Gujarat High Court

State Of Gujarat vs Sunanda Madhukar Phadke on 26 September, 2023

Bench: Devan M. Desai

                                                                                        NEUTRAL CITATION




       C/LPA/627/2022                                   ORDER DATED: 26/09/2023

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
                 R/LETTERS PATENT APPEAL NO. 627 of 2022
              In R/SPECIAL CIVIL APPLICATION NO. 8759 of 2016
                                    With
                 CIVIL APPLICATION (FOR STAY) NO. 1 of 2020
                In R/LETTERS PATENT APPEAL NO. 627 of 2022
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                            STATE OF GUJARAT
                                  Versus
                        SUNANDA MADHUKAR PHADKE
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Appearance:
MR. SANJAY UDHWANI, ASSISTANT GOVERNMENT PLEADER for the
Appellant(s) No. 1,2,3,4,5
DS AFF.NOT FILED (N) for the Respondent(s) No. 1
MR MITUL K SHELAT(2419) for the Respondent(s) No. 2
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     CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIA
           and
           HONOURABLE MR. JUSTICE DEVAN M. DESAI

                       Date : 26/09/2023
                        ORAL ORDER

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

Heard learned Assistant Government Pleader Mr. Sanjay Udhwani for the appellant State and its authorities, whereas learned advocate Mr. Mitul Shelat for the respondent No.2. None appeared for respondent No.1

2. The State and its authorities-the appellants have sought to call in question judgment and order dated 21.8.2019 of learned single Judge by filling present Letters Patent Appeal.

3. Respondent No.1-original petitioner prayed in the main petition as under,

"(i) To quash and set aside the respondent's action and inaction in not considering the case of the petitioner for pension by passing appropriate

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C/LPA/627/2022 ORDER DATED: 26/09/2023

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orders declaring him to be entitled to receive pension and further be pleased to declare that the petitioner's recruitment and appointment as Reader with effect from 1.8.1984 and as a Professor w.e.f. 7.9.1998 is fresh recruitment after 1.4.1982 therefore he is entitled to pension as per the provisions of G.R. dated 15.10.1984 and further be pleased to direct the respondent to grant pension to the petitioner forthwith by considering the service rendered by him by issuing writ in the nature of mandamus or certiorari or any other appropriate writ, order or direction so deeded fit and proper.

(ii) to direct the respondent authorities to give benefits of GPF scheme by transferring account of the applicant to GPF and further to give benefits of pension scheme under Resolution dated 15.10.1984 within 3 months from the date of order and further to direct the respondent authority to start monthly pension immediately to serve the purpose of justice.

(ii) to issue a writ in the nature of mandamus or any other appropriate writ or order or direction, directing the respondent to pay all pensionary benefits to the petitioner with 18% interest p.a. with effect from the date he retired."

3.1 The petition was allowed by learned single Judge issuing the following orders and directions in paragraph No.12,

"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."

4. The grievance of the petitioner was that she was not being considered for pension as per the policy contained in government

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C/LPA/627/2022 ORDER DATED: 26/09/2023

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Resolution dated 15.10.1984.

4.1 While allowing the petition, learned single Judge relied on the decision of this court in State of Gujarat vs. Kalhans Harilal Patel, which was Letters Patent Appeal No. 2259 of 2017, wherein the facts and the issues involved were similar.

4.2 The following was observed by the Division Bench in Kalhans Harilal Patel (supra),

"14. It is required to be noted that so far as the teaching staff is concerned, there is no concept of automatic promotion on higher posts on completion of certain number of years. An employee has to acquire educational qualification and put in number of service to secure eligibility criteria for recruitment on higher post. Any appointment either direct or by transfer or by changing the post in the same institute and or in different institute for securing higher post or on a same post made after 1982 is covered under pension scheme - GPF for which option is not to be given as CPF scheme is discontinued with effect from 01.04.1982. It is settled that the employees even though recruited before 01.04.1982 on a given post but subsequently i.e. after 01.04.1982 if they are again recruited after following the procedure prescribed therein, then such employees are not required to give any option to switch over from CPF to GPF because of requirement of clause 4 of the Government Resolution dated 15.10.1984. The said clause 4 at the cost of repetition is reproduced hereinbelow:

"4. The member of the staff recruited on or after 1st April, 1982 shall automatically be governed by this scheme. Such staff will not be allowed to opt for contributory provident fund scheme."

14.1 Moreover, any recruitment/appointment made after 01.04.1982 for the teaching staff is through advertisement and selection hence it is fresh appointment and therefore pension scheme I.e. GPF is automatically applicable. Further, for the non teaching staff also, their promotion at a particular time is to be considered as recruitment and therefore they need not give the option at the time of promotion. In view of the overall facts of the case we are not inclined to entertain these appeals and therefore the appeals deserve to be dismissed."

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C/LPA/627/2022 ORDER DATED: 26/09/2023

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5. In respect of the present controversy, the facts noticed were inter alia that the petitioner was initially appointed in the year 1976 as a Lecturer in Clothing & Textiles, in the faculty of Home Science, whereafter came to be promoted as Reader in the department as per order dated 4.6.1985, followed by promotion dated 2.8.2001 to the post of Professor.

5.1 There is no gainsaying that the petitioner's appointment was 1.4.1982. The resolution dated 15.10.1984 will apply to the case of the petitioner. Therefore, the case was covered by judgment in Kalhans Harilal Patel (supra) and the issue was no longer res integra.

6 Learned Assistant Government Pleader was not in a position to dispute the position of law emanating from the decision in Kalhans Harilal Patel (supra), and the applicability of the ratio thereof to the facts of the present case.

7. The challenge to the judgment and order of learned single Judge is without any substance. Letters Patent appeal stands meritless. It is dismissed.

Civil Application will not survive in view of dismissal of the appeal.

(N.V.ANJARIA, J)

(D. M. DESAI,J) C.M. JOSHI