State Of Gujarat vs Gayatri R Nagar
2023 Latest Caselaw 754 Guj

      C/LPA/98/2023                                ORDER DATED: 31/01/2023




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/LETTERS PATENT APPEAL NO. 98 of 2023
           In R/SPECIAL CIVIL APPLICATION NO. 25924 of 2006
                                 With
              CIVIL APPLICATION (FOR STAY) NO. 1 of 2022
              In R/LETTERS PATENT APPEAL NO. 98 of 2023
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                              STATE OF GUJARAT
                                    Versus
                              GAYATRI R NAGAR
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Appearance:
MR MANAN MEHTA, AGP for the Appellant(s) No. 1,2,3
for the Respondent(s) No. 2,3
MR SHALIN MEHTA, SR. ADVOCATE WITH                         MS      SHIKHA          D
PANCHAL(10764) 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 : 31/01/2023
                   ORAL ORDER

(PER : HONOURABLE MR. JUSTICE N.V.ANJARIA)

Heard learned Assistant Government Pleader Mr.Manan Mehta for the appellant - State and learned senior advocate Mr.Shalin Mehta assisted by learned advocate Ms.Shikha Panchal for the respondent.

2. The State has sought to call in question judgment and order dated 10th June, 2022 of learned Single Judge, whereby Special Civil Application filed by the respondent herein came to be allowed. The petitioner was held entitled to get all service benefits available to the Lecturers. The petitioner was also held entitled for pensionary and retirement benefits such as gratuity, leave encashment and those others admissible on the basis of total service of 38 years which she rendered.

C/LPA/98/2023 ORDER DATED: 31/01/2023

2.1 Learned Single Judge directed the authorities to finalise the pension case of the petitioner within stipulated time and further directed to pay the pension to the petitioner regularly, with arrears accrued to be paid to the petitioner.

3. In the main petition, the petitioner inter alia prayed to declare the action on part of the respondent authorities in terminating her services with effect from 26 th February, 2003 to be illegal. Further direction was sought for to treat the petitioner as confirmed Lecture in the Micro-Biology and to treat her accordingly after conversion of the post of Lecturer. Direction was also prayed for to have the protection of the pay scale and salary and to pay the revised regular pay scale. Also was the prayer to finalise and fix the pensionary and retirement benefits.

3.1 The petitioner was appointed in respondent No.2 college as Demonstrator, Class-III, in the year 1982. On 12 th October, 1983, post of Demonstrator was converted into post of Lecturer in view of State Government Resolution dated 12 th August, 1985. New pay-scales known as Sen Commission Pay Scales were adopted by the University Grants Commission which was implemented by the respondent No.2. The said recommendations provided for conversion of the existing staff to new cadre. Thereby, the post of Demonstrator was converted into post of Lecturer. The petitioner had acquired eligibility in the meantime to have implemented in her favour the said scheme and the resultant benefits. Filing of the petition and making of the prayers at the aforesaid background of facts stated in brief.

C/LPA/98/2023 ORDER DATED: 31/01/2023

4. Learned Single Judge, while allowing the petition, as could be seen from paragraph No.7 of the impugned order, placed reliance on the decision of this Court in Talsibhai Dhanjibhai Patel v. State of Gujarat being Special Civil Application No.20185 of 2018 decided on 18th October, 2019.

5. Following paragraphs from Talsibhai Dhanjibhai Patel (supra), in addition to those quoted by learned Single Judge, deals with and answer the issue involved in the present case.

"5. In Bahadur Hoshi Kotwal vs. State of Gujarat being Special Civil Application No. 19042 of 2017 decided on 7.5.2019 similar issue came up for consideration. The claim of the petitioner for pension etc. was opposed on the ground that petitioner's services were ad hoc.

5.1 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, 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,

C/LPA/98/2023 ORDER DATED: 31/01/2023

(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) ....

5.2 Thus, Rule 25(i) of the Rules provides that qualifying 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 non- pensionable establishment or service rendered in contingencies or service rendered in daily-rated establishment. Learned senior counsel for the petitioner could rightly emphasise the group of words "whether temporary or permanent, interrupted or continuous" from the language of the Rules to submit that the petitioner's services would be included as per the Rules,within the purview of qualifying service for pension.

5.3 In view of the above Rule-25 of Pension Rules 2002, temporary services are liable to be counted as pensionable. Even though the petitioner served as ad hoc for 30 years and 9 months, he was on the regular establishment entitled to get his services to be treated as pensionable. Rule 25 in terms says that qualifying service for pension include even interpreted services. Therefore, short breaks of 26 days and 5 months during the tenure of the services of the petitioner, would be in no way impead in counting the services of the petitioner to qualify as pensionable services."

5.1 The aforesaid decision in Talsibhai Dhanjibhai

C/LPA/98/2023 ORDER DATED: 31/01/2023

Patel (supra), was carried in appeal by preferring Letters Patent Appeal No.762 of 2020 by the State, which, however, was dismissed. Not only that, Special Leave to Appeal (C) No.1109 of 2022 also came to be dismissed by the Supreme Court. Learned single Judge has taken note of the order in Special Leave to Appeal while allowing the petition in the present case.

5.2 The Supreme Court observed while confirming the decision of this Court in order dated 18 th February, 021 while dismissing the Special Leave to Appeal,

"It is unfortunate that the State continued to take the services of the respondent as an ad-hoc for 30 years and thereafter now to contend that as the services rendered by the respondent are ad-hoc, he is not entitled to pension/pensionary benefit. The State cannot be permitted to take the benefit of its own own wrong. To take the Services continuously for 30 years and thereafter to contend that an employee who has rendered 30 years continues service shall be eligible for pension is nothing but unreasonable. As a wJlfare State, the State as such ought not to have taken such a stand.

In the present case, the High Court has not committed any error in directing the State to pay pensionary benefits to the respondent who has retired after rendering more than 30 years service.

Hence, the Special Leave Petition stands dismissed. Pending application(s), if any, shall stand disposed of."

5.3 Not only that the above decision in Talsibhai Dhanjibhai Patel (supra) leave the issue no longer res integra, learned senior advocate for the respondent rightly pointed out also the decision of this Court in Bahadur Hoshi

C/LPA/98/2023 ORDER DATED: 31/01/2023

Kotwal v. State of Gujarat being Special Civil Application No.19042 of 2017 decided as per judgment dated 07th May, 2019 wherein also the petitioner was identically situated holding the post of Lecturer and claimed the similar benefits. The said decision of Bahadur Hoshi Kotwal (supra) came to be relied on in Talsibhai Dhanjibhai Patl (supra).

5.4 Furthermore, Letters Patel Appeal No.1748 of 2019 was preferred by the State against the decision in Bahadur Hoshi Kotwal (supra), which Letters Patent Appeal came to be dismissed as per judgment of the Division Bench dated 22nd October, 2019.

6. The controversy in the present Letters Patent Appeal thus stand squarely covered by the aforesaid decision. Learned Single Judge committed no error whatsoever in allowing the petition.

7. The present Letters Patent Appeal stands meritless. The same is dismissed.

In view of dismissal of the main Letters Patent Appeal, no order is required to be passed in the Civil Application. The same is disposed of accordingly.

(N.V.ANJARIA, J)

(NIRAL R. MEHTA,J) ANUP