Gujarat High Court
Dr.Abdulsattar R Mansuri vs State Of Gujarat on 12 October, 2022
Bench: A.J.Desai
C/LPA/1263/2018 ORDER DATED: 12/10/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 1263 of 2018
In
R/SPECIAL CIVIL APPLICATION NO. 13676 of 2009
==========================================================
DR.ABDULSATTAR R MANSURI
Versus
STATE OF GUJARAT
==========================================================
Appearance:
MR KB PUJARA(680) for the Appellant(s) No. 1
MR TIRTHRAJ PANDYA ASST. GOVERNMENT PLEADER for the
Respondent(s) No. 1,2,3
==========================================================
CORAM:HONOURABLE MR. JUSTICE A.J.DESAI
and
HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Date : 12/10/2022
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE A.J.DESAI)
1. By way of present appeal under Clause 15 of Letters
Patent, the appellant - original petitioner has challenged the
common oral order dated 25.6.2018 passed in captioned writ
petition i.e. Special Civil Application No.9024 of 2014 with
Misc. Civil Application No.2 of 2015 in Special Civil
Application NO.13676/2009. In the impugned order, the
learned Single Judge refused to grant any of the reliefs of the
petitioner by not granting any pensionary and retiral benefits
keeping his ad hoc services as Principal of District Institute of
Education and Training (hereinafter referred to as "DIET")
C/LPA/1263/2018 ORDER DATED: 12/10/2022
from 12.8.1997 till his date of superannuation on 31.10.2009.
The appeal came to be admitted on 3.10.2018 and was
pending for final disposal.
2. During the pendency of the appeal, the appellant has
filed further affidavit dated 16.2.2022 (copy of which was
supplied to the office of Government Pleader, High Court of
Gujarat). Along with said additional affidavit, the appellant
has produced several orders passed by learned Single Judge,
confirmed in Letters Patent Appeal as well as the order of
Hon'ble Supreme Court confirming the order of learned Single
Judge as well as Division Bench in Letters Patent Appeal which
is identically similar to the case of the appellant to which
there is no reply filed by the State Authority.
3. The short facts on record are as under:
3.1. The petitioner was initially appointed as ADEI (Assistant
Deputy Education Inspector) in the year 1979 in Sabarkantha
District Education Committee, Himmatnagar on 14.12.1979.
While he was serving as such, he came to be selected and
appointed as ad-hoc Principal of the District Institute of
Education and Training (DIET) by appointed order dated
9.8.1997 and he joined duties on 11.8.1997. He retired on
reaching the age of superannuation on 31.10.2009. However,
C/LPA/1263/2018 ORDER DATED: 12/10/2022
he was placed under suspension by order dated 3.7.2002 and
he was issued charge-sheet dated 15.7.2002. Thereafter,
penalty of compulsory retirement was imposed on him by
order dated 10.9.2009. The petitioner challenged the said
order dated 10.9.2009 by way of Special Civil Application
NO.13676 of 2009, and prayed for reinstatement with all
consequential benefits including retirement benefits. The said
petition came to be allowed by the learned Single Judge by
order dated 31.1.2014 and as observed in paragraph 20 of the
order, the impugned order of compulsory retirement was
quashed and set aside, and learned Single Judge directed that
the petitioner is held to be in continuous service till the date
he reached the age of superannuation, and based on such
continuous service, the petitioner shall be entitled to all
consequential benefits except difference of salary from the date
of his suspension to the date of the inquiry report i.e. on
1.11.2004, and the respondents were directed to confer all
consequential benefits to the petitioner flowing from the
continuous service of the petitioner within a period of three
months from the date of receipt of the judgment and order.
3.2. The respondents did not pay the benefits to the petitioner
within three months as directed by learned Single Judge but
filed application for extension of time being MCA No.1812 of
2014 which was conditionally allowed by learned Single Judge
C/LPA/1263/2018 ORDER DATED: 12/10/2022
and further one month's time was granted by order dated
14.7.2014.
3.3. Thereafter, the respondents partly implemented the
judgment and paid salaries to the petitioner but did not grant
retirement benefits. The petitioner therefore preferred
Contempt Petition being MCA No.518 of 2015. The Contempt
Bench by order dated 18.6.2015 gave time to the respondents
to seek necessary clarification from the learned Single Judge.
Thereupon the respondents filed MCA (Stamp) No.1980/2015
along with Civil Application No.7330 of 2016 for condonation
of delay. The learned Single Judge rejected both the said
applications by order dated 7.7.2015. Thereafter, the
Contempt petition was heard and dismissed by order dated
16.7.2015 by observing that there was an ambiguity in the
judgment and order of learned Single Judge with respect to
payment of retiral benefits like pension. However, it was
clarified that without expressing anything on merits on the
aspect as to whether the applicant was entitled to the pension/
pensionary benefits/retirement benefits, and if as and when any
proceeding are initiated for the said relief, the same be
considered in accordance with law and on merits and the
dismissal of the contempt petition shall not come in the way
of the applicant.
C/LPA/1263/2018 ORDER DATED: 12/10/2022
3.4. The petitioner thereupon preferred MCA No.2585 of 2015
in Special Civil Application NO.13676 of 2009 for
clarification / modification and prayed to clarify the judgment
and order dated 30.1.2014 by expressly stating that the
petitioner was entitled to all consequential benefits including
retiral benefits like pension etc. The said MCA No.2585 of
2015 (which was re-numbered as MCA No.2 of 2015) in
Special Civil Application NO.13676 of 2009 preferred by the
present petitioner came to be heard along with Special Civil
Application NO.9024 of 2014 which was preferred by another
retired ad hoc Principal of DIET who was also denied the
benefit of pension and other retirement benefits for the period
of his ad hoc service as Principal of DIET from 11.8.1997 to
30.6.2014. Learned Single Judge decided both the matters by
common oral order dated 25.6.2018 and observed that the
petitioner and the applicant are not entitled to pension and
other retirement benefits as Principal of DIET as their services
cannot be considered as qualifying services for the purpose of
pension.
Hence, this appeal.
4. Mr. K.B.Pujara, learned advocate for the appellant would
submit that subsequent to the decision impugned in this
appeal, similarly situated employee namely Mr. Bahadur Hoshi
C/LPA/1263/2018 ORDER DATED: 12/10/2022
Kotwal who had also worked on ad hoc basis filed a petition
being Special Civil Application No. 19042 of 2017 since his
services as ad hoc employee was not considered, the learned
Single Judge interpreted the Rule 25 of the gujarat Civil
Services (Pension) Rules, 2002, and held that employee would
be entitled for all the benefits treating the ad hoc services of
said employee as qualifying service. The said decision was
challenged by State of Gujarat by filing Letters Patent Appeal
No. 1748 of 2019. The appeal filed by the State of Gujarat
was dismissed by oral order dated 22.10.2019 and upheld the
finding of the learned Single Judge. He would further submit
that both the decisions were challenged by the State of Gujarat
by way of filing SLP (C) Diary No.18929 of 2020, which was
again dismissed by three Judges Bench of Hon'ble Supreme
Court. He, therefore would submit that in view of aforesaid
facts, the present appeal also requires consideration.
5. On the other hand, Mr. Tirthraj Pandya, learned Assistant
Government Pleader has tried to support the decision rendered
by learned Single Judge in captioned writ petition and tried to
read the provisions of Rule 25 of the said Rules in different
manner and submitted that the appeal be dismissed.
6. We have heard learned advocates appearing for the
respective parties. It is undisputed fact that the petitioner was
C/LPA/1263/2018 ORDER DATED: 12/10/2022
appointed as ADEI (Assistant Deputy Education Inspector) in
Sabarkantha, District Education Committee on 14.12.1979, and
thereafter he was appointed by order dated 9.8.1997 as ad hoc
Principal with DIET and had joined services on 11.8.1997. He
continued to work as ad hoc principal for around 12 years and
02 months and retired from the service on superannuation on
31.10.2009. The authority by granting pensionary benefits and
other benefits treated his services from 1979 to 1997 relying
upon Rule 25 of the said Rules. It is pertinent to note that
this issue about treating the ad hoc services for qualifying
services has been decided by learned Single Judge in Special
Civil Application NO. 19042 of 2017 replying the decision of
the Hon'ble Supreme Court it has been held that "even though
the employee might have worked as ad hoc employee, his
services as ad hoc employee is required to be considered with
qualifying services as per Rule 25". This decision is upheld by
the Division Bench of this Court by oral order dated
22.10.2019 in Letters Patent Appeal No. 1748 of 2019. The
observations and analysis about treating the qualifying services
of ad hoc employee made by the learned Single Judge in
Special Civil Application No. 19042 of 2017 is reproduced in
the judgment of Division Bench in paragraph 6.1. is accepted
by Division Bench which reads as under:
"6.1. Additionally, the conclusion arrived at by
C/LPA/1263/2018 ORDER DATED: 12/10/2022
the learned Single Judge, we deem it proper to
produce below:-
5.1 Rule 25 of the Gujarat Civil Services
(Pension) Rules, 2002, deals with the qualifying
service for the purpose of pension. This
rule extracted in its relevant part,
reads as under, "Rule-25. Qualifying Service :
Subject to the provisions of these rules,
qualifying service of a Government employee,
means and includes,-
(i) all service including service on
probation rendered on a regular
establishment in any capacity whether,
temporary or permanent, interrupted or
continuous but it shall not include -
(a) service in non-pensionable establishment,
(b) service paid from contingencies,(c) service
rendered in daily rated establishment, (d)
actual periods of break in service if any,
between spell of service, (e) service prior to
resignation, removal or dismissal, (f) service as
an apprentice, (g) service on fixed pay basis,
and (h) service on contract basis.
(ii) all service rendered in work
charged establishment provided that the total
service put in, as such is five years or more,
(iii) ... ... ...
(iv) ... ... ...
(v) ... ... ...
(vi) ... ... ...
(vii) ... ... ...
(viii) ... ... ...
(viii) ... ... ...
C/LPA/1263/2018 ORDER DATED: 12/10/2022
(ix) ... ... ...
5.2 Thus, Rule 25(I) of the Rules provides that
qualifying service shall include all
services including services rendered on
probation. It also includes services rendered in
any capacity whether temporary or
permanent, whether interrupted or
continuous. The qualifying service, but,
would not include the service
rendered in the non-pensionable
establishment or service rendered in
contingencies or service rendered in
dailyrated establishment. Learned senior
counsel for the petitioner could rightly
emphasize the group of words
"whether temporary or permanent, interrupted
or continuous" from the language of the Rules
to submit that the petitioner's services would
be included as per the Rules, within the
purview of qualifying service for pension.
5.3 There is no gainsaying that in the present
case, the appointment of the petitioner
was never converted into contractual, nor
the appointment was on a fixed salary. The
Respondent where the petitioner was serving
was grant-in-aid institute and the salary was
paid to the petitioner under the grant-in-aid
code. The petitioner also received Fourth, Fifth
and Sixth Pay Commissions benefits from time-
to-time.
C/LPA/1263/2018 ORDER DATED: 12/10/2022
5.4 Further, Rule 26 of the Rules reads to state
about the Conditions subject to which service
qualifies. It says in its sub-rule (1) that the
service of a Government employee shall not
qualify unless his duties, pay and
allowance are regulated by the
Government or under conditions determined
by the Government. As per sub-section (2), it is
provided that for the purpose of sub-rule (1)
the expression 'service' means service
under Government and paid by Government
from the Consolidated Fund of State. As noted
above, the salary to the petitioner was paid out
of grant, therefore non-qualification
contemplated under above Rule 26 would not
arise for the petitioner.
5.5 Rule 39 prescribes for non-pensionable
services, on which provision, learned
learned Assistant Government Pleader
wanted to bank upon, but meritlessly. This
Rule provides that for those government
employees who are paid for services rendered
for the government but who are not retained
for whole time, the services shall not qualify.
Those who are receiving honorarium would
also not qualify for their services to be
pensionable. Also working on the tenure posts
would not be pensionable service. None of
these debility arise for the petitioner as the
petitioner was on full time duty. He was never
part time. The petitioner's case as an Ad hoc
Lecturer stood directly covered under Rule 25
C/LPA/1263/2018 ORDER DATED: 12/10/2022
of the Rules to treat his service as pensionable.
5.6 An argument was sought to be canvassed
by learned Assistant Government Pleader
also that there was no sanction to the post
held by the petitioner all throughout in ad-hoc
capacity. This Court in Vinodbhai
Shivrambhai Rathod v. State of Gujarat and
others being Special Civil Application
No.7462 of 2012 and batch of petitions decided
as per judgment dated 21st December,
2018, inter alia observed that, "if the State
Government fails to create posts, the
employees working for years on such
post without sanctioning cannot be made to
suffer for the inaction of the government. The
sanction would have to be presumed in such
cases so that the employees do not
suffer for the wrong of the government". It
was further observed that, " the State
Government cannot be allowed to argue that
there was no sanction at all for the parttimers
who are working in the various departments of
the government for ten or more years." It was
held therein that the petitioner's in the said
group of petitions were eligible for
one time regularization.
5.7 The Court in Vinodbhai Shivrambhai
Rathod (supra) for his above principle laid
down, referred to the decision of the Supreme
Court in Nihal Singh v. State of Punjab [2013
(14) SCC 65.] A contention was answered in
C/LPA/1263/2018 ORDER DATED: 12/10/2022
that decision by the Supreme Court that in
absence of sanctioned post, the State cannot be
compelled to absorb the persons like the
petitioner before the Court. The Supreme Court
observed that the posts are to be crated by
State depending upon the need to employ
people having regard to various functions of
the State undertakes to discharge. It was
further observed that every sovereign
government has within its own
jurisdiction right and power to create
whatever public offices it may regard as
necessary to its proper functioning and its own
internal administration.
5.8 Keeping in view the above observations and
principles when the petitioner was continued in
work, though as adhoc, on the post of
Lecturer, It necessarily implied that the
petitioner's post was pursuant to the
need of the respondents and the petitioner
discharged the duties in the permanent
establishment. When the petitioner has put-
forth his claim for pension and when the said
claim falls with in the purview of Rule 25 of
the applicable rules and further that the
petitioner possessed the qualifying
service, the contention that his post was not
sanctioned, could hardly be countenanced to
impede an enforcement of right of the
petitioner to get the pension. Sanction to the
post of the petitioner has to be
necessarily presumed when the petitioner
C/LPA/1263/2018 ORDER DATED: 12/10/2022
was continued to thirty three years. 5.9 The
petitioner completed thirty three years of
service. All the time he was treated as ad-hoc
Lecturer. That the time of thirty three years is
too long not to be adequate to treat it as
permanent service. Apart this, Rule 25
describes the qualifying service as one which
may even be temporary, interrupted or
continuous. The petitioner was serving in a
pensionable establishment. His services
could not have been treated as
rendered as not qualified to be
pensionable."
7. It is pertinent to note that the order passed by the
Division Bench in Letters Patent Appeal No.1748 of 2019 was
challenged by State of Gujarat by way of SLP (C) Diary No.
18929 of 2020, which was dismissed by Hon'ble Three Judges
Bench on 29.10.2020. Therefore, the finding with regard to
qualifying service of ad hoc has become final and does not call
for re-evaluation or re-appreciating the said aspect. Similarly
is the case of Kanjibhai Nagjibhai Desai which was also upheld
by Division Bench of this Court in Letters Patent Appeal No.
189 of 2020. The judgment of learned Single Judge in Special
Civil Application 16009 of 2018 and Letters Patent Appeal No.
189 of 2020 is upheld by the Hon'ble Supreme Court in SLP
(C) No.13054 of 2021 by dismissing the same on 3.9.2021.
C/LPA/1263/2018 ORDER DATED: 12/10/2022
8. Hence, we are of the opinion that the present appeal
requires consideration and accordingly, we allow the appeal.
The order passed by learned Single Judge is hereby quashed
and set aside. The authorities are hereby directed to treat the
services of the appellant as ad hoc Principal from 11.8.1997 to
31.10.2009 as qualifying service and shall grant pensionary
benefits with all consequential benefits. Such exercise shall be
undertaken by the respondents authorities within a period of
eight weeks from the date of receipt of the order.
9. Direct service is permitted.
10. Civil Applications, if any, also stands disposed of.
(A.J.DESAI, J)
(MAUNA M. BHATT,J)
NAIR SMITA V.
