Gujarat High Court
Dinkarbhai vs State on 7 April, 2010
Author: Ks Jhaveri
Bench: Ks Jhaveri
Gujarat High Court Case Information System
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SCA/9071/2002 1/ 13 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 9071 of 2002
With
SPECIAL
CIVIL APPLICATION No. 9994 of 2002
With
SPECIAL
CIVIL APPLICATION No. 10140 of 2002
With
SPECIAL
CIVIL APPLICATION No. 9992 of 2002
With
SPECIAL
CIVIL APPLICATION No. 10138 of 2002
With
SPECIAL
CIVIL APPLICATION No. 10137 of 2002
With
SPECIAL
CIVIL APPLICATION No. 394 of 2003
With
SPECIAL
CIVIL APPLICATION No. 9993 of 2002
With
SPECIAL
CIVIL APPLICATION No. 10136 of 2002
With
SPECIAL
CIVIL APPLICATION No. 10139 of 2002
With
SPECIAL
CIVIL APPLICATION No. 9995 of 2002
With
SPECIAL
CIVIL APPLICATION No. 9996 of 2002
To
SPECIAL
CIVIL APPLICATION No. 9999 of 2002
For
Approval and Signature:
HONOURABLE
MR.JUSTICE KS JHAVERI
=========================================================
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, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
DINKARBHAI
MANISHANKAR JOSHI - Petitioner(s)
Versus
STATE
OF GUJARAT & 4 - Respondent(s)
=========================================================
Appearance
:
MR BP
MUNSHI for
Petitioner(s) : 1,MS NIRALI B MUNSHI for Petitioner(s) : 1,
MR.
J.K.SHAH AGP for Respondent(s) : 1 - 3.
MR MITUL K SHELAT for
Respondent(s) : 4,
MR RC KAKKAD for Respondent(s) :
5,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date
: 07/04/2010
ORAL
JUDGMENT
In all the above petitions the petitioners have approached this Court for appropriate direction for availing of the pensionary and other consequential benefits accorded by Statue 175 dated 23/26.6.1998 and assented by the Chancellor His Excellency the Governor of Gujarat. According to the petitioners they are being denied the pensionary and other benefits even though they entitled to the same. According to them this is being done in spite of the orders of this Court.
Learned counsel Mr. Nanavati for the petitioner contended that the respondents have no power or authority to amend the Statue No. 175 in any manner or with retrospective effect. In that view of the matter, the order dated 8/9-August-2002 passed by the respondents are bad in law. He has further pointed out that in similar situation in, Special Civil Application bearing no. 9984 of 2001 this Court on 2.5.2001 has passed an order in favour of the petitioner therein,which reads as under :-
Rule. Mr. Sompura, learned AGP waives service of rule for respondent No.1 and Mr.Manoj Popat, learned advocate waives service of rule for respondent Nos.4 and
5.
2. While adjourning the hearing of this petition to 27.4.2001 on 11.4.2001 it was made clear that the matter would be heard peremptorily since the petition involves the question of nonpayment of pension to the retired employee. Accordingly the petition is taken up for final disposal today.
3. The petitioner retired as an Assistant Registrar of the Gujarat Ayurved University on 30.11.1997 on reaching the age of superannuation. It appears that the petitioner had earlier opted for Contributory Provident Fund Scheme, but by the Government Resolution dated 21.1.1989 the State Government gave option of the Pension Scheme to the employees of the Gujarat Ayurved University. The relevant portion of the Government Resolution reads as under :-
".....After careful consideration, Government is pleased to direct that the pension, gratuity and other retirement benefits admissible to the Gujarat State Government servants under the Revised Pension Rules, 1950 contained in Appendix-XIV to BCSR Rules, Volumes II, as amended from time to time, the family pension scheme sanctioned in Government Resolution, Finance Department No.FPS-1071-J, dated 1.1.72 as amended from time to time should be made applicable to the full time nonteaching staff of the Gujarat Ayurved University and teaching staff of the Gulabkunverba Ayurved Mahavidyalaya of the Gujarat Ayurved University under the Health and Family Welfare Department in this State with effect from 1.10.81 and to the staff who was in service of the University on 23.6.76 to 30.9.81 as provided in the Statute No.175 (B).
.....Where the members of staff eligible for the scheme have retired/resigned after 1.10.81 to the date of issue of this Government Resolution and who have received their CPF amount including the University contribution and Government's share together with the interest thereon, desires to opt for pension scheme as admissible under this Government Resolution should execute undertaking as in Appendix-B alongwith an option as provided under this scheme. In such cases the amount received on account of University's contribution, Government's share and interest earned thereon by the member shall be adjusted against the arrears of pension and amount of D.C.R.G. admissible under this scheme. If the amount exceeds the amount of arrears of pension so received D.C.R.G. payable to him the balance amount shall be paid by him within two months in the Government Treasury."
4. The University amended its Statutes, particularly Statute No.175 on the basis of the aforesaid Government Resolution on 18.6.1998 i.e. the date on which the Chancellor granted his assent to the amended Statute. That Statute is set out at Annexure-C to the petition. The question arose as to what was to be done with regard to the employees who retired between 1.10.1981 to 18.6.1998. The Statute was amended to deal with that class of employees. The University issued the circular and invited the employees to give option whether they wanted to switch-over from the Contributory Provident Fund Scheme to Pension Scheme. That circular dated 20/22.7.1998 is at Annexure-D to the petition.
In response to the said circular, in all 12 employees who had retired / resigned between 1.10.1981 and 18.6.1998 gave their option for such switch-over from the Contributory Provident Fund Scheme to Pension Scheme. The petitioner was one of them. There were two more applicants who gave their option but with whom we are not concerned in this petition. The University accepted the above option forms subject to the approval by the State Government. However, the State Government declined to grant approval and communicated that decision by letter dated 14.6.2000 (Annexure-N to the petition) on the ground that the amendment to Statute No.175 of the University came into force on 18.6.1998 which was the date on which the Chancellor granted his assent, hence, the benefits of the Pension Scheme could have been given only to the employees who retired after 18.6.1998 and since the petitioner had retired on 30.11.1997 the petitioner was not entitled to this benefit. It is to challenge the aforesaid decision that the petitioner has approached this Court.
5. As far as the respondent - Gujarat Ayurved University is concerned, in view of the fact that the University itself had invited the options from the employees who had retired between 1.10.1981 to 18.6.1998 and that the University itself had accepted the same (albeit subject to Government approval) there is no question of any resistance from the University to the petitioner's claim for permission to switch-over from the Contributory Provident Fund Scheme to the Pension Scheme. The contesting respondent is the State Government on whose behalf affidavit-in-reply is filed reiterating the same stand which was taken up in the impugned reply dated 14.6.2000 (Annexure-N to the petition).
6. When the Government itself had issued the Resolution dated 21.1.1989 applying the Government Resolution dated 1.1.1972 as amended from time to time to the full time nonteaching staff of the Gujarat Ayurved University and teaching staff of the Gulabkunverba Ayurved Mahavidyalaya of the said University with effect from 1.10.1981 and even to the staff who was in service of the University between 23.6.1976 to 30.9.1981 and Clause 1(c)(iv) specifically provided that where the members of staff eligible for the scheme have retired / resigned after 1.10.1981 to the date of issue of the Government Resolution (21.1.1989) and who have received their CPF amount desire to opt for pension scheme as admissible under the said Government Resolution should execute undertaking etc., it is not open to the Government to contend now that the pension scheme was not applicable to the University employees who had retired prior to 18.6.1998.
7. The learned counsel for the petitioner has also contended that M/s V.J.Thakar and C.P.Shukla were the employees of the University and they had also retired prior to 1998 and still they have been given the benefits of the Pension Scheme.
The learned AGP contends that the said employees had never opted for the Contributory Provident Fund Scheme earlier and they had only opted for the Pension Scheme, therefore, there was no question of discrimination.
When the Government Resolution dated 21.1.1989 is so eloquent, whether the cases of M/s V.J.Thaker and C.P.Shukla stand on the same footing or not has no consequence. The petitioner's case is squarely covered by the Government Resolution dated 21.1.1989.
8. In view of the above, the petition succeeds and the same is allowed. The impugned order dated 14.6.2000 (Annexure-N to the petition) is quashed and set aside. The respondents are directed to give the petitioner benefits of the Government Resolution dated 21.1.1989 (Annexure-O to the petition) and the Office Order dated 21.11.1998 (Annexure-F to the petition). The retiral dues as per the aforesaid directions shall be computed within two months from the date of receipt of the writ of this Court or a certified copy of this order, whichever is earlier and after adjusting the Contributory Provident Fund amount as per the formula contained in the aforesaid Government Resolution and the relevant Resolutions applicable, the petitioner shall be paid the arrears of pension within two months from the date of computation as directed above.
9. Rule is made absolute with no order as to costs.
The said order was carried in Letters Patent Appeal bearing no. 516 of 2002, wherein Division bench of this Court has confirmed the order passed by the single judge. The said order reads as under :-
1. The only question which comes to the surface in this Letters Patent appeal under Clause 15 of the Letters Patent for our consideration and adjudication is as to whether the acceptance of the request of the respondent no.1-original petitioner for exercise of second option for opting to pension scheme is, in any way, unjust, unreasonable or vulnerable requiring our interference in this Letters Patent appeal or not?
2. Be it stated at the outset that the respondent no.1 is the original petitioner who is denied the right to exercise option to pension scheme instead of the CPF.
2.1 The respondent no.1-original petitioner was appointed as Head Clerk in the Gujarat Ayurvedic University on 25-4-1967. The Government of Gujarat passed a Resolution in Health and Public Welfare Department introducing pension scheme for the employees of the Gujarat Ayurvedic University. The amendment in the Statute 175B came to be made, and also, was approved by the Chancellor of the University on 12-6-1998. The University by its letter dated 18/21-11-1998 accepted the fresh option dated 20-7-1998 of the petitioner and forwarded to the Competent Authority for necessary action. The petitioner had also made representation dated 18-8-1999 to the Finance Department. Despite reminder by a letter, the Department did not pass a favourable order. Therefore, the petitioner has invoked the extraordinary constitutional writ remedy under Article 226. The learned Single Judge upon consideration of the facts and circumstances, upheld the contentions raised on behalf of the respondent and passed necessary consequential directions. Hence, this Letters Patent appeal.
3. We have heard the learned Advocate appearing for the parties. We have also minutely examined the record of the present case. The impugned order of the learned Single Judge is sought to be challenged on the ground that the petitioner is entitled to exercise his option for the purpose of availing the benefit of pension scheme instead of CPF. After considering the text and tenor of the impugned order of the learned Single Judge in the backdrop of the design of the second option and the factual matrix, the learned Assistant Government Pleader could not persuade us, as to why we should interfere with the impugned order of the learned Single Judge. We have also examined the relevant provision incorporated in Statute 175 of the Gujarat Ayurvedic University, Jamnagar, so also, the circular dated 22-7-1998 and the office order dated 22-11-1998. After having read the documents and the impugned order with reasons recorded by the learned Single Judge, we are fully convinced and satisfied that the impugned order of the learned Single Judge is quite justified warranting no interference of this Court in exercise of our appellate powers under Clause 15 of the Letters Patent Act. Therefore, we have to raise our hands in helplessness and to dismiss this Letters Patent appeal. Accordingly, this Letters Patent Appeal is dismissed with no order as to costs.
Learned AGP submitted that the State Government had prescribed a time limit for filing options under the Government Resolution dated 21.1.1989 whereby the employees of the University were required to exercise option to either come under the Pension Scheme or to continue under the Contributory Provident Fund Scheme. He has further contended that any options called for and submitted beyond the date prescribed by the State Government are not binding on the State Government and the State Government is not bound to approve of the same. He also submitted that the financial condition of the petitioner is not good.
Learned AGP has relied upon decision of Apex Court in the case of Union of India V/s. A.S. Gangoli and Others reported in (2007) 6 SCC 196, paragraph 17 of the said order reads as under :-
Para
17.
It was contended that one Lt. Col B.R. Malhotra was permitted to retire prematurely for the immediate purpose of being absorbed in a PSU (Bharat Electronics Ltd. - BEL) that he was also denied the benefit of weightage, and he approached the Delhi High Court in CWP No. 184 of 1997 and the High Court granted the benefit of weightage by its judgment in Lt. Col. B.R.Malhotra V. Union of In India; that the appellant did not challenge the said decision, but gave effect to it; and that having done so, the appellant is required to give such relief to the respondents also in view of the doctrine of constructive res judicata. An identical contention claiming relief based on a direction in the case of another retire, was negatived by this Court in Col. B.J. Akkara (Retd. ) v. Govt. of India following the earlier decision in State of Maharastra V. Digambar. This Court held : (SCC p. 728, para 26) A particular judgment of the High Court may not be challenged by the State where the financial repercussions are negligible or where the appeal is barred by limitation. It may also not be challenged due to negligence or oversight of the dealing officers or on account of wrong legal advice, or on account of the non-comprehension of the seriousness or magnitude of the issue involved. However, when similar matters subsequently crop up and the magnitude of the financial implications is realised, the State is not prevented or barred from challenging the subsequent decisions or resisting subsequent writ petitions, even though judgment in a case involving similar issue was allowed to reach finality in the case of others. Of course, the position would be viewed differently, if petitioners plead and prove that the State had adopted a 'pick and choosen' method only to exclude petitioners on account of mala fides or ulterior motives.
That apart, the facts of Lt. Col. B.R.Malhotra were different. He was working on deputation with BEL. He retired from the army on 12.5.1985. he got absorbed in BEL and was given post facto sanction by the President on 10.7.1985. Certain weightage element was sought to be deducted from the standard rate of pension on the ground that he had been permanently absorbed in a PSU. The High Court found that there was a in fact no weightage element in his case and there was also no rule or regulation applicable to him. Which enabled the Union of India to deduct any weightage element . The said decision is, therefore, of no relevance.
5.1 Learned AGP Mr. Shah has also relied upon the judgment of Apex Court in the case of Government of Andhra Pradesh & Others V/s. K. Brahmanandam & Others reported in (2008) 5 SCC 241. In para 14 Apex Court has observed as under :-
The liability of the State to pay salary to a teacher appointed in the recognised schools would arise provided the provisions of the statutory rules are complied with, subject to just exception. The right to claim salary must arise under a contract or under a statute. If such a right arises under a contract between the appointee and the institution, only the latter would be liable therefor. Its right in certain situation to claim reimbursement of such salary from the State would only arise in terms of the law as was prevailing at the relevant time. If the State in terms of the statue is not liable to pay the salary to the teachers, no legal right accrues in favour of those who had been appointed in violation of mandatory provisions of the statue of statutory rules.
5.2 Learned AGP Mr. Shah has also relied upon the judgment of Apex Court in the case of Government of Andhra Pradesh & Others V/s.
N. Subbarayudu & Others reported in (2008) 14 SCC 702. In para5 to 7 Apex Court has observed as under :-
5.
In a catena of decisions of this Court it has been held that the cut-off date is fixed by the executive authority keeping in view the economic conditions, financial constraints and many other administrative and other attending circumstances. This Court is also of the view that fixing cut-off dates is within the domain of the executive authority and the court should not normally interfere with the fixation of cut-off date by the executive authority unless such order appears to be on the face of it blatantly discriminatory and arbitrary.
6. No doubt in D.S. Nakara V. Union of India this Court had struck down the cut-off date in connection with the demand of pension. However, in subsequent decisions this Court has considerable watereddown the rigid view taken in Nakara case as observed in para 29 of the decision of this Court in State of Punjab v. Amar Nath Goyal.
7. There may be various considerations in the mind of the executive authorities due to which a particular cut-off date has been fixed. These considerations can be financial, administrative or other considerations. The court must exercise authorities to fix the cut-off date. The Government must be left with some leeway and free play at the joints in this connection.
The issue raised in this petition is squarely covered by the decision in Special Civil Application bearing no. 9984 of 2000. Para 5 to 8 reads as under :
5. As far as the respondent - Gujarat Ayurved University is concerned, in view of the fact that the University itself had invited the options from the employees who had retired between 1.10.1981 to 18.6.1998 and that the University itself had accepted the same (albeit subject to Government approval) there is no question of any resistance from the University to the petitioner's claim for permission to switch-over from the Contributory Provident Fund Scheme to the Pension Scheme.
The contesting respondent is the State Government on whose behalf affidavit-in-reply is filed reiterating the same stand which was taken up in the impugned reply dated 14.6.2000 (Annexure-N to the petition).
6. When the Government itself had issued the Resolution dated 21.1.1989 applying the Government Resolution dated 1.1.1972 as amended from time to time to the full time nonteaching staff of the Gujarat Ayurved University and teaching staff of the Gulabkunverba Ayurved Mahavidyalaya of the said University with effect from 1.10.1981 and even to the staff who was in service of the University between 23.6.1976 to 30.9.1981 and Clause 1(c)(iv) specifically provided that where the members of staff eligible for the scheme have retired / resigned after 1.10.1981 to the date of issue of the Government Resolution (21.1.1989) and who have received their CPF amount desire to opt for pension scheme as admissible under the said Government Resolution should execute undertaking etc., it is not open to the Government to contend now that the pension scheme was not applicable to the University employees who had retired prior to 18.6.1998.
7. The learned counsel for the petitioner has also contended that M/s V.J.Thakar and C.P.Shukla were the employees of the University and they had also retired prior to 1998 and still they have been given the benefits of the Pension Scheme.
The learned AGP contends that the said employees had never opted for the Contributory Provident Fund Scheme earlier and they had only opted for the Pension Scheme, therefore, there was no question of discrimination.
When the Government Resolution dated 21.1.1989 is so eloquent, whether the cases of M/s V.J.Thaker and C.P.Shukla stand on the same footing or not has no consequence. The petitioner's case is squarely covered by the Government Resolution dated 21.1.1989.
8. In view of the above, the petition succeeds and the same is allowed. The impugned order dated 14.6.2000 (Annexure-N to the petition) is quashed and set aside. The respondents are directed to give the petitioner benefits of the Government Resolution dated 21.1.1989 (Annexure-O to the petition) and the Office Order dated 21.11.1998 (Annexure-F to the petition). The retiral dues as per the aforesaid directions shall be computed within two months from the date of receipt of the writ of this Court or a certified copy of this order, whichever is earlier and after adjusting the Contributory Provident Fund amount as per the formula contained in the aforesaid Government Resolution and the relevant Resolutions applicable, the petitioner shall be paid the arrears of pension within two months from the date of computation as directed above.
7. In view of above order, I am of the view that the present petitions also deserved to be allowed. Accordingly for the reasons set out in the aforesaid judgment, the petitions are allowed. The orders impugned in these petitions are quashed and set aside. The respondents are directed to give the petitioners benefits of Government resolution dated 21st January 1989 and the Office order dated 21.11.1998. The retiral dues shall be computed within two months from the date of receipt of the writ of this Court or a certified copy of this order. The petitioners shall be paid the arrears of pension within two months from the date of computation as directed above. Rule is made absolute accordingly with no order as to costs.
[K.S.Jhaveri,J.] *Himansu Top