Gujarat High Court

Janak Kaniyalal Patel vs State Of Gujarat on 13 September, 2022

Bench: Biren Vaishnav

     C/SCA/409/2020                              JUDGMENT DATED: 13/09/2022




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 409 of 2020
                                  With
               R/SPECIAL CIVIL APPLICATION NO. 1912 of 2017

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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                         JANAK KANIYALAL PATEL
                                 Versus
                           STATE OF GUJARAT
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Appearance:
MR VAIBHAV A VYAS(2896) for the Petitioner(s) No. 1
MR UTKARSH SHARMA, ASST GOVERNMENT PLEADER for the
Respondent(s) No. 1,2,3,4
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    CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV

                             Date : 13/09/2022

                            ORAL JUDGMENT

ORDER IN SPECIAL CIVIL APPLICATION NO. 409 of

C/SCA/409/2020 JUDGMENT DATED: 13/09/2022

1. The prayer in the petition is that the communication

dated 07.09.2019 by which the case of the petitioner for

pensionary benefits has been rejected on the ground of

pendency of Special Civil Application No. 1912 of 2017 be

quashed and set aside. The further prayer is that the

petitioner be held to be entitled to all retirement benefits

such as pension, gratuity, leave encashment, group

insurance etc.

2. Facts in brief would indicate that the petitioner was

appointed on 02.09.1983 as an Apprentice Clerk

(General) for a period of one year. This was pursuant to

the name of the petitioner being called from the

Employment Exchange vide letter dated 20.08.1983 and

interview held on 30.08.1983. On completion of one year

of service, the Chief Engineer (Electrical), Road and

Building Department, passed an order on 04.09.1984

whereby the petitioner was appointed as Clerk on

temporary basis. He worked till he reached the age of

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superannuation on 31.05.2018. Having rendered 35

years of service with the establishment, the petitioner has

prayed for the relief as set out in para 8A of the petition.

3. While issuing notice on 09.01.2020, this court

passed the following order:

"1. Mr.Vyas, learned counsel for the petitioner states that the petitioner by the impugned communication dated 7.9.2019 has been denied the pensionary benefits of retirement only on the ground that he was irregular, though he has rendered pensionary service. It is his submission that irrespective of the challenge made for seeking regularization which is pending viz; Special Civil Application No.1912 of 2017, reading of Rule 25 of the Gujarat Civil Services (Pension) Rules, 2002, which provides that a Government Servant who renders qualifying service including service on a temporary or permanent establishment, he is entitled to pension.

2. Reliance is also placed on a decision of coordinate Bench of this Court in Special Civil Application No.20582 of 2018 dated 18.10.2019 rendered in the case of ad hoc lecturers.

3. Issue NOTICE, returnable on 4.3.2020.

Direct Service is permitted."

C/SCA/409/2020 JUDGMENT DATED: 13/09/2022

4. Mr. Vaibhav Vyas, learned advocate appearing for

the petitioner would submit that when the petitioner

approached the Tribunal for the relief of

regularization/seniority, the observations made in the

order of Tribunal would indicate that the case of the

petitioner along with one Ms. Ushaben Dave and Mr. A.D.

Rajguru was recommended for regularization of services

by a letter dated 10.09.1992. Accordingly, the Tribunal

recommended that the case of the petitioner be

considered. The authorities passed an order on

13.01.2017 rejecting his request which has given rise to

filing of Special Civil Application No. 1912 of 2017.

Reliance is placed by Mr. Vyas, learned advocate for the

petitioner on the decisions of this court rendered on in

Special Civil Applications No. 20582 of 2018 and 19042

of 2017 on 18.10.2019 and 07.05.2019 respectively.

5. Mr. Utkarsh Sharma, learned AGP would submit that

the petitioner was not appointed in consonance with the

recruitment rules. His appointment was irregular. He

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would submit that merely continuing in service on an

irregular basis, parity cannot be claimed with the other

two employees whose names were referred to in the

order of the Tribunal. If they were regularized in the

relevant years, the petitioner ought to have approached

this court seeking parity which he did not. No relief can

be granted as prayed for as per Mr. Sharma, learned

AGP.

6. This court in the decision relied upon by Mr. Vyas,

learned advocate for the petitioner in Special Civil

Application No. 20582 of 2019, considering Rule 25 of the

Gujarat Civil Services (Pension) Rules, 2002 (for short

'the Rules') held as under:

"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

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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,

(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) ..... to (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 nonpensionable establishment or service rendered in contingencies or service rendered in daily-rated establishment. Learned senior counsel for the petitioner could rightly emphasise the group of words "whether temporary or permanent, interrupted or continuous" from the language of the Rules to

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submit that the petitioner's services would be included as per the Rules,within the purview of qualifying service for pension.

5.3 In view of the above Rule-25 of Pension Rules 2002, temporary services are liable to be counted as pensionable. Even though the petitioner served as ad hoc for more than 29 years, he was on the regular establishment entitled to get his services to be treated as pensionable. Rule 25 in terms says that qualifying service for pension include even interpreted services. Therefore, short breaks of few days during the tenure of the services of the petitioner, would be in no way impead in counting the services of the petitioner to qualify as pensionable services.

6. As a result of the above discussion, the petitioner has to be treated as entitled for grant of pensionary and retiral benefits such as gratuity, leave encashment and those admissible to him on the basis of services of more than 29 years, which would be treated as qualifying service for pension and retirement benefits. The respondents are directed to finalise the pension case of the petitioner within a period of three months from the date of receipt of copy of the present order and pay to the petitioner pension regularly alongwith other retirement dues admissible and payable to him. The arrears which may arise to be paid shall be paid within further period of two months.

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7. The petition is allowed in the aforesaid terms. Rule is made absolute to the aforesaid extent. Direct service is permitted."

6.1 Similarly in the decision rendered in Special Civil

Application No. 19042 of 2017, considering the objection

of the State, which was reflected in the affidavit-in-reply

where the rejection of regularization was at hands, in

light of Rule 25 of the Rules, this court held as under:

"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 daily-rated establishment. Learned senior counsel for the petitioner could rightly emphasise 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

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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 also not qualify for their services to be pensionable. Also working on the tenure posts would not be pensionable

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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 part-timers who are working in the various departments of the government for ten or more years." It was held therein that the petitioners 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)

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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 ad-hoc, 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 within 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

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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.

6. As a result of above discussion, it is declared that the ground for denial to the petitioner the pension and retirement benefits, that the petitioner was ad hoc employee, is not sustainable. The fact that the petitioner served on ad hoc basis would not disentitle him to receive the pension and the pensionary benefits. The decision reflected in communication-cum-order dated 06th May, 2017 of the Joint Director, Commissioner of Technical Education, Gandhinagar, treating the petitioner as ineligible for pension and retirement benefits, is hereby set aside.

6.1 The respondents are directed to calculate the pension with effect from 01st October, 2016 and start paying pension regularly to the petitioner. The other retiral benefits including gratuity would also to be paid to the petitioner. The payment of pension shall be commenced immediately from the next month, that is June, 2019.

6.2 While the regular pension shall be paid

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every month from June, 2019, arrears of pension and the arrears for other benefits shall be paid to the petitioner within a period of eight weeks from the date of receipt of writ of this order.

6.3 If the arrears are not paid within the above stipulated time, it is provided that the same shall carry interest at the rate of 6% per annum from the date of filing of the petition, that is 11th October, 2017 till the actual payment.

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

Direct service is permitted."

7. In view of the above, denying the petitioner his

pension and retirement benefits on the ground that the

petitioner was ad hoc employee, is unjustified. The fact

that the petitioner served on ad hoc basis would not

disentitle him to receive the pension and the pensionary

benefits. Accordingly, the petition is allowed. The

respondents are directed to extend the retirement

benefits such as pension, gratuity, leave encashment etc

to the petitioner based on the petitioner's superannuation

on 31.05.2018. The terminal benefits accruing due to this