H.M.Patel vs State Of Gujarat
2022 Latest Caselaw 8185 Guj

      C/SCA/10001/2013                             JUDGMENT DATED: 20/09/2022




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                R/SPECIAL CIVIL APPLICATION NO. 10001 of 2013

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE A.Y. KOGJE
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1      Whether Reporters of Local Papers may be allowed                  No
       to see the judgment ?

2      To be referred to the Reporter or not ?                           No

3      Whether their Lordships wish to see the fair copy                 No
       of the judgment ?

4      Whether this case involves a substantial question                 No
       of law as to the interpretation of the Constitution
       of India or any order made thereunder ?

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                                  H.M.PATEL
                                    Versus
                         STATE OF GUJARAT & 2 other(s)
================================================================
Appearance:
MR MUKUND M DESAI(286) for the Petitioner(s) No. 1
MR. DHAWAN JAYSWAL, AGP, for the Respondent(s) No. 1,2,3
RULE SERVED for the Respondent(s) No. 1,2,3
===============================================================
    CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE

                               Date : 20/09/2022
                               ORAL JUDGMENT

[1] This petition under Article 226 of the Constitution of India is

filed inter alia seeking direction as under:-

"(B) to issue writ in the nature of mandamus or any other appropriate writ, order or direction, quashing and setting aside the orders dated 3.2.2012 and 15.10.2012 passed by the respondents and further direct the State Government to consider the case of the petitioner at par with the case of Shri

C/SCA/10001/2013 JUDGMENT DATED: 20/09/2022

Shankarbhai Patel and grant pension and other benefits to the petitioner with interest including the other consequential benefits with effect from 14.06.2002."

[2] The claim of the petitioner is based on two grounds firstly that

though belatedly, the petitioner has made an application for

exercising the option in proper format and had also explained the

medical ground because of which he was unable to exercise the

option in time. He has drawn parity with the case of one colleague

namely Shankarbhai I. Patel, who had also on the medical ground

did not exercise the option in time despite his case was duly

considered.

[3] Learned advocate submitted that the petitioner was in

employment since 1966, and was thereafter transferred at various

places. The petitioner was transferred on 04.12.1982 to L.D.Arts

College and on 26.10.1996 to H.L. College of Commerce and

therefore, if these appointments in case of teachers, such transfer

are also required to be treated as a fresh appointment and

therefore, as per the Government Resolution dated 15.10.1984, the

case of the petitioner is required to be treated as a fresh

appointment after the dates specified in the Government Resolution

dated 15.10.1984 and is therefore, required to be considered as

beneficiary of the pension scheme. It is submitted that the

petitioner though made detailed representation to the Education

C/SCA/10001/2013 JUDGMENT DATED: 20/09/2022

Department, but the same was not considered favouably.

[4] As against this, learned Assistant Government Pleader opposing

the grant of petition has submitted that the case of the petitioner

cannot be treated at par with the colleague Shri Shankarbhai I.

Patel. Moreover, there is a great delay of almost 13 years during

which the petitioner has received the benefits of the CPF claim. It is

submitted that the petitioner is claiming the pension benefits, and is

relying upon the case of Mr.S.I.Patel who has been given similar

benefits. The scheme for the purpose of pension was introduced on

15.10.1984 by the Education Department, by way of same, the

pension benefits were given to those who were recruited after

04.04.1982. It is submitted that the option was to be exercised

within one year from the scheme coming into force. The present

petitioner never filled up and submitted any option form at the

relevant point of time and continued subscribing to the Contributory

Provident Fund (CPF) Scheme instead of opting for General

Provident Fund (GPF) pension Scheme. The petitioner not only

realized the benefit accrued under CPF scheme but also never

deposited this CPF amount along with interest before the

Government alike others who choose to switch over to GPF scheme

to fulfill prerequisite condition to avail the benefit of the GPF

Scheme. The additional special chances to exercise such option was

lastly discontinued discontinued by Government Resolution dated

C/SCA/10001/2013 JUDGMENT DATED: 20/09/2022

07.01.2004.

[5] In rejoinder, learned advocate for the petitioner in support of

his argument regarding fresh appointment upon being transfer, has

relied upon the observations made to in paras-8 and 14.1 of the CAV

judgment in Letters Patent Appeal No.2259 of 2017 and cognate

matters which are decided by CAV judgment and order dated

02.05.2019.

[6] The Court has heard learned advocates for the parties and

perused the documents placed on record. The chronology of service

of the petitioner is that the petitioner has joined the services of H.L.

College of Commerce on 01.08.1966 and thereafter he was

transferred to L.D. Arts College on 01.07.1973. Thereafter, on

16.07.1977, the petitioner was declared surplus teacher and was

posted at Vishwabharti Higher Secondary School. Then the

petitioner was recalled to L.D. Arts College on 05.11.1979 on

account of vacancy created at the L.D. Arts College. On 15.06.1981,

the petitioner was again transferred to his parent college being H.L.

College of Commerce. Again on 04.12.1982, he was transferred

back to L.D. Arts College and till 1996 he had worked at L.D. Arts

College. Thereafter, on 26.10.1996 he was was transferred back to

H.L. College of Commerce and remained there till he attained the

age of superannuation on 14.06.2002.

       C/SCA/10001/2013                               JUDGMENT DATED: 20/09/2022




[7]       Accordingly, the petitioner has retired in 2002 and obviously

benefit under the CPF was received by the petitioner as on the date

of his retirement. The case of the petitioner for treating the transfer

on 04.12.1982 or on 26.10.1996 as a fresh appointment cannot be

considered from one college to another and the observations made

the Court in Letters Patent Appeal No.2259 of 2017 in case of State

of Gujarat and others, v/s/ Kalhans Harilal Patel and others, this fact

is not borne out. Nothing is recorded in the aforesaid CAV judgment

that the transfer is to be treated as a fresh appointment. The

observations made in para-8 would indicate that as and when

teaching staff rises in rank, the staff has to undergo selection

procedure, which is undertaken by duly constituted committee after

public advertisement. The committee consists of special experts and

Government Nominee and therefore, the Court had proceeded to

hold that hierarchical promotion or career advancements are akin to

fresh recruitments. Observing this, the Court had directed in para-

14.1 that any recruitment/appointment made after 01.04.1982 for

the teaching staff is fresh advertisement and selection and hence, it

is afresh appointment and therefore, pension scheme is

automatically applicable. The facts of the present case are at

complete variance as it is a case of the petitioner himself that after

being appointed in the year 1966, he was declared surplus and has

been transferred from time to time and the transfer effected after

C/SCA/10001/2013 JUDGMENT DATED: 20/09/2022

the Government Resolution dated 15.10.1984 in 1982 and 1996 are

also the transfers which cannot be treated as fresh appointments.

Hence, as the petitioner from the initial stage having continued in

the CPF Scheme, cannot claim the benefit of pensions scheme.

[8] As is found from the record that Government Resolution dated

15.10.1984, specifying the date of exercising option by subsequent

resolution was extended from time to time till the effect of the

resolution was discontinued, whereas even for the first time the the

petitioner's application for exercising option in the year 1998, is not

within the period specified by the Government Resolution or

thereafter, extended from time to time. Hence, no directions can be

issued to treat the case of the petitioner having exercised option in

time to entitle him for pension scheme.

[9] It is pertinent to observe that despite his so-called application

for exercising option was of the year 1998 and petitioner having

retired in the year 2002, for the first time representation was made

in the year 2012 and the present petition was filed thereafter.

According to the petitioner, there is a gross delay as in the

meantime, the petitioner has continued to enjoy the benefit of the

CPF Scheme from the date of his retirement.

[10] The Court finds that while passing the order dated

03.02.2012, the Education Department has taken into consideration

the relevant aspect and has rightly rejected the option exercised by

C/SCA/10001/2013 JUDGMENT DATED: 20/09/2022

the petitioner for the pension scheme. Not to mention the financial

burden and the administrative exigency that the Government may

have to face at such belated stage, no interference is required. The

petition deserves to be and is hereby dismissed. Rule is discharged.

No order as to costs.

(A.Y. KOGJE, J) SIDDHARTH