Gujarat High Court
State Of Gujarat vs Kokilaben Balvantbhai Parmar on 24 August, 2023
Bench: Devan M. Desai
NEUTRAL CITATION
C/LPA/942/2023 ORDER DATED: 24/08/2023
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 942 of 2023
In R/SPECIAL CIVIL APPLICATION NO. 17977 of 2017
With
CIVIL APPLICATION (FOR STAY) NO. 2 of 2023
In R/LETTERS PATENT APPEAL NO. 942 of 2023
==========================================================
STATE OF GUJARAT
Versus
KOKILABEN BALVANTBHAI PARMAR
==========================================================
Appearance:
MR SANJAY UDHWANI, AGP for the Appellant(s) No. 1,2,3
MR KRUNAL D PANDYA(3283) for the Respondent(s) No. 1
==========================================================
CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIA
and
HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 24/08/2023
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE N.V.ANJARIA)
Heard learned Assistant Government Pleader Mr.Sanjay
Udhwani for the appellant State and its authorities and learned
advocate Mr.Krunal Pandya for the respondent.
2. Preferred by the State and its authorities under Clause 15
of the Letters Patent, this Letters Patent Appeal is directed
against judgment and order dated 15.3.2022 of learned single
Judge. Thereby, learned single Judge held that considering the
long tenure of service rendered by the petitioner - respondent
herein, she is entitled to pensionary benefits.
NEUTRAL CITATION
C/LPA/942/2023 ORDER DATED: 24/08/2023
undefined
3. Noticing the basic facts, it was prayed by the petitioner in
his Special Civil Application to set aside order dated 31.8.2017
passed by the Medical Superintendent, Civil Hospital,
Ahmedabad, whereby the services of the petitioner was
terminated on the ground that the petitioner did not satisfy the
condition Nos.2 and 3 of the Resolution dated 12.1.2016 of
Health and Family Welfare Department.
3.1 The petitioner was appointed on the post of Telephone
Operator by order dated 19.5.1989 in the pay scale of Rs.950-
1500 for a temporary period. He was however continued as per
Resolution of the Finance Department and the Resolution of the
General Administrative Department, whereby the post of the
Telephone Operator was converted into Junior Clerk. The
petitioner was continued on the post of Junior Clerk initially for
29 days and therefore continued from time to time.
3.2 It was stated by the petitioner that the she was continued
on the post becoming vacant upon retirement of Junior Clerk
Shri G.B.Dabhi and that for such continuance of the petitioner,
communication dated 1.7.1997 was issued by the respondent
No.2 - Executive Officer, Civil Hospital, Ahmedabad.
3.3 It is not in dispute that since the petitioner had completed
requisite number of 8 years and more, the petitioner was
appointed on that particular post. It was further stated that the
services of the petitioner came to be terminated on the ground
that there was no post of Telephone Operator available. It was
submitted that it was in contradiction to the factual position that
the post of Telephone Operator was converted into that of Junior
NEUTRAL CITATION
C/LPA/942/2023 ORDER DATED: 24/08/2023
undefined
Clerk and the petitioner was retained and continued on such
post by specific order.
3.4 The petitioner filed Special Civil Application No.3401 of
1998 in which order dated 29.7.1999 was passed wherein this
court inter alia by interim order dated 13.4.2012 directed
authorities to consider the case of the petitioner for regular
appointment without taking into consideration the age bar. It
was observed that since the petitioner had been serving for
several years treating her as regular employee, that the
petitioner was given pay scale on the initial appointment and
that she had been discharging full time services, her case
deserved to be considered for regular salary in the pay scale
applicable for the post in question at par with other employees.
3.5 After the aforesaid order dated 13.4.2012 in which the
directions as above was issued, another order dated 23.12.2015
was passed wherein statement was made by learned Assistant
Government Pleader, upon instructions from the under
Secretary of the Medical Education, Health and Family Welfare
Department that the respondent would consider the case of the
petitioner in terms of order dated 13.4.2012. It was further
given out to the court that authorities would move a necessary
proposal in that regard.
3.6 Thereafter a Resolution came to be passed on 12.1.2016 in
which two of the conditions were that the petitioner shall have
to pass the direct recruitment process of the Junior Clerk cadre
and that thereafter the procedure to regularize her services
would be undertaken. It is to be recollected the impugned order
NEUTRAL CITATION
C/LPA/942/2023 ORDER DATED: 24/08/2023
undefined
whereby the services of the petitioner was terminated, was on
the ground of non-compliance of the above conditions.
3.7 When Special Civil Application No.3401 of 1998 was
disposed of, this court noted that the petitioner had continued in
service and was to retire within 2-3 years. The court directed to
implement the said Resolution dated 12.1.2016 in later and
spirit. Necessary recommendations were made by the competent
authority to higher authorities.
4. The petitioner was required to appear in the recruitment
procedure examination. The intimation to appear in the
examination was sent to the petitioner on 14.10.2016 whereas
the examination was scheduled on 16.10.2016. It was thereafter
virtually impossible for the petitioner to appear in the
examination. It is in these circumstances that the petitioner
could not appear in the examination. Resultantly, the impugned
order dated 31.8.2017 was passed.
5. In light of the above facts, the grounds on which impugned
order dated 31.8.2017 was rested, could not be said to be
reasonable but was an arbitrary exercise. In the context of
totality of attendant facts, the petitioner was entitled to be
considered regular and further in view of the orders of the court
and the consequential recommendation by the authorities. Be as
it may.
5.1 While the aforesaid order dated 31.8.2017 was passed
terminating the services of the petitioner, it was on the date
when the petitioner reached the age of superannuation. The
NEUTRAL CITATION
C/LPA/942/2023 ORDER DATED: 24/08/2023
undefined
petitioner thus actually rendered services for long years from
1989 to 2017, when she retired. There is no gainsaying that the
petitioner completed pensionable service.
5.2 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 as is applicable 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 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,
(c) service rendered in daily rated establishment,
(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) ....
5.3 Thus, Rule 25(i) of the Rules provides that qualifying
NEUTRAL CITATION
C/LPA/942/2023 ORDER DATED: 24/08/2023
undefined
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. The group of words "whether temporary or
permanent, interrupted or continuous" from the language of the
Rules operate to hold that the petitioner's services would be
included as per the Rules,within the purview of qualifying
service for pension. In view of the above Rule-25 of Pension
Rules 2002, temporary services are liable to be counted as
pensionable.
5.4 In view of the above even if the petitioner's services were
not regularized and he continued to served from the year 1989
to 2017 without regularization, she would be entitled to the
pension for the services rendered, when the services rendered
has to be qualified as pensionable services om accordance with
the aforesaid Rules and its import.
5.5 The decision of this court in Talsibhai Dhanjibhai Patel
Vs. State of Gujarat being Special Civil Application No.20185
of 2018 dated 18.10.2019, confirmed in Letters Patent Appeal
No.762 of 2020 decided on 13.10.2020, stands in fortification in
the above proposition.
6. In the above view, learned single Judge was eminently
justified in treating her to have worked on the post of Junior
Clerk. The judgment and order dated 31.8.2017 impugned
NEUTRAL CITATION
C/LPA/942/2023 ORDER DATED: 24/08/2023
undefined
before learned single Judge was rightly not sustained.
6.1 It is provided that the pensionary benefits including the
arrears shall be paid to the petitioner within six weeks from the
date of receipt of the present order and shall be continued to be
paid in future.
7. The Letters Patent Appeal is dismissed.
In view of dismissal of the appeal, the Civil Application will
not survive. It is accordingly disposed of.
(N.V.ANJARIA, J)
(D. M. DESAI,J)
Manshi
