Gujarat High Court
Maheshbhai H Bhatt vs Secretary & 4 on 10 February, 2014
Author: Akil Kureshi
Bench: Akil Kureshi
C/LPA/1213/2010 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS PATENT APPEAL No. 1213 of 2010
In
SPECIAL CIVIL APPLICATION No. 21986 of 2005
With
CIVIL APPLICATION No. 5557 of 2010
In
LETTERS PATENT APPEAL No. 1213 of 2010
FOR APPROVAL AND SIGNATURE:
HONOURABLE Mr. JUSTICE AKIL KURESHI
and
HONOURABLE Ms. JUSTICE SONIA GOKANI
================================================================
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, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
================================================================
MAHESHBHAI H BHATT....Appellant(s)
Versus
SECRETARY & 4....Respondent(s)
================================================================
Appearance:
Mr VIRAT G POPAT, ADVOCATE for the Appellant(s) No. 1
Mrs VD NANAVATI, ADVOCATE for the Respondent(s) No. 5
Ms KJ BRAHMBHATT, ADVOCATE for the Respondent(s) No. 2
Mr JAIMIN GANDHI AGP for the Respondent(s) No. 1 , 3 4
================================================================
CORAM: HONOURABLE Mr. JUSTICE AKIL KURESHI
and
HONOURABLE Ms. JUSTICE SONIA GOKANI 7th
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C/LPA/1213/2010 JUDGMENT
February 2014
ORAL JUDGMENT (PER : HONOURABLE Mr. JUSTICE AKIL KURESHI)
Appellantoriginal petitioner has challenged judgment of the learned Single Judge dated 3rd March 2010 passed in Special Civil Application No. 21986 of 2005. In the said petition, the petitioner had prayed for pensionery benefits on the basis of his service rendered in GrantinAid Colleges. The learned Single Judge dismissed the petition on various grounds. He has, therefore, filed this Letters Patent Appeal.
2. Facts relevant for our purpose are as under : 2.1 On 23rd December 1967, the appellantpetitioner was appointed as an Accountant in L.M College of Pharmacy run by the respondent no.1 Ahmedabad Education Society. On 9th November 1989, the petitioner was promoted to the post of Office Superintendent and was posted in L.D Arts Collegerespondent no.2 herein.
2.2 While in service on the said post, he was dismissed on 4th January 1995 by the said respondent no. 2College. The petitioner challenged his dismissal before the Gujarat Affiliated Colleges Services Tribunal Tribunal, Ahmedabad {"Tribunal" for short} by filing Application No. 2 of 1995. 2.3 On 26th June 2002, the petitioner and the respondents no. 1 & 2 entered into a compromise. A joint pursis was filed before the Tribunal, as per Page 2 of 17 2 of 34 C/LPA/1213/2010 JUDGMENT which, the College management would withdraw the dismissal order dated 4th January 1995 on the condition that the petitioner would opt for voluntary retirement from the said date. The Tribunal on 18th July 2002 passed an order in terms of such pursis and disposed of the application of the petitioner. In such order, the Tribunal provided as under : "3. During the pendency of this Application, the dispute is resolved within the parties and a settlement has been arrived at. As per this settlement, the applicant has accepted to voluntarily retire from the service of the respondent college with effect from 4th January 1995. Considering this date of 411995 as the date of voluntary retirement, the respondents no. 1 and 2 have shown willingness to give the retirement benefits to the applicant and to forward the bills of the applicant to which the applicant is entitled and as per the compromise, the applicant has deposited the key of vacant quarter before this Tribunal. Further, as per the terms of the settlement, the applicant has filed any other matter before any other Court, then in that case, he has to withdraw all such litigations from the Court.
4. So, as per the settlement, the applicant has taken voluntary retirement with effect from 4.1.1995 and has also deposited the key of the quarter which was in his possession.
5. In view of this, I hereby direct the respondents No. 1 and 2 to pay the amount of the benefits to the applicant within a period of four weeks from the date of receipt of this order. In case if the respondent no. 1 and 2 are required to forward the pay bill or any other bill of the applicant to the respondent no.5, then, it should be done so within a period of two weeks from the date of receipt of this order. The respondent no. 5 is also directed to sanction such bills within a period of three weeks from the date of receipt of the same from the management." 2.4 It may be noted that compromise pursis was not signed by any Government official. The Government was, however, a party in the proceeding Page 3 of 17 3 of 34 C/LPA/1213/2010 JUDGMENT before the Tribunal. When the Tribunal passed its order dated 18 th July 2002 accepting the compromise and giving consequential directions, Government Pleader was present and his appearance was also noted. 2.5 Since the petitioner had difficulty in implementation of the order, he once again approached the Tribunal by filing Application No. 11 of 2003 in which the Tribunal passed an interim order dated 9th July 2003 criticizing the conduct of the officers of the Higher Education department. On such application, Tribunal once again made further observations on 23rd April 2004. 2.6 Pending such proceeding before the Tribunal, the petitioner preferred Special Civil Application No. 21986 of 2005 and prayed for release of his pension. He agreed before the Court that he would withdraw the application from the Tribunal, which he ultimately did. On 19th May 2006, pending this petition, the Government passed a detailed speaking order dated 19th May 2006. In such order, it was held that the petitioner was required to give his option for switching over from Contributory Provident Fund Scheme ["CPF Scheme" for short] to the pension scheme. Since the petitioner had not exercised such an option, he continued in the CPF scheme and now, therefore, he cannot claim pension. The petitioner therefore amended the petition and challenged such order also. In such petition, the learned Single Judge passed its impugned judgment dated 3rd March 2010. He dismissed the petition mainly on two Page 4 of 17 4 of 34 C/LPA/1213/2010 JUDGMENT grounds - firstly, that the petitioner had not exercised his pension option though he was required to do so, and secondly, that the petitioner was seeking pension w.e.f 4th January 1995 and for which the writ petition was filed in the year 2005, and therefore, the same was highly belated.
3. Before adverting to the rival contentions, we may notice that till 9 th November 1989, when the petitioner was brought over from L.M Pharmacy College to L.D Arts College, there was no pension scheme applicable to the aided pharmacy colleges. In L.M Pharmacy College, therefore, the petitioner was covered by CPF Scheme without any option.
4. On 3rd July 1987, the Government issued a Resolution promulgating a pension scheme for the full time nonteaching staff of the affiliated and aided nonGovernment Arts, Science, Commerce and Education Colleges in the State with effect from 1st April 1982. Such pension scheme was applicable to those members of nonteaching staff of the said colleges who were in service as on 1st April 1982 and recruited thereafter. For the members of the existing staff recruited before 1.04.1982 and those of the employees, who had retired after 1st April 1982, but before the date of the G.R ie., 3rd July 1987, option was given whether to continue in CPF Scheme or switchover to the pension scheme. Those employees who had been recruited after 1st April 1982, there was no Page 5 of 17 5 of 34 C/LPA/1213/2010 JUDGMENT option and they were automatically governed by the pension scheme. 4.1 Relevant portion of the said Pension Scheme reads as under : "1. a] For the purpose of this scheme (1) A nonGovernment College includes nonGovernment affiliated Arts, Science, Commerce and B.Ed. Colleges receiving grantinaid and managed by the private body and affiliated with the Universities by the competent authority.
b] for the purpose of pensionable pay, pay means and includes :
1) Pay in the approved prescribed scale of pay;
2) Personal pay granted to save from loss of pay due to
revision of pay scale of due to pay fixation.
2. xx xx xx
3. i) Members of the existing staff recruited before
1.4.1982 and those staff who have retired on or after 1.4.1982 and prior to the date of issue of this resolution should exercise their option within the period of one year from the date of issue of this resolution either to continue in Contributory Provident Fund scheme or to come under this Scheme. The option once exercised shall be final.
The option should be exercised in writing in the form prescribed [Appendix A] and communicated to the Director of Higher Education. The members of the staff who do not exercise the option within stipulated period shall be deemed to have opted fro the retention of the benefit admissible to them before 4.4.1982. Where a member of the staff who was entitled to exercise an option in accordance with this Resolution died on any date on or from 1st April 1982 and on or before expiry of the date before Page 6 of 17 6 of 34 C/LPA/1213/2010 JUDGMENT which he had to exercise option without exercising it, his family may be given the benefit of these rules or may be allowed the benefit or CPF scheme, whichever is more favourable to them. The pension sanctioning authority should work out the benefits admissible under both the alternatives (ie., the CPF and the Revised Pension Rules, 1950) as admissible under this government resolution after taking into account the quantum of CPF as well as family pension and prepare pension papers accordingly with necessary sanction.
4. The members of the staff recruited on or after 1st April 1982 shall automatically be governed by this scheme. Such staff will not be allowed to opt for contributory provident fund scheme.
5. xx xx xx
6. In computing the length of qualifying service for pension under this scheme, all previous service whether temporary officiating or permanent either in one or more than one non Government aided colleges, University, Department, Higher Secondary School who are being paid GrantinAid from Government shall be taken into account. The period of break in service will not be considered as qualifying service ie., actual service rendered will be considered as qualifying services. 4.2 We may also notice that on 22nd March 1993, Government issued a resolution making pension scheme for the fulltime teaching and nonteaching staff of the nonGovernment Degree and Diploma Colleges in the State. This pension scheme was made applicable with effect from 1st April 1989. Similar Page 7 of 17 7 of 34 C/LPA/1213/2010 JUDGMENT options as in the G.R dated 3rd July 1989 were made available to the employees who were in service on 1st April 1989 and thereafter - whether to be retired in CPF scheme or switchover to the pension scheme.
4.3 On the basis of such facts, counsel for the appellant vehemently contended that the Government committed a serious error in rejecting the petitioner's request for pension. In L.D Arts College, the petitioner was a fresh recruit and therefore was automatically included in the pension scheme. He did not have to exercise any option. In fact, no such option was available to him. He further submitted that the learned Single Judge committed an error in holding that the petition was belated. In support of his contentions, counsel relied on the decision of Supreme Court in case of K. Narayanan v. State of Karnataka, reported in AIR 1994 SC 55, wherein, it was observed that the term "recruitment" includes promotion and deputation.
5. On the other hand, learned AGP Shri Gandhi supported the judgment of the learned Single Judge and submitted that the petitioner had not exercised pension option. He made a belated claim. The petition was, therefore, rightly rejected.
6. From the materials on record, it is clear to us that the appellant was entitled to his postretiral benefits. What these post retiral benefits include is a more complex question, to which we would devote more discussion later. At Page 8 of 17 8 of 34 C/LPA/1213/2010 JUDGMENT this stage, we may recall that the appellantpetitioner was at one stage dismissed from service by the employer ie., L.D Arts college management. This happened in the year 1995. He challenged his dismissal before the Tribunal. Before the Tribunal, the employee as well as the employer entered into a compromise. The employee offered to resign in lieu of his dismissal. The employer thereupon agreed to withdraw the order of dismissal. This is precisely what the parties recorded in their compromise pursis. In such pursis dated 26th June 2002, the parties jointly declared that the college management agreed to withdraw the order of dismissal on condition that the petitioner would opt for voluntary retirement from 4th January 1995 ie., the date of dismissal. It is also recorded that on the basis of such voluntary retirement, the management would prepare the papers for the petitioner to claim post retiral benefits. It was on this compromise pursis that the Tribunal passed its order dated 18th July 2002. The Tribunal accepted the compromise, allowed the parties to act accordingly and also directed the management to release the benefits of the petitioner within the time prescribed and in case, the management is required to forward such bills to the Government, it would do so forthwith and the Government would sanction such bills within the time prescribed.
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C/LPA/1213/2010 JUDGMENT
6.1 Though the Government was not a signatory to the compromise pursis
entered into between the petitioner and the college, it was a party to the proceedings before the Tribunal. As noted above, the Government Pleader was present when the order was passed by the Tribunal. In any case, such order was never challenged by the Government. Under the circumstances, the appellantpetitioner would be entitled to receive all the postretiral benefits as if he had retired voluntarily with effect from 4th January 1995.
7. Before tackling the central controversy, we may also clear one more doubt. Though canvassed before us by the learned AGP and also held by the learned Single Judge, we do not think that there was any delay on the part of the petitioner in filing the writ petition. It is true that the petition was filed in the year 2005. In such petition, prayer was for grant of pension with effect from 4th January 1995. This, however, does not mean that the petition was filed 10 years after the cause of action had arisen. We must not loose sight of the ground on which the petitioner's claim for pension arose. He had been dismissed from service on 4th January 1995. It was only in the year 2002 that he succeeded in getting the dismissal converted into one of voluntary retirement. Immediately thereupon, he took up the issue of his retirement benefits with the college management as well as the Government. We have noticed that he approached the Tribunal complaining of inaction on the part of the said Page 10 of 17 10 of 34 C/LPA/1213/2010 JUDGMENT respondents in implementing the Tribunal's directions. The Tribunal also issued further directions and in fact recorded its disapproval of the delay in implementing the directions. It was when this fresh application was pending before the Tribunal that the petitioner filed a writ petition before the High Court. It was only after the writ petition was filed that the Government conveyed to the petitioner on 19th May 2006 that the petitioner's request for pension cannot be granted. We see no delay on the part of the petitioner in pursuing his remedies.
8. This brings us to the central question whether the petitioner would be covered by the pension scheme without exercising option. His case, as we have noted is that having recruited in LD Arts College after 3 rd July 1987, he was automatically covered by the pension scheme. The stand of the Government is that he was not a fresh recruit and that therefore, in absence of his option, he would continue to be governed by the CPF scheme.
9. We have noticed the relevant provisions of the Pension Scheme of 3 rd July 1987. Such scheme was made applicable for the first time to the full time nonteaching staff of the affiliated and aided nongovernment Arts, Science, Commerce and Education Colleges in the State . The pension scheme was made effect from 1st April 1982. Those employees who were in service as on 1st April 1982 and continued in employment on the date the scheme was published and Page 11 of 17 11 of 34 C/LPA/1213/2010 JUDGMENT those who retired before 3rd July 1987 had to exercise their options. Those recruited on or after 1st April 1982 did not have to exercise any option. In fact, there was no option available to them. Per force, they would be governed by the pension scheme. In our opinion, the petitioner cannot be denied the benefit of this pension scheme only on the ground that he did not exercise the option. Our reasons are as follows 9.1 Firstly, the petitioner was not an employee of L.D Arts College on 3rd July 1987 when the scheme was framed. He was employed in L.M Pharmacy College, which was not covered by the pension scheme of 3 rd July 1987. On the date of formulation of the scheme, therefore, the petitioner not being a member of nonteaching staff of the affiliated and aided nongovernment Arts, Science, Commerce and Education College, such scheme did not cover his case. It was only when on promotion he was brought in the L.D Arts College by the management that his right to be covered by the said scheme accrued. So far as LD Arts college is concerned, therefore, he was recruited only on such date, when he was employed by the said college ie., 9th November 1989. If this be so, everything else falls in place. He would thus be an employee of the Arts College, which is an affiliated and aided nongovernment College as a fulltime nonteaching staff, only with effect from the said date. As per clause (4) of the Scheme, he being recruited after 1st day of April 1982, would be automatically Page 12 of 17 12 of 34 C/LPA/1213/2010 JUDGMENT governed by the Scheme. In fact, clause (4) specifically provides that such staff members would not be allowed to opt for contributory provident fund scheme. The issue can be looked at from a slightly different angle. On 3 rd July 1987, when the scheme was promulgated, if the petitioner had asked to be covered by the said pension scheme, the answer of the Government would obviously have been that he is not covered by the scheme, since he is not a member of nonteaching staff of the above mentioned colleges which were governed by the pension scheme. On such date, he would be told that he was an employee of a Pharmacy college, which did not have any pension scheme.
10. Quite apart from our interpretation of the terms of the scheme, this is precisely how the College management and by default even the Government treated his case to be covered. On 6th February 2003, LD Arts College wrote to the Director of Higher Education that the petitioner had worked in L.M Pharmacy College from 23rd November 1967 to 8th November 1989. The pension scheme was made applicable to Pharmacy colleges by a resolution of 22 nd March 1993 - though with effect from 1st April 1989. But, before the pension scheme was declared, the petitioner had already joined LD Arts College on 9th November 1989. Since the pension option had already been implemented in LD Arts College and which was automatically applicable to the petitioner, the employer's contribution in the Contributory Provident Fund Scheme for the Page 13 of 17 13 of 34 C/LPA/1213/2010 JUDGMENT services rendered in the Pharmacy College with interest which comes to Rs. 37,114/= has already been deposited in the Government treasury on 20th October 1992. To this communication, the Government never responded; did not object nor reversed the deposit of the amount made in the Government treasury.
11. Two things immediately emerge from the said communication - Firstly, as per LD Arts College, the petitioner was automatically covered by the pension scheme. It was precisely therefore that the entire contribution in the CPF account with accumulated interest was deposited in the Government treasury. Secondly, that the Government never raised any objection to such amount being deposited nor did it point out that the petitioner was not covered by the pension option and that therefore, the employer should continue to contribute in the CPF scheme. An additional aspect that further emerges is that after the petitioner joined LD Arts College, the college management never contributed to his provident fund.
11.1 Thus, quite apart from the applicability of the scheme itself to the petitioner, in view of peculiar circumstances and the terms of the scheme, all sides involved in this issue treated the petitioner to have been covered by the pension scheme automatically without having to exercise a separate option for the said purpose. All sides acted accordingly. The College management Page 14 of 17 14 of 34 C/LPA/1213/2010 JUDGMENT deposited the employer's contribution in the CPF with the Government and discontinued further contribution to the provident fund of the petitioner. The Government also accepted such amount neither reversing nor raising any objection. Under the circumstances, it would be too late in a day for the Government now to contend that the petitioner was required to exercise an option and in absence of any such option having been exercised, would continue to be governed by the C.P.F scheme.
12. The issue can be looked from yet another angle. In the year 1993, when the pension scheme was made applicable to the fulltime teaching and non teaching staff of the nongovernment grantinaid Degree and Diploma Pharmacy Colleges in the State, the petitioner ceased to be an employee of the Pharmacy College. The scheme, of course, was made effective from 1 st April 1989. The same was promulgated only on 22nd March 1993. If after the scheme was framed, the petitioner had applied for being governed by such pension scheme, the obvious answer to him would have been that he is no longer an employee of Pharmacy college. Though, he was an employee on 1 st April 1989, he had not retired before 22nd March 1993. He is, therefore, not governed by such a scheme. Surely, the petitioner cannot be left in a suspended animation and not be governed by either of the two pension schemes. The entire situation has perhaps arisen because under the same management, he was shifted from Page 15 of 17 15 of 34 C/LPA/1213/2010 JUDGMENT one college to another. When he was in Pharmacy college, there was no pension scheme. Such a pension scheme was already made applicable to the Arts College. After he joined the Arts College, the pension scheme was introduced for fulltime teaching and nonteaching staff of the Pharmacy colleges. Whatever be the facts, this was not a case of simplicitor transfer of an employee from one department of a college to another, though under the same management. It was a case of recruitment in a new college - in the present case in LD Arts College. He having been recruited after 1st April 1982 in the said college, he would be governed by the pension scheme automatically. He did not have an option and the question of exercising one therefore did not arise. We notice that paragraph 6 of the said pension scheme dated 3rd July 1987 provides that in computing the length of qualifying service for pension under the scheme, all previous service whether temporary officiating or permanent either in one or more than one nongovernment aided colleges, University Department, Higher Secondary school who are being paid grantinaid from Government shall be taken into account. The petitioner's pensionery benefits are therefore required to be calculated on the basis of said provision.
13. In the result, LPA is allowed. The respondents; in particular respondents no. 3 & 4, are directed to treat the petitioner as covered under the Pension Scheme dated 3rd July 1987 and release his pensionery benefits on the basis of Page 16 of 17 16 of 34 C/LPA/1213/2010 JUDGMENT his service as early as possible and in any case latest by 31 st May 2014. If done by that date, the arrears of pension shall carry no interest. If not, entire arrears shall carry simple interest @ 9% per annum from 18th July 2002, the date on which the Tribunal passed the order or the date such benefits fell due, whichever is later, till the actual payment. Letters Patent Appeal stands disposed of accordingly. In view of disposal of L.P.A, Civil Application does not survive and is disposed of.
14. The petitioner is allowed direct service of this order on the said respondents latest by 20th February 2014.
{Akil Kureshi, J.}
{Ms. Sonia Gokani, J.}
Prakash*
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C/LPA/1213/2010 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS PATENT APPEAL No. 1213 of 2010
In
SPECIAL CIVIL APPLICATION No. 21986 of 2005
With
CIVIL APPLICATION No. 5557 of 2010
In
LETTERS PATENT APPEAL No. 1213 of 2010
FOR APPROVAL AND SIGNATURE:
HONOURABLE Mr. JUSTICE AKIL KURESHI
and
HONOURABLE Ms. JUSTICE SONIA GOKANI
================================================================ 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, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
================================================================ MAHESHBHAI H BHATT....Appellant(s) Versus SECRETARY & 4....Respondent(s) ================================================================ Appearance:
Mr VIRAT G POPAT, ADVOCATE for the Appellant(s) No. 1 Mrs VD NANAVATI, ADVOCATE for the Respondent(s) No. 5 Ms KJ BRAHMBHATT, ADVOCATE for the Respondent(s) No. 2 Mr JAIMIN GANDHI AGP for the Respondent(s) No. 1 , 3 4 ================================================================ CORAM: HONOURABLE Mr. JUSTICE AKIL KURESHI and HONOURABLE Ms. JUSTICE SONIA GOKANI Page 1 of 17
18 of 34 C/LPA/1213/2010 JUDGMENT 7th /10th February 2014 ORAL JUDGMENT (PER : HONOURABLE Mr. JUSTICE AKIL KURESHI) Appellantoriginal petitioner has challenged judgment of the learned Single Judge dated 3rd March 2010 passed in Special Civil Application No. 21986 of 2005. In the said petition, the petitioner had prayed for pensionery benefits on the basis of his service rendered in GrantinAid Colleges. The learned Single Judge dismissed the petition on various grounds. He has, therefore, filed this Letters Patent Appeal.
2. Facts relevant for our purpose are as under : 2.1 On 23rd December 1967, the appellantpetitioner was appointed as an Accountant in L.M College of Pharmacy run by the respondent no.1 Ahmedabad Education Society. On 9th November 1989, the petitioner was promoted to the post of Office Superintendent and was posted in L.D Arts Collegerespondent no.2 herein.
2.2 While in service on the said post, he was dismissed on 4th January 1995 by the said respondent no. 2College. The petitioner challenged his dismissal before the Gujarat Affiliated Colleges Services Tribunal Tribunal, Ahmedabad {"Tribunal" for short} by filing Application No. 2 of 1995. 2.3 On 26th June 2002, the petitioner and the respondents no. 1 & 2 entered into a compromise. A joint pursis was filed before the Tribunal, as per Page 2 of 17 19 of 34 C/LPA/1213/2010 JUDGMENT which, the College management would withdraw the dismissal order dated 4th January 1995 on the condition that the petitioner would opt for voluntary retirement from the said date. The Tribunal on 18th July 2002 passed an order in terms of such pursis and disposed of the application of the petitioner. In such order, the Tribunal provided as under : "3. During the pendency of this Application, the dispute is resolved within the parties and a settlement has been arrived at. As per this settlement, the applicant has accepted to voluntarily retire from the service of the respondent college with effect from 4th January 1995. Considering this date of 411995 as the date of voluntary retirement, the respondents no. 1 and 2 have shown willingness to give the retirement benefits to the applicant and to forward the bills of the applicant to which the applicant is entitled and as per the compromise, the applicant has deposited the key of vacant quarter before this Tribunal. Further, as per the terms of the settlement, the applicant has filed any other matter before any other Court, then in that case, he has to withdraw all such litigations from the Court.
4. So, as per the settlement, the applicant has taken voluntary retirement with effect from 4.1.1995 and has also deposited the key of the quarter which was in his possession.
5. In view of this, I hereby direct the respondents No. 1 and 2 to pay the amount of the benefits to the applicant within a period of four weeks from the date of receipt of this order. In case if the respondent no. 1 and 2 are required to forward the pay bill or any other bill of the applicant to the respondent no.5, then, it should be done so within a period of two weeks from the date of receipt of this order. The respondent no. 5 is also directed to sanction such bills within a period of three weeks from the date of receipt of the same from the management." 2.4 It may be noted that compromise pursis was not signed by any Government official. The Government was, however, a party in the proceeding Page 3 of 17 20 of 34 C/LPA/1213/2010 JUDGMENT before the Tribunal. When the Tribunal passed its order dated 18 th July 2002 accepting the compromise and giving consequential directions, Government Pleader was present and his appearance was also noted. 2.5 Since the petitioner had difficulty in implementation of the order, he once again approached the Tribunal by filing Application No. 11 of 2003 in which the Tribunal passed an interim order dated 9th July 2003 criticizing the conduct of the officers of the Higher Education department. On such application, Tribunal once again made further observations on 23rd April 2004. 2.6 Pending such proceeding before the Tribunal, the petitioner preferred Special Civil Application No. 21986 of 2005 and prayed for release of his pension. He agreed before the Court that he would withdraw the application from the Tribunal, which he ultimately did. On 19th May 2006, pending this petition, the Government passed a detailed speaking order dated 19th May 2006. In such order, it was held that the petitioner was required to give his option for switching over from Contributory Provident Fund Scheme ["CPF Scheme" for short] to the pension scheme. Since the petitioner had not exercised such an option, he continued in the CPF scheme and now, therefore, he cannot claim pension. The petitioner therefore amended the petition and challenged such order also. In such petition, the learned Single Judge passed its impugned judgment dated 3rd March 2010. He dismissed the petition mainly on two Page 4 of 17 21 of 34 C/LPA/1213/2010 JUDGMENT grounds - firstly, that the petitioner had not exercised his pension option though he was required to do so, and secondly, that the petitioner was seeking pension w.e.f 4th January 1995 and for which the writ petition was filed in the year 2005, and therefore, the same was highly belated.
3. Before adverting to the rival contentions, we may notice that till 9 th November 1989, when the petitioner was brought over from L.M Pharmacy College to L.D Arts College, there was no pension scheme applicable to the aided pharmacy colleges. In L.M Pharmacy College, therefore, the petitioner was covered by CPF Scheme without any option.
4. On 3rd July 1987, the Government issued a Resolution promulgating a pension scheme for the full time nonteaching staff of the affiliated and aided nonGovernment Arts, Science, Commerce and Education Colleges in the State with effect from 1st April 1982. Such pension scheme was applicable to those members of nonteaching staff of the said colleges who were in service as on 1st April 1982 and recruited thereafter. For the members of the existing staff recruited before 1.04.1982 and those of the employees, who had retired after 1st April 1982, but before the date of the G.R ie., 3rd July 1987, option was given whether to continue in CPF Scheme or switchover to the pension scheme. Those employees who had been recruited after 1st April 1982, there was no Page 5 of 17 22 of 34 C/LPA/1213/2010 JUDGMENT option and they were automatically governed by the pension scheme. 4.1 Relevant portion of the said Pension Scheme reads as under : "1. a] For the purpose of this scheme (1) A nonGovernment College includes nonGovernment affiliated Arts, Science, Commerce and B.Ed. Colleges receiving grantinaid and managed by the private body and affiliated with the Universities by the competent authority.
b] for the purpose of pensionable pay, pay means and includes :
1) Pay in the approved prescribed scale of pay;
2) Personal pay granted to save from loss of pay due to
revision of pay scale of due to pay fixation.
2. xx xx xx
3. i) Members of the existing staff recruited before
1.4.1982 and those staff who have retired on or after 1.4.1982 and prior to the date of issue of this resolution should exercise their option within the period of one year from the date of issue of this resolution either to continue in Contributory Provident Fund scheme or to come under this Scheme. The option once exercised shall be final.
The option should be exercised in writing in the form prescribed [Appendix A] and communicated to the Director of Higher Education. The members of the staff who do not exercise the option within stipulated period shall be deemed to have opted fro the retention of the benefit admissible to them before 4.4.1982. Where a member of the staff who was entitled to exercise an option in accordance with this Resolution died on any date on or from 1st April 1982 and on or before expiry of the date before Page 6 of 17 23 of 34 C/LPA/1213/2010 JUDGMENT which he had to exercise option without exercising it, his family may be given the benefit of these rules or may be allowed the benefit or CPF scheme, whichever is more favourable to them. The pension sanctioning authority should work out the benefits admissible under both the alternatives (ie., the CPF and the Revised Pension Rules, 1950) as admissible under this government resolution after taking into account the quantum of CPF as well as family pension and prepare pension papers accordingly with necessary sanction.
4. The members of the staff recruited on or after 1st April 1982 shall automatically be governed by this scheme. Such staff will not be allowed to opt for contributory provident fund scheme.
5. xx xx xx
6. In computing the length of qualifying service for pension under this scheme, all previous service whether temporary officiating or permanent either in one or more than one non Government aided colleges, University, Department, Higher Secondary School who are being paid GrantinAid from Government shall be taken into account. The period of break in service will not be considered as qualifying service ie., actual service rendered will be considered as qualifying services. 4.2 We may also notice that on 22nd March 1993, Government issued a resolution making pension scheme for the fulltime teaching and nonteaching staff of the nonGovernment Degree and Diploma Colleges in the State. This pension scheme was made applicable with effect from 1st April 1989. Similar Page 7 of 17 24 of 34 C/LPA/1213/2010 JUDGMENT options as in the G.R dated 3rd July 1989 were made available to the employees who were in service on 1st April 1989 and thereafter - whether to be retired in CPF scheme or switchover to the pension scheme.
4.3 On the basis of such facts, counsel for the appellant vehemently contended that the Government committed a serious error in rejecting the petitioner's request for pension. In L.D Arts College, the petitioner was a fresh recruit and therefore was automatically included in the pension scheme. He did not have to exercise any option. In fact, no such option was available to him. He further submitted that the learned Single Judge committed an error in holding that the petition was belated. In support of his contentions, counsel relied on the decision of Supreme Court in case of K. Narayanan v. State of Karnataka, reported in AIR 1994 SC 55, wherein, it was observed that the term "recruitment" includes promotion and deputation.
5. On the other hand, learned AGP Shri Gandhi supported the judgment of the learned Single Judge and submitted that the petitioner had not exercised pension option. He made a belated claim. The petition was, therefore, rightly rejected.
6. From the materials on record, it is clear to us that the appellant was entitled to his postretiral benefits. What these post retiral benefits include is a more complex question, to which we would devote more discussion later. At Page 8 of 17 25 of 34 C/LPA/1213/2010 JUDGMENT this stage, we may recall that the appellantpetitioner was at one stage dismissed from service by the employer ie., L.D Arts college management. This happened in the year 1995. He challenged his dismissal before the Tribunal. Before the Tribunal, the employee as well as the employer entered into a compromise. The employee offered to resign in lieu of his dismissal. The employer thereupon agreed to withdraw the order of dismissal. This is precisely what the parties recorded in their compromise pursis. In such pursis dated 26th June 2002, the parties jointly declared that the college management agreed to withdraw the order of dismissal on condition that the petitioner would opt for voluntary retirement from 4th January 1995 ie., the date of dismissal. It is also recorded that on the basis of such voluntary retirement, the management would prepare the papers for the petitioner to claim post retiral benefits. It was on this compromise pursis that the Tribunal passed its order dated 18th July 2002. The Tribunal accepted the compromise, allowed the parties to act accordingly and also directed the management to release the benefits of the petitioner within the time prescribed and in case, the management is required to forward such bills to the Government, it would do so forthwith and the Government would sanction such bills within the time prescribed.
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6.1 Though the Government was not a signatory to the compromise pursis
entered into between the petitioner and the college, it was a party to the proceedings before the Tribunal. As noted above, the Government Pleader was present when the order was passed by the Tribunal. In any case, such order was never challenged by the Government. Under the circumstances, the appellantpetitioner would be entitled to receive all the postretiral benefits as if he had retired voluntarily with effect from 4th January 1995.
7. Before tackling the central controversy, we may also clear one more doubt. Though canvassed before us by the learned AGP and also held by the learned Single Judge, we do not think that there was any delay on the part of the petitioner in filing the writ petition. It is true that the petition was filed in the year 2005. In such petition, prayer was for grant of pension with effect from 4th January 1995. This, however, does not mean that the petition was filed 10 years after the cause of action had arisen. We must not loose sight of the ground on which the petitioner's claim for pension arose. He had been dismissed from service on 4th January 1995. It was only in the year 2002 that he succeeded in getting the dismissal converted into one of voluntary retirement. Immediately thereupon, he took up the issue of his retirement benefits with the college management as well as the Government. We have noticed that he approached the Tribunal complaining of inaction on the part of the said Page 10 of 17 27 of 34 C/LPA/1213/2010 JUDGMENT respondents in implementing the Tribunal's directions. The Tribunal also issued further directions and in fact recorded its disapproval of the delay in implementing the directions. It was when this fresh application was pending before the Tribunal that the petitioner filed a writ petition before the High Court. It was only after the writ petition was filed that the Government conveyed to the petitioner on 19th May 2006 that the petitioner's request for pension cannot be granted. We see no delay on the part of the petitioner in pursuing his remedies.
8. This brings us to the central question whether the petitioner would be covered by the pension scheme without exercising option. His case, as we have noted is that having recruited in LD Arts College after 3 rd July 1987, he was automatically covered by the pension scheme. The stand of the Government is that he was not a fresh recruit and that therefore, in absence of his option, he would continue to be governed by the CPF scheme.
9. We have noticed the relevant provisions of the Pension Scheme of 3 rd July 1987. Such scheme was made applicable for the first time to the full time nonteaching staff of the affiliated and aided nongovernment Arts, Science, Commerce and Education Colleges in the State . The pension scheme was made effect from 1st April 1982. Those employees who were in service as on 1st April 1982 and continued in employment on the date the scheme was published and Page 11 of 17 28 of 34 C/LPA/1213/2010 JUDGMENT those who retired before 3rd July 1987 had to exercise their options. Those recruited on or after 1st April 1982 did not have to exercise any option. In fact, there was no option available to them. Per force, they would be governed by the pension scheme. In our opinion, the petitioner cannot be denied the benefit of this pension scheme only on the ground that he did not exercise the option. Our reasons are as follows 9.1 Firstly, the petitioner was not an employee of L.D Arts College on 3rd July 1987 when the scheme was framed. He was employed in L.M Pharmacy College, which was not covered by the pension scheme of 3 rd July 1987. On the date of formulation of the scheme, therefore, the petitioner not being a member of nonteaching staff of the affiliated and aided nongovernment Arts, Science, Commerce and Education College, such scheme did not cover his case. It was only when on promotion he was brought in the L.D Arts College by the management that his right to be covered by the said scheme accrued. So far as LD Arts college is concerned, therefore, he was recruited only on such date, when he was employed by the said college ie., 9th November 1989. If this be so, everything else falls in place. He would thus be an employee of the Arts College, which is an affiliated and aided nongovernment College as a fulltime nonteaching staff, only with effect from the said date. As per clause (4) of the Scheme, he being recruited after 1st day of April 1982, would be automatically Page 12 of 17 29 of 34 C/LPA/1213/2010 JUDGMENT governed by the Scheme. In fact, clause (4) specifically provides that such staff members would not be allowed to opt for contributory provident fund scheme. The issue can be looked at from a slightly different angle. On 3 rd July 1987, when the scheme was promulgated, if the petitioner had asked to be covered by the said pension scheme, the answer of the Government would obviously have been that he is not covered by the scheme, since he is not a member of nonteaching staff of the above mentioned colleges which were governed by the pension scheme. On such date, he would be told that he was an employee of a Pharmacy college, which did not have any pension scheme.
10. Quite apart from our interpretation of the terms of the scheme, this is precisely how the College management and by default even the Government treated his case to be covered. On 6th February 2003, LD Arts College wrote to the Director of Higher Education that the petitioner had worked in L.M Pharmacy College from 23rd November 1967 to 8th November 1989. The pension scheme was made applicable to Pharmacy colleges by a resolution of 22 nd March 1993 - though with effect from 1st April 1989. But, before the pension scheme was declared, the petitioner had already joined LD Arts College on 9th November 1989. Since the pension option had already been implemented in LD Arts College and which was automatically applicable to the petitioner, the employer's contribution in the Contributory Provident Fund Scheme for the Page 13 of 17 30 of 34 C/LPA/1213/2010 JUDGMENT services rendered in the Pharmacy College with interest which comes to Rs. 37,114/= has already been deposited in the Government treasury on 20th October 1992. To this communication, the Government never responded; did not object nor reversed the deposit of the amount made in the Government treasury.
11. Two things immediately emerge from the said communication - Firstly, as per LD Arts College, the petitioner was automatically covered by the pension scheme. It was precisely therefore that the entire contribution in the CPF account with accumulated interest was deposited in the Government treasury. Secondly, that the Government never raised any objection to such amount being deposited nor did it point out that the petitioner was not covered by the pension option and that therefore, the employer should continue to contribute in the CPF scheme. An additional aspect that further emerges is that after the petitioner joined LD Arts College, the college management never contributed to his provident fund.
11.1 Thus, quite apart from the applicability of the scheme itself to the petitioner, in view of peculiar circumstances and the terms of the scheme, all sides involved in this issue treated the petitioner to have been covered by the pension scheme automatically without having to exercise a separate option for the said purpose. All sides acted accordingly. The College management Page 14 of 17 31 of 34 C/LPA/1213/2010 JUDGMENT deposited the employer's contribution in the CPF with the Government and discontinued further contribution to the provident fund of the petitioner. The Government also accepted such amount neither reversing nor raising any objection. Under the circumstances, it would be too late in a day for the Government now to contend that the petitioner was required to exercise an option and in absence of any such option having been exercised, would continue to be governed by the C.P.F scheme.
12. The issue can be looked from yet another angle. In the year 1993, when the pension scheme was made applicable to the fulltime teaching and non teaching staff of the nongovernment grantinaid Degree and Diploma Pharmacy Colleges in the State, the petitioner ceased to be an employee of the Pharmacy College. The scheme, of course, was made effective from 1 st April 1989. The same was promulgated only on 22nd March 1993. If after the scheme was framed, the petitioner had applied for being governed by such pension scheme, the obvious answer to him would have been that he is no longer an employee of Pharmacy college. Though, he was an employee on 1 st April 1989, he had not retired before 22nd March 1993. He is, therefore, not governed by such a scheme. Surely, the petitioner cannot be left in a suspended animation and not be governed by either of the two pension schemes. The entire situation has perhaps arisen because under the same management, he was shifted from Page 15 of 17 32 of 34 C/LPA/1213/2010 JUDGMENT one college to another. When he was in Pharmacy college, there was no pension scheme. Such a pension scheme was already made applicable to the Arts College. After he joined the Arts College, the pension scheme was introduced for fulltime teaching and nonteaching staff of the Pharmacy colleges. Whatever be the facts, this was not a case of simplicitor transfer of an employee from one department of a college to another, though under the same management. It was a case of recruitment in a new college - in the present case in LD Arts College. He having been recruited after 1st April 1982 in the said college, he would be governed by the pension scheme automatically. He did not have an option and the question of exercising one therefore did not arise. We notice that paragraph 6 of the said pension scheme dated 3rd July 1987 provides that in computing the length of qualifying service for pension under the scheme, all previous service whether temporary officiating or permanent either in one or more than one nongovernment aided colleges, University Department, Higher Secondary school who are being paid grantinaid from Government shall be taken into account. The petitioner's pensionery benefits are therefore required to be calculated on the basis of said provision.
13. In the result, LPA is allowed. The respondents; in particular respondents no. 3 & 4, are directed to treat the petitioner as covered under the Pension Scheme dated 3rd July 1987 and release his pensionery benefits on the basis of Page 16 of 17 33 of 34 C/LPA/1213/2010 JUDGMENT his service as early as possible and in any case latest by 31 st May 2014. If done by that date, the arrears of pension shall carry no interest. If not, entire arrears shall carry simple interest @ 9% per annum from 18th July 2002, the date on which the Tribunal passed the order or the date such benefits fell due, whichever is later, till the actual payment. Letters Patent Appeal stands disposed of accordingly. In view of disposal of L.P.A, Civil Application does not survive and is disposed of.
14. The petitioner is allowed direct service of this order on the said respondents latest by 20th February 2014.
{Akil Kureshi, J.} {Ms. Sonia Gokani, J.} Prakash* Page 17 of 17 34 of 34