Gujarat High Court
Ketan Trivedi vs State Of Gujarat on 28 April, 2022
Author: Vipul M. Pancholi
Bench: Vipul M. Pancholi
C/SCA/13105/2017 JUDGMENT DATED: 28/04/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 13105 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
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1 Whether Reporters of Local Papers may be allowed NO
to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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KETAN TRIVEDI
Versus
STATE OF GUJARAT & 2 other(s)
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Appearance:
MR VIMAL A PUROHIT(5049) for the Petitioner(s) No. 1
MR HARDIK MEHTA, ASST. GOVERNMENT PLEADER for the
Respondent(s) No. 1,2
RULE SERVED for the Respondent(s) No. 3
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CORAM:HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
Date : 28/04/2022
ORAL JUDGMENT
1. This petition is filed under Article 226 of the Constitution of India, in which, petitioner has prayed for the following reliefs :
"6(A) The Hon'ble Court be pleased to issue a writ of mandamus or any other appropriate writ, order or direction declaring the order dated 12.4.2016 (at Page 1 of 10 Downloaded on : Mon May 02 20:33:25 IST 2022 C/SCA/13105/2017 JUDGMENT DATED: 28/04/2022 Annexure-A) by which the benefits of Tikku Pay Commission granted to the petitioner are withdrawn as illegal, unjust, arbitrary and violative of Article 14 of the Constitution of India and hence, be pleased to quash and set aside the same by directing the respondents to grant the benefits of Tikku Pay Commission to the petitioner with 12% interest.
(B) The Hon'ble Court be pleased to hold that the respondents have illegally withdrawn the benefits of Tikku Pay Commission granted to the petitioner and hence, be pleased to direct the respondents to re-
fix the pension of the petitioner by granting the benefits of Tikku Pay Commission and pay arrears to the petitioner with 12% interest.
(C) Pending admission and final disposal of the present petition, the Hon'ble Court be pleased to direct the respondents to start paying the revised pension to the petitioner by granting the benefits of Tikku Pay Commission forthwith.
(D) Any other and further relief as this Hon'ble Court may deem fit and proper be granted."
2. Heard learned advocate Mr.Vimal Purohit for the petitioner and learned Assistant Government Pleader Mr.Hardik Mehta for the respondents.
3. Learned advocate for the petitioner submitted that the petitioner was selected by the respondent Government for the post of Medical Officer under the respondent Department and was issued appointment order dated 16.10.1996, thereafter, the petitioner joined the office of respondent No.3 at Jamnagar. On completion of the qualifying service of 6 and 13 years, the Page 2 of 10 Downloaded on : Mon May 02 20:33:25 IST 2022 C/SCA/13105/2017 JUDGMENT DATED: 28/04/2022 petitioner was granted benefits of Tikku Pay Commission. The first higher pay-scale of the said Commission was granted to the petitioner w.e.f. 21.02.1999 and thereafter, the second higher pay-scale was granted to the petitioner w.e.f. 22.02.2006. It is further submitted that after completion of 23 years continuous service, the petitioner submitted an application for voluntary retirement to the respondent authority on 17.12.2015. The said application was accepted by the respondents and vide order dated 16.04.2016 the petitioner was permitted to be retired from services. At this stage, it is submitted that before passing the said order allowing the VRS application of the petitioner, another order dated 12.04.2016 was also passed, whereby, the benefits of Tikku Pay Commission granted to the petitioner were ordered to be withdrawn. It is submitted that after voluntary retirement, the respondents did not grant benefits of Pension and other retirement benefits and therefore, the petitioner filed petition before this Court being Special Civil Application No.20518 of 2016. The said petition was disposed of by the order dated 09.12.2016 and thereby, this Court permitted the respondents to finalize the pension papers of the petitioner within stipulated time. Thereafter also, the petitioner was not paid pension and other retirement benefits. The petitioner therefore, made representation before the respondents and pointed Page 3 of 10 Downloaded on : Mon May 02 20:33:25 IST 2022 C/SCA/13105/2017 JUDGMENT DATED: 28/04/2022 out that in case of similarly situated employees, the High Court has passed the order which is confirmed by the Division Bench and therefore, the case of the petitioner be treated at par with that employees and the petitioner shall be granted the benefits of Tikku Pay Commission, which are illegally withdrawn by the respondents.
3.1 At this juncture, learned advocate for the petitioner submitted that though such representation was received by the respondents, the respondents did not withdraw their order dated 12.04.2016 and the pay of the petitioner is reduced as per the said order and his pension is also fixed in the lower pay-scale. The petitioner has, therefore, filed this petition.
3.2 Learned advocate for the petitioner submitted that the issue involved in the present petition is squarely covered by the decision rendered by this Court in case of one Harish Dutichand Chandani vide order dated 20.07.2015 passed in Special Civil Application No.12033 of 2014. It is submitted that this Court has after considering the Government Resolution dated 11.05.2001 allowed the petition filed by the concerned similarly situated employee and the respondents were directed to extend the benefits of Tikku Pay Commission in favour of the said petitioner and direction was also given to re-fix the pension accordingly. The copy of the said Page 4 of 10 Downloaded on : Mon May 02 20:33:25 IST 2022 C/SCA/13105/2017 JUDGMENT DATED: 28/04/2022 order is placed on record at page no.16.
3.3 Learned advocate for the petitioner at this stage further submitted that the respondents challenged the said order passed by the learned Single Judge by filing the Letters Patent Appeal No.1469 of 2015 before the Division Bench. The Division Bench, vide order dated 16.01.2017, confirmed the order passed by the learned Single Judge and thereby, dismissed the Letters Patent Appeal filed by the present respondents.
3.4 Learned advocate for the petitioner also placed reliance on the orders passed by this court in similar matters. The said orders are produced by way of separate compilation. Learned advocate therefore, urges that when the issue involved in the present petitioner is covered by the aforesaid decisions, the present petition be allowed and appropriate direction be issued to the respondents.
4. On the other hand, learned Assistant government Pleader Mr.Hardik Mehta appearing for the respondents opposed this petition and referred to the averments made in the affidavit- in-reply filed on behalf of the respondent No.3. Learned AGP submitted that the respondent authority allowed the application submitted by the petitioner for voluntary retirement and therefore, as per the order dated 12.04.2016 Page 5 of 10 Downloaded on : Mon May 02 20:33:25 IST 2022 C/SCA/13105/2017 JUDGMENT DATED: 28/04/2022 passed by the respondents, the benefits of Tikku Pay Commission granted to the petitioner was withdrawn. Learned AGP further submitted that as per the G.R. dated 11.05.2001 issued by the Health and Family Welfare Department, the petitioner is not entitled to get the benefits of Tikku Pay Commission as he had tendered an application for voluntary retirement. At this juncture, learned AGP has referred to the G.R. dated 11.05.2001, copy of which is placed on record at page no.39.
4.1 Learned AGP therefore, urges that no error is committed by the respondents while withdrawing the benefits of Tikku Pay Commission given to the petitioner and fixing the pension of the petitioner in the lower pay-scale.
4.2 However, the learned AGP is not in a position to dispute that in similar type of case, the Co-ordinate Bench of this court has passed the order in favour of the concerned petitioner, however, the learned AGP has tried to distinguish the case of the present petitioner.
5. Having heard the learned advocates appearing for the respective parties and having gone through the material placed on records, it would emerge that the petitioner was appointed as a Medical Officer vide order dated 16.10.1996 and on completion of 6 and 13 years of service, the Page 6 of 10 Downloaded on : Mon May 02 20:33:25 IST 2022 C/SCA/13105/2017 JUDGMENT DATED: 28/04/2022 respondents had granted him the benefits of Tikku Pay Commission. Thus, the petitioner got the first higher pay-scale as well as the second higher pay-scale after 23 years of continuous service. The petitioner submitted an application for voluntary retirement from service, which was accepted by the respondents and thereafter, the petitioner was permitted to retire from service. However, at the same time, on 12.04.2016, the respondents withdrew the benefits of Tikku Pay Commission granted to the petitioner relying upon the G.R. dated 11.05.2001 issued by the Health and Family Welfare Department. The pension of the petitioner is also fixed in the lower pay-scale.
5.1 The similar issue raised before this Court in the petition filed by one Harish Dutichand Chandani in Special Civil Application No.12033 of 2014. This Court, after considering the similar contentions raised on behalf of the respondents and after considering the G.R. dated 11.05.2001, observed as under :
"The Government Resolution of 2001 makes one thing clear that the Medical Officers are not entitled to the dual benefits of the senior scale and the Tiku Pay Commission.
In the case in hand, there is no question of granting any dual benefits. I am of the view that the Government Resolution dated 11th May 2001 has been made applicable only in case of those employees who had retired from service or had resigned or had sought voluntary retirement between the period 14th November 1991 and 16th October 1994."Page 7 of 10 Downloaded on : Mon May 02 20:33:25 IST 2022
C/SCA/13105/2017 JUDGMENT DATED: 28/04/2022 5.2 Thus, from the aforesaid observations made by this Court, it is clear that the Government Resolution dated 11.05.2001 has been made applicable only in case of those employees who had retired from service or has resigned or had sought voluntary retirement between the period 14.11.1991 and 16.10.1994.
5.3 It is pertinent to note at this stage that the respondents challenged the said order by filing Letters Patent Appeal No.1469 of 2015 and this court vide order dated 16.01.2017 dismissed the said Letters Patent appeal. While dismissing the said appeal, the Division Bench has observed in paragraph 7, 8 and 9 as under :
"7. From a reading of Government Resolution dated 11.05.2001 it is clear that Medial Officers are not entitled to dual benefits of senior scale as well as the benefit of the recommendations of Tiku Pay Commission. Without going into the controversy, namely, whether the period from 14.11.1991 to 16.10.1994 applies to the case of the respondent or not, it is clear from the Government Resolution itself that it is issued to clarify that the Medical Officers are not entitled to the dual benefit of senior scale as well as the recommendations of Tiku Pay Commission. As it is not disputed that the respondent was not entitled to the benefit of senior scale, there is no reason or justification for denying the benefits of the recommendations of Tiku Pay Commission. When the respondent-original petitioner has not availed any benefit of senior scale, in which event the question of double benefit will not arise so as to apply Government Resolution dated 11.05.2001.Page 8 of 10 Downloaded on : Mon May 02 20:33:25 IST 2022
C/SCA/13105/2017 JUDGMENT DATED: 28/04/2022
8. There is also yet another reason to reject this appeal. There is specific averment made in paras 10 and 11 of the petition by the respondent-original petitioner stating that similarly placed persons to that of the respondent- original petitioner, namely, (I) Dr.A.J. Oza, (ii) Dr.Hemant B. Patel, and (iii) Dr.M.J. Gupta, who have voluntarily retired as Class-II officers were also extended the benefit of the recommendations of Tiku Pay Commission for pensionary benefits, but the same was not dealt with in the reply filed by the appellants herein in the petition. As much as the appellants have not rebutted such allegations in the reply, they have to be taken as admitted facts. In that view of the matter there is no reason or justification to make differentiation among similarly placed officers for the purpose of extending the benefit of the recommendations of Tiku Pay Commission. The learned Single Judge has also taken note of such discrimination among similarly placed persons while allowing the petition filed by the respondent-
original petitioner.
9. It is clear for us that Government Resolution dated 11.05.2001 cannot be applied to the case of the respondent and further similarly placed persons to that of the respondent were already extended the benefit of the recommendations of Tiku Pay Commission, we are of the view that there is no reason or justification in denying such benefit to the respondent- original petitioner, who had served the appellant-Department from September 1985 to 31st December 2013 as Medical Officer Class-II. It is needless to observe that he was compelled to take voluntary retirement in view of disability suffered by him on account stroke which resulted into disability of paralysis to the extent of 75%."
5.4 This Court is of the view that the issue involved in the present petition is squarely covered by the aforesaid orders passed by this Page 9 of 10 Downloaded on : Mon May 02 20:33:25 IST 2022 C/SCA/13105/2017 JUDGMENT DATED: 28/04/2022 Court and therefore, this petition succeeds and is hereby allowed. The impugned order dated 12.04.2016, passed by the respondents, withdrawing the benefits of Tikku Pay Commission, is hereby quashed and set aside. The petitioner is entitled to get the benefits of Tikku Pay Commission and therefore, the respondents are directed to pay necessary benefits to the petitioner and re-fix the pension of the petitioner by granting the benefits of Tikku Pay Commission. The respondents shall carry out such exercise within a period of 12 weeks from the date of receipt of this order.
5.5 Rule is made absolute to the aforesaid extent.
(VIPUL M. PANCHOLI, J) Dolly Page 10 of 10 Downloaded on : Mon May 02 20:33:25 IST 2022