Gujarat High Court
Shrimali Vinod Kumar Manorbhai vs Chief District Health Officer on 15 June, 2022
Author: Biren Vaishnav
Bench: Biren Vaishnav
C/SCA/13087/2020 JUDGMENT DATED: 15/06/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 13087 of 2020
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2021
In R/SPECIAL CIVIL APPLICATION NO. 13087 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BIREN VAISHNAV
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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SHRIMALI VINOD KUMAR MANORBHAI
Versus
CHIEF DISTRICT HEALTH OFFICER
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Appearance:
DWIJEN JOSHI(8518) for the Petitioner(s) No. 1
MR.KURVEN DESAI, AGP for the Respondent(s) No. 3,4,5
MR HS MUNSHAW(495) for the Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
Date : 15/06/2022
COMMON ORAL JUDGMENT
1. RULE returnable forthwith. Mr.H.S.Munshaw learned advocate waives service of Rule on behalf of respondent no.1 and Mr.Kurven Desai learned AGP waives service of notice of Rule on behalf of the respondent nos.3 to 5.
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2. With the consent of learned advocates for the respective parties, the petition is taken up for final hearing.
3. This petition under Article 226 of the Constitution of India is filed by the retired employee for a writ of mandamus to quash and set aside the communication dated 13.01.2020, by which, it is the case of the State that the benefits of Tiku Pay Commission has been wrongly given to the petitioner and is needed to be recovered vide resolution dated 11.05.2001.
4. Facts in brief would indicate that the petitioner was appointed as a Health Officer, Class-II on 04.09.1996 and was so continued till he was confirmed by an order dated 26.10.1999. On 30.01.2006, an order was passed granting the benefit of the first higher pay scale as per the recommendation of the "Tiku Pay Commission". By an order dated 01.11.2012 on completion of 13 years of service, the second higher pay scale was granted to the petitioner. The petitioner wanted to retire voluntarily and therefore Page 2 of 14 Downloaded on : Fri Jun 17 20:42:36 IST 2022 C/SCA/13087/2020 JUDGMENT DATED: 15/06/2022 submitted an application for voluntary retirement on 08.09.2017. The application was accepted and the order accordingly was passed on 31.07.2017 granting the retirement. However, on a reference to the resolution dated 11.05.2001, it was expected of the petitioner that the higher pay scales that he had earned by virtue of the resolution of the Tiku Pay Commission be refunded.
5. Mr.Dwijen Joshi learned counsel for the petitioner would draw the attention of the Court to the orders passed by this Court in case of Harish Dunichand Chandnani in Special Civil Application No.12033 of 2014, where considering the same resolution, the Court had set aside the conditional order of voluntary retirement and allowed the petition extending the benefits of the Tiku Pay Commission. The order was confirmed by the Division Bench in Letters Patent Appeal No.1469 of 2015 and challenge to the Apex Court also failed. The coordinate bench of this Court also in case of Dr. Arpita Nitinkumar Dave v. State of Gujarat Page 3 of 14 Downloaded on : Fri Jun 17 20:42:36 IST 2022 C/SCA/13087/2020 JUDGMENT DATED: 15/06/2022 and other rendered in Special Civil Application No. 21654 of 2016, considering the decision in case of Harish Dunichand Chandnani (supra), allowed the petition.
6. Mr.Munshaw learned advocate appearing for the Chief District Health Officer, Mehsana, would rely on the affidavit in reply filed on his behalf and submit that in view of the resolution dated 11.05.2001, the benefits granted of the Tiku Pay Commission needed to be withdrawn. The amount has to be recovered and only then the petitioner would be entitled to terminal benefits.
7. Mr.Kurven Desai learned AGP for the State also would support the order of voluntary retirement and submit that unless and until the benefits of the Tiku Pay Commission are refunded, the petitioner will not be entitled to other benefits.
8. Time and again this Court has considered the issue of a Medical Officer who has been extended the benefits of the Tiku Pay Commission and on Page 4 of 14 Downloaded on : Fri Jun 17 20:42:36 IST 2022 C/SCA/13087/2020 JUDGMENT DATED: 15/06/2022 voluntarily retirement, being told to refund the amounts earned by way of two pay scales. This Court too, had the benefit of considering the decision in the case of Harish Dunichand Chandnani (supra). In case of Harish Dunichand Chandnani (supra), this Court after considering the rival submissions in context of the resolution dated 11.05.2001, held as under:
" 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.Page 5 of 14 Downloaded on : Fri Jun 17 20:42:36 IST 2022
C/SCA/13087/2020 JUDGMENT DATED: 15/06/2022 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." 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 16thOctober 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-Page 6 of 14 Downloaded on : Fri Jun 17 20:42:36 IST 2022
C/SCA/13087/2020 JUDGMENT DATED: 15/06/2022 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 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 4 th 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.
Page 7 of 14 Downloaded on : Fri Jun 17 20:42:36 IST 2022 C/SCA/13087/2020 JUDGMENT DATED: 15/06/2022 Rule is made absolute to the aforesaid extent. Direct service is permitted."
9. The order was affirmed by the Division Bench in appeal and so also in the SLP. The Division Bench in Letters Patent Appeal has held as under:
"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 Page 8 of 14 Downloaded on : Fri Jun 17 20:42:36 IST 2022 C/SCA/13087/2020 JUDGMENT DATED: 15/06/2022 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%.
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.
11. The appellants are directed to issue revised pensionary orders by applying the recommendations of Tiku Pay Commission within the period of two months from today."
10. The same was also followed by coordinate bench of this Court by separate orders passed in Special Civil Page 9 of 14 Downloaded on : Fri Jun 17 20:42:36 IST 2022 C/SCA/13087/2020 JUDGMENT DATED: 15/06/2022 Application No.21654 of 2016 and Special Civil Application No.5362 of 2017.
11. Considering the aforesaid decisions therefore, the communication dated 13.01.2020 is quashed and set aside. The petitioner should be treated as having voluntarily retired without the conditions mentioned in the order of voluntary retirement dated 31.12.2017 of refunding the amount and the subsequent order of 13.01.2020 and the order dated 20.07.2021 which order has been stayed by this Court dated 17.12.2021. The said order reads as under:
"Heard learned Advocate Mr.Digant Joshi on behalf of the petitioner and learned AGP Ms.Surbhi Bhati on behalf of the respondent State.
2. By way of this petition, the petitioner challenges an order dated 13.1.2020 passed by the respondents whereby the respondents have sought to recover the amount of two higher pay scale as paid to the petitioner as per the recommendation of the Tikku Pay Commission.
3. Learned Advocate Mr.Joshi would inter alia submit that at the relevant point of time since there was no recovery impending as consequential to order dated 13.1.2020 and since vide an order dated 20.7.2021 the Page 10 of 14 Downloaded on : Fri Jun 17 20:42:36 IST 2022 C/SCA/13087/2020 JUDGMENT DATED: 15/06/2022 respondents have sought to recover certain amount from the present petitioner and whereas in spite of the voluntary retirement application of the petitioner being accepted in the year 2017, and yet the petitioner not having been paid the retiral benefits, the petitioner was constrained to file Civil Application No.1 of 2021. Learned Advocate Mr.Joshi would draw the attention of this Court to the Government Resolution dated 29.5.2019 and would submit that the original Resolutions in this regard were Resolutions of 17th October, 1994 and of 11th May, 2001. Learned Advocate Mr.Joshi would submit that it was upon misreading of the later Resolution that the respondents had sought to recover the amount granted to the present petitioner under Tikku Pay Commission recommendations. Learned Advocate Mr.Joshi would submit that vide Resolution dated 29.5.2019 and more particularly relying upon the decisions of this Court, the Government has modified the terms of payment of the benefits under Tikku Pay Commission and whereas now it is clarified that in case an employee has applied three years after grant of benefits as per Tikku Pay Commission recommendation and thereafter the employee seeks to be retired on voluntary basis or resigns from service or leaves the service by any other mode, then there shall not be any recovery from the employee concerned. Learned Advocate Mr.Joshi would submit that the benefits of Tikku Pay Commission having been made available to the present petitioner w.e.f. 30.1.2006 and 1.11.2012, and the petitioner having worked for more than three years thereafter, the case of the petitioner would be squarely applicable under the terms of Resolution dated 29.5.2019 and thus, no amount to be recovered from the petitioner by the respondents.Page 11 of 14 Downloaded on : Fri Jun 17 20:42:36 IST 2022
C/SCA/13087/2020 JUDGMENT DATED: 15/06/2022
4. The submissions of Mr.Joshi is vehemently opposed by the learned AGP, who would submit that while the petitioner had made an application for voluntary retirement and the same was accepted in the year 2017, the Resolution which the petitioner seeks to rely upon is of 29th May, 2019 i.e. of a later date. Mr.Bhati would submit that under such circumstances since the policy came to be explained after the date of acceptance of voluntary retirement of the present petitioner, therefore, the petitioner would not be entitled to such benefits.
5. Prima facie in the considered opinion of this Court, whether or not the petitioner or similarly situated persons who had chosen for voluntary retirement or who had resigned from service, should be saddled with recovery in spite of having worked for more than three years after having been granted Tikku Pay Commission is an aspect which the State Government would be required to decide. Prima facie it appears to this Court that since the Government Resolution is of the nature of explaining the earlier Resolutions more particularly Resolution dated 11.5.2001, therefore, the effect of the Resolution of 2019 has to be considered from the date of inception of the original Resolution of 11th May, 2001. In any case, in the considered opinion of this Court, the State is required to apply its mind.
6. Hence, it is directed that the respondent authority may take appropriate decision with regard to applicability of the terms of Government Resolution dated 29.5.2019 as regards the case of the present petitioner and outcome of such consideration shall be placed on record of this Court by 21.2.2022.
7. In the meanwhile, the respondents are Page 12 of 14 Downloaded on : Fri Jun 17 20:42:36 IST 2022 C/SCA/13087/2020 JUDGMENT DATED: 15/06/2022 directed not to proceed further with any recovery insofar as the order dated 20.7.2021 passed by the Health and Family Welfare Department is concerned. It is further directed that as far as the retiral benefits of the present petitioner are concerned, the respondents shall calculate the exact amount allegedly paid in excess to the petitioner as per the recommendation of Tikku Pay Commission and the said amount shall be withheld by the present respondents, which shall be subject to the final result of the present petition.
8. It is further directed that since nothing else has been brought on record whereby the petitioner could be denied the retiral benefits, except the amount in question as referred to herein above, all other amounts available to the petitioner as retiral benefits shall be paid to the petitioner. The respondents shall also calculate the provisional pension as available to the petitioner, deducting increase in salary on account of payment of higher pay scale as per the recommendation of Tikku Pay Commission, and shall pay to the petitioner the provisional pension on such reduced amount till further orders that may be passed by this Court in this regard. Direct service is permitted."
12. In view of the above, the petitioner shall be entitled to the benefits of the Tiku Pay Commission granted by the orders initially and his pension and all terminal benefits shall be fixed as if the petitioner had rightly been granted the benefits of Tiku Pay Commission. The respondent is directed to refix the pension accordingly. The said exercise shall be Page 13 of 14 Downloaded on : Fri Jun 17 20:42:36 IST 2022 C/SCA/13087/2020 JUDGMENT DATED: 15/06/2022 undertaken within a period of 10 weeks from the date of receipt of copy of this order.
13. Petition is allowed in the aforesaid terms. Rule is made absolute to the aforesaid extent.
14. Civil Application also stands disposed of.
(BIREN VAISHNAV, J) ANKIT SHAH Page 14 of 14 Downloaded on : Fri Jun 17 20:42:36 IST 2022