Gujarat High Court
Mansukh Dhanjibhai Chhatralia vs State Of Gujarat on 17 January, 2020
Author: Biren Vaishnav
Bench: Biren Vaishnav
C/SCA/6064/2018 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 6064 of 2018
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MANSUKH DHANJIBHAI CHHATRALIA
Versus
STATE OF GUJARAT & 4 other(s)
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Appearance:
MR MUKUND M DESAI(286) for the Petitioner(s) No. 1
MR.ISHAN JOSHI, AGP (1) for the Respondent(s) No. 1,2,3,4,5
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CORAM: HONOURABLE MR.JUSTICE BIREN VAISHNAV
Date : 17/01/2020
ORAL ORDER
1. RULE. Mr.Ishan Joshi learned AGP waives service of rule on behalf of respondents. With the consent of the parties, the matter is taken up for final hearing.
2. It is a fact that the issue involved in this petition is covered by a decision of the Division Bench of this Court in case of State of Gujarat and others v. Kalhans Harial Patel passed in Letters Patent Appeal No.2259 of 2017 and allied matters decided on 02.05.2019.
3. The prayers of the petition are as under:
"(b) To quash and set aside the respondent's action and inaction in not considering the case of the petitioner for pension and by passing appropriate orders declaring petitioner to be entitled to receive pension and further be pleased to declare that the petitioner's recruitment and appointment as Senior Technician with effect from 21.01.1985 and technical officer grade I w.e.f.
18.1.1993 is fresh recruitment made after 1.4.1982 therefore, he is entitled to pension as per the Page 1 of 17 Downloaded on : Sat Jan 18 22:39:55 IST 2020 C/SCA/6064/2018 ORDER provisions of G.R dated 14.9.1988, recruitment rules and conditions mentioned in appointment order, and further be pleased to direct the respondent to grant pension to the petitioner forthwith by considering the service rendered by him by issuing writ in the nature of mandamus or certiorari or any other appropriate writ, order or direction so deemed fit and proper.
(c) Be pleased to direct the respondent authorities to give benefits of GPF scheme by transferring account of applicant to GPF and further to give benefits of pension scheme under Resolution dated 14.9.1988 within 3 months from the date of order and further be pleased to direct the respondent authorities to start monthly pension immediately to serve the purpose of justice."
4. Facts in brief are that the petitioner joined the services of the Sardar Patel University as Mechanic Attendant vide appointment order dated 21.02.1979, with effect from 01.03.1979. Thereafter, he was appointed as Technician CE (Electrical) by an order dated 24.10.1980. Pursuant to an advertisement to fill up the post of Junior Technician, the petitioner applied on 18.02.1983.
5. Mr.Jayraj Chauhan learned counsel for the petitioner has invited my attention to the appointment order dated 18.05.1983 at page 26. Having worked as a Junior Technician, the petitioner then secured appointment as Senior Technician "A" with effect from 21.01.1985. Reading the appointment order would indicate that the order specifically stated that the petitioner would be entitled to the benefits of Dearness Allowance, Provident Fund and Gratuity or pension scheme, as may be applicable to the University employees as per the university rules. He was confirmed in service on the Page 2 of 17 Downloaded on : Sat Jan 18 22:39:55 IST 2020 C/SCA/6064/2018 ORDER post of 19.01.1987 by a resolution dated 14.03.1988, a pension scheme for non-teaching staff in non-government affiliated colleges was brought into force. Thereafter, by a resolution of 14.09.1988, the pension scheme in context of the petitioner was formulated since it was for the non-teaching staff in the Universities under the Education Department. The relevant clause of the resolution (page 39) provided that the member of the staff recruited on or after 01.04.1982, shall automatically be governed by this scheme. Such staff will not be allowed to opt for contributory provident fund scheme. IT appears that the petitioner underwent a direct selection and thereafter, was appointed as a technical officer (Gr.I) on 18.01.1983.
6. Mr.Jayraj Chauhan for the petitioner states that the respondents have not extended the pensionery benefits as required in the resolution, particularly, clause-(4) thereof, though the clause specifically stipulates that the staff recruited on or after 01.04.1982 shall automatically governed by the scheme. The stand of the department, appears from the affidavit-in-reply, is that since the petitioner was an employee of the University pre 01.04.1982 as he was appearing as medical attendant on 01.03.1979 and thereafter as a technician on 01.11.1980, unless and until he opted for the pension scheme, he could not have been made eligible for pension. The stand of the department is that since the petitioner has not exercised the option and has continued under the GPF scheme and is paid contribution, own subscription of Rs.2,00,015/-, subscription of the University Rs.9,31,459/-, total being Rs.11,37,474/-. The petitioner is not entitled to the benefit of pension scheme in accordance with Page 3 of 17 Downloaded on : Sat Jan 18 22:39:55 IST 2020 C/SCA/6064/2018 ORDER the resolution of 14.09.1988. Several decisions have been cited in the affidavit-in-reply of the Supreme Court on the question of option.
7. Mr.Jayraj Chauhan would submit that none of the judgments are applicable as in such cases the recruitment was not after the cut-off date.
8. Perusal of the resolution dated 14.09.1988 would indicate that it is on the same line as that of the Government Resolution dated 15.10.1984 and the question whether such employees who were in service prior to the date i.e. 01.04.1982 and who was then subsequently appointed by direct selection in the same university and whether such appointment can be considered as "a recruitment" was considered by the Division Bench. Resolution dated 14.09.1988 was also set out and considered as is evident from the Division Bench's decision, para 4.2(IV) thereof reads as under:.
"4. ...
...
(IV) On 14.09.1988, the Government of Gujarat passed a resolution and directed that the pension, gratuity and other retirement benefits admissible to the Gujarat State Government Servants under the Revised Pension Rules, 1950 contained in the Appendix XlV-C to the B.C.S.R. Rules, Volumes II, as amended from time to time and the family pension scheme sanctioned in Government Resolution, Finance Department No. FPS-1061-J dated 01.01.1972 as amended from time to time should be made applicable to the full time non-
teaching staff of the Universities under the Education Department with effect from 01.04.1982.
Page 4 of 17 Downloaded on : Sat Jan 18 22:39:55 IST 2020 C/SCA/6064/2018 ORDEROn 11.10.1988, the Government of Gujarat passed another resolution granting the teaching staff who have opted for contributory provident fund to switch over to the pensions scheme."
9. It is undisputed that the facts of the present case and the resolution under consideration was the same as that before the Division Bench in Letters Patent Appeal in the case of Kalhans Harihar Patel (supra). After considering extensively the question on hand, this Court, speaking through the Division Bench in context of the cases discussed, held as under:
"11. What is evident from the facts in juxtaposition to the case laws cited hereinabove is as under:
(a) The issue as far as this Court is concerned stands concluded by a number of judgements referred to hereinabove. At the outset, it has been reiterated by several judgements of this Court as well as the Apex Court that pension is not a bounty. In the judgement in the case of Deokinandan Prasad vs. State of Bihar reported in (1971) 2 SCC 330, the Apex Court has held as under:
"29. We are not inclined to accept the contention of the learned counsel for the respondents. By a reference to the material provisions in the Pension Rules, we have already indicated that the grant of pension does not depend upon an order being passed by the authorities to that effect. It may be that for the purposes of quantifying the amount having regard to the period of service and other allied matters, it may be necessary for the authorities to pass an order to that effect, but the right to receive pension flows to an officer not because of the said order but by virtue of the Rules. The Rules, we have already pointed out, clearly recognise the fight of persons like the petitioner to receive pension under the circumstances mentioned therein.
30. The question whether the pension granted to a Page 5 of 17 Downloaded on : Sat Jan 18 22:39:55 IST 2020 C/SCA/6064/2018 ORDER public servant is property attracting Art. 31(1) came up for consideration before the Punjab High Court in Bhagwant Singh v. Union of India. It was held that such a right constitutes "property" and any interference will be a breach of Art. 31(1) of the Constitution. It was further held that the State cannot by an executive order curtail or abolish altogether the right of the public servant to receive pension. This decision was given by a learned Single Judge. This decision was taken up in Letters Patent Appeal by the Union of India. The Letters Patent Bench in its decision in Union of India v. Bhagwant Singh approved the decision of the learned Single Judge. The Letters Patent Bench held that the pension granted to a public servant on his retirement is "property" within the meaning of Art. 31(1) of the Constitution and he could be deprived of the same only by an authority of law and that pension does not cease to be property on the mere denial or cancellation of it. It was further held that the character of pension as "property" cannot possibly undergo such mutation at the whim of a particular person or authority.
31. The matter again came up before a Full Bench of the Punjab and Haryana High Court in K. R. Erry v. The State of Punjab. The High Court had to consider the nature of the right of an officer to get pension. The majority quoted with approval the principles laid down in the two earlier decisions of the same High Court, referred to above, and held that the pension is not to be treated as a bounty payable on the sweet will and pleasure of the Government and that the right to superannuation pension including its amount is a valuable right vesting in a Government servant. It was further held by the majority that even though an opportunity had already been afforded to the officer on an earlier occasion for showing cause against the imposition of penalty for lapse or misconduct on his part and he has been found guilty, nevertheless, when a cut is sought to be imposed in the quantum of pension payable to an officer on the basis of misconduct already proved against him, a further opportunity to show cause in that regard must be given to the Page 6 of 17 Downloaded on : Sat Jan 18 22:39:55 IST 2020 C/SCA/6064/2018 ORDER officer. This view regarding the giving of further opportunity was expressed by the learned Judges on the basis of the relevant Punjab Civil Service Rules. But the learned Chief Justice in his dissenting judgment was not prepared to agree with the majority that under such circumstances a further opportunity should be given to an officer when a reduction in the amount of pension payable is made by the State. It is not necessary for us in the case on hand, to consider the question whether (1) A. T. R. 1962 Punjab 503. (2) I. L. R. 1965 Punjab 1. (3) I. L. R. 1967 Punjab & Haryana 278 652 before taking action by way of reducing or denying the pension on the basis of disciplinary action already taken, a further notice to show cause should be given to an officer. That question does not arise for consideration before us. Nor are we concerned with the further question regarding the procedure, if any, to be adopted by the authorities before reducing or withholding the pension for the first time after the retirement of an officer. Hence we express no opinion regarding the views expressed by the majority and the minority Judges in the above Punjab High Court decision, on this aspect. But we agree with the view of the majority when it has approved its earlier decision that pension is not a bounty payable on the sweet will and pleasure of the Government and that, on the other hand, the right to pension is a valuable right vesting in a government servant.
32. This Court in State of Madhya Pradesh v. Ranojirao Shinde and another had to consider the question whether a "cash grant" is "property" within the meaning of that expression in Arts. 19(1)(f) and 31(1) of the Constitution. This Court held that it was property, observing "it is obvious that a right to sum of money is property".
33. Having due regard to the above decisions, we are of the opinion that the right of the petitioner to receive pension is property under Art. 31 (1) and by a mere executive order the State had no power to withhold the same. Similarly, the said claim is also Page 7 of 17 Downloaded on : Sat Jan 18 22:39:55 IST 2020 C/SCA/6064/2018 ORDER property under Art. 19(1)(f) and it is not saved by sub-article (5) of Art. 19. Therefore, it follows that the order dated June 12, 1968 denying the petitioner fight to receive pension affects the fundamental right of the petitioner under Arts. 19(1)(f) and 31(1) of the Constitution, and as such the writ petition under Art. 32 is maintainable. It may be that under the Pension Act (Act 23 of 1871) there is a bar against a civil court entertaining any suit relating to the matters mentioned therein. That does not stand in the way of a Writ of Mandamus being issued to the State to properly consider the claim of the petitioner for payment of pension according to law."
(b) The objection by the State Government that now the respondents' case is barred by delay deserves to be rejected. In the case of D.R.R Sastri (supra) relied upon by learned Senior Counsel Shri S.N. Shelat, there was a delay in exercise of option. The proposition of law as held so rightly by the learned Single Judge is that had they been asked to opt for pension scheme and informed, they would have done so. Delay in facts of the case would not be fatal and the respondents would be entitled to the benefit of exercising their option. This is particularly when from the minutes of Committee reproduced hereinabove, it is clear that the Committee did recommend that the Professors be given one more chance to exercise their options.
It is also evident that similarly situated petitioners including some of the present respondents had as early as in the year 2007 approached this Court by filing Special Civil Application No. 8383 of 2007 and group matters. This Court after recording the concise facts in the petitions and considering the judgements of the Apex Court and recording the contentions that the petitioners therein were not aware of the options to be given, practically gave positive directions which read as under and obviously therefore the State's objections on the ground of delay cannot be sustained.
"15. I have considered the submissions made by learned advocates Mr. Desai. I have also considered Page 8 of 17 Downloaded on : Sat Jan 18 22:39:55 IST 2020 C/SCA/6064/2018 ORDER the factual aspect in respect to claim of pensionary benefits by the petitioners.
16. Learned Government Pleader Mr. Sunit Shah with learned AGPs appearing on behalf of respondents ? State Authorities submitted that State Government will reconsider the case of petitioners and will also pass appropriate orders within some reasonable time in light of the observations made by the Apex Court as referred above.
17. In this group of petitions, this Court is passing the orders without determination of merits between the parties in respect to claim of pension. The reason behind it is that it is a burden upon the State Government to examine such issue as early as possible in accordance with law. The question is that State Government is not extending the benefit of pension in favour of petitioners and they remained continue as a member in CPF Scheme, however, ultimately, their requests has been rejected only on the ground of which have to shoulder burden of heavy financial liabilities. Therefore, in view of the recent decision of Apex Court in case of A.P.S.R.T.C. & Ors. v. G. Srinivas Reddy & Ors. Reported in 2006 AIR SCW 1108 and also in case of Employees State Insurance Corporation v. All India I.T.D.C. Employees Union & Ors. reported in 2006(2) GCD 1430 (SC). This Court has power to direct the respondents ? State Government to reconsider the case of the petitioners in light of the aforesaid background and examine the issue within some reasonable time. It is legal obligation on the part of the State Government to consider such cases of denial of pensionary benefit to the petitioners.
18. In light of the above facts as observed by this Court, it is open for the petitioners to make detailed representation, if they so desire, along with the copy of the aforesaid decision of Apex Court in case of Union of India and Others v. S.L. Verma and Others reported in 2007 (112) FLR 697 to the respondents as early as possible.
19. As and when, the respondents ? State Page 9 of 17 Downloaded on : Sat Jan 18 22:39:55 IST 2020 C/SCA/6064/2018 ORDER Government received any representation from the petitioners along with the aforesaid decision of the Apex Court, it is directed to the respondents ? State Government to reconsider the matter while examining the earlier representation which has been made by Association and recent one, in light of observations made by the Apex Court in case of Union of India and Others v. S.L. Verma and Others reported in 2007 (112) FLR 697 and pass appropriate reasoned order in accordance with law within a period of four months from the date of receiving the copy of the said order and communicate the same to each petitioner immediately.
20. It is also directed to the State Government to reconsider the matter with sympathetic approach and to consider the sentimental issue for the concerned employees those who are retiring from the service and not able to get pensionary benefits though other similarly situated employees are getting it and enjoying it.
21. In view of above observation and directions, rule is made absolute to the aforesaid extent in each petition with no order as to costs."
(c) Reading of clauses 3, 4 and 6 of the Government Resolution dated 15.10.1984 indicate that the members of the existing staff recruited before 01.04.1982 and those staff who have retired on or after 01.04.1982 and prior to the date of issue of the resolution only have to exercise their option. Those recruited on or after 01.04.1982 shall automatically be governed by the pension scheme of 1984.
In the case of D.S Nakara vs. Union of India reported in (1983) 1 SCC 305, the Apex Court has held that the pension retirees have to be treated as a homogeneous class and that any further classification amongst them would be violative of Article 14 of the Constitution of India. It was further held that the principle that when a certain date or eligibility criteria is selected with reference to legislative or executive measure which has the pernicious tendency of dividing an otherwise Page 10 of 17 Downloaded on : Sat Jan 18 22:39:55 IST 2020 C/SCA/6064/2018 ORDER homogeneous class and the choice of beneficiaries of the legislative/executive action becomes selective, the division or classification made by choice of date or eligibility criteria must have some relation to the objects sought to be achieved. And apart from the first test that the division must be referable to some rational principle, if the choice of the date or classification is wholly unrelated to the objects sought to be achieved, it cannot be upheld on the specious plea that was the choice of the Legislature. In the facts of the present case, it is evident in accordance with the case of D.S. Nakara (supra), that all of them form a homogeneous group who have been working with the institution and therefore it is not fair for the 'State' to discriminate only on the ground of cut off date.
(d) What is evident from the service details of the respondents is that they had two spells of service. The first spell was prior to 01.04.1982 and the second one after 01.04.1982. As far as the first spell is concerned there was only one scheme CPF, therefore there was no question of exercising option. In the second spell, when they joined there was no question of exercising option as the pension scheme was compulsory. They were, to use the words of clause 4 of the resolution, "automatically" governed by the pension scheme as therefore there was no fault, inaction or omission which would disentitle them to claim pension. The disability of filling in the option form or asking for switching over belatedly cannot be held against them.
(e) As held in the case of S.S. Patel (supra) which has received affirmation even by the Apex Court that the two clauses of the Government Resolution dated 15.10.1984 i.e. clauses 4 & 6 respectively cannot be read in isolation of each other, it will not be out of place to repeat the observations of this Court to make that clear.
"16. At the same time the prior to issuance of Government Resolution dated 15.10.1984 which was made effective with retrospective effect from 1.4.1982, employee had no opportunity whatsoever, whether to opt for pension or for any other scheme Page 11 of 17 Downloaded on : Sat Jan 18 22:39:55 IST 2020 C/SCA/6064/2018 ORDER and such an employee used to be governed by prevailing system of C.P.F.. When the G.R. dated 15.10.1984 came to be issued, the petitioner was serving as a lecturer with S.V.R.College of Engineering and Technology at Surat, which was a Regional Engineering College and later on nomenclatured as National Institute of Technology, the G.R. was not applicable to Engineering College which was under Government of India. From the record, what appears, the petitioner had continued to be Governed by the existing scheme ?the provident fund for employees of the S.V.R. College of Engineering and Technology (Surat) Society? as per option exercised in 1978. There is no dispute about the amount which was credited in the account of the petitioner, came to be collected and ultimately in year 2000, the petitioner deposited the said amount with interest. After resigning from the S.V.R. College of Engineering, when the petitioner joined as a 'Reader' with South Gujarat University from 31.3.1986 and served upto 5.10.1988, the petitioner was a Recruitee after 1.4.1982 and was being governed automatically for pension scheme as introduced by G.R. dated 15.10.1984 and accordingly no contributory amount was deducted and only G.P.F. account was credited. Thus, as a Reader with South Gujarat University, the petitioner was getting benefit of the pension scheme. Even as per the respondents, the period commencing from 31.3.1986 till the date of voluntary retirement on 30.11.2000, the service of the petitioner can be considered for pensionable job. The above fact is admitted in para 10 of the affidavit-in-reply dated 19th December, 2007 filed by Accounts Officer of Commissioner of Higher Education and, therefore, the interpretation of Government Resolution dated 15.10.1984 mainly revolves round Clauses 3, 4, 6 and 7 of the above Government Resolution and to be examined accordingly.
16.1. If the Government Resolution dated 15.10.1984 is perused the preamble of the resolution is pertaining to grant of benefit of pension scheme for the teaching staff in the Non- Government Affiliated Colleges and in the Page 12 of 17 Downloaded on : Sat Jan 18 22:39:55 IST 2020 C/SCA/6064/2018 ORDER Universities at par with employees of the Government of Gujarat under Revised Pension Rules, 1950 as amended from time to time. Therefore, if Clause 3 is perused, two types of employees were to exercise option, viz. (1) members of the existing staff recruited before 1.4.1982 and (2) those staff who have retired on or after 1.4.1982 and prior to the date of issue of this resolution within a period of one year from the above date, whether to continue in C.P.F. or to go under the pension scheme and such option was to be final. In Clause 4, it is clearly stated that member of the staff recruited on or after 1st April, 1982 shall automatically be governed by this scheme and such staff will not be allowed to opt for C.P.F. Therefore, if principle of plain reading is applied, all the contents of the clauses read together, what transpires is that the member of the staff recruited on or after 1st April, 1982 was not supposed to exercise an option since he was to be automatically governed by the scheme. So far as the petitioner is concerned, he was recruited directly after the advertisement issued by the concerned Universities on the post of 'Reader' in South Gujarat University on 31.3.1986 to 5.10.1988 and later on appointed in the M.S. University as a 'Reader' from 6.10.1988 after undergoing valid selection procedure. Thus, the case of the petitioner is not governed by Clause 3 of the Government Resolution in view of fact that neither the petitioner is a member of existing staff recruited prior to 1.4.1982 nor he retired from 1.4.1982 to 15.10.1984. Therefore, the contention of learned AGP that the petitioner was to exercise option for pension which was mandatory, cannot be accepted and is hereby rejected.
16.2. So far as width and amplitude of Clause 6 of Government Resolution is concerned, it confers benefits upon an employee of all previous service whether temporary, officiating or permanent either in one or more than one non-government aided Colleges, University, Higher Secondary School who are being paid grant-in-aid from Government shall be taken into account for computing the length of qualifying service for pension under this scheme. If Page 13 of 17 Downloaded on : Sat Jan 18 22:39:55 IST 2020 C/SCA/6064/2018 ORDER the above clause is made applicable to the petitioner, service rendered in the B.V.M.College of Engineering at Vallabh Vidhyanagar as 'Assistant Lecturer' and even, subsequent service as a 'Lecturer' in the S.V.R. College of Engineering and Technology are to be counted since the above two colleges are recognised colleges and in view of service rendered in Non-Government Aided Colleges of the State of Gujarat and Union of India can be considered for qualifying service for pension and calculation of pensionable qualifying service by two offices of respondent Nos. 1 and 5 at the time of accepting application for voluntary retirement of the petitioner was just and proper and cannot be brought within the preview of Rule 41 (1) (a) of the Pension Rules, to deny pension to the petitioner, on the ground that the petitioner had not rendered any service in a pensionable establishment. The fact remains that the petitioner was a member of C.P.F. in both the above colleges and resigned from the service and ceased to be a member of C.P.F. for all purposes. It is very clear from the plain reading of clause 6 that clause 6 does not distinguish employees rendering service in a pensionable or non-pensionable establishment and on the contrary it covers all kinds of services even temporary or officiating rendered in Non-Government Aided Colleges. Even otherwise, no material contrary exist to show that the above two colleges were non- pensionable establishment.
16.3. If the submissions of learned AGP are accepted that to get benefits of clause 6 of G.R. of 15.10.1984, option is to be exercised as per clause 3, provisions of clause 6 will become redundant and inoperative for a recruitee on or after 1.4.1982. Neither clause 4 nor clause 6 envisaged or mandate a recruitee after 1.4.1982 to exercise any option as per clause 3.
It can be safely concluded from the above, that the basic purpose of Clause 6 is to complete minimum years of qualified pension service for all existing and recruited employees before 1.4.1982 and retired between 1.4.1982 to 15.10.1984 and recruited after 1.4.1982, like the petitioner, clause 6 cannot be pressed into service for exercising option for the Page 14 of 17 Downloaded on : Sat Jan 18 22:39:55 IST 2020 C/SCA/6064/2018 ORDER scheme by both pre and post 1.4.1982 recruitees, otherwise even clause 4 will be rendered nugatory. At the same time, failure to exercise an option on the part of post 1.4.1982 recruitee, making him vulnerable for benefits of previous services as per clause 6, will be against the spirit and object of the scheme and will be creating artificial, arbitrary and discriminatory dividing line amongst university teaching staff not found in clause 6.
16.4. Likewise it was not obligatory at all upon the petitioner to exercise option as per subsequent G.R. 's dated 17.12.1987 and 17.9.1991 in view of the fact that the petitioner was automatically governed by pension scheme by G.R. dated 15.10.1984. At the same time there is no break of service of the petitioner from 22.7.1968 to 30.11.2000 and, therefore, rest of contents of clause 6 are not to be gone into.
16.5. Thus, when clause 6 is unambiguous and benefits of all previous services are not restricted to optee only, no other interpretation is permissible and restricting such benefits to the recruitee like the petitioner pursuant to fresh appointment on or after 1.4.1982 and automatically governed by clause 4 of the G.R., any attempt to add or alter any meaning of any word of phrase of clause 6 would amount giving narrow meaning to clause 6 which is not envisaged at all by the draftsman of the resolution. Therefore, the petitioner is entitled for continuity and gets benefit of all previous services rendered in B.V.M. College of Engineering and S.V.R. College of Engineering and Technology and the same is rightly considered by respondents No. 1 and 4 at relevant point of time while granting voluntarily retirement to the petitioner and, therefore, now they cannot be permitted to take another view and they are estopped from doing so. The petitioner has relied and acted on the orders passed by respondents No. 1 and 4 and preponed the date of superannuation now cannot be placed in disadvantageous position on the basis of ipsi-dixi of officers of Respondents No.1 and 4.
16.6. The above fact will be clear if we read Clause 7 Page 15 of 17 Downloaded on : Sat Jan 18 22:39:55 IST 2020 C/SCA/6064/2018 ORDER in juxtaposition to Clause 4 and 6, which carves out an exception with regard to applicability of general provision of Chapter 11 of B.C.S.R. Volume I in granting retirement benefits in case if a special provisions are made, the above applicability can be kept aside and this pension scheme of G.R. dated 15.10.1984 being a special scheme conferring benefits of pension and retiral dues, will govern the case of the petitioner and the contention of learned AGP about applicability of Rule 41(1) (a) cannot be accepted and is hereby rejected."
(f) Considering the tenor of the word "recruitment" as held in the case of K. Narayan vs. State of Karnataka reported in AIR 1994 SC 55, which according to the dictionary meaning means "enlist", it includes any method of inducting a person in public service. Appointment, selection, promotion, deputation are all well known methods of recruitment."
10. It will be evident to highlight Clause-d of para 11 which considered the issue at hand in context of the judgment in the case of S.S.Patel (supra).
11. Considering the fact that in the facts of the case even here the petitioner, as is evident from the orders of appointment dated 19.05.1983 and 23.01.1985 that he was evidently recruited after 01.04.1982 and the terms of appointment specifically envisaged that he would be governed by the pension scheme, the petitioner is entitled to the benefits of pension and the action of the respondents in not denying such benefits is set aside. The petitioner is entitled to receive pension in view of the fact that his recruitment is declared to be one after 01.04.1982.
12. In accordance with the directions given in the Letters Page 16 of 17 Downloaded on : Sat Jan 18 22:39:55 IST 2020 C/SCA/6064/2018 ORDER Patent Appeal, and in view of the decision laid down in para 14.1 which reads as under:
"14.1Moreover, any recruitment/appointment made after 01.04.1982 for the teaching staff is through advertisement and selection hence it is fresh appointment and therefore pension scheme i.e. GPF is automatically applicable. Further, for the non teaching staff also, their promotion at a particular time is to be considered as recruitment and therefore they need not give the option at the time of promotion. In view of the overall facts of the case we are not inclined to entertain these appeals and therefore the appeals deserve to be dismissed."
In the above quoted para, it has been specifically held that for non-teaching staff even for the promotion at particular time, the same has to be considered as recruitment and therefore, there was no need for such employees to give option, the petitioner in the present case is also held to be one akin to such employees and was not required to give any option.
13. The petition is allowed. The State Authorities are directed to give the benefit of the pension scheme pursuant to the resolution dated 14.09.1988. The contributory fund amount that the petitioner has received, can be adjusted/set off on the amount that the petitioner is entitled to, towards pensionary benefits. This exercise for extending the pensionary benefits to the petitioner shall be done within a period of eight weeks from the date of receipt of certified copy of this order. Rule is made absolute. Direct service is permitted.
(BIREN VAISHNAV, J) ANKIT SHAH Page 17 of 17 Downloaded on : Sat Jan 18 22:39:55 IST 2020