Gujarat High Court
M.B. Prajapati vs State Of Gujarat on 12 October, 2022
Bench: A.J.Desai
C/LPA/1149/2018 ORDER DATED: 12/10/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 1149 of 2018
In
R/SPECIAL CIVIL APPLICATION NO. 9024 of 2014
With
CIVIL APPLICATION (FOR INTERIM RELIEF) NO. 1 of 2018
In R/LETTERS PATENT APPEAL NO. 1149 of 2018
==========================================================
M.B. PRAJAPATI
Versus
STATE OF GUJARAT & 2 other(s)
==========================================================
Appearance:
MR KB PUJARA(680) for the Appellant(s) No. 1
MR PARESHKUMAR B TRIVEDI(9926) for the Appellant(s) No. 1
MR TIRTHRAJ PANDYA ASST. GOVERNMENT PLEADER for the
Respondent(s) No. 1,3
RULE SERVED BY DS for the Respondent(s) No. 2
==========================================================
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
oral order dated 25.6.20018 passed in captioned writ petition
i.e. Special Civil Application No. 9024 of 2014 which was
decided along with Misc. Civil Application No.2 of 2015 in
Special Civil Application No.13676 of 2009. The same has also
been challenged by way of filing separate Letters Patent Appeal
No. 1263 of 2018 which is listed today along with present
C/LPA/1149/2018 ORDER DATED: 12/10/2022
appeal. However, it is separately decided. 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") from 12.8.1997 till his date of superannuation
on 30.6.2014. The appeal came to be admitted on 10.9.2018
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 present appellant was appointed as Assistant Teacher
in Government Secondary School on 28.8.1978. Thereafter, he
was appointed as ad hoc Principal with DIET on 9.8.1997 and
C/LPA/1149/2018 ORDER DATED: 12/10/2022
he joined on the said post on 12.8.1997 and continued as ad
hoc Principal upto 30.6.2014 (till his retirement). The
petitioner therefore requested the authority to grant pensionary
benefits treating his service as continuous service from 28.8.
1978 to 30.6.2014 including the period for which he has
worked as ad hoc Principal. The authority relying upon the
Gujarat Civil Services (Pension) Rules, 2002 (hereinafter
referred as "Rules'), refused the same.
4. Being aggrieved with the said order, the captioned writ
petition was filed and following prayers were made to the
petition:
"12 (a) to admit this petition and to issue
notice for final disposal on returnable date;
(b)to direct the respondents to forthwith
sanction the petitioner's pension case and to
issue the pension payment order and death-cum-
retirement gratuity order and to pay all the
retirement benefits in view of the petitioner's
retirement on 30.6.2014 as Principal of DIET,
Ahmedabad-city on reaching the age of
superannuation of 58 years;
(c) to restrain the respondents from altering the
service-conditions of the petitioner to his
disadvantage in any manner whatsoever;
C/LPA/1149/2018 ORDER DATED: 12/10/2022
(d)to direct the respondent authorities to
complete the formality of regularizing the
petitioner's ad-hoc service as Principal of DIET
since 12.8.1997 at the earliest.
(e) to direct the respondents to pay interest @
18% per annum or at the rate as may be
directed by this Hon'ble Court on the delayed
payment of the retirement benefits with effect
from 30.6.2014;
(f) pending the hearing, and final disposal of
this petition, be pleased to direct the
respondents to forthwith sanction the
petitioner's pension case and to issue the
pension payment order and death-cum-
retirement gratuity order and to pay all the
retirement benefits in view of the petitioner's
retirement on 30.6.2014 as Principal of DIET,
Ahmedabad - city on reaching the age of
superannuation of 58 years, subject to further
orders that may be passed by the Hon'ble
Court;
(g) pending the hearing, and final disposal of
this petition, be pleased to direct the
respondents to pay provisional pension to the
petitioner with effect from 1.7.2014 until the
petitioner's pension case is sanctioned;
(h)pending the hearing and final disposal of this
petition, be pleased to restrain the respondents
from altering service conditions of the petitioner
C/LPA/1149/2018 ORDER DATED: 12/10/2022
as Principal of DIET in any manner adverse to
him;
(i) to grant costs of this petition and to grant
any other appropriate and just relief/s."
5. The petition was opposed by the State Authority by filing
affidavit-in-reply before the learned Single Judge, to which,
rejoinder was also filed. The learned Single Judge after
hearing the parties dismissed the petition. Hence, this appeal.
6. 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
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 said Rules and
held that employee would be entitled for all the benefits
treating the 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)
C/LPA/1149/2018 ORDER DATED: 12/10/2022
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.
7. 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 Act in different
manner and submitted that the appeal be dismissed.
8. We have heard learned advocates appearing for the
respective parties. It is undisputed fact that the petitioner was
appointed as Assistant Teacher in Government Secondary
School in the year 1978, thereafter he was appointed by order
dated 9.8.1997 as ad hoc Principal with DIET and had joined
services on 12.8.1997. He continued to work as ad hoc
principal for around 16 years and 10 months and retired from
the service on superannuation on 30.6.2014. The authority by
granting pensionary benefits and other benefits treated his
services from 1978 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
C/LPA/1149/2018 ORDER DATED: 12/10/2022
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 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
C/LPA/1149/2018 ORDER DATED: 12/10/2022
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) ... ... ...
(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.
C/LPA/1149/2018 ORDER DATED: 12/10/2022
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.
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
C/LPA/1149/2018 ORDER DATED: 12/10/2022
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 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
C/LPA/1149/2018 ORDER DATED: 12/10/2022
to the decision of the Supreme Court in Nihal
Singh v. State of Punjab [2013 (14) SCC 65.] A
contention was answered in 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 was continued to thirty three
years. 5.9 The petitioner completed thirty three
years of service. All the time he was treated as ad-
C/LPA/1149/2018 ORDER DATED: 12/10/2022
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."
9. 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.
10. Hence, we are of the opinion that the present appeal
requires consideration and accordingly, we alllow the appeal.
The order passed by learned Single Judge is hereby quashed
and set aside. The authorities are hereby directed to treat the
C/LPA/1149/2018 ORDER DATED: 12/10/2022
services of the appellant as ad hoc Principal from 12.8.1997 to
30.6.2014 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.
11. Direct service is permitted.
12. Civil Applications, if any, also stands disposed of.
(A.J.DESAI, J)
(MAUNA M. BHATT,J)
NAIR SMITA V.
