Gujarat High Court
Patel Jagdishbhai Dulabhai vs Ahmedabad Municipal Transport Service on 18 July, 2025
NEUTRAL CITATION
C/SCA/16176/2020 CAV JUDGMENT DATED: 18/07/2025
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Reserved On : 08/07/2025
Pronounced On : 18/07/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 16176 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 11925 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 19161 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 17381 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 10992 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
==========================================================
Approved for Reporting Yes No ========================================================== PATEL JAGDISHBHAI DULABHAI & ORS.
Versus AHMEDABAD MUNICIPAL TRANSPORT SERVICE & ORS. ========================================================== Appearance:
MR YOGEN N PANDYA(5766), MS SHEEJA G NAYAR for the Petitioner(s) MR HS MUNSHAW(495) for the Respondent(s) No. 1 MS E.SHAILAJA(2671) for the Respondent(s) No. 3 NOTICE SERVED for the Respondent(s) No. 2 ========================================================== CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT COMMON CAV JUDGMENT
1. As common questions of facts and law are involved in all these petitions and they are tagged together and heard together, with the consent of learned advocates for the parties, they are heard and decided together by this common judgment.Page 1 of 18 Uploaded by U. SRILATHA(HC00185) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:30:24 IST 2025
NEUTRAL CITATION C/SCA/16176/2020 CAV JUDGMENT DATED: 18/07/2025 undefined 1.1 Learned advocates for the parties have requested that Special Civil Application No.16176 of 2020 may be taken as the lead matter and therefore the facts of the said case are considered for adjudication of these petitions.
2. Broadly, the prayer prayed for by the petitioners in all these petitions is that the respondents be directed to treat the contribution of new GPF scheme from July, 2014 to their respective old GPF scheme forthwith.
3. The brief facts, as stated by the petitioners in the memo of Special Civil Application No.16176 of 2020, are that the petitioners were appointed on the vacant sanctioned posts in the year 1996 in the year 1996 after due procedure of appointment by giving advertisement, holding interviews and selection and they have been posted on various posts; that the petitioners are permanent employees from their date of joining in the service and the petitioners have undisputedly and uninterruptedly completed their service of 5 years and 900 days; that they have been members of pension scheme of the respondent as the GPF contribution started from the date of their respective joining dates and they became members of the pension scheme; that their contribution in old scheme was made upto June, 2014 from their respective date of joining; the respondent no.1 changed the PF of the petitioners Page 2 of 18 Uploaded by U. SRILATHA(HC00185) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:30:24 IST 2025 NEUTRAL CITATION C/SCA/16176/2020 CAV JUDGMENT DATED: 18/07/2025 undefined without consent or permission and more so, provisional PF number has been allotted and though the respondent no.1 has deducted PF of the petitioners, the same is not deposited to respondent no.3 but kept in one separate account as FDR; and the said amount is deposited in the new PF account and not in old PF account; thus, the petitioners preferred Special Civil Application Nos.14809 of 2016 to 14863 of 2016 before this Court, which was disposed of by order dated 13.12.2018 with the direction to consider the representation of the petitioners within 10 weeks from the date of receipt of the order; the representations made by the petitioners were denied vide reply dated 25.2.2019 by stating that the petitioners were daily rated employees and done the work in absence of permanent employees; that the petitioners were not given work in the year 2001 and 2002; that the petitioners were working as daily rated employees during the year 1996 to 2000 and the contribution of provident fund was made under the Employees Provident Fund & Miscellaneous Act, 1952 (`the EPF Act for short) and therefore the corporation denied the membership of GPF from the inception; that thereafter the respondent no.1 issued letter dated 8.5.2019 intimating the petitioners that as per the provisions of Section 2(P) of the Industrial Disputes Act, 1947 (`the ID Act' for short), that as per the Government Rules and Regulations, from 1.4.2005 or thereafter, the employees Page 3 of 18 Uploaded by U. SRILATHA(HC00185) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:30:24 IST 2025 NEUTRAL CITATION C/SCA/16176/2020 CAV JUDGMENT DATED: 18/07/2025 undefined who are appointed on regular based salary have to adopt New Pension Scheme and also referred to Circular No.11 dated 25.6.2018 issued by Traffic Department, the petitioners are forced to adopt new pension scheme; that the respondent no.1 has, time and again, passed resolutions for extending the benefits of pension as per the Government Resolution to the workmen like the petitioners, however, the same are not applied to the petitioners by the respondent no.1 intentionally; that all the daily wagers have put their claim for regularization through their representative i.e. respective Union and it was mutually agreed by and between the respondent no.1 and the Union of the petitioners that the services of all daily wagers have been regularized and they will be paid regular salary with usual allowance and due to the deduction in provident fund since long, the petitioners are covered automatically in the old pension scheme under 2(P) settlement; that the petitioners came to know that the respondent Corporation has interpreted the guidelines issued by the Government of Gujarat dated 6.9.2005 and treated the petitioners as fresh employment and the provident fund deduction is credited to new accounts, the Union of the petitioners has immediately tendered the representation to that effect on 11.8.2014 even the petitioners made a letter/representation of the government guidelines and issuance of new provisional provident fund account numbers Page 4 of 18 Uploaded by U. SRILATHA(HC00185) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:30:24 IST 2025 NEUTRAL CITATION C/SCA/16176/2020 CAV JUDGMENT DATED: 18/07/2025 undefined to the petitioners; thereafter also the petitioners wrote the letter dated 11.2.2016 with a view to correct the inaction on the part of the respondent;
3.1 It is stated that in the above factual background, the petitioners made a representation dated 3.1.2019 in view of the order dated 13.12.2018 passed by this Court in Special Civil Application Nos.14809 of 2016 to 14863 of 2016 to consider and treat the old GPF scheme (old pension schemes) instead of new pension scheme as the petitioners were already having old GPF numbers, wherein their contributions were deducted regularly from their date of joining to June 2014, which was rejected vide impugned order dated 25.2.2019 and further issued a letter dated 8.5.2019 for compulsory applying for new pension scheme instead of old pension scheme. This is the subject matter of challenge in these petitions.
4. Heard learned advocates for the parties. 4.1 The main contentions raised by the learned advocates for the petitioners are that the petitioners herein are serving in various capacities under respondent no.1 organization (Ahmedabad Municipal Transport Service - AMTS) having been duly appointed after undergoing the Page 5 of 18 Uploaded by U. SRILATHA(HC00185) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:30:24 IST 2025 NEUTRAL CITATION C/SCA/16176/2020 CAV JUDGMENT DATED: 18/07/2025 undefined recruitment process; the petitioners were inducted into the GPF (old pension) scheme from the very inception of their services; their pension contributions were regularly deducted from their salaries, as reflected in the official Pension Nomination Form and this singular fact is demonstrative of their continued membership under the Old Pension Scheme right from the date of joining; In the year 2014, a settlement was arrived at between respondent no.1 and the recognized employees' union under Section 2(P) of the ID Act; this settlement categorically treated all the concerned employees, including the petitioners, as permanent employees with effect from their original date of joining; the said settlement formed th the basis for implementation of the 6 pay commission recommendations; it is critical to note that the said settlement did not stipulate any provision for change in the pension scheme or discontinuation of the existing GPF scheme; that the respondent authorities unilaterally issued new PF numbers under the EPF scheme to the petitioners; that the petitioners were regular appointees from inception, were governed by applicable service regulations, and were receiving salary with pension deductions under the old scheme; in the affidavit filed by respondent no.3-EPFO, the respondent no.1 AMTS has never been covered under the EPF Act and this fortifies the petitioners' stand that they could not have been transferred to EPF without any enabling Page 6 of 18 Uploaded by U. SRILATHA(HC00185) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:30:24 IST 2025 NEUTRAL CITATION C/SCA/16176/2020 CAV JUDGMENT DATED: 18/07/2025 undefined statutory or administrative mechanism. 4.2 In light of the above submissions, learned advocate for the petitioners further submits that though initially the petitioners were appointed as daily rated workers, were appointed through regular procedure, continued in service and were granted pay scale and pension deductions from inception and the Gujarat Civil Services Rules (GCSR) as adopted by the AMTS and the Municipal Corporation, recognize such continuous service for pensionary benefits, the nature of initial appointments loses its relevance for the purpose of pension entitlement; that as per statutory rules and consistent administrative practice, the period of their service, including prior to being declared permanent as per 2(P) settlement, qualifies as pensionable service. He, therefore, submits that the respondents' attempt to migrate the petitioners to new pension regime without their consent is in violation of settled legal norms contravenes service jurisprudence and infringes upon the petitioners' vested rights.
4.3 In support of his submissions, learned advocate for the petitioners has relied on the judgment of this Court dated 28.4.2017 in Special Civil Application Nos.1706 of 2014 and allied matters, wherein the petitioners were similarly Page 7 of 18 Uploaded by U. SRILATHA(HC00185) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:30:24 IST 2025 NEUTRAL CITATION C/SCA/16176/2020 CAV JUDGMENT DATED: 18/07/2025 undefined situated and the benefit of old pension scheme was granted to the petitioners therein by allowing the petitions and the Letters Patent Appeal Nos. 871 of 2017 and allied matters filed against the said order was dismissed and the Hon'ble Apex Court also dismissed the Special Leave to Appeal (C) No. 4308-4316 of 2019 filed against the said order of Letters Patent Appeal. They, therefore, submitted that the order of the learned Single Judge has attained finality. The petitioners herein are similarly situated and therefore these petitions are required to be allowed by granting the prayers prayed for in these petitions.
5. Per contra, learned advocate for respondent no.1- AMTS submitted that the AMTS is a statutory body duly constituted under the provisions of the Gujarat Provincial Municipal Corporations Act, 1949; that the petitioners were taken up on waiting list meant for daily wagers pursuant to an advertisement; that the petitioners were offered work as drivers/conductors/helpers on daily wage basis depending upon availability of work and fund; that the petitioners were offered work between 1996-97 to 2002 as per requirement and provident fund amount was deducted as per EPF Act; that the AMTS is exempted as per Section 17-1-B of EPF Act and therefore, it has created its own trust; that as they were not regular and permanent employees, no deduction for Page 8 of 18 Uploaded by U. SRILATHA(HC00185) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:30:24 IST 2025 NEUTRAL CITATION C/SCA/16176/2020 CAV JUDGMENT DATED: 18/07/2025 undefined any pension scheme was made qua them; that no work was offered between 2001-02 till 2006-07 because of administrative grounds; that the order of the Industrial Tribunal granting benefits of permanency to the petitioners on completion of service of 900 days in 5 years was quashed by this Court vide order dated 10.8.2005 in Special Civil Application No.6802 of 2003 by holding that such benefits are to be provided only if permanent posts are vacant and the petitioners have no right to claim permanency; that the settlement was arrived at between the AMTS and the Union on 19.7.2014 under Section 2(P) of the ID Act and the petitioners were given benefit of regularization with effect from 1.7.2014 which were accepted by the petitioners and therefore when the petitioners were granted status of regular employees with effect from 1.7.2014 pursuant to the said settlement and also given the benefit of regular pay scale and new pension scheme, as appointments are after 1.4.2005 and therefore they are not entitled for old pension scheme. He submitted that the petitioners were daily wagers between 1996 to 2001 and even not converted into acting service and they were never governed by GPF scheme. He submitted that provident fund was never deducted under the General Provident Fund Scheme prior to 2014 as they were daily wagers and daily wagers are not entitled to benefits flowing from Gujarat Civil Service (Pension) Rules, 2002. He, Page 9 of 18 Uploaded by U. SRILATHA(HC00185) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:30:24 IST 2025 NEUTRAL CITATION C/SCA/16176/2020 CAV JUDGMENT DATED: 18/07/2025 undefined therefore, submitted that the petitioners are not entitled to the old pension scheme and these petitions may be dismissed.
6. I have heard the rival submissions made by the parties and also perused the material on record.
7. The contentions of learned advocates for the petitioners revolves around that whether the respondents are justified in converting the petitioners into new pension scheme from the old pension scheme though they had put in services from 1996.
8. It emerges from the record that the petitioners were appointed as daily wagers in the year 1996-97 and they continued to work as daily wagers till 2001. Thereafter, due to administrative grounds, no work was offered to the petitioners between 2001-02 till 2006-07; the amount was deducted as per the EPF Act and as the AMTS was exempted from EPF Act, the amount was deposited in its own PF Trust.
9. At this stage, it will be fruitful to refer to the concept of the members of the staff having classified as permanent, temporary and acting, of the Corporation, which reads as under:
Page 10 of 18 Uploaded by U. SRILATHA(HC00185) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:30:24 IST 2025
NEUTRAL CITATION C/SCA/16176/2020 CAV JUDGMENT DATED: 18/07/2025 undefined "(c) Regulation Nos.2.10 and 2.11 classify the employees of the respondent AMTS into 5 categories viz. Permanent, probation, temporary, badli and acting. The said expressions are dependent on Regulation No.2.10 to 2.11 which reads thus:-
"2.10 MEMBERS OF STAFF CLASSIFIED AS (1) "Permanent" means a member of staff who has been engaged on a permanent basis and includes any person who has been taken on the permanent establishment after satisfactorily completing a Probationary period as applicable to him.
(2) "....."
(3) "Temporary" means a member of staff whose services have been engaged for a limited period in connection with work, which is essentially of a temporary nature or who is employed temporarily as an additional staff in connection with temporary increase in work of a permanent nature and includes a Substitute who is appointed in the post of a permanent member of staff or a Probationer who is temporarily absent.
(4) "......"
(5) ACTING means the performance of duties on a temporary basis, by a member of staff, in a post to which another members holds a lien or which is vacant and includes an acting appointment in place of a member of staff Page 11 of 18 Uploaded by U. SRILATHA(HC00185) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:30:24 IST 2025 NEUTRAL CITATION C/SCA/16176/2020 CAV JUDGMENT DATED: 18/07/2025 undefined on deputation or training or instruction or for Undertaking Business."
10. Rule 25 of The Gujarat Civil Services (Pension) Rules, 2002 (hereinafter referred as `the Rules of 2002') reads as under:
"25. Qualifying service:
Subject to the provisions of these rules, qualifying of a Government employee, means and includes that -
(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 continences,
(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) all service rendered in work charged establishment provided that the total service put it, as such is five years or more.
(iii) to (x) xxxxxx"Page 12 of 18 Uploaded by U. SRILATHA(HC00185) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:30:24 IST 2025
NEUTRAL CITATION C/SCA/16176/2020 CAV JUDGMENT DATED: 18/07/2025 undefined
11. Keeping the above provisions in mind, if the facts of the present case are seen, then in the present case, the petitioners were daily wagers i.e. they were temporary employees of the AMTS, who worked from 1996-2001 but later on they were not called for work from 2001-02 to 2006-
07. Thereafter, again they were called for work. The petitioners approached the Industrial Tribunal for granting permanency, which was allowed, however, the same was quashed and set aside by this Court i.e. the petitioners, in no way, can be said to be permanent employee, which is not challenged by them and therefore the said order has attained finality. Further, it is also not the case of the petitioners that their services were converted into `acting service' or `permanent service' on completion of five years of service.
12. It is also apparent from the record that the Union and the Corporation have entered into a settlement agreement under Section 2(p) of the ID Act on 19.7.2014, which is accepted by the petitioners, wherein it was agreed that the petitioners were given the benefit of regularization with effect from 1.7.2014, which means that the petitioners are treated as regular employees of the AMTS from 1.7.2014. As the petitioners were treated as regular employees from 1.7.2014 and the new pension scheme was applicable to all Page 13 of 18 Uploaded by U. SRILATHA(HC00185) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:30:24 IST 2025 NEUTRAL CITATION C/SCA/16176/2020 CAV JUDGMENT DATED: 18/07/2025 undefined those employees who were appointed after 1.4.2005, the petitioners were given the benefit of the said scheme. By way of this settlement, it is clear that the petitioners have agreed to treat them as regular employees with effect from 1.7.2014.
13. In light of this background, the say of the petitioners that they should be considered under the old pension scheme as they have worked with the AMTS since 1996 cannot stand for the reasons:
(i) they were appointed as daily wage employees and continued to work so from 1996-97 till 2001;
(ii) their services were given a break from 2001-02 to 2006-
07;
(iii) Rule 25 of the Rules of 2002 specifies in clause (c) and
(d) that the service rendered in daily rated establishment, actual periods of break in service, if any, between spell of service will not be considered for qualifying service for pension;
(iv) the petitioners were regularized from 1.7.2014 as per the settlement arrived between the Union and the AMTS which is accepted by the petitioners;
(v) the new pension scheme came into effect from 1.4.2005 and the petitioners were regularized from 1.7.2014, which means that the new pension scheme is applicable to them as Page 14 of 18 Uploaded by U. SRILATHA(HC00185) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:30:24 IST 2025 NEUTRAL CITATION C/SCA/16176/2020 CAV JUDGMENT DATED: 18/07/2025 undefined they are regularized after 1.4.2005 and therefore the said new pension scheme was made applicable to them;
(v) the amount deducted towards EPF by the Corporation and kept in a separate account is deposited in the new pension account of the petitioners.
14. A reference is made to the pension scheme floated by the AMTS at par with government scheme with effect from 1.1.1983. The relevant portion of the same reads as under:
"Commencement of the pension scheme:-
It is decided to implement this pension scheme from 01/01/1983.
Entitlement of pension:-
The service discharged on the regular establishment from the date of joining is considered pensionable. Under the revised pension rules, the pensionable service is depending upon the years of service rendered by the employee. For this purpose, service tenure for less than six months is not considered. But the service tenure of six months and above is treated as a complete year. Example:-
(1) 24 years - 2 months - 8 days treated as 24 years, whereas, Page 15 of 18 Uploaded by U. SRILATHA(HC00185) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:30:24 IST 2025 NEUTRAL CITATION C/SCA/16176/2020 CAV JUDGMENT DATED: 18/07/2025 undefined (2) 27 years - 6 months - 1 day is treated as 28 years.
All types of temporary or permanent services in any cadre whether discharged continuously or with fractions on regular establishment is considered pensionable."
15. In the present case, indisputably, the services discharged by the petitioners from 1996 to 2001 and then from 2007 onwards to 2014 till the 2(P) settlement is arrived at, is on daily wage establishment and not on regular establishment, therefore, as per the above scheme also, they cannot be said to be qualifying for old pension scheme.
16. Strong reliance is place by the learned advocate for the petitioners on the decision of this Court dated 28.4.2017 passed in Special Civil Application No.1706 of 2014 which was further affirmed in Letters Patent Appeal No.871 of 2017 and allied matters and which was further affirmed by the Hon'ble Apex Court and submitted that the issue involved in these petitions is decided in the said matters and therefore, these petitions should be allowed on the same line. The learned Single Judge, the Division Bench and the Hon'ble Apex Court have laid the observations in detail, to which there cannot be any dispute, but this submission of learned advocates for the petitioners cannot be accepted for the reason that the petitioners therein were appointed as Page 16 of 18 Uploaded by U. SRILATHA(HC00185) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:30:24 IST 2025 NEUTRAL CITATION C/SCA/16176/2020 CAV JUDGMENT DATED: 18/07/2025 undefined daily wagers, they were converted into acting employees, they did not have any break in their service and there was no agreement between the Union and the AMTS and even if the years of work as daily rated employees was deducted, the petitioners were putting in qualifying service and therefore the matters were decided in their favour. In the case on hand, at the cost of repetition, the petitioners were appointed as daily wagers from 1996 to 2001 and from 2001-02 to 2006-07, no work was offered, their services were not converted into `acting' or `permanent' after completion of five years; they entered into a settlement to accept the regularization from 1.7.2014, and accordingly, they were regularized from 1.7.2014 and therefore the new pension scheme was made applicable to them as it is floated by the government with effect from 1.4.2005, These minor, in fact, major changes, in the facts would not make the said judgments applicable to the facts of the present case.
17. It is also required to be pointed out that in the settlement, there is a mention that the members of the Union would not raise any dispute in future in this regard. The said settlement is entered in the year 2014, these petitions are filed in the year 2019, 2020 and 2021. Be that as it may, for the reasons mentioned hereinabove, the petitioners are not entitled for the prayers prayed for in Page 17 of 18 Uploaded by U. SRILATHA(HC00185) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:30:24 IST 2025 NEUTRAL CITATION C/SCA/16176/2020 CAV JUDGMENT DATED: 18/07/2025 undefined these petitions.
18. In view of the above discussion, these petitions are required to be dismissed. Accordingly, dismissed. Rule is discharged. Interim relief, if any, stands vacated.
(SANDEEP N. BHATT,J) SRILATHA Page 18 of 18 Uploaded by U. SRILATHA(HC00185) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:30:24 IST 2025