Gujarat High Court
Director Of Pension And Provident ... vs Revabhai Kesavlal Patel on 27 February, 2023
Bench: Hemant M. Prachchhak
C/LPA/161/2023 ORDER DATED: 27/02/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 161 of 2023
In
R/SPECIAL CIVIL APPLICATION NO. 11433 of 2006
With
CIVIL APPLICATION (FOR STAY) NO. 2 of 2022
In
R/LETTERS PATENT APPEAL NO. 161 of 2023
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DIRECTOR OF PENSION AND PROVIDENT FUND
VIMA AND LEKHA BHAVAN
Versus
REVABHAI KESAVLAL PATEL
=======================================================
Appearance:
MR KURVEN DESAI AGP for the Appellant(s) No. 1,2,3,4
for the Respondent(s) No. 2
MR JK PARMAR(587) for the Respondent(s) No. 1
=======================================================
CORAM:HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
and
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
Date : 27/02/2023
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI)
1. This appeal has been filed by the appellants -
original respondents of Special Civil Application
No.11433/2006 under Clause 15 of the Letter
Patent, wherein the appellants have challenged the
order dated 19.07.2021 passed by the learned
Single Judge in Special Civil Application
No.11433/2006. Learned Single Judge, by way of
aforesaid impugned order, has allowed the petition
filed by the respondent no.1 herein.
2. Heard learned AGP Mr. Kurven Desai appearing for
C/LPA/161/2023 ORDER DATED: 27/02/2023
the appellants and learned advocate, Mr. J.K.
Parmar for the respondent.
3. Learned AGP, Mr. Desai has mainly submitted that
the respondent no.1 challenged the order dated
04.08.2004 passed by the office of the Directorate
of Pension & Provident Fund, whereby the said
authority denied the benefit of pension to the
original petitioner on the ground that the
services rendered by the petitioner from
15.06.1970 to 30.09.1987 in Primary Section of
grant-in-aid private school cannot be considered
along with the services rendered by the petitioner
as Teacher in High School. It is submitted that
before the learned Single Judge, the present
appellants - original respondents pointed out
various orders passed by this Court in similar
type of petitions and also filed affidavit of the
District Education Officer opposing the petition,
however, the learned Single Judge has without
properly appreciating the orders passed by this
Court in similar type of matters, allowed the
petition filed by the petitioner and thereby
quashed and set aside the order dated 04.08.2004
passed by the concerned authority and thereby
direction is issued to the present appellants to
examine the case of the petitioner in light of
sub-rule ( x) of Rule 25 of the Gujarat Civil
Services (Pension) Rules, 2002 (hereinafter
referred to as "Rules of 2002") and also directed
the present appellants - original respondents to
C/LPA/161/2023 ORDER DATED: 27/02/2023
re-fix the pension of the petitioner by taking
into consideration the services rendered by him in
private section of grant-in-aid private school and
to pay him arrears within stipulated time. Learned
AGP, therefore, urged that the appellants have
filed the present appeal challenging the impugned
order passed by the learned Single Judge.
4. Learned AGP referred to the affidavit in reply
filed before the learned Single Judge and
contended that the original petitioner is not
entitled to get pensionary benefits as directed by
the learned Single Judge and, therefore, the
impugned order be quashed and set aside.
5. On the other hand, learned advocate, Mr. Parmar
for the respondent no.1 has opposed this appeal
and submitted that no error is committed by the
learned Single Judge while allowing the petition.
It is submitted that the present matter is covered
by the decision rendered by this Court in Special
Civil Application No.270/2005 and Special Civil
Application No.17762/2011. It is submitted that
against the orders passed by the learned Single
Judge, the State preferred LPA before the Division
Bench of this Court and the Division Bench of this
Court, vide order dated 13.09.2019, dismissed the
appeal filed by the State and, therefore, no
interference is required in the present matter.
Learned advocate, therefore, urged that this
appeal be dismissed.
6. We have considered the submissions canvassed by
C/LPA/161/2023 ORDER DATED: 27/02/2023
learned advocates for the parties. We have also
gone through the material placed on record. It
would emerge from the record that while allowing
the petition filed by the original petitioner,
learned Single Judge has placed reliance upon the
order dated 25.03.2019 passed by the learned
Single Judge in Special Civil Application
No.270/2005. In the said case, learned Single
Judge has considered sub-rule (x) of Rule 25 of
Rules of 2002 and, thereafter, directed the
authority to examine the case of the concerned
petitioner and to pass appropriate order re-fixing
the pension considering the services rendered in
primary section. It is pertinent to note that
against the said order passed by the learned
Single Judge, the appellate - State preferred LPA
No.1615/2019 and the Division Bench of this Court,
vide order dated 13.09.2019, dismissed the said
appeal filed by the present appellant - State. The
Division Bench has observed as under,
"Thus, from the aforesaid, it can be
said that a teacher, who had rendered the
services in the primary section prior to
1.1.1997 and who was in service on 1.1.1997
would not be deprived of his/her right to
reckon the services rendered in the grant-
in-aid section for qualifying for pension.
In other words, it can well be said that
the primary teacher of grant in aid school,
C/LPA/161/2023 ORDER DATED: 27/02/2023
if he retires on or after 1.1.1997 i.e.
within one year or two, then, for reckoning
pensionary service, his past service
rendered in institution cannot be said to
be wiped off and therefore, his past
services were required to be reckoned. In
the instant case, the petitioner had not in
fact not retired prior to the cut off date
and he was continued in service though not
in primary section but on the cut-of date,
his services rendered prior to cut-of date,
therefore, could not have been ignored,
especially when Rule 25 cited by learned
Single Judge sub-
section (x), which is reproduced herebelow
for ready reference :
Clause (x) of Rule 25 of the Gujarat
Civil Services Rules, 2002, which
reads as under:
"Rule 25. Qualifying Service : Subject
to the provisions of these rules,
qualifying service of a Government
employee, means and includes -
(i) xxxx
(ii) xxxx
(iii) xxxx
(iv) xxxx
(v) xxxx
(vi) xxxx
(vii) xxxx
(viii) xxxx
C/LPA/161/2023 ORDER DATED: 27/02/2023
(ix) xxxx
(x) Pensionable service rendered by an
employee in a grant-in-aid
institution the pension liability
in respect of which is borne by
the Government to the extent as
may be ordered by the Government
from time to time."
6. The pensionary service in case of primary
teacher in grant-in-aid institution would
constitute the service, if the teacher had
retired after 1.1.1997 as stated
hereinabove, therefore, what is important
to be considered was the concept of
'pensionary service' in light of Rule 25
prescribing for qualified service for
pension. Thus, there was specific
distinction available and learned AGP was
not justified in relying upon the Division
Bench decision, which were not applicable
to the present case.
7. In view thereof, when 5 years service is
joined in the pentionable service of
petitioner and when the Joint Director's
communication ordering the same, had not
been quashed and when the petitioner was
not given any opportunity of being heard,
the order and judgment of learned Single
Judge impugned in this Letters Patent
Appeal does not call for any interference
and hence, Appeal fails and is hereby
dismissed."
C/LPA/161/2023 ORDER DATED: 27/02/2023
7. Keeping in view the aforesaid order passed by the
Division Bench of this Court, if the facts of the
present case are examined, we are of the view that
the present case is squarely covered by the
aforesaid orders passed by the learned Single
Judge as well as the Division Bench.
8. In view of the aforesaid, we are not inclined to
interfere with the impugned order passed by the
learned Single Judge. Accordingly, the present
appeal is dismissed. Connected Civil Application
also stands disposed of.
Sd/-
(VIPUL M. PANCHOLI, J.)
Sd/-
(HEMANT M. PRACHCHHAK, J.)
Gautam
