Gujarat High Court
Dr. Jafar Aamadh Hingora vs State Of Gujarat on 9 May, 2019
Author: N.V.Anjaria
Bench: N.V.Anjaria
C/SCA/4676/2019 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 4676 of 2019
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DR. JAFAR AAMADH HINGORA
Versus
STATE OF GUJARAT
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Appearance:
MR KB PUJARA(680) for the Petitioner(s) No. 1
MR. K.M.ANTANI, AGP FOR Respondent No.1 and its authorities
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CORAM: HONOURABLE MR.JUSTICE N.V.ANJARIA
Date : 09/05/2019
ORAL ORDER
In the facts and circumstances of the case and having regard to the request and consent of the parties appearing through their respective learned advocates, the petition was taken up for final consideration today. Rule returnable forthwith. Learned Assistant Government Pleader Mr. K. M. Antani waives service of Rule on behalf of the respondent state and its authorities.
1.1 Heard learned advocate Mr. K. B. Pujara for the petitioner and learned Assistant Government Pleader for the respondent state and its authorities.
2. The petitioner who was a Medical Officer, Class-II, is aggrieved for the reason that since 31.5.2018, when he retired, he has not received any amount by way of retirement benefits viz. pension, gratuity, computation of pension etc.. The petitioner has prayed as under,
(i) to quash and set aside the impugned order/notification dated Page 1 of 6 Downloaded on : Mon Jul 01 01:02:29 IST 2019 C/SCA/4676/2019 ORDER 31.5.2018 as per Annexure-F to the extent and in so far as it is stated therein that the benefit of Higher Pay-Scale granted under Tiku Commission, if any, is liable to be withdrawn in respect of Voluntary Retiring Medical Officer as per G.R. Dated 11.5.2001;
(ii) to hold and declare and direct that the petitioner is entitled to retain the benefit of Higher Pay-scales granted under the Tiku Commission as per the law laid down by this Hon'ble Court in SCA No. 568 of 2018 by judgment and order dated 31.1.2018;
(iii) to direct the respondents, their agents and servants to forthwith release the retirement benefits of pension, gratuity, commutation of pension, benefits on the basis of last salary actually drawn by the petitioner, and also to pay interest @ 18% per annum with effect from 31.5.2018 till the date of actual payment of the said benefits.
3. The petitioner joined his duties as Medical Officer, Class-II, on 5.7.1994 in the pay scale of Rs. 2200-4000, which was revised to Rs. 8000-275-13500 with effect from 1.1.1996 under the Gujarat Civil Services (Revision of Pay) Rules, 1998. Upon completion of six years of service, the petitioner was granted 1st higher pay scale of Rs. 10000-325- 15200 with effect from 5.7.2000. Thereafter, on completion of seven years of service , the petitioner was granted 2nd higher pay sale and was placed in the pay band of Rs. 15600-39100 with Grade Pay Rs. 7600/- with effect from 5.7.2007. The said higher pay scale was granted on the basis of government resolutions dated 19.3.2017 and 20.10.2014 and the benefit was sanctioned as per government resolution dated 17.10.1994 read with government resolution dated 15.10.1977. These government resolutions were issued pursuant to Tiku Pay Commission benefits.
3.1 After completion of 20 years of qualified service, the petitioner Page 2 of 6 Downloaded on : Mon Jul 01 01:02:29 IST 2019 C/SCA/4676/2019 ORDER opted for voluntary retirement by making application dated 16.5.2018 with effect from 31.5.2018. The application was processed and by order dated 31.5.2018, the state government sanctioned the voluntary retirement for the petitioner with effect from 31.5.2018.
3.2 However, the said order of granting voluntary retirement was passed by imposing condition that the higher pay scale granted under the Tiku Pay Commission benefits would be liable to be withdrawn as per the government resolution dated 11.5.2001 of the Family Welfare Department. The authorities relied on the conditions in the government resolution dated 11.5.2001, more particularly para-4 of the said resolution.
3.3 The petitioner has challenged the said order of respondent in so far as the said order of retirement places condition of withdrawal of Tiku Pay Commission benefits while sanctioning the voluntary retirement.
4. It was submitted by learned advocate for the petitioner that the issue was covered by decision in Harish Dunichand Chandnani vs. State of Gujarat being Special Civil Application No. 12033 of 2014 decided as per order dated 20.07.2017 and confirmed in Letters Patent Appeal No. 1469 of 2015 decided on 16.01.2017.
5. Even as the rivals drew their contentions, the respondents could not deny the position legally obtaining that the question in this petition is already answered in Harish Dunichand Chandnani (supra). The petitioner in that petition claimed benefits of Tiku Pay Commission, but was denied on the ground of the petitioner having taken voluntary retirement. The said petitioner had opted for voluntary retirement on medical ground of sufferance of stroke of paralysis and resultant permanent disability. The said order was challenged in Letters Patent Page 3 of 6 Downloaded on : Mon Jul 01 01:02:29 IST 2019 C/SCA/4676/2019 ORDER Appeal No.1469 of 2015 which was dismissed by the Division Bench by judgment dated 16th January, 2017.
5.1 Extracting the relevant paragraphs from the judgment of the Letters Patent Bench, "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 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 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%.
Page 4 of 6 Downloaded on : Mon Jul 01 01:02:29 IST 2019 C/SCA/4676/2019 ORDER10. 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."
5.2 The Division Bench of this Court dealt with the very issue in yet another case in State of Gujarat v. Dr.Arpita Nitinkumar Dave being Letters Patent Appeal No.1753 of 2017 arising from decision in Special Civil Application No.2165 of 2016 in which a contention was sought to be advanced on behalf of the respondent-State seeking to distinguish the judgment in Letters Patent Appeal No.1469 of 2015 on the ground that voluntary retirement of the said employee the petitioner concerned was on the medical ground that he has suffered disability because of paralysis. The Division Bench rejected such distinction and confirmed the order according the Tiku Pay Commission benefits which were denied on the basis of Resolution dated 11.05.2001 on the ground of taking voluntary retirement. Not only that the issue attained finality with the Apex Court dismissing Special Leave to Appeal on 17.07.2017 being Diary No.18150 of 2017 arising from aforementioned Letters Patent Appeal No.1469 of 2015 in Special Civil Application No.12033 of 2014.
6. The facts in the present case are not in dispute. The petitioner was allowed voluntary retirement and he voluntary retired as per order dated 31.5.2018. However, he was refused the benefit of Tiku Commission recommendations and the higher pay scales which benefits had already been received by him. The order permitting voluntary retirement simultaneously provided withdrawal of the said benefit. In view of the decision in Harish Dunichand Chandnani (supra) and Dr. Arpita Nitinkumar Dave (supra) the order could not sustain.
Page 5 of 6 Downloaded on : Mon Jul 01 01:02:29 IST 2019 C/SCA/4676/2019 ORDER6.1 As a result, the order dated 31.5.2018 in so far as it provides to withdraw the higher pay scale benefit granted under the Tiku Commission recommendations is set aside. The respondents are directed not to withdraw the said benefit already granted to the petitioner and that the respondents are further permanently restrained to effect any recovery from the petitioner. The retiral benefits to the petitioner shall be calculated on the above basis without withdrawing the Tiku Commission benefits and the amount of arrears as may be arising to be paid to the petitioner, shall be paid within a period of eight weeks from the date of receipt of writ of this order.
7. The petition is allowed in the aforesaid terms. Rule is made absolute accordingly.
Direct service is permitted.
(N.V.ANJARIA, J) C.M. JOSHI Page 6 of 6 Downloaded on : Mon Jul 01 01:02:29 IST 2019