Gujarat High Court
Rashmi Dhanvant Soni vs Sardar Krishinagar Dantiwada ... on 5 July, 2016
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/8284/2001 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 8284 of 2001
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
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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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RASHMI DHANVANT SONI....Petitioner(s)
Versus
SARDAR KRISHINAGAR DANTIWADA AGRICULTRAL
UNIVERSITY....Respondent(s)
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Appearance:
MR TV SHAH, ADVOCATE for the Petitioner(s) No. 1
MR DG CHAUHAN, ADVOCATE for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 05/07/2016
ORAL JUDGMENT
None present on behalf of the petitioner. As the matter is of the year 2001 and has been notified by now for almost 41 times, it would not be proper for this Court to adjourn the Page 1 of 11 HC-NIC Page 1 of 11 Created On Tue Jul 12 00:18:34 IST 2016 C/SCA/8284/2001 JUDGMENT same. In such circumstances, I have decided to look into the dispute with the assistance of Mr.D.G.Chauhan, the learned counsel appearing for the University.
By this writ-application under Article 226 of the Constitution of India, the petitioner, a former employee of the Sardar Krishinagar Dantiwada Agricultural University, has prayed for the following reliefs :
"(A) Your Lordships may be pleased to allow this application and issue a writ of mandamus or any other appropriate writ and direct the respondent and their officer to fix the pension on the basis of the salary of post of Office Superintendent and considering the length of service of the petitioner as a 30 years as the petitioner join in the service on 21/4/66 and permitted to retired i.e. from 17/9/92 of the petitioner and considering the permissible weightage as contemplated in Clause 7.7 (VIII) of Chapter-3 of Schedule-2 and direct to pay the difference of the amount of pension which will be arisen after calculating on the above basis and after deducting the amount paid as a pension and gratuity from 17/9/72 till the date of the payment alongwith interest at the rate of 18% and also direct to pay all other mandatory benefit derived due to retirement.
(B) Pending admission and final disposal of this petition, Your Lordship may be pleased to direct the respondent to start the payment of the petitioner by way of pension on the basis of 30 years of service and calculating the salary on the post of Office Superintendent.
(C) Any other and further relief which Your Honour deem fit, just and proper in the interest of justice, also may be passed."
Briefly stated, the case of the petitioner is that she joined the services of the respondent on 21st April 1966. It appears that she had prayed for voluntary retirement, and after a long drawn litigation, she came to be voluntarily retired with effect Page 2 of 11 HC-NIC Page 2 of 11 Created On Tue Jul 12 00:18:34 IST 2016 C/SCA/8284/2001 JUDGMENT from 17th September 1992.
It is her case that she was serving as an Office Superintendent by virtue of an order dated 29th July 1989. The said post was in the pay-scale of Rs.2000-2700. It is her case that she had put in 26 years of service, and accordingly, the pension was required to be fixed. However, the University passed an order dated 28th November 1996, by which it was held that the total period of service should be counted as 23 years. It is her case that the last drawn salary on the post of the Office Superintendent should have been considered for calculating the amount of gratuity and pension, but the same was not done. The grievance of the petitioner is that the pension came to be fixed as if that she was serving on the post of the Office Superintendent in the third lowest grade and, therefore, only 50% of the amount as pension came to be fixed. Hence, this petition.
I take notice of the fact that the petitioner retired in the year 1992. She started receiving the pension as fixed from 1992. Upto 2001, she did not raise any objection as regards the fixation of the pension. After almost a decade, she thought fit to prefer the present writ-application.
Be that as it may, since the issue is one of pension, The Court may ignore for the time being the delay of about a decade. The controversy has been explained by Mr.Chauhan by relying on the averments made in the reply. Mr.Chauhan wants this Court to reject this writ-application solely on the following five grounds :
(i) The petitioner has suppressed the material and relevant facts that the petitioner had given an option that Page 3 of 11 HC-NIC Page 3 of 11 Created On Tue Jul 12 00:18:34 IST 2016 C/SCA/8284/2001 JUDGMENT the last 10 months average pay be considered for the purpose of fixation of her pension.
(ii) The pension of the petitioner has been fixed taking into consideration the length of service and the pay last drawn by her as Office Superintendent in accordance with the Gujarat Agricultural University Employees' Pension Rules, 1974.
(iii) The petitioner has suppressed the material facts that she had worked for 6 days only as Office Superintendent and availed about 2239 days extra-ordinary leave (without pay) during her entire service with the University.
(iv) At present the petitioner is drawing Rs.2980/- as pension including Dearness and Medical Allowances.
(v) The claim of the petitioner is false, frivolous and vexatious and deserves to be rejected.
Mr.Chauhan, thereafter, invited my attention to the rules governing the fixation of pension. I may quote the following averments made in paragraphs 4 to 12 :
"4. The respondent is a Body Corporate, established and constituted under the provisions of Section-3 of the Gujarat Agricultural University Act, 1969 for the development of agriculture, including animal husbandry and allied sciences in the State of Gujarat. It is an educational institution imparting education in agriculture and allied sciences and humanity. The University is having its own Pension Rules known as "Gujarat Agricultural University Employees' Pension Rules, 1974 and all the employees are governed under these Rules for the purpose of pension. I say that the pension of the Page 4 of 11 HC-NIC Page 4 of 11 Created On Tue Jul 12 00:18:34 IST 2016 C/SCA/8284/2001 JUDGMENT petitioner is fixed as per the provisions of the Pension Rules. At this stage, it is relevant to refer to the relevant provisions of the Pension Rules.
"Pensionable Pay :
Rule 12.1. - Pensionable pay means the average pay earned by an employee during the last 10 months, 20 months or 36 months of the service whichever is greater and subject to a maximum of Rs.2,500/-.
Rule 12.2. - If an employee has during the last 10/20/36 months been absent on leave other than extra-ordinary leave, his pay during such leave shall be taken to be the pay which he would have drawn had he been on duty.
Rule 12.3. - If an employee is under suspension during the last 10/20/36 months of his service and the period of suspension has been treated as duty or leave other than extra-ordinary leave, the pay which he would have drawn had he not been suspended shall be taken as pay during such period.
Rule 12.4. - If an employee has during the last 10/20/36 months been absent on extraordinary leave or under suspension and the period of suspension has been treated as extraordinary leave or as suspension, that period shall be omitted from the calculation and the pay earned by him during an equal period of his service immediately prior to the last 10/20/36 months shall be taken into account."
It is evidently clear that the pensionable pay means the average pay earned by an employee during the last 10 months, 20 months, 30 months whichever is greater and subject to a maximum of Rs.2,500/-. In the present case, the petitioner by its option letter dated 3.8.1996 opted that the last 10 months average pay be considered for the purpose of her pension. Annexed hereto and marked Page 5 of 11 HC-NIC Page 5 of 11 Created On Tue Jul 12 00:18:34 IST 2016 C/SCA/8284/2001 JUDGMENT as Annexure-A is a copy of the said option letter dated 3.8.1996. It is further clear that if an employee during the last 10/20/36 months remains absent on extraordinary leave, that period shall be omitted from the calculation and the pay earned by him during an equal period of his service immediately prior to the last 10/20/36 months, shall be taken into account. Considering the aforesaid provisions of Pension Rules and considering the option given by the petitioner, the pension of the petitioner has been fixed. Annexed hereto and marked as Annexure-B is a copy of the calculation made by the respondent for the purpose of fixing the pension.
Para-wise reply.
5. With reference to paragraphs 1 to 4 of the petition, I deny the correctness of the averments made therein. I say that the petitioner was appointed in the Government Press on 21.4.1966. On 22.9.1972, she joined the Respondent University as Clerk. Thereafter, by an Order dated 29.7.1989, she was provisionally promoted as Office Superintendent and worked for 6 days only till she obtained voluntary retirement. The rest of the averments do not call for any reply.
6. With reference to paragraph 5 of the petition, I deny the correctness of the averments made therein. I say that the petitioner was provisionally promoted as Office Superintendent vide order dated 29.7.1989 (page 18) in the pay scale of Rs.2000 - 3200 and reported for duty as Office Superintendent after a long period of 5 months, i.e. on 26.12.1989. I say that the petitioner performed her duty as Office Superintendent for 6 days only, i.e. from 26.12.1989 to 31.12.1989 and thereafter from 01.1.1990 to 16.9.1992 the petitioner remained absent on extraordinary leave (without pay). I say that in all, the petitioner had worked as Office Superintendent for 6 days only and drawn her pay accordingly. It is pertinent to note that the petitioner was also on leave intermittently from 28.9.1987 to 25.12.1989 which can be seen from the order annexed Annexure-E (page-28) to the petition. I say that the petitioner was paid her salary for the period on which she had worked, i.e. from 26.12.89 to 31.2.89, amounting to Rs.557/-. I respectfully submit that except for 6 days, as aforesaid, the petitioner Page 6 of 11 HC-NIC Page 6 of 11 Created On Tue Jul 12 00:18:34 IST 2016 C/SCA/8284/2001 JUDGMENT did not work till she voluntarily retired. I say that the past services of the petitioner prior to 22.9.1972 were also treated as continuous service for the purpose of pensionary benefit.
7. With reference to paragraphs 6 to 8 of the petition, I deny the correctness of the averments made therein. I deny that the petitioner was sick and she was advised by the Civil Surgeon, Civil Hospital, Ahmedabad, not to leave Ahmedabad and was advised to take rest. I further deny that the petitioner had requested to transfer her at Ahmedabad, but she was not transferred and she was compelled to go on Medical Leave without pay. It is true that the petitioner had remained on leave without pay. I also deny that the petitioner had completed 26 years of service and her pension is required to be fixed on the basis of her service period of more than 26 years. I further deny that 23 years service was considered is a mistake of calculation. I respectfully submit that the calculation made by the respondent for the purpose of pensionary benefits is in accordance with the Pension Rules. I say that the leave availed by the petitioner are mentioned in Annexure-E (page-28) to the petition. I further say that the petitioner has put in, in all, 26 years, 4 months and 26 days service as on 17.9.1992. But as per the Pension Rules, only 1080 days extraordinary leave, i.e. 3 years, can be considered for the purpose of pensionary benefits. I say that during the entire service, i.e. from 21.4.66 to 16.6.1992, the following extraordinary leave were availed by the petitioner :
Sr.No. Date No. of days 1. 22.11.79 to 7.6.81 564 2. 4.12.81 to 31.12.81 028 3. 16.6.84 to 25.6.84 010 4. On 8.1.88 001 5. 26.1.88 to 21.3.88 056 6. 22.3.88 to 16.4.88 026 7. 20.5.88 to 10.7.88 052 8. 20.7.88 to 31.12.88 165 9. 1.1.89 to 25.12.89 359 10. 1.1.90 to 31.12.90 365 Page 7 of 11 HC-NIC Page 7 of 11 Created On Tue Jul 12 00:18:34 IST 2016 C/SCA/8284/2001 JUDGMENT 11. 13.1.91 to 30.6.91 169 12. 1.7.91 to 31.12.91 184 13. 1.1.92 to 16.9.92 260 2239 days.
It is also relevant to point out the relevant Rules for the purpose of considering the extraordinary leave under the provisions of the Gujarat Agricultural University Employees' Leave Rules. Rule 39.3 and Rule 39.4 read as under:
"Rule 39.3. -The total extra ordinary leave which may be granted to a University employee during the entire service shall be limited to 1080 days.
Rule 39.4. - A University employee on extra ordinary leave shall not be entitled to any salary."
Thus, it is clear that the extraordinary leave of 1080 only are to be considered for the purpose of pensionary benefits. In the present case, the petitioner has availed 2239 days extraordinary leave i.e. 1159 days excess leave (3 years, 2 months and 19 days) cannot be considered for pensionary benefits. Therefore, 23 years service of the petitioner is considered for pensionary benefits. I deny that consideration of 23 years service is clear mistake of calculation as alleged by the petitioner. I say that as per Clause 7.7 (viii) of Chapter-III of Schedule- II of the Pension Rules, the petitioner has been granted 5 years weightage as an addition to the qualifying service actually rendered by her. Therefore, 23 + 5 = 28 years service is considered as qualifying service for the purpose of pensionary benefits and accordingly, the Pension Order is passed by the Respondent University.
8. With reference to paragraph-9 of the petition, I deny the correctness of the averments made therein. I say that the orders for payment of pension and gratuity were passed by the competent authority as per the Rules in force. I say that necessary amount of pension and gratuity have been fixed on the basis of 28 years Page 8 of 11 HC-NIC Page 8 of 11 Created On Tue Jul 12 00:18:34 IST 2016 C/SCA/8284/2001 JUDGMENT qualifying pensionable service. As regards weightage of service under the Voluntary Retirement Scheme is concerned, I say that Rule 7.6 (ix) is taken into consideration and accordingly, the pension has been fixed. The Rule 7.6 (ix) reads as under:
"Rule 7.6 (ix) - "The weightage given under this Scheme will be only in addition to the qualifying service for purpose of pension and gratuity. It will not be entitled the University employees retiring voluntarily to any notional fixation of pay for the purpose of calculating the pension and gratuity. which will be based on the actual emoluments calculated with reference to the date of retirement."
I say that having regard to the aforesaid Rules, the pension and gratuity of the petitioner are determined and paid to the petitioner.
9. With reference to paragraph-10 of the petition, I deny the correctness of the averments made therein. I say that the salary on the post of Office Superintendent has been considered for determining the amount of gratuity and the quantum of pension. I deny that the petitioner has been granted pension and gratuity considering as if the petitioner was sewing not on the post of the Office Superintendent, but on the third lowest grade than Office Superintendent. I also deny that only 50% of the amount as pension is fixed. I further deny that the amount of gratuity is paid very less. I say that the pension and gratuity have been paid to the petitioner as per the Pension Rules. The statements made in this paragraph are wholly incorrect, ill-founded and I deny the same.
10. With reference to paragraph-11 of the petition, I deny the correctness of the averments made therein. I say that the petitioner was granted Senior Clerk Selection Grade and then she was promoted to the post of Head Clerk. I say that Annexure-G to the petition is nothing, but the pay fixation order of the petitioner in the pay scale of Rs.425-800 of Head Clerk on promotion which she got on 4.9.1984. I further say and submit that the pay scale of the Head Clerk was revised with effect from Page 9 of 11 HC-NIC Page 9 of 11 Created On Tue Jul 12 00:18:34 IST 2016 C/SCA/8284/2001 JUDGMENT 1.1.1986 and accordingly, the revised pay scale was fixed which is annexed as Annexure-H to the petition. I say that the petitioner was Head Clerk as on 1.1.1986, therefore, her pay was fixed in the pay scale of the Head Clerk, i.e. Rs.1400 - 2600 on revision. I say that the petitioner was promoted as Office Superintendent on 26.12.1989 in the pay scale of Rs.2000-60-2300-EB-75- 3200 and her pay was fixed at Rs.2060/- w.e.f. 26.12.1989. However, as there was an Audit objection from Local Fund, her minimum pay of Rs.2,000/- on the post of Office Superintendent was taken into consideration for granting pensionary benefits. The statements made in this paragraph are misleading and I deny the same.
11. With reference to paragraph 12 of the petition, I deny the correctness of the averments made therein. I say that the Annexure-I (colly.) pertain to the revised pension to be granted w.e.f. 1.1.1996 and it is still not finalised due to Audit objection. I say that the Local Fund Audit's objection has been cleared on 4.10.2001 and now her revised pension w.e.f. 1.1.1996 will be fixed. I say that by letter dated 6.10.2000 the petitioner was asked to comply with the queries raised by the Pensioning Authority. However, still the petitioner did not comply with the same.
12. With reference to paragraph-13 of the petition, I deny the correctness of the averments and statements made therein. As stated hereinabove, the pension of the petitioner has been fixed taking into consideration the length of service and the pay last drawn by the petitioner as Office Superintendent in accordance with the Pension Rules. I say that on 3.8.1996, the petitioner has submitted her pension papers, wherein the petitioner had opted for last 10 months average pay be considered for the purpose of fixation of her pension. I say that as per the option given by the petitioner, last 10 months salary was calculated which comes to Rs.16,550/- and average monthly pay comes to Rs.1655/-. A copy of the calculation alongwith the pension order is annexed herewith and marked as Annexure-C is a copy of the same. As stated hereinabove, the petitioner had availed 2239 extraordinary leave and as per the Rules, the Page 10 of 11 HC-NIC Page 10 of 11 Created On Tue Jul 12 00:18:34 IST 2016 C/SCA/8284/2001 JUDGMENT petitioner is entitled to only 1,080 days extraordinary leave for the pensionary benefits. Annexed hereto and marked as Annexure-D is a copy of the statement showing the details of the extra-ordinary leave availed by the petitioner during her service. Under the above facts and circumstances, the pension and gratuity of the petitioner are fixed and paid to the petitioner. I say that her last pay Rs.2000/- as Office Superintendent was considered for the pensionary benefits due to Audit objection. Now, the Audit objection is clear and the petitioner's pension will be fixed at Rs.2060/- and the difference will be paid to the petitioner."
Thus, from the stance of the University, it appears that the petitioner was promoted as the Office Superintendent on 29th July 1989 and had worked for six days only before proceeding on extraordinary leave (without pay), i.e., from 1st January 1990 to 16th September 1992, i.e., till the date of her voluntary retirement.
In view of the explanation offered by the University, no case is made out for interference. This writ-application, therefore, fails and is hereby rejected. Rule discharged.
(J.B.PARDIWALA, J.) MOIN Page 11 of 11 HC-NIC Page 11 of 11 Created On Tue Jul 12 00:18:34 IST 2016