Gujarat High Court
H.M. Dave vs Chief Secretary & 3 on 27 April, 2016
Author: A.G.Uraizee
Bench: A.G.Uraizee
C/SCA/1904/2003 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 1904 of 2003
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE A.G.URAIZEE
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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H.M. DAVE....Petitioner(s)
Versus
CHIEF SECRETARY & 3....Respondent(s)
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Appearance:
HCLS COMMITTEE, ADVOCATE for the Petitioner(s) No. 1
MR P C CHAUDHARI, ADVOCATE for the Petitioner(s) No. 1
MS AMITA SHAH AGP for the Respondent(s) No. 1 - 4
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CORAM: HONOURABLE MR.JUSTICE A.G.URAIZEE
Date : 27/04/2016
ORAL JUDGMENT
1. The petitioner has preferred present petition to challenge the decision dated 11/10/1999 of the Page 1 of 6 HC-NIC Page 1 of 6 Created On Sun May 01 03:55:39 IST 2016 C/SCA/1904/2003 JUDGMENT Additional Chief Secretary,Education Department, Gujarat State, whereby request to tag his service from 3/4/1948 to 15/7/1952 as a Teacher with Navanagar Government High School is declined.
2. The facts in nutshell for the disposal of this petition are few and moved in narrow compass. The petitioner joined Navanagar Government High School, Jamnagar on 3/4/1948 as a Teacher. He was transferred to Botad High School, District Bhavnagar where he served upto 15/7/1952. The petitioner resigned from service on 15/7/1952. Once again, he came to be appointed as an Assistant Teacher in the same Navanagar Government High School, Jamnagar on 2/1/1956. He served at the said School on the said capacity till his superannuation dated 30/4/1982. Upon his superannuation, his pension came to be fixed on the basis of his service from 2/1/1956 to 30/4/1982. The petitioner preferred SCA No. 2637/1997 in this Court for tagging his earlier service from 3/4/1948 to 15/7/1952 for the purpose of pension in view of Finance Department's Government Resolution No. PEN 1066/4465J dated 24/2/1966. By order dated 30/4/1999, this Court relegated the petitioner to the authorities concerned with his grievance and the authorities were directed to decide the representation in light of the decision of this Court in case of B.B.Desai Vs. Accountant General, Ahmedabad and Ors in SCA No. 7115/1985 Page 2 of 6 HC-NIC Page 2 of 6 Created On Sun May 01 03:55:39 IST 2016 C/SCA/1904/2003 JUDGMENT decided on 23/9/1986. Respondent No. 2 by the impugned order dated 11/10/1999 refused to tag the earlier service of the petitioner mainly on the ground of provisions of Rule 250 of B.C.S.R. and the resolution of Finance Department dated 25/1/1978 as the petitioner has resigned from his earlier service. The petitioner being aggrieved by the impugned communication, once again, before this Court for redressal of his grievance.
3. I have heard Mr. P.C.Chaudhary, learned advocate for the petitioner and Ms. Amita Shah, learned AGP for the respondents.
4. The issue involved in this petition is that respondent No. 2 has declined to consider earlier service of four years that the petitioner has put up with the same school as Teacher mainly on the ground that the provision of Rule 250 of B.C.S.R. does not permit tagging of the service, which was abandoned by the Government Servant on the ground of his resignation. This very issue of interpretation of Rule 250 of B.C.S.R. raised for consideration of this Court in case of D.B.Thanki Vs. State of Gujarat 2001 (1) GLR 694, wherein this Court has considered the provisions of rule 250 of B.C.S.R. and has observed as under: 3 & 4
3. Under Rule 250 of the BCSR, it is provided in Clause (b) that unless Government in any case otherwise direct, an interruption of service shall entail cancellation of all duty counting Page 3 of 6 HC-NIC Page 3 of 6 Created On Sun May 01 03:55:39 IST 2016 C/SCA/1904/2003 JUDGMENT for pension. Resignation of Government Service constitutes an interruption of service as laid down in Rule 250 (a)(1). Therefore, if the rule applied to the petitioner's case since he had resigned of his own, there was interruption of service which entailed cancellation of all duty that he had performed prior to the resignation for the purpose of counting pension. It however, appears that after liberalization reflected in the resolution dated 24th February 1966 which is at Annexure-A, Note : 4 has been added to Rule 250 of BCSR by notification dated 1st May, 1971 and the said Note 4 reads as under :-
"The provisions of this rule shall not apply to a Government servant retiring on or after 1st April, 1966 and to whom the Revised Pension Rules, 1950 are applicable, provided that the Government servant who is reappointed to Government service after resignation of his own accord or after removal from Government service, the service rendered by him prior to the date of resignation or removal shall not count for pension or Death cum Retirement Gratuity unless specific entries are made in his book."
4. Therefore, the Rule which had the effect of treating cancellation of past service while counting qualifying period for pension, due to interruption brought about by resignation was made inapplicable to a Government servant retiring on or after 1st April, 1966 and to whom the revised pension Rules, 1950 were applicable, subject to proviso contained in Note 4 to Rule 250, as per which, the Rule would not apply only if the specific entries are made in his service book of the Government servant who is reappointed after resignation of his own accord. In the present case, it appears that concerned authority has not applied its mind to the provisions of Note 4 to Rule 250 and has by its communication at Annexure-C rejected the application of the petitioner on the basis of Note 3 of Rule 250 of BCSR, under which, Heads of Department may condone not more than three interruptions of total period not exceeding 3 Page 4 of 6 HC-NIC Page 4 of 6 Created On Sun May 01 03:55:39 IST 2016 C/SCA/1904/2003 JUDGMENT months in all. Note : 3 would be applicable if the rule itself applied and interruptions have the effect of entailing cancellation of all duty counting for pension. In the instant case, there was no question involved of any powers of Heads of Department to condone but the question was as to whether Rule 250 itself applied in view of the Note 4 mentioned above. If Rule 250 is held to be inapplicable which depends on the requirement of the proviso of Note 4 to Rule 250 being satisfied, then reference to other Notes would not be relevant but if the Rule applies then the question may have to be considered in light of its provisions read with other notes. In this view of the matter, the impugned communication at Annexure-C to the petition rejecting the application of the petitioner dated 7th May, 1984 is hereby set aside and the respondent is directed to reconsider the application of the petitioner dated 7th May, 1984 which is at Annexure-B to the petition, in light of the provisions contained in Note : 4 of Rule 250 of the BCSR and take a fresh decision in the matter expeditiously preferably within 4 weeks from the date on which the writ of this order is received by the respondent. Rule is made absolute accordingly with no order as to costs."
5. It is, thus, abundantly clear that note 4 to Rule 250 is applicable to all those employees, who have retired after 1966. There is no dispute that the petitioner has retired in 1982. Therefore, Note 4 of Rule 250 is applicable and the services he rendered as a teacher from 3/4/1948 to 15/7/1957 are required to be tagged with his subsequent service as Assistant Teacher w.e.f. 2/1/1956 upto his retired on 30/4/1982.
6. In the present case, it appears that concerned Page 5 of 6 HC-NIC Page 5 of 6 Created On Sun May 01 03:55:39 IST 2016 C/SCA/1904/2003 JUDGMENT authorities have not applied its mind to the provisions of Note 4 to Rule 250 and has rejected the request of the petitioner, therefore, I am of the opinion that respondent no. 2 has committed serious error in refusing to entertain the request of the petitioner to tag his earlier service with his subsequent service for the purpose of counting pensionable service.
7. For the foregoing reasons the petition succeeds and is hereby allowed. The respondents are directed to reconsider the case of the petitioner for tagging his earlier service from 3/4/1948 to 15/7/1952, which he had put up with Navanagar Government High School with his subsequent service with the same school from 2/1/1956 till he retired on attending age of superannuation on 30/4/1982 for the purpose counting pensionable service in light of the observations made hereinabove.
8. Respondents are directed, to complete exercise within period of two months from the date of receipt of copy of this order.
(A.G.URAIZEE,J) Asma Page 6 of 6 HC-NIC Page 6 of 6 Created On Sun May 01 03:55:39 IST 2016