Harshida Mahendrakumar Vaghela vs State Of Gujarat
2022 Latest Caselaw 3837 Guj

     C/SCA/14076/2019                                 JUDGMENT DATED: 31/03/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 14076 of 2019


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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                        HARSHIDA MAHENDRAKUMAR VAGHELA
                                      Versus
                                STATE OF GUJARAT
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Appearance:
MR RASESH H PARIKH(3862) for the Petitioner(s) No. 1,2
MR.HEMANG H PARIKH(2628) for the Petitioner(s) No. 1,2
MR.VISHVESHKUMAR H PANDYA(10227) for the Petitioner(s) No. 1,2
MR KURVEN DESAI, AGP for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 2,3,4,5
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     CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
                      Date : 31/03/2022
                      ORAL JUDGMENT

1. Rule returnable forthwith. Mr. Kurven Desai, learned Assistant Government Pleader waives service of notice of Rule for respondents.

2. With the consent of the learned advocates for the respective parties, the petition is taken up for final

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hearing today.

3. Heard Mr. Hemang Parikh, learned counsel for the petitioners and Mr. Kurven Desai, learned AGP for the respondents.

4. In this petition, under Article 226 of the Constitution of India, under challenge is the action of respondent of permitting the petitioner to voluntarily retire subject to she refunding the benefits of Tiku Pay Commission in accordance with GR dated 11.5.2001.

5. Mr. Parikh, learned counsel for the petitioners would rely on an order passed in similar matter by this Court in SCA No.21305 of 2019 dated 17.3.2022. He further requested this Court to pass a similar order in this matter too. The order dated 17.3.2022 reads as under:

"1. Draft amendment granted.

2. By way of this petition, the petitioner has challenged the communication dated 27.01.2017 by virtue of which, on the petitioner having retired voluntarily the order of voluntary retirement being conditional on the ground that whatever the benefits the petitioner has earned by way of recommendations of the Tiku Pay Commission shall have to be refunded, on retirement the petitioner received pensionary benefits minus the amount that the petitioner had earned by way of higher pay scales granted to him pursuant to the Tiku Pay Commission recommendations.

3. The issue of the government resolution dated 11.05.2001 which is referred to in the order dated 27.10.2017 was a subject matter of challenge before this court in Special Civil Application No. 568 of 2018. This court by order dated 22.01.2018 considering the earlier decision of this court in Special Civil Application No. 12033 of 2014 and interpreting the resolution of 11.05.2001 held as under:

C/SCA/14076/2019 JUDGMENT DATED: 31/03/2022

"3.1 It is this order dated 27.10.2017 which is brought under challenge in the present petition inasmuch as it has provided therein that as per resolution dated 11.05.2001 of the Health and Family Welfare Department, since the petitioner had taken voluntary retirement, he would not be entitled to Tiku Commission higher pay scales and further that such benefit if earlier accorded, would be liable to be withdrawn.

4. It was submitted by learned advocate for the petitioner that the issue was covered by decision in Harish Dunichand Chandnani vs. State of Gujarat being Special Civil Application No. 12033 of 2014 decided as per order dated 20.07.2017 and confirmed in Letters Patent Appeal No. 1469 of 2015 decided on 16.01.2017.

5. Even as the rivals drew their contentions, the respondents could not deny the position legally obtaining that the question in this petition is already answered in Harish Dunichand Chandnani (supra). The petitioner in that petition claimed benefits of Tiku Pay Commission, but was denied on the ground of the petitioner having taken voluntary retirement. The said petitioner had opted for voluntary retirement on medical ground of sufferance of stroke of paralysis and resultant permanent disability. The said order was challenged in Letters Patent Appeal No.1469 of 2015 which was dismissed by the Division Bench by judgment dated 16th January, 2017. 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 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

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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 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

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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."

4. The decision as aforesaid squarely applies to the facts of the present case as the order impugned is the same as was passed in the petition in Special Civil Application No. 568 of 2018 vide order dated 22.01.2018. The petition therefore requires to be allowed and the petitioner is required to be granted the same benefits as granted to the petitioner of Special Civil Application No. 568 of 2018.

5. Accordingly, the impugned 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 to refund the amount that the petitioner earned by way of Tiku Pay Commission and pensionary benefits shall be revised as if the petitioner had earned the benefits of the Tiku Pay Commission which was granted to him earlier. Compliance of this order shall be done within ten weeks from the date of receipt of the writ of the order. Since the petitioner retired in the year 2017 and the benefits were already deducted from the

C/SCA/14076/2019 JUDGMENT DATED: 31/03/2022

pensionary benefits of the petitioner, the respondents may also consider granting of interest on the amount to be refunded to the petitioner. Petition is allowed. Direct service is permitted."

6. Accordingly, the impugned orders dated 11.12.2018 and 30.11.2018 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 to refund the amount that the petitioners earned by way of Tiku Pay Commission and pensionary benefits shall be revised as if the petitioners had earned the benefits of the Tiku Pay Commission which was granted to them earlier. Compliance of this order shall be done within ten weeks from the date of receipt of the writ of the order. Since the petitioners retired in the year 2018 and the benefits were already deducted from the pensionary benefits of the petitioners, the respondents may also consider granting of interest on the amount to be refunded to the petitioners.

7. The Petition is allowed. Rule is made absolute.

Direct service is permitted. No costs.

(BIREN VAISHNAV, J) VATSAL S. KOTECHA