Gujarat High Court
Patel Jagdishbhai Dulabhai vs Ahmedabad Municipal Transport Service on 18 July, 2025
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C/SCA/16176/2020 CAV JUDGMENT DATED: 18/07/2025
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Reserved On : 08/07/2025
Pronounced On : 18/07/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 16176 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 11925 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 19161 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 17381 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 10992 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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PATEL JAGDISHBHAI DULABHAI & ORS.
Versus
AHMEDABAD MUNICIPAL TRANSPORT SERVICE & ORS.
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Appearance:
MR YOGEN N PANDYA(5766), MS SHEEJA G NAYAR for the Petitioner(s)
MS E.SHAILAJA(2671) for the Respondent(s) No. 3
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
1. As common questions of facts and law are involved
in all these petitions and they are tagged together and heard
together, with the consent of learned advocates for the
parties, they are heard and decided together by this common
judgment.
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1.1 Learned advocates for the parties have requested
that Special Civil Application No.16176 of 2020 may be taken
as the lead matter and therefore the facts of the said case
are considered for adjudication of these petitions.
2. Broadly, the prayer prayed for by the petitioners
in all these petitions is that the respondents be directed to
treat the contribution of new GPF scheme from July, 2014 to
their respective old GPF scheme forthwith.
3. The brief facts, as stated by the petitioners in the
memo of Special Civil Application No.16176 of 2020, are that
the petitioners were appointed on the vacant sanctioned posts
in the year 1996 in the year 1996 after due procedure of
appointment by giving advertisement, holding interviews and
selection and they have been posted on various posts; that
the petitioners are permanent employees from their date of
joining in the service and the petitioners have undisputedly
and uninterruptedly completed their service of 5 years and
900 days; that they have been members of pension scheme of
the respondent as the GPF contribution started from the date
of their respective joining dates and they became members of
the pension scheme; that their contribution in old scheme
was made upto June, 2014 from their respective date of
joining; the respondent no.1 changed the PF of the petitioners
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without consent or permission and more so, provisional PF
number has been allotted and though the respondent no.1
has deducted PF of the petitioners, the same is not deposited
to respondent no.3 but kept in one separate account as FDR;
and the said amount is deposited in the new PF account and
not in old PF account; thus, the petitioners preferred Special
Civil Application Nos.14809 of 2016 to 14863 of 2016 before
this Court, which was disposed of by order dated 13.12.2018
with the direction to consider the representation of the
petitioners within 10 weeks from the date of receipt of the
order; the representations made by the petitioners were
denied vide reply dated 25.2.2019 by stating that the
petitioners were daily rated employees and done the work in
absence of permanent employees; that the petitioners were
not given work in the year 2001 and 2002; that the
petitioners were working as daily rated employees during the
year 1996 to 2000 and the contribution of provident fund was
made under the Employees Provident Fund & Miscellaneous
Act, 1952 (`the EPF Act for short) and therefore the
corporation denied the membership of GPF from the
inception; that thereafter the respondent no.1 issued letter
dated 8.5.2019 intimating the petitioners that as per the
provisions of Section 2(P) of the Industrial Disputes Act, 1947
(`the ID Act' for short), that as per the Government Rules
and Regulations, from 1.4.2005 or thereafter, the employees
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who are appointed on regular based salary have to adopt
New Pension Scheme and also referred to Circular No.11
dated 25.6.2018 issued by Traffic Department, the petitioners
are forced to adopt new pension scheme; that the respondent
no.1 has, time and again, passed resolutions for extending
the benefits of pension as per the Government Resolution to
the workmen like the petitioners, however, the same are not
applied to the petitioners by the respondent no.1
intentionally; that all the daily wagers have put their claim
for regularization through their representative i.e. respective
Union and it was mutually agreed by and between the
respondent no.1 and the Union of the petitioners that the
services of all daily wagers have been regularized and they
will be paid regular salary with usual allowance and due to
the deduction in provident fund since long, the petitioners are
covered automatically in the old pension scheme under 2(P)
settlement; that the petitioners came to know that the
respondent Corporation has interpreted the guidelines issued
by the Government of Gujarat dated 6.9.2005 and treated the
petitioners as fresh employment and the provident fund
deduction is credited to new accounts, the Union of the
petitioners has immediately tendered the representation to
that effect on 11.8.2014 even the petitioners made a
letter/representation of the government guidelines and
issuance of new provisional provident fund account numbers
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to the petitioners; thereafter also the petitioners wrote the
letter dated 11.2.2016 with a view to correct the inaction on
the part of the respondent;
3.1 It is stated that in the above factual background,
the petitioners made a representation dated 3.1.2019 in view
of the order dated 13.12.2018 passed by this Court in Special
Civil Application Nos.14809 of 2016 to 14863 of 2016 to
consider and treat the old GPF scheme (old pension schemes)
instead of new pension scheme as the petitioners were
already having old GPF numbers, wherein their contributions
were deducted regularly from their date of joining to June
2014, which was rejected vide impugned order dated
25.2.2019 and further issued a letter dated 8.5.2019 for
compulsory applying for new pension scheme instead of old
pension scheme. This is the subject matter of challenge in
these petitions.
4. Heard learned advocates for the parties.
4.1 The main contentions raised by the learned
advocates for the petitioners are that the petitioners herein
are serving in various capacities under respondent no.1
organization (Ahmedabad Municipal Transport Service -
AMTS) having been duly appointed after undergoing the
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recruitment process; the petitioners were inducted into the
GPF (old pension) scheme from the very inception of their
services; their pension contributions were regularly deducted
from their salaries, as reflected in the official Pension
Nomination Form and this singular fact is demonstrative of
their continued membership under the Old Pension Scheme
right from the date of joining; In the year 2014, a settlement
was arrived at between respondent no.1 and the recognized
employees' union under Section 2(P) of the ID Act; this
settlement categorically treated all the concerned employees,
including the petitioners, as permanent employees with effect
from their original date of joining; the said settlement formed
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the basis for implementation of the 6 pay commission
recommendations; it is critical to note that the said
settlement did not stipulate any provision for change in the
pension scheme or discontinuation of the existing GPF
scheme; that the respondent authorities unilaterally issued
new PF numbers under the EPF scheme to the petitioners;
that the petitioners were regular appointees from inception,
were governed by applicable service regulations, and were
receiving salary with pension deductions under the old
scheme; in the affidavit filed by respondent no.3-EPFO, the
respondent no.1 AMTS has never been covered under the
EPF Act and this fortifies the petitioners' stand that they
could not have been transferred to EPF without any enabling
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statutory or administrative mechanism.
4.2 In light of the above submissions, learned advocate
for the petitioners further submits that though initially the
petitioners were appointed as daily rated workers, were
appointed through regular procedure, continued in service and
were granted pay scale and pension deductions from inception
and the Gujarat Civil Services Rules (GCSR) as adopted by
the AMTS and the Municipal Corporation, recognize such
continuous service for pensionary benefits, the nature of
initial appointments loses its relevance for the purpose of
pension entitlement; that as per statutory rules and
consistent administrative practice, the period of their service,
including prior to being declared permanent as per 2(P)
settlement, qualifies as pensionable service. He, therefore,
submits that the respondents' attempt to migrate the
petitioners to new pension regime without their consent is in
violation of settled legal norms contravenes service
jurisprudence and infringes upon the petitioners' vested
rights.
4.3 In support of his submissions, learned advocate for
the petitioners has relied on the judgment of this Court
dated 28.4.2017 in Special Civil Application Nos.1706 of 2014
and allied matters, wherein the petitioners were similarly
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situated and the benefit of old pension scheme was granted
to the petitioners therein by allowing the petitions and the
Letters Patent Appeal Nos. 871 of 2017 and allied matters
filed against the said order was dismissed and the Hon'ble
Apex Court also dismissed the Special Leave to Appeal (C)
No. 4308-4316 of 2019 filed against the said order of Letters
Patent Appeal. They, therefore, submitted that the order of
the learned Single Judge has attained finality. The petitioners
herein are similarly situated and therefore these petitions are
required to be allowed by granting the prayers prayed for in
these petitions.
5. Per contra, learned advocate for respondent no.1-
AMTS submitted that the AMTS is a statutory body duly
constituted under the provisions of the Gujarat Provincial
Municipal Corporations Act, 1949; that the petitioners were
taken up on waiting list meant for daily wagers pursuant to
an advertisement; that the petitioners were offered work as
drivers/conductors/helpers on daily wage basis depending upon
availability of work and fund; that the petitioners were
offered work between 1996-97 to 2002 as per requirement
and provident fund amount was deducted as per EPF Act;
that the AMTS is exempted as per Section 17-1-B of EPF
Act and therefore, it has created its own trust; that as they
were not regular and permanent employees, no deduction for
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any pension scheme was made qua them; that no work was
offered between 2001-02 till 2006-07 because of administrative
grounds; that the order of the Industrial Tribunal granting
benefits of permanency to the petitioners on completion of
service of 900 days in 5 years was quashed by this Court
vide order dated 10.8.2005 in Special Civil Application
No.6802 of 2003 by holding that such benefits are to be
provided only if permanent posts are vacant and the
petitioners have no right to claim permanency; that the
settlement was arrived at between the AMTS and the Union
on 19.7.2014 under Section 2(P) of the ID Act and the
petitioners were given benefit of regularization with effect
from 1.7.2014 which were accepted by the petitioners and
therefore when the petitioners were granted status of regular
employees with effect from 1.7.2014 pursuant to the said
settlement and also given the benefit of regular pay scale
and new pension scheme, as appointments are after 1.4.2005
and therefore they are not entitled for old pension scheme.
He submitted that the petitioners were daily wagers between
1996 to 2001 and even not converted into acting service and
they were never governed by GPF scheme. He submitted that
provident fund was never deducted under the General
Provident Fund Scheme prior to 2014 as they were daily
wagers and daily wagers are not entitled to benefits flowing
from Gujarat Civil Service (Pension) Rules, 2002. He,
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therefore, submitted that the petitioners are not entitled to
the old pension scheme and these petitions may be dismissed.
6. I have heard the rival submissions made by the
parties and also perused the material on record.
7. The contentions of learned advocates for the
petitioners revolves around that whether the respondents are
justified in converting the petitioners into new pension
scheme from the old pension scheme though they had put in
services from 1996.
8. It emerges from the record that the petitioners
were appointed as daily wagers in the year 1996-97 and they
continued to work as daily wagers till 2001. Thereafter, due
to administrative grounds, no work was offered to the
petitioners between 2001-02 till 2006-07; the amount was
deducted as per the EPF Act and as the AMTS was
exempted from EPF Act, the amount was deposited in its
own PF Trust.
9. At this stage, it will be fruitful to refer to the
concept of the members of the staff having classified as
permanent, temporary and acting, of the Corporation, which
reads as under:
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"(c) Regulation Nos.2.10 and 2.11 classify the employees of
the respondent AMTS into 5 categories viz. Permanent,
probation, temporary, badli and acting. The said expressions
are dependent on Regulation No.2.10 to 2.11 which reads
thus:-
"2.10 MEMBERS OF STAFF CLASSIFIED AS
(1) "Permanent" means a member of staff who has been
engaged on a permanent basis and includes any person who
has been taken on the permanent establishment after
satisfactorily completing a Probationary period as applicable
to him.
(2) "....."
(3) "Temporary" means a member of staff whose services
have been engaged for a limited period in connection with
work, which is essentially of a temporary nature or who is
employed temporarily as an additional staff in connection
with temporary increase in work of a permanent nature and
includes a Substitute who is appointed in the post of a
permanent member of staff or a Probationer who is
temporarily absent.
(4) "......"
(5) ACTING means the performance of duties on a
temporary basis, by a member of staff, in a post to which
another members holds a lien or which is vacant and
includes an acting appointment in place of a member of staff
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on deputation or training or instruction or for Undertaking
Business."
10. Rule 25 of The Gujarat Civil Services (Pension)
Rules, 2002 (hereinafter referred as `the Rules of 2002') reads
as under:
"25. Qualifying service:
Subject to the provisions of these rules, qualifying of a
Government employee, means and includes that -
(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 continences,
(c) service rendered in daily rated establishment,
(d) actual periods of break in service, if any, between spell
of service.
(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 it, as such is five years or more.
(iii) to (x) xxxxxx"
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11. Keeping the above provisions in mind, if the facts
of the present case are seen, then in the present case, the
petitioners were daily wagers i.e. they were temporary
employees of the AMTS, who worked from 1996-2001 but
later on they were not called for work from 2001-02 to 2006-
07. Thereafter, again they were called for work. The
petitioners approached the Industrial Tribunal for granting
permanency, which was allowed, however, the same was
quashed and set aside by this Court i.e. the petitioners, in
no way, can be said to be permanent employee, which is not
challenged by them and therefore the said order has attained
finality. Further, it is also not the case of the petitioners
that their services were converted into `acting service' or
`permanent service' on completion of five years of service.
12. It is also apparent from the record that the Union
and the Corporation have entered into a settlement
agreement under Section 2(p) of the ID Act on 19.7.2014,
which is accepted by the petitioners, wherein it was agreed
that the petitioners were given the benefit of regularization
with effect from 1.7.2014, which means that the petitioners
are treated as regular employees of the AMTS from 1.7.2014.
As the petitioners were treated as regular employees from
1.7.2014 and the new pension scheme was applicable to all
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those employees who were appointed after 1.4.2005, the
petitioners were given the benefit of the said scheme. By way
of this settlement, it is clear that the petitioners have agreed
to treat them as regular employees with effect from 1.7.2014.
13. In light of this background, the say of the
petitioners that they should be considered under the old
pension scheme as they have worked with the AMTS since
1996 cannot stand for the reasons:
(i) they were appointed as daily wage employees and
continued to work so from 1996-97 till 2001;
(ii) their services were given a break from 2001-02 to 2006-
07;
(iii) Rule 25 of the Rules of 2002 specifies in clause (c) and
(d) that the service rendered in daily rated establishment,
actual periods of break in service, if any, between spell of
service will not be considered for qualifying service for
pension;
(iv) the petitioners were regularized from 1.7.2014 as per the
settlement arrived between the Union and the AMTS which
is accepted by the petitioners;
(v) the new pension scheme came into effect from 1.4.2005
and the petitioners were regularized from 1.7.2014, which
means that the new pension scheme is applicable to them as
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they are regularized after 1.4.2005 and therefore the said
new pension scheme was made applicable to them;
(v) the amount deducted towards EPF by the Corporation and
kept in a separate account is deposited in the new pension
account of the petitioners.
14. A reference is made to the pension scheme floated
by the AMTS at par with government scheme with effect
from 1.1.1983. The relevant portion of the same reads as
under:
"Commencement of the pension scheme:-
It is decided to implement this pension scheme from
01/01/1983.
Entitlement of pension:-
The service discharged on the regular establishment from the
date of joining is considered pensionable.
Under the revised pension rules, the pensionable service is
depending upon the years of service rendered by the
employee. For this purpose, service tenure for less than six
months is not considered. But the service tenure of six
months and above is treated as a complete year.
Example:-
(1) 24 years - 2 months - 8 days treated as 24 years,
whereas,
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(2) 27 years - 6 months - 1 day is treated as 28 years.
All types of temporary or permanent services in any cadre
whether discharged continuously or with fractions on regular
establishment is considered pensionable."
15. In the present case, indisputably, the services
discharged by the petitioners from 1996 to 2001 and then
from 2007 onwards to 2014 till the 2(P) settlement is arrived
at, is on daily wage establishment and not on regular
establishment, therefore, as per the above scheme also, they
cannot be said to be qualifying for old pension scheme.
16. Strong reliance is place by the learned advocate
for the petitioners on the decision of this Court dated
28.4.2017 passed in Special Civil Application No.1706 of 2014
which was further affirmed in Letters Patent Appeal No.871
of 2017 and allied matters and which was further affirmed
by the Hon'ble Apex Court and submitted that the issue
involved in these petitions is decided in the said matters and
therefore, these petitions should be allowed on the same line.
The learned Single Judge, the Division Bench and the
Hon'ble Apex Court have laid the observations in detail, to
which there cannot be any dispute, but this submission of
learned advocates for the petitioners cannot be accepted for
the reason that the petitioners therein were appointed as
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daily wagers, they were converted into acting employees, they
did not have any break in their service and there was no
agreement between the Union and the AMTS and even if the
years of work as daily rated employees was deducted, the
petitioners were putting in qualifying service and therefore
the matters were decided in their favour. In the case on
hand, at the cost of repetition, the petitioners were appointed
as daily wagers from 1996 to 2001 and from 2001-02 to
2006-07, no work was offered, their services were not
converted into `acting' or `permanent' after completion of five
years; they entered into a settlement to accept the
regularization from 1.7.2014, and accordingly, they were
regularized from 1.7.2014 and therefore the new pension
scheme was made applicable to them as it is floated by the
government with effect from 1.4.2005, These minor, in fact,
major changes, in the facts would not make the said
judgments applicable to the facts of the present case.
17. It is also required to be pointed out that in the
settlement, there is a mention that the members of the
Union would not raise any dispute in future in this regard.
The said settlement is entered in the year 2014, these
petitions are filed in the year 2019, 2020 and 2021. Be that
as it may, for the reasons mentioned hereinabove, the
petitioners are not entitled for the prayers prayed for in
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these petitions.
18. In view of the above discussion, these petitions are
required to be dismissed. Accordingly, dismissed. Rule is
discharged. Interim relief, if any, stands vacated.
(SANDEEP N. BHATT,J)
SRILATHA
