State Of Gujarat vs C J Shishoo
2022 Latest Caselaw 8277 Guj

     C/SCA/18088/2021                           JUDGMENT DATED: 22/09/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 18088 of 2021

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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                            STATE OF GUJARAT
                                  Versus
                               C J SHISHOO
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Appearance:
MR UTKARSH SHARMA, AGP for the Petitioner(s) No. 1
MR RR VAKIL(964) for the Respondent(s) No. 2,4
MS LIPEE D DAVE(12327) for the Respondent(s) No. 1
NOTICE UNSERVED for the Respondent(s) No. 3
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     CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
                      Date : 22/09/2022
                      ORAL JUDGMENT

1. Rule returnable forthwith. Ms. Dave, learned advocate

waives service of notice of Rule for the respondent No.1

while Mr. Vakil, learned advocate waives service of notice of

Rule for respondent Nos.2 and 3.

C/SCA/18088/2021 JUDGMENT DATED: 22/09/2022

2. In this petition, the petitioner - State has challenged the order

dated 04.10.2019 passed by the Gujarat Educational

Institutions Services Tribunal.

3. Facts in brief would indicate that the applicant before the

Tribunal, the respondent No.1 herein was initially appointed

as a Lecturer on 25.11.1963. He was thereafter appointed as

an Assistant Professor (UG) on 15.06.1967. On 16.08.1973,

he joined as an Assistant Professor (PG). Apparently, the

finding of the Under Graduate courses was done by the

State Government whereas, that of the Post Graduate

course was done by the Central Government.

4. It is undisputed fact that the petitioner continued to work

under the same institution in two different courses

continuously and he retired on superannuation on

31.10.1997. Since his pensionary benefits were not being

finalized, the petitioner approached the Tribunal by filing

application No.26 of 2019 with a direction that the

respondent be directed to consider the total services of the

applicant rendered by him from 19.11.1963 till he retired on

C/SCA/18088/2021 JUDGMENT DATED: 22/09/2022

31.10.1997 as services accrue for the benefits of pension.

5. After hearing the matter on merits and noting the objection of

the State that no prior permission was taken by the petitioner

for switching over from the UG course to the PG course, the

Tribunal by its order dated 04.10.2019 directed that the State

Government should prepare his pension papers and take an

appropriate decision. Aggrieved by the order, the original

applicant - respondent herein preferred a Review before the

Tribunal. The Tribunal, by impugned order hereunder in the

Review Application directed that pension papers be prepared

and pension accordingly be paid to the petitioner within the

time frame so stipulated in the order. This order of the

Tribunal is challenged by the State.

6. Mr. Sharma, learned Assistant Government Pleader for the

petitioner - State would submit that the findings of the

Tribunal by placing reliance on two orders of this Court in

SCA Nos.16629/2012 and 9946/2014 could not have been

arrived at by the Tribunal, inasmuch as, in both those cases

as required vide the GR dated 15.4.1968, prior permission

C/SCA/18088/2021 JUDGMENT DATED: 22/09/2022

was taken. The Tribunal committed an error therefore in

issuing direction in the original order.

7. Ms. Dave, learned counsel for the respondent inviting the

Court's attention to the order passed in SCA No.16629 of

2012 would submit that even in that case, the State had

taken an objection that since the funding agencies were

different i.e. Central Government and State Government and

in absence of the approval, no pensionary benefits could be

paid. The Court had discarded the objection and directed

payment of pension and other terminal benefits. The order

passed in SCA No.9946 of 2014 was also referred to.

8. Considering the submissions made by the learned advocates

for the respective parties, what essentially needs to be noted

is that looking to the prayers made in the petition, it is

apparent that the State Government has only challenged the

order filed in Review Application No.6/2019 which essentially

rectified the directions issued in the original order passed by

the Tribunal on 4.10.2019. The order therefore which held

that the respondent was entitled to pension was never a

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subject matter of challenge before this Court and therefore

safely has to be presumed that the order has become final.

9. Even otherwise, perusal of the order passed in the main

application on 4.10.2019 indicates that the Tribunal has, in

the opinion of this Court rightly so relied on the decision

dated 30.6.2014 of this Court in SCA No.16629 of 2012

where in context of the same facts where a similar objection

was taken on behalf of the State, the Court directed the

payment of pension. Relevant paragraphs of the decision

dated 30.6.2014 of SCA No.16629 of 2012 read as under:

"5. The second respondent has filed an affidavit opposing the petition mainly on the ground that services rendered by the petitioner post 1994 were funded by the Central Government, and that no grant whatsoever towards salary of the petitioner post 1994 is borne by the State Government, and that in absence of approval of the petitioner's appointment in 1994 as aforesaid by the State Government, the State is not liable to pay the pension to the petitioner post 1994.

6. The petitioner has relied upon two orders fixing the pension after clubbing of the services rendered by the said two persons in Post Graduate Courses and Under Graduate Courses respectively dated 4.6.1999 and 27.6.2006 in case of one Mr.Urvish Pathak and Dr.G.K.Jani respectively. Referring to the case of Mr.Pathak, the only explanation coming in the affidavitinreply by the second respondent is that each individual case is different, without however explaining as to how the case of Mr.Pathak is different than that of the petitioner. So far as the case of Mr.Jani is concerned, the affidavit is silent.

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7. The petitioner in his affidavitinrejoinder has reiterated his case. He has also relied upon a communication dated 26th July, 1982 addressed to the Education Secretaries of the State Government/Union Territories having Engineering Colleges with PostGraduate Education. The text of the letter can be quoted below for ready reference:

"

F.No.1812/81T2 GOVERNMENT OF INDIA MINISTRY OF EDUCATION & CULTURE (DEPPT.OF EDUCATION) .......

NEW DELHI, the 26th July, 1982.

To The Education Secretaries Of the State Govts/UTs having Engineering Colleges With PostGraduate Education.

            Sub:        Recommendation           of        the        Review
            Committee/P.G.Board Regarding          norms       for    grants,

consolidation of facilities, modernization of laboratories etc.

Sir,

I am directed to state that there are certain institutions in your State receiving grantinaid from the State Government which provide first Degree as well as Post Graduate level education. It is observed that retirement and certain other benefits are admissible only to the teachers engaged for undergraduate courses in such institutions. With a view to have uniformity in the matter of service conditions and other benefits to all the teachers it has been decided that the State Government may be requested that the benefits as admissible to the teachers engaged for undergraduate teaching should be extended to the PostGraduate teachers also and the funds for implementing this decision may be met by the State Government concerned from the plan allocation. You are, therefore, requested to kindly take necessary action in the matter under advise to the Ministry."

(emphasis supplied) Yours faithfully, Sd/ ( I.B.SANGAL ) DEPUTY EDUCATIONAL ADVISOR(T) COPY TO:

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1. AEA (T) Min. of Edu./(Deptt. Of Edu.) Western Regional Office, Industrial Assurance Building, Bombay - 20.

2. AEA (T) Min. of Edu & Cul. Northern Regional Office, Kanpur 22.

3. AEA (T) Min. of Edu & Cul. Deptt. Of Education, Eastern Regional Office, 5 Esplanade.

4. DEA (T) Min. of Edu & Cul. Deptt. Of Education, Southern Regional Office, 26 - Haddows Road, Madras6.

2. The Secretary, University Grants Commission, NewDelhi.

3. DEA (T)/DEA (V)/DEA(H)/DEA(W).

Sd/ ( I.B.SANGAL ) DEPUTY EDUCATIONAL ADVISOR(T)

8. Having considered the rival contentions, there does not appear to be any dispute as regards 39 years of total service having been rendered by the petitioner. There is also no dispute that respondent No.3 imparts education for Under Graduate and Post Graduate Courses. It is also not in dispute that the State Government has been funding the respondent No.3 for Under Graduate Courses and the Central Government for Post Graduate Courses.

9. It appears that a similar situation had arisen in 1982, and based on the recommendation of the Review Committee/Post Graduation Board regarding norms for grants, consolidation of facilities, modernisation of laboratories etc., letter dated 26th July, 1982, as quoted above by the Ministry of Education and Culture, Department of Education, Government of India came to be issued to resolve the issue similar to the issue involved in the petition. It appears that, in view of the said letter, the State Government concerned, after admitting the benefits to the teachers engaged in the Post Graduate Courses, can meet with the necessary part of the expenses from the plan allocation made by the CentralGovernment. Thus, it appears that there will be no additional burden upon the State Government if clubbing of the services as asked for by the petitioner is granted. In fact, in case of Mr.Pathak and Mr.Jani, as noticed above, the benefits are granted. Except making a bald statement that the individual cases are different, the affidavit of the second respondent is silent. It is not explained under what

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circumstances the benefit to the said two persons were granted. The second respondent is not able to controvert the fact that the said individuals are similarly situated to the petitioner. The learned AGP, however, placed reliance upon USHA MEHTA VS. GOVERNMENT OF ANDHRA PRADESH AND OTHERS [ (2012) 12 SCC 419 ] wherein the Hon'ble Supreme Court relied upon Chandigarh Administration Vs. Jagjit Singh [ (1995) 1 SCC 745 ] para 8 thereof was referred to wherefrom following principle of law emerges.

"8. We are of the opinion that the basis or the principle, if it can be called one, on which the writ petition has been allowed by the High Court is unsustainable in law and indefensible in principle. Since we have come across many such instances, we think it necessary to deal with such pleas at a little length. Generally speaking, the mere fact that the respondent Authority has passed a particular order in the case of another person similarly situated can never be the ground for issuing a writ in favour of the petitioner on the plea of discrimination. The order in favour of the other person might be legal and valid or it might not be. That has to be investigated first before it can be directed to be followed in the case of the petitioner. If the order in favour of the other person is found to be contrary to law or not warranted in the facts and circumstances of his case, it is obvious that such illegal or unwarranted order cannot be made the basis of issuing a writ compelling the respondent Authority to repeat the illegality or to pass another unwarranted order. The extraordinary and discretionary power of the High Court cannot be exercised for such a purpose. Merely because the respondent Authority has passed one illegal/unwarranted order, it does not entitle the High Court to compel the authority to repeat that illegality over again and again. The illegal/unwarranted action must be corrected, if it can bedone according to lawindeed, wherever it is possible, the court should direct the appropriate authority to correct such wrong orders in accordance with law but even if it cannot be corrected, it is difficult to see how it can be made a basis for its repetition. By refusing to direct the respondent Authority to repeat the illegality, the court is not condoning the earlier illegal act/order nor can such illegal order constitute the basis for a legitimate complaint of discrimination. Giving effect to such pleas would be prejudicial to the interests of law and will do incalculable mischief to public interest. It will be a negation of law and the rule of law. Of course, if in case the order in favour of the other person is found to be a lawful and justified one it can be followed and a similar relief can be given to the petitioner

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if it is found that the petitioner's case is similar to the other person's case. But then why examine another person's case in his absence rather than examining the case of the petitioner who is present before the court and seeking the relief. Is it not more appropriate and convenient to examine the entitlement of the petitioner before the court to the relief asked for in the facts and circumstances of his case than to enquire into the correctness of the order made or action taken in another person's case, which other person is not before the case (sic court) nor is his case. In our considered opinion, such a course barring exceptional situationswould neither be advisable nor desirable. In other words, the High Court cannot ignore the law and the wellaccepted norms governing the writ jurisdiction and say that because in one case a particular order has been passed or a particular action has been taken, the same must be repeated irrespective of the fact whether such an order or action is contrary to law or otherwise. Each case must be decided on its own merits, factual and legal, in accordance with relevant legal principles. The orders and actions of the authorities cannot be equated to the judgments of the Supreme Court and High Courts nor can they be elevated to the level of the precedents, as understood in the judicial world."

(emphasis supplied)

10. Keeping in view the aforementioned principle, the question is whether the State Government has discharged the burden as contemplated in the aforesaid emphasised observations as indicated hereinabove. The affidavit of the second respondent is silent on all relevant aspects, and therefore, there is no reason to dispute the averments made by the petitioner stating that Mr.Pathak and Mr.Jani were similarly situated as the petitioner. The orders passed in their case are produced with the petition. It appears that in so far as Mr.Pathak is concerned, a petition was filed being Special Civil Application No.6111 of 1998, and in pursuance to the orders passed therein, his pension was fixed after clubbing of services rendered by him in Under Graduate and Post Graduate Courses in the same college. Pertinently, the respondent No.3 had made an elaborate proposal touching each and every point relevant for enabling the first/second respondent to take appropriate decision. It was also explained therein, in response to an objection as to approval of the petitioner Assistant Professor, that no approval as expected by the State for appointment of a Professor in Post Graduate Courses is ever taken from the State Government.

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11. Learned counsel for the petitioner has relied upon his service book, perusal of which indicates that his services post 1994 also were inspected by the same authority. His pay was also approved by the same authority. Therefore if at all approval was necessary effectively and impliedly, it is reflected in the service book of the petitioner; copy of which is taken on record.

12. Further, under any case, as indicated above, the question is only clubbing of services whereas monetary burden has to fall on respective Governments who were funding the college respectively for Under Graduate and Post Graduate Courses. Therefore, assuming that there was no approval, it was merely an irregularity and can be cured by the State Government even at this stage.

13. Under the aforesaid circumstances, the petition is required to be allowed. It is thus allowed. The respondents No.1 and 2 are directed to consider the petitioner's case on the lines of Mr.Pathak and Mr.Jani as aforesaid, and grant the retiral benefits after clubbing the post and pre 1994 services rendered by the petitioner in Under Graduate Courses and Post Graduate Courses."

10. In light of above, no merit is found in the petition. Hence, the

same stands dismissed. Rule is discharged. No order as to

costs.

(BIREN VAISHNAV, J) VATSAL S. KOTECHA