Gujarat High Court
Suryakanta Chimanlal Shah vs State Of Gujarat & on 21 February, 2013
Author: Paresh Upadhyay
Bench: Paresh Upadhyay
SURYAKANTA CHIMANLAL SHAH....Petitioner(s)V/SSTATE OF GUJARAT C/SCA/5985/1997 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 5985 of 1997 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE PARESH UPADHYAY Sd/- ================================================================ 1 Whether Reporters of Local Papers may be allowed to see the judgment ? Yes 2 To be referred to the Reporter or not ? Yes 3 Whether their Lordships wish to see the fair copy of the judgment ? No 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 ? No 5 Whether it is to be circulated to the civil judge ? No ================================================================ SURYAKANTA CHIMANLAL SHAH ....Petitioner Versus STATE OF GUJARAT & OTHERS ....Respondents ================================================================ Appearance: MR DIPAK R DAVE, ADVOCATE for the Petitioner MR RONAK RAWAL, AGP for the Respondents No. 1 2 State MR SAURABH MEHTA for NANAVATI & NANAVATI, ADVOCATE for the Respondents No. 3 ================================================================ CORAM: HONOURABLE MR.JUSTICE PARESH UPADHYAY Date : 21/02/2013 ORAL JUDGMENT
1. Heard Mr. Dipak R. Dave, learned advocate for the petitioner, Mr. Ronak Rawal, learned AGP for the State authorities and Mr. Saurabh Mehta learned advocate for Nanavati & Nanavati, for respondent no.3- Administrative Officer of Ahmedabad Municipal School Board.
2. The petitioner has retired as a teacher on 31.10.1993. He had initially joined the service of the District Panchayat, Panchmahals as an Assistant Teacher on 04.09.1954 and he served there upto 01.08.1965. From 02.08.1965 the petitioner served as an Assistant Teacher with respondent no.3 authority. He retired on attaining the age of superannuation on 31.10.1993. The petitioner is paid pension considering his service from 02.08.12965 to 31.10.1993. In this petition, it is prayed that even the earlier service which was rendered with District Panchayat, Panchmahals, should have been treated as continuous service and the petitioner ought to have been paid pension accordingly.
3. Learned counsel for the petitioner has stated that there is no break in service and even had there been any break, the same ought not to have come in the way of the petitioner, in view of the policy of the Government, based on which even the orders are passed by this Court. Learned counsel for the petitioner has relied on the decision of this Court rendered in Special Civil Application No.4987 of 2002. Learned counsel for the petitioner also drawn attention of the Court that the said view is confirmed by the Division Bench and the same has remained uninterferred with even by the Supreme Court. It is further indicated that in the facts of this case, there is no break and therefore the petitioner is on stronger footing. Therefore it is prayed that the earlier service should also have been taken into consideration.
4. Learned AGP Mr. Rawal by referring to the affidavit-in-reply contended that, since there was no NOC granted from the District Education Committee, Panchmahal, the petitioner can not claim continuity. The stand reflected in the affidavit-in-reply does not stand in consonance with the policy of the Government as contained in Circular dated 28.08.1990 which is on record, since as per the said Circular it is the NOC of the concerned school would be necessary and not of the District Education Committee. Further, learned Assistant Government Pleader is not in a position to dispute the proposition of law as referred above, which was even otherwise the policy of the Government. Under these circumstances, the denial by the authorities to treat the entire service of the petitioner as pensionable service can not be held to be legal and the stand of the authorities also needs to be rejected.
5. In above view of the matter, it is held that the petitioner is entitled to pension for the entire service which he has put in i.e. from 04.09.1954 to 31.10.1993. The action of the authorities of, treating the service of the petitioner from 02.08.1965 to 31.10.1993 only as pensionable service, and excluding the period of service from 04.09.1954 to 01.08.1965 by treating it as non-pensionable service, is held to be illegal and set aside.
6. For the reasons recorded above, the petition is allowed. The respondents are directed to consider the entire service of the petitioner i.e. from 04.09.1954 to 31.10.1993 as pensionable service and the petitioner shall be paid his retirement dues accordingly. Arrears of difference in pension and other retirement dues shall be paid to the petitioner within a period of three months from today.
Rule made absolute. No order as to costs.
Sd/-
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