Gujarat High Court
For Approval And Signature vs Commissioner & 2 on 11 September, 2017
Author: K.M.Thaker
Bench: K.M.Thaker
C/SCA/15529/2005 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 15529 of 2005
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE K.M.THAKER Sd/-
1 Whether Reporters of Local Papers may be allowed Yes
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of No
the judgment ?
4 Whether this case involves a substantial question of No
law as to the interpretation of the Constitution of
India or any order made thereunder ?
ISMAIL HAJI YUSUF BHATUK....Petitioner(s)
Versus
COMMISSIONER & 2....Respondent(s)
Appearance:
DECEASED LITIGANT, ADVOCATE for the Petitioner(s) No. 1
MR MA KHARADI, ADVOCATE for the Petitioner(s) No. 1.1 - 1.3
MR SWAPNESHWAR GOUTAM AGP for the Respondent(s) No. 1 - 2
RULE SERVED for the Respondent(s) No. 3
CORAM: HONOURABLE MR.JUSTICE K.M.THAKER
Date : 11/09/2017
ORAL JUDGMENT
1. Heard Mr. Mansuri, learned advocate for Mr. M.A. Page 1 HC-NIC Page 1 of 13 Created On Sun Oct 01 17:56:18 IST 2017 C/SCA/15529/2005 JUDGMENT Kharadi learned advocate for the petitioner and Mr. Goutam, learned AGP for the respondents. Mr. Kharadi, learned advocate for the petitioner has filed leave note however, Mr. Mansuri, learned advocate has appeared and conducted final hearing of the matter.
2. In present petition the petitioner has prayed, inter alia, that:-
"13(B) Allow present petition by directing the respondents to fix the pension of the petitioner and thereby to start paying the same forthwith."
3. From the relief prayed for and the details mentioned in in the petition as well as in light of the contention raised by the learned advocate for the petitioner it has emerged that the petitioner is aggrieved by the decision of the respondent of not considering him eligible for pension.
4. So far as factual background is concerned it has emerged from the record that the petitioner came to be appointed in the office of the respondent no. 3 as Junior Clerk somewhere in 1989.
Page 2
HC-NIC Page 2 of 13 Created On Sun Oct 01 17:56:18 IST 2017
C/SCA/15529/2005 JUDGMENT
4.1 He was appointed on adhoc basis, in 1989, however in August 1994 the appointment / service of the petitioner was regularized.
4.2 Subsequently in January 1995 the petitioner came to be promoted to the post of Senior Clerk and thereafter in September 2002 he was promoted to post of Head Clerk. 4.3 Subsequently in May 2003 the petitioner attained age of superannuation.
4.4 Having regard to the history of the petitioner's service with the respondent No. 3, the petitioner is considered, by the respondent ineligible for pension. Therefore the petitioner is aggrieved.
5. The principal ground on which the petitioner is considered ineligible for pension is that the petitioner did not complete minimum qualifying service as prescribed by the Rules, so as to be eligible for pension.
Page 3
HC-NIC Page 3 of 13 Created On Sun Oct 01 17:56:18 IST 2017
C/SCA/15529/2005 JUDGMENT
5.1 According to the respondent, the employee must complete minimum 10 years of qualifying service for being eligible for pension whereas the qualifying service of the petitioner falls short of 10 years.
6. The respondents have opposed the petition by filing affidavit dated 2.11.2006. In the said affidavit the respondents have averred and stated that:-
"5. I say and submit that the petitioner had preferred this petition before this Hon'ble Court to direct the respondent authority to fix the pension of the petitioner. I say and submit that the present petitioner had been appointed by the school as junior clerk vide apportionment order dated 22.8.1994........This school has been run by the Registered Trust and it is not Government school. The present petitioner had retired on 31.3.2003. Hence, he had worked for 8 years, 9 months and 6 days. He did not compete 10 years service. As per the Gujarat Civil Service Pension Rules, 2002, Rule 37 minimum service period for getting pension benefits is 10 years. Hence, the present petitioner is not entitled for pensionary benefits. The present petitioner had argued that he was working from 30.1.1989 in the same schools but it is not appointment in the schools, but a part time employment, which has been given by the school in his Trust. And this service cannot be counted as s service period for the pensionary benefits. Hence, the present petitioner had been paid an amount of G.P.F. Of Rs.83,666/- on 30.6.2003"
7. In this background learned advocate for the petitioner placed reliance on the provisions under Rule 77 and 78 of Gujarat Civil Service (pension) Rules 2002. In light of the said provision learned advocate for the petitioner claimed that the petitioner should be considered eligible for pension. Learned advocate for the petitioner Page 4 HC-NIC Page 4 of 13 Created On Sun Oct 01 17:56:18 IST 2017 C/SCA/15529/2005 JUDGMENT also placed reliance on policy declared by the respondent State vide resolution dated 2.8.1985 to provide benefit of pension to retire employees. Learned advocate for the petitioner submitted that the petitioner lodged claim for pension vide his representation in October 2004 however the respondent did not accept his claim and therefore the petitioner filed present petition.
8. Learned AGP opposed the petition / the claim and he reiterated the details mentioned in the affidavit and submitted that the petitioner did not complete minimum qualifying service and that therefore, his case for benefit of pension cannot be accepted and that the claim by the petitioner is unjustified and unsustainable.
9. I have considered rival submissions and material available on record.
10. At the outset it is necessary to note that the petitioner's claim is not for "compassionate" pension. The rules 77 and 78 on which learned advocate for the Page 5 HC-NIC Page 5 of 13 Created On Sun Oct 01 17:56:18 IST 2017 C/SCA/15529/2005 JUDGMENT petitioner placed reliance read thus:-
"77. Grant of Compassionate Pension:-
(1) A Government employee who is removed or required to retire from Government service for misconduct or insolvency shall be granted no pension other than a Compassionate Pension. (2) A government employee who is removed or required to retire from Government service on the ground of inefficiency, shall, if he be eligible for a superannuation, or retiring pension, be granted such pension. If he is not eligible for a Retiring or Superannuation pension he shall be granted no pension other than compassionate Pension.
78. Grant of Compassionate pension in deserving cases by Government.
(1) When a Government employee is removed or required to retire from Government service for misconduct or insolvency or is removed or required to retire from Government service on grounds of inefficiency before he is eligible for a Retiring or Superannuation Pension, Government may, if the case is considered deserving of special treatment, sanction the grant to him of a Compassionate pension.
(2) A dismissed Government employee is not eligible for compassionate pension." (emphasis supplied) 10.1 It is not the case of the petitioner that he was removed or required to retire for misconduct or insolvency or on ground of inefficiency before due to retire. The petitioner retired from service in usual and normal course on reaching age for superannuation. However, at that time he had not completed "minimum qualifying service" i.e. 10 years of qualifying service. Therefore, the said provisions are not relevant and not applicable in case of the petitioner because the petitioner has neither claimed compassionate pension nor he was removed from service nor he was relieved from service on the ground of inefficiency etc. nor his service was terminated on ground Page 6 HC-NIC Page 6 of 13 Created On Sun Oct 01 17:56:18 IST 2017 C/SCA/15529/2005 JUDGMENT of misconduct or insolvency. Besides this, even if it is assumed that the said provision is applicable in petitioner's case then also it cannot be overlooked that the said rules 77 and 78 do not rule out applicability of the provision which prescribe minimum qualifying service.
11. The term "qualifying service" is defined under Rule 9(69) of Gujarat Civil Service (pension) Rules 2002 which reads thus:-
9 (69) "Qualifying Service" means service rendered while on duty or otherwise which may be taken in account for the purpose of pension and gratuity admissible under Gujarat Civil Services (Pension) Rules.
11.1 Rule 25 of Gujarat Civil Service (pension) Rules 2002 reads thus:-
"25 Qualifying service:
Subject to the provisions of these rules, qualifying service of a Government employee, means and includes-
(i) all service including service on probation rendered on a regular establishment in any capacity whether, temporary or permanent, interrupted or continuous but it shall not include-
(a) service in non-pensionable establishment
(b) service paid from contingences,
(c) service rendered in daily rated establishment,
(d) actual periods of break in service if any, between spell of service.
(e) service prior to resignation, removal or dismissal.
(f) service as an apprentice,
(g) service on fixed pay basis, and
(h) service on contract basis.
(ii) to (x).................................
11.2 Rule 25 does not take into its fold the service rendered as "adhoc employee."
Page 7
HC-NIC Page 7 of 13 Created On Sun Oct 01 17:56:18 IST 2017
C/SCA/15529/2005 JUDGMENT
12. Before proceeding further, it is relevant to note that while it is true that the petitioner joined service with the respondent No.3 as Junior Clerk in 1989 however, at that stage he was appointed on adhoc basis and he continued to serve as employee engaged on adhoc basis until 22.8.1994 when his service came to be regularized.
13. Thus, the period of service from January 1989 to 22.8.1994 was rendered on adhoc basis. The petitioner retired from service on age of superannuation in 2003. 13.1 Therefore, the tenure of his service as regular employee is about 9 years i.e. from 1994 to 2003.
14. At this stage, it is relevant to mention that according to the provisions under Gujarat Civil Service (pension) Rules 2002 minimum qualifying service for being eligible for pension is 10 years. Rule 37 prescribes that employees who have rendered service on one post or another may add to their service, certain number of years, for Page 8 HC-NIC Page 8 of 13 Created On Sun Oct 01 17:56:18 IST 2017 C/SCA/15529/2005 JUDGMENT completing qualifying service, in accordance with Rule 37 of Gujarat Civil Service (pension) Rules 2002. The petitioner's case does not fall within purview of said provision.
15. Under the circumstances, the decision by the respondent considering petitioner ineligible for pension since he did not complete minimum qualifying service of 10 years at the time when he attained age of superannuation, cannot be faulted or cannot be considered illegal or arbitrary.
16. Now so far as petitioner's contention on strength of the policy declared by the respondent vide resolution dated 2.8.1985 is concerned, it is pertinent that the petitioner has not placed copy of such resolution on record. Therefore, the Court cannot make out whether he fulfills the terms and conditions of said policy or not. Thus, any direction on that ground cannot be passed.
17. Learned AGP would submit that any resolution dated Page 9 HC-NIC Page 9 of 13 Created On Sun Oct 01 17:56:18 IST 2017 C/SCA/15529/2005 JUDGMENT 2.8.1985 declaring any policy related to pension for retired employee is not known to the respondent and that the petitioner should show to the Court and also to the respondent that any policy with regard to pension was declared in August 1985 and that under the said policy the petitioner is eligible for pension.
17.1 He also submitted that unless the petitioner brings such policy decision to the notice of the Court, the claim should not be entertained.
17.2 There is substance in the said submission by learned AGP. Unless the resolution which, allegedly declare policy of the government, is properly examined and considered by the Court, any direction (without considering resolution and policy) cannot be passed.
18. The petitioner has placed on record resolution dated 21.12.1971. Even according to the said resolution the petitioner cannot be considered eligible for pension.
Page 10
HC-NIC Page 10 of 13 Created On Sun Oct 01 17:56:18 IST 2017
C/SCA/15529/2005 JUDGMENT
18.1 The clause 4 of the said resolution reads thus:-
"4. The members of the staff recruited on or after 1st April 1969 shall automatically be governed by this Scheme, such staff will not be allowed to opt for the contribution provident fund scheme.
18.2 Clause 7 of the said resolution reads thus:-
"7. In counting the length of qualifying service, for pension under this scheme, all previous service whether temporary, officiating of permanent either in one or more than one non-government Secondary school, shall be taken into account.
Subject to the general conditions that the period of each break does not exceed 6 months and the total period of six breaks hereinafter referred to do not exceed two years, breaks in service on account of any of the reasons listed below not exceeding six in number, should not be treated as interruptions entaining forfeiture of past service."
18.3 Clause 9 of the said resolution reads thus:-
"9. The general provisions of Chapter XI of B.C.S. Rules Volume-I will be applicable in granting retirement benefits to the members of the staff under the scheme, except where otherwise provided."
18.4 A conjoint reading of the said provisions bring out that even the said resolution contemplates and attracts applicability of minimum qualifying service for being eligible for pension.
18.5 The said resolution does not prescribe that an employee who has not completed even minimum qualifying service as prescribed under Gujarat Civil Service (pension) Rules 2002 would still be eligible for pension according to the formula and provision under the Page 11 HC-NIC Page 11 of 13 Created On Sun Oct 01 17:56:18 IST 2017 C/SCA/15529/2005 JUDGMENT rules. In that view of the matter the petitioner cannot be considered eligible for pension under resolution dated 21.12.1971.
19. Under the circumstances, the service rendered by the petitioner from January 1989 to 22.8.1994 cannot be taken into account for determining the pension.
20. On the other hand if the said service rendered by the petitioner from 22.8.1994 until he attained age of superannuation is taken into account then it emerges that the petitioner did not complete minimum 10 years of qualifying service.
20.1 Under the circumstances, the petitioner cannot be considered eligible for pension and the decision of the respondent rejecting the case of the petitioner cannot be said to be illegal or incorrect or arbitrary or contrary to the rules.
21. The petitioner has failed to make out any case in support of his claim for pension or against the decision of the respondent.
Page 12
HC-NIC Page 12 of 13 Created On Sun Oct 01 17:56:18 IST 2017
C/SCA/15529/2005 JUDGMENT
Therefore the petition fails and deserves to be rejected and is accordingly rejected. Rule is discharged.
Orders accordingly.
Sd/-
(K.M.THAKER, J.) Suresh* Page 13 HC-NIC Page 13 of 13 Created On Sun Oct 01 17:56:18 IST 2017