Madukant Marutirao Gaekwaad vs State Of Gujarat
2022 Latest Caselaw 8655 Guj

    C/SCA/15922/2016                                 JUDGMENT DATED: 30/09/2022




               IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 15922 of 2016
                                    With
               R/SPECIAL CIVIL APPLICATION NO. 14717 of 2016

FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE A.Y. KOGJE                                        Sd/-

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1    Whether Reporters of Local Papers may be allowed to see               NO
     the judgment ?

2    To be referred to the Reporter or not ?                               NO

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

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

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               MADUKANT MARUTIRAO GAEKWAAD & 74 other(s)
                                Versus
                     STATE OF GUJARAT & 2 other(s)
=============================================
Appearance:
MR PRADEEP PATEL(642) for the Petitioner(s) No.
1,10,11,12,13,14,15,16,17,18,19,2,20,21,22,23,24,25,26,27,28,29,3,30,31,32,
33,34,35,36,37,38,39,4,40,41,42,43,44,45,46,47,48,49,5,50,51,52,53,54,55,5
6,57,58,59,6,60,61,62,63,64,65,66,67,68,69,7,70,71,72,73,74,75,76,77,78,8,9
MR. DHAWAN JAYSWAL, AGP for the Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 1,2,3
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    CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE

                              Date : 30/09/2022

                               ORAL JUDGMENT

1. This two petitions are arising out of the identical facts and are raising

C/SCA/15922/2016 JUDGMENT DATED: 30/09/2022

the same issues and hence, at the request of both the sides, the same are taken up for joint hearing and final disposal. With consent, the facts are recorded from the lead matter i.e. Special Civil Application No.15922 of 2016.

2. This petition under Article-226 of the Constitution of India is filed with following prayers:

"A. Be pleased to admit this petition;

B. Be pleased to pass appropriate writ, orders and/or direction in the nature of mandamus by exercising powers under Art.226 of the Constitution quashing and setting aside the communication/ order dated 4-12-2015 issued by the respondent no.3 by declaring same as illegal, arbitrary, contrary to the GR dated 13-7-2015 and violative of Art.14 and 16 of the Constitution and further be pleased to hold and declare that, new pension scheme announced vide circular dated 21- 3-2005 is not applicable to the petitioners and petitioners are entitled to receive pension according to old pension scheme under which all other the employees on the badli list prepared as on 1-4-1984 and regularized prior to 2005 (i.e. between 1988 and 2005) are drawing pension upon retirement after putting in more than 10 years of services;"

3. Essentially, the prayer of the petitioners is to treat the petitioners to have completed more than 10 years of service as on the date of 31-03- 2005 and therefore, entitled to the pension under Old Pension Scheme.

4. Learned Advocate for the petitioners has taken this Court firstly through the Government Resolution dated 21-07-1989, wherein provision was made for putting 'Badli Workers' like the petitioners into regular pay scale, where the employees have been appointed and were working as

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on 01-04-1984.

5. Thereafter, learned Advocate for the petitioners has taken this Court to order dated 19-05-2005, which is sample order placed on record of petitioner No.1 and submitted that all the petitioners before the Court, have been issued such order of 19-05-2005, where in the order itself, the Department has acknowledged of having completed 10 years of service treating the date of appointment as on 19-11-1982 as 'Badli Employee' and under that order, has placed the petitioner in the pay scale.

6. Thereafter, learned Advocate for the petitioners has taken this Court to the Government Resolution dated 13-07-2015, which is governing the Resolution for the purpose of this case and submitted that the Resolution clearly provides for two categories, to which pension is to be made applicable and submitted that such Resolution only provides that the employee, who has completed 10 years of service on 31-03-2005, would be entitled to the Pension under Old Pension Scheme, whereas those employees, who completed 10 years of service after 21-03-2005, would be entitled to the New Pension Scheme floated under the Government Resolution dated 21-03-2005.

7. Learned Advocate for the petitioners submitted that as on date, the petitioners are being treated under New Pension Scheme and are receiving an amount of Rs.700/- to Rs.1,000/-, which otherwise, the petitioners would be entitled to more, if they are treated under the Old Pension Scheme.

8. Learned Advocate for the petitioners submitted that this Court in identical set of facts of one of the co-employees by Oral Judgment and order in case of Madhuben Mahendrabhai Mekwan V/s. State of Gujarat passed in Special Civil Application No.15358 of 2021 dated 04- 03-2022, declared the petitioner therein entitled to the benefits under Old Pension Scheme.

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9. Learned AGP has opposed to the grant of petitions and has referred to proposal made by the Civil Hospital considering the issues which were raised with the Hospital regarding claim made by the petitioners herein and had raised several issues before the State Government. It is submitted that the State Government had answered the proposal made by the Civil Hospital on 02-06-2017 in the reply of 1 st July, 2017, wherein the stand was taken that applicability of Old Pension Scheme is only to the employees, who have been given an appointment in the pay scale as on 01-04-2005 and therefore, considering the date of appointment of all the petitioners being subsequent to 01-04-2005, Pension Scheme as claimed for, will not be applicable.

10. In rejoinder, once again learned Advocate for the petitioners has drawn attention of this Court to Oral Judgment in case of Madhuben Mahendrabhai Mekwan (supra) stating that appointment order of the petitioner in the aforesaid petition was dated 20-05-2005 that is subsequent to 01-04-2005 and therefore, the stand taken by the respondent in this connection would be covered by such decision of this Court.

11. Having considered the rival submissions of the parties and having perused the documents on record, it appears that claim of the petitioners is based on the longevity of their services, where the petitioners were working as Badli employees since 1982. Considering the difficulty faced by the Hospital at the relevant time, the Resolution came to be passed on 21-07-1989, which provided in Clause-2 and Sub- clause-1 and 2 of Clause-2, as under:

"(2) Thereafter, as many difficulties arise in the administration of the hospital, the posts of various employees of essential services, such as sweeper, ward boy, nurse, barber, cook, theater attendant, etc., remain vacant, and therefore, many difficulties arise in the services

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and sanitation of the hospital. Difficulties also arise for the patients regarding hygiene, and the patients have to face hardship. Considering this fact, the Government has decided to make the following arrangement during the holidays and absence for such posts of Class-4 which fall vacant.

1. The vacant posts of class-4 in the medical colleges and hospitals affiliated to them and the Government has passed orders to give permission to fill up the posts can be filled up on permanent basis. For this, after filling up the posts in which two promotions etc. are to be given after making changes among the present class-4 employees, the appointments shall be given from the list of the transfer employees dated 01/04/84 on the remaining vacant posts for which the Government has given permission to fill up the posts of class - 4. Such appointments shall be made considering the provisions of the recruitment rules and educational qualification etc. for the concerned posts. Overall, only after transferring from the lower pay scale to the post with higher pay scale in the posts of class - 4, the transfer employees from the list of the transfer employees shall be appointed to the last vacant posts of class-4.

2. From the legal point of view, as it is necessary to make such appointments from the list of the transfer employees prepared in 1984, no candidates can be appointed except the candidates mentioned in the said list. The recruitment shall be made as per the requirement by following the standards of recruitment rules and the procedure of recruitment only after the said list ends."

12. It appears that on the basis of the provision of aforesaid Government Resolution, the petitioners have been given appointment order on 19-

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05-2005, wherein appointment order acknowledges the fact that the petitioners were in service as 'Badli employees' with effect from 1982 and had completed 10 years of service and accordingly, were placed in the pay scale prescribed therein.

13. With regard to the issue of the petitioners case being covered under the Pension provided for in the Government Resolution dated 13-07-2015 at Annexure-G, the Resolution provides for as under:

"33 employees at Ahmedabad, 15 employees at Bhavnagar, 12 employees at Rajkot and 13 employees at Vadodara, thus total-73 employees who were appointed as daily wager/ transfer employee on the post of Class-4 before 01/04/1984 and they completed 365 days in February-88 or thereafter and satisfy the conditions mentioned in condition-3 of the resolution stated in reference-1, are placed in regular pay scale and they will be entitled to salary, dearness allowance, house rent allowance, compensatory local allowance in the pay scale of daily wagers of monthly Rs.750-940, on 01/10/88 as per the provision of para no.3 of the resolution of Road & Building department dated 17/10/88 according to the provision of section-25 (B) of the Industrial Dispute Act.

It is resolved to grant the benefits for the pension, gratuity etc, as per the existing rules. Moreover, they will be entitled to optional leave of two days, casual leave of 14 days, earned leave of 30 days and half pay leave of 20 days in a year and they will be entitled to weekly holiday of sunday and holidays of national festivals. Retirement age for permanent laborers will be 30 years. Moreover, the standards are prescribed as per the provision of para-3 of resolution no.WCE/1588(5)G.2 of the Road department, dated 17/10/88. In accordance with the said provision, the daily wagers who have

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completed 10 years in the service on 31/03/05, among the transfer employees/ daily wagers in the hospital/ colleges under the Medical education department, will be entitled to pension. Moreover, New Pension Scheme will be applicable to the employees who have not completed service of 10 years upto 31/03/2005 as per the circular of the Finance Department, dated 21/03/2005."

14. From perusal of the aforesaid provision made in the Government Resolution, it appears that the same makes two categories of employees, firstly those who have completed 10 years of service prior to 31-03- 2005 and other set of employees, who have completed 10 years of service after 31-03-2005. It is categorically provided that for those, who have completed 10 years of service prior to 31-03-2005, such employees would be entitled to Old Pension Scheme, whereas those employees who have completed 10 years of service after 31-03-2005, would fall under New Pension Scheme floated under the Government Resolution dated 21-03-2005. The case before this Court would indicate that the petitioners, more or less, fall in the first category, wherein they have completed 10 years of service as on 31-03-2005 as is provided in the appointment order itself.

15. The other issue raised by learned AGP of introducing a cut off date of 01-04-2005 appears to be not supported by any Government Resolution and moreover, the documents to which reference is made by the petitioners, appears to be inter department correspondence regarding taking up of the stand in the present petition.

16. In the opinion of the Court, such would not be the Policy of the State Government, which is reflected from inter-department communication as it is category of two employees entitled for Old Pension Scheme is very much clear in the Resolution itself. Over and above, even if, the argument of cut off date of 01-04-2005 is accepted, still the issue is

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already covered by the Oral Judgment in case of Madhuben Mahendrabhai Mekwan (supra), wherein appointment of the petitioners therein was on 20-05-2005 i.e. subsequent to 01-04-2005.

17. In the opinion of the Court, therefore the petitioners would fall in Category-1 and having completed 10 years of service, would be entitled to the benefits of Old Pension Scheme and as individual case, will have to be examined at the level of the concerned Department.

18. The Court is of the view that directions be given to the concerned Department to undertake exercise to examine individual case of the petitioners, keeping in mind the observations made herein above and take the decision within a period of six months from the date of receipt of writ of this order. Needless to say that whatever benefits that the petitioners have already received under the Scheme, if at all received, would be adjusted against the entitlement to the petitioners. This observation is made considering the fact that both the petitions have been pending since 2016 and some of the employees may have retired.

19. The petition stands partly allowed. Rule is made absolute to the aforesaid extent with no order as to costs.

Sd/-

(A.Y. KOGJE, J) PARESH SOMPURA