed the petition asking the authorities to revise pension orders by applying the recommendations of the Tiku Commission. There too, an appeal filed by the State, being Letters Patent Appeal No. 1753 of 2017, was dismissed by a Division Bench of this Court on 06.10.2017. Based on these decisions, this Court also had considered the case of the petitioner therein in Special Civil Application No.21305 of 2019 in the case of Neena Raj Lakhani and passed orders following the decisions mentioned hereinabove.

       C/SCA/8293/2021                              JUDGMENT DATED: 28/03/2022



4.2      Mr.Pujara, learned advocate, would submit that the case on hand is

a fit case in which the petitoner has been compelled to approach this Court despite reiteration of the legal position by the decisions referred to and if the policy of the government as framed in the Resolution dated 22.08.2014 is to be considered then the petitioner should have been extended similar benefits without approaching this Court. 4.3 Reliance is also placed on a decision in Special Civil Application No. 1314 of 2009 dated 24.03.2009 and in the case of Nitesh Jerambhai Chaudhary rendered in Special Civil Application NO. 8439 of 2020 where the Court considering the fact that the petitioner was compelled to approach the Court for redressal of grievances which were otherwise settled, the Court had awarded cost of Rs.5 lakhs.

5 Mr.Meet Thakkar, learned Assistant Government Pleader, for the State would press into service the contentions raised in the affidavit in reply and submit that by virtue of the Resolution dated 29.05.2019, particularly reading the relevant clause thereof, the case of the petitioner would now be governed by the resolution of 29.05.2019 and therefore, the benefits extended to the petitioners in the previous petitions cannot so be extended in case of the present petitioner.

5.1 The reply filed by the State would indicate as pointed out by Mr.Thakkar, learned Assistant Government Pleader, is that the Government Resolution dated 29.05.2019 specifically observes that those employees who have taken VRS prior to 29.05.2019 will not be given benefits. As per the affidavit, it is undisputed that the present petitioner has taken VRS on 30.11.2018 and hence the said benefit cannot be extended to the petitioner.

5.2 The other ground raised by Mr.Thakkar, learned AGP, is that the order of 11.01.2016 is challenged in the year 2021, i.e. five years after the

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petitioner have accepted voluntary retirement, the petition therefore is grossly belated.

6 Considering the facts in this case, what is evident is that the petitioner voluntarily retired on 11.01.2016. While granting permission to retire voluntarily, the order of 11.01.2016 pressed into service, the resolution of 11.05.2001 which obliged the petitioner to refund the amounts that she had earned by way of the Tiku Commission. Compelled to be relieved from service on the ground of voluntary retirement, the petitioner had no alternative but to accede to the request of the government to surrender her Tiku Pay Commission benefits and accept voluntary retirement thereby on a much lower benefit in terms of pension and other terminal benefits. From the paper book of the petition, it is evident that on her retirement on 11.01.2016 and after the issuance of a pension payment order on 08.05.2017, on 26.03.2018 the petitioner had made a representation to the authorities highlighting the injustice that the resolution of 11.05.2001 would bring upon an employee. She requested that the order of voluntary retirement be modified without relying on the resolution of 11.05.2001. It was specifically mentioned in the representation that to the information of the petitioner, several medical oficers, Class-II, had approached the High Court after retirement who had secured voluntary retirement and the Court had granted them the benefits of Tiku Pay Commission and their pension were to be revised accordingly. The request therefore was that she being similarly situated, such benefits be accorded to the petitioner.

6.1 Representation was also made on 15.11.2018, as is evident from the representation of 25.04.2019 annexed to the petition which refers to her application of 15.11.2018. Here also emphasis has been made by the petitioner that in accordance with the decisions of the High Court, the

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petitioner be extended similar benefits. On record also is a representation of 18.02.2020 and 2.1.2021, wherein, the petitioner has named doctors in whose benefits the Court had passed orders and therefore the case of the petitioner was that she be accorded the similar benefits without being constrained to approach this Court.

6.2 As far as the issue of Voluntary retirement and its acceptance being tied to the Government Resolution of 11.05.2001 is concerned, it was an issue pending consideration before this Court in Special Civil Application No. 12033 of 2014. A Co-ordinate Bench of this Court by a decision rendered on 20.07.2015 categorically held that the resolution of 11.05.2001 cannot be applied to such voluntary retirees. The State went in appeal which was dismissed on 16.01.2017. While rejecting the appeal of the State by an order of 16.01.2017, a co-ordinate Bench of this Court has quoted the decision of the Division Bench in its order dated 22.01.2018 in Special Civil Application No. 568 of 2018. It will be in the fitness of things to extract the relevant paragraphs of the Division Bench which dismissed the appeal of the State in a decision which was first in point of time which reads as under:

"5.1 Extracting the relevant paragraphs from the judgment of the Letters Patent Bench,

"7. From a reading of Government Resolution dated 11.05.2001 it is clear that Medial Officers are not entitled to dual benefits of senior scale as well as the benefit of the recommendations of Tiku Pay Commission. Without going into the controversy, namely, whether the period from 14.11.1991 to 16.10.1994 applies to the case of the respondent or not, it is clear from the Government Resolution itself that it is issued to clarify that the Medical Officers are not entitled to the dual benefit of senior scale as well as the recommendations of Tiku Pay Commission. As it is not disputed that the respondent was not entitled to the benefit of senior scale, there is no reason or justification for denying the benefits of the recommendations of Tiku Pay

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Commission. When the respondent- original petitioner has not availed any benefit of senior scale, in which event the question of double benefit will not arise so as to apply Government Resolution dated 11.05.2001.

8. There is also yet another reason to reject this appeal. There is specific averment made in paras 10 and 11 of the petition by the respondentoriginal petitioner stating that similarly placed persons to that of the respondent- original petitioner, namely, (i) Dr.A.J. Oza, (ii) Dr.Hemant B. Patel, and (iii) Dr.M.J. Gupta, who have voluntarily retired as Class-II officers were also extended the benefit of the recommendations of Tiku Pay Commission for pensionary benefits, but the same was not dealt with in the reply filed by the appellants herein in the petition. As much as the appellants have not rebutted such allegations in the reply, they have to be taken as admitted facts. In that view of the matter there is no reason or justification to make differentiation among similarly placed officers for the purpose of extending the benefit of the recommendations of Tiku Pay Commission. The learned Single Judge has also taken note of such discrimination among similarly placed persons while allowing the petition filed by the respondent- original petitioner.

9. It is clear for us that Government Resolution dated 11.05.2001 cannot be applied to the case of the respondent and further similarly placed persons to that of the respondent were already extended the benefit of the recommendations of Tiku Pay Commission, we are of the view that there is no reason or justification in denying such benefit to the respondentoriginal petitioner, who had served the appellant-Department from September 1985 to 31st December 2013 as Medical Officer Class-II. It is needless to observe that he was compelled to take voluntary retirement in view of disability suffered by him on account stroke which resulted into disability of paralysis to the extent of 75%.

10. For the aforesaid reasons we are of the view that no error is committed by the learned Single Judge so as to interfere with the order of the learned Single Judge dated 20.07.2015 passed in Special Civil Application No.12033 of 2014. For the aforesaid reasons this Letters Patent Appeal

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is devoid of merits. The same is dismissed accordingly. No order as to cost."

5.2 The Division Bench of this Court dealt with the very issue in yet another case in State of Gujarat v. Dr.Arpita Nitinkumar Dave being Letters Patent Appeal No.1753 of 2017 arising from decision in Special Civil Application No.2165 of 2016 in which a contention was sought to be advanced on behalf of the respondent-State seeking to distinguish the judgment in Letters Patent Appeal No.1469 of 2015 on the ground that voluntary retirement of the said employee the petitioner concerned was on the medical ground that he has suffered disability because of paralysis. The Division Bench rejected such distinction and confirmed the order according the Tiku Pay Commission benefits which were denied on the basis of Resolution dated 11.05.2001 on the ground of taking voluntary retirement. Not only that the issue attained finality with the Apex Court dismissing Special Leave to Appeal on 17.07.2017 being Diary No.18150 of 2017 arising from aforementioned Letters Patent Appeal No.1469 of 2015 in Special Civil Application No.12033 of 2014.

6. The facts in the present case are not in dispute. The petitioner was allowed voluntary retirement and he voluntary retired as per order dated 27.10.2017. However, he was refused the benefit of Tiku Commission recommendations and the higher pay scales which benefits had already been received by him. The order permitting voluntary retirement simultaneously provided withdrawal of the said benefit. In view of the decision in Harish Dunichand Chandnani (supra) and Dr. Arpita Nitinkumar Dave (supra) the order could not sustain.

7. As a result, the order dated 27.10.2017 in so far as it provides to withdraw the higher pay scale benefit granted under the Tiku Commission recommendations is set aside. The respondents are directed not to withdraw the said benefit already granted to the petitioner and that the respondents are further permanently restrained to effect any recovery from the petitioner..

The petition is allowed in the aforesaid terms. Direct service is permitted."

6.3 What is apparent on reading paragraph 7 of the decision of the Division Bench which gave reasons for rejecting the appeal was that the

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petitioner therein had stated in the case before him that similarly situated persons, namely, Dr.A.J.Oza, Dr.Hemant B Patel and Dr.M.J.Gupta who had voluntarily retired as Class-II Officers were also extended the benefits of the the recommendations of the Tiku Pay Commission for the pensionary benefits. The Division Bench in those facts observed that there is no reason or justification to make differentiation among similarly placed officers for the purposes of extending the benefits of the recommendations of the Tiku Pay Commission. Next in line was the case in Special Civil Application No.21654 of 2016 which was allowed by a Co-ordinate Bench of this Court on 31.01.2017. Reiterating the case law as was done so in the case of Chandanani (supra), the Co-ordinate Bench extensively quoting the order directed that the petitioner therein be paid benefits of Tiku Pay Commission and pension be revised accordingly. Letters Patent Appeal of the State was dismissed by an order of 06.10.2017.

7 It is in this background that the agony of a retired employee like the petitioner a doctor, Class-II, Medical Officer, has to be appreciated. In normal circumstances, the submission made by the learned Assistant Government Pleader that the petition is belated by five years would definitely stand to be accepted but the Court would not agree to this in the present state of circumstances particularly when in light of what the decisions have stated hereinabove, the petitioner after reitrement continuously made representations to the State Government right from 2018 till 2020 to extend similar benefits which were otherwise granted to her colleague officers from the same fraternity. The State, as a model employer was expected to act with mangnanimity and accept the decisions which it was otherwise bound to having failed in the Hon'ble Supreme Court. The State did not rest there. It is only when the petitioner

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has approached this Court in the year 2021, five years after having waited for being extended similar treatment that the State comes up with an affidavit. Ingenuity is writ large when the affidavit is read. Para 9 of the affidavit needs to be quoted,which reads as under:

"9. It is submitted that pursuant to order passed in Special leave Petition (Civil) 18150 of 2017 by Hon'ble Apex Court, and various orders passed by this Hon'ble Court, the State Government has issued G.R. dated 29.5.2019, wherein it was specifically observed that, those employees who have taken VRS prior to 29.05.2019 will not be given benefits. It is undisputed fact that present petitioner has taken VRS on 30.11.2018 and hence, the said benefit can not be extended to the petitioner. The copy of the Resolution dated 29.05.2019 is marked and annexed as Annexure R-IV. Therefore, applicant was not entitled to grant benefits of higher pay scale in the event of the voluntary retirement and hence request this Hon'ble Court to dismiss the present writ petition."

7.1 A specific statement is made in the affidavit that by virtue of the Resolution dated 29.05.2019, it is undisputed that since the petitioner had taken VRS, by virtue of resolution of 29.05.2019 she will not be entitled to the benefits of the Tiku Pay Commission. Both the learned counsels, for the petitioner and the learned Assistant Government Pleader, have extensively read the resolution of 29.05.2019. Nowhere does the resolution indicate that by virtue of the petitioner having retired on 11.01.2016, a disqualification for earning Tiku Pay Commission benefits is set out in the resolution. Obviously therefore, its a failed lame attempt on the part of the State to defend a case which it ought not to have even let it be filed in the Court. In line of several decisions which had held that the resolutions of 11.05.2001 could not disqualify a voluntary retiree from earning pensionary benefits together with Tiku Commission benefits, the petitioner should not have been made to approach the Court at the first point. But for the repeated representations made from time to time, a retired Medical Officer is compelled to knock the doors of this

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Court.

7.2 It is a sad state of affairs that a model employer like the State does lip service in passing the resolution so as the ones which are placed on record, namely, that of 22.08.2014 propogating that it will extend similar benefits to similarly situated employees without they approaching this Court. This petition is another stark example of the State's defiant stand in not doing so.

8 It is in this context that the decision in the case of State of Uttar Pradesh & Ors vs. Arvind Kumar Srivastava & Ors., 2015(1) SCC 347 needs to be referred to. Both the learned counsels i.e. Mr.Pujara for the petitioner and Mr.Meet Thakkar learned AGP for the State would press into service the relevant paragraph of this decision. They are therefore set out as under:

"22. The legal principles which emerge from the reading of the aforesaid judgements, cited both by the appellants as well as the respondents, can be summed up as under:

22.1 The normal rule is that when a particular set of employees is given relief by the Court, all other identically situated persons need to be treated alike by extending that benefit. Not doing so would amount to discrimination and would be violative of Article 14 of the Constitution of India. This principle needs to be applied in service matters more emphatically as the service jurisprudence evolved by this Court from time to time postulates that all similarly situated persons should be treated similarly. Therefore, the normal rule would be that merely because other similarly situated persons did not approach the Court earlier, they are not to be treated differently.

22.2 However, this principle is subject to well-recognized exceptions in the form of laches and delays as well as acquiescence. Those persons who did not challenge the wrongful action in their cases and acquiesced into the same and woke up after long delay only because of the reason that their counterparts who had approached the court earlier in time succeeded in their efforts, then such employees cannot claim that the benefit of the judgment rendered in the case of similarly situated persons be

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extended to them. They would be treated as fence-sitters and laches and delays, and/or the acquiescence, would be a valid ground to dismiss their claim.

22.3 However, this exception may not apply in those cases where the judgement pronounced by the court was judgment in rem with intention to give benefit to all similarly situated persons, whether they approached the court or not. With such a pronouncement the obligation is cast upon the authorities to itself extend the benefit thereof to all similarly situated persons. Such a situation can occur when the subject matter of the decision touches upon the policy matters, like scheme of regularisation and the like (see K.C.Sharma v. Union of India). On the other hand, if the judgment of the court was in personam holding that benefit of the said judgment shall accrue to the parties before the Court and such an intention is stated expressly in the judgment or it can be impliedly found out from the tenor and language of the judgment, those who want to get the benefit of the said judgment extended to them shall have to satisfy that their petition does not suffer from either laches and delays or acquiescence."

9 After discussing the position of law in case of the normal rule of granting relief to similarly situated employees in service matters and considering the aspect of delay and the concept of "fence-sitters", the Court held that if identically situated persons are not treated alike by extending similar benefits not doing so would amount to discrimination and would violate Article 14 of the Constitution of India. Although Mr.Thakkar, learned AGP, would want this Court to believe and accept that an exception was made that in those cases where the petitioners had approached by delayed petitions, they were barred by acquiesence and should be dismissed on those grounds.

10 This is a case where I will not agree with the submission of the learned Assistant Government Pleader. Here is a case where first in point of time, the Court through the judgement in Chandanani (supra) in January 2015 had reversed the stand of the State in not granting the

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benefits of voluntary retirement with the benefits of the Tiku Pay Commission. Of course, the decision was tested in the Letters Patent Appeal and before the Hon'ble Supreme Court where the SLP failed. The State should have stopped and not tried to dilly dally on the issue after having lost before the Hon'ble Supreme Court.

10.1 As is evident from the decision of the Co-ordinate Bench in the order dated 22.01.2018, where extensive reference is made to the case of Chandanani (supra), one of the other doctors, Dr.Arpita Nitinkumar Dave, was constrained to approach this Court when again this Court on 31.01.2018 following Chandanani directed that the benefits of voluntary retirement be given together with Tiku Commission benefits. The State, obviously at the cost of the public exchequer did not dither in filing an appeal fully realizing and being responsible of the fact that the decision in the earlier case was settled up to the Supreme Court. This is particularly when in the year 2017 itself the Division Bench of this Court had dismissed the appeal of the State when similarly situated persons who had voluntarily retired were granted such benefits without the disqualification of the resolution dated 11.05.2001.

10.2 It is in this context that the resolution of the Gujarat Government through the General Administration Department of 22.08.2014 simply shows that it is an eye wash and the State except doing lip service would not endeavour to follow the principles enshrined in Article 14 of the Constitution of India. Here is a case where a retired medical officer who retired in the year 2016 and having made several representations to the employer - State "so called model employer" is constrained to approach this Court after having accepted terminal benefits and refunding his Tiku pay Commission benefits to pray before this Court for quashing the order of 11.01.2016. But for the State's standing as a wall against such redressal, such an employee would not have been constrained to approach

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this Court.

11 Deeply anguished at the stand of the State, this Court in one of the petitions to which Mr.Pujara, learned advocate, has drawn the attention of this Court observed that, that petition was a classic example of the mind set of the government agencies to engage in vexatious and impracticable litigation which demonstrated gross indifference of the administration towards litigative diligence which contribute to the judicial system getting over burdened. It appears that these sentiments of the judicial forum fall on deaf ears of the executive branch of the State.

12 This is one case therefore, which deserves to be allowed with cost of Rs.5 lakhs too. The petition is allowed. The order of 11.01.2016 which compelled the petitioner to accept voluntary retirement sans the benefits of the Tiku Pay Commission is quashed and set aside. The respondents are directed to revise the retirement benefits of pension, gratuity, commuted pension, leave encashment etc., without withdrawing the benefit of higher pay scales as the petitioner was entitled to and had earned of the Tiku Pay Commission. The benefits shall be paid with interest @ 10%. Cost of Rs.5 lacs shall also be paid to the petitioner. The entire exercise shall be complied within a period of 12 weeks from the date of receipt of the order. Direct service is permitted.

(BIREN VAISHNAV, J) Bimal