Gujarat High Court
L.V. Ganger vs State Of Gujarat on 11 July, 2001
JUDGMENT Kundan Singh, J.
1. This petition has been filed for a declaration that the services rendered by the petitioner during 22nd August, 1949 to 30th June, 1954 in Civil Supplies Department be treated as continuous service and as qualifying service for the purpose of determining the pension of the petitioner and the action of the respondents in not treating the aforesaid service as qualifying service for pensionary benefits of the petitioners as illegal, arbitrary, irrational, unjust and violative of Article 14 of the Constitution and for a direction to teh respondetn no. 3 to finalise the pensionary benefits payable to the petitioner on the basis of the petitioner's qualifying service from 22nd August 1949 to 28th February, 1985 and to pay the same with penal interest at the rate of 12% per annum.
2. The petitioner joined on 22nd August, 1949 in the service of Civil Supplies Department of the erstwhile State of Bombay. While the petitioner was serving in the said department, he appeared in the examination held by the Bombay Public Service Commission for the recruitments of clerk in November, 1953. He was selected and the petitioner was allocated to Fisheries Department of the State of Gujarat. The petitioner was required to attend the duty in the said department vide letter dated 14th June, 1954 of the Deputy Director of Civil Supplies(Accounts). The petitioner was relieved from the Civil Supplies Department (Accounts) by a letter dated 30th June, 1954 and he was directed to join duties in Fisheries Department with effect from 1st July, 1954. Pursuant to the aforesaid communication dated 30th June, 1954, the petitioner was relieved from his duty from the department of Civil Supplies on 30th June, 1954 and joined Fisheries Department of the then State of Bombay on 1st July, 1954. After bifurcation of the State of Bombay into State of Maharashtra and State of Gujarat, the petitioner's services were transferred to the State of Gujarat from 1.5.60 and the petitioner continued in services of the Fisheries Department and since then in the State of Gujarat till he retired on 28th February, 1985. The services of the petitioner in the Civil Supplies Department were not brought to an end by way of termination or discharge order, but he was allocated to the Fisheries Department. The petitioner was not paid any gratuity, retrenchment or any other benefits at the time when his services were transferred from Civil Supplies Department. When the petitioner joined as a Junior clerk in Civil Supplies Department in the pay scale of Rs. 75-200, as service in the Fisheries Department was also in the same scale of pay i.e. Rs.75-200, but as per the Circular of the Government, he was given one increment in view of his service being more than three years but less than five years. Accordingly, he was given starting pay of Rs.80/- in the above pay scale of Rs. 75-200. When the petitioner was serving in Civil Supplies Department, his service was maintained in the service book comprising of four objections and the said book was sent to the Fisheries department when the petitioner's service was allocated to them. He also earned leave to his credit as on 30th June, 1954. The same was taken note of in the service book of Fisheries Department. The Accountant General, Gujarat State, vide his letter dated 15.9.76 sent to the Commissioner of Fisheries inquiring as to whether the petitioner had received any retrenchment/gratuity from the Civil Supplies Department in consideration for the services rendered during the period from 22.8.1949 to 30.6.54. If so, the petitioner should be directed to return it to the Government in case this spell of service was to be taken as qualifying service. That letter dated 15th September 1976 has been annexed to the petition as Annexure "C". The petitioner replied that he was not paid any amount towards graduity or retrenchment. He was relieved from Civil Supplies Departmetn on 30.6.54 for joining the Fisheries Department. The petitioner also stated that not a single day's gap in the Civil Supplies Department and Fisheries Department. The entire service from 22nd August, 1949 was continuous and uninterrupted in the Government Department. When the petitioner was allocated to the State of Gujarat, a system of issuing duplicate service book was brought into force and in the said duplicate service book, all the entries regarding the petitioner's service rendered from 22.8.1949 till 30.4.1960 were entered and below that there was attestation by the P.A. to the Director of Fisheries, Bombay. The said duplicate service book was prepared by the department on the basis of the original service book. The entries in the duplicate service book contained all necessary particulars of service of the petitioner including those related to the services rendered in Civil Supplies Department. The balance earned leave, increment, the medical fitness certificate and other particulars contained in the original service book. Before retirement of the petitioner, he prepared his pension papers stating his qualifying service from 28th February 1949 to 28th February, 1985 and sent the same to the Accounts Branch of the Director of Fisheries for finalisation of the pension papers. It is the duty of the Government for proper maintenance of the service book of an employee and the department concerned is responsible for the same. If the service book of any employee is lost or is not traceable, the petitioner cannot be penalised for the job of the concerned department. The Accounts Officer of the Office of the Accountant General vide his letter dated 27.6.85 to the Commissioner of Fisheries informed that the qualifying service for the purpose of pension has to be taken as from 1.7.54 to 28.2.1985. If the qualifying service of the petitioner was to be calculated from 22nd August 1949, the original service book containing particulars of the service rendered by the petitioner in Civil Supplies Department should be sent to him. It was also inquired as to whether the petitioner was paid any retrenchment benefits by the Civil Supplies Department. In reply to the aforesaid letter dated 27th June, 1985, the petitioner sent a letter to the Commissioner of Fisheries informing that he has not received any retrenchment amount from the Civil Supplies Department. The question of payment of any gratuity to the petitioner did not arise. Four pages of service book in respect of the service rendered by him in Civil Supplies Department were sent by him in the department. However, on the basis of the entries made in the duplicate service book, from the beginning, the service should be relied upon. The duplicate service book has already been sent to Accountant General, but the Accountant General has asked for the original service book. He requested the Commissioner of Fisheries to forward the same together with four pages containing service record of the petitioner rendered in Civil Supplies Department. The petitioner was informed that the service record of the Civil Supplies Department was not available in the office and he required proof of that service. The petitioner sent several letters to the Commissioner of Fisheries, Director of Fisheries and Accountant General explaining various circumstances and submitted the proof and information for treating his service from 22nd August 1949 to 30th June, 1954 as continuous service. The Accountant General, State of Gujarat, vide his letter dated 17.2.1986 informed the Commissioner of Fisheries that since each entry of the petitioner's period of service from 22.8.49 to 30.6.54 rendered in Civil Supplies Department in the duplicate service book had not been attested nor the authority for counting the said service as continuous and qualifying service for the purpose of computation of pension has been furnished, the petitioner is not entitled to pension for the period of service from 22.8.49 to 30.6.1954. It is stated that the petitioner has not furnished any document for the service rendered in Civil Supplies Department. The said period of service has not been entered in the service book. Hence, he could not sanction pension for the said earlier period. The Commissioner of Fisheries informed the petitioner by a letter dated 30.9.1986 that nothing is required to be done in the matter any further. Hence, the petitioner has filed the present petition.
3. The original service book containing all the entries of the service rendered by the petitioner in Civil Supplies Department during the period from 22nd August 1949 to 30th June, 1965 and each entry was duly and properly authenticated. Said record of the service book containing four pages ( page nos. 39 to 42) has been lost by the department. The petitioner cannot be made to suffer on account of loss on the part of the department or for not properly maintaining the service book of the petitioner. Hence, the respondents are estopped from denying that the service in the Civil Supplies Department would not be treated as continuous. The petitioner has been ilelgally and unjustifiably deprived of full pension benefits by not taking into account the earlier period of service rendered by him in the Civil Supplies Department as qualifying period of service for the purpose of pension. The decision of the respondents in not treating the service of the petitioner in Civil Supplies Department as qualifying service for computation of pension is arbitrary, illegal and violative of Article 14 of the Constitution of India.
4. The affidavit-in-reply has been filed by one B.S.Rami, Under Secretary, Ports and Fisheries Department stating therein that the service record that is available in the office does not indicate anything about the services rendered in Civil Supplies department for the period from 22nd August, 1949 to 30.6.1954. In absence of such authentic evidence for continuous service, it is not possible to treat his service to be continuous from 22nd August, 1949 as claimed by the petitioner. The petitioner joined Fisheries Department after qualifying for the service as Clerk. The Civil Supplies Department relieved the petitioner to join the service in Fisheries department pursuant to the petitioner's passing Public service Commission, Bombay. Civil Supplies Department has not stated that his services in Civil Supplies Department were to be treated as continuous. The petitioner's service could only be considered to be regularly appointed after passing PSC examination with effect from 1.7.54. There does not seem to be any order from Civil Supplies Department. Hence, his services after passing PSC examination have been taken into consideration and continued since then till his retirement. The petitioner's claim that in Fisheries Department he was given the pay scale at initial stage of Rs.80/- because he had put up more than three years services before joining the services of Fisheries Department, cannot be considered as the services rendered before Fisheries Department in which he was appointed on regular basis and the petitioner would have got three increments. The leave account cannot be taken into consideration for consideration of regular service. The petitioner's right to regular service comes into existence after passing of the public service commission's examination. Hence, the petitioner's regular service has been considered from 1.7.54. The page nos. 39 to 42 of the petitioner's service book belonging to Civil Supplies Department cannot be found in the record of the service book. The petitioner has not produced any document or evidence affirming his service as continuous and regular from 22nd August, 1949. The duplicate service book which according to the petitioner exists, has not been produced by the petitioner. Such duplicate service book does not exist in the office record. Though the petitioner asked as per the letter to furnish copy of the authenticated record about continuity of his service in Civil Supplies Department, it has not been furnished. In absence of any authenticated evidence, it is not possible to consider his claim. It is also stated that the petitioner has not furnished the evidence about continuity and regularity of his service in Civil Supplies Department. Therefore, it is not possible for the department to consider his services in Civil Supplies Department for computation of his pension. The petitioner himself has admitted that his services in the Civil Supplies Department in Bombay were also of temporary nature.
5. Heard the learned counsel for the parties and perused the relevant papers on record.
6. From the record, it appears that the petitioner has served from 22nd August, 1949 to 30th June, 1954 in Civil Supplies Department. The Accountant General, Accounts and Entitlement, Gujarat wrote a letter to the Commissioner of Fisheries dated 17.2.1986 wherein it is stated that the period of service from 22nd August, 1949 to 30th June, 1954 rendered in Civil Supplies Department has been noted in his service book under proper attestation as service book was returned for necessary action. That letter clearly indicates that there are entries in the service book regarding service of the petitioner from 22nd August, 1949 to 30th June, 1954, but they have not been properly attested by the authorities concerned. Once, the service record comes with the authority concerned, it is the duty of the department concerned to make authenthicate entries and for the fault of the department, the petitioner cannot be held liable or penalised. The petitioner has informed by his letter dated 30th September, 1986 to the Accountant General that the department has already returned the service book of the petitioner to the office of the Accountant General and he required the duplicate book. The fact has not been denied by the respondents that the petitioner has worked as a Junior clerk in the Civil Supplies Department from 22nd August, 1949 to 30th June, 1954. If the petitioner has worked in the Government department and he was taken over by another department, and he was required to join another department allocated to him, the services of the petitioner in Civil Supplies Department cannot be denied for the purpose of calculating pension. Even if it appears that there are certain entries in the service book regarding services rendered by the petitioner in the Civil Supplies Department, but it seems that those entries have not been attested by the proper authority. It is the duty of the authority concerned to make proper authentication or attestation of the entries. For the fault of the department, the petitioner cannot be penalised. Eventhough there is no entry made in the service book of the petitioner regarding the services rendered in Civil Supplies Department, the petitioner will be entitled for the benefit of that service rendered by him as continuous service in the subsequent service. The act of denying the legitimate rights of the petitioner of continuous service for the purpose of calculating pension is in violation of the principles of natural justice and provisions of Articles 14 and 16 of the Constitution of India. As such, the acts of the respondents in denying pensionary benefits and not calculating the continuous services of the petitioner rendered in Civil Supplies Department are illegal, unjust and violative of Articles 14 and 16 of the Constitution of India. Therefore, the petitioner is entitled for those benefits by treating the services rendered by the petitioner in Civil Supplies Department as qualifying service for continuous service. In the facts and circumstances of the case, this petition deserves tobe allowed.
7. In view of the above, this petition is allowed. The respondents are directed to treat the services of the petitioner rendered during the period from 22nd August, 1949 to 30th June, 1954 as qualifying service for pensionary benefits. The respondent no.3 is directed to finalise the pensionary benefits payable to the petitioner on the basis of the petitioner's qualifying services rendered from 22nd August, 1949 to 28th February, 1985 within three weeks from today and pay the same to the petitioner within a period of six weeks thereafter with interest at the rate of 6% per annum. Rule is made absolute accordingly with no order as to costs.