Gujarat High Court
State Of Gujarat vs S.A. Patel, Prin. M.C. Shah Commerce ... on 22 January, 2020
Author: A.J. Shastri
Bench: Vikram Nath, A.J. Shastri
C/LPA/96/2020 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 96 of 2020
In
R/SPECIAL CIVIL APPLICATION NO. 16831 of 2003
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
In
R/LETTERS PATENT APPEAL NO. 96 of 2020
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STATE OF GUJARAT
Versus
S.A. PATEL, PRIN. M.C. SHAH COMMERCE COLLEGE NAVGUJ.CAMPUS
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Appearance:
MR JK SHAH, AGP for the Appellant(s) No. 1,2,3
for the Respondent(s) No. 1
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CORAM: HONOURABLE THE CHIEF JUSTICE MR. VIKRAM NATH
and
HONOURABLE MR.JUSTICE A.J. SHASTRI
Date : 22/01/2020
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE A.J. SHASTRI)
1. Present Letters Patent Appeal under Clause 15 of the Letters Patent is directed against the oral judgment dated 2.7.2019 passed by the learned Single Judge in Special Civil Application No.16831 of 2003.
2. The case, in brief, is that the respondent- the original petitioner approached through Special Civil Application under Article 226 of the Constitution of India challenging inaction on the part of the appellants authority in not considering a case for grant of pension benefits on the basis of Government Resolution dated 15.10.1984. In the petition, it has been asserted that the respondent- original petitioner initially joined as a Lecturer in U.P. Arts & Science College at Pilvai and worked there for the period Page 1 of 7 Downloaded on : Mon Jun 15 01:24:58 IST 2020 C/LPA/96/2020 ORDER commencing from 15.6.1965 to 14.6.1966. From 15.6.1966 upto 14.6.1970, he worked at Lunavada Arts & Science College. It has been submitted that thereafter the petitioner worked as a Professor from 15.6.1970 to 14.6.1972. He later joined C.C. Sheth College of Commerce from 15.6.1972 as a Professor. The petitioner was appointed by Nav Gujarat Vanijya Maha Vidyalaya, vide appointment order dated 18.5.1992. Later, on account of attaining the age of superannuation, he retired from service in June 2004. The authority ought to have considered Government Resolution dated 15.10.1984 in extending benefits of pension as the respondent's service was liable to be automatically governed by the Pension Scheme floated as indicated in the resolution. Since the Government authority has not considered the same, the petitioner made a representation on 4.7.2001, requesting the appellants to consider his case for General Provident Fund instead of Contributory Provident Fund. Having not paid heed to the said representation, by invoking the extraordinary jurisdiction, the petition was brought before this Court with following reliefs:-
"(A) Admit this Special Civil Application.
(B) Allow this Special Civil Application by issuing a writ of mandamus or any other appropriate writ in the nature of mandamus or direction or order directing the respondent authorities to consider the case of the petitioner for grant of pensionary benefits on the basis of Govt. Resolution dated 15.10.1984.
(C) Be further pleased to hold inaction on the part of the respondent authority of not considering his case for pensionary earlier benefits as arbitrary, illegal and contrary to the provisions of law.
(E) Pending admission hearing and till final disposal of this Special Civil Application, this Hon'ble Court may be pleased to direct the Respondents authority to grant pensionary benefits to the petitioner subject to the outcome of the petition 0on the basis of Government Resolution dated 15.10.1984 in the interest of justice.
(F) .........."Page 2 of 7 Downloaded on : Mon Jun 15 01:24:58 IST 2020 C/LPA/96/2020 ORDER
3. The said petition came up for consideration before the learned Single Judge in the month of July 2019. It appears from the record that upon hearing both the sides and considering the effect of the concerned Government Resolution, the learned Single Judge was pleased to allow the petition. It is this order passed by the learned Single Judge that has been made the subject matter of the present Letters Patent Appeal before us.
4. We have heard the learned Assistant Government Pleader Mr. J.K. Shah, who vehemently contended that a serious error has been committed by the learned Single Judge in extending the benefits prayed for. Looking at the tenure and the effect of the Government Resolution, contrary to the orders, the services of the original petitioner cannot be governed by the Pension Scheme. Prior to the petition, the petitioner worked as the Principal at the M.C. Shah Commerce College. He worked as a Professor and Lecturer in different colleges till he was appointed as Principal in 1996. It was further contended that reading the Government Resolution dated 15.10.1984 with another resolution dated 12.11.1987, the petitioner's services have been considered as existing teacher and not a fresh appointment. As a result of this, until and unless, prior approval for changing the benevolent scheme is accorded to the original petitioner's case, no automatic conversion is possible.
Hence, the authority has rightly not considered the case of the original petitioner. It has been further submitted that the Government Resolution in question has been made applicable to employees who were recruited on or after 1.4.1982, whereas the petitioner had been in the employment right from 15.6.1965 onward. That being the position, this is hardly a case that deserves to be considered for the reliefs claimed. The learned Single Judge has committed a serious error in not considering the track record of Page 3 of 7 Downloaded on : Mon Jun 15 01:24:58 IST 2020 C/LPA/96/2020 ORDER the service of the respondent as well and therefore, the impugned order deserves to be set aside. No other submissions have been made.
5. Having heard the learned Assistant Government Pleader Mr. J.K. Shah and having gone through material placed before us at length, prima facie, we found that the order in question is passed with due application of mind and examining the rival stands placed before the Court at length. The learned Single Judge has categorically found in para 8 of the judgment that the respondent was appointed by Vidya Bhavan Trust, now Gujarat Vanijya Maha Vidyalaya by order dated 18.5.1992 after following detailed recruitment process. Subsequently, the respondent was appointed as the Principal at the M.C. Shah Commerce College on 11.6.1996. The learned Single Judge has considered that since this fresh appointment of the respondent took place after 1.4.1982, the Pension Scheme, i.e. General Provident Fund stands automatically applicable to the respondent's case.
6. We have noticed from the order passed by the learned Single Judge that this issue had been examined by the Division Bench of this Court in the case of State of Gujarat and others Vs. Kalhans Harilal Patel in Letters Patent Appeal No.2259 of 2017 and allied matters. After considering the said decision at length, the learned Single Judge found that the case is relatively similar to the said proposition. The relief prayed for has been considered.
7. We have been candidly informed by the learned Assistant Government Pleader, who has fairly contended that a similar issue has also been considered by this Division Bench. Hence, the discretion has been left to the Court.
Page 4 of 7 Downloaded on : Mon Jun 15 01:24:58 IST 2020 C/LPA/96/2020 ORDER8. However, we would like to observe the relevant portion contained in para 6 of the order of the learned Single Judge. Since that position was undisputed before learned Single Judge, we would not like to interfere with the discretion exercised. Para 6 and 7 of the order of the learned Single Judge read as as under:-
"6. The Division Bench of this Court, while considering the proceedings pending before the Apex Court, observed in Paragraphs 9.10 and 10, which read thus :
"9.10 The State preferred SLP(C) No. 3831-3832 of 2016 against the said order which was rejected by an order dated 09.03.2016. From these preceding chain of decisions, except in the case of Banuben Dhakkan (supra) wherein SLP(C) No. 9018 of 2016 was filed, by an order dated 02.09.2016, before the Apex court could grant stay, the order of the Division Bench is implemented.
10. The State would, therefore, contend that when the issue is at large before the Apex Court in SLPs in the case of Banuben Dhakkan (supra) and Bhupendra Vallabhdas Chudasama (supra), the issue does not stand concluded in favour of the respondent - original petitioners. We see no reason to take a view different from the line of decisions which have stood the test in the decisions rendered by the learned Single Judges and so confirmed by the Division Bench and by the Apex Court, except in the two cases referred to earlier."
7. The Division Bench while dealing with the merits, in Paragraphs 14 and 14.1, observed thus:
14. It is required to be noted that so far as the teaching staff is concerned, there is no concept of automatic promotion on higher posts on completion of certain number of years. An employee has to acquire educational qualification and put in number of service to secure eligibility criteria for recruitment on higher post. Any appointment either direct or by transfer or by changing the post in the same institute and or in different institute for securing higher post or on a same post made after 1982 is covered under pension scheme - GPF for which option is not to be given as CPF scheme is discontinued with effect from 01.04.1982. It is settled that the employees even though recruited before 01.04.1982 on a given post but subsequently i.e. After 01.04.1982 if they are again recruited after following the procedure prescribed therein, then such employees are not required to give any option to switch over from CPF to GPF because of requirement of clause 4 of the Government Resolution dated 15.10.1984. The said clause 4 at the cost of repetition is reproduced herein-below:Page 5 of 7 Downloaded on : Mon Jun 15 01:24:58 IST 2020 C/LPA/96/2020 ORDER
"4. The member of the staff recruited on or after 1st April, 1982 shall automatically be governed by this scheme. Such staff will not be allowed to opt for contributory provident fund scheme."
14.1 Moreover, any recruitment/appointment made after 01.04.1982 for the teaching staff is through advertisement and selection hence it is fresh appointment and therefore pension scheme I.e. GPF is automatically applicable. Further, for the non teaching staff also, their promotion at a particular time is to be considered as recruitment and therefore they need not give the option at the time of promotion. In view of the overall facts of the case we are not inclined to entertain these appeals and therefore the appeals deserve to be dismissed.
9. Additionally, we have also noticed that in para 15, the Division Bench has also observed the effect of the issue related to the Government Resolution dated 15.10.1984. This is also contained in the judgment of the learned Single Judge in para 9, which is reproduced hereinafter:-
"9. So far as the issue of Contributory Provident Fund is concerned, the Division Bench has observed in Para 15 to the following effect:
"15. For the aforesaid reasons, the judgements rendered by the learned Single Judges in the respective Letters Patent Appeals are confirmed. The State authorities are directed to grant the benefit of the pension scheme to all the respondents in view of the Government Resolution dated 15.10.1984 from the date of their respective retirement. The respondents who have not refunded/repaid the amount of Contributory Provident Fund, their case be considered by the authorities by paying the amount of pension after adjusting/setting off the amount of Contributory Provident Fund payable by the respondents...."
10. In view of the aforesaid situation and the fact that the issue has been well examined by the learned Single Judge, we would not deem it proper to exercise our jurisdiction to substitute the view taken, in conformity with the view of the Division Bench. As a result of this, considering the proposition of law laid down by the Apex Court in the case of Management of Narendra & Company Page 6 of 7 Downloaded on : Mon Jun 15 01:24:58 IST 2020 C/LPA/96/2020 ORDER Private Limited Vs. Workmen of Narendra & Company reported in (2016)3 SCC 340, we are in complete agreement with the the view taken by the learned Single Judge. Hence, the appeal lacks merits and the same deserves to be dismissed. Accordingly Letters Patent Appeal stands dismissed with no order as to costs.
11. Since the main appeal is dismissed, connected Civil Application also stands dismissed hereby.
Sd/-
(VIKRAM NATH, CJ) Sd/-
(A.J. SHASTRI, J) OMKAR Page 7 of 7 Downloaded on : Mon Jun 15 01:24:58 IST 2020