Gujarat High Court
Bhupendra Vallabhdas Chudasama vs State Of Gujarat Thro Secretary & 3 on 16 April, 2014
Author: C.L.Soni
Bench: C.L. Soni
C/CA/6951/2013 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL APPLICATION (FOR DIRECTION) NO. 6951 of 2013
In
SPECIAL CIVIL APPLICATION NO. 7173 of 2012
With
SPECIAL CIVIL APPLICATION NO. 7173 of 2012
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE C.L. SONI
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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, 1950 or any
order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
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BHUPENDRA VALLABHDAS CHUDASAMA....Applicant(s)
Versus
STATE OF GUJARAT THRO SECRETARY & 3....Respondent(s)
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Appearance:
MR BIREN A VAISHNAV, ADVOCATE for the Applicant(s) No. 1
MR. NIRAJ ASHAR, AGP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE C.L. SONI
Date : 16/04/2014
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C/CA/6951/2013 JUDGMENT
COMMON ORAL JUDGMENT
1. Since, the Special Civil Application is notified with the Civil Application, learned advocates appearing for the parties requested to decide the main petition accordingly. The main petition is heard for final disposal.
2. The petitioner has made following prayers in para No.9.
"(A) Admit this petition.
(B) Allow this petition by quashing and setting aside the impugned communication dated 23.2.2012 issued by respondent no. 2 (received by the petitioner on 21.3.2012) (at Annexure A) as being illegal, arbitrary and violative of the constitutional guarantee enshrined under Article 14 of the Constitution of India.
(C) Declare that the past service rendered by the petitioner, viz. From 27.6.1968 to 17.11.1969 and from 15.6.1970 to 30.6.1975, is required to be considered as service qualifying for the purpose of pension without insisting upon the petitioner for filling up the Option Form in accordance with Govt.
Resolution dated 15.10.1984.
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C/CA/6951/2013 JUDGMENT (D) Direct that the petitioner is entiteld
to receive pension and other retirement benefits considering the service rendered by the petitioner under the respondent Education Department right from 27.6.1968 till the petitioner retired on superannuation on 14.6.2009 Or, in the alternative, and without prejudice (D) Direct the respondents to accept the Option Form from the petitioner in accordance with the Govt. Resolution dated 15.10.1984. (E) Direct the respondents to pay to the petitioner all other benefits such as provident fund, gratuity, encashment of earned leave, commuted pension, arrears of pay w.e.f. 1.1.2006 to 30.6.2009 and arrears due to revision of Senior scale from 10.10.2002 to 31.12.2005 in accordance with the letter dated 18.5.2011, with interest and costs.
(F) Pending admission hearing and till final disposal of this petition, Your Lordships may be pleased to direct the respondents to compute the amount of pension, gratuity, provident fund, commuted pension and other retirement benefits payable to the petitioner for the service rendered by the petitioner w.e.f. 16.7.1987 under the respondent no. 4 Page 3 of 22 C/CA/6951/2013 JUDGMENT college and pay the same to the petitioner forthwith, in the interest of justice. (G) Pending admission hearing and till final disposal of this petition, Your Lordships may be pleased to start making provisional pension to the petitioner subject to final outcome of this petition, on such terms and conditions as may be stipulated by this Hon'ble Court, in the interest of justice."
3. The case of the petitioner is that he joined respondent No.4 college as lecturer on 16.07.1987 and retired on superannuation with effect from 14.06.2009. Before that, he had worked as tutor at P.D.Malavia College, Rajkot from 27.06.1968 to 17.11.1969 and from 15.06.1970 to 30.06.1975. He worked as lecturer at Jasani Arts College, Rajkot. However, though he got benefits of past services as regards fixation of his pay scale and for the benefit of senior time scale recorded in his service book, however, his past services are not considered for the purpose of pension. It is his case that since he joined the services in the respondent No.4 college in the year 1987, he stood automatically governed by the pension scheme under Government Resolution of 1984 and Page 4 of 22 C/CA/6951/2013 JUDGMENT therefore there was no need to fill in any option form. He has averred that as per the said Government Resolution, past services rendered by him are required to be considered for the purpose of pension irrespective of his fill in option form. The petitioner has also made grievance as regards non release of his other benefits, though he was very much entitled for said benefits like provident fund, gratuity, leave encashment, arrears of pay, arrears of revision of senior scale etc.
4. The petition is opposed by the affidavit in reply filed by the Joint Director of Education. It is stated in the affidavit that the petitioner had resigned from Jasani College on 30.06.1975 and at that time, the scheme was not in force. It is further stated that from 1975 to 1987 for 13 years, the petitioner was not in Government service or in grant in aid college. It is further stated that when the petitioner joined respondent No.4 college on 16.07.1987, he did not fill up option form as per the Government Resolution dated 15.10.1984, however, the petitioner has already been paid retirement dues after considering his services from 16.07.1987. The Page 5 of 22 C/CA/6951/2013 JUDGMENT petitioner got the benefit of CPF for past services upto 1975 and did not show his willingness to deposit the said benefit and therefore also, the petitioner cannot be made entitled to the benefit of the past services for pension benefits under the Government Resolution dated 15.10.1984.
5. The petitioner has filed rejoinder affidavit pointing out that when he was appointed with respondent No.4, the pension scheme was already in force and therefore there was no need for him to fill in the option form. The petitioner has further stated in the rejoinder that for the period between 1968 to 1975, since there was no pension scheme as stated by the deponent in the affidavit in reply, he had refunded the amount of CPF benefits for which a certificate was given by the authority.
6. I have heard learned advocates for the parties. Learned advocate Mr.Biren Vaishnav for the petitioner submitted that since, the petitioner was appointed in the year 1987 in respondent No.4 college, he stood automatically governed by the pension scheme under Government Resolution dated 15.10.1984 and therefore, Page 6 of 22 C/CA/6951/2013 JUDGMENT there was no question of filling any option form. Mr.Vaishnav submitted that the Government Resolution dated 15.10.1984 makes specific provision for considering the past services of member of a teaching staff whether temporarily officiating or permanent, in any one or more than one non government aided colleges, universities, departments, higher secondary schools, which are being paid grant in aid from the Government for the purpose of pension benefits. Mr.Vaishnav submitted that the period of break in service is not to be considered as qualifying service i.e. the actual services rendered by the member of teaching or non teaching staff is intended to be considered as qualifying service for pension purpose. Mr.Vaishnav submitted that such being the policy for pension benefits and the pension benefits are not based on any Government Rules, the respondents were required to strictly act as per the policy of the Government under resolution dated 15.10.1984. Mr.Vaishnav submitted that simply because there was long gap of 13 years between the past services and the services rendered after 1987 by the petitioner, the past services could not be excluded for the purpose of Page 7 of 22 C/CA/6951/2013 JUDGMENT pension benefits under the scheme as nowhere in the scheme it is provided that past services rendered before long time shall not be considered for pension benefits. Mr.Vaishnav submitted that this Court had an occasion to consider the Government Resolution dated 15.10.1984 in the case of S.S.Patel v. Director of Pension & Provident Fund, Gandhinagar & Ors., reported in 2008 (4) GLR 1983, wherein, this Court has held that the Government Resolution dated 15.10.1984 being a special scheme conferring benefits of pension and retirement dues, the applicability of Chapter11 of BCSR is to be kept aside for the purpose of considering past services. Mr.Vaishnav submitted that in that case also, the petitioner had resigned from earlier service and still his past services were considered for the purpose of pension as he was treated to have been automatically covered under the scheme of Government Resolution dated 15.10.1984. Mr.Vaishnav submitted that the issue involved in this petition is squarely covered by the judgment in the case of S.S.Patel (supra) and therefore, the impugned decision of the respondents in giving benefit of the pension to the petitioner by considering only the Page 8 of 22 C/CA/6951/2013 JUDGMENT services rendered by the petitioner after 1987 is required to be quashed and set aside and the respondents are required to be directed to consider past services rendered by the petitioner from 1968 to 1975 as qualifying services for the purpose of pension and based on such consideration, the respondents are required to be directed to recalculate the pension and other retiral benefits of the petitioner and to confer such recalculated benefits to the petitioner. Mr.Vaishnav submitted that even after the petitioner joined services in the respondent No.4 college, the petitioner was deprived of his legitimate benefits of provident fund, gratuity, encashment of Earned Leave etc. and such benefits have not been released only on the ground that the present petition remained pending before this Court. He therefore urged to direct the respondents to release all other benefits available to the petitioner.
7. Learned AGP Mr.Niraj Ashar for the respondents submitted that the respondents have not committed any error in not considering the services rendered by the petitioner between 1968 to 1975 as qualifying service for the pension benefits to the petitioner under the Page 9 of 22 C/CA/6951/2013 JUDGMENT Government Resolution dated 15.10.1984. Mr.Ashar submitted that the petitioner had resigned from the past services and joined the service of the respondent No.4 after long period of 13 years and therefore, the past services before 1975 could not be considered as qualifying services for the purpose of pension benefits under Government Resolution dated 15.10.1984. Mr.Ashar submitted that the Government Resolution dated 15.10.1984 provides for exercise of option to become entitled for pension benefits for the services prior to 01.04.1982. Mr.Ashar submitted that the services rendered by the petitioner after 1987 were rightly considered for pension benefits in absence of any option given by the petitioner to treat him in the pension scheme in view long gap of time between the past services and the services rendered in the respondent No.4College. The respondent authorities therefore cannot be said to have committed any error in not considering the past services of the petitioner for the purpose of pension. Learned AGP Mr.Niraj Ashar therefore, urged to dismiss the petition.
8. Having heard learned advocates for the parties, it appears that the petitioner claims entitlement for Page 10 of 22 C/CA/6951/2013 JUDGMENT pensionary benefits under Government Resolution dated 15.10.1984. The said Government Resolution is at AnnexureU to the petition. As per the condition No.4 of the said resolution, a member of the staff recruited on or after 1st April, 1982 shall automatically be governed by the scheme. Since, the petitioner was appointed on 16.07.1987 as lecturer with the respondent No.4 college, the petitioner stood automatically governed by the above scheme and has already been granted pension benefits by considering the services rendered by him after 16.07.1987 till he retired on superannuation with effect from 14.06.2009. However, under this very scheme, the petitioner claims consideration of his past services as qualifying services for the purpose of pensionary benefits.
9. As per the order dated 23.02.2012, passed by the Commissioner of Higher Education at Annexure:A, the services of the petitioner from 27.06.1968 to 17.11.1969 in P.D.Malavia college and from 15.06.1970 to 30.06.1975 in Jasani College cannot be considered for pension benefits under the scheme, as during the above said period CPF scheme was in existence. The same is the stand in the affidavit in reply filed by Page 11 of 22 C/CA/6951/2013 JUDGMENT Joint Director of Education, stating that during the aforesaid period there was no pension scheme. It is further stated that in absence of any option form for considering the past services for pension benefits under the scheme, option was required to be submitted, but no option was submitted.
10. In the scheme under resolution dated 15.10.1984, following is the provision made in Clause 6 for computing the length of qualifying services for pension under the scheme.
"6. In computing the length of qualifying service for pension under this scheme, all previous service whether temporary officiating or permanent either in one or more than one NonGovernment aided colleges, University Department, Higher Secondary School who are being paid Grantinaid from Government shall be taken into account. The period of break in service will not be considered as qualifying service i.e. actual service rendered will be considered as qualifying services."
The above clause in the scheme provides for considering all previous services, whether temporary or permanent, either in one or more than one Government Colleges, Universities, Higher Secondary schools, which are being paid grant in aid from the Government. Thus, this clause does not provide that Page 12 of 22 C/CA/6951/2013 JUDGMENT only recent previous services in above referred institutions shall be considered as qualifying services for pension benefits. In fact, this clause specifically provides that the period of break in service will not be considered as qualifying services i.e. actual service rendered will be considered as qualifying service. Therefore, any member of the staff when stand automatically governed by the present scheme, his all previous services rendered in any of the institutions whether in long past or in recent past, shall be required to be considered as qualifying service for the pension benefits. This being a special scheme introduced by the Government as regards the pension benefit for teaching staff in Government affiliated colleges and the universities, it is not open to the respondents to give restricted meaning to clause No.6 contrary to the intention of the Government. By clause No.6, Government intends to consider all previous services as qualifying services rendered in above referred institutions for the purpose of pensionary benefits and in absence of prohibitory clause not to consider services left on account of resignation by the member of the teaching Page 13 of 22 C/CA/6951/2013 JUDGMENT staff, the respondents were not justified in not considering the previous services rendered by the petitioner on the ground that the petitioner had resigned from the services. In fact, this scheme came for interpretation before the coordinate bench of this Court in the case of S.S.Patel (Supra), wherein, the Court has held and observed in para No.16 to 16.6 as under:
16. At the same time the prior to issuance of Government Resolution dated 15.10.1984 which was made effective with retrospective effect from 1.4.1982, employee had no opportunity whatsoever, whether to opt for pension or for any other scheme and such an employee used to be governed by prevailing system of C.P.F.. When the G.R. Dated 15.10.1984 came to be issued, the petitioner was serving as a lecturer with S.V.R.College of Engineering and Technology at Surat, which was a Regional Engineering College and later on nomenclatured as National Institute of Technology, the G.R. was not applicable to Engineering College which was under
Government of India. From the record, what appears, the petitioner had continued to be Governed by the existing scheme "the provident fund for employees of the S.V.R. College of Engineering and Technology (Surat) Society" as per option exercised in 1978. There is no dispute about the amount which was credited in the account of the petitioner, came to be collected and ultimately in year 2000, the petitioner deposited the said amount with interest.
After resigning from the S.V.R. College of Engineering, when the petitioner joined as a 'Reader' with South Gujarat University from 31.3.1986 and served upto 5.10.1988, the Page 14 of 22 C/CA/6951/2013 JUDGMENT petitioner was a Recruitee after 1.4.1982 and was being governed automatically for pension scheme as introduced by G.R. Dated 15.10.1984 and accordingly no contributory amount was deducted and only G.P.F. account was credited. Thus, as a Reader with South Gujarat University, the petitioner was getting benefit of the pension scheme. Even as per the respondents, the period commencing from 31.3.1986 till the date of voluntary retirement on 30.11.2000, the service of the petitioner can be considered for pensionable job. The above fact is admitted in para 10 of the affidavitin reply dated 19 December, 2007 filed by th Accounts Officer of Commissioner of Higher Education and, therefore, the interpretation of Government Resolution dated 15.10.1984 mainly revolves round Clauses 3, 4, 6 and 7 of the above Government Resolution and to be examined accordingly.
16.1. If the Government Resolution dated 15.10.1984 is perused the preamble of the resolution is pertaining to grant of benefit of pension scheme for the teaching staff in the NonGovernment Affiliated Colleges and in the Universities at par with employees of the Government of Gujarat under Revised Pension Rules, 1950 as amended from time to time. Therefore, if Clause 3 is perused, two types of employees were to exercise option, viz. (1) members of the existing staff recruited before 1.4.1982 and (2) those staff who have retired on or after 1.4.1982 and prior to the date of issue of this resolution within a period of one year from the above date, whether to continue in C.P.F. or to go under the pension scheme and such option was to be final. In Clause 4, it is clearly stated that member of the staff recruited on or after 1st April, 1982 shall automatically be governed by this scheme and such staff will not be allowed to opt for C.P.F. Therefore, if principle of plain reading is applied, all the contents of the Page 15 of 22 C/CA/6951/2013 JUDGMENT clauses read together, what transpires is that the member of the staff recruited on or after 1st April, 1982 was not supposed to exercise an option since he was to be automatically governed by the scheme. So far as the petitioner is concerned, he was recruited directly after the advertisement issued by the concerned Universities on the post of 'Reader' in South Gujarat University on 31.3.1986 to 5.10.1988 and later on appointed in the M.S. University as a 'Reader' from 6.10.1988 after undergoing valid selection procedure. Thus, the case of the petitioner is not governed by Clause 3 of the Government Resolution in view of fact that neither the petitioner is a member of existing staff recruited prior to 1.4.1982 nor he retired from 1.4.1982 to 15.10.1984. Therefore, the contention of learned AGP that the petitioner was to exercise option for pension which was mandatory, cannot be accepted and is hereby rejected.
16.2. So far as width and amplitude of Clause 6 of Government Resolution is concerned, it confers benefits upon an employee of all previous service whether temporary, officiating or permanent either in one or more than one nongovernment aided Colleges, University, Higher Secondary School who are being paid grantinaid from Government shall be taken into account for computing the length of qualifying service for pension under this scheme. If the above clause is made applicable to the petitioner, service rendered in the B.V.M.College of Engineering at Vallabh Vidhyanagar as 'Assistant Lecturer' and even, subsequent service as a 'Lecturer' in the S.V.R. College of Engineering and Technology are to be counted since the above two colleges are recognised colleges and in view of service rendered in NonGovernment Aided Colleges of the State of Gujarat and Union of India can be considered for qualifying service for pension and calculation of pensionable Page 16 of 22 C/CA/6951/2013 JUDGMENT qualifying service by two offices of respondent Nos. 1 and 5 at the time of accepting application for voluntary retirement of the petitioner was just and proper and cannot be brought within the preview of Rule 41 (1) (a) of the Pension Rules, to deny pension to the petitioner, on the ground that the petitioner had not rendered any service in a pensionable establishment. The fact remains that the petitioner was a member of C.P.F. in both the above colleges and resigned from the service and ceased to be a member of C.P.F. for all purposes. It is very clear from the plain reading of clause 6 that clause 6 does not distinguish employees rendering service in a pensionable or nonpensionable establishment and on the contrary it covers all kinds of services even temporary or officiating rendered in NonGovernment Aided Colleges. Even otherwise, no material contrary exist to show that the above two colleges were nonpensionable establishment. 16.3. If the submissions of learned AGP are accepted that to get benefits of clause 6 of G.R. of 15.10.1984, option is to be exercised as per clause 3, provisions of clause 6 will become redundant and inoperative for a recruitee on or after 1.4.1982. Neither clause 4 nor clause 6 envisaged or mandate a recruitee after 1.4.1982 to exercise any option as per clause 3. It can be safely concluded from the above, that the basic purpose of Clause 6 is to complete minimum years of qualified pension service for all existing and recruited employees before 1.4.1982 and retired between 1.4.1982 to 15.10.1984 and recruited after 1.4.1982, like the petitioner, clause 6 cannot be pressed into service for exercising option for the scheme by both pre and post 1.4.1982 recruitees, otherwise even clause 4 will be rendered nugatory. At the same time, failure to exercise an option on the part of post Page 17 of 22 C/CA/6951/2013 JUDGMENT 1.4.1982 recruitee, making him vulnerable for benefits of previous services as per clause 6, will be against the spirit and object of the scheme and will be creating artificial, arbitrary and discriminatory dividing line amongst university teaching staff not found in clause 6.
16.4. Likewise it was not obligatory at all upon the petitioner to exercise option as per subsequent G.R.'s dated 17.12.1987 and 17.9.1991 in view of the fact that the petitioner was automatically governed by pension scheme by G.R. Dated 15.10.1984. At the same time there is no break of service of the petitioner from 22.7.1968 to 30.11.2000 and, therefore, rest of contents of clause 6 are not to be gone into.
16.5. Thus, when clause 6 is unambiguous and benefits of all previous services are not restricted to optee only, no other interpretation is permissible and restricting such benefits to the recruitee like the petitioner pursuant to fresh appointment on or after 1.4.1982 and automatically governed by clause 4 of the G.R., any attempt to add or alter any meaning of any word of phrase of clause 6 would amount giving narrow meaning to clause 6 which is not envisaged at all by the draftsman of the resolution. Therefore, the petitioner is entitled for continuity and gets benefit of all previous services rendered in B.V.M. College of Engineering and S.V.R. College of Engineering and Technology and the same is rightly considered by respondents No. 1 and 4 at relevant point of time while granting voluntarily retirement to the petitioner and, therefore, now they cannot be permitted to take another view and they are estopped from doing so. The petitioner has relied and acted on the orders passed by respondents No. 1 and 4 and preponed the date of superannuation now cannot be placed in Page 18 of 22 C/CA/6951/2013 JUDGMENT disadvantageous position on the basis of ipsidixi of officers of Respondents No.1 and 4.
16.6. The above fact will be clear if we read Clause 7 in juxtaposition to Clause 4 and 6, which carves out an exception with regard to applicability of general provision of Chapter 11 of B.C.S.R. Volume I in granting retirement benefits in case if a special provisions are made, the above applicability can be kept aside and this pension scheme of G.R. Dated 15.10.1984 being a special scheme conferring benefits of pension and retiral dues, will govern the case of the petitioner and the contention of learned AGP about applicability of Rule 41(1) (a) cannot be accepted and is hereby rejected."
11. Therefore, in fact, the issue raised in this petition stands covered by the above said decision and the previous services rendered by the petitioner in nonGovernment aided institutions are required to be considered for pensionary benefits under the scheme.
12. From the service book of the petitioner, it appears that, services rendered by the petitioner from 27.06.1968 to 17.11.1969 and 15.06.1970 to 30.06.1975 were considered for giving him the benefit of the selection grade. In such view of the matter and especially when the scheme permits taking into consideration previous services rendered in any of the Page 19 of 22 C/CA/6951/2013 JUDGMENT above institutions for the purpose of pensionary benefits, the respondents were not justified in excluding such previous services by the petitioner for pension purpose.
13. The petitioner in his rejoinder has stated that amount of CPF benefits were refunded and the certificate to that effect was also given by the concerned authority. This is not disputed. The petitioner, thus, though not required to exercise the option, and having refunded the CPF contribution, his previous services were required to be considered for pensionary benefits. However, the services rendered in the grant in aid college are to be considered for pension benefits and since Jasani Arts College at Rajkot was a grant in aid college, the services rendered by the petitioner from 15.06.1970 to 30.06.1975 in the said college would be required to be considered as qualifying services, with his services rendered after 1987 in the respondent No.4 college for pensionary benefits and by considering such past services, the pension benefits of the petitioner will be required to be recalculated. As regards other prayers about not granting other benefits on account Page 20 of 22 C/CA/6951/2013 JUDGMENT of pendency of the present petition, the respondents will be now required to release whatever the benefits the petitioner is entitled for.
14. For the reasons stated above, the petition is partly allowed. The respondents are directed to consider previous services rendered by the petitioner from 27/06/1968 to 17/11/1969 in P.D.Malviya College and 15.06.1970 to 30.06.1975 with Jasani Arts College, Rajkot, as qualifying services with the services rendered by the petitioner after 16.07.1987 till his retirement from respondent No.4 college for the purpose of pension benefits under the Government Resolution dated 15.10.1984 and based on such consideration, the respondents shall recalculate and revise pensionary benefits available to the petitioner and confer difference of pension and other retiral benefits to the petitioner within a period of 3 months from the date of receipt of this order. The respondents are also directed to release all other benefits such as provident fund, gratuity, encashment of Earned Leave, arrears of revision of senior scale etc., if the petitioner is otherwise entitled for any such benefits within the above said period. Rule made Page 21 of 22 C/CA/6951/2013 JUDGMENT absolute to the aforesaid extent.
15. Since, the main petition is disposed of, Civil Application shall not survive and hence, disposed of.
(C.L.SONI, J.) ANKIT Page 22 of 22