Gujarat High Court
Mahesh Natwarlal Rao vs State Of Gujarat Thro Secretary on 5 May, 2022
Bench: Hemant M. Prachchhak
C/LPA/1408/2017 JUDGMENT DATED: 05/05/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 1408 of 2017
In
R/SPECIAL CIVIL APPLICATION NO. 6155 of 2012
With
CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2017
In
R/LETTERS PATENT APPEAL NO. 1408 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE R.M.CHHAYA
and
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
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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 ?
================================================================
MAHESH NATWARLAL RAO
Versus
STATE OF GUJARAT THRO SECRETARY & 2 other(s)
================================================================
Appearance:
MR ASHISH H SHAH(2142) for the Appellant(s) No. 1
MR PS CHAMPANERI(214) for the Appellant(s) No. 1
MS DHWANI TRIPATHI AGP for the Respondent(s) No. 1,2
MR HD BRAHMBHATT(199) for the Respondent(s) No. 3
MR VICKY B MEHTA(5422) for the Respondent(s) No. 3
RULE SERVED for the Respondent(s) No. 3
================================================================
CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
and
HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
Page 1 of 31
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C/LPA/1408/2017 JUDGMENT DATED: 05/05/2022
Date : 05/05/2022
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK)
1. Feeling aggrieved and dissatisfied with the impugned
judgment and order dated 22.03.2017 passed by the learned
Single Judge in Special Civil Application No.6155 of 2012, the
appellant - original petitioner has preferred this appeal under
clause 15 of the Letters Patent Appeal.
2. Brief facts giving rise to the present appeal are as under:-
2.1 It is the case of the appellant that he was appointed as
lecturer in respondent no.3 - college on 25.12.1993 and the
North Gujarat University approved the appointment of the
appellant by passing order dated 07.01.1994.
2.2 It is the case of the appellant that the State Government,
Education Department issued notification dated 05.09.1997
declaring the law colleges within the State of Gujarat as granted
colleges w.e.f. A.Y. 1996-1997 and the law colleges were
provided grant-in-aid from 1996-1997.
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2.3 That the State Government issued notification dated
24.03.2000 approving the appointment of lecturers in the law
colleges and the appointment of the appellant as full time
lecturer with respondent no.3 - college was approved. The
Commissioner of Higher Education passed an order dated
15.07.2000 included teaching and non-teaching staff of the
granted law colleges in the scheme of direct payment, however,
the appellant was not included in the said scheme on the ground
that he had not deposited the Sanad with the Bar Council.
2.4 That on 24.10.2000, the State Authority issued the
resolution wherein in para-4(i) it is stated that "members of the
existing staff recruited before 15.6.1996 and those staff who
have retired on or after 15.6.1996 and prior to the date of issue
of this resolution should exercise their option within the period of
ninety days from the date of this resolution either to continue in
Contributory Provident Fund Scheme or to come under this
scheme. The option once exercised shall be final". It is also
stated in the said resolution in para-4(iii) that "the amount of
contribution paid by the management of Non-Government aided
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law colleges together with interest thereon standing at the credit
of the member of staff opting for pension scheme, after they
exercise their option for pension scheme should be credited to
the State Government within a period of two months under the
head of account "071 - Contribution and Recoveries towards
pension and other retirement benefits" after the correctness of
amount is verified and certified by the Commissioner of Higher
Education".
2.5 It is also the case of the appellant that the appellant
preferred Special Civil Application No.8514 of 2000 before this
Court challenging the order dated 15.07.2000 passed by the
Commissioner of Higher Education and this Court vide order
dated 12.12.2000 issued notice and granted ad-interim relief.
2.6 That the State of Gujarat had preferred Letters Patent
Appeal No.173 of 2003 challenging the order dated 12.12.2000
before the Division Bench of this Court and the Division Bench of
this Court vide order dated 24.04.2003 disposed of the appeal
and permitted the appellant to withdraw the said petition and
make a representation to the respondents for the purpose of full
payment during the period from June 2000 to the date of
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surrendering the Sanad. The appellant surrendered the Sanad on
22.06.2003 with the Bar Council of Gujarat.
2.7 On 16.07.2004, the office of the Commissioner of Higher
Education passed the order and directed payment of pay and
other allowances to the appellant from the grant w.e.f. June 2000
and included him under the direct pay scheme w.e.f. June 2004.
and paid arrears of pay and deducted provident fund from
arrears of pay from June 2000. The respondent no.2 has written a
letter dated 02.08.2004 to the respondent - college regarding
allotment of new GPF account number of the appellant. The
office of the Higher Education Commissioner has passed an order
on 31.08.2004 regarding payment of arrears of pay from June
2000 to May 2004 to the appellant.
2.8 The appellant reached the age of superannuation on
18.08.2009 and he retired from the services w.e.f. 31.10.2009.
On retirement, respondent no.3 - college forwarded pension
papers of the appellant to the respondent - State Authority. The
appellant made detailed representation on 07.01.2011 to the
State Government.
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2.9 The office of the Commissioner of Higher Education vide
communication / order dated 15.03.2012 refused to fix the
pension of the appellant on the ground that the appellant had
not opted for pension option within the time prescribed as per
resolution of the State Government dated 24.10.2000. The
respondent - college did not deposit the amount with the State
Government. Hence, the appellant preferred Special Civil
Application No.6155 of 2012 challenging the communication /
order dated 15.03.2012 passed by the office of the
Commissioner of Higher Education seeking following prayers.
"a. That this Hon'ble Court be pleased to issue writ of
order in the nature of mandamus, or any other
appropriate writ, order or direction, quashing and
setting aside the impugned communication dated
15.3.2012 and further be pleased to direct the
Respondents to fix and pay the pension to the
petitioner.
b. That this Hon'ble Court be pleased to issue writ of
order in the nature of mandamus, or any other
appropriate writ, order or direction, directing the
Respondents to treat the petitioner as covered under
GPF and fix and pay the pension due and payable to
the petitioner with interest.
c. That this Hon'ble Court be pleased to issue writ of
order in the nature of mandamus, or any other
appropriate writ, order or direction, directing the
respondents to pay Gratuity, Leave Engashment and
other retirement benefits to the petitioner.
d. That pending admission, hearing and final disposal of
this petition, this Hon'ble Court be pleased to direct
the Respondents to fix the pension of the petitioner
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and further be pleased to direct the Respondents to
pay Gratuity, Leave Encashment and other retirement
benefits, payable to the petitioner.
e. That add interim relief in the aforesaid prayer clause
be granted.
f. That any other and further relief which may be
deemed fit in the interest of justice may be granted.
2.10 In the above-mentioned petition, an affidavit-in-reply has
been filed by the respondent No.2 - Administrative Officer of
Commissioner, Higher Education wherein it is stated that by way
of government resolution issued by the Education Department
dated 24.10.2004, employees of the Non-Added Governmental
have been included among granted law colleges covering them
under the pension scheme w.e.f. 15.06.1996. The beneficiary has
to fill up the option form within three months from the date of
the government resolution and have to deposit the amount.
2.11 The appellant has filed affidavit-in-rejoinder to the affidavit-
in-reply filed by respondent no.2 in the said petition wherein it is
stated that at the time when the appellant was covered under
the direct pay scheme i.e. 16.07.2004, the arrears of pay was
paid and amount of contribution in GPF was deducted in the
account and appellant is deemed to have been covered under
the GPF scheme. It is further stated in the rejoinder that in view
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of the said facts, the circular of the State Government dated
24.10.2000 requiring the employee to opt for GPF scheme within
a period of three months of the notification was not applicable to
the facts of the appellant.
2.12 The learned Single Judge vide order dated 22.03.2017,
partly allowed the petition and dismissed the petition on the
point of the claim of the appellant to get pension from the State
Authority. Learned Single Judge has also directed respondent
no.3 - college that the amount of Provident Fund of the appellant
lying with it be paid to him with statutory interest within a period
of three months from the date of receipt of the order.
3. Feeling aggrieved and dissatisfied by the order of the
learned Single Judge, the present appeal is filed.
4. The affidavit-in-reply has been filed by respondent no.3
opposing the present appeal.
5. Heard Mr.Harin Raval, learned senior counsel assisted by
Mr.P. S. Champaneri, learned counsel appearing for the
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appellant, Ms.Dhwani Tripathi, learned Assistant Government
Pleader for the respondent - State and Mr.H. D. Brahmbhatt,
learned counsel appearing for the respondent no.3 - college.
Learned counsel for the appellant also submitted written
submissions which are taken on record and considered the same
as part of his arguments.
6. Mr.Harin Raval, learned senior counsel assisted by Mr.P. S.
Champaneri, learned counsel appearing for the appellant has
submitted that the appellant has never raised any grievance as
regards the non-payment of provident fund by the respondent -
college. It is submitted by Mr.Raval, learned senior counsel that
the State Government vide communication dated 15.03.2012
has refused to fix the pension on the ground that the appellant
has not exercised the option within the time prescribed as per
the government resolution dated 24.10.2000. Learned counsel
for the appellant orally submitted and relied upon the written
submissions. It was contended on behalf of the appellant as
under:-
(1) That appellant was appointed as a full time lecturer in
respondent no.3 - college w.e.f. 25.12.1993 and the North
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Gujarat University vide order dated 07.01.1994 approved the
appointment of the appellant as full time lecturer in respondent
no.3 - college. The appellant retired on 31.10.2009 and thus, he
has completed 16 years of continuous services as required under
the Gujarat Civil Services (Pension) Rules, 2009.
(2) That the office of the Commissioner of Higher Education
vide order dated 24.03.2000 approved the appointment of the
appellant as full time lecturer and the name figure at sr.no.3,
however, surprisingly, by an order dated 15.07.2000, while
including teaching as well as non-teaching staff of grant-in-aid
law colleges under the scheme of direct pay, the appellant was
not included in the aforesaid list only on the ground that he had
not deposited Sanad with the Bar Council. This order was passed
without giving any opportunity of hearing to the appellant.
(3) The said action of the Commissioner of Higher Education
was challenged by the petitioner by preferring Special Civil
Application No.8514 of 2000 and interim protection was granted
by this Court vide order dated 21.12.2000. The effect of the
interim order is that the status of the appellant as full time
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lecturer was continued.
(4) The State of Gujarat challenged the interim order dated
21.12.2000 by preferring Letters Patent Appeal before this Court
but the same came to be dismissed. It is submitted that the
appellant, in view of the oral observations of the Court, willingly
deposited the Sanad before the Bar Council of Gujarat on
22.06.2003.
(5) The learned Single Judge in the impugned judgment and
order has wrongly and erroneously considered the act of filing of
special civil application against the order of Commissioner of
Higher Education dated 15.07.2000 as an act disentitling the
appellant, though there was an interim order protecting the
status of the appellant as full time lecturer. It is also an admitted
position that the interim order was unsuccessfully challenged by
the State of Gujarat before the Division Bench, which was
pleased not to interfere with the said order and the said interim
order continued throughout till disposal of the appeal and thus,
confirmed the status of the appellant as a full time lecturer in the
interregnum.
C/LPA/1408/2017 JUDGMENT DATED: 05/05/2022
(6) That during that period, the appellant had deposited Sanad
and thus in view of the initial appointment having been
confirmed as per instant rules by the North Gujarat University
and after all law colleges having been admitted to grant-in-aid, in
view of the order dated 24.03.2000 approving the appellant's
appointment the entire continuous service right from his
appointment in 1993, has to be counted, making him eligible for
the pension. In any view of the matter, this was not the ground
on which the State made the appellant ineligible for pension.
(7) That on 16.07.2004, the office of the Commissioner of
Higher Education passed an order directing the payment of pay
and other allowances to the appellant w.e.f. June 2000 and the
appellant was also included in the scheme of direct payment
from June 2004. In light of the order dated 16.07.2004, another
order dated 31.08.2004 was passed by the office of the
Commissioner of Higher Education, and the arrears of pay from
June 2000 to May 2004, was paid.
(8) That learned Single Judge has committed prima facie error
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on the ground that the period during which the appellant was a
practising lawyer cannot be accepted as a pensionable service of
ten years. That the learned Single Judge has travelled beyond
the impugned order of the Commissioner of Higher Education as
there is no material on record to show that this was even
pleaded before the learned Single Judge of this Court or this was
a reason for consideration before the Commissioner of Higher
Education. Categorical ground is also taken by the present
appellant before this Court in point no.4(c) which is also
extracted below:-
4(c). That the learned Single Judge has materially erred in
finding that the petitioner has not completed the requisite
period of ten years for making the service pensionable. It is
respectfully submitted that the State Government has, vide
communication dated 15.03.2012 refused to fix the pension
on the ground that the petitioner has not exercised the
option within the time prescribed as per the Government
Resolution dated 24.10.2000. The State Government has
also filed an affidavit-in-reply and has only contended that
the petitioner is not entitled to pensionary benefit as the
petitioner has not exercised the option of pension within
the time prescribed as per the Government Resolution
dated 24.10.2000. It was not pleaded or argued on behalf
of the State Government that the petitioner has not
completed the requisite period of 10 years for rendering
the service pensionable and, therefore, the impugned
judgment and order passed by the learned Single Judge is
beyond the pleadings and contentions raised by the State
Government in the affidavit-in-reply and is beyond the
order of the State Government refusing the pension. The
appellant submits that the learned Single Judge has
considered material not forming part of the record and has
passed the impugned judgment and order beyond the
pleadings of the parties.
C/LPA/1408/2017 JUDGMENT DATED: 05/05/2022
(9) That the traversing beyond the grounds for consideration
before the Commissioner of Higher Education, is not permissible
and is a prima facie an error committed by the learned Single
Judge. It is submitted that the Government vide its order dated
16.07.2004 had directed the payment of pay and other
allowances to the appellant w.e.f. June 2000 and the petitioner
was also included in the scheme of direct payment from June
2004. Thus, the Government vide its own order has accepted the
appellant liable to all the benefits starting from the year June
2000 and that order is still in force as the same is not withdrawn
by the Government. It is submitted that whether the appellant
was employed part-time or full-time was never a question before
the learned Single Judge and the State Government has also not
raised such plea before the learned Single Judge.
(10) That Rule 39 on which the learned Single Judge has placed
reliance is prima facie not applicable to the appellant. Rule 39
applies only to those persons who are not retained as full-time in
the public service. Even this was not a ground in the impugned
order of the State Government before the learned Single Judge. It
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is an undisputed fact that the appellant was appointed as full-
time lecturer in respondent no.3 - college on 25.12.1993 and
that the North Gujarat University vide order dated 07.01.1994
approved the appointment of the appellant as full lecturer in
respondent no.3 which was also approved by the State in view of
the order dated 24.03.2000.
(11) That the appellant is not required to fill in the option after
circular of the State Government dated 15.10.1984 and the said
circular has come up for consideration before this Court for
interpretation in two important rounds of litigation i.e. Special
Civil Application No.29641 of 2007 captioned as S. S. Patel Vs.
Director of Pension and Provident Fund and Letters patent
Appeal No.2259 of 2017 in Special Civil Application No.8764 of
2016 captioned as State of Gujarat and 4 others Vs. Kalhans
Harial Patel and others.
(12) That after notification dated 15.10.1984, the appellant is
not liable to fill up the option and assuming without admitting
that the appellant is liable to fill up the option within the time
period prescribed then the appellant had already elected the
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option on 31.05.1999.
(14) During the course of hearing the appellant had referred to
the affidavit filed by the Institution and reliance is placed on
paragraph no.3 to 6 thereof.
(15) Thus, in light of the aforesaid facts and circumstances, it is
prayed to set aside the order and judgment dated 22.03.2017
and to issue a direction to the respondents to release the arrears
of pension and continue to pay the same to the appellant.
6.2 Learned counsel appearing for the appellant has relied
upon the following decisions:-
(1) Mahesh N. Rao Vs. State of Gujarat in Special Civil
Application No.8514 of 2000 dated 21.12.2000;
(2) Mahesh N. Rao Vs. State of Gujarat in Special Civil
Application No.8514 of 2000 dated 25.10.2001;
(3) State of Gujarat Vs. Mahesh N. Rao in Letters Patent
Appeal No.173 of 2003 dated 24.04.2003;
(4) Mahesh N. Rao Vs. P. Paneerwel in Misc. Civil Application
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No.647 of 2004 in Letters Patent Appeal No.173 of 2003
dated 20.07.2004;
(5) S. S. Patel Vs. Director of Pension and Provident Fund in
Special Civil Application No.29641 of 2007 dated
16.06.2008;
(6) Maheshbhai H. Bhatt Vs. Secretary in Letters Patent
Appeal No.1213 of 2010 dated 07.02.2014;
(7) State of Gujarat and others Vs. Kalhans Harial Patel and
others, in Letters Patent Appeal No.2259 of 2017 in
Special Civil Application No.8764 of 2016 dated
02.05.2019;
(8) State of Gujarat and another Vs. Banuben Rameshbhai
Dhakan and others in Civil Appeal No.9018 of 2016 dated
17.12.2021;
(9) Deokinandan Prasad Vs. State of Bihar, (1971) 2 SCC 330;
(10) D. S. Nakara and others Vs. Union of India, (1983) 1 SCC
305;
7. Per contra, Ms.Dhwani Tripathi, learned Assistant
Government Pleader for the respondent - State and Mr.Vicky
Mehta, learned counsel for respondent no.3 have opposed the
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appeal and supported impugned judgment and order. They have
submitted that the appeal being meritless deserves to be
dismissed.
8. We have perused the materials placed on record and
considered the submissions canvassed by the learned counsel
appearing on behalf of both the sides and the decisions cited at
the bar. It appears that the appellant was appointed as a full
time lecturer on 25.12.1993 and the respondent - University
vide order dated 07.01.1994 approved the appointment of the
appellant as full time lecturer in respondent no.3 - college. It also
appears from the materials on record that the appellant had
retired on 31.10.2009 and thus, he has completed 16 years of
continuous services as required under the Gujarat Civil Services
(Pension) Rules, 2009. Even the office of the Commissioner of
Higher Education vide order dated 24.03.2000 approved the
appointment of the appellant as full time lecturer and his name
included, however, vide order dated 15.07.2000, the respondent
- authority included teaching as well as non-teaching staff of
grant-in-aid law colleges under the scheme of direct pay, but the
appellant was not included in the aforesaid list only on the
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ground that he had not deposited Sanad with the Bar Council of
Gujarat. The order was passed without giving any opportunity of
hearing to the appellant. Against the said action of the
Commissioner of Higher Education, the appellant preferred
Special Civil Application No.8514 of 2000 and interim protection
was granted by this Court vide order dated 21.12.2000. The
effect of the interim order is that the status of the petitioner as
full time lecturer was continued. It transpires from the record of
the case that the said interim order came to be challenged by
the State Authorities by preferring Letters Patent Appeal before
this Court, which came to be dismissed. It appears that in view of
the oral observations of the Court, the appellant willingly
deposited his Sanad before the Bar Council of Gujarat on
22.06.2003. The learned Single Judge has not appreciated the
said aspects and considered the appellant as disentitled for the
benefit of pension though, there was an interim order protecting
the status of the appellant as full time lecturer. It also appears
that the said order was challenged by the State Authority by way
of filing letters patent appeal, which came to be dismissed by the
Coordinate Bench of this Court by not interfering with the order
passed by the learned Single Judge and, therefore, the status of
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the appellant is remained unaltered and considered as full time
lecturer in the interregnum. Pursuant to the same, the arrears of
salary was also paid by the respondents in order to comply with
the order under contempt proceedings. Thus, in view of the
above facts, the action of the respondents is illegal, unjust and
not sustainable in the eyes of the law.
9. It would be appropriate to refer to the following decisions
which would squarely apply to the facts of the present case.
9.1 In the case of S. S. Patel (supra), this Court has observed
in paragraph no.4, 4.1, 12, 16, 16.3 as under:-
"4. Shri Paresh Upadhyay, learned advocate appearing for
the petitioner vehemently contended that the issue
involved in this petition with regard to interpretation of
Government Resolution dated 15.10.1984 issued by the
Education Department of State of Gujarat pertaining to
pension scheme for the teaching staff in the Non-
Government Affiliated Colleges and the Universities is no
more res integra in view of the decision of this Court in
case of Dr. Nalini V. Dave vs. Government of Gujarat & Ors.
reported in 2005(3) GLR 1844 and another decision of
learned Single Judge dated 17.3.2006 in Special Civil
Application No.12620/2003, where similarly situated
employees of the College/University were directed to be
paid pension and other retiral dues by issuing appropriate
writ, order or direction and, therefore, petitioner also
deserves equal treatment by this Court in exercise of
equitable jurisdiction under Article 226 of the Constitution
of India.
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4.1 Learned advocate next contended that, it is clear from
bare reading of Government Resolution dated 15.10.1984
that pension scheme for the full time teaching staff of the
Universities under the Education Department of the State of
Gujarat came to be framed after careful consideration by
the authority that pension, gratuity and other retiral
benefits admissible to the Gujarat State Government
Servants under the Revised Pension Rules, 1950 as
amended from time to time including the family pension
etc. be made applicable as per clauses contained in this
Government Resolution. According to learned advocate for
the petitioner as per Clause 3 of the above Government
Resolution, option was to be exercised only by the
members of the existing staff recruited before 1.4.1982 and
those staff who have retired on or after 1.4.1982 and prior
to the date of issue of this resolution namely 15.10.1984
within period of one year from the date of the issue of the
Government resolution either to continue in C.P.F. Scheme
or to opt for this pension scheme and such option for the
above class of people once exercised shall remain final and
in case if option is not exercised within stipulated period, it
was considered that employee wanted to retain the C.P.F.
scheme or the benefit admissible to him prior to 1.4.1982.
12. At the same time, what transpires from the
submissions of the advocates appearing for the respective
parties, is the interpretation of Government Resolution
dated 15th October, 1984 and to appreciate the said
contentions, it is necessary to reproduce relevant clauses
of the G.R. dated 15.10.1984 which reads as under:
"The question of application of pension, gratuity and other
retirement benefits to the members of teaching staff of the
University under Education Department and in affiliated
and aided non-Government colleges in Gujarat was under
consideration of the Government for some time past. After
careful consideration, Government is now pleased to direct
that the pension, gratuity and other retirement benefits
admissible to the Gujarat State Govt. Servants under the
Revised Pension Rules, 1950 contained in the 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 1.1.72 as amended from time to time should be
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 1.4.1982.
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1. a) for the purpose of this scheme.
(1) University means universities under Education
Department established by the Acts.
(2) A non-Government College includes non-Government
affiliated Arts, Science, Commerce and B.Ed. Colleges
receiving grant-in-aid and managed by the private
body and affiliated with the universities by the
competent authority.
b) for the purpose of pensionable pay, pay means and
includes:
(1) pay in the approved prescribed scale of pay,
(2) additional pay for additional academic and
professional qualification admissible under the orders
issued by Government from time to time,
(3) personal pay granted to save from less to pay due to
revision of pay scale or due to pay fixation.
Note:-If a member of staff during the last three years
of his service has been absent from duty on leave with
allowances, his pay for that period should be taken
what it would have been, had he been on duty at any
time during the first six months of period of leave.
Provided that the benefits of higher officiating or
temporary pay should be given only if it is certified
that member of the staff concerned would have
continued to hold the higher officiating or temporary
appointment but for his proceeding on leave.
c) Teaching staff means a full time professor, Asstt.
Professor, reader, lecturers in universities and
Principal, Lecturer, Tutor, demonstrator and also
physical training instructors, Librarians etc. working in
non-Government aided colleges who are receiving
university Grants Commission scales.
2. The Director of Higher Education or the officer
authorised by him shall be competent authority to
sanction pension, gratuity, family pension and other
retirement benefits admissible under the scheme.
3. i) Members of the existing staff recruited before
1.4.1982 and those staff who have retired on or after
1.4.1982 and prior to the date of issue of this
resolution should exercise their option within the
period of one year from the date of issue of this
resolution either to continue in contributory provident
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Fund scheme or to come under this scheme.
The option once exercised shall be final. The option
should be exercised in writing in the form prescribed
(appendix-A) and communicated to the Director of
Higher Education. The members of the staff who do
not exercise the option within stipulated period shall
be deemed to have opted for the retention of the
benefit admissible to them before 1.4.1982.
Where a member of the staff who was entitled to
exercise an option in accordance with this Resolution
died on any date on or from 1.4.1982 and on or before
expiry of the date before which he had to exercise
option without exercising it, his family may be given
the benefit of these rules or may be allowed the
benefit or CPF scheme, whichever is more favourable
to them. The pension sanctioning authority should
work out the benefits admissible under both
alternatives (i.e. the CPF and the Revised Pension
Rules, 1950 as admissible under this government
resolution) after taking into account the quantum of
CPF as well as family pension and prepare pension
paper accordingly with necessary sanctions.
ii) The member of the staff who have opted for the
pension scheme shall join GPF scheme concurrently as
in the case of Government employees and their share
in the GPF together with interest thereon shall be
credited to their GPF account. The general provident
fund shall be kept with Government and on
retirement, the amount shall be paid to them in
accordance with the rules.
iii) The amount of contribution paid by the University or
management of NonGovernment aided colleges and
institutions mentioned in para 6 of this resolution
together with interest thereon standing at the credit of
the member of teaching staff opting for pension
scheme, after they exercise their option for pension
scheme should be credited to the State Government
within a period of two months under the head of
account "XLVIII contribution and Recoveries towards
pension and other retirement benefit" after the
correctness of amount is verified and certified by the
Director of Higher Education.
iv) Where the members of staff eligible for the scheme
have retired/resigned after 1.4.1982 to the date of
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issue of this Government Resolution and who have
received their CPF amount including the management
or University contribution and Government's share
together with the interest thereon desires to opt
pension scheme as admissible under this Government
Resolution should execute undertaking as in Appendix
'B' alongwith an option as provided under this
scheme. In such cases the amount received on
account of Universities Managements contribution,
Government's share and interest earned thereon by
the member shall be adjusted against the arrears of
pension and amount of D.C.R.G. Admissible under this
scheme . If the amount so received exceeds the
amount of arrears pension/DCRG payable to him, the
balance amount shall be paid by him immediately in
the Government Treasury.
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.
5. The members of teaching staff who have completed
five years of continuous service will be treated as
holding permanent post substantively for the purpose
of this scheme.
6. In computing the length of qualifying service for
pension under this scheme, all previous service
whether temporary officiating or permanent either in
one or more than one non-government aided colleges,
Universities Department, Higher Secondary School
who are being paid Grant-in-aid from Government
shall be taken into account. The period of break in
service will not be considered as qualifying service i.e.
actual service rendered will be considered as
qualifying services.
7. The general provisions of chapter XI of BCSR Rules
Vol.I will be applicable in granting retirement benefits
to the member of the staff under this scheme except
where otherwise provided.
8. The age of superannuation retirement for the existing
staff covered under the scheme shall be 60 (sixty)
years. The age of superannuation retirement for the
staff that may be recruited on and from 1.10.1984
shall be 58 years for which universities should be
requested to take necessary action to amend the
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relevant statutes, Rules Regulations accordingly."
9.2 In the case of Kalhans Harial Patel and others (supra),
the Division Bench of this Court has observed in paragraphs
no.12.1, 13, 14, 14.1 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 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
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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 1 st
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 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.
9.3 In the case of Deokinandan Prasad (supra), the Hon'ble
Supreme Court has observed in paragraph no.31 as under:-
31. The matter again came up before a Full Bench of the
Punjab and Haryana High Court in K. R. Erry v. State of
Punjab [ILR 1967 Punj & Har 278]. The High Court had to
consider the nature of the right of an officer to get pension.
The majority quoted with approval the principles laid down
in the two earlier decisions of the same High Court,
referred to above, and held that the pension is not to be
treated as a bounty payable on the sweet will and pleasure
of the Government and that the right to superannuation
pension including its amount is a valuable right vesting in a
Government servant. It was further held by the majority
that even though an opportunity had already been
afforded to the officer on an earlier occasion for showing
cause against the imposition of penalty for lapse or
misconduct on his part and he has been found guilty,
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nevertheless, when a cut is sought to be imposed in the
quantum of pension payable to an officer on the basis of
misconduct already proved against him, a further
opportunity to show cause in that regard must be given to
the officer. This view regarding the giving of further
opportunity was expressed by the learned Judges on the
basis of the relevant Punjab Civil Service Rules. But the
learned Chief Justice in his dissenting judgment was not
prepared to agree with the majority that under such
circumstances a further opportunity should be given to an
officer when a reduction in the amount of pension payable
is made by the State. It is not necessary for us in the case
on hand, to consider the question whether before taking
action by way of reducing or denying the pension on the
basis of disciplinary action already taken, a further notice
to show cause should be given to an officer. That question
does not arise for consideration before us. Nor are we
concerned with the further question regarding the
procedure, if any, to be adopted by the authorities before
reducing or withholding the pension for the first time after
the retirement of an officer. Hence we express no opinion
regarding the views expressed by the majority and the
minority Judges in the above Punjab High Court decision,
on this aspect. But we agree with the view of the majority
when it has approved its earlier decision that pension is
not a bounty payable on the sweet will and pleasure of the
Government and that, on the other hand, the right to
pension is a valuable right vesting in a Government
servant.
9.4 In the case of D. S. Nakara and others (supra), the
Hon'ble Supreme Court has observed in paragraphs no.20, 27,
29, 31 and 36 as under:-
20. The antiquated notion of pension being a bounty, a
gratuitous payment depending upon the sweet will or
grace of the employer not claimable as a right and,
therefore, no right to pension can be enforced through
Court has been swept under the carpet by the decision of
the Constitution Bench in Deoki Nandan Prasad V/s. State
of Bihar, 1971 (Supp) SCR 634 wherein this Court
authoritatively ruled that pension is a right and the
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payment of it does not depend upon the discretion of the
Government but is governed by the rules and a
Government servant coming within those rules is entitled
to claim pension. It was further held that the grant of
pension does not depend upon anyone's discretion. It is
only for the purpose of quantifying the amount having
regard to service and other allied matters that it may be
necessary for the authority to pass an order to that effect
but the right to receive pension flows to the officer not
because of any such order but by virtue of the rules. This
view was reaffirmed in State of Punjab V/s. Iqbal Singh,
(1976) 3 SCR 360.
27. Viewed in the light of the present day notions pension
is a term applied to periodic money payments to a person
who retires at a certain age considered age of disability;
payments usually continue for the rest of the natural life of
the recipient. The reasons underlying the grant of pension
vary from country to country and from scheme to scheme.
But broadly stated they are: (i) as compensation to former
members of the armed forces or their dependents for old
age, disability, or death (usually from service causes ), (ii)
as old age retirement or disability benefits for civilian
employees, and (iii) as social security payments for the
aged, disabled, or deceased citizens made in accordance
with the rules governing social service programmes of the
country. Pensions under the first head are of great
antiquity. Under the second head they have been in force
in one form or another in some countries for over a century
but those coming under the third head are relatively of
recent origin, though they are of the greatest magnitude.
There are other views about pensions such as charity,
paternalism, deferred pay, rewards for service rendered, or
as a means of promoting general welfare. But these views
have become otiose.
29. Summing-up it can be said with confidence that
pension is not only compensation for loyal service
rendered in the past, but pension also has a broader
significance, in that it is a measure of socio-economic
justice which inheres economic security in the fall of life
when physical and mental prowess is ebbing corresponding
to aging process and therefore, one is required to fall back
on savings. One such saving in kind is when you gave your
best in the he day of life to your employer, in days of
invalidity, economic security by way of periodical payment
is assured. The term has been judicially defined as a stated
allowances or stipend made in consideration of past
service or a surrender of rights or emoluments to one
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retired from service. Thus the pension payable to a
Government employee is earned by rendering long and
efficient service and therefore can be said to be a deferred
portion of the compensation for service rendered. In one
sentence one can say that the most practical raison d'etre
for pension is the inability to provide for oneself due to old
age. One may live and avoid unemployment but not
senility and penury if there is nothing to fall back upon.
31. From the discussion three things emerge: (i) that
pension is neither a bounty nor a matter of grace
depending upon the sweet will of the employer and that it
creates a vested right subject to 1972 Rules which are
statutory in character because they are enacted in
exercise of powers conferred by the proviso to Art. 309 and
Clause (5) of Art. 148 of the Constitution, (ii) that the
pension is not an ex gratia payment but it is a payment for
the past service rendered; and (iii) it is a social welfare
measure rendering socio-economic justice to those who in
the hey day of their life ceaselessly toiled for the employer
on an assurance that in their old age they would not be left
in lurch. It must also be noticed that the quantum of
pension is a certain percentage correlated to the average
emoluments drawn during last three years of service
reduced to ten months under liberalised pension scheme.
Its payment is dependent upon an additional condition of
impeccable behaviour even subsequent to retirement, that
is, since the cessation of the contract of service and that it
can be reduced or withdrawn as a disciplinary measure.
36. Having set out clearly the society which we propose
to set up, the direction in which the State action must
move, the welfare State which we propose to build up, the
constitutional goal of setting up a socialist State and the
assurance in the Directive Principles of State Policy
especially of security in old age at least to those who have
rendered useful service during their active years, it is
indisputable, nor was it questioned that pension as a
retirement benefit is in consonance with and furtherance of
the goals of the Constitution. The goals for which pension
is paid themselves give a fillip and push to the policy of
setting up a welfare State because by pension the socialist
goal of security of cradle to grave is assured at least when
it is mostly needed and least available, namely, in the fall
of life.
10. The above referred decisions is applicable in the case of
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the present appellant.
11. It deserves to be noted that the State Government passed
an order which is not dealt with by the learned Single Judge, but
also the submission canvassed by the learned counsel for the
appellant. The learned Single Judge travelled beyond the order of
the State government and even the case of the Government
before the learned Single Judge, which is not permissible under
the law. On that count also, the appeal deserves to be allowed.
We have also gone through the impugned judgment and order
passed by the learned Single Judge, whereby the learned Single
Judge has partly allowed the petition and claim of the appellant
to get pension from the State authorities was rejected and claim
qua provident fund was accepted. The learned Single Judge has
directed respondent no.3 that the amount of provident fund of
the appellant lying with it be paid to the appellant with statutory
interest within a period of three months from the date of receipt
of the order. Therefore, in view of the aforesaid legal preposition
and considering the facts and circumstances of the case, we are
of the considered opinion that the impugned judgment and order
of the learned Single Judge is not sustainable in the eyes of law
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and, therefore, the same is required to be interfered with. Hence,
the appeal deserves to be allowed.
12. In view of the above, the present appeal is allowed. The
impugned judgment and order dated 22.03.2017 passed by the
learned Single Judge in Special Civil Application No.6155 of 2012
is hereby quashed and set aside. The respondents - authorities
are directed to fix the pension of the appellant and to pay
provident fund, gratuity, leave encashment and other retirement
benefits to the appellant within a period of twelve weeks from
the date of the receipt of the copy of this order. However, there
shall be no order as to costs.
13. Since the main appeal is disposed of, the connected civil
application shall stand disposed of.
(R.M.CHHAYA,J)
(HEMANT M. PRACHCHHAK,J)
V.R. PANCHAL
