Gujarat High Court
Smita Somabhai Patel vs State Of Gujarat on 14 July, 2025
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C/SCA/12873/2020 ORDER DATED: 14/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 12873 of 2020
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SMITA SOMABHAI PATEL
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR. NISARG D SHAH(7299) for the Petitioner(s) No. 1
MR HENIL SHAH AGP for the Respondent(s) No. 1
NOTICE SERVED for the Respondent(s) No. 1,2,3,4
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 14/07/2025
ORAL ORDER
1. The present petition is filed with the
following prayers as under :
a) That the impugned order dated 18.12.2018 passed
by the respondents is neither legal nor proper and
requires to be quashed and set aside.
b) That the respondents have erred in interpreting
the GR dated 11.05.2001, the said resolution applies
to the officers who were retired between 14.11.1991
to 16.10.1994. The GR dated 11.05.2001 states that
the Medical Officers will not be given concurrent
benefits of senior scale of Tiku Pay Commission
simultaneously. Admittedly the said is not case of the
petitioner.
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c) That the respondents have erred in not
appreciating that the resolution dated 11.05.2001 is
not applicable in the case of the petitioner as GR
dated 17.10.1994 under which, the benefits of the
Tiku Pay Commission were extended does not curtail
the said benefits upon voluntary retirement. The GR
dated 17.10.1994 under which, the benefits of Tiku
Pay Commission were extended to the petitioner
relates to the Promotion and not Voluntary
Retirement.
d) That the orders dated 20.02.2003 under which, the
benefits of Tiku Pay Commission were granted to
petitioner does not state such condition.
e) That the respondents have erred in
misinterpreting the resolution dated 11.05.2001 as the
last paragraph of the said resolution clearly states
that it applies to the retired deceased or the officers
who were voluntary resigned between the periods
14.11.1991 to 16.10.1994, therefore, the same does not
apply to all.
f) That the respondents have erred in reading the
relevant clause of the resolution dated 11.05.2001 in
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isolation. If the same is read in contest, it reveals
that the condition of the voluntary retirement will be
applicable for the officers who have retired between
the periods 14.11.1991 to 16.10.1994.
g) It is submitted that the writ petition being SCA
No. 12033 of 2014, involving similar issue was came
up for consideration before this Hon'ble Court and
vide order dated 20.07.2015 the Hon'ble Court was
pleased to allow the petition and further the LPA
No. 1469 of 2015 was filled challenging the order in
SCA No. 12033 of 2014 was dismissed vide order
dated 16.01.2017 and the said order came to be
Hon'ble Apex Court and the Hon'ble Apex Court
dismissed the petition vide order dated 17.07.2017.
Annexed hereto and marked as Annexure-K is a copy
of the order passed in SCA No. 12033 of 2014 dated
20.07.2015. Annexed hereto and marked as Annexure
L is a copy of the order passed in LPA No. 1469 of
2015 dated 16.01.2017. Annexed hereto and marked
as Annexure-M is a copy of the order dated
17.07.2017.
h) It is submitted that the writ petition being SCA
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No. 5361 of 2017, involving similar issue was came
up for consideration before this Hon'ble Court and
vide order dated 06.12.2017 the Hon'ble Court was
pleased to allow the petition as well as SCA No.
5362 of 2017 vide order dated 02.12.2017 and SCA
No. 18398 of 2018 vide order dated 01.05.2019.
Annexed hereto and marked as Annexure N is a
copy of the order passed in SCA No. 5361 of 2017
dated 06.12.2017 as well as SCA No. 5362 of 2017
vide order dated 02.12.2017 and SCA No. 18398 of
2018 vide order dated 01.05.2019.
i) That in any view of the matter the impugned
order is bad in law and requires to be quashed and
set aside.
2. Heard learned advocate Mr. Nisarg D. Shah for
the petitioner, learned AGP Mr. Henil Shah for
respondent No. 1, the advocates have submitted that the
issue in petition is covered by order passed in SCA
5361 of 2017 and accordingly, this petition can be
disposed of.
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Therefore reproducing the relevant paragraphs in order
passed in SCA No. 5361 of 2017 as under:
3. "By filing the present petition, petitioner has
prayed to set aside order dated 06 February, 2017
passed by respondent No.1 denying to the petitioner the
benefits of Tiku Pay Commission while calculating
petitioner's retirement benefits. It is prayed to forthwith
release the retirement dues with such benefits.
The petitioner was initially appointed on ad-hoc
th
basis as Class Il Medical Officer on 08 November,
1996 with State Government in the office of
Medical Services, Employees State Insurance
Scheme, Ahmedabad. Her services came to be
th
regularised as per order dated 24 March, 2005
and by passing consequential order, she was given
continuity of service with effect from 08th
November, 1996 for the purpose of extension of
benefits of salary and pension. The petitioner took
th
voluntary retirement on 11 February, 2017.
The State Government passed Resolution dated
th
17 October, 1994 giving the benefits of the Tiku
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Pay Commission recommendations to the categories
of Medical Officers which included (i) who services
as Medical Officers upon completion of continuous
six years of service which were the first Tiku Pay
Commission benefits; (ii) who completed further
seven years of continuous service making total of
thirteen years of continuous service being the
second Tiku Pay Commission benefits. The
petitioner was given the first Tiku Pay
Commission benefits with effect from 08th
November, 2002 and the second with effect from
08th November, 2009.
It is the case of the petitioner that on account
of personal reasons, she decided to take voluntary
th
retirement by making application dated 10
th
November, 2016 which was accepted on 06
February, 2017. However, while permitting the
petitioner to retire voluntarily, a condition was put
that the Tiku Pay Commission benefits would be
withdrawn and such benefits came to be
th
withdrawn citing Government Resolution dated 11
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May, 2001. This was provided in the order dated
th
06 February, 2017 itself. It is for this grievance
that the present petition has filed.
Learned advocate for the petitioner inter alia
submitted as under.
th
The Government Resolution dated 17
October, 1994 under which, the benefits of
Tiku Pay Commission are extended to the
Medical Officers does not curtall the same
upon taking voluntary retirement. The
th
Government Resolution dated 17 October,
1994, under which the Government decided
to extend the benefits to the Medical
Officer relates to promotion and not the
retirement;
The application of Government Resolution
th
dated 11 May, 2001 is erroneous as the
perusal of the said G.R. Reveals that-
(i) the Medical Officer may not be
given concurrent benefits, that is benefits
of senior scale and Tiku Pay Commission
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th
at the same time. The G.R. dated 11
May, 2001 was specifically issued to clarify
the position with regard to the officers
who are getting the concurrent benefits,
th
(ii) The G.R. dated 11 May, 2001
states that the Officers resigned or
th
voluntary retired between the period 14
November, 1994 will not be eligible for the
benefits of Tiku Pay Commission as the
same amounts to (concurrent) double
benefits. The case of the petitioner does
not fall in the said category.
On the other hand, the respondents defended
their decision by relying on affidavit-in-reply which
was filed in Special Civil Application No.5360 of
2017 being a cognate petition involving the
identical issue filed by similarly placed person
which is also decided separately by order of even
date along with third cognate petition being
Special Civil Application No.5362 of 2017, all
decided by separate but order of even date.
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Even as the rivals drew their contentions, it
could not be denied that similar issue had arisen
and dealt with by this Court in Harish Dunichand
Chandrani v. State of Gujarat being Special Civil
Application No.12033 of 2014 decided as per order
th
dated 20 July, 2015 where too the petitioner
claimed benefits of Tiku Pay Commission, but the
same was denied on the ground of the said
petition having taken voluntary retirement. The
said petitioner opted for voluntary retirement on
medical ground having suffered stroke of paralysis
and resultant permanent disability. The said order
was challenged in Letters Patent Appeal No.1469
of 2015 which was dismissed by the Division
th
Bench by judgment dated 16 January, 2017.
Extracting the relevant paragraphs from the
Judgment of the Letters Patent Bench,
7. From a reading of Government Resolution dated 11.05.2001 it
is clear that Medial officers are not entitled to dual benefits of
senior scale as well as the benefit of the recommendations of Tiku
Pay Commission, Without going into the controversy, namely,
whether the period from 14.11.1991 to 16.10.1994 applies to the
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case of the respondent or not, it is clear from the Government.
Resolution itself that it is issued to clarify that the Medical
officers are not entitled to the dual benefit of senior scale as well
as the recommendations of Tiku Pay Commission. As it is not
disputed that the respondent, was not entitled to the benefit of
senior scale, there is no reason or Justification for denying the
benefits of recommendations of Tiku Pay Commission. When the
the respondent-original petitioner has not availed any benefit of
senior scale, in which event the question of double benefit will not
arise so as to apply Government Resolution dated 11.05.2001.
8. There is also yet another reason to reject this appeal. There is
specific averment made in paras 10 and 11 of the petition by the
respondent- original petitioner stating that similarly placed persons
to that of the respondent-original petitioner, namely, (1) Dr.A.J.
Oza, (ii) Dr.Hemant B. Patel, and (iii) Dr.M.J. Gupta, who have
voluntarily retired as Class-II officers were also extended the
benefit of the recommendations of Tiku Pay Commission for
pensionary benefits, but the same was not dealt with in the reply
filed by the appellants herein in the petition. As much as the
appellants have not rebutted such allegations in the reply, they
have to be taken as admitted facts. In that view of the matter
there is no reason or justification to make differentiation among
similarly placed officers for the purpose of extending the benefit of
the recommendations of Tiku Pay Commission. The learned Single
Judge has also taken note of such discrimination among similarly
placed persons while allowing the petition filed by the respondent
original petitioner.
9. It is clear for us that Government Resolution dated 11.05.2001
cannot be applied to the case of the respondent and further
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similarly placed persons to that of the respondent were already
extended the benefit of the recommendations of Tiku Pay
Commission, we are of the view that there is no reason or
justification in denying such benefit to the respondent-original
petitioner, who had served the appellant-Department from
st
September 1985 to 31 December 2013 as Medical Officer Class-II.
It is needless to observe that he was compelled to take voluntary
retirement in view of disability suffered by him on account stroke
which resulted into disability of paralysis to the extent of 75%.
10. For the aforesaid reasons we are of the view that no error is
committed by the learned Single Judge so as to interfere with the
order of the learned Single Judge dated 20.07.2015 passed in
Special Civil Application No.12033 of 2014. For the aforesaid
reasons this Letters Patent Appeal is devoid of merits. The same
is dismissed accordingly. No order as to cost."
The Division Bench of this Court dealt with the
very issue in yet another case in State of Gujarat
v. Dr. Arpita Nitinkumar Dave being Letters
Patent Appeal No. 1753 of 2017 arising from
decision in Special Civil Application No.2165 of
2016 in which a contention was sought to be
advanced on behalf of the respondent-State seeking
to distinguish the judgment in Letters Patent
Appeal No.1469 of 2015 on the ground that
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voluntary retirement of the said employee-the
petitioner concerned was on the medical ground
that he has suffered disability because of paralysis.
The Division Bench rejected such distinction and
confirmed the order according the Tiku Pay
Commission benefits which were denied on the
th
basis of Resolution dated 11 May, 2001 on the
ground of taking voluntary retirement. Not only
that the issue attained finality with the Apex
th
Court dismissing Special Leave to Appeal on 17
July, 2017 being Diary No.18150 of 2017 arising
from aforementioned Letters Patent Appeal No.1469
of 2015 in Special Civil Application No. 12033 of
2014."
4. In light of above, the petition is allowed by
directing the respondents to recalculate and fix the
retiral benefits to the petitioner by giving benefit of
Tiku Pay Commission recommendations and to pay the
arrears to the petitioner within a period of 10 weeks
from the date of receipt of this order.
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5. The petition stands allowed as above. Direct service is
permitted.
(SANDEEP N. BHATT,J)
PD
