Gujarat High Court
Pratimaben Y Jani vs State Of Gujarat on 20 November, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 13000 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT Sd/-
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Approved for Reporting Yes No
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PRATIMABEN Y JANI
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR YOGEN N PANDYA(5766) for the Petitioner(s) No. 1
MS. FORUM SUKHADWALA, ASST. GOVERNMENT PLEADER for
the Respondent(s) No. 1,2,3,4,5,6
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 20/11/2025
ORAL JUDGMENT
[1] With the consent of the parties, the present
Writ Petition is taken up for hearing.
[2] Heard Mr. Yogen Pandya, learned advocate for
the petitioner as also Ms. Forum Sukhadwala, learned
AGP for the respondent - State and its authorities, at
length.
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[3] The present Writ Petition is filed under Articles
14, 16 and 226 of the Constitution of India, seeking
following reliefs:
"[a] This Honourable Court may be pleased to issue a writ of
mandamus or any other appropriate writ, order or direction to direct the
respondent authorities to treat the period of six days break in service
from 1.10.1971 to 7.10.1971 as qualifying service and to treat the entire
period of service from 11.3.1965 to 31.12.1999 rendered by the
petitioner's husband as pensionable service and accordingly to release
the regular increments, higher pay scales and fix pension as well as
family pension of the petitioner;
[b] This Honourable Court may be pleased to issue a writ of mandamus
or a writ in the nature of mandamus or any other appropriate writ,
order or direction, quashing and setting aside the impugned action on
the part of the respondent authorities in not releasing the higher pay
scale to the petitioner and declare that the petitioner is not required to
attend and pass the departmental examination as per the Government
Resolution dated 16th August 1994;
[c] This Honourable Court may be pleased to issue a writ of mandamus
or any other appropriate writ, order or direction to direct the respondent
authorities to immediately complete the exercise of fixing the pay of the
petitioner's husband after granting him the benefit of first higher grade
pay scale as on 1st June 1987 as he completed period of nine years on
the post of Surveyor and second higher grade pay as on 1st June 1996
as he completed 18 years of service on the post of Surveyor with all
consequential benefits including that of revised pay scale;
[d] This Honourable Court may be pleased to issue a writ of mandamus
or any other appropriate writ, order or direction to direct the respondent
authorities to pay interest on the delayed payment of arrears and family
pension on the basis of Government Resolution dated 5th July 1991 at
the rate of 12% per annum from the date of accrual of such benefit in
favour of the petitioner till actual payment within a period of 3 months
considering the fact that the petitioner is aged widow lady and is
suffering from serious ailments;
[e] Pending admission and final disposal of this petition the Honourable
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Court may be pleased to direct the respondent authorities to deposit the
difference amount and interest as calculated on the basis of refixation
of the salary of the petitioner's husband before this Honourable Court
and also fix pay, revision pension/family pension to the petitioner
regularly;
[f] This Honourable Court may be pleased to grant any other relief or
pass any other order which the Honourable Court may consider as just
and proper in the facts and circumstances of the case.
[g] costs of the petition be provided for from the respondents jointly and
severally;"
FACTS OF THE CASE
[4] The shorts facts of the case appear to be that
the petitioner happens to be wife of late Shri
Yagneshkumar Jani, who initially joined services with
respondents - authorities as Uttara Clerk-cum-Surveyor
on 11.03.1965 and worked in the Office of Superintendent
of Land Record, Ahmedabad. As husband of the petitioner
(hereinafter referred to as "deceased employee") could
not pass departmental examination, vide communication
order dated 22.09.1971 passed by the Superintendent of
Land Record, Ahmedabad, services of deceased employee
discontinued by relieving him from said post on
30.09.1971.
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[4.1] In the meantime, it appears that deceased
employee got appointed by Superintendent of Land
Record, Vadodara as Surveyor vide its order dated
27.09.1971 with same pay-scale which he was drawing
when relieving from service. The record suggests that he
joined the Office of Superintendent of Land Record,
Vadodara on 07.10.1971 and retired on 31.12.1999 on the
post of Supervisor.
[4.2] According to the case of the petitioner,
deceased employee having joined the service on
11.03.1965 and worked till 31.12.1999, there was a break
in service of around 6 days between 01.10.1971 to
06.10.1971. Nonetheless, to calculate pensionary
benefits, entire service of deceased employee ought to
have been considered by the respondent, thereby, 34
years of service of deceased employee requires to be
considered as qualifying service for granting pensionary
benefits.
[4.3] Further, deceased employee having not been
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paid higher pay-scales during his entire service tenure
and as such, not received any benefits as per Government
Resolution dated 16.08.1994, whereby deceased
employee entitled to receive 1st and 2nd higher grade pay-
scale, having completed at least 9 years each of service
from 01.06.1987 till 31.12.1999.
[4.4] As aforesaid, service benefits have been not
paid by the respondents, rather denied vide
communication order dated 28.03.2013 by holding that
there was a break in service, thus, previous service of
deceased employee from 11.03.1965 till 30.09.1971
cannot be considered for calculating pensionary service.
So far as not granting higher pay-scale is concerned, only
reason assigned that deceased employee having not
cleared departmental examination, not entitled to receive
any higher pay-scale.
[4.5] Being aggrieved and dissatisfied with the
aforesaid decision of respondent No.3 - Settlement
Commissioner & Director of Land Records, the present
Writ Petition has been filed for the aforestated reliefs:
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SUBMISSIONS ON BEHALF OF THE PETITIONER
[4] Mr. Yogen Pandya, learned advocate for the
petitioner would respectfully submit that respondents -
authorities have completely misinterpreted Rule 34 of the
Gujarat Civil Services (Pension) Rules, 2002 (hereinafter
referred to as 'the Pension Rules, 2002'), thereby,
committed serious error in law by not considering the
period of service of deceased employee from 11.03.1965
to 30.09.1971.
[4.1] Mr. Pandya, learned advocate would
respectfully submit that as per Rule 34 of the Pension
Rules, 2002, unless there are specific entries regarding
break in service in the service record of the Government
employee, all service from the date of entry to the date of
retirement shall be treated as continuous. It is submitted
that in the case of deceased employee, there is only one
service book maintained by the respondents - authorities
wherein also there is no entry as regards any break in
service recorded.
[4.2] Mr. Pandya, learned advocate would
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respectfully submit that assuming without admitting that
there was an interruption in service but considering the
period of interruption i.e. 6 days only (01.10.1971 to
06.10.1971), as per Rule 34(1) of the Pension Rules,
2002, such interruption would be calculated in the
service and requires to be treated as qualifying service.
[4.3] Mr. Pandya, learned advocate would
respectfully submit that considering Rule 34 of the
Pension Rules, 2002, deceased employee would entitle to
receive pension by considering his qualifying service from
1965 till 1999, and thereby, respondents - authorities
require to consider 34 years of uninterrupted service of
deceased employee and accordingly, pension & family
pension require to be paid to him, in turn, to petitioner.
[4.4] Mr. Pandya, would respectfully submit that
deceased employee was wrongly denied benefit of G.R.
dated 16.08.1994, whereby respondents have wrongly
denied the benefits of not granting higher pay-scale to
him. It is submitted that as per aforesaid G.R., it is
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nowhere suggested that to get higher pay-scale,
employee concerned requires to undergo any
departmental examination. It is submitted that as per
aforesaid G.R., only to get promotion, it was compulsory
to clear departmental examination but relaxation to
employee crosses the age of 45 years on 05.07.1991
granted whereby not required to participate in such
examination. It is submitted that undisputedly, deceased
employee was more than 45 years as on 05.07.1991, as
born on 18.12.1941.
[4.5] Mr. Pandya would respectfully submit that as
per aforesaid G.R., 9 years of service had been completed
by deceased employee on 01.07.1987 having joined in the
service on 11.03.1965 or as the case may be on
07.10.1971, thereby, entitled to receive 1st higher grade
pay-scale and thereafter, on completion of further 9 years
of service, entitled to receive 2nd higher grade pay-scale
as he retired from service on 31.12.1999. It is respectfully
submitted that the respondents have incorrectly stated in
its reply that, to get higher grade pay-scale, deceased
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employee requires to clear departmental examination.
[4.5] To buttress his arguments, Mr. Pandya, learned
advocate has placed on record the photo copy of service
book of deceased employee, which is ordered to be taken
on record.
[4.6] Thus, making the aforesaid submissions, Mr.
Pandya, learned advocate for the petitioner would
request this Court to allow the present Writ Petition.
SUBMISSIONS ON BEHALF OF THE RESPONDENTS
[5] Per contra, Ms. Forum Sukhadwala, learned AGP
would respectfully submit that there is no error
committed by respondent No.3 while issuing
communication dated 28.03.2013 and as such, there is no
merit in the present petition which may be dismissed.
[5.1] Learned AGP would respectfully submit that
undisputedly, there was break in service, inasmuch as,
deceased employee was relieved earlier from his past
service i.e. 30.09.1971, whereas, he joined service at
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Superintendent of Land Record at Vadodara as Surveyor
on 07.10.1971. Thus, there was a break of around 6 days
in the service.
[5.2] Learned AGP would further respectfully submit
that it is not even the case of the petitioner that deceased
employee in his previous employment, either deputed as
Surveyor in the aforesaid Office or by retaining the
previous service allowed to join the aforesaid Office and
in that view of the matter, no benefits of Rule 34 of the
Pension Rules, 2002 can be granted.
[5.3] Learned AGP would further submit that as
deceased employee was removed from his past service
vide its order dated 22.09.1971, on the ground that he did
not clear the departmental examination and as per Rule
32 of the Pension Rules, 2002, in a case of removal of a
Government employee from service would entail
forfeiture of his past service unless specific entry to the
contrary being made in the service record, which is none
in the present case.
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[5.4] Learned AGP would respectfully submit that
merely because there is one service book maintained by
the respondent - authority, of the deceased employee
would not ipso facto entitle the petitioner to claim any
benefits of Rule 34 of the Pension Rules, 2002.
[5.5] Learned AGP would respectfully submit that
deceased employee unable to clear departmental
examination during his life time, he was not entitled to
receive higher pay-scale as alleged. It is respectfully
submitted that benefits of exemption from appearing in
departmental examination, having crossed the age of 45
years as on 05.07.1997, would not apply in the case of
deceased employee as prior to such date, on number of
occasions, deceased employee given chance/s to clear
departmental examination but he failed.
[5.6] Making the aforesaid submissions, learned AGP
would request this Court to dismiss the present Writ
Petition.
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[6] POINTS FOR DETERMINATION.
I. Whether deceased employee would entitle to get
benefit of Rule 34 of the Pension Rules, 2002 and
as such, respondents authorities require to
consider service period of deceased employee
between 11.03.1965 to 31.12.1999 as qualifying
service to receive pension, or not?
II. Whether to receive any higher grade pay-scale as
per G.R. dated 16.08.1994, deceased employee
requires to clear departmental examination or not?
ANALYSIS
Point No. I
[7] The facts which are observed hereinabove, are not in
dispute. The deceased employee joined the services of
respondent on 11.03.1965 as Clerk-cum-Surveyor,
although worked in Superintendent of Land Record,
Ahmedabad till 30.09.1971 as he could not clear
departmental examination, so vide order dated
22.09.1971 relieved from his service.
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[7.1] At the same time, Superintendent of Land
Record, Vadodara appointed him vide its order dated
27.09.1971 as a Surveyor in its Office. It is not in dispute
that deceased employee joined such service on
07.10.1971. As per service book of deceased employee
produced on record by learned advocate Mr. Pandya,
would clearly show that there is only one service book
maintained by respondent for aforesaid employment/s of
deceased employee. The entry in the service book would
not suggest that there is any new employment given to
deceased employee by Superintendent of Land Record,
Vadodara, having allowed him to join service on
07.10.1971 as Surveyor.
[7.2] Having scanned the service book of deceased
employee, it is not even remotely found that respondent
authority at given point of time, treated subsequent
appointment of the deceased employee vide its order
dated 27.09.1971 as afresh / new appointment.
[7.3] To get the things more clear and so that there
would remain no scintilla of doubt in anyone's mind, this
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Court called upon learned AGP Ms. Forum Sukhadwala to
submit original copy of service book of deceased
employee. Learned AGP, through one Mr. J.S.Kadia,
Survey-Mamlatdar-2, Ahmedabad, produced the original
service book of deceased employee for ready perusal of
this Court. Even after going through the original service
book, there is no change as photo copy of original service
book already produced on record by learned advocate Mr.
Pandya, and it is accurate-one.
[7.4] At this stage, it would be apt to refer Rules 32
& 34 of the Pension Rules, 2002, which read as under:
"32. Forfeiture of service on dismissal or removal: Dismissal of a
Government employee from a service or post entails forfeiture of his past
service. Removal of a Government employee from service or post entails
forfeiture of his past service unless specific entries to the contrary are made in
the service records.
34. Interruption in service : (1) Unless there are specific entries regarding
break in service in the service record of the Government employee, all
service from the date of entry to the date of retirement shall be treated as
continuous - subject to the condition that in case if there is interruption in
service of a period of more than three months, the entire interruption shall be
disregarded while working out the qualifying service, interruption upto three
months being treated as qualifying service.
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(2) All unauthorised absences not regularised by grant of leave and all leave
of any kind granted for a continuous period exceeding five years shall
constitute a brake in service and shall be dealt with as per sub-rule (1)."
The plain reading of Rule 34(1) of the Pension Rules,
2002 suggests that unless there is any specific entry as
regards break in service in the service record of the
Government employee, all service from the date of entry
to the date of retirement shall be treated as continuous.
Even interruption of service upto 3 months requires to be
treated as qualifying service. In the present case, there is
hardly 6 days interruption in service between period
01.10.1971 till 06.10.1971.
[7.5] The service book, as observed hereinabove,
would not remotely record the break in service and no
such entry is found in it. No adverse legal presumption
can be drawn in regards to break in service unless
service record of the Government employee maintained
by respondents - authorities would suggest the same.
Likewise, even though deceased employee relieved from
his previous service, but except putting such entry, there
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was no closure of service book due to such removal,
rather service book continued with other entries of
subsequent appointment etc., would draw inference that
there was no intention on part of respondent-State to
forfeit earlier service.
[7.6] In view of the aforesaid, when service record of
deceased employee would indicate that respondents
authorities have not treated any break in service of
deceased employee, at least not recorded in the service
book, non-consideration of his service between
11.03.1965 to 30.09.1971 would nothing but serious error
of law on the part of the respondents, thereby, denied
legitimate right of deceased employee / petitioner, to
receive pension / family pension respectively.
[7.7] Thus, considering the aforesaid peculiar facts
and circumstances of the case and having found that
there is no break in service but only interruption of
service of deceased employee i.e. only period of 6 days, in
view of Rule 34(1) of the Pension Rules, 2002, the
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services rendered by the deceased employee between
11.03.1965 to 30.09.1971 requires to be considered by
the respondent - authority as qualifying service and so
also, period between 01.10.1971 to 06.10.1971 having
interruption in service shall be treated as qualifying
service.
[7.8] So, while calculating the pensionary benefits
of deceased employee and so also granting family pension
to petitioner, respondents - authorities concerned require
to consider qualifying service for the period between
11.03.1965 till 31.12.1999. Point No. I answered
accordingly.
Point No.II
[8] The aforesaid G.R. dated 16.08.1994 issued by
the respondent - State would indicate that the employee
would entitle to receive higher grade pay-scale on
completion of 9, 18 and 27 years of service. To get 1 st
higher grade pay-scale, employee concerned requires to
complete 9 years of service either on 01.06.1987 or
thereafter. Likewise, to receive 2 nd & 3rd higher grade
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pay-scales, employee concerned requires to complete
further 9 years of service each. Nowhere in aforesaid G.R.
would suggest that to get such higher grade pay-scale,
employee/s require/s to clear any departmental
examination.
[8.1] It cannot be disputed, even if considered his
service with Superintendent of Land Record at Vadodara
from 07.10.1971, deceased employee completed 9 years
of service on 01.06.1987, and further completed 9 years
of service from 01.06.1987 on 01.106.1996, then after
retired from service on 31.12.1999.
[8.2] The respondents authorities appear to have
completely misconstrued and misread the aforesaid G.R.
when denied 1st and 2nd higher grade pay-scales to the
deceased employee on the ground that having not cleared
departmental examination, deceased employee not
entitled to receive any higher grade pay-scale. The
aforesaid G.R. only suggests that to get promotion,
employee requires to clear departmental examination
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[see - clause - 3 (5) of said G.R.]. But, so far as to receive
higher grade pay-scale is concerned, as such, there is no
requirement or any such condition put on the shoulder of
employee. True, age relaxation given to those employees
who surpassed the age of 45 years as on 05.07.1991, only
those employees need not to appear in departmental
examination to get any promotion. As such issue of
promotion not agitated by petitioner in this petition,
rather not in dispute, and therefore, this Court would not
like to go further into such arena.
[8.3] Nevertheless, it is very much clear from the
bare reading of the aforesaid G.R. that on completion of 9
years of service on 01.06.1987, deceased employee
entitled to receive 1st higher grade pay-scale and further
completed 9 years of service thereafter i.e. 01.06.1996,
entitled to receive 2nd higher grade pay-scale. When
deceased employee retired from service on 31.12.1999,
thus, in view of aforesaid, entitled to receive 1 st & 2nd
higher grade pay scale.
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[8.4] Having observed hereinabove and fact remains
that respondents authorities have denied such higher
grade pay-scales to deceased employee on completely
wrong premise as deceased employee not cleared
departmental examination then, such decision is
erroneous, perverse, arbitrary and contrary to its
aforesaid G.R. issued by the State. When the action of
respondent authority is found to be arbitrary, violative of
Articles 14 and 16 of the Constitution of India and
legitimate right of deceased employee to receive higher
grade pay-scales denied by the respondents authorities,
this Court requires to step into and also to interfere with
the arbitrary action of respondents authorities.
[8.5] According to my view, deceased employee
entitled to receive 1st and 2nd higher grade pay-scales on
completion of service on 01.06.1987 and 01.06.1996
respectively and having not granted such benefits by
respondents authorities, violated fundamental right of the
deceased employee. Point No.II answered accordingly.
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CONCLUSION.
[9] The upshot of the aforesaid observations,
discussion and reasons, following conclusion requires to
be drawn.
[9.1] The respondents authorities have committed
serious error in law by not considering the qualifying
service of deceased employee from 11.03.1965 to
31.12.1999 as there is no specific entry regarding break
in the service in the service record of the deceased
employee.
[9.2] The interruption of service of deceased
employee between 01.10.1971 to 06.10.1971 be treated
as qualifying service as per Rule 34 (1) of the Pension
Rules, 2002.
[9.3] The deceased employee is entitled to receive
1st and 2nd higher grade pay-scales on completion of 9
years and 18 years of service on 01.06.1987 and
01.06.1996 respectively.
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[9.4] The deceased employee and petitioner
respectively are entitled to receive aforesaid benefits
from the respondents.
[10] The respondents authorities are directed to
first give effect of 1st and 2nd higher grade pay-scales to
deceased employee and calculate and pay all
consequential benefits flowing therefrom to petitioner on
or before 28th February, 2026, meaning thereby, arrears
of amount for said benefits be paid to the petitioner on or
before 28th February, 2026.
[10.1] The respondents authorities herein, after giving
effect of 1st and 2nd higher grade pay-scales (as aforesaid
in the pay of the deceased employee) and so also,
considering qualifying service of deceased employee for a
period between 11.03.1965 till 31.12.1999, are directed
to re-calculate the pension amount and release the
arrears of such pension amount in favour of the petitioner
on or before 28th February, 2026 and thereafter, pay her
regular family pension on that basis.
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[11] It is made clear that if respondents failed to
comply with the aforesaid directions on or before 28 th
February, 2026, petitioner is entitled to receive all the
aforesaid benefits with 9% interest from 01.03.2026 from
the respondents till its realization. It would also be open
for the petitioner to initiate contempt proceedings against
the erring Officer for non-compliance of this order.
[12] In view of the foregoing conclusion, the present
Writ Petition is partly allowed. Rule is made absolute to
the aforesaid extent. No order as to costs.
Sd/-
(MAULIK J.SHELAT,J.)
Lalji Desai
