Gujarat High Court

Jivanbhai Nagarbhai Solanki vs State Of Gujarat on 25 June, 2025

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                             C/SCA/7030/2015                                                 ORDER DATED: 25/06/2025

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                                      IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                       R/SPECIAL CIVIL APPLICATION NO. 7030 of 2015

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                                                 JIVANBHAI NAGARBHAI SOLANKI
                                                             Versus
                                                    STATE OF GUJARAT & ANR.
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                      Appearance:
                      DEVANGI B SOLANKI(8888) for the Petitioner(s) No. 1
                      MS. SURBHI BHATI, AGP for the Respondent(s) No. 1,2
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                         CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                                                             Date : 25/06/2025
                                                              ORAL ORDER

1. Rule. The present petition is filed for seeking the

following reliefs:

"(a) YOUR LORDSHIPS be pleased to issue writ of mandamus or certiorari, or any other writ, order or direction, directing the respondents to immediately release the retirement benefits of the petitioner along with statutory interest as the said benefits are not paid to the petitioner since June-2014.

(b) YOUR LORDSHIPS be pleased to issue writ of mandamus or certiorari, or any other writ, order or direction, directing the respondents that the act of the respondents i.e. not clearing the papers of pension and approving the pension in favour of the petitioner after the date of retirement until date is illegal, improper and

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arbitrary and be pleased to deprecate the same.

(c) Pending admission hearing and final disposal of the petition, YOUR LORDSHIPS be further pleased respondents to to direct the release retirement benefits of the petitioner immediately so as the petitioner could livelihood. survive his

(d) YOUR LORDSHIPS be pleased to grant such other and further relief as may be deemed fit in the interest of justice."

2. Brief facts of the case as stated in the petition are

are as under:

2.1 It is the case of the petitioner that the petitioner

was working with the respondent no.2 since 13.06.1983

as Class-IV Servant. When the petitioner, has attained the age of superannuation, the petitioner was discharged

from the services. However, the petitioner was not being

paid any benefit pursuant to the superannuation like

Gratuity, GPF or CPF or Pension benefits.

2.2 It is further the case of the petitioner in this

petition that the petitioner was initially appointed Badli

employee and as the petitioner has completed more than

10 years of service as Badli employee, the services of the

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petitioner was regularized in the scale of 2550/- to 3200/-

by order dated 19.05.2005. In the said order, it is

specifically mentioned by respondent no.2 that the

petitioner will be entitled for the benefits which are

availed by the permanent employee of the respondent

no.2 like superannuation benefits, gratuity, GPF OR CPF.

The petitioner has completed more than 31 years

continuous uninterrupted service with the respondent no.2

and from 13.06.2014, the petitioner was discharged from

the services on the count of superannuation. It is further

the case of the petitioner in this petition that the

petitioner has persistently made the representations to

the respondents to release his retirement benefits

however, until date, no response to this representation is found. Pursuant to the representation dated 05.02.2015

by the petitioner, the Pension Officer by letter dated

25.02.2015 has informed the petitioner that the procedure

for approval of the pension and the preparation of the

pension papers are under process and after approval, it

will be paid to the petitioner. But, still it is not done,

hence, the present petition has been preferred.

3. Heard Ms. Devangi Solanki, learned advocate for

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the petitioner and Ms. Surbhi Bhati, learned Assistant

Government Pleader for the respondent Nos. 1 and 2 -

State.

4.1 Ms. Devangi Solanki, learned advocate for the

petitioner has, by referring to the various documents

annexed with the petition, submitted that though the

petitioner has reached at the age of superannuation, the

petitioner was discharged from service, however, the

petitioner was not paid any benefit pursuant to the

superannuation such as gratuity, GPF, CPF or

pensionary benefits. She has further submitted that the

petitioner has completed more than 10 years of service

as Badli employee, the services of the petitioner was

regularized in the scale of Rs.2550/- to Rs.3200/- by order dated 19.05.2005. She has further submitted that in the

said order of regularization, it is specifically mentioned

by respondent no.2 that the petitioner will be entitled to

get all the benefits which are granted to the regular

employee of the respondent No.2. She has further

submitted that it is also provided that the petitioner has

completed more than 10 years in service and his services

should be considered as pensionable service and all the

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benefits should be granted to him. She has submitted

that though such order is passed, the authority has not

considered the same and thereafter, the petitioner has

made representation that he has rendered 31 years of

continuous and uninterrupted service with the respondent

No.2. The petitioner is discharged from service on the

count of superannuation and, therefore, the representation

was made to grant all the benefit of retirement dues.

She has further pointed out that Pension Officer on

25.02.2015 has informed the petitioner that the procedure

for approval of the pension papers are under process and

after getting approval, the amount of pension will be

paid to the petitioner. Though the petitioner was retired

in the month of June 2014, pension papers have yet not been prepared, therefore, the present petition is filed to

get justice from this Court.

4.2 She has submitted that all the benefits are required

to be granted to the petitioner as per the judgments of

Co-ordinate Bench of this Court in the case of

Sugandhidevi Fakirchand Malaviya vs. State of Gujarat

reported in 2019 (0) AIJEL-HC 242216, and the Division

Bench of this Court in Letters Patent Appeal No.307 of

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2017 and allied matters vide order dated 28.02.2017,

whereby the Division Bench has decided almost similar

issue involved in the present petition. She has also

relied on the judgment of Co-ordinate Bench of this

Court rendered in Special Civil Application No.3488 of

2022 order dated 01.02.2024, whereby the Co-ordinate

Bench of this Court has decided issue in the case where

qualifying service was nine years, nine months and

twelve days were there with the respondent authority

and the Co-ordinate Bench of this Court has directed the

respondent authority to examine the case of that

petitioner about the pensionary benefits, etc.

4.3 She has referred to affidavit-in-rejoinder by pointing

out that as per Resolution dated 17.10.1988, the petitioner is required to be regularized on the date when

he has completed five years of service. She has further

referred the affidavit-in-rejoinder and relied upon the

judgment, which is annexed with affidavit-in-rejoinder

passed by the Co-ordinate Bench of this Court in Special

Civil Application No.213 of 2016 dated 06.06.2016,

whereby the Co-ordinate Bench of this Court has directed

to pay the gratuity benefit and she has submitted that

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ratio of that judgment is also applicable to the facts of

the present case. It is also pointed out that in view of

this, though subsequently, the amount of leave

encashment, group insurance and national pension

scheme has been considered by the respondent authority,

however, the same is not considered for the period from

the actual date of regularization of service of the

petitioner and, therefore, she has prayed to allow the

present petition.

5.1 Ms. Surbhi Bhati, learned Assistant Government

Pleader for the respondent Nos.1 and 2 - State has

strongly opposed the submissions made at the bar by

referred to the affidavit-in-reply and also tendered copy

of some documents received from the instructing officer, whereby it is stated that in April 2015, the amounts

towards LTC, leave encasement as well as group

insurance have been paid and thereafter, it is informed

to the concerned Treasury Office that the gratuity

amount to be paid to the petitioner in the year 2019

and thereafter, in the year 2023, Rs.2,79,188/- has been

paid towards 100% amount of pension towards National

Pension System (NPS) and, therefore, as such now,

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nothing is required to be paid moreover, she has pointed

out from the affidavit-in-reply that the petitioner was

called upon by the authorities by various letters dated

04.05.2015 and 27.04.2015 to co-operate and submit the

details of amount, which are required to be paid by the

authority for finalizing the pension of the petitioner. The

petitioner has in fact never turned up before the

authority and on the contrary, the petitioner is making

hue and cry before this Court regarding non-payment of

amount. It is also submitted that if the petitioner had

approached the authorities with necessary details as

called for and the necessary documents then the

authorities could have completed the formalities and his

case would have been processed further.

5.2 She has further submitted that petitioner is

claiming pension for 31 years of his service as petitioner

has never challenged the order dated 19.05.2005 granting

the regular appointment to the petitioner and petitioner

has failed to establish any policy of the Government of

releasing said benefit in his favour. Though the

petitioner shall be entitled to get the benefit under New

Definite Contributory Pension Scheme and not as per the

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prayer of the petitioner claiming GPF. She has referred

to the Resolutions dated 16.05.2005 and 21.03.2005, and

has submitted that in view of this Resolution, the

petitioner is not entitled to get the benefit of Old

Pension Scheme and hence, considering the said fact,

she has submitted that the present petition deserves to

be dismissed.

5.3 Lastly, she has submitted that the petitioner was

working as Badli employee and his services are taken by

the department whenever some regular employee was not

available. She has submitted that even after issuance of

notice by this Court, the officers went personally to the

house of the petitioner to inform him about the process

for pensionary benefits, however, the petitioner did not co-operate and, therefore, she has submitted that the

present petition deserves to be dismissed as no case is

made out in favour of the present petitioner.

6.1 I have considered the rival submissions made at the

bar by the respective parties. I have also considered the

fact that the petitioner was working as Badli employee.

It is also true that after filing of petition, on various

dates, the petitioner has received Rs.533 towards leave

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encashment, Rs.2,400/- towards travel allowance,

Rs.4,938/- towards group insurance and Rs.2,79,188/-

towards 100% amount towards national pension system

and Rs.71,640/- towards gratuity and total comes to

Rs.3,58,699/-, which has been received by the petitioner.

It is also required to be noted that petitioner has

rendered 31 years of service with the respondent

authority and vide order dated 19.05.2005, his service

was regularized. As per the Government Resolution, the

persons who are regularized/appointed after 01.04.2005,

he will be covered by New Pension Scheme.

6.2 For this contention raised by the respondent

authority, in this respect, it is required to refer the

judgment of Co-ordinate Bench of this Court in the case of Sugandhidevi Fakirchand Malaviya vs. State of

Gujarat reported in 2020 (2) GLR 1567, more

particularly, paragraphs 8 to 14 are relevant, as under:

"8. The petitioner is denied the benefit of pension since the respondent authorities have ignored her 5 years of service rendered by her on fixed pay. The petitioner was appointed vide order dated 18.08.2004 on ad hoc basis as Typist on the fixed pay of Rs.2500/- for a period of 5 years. Upon completion of satisfactory service of 5 years, the

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petitioner was regularized and she was placed in the regular pay-scale on 11.09.2009. Thereafter, on reaching the age of superannuation on 31.10.2014, she retired from service. The respondent authorities are calculating the period from 11.09.2009 to 31.10.2014 only as regular service by ignoring her past service which comes to less than 10 years. It is the case of the respondents that for being eligible for pension minimum 10 years regular service is required, hence she is not entitled for pension.

9. Thus, the respondents are denying the pension to the petitioner by ignoring her earlier service rendered as ad hoc from 2004 to 2009.

10. It is pertinent to note that by the Government Resolution dated 18.01.2017, the State Government promulgated that the service rendered by Class-III and IV employees on fixed pay basis for 5 years shall be considered for the purpose of promotion, seniority, higher pay-scale and also for retiral benefits. A specific proviso is made in this regard in para-2 of the Government Resolution dated 18.01.2017. Thus, in view of the policy of the State Government, the period rendered by the petitioner on ad hoc basis on fixed pay for 5 years cannot be ignored for the purpose of pension in light of the aforesaid policy.

11. At this stage, it would be relevant to incorporate the provisions of Rule 25 of the Gujarat Civil Services (Pension) Rules, 2002 (for short "the Rules), which read as under:

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"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 contingences,

(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 in, as such is five years or more,

(iii) foreign service,

(iv) vacation taken by Government employee in vacation department,

(v) all periods of leave including extraordinary leave upto a maximum of thirty six months during entire service,

(vi) addition to qualifying service admissible under rule-37,

(vii) services rendered as Kotwal by a Government employee after regular appointment in the regular time scale.

(viii) services rendered as full time attendant by a Government employee before his regular appointment in class IV service, and

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(ix) services rendered under Central Government/Central Government Autonomous bodies having pension scheme, by a Government employee who is absorbed in Government.

(x) Pensionable service rendered by an employee in a grant-

in-aid institution the pension liability in respect of which is borne by the Government to the extent as may be ordered by the Government from time to time."

Rule 25 of the Rules stipulates that all service, including service on probation rendered on a regular establishment in any capacity whether, temporary or permanent, interrupted or continuous shall be considered as qualifying service except the service provided from clause (a) to (h). Sub Rule (viii) of Rule 25 of the Rules provides that the services rendered as full time attendant by a Government employee before his appointment as Class-IV employee shall be counted as qualifying service.

12. In the present case, the petitioner was placed in a regular pay-scale vide order dated 11.09.2009 and hence, her earlier ad hoc service cannot be ignored. The case of the petitioner stands on better traction than those Class-IV employees as mentioned in the Rule (viii) of Rule 25 of the Rules, since the petitioner was a Class-III employee and the aforesaid rule stipulates about considering the period rendered by a Class-IV employees as a full time attendant before his regular appointment is required to be counted towards qualifying service.

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13. The Supreme Court in the case of Prem Singh (supra) has observed thus:

"30. In the aforesaid facts and circumstances, it was unfair on the part of the State Government and its officials to take work from the employees on the work-charged basis. They ought to have resorted to an appointment on regular basis. The taking of work on the work- charged basis for long amounts to adopting the exploitative device. Later on, though their services have been regularized. However, the period spent by them in the work-charged establishment has not been counted towards the qualifying service. Thus, they have not only been deprived of their due emoluments during the period they served on less salary in work charged establishment but have also been deprived of counting of the period for pensionary benefits as if no services had been rendered by them. The State has been benefitted by the services rendered by them in the heydays of their life on less salary in work- charged establishment.

31. In view of the note appended to Rule 3(8) of the 1961 Rules, there is a provision to count service spent on work charged, contingencies or non pensionable service, in case, a person has rendered such service in a given between period of two temporary appointments in the pensionable establishment or has rendered such service in the interregnum two periods of temporary and permanent employment. The work-charged service can be counted as qualifying service for pension in the aforesaid exigencies."

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The Supreme Court has observed that period spent by the employees in the work-charged establishment has not been counted towards the qualifying service and thus, they have not only been deprived of their due emoluments during the period they served on less salary in work charged establishment but have also been deprived of counting of the period for pensionary benefits as if no services had been rendered by them. The Supreme Court has also observed that the State has been benefitted by the services rendered by them in the heydays of their life on less salary in work- charged establishment.

14. Thus, the petitioner cannot be made to suffer on two counts (1) she is not granted any regular salary and she is appointed on ad hoc basis on fixed wages and (2) thereafter she is also denied the pensionary benefits for the aforesaid period. The State Authorities are benefitted by her service and it is not the case that she was appointed as a back door entry. The respondent department, in which she was serving is also a pensionable establishment. Once the service of the petitioner has been regularized, her earlier service cannot be ignored for the purpose of pension, as the continuity of service is counted from the date of initial appointment not from the date, she is placed in the regular pay scale."

6.3 It also also fruitful to refer the judgment of the

Division Bench of this Court in Letters Patent Appeal

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No.307 of 2017 and allied matters vide dated 28.02.2017,

more particularly, paragraphs 12 to 14 are relevant, as

under:

"12. Learned advocate Mr. Amin further submitted that the concerned petitioners were appointed somewhere between 1968 to 1970 and their services were thereafter transferred to the Corporation and they were absorbed in the Corporation from a particular date. Thus, the State Government as well as the District Panchayat ought to have considered their continuous service from the date of their initial appointment. Thus, it is not correct on the part of the appellant to contend that the concerned petitioners have not completed qualifying service of 10 years. Learned advocate Mr. Amin has, therefore, submitted that the learned Single Judge has not committed any error while passing the impugned judgment and therefore these appeals be dismissed.

13. Having considered the submissions canvassed on behalf of the learned advocates appearing for the parties and having gone through the material produced on record, it emerges that the petitioners were appointed in the District Panchayat or in the Irrigation Department and because of the Resolution dated 08.06.1978 all the activities pertaining to tubewells/irrigation which were made under the Panchayat/Government, were transferred to the Corporation and entire staff including the petitioners came to be transferred to the Corporation and thereafter on 14.10.1981

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resolution was issued by the respondent Government, whereby options were invited and those employees who did not exercise their options were treated to be the employees of the Corporation. The concerned petitioners have served with the Corporation and on attaining the age of superannuation, they retired from service. At the time of retirement, the Corporation has granted all the retiral benefits including CPF, leave encashement, gratuity, etc. Thus, we are of the view that the direction issued by the learned Single Judge to the appellant Corporation to pay the pensionary benefits is required to be modified by clarifying that the appellant Corporation is not liable to pay the pensionary benefits to the petitioners. Orders accordingly.

14. However, so far as the appellant District Panchayat in Letters Patent Appeal No.307 of 2017 is concerned, the original petitioner in the said petition served with the District Panchayat for more than 8 years and 7 months. However, because of the resolution passed by the Government, services of the said petitioner were transferred to the Corporation and he was absorbed in the Corporation. The contention of the learned advocate Mr. Munshaw that petitioner has not completed qualifying service of 10 years is misconceived, as for calculating the qualifying service, the services rendered by the petitioner from the date of his initial appointment till the date of his retirement is required to be counted. However, it is to be clarified at this stage that when the petitioner has completed service of 8 years and 7 months, he is entitled to the benefit of pension for the said period and for the purpose of qualifying service his

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continuous service is required to be taken into consideration. Thus, we are of the view that all the petitioners are eligible for pensionary benefits for the period for which they have worked with the State Government or the District Panchayat, as the case may be."

6.4 It also also fruitful to refer the judgment of Co-

ordinate Bench of this Court rendered in Special Civil

Application No.3488 of 2022 dated 01.02.2024, more

particularly, paragraphs 2, 4 and 6 are relevant, as

under:

"2. Learned Advocate Mr.Ghavariya for the petitioner would submit, at the outset, that the issue is squarely covered by the decision of the Hon'ble Division Bench of this Court in a common order dated 28.2.2017 passed in LPA No.307 of 2017 and allied matters. It is submitted by learned Advocate Mr.Ghavariya that the petitioner is claiming benefit of grant of pension on account of having completed qualifying service of 9 years 9 months and 12 days with the respondent State and whereas according to learned Advocate, the Hon'ble Division Bench, after examining the relevant Rules in similar situation had passed an order, directing the respondents to pay pension to the employee for the period of service rendered by the employee with the State Government. It is submitted by learned Advocate for the petitioner that the law laid down by the Hon'ble Division Bench has been accepted by the State, more particularly no

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appeal having been filed thereupon and the benefits having been granted to the appellant therein.

4. Having heard the learned Advocates for the respective parties and having perused the decision of the Hon'ble Division Bench of this Court in LPA No.307 of 2017 dated 28.2.2017, it would appear that identical issue was being heard by the Hon'ble Division Bench and whereas even in cases where employees had completed less than 10 years of qualifying services, the Hon'ble Division Bench had directed the respondent State to pay pension to such employees for the period of services rendered by them.

6. Having regard to the above, the following directions are passed :-

6.1. The respondent State in consultation with the respondent Gujarat Water Resources Development Corporation shall examine the case of the petitioner, more particularly examine the period of service rendered by the petitioner with the respondent State Government and whereas the petitioner thereafter shall upon the examination be paid pension equivalent to the services rendered by the petitioner, by the State Government; 6.2. Such examination and appropriate payment of pension along with arrears of pension shall be done by the respondents within a period of four months from the date of receipt of this order;

6.3. It is clarified that it is the State Government, which has to pay pensionary benefits to the petitioner and not the respondent Corporation."

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6.5 Considering the same, I am of the view that though

the State is coming with the policy but it cannot be said

that the petitioner has not worked for 31 years though

as Badli employee.

6.6 At this stage, it would be relevant to refer the

provisions of Rule 25 of the Gujarat Civil Services

(Pension) Rules, 2002, which reads as under:

"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 contingences,

(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

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provided that the total service put in, as such is five years or more,