Tribhovan Joitaram Patel vs State Of Gujarat & 3 on 23 September, 2015

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Gujarat High Court

Tribhovan Joitaram Patel vs State Of Gujarat & 3 on 23 September, 2015

HC-NIC Page 1 of 14 Created On Thu Sep 24 01:52:58 IST 2015 C/SCA/15093/2013 CAV JUDGMENT 1 By this writ petition under Article 226 of the Constitution of India, the petitioner, a retired Assistant Engineer, has prayed for the following reliefs:

"7. The petitioner respectfully prays that on the basis of the facts and circumstances as mentioned hereinabove and which may be urged at the time of hearing, the Honourable Court may be pleased to issue a writ of mandamus or any other appropriate writ, order or directions to the respondent authorities and may be pleased to:

(A) quash and set aside the order dated 30.6.2011, AnnexureA to this petition, and (B) direct the respondent authorities to finalise the pension case of the petitioner and make payment of pension, gratuity and commutation of pension and other retirement benefits to which the petitioner is entitled to and further be pleased to direct the respondent authorities to make payment of arrears to the petitioner, and (C) further be pleased to direct the respondent authorities to make payment of interest on the delayed payment of retirement dues of the petitioner, at the rate which the Honourable Court may consider as just and proper, and (D) award the exemplary cost against the respondents, particularly respondent No:1, and (E) pending admission and final disposal of this petition, the Honourable Court may be pleased to direct the respondent authorities to make payment of provisional pension and provisional gratuity, and/or (F) 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."

2 The facts of this petition may be summarized as under:

2.1 The petitioner was appointed in the post of Assistant Engineer on 27.02.1979 and retired from service from the said post on 30.06.2011, Page 2 of 14 HC-NIC Page 2 of 14 Created On Thu Sep 24 01:52:58 IST 2015 C/SCA/15093/2013 CAV JUDGMENT after putting in almost thirty two years of service. It is the case of the petitioner that he had successfully completed the probation period of two years, and was thereafter ordered to be continued to officiate as the Assistant Engineer on long term basis w.e.f.. 03.06.1981.

2.2 It is the case of the petitioner that in the retirement order, it has been stated that since the appointment of the petitioner was on adhoc basis and not through the Gujarat Public Service Commission, he was not entitled to any retiral benefits.

2.3 In such circumstances, referred to above, he has filed the present writ petition.

3 Mr. Vaibhav Vyas, the learned advocate appearing for the petitioner vehemently submitted that during the entire service of his client from the year 1979 till the date of retirement i.e. 30.06.2011, his client was governed by the GPF Scheme, and accordingly, the contribution towards the Provident Fund was being deducted regularly in the GPF account of the petitioner. Mr. Vyas submitted that in such circumstances, his client should have been treated in the General Provident Fund Scheme for the purpose of grant of pension and other retiral benefits.

4 He submitted that according to the policy of the Government, as Page 3 of 14 HC-NIC Page 3 of 14 Created On Thu Sep 24 01:52:58 IST 2015 C/SCA/15093/2013 CAV JUDGMENT declared vide the Government Resolution dated 17.10.1988, even the Daily Wagers have been conferred with various benefits, after competition of ten years of continuous service. Mr. Vyas submitted that even a temporary Government servant would be entitled to pension on completion of more than twenty years of qualifying service. He submitted that there being merit in this writ petition, the same may be allowed and the reliefs prayed for may be granted.

5 On the other hand, this petition has been vehemently opposed by Mr. Rohan Yagnik, the learned Assistant Government Pleader appearing for the respondent - the State of Gujarat. He submitted that under the Recruitment Rules, for the appointment to the post of Junior Engineer (now, Assistant Engineer) framed under Article 309 of the Constitution of India, it is only the G.P.S.C., who can recommend for such appointment, after being duly selected by the G.P.S.C. He submitted that the petitioner was not selected by the G.P.S.C., and was appointed only on adhoc basis. He submitted that the appointment of the petitioner to the post of Assistant Engineer remained adhoc till the date of his retirement. Mr. Yagnik placed reliance on the following averments made in the affidavitinreply filed on behalf of the respondent No.1:

"(4) I say and submit further that on selection through Gujarat Public Service Commission, petitioner Shri T.J. Patel was appointed as Junior Engineer (Civil) ClassII vide Government PWD Order No.AOJ1377C 8577(39)E5 dated 23/12/1977 in the office of the Superintending Engineer, Water Resources Investigation Circle, Ahmedabad. Afterwards Page 4 of 14 HC-NIC Page 4 of 14 Created On Thu Sep 24 01:52:58 IST 2015 C/SCA/15093/2013 CAV JUDGMENT the said office had issued detailed posting order vide Order No.ECII521 CB dated 411978 and by virtue of order petitioner Shri Patel was posted at Water Resource Division, Amreli. The copy of the said detailed posting order was sent to all the concerned candidates at their residential addresses including the petitioner. Petitioner had not resumed as per the detailed posting order even he had never inquired about his details posting order since long.

(5) Hence, the petitioner was not deprived of detailed posting.

Therefore, the petitioner's representation that he was along not given details posting is false and far away from the truth. The post of Junior Engineer (Now Assistant Engineer) is gazetted and in case of gazetted post the government is the appointing authority. Petitioner had received posting order on 23/12/1977, now had the petitioner not received his detailed posting order, he could have approached the government in Public Works Department seeking for detailed posting. But he had never brought to the notice of government. It is also surprising that the petitioner had received posting order dated 23121977 as GPSC selected candidate as well as his ad hoc appointment order dated 821979 and District Development Officer's order dated 27/2/1979 but he did not receive the order dated 4/1/1978 relating to his detailed posting. All the said orders had been sent to the same address of the petitioner. Thus it leads to believe that the petitioner's representation regarding not giving details posting is false and concocted. The claim of the petitioner at this stage is time barred.

(6) It is submitted that under recruitment rules of Junior Engineer (Now Assistant Engineer) ClassII gazetted post, which has been framed under Article309 of the Constitution of India, the post of Junior Engineer is within the purview and jurisdiction of GOSC and Government gives appointment of Junior Engineer to only those candidates who are selected by GPSC as referred herein above the petitioner was given the post of Junior Engineer only on adhoc basis and as the petitioner was not GPSC selected candidate, therefore the petitioner's recruitment was not made accordingly to the provision of the Recruitment Rules of the Junior Engineer framed under Article 309 of the Constitution of India.

(7) I further say and submit that after GPSC's recommendation, government afterwards gives appointment to selected candidates on probation for two years, and on completion of probation period satisfactorily the candidates may be appointed on regular basis on temporary establishment. However, in the case of the petitioner he was given the post of Junior Engineer purely on ad hoc basis as temporary measure till the GPSC selected candidates are available. As the petitioner was not a GPSC selected candidate, he was not on probation therefore, there was no question of terminating the probation period of the petitioner. However, under error apparent from the record, a proposal was Page 5 of 14 HC-NIC Page 5 of 14 Created On Thu Sep 24 01:52:58 IST 2015 C/SCA/15093/2013 CAV JUDGMENT submitted by Division Office of the District Panchayat, Banaskantha to terminate the probation period of the petitioner without mentioning therein that the petitioner's appointment is on ad hoc basis. Relying upon the said proposal, Head of the Department inadvertently terminated period of the petitioner and though the petitioner was not on probation an order for continuation was passed. In view of this fact, the petitioner cannot claim any relief, for which he was never entitled.

(8) As the appointment the petitioner was temporary and on ad hoc basis, his services as a Junior Engineer was terminated under Road and Building Department Order No.ATS/2981/1548/19/G dated 13/4/1981. But due to stay on this termination order the petitioner could not be removed from the government service. A reply to his representation dated 15/6/2010 about seniority and promotion was given to him to the effect that as his appointment as Junior Engineer was on purely temporary and ad hoc basis, he was not entitled to the benefit of seniority and promotion on dated 9/8/2010. However, on his completion of 58 years on 30/6/2011 he was retired. The said dated 30/6/2011 is wellreasoned and speaking order.

In view of the above facts and circumstances, he is not entitled for pension and other pensionary benefits.

(9) It is stated that as petitioner was not in the waiting list as attached with Narmada and Water Resources Department G.R. dated 2/3/1995, there is no question of regularizing the service of the petitioner. Hence, the petitioner is not discriminated by the respondent authority."

6 In such circumstances, referred to above, Mr. Yagnik prays that there being no merit in this writ petition, the same be rejected.

7 The petitioner has filed a detailed rejoinder to the affidavitin reply filed by the State - respondent. In the rejoinder, the following averments made on oath:

"3. It is respectfully stated that, the above referred petition is sought to be contested on the sole ground that the appointment of the petitioner on the post of Junior Engineer was purely on adhoc basis as a temporary measure till the Gujarat Public Service Commission selected candidates are available.

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HC-NIC Page 6 of 14 Created On Thu Sep 24 01:52:58 IST 2015 C/SCA/15093/2013 CAV JUDGMENT However, while so contending, the respondent authority has completely lost sight of the fact that the petitioner had served the respondent authority for a period of more than 32 years from 27.2.1979 till the date of his superannuation retirement on 30.6.2011.

It is also pertinent to note that the petitioner had already cleared the examination conducted by the GPSC in the year 1977 and his name was included in the waiting list prepared by GPSC for appointment on the post of Junior Engineer (Civil) i.e. the post on which the petitioner was subsequently appointed by the respondent authority in the year 1979 and on which the petitioner retired on attaining the age of superannuation.

It is also pertinent to note that at the relevant point of time the waiting list was operated and the petitioner was even issued appointment order dated 23.12.1977 by the respondent authority provisionally appointing the petitioner on the post of Junior Engineer. However, for the reasons best known, the petitioner was not issued detailed posting order from the Superintending Engineer under whom the petitioner's services were placed by the above referred appointment order dated 23.12.1977. Now, at this it is sought to be contended by the respondent authority that the petitioner was sent the said posting order but the petitioner did not resume as per the detailed posting order.

In this regard, it is respectfully stated that, had the petitioner been sent a detailed order, the same would have been outwarded and there must been some proof regarding the sending of the same to the petitioner. However, no such proof is deliberately brought on record by the respondent authority, as no such posting order was sent to the petitioner and this has explained by the petitioner in detail in para3.5 of the petition.

It is pertinent to note that, had the petitioner been issued the posting order as alleged, there was no reason for the petitioner not to join the said post of Junior Engineer (Civil), which was on regular basis pursuant to the recruitment process undertaken by the GPSC and to join the same of post of Junior Engineer (Civil) on adhhoc basis. This fact itself demonstrates that no such posting order was issued to the petitioner.

It is also pertinent to note that during the pendency of petition being Special Civil Application No.1482 of 1981 the petitioner was issued a confirmation order dated 1.6.1985 passed by the Superintending Engineer, Panchayat (R & B) Circle, Gandhinagar and as per the said order the petitioner was continued to officiate as an Assistant Engineer (earlier known as Junior Engineer) on long term basis with effect from 3.6.1981. This fact is tried to be brushed away by the respondent authority by saying that the said confirmation order was passed Page 7 of 14 HC-NIC Page 7 of 14 Created On Thu Sep 24 01:52:58 IST 2015 C/SCA/15093/2013 CAV JUDGMENT inadvertently.

It is pertinent to note that the said mistake could not have been committed more particularly when the petition was pending before this Honourable Court and when on the basis of the said subsequent confirmation order the petition filed by the petitioner was withdrawn. Even at that stage, it was not the stand of the respondent authority that the said confirmation order was issued by mistake. Thus, this stand of the respondent authority is as an afterthought and therefore the same may not be accepted by this Honourable Court.

4. It is respectfully stated that so far as the averment of the petitioner that number of similarly situated persons in the irrigation department absorbed by the respondent authorities and their services are regularized and they are not required to pass fresh Gujarat Public Service Commission examination, is concerned, which is even supported by the order of the Government which is already placed on record of the petition, no explanation is submitted by the respondent authority in the affidavitin reply and therefore the said contention of the petitioner has been accepted by the respondent authority, which would substantiate the case of the petitioner that the petitioner is grossly discriminated by the respondent authorities.

5. It is further stated that, so far as the averment of the petitioner that he is entitled to pensionary benefits as per Rule 25 of the Gujarat Civil Service (Pension) Rules, 2002 in as much as the petitioner has rendered pension qualifying service in pensionable establishment, is concerned, there also there is no contest from the respondent authority in the affidavitinreply and therefore as per the Rules as well the petitioner is entitled to receive pension and other retirement benefits.

6. It is respectfully stated that, in the above referred petition the petitioner had made a reference to Special Civil Application No: 2981 of 1995 in para3.8 of the petition which was preferred by the petitioner interalia with a prayer to direct the respondents to promote the petitioner to the post of Deputy Executive Engineer and further to direct the respondents to permit the petitioner to work without any disturbance or obstruction. It is respectfully stated that, the said petition came to be dismissed by this Honourable Court vide judgment and order 21.12.2013, a copy of which is annexed herewith and marked as AnneuxreR/1 to this rejoinder. It is further respectfully stated that, even in the said judgment and order dated 21.12.2013, the Honourable Court has specifically clarified that non entertainment of the said petition may not preclude the petitioner from pursuing the matter (Special Civil Application No:15093 of 2013) on merits in accordance with law. It is respectfully stated that, it is the case of the petitioner that the dismissal of the said petition would not have any bearing on the merits of the present petition as the cause of Page 8 of 14 HC-NIC Page 8 of 14 Created On Thu Sep 24 01:52:58 IST 2015 C/SCA/15093/2013 CAV JUDGMENT action for both the petitions are different altogether, however, this fact regarding dismissal of the said petition is being stated to complete the record and in order to see that it may not be argued by the respondent authority that the petitioner has suppressed the fact regarding the dismissal of the said petition."

8 On behalf of the respondent No.3, the Executive Engineer, Roads and Building Division, the following averments made:

"2. The respnt. no.3 submits that the order dated 30.6.11 passed by the respnt. no.1 is reasoned one and after taking note of the facts with regard to the terms and conditions of appointment of the petitioner and his employment on purely temporary and adhoc basis with effect from 8.1.79 till the date of retirement i.e. 30.6.11 are vital. The respnt. no.3 submits that the services of the petitioner were never regularized during the entire period and he remained temporary and adhoc due to interim relief orders passed in Special Civil Application NO.1482/81 and Special Civil Application No.2981/95. The respnt. no.3 submits that the services of the petitioner were continued only because of interim relief orders passed by the Hon'ble Court in above referred petitions as held by the respnt. no.1 and, therefore, the respnt. no.1 has held through order dated 30.6.11 that the petitioner is not entitled to any retiral benefits.

3. The respnt. no.3 submits that the petitioner herein has failed to establish his claim for retiral benefits by way of bringing on record the facts with regard to his permanent nature of employment. It is stated that as such the contention raised in the memo of special civil application makes it clear that the services of the petitioner were never regularized and permanent.

4. In view of the above mentioned facts and circumstances Hon'ble Court is humbly prayed not to grant any interim relief and reject the present Special Civil Application in limine with cost in the interest of justice."

9 Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for my consideration is whether the State Government is justified in its action, by which, the retiral benefits have been denied.

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HC-NIC Page 9 of 14 Created On Thu Sep 24 01:52:58 IST 2015 C/SCA/15093/2013 CAV JUDGMENT 10 In my view, the order passed by this Court dated 23.09.1994 in the Special Civil Application No.1482 of 1981 makes the picture abundantly clear. The Special Civil Application No.1482 of 1981 was filed by the petitioner with a complaint that although he was appointed as the Junior Engineer along with 61 other persons by the Government, yet, the posting order was not served on the petitioner. While disposing of the said petition, the learned Single Judge of this Court observed thus:

"The petitioner was appointed as a Junior Engineer alongwith 61 other persons by the Government, but its order dtd. 23.12.1977 (Annexure A). As per the said order, the authorities named in para 2 (page 21 of the petition) were requested to issue immediately, detailed posting orders of the Junior Engineers, who were appointed under the said order, an to send the copy thereof to the Government, and the Chairman, selection committee. The say of the petitioner in this petition is that he was not served with that posting order. Therefore, he tried to inquiry, but he was informed that he will be served with the order at his residence. But that order was never served upon him. Except the petitioner, all others were appointed as Junior Engineers, but the petitioner could not be appointed as he was not served with the aforesaid posting order. According to the petitioner he was given an appointment order on 27.2.1979 by the D.D.O. Palanpur District, Panchayat, pursuant to the order at Annexure - A, purely on temporary and adhoc basis for a period of six months till the candidate regularly selected by G.P.S.C. was available (Annexure:B). Though the period of six months is already over long back, still the petitioner continues in service. On 16.4.80, he requested the Government to except him from appearing in the examining which was to be held by G.P.S.C. as according to him, he had earlier appeared in the examination and passed the same (Annexure:C). That request of the petitioner was tured down by the Government on 29.7.1980 (Ann.D). Thereafter by order dated 13.4.1981, the Government terminated the services of the petitioner and relieved him on the ground that he was not selected by the G.P.S.C. This order is challenged by the petitioner in this petition.

2. On 28.4.1981, this High Court issued Notice and made it Page 10 of 14 HC-NIC Page 10 of 14 Created On Thu Sep 24 01:52:58 IST 2015 C/SCA/15093/2013 CAV JUDGMENT returnable on 4.5.1981, and adinterim relief against termination of the petitioner's service was granted. Reply affidavit was filed on 13.7.1981 by Shri J.S. Joshi, Under Secretary to Government. On 31.7.1981, this court issued Rule, and confirmed the adinterim relief granted earlier. By virtue of that order, the petitioner has continued in service till today.

3. Mr. Tanna, L.A. for the petitioner, during the course of hearing, has produced the zerox copy of the confirmation order dated 1.6.1985 issued by the Supdt. Engineer, Panchayat (R&B) Circle, Gandhinagar, alongwith the xerox copy of the service record of the petitioner. As per that order, the petitioner has been continued to officiate as an Assistant Engineer on long term basis with effect from 3.6.1981. Mr. Tanna, further states that not only that the petitioner came to be confirmed by that order, but all throughout, he got the annual increments. In view of the aforesaid subsequent order, Mr. Tanna, L.A. for the petitioner, on the instructions in the court, seeks permission to withdraw this petition, as the grievance made in this petition now does not survive. Mr. Rathod, L.D. A.G.P. for the respondents has no objection. Hence permission to withdraw the petition granted. Petition stands dismissed as withdrawn. Rule discharged. Interim relief earlier granted stands vacated."

11 The above referred order makes it clear that a confirmation order dated 01.06.1983 issued by the Superintending Engineer, Panchayat (R&B) Circle, Gandhinagar was produced before this Court, and according to the said order, the petitioner was continued to officiate as an Assistant Engineer on the long term basis with effect from 03.06.1981.

12 In view of the above, the stance of the State Government as well as the other respondents is absolutely not tenable in law. After putting in thirty two years of service, it is not permissible for the Government to say that the petitioner is not entitled to pension and other retiral benefits.

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HC-NIC Page 11 of 14 Created On Thu Sep 24 01:52:58 IST 2015 C/SCA/15093/2013 CAV JUDGMENT 13 Mr. Vyas relied on the decision of a Division Bench in the case of Chief Officer vs. Mohmad Irshad Husenbhai Baloch and others, 2011 (1) GCD 569 (DB), wherein the Division Bench of this Court held as under:

"6. It is undisputed position that all the concerned employees were treated in the GPF scheme, therefore, respective GPF accounts were opened and the deduction was also made from their salary from the date on which they were made permanent and until they retired from service or their service ended on account of their death. It is also undisputed position that all such employees were not treated in CPF scheme, which is applicable to other municipal employees and no deduction for the purpose of CPF has been made by the municipality from the salary of concerned employees. If the employee, when he is absorbed in service, is treated for all purposes in the GPF scheme for pensional benefits and not treated in the CPF scheme for lumpsum amount, and the said position continued until the person concerned reached to the age of superannuation or otherwise, would it be open to the employer or the concerned authorities to deny the pensionary benefits after retirement on the ground that the employees concerned was not eligible for pension as per the GPF scheme. In our view, if such is permitted to be entertained and accepted, it would not only be highly improper on the part of the authority, but can also be termed as atrocious action, which would be absurd on the face of it.

7. The learned counsel for the appellant, however contended that the employees concerned, who were in the then panchayat service and subsequently continued in the municipality, were not recruited by the regular selection process and it was submitted that it is only w.e.f. 1.1.1989 they have been granted permanency benefit. When on 1.1.1989 permanency benefits were granted, they were taken as municipal employees and not as employees of the panchayat. Under the circumstances, they would be entitled for all benefits, which may be available to other municipal employees. It was submitted that as per the decision of this Court in case of Chorwad Gram Panchayat Vs. Ramniklal Dharshi Shah reported at (2010)1 GCD 675, such employees who were not recruited by the regular selection process of the then Gram Panchayat, could not be termed as in panchayat service and, therefore, would not be eligible for the pensional benefits as available to other employees of the panchayat or Government service. Learned counsel, therefore, contended that if the employees were of the municipality, there is no scheme of the Government for pensional benefits, but the scheme applicable would be CPF to the employees of the municipality. It was submitted that the learned single Judge was guided by the resolution of the Page 12 of 14 HC-NIC Page 12 of 14 Created On Thu Sep 24 01:52:58 IST 2015 C/SCA/15093/2013 CAV JUDGMENT Government, which in the submission of the municipality is not applicable and, therefore, the order passed by the learned single Judge is erroneous.

8. There cannot be any different view in respect of the employees taken by this Court in Chorwad Gramp Panchayat (supra). However, the point which arise for consideration in the present group of matters did not arise in the said case inasmuch as if for all purposes the employees concerned were treated as in panchayat service with the scheme of the Government for pension by deduction of GPF, would it be open to the Government or the municipality to deny the pensional benefits, if the employees concerned have retired from service. It is true that if one was not appointed by regular recruitment process, he may not fall in the panchayat service. In our view, the factum of giving treatment by the municipality and Government to all the concerned employees in the present case as member of the panchayat service and the consequent action of regular deduction of contribution of GPF account that too from the inception of the service as the permanent employees until reaching to the age of superannuation or until the services came to an end, would be sufficient to decline the entertainment of such plea taken by municipality and/or the Government as the case may be, that the employees concerned in view of the aforesaid decision of this Court in case of Chorwad Gram Panchayat (supra), would not be entitled for the pensional benefits. Be it noted that it is not the case of the appellant or any of the State authority that it is on account of any fraud or misrepresentation or any mischief played by the concerned employees at the relevant point of time or even thereafter they were treated as member of GPF scheme. Therefore, the question is to be examined in light of the bonafide action on the part of employee as well as the concerned officer of the employer or the Government, as the case may be. It is true that in normal circumstance, such estoppel may not operate against any statute, but it is not a mere case of considering the question of estoppel. In our view, a case of conduct of the party concerned coupled with the alteration of the position of the party concerned throughout. At any point of time, neither the municipality or the Government has refunded the amount of contribution nor they have intimated to the employees concerned for their mistake or otherwise. After completion of the service, if such a plea is entertained or is accepted, in our view, it would result into allowing the atrocious treatment to be played by the municipality or the Government or its officers, which would violate Article 14 of the Constitution.

9. The aforesaid is coupled with the circumstance that it is not that in every case whenever a person is daily wager or a temporary employee of the Government, he would not be eligible or entitled for pension. On the contrary as per the policy of the Government, even if a person is an adhoc/temporary employee, after completion of requisite length of service, he is to be treated as eligible for the scheme of pension and once he is treated as eligible for the scheme of Page 13 of 14 HC-NIC Page 13 of 14 Created On Thu Sep 24 01:52:58 IST 2015 C/SCA/15093/2013 CAV JUDGMENT pension, and his contribution are being deducted from his salary, he would be eligible for the pension upon completion of the requisite length of service. Therefore, there is no absolute bar operating upon the entitlement of the pension by the employees of the then Gram Panchayat, who are treated as for all purposes covered by the scheme of pension for the contribution from their salary and same position continued until they reached to the age of superannuation or until the end of their service."

14 In view of the above, this petition is allowed. The order dated 30.06.2011 is hereby quashed and set aside. The respondents authorities are directed to finalize the pension case of the petitioner within a period of two months from the date of the receipt of the order of this Court and make necessary payment of pension and other retiral benefits with arrears at the rate of 8.5% interest till the date of the actual payment.

Rule is made absolute.

(J.B.PARDIWALA, J.) chandresh Page 14 of 14 HC-NIC Page 14 of 14 Created On Thu Sep 24 01:52:58 IST 2015

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