Gujarat High Court
Harish Dunichand Chandnani vs State Of Gujarat & 3 on 20 July, 2015
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/12033/2014 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 12033 of 2014
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HARISH DUNICHAND CHANDNANI....Petitioner(s)
Versus
STATE OF GUJARAT & 3....Respondent(s)
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Appearance:
MRS MAUNA M BHATT, ADVOCATE for the Petitioner(s) No. 1
MR RUTVIJ BHATT, AGP for the Respondent(s) No. 1 - 4
RULE SERVED for the Respondent(s) No. 1 - 4
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 20/07/2015
ORAL ORDER
By this writ-application under Article 226 of the Constitution of India, the petitioner, a retired Medical Officer (Class-II), has prayed for the following reliefs :
"(A) This Hon'ble Court may be pleased to issue a writ of mandamus or any other appropriate writ, order or directions quashing and setting aside the impugned order dated 24.12.2013 in so far as it denies the benefits of Tiku Pay Commission to the petitioner, while calculating the retiral benefits.
(B) This Hon'ble Court may be pleased to direct the respondents to forthwith release the retiral dues to the petitioner taking into consideration the Tiku Pay Commission's recommendation;
(C) This Hon'ble Court may be pleased to direct the respondents to pay pension and other retiral benefits along with interest;
(D) That pending hearing and final disposal of petition, Page 1 of 7 C/SCA/12033/2014 ORDER this Hon'ble Court may be pleased to direct the respondents to release pension due to the petitioner;
(E) Any other relief(s) which this Hon'ble Court may be deemed it fit in the interest of justice may be granted."
The case of the petitioner may be summarised as under :
The petitioner joined the services of the State Government in the office of the Medical Service, Employees State Insurance Scheme, Ahmedabad, as Medical Officer (Class-II) in the year 1985.
He worked from September 1985 till 31st December 2013 as a Class-II officer. He was given the benefit of the Tiku Pay Commission with effect from 4th September 1991 i.e. upon the completion of six years of his continuous service. The said benefit was given pursuant to the Government Resolution dated 17th October 1994.
The petitioner was again given the benefit of the Tiku Pay Commission upon the completion of thirteen years of his continuous service, with effect from 4th September 1998.
In the year 2012, he suffered a stroke of paralysis, which resulted in 75% permanent disability. He was compelled to take voluntary retirement.
His request for voluntary retirement was accepted and he came to be treated as having voluntarily retired with effect from 31st December 2013. The pension papers were prepared for sending the same to the office of the respondent no.4.
The petitioner was denied the benefits of the Tiku Pay Commission while granting his retirement benefits. The Page 2 of 7 C/SCA/12033/2014 ORDER petitioner, therefore, preferred a representation in that regard. Ultimately, the State Government, vide order dated 24th December 2013, rejected the claim of the petitioner so far as the grant of the Tiku Pay Commission benefits are concerned.
Being dissatisfied, the petitioner has come up with this writ-application.
Ms.Bhatt, the learned advocate appearing for the petitioner, submitted that the State Government has committed an error in denying the benefits of the Tiku Pay Commission by placing reliance on the Government Resolution dated 11th May 2001. Ms.Bhatt submitted that the plain reading of the Government Resolution dated 11th May 2001 would indicate that the same would not apply in the case of the petitioner herein. Ms.Bhatt submitted that the Government Resolution of 2001 had to be issued to take care of a very peculiar administrative exigency and that related only to those employees who had attained the superannuation or had voluntarily retired between the year 1991 and 1994. Ms.Bhatt submitted that the Government Resolution of 2001 had to be issued since a query was raised by the Audit Department that the Medical Officers were not entitled to the dual benefits of the senior scale as well as the benefits recommended by the Tiku Pay Commission.
Ms.Bhatt submits that in view of the above, there being merit in this writ-application, the same be allowed and the Government be directed to extend the benefits of the Tiku Pay Commission.
On the other hand, this writ-application has been Page 3 of 7 C/SCA/12033/2014 ORDER vehemently opposed by Mr.Rutvij Oza, the learned AGP appearing for the State. Mr.Oza submitted that the Government has not committed any error, not to speak of any error of law, in passing the impugned order dated 24th December 2013. Mr.Oza has placed reliance on the affidavit-in- reply filed by Shri Suresh D.Soni, Under Secretary to the Government of Gujarat, Health and Family Welfare Department. He placed reliance on the following averments made in the reply :
"6. It is respectfully say and submit that the present petitioner has already got two Tikku pay scales as per Tikku Pay Commission. The respondent further submit that the petitioner suffered with stroke of Hemi paresis which resulted in 75% of the permanently disability of the petitioner. Therefore, the present petitioner has sought for voluntary retirement on account of his permanently disability and order dated 24.12.2013 was passed accepting his voluntary retirement. Here, the respondent submits that as per the resolution dated 11.05.2001, the present petitioner is not entitled to get the benefits of the Tikku Pay Commission. The resolution specifically stated that if the petitioner took voluntary retirement then he has to waive the further benefits of the Tikku Pay Commission and he will be entitled to get the pension and pensionary benefits as per his original pay scale, which is Insurance Medical Officer Class-II.
7. It is respectfully submits that the Director of Pension and Provident Fund Department has approved the pension of the present petitioner by issuance of an order No.DPPF/PR-5/12/2013/250289 dated 04.10.2014. It is further submits that the present petitioner's pension start with effect from 01.01.2014.
8. It is respectfully say and submit that the Government resolution dated 11.05.2001, which is specifically provide that the petitioner who has taken voluntary retirement will not be entitled to the benefits of higher pay scale of Tiku Commission and if any higher pay scale is given the same is required to be withdrawn/cancellation forthwith Page 4 of 7 C/SCA/12033/2014 ORDER as per the Government Resolution dated 11.05.2001. It is further submits that the respondent has approved the petitioner's pension as per his original pay scale. The petitioner's pension has approved by the Director of Pension and Provident Fund Department whereby the specific amount of calculation are mentioned in Annexure-R2. It is further submits that the petitioner is not entitled for higher pay-scale as per mentioned under Tiku Pay Commission because petitioner has taken voluntary retirement from his job."
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 petitioner is entitled to seek the benefits of the Tiku Pay Commission recommendations despite the fact that he had sought voluntary retirement from service.
Since the matter hinges on the interpretation of the Government Resolution dated 11th May 2001, it is necessary to look into the same in little details. The plain reading of the Government Resolution reveals as under :
"That the Medical Officer may not be given concurrent benefits (i.e. benefits of senior scale and that of Tiku Pay Commission at the same time). As the petitioner had only availed the benefits of Tiku Pay Commission there is no question of any concurrent benefits and therefore, that portion of the Government Resolution dated 11.5.2001 is not applicable in the case of the petitioner.
That the pension of the officer who retired upon superannuation or died between the period 14.11.1991 to 16.10.1994 will be fixed on the basis of their pay scale as on date. It is further stated that if the officer resigns or takes voluntary retirement between 14.11.1991 to 16.10.1994 then they will not be eligible for the said benefits. Admittedly, the case of the petitioner does not fall in the said category."Page 5 of 7 C/SCA/12033/2014 ORDER
It is pertinent to note that the Government Resolution of 2001 takes care of the Government Resolution of 1994 as well as the Government Resolution of 1997.
The Government Resolution of 2001 makes one thing clear that the Medical Officers are not entitled to the dual benefits of the senior scale and the Tiku Pay Commission.
In the case in hand, there is no question of granting any dual benefits. I am of the view that the Government Resolution dated 11th May 2001 has been made applicable only in case of those employees who had retired from service or had resigned or had sought voluntary retirement between the period 14th November 1991 and 16th October 1994.
Beside the above, the following averments made in paragraphs 10 and 11 of the petition have gone un-rebutted, there is no reply of the State Government in that regard :
"10. The petitioner submits that the respondents have given discriminatory treatment by not extending the benefits of Tiku Pay Commission to the petitioner as the following officers were given said benefits despite their voluntary retirement :
(1) Dr.A.J.Oza, (2) Dr.Hemant B.Patel and (3) Dr.M.J.Gupta. It is further submitted that all these officers took voluntary retirement as Class-II Officers. Annexed hereto and marked as Annexure J (colly) are the copies of orders passed granting benefits under the Tiku Pay Commission in the aforestated Class-II Officers.
11. The petitioner further submits that as the petitioner was given discriminatory treatment, an application under the Right to Information Act was preferred by the relative of the petitioner calling for certain details. Annexed Page 6 of 7 C/SCA/12033/2014 ORDER hereto and marked as Annexure K is a copy of application dated 19.2.2014 preferred under the Right to Information Act. In response to the said application, reply dated 27.3.2014 was received from office of respondent no.4, under which, it was stated that no records are available. The petitioner submits that in response to another application preferred by him, certain details were supplied vide reply dated 24.4.2014. Annexed hereto and marked as Annexure M is a copy of consolidated reply received from the Health and Welfare Department. From the records, it is clear that the recommendations of the Tiku Pay Commission has been denied only in the case of Dr.G.K.Chauhan and Dr.Jitesh K.Bhatt figured at serial nos.18 and 19. From the above, it is clear that the respondent has meted out discriminatory treatment to the petitioner which is violative of Article 19(1)(g) of the Constitution of India."
It appears that when this petition was filed, the Government had not even fixed the pension. The pension came to be fixed only on 4th October 2014, and that too, sans the Tiku Pay Commission benefits.
In the result, this petition succeeds and is hereby allowed. The respondents are directed to extend the benefits of the Tiku Pay Commission in favour of the petitioner and refix the pension accordingly. This exercise shall be undertaken within a period of eight weeks from the date of receipt of the writ of the order.
Rule is made absolute to the aforesaid extent. Direct service is permitted.
(J.B.PARDIWALA, J.) MOIN Page 7 of 7