Gujarat High Court
Ashokkumar Prabhakar Palkar vs State Of Gujarat on 11 February, 2022
Author: Biren Vaishnav
Bench: Biren Vaishnav
C/SCA/4601/2019 JUDGMENT DATED: 11/02/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 4601 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BIREN VAISHNAV
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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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ASHOKKUMAR PRABHAKAR PALKAR
Versus
STATE OF GUJARAT
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Appearance:
DECEASED LITIGANT for the Petitioner(s) No. 19
MS HARSHAL N PANDYA(3141) for the Petitioner(s) No.
1,10,11,12,13,14,15,16,17,18,19.1,2,20,3,4,5,6,7,8,9
MS.SURBHI BHATI, AGP for the Respondent(s) No. 1,2,3
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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
Date : 11/02/2022
ORAL JUDGMENT
1. With the consent of the learned advocate for the respective parties, the petition is taken up for final hearing.
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2. RULE returnable forthwith. Ms.Surbhi Bhati learned AGP waives service of Rule on behalf of the respondents.
3. By way of this petition under Article 226 of the Constitution of India, the prayer of the petitioner is to declare and held that the petitioners are at par with other pensioners as defined under the Gujarat Civil Services (Pension) Rules, 2002 and are entitled to all the benefits which are available to them and they be made available to the petitioners. By a subsequent amendment made in the petition, the prayer also is to quash and set aside the Government Resolution dated 21.03.2020 to the extent of it being effective from 01.03.2020, denying arrears prior to that date the case of the petitioners is that the petitioners joined the services of the State Government in Food and Civil Supplies Department on various dates on creation of the Gujarat State Civil Supplies Corporation on 02.10.1980, the petitioners were sent on deputation to the Corporation since the activities were assigned to the Page 2 of 11 Downloaded on : Mon Feb 14 20:46:00 IST 2022 C/SCA/4601/2019 JUDGMENT DATED: 11/02/2022 Corporation. In the year 1986, the State Government decided to absorb the employees sent on deputation to the corporation permanently. Accordingly the petitioners were permanently absorbed in the corporation. Upon absorption, the employees including the petitioners were treated to have been retired from government service with effect from 04.10.1988 or 30.06.1989 as the case may be, the petitioners were permitted to commute full pension by the authorities of the State Government on their retirement. The State Government on 23.04.1998 decided to grant the benefit of restoration of commuted portion of pension of the Government employees who have been absorbed upon their completion of 15 years of service so commutation period. The resolution is placed on record.
4. Ms.Pandya would invite the attention of the Court to a resolution dated 09.06.1999, where it was observed in the resolution that the Government after careful consideration has decided to grant the Page 3 of 11 Downloaded on : Mon Feb 14 20:46:00 IST 2022 C/SCA/4601/2019 JUDGMENT DATED: 11/02/2022 benefit of restoration of 1/3rd commuted portion of pension after 15 years from the date of commutation. Accordingly the process of restoration of 1/3rd of commuted pension was undertaken and pension payment orders were issued in favour of the petitioners. Pension of the petitioners was revised in the year 2010.
4.1 It is the case of the petitioners that the pensioner is entitled to restoration of his commuted part of pension on completion of 15 years of service of his retirement and he would be getting full monthly pension thereafter. If the case of the petitioners, towards the absorbed pensioners, it was only 1/3rd of the portion of the pension which was restored, that too after the respondents accepted the same after litigation. As far as restoration of the 2/3rd remaining part of pension is concerned, Ms.Pandya would rely on the resolution of the Central Government dated 23.06.2017 which was passed by the Central Government pursuant to the decision of the Madras High Court dated 02.08.2007 Page 4 of 11 Downloaded on : Mon Feb 14 20:46:00 IST 2022 C/SCA/4601/2019 JUDGMENT DATED: 11/02/2022 so confirmed by the Apex Court in the order dated 01.09.2016.
4.2 It is the case of the petitioners that they are therefore entitled to restoration of full pension that is the remaining part of 2/3rd pension. Representations made from time to time were not decided. She would rely on Rules 101 and Rule 51 of the pension rules and submit that there is ab obligation on the pension sanctioned the authority to restore commuted pension in the event the petitioner completed 50 years of service. She would also fall back on the definition of the term "pensioners" as defined under the pension rules.
5. It appears that pending this petition, the State Government came out with the resolution dated 21.03.2020, however, restricting the benefit of restoration of full pension with effect from 01.03.2020.
6. Ms.Surbhi Bhati learned AGP would rely on the affidavit in reply filed by the Under Secretary of the Page 5 of 11 Downloaded on : Mon Feb 14 20:46:00 IST 2022 C/SCA/4601/2019 JUDGMENT DATED: 11/02/2022 Food and Civil Supply Department. Emphasis was placed on para 14 and 15 of the reply to submit that the Government also extended the benefits of the pension to the absorbed employees. The petitioners and similarly situated employees were earlier working in the Government and was subsequently absorbed in the public sector undertaking and have been given a lump-sum amount equivalent to pension based on the required minimum pensionable service. 1/3rd of the pension has already been restored by resolutions of the Government to repute the submissions of Ms.Pandya in context of the Rules referred to by learned counsel for the petitioner.
7. Considering the submissions made by learned counsel for the respective parties, what is evident on reading the resolution dated 09.03.1999 that at the relevant point of time, the benefit of restoration of 1/3rd of commuted pension was given after 15 years. A fruitful reference can be made to pension Rules annexed to the petition particularly Rule 51 thereof.
"RULE 51(a) The pro-rata pension and death-Page 6 of 11 Downloaded on : Mon Feb 14 20:46:00 IST 2022
C/SCA/4601/2019 JUDGMENT DATED: 11/02/2022 cum-retirement gratuity shall be based on the length of his qualifying service under Government till the date of absorption. The pension will be calculated on the basis of pensionable pay for thirty six months preceding the date of absorption and the death-cum- retirement gratuity on the basis of the pay drawn immediately before absorption."
8. When read in context of the definition of the term pensioner in Rule 2(57) of the Pension Rules 2002 and Rule 101 thereof, it indicates that the petitioners are entitled to the restoration of remaining amount of 2/3rd pension from their respective dates on completion of 15 years of service. The judgment of the Madras High Court in case of K. Ganeshan v. Registrar, Central Administrative Tribunal in Writ Petition No.222 of 2007 considering the issue, observed as under:
"13. Under Section 10 as stated by us earlier, while commutation of pension for the whole or any part of it can be opted by a pensioner based on such terms fixed under the Rules, it will have to be stated that such enabling provision providing for commutation for either part or whole of the pension can only for commutation purposes and that under the guise of commutation, it will not be open for the Government to once and for all wipe of the very right to restoration of such pension after the expiry of the period of commutation. In Page 7 of 11 Downloaded on : Mon Feb 14 20:46:00 IST 2022 C/SCA/4601/2019 JUDGMENT DATED: 11/02/2022 fact, Rule 37-A clause (b) though uses the expression the commutation of balance amount of pension namely the 2/3rd of pension, the stipulations contained therein providing for such commutation of 2/3rd pension would be subject to surrendering of the right of Government servant, for drawing the 2/3rd pension would run counter to the very concept of commutation which will not be in consonance with Section 10 providing for commutation of pension alone and not the right to claim pension after the period of commutation.
14. That apart, even if the petitioner was obliged to surrender such a right for the drawal of 2/3rd of his pension by agreeing for the terms contained in Rule 37-A of Pension Rules in as much as such a wholesale surrender of the right to pension as contained in the said Rule conflicts Section 12 of the Pensions Act, it will have to be held that the Rules providing for such surrendering of right in opposition to Section 12 of the Act cannot be permitted to operate. When under Section 12 of the Act, there is a prohibition imposed on the pensioner himself to barter away his right under very many circumstances except as provided under Section 12-A of the Pensions Act, we are convinced that surrendering of the right for drawal of 2/3rd of Pension after its commutation as provided under Rule 37-A (b) is repugnant to Section 12 and is straight away hit by the prohibition imposed under Section
12. Consequently any action based on Rule 37- A(b) is wholly illegal and therefore the surrendering of rights of the petitioner for drawing 2/3rd of his pension at the time of its commutation to that extent can not operate against his interest. We therefore declare that such surrendering rights by the petitioner at the time of his absorption in the year 1986 Page 8 of 11 Downloaded on : Mon Feb 14 20:46:00 IST 2022 C/SCA/4601/2019 JUDGMENT DATED: 11/02/2022 while commuting 2/3rd of his pension, was invalid and consequently the petitioner was lawfully entitled for the restoration of his pension after the expiry of the period of commutation of 2/3rd pension."
9. Ms.Bhati would rely on a decision in case of B.L.Gupta and Another reported in (1998) 9 SCC 223 to submit that once the resolution gives the benefit of an employee and the Rules are operative prospectively, no fault can be found with the same. It is also in the fitness of things to refer to the resolution passed by the Central Government in light of the decision of the Madras High Court confirmed by the Supreme Court. Para 8 of the same reads as under:
"8. The matter has been examined in consultation with the Department of Legal Affairs and the Ministry of Finance (Department of Expenditure). It has been decoded to extend the benefit of order dasted 02-08-2007 of the Hon'ble Madras High Court and the Order dated 01-09-2016 of the Hon'ble Supreme Court to all similarly placed absorbee pensioners. Accordingly, all such absorbee petitioners who had taken 100% lump-sum amount in lieu of pension on absorption in PSUs/Autonomous Bodies in accordance with the then existing Rule 37-A and in whose case 1/3 pension had been restored after 15 years, may be allowed restoration of full pension after expiry of commutation period of 15 years from Page 9 of 11 Downloaded on : Mon Feb 14 20:46:00 IST 2022 C/SCA/4601/2019 JUDGMENT DATED: 11/02/2022 the date of payment of 100% lup-sum amount.
9. The absorbee pensioners whose full pension is restored in terms of the above instructions would also be entitled to revision of their pension in accordance with the instructions issued from time to time in implementation of the recommendations of the Pay Commissions, including the 7th Central Pay Commission."
10. The corrigendum was subsequently introduced just to change the words 'absorb the petitioners' from 'absorb the pensioners'.
11. The same indicates that in such cases where absorb the petitioners who have taken 100% of lump-sum amount in lieu of pension on absorption in PSU/autonomous produce in existence of Rule 37A and in whose case 1/3rd pension has been resorted after 15 years may be allowed restoration of full pension after expiry of commutation period of 15 years from the date of payment of 100% lump-sum. There is no reason why such a benefit should not have been granted to the petitioners who were treated to have retired from government service on assumption that the Corporation on the respective dates and the resolution to operate prospectively Page 10 of 11 Downloaded on : Mon Feb 14 20:46:00 IST 2022 C/SCA/4601/2019 JUDGMENT DATED: 11/02/2022 with effect from 01.03.2020.
12. Accordingly, the petition is allowed. The respondents are directed to restore 2/3rd commuted portion of pension of each of the petitioners from the date on which they had completed 15 years of service after retirement from the State Government or the date on which the 1/3rd of commuted pension has been restored on the lines of OM of the Central Government. Even the resolution dated 21.03.2020 was to which restricts the case of the petitioner and operates prospectively is also quashed and set aside. Arrears flowing from the direction as aforesaid shall be paid to the petitioners.
13. Entire exercise shall be carried out by the respondents within a period of 10 weeks from the date of receipt of copy of this order.
Rule is made absolute to the aforesaid extent.
(BIREN VAISHNAV, J) ANKIT SHAH Page 11 of 11 Downloaded on : Mon Feb 14 20:46:00 IST 2022