Dhirubhai Rambhai Patel vs State Of Gujarat
2023 Latest Caselaw 2797 Guj

     C/SCA/5451/2023                            JUDGMENT DATED: 06/04/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 5451 of 2023


FOR APPROVAL AND SIGNATURE:

HONOURABLE MRS. JUSTICE MAUNA M. BHATT                    sd/-

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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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                        DHIRUBHAI RAMBHAI PATEL
                                 Versus
                           STATE OF GUJARAT
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Appearance:
MR SATISH A PANDYA (556) for the Petitioner(s) No. 1
for the Respondent(s) No. 2,3
MR SAHIL TRIVEDI, LD.ASSTT. GOVERNMENT PLEADER for the
Respondent(s) No. 1
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    CORAM:HONOURABLE MRS. JUSTICE MAUNA M. BHATT

                             Date: 06/04/2023

                            ORAL JUDGMENT

1. Rule. Learned Assistant Government Pleader Mr. Sahil Trivedi waives service of Rule on behalf of respondent No.1.

C/SCA/5451/2023 JUDGMENT DATED: 06/04/2023

2. This petition is filed challenging the order dated 29.11.2022, whereby petitioner has been denied the benefit of compassionate pension.

3. Considering the issue involved in the petition and with the consent of learned advocates appearing for the respective parties, this petition is taken up for final hearing today.

4. Brief facts are as under:

The petitioner was appointed as Junior Clerk by respondent No.3 on 28.12.1981. He was promoted thereafter as Senior Clerk on 04.07.2002. As the petitioner could not pass the pre-service training examination, which is mandatory in nature, Respondent No-3 removed the petitioner from service. The said order of removal was challenged by filing Special Civil Application No.26739 of 2007, wherein, this court directed the respondent to decide the representation of the petitioner to provide one additional chance to appear for the pre-service examination. Pursuant to the directions of this Court in the order dated 16.10.2007, in Special Civil Application No.26739 of 2007, the petitioner made representation seeking additional chance to appear in the exams, which came to be rejected. Against the said decision one another petition was filed being Special Civil Application

C/SCA/5451/2023 JUDGMENT DATED: 06/04/2023

No.9179 of 2018, more particularly with the prayer to grant compassionate pension on the ground that he, had completed 22 years of service. This court in SCA 9179 of 2018, under order dated 15.12.2021, directed the respondent to consider the application of the petitioner for grant of compassionate pension in accordance with Rules, as the petitioner had completed more than 22 years of service. In the order dated 15.12.2021, it was clarified that the petitioner accepts, the punishment of removal from service. Pursuant to the directions issued by this Court in the order dated 15.12.2021, in Special Civil Application No.9179 of 2018, impugned order dated 29.11.2022 rejecting the application of the petitioner was passed. Aggrieved by which, the present petition is filed.

5. Heard learned advocate Mr. S.A.Pandya for the petitioner. He submitted that as the petitioner had completed 22 years of service, he is entitled for compassionate pension and reliance placed by the authority under Rule 78 of Gujarat Civil Service (Pension) Rules is erroneous. He relied upon decision dated 29.09.2016, in Special Civil Application No.7073 of 2013 and submitted that in the identical facts, when the petitioner was removed on the ground of inefficiency, this Court has considered grant of compassionate pension considering the length of services rendered.

C/SCA/5451/2023 JUDGMENT DATED: 06/04/2023

6. On advance copy, learned Assistant Government Pleader Mr.Sahil Trivedi appeared for respondent No.1 and submitted that under Rule 78 of Gujarat Civil Service (Pension) Rules,2002, the petitioner is not entitled for the compassionate pension as was removed from the services on the ground of inefficiency, and the removal from service has been accepted by him. Referring to sub-rule (1) of Rule 78, he submitted that for making him eligible, the petitioner shall have to fall under case for "special treatment", and present case does not fall under that. Despite multiple opportunities provided, the petitioner could not clear the examination and therefore, decision taken by the authority for non-granting the compassionate pension under impugned order dated 29.11.2022 is appropriate. In support of his submission, he has relied upon decision of this Court rendered in the case of Janakba Abheshinh Zala widow and heirs of A.V.Zala Vs. State of Gujarat in Letters Patent Appeal No.1472 of 2004 wherein it has been observed as under:

"3. In support of his aforesaid submission Shri Acharya has strongly relied on Rule : 186 (a) of BCSR, which is as under :

"... we are of the clear opinion that her deceased husband was not entitled for any pension or compassionate pension. If her deceased husband was

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not entitled for any pension or compassionate pension with the removal from service on such a serious charge, then his widow would not be entitled for any compassionate pension. It is also wrong to submit that the Appellant-petitioner has right to claim compassionate pension. The very meaning of word "compassionate pension" means that a person has to first makes his or her case for such compassionate pension and if the Authority satisfies then only it can be given to a person otherwise not and no one can claim, as a matter of right, compassionate pension."

He thus submitted to dismiss the petition.

7. Heard learned advocates for the respective parties and considered the decision relied upon by them. From the order of this Court dated 15.12.2021 in Special Civil Application No.9179 of 2018, it is noticed that as the issue of compassionate pension is to be examined by the State Government, this Court directed the State Government to consider the application in accordance with the Rules as the petitioner had rendered more than 22 years of service. Moreover, in the decision relied upon by the petitioner in the case of Nemalibebn Patel v/s State Of Gujarat Through

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Secretary, in SCA No. 7073 of 2013, this Court under order dated 29.09.2016, has observed as under:

"6. Non-passing of the pre-service examination even after 13 years of service was possible to be perceived as on aspect of 'inefficiency' on part of the petitioner. Therefore, though it is true that for the aforesaid considerations spelt out by the respondents, the petitioner would not be entitled for grant of regular pension and other benefits, but she may be entitled to pension differently under different provisions and her case deserves to be considered.

6.1 Now, in this regard, Rules 77 and 78 of the Gujarat Civil Services (Pension) Rules, 2002 which deal with grant of compassionate pension deserve an attention. Said Rules reads as under,

"77. Grant of Compassionate Pension: (1) A Government employee who is removed or required to retire from Government service for misconduct or insolvency shall be granted no pension other than a Compassionate Pension.

(2) A Government employee who is removed or required to retire from Government service on the ground of inefficiency, shall, if he be eligible for a superannuation, or retiring pension, be granted

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such pension. If he is not eligible for a Retiring or Superannuation pension, he shall be granted no pension other than a Compassionate Pension.

78. Grant of Compassionate pension in deserving cases by Government: (1) When a Government employee is removed or required to retire from Government service for misconduct or insolvency or is removed or required to retire from Government service on grounds of inefficiency before he is eligible for a Retiring or Superannuation Pension, Government may, if the case is considered deserving of special treatment, sanction the grant to him of a Compassionate pension.

(2) A dismissed Government employee is not eligible for Compassionate Pension."

6.2 Compassionate pension under the aforesaid provisions can be granted in case where a government employee has retired from service on the grounds mentioned including on the ground of inefficiency. It is provided that if he is not eligible for retiring or superannuation pension, then he can be granted compassionate pension. As noted above, it is possible to view nonpassing of PreService Training Examination during the tenure of service and resultant retirement in capacity of Probationer, as inefficiency inasmuch as the object of requiring an

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employee passing of the examination was to equip him for better and satisfactory performance in discharging his duties as government servant. As the petitioner did not pass the required examination even after six attempts, the entire service period was treated as on probation. In this circumstance, there is no reason that the respondent government should not consider the case of the petitioner for allowing her compassionate pension looking to her long service of 23 years.

7. Therefore, even while upholding the stand of the authorities in the affidavit-in-reply, this petition is disposed of by directing the respondent authorities to consider the case of the petitioner positively and in true spirit for granting her compassionate pension applying the aforesaid provisions of Rules 77 and 78 of the Pension Rules, 2002, especially taking into account long service rendered; and in light of what is observed hereinabove, take appropriate decision within a period of three months from the date of receipt of this order. If and on being considered eligible to receive compassionate pension, the petitioner shall be paid the due benefit within three months."

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8. In the present case also, the petitioner was removed from service because of his inefficiency, as the petitioner did not pass the requisite examination even after 8 attempts. However as observed by this court in the order dated 29.09.2016, in SCA No. 7073 of 2013, there is no reason that the Respondent- Government should not consider the case of the petitioner for allowing compassionate pension, considering his long length of service of 22 years. Further, in the decision of Letters Patent Appeal No.1472 of 2004, dated 07.12.2014, relied upon by learned Assistant Government Pleader, the petitioner was removed from the service on account of his misconduct.

9. Therefore, this petition is disposed of by directing the respondent authority to consider the case of the petitioner for grant of compassionate pension applying Rule 77 and 78 of Gujarat Civil Services (Pension)_Rules, 2002, especially taking in to consideration his length of 22 years of services. The respondents are further directed to take decision within a period of four weeks from the date of receipt of this order. If the petitioner otherwise found eligible to get compassionate pension, the same shall be paid within a period of three months thereafter. The petition stands disposed of accordingly. Rule is made absolute to the aforesaid extent.

Direct service is permitted.

(MAUNA M. BHATT,J) DIPTI PATEL