Gujarat High Court
Rohitchandra Vipinchandra Tevar vs Chief Secretary on 13 August, 2015
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/17160/2014 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 17160 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
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1 Whether Reporters of Local Papers may be allowedNo
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy ofNo
the judgment ?
4 Whether this case involves a substantial question ofNo
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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ROHITCHANDRA VIPINCHANDRA TEVAR....Petitioner(s)
Versus
CHIEF SECRETARY, & 3....Respondent(s)
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Appearance:
PARTY-IN-PERSON, ADVOCATE for the Petitioner(s) No. 1
MR ROHAN YAGNIK, AGP for the Respondent(s) No. 1 - 2
MR HIREN P VYAS, ADVOCATE for the Respondent(s) No. 3
MR PM VYAS, ADVOCATE for the Respondent(s) No. 3
MS SEJAL H VYAS, ADVOCATE for the Respondent(s) No. 3
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 13/08/2015
CAV JUDGMENT
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1. Rule. Mr. Rohan Yagnik, the learned AGP waives service of notice of rule for and on behalf of the respondents Nos. 1 and 2 and Mr. Hiren P. Vyas, the learned advocate waives service of notice of rule for an on behalf of the respondents Nos. 3 and 4.
2. By this writapplication the applicant, a retired employee of the Gujarat State Seed Certification Agency and appearing as partyin person has a grievance as regards his retiral benefits like pension.
3. The facts of this writapplication may be summarized as under:
4. The applicant was appointed in government service in the year 1975. In 1980 the State Government established the Gujarat State Seed Certification Agency. The applicant was sent to the agency on deputation in the year 1980. He was asked to exercise his option whether he wanted to be absorbed in the agency or continue with the State Government. The applicant exercised his option to be continued and absorbed in the agency. He had exercised his option in March, 1980.
5. It appears that it took almost 21 years for Page 2 of 22 HC-NIC Page 2 of 22 Created On Fri Aug 14 13:19:51 IST 2015 C/SCA/17160/2014 CAV JUDGMENT the State Government to decide on the option which was exercised by the applicant. On 10th September, 2001 the option exercised by the applicant for being absorbed in the agency was accepted with effect from 1st April, 1980.
6. Since it took almost 21 years to decide whether the option should be accepted or not, the applicant continued in the General Provident Fund.
7. On 1st April, 2003 the agency opened the EPF Account of the applicant, and started depositing their part of the contribution alongwith the applicant.
8. The applicant attained superannuation on 30th November, 2009.
9. Thus, from the above it appears that from 1975 to 2003, the applicant remained in the GPF. After the EPF Account was opened in the year 2003 till the time the applicant retired he remained in the EPF.
10. The writapplication is in Gujarati. I heard the partyinperson at length and to his heart's content. What I could gather from the submissions made by the applicant is that if he would have Page 3 of 22 HC-NIC Page 3 of 22 Created On Fri Aug 14 13:19:51 IST 2015 C/SCA/17160/2014 CAV JUDGMENT continued in the GPF till the last then he would have been treated as a government employee and would have been eligible to draw pension under the pension rules, 2002. According to the applicant it took 21 years for the government to take a decision whether the option exercised by him to be absorbed in the agency should be accepted or not and as a result it has caused great prejudice to him so far as his retiral benefits are concerned. He submitted that had the decision been taken at an appropriate time and his EPF Account would have been opened immediately in 1980 itself then he would have been eligible to draw pension even under the EPF. According to him since he remained in the EPF for only a period of six years he is not eligible to draw any pension. Therefore, according to the applicant he has sustained loss on both the sides. He lost his GPF pension and the EPF pension as well.
11. According to the applicant it is only because of gross and inordinate delay on the part of the government that even after putting in almost 30 years of service he is not eligible to draw pension.
12. He submitted that it is very difficult to survive in these days of high inflation without Page 4 of 22 HC-NIC Page 4 of 22 Created On Fri Aug 14 13:19:51 IST 2015 C/SCA/17160/2014 CAV JUDGMENT pension. The applicant, therefore, prays that appropriate relief be granted in his favour.
13. On the other hand, this writapplication has been vehemently opposed by Mr. Rohan Yagnik, the learned AGP appearing for the State respondents. He submitted that although it is true that it took almost more than 21 years for the State Government to grant approval to the option which was exercised by the applicant in the year 1980 yet the applicant derived all the benefits as an employee of the agency including that of the seniority as well as the higher grade scale. Mr. Yagnik submitted that from 2003, the applicant ceased to be a government employee. From 2003 his EPF Account was open and therefore the applicant is not entitled or eligible to draw any pension.
14. Mr. Yagnik placed reliance on the reply filed on behalf of the respondent No.4Assistant Administrative Officer, Office of the Director of Agriculture, Gujarat State. I may quote the averments made in this reply: "5. I respectfully say and submit that without prejudice what is stated hereinbelow, the present petition is not liable to be entertained only on the ground that the present petitioner has retired on 30.11.2009 and the present petition is filed in the year 2014 i.e. after a period of 5 years therefore, there is a gross, inordinate and unexplained delay in filing the present petition.
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6. I respectfully say and submit that the present petitioner was absorbed on permanent basis in agency vide Government Resolution dated 10.09.2001 passed by the Agricultural and Cooperation Department. I further say that though, the present petitioner was originally appointed in the department on 19.03.1975 but the present petitioner was put on deputation on 22.03.1982 in the agency i.e. respondent no.3. I further say that the present petitioner himself has chosen option to put himself in the agency. I further say that the employee of the agency has filed Special Civil Application before this Hon'ble Court being SCA no.659 of 1991 wherein the petitioner was also one of the copetitioner wherein they have challenged the action of repatriation of the employee from agency to the Government department. I further say that there was status quo of this Hon'ble Court vide order dated 11.10.1991 passed by this Hon'ble Court (Coram: Hon'ble Mr. Justice A.P. Ravani and Hon'ble Mr. Justice A.N. Devecha) Therefore, as there was a status quo of this Hon'ble Court no decision was taken till 2003. I further say that vide resolution dated 10.09.2001 the present petitioner was declared permanent employee of the agency. A copy of the said resolution dated 10.09.2001 is annexed herewith and marked as ANNEXURE R1. The said Special Civil Application being SCA no.659 of 1991 was disposed of on 14.09.2006 on the ground that since vide resolution dated 10.09.2001 the services of the petitioner were regularized in the agency they were considered as regular employees of the agency therefore, this petition does not survives anymore and therefore, the petition was disposed of. A copy of the said order dated 14.09.2006 is annexed herewith and marked as ANNEXURE RII.
7. I respectfully say and submit that the present petitioner has himself chosen a option to go in the employment of Gujarat State Seed Certificate Agency (hereinafter referred to as "said agency") in the year 1982. It was clearly stated by the petitioner that the petitioner has given his unconditional consent to put him permanently that the said agency and the option was last and final and thereafter,there will be no change in the said option. A copy of the said option form is annexed herewith and marked as ANNEXURE RIII.
8. I respectfully say and submit that at this stage it is also pertinent to note that even the direct recruitees of the agency has also filed Special Page 6 of 22 HC-NIC Page 6 of 22 Created On Fri Aug 14 13:19:51 IST 2015 C/SCA/17160/2014 CAV JUDGMENT Civil Application being SCA no.57 of 1991 before this Hon'ble Court against which the other employees who are put on deputation in the agency has filed another Writ Petition being SCA no.659 of 1991 wherein this Hon'ble Court has given the status quo order as stated hereinabove.
9. I respectfully say and submit that the present petitioner and other 11 similarly situated employees were given all the benefits for the period starting from 01.04.1980 till the date of retirement i.e. 30.11.2009 an amount of Rs.3,50,000/ as gratuity, Rs.3,09,300/ as leave encashment and over and above a group insurance amount of Rs.1,50,044/ for the period starting from 01.04.2003 to 30.11.2009.
10. I respectfully say and submit that the State Government has taken decision that the present petitioner and other similarly situated employees were deputed in the year 1980 and as the order was passed in the year 2001 to put them permanently with effect from 01.04.1980, therefore, for the period from 1980 to 2003 a GPF was deducted and the said GPF was deposited with Accountant General Office, Rajkot by the Agricultural and Cooperation Department. Thereafter, from 01.04.2003 an EPF scheme was made applicable in the case of the petitioner. Therefore, it can be said that for the period starting from 1980 to 31.03.2003 the petitioner was under GPF scheme and for the period starting from 01.04.2003 till his date of retirement i.e. 30.11.2009 the present petitioner was under EPF scheme therefore, after the period starting from 01.04.2003 the present petitioner cannot be termed as an employees of the Government.
11. I respectfully say and submit that as stated hereinabove the petitioner and the other similarly situated persons were declared permanent employees of the agency vide resolution dated 10.09.2001. It is pertinent to note that as per condition no. xiv the present petitioner has to give consent to transfer his GPF amount to the new Provident Fund (EPF) for which till today the present petitioner has not filled any form. It is pertinent to note that the respondent no.3 has written many letters to the petitioner to fill up the form and give consent for the transfer of GPF to new provident fund but till today the present petitioner has not replied to the said letters. Copies of the said letters are annexed herewith and marked as ANNEXURE RIV (COLLECTIVELY).
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12. I respectfully say and submit that it is admitted position that the present petitioners are the employees of the agency and not of the Government more particularly, has mentioned in the Government Resolution dated 10.09.2001 the present petitioner are not entitled for any Government petition, or any other benefit as it is available to only Government employee but the agency employee.
13. I respectfully say and submit that the other 3 similarly situated employees who were also co petitioners in Special Civil Application being SCA no.659 of 1991 has filed another Writ Petition being SCA no.6079 of 2002 with SCA no.6080 of 2002 with SCA no.6081 of 2002 before this Hon'ble Court. It is pertinent to note that vide order dated 03.07.2014 (Coram: Hon'ble Mr. Justice G.R.Udhwani) after hearing the merits the Hon'ble Court has dismissed the said petition after recording no substance in the petition of those petitioners who was similarly situated. A copy of the said order dated 03.07.2014 is annexed herewith and marked as ANNEXURE RV.
14. In light of the aforesaid facts and circumstances it is pertinent to note that the present petitioner was not the employee of the Government right from 01.04.1980 but as per the Government Resolution dated 10.09.2001, the present petitioner is the employee of the said agency from the period starting from 01.04.1980 till the date of his retirement i.e. 30.11.2009. In light of the facts and circumstances the present petitioner is not entitled for any relief as prayed for which the amount of pension or any other benefits which are applicable to only the employees of the Government."
15. Mr. Yagnik submitted that there being no merit in this writapplication the same be rejected.
16. Mr. Vyas, the learned advocate appearing for the agency also opposed this writapplication submitting that the applicant is not entitled to any of the reliefs prayed for in this writ Page 8 of 22 HC-NIC Page 8 of 22 Created On Fri Aug 14 13:19:51 IST 2015 C/SCA/17160/2014 CAV JUDGMENT application. He placed reliance on the reply filed by the Deputy Director, Gujarat State Seed Certification Agency, respondent No.3. I may quote the averments made in the reply as under: "4. It is humbly submitted that the said petition is not maintainable for a reason that the petitioner is guilty of gross delay and laches in as much as the petitioner was superannuated on 30/11/2009 but has chosen to prefer the present petition only in the year 2014.
5. Now in order to apprise this Hon'ble Court with true and correct facts, the respondent no.3 agency submits their reply against the petition of the petitioner and same is as under.
6. I say and submit that the agency is established by Government of Gujarat as a Seed Certification Agency for the State under the nomenclature of Gujarat State Seed Certification Agency Vide Government resolution dated 17/03/1980 and is formed and registered under the provisions of Societies Registration Act, 1860.
7. I say and submit that the agency came into existence and has started operating since year 1980 as an independent body. I say ans submit that respondent no.3agency is having their own service rules being Gujarat State Seed Certification Agency, Service Rules, 1980. I state and submit that so far as scheme of the State of Gujarat is not applicable to the employee of agency but the scheme of E.P.F. Regulated and governed by the Central Government of India as per the provisions, law, rules and regulations framed therein from time to time is applicable to agency.
8. I say and submit that agency has been constituted since 1980, however has become the member of the E.P.F. as an Employer since 01/04/1983 and the account of each employee is also opened for the scheme of E.P.F. I submit that for the purpose of the pension scheme the agency as employer has to contribute the same amount as the employee contributes and such amount of contributions by both, employer as well as of employee is fixed sum of amount, whatever is fixed as per the provisions of E.P.F. Page 9 of 22 HC-NIC Page 9 of 22 Created On Fri Aug 14 13:19:51 IST 2015 C/SCA/17160/2014 CAV JUDGMENT
9. I submit that the petitioner originally being appointed with the respondent no.4 in 1975. I say and submit that this petitioner having option scheme available to him as opted for the permanent absorption in agency from the Gujarat State Services. I say and submit that the said option was exercised by this petitioner with on open eye with full awareness that option is full and final and thereafter there will be no change in the option form. The present petitioner has served in agency till attaining his superannuation on dated 30/11/2009 and retired as Seed Certification Officer.
10. I say and submit that since service of the petitioner in the agency, the entire salary, PCLSE Contributions, benefits were paid & borne by the agency. It will be pertinent to mention here that this petitioner has received promotions and also higher grade pay scale from the agency, which was never questioned by this petitioner although decision for permanent absorption was pending before State authority. Not only that this petitioner was placed at higher in the seniority over the employees of agency at the relevant point of time.
11. I say and submit that since the decision for permanent absorption was pending before State authority, the G.P.F. of petitioner was deducted from the salary of petitioner. As the petitioner was not a member of E.P.F. Scheme on account of fact the question relating for permanent absorption was pending before the State of Gujarat, no E.P.F. amount was deducted otherwise it would amount to taking double benefit at the same time.
12. I say and submit that the Government of Gujarat, Agriculture & Cooperative department vide its resolution dated 10/09/2001 has resolved for the permanent absorption of the employees in the agency who has exercised their option for permanent absorption in agency, of which the petitioner is one of amongst them. I submit that as per the resolution the permanent absorption will have its effect from dated 01/04/1980 and along with other terms & conditions, it was also resolved that the amount of subscription together with interest standing in credit to these employees in the General Provident Fund account will be transferred to their New Provident Fund Account under the agency with its consent. However it is pertinent to note that as per the letter Page 10 of 22 HC-NIC Page 10 of 22 Created On Fri Aug 14 13:19:51 IST 2015 C/SCA/17160/2014 CAV JUDGMENT dated 13/05/2014 of the Office of the Accountant General (A & E) Gujarat, Rajkot the present petitioner after the decision of State of Government of Gujarat for permanent absorption has withdrew the sum of Rs.2,50,000/ from the G.P.F. leaving the balance of Rs.85,299/ in his G.P.F. Account.
13. I say and submit that though above referred G.R. was resolved by the State of Gujarat on 10/09/2001, the Director of Agriculture Department, Gandhinagar communicated and conveyed the decision of the State Government to the agency on 01/10/2002. Soon thereafter gave effect to the decision of the State Government by opening the account of E.P.F. with effect from 01/04/2003 after entering into various correspondences and communications between all concerned and therefore I deny that there is delay in opening E.P.F. account of the petitioner.
14. However, since the State Government by a Resolution dated 17/03/1980 ordered the transfer of amount of General Provident Fund of absorbed employees in the New Provident Fund of agency, the agency addressed various letter and correspondences to the statutory authorities concerned with E.P.F. under the Act inter alia seeking an advice to the effect that the G.P.F. account can be transferred to E.P.F. and further the transfer of G.P.F. to E.P.F. would create any liability of the agency to contribute the same amount of G.P.F. as employer's contribution one of the being letter dated 16/06/2003 referred to and annexed by the petitioner vide P. No.35 with the memo of the petition. However statutory authorities concerned with E.P.F. under the Act didn't advice the agency on the issues raised by the agency but on the contrary raised the doubt about permissibility of transfer of G.P.F. to E.P.F. and finally by letter dated 19/08/2010 the Assistant P.F. Commissioner addressed to confirm as the whether amount available in G.P.F. account has been paid to the employee concern and the employees are eligible for pensionary benefits. (A copy of letter dated 19/08/2010 is produced Vide Exhibit I). Since the letter addressed by the Asst. P.F. Commissioner was completely vague and absolutely silent about the assistance sought by the agency from time to time the agency addressed a letter dated 30/08/2010 to the E.P.F. Commissioner inter alia stating there in that no guidance or a direction in respect of issue of contribution of the employees in E.P.F. and the Page 11 of 22 HC-NIC Page 11 of 22 Created On Fri Aug 14 13:19:51 IST 2015 C/SCA/17160/2014 CAV JUDGMENT pension has been received by the agency and therefore the concerned employees are not getting the G.P.F. transferred and therefore once again it is requested to give proper guidance in this regard so as to enable the agency to do needful in the matter. (A copy of letter dated 30/08/2010 is produced Vide Exhibit - II). Since nothing was heard from the E.P.F. Office, agency wrote a letterdated 18/04/2015 seeking advice in the matter. To this letter the Asst. P.F. Commissioner replied by letter dated 26/05/2015 received by agency on 02/06/2015 inter alia requesting the agency to refer para 28 and 57 of the Employees Provident Scheme, 1952 and Para 39B of The Employees Pension Scheme, 1995. (A copy of letter dated 26/05/2015 is produced vide Exhibit - III).
15. I say and submit that although there being no clarity as to transfer of G.P.F. into E.P.F. with retrospective effect, the agency being produent employer and in order to protect the interest of its employee i.e. present petitiner became member of E.P.F. from dated 01/04/2003 and since then contribution was made by both agency as well as present petitioner as per the provisions of the Scheme of E.P.F. However after superannuation the present petitioner has not deliberately submitted Form 10C for claiming withdrawal benefits and 10 D for Monthly Pension as prescribed under the Employees Pension Scheme, 1995 with the malicious intentions and ulterior motive best known to the petitioner. Therefore the petitioner approbated and reprobated at the same time by keeping meager amount standing to the credit of G.P.F. account after withdrawal of sizeable amount from it and also leaving the amount in E.P.F. amount without withdrawing the same immediately after superannuation."
17. Mr. Vyas submitted that the identically situated employees of the agency had come before this Court with the same prayers and complaints by filing the Special Civil Application No.6079 of 2002 and allied matters. Mr. Yagnik pointed out that a learned Single Judge of this Court vide order dated 3rd July, 2014 rejected those writapplications. He therefore, submitted that Page 12 of 22 HC-NIC Page 12 of 22 Created On Fri Aug 14 13:19:51 IST 2015 C/SCA/17160/2014 CAV JUDGMENT the present application should also be rejected in light of the order passed by the learned Single Judge referred to above.
18. Mr. Vyas, also pointed out the order passed by the learned Single Judge of this Court rejecting the writapplications filed by the identically situated employees of the agency vide order dated 3rd July, 2014.
19. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for my consideration is whether the applicant is entitled to receive any pension.
20. Since the learned counsel appearing for the respondents have placed strong reliance on the judgment and order passed by a learned Single Judge of this Court in the Special Civil Application No.6079 of 2002 and allied matters decided on 3rd July, 2014, I deem it necessary to look into the same.
21. The perusal of the judgment and order at least makes one thing very clear that the petitioners in those writapplications were also employees of the agency and had voiced their Page 13 of 22 HC-NIC Page 13 of 22 Created On Fri Aug 14 13:19:51 IST 2015 C/SCA/17160/2014 CAV JUDGMENT grievance as regards the delay on the part of the government and the consequential loss sustained by them. I may quote the observations made by the learned Single Judge as under: "10. The main arguments advanced by the learned counsel for the petitioners is that the petitioners were on deputation with the second respondent since 1980 till the year 2001 when the order of their absorption came to be passed. In his submission, because of delayed decision by first respondent by 20 years, the petitioners lost various avenues both in the State service where they were disowned as employees/officers of the State and also during the service with the Corporation where they were again disowned on the ground that they were on the deputation. It was thus argued that, on one hand, they have lost such avenue, and on the other, they are again sought to be deprived of retiral benefits as are available to them if treated as employees/officers of the State. It is contended that no such benefits are made available to the employees of the Corporation, and in fact, the State Government has adopted a discriminatory treatment inasmuch as, while dealing with the similar cases in respect of absorption of its employees in different Corporations, their pensionary benefits/rights and other service conditions are protected by passing appropriate resolution produced by the petitioners with their affidavitinrejoinder. Learned counsel for the petitioners would therefore urge that the effective date of their absorption should not be in the year 1982 but from the date of the order i.e. in the year 2001.
11. As against that, learned AGP invited attention of this Court to the impugned order dated 4.6.2002 and would contend that the petitioners reiterated their absorption even in the year 1991 by filing Special Civil Application No.659 of 1991 against the decision of the first respondent repatriating the petitioners to their parent department. It was contended that, thus, even after a period of 10 years of the alleged inaction on the part of the State Government in not taking any decision on the petitioners' option, the petitioners desire to be absorbed in the Corporation. It was argued that, because of the order of statusquo passed in Special Civil Application No.659 of 1991, the petitioners, without any deemer have received the benefits of Page 14 of 22 HC-NIC Page 14 of 22 Created On Fri Aug 14 13:19:51 IST 2015 C/SCA/17160/2014 CAV JUDGMENT promotion, higher grade pay scale etc., as also pension and gratuity till 1980 from the State, promotion and higher grade pay scale from the Corporation and thus benefitted from both the authorities. It is thus argued that the petitioners have appropriated that benefit at the relevant time and has been reiterating their different stand as per circumstances suiting them. It was argued that the petitioners were placed higher in the seniority list over the employees of the Corporation, and thus have taken that benefit also. It is argued that mere withdrawal of the petition would not entitle the petitioners to reiterate the factum of their repatriation of a particular date i.e. 2001 only in the face of the option exercised by them with open eyes in the year 1982 after looking at all the benefits or liabilities as accruing to them at the relevant point of time. The respondents, therefore, urged this Court to dismiss the petition.
12. Having given thoughtful consideration to the cases on hand, it appears that the petitioners are unable to dispute the facts reiterated by respondents in the impugned order dated 4.6.2002. Therefrom it is clear that even after passage of 10 years of submission of their option to the first respondent for being absorbed in the service of the corporation, the petitioners reiterated their absorption in Special Civil Application No.659 of 1991. Although they withdrew the said petition but the same was pending at the instance of other employees. The argument that because of such withdrawal, the petitioners accepted the repatriation cannot be countenanced for the simple reason that by the date the petitioners withdrew the petition, they had taken various benefits from the Corporation as discussed above. The first respondent was therefore justified in reviewing its decision of repatriation and the petitioners absorption with the second respondent. The learned AGP has placed on record the order evidencing payment of gratuity for the period between 1.4.1980 to 30.4.2003 i.e. the date of superannuation to the petitioner Mr.Vanzara towards his services with GSCA subject to the result of the petition. It thus appears that the said benefit was accepted by the petitioner Mr.Vanzara without any objection.
Petitioner Kanjibhai Shankardas Patel was also paid retiral benefits towards his services with GSCA, however, subject to the outcome of the present petition. Similar is the case with the petitioner Hargovanbhai Narayandas Patel.
Page 15 of 22HC-NIC Page 15 of 22 Created On Fri Aug 14 13:19:51 IST 2015 C/SCA/17160/2014 CAV JUDGMENT Further, it is an undisputed position that they have also received terminal benefits towards their services rendered with the State Government. Thus the petitioners have already been paid all the benefits they were entitled to in terms of the stand taken by them for absorption in GSCA as discussed hereinabove in greater detail.
13. To the best of the knowledge of the petitioners, the option exercised by them was irreversible. Therefore, once having exercised the option and also having taken advantage of it, they cannot be heard to say that they are put to loss in terms of pension and other benefits had they been in the service of the State Government until 2001.
14. It is not disputed that apart from monetary benefits, the petitioners were treated seniors to the other employees of the Corporation, and by resolution dated 17.3.1980 passed by the Corporation, they were given the benefits of their seniority and petitioner Mr.Vanzara was promoted as Head Clerk by Corporation with effect from 1.7.1991, and thus they have admittedly got various benefits during the employment with the Corporation. Therefore it is now too late and unreasonable for the petitioners to ask for double and additional benefits in the form of pension and other retiral benefits as servants of the State Government. It appears that having taken all the benefits as they came in their way during the service with the Corporation, the petitioners have now realised that they can also grab an opportunity of getting the pension and other retiral benefits from the State Government on the misconceived plea that the date of their absorption, if effected from the year 1980 would deprived them of various benefits and complicate the issue.
15. In view of the above discussion, the reliance placed by the petitioners on various orders in respect of absorption and other employees in different corporation is misconceived in the facts and circumstances of the present case.
16. In above view of the matter, this Court is unable to find any substance in the petitions. The petitions must fail and are dismissed with no order as to costs. Rule is discharged."
22. Thus, while rejecting the writapplications, the learned Single Judge took the view that mere Page 16 of 22 HC-NIC Page 16 of 22 Created On Fri Aug 14 13:19:51 IST 2015 C/SCA/17160/2014 CAV JUDGMENT delay of 21 years on the part of the State Government would not create any right in favour of the employees of the agency to pray for pension and other benefits. The decision was rendered more on the facts of the case rather then any law being decided by the learned Single Judge.
23. I am of the view that the decision of the learned Single Judge should not in any manner come in the way of the present applicant so far as his claim is concerned.
24. I find substance in his submission that the delay made him ineligible to draw pension under the GPF as well as the EPF. He invited my attention to the employees pension scheme, 1995. Para12 of the scheme reads thus: "12. Monthly Member's Pension. (1) A member shall be entitled to:
(a) superannuation pension if he has rendered eligible service of 10 years or more and retires on attaining the age of 58 years;
(b) early pension, if he has rendered eligible service of 10 years or more and retires or otherwise ceases to be in the employment before attaining the age of 58 years.
(2) In the case of a new entrant, the amount of monthly superannuation pension or early pension, as the case may be, shall be computed in accordance with the following factors, namely: Monthly member's pension = Pensionable salary x Pensionable service 70 Page 17 of 22 HC-NIC Page 17 of 22 Created On Fri Aug 14 13:19:51 IST 2015 C/SCA/17160/2014 CAV JUDGMENT [Provided that the members' monthly pension shall be determined on a prorata basis for the pensionable service up to the 1st day of September, 2014 at the maximum pensionable salary of six thousand and five hundred rupees per month and for the period thereafter at the maximum pensionable salary of fifteen thousand rupees per month.] (3) In the case of an existing member in respect of whom the date of commencement of pension is after the 16th November, 2005,
(i) Superannuation or early pension shall be equal to the aggregate of:
(a) pension as determined under subparagraph (2) for the period of pensionable service rendered from the 16th November, 1995 or Rs.635 per month whichever is more;
(b) past service pension shall be as given below: the past service pension payable on completion of 58 years of age on the 16th November, 1995.
Sl. No. Years of past service Salary up to Salary more
Rs.2500 per than Rs.2500
month per month
1 2 3
(i) Up to 11 years 80 85
(ii) More than 11 years but up 95 105
to 15 years
(iii) More than 15 years but less 120 135
than 20 years
(iv) Beyond 20 years 150 170
The amount under column (2) or column (3) above, as the case may be, shall be multiplied by the factor given in Table 'B' corresponding to the period between the 16th November, 1995 and the date of exit to arrive at past service pension payable.
(ii) The aggregate of (a) and (b) calculated as above shall be subject to a minimum of Rs.800 per month, provided the eligible service is 24 years. Provided further, it if is less than 24 years, the pension as computed above shall be reduced proportionately subject to a minimum of Rs.450 per month.
(4) In the case of an existing member and in respect of whom the date of commencement of Page 18 of 22 HC-NIC Page 18 of 22 Created On Fri Aug 14 13:19:51 IST 2015 C/SCA/17160/2014 CAV JUDGMENT pension is between the 16th November, 2000 and the 16th November, 2005, (I) superannuation or early pension shall be equal to the aggregate of:
(a) pension as determined under subparagraph (2) for the period of service rendered from the 16th November, 1995 or Rs.438 per month whichever is more;
(b) past service pension as provided in sub paragraph (3).
(ii) The aggregate of (a) and (b) calculated as above shall be subject to a minimum of Rs 600 per month, provided the eligible service is 24 years. Provided further, if it is less than 24 years the pension shall be proportionately less subject to the minimum of Rs.325 per month.
(5) In the case of an existing member and in respect of whom the date of commencement of pension is before the 16th November, 2000,
(i) the superannuation or early pension shall be equal to the aggregate of :
(a) Pension as determined under subparagraph (2) for the period of service rendered from the 16th November, 1995 or Rs.335 per month whichever is more.
(b) past service pension as provided in sub paragraph (3).
(ii) The aggregate of (a) and (b) calculated as above shall be subject to the minimum of Rs. 500 per month, provided the eligible service is 24 years. Provided further, if it is less than 24 years the pension shall be proportionately lesser but subject to the minimum of Rs.265 per month.
(6) Except as otherwise expressly provided hereinafter, the monthly member's pension under subparagraphs (2) to (5) mentioned hereinabove, as the case may be, shall be payable from a date immediately following the date of completion of 58 years of age notwithstanding that the member has retired or ceased to be in the employment before that date.
(7) A member, if he so desires, may be allowed to draw an early pension from a date earlier than 58 years of age but not earlier than 50 years of age. In such cases, the amount of pension shall be reduced at the rate of [four per cent], for every Page 19 of 22 HC-NIC Page 19 of 22 Created On Fri Aug 14 13:19:51 IST 2015 C/SCA/17160/2014 CAV JUDGMENT years the age falls short of 58 yeas.
[(7A) The monthly member's pension including any relief payable to any existing or future member under this paragraph shall not be less than one thousand rupees for the Financial Year 201415.] (8) If a member ceases to be in the employment by way of retirement or otherwise earlier than the date of superannuation from which pension can be drawn, the member may, on his option, either be paid pension as admissible under this Scheme on attaining the age exceeding 50 years or he may be issued a scheme certificate by the Commissioner indicating the pensionable service, the pensionable salary and the amount of pension due on the date of exit from the employment. If he/she is subsequently employed in an establishment coverable under this Scheme, his/her earlier service as per the scheme certificate shall be reckoned for pension along with the fresh spell of pensionable service. The member postponing the commencement of payment of pension under this paragraph shall also be entitled to additional relief sanctioned under this Scheme from time to time.
Provided that if the member does not take up an employment coverable under this scheme, but dies before attaining the age of 58 years, the amount of contributions received in his case shall be converted into a monthly widow pension/children pension. The widow pension in such cases shall be calculated at the scale laid down in Table C and the children pension at 25 per cent thereof for each child (up to two). If there is no widow then the orphan pension shall be payable at the rate of 75 per cent of the amount which would have been payable as a widow pension subject to the provisions of paragraph 16."
25. Para12 of the scheme makes it very clear that the superannuation pension would be payable if a member had rendered eligible service of 10 years or more and retires on attaining the age of 58 years. In the present case the applicant rendered about 6 years of eligible service as a member under the scheme. Should he be faulted for Page 20 of 22 HC-NIC Page 20 of 22 Created On Fri Aug 14 13:19:51 IST 2015 C/SCA/17160/2014 CAV JUDGMENT the same. As discussed above, he remained in GPF from 1975 to 2003 and then from 2003 till the superannuation he remained in the EPF. If the decision would have been taken by the State Government at an appropriate time then probably this situation would not have cropped up.
26. On the other hand, Mr. Vyas after taking instructions from his client pointed out that the applicant would be eligible to draw pension of Rs.2600 with effect from the date the sanction was accorded. He submitted that the Provident Fund Commissioner will have to calculate the amount of contribution of the employer and employee with penalty. He submitted that even if the agency has to pay pension then the applicant will have to perform his part of the obligations. He also pointed out that the applicant will have to fill up form10(C) and 10(D) as provided in the employees pension scheme, 1995.
27. It is a settled law that no citizen should suffer on account of any mistake or laxity on the part of the State Government and more particularly when it comes to the issue of retiral benefits. It may be true that the applicant has withdrawn a substantial amount from his GPF but was he left with any other alternative. He submitted that he was the only Page 21 of 22 HC-NIC Page 21 of 22 Created On Fri Aug 14 13:19:51 IST 2015 C/SCA/17160/2014 CAV JUDGMENT earning member in the family with almost five mouths to feed.
28. I am of the view that the applicant cannot be made a victim of such technicalities arising in the matter. Without citing as a precedent and as an exceptional case the agency is directed to consider the case of the applicant for the monthly pension under the scheme as discussed above. It goes without saying that for drawing pension if the applicant has to perform any part of his obligations then he shall do so. It is made clear that if the applicant has to deposit any amount already drawn by him for availing of the pension then he shall act accordingly.
29. With the above, this petition is disposed of. Rule is made absolute to the aforesaid extent.
(J.B.PARDIWALA, J.) Manoj Page 22 of 22 HC-NIC Page 22 of 22 Created On Fri Aug 14 13:19:51 IST 2015