Gujarat High Court
Dr. Arpita Nitinkumar Dave vs State Of Gujarat & 2 on 31 January, 2017
Author: Sonia Gokani
Bench: Sonia Gokani
C/SCA/21654/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 21654 of 2016
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DR. ARPITA NITINKUMAR DAVE....Petitioner(s)
Versus
STATE OF GUJARAT & 2....Respondent(s)
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Appearance:
MRS FALGUNI D PATEL, ADVOCATE for the Petitioner(s) No. 1
MS ASMITA PATEL, GOVERNMENT PLEADER for the Respondent(s) No. 1
NOTICE SERVED for the Respondent(s) No. 2 - 3
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CORAM: HONOURABLE MS JUSTICE SONIA GOKANI
Date : 31/01/2017
ORAL ORDER
1. The petitioner has approached this Court being aggrieved by the non-granting of the benefits, as per the recommendations of the Tikku Commission, with the following prayers:
"11. ...
A. Your Lordship be pleased to order to admit and allow this petition;
B. Be pleased to order to issue a writ of mandamus or appropriate writ, orders, directions quashing and setting aside the communication of withholding Tikku Pay Commission as at Annexure-H and Annexure-J respectively thereby and thereunder the benefits of Tikku Pay Commission is denied to the petitioner and be pleased to order to hold and declare that the petitioner is entitled to benefits of Tikku Pay Commission;
C. Be pleased to direct the
respondents to release to retiral
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C/SCA/21654/2016 ORDER
dues to the petitioner taking into consideration the recommendation of Tikku Pay Commission;
D. ..."
2. This Court, at the time of issuance of notice for final disposal, noted that the decision of this Court in Special Civil Application No. 12033 of 2014, Dated: 20.07.2015, is sought to be relied on by the petitioner.
3. The petitioner retired as a Medical Officer (Class II), as he opted for voluntary retirement because of his family conditions on
02.04.2014. He served from the year 1984 an when he made a request for grant of benefits of the recommendations of the Tikku Pay Commission, on the ground that he has taken voluntary retirement, he is denied the same. The aggrieved petitioner is, therefore, before this Court.
4. This Court has heard the learned Advocate, Ms. Patel, appearing for the petitioner, who has placed reliance on the decision of this Court in Special Civil Application No. 12033 of 2014 so also on Letters Patent Appeal No. 1469 of 2015 arising from the same, urged that those, who are identically placed, are already granted those benefits. Therefore, in the case of the present petitioner also, who has taken voluntary Page 2 of 7 HC-NIC Page 2 of 7 Created On Thu Feb 02 04:11:25 IST 2017 C/SCA/21654/2016 ORDER retirement, those benefits are required to be made available.
5. Learned AGP, Ms. Patel, urged that the petitioner shall not be entitled to get the benefits of recommendations of the Tikku Pay Commission, since, he chose to voluntarily retire and therefore, both the benefits cannot be granted to him together. She, however, fairly submitted that the matter is covered by the decision of the Division Bench of this Court in Letters Patent Appeal No. 1469 of 2015.
6. As is apparent from the record that the petitioner served as Medical Officer (Class II) from 11.12.1984 and due to his family conditions, he took a decision to go for voluntary retirement from permanent service in the year 2014. He forwarded a proposal for voluntary retirement to the State Government. He, however, requested the Respondent on 14.03.2014 not to proceed with his application for voluntary retirement until the appropriate orders are passed with regard to the grant of benefits of Tikku Pay Commission. It is the say of the petitioner that she has served diligently and honesty.
7. In this background, the decision rendered by this Court in case of 'Harish Dunichand Chandnani Vs. State of Gujarat and Others', in Page 3 of 7 HC-NIC Page 3 of 7 Created On Thu Feb 02 04:11:25 IST 2017 C/SCA/21654/2016 ORDER Special Civil Application No. 12033 of 2014 deserve to be referred to, wherein also, it was the case of the three doctors taking voluntary retirement as Class II officers and the Court having allowed the benefits of Tikku Pay Commission in favour of those petitioners and ordered re-fixing of their pension. That has been challenged before the appellate forum, which also confirmed the judgment and order of the learned Single Judge, while observing and holding as under
in Paragraphs-7 to 10;
"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 Page 4 of 7 HC-NIC Page 4 of 7 Created On Thu Feb 02 04:11:25 IST 2017 C/SCA/21654/2016 ORDER apply Government Resolution dated 11.05.2001.
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 Page 5 of 7 HC-NIC Page 5 of 7 Created On Thu Feb 02 04:11:25 IST 2017 C/SCA/21654/2016 ORDER 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%.
10. For the aforesaid reasons we are of the view that no error is committed by the learned Single Judge so as to interfere with the order of the learned Single Judge dated 20.07.2015 passed in Special Civil Application No.12033 of 2014. For the aforesaid reasons this Letters Patent Appeal is devoid of merits. The same is dismissed accordingly. No order as to cost."
8. The case of the petitioner is also factually and legally identical to the ratio laid down by this Court in the aforementioned decisions mutatis mutandis.
9. In the result, this petition is allowed. The Respondent-authorities are DIRECTED to issue revised pension orders by applying the recommendations of the Tikku Pay Commission in case of the present petitioner within a period of EIGHT WEEKS from the date of receipt of a copy of this order. Direct service is permitted.
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