Gujarat High Court
State Of Gujarat vs Rajnikant Jayantilal Shah on 17 January, 2023
Bench: Niral R. Mehta
C/LPA/1228/2022 ORDER DATED: 17/01/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 1228 of 2022
In R/SPECIAL CIVIL APPLICATION NO. 8767 of 2016
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2020
In R/LETTERS PATENT APPEAL NO. 1228 of 2022
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STATE OF GUJARAT
Versus
RAJNIKANT JAYANTILAL SHAH
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Appearance:
MR. MANAN MEHTA, ASSISTANT GOVERNMENT PLEADER for the
Appellant(s) No. 1,2,3,4,5
FALGUNI D UPADHYAYA(2280) for the Respondent(s) No. 1
MR JAYRAJ CHAUHAN(2966) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIA
and
HONOURABLE MR. JUSTICE NIRAL R. MEHTA
Date : 17/01/2023
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE N.V.ANJARIA)
Heard learned Assistant Government Pleader Mr. Manan Mehta for
the appellant and learned advocate Mr. Dhruv Thakker for learned
advocate Mr. Jayraj Chauhan for the respondent.
2. It is against judgment and order dated 18.10.2019 of learned single
Judge whereby learned single Judge allowed the Special Civil
Application of the respondent-original petitioner directing to grant the
benefits of pension scheme to the petitioner in light of government
Resolution dated 15.10.1984 from the date of his retirement, that the
C/LPA/1228/2022 ORDER DATED: 17/01/2023
present Letters Patent Appeal is preferred.
3. The petitioner was a lecturer, then became Reader to retire as a
Professor. What the petitioner prayed in the Special Civil Application
was to consider his case for entitlement to pension as per Resolution
dated 15.10.1984 instead of treating under the Contributory Provident
Fund Scheme. The benefit was denied to the petitioner on the ground that
he had not filled-in the option claiming pension and was continued to be
governed under the earlier Contributory Provident Fund Scheme.
4. The issue involved is covered by the decision of the Division
Bench of this court in State of Gujarat & Others vs. Kalhans Harilal
Patel & Others being Letters Patent Appeal No. 2259 of 2017 and
allied matters. It is on the very decision that learned single Judge placed
reliance to grant the relief to the petitioner in the instant case, finding that
the issue was covered.
4.1 The decision in aforesaid Letters Patent Appeal No. 2259 of 2017
was referred to in decision dated 21.8.2019 passed in Special Civil
Application No. 8759 of 2016, in which the following was observed by
the court,
"9. In the present case, it is undisputed that the petitioner was initially
appointed in the year 1976 by the M.S. University and thereafter, she
was promoted as Reader in the Department of Clothing & Textile by the
M.S. University vide promotion order dated 4.6.1985 further followed
by the promotion as a Professor vide order dated 2.8.2001.
10. In view of petitioner's appointment being after 1.4.1982,
provision of Government Resolution dated 15.10.1984 stands applicable
to the petitioner. The case of the petitioner stands squarely covered by
the judgment of the Division Bench in the case of State of Gujarat vs
Kalhans Harial Patel (supra).
C/LPA/1228/2022 ORDER DATED: 17/01/2023
11. So far as the issue of Contributory Provident Fund is concerned, the
Division Bench has observed in paragraph 15 to the following effect:
"15. For the aforesaid reasons, the judgements rendered by the learned
Single Judges in the respective Letters PatentAppeals are confirmed.
The State authorities are directed to grant the benefit of the pension
scheme to all the respondents in view of the Government Resolution
dated 15.10.1984 from the date of their respective retirement. The
respondents who have not refunded/repaid the amount of Contributory
Provident Fund, their case be considered by the authorities by paying the
amount of pension after adjusting/setting off the amount of Contributory
Provident Fund payable by the respondents...."
12. In view of the reasons recorded in the aforementioned judgment in
the case of State of Gujarat Vs. Kalhans Harial Patel (supra), the present
petition stands allowed. The respondent authorities are directed to grant
the benefit of pension scheme to the petitioner in tune with the
Government Resolution dated 15.10.1984 from the date of her
retirement. So far as the aspect of Contributory Provident Fund is
concerned, if the petitioner has not refunded/repaid the amount of
Contributory Provident Fund, her case be considered by the authorities
by paying the amount of pension after adjusting/setting off the amount
of Contributory Provident Fund payable by the petitioner. In case the
petitioner, has refunded/repaid the amount of Contributory Provident
Fund, the petitioner shall be entitled for interest at the rate of 9% per
annum on the amount of pension from the date of his repaying/refunding
the amount of Contributory Provident Fund. The respective parties shall
act upon these directions and pay the amount to the petitioner within a
period of 8 weeks from the date of receipt of the writ of the order of this
Court."
4.2 The Apex Court had an occasion to examine the merits of the
aforesaid decision in Letters Patent Appeal, when it was considering
alongwith other cognate cases in Civil Appeal No. 9018 of 2016 in State
of Gujarat & Anr. vs. Banuben Ramshbhai Dhakan & Others.
4.3 In order dated 17.12.2021 passed in Banuben Ramshbhai
Dhakan (supra), the supreme court observed to upheld the decision of
the High Court thus,
C/LPA/1228/2022 ORDER DATED: 17/01/2023
"The position which emerges is that the judgment of the High Court has
attained finality in respect of one batch of pensioners. No distinction
exists in fact between the cases of the pensioners who are respondents to
the present batch of cases with the pensioners in the earlier batches, who
are governed by the orders by which the Special Leave Petitions by the
State of Gujarat were dismissed Consequently, it would be wholly
iniquitous to apply a different yardstick to a batch of pensioners who are
respondents to these proceedings, when the judgment of the High Court
has attained finality in respect of a similar batch of pensioners who are
governed by the same judgment. They are receiving pensions."
5. The issue is thus no longer res integra. The challenge to the
impugned judgment and order of learned single Judge has to fail. The
Letters Patent Appeal is meritless. It is summarily dismissed.
Civil Application does not survive in view of dismissal of main
Letters Patent Appeal.
(N.V.ANJARIA, J)
(NIRAL R. MEHTA,J)
C.M. JOSHI
