Gujarat High Court
Khodabhai Hathibhai Khant vs The Director Of Pension And Provident ... on 5 August, 2025
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Reserved On : 22/07/2025
Pronounced On : 05/08/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 1421 of 2019
With
CIVIL APPLICATION (FOR AMENDMENT) NO. 1 of 2023
In R/SPECIAL CIVIL APPLICATION NO. 1421 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 5078 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 4235 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 5934 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 9093 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 9562 of 2023
With
R/SPECIAL CIVIL APPLICATION NO. 4094 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 22683 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 86 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 4694 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 8964 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 11889 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 13573 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
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Approved for Reporting Yes No
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KHODABHAI HATHIBHAI KHANT AND OTHERS
Versus
THE DIRECTOR OF PENSION AND PROVIDENT FUND & ORS.
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Appearance:
MR GM AMIN, ADVOCATE for the Petitioners
MR PREMAL JOSHI, MS HARSHAL N PANDYA, MR VISHRUT JANI, MR
MEHUL RATHOD, MR HS MUNSHAW, MS ARCHANA AMIN, MR DG
CHAUHAN, MR PRANAV SHAH for rest of the Respondents
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MR HENIL M SHAH, MR PARTH PATEL, MS SURBHI BHATI, MR JEET
JOTANGIYA, MS DHARITRI PANCHOLI, AGPs for the State Authorities
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
1.1 Since the issue involved in this group of petitions
is identical, the averments made as well as the submissions
canvassed by the learned advocates for the respective parties
are also identical, with consent of the learned advocates, all
these matters are heard and decided by this Court together.
1.2 This group of petitions under Article 2226 of the
Constitution of India is filed by the petitioners seeking
direction to the respondent authorities against the recovery of
the amount which was again paid by calculating the pension
and other retiral dues.
2. For the sake of convenience, as Special Civil
Application No.1421 of 2019 is argued by the learned
advocates, the same is taken as lead matter, therefore, the
facts of that matter are epitomized as under.
2.1 The petitioner initially joined the services as
Oilmen / Tubewell Operators in Ahmedabad District
Panchayat.
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2.2 The services were transferred to the newly
formatted Gujarat Water Resources Development Corporation
on 07.08.1978.
2.3 The Government has passed a Resolution dated
14.10.1981 inviting options from all the employees as to
whether they wanted to be repatriated to parent department
or to continue with Corporation by the said resolution and
pursuant to the said resolution, all the employees were
treated to be the employees of the parent department till
13.12.1981. Therefore, the petitioners were treated to be the
employees of the Ahmedabad District Panchayat for the
period from 1972 to 13.12.1981 only and thereafter they were
treated to be the employees of the Gujarat Water Resources
Development Corporation.
2.4 The petitioners retired from the Corporation
between the years 2005-2007.
2.5 The Corporation does not have pension scheme.
2.6 Therefore upon retirement, they were granted the
retiral dues as per Contributory Provident Fund scheme,
gratuity, leave encashment, etc., for the period they served
with the Corporation i.e. from 07.08.1978 till 31.05.2006. The
amount of gratuity was paid by the Corporation for the
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period from 1978 to 2006.
2.7 After about 9 years from the retirement, the
petitioner and other similarly situated persons, have
approached this Court by filing Special Civil Application
No.10476 of 2015 seeking grant of pension, which was
allowed by the Coordinate Bench of this Court.
2.8 After that order, the petitioners became entitled
for the pension and other retirement dues from the State
Government for duration of 01.11.1972 till 13.12.1981.
2.9 Therefore, for the period of which they already
received gratuity from the Corporation, again ordered to be
granted from the Panchayat. For which gratuity is already
granted for the period from 07.08.1978 to 13.12.1981.
2.10 It is the said amount which is paid by the
Corporation as well as by the Panchayat to the petitioners,
which is recovered from them, for which the petitioners have
approached this Court by way of these petitions.
3. Heard learned advocate Mr. G. M. Amin for
the petitioners and Mr.Joshi, Ms.Pandya, Mr.Jani,
Mr.Munshaw, Mr.Rathod, Mr.Shah, Mr.Chauhan, Ms.Amin,
learned advocates for the respective respondents. Rule
returnable forthwith. With consent of the learned advocates,
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all these matters are taken up for hearing and final disposal.
4.1 Learned advocate Mr.G.M. Amin for the petitioners
submitted that recovery cannot be made from the arrears of
pension and since the Rule does not permit recovery,
therefore, they have exercised pressure on the petitioners to
recover the amount of grauity and CPF which is totally
uncalled for. He has further submitted that the petitioners
have actually worked with the Corporation and the date
mentioned in the judgment of the Coordinate Bench of this
Court is notional date for counting length of qualifying
service and it has nothing to do with the actual working in
the Ahmedabad District Panchayat, therefore, stand taken by
the Corporation to recover gratuity is totally uncalled for. He
has further submitted that as such, the petitioners were
transferred to the Corporation in the year 1978, however they
were working from that date onwards till they retired. The
case of the Corporation is that the Coordinate Bench of this
Court has fixed the date of retirement is 13.12.1981 and
therefore, the Corporation is liable to pay gratuity from
07.06.1978 onwards and not from 08.07.1981 and therefore,
there is a gap for the period from 1978 to 1981, therefore,
the Corporation has ordered to recover the amount of
gratuity from the arrears of pension. The petitioners has
further submitted that the date fixed by this Court is a
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notional date for counting length of qualifying service of the
petitioners and as such, the petitioners have served with the
Corporation since 1978 and therefore, the Corporation is
liable to pay gratuity from 1978 till retirement and therefore,
the impugned action of the respondent authorities of
recovering amount with interest is illegal. He has also
submitted that the impugned action of the respondent
authorities of recovering provident fund from the areas of
pension of the petitioners is illegal and recovering the
amount from the petitioners is violative of Articles 14 and 19
of the Constitution of India.
4.2 He has further submitted that in view of the
Gujarat Civil Services (Pension) Rules, 2002, the petitioners
are entitled to get gratuity right from date of his joining of
service till his retirement. He has submitted that this Court
while delivering the judgment had in clear terms stated that
the services rendered in the parent department is counted for
the purpose of pension. He has further submitted that the
petitioners are also entitled to interest on pension as it is
admissible under the rules and government circulars. He has
submitted that it is the duty of the department to send
proposal of interest to the Director of Pension and Provident
Fund, which the department has not done. He has submitted
that this Court has granted interest to one Narubha
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Mohabbatsinh Zala. He has barely submitted that the
Corporation has no pension scheme. He has submitted that
the recovery made by the Corporation is required to be
refunded with interest to the petitioners.
4.3 In support of his submissions, he has relied upon
the following decisions.
(i) Special Civil Application No.16511 of 2017 - Gulabji
Kasturji Borana
(ii) (2015) 4 SCC 334 - State of Punjab versus Rafiq
Masih
(iii) Special Civil Application No.16188 of 2011 -
Mathurbhai Karshanbhai Galtharia versus State of
Gujarat
(iv) Special Civil Application No.6138 of 2006 - S.K.
Pandya versus State of Gujarat
(v) 2016 (0) AIJEL - HC 237098 - Pravinbhai Kantilal
Ganatra versus State of Gujarat
(vi) (2009) 3 SCC 475 - Syed Abdul Quadir versus State
of Bihar
(vii) 2024 (0) AIJEL - SC 73884 - Jagdish Prasad Singh
versus State of Bihar
(viii) 2022 SCC OnLine SC 536 - Thomas Daniel versus
State of Kerala
(ix) Special Civil Application No.6057 of 2015 - Ajitbhai
Vasanjibhai Patel versus District Primary Education
Officer
(x) Special Civil Application No.16351 of 2014 -
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Ranjanben Dolatrai Desai versus Taluka Development
Officer
(xi) (2014) 8 SCC 894 - D.D. Tewari versus Uttar
Haryana Bijli Vitran Nigam Limited
4.4 He has submitted that these petitions may be
allowed.
5.1 Per contra, learned advocate Mr. Premal Joshi,
learned advocate Mr.Vishrut Jani, learned advocate Mr.
Abhijeet Rathod for learned advocate Mr.Mehul Rathod,
learned advocate Ms.Archana Amin for the respective
respondents have vehemently opposed these petitions. Learned
advocate Mr.Joshi has drawn the attention of this Court
towards the affidavit in reply filed by the Panchayat and has
submitted that and has submitted that after the retirement,
the petitioners were granted retiral dues as per the CPF
scheme, gratuity, leave encashment, etc., for the period they
served with the Corporation i.e. from 1978 till the date of
retirement i.e. 2005-2006. He has further submitted that
accordingly, the petitioners were paid gratuity from 1978 to
2006 by the Corporation. He has also submitted that after
the order of the Coordinate Bench of this Court, the
petitioners became entitled for the pension and other
retirement dues from the State for duration of 01.11.1972 till
13.12.1981, now for the period of which they already received
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gratuity from the Corporation again ordered to be granted
from the Panchayat; the duration for which gratuity is
already granted i.e. 07.08.1978 to 13.12.1981 has to be
adjusted. He has further submitted that the concerned
Panchayat were directed by the State Government to adjust
the amount in consultation with the Corporation and
therefore, the amount in question was recovered from the
petitioners. He has submitted that the petitioners have
approached this Court earlier after almost 9 years of delay.
5.2 In support of his submissions, he has relied upon
Rule 19 of the Gujarat Civil Services (Pension) Rules, 2002
and has submitted that double amount which has been paid
to the petitioners for the duration i.e. 07.08.1978 to
13.12.1981 by the Corporation as well as by the Panchayat
and therefore, out of which, one has to be adjusted and the
authorities have rightly recovered the amount from the
petitioners.
5.3 He has submitted that these petitions may be
dismissed.
6. Learned advocate Ms. Harshal Pandya for the
Corporation has also vehemently opposed these petitions. She
has drawn the attention of this Court towards the affidavit
in reply filed by the Corporation. She has adopted that
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submissions made by the learned advocate Mr.Premal Joshi.
She has submitted that the petitioners have approached this
Court earlier that too after almost 9 years of delay. She has
also submitted that double amount which has been paid to
the petitioners for the duration i.e. 07.08.1978 to 13.12.1981
by the Corporation as well as by the Panchayat and
therefore, out of which, one has to be adjusted and the
authorities have rightly recovered the amount from the
petitioners. She has submitted that these petitions may be
dismissed.
7. Learned AGPs Ms.Surbhi Bhati, Mr.Henil Shah,
Mr.Parth Patel, Mr. Jeet Jotangiya, Ms. Dharitri Pancholi for
the State have adopted the submissions canvassed by the
learner advocates for the Corporation/Panchayat. They have
also vehemently opposed these petitions. They have submitted
that it is an undisputed fact that the Corporation has no
pension scheme; and that the petitioners were the employees
of the State Government till 13.12.1981 and thereafter, by
the resolution, they were the employees of the Corporation;
and that the petitioners have not rendered qualifying service
with the State Government earlier; and that the petitioners
have approached this Court after 9 years of delay for their
pensionary benefits; and that this Court has allowed those
petitions and granted the pensionary benefits to the
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petitioners and directed the respondent authorities to consider
their earlier service for the purpose of pension only; and that
the State Government has, after the said direction, considered
their services as pensionable service and accordingly paid the
retiral dues; and that these petitioners have retired from the
service during the year 2005 to 2007; and that pursuant to
the direction of this Court, the Corporation has paid the
retiral dues as per the existing scheme of the CPF and
accordingly, gratuity, leave encashment and other benefits
were granted to the petitioners; and that the Panchayat has
also considered the case of the petitioners for retirement dues
including the pension and paid the all retiral dues to the
petitioners, therefore, the petitioners are in receipt of the
double payment, one is from the Corporation and another is
from the Panchayat / State for the period from 1978 to 1981;
and that one of the dues has to be recovered by the
respondent authorities from the petitioners and therefore the
Corporation has adjusted the one amount accordingly. They
have submitted that these petitions may be dismissed.
8.1 I have considered the rival submissions made by
the learned advocates for the respective parties. I have
perused the documents available on record. From the record
as well as from the facts noted above, it transpires that the
petitioners have joined the services with the Ahmedabad
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District Panchayat as Oilment / Tubewell Operators in the
year 1972. Upon formation of Gujarat Water Resources
Development Corporation, the petitioners were transferred to
the Corporation on 07.08.1978. Thereafter, as per resolution
of the Government dated 14.10.1981, all the employees were
treated to be the employees of the parent department till
13.12.1981, that means after that date, all the employees are
treated to be the employees of the Corporation admittedly.
The Corporation does not have pension scheme, which is
known to the petitioners.
8.2 The petitioners have retired from the service of
the Corporation during the year 2005 to 2007. The
Corporation has paid the retiral dues as per the CPF
scheme, gratuity, leave encashment, etc., for the period they
served with the Corporation i.e. from 07.08.1978 till their
retirement.
8.3 After about almost 9 years of delay, the
petitioners have approached this Court for grant of pension,
which was allowed by this Court and thereby directed the
respondent authorities to consider their earlier service for the
purpose of pension only and accordingly, paid the retiral
benefits. Now, for the period of which the petitioners have
already received gratuity from the Corporation after their
retirement, as per the order of this Court, they were granted
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the same benefits i.e. retiral benefits from the Panchayat /
State. The duration for which gratuity is already granted i.e.
07.08.1978 to 13.12.1981 is again paid to the petitioners due
to non-coordination between the Panchayat / State and the
Corporation. Thus, the petitioners were paid same retiral
benefits by the Corporation as well as by the Panchayat also
and more particularly, for the period from 1978 to 1981.
Thereafter, the Panchayat was directed by the State to adjust
the said amount in consultation with the Corporation and the
said double amount was recovered by the Corporation from
the petitioner accordingly.
8.4 In this background, this Court finds that the only
question for determination before this Court would be that,
the amount which is paid again to the petitioners for the
period from 07.08.1978 to 13.12.1981, which is recovered by
the respondent authorities, be refunded to the petitioners or
not ?
8.5 It is a matter of record that the Corporation has
paid all the retiral dues to the petitioners as per their
existing scheme i.e. CPF, gratuity leave encashment, etc.,
after the retirement, which is an undisputed fact.
8.6 It is also a matter of record that as per the order
of this Court, the State has considered the case of the
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petitioners for pension and accordingly, paid them pension
and other retiral benefits, which is also an undisputed fact.
8.7 It is also a matter of record that the retiral dues
are paid to the petitioners by the Corporation as well as by
the State though as per the order of this Court for the
period from 07.08.1978 to 13.12.1981 and hence, for the said
period, the petitioners are paid the retiral dues twice, which
is also an undisputed fact.
8.8 Therefore, the Panchayat was directed by the State
Government to adjust the amount in consultation with the
Corporation and accordingly, whichever double amount has
been paid by the authorities to the petitioners has to be
recovered and is recovered from the petitioners accordingly by
the respondent authorities. It is this amount which is
demanded by the petitioners back with interest.
8.9 At this stage, Rule 19 of the Gujarat Civil Service
(Pension) Rules, 2002 needs to be referred to, which is as
under.
"19. Limitation on number of pensions -
1. A Government employee shall not earn
two pensions in the same service or post at the
same time or for the same continuous service.
2. A Government employee who has retired
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on a superannuation pension or retiring pension
and subsequently reemployed shall not be entitled
you are separate pension or gratuity or the
period of his re-employment."
8.10 In view of above, no person can claim double
benefits. Additionally, it is not a case of recovery but merely
of adjustment by the respondent authorities, which the
respondent authorities have rightly done in limpid way. As
per the order of this Court, the State / Panchayat has
granted pension and other retiral benefits and the same has
been extended to the petitioners and they are enjoying its
fruits and at the same time, the payment of CPF made by
the Corporation at the time of their retirement i.e. in the
years of 2005 to 2007 as there is no pension scheme
available with the Corporation and they are the employees of
the Corporation, they were enjoying the said fruits also. It is
noted that at that time, there is no order of this Court as
the petitioner have approached this Court after delay of
about 9 years which itself is recondite aspect and the
Corporation has paid the retiral dues to the petitioners soon
after their retirement i.e. in the years 2005 to 2007. Under
the circumstances, the action of the respondent authorities for
recovering the one amount is just and legal and this Court
does not warrant any interference in it.
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8.11 At this stage, it would be fruitful to refer to the
decision of the Hon'ble Apex Court in the case of Committee
for Protection of Rights of ONGC Employees versus Oil and
Natural Gas Commission through its Chairman reported in
1990 (0) AIJEL-SC 6785 = (1990) 2 SCC 472, more
particularly paras : 1, 9 and 15 thereof, which read as
under.
"1. The only question which arises for
consideration in this writ petition, filed under
Art. 32 of the Constitution, is whether persons
who were employed in temporary capacity with
the Oil & Natural Gas Commission (hereinafter
referred to as 'the Commission'), when it was
being run as a Department of the Government of
India prior to the enactment of the Oil &
Natural Gas Commission Act, 1959 (hereinafter
referred to as the ONGC Act) and who were
subsequently absorbed in the Commission, as
established under the said Act, are entitled to
pension, in addition to the Provident Fund
benefits to which they are entitled under the
provisions of the Employees' Provident Fund and
Miscellaneous Provisions Act (hereinafter referred
to as the Provident Fund Act).
9. In the present case, the petitioners were
employed on temporary basis at the time when
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the Commission was established as a statutory
body under the ONGC Act and on that date they
were not entitled to claim pension because under
the relevant Rules pension was not payable to a
person employed on temporary basis. The
petitioners, therefore, cannot claim that on the
date of their becoming the employees of the
Commission established under the ONGC Act in
1959, they had a right to pension which has been
protected under sub-sec. (1) of sec. 13 and Clause
(2) of Regulation 3 of the Regulations. The
petitioners cannot also claim protection of the
aforesaid provisions on the basis that right to
receive pension was part of their condition of
service on the date of their becoming the
employees of the Commission under sub-sec. (1) of
sec. 13 of the ONGC Act, in as much as under
the relevant service rules applicable to them, they
could either claim pension or the benefit of the
Contributory Provident Fund and they could not
avail both the benefits. Since the petitioners are
entitled to the benefit of the Contributory
Provident Fund under the Provident Fund Act
and the Provident Fund Scheme and have availed
the, said benefit for the past 28 years, they
should be taken to have opted for said benefit
and they cannot invoke the service rules with
regard to pension and claim the right to receive
pension as part of their conditions of service. We
are, therefore, unable to accept the contention of
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Shri Ramamurthi, based on the provisions of sub-
sec. (1) of Section 13 of the ONGC Act and
Clause (2) of Regulation 3 of the Regulations,
that the petitioners are entitled to claim pension
in addition to the provident fund payable to them
under the Provident Fund Act and the Provident
Fund Scheme.
15. For the reasons mentioned above, it must
be held that the persons who were employed in
temporary capacity with the Commission when it
was being run as a Department of the
Government of India prior to the enactment of
the ONGC Act and who were subsequently
absorbed in the Commission, as established under
the said Act, are not entitled to pension in
addition to the Provident Fund benefits to which
they are entitled under the provisions of the
Provident Fund Act. The writ petition, therefore,
falls and it is accordingly dismissed. There will
be no order as to costs."
8.12 There cannot be any dispute with regard to the
law enunciated in the decisions of the Hon'ble Apex Court as
well as of this Court relied upon by the learned advocate for
the petitioners, however, it cannot be helpful to the
petitioners any further in view of the facts and circumstances
of the present case. The present case does not fall within the
purview of these decisions with such facts.
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9. For the reasons recorded above, these petitions
need to be dismissed and are dismissed accordingly. Rule is
discharged. Interim relief granted earlier, if any, stands
vacated. In view of this, civil application would not survive
and is disposed of accordingly.
(SANDEEP N. BHATT,J)
M.H. DAVE
