Gujarat High Court
State Of Gujarat vs Harishchandra Maganlal Dave on 24 April, 2019
Author: Biren Vaishnav
Bench: Anant S. Dave, Biren Vaishnav
C/LPA/950/2019 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 950 of 2019
In R/SPECIAL CIVIL APPLICATION NO. 4415 of 2018
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
In R/LETTERS PATENT APPEAL NO. 950 of 2019
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STATE OF GUJARAT
Versus
HARISHCHANDRA MAGANLAL DAVE
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Appearance:
MS NISHA THAKORE ASST. GOVERNMENT PLEADER(1) for the
Appellant(s) No. 1,2,3,4
for the Respondent(s) No. 1
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CORAM: HONOURABLE THE ACTING CHIEF JUSTICE ANANT S.
DAVE
and
HONOURABLE MR.JUSTICE BIREN VAISHNAV
Date : 24/04/2019
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE BIREN VAISHNAV)
1. What is evident from the oral order dated 14th December, 2018 of learned Single Judge is that the original petitioner, a 93 old man was constrained to approach this Court thrice praying that his services for the period from 8.4.1948 to 15.7.1952 be counted for the purpose of granting him pensionary benefits.
2. The facts are as under:
2.1. The respondent-original petitioners joined services at the Nawanagar High School, as Assistant Teacher on 3.4.1948 and subsequently, transferred to Botad on 22.4.1952. Having resigned from service on 15.4.1952, he subsequently rendered services as Assistant Teacher for the period from 2.1.1956 till 30.4.1982. Having retired from service on 30.4.1982, he prayed fro pensionary benefits Page 1 of 6 Downloaded on : Tue Jun 25 00:30:21 IST 2019 C/LPA/950/2019 ORDER for the first round, the petitioner was constrained to approach this Court by filing Special Civil Application No. 2637 of 1997 before this Court. The learned Single Judge by CAV Judgement dated 30.4.1999 considered the fact that the petitioner was constrained to approach the Court for counting his services for the period from 3.4.1948 to 15.7.1952 as qualifying service for the purpose of pension.
3. The learned Single Judge then, was in pain to observe that the State has not filed the reply to the petitioner and in the background of all those facts, the learned Single Judge allowed the petition with a direction quoted here under:
"In the result, this Special Civil Application is disposed of in the term that the respondent No.1 is directed to consider the case of the petitioner for counting of his services for the period from 03/04/1948 to 15/07/1952 towards the qualifying service for pension with in a period of 2 months from the date of the receipt of the writ of this order. It is advisable that he may sit together with the Secretary (Finance) while deciding the matter and in case of services are countable towards the qualifying service of the petitioner for pension, the same may be accordingly counted and the petitioner will be given the consequential benefits and, his pension may accordingly be revised and arrears of the pension may be given to him and further the pension may accordingly revised. In case the claim of the petitioner is not accepted, a reasoned order may be passed and the copy of the same may be sent to the petitioner by Registered Post A.D."
4. The State rejected the representation of the petitioner by the decision dated 11th December, 1999, which once again pushed him to file petition being Special Civil Application No.1904 of 2003 reiterating his grievances that his services for the period from 3.4.1948 to 15.7.1952 be counted for the purpose of pension.
5. Before the learned Single Judge then, the issue involved was the interpretation of Rule 250 of Bombay Civil Services Rule with a note there under.
Page 2 of 6 Downloaded on : Tue Jun 25 00:30:21 IST 2019 C/LPA/950/2019 ORDER6. The learned Single Judge by oral judgement dated 27.4.2016 considering the note 4 of Rule 250 and relying on the decision of this Court in the case of D.B.Thanki vs. State of Gujarat 2001 (1) GLR 694 extensively quoted the judgement and held as under:
"3. Under Rule 250 of the BCSR, it is provided in Clause
(b) that unless Government in any case otherwise direct, an interruption of service shall entail cancellation of all duty counting for pension. Resignation of Government Service constitutes an interruption of service as laid down in Rule 250 (a)(1). Therefore, if the rule applied to the petitioner's case since he had resigned of his own, there was interruption of service which entailed cancellation of all duty that he had performed prior to the resignation for the purpose of counting pension. It however, appears that after liberalization reflected in the resolution dated 24th February 1966 which is at Annexure-A, Note : 4 has been added to Rule 250 of BCSR by notification dated 1st May, 1971 and the said Note 4 reads as under :-
"The provisions of this rule shall not apply to a Government servant retiring on or after 1st April, 1966 and to whom the Revised Pension Rules, 1950 are applicable, provided that the Government servant who is reappointed to Government service after resignation of his own accord or after removal from Government service, the service rendered by him prior to the date of resignation or removal shall not count for pension or Death cum Retirement Gratuity unless specific entries are made in his book."
4. Therefore, the Rule which had the effect of treating cancellation of past service while counting qualifying period for pension, due to interruption brought about by resignation was made inapplicable to a Government servant retiring on or after 1st April, 1966 and to whom the revised pension Rules, 1950 were applicable, subject to proviso contained in Note 4 to Rule 250, as per which, the Rule would not apply only if the specific entries are made in his service book of the Government servant who is reappointed after resignation of his own accord. In the present case, it appears that concerned authority has not applied its mind to the provisions of Note 4 to Rule 250 and has by its communication at Annexure-C rejected the application of the petitioner on the basis of Note 3 of Rule 250 of BCSR, under which, Heads of Department Page 3 of 6 Downloaded on : Tue Jun 25 00:30:21 IST 2019 C/LPA/950/2019 ORDER may condone not more than three interruptions of total period not exceeding 3 months in all. Note : 3 would be applicable if the rule itself applied and interruptions have the effect of entailing cancellation of all duty counting for pension. In the instant case, there was no question involved of any powers of Heads of Department to condone but the question was as to whether Rule 250 itself applied in view of the Note 4 mentioned above. If Rule 250 is held to be inapplicable which depends on the requirement of the proviso of Note 4 to Rule 250 being satisfied, then reference to other Notes would not be relevant but if the Rule applies then the question may have to be considered in light of its provisions read with other notes. In this view of the matter, the impugned communication at Annexure-C to the petition rejecting the application of the petitioner dated 7th May, 1984 is hereby set aside and the respondent is directed to reconsider the application of the petitioner dated 7th May, 1984 which is at Annexure-B to the petition, in light of the provisions contained in Note : 4 of Rule 250 of the BCSR and take a fresh decision in the matter expeditiously preferably within 4 weeks from the date on which the writ of this order is received by the respondent. Rule is made absolute accordingly with no order as to costs."
7. The learned Single Judge observed and specifically held that it was abundantly clear that note 4 to Rule 250 was applicable to employees who retired after 1966, since there was no dispute that the petitioner therein had retired in 1982 in view of note 4 of Rule 250 and the services he rendered as a teacher from 3.4.1948 to 15.7.1952 are required to be counted for the purpose of qualifying service for the pension. The learned Single Judge accordingly allowed the petition and directed the respondents to reconsider the case of the petitioner in the case of the direction given therein.
8. Completely ignoring the repeated observations of this Court in the previous two occasions, the State appears to have rejected the claim of the pension on 28.6.2016. In this background, the learned Single Judge by oral order under challenge reconsidered the facts and Page 4 of 6 Downloaded on : Tue Jun 25 00:30:21 IST 2019 C/LPA/950/2019 ORDER the judgement in D.B.Thanki (supra) and observed as under:
4. In view of Note 4 of Rule 250 of the Gujarat Civil Services Rules, the petitioner would be entitled to be considered for addition of the period in question in his total pensionable service. The impugned decision denying the benefit has to be deprecated, besides to be set aside forthwith, on the ground that it seeks to interpret judgment of the High Court which is none of the function of the executive. It is high-time to sound a warning to the executive that when any court has passed any order, observation or direction, it has to be complied with unless it is reversed in appeal. Respect to the order and implementation thereof is a measure of commitment towards democracy and rule of law by the executive which is inevitable for ensuring conferment and enforcement of the rights of the citizen.
5. As a result of above, the petition is allowed. The period between 03rd April, 1948 to 15th July, 1952 during which the petitioner rendered services as Teacher shall be reckoned as part of total pensionable service of the petitioner and his pension shall be revised accordingly.
The arrears arising out of this order shall be paid to the petitioner within a period of four weeks from the date of receipt of this order. Further pension shall be paid and continued to be paid at the revised rate. If the amount is not paid within the stipulated time of four weeks, it is directed that it shall carry interest at the rate of 8% from the date of filing of the present petition, that is from 20 th March, 2018."
9. We are at pain to observe that learned Single Judge had observed as under "It is high-time to sound a warning to the executive that when any court has passed any order, observation or direction, it has to be complied with unles it is reversed in apeal. Respect to the order and implementation thereof is a measure of commitment towards democracy and rule of law by the executive which is inevitable for ensuring conferment and enforcement of the rights of the citizen".
10. Ms. Nisha Thakore, learned Asst. Government Pleader in the facts of this case submits that note 4 of Rule 250 was not interpreted Page 5 of 6 Downloaded on : Tue Jun 25 00:30:21 IST 2019 C/LPA/950/2019 ORDER properly. What is evident from the judgement rendered in the case of petitioner by learned Single Judge dated 30.4.1999 and 27.4.2016, this Court had unequivocally find in favour of the respondent-original petitioner, a 93 old man holding that he was entitled to have his services rendered from 3.4.1948 to 15.7.1952 be counted for qualifying service towards pensionary benefits.
11. We note that the directions of the learned Single Judge dated 27.4.2016 where binding observations were made that the note applied to the respondent which was not a subject matter of challenge, the State now has thought it fit to challenge this indirectly the oral order dated 14.12.2018. It is a painful circumstance that a 93 old pensioner who has to undergo rigmarole thrice which the appellate authority ought to respect the order of this Court. In view of the observations made by us confirming the decision of the learned Single Judge, we direct the State to implement the order passed by learned Single dated 14.12.2018 within four weeks from the date of receipt of this order.
12. The appeal is dismissed and subsequently, the Civil Application (For Stay) also stands dismissed.
(ANANT S. DAVE, ACJ) (BIREN VAISHNAV, J) NAIR SMITA V. Page 6 of 6 Downloaded on : Tue Jun 25 00:30:21 IST 2019