Gujarat High Court
State Of Gujrat vs Shirishkumar M Pandit & 3 on 20 September, 2017
Author: A.S. Supehia
Bench: A.S. Supehia
C/SCA/2955/2006 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO.2955 of 2006
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE A.S.SUPEHIA Sd/
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1 Whether Reporters of Local Papers may
be allowed to see the judgment ? NO
2 To be referred to the Reporter or
not ? NO
3 Whether their Lordships wish to see
the fair copy of the judgment ? NO
4 Whether this case involves a
substantial question of law as to the
interpretation of the Constitution of NO
India or any order made thereunder ?
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STATE OF GUJRAT....Petitioner(s)
Versus
SHIRISHKUMAR M PANDIT & 3....Respondent(s)
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Appearance:
MR HS SONI, AGP for the Petitioner(s) No. 1
MR SS BELSARE, ADVOCATE for the Respondent(s) No. 1
MR HEMAL A DAVE, ADVOCATE for Respondent(s) No.23
MRS VD NANAVATI, ADVOCATE for Respondent(s) No. 4
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CORAM: HONOURABLE MR.JUSTICE A.S. SUPEHIA
Date : 20/09/2017
ORAL JUDGMENT
(1) By way of the present petition, the petitionerState of Gujarat has assailed the judgment and order dated 09.12.2002 passed by the Gujarat Affiliated Colleges Services Tribunal at Ahmedabad (the Tribunal) in Application No.10 of 1999, whereby the Page 1 of 6 HC-NIC Page 1 of 6 Created On Sun Sep 24 22:31:50 IST 2017 C/SCA/2955/2006 JUDGMENT Tribunal has directed the authorities to continue respondent No.1original applicant in service till 31.10.2002 i.e. till completion of his age of 62 years.
(2) The established facts in the present petition are that : respondent No.1 was serving as Parttime Lecturer in respondent No.3College and he was to retire from service on 30.08.1998 i.e. at the age of 58 years. He challenged his retirement at the age of 58 years before the Tribunal by filing Application No.10 of 1999 on 05.02.1999 i.e. after a period of six months approximately. The Tribunal vide judgment and order dated 09.12.2002 allowed the said application of respondent No.1original applicant and directed the authorities to continue him in service till 31.10.2002. In the meanwhile, respondent No.1 had already retired reaching his 62 years of age on 31.10.2002.
(3) Learned Assistant Government Pleader Mr.Soni appearing on behalf of the petitionerState of Gujarat has submitted the Tribunal has grossly erred in directing the authorities to continue respondent No.1 till the age of 62 years, with a further direction to grant Page 2 of 6 HC-NIC Page 2 of 6 Created On Sun Sep 24 22:31:50 IST 2017 C/SCA/2955/2006 JUDGMENT the back wages from 31.10.1998 till 31.10.2002. He has pointed out that similar issue was considered by this Court in the judgement dated 15.07.2016 rendered in Special Civil Application No.7898 of 2001. In view of the aforesaid submissions, he has requested that the present petition may be allowed and the impugned judgment and order of the Tribunal may be set aside.
(4) In response to the aforesaid submissions, made by learned AGP, Mr.Belsare, learned advocate appearing on behalf of respondent No.1original applicant, has contended that the judgment and order of the Tribunal does not require any interference. He has also stated that the petition challenging the aforesaid judgment and order of the Tribunal is belatedly filed and hence, the same is required to be dismissed.
(5) Learned advocate Mr.Dave appearing on behalf of respondents No.2 and 3 has adopted the arguments made by the learned Assistant Government Pleader appearing on behalf of the respondentState of Gujarat. He has submitted that the entire issue is covered by the aforesaid judgement of this Court dated 15.07.2016 rendered in SCA No.7898/01.
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C/SCA/2955/2006 JUDGMENT
(6) Heard the learned advocates appearing on behalf of the respective parties at length and perused the entire record of the case.
(7) Learned advocate appearing on behalf of respondent No.1original applicant was unable to controvert the aforesaid judgement dated 15.07.2016, wherein this Court had an occasion to deal with an identical issue with respect to the retirement age of lecturers. After a detailed consideration and the Government Resolution dated 26.05.1999 the court held that services of such teachers/lecturers cannot be extended beyond the age of 62 years. Reliance is also placed on the Division Bench judgement rendered in Letters Patent Appeal No.1897 dated 27.07.2011, whereby this Court has observed as under:
"11. Another aspect for availing the benefit on account of extension in service should not detain us further. Obvious reason is that it is not even the case of the petitioners that they did not reach of superannuation. Upon completion of the age of 58 years in February, 1999, if on account of non completion of the academic year the service period is extended such period after reaching age of superannuation is treated as extension in service but such extension in service cannot be read to confer any right for retiral benefit or continuity in service or for any extra benefit therefrom except the salary and the perks to be paid during period of extension. Under the circumstances, when resolution dated 26.5.1999 was passed whereby the age is enhanced from 58 to 62 years the petitioners had already reached the age of superannuation and merely Page 4 of 6 HC-NIC Page 4 of 6 Created On Sun Sep 24 22:31:50 IST 2017 C/SCA/2955/2006 JUDGMENT because the resolution came to be passed during the extended period of service, it cannot be said that any benefit would be available to the original petitioners for enhancement of the age of superannuation which in any case is prospective from the date of resolution i.e. after 26.5.1999.
12. In view of the aforesaid, we are unable to agree with the view taken by the learned Single Judge, hence, the Appeal preferred by the State deserves to be allowed and it is hereby allowed and the impugned judgment of the learned Single Judge is quashed and set aside. As the judgment of the learned Single Judge is quashed and set aside and the action of the government is maintained, naturally there will not be a question of paying any salary to the original petitioners and consequently the Appeal preferred by one of the original petitioner No.5 would be required to be dismissed and hence dismissed."
(8) A perusal of the foregoing paragraphs of the judgement rendered by the Division Bench of this Court would clarify that if an employee who has already reached at the age of superannuation i.e. 58 years prior to Government Resolution dated 26.05.1999, in that case, the retirement age of such employee cannot be extended beyond 62 years. In the present case respondent No.1original applicant has already retired on 14.08.1998 i.e. before Government Resolution dated 26.05.1991. Hence, in view of the aforesaid observations of the Division Bench of this Court, the present petition deserves to be allowed and the same is hereby allowed.
(9) So far as the contention of the learned advocate appearing on behalf of respondent Page 5 of 6 HC-NIC Page 5 of 6 Created On Sun Sep 24 22:31:50 IST 2017 C/SCA/2955/2006 JUDGMENT No.1original applicant is concerned that the petition is barred by delay and latches, the same is also misconceived, since by order dated 24.02.2006 this Court had imposed costs of Rs.20,000/ upon the petitionerState of Gujarat for such delay in preferring the present petition. Hence, the aforesaid contention of filing the present petition belatedly does not merit acceptance.
(10) Accordingly, the present petition is allowed. RULE is absolute.
Sd/ [A. S. SUPEHIA, J] *** Bhavesh[pps]* Page 6 of 6 HC-NIC Page 6 of 6 Created On Sun Sep 24 22:31:50 IST 2017