Gujarat High Court
Sunilbhai Govindlal Shah vs State Of Gujarat on 1 May, 2019
Author: N.V.Anjaria
Bench: N.V.Anjaria
C/SCA/18398/2018 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 18398 of 2018
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SUNILBHAI GOVINDLAL SHAH
Versus
STATE OF GUJARAT
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Appearance:
MR. NISARG D SHAH(7299) for the Petitioner(s) No. 1
MR KRUTIK PARIKH, ASST.GOVERNMENT PLEADER(1) for the
Respondent(s) No. 1
NOTICE SERVED BY DS(5) for the Respondent(s) No. 2,3,4
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CORAM: HONOURABLE MR.JUSTICE N.V.ANJARIA
Date : 01/05/2019
ORAL ORDER
In the facts and circumstances of the case and with consent and request of the parties appearing through their learned advocates the petition was taken up for final consideration today. Rule returnable forthwith. Learned Assistant Government Pleader Mr.K.M.Antani waives service of notice of Rule on behalf of the respondents.
1.1 Heard learned advocate Mr.Nisarg Shah for the petitioner and learned Assistant Government Pleader for the respondents.
2. Following prayers are made in the present petition, Page 1 of 7 Downloaded on : Sun Jun 30 18:52:36 IST 2019 C/SCA/18398/2018 ORDER
(i) To set aside the impugned order dated 06.06.2018 of the respondent in so far as it denies the benefits of Tiku Pay Commission to the petitioner while calculating his retirement benefits.
(ii) To direct the respondents to forthwith release the retirement dues taking into consideration the benefits of Tiku Pay Commission recommendations.
3. The facts are that the petitioner was initially appointed on ad hoc basis as ClassII Medical Officer on 02.12.1991 and further came to be regularized in service with continuation, already came to be granted on completion of requisite numbers of years the benefit of 1st and 2nd Tiku Pay Commission recommendation. The 1st Tiku Pay Commission came to be allowed with effect from 01.12.1997 by order dated 30.11.2002. The 2nd Tiku Pay Commission benefit was given from 01.12.2004 by order dated 01.12.2007.
4. The petitioner opted for voluntary retirement because of personal reason. He made application for seeking voluntary retirement on 07.03.2018. The application of the petitioner was accepted by order dated 06.06.2018. However, in the said order the conditional permission to retire was granted. The benefit which was given to the petitioner under Tiku Page 2 of 7 Downloaded on : Sun Jun 30 18:52:36 IST 2019 C/SCA/18398/2018 ORDER Pay commission was ordered to cancel as condition for granting the voluntary retirement. It is these order and decision which are brought in challenge in this petition.
4.1 Learned advocate for the petitioner submitted that the issue is covered by decision of this Court in Harish Dunichand Chandrani vs. State of Gujarat being Special Civil Application No.12033 of 2014 decided on 20.07.2015 and confirmed by order dated 16.01.2017 passed in Letters patent Appeal No.1469 of 2015. The very issue there was already involved in Bina Kantilal Parikh vs. State of Gujarat being Special Civil Application No.4831 of 2017 decided on 02.04.2019.
4.2 It may be stated that in another decision in Rajni Ashok Mewara vs. State of Gujarat being Special Civil Application No.5362 of 2017, this Court followed the decision in Harish Dunichand Chandrani (supra) and confirmed in Letters Patent Appeal stated as above.
Page 3 of 7 Downloaded on : Sun Jun 30 18:52:36 IST 2019 C/SCA/18398/2018 ORDER5. Extracting the relevant part from Rajni Ashok Mewara (supra) to be adopted as part of reasonings of this order as under, "5. 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 dated 20th 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 Bench by judgment dated 16th January, 2017.
5.1 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 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 the recommendations of Tiku Pay Commission. When the respondent original petitioner has not availed any Page 4 of 7 Downloaded on : Sun Jun 30 18:52:36 IST 2019 C/SCA/18398/2018 ORDER 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, (I) Dr.A.J. Oza, (ii) Dr.Hemant B. Patel, and (iii) Dr.M.J. Gupta, who have voluntarily retired as ClassII 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 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 September 1985 to 31st December 2013 as Medical Officer ClassII. It is needless to observe that he was compelled to take voluntary retirement in Page 5 of 7 Downloaded on : Sun Jun 30 18:52:36 IST 2019 C/SCA/18398/2018 ORDER 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."
5.2 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 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 basis of Resolution dated 11th May, 2001 on the ground of taking voluntary retirement. Not only that the issue attained finality with the Apex Court dismissing Special Leave to Appeal on 17th 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."
6. In view of above law laid down by decisions of this Court, acceptance of the voluntarily retirement and request of the petitioner by the authorities on Page 6 of 7 Downloaded on : Sun Jun 30 18:52:36 IST 2019 C/SCA/18398/2018 ORDER condition of cancellation of Tiku Pay Commission benefit could not sustain for a moment.
6.1 As a result of above discussion, the impugned order dated 06.06.2018 passed by respondent No.1 is hereby set aside to the extend that it deprives the petitioner of the Tiku Commission benefits, as a condition of allowing the request for voluntary retirement. It is declared that the petitioner would continue to enjoy the benefits already granted to him under Tiku Pay Commission recommendation. Rest of the directions of the order dated 06.06.2018 allowing the petitioner for voluntarily retirement shall hold the field.
7. The petition is allowed accordingly. Rule is made absolute to the said extent.
(N.V.ANJARIA, J) Gaurav+ Page 7 of 7 Downloaded on : Sun Jun 30 18:52:36 IST 2019