Krishna Narayana Iyer vs State Of Gujarat on 4 August, 2022

[Cites 29, Cited by 0]

Gujarat High Court

Krishna Narayana Iyer vs State Of Gujarat on 4 August, 2022

Bench: Biren Vaishnav

    C/SCA/20385/2019                               CAV JUDGMENT DATED: 04/08/2022




               IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                R/SPECIAL CIVIL APPLICATION NO. 20385 of 2019

                                     With

                R/SPECIAL CIVIL APPLICATION NO. 20394 of 2019


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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                          KRISHNA NARAYANA IYER
                                  Versus
                            STATE OF GUJARAT
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Appearance:
MR MEET A SHAH(9933) for the Petitioner(s) No. 1
MR UTKARSH SHARMA, AGP for the Respondent(s) No. 1,3
MR AR THACKER(888) for the Respondent(s) No. 4
NOTICE SERVED for the Respondent(s) No. 1,2,3
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    CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV

                               Date : 04/08/2022

                               CAV JUDGMENT

1. Retired employees, two in number, of the teaching Page 1 of 121 Downloaded on : Fri Aug 05 21:09:47 IST 2022 C/SCA/20385/2019 CAV JUDGMENT DATED: 04/08/2022 staff in the Saurashtra University have prayed for the following reliesfs:

SPECIAL CIVIL APPLICATION NO. 20385 OF 2019 "B. This Hon'ble Court may be pleased to quash and set aside the respondent's action and inaction in not considering the case of the petitioner for pension by passing appropriate orders declaring him to be entitled to receive pension and further be pleased to declare that the petitioner's recruitment and appointment as Professor with effect from 15.06.1987 is fresh recruitment and therefore, he is entitled to pension as per the provisions of G.R. dated 15.10.1984 and further be pleased to direct the respondent to grant pension to the petitioner forthwith by considering the service rendered by him by issuing writ in the nature of mandamus or certiorari or any other appropriate writ, order or direction so deemed fit and proper;

C. This Hon'ble Court may be pleased to direct the respondent authorities to give benefits of GPF scheme by transferring account of the petitioner to GPF and further to give benefits of pension scheme under Statute 219 of the Saurashtra University Act within 3 months from the date of order and further be pleased to direct the respondent authorities to start monthly pension immediately to serve the purpose of justice;

D. This Hon'ble Court may be pleased to issue a Page 2 of 121 Downloaded on : Fri Aug 05 21:09:47 IST 2022 C/SCA/20385/2019 CAV JUDGMENT DATED: 04/08/2022 writ in the nature of mandamus or any other appropriate writ order or direction, directing the respondent to pay all pensionary benefits to the petitioner with 18% interest p.a. with effect from the date he retired;

E. This Hon'ble Court may be pleased to issue a writ of mandamus and/or certiorari or a writ in the nature of mandamus and/or certiorari or any other appropriate writ, order or directions to the respondents to approve the option form for pension submitted by the petitioner and to release all the pensionary benefits to the petitioner;

SPECIAL CIVIL APPLICATION NO. 20394 OF 2019 "B. This Hon'ble Court may be pleased to quash and set aside the respondent's action and inaction in not considering the case of the petitioner for pension by passing appropriate orders declaring him to be entitled to receive pension and further be pleased to declare that the petitioner's recruitment and appointment as Reader and Professor with effect from 19.10.1984 and 21.02.1995 is fresh recruitment, therefore, he is entitled to pension as per the provisions of G.R. dated 15.10.1984 and further be pleased to direct the respondent to grant pension to the petitioner forthwith by considering the service rendered by him by issuing writ in the nature of mandamus or certiorari or any other appropriate writ, order or direction so deemed fit and proper;

C. This Hon'ble Court may be pleased to direct Page 3 of 121 Downloaded on : Fri Aug 05 21:09:47 IST 2022 C/SCA/20385/2019 CAV JUDGMENT DATED: 04/08/2022 the respondent authorities to give benefits of GPF scheme by transferring account of the petitioner to GPF and further to give benefits of pension scheme under Statute 219 of the Saurashtra University Act within 3 months from the date of order and further be pleased to direct the respondent authorities to start monthly pension immediately to serve the purpose of justice;

D. This Hon'ble Court may be pleased to issue a writ in the nature of mandamus or any other appropriate writ order or direction, directing the respondent to pay all pensionary benefits to the petitioner with 18% interest p.a. with effect from the date he retired;

2. The petitioner of Special Civil Application No. 20385 of 2019, Mr. Krishna Narayana Iyer was appointed as a Reader by the Saurashtra University on 19.12.1978.

Thereafter, he was promoted as a Professor in Physics vide order dated 30.09.1988 with effect from 15.06.1987.

It is the case of the petitioner that he was promoted as a Page 4 of 121 Downloaded on : Fri Aug 05 21:09:47 IST 2022 C/SCA/20385/2019 CAV JUDGMENT DATED: 04/08/2022 Professor under the Merit Promotion Scheme of the University Grants Commission. He retired on superannuation with effect from 31.08.2010 after having rendered 31 years of service with the Saurashtra University.

2.1 The petitioner of Special Civil Application No. 20394 of 2019, Bharat Jaydevbhai Mehta was appointed as a Demonstrator on 13.07.1970 with Sir P.P. Institute of Science run and managed by the Saurashtra University, presently run and governed by the Bhavnagar University.

He served as a Lecturer in the said college from 1972 to 1979 vide orders dated 20.06.1972 and 30.05.1979 respectively. By an order dated 19.10.1984, the petitioner was promoted as a Reader and vide order dated 21.02.1995, he was promoted as Professor. The promotion was based on the Merit Promotion Scheme after having considered his records by the duly constituted selection committee. He retired on superannuation on 14.06.2006.

2.2 Both the petitioners were governed by the CPF Page 5 of 121 Downloaded on : Fri Aug 05 21:09:47 IST 2022 C/SCA/20385/2019 CAV JUDGMENT DATED: 04/08/2022 scheme at the relevant time when they retired from service.

2.3 For the purposes of this judgement, since the issues are common, facts of Special Civil Application No. 20394 of 2019 shall be considered.

2.4 The dates of joining and service details have been set out hereinabove. It is the case of the petitioner that prior to 1982 he was under the CPF scheme. The State Government by a resolution dated 15.10.1984 introduced a pension scheme for those who had been appointed after 01.04.1982 and for those who had been appointed prior to 01.04.1982. Those who were appointed prior to 01.04.1982 had to give an option to opt for the pension scheme. The petitioner did not opt for the pension scheme. It is his case that the scheme was not properly advertised. Since the petitioner was promoted on 19.10.1984, it is his case that he should have been treated to have been recruited and therefore automatically governed by the pension scheme.

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C/SCA/20385/2019 CAV JUDGMENT DATED: 04/08/2022 2.5 In the year 1998, the State Government again provided for an opportunity to those who had been appointed prior to 01.04.1982 to give an option within 12 months to turn over to the pension scheme. Once again on 17.09.1991, an opportunity was provided for coming over to the pension scheme. The case of the petitioner was that these resolutions were not circulated between the employee of the respondent university and therefore the petitioner and others who wanted to opt for pension scheme could not submit their options within time prescribed by the government resolutions from time to time especially the resolution dated 17.09.1991. It is the case of the petitioner that he came to know about the resolution in the year 1994 and requested the university to give him a fair chance.

2.6 On 26.11.1994, the Saurashtra University therefore resolved that they will accept the option of such retired employees subject to approval of the government. The respondent - Saurashtra University wrote a letter to the Commissioner of Higher Education on 26.05.1995 requesting the government to accept the option forms of Page 7 of 121 Downloaded on : Fri Aug 05 21:09:47 IST 2022 C/SCA/20385/2019 CAV JUDGMENT DATED: 04/08/2022 the employees. No response was received from the State Government, however, on 04.01.2005, the State did not accept the request of the employees including that of the petitioner to accept the option forms.

2.7 In the interregnum, the Saurashtra University amended the Statute - 219 and the Governor gave assent to it and a circular was therefore issued on 05.07.2004.

By virtue of the amended statute the University decided that the employees of the teaching staff who had been appointed prior to 01.04.1982 and wanted to opt for the pension scheme shall be allowed to submit an option form within six months from the date of assent. The petitioner accordingly submitted an option form on 20.12.2004. It was this option form that was returned by the government by the communication of 04/05.01.2005.

The petitioner was informed of this communication.

2.8 The government then passed a resolution dated 07.01.2004 taking a policy decision as three opportunities were given to the employees it was not possible to accept further opportunities of granting an option as the same Page 8 of 121 Downloaded on : Fri Aug 05 21:09:47 IST 2022 C/SCA/20385/2019 CAV JUDGMENT DATED: 04/08/2022 would result into financial burden to the government.

Representations were made by the petitioner to the State through the Saurashtra University to reconsider its proposal and accept the option forms of such petitioners.

Special Civil Applications No. 23557 of 2007 and allied matters were filed by the petitioner and other similarly situated employees challenging the inaction of the government that inspite of inviting option forms they were deciding the reconsidered question of options. The court by order dated 13.09.2007 disposed of the petitions directing the state to reconsider the representations of the petitioners sympathetically in light of the decisions cited in the order dated 13.09.2007. By the communication dated 04.05.2012, the Commissioner of Higher Education addressed a letter to the Education Department opining that since the option forms of the teaching staff were submitted through the respondent university within time as prescribed by statute 219 the government resolution dated 07.01.2004 would not be applicable and if the option forms of the four employees including the petitioner is not accepted it will cause Page 9 of 121 Downloaded on : Fri Aug 05 21:09:47 IST 2022 C/SCA/20385/2019 CAV JUDGMENT DATED: 04/08/2022 injustice to such employees. A positive opinion was therefore given by the Commissioner of Higher Education that the option forms of these employees be accepted.

No action was taken by the respondent Education Department till such time and therefore the petitioner was constrained to file the present petition.

3. Mr. Meet Shah, learned advocate appearing for the petitioners would submit that the petitioners could not submit their forms for option due to the negligence on the part of the university as the resolutions were not circulated. He would further submit that the government failed to appreciate that Statute 219 of the Saurashtra University categorically passed the resolution which received the assent of the Governor and therefore the department in light of the opinion of the Commissioner of Higher Education dated 04.05.2012 should have approved the pension forms of the petitioners. The resolution dated 07.01.2004 talks about the negligence on the part of the respondent university and mistakes caused to such option forms then submitted which was not the case in the present scenario.

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C/SCA/20385/2019 CAV JUDGMENT DATED: 04/08/2022 3.1 Mr. Shah would further submit that the issue of the pension scheme and its entitlement vis-a-vis the petitioners has now been settled by the Division Bench of this Court vide judgement dated 02.05.2019 rendered in Letters Patent Appeal No. 2259 of 2017 in the case of State of Gujarat vs. Kalhans Harial Patel wherein the court specifically held that like in the case of the petitioners when they were promoted from Reader to Professor, it was in the nature of direct selection and therefore as per Clause-4 of the Government Resolution dated 01.04.1982, the petitioners would be entitled automatically to be included in the pension scheme. He would submit that the Division Bench decision had set out various other judgments which were considered by this court specifically interpreting Clause-4 of the resolution where it was held that the pension scheme was automatically applicable and therefore the stand of the respondents that the petitioners are not entitled to pension is misconceived.

4. Mr. Utkarsh Sharma, learned AGP would vehemently Page 11 of 121 Downloaded on : Fri Aug 05 21:09:47 IST 2022 C/SCA/20385/2019 CAV JUDGMENT DATED: 04/08/2022 oppose granting relief to the petitioners on the following grounds:

(i) The petitioners had retired in the years 2006 and 2010 respectively. For 13 and 9 years respectively, the petitioners did not enforce their rights for approaching this court and therefore they can be called as fence sitters.

(ii) The action and omission on the part of the petitioners amounted to voluntarily giving up their rights. Merely because of a change in law and the benefit of the judgement being given to the petitioners in the Letters Patent Appeal would not automatically entitle the petitioners to the benefit of the judgement.

(iii) Admittedly, in accordance with clause 3 of the Government Resolution dated 15.10.1984 the petitioners ought to have filled in their option forms within the time limit stipulated in the resolution dated 15.10.1984 with the subsequent extensions Page 12 of 121 Downloaded on : Fri Aug 05 21:09:47 IST 2022 C/SCA/20385/2019 CAV JUDGMENT DATED: 04/08/2022 given by the resolutions of 1988 and 1991. Having failed to do so, it is not open for the petitioners now because they having out-run with their funds of CPF and finding pension more beneficial to plead for the benefits of pension.

(iv) The appointment orders issued to the petitioners from time to time clearly indicated that the petitioners were being governed by the benefit of the CPF scheme and the gratuity rules of the university which clearly pointed out that the petitioners had accepted till they retired on superannuation the benefit of CPF and having accepted such amount it is not open for them to now turn around and pray otherwise. The resolution dated 15.10.1984 gave one year which time limit was extended by a resolution of 10.01.1986 to 31.03.1986. By a resolution dated 11.10.1988 the time was extended by three months and even thereafter two months in 1991. Even thereafter now after 13 and 6 years respectively after their retirement it is not open for them to claim the Page 13 of 121 Downloaded on : Fri Aug 05 21:09:47 IST 2022 C/SCA/20385/2019 CAV JUDGMENT DATED: 04/08/2022 benefit of the pension scheme. He would rely on the decision of the Apex Court in the case of Rajasthan Rajya Vidyut Vitran Nigam Limited vs. Dwarka Prasad Koolwal & Others [(2015) 12 SCC 51].

He would also rely on a decision in the case of Chairman/Managing Director, U.P Power Corporation Ltd. & Others vs. Ram Gopal [2020 SCC OnLine 101] and submit that matters pertaining to the same issue are pending consdieration before the Apex Court.

5. Mr. Shivang Thacker, learned advocate appearing for the Saurashtra University would submit that the petitioners are not entitled to pension as they are governed by the CPF scheme. He would submit that the appeal judgement of which the petitioners are claiming benefit was decided on 02.05.2019 which is not applicable to the employees of the Saurashtra University.

The same is prospective and therefore the petitioners cannot be given such benefit. The petitioners have remained silent.

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C/SCA/20385/2019 CAV JUDGMENT DATED: 04/08/2022 5.1 Mr. Thacker, learned advocate would further oppose the petitions on the ground of availability of alternative remedy under Section 11 of the Gujarat Universities Tribunal Act, 1983 subsequently repealed by the Gujarat Education Institutions Services Tribunal Act, 2006 which defines the term 'employees'. In support of his submission he would rely on a decision in the case of Mahavirsinh Narpatsinh Jadeja vs. Saurashtra University [2021(1) GLR 714].

5.2 Mr. Thacker would reiterate in submitting that when the orders of appointment on promotion categorically had a condition in their orders that the petitioners would be governed by the benefit of CPF scheme and gratuity from the year 1984 till date no objections were raised and having accepted the terms of appointment it is not now open for them to turn around and claim pension. He would rely on the decision in Special Civil Application No. 3832 of 2004 which was dismissed on the ground of alternative remedy. The appeal was disposed of with a liberty to approach the State Government. The State Government had by an order subsequently rejected the Page 15 of 121 Downloaded on : Fri Aug 05 21:09:47 IST 2022 C/SCA/20385/2019 CAV JUDGMENT DATED: 04/08/2022 cases of the petitioners for grant of pension which is a subject matter of challenge in petitions pending before a coordinate bench.

6. Considering the issues on hand whether the petitioners were engaged with the University since their inception are entitled to the benefits of the pension scheme as per the resolution dated 15.10.1984 has been a matter of litigation which this court in its decision dated 29.06.2017 in Special Civil Application No. 3250 of 2009 and allied matters has opined that the litigation had a chequered history. It was in context of a group of petitions filed by the retired employees of the Universities and Colleges who had asked for similar prayers of a declaration that the petitioners are entitled to grant of pension under the resolution dated 15.10.1984. The court then had considered several serious litigation on the issue on hand extensively quoting the judgment wherein the High Court considering the questions which were earlier decided had held after interpreting clauses 3, 4 and 6 of the Government Resolution dated 15.10.1984 that such petitioners were entitled to the Page 16 of 121 Downloaded on : Fri Aug 05 21:09:47 IST 2022 C/SCA/20385/2019 CAV JUDGMENT DATED: 04/08/2022 benefit of the pension scheme from the date of their respective retirement. Para 16 of the decision of this court in Special Civil Application No. 3250 of 2009 in the case of Patel Mathurbhai Gopalbhai and Others vs. State of Gujarat and Others needs to be reproduced and the same reads as under:

"16. This litigation has quite a checkered history. I take notice of the fact that the issue, as on date, is pending before the Supreme Court. All these petitions were heard last year and the judgment was reserved in the hope that in the interregnum period some order may be passed by the Supreme Court on the subject. However, it appears that the matter is still pending before the Supreme Court. It is the State Government who has filed the Special Leave to Appeal (C ) No.22438 of 2016 against the judgment and order dated 02.07.2015 passed by a Division Bench in the LPA No.981 of 2015. There is one another petition filed by the State for the Special Leave to Appeal No.15392 of 2016 against the judgment passed by this Court in LPA No.982 of 2015 dated 02.07.2015. The order passed by the Supreme Court dated 02.09.2016 reads thus;

"Delay condoned.

Leave granted.

There shall be stay of operation of the impugned judgment until further orders."

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7. It will be in the fitness of things to state that even before the coordinate bench of this court in the judgement aforesaid a specific objection was raised by the State Government that the present petitions opting for pension scheme are essentially an afterthought delayed and now that the benefit of pension scheme is available and the CPF has lost the interest rate with passage of time, the petitioners are asking the benefit of pension scheme. One of the alternative submissions that was also made was that the issue of whether the petitioners are entitled to the pension scheme is pending at large before the Division Bench. Moreover, it was also submitted that the petitioners' grievance is grossly belated and they are not entitled to the benefit of pension scheme. After considering these issues in para 30 the court held as under:

"30. The issue, being one of pension, deserves to be considered at the end of the State Government sympathetically in favour of the petitioners. I am conscious of the fact that the claim of the petitioners to switch over to the pension scheme is at a belated stage, but at the same time, payment of pension is not a grace but a right of the employee upon completion of the qualifying service. In the peculiar set of Page 18 of 121 Downloaded on : Fri Aug 05 21:09:47 IST 2022 C/SCA/20385/2019 CAV JUDGMENT DATED: 04/08/2022 circumstances and special facts, the exercise of option to switch over to the pension scheme, in my opinion, should not be thwarted."

7.1 Finally, this court in paras 32 and 33 of the decision, which reads as under opined that in light of the decision of Apex Court in the case of Union of India and Others vs. D.R.R. Sastri [(1997)1 SCC 514], the delay as propounded in the situation in the judgement of the Apex Court, a person can be allowed to exercise an option even long after the expiry of the prescribed time limit so that the substantive right of claiming pension is not defeated by a processual provision.

"32. In Union of India and Ors. v. D.R.R. Sastri, 1997(1) SCC 514, there was delay in exercising the option for the Liberalised Pension Scheme in lieu of the C.P.F., which was considered factually to disentitle to pension. In that case, the respondent, a railway employee, opted for the Contributory Provident Fund, and thereafter, going on deputation to Heavy Engineering Corporation and resigning from the Railways after 22 long years of service and getting absorbed in the Corporation; when, subsequently, Liberalised Pension Scheme came to be introduced with retrospective effect from a date prior to the date of his resignation Page 19 of 121 Downloaded on : Fri Aug 05 21:09:47 IST 2022 C/SCA/20385/2019 CAV JUDGMENT DATED: 04/08/2022 from the Railways, the Railway Board, by its letter dated 22-7-1974, enabling all the members of the C.P.F. to opt for this Scheme, directed the General Manager to bring the same to the notice of all the retired Railway servants. However, the respondent was not informed of the Scheme and retired from the Corporation without any pension, as the Corporation had no pensionable scheme. In such circumstances, despite the expiry of the time specified by the Railways for opting for the Liberalised Pension Scheme, the respondent's right to claim pension of Liberalised Scheme, despite delay, was upheld on refunding the amount he had already received. It is, therefore, very clear from the proposition of the law expounded in the said decision that in such a situation, a person can be allowed to exercise option even long after the expiry of the prescribed time-limit so that the substantive right to claim pension is not defeated by the processual provision. The facts of the present petition, even if it is held that there is a delay in exercising the option, then, also, it is fully covered by the pronouncement of the Hon'ble Supreme Court.

33. In view of the above, all the petitions succeed in part and are hereby partly allowed. The respondent authority is directed to reconsider the grant of the benefit of the pension scheme to all the petitioners in view of th the Government Resolution dated 15 October, 1984 from the date of their respective retirement along with the interest at the rate of 9% per annum on the condition that all the Page 20 of 121 Downloaded on : Fri Aug 05 21:09:47 IST 2022 C/SCA/20385/2019 CAV JUDGMENT DATED: 04/08/2022 petitioners shall refund/repay the amount of C.P.F at the rate of 12% to the authority concerned. Let this exercise be undertaken by the State Government at the earliest bearing in mind the observations made by this Court and pass a fresh order within a period of three months from the date of the receipt of the writ of this judgment and order."

7.2 What is to be noted while quoting the decisions hereinabove is that the coordinate bench had considered the decision in Special Civil Application No. 7173 of 2012 which also was carried in appeal by the State by way of Letters Patent Appeal No. 981 of 2015. The Division Bench of this court after posing three questions has set out in para 6 held as under:

"[6.0] Heard learned advocates appearing for respective parties at length.

Having heard learned advocates appearing for respective parties, the following three questions are posed for consideration of this Court.

1.Whether an employee like the original petitioner who has been appointed after the G.R. dated 15.10.1984 can be denied the pension / pensionary benefits under the G.R. dated 15.10.1984 on the ground that he had not exercised the option for GPF?

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2.Whether past services of such an employee is required to be counted for qualifying services for pension?

3.Whether the past services is required to be counted / considered for fixation of the pension or for qualifying services for pension only?

[6.1] While considering the aforesaid questions/ issues, the G.R. dated 15.10.1984 is required to be considered which reads as under:

Pension scheme for the teaching staff in the non Govt. affiliated college and in the Universities Government of Gujarat, Education Department Resolution No.NGC-1582/9505(84)-KH, Sachivalaya, Gandhinagar, th Dated the 15 October, 1984 RESOLUTION:-

The question of application of pension, gratuity and other retirement benefits to the members of teaching staff of the university under Education Department and in affiliated and aided non-government colleges in Gujarat was under consideration of the Government for some time past. After careful consideration, Government is now pleased to direct that the pension, gratuity and other retirement benefits admissible to the Gujarat State Government servants under the Revised Pension Rules, 1950 contained in the Appendix XIV-C to BCSR Rules, Volume II, as amended from time to time, the family pensions scheme sanctioned in Page 22 of 121 Downloaded on : Fri Aug 05 21:09:47 IST 2022 C/SCA/20385/2019 CAV JUDGMENT DATED: 04/08/2022 Government Resolution, Finance Department No.FPS-1071-J dated 1.1.72 as amended from time to time should be made applicable to the full time teaching staff of the universities under the Education Department and in affiliated and aided non-government Arts, Science, Commerce and Education Colleges in this State with effect from 1.4.1982

1.a) for the purpose of this scheme (1) University means universities under Education Departments established by the Acts.

(2) A non-Government college includes non-Government affiliated Arts, Science, Commerce and B.Ed. colleges receiving grant-in-aid and managed by the private body and affiliated with the universities by the competent authority, as such for the purpose of grant-in-aid from State Government.

b) for the purpose of pensionable pay, pay means and includes:

(1) pay in the approved prescribed scale of pay,

2.additional pay for additional academic and professional qualification admissible under the orders issued by Government from time to time, (3) personal pay granted to save from less to pay due to revision of pay scale or due to pay fixation.

Note:- If a member of staff during the last three years of his service has been absent from duty Page 23 of 121 Downloaded on : Fri Aug 05 21:09:47 IST 2022 C/SCA/20385/2019 CAV JUDGMENT DATED: 04/08/2022 on leave with allowances, his pay for that period should be taken what it would have been, had he been on duty at any time during the first six months of period of leave. Provided that the benefit of higher officiating or temporary pay should be given only if it is certified that member of the staff concerned would have continued to hold the higher officiating or temporary appointment but for his proceeding on leave.

c) Teaching staff means a full time professor, Asstt. Professor, reader, lecturers in universities and Principal, Lecturer, Tutor, demonstrator and also physical training instructors, Librarians etc. working in non- Government aided colleges who are receiving University Grants Commission scales.

2.The Director of Higher Education or the officer authorized by him shall be competent authority to sanction pension, gratuity, family pension and other retirement benefits admissible under the scheme.

3.i) Existing staff retired before 1.4.82 and these members of the staff who have retired on or after 1.4.82 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.

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C/SCA/20385/2019 CAV JUDGMENT DATED: 04/08/2022 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 for the retention of the benefit admissible to them before 1.4.82.

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 1.4.82 and on or before expiry of the date before 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 favorable to them. The pension sanctioning authority should work out the benefits admissible under both the alternatives (i.e. 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 paper accordingly with necessary sanctions.

ii) The member of the staff who have opted for the pension scheme shall join GPF scheme concurrently as in the case of Government employees and their share in the GPF together with interest thereon shall be credited to their GPF account. The general provident fund shall be kept with Government and on retirement, the amount shall be paid to them in accordance with the rules.

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iii) The amount of contribution paid by the University or management of Non-Government aided colleges and institutions mentioned in para 6 of this resolution together with interest thereon standing at the credit of the member of teaching staff opting for pension scheme, after they exercise their option for pension scheme should be credited to the State Government within a period of two months under the head of account XLVIII Contribution and Recoveries towards pension and other retirement benefit after the correctness of amount is verified and certified by the Director of Higher Education.

iv) Where the members of staff eligible for the scheme have retired/resigned after 1.4.82 to the date of the issue of this Government Resolution and who have received their CPF amount including the management or university contribution and Governments share together with the interest thereon desires to opt pension scheme as admissible under this Government Resolution should execute undertaking as in Appendix B alongwith an option as provided under this scheme. In such cases the amount received on account of Universities Managements contribution, Governments share and interest earned thereon by the member shall be adjusted against the arrears of pension and amount of D.C.R.G. admissible under this scheme. If the amount so received exceeds the amount of arrears pension / DCRG payable to him, the balance amount shall be paid by him immediately in the Government Treasury.

2.The member of the staff recruited on st or after 1 April, 1982 shall automatically be governed by this Page 26 of 121 Downloaded on : Fri Aug 05 21:09:47 IST 2022 C/SCA/20385/2019 CAV JUDGMENT DATED: 04/08/2022 scheme. Such staff will not be allowed to opt for contributory provident fund scheme.

3.The members of teaching staff who have completed five yeas of continuous service will be treated as holding permanent post substantively for the purpose of this scheme.

4.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 Grant-in-aid from Government shall be taken into account. The period of break in service will not be considered as qualifying service i.e. actual service rendered will be considered as qualifying services.

5.The general provisions of chapter XI of BCSR Rules Vol.I will be applicable in granting retirement benefits to the member of the staff member of the staff under this scheme except where otherwise provided.

6.The age of superannuation retirement for the existing staff covered under the scheme shall be 60 (sixty) years. The age of superannuation retirement for the staff that may be recruited on and from 1.10.1984 shall be 58 years for which universities should be requested to take necessary action to amend the relevant statutres / Rules Regulations accordingly.

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7.The benefit of the revised rates of temporary increase in pension and minimum pension sanctioned to Government Pensioner under G.R.F.D. No.NVN-1082-1074-P dated 1.4.1982 as amendeu /amplified/modified from time to time shall be extended to the members of the staff who are eligible and opt the pension scheme under this Government Resolution.

8.The employee who got the retirement benefit of C.P.F. and gratuity etc. for the services rendered by him in earlier institutions before joining the other institution shall have to be refunded and credited to Government.

9.The pension papers of the members of the staff entitled to pension, gratuity etc. under the scheme should be prepared in case of college staff by the principal of the college on the basis of the service record maintained by the college concerned. The pension papers of the members of the staff entitled to this scheme in university should be prepared by the Registrar of the university on the basis of the record maintained by the university. The entries in the service books of the staff will be made and attested by the principal of the college and in case of principal, by the management of the college concerned and the Registrar in case of university staff and such entries should be verified by the Director of Higher Education or the officer authorized by him and a Page 28 of 121 Downloaded on : Fri Aug 05 21:09:47 IST 2022 C/SCA/20385/2019 CAV JUDGMENT DATED: 04/08/2022 certificate of verification recorded in the service book. The Director of Higher Education should sanction the pension gratuity etc. and forward the pension papers duly completed to the Director of Accounts and Treasuries. The pension gratuity etc. so sanctioned will be payable from the Government Treasuries. The Director of Accounts and Treasuries will pre-audit the claim and issue a pension payment order and/ or gratuity payment order on the Treasury, from which the pensioner desires to draw pension gratuity etc. under intimation to Director of Higher Education.

10.The grant of anticipatory pension or gratuity to such members of the staff as are governed by the scheme shall be regulated as per Government Resolution, Finance Department th No.PEN-1069-1874-J, dated 17 June, 1969 and BCSR Rule 214 and pension and/or gratuity will be authorized / drawn and remitted or disbursed by the pension sanctioning authorities.

11.The expenditure on account of payment of pension under the scheme will be debited to the head

266...Pension and other retirement benefits

12.This issue with the concurrence of the Finance Department vide its note dated 27.9.1984 on this departments file of even number.

By order and in the name of the Governor of Gujarat.

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C/SCA/20385/2019 CAV JUDGMENT DATED: 04/08/2022 K.B. Makwana Under Secretary to Government of Gujarat, Education Department From the aforesaid it appears that prior to 01.04.1982 the GPF Scheme / Pension Scheme and other retirement benefits admissible under the Gujarat State Government Servants was not applicable / admissible to the full time teaching staff of the University under the Education Department and in affiliated and aided non- government Arts, Science and Commerce Colleges in the State. By G.R. dated 15.10.1984, the State Government came out with a pension scheme for the teaching staff in the non-government affiliated colleges in the universities and by the G.R. dated 15.10.1984, which was made effective from 01.04.1982, the pension, gratuity and other retiral benefits admissible to the Gujarat State Government servants under the Revised Pension Rules, 1950 contained in Appendix XIV-C to BCSR Rules, Volumes II, as amended from time to time, the family pensions scheme sanctioned in Government Resolution, Finance Department No.FPS-1071-J dated 01.01.1972 as amended from time to time is made applicable to the full time teaching staff of the universities under the Education Department and in affiliated and aided non-Government Arts, Science, Commerce and Education Colleges in this State with effect from 01.04.1982. As noted hereinabove, the said scheme is made Page 30 of 121 Downloaded on : Fri Aug 05 21:09:47 IST 2022 C/SCA/20385/2019 CAV JUDGMENT DATED: 04/08/2022 applicable with effect from 01.04.1982. If Clause 3 is perused, two types of employees were to exercise option viz. (1) members of the existing staff recruited before 01.04.1982 and (2) those staff who have retired on or after 01.04.1982 and prior to the date of issue of the G.R. dated 15.10.1984, even the period of one year from the above date, whether to continue in CPF or to go under the pension scheme and such option was to be final. The reason for giving such option by the aforesaid two types of employees was because at the time and prior to the issuance of the G.R. dated 15.10.1984 which was made effective from 01.04.1982, the employee had no opportunity whatsoever, whether to opt for pension or for any other scheme and/or such employee should be governed by the prevailing system of CPF. Clause No.4 of the G.R. dated 15.10.1984 makes it very much clear that member of staff recruited on or after 01.04.1982 shall automatically be governed by the said scheme and such staff will not be allowed to opt for CPF. Therefore, all the employees recruited on or after 01.04.1982 shall automatically be governed by the Pension Scheme under the G.R. dated 15.10.1984 and only those employees who were recruited prior to 01.04.1982, meaning thereby the existing staff recruited before 01.04.1982 and those who have retired on or after 01.04.1982, but prior to the date of the issuance of the G.R. dated 15.10.1984 were required to exercise the option as to whether they would like to continue in CPF or to go under the pension scheme as per the G.R. dated 15.10.1984. Under the circumstances, as such the employee Page 31 of 121 Downloaded on : Fri Aug 05 21:09:47 IST 2022 C/SCA/20385/2019 CAV JUDGMENT DATED: 04/08/2022 who was recruited after 01.04.1982 was not required to exercise any option as there was no such need under the G.R. dated 15.10.1984 to exercise such option by such employees who are recruited after 01.04.1982. Therefore, the contention of learned Government Pleader that the original petitioner was required to exercise option for pension and as at the time of joining original respondent No.4 College i.e. in the year 1987, he did not give any option and therefore, the petitioner is not entitled to the pension under the G.R. dated 15.10.1984 cannot be accepted and is hereby rejected. On fair reading of the entire G.R. dated 15.10.1984, it is observed and held that any staff and/or employee of the University under the Education Department and in affiliated and aided non-government Arts, Science and Commerce Colleges in the State, appointed / recruited after 01.04.1982 shall automatically be governed by the G.R. dated 15.10.1984 and shall be entitled to the pension scheme automatically and they are not required to give any option.

[6.2] Now, so far as question Nos.2 and 3 posed for consideration of this Court referred to hereinabove i.e. with respect to past services of such an employee is concerned, as such Clause 6 of the G.R. dated 15.10.1984 is very clear. Clause 6 of the G.R. dated 15.10.1984 confers benefits upon an employee of all previous services whether temporary, officiating or permanent, either in one or more than one non- government aided colleges, University Department, Higher Secondary School, who were being paid Grant-in-aid from Government, Page 32 of 121 Downloaded on : Fri Aug 05 21:09:47 IST 2022 C/SCA/20385/2019 CAV JUDGMENT DATED: 04/08/2022 shall be taken into account for computing the length of qualifying service for pension under the said scheme. Therefore, all previous services whether temporary, officiating or permanent either in one or more than one non- government aided colleges, University Department, Higher Secondary School, who were being paid Grant-in-aid from the Government was required to be taken into account for computing the length of qualifying service for pension. For example if the qualifying service for pension is 10 years and after getting appointment after 01.04.1982 an employee does not have the qualifying service of 10 years, however his previous service prior to 01.04.1982 whether temporary, officiating or permanent either in one or more than one non- government aided colleges, University Department, Higher Secondary School who were being paid Grant-in-aid is counted and thereafter it is found that he is fulfilling the qualifying service for pension, in that case, his past services is required to be counted and/or taken into account for computing the qualifying length of service for pension. However, his previous service is not required to be considered for any other purpose other than for computing the length of qualifying service for pension i.e. for fixation of pension etc. Therefore, on fair reading of Clause 6 of the G.R. dated 15.10.1984, it is observed and held that all the previous services of the employee who has been appointed after 01.04.1982, is required to be counted and/or taken into account for computing the qualifying length of service for pension only.

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C/SCA/20385/2019 CAV JUDGMENT DATED: 04/08/2022 [6.3] Identical question came to be considered by the learned Single Judge in the case of S.S. Patel (Supra). On interpretation of the very G.R. dated 15.10.1984, it is observed that so far as the width and amplitude of Clause 6 of the G.R. dated 15.10.1984 is concerned, it confers benefits upon employees of all previous service whether temporary, officiating or permanent either in one or more than one non-government aided Colleges, University, Higher Secondary School who are being paid grant-in-aid from Government, shall be taken into account for computing the length of qualifying service for pension under the said scheme. Considering Clause 3 and 4 of the aforesaid G.R. dated 15.10.1984 it is further observed that the member of the staff recruited on or after 01.04.1982 was not supposed to exercise an option since he was to be automatically governed by the scheme.

We are in complete agreement with the view taken by the learned Single Judge referred to hereinabove.

[7.0] In view of the above, it cannot be said that the learned Single Judge has committed any error in directing the appellants to consider the previous service of the original petitioner i.e. for the period between 27.06.1968 to 17.11.1969 and 15.06.1970 to 30.06.1975 for computing the length of qualifying service for pension. However, as clarified hereinabove, the aforesaid previous service is required to be counted/considered and/or to be taken into consideration for computing the length of qualifying service only and not for computation of the pension and/or fixation of the amount of Page 34 of 121 Downloaded on : Fri Aug 05 21:09:47 IST 2022 C/SCA/20385/2019 CAV JUDGMENT DATED: 04/08/2022 pension, as prior to 01.04.1982, the GPF Scheme / pension scheme was not applicable at all and it is made applicable with effect from 01.04.1982 and therefore, the past service / previous service is required to be taken into account only for computing the length of qualifying service for pension as per Clause 6 of the G.R. dated 15.10.1984. It is required to be noted that in the present case as such even if his previous service is not taken into account for fixation of the pension and/or for quantification of the amount of pension, the amount of pension is not likely to be changed. As observed hereinabove, the original petitioner was mainly denied the pensionary benefits / GPF Scheme as per the G.R. dated 15.10.1984 mainly on the ground that at the time when the original petitioner joined original respondent No.4 College/institution, he did not exercise the option for the pension scheme, which as observed and held hereinabove the original petitioner was not required to exercise such an option.

7.3 That judgment of the Division Bench was approved by the Apex Court. Lastly considering the decision in LPA No. 2259 of 2017 and allied matters decided on 02.05.2019, what is evident is that before the Division Bench there were several appeals listed which had taken views in favour of the pensioners. These batch of appeals Page 35 of 121 Downloaded on : Fri Aug 05 21:09:47 IST 2022 C/SCA/20385/2019 CAV JUDGMENT DATED: 04/08/2022 as were before the Division Bench are set out in para 2 of the judgement which reads as under:

"2. In these batches of appeals before us, judgements rendered in four separate batches of petitions filed by the original petitioners - teaching/non teaching staff of different educational institutions are under challenge before us. They are :

(I) Letters Patent Appeals No. 258 of 2017, 811 of 2017 and 1357 of 2017 arising out of a judgement rendered by a learned Single Judge (Coram : Hon'ble Ms. Justice Sonia Gokani) dated 03.02.2016.

(II) Letters Patent Appeal No. 2412 of 2017 arising out of the judgement of the learned Single Judge (Coram : Hon'ble Mr. Justice N.V. Anjaria) dated 01.08.2016. (III) Letters Patent Appeals No. 94 of 2018, 2180 of 2017, 2291 to 2308 of 2017 arising out of the judgement of the learned Single Judge (Coram : Hon'ble Mr. Justice J.B. Pardiwala) dated 29.06.2017. (IV) Letters Patent Appeal No. 2259 of 2017 and Letters Patent Appeals No. 2260 & 2261 of 2017 with Letters Patent Appeal No. 2263 of 2017 to Letters Patent Appeal No. 2284 of 2017 arising out of the judgement of the learned Single Judge (Coram : Hon'ble Ms. Justice Sonia Gokani) dated 11.07.2017."

7.4 Facts were set out in paras 3.5 and the submissions of learned counsels as made by the present counsel for Page 36 of 121 Downloaded on : Fri Aug 05 21:09:47 IST 2022 C/SCA/20385/2019 CAV JUDGMENT DATED: 04/08/2022 the petitioners were set out in para 5 of the decision. It will be worthwhile to reproduce the said para so as to appreciate the contentions raised therein which read as under:

"3.5 In all these appeals filed by the State of Gujarat, the respondents who were the original petitioners claimed that they, having been recruited in their respective college after 01.04.1982, were automatically governed by the pension scheme so framed by Government Resolution dated 15.10.1984 for the teaching staff and subsequently mutatis mutandis extended to the non-teaching staff of the respective educational institutions.

4. In the petitions so filed, there were two classes of teaching staff concerned - (a) direct recruits who had two parts of service (i) pre 01.04.1982 in private colleges and (ii) post 01.04.1982 on resignation in other colleges through a direct selection (b) the other class of the teaching staff who may have continued in the same institution but through a due process of selection, either by promotion or under the career advancement scheme risen in hierarchy from Tutor to Reader to Professor - a career spanning pre 01.04.1982 period and post 01.04.1982 period. In both these cases, the stand of the State Government was that since their initial appointment was prior to 01.04.1982, they were required to opt for pension option to switch over from CPF, which they did not, hence they were not entitled to pension.

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C/SCA/20385/2019 CAV JUDGMENT DATED: 04/08/2022 4.1 The case of the petitioners was that irrespective of a fresh selection, post 01.04.1982, directly by joining an institution or climbing the ranks through promotion or career advancement they were "recruited"

after 01.04.1982 and therefore as per clause (4) of the Government Resolution dated 15.10.1984, they were "automatically" governed by the pension scheme and there was no need for them to give any option for doing so. It was in this context that in one of the judgement (which all the judgements under challenge referred to) i.e. in the case of State of Gujarat Thro Secretary v. Bhupendra Vallabhdas Chudasama and another in Letters Patent Appeal No. 981 of 2015, the Court had answered the questions so raised in favour of the pensioner. The questions so raised read as under:

1.Whether an employee like the original petitioner who has been appointed after the G.R. dated 15.10.1984 can be denied the pension / pensionary benefits under the G.R. dated 15.10.1984 on the ground that he had not exercised the option for GPF?

2.Whether past services of such an employee is required to be counted for qualifying services for pension?

3.Whether the past services is required to be counted / considered for fixation of the pension or for qualifying services for pension only?

4.2 While considering the aforesaid question, Page 38 of 121 Downloaded on : Fri Aug 05 21:09:47 IST 2022 C/SCA/20385/2019 CAV JUDGMENT DATED: 04/08/2022 the Government Resolution dated 15.10.1984 was reproduced. The said Government Resolution reads as under:

Pension scheme for the teaching staff in the non Govt. affiliated college and in the Universities Government of Gujarat, Education Department Resolution No.NGC-1582/9505(84)-KH, Sachivalaya, Gandhinagar, th Dated the 15 October, 1984 RESOLUTION:-

The question of application of pension, gratuity and other retirement benefits to the members of teaching staff of the university under Education Department and in affiliated and aided non-

government colleges in Gujarat was under consideration of the Government for some time past. After careful consideration, Government is now pleased to direct that the pension, gratuity and other retirement benefits admissible to the Gujarat State Government servants under the Revised Pension Rules, 1950 contained in the Appendix XIV-C to BCSR Rules, Volume II, as amended from time to time, the Page 39 of 121 Downloaded on : Fri Aug 05 21:09:47 IST 2022 C/SCA/20385/2019 CAV JUDGMENT DATED: 04/08/2022 family pensions scheme sanctioned in Government Resolution, Finance Department No.FPS-1071-J dated 1.1.72 as amended from time to time should be made applicable to the full time teaching staff of the universities under the Education Department and in affiliated and aided non-government Arts, Science, Commerce and Education Colleges in this State with effect from 1.4.1982

1.a) for the purpose of this scheme (1) University means universities under Education Departments established by the Acts.

(2) A non-Government college includes non-Government affiliated Arts, Science, Commerce and B.Ed. colleges receiving grant-in- aid and managed by the private body and affiliated with the universities by the competent authority, as such for the purpose of grant-in-aid from State Government.

b) for the purpose of pensionable pay, pay means and includes:

(1) pay in the approved prescribed scale of pay, (2) additional pay for additional academic and professional qualification admissible under the orders issued by Government from time to time, Page 40 of 121 Downloaded on : Fri Aug 05 21:09:47 IST 2022 C/SCA/20385/2019 CAV JUDGMENT DATED: 04/08/2022 (3) personal pay granted to save from less to pay due to revision of pay scale or due to pay fixation.

Note:- If a member of staff during the last three years of his service has been absent from duty on leave with allowances, his pay for that period should be taken what it would have been, had he been on duty at any time during the first six months of period of leave.

Provided that the benefit of higher officiating or temporary pay should be given only if it is certified that member of the staff concerned would have continued to hold the higher officiating or temporary appointment but for his proceeding on leave.

c) Teaching staff means a full time professor, Asstt. Professor, reader, lecturers in universities and Principal, Lecturer, Tutor, demonstrator and also physical training instructors, Librarians etc. working in non-Government aided colleges who are receiving University Grants Commission scales.

2. The Director of Higher Education or the officer authorized by him shall be competent authority to sanction pension, gratuity, family pension and other retirement benefits admissible under the scheme.

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C/SCA/20385/2019 CAV JUDGMENT DATED: 04/08/2022

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 for the retention of the benefit admissible to them before 1.4.82.

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 1.4.82 and on or before expiry of the date before 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 favorable to them. The pension sanctioning authority should work out the benefits admissible under both the alternatives (i.e. the CPF and the Page 42 of 121 Downloaded on : Fri Aug 05 21:09:47 IST 2022 C/SCA/20385/2019 CAV JUDGMENT DATED: 04/08/2022 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 paper accordingly with necessary sanctions.

4. The member of the staff st recruited on or after 1 April, 1982 shall automatically be governed by this scheme. Such staff will not be allowed to opt for Page 44 of 121 Downloaded on : Fri Aug 05 21:09:47 IST 2022 C/SCA/20385/2019 CAV JUDGMENT DATED: 04/08/2022 contributory provident fund scheme.

5. The members of teaching staff who have completed five yeas of continuous service will be treated as holding permanent post substantively for the purpose of this scheme.

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 Grant-in-aid from Government shall be taken into account. The period of break in service will not be considered as qualifying service i.e. actual service rendered will be considered as qualifying services.

7. The general provisions of chapter XI of BCSR Rules Vol.I will be applicable in granting retirement benefits to the member of the staff member of the staff under this scheme except where otherwise provided.

8. The age of superannuation retirement for the existing staff covered under the scheme shall be 60 (sixty) years. The age of superannuation retirement for the staff that may be recruited on and from 1.10.1984 shall be 58 years Page 45 of 121 Downloaded on : Fri Aug 05 21:09:47 IST 2022 C/SCA/20385/2019 CAV JUDGMENT DATED: 04/08/2022 for which universities should be requested to take necessary action to amend the relevant statutres / Rules Regulations accordingly.

9. The benefit of the revised rates of temporary increase in pension and minimum pension sanctioned to Government Pensioner under G.R.F.D. No.NVN-1082-1074-P dated 1.4.1982 as amendeu /amplified/modified from time to time shall be extended to the members of the staff who are eligible and opt the pension scheme under this Government Resolution.

10. The employee who got the retirement benefit of C.P.F. and gratuity etc. for the services rendered by him in earlier institutions before joining the other institution shall have to be refunded and credited to Government.

11. The pension papers of the members of the staff entitled to pension, gratuity etc. under the scheme should be prepared in case of college staff by the principal of the college on the basis of the service record maintained by the college concerned. The pension papers of the members of the staff entitled to this scheme in university should be prepared by the Registrar of the university on the basis of the record maintained Page 46 of 121 Downloaded on : Fri Aug 05 21:09:47 IST 2022 C/SCA/20385/2019 CAV JUDGMENT DATED: 04/08/2022 by the university. The entries in the service books of the staff will be made and attested by the principal of the college and in case of principal, by the management of the college concerned and the Registrar in case of university staff and such entries should be verified by the Director of Higher Education or the officer authorized by him and a certificate of verification recorded in the service book. The Director of Higher Education should sanction the pension gratuity etc. and forward the pension papers duly completed to the Director of Accounts and Treasuries. The pension gratuity etc. so sanctioned will be payable from the Government Treasuries. The Director of Accounts and Treasuries will pre-audit the claim and issue a pension payment order and/or gratuity payment order on the Treasury, from which the pensioner desires to draw pension gratuity etc. under intimation to Director of Higher Education.

12. The grant of anticipatory pension or gratuity to such members of the staff as are governed by the scheme shall be regulated as per Government Resolution, Finance Department th No.PEN-1069-1874-J, dated 17 June, 1969 and BCSR Rule 214 and Page 47 of 121 Downloaded on : Fri Aug 05 21:09:47 IST 2022 C/SCA/20385/2019 CAV JUDGMENT DATED: 04/08/2022 pension and/or gratuity will be authorized / drawn and remitted or disbursed by the pension sanctioning authorities.

13. The expenditure on account of payment of pension under the scheme will be debited to the head

266...Pension and other retirement benefits"

5. Mr. S.N. Shelat, learned Senior Advocate appearing for Mr. S.J. Gaekwad, learned advocate for the respondents in some appeals, Mr. Bhaskar Tanna, learned Senior Counsel appearing for Mr. Dharmesh Shah, learned advocate for the respondents in some appeals as well as learned advocates Mr. Jayraj Chauhan, learned advocate for Mr. Mukund Desai, learned advocate for the respondents in some appeals, Mr. Bhushan Oza, Mr. Utpal Panchal, Ms. Avani Pandya and Mr. Mitul Shelat have reiterated the submissions made before the respective learned Single Judges. Their submissions briefly stated were as under

and Mr. Siddharth Dave and Mr. P.A. Medh, learned advocate for the appellants have adopted these arguments advanced by the learned Senior counsels:

(I) When the respondents herein - original petitioners joined their services, there was no pension scheme applicable. They were covered by the Contributory Provident Fund Scheme(CPF).

(II) On 01.01.1972, the Government of Gujarat passed a resolution sanctioning a family pension scheme for Government of Page 48 of 121 Downloaded on : Fri Aug 05 21:09:47 IST 2022 C/SCA/20385/2019 CAV JUDGMENT DATED: 04/08/2022 Gujarat employees. The Scheme was made applicable to all employees, whether temporary or permanent.

(III) On 15.10.1984, the State passed a resolution directing that the pension, gratuity and other retirement benefits admissible to government servants should be made applicable to teaching staff of the Universities under the Education Department with effect from 01.04.1982.

The scheme provided thus :

"i. Clause 3 (i) -The members of the existing staff recruited before 01.04.1982 and those staff who have retired on or after 01.04.1982 and prior to the date of issue of this resolution have to exercise their option within the period of one year from the date of issue of this resolution either to continue contributory provident fund scheme or to come under this scheme.

ii. Clause 4 -The members of their staff recruited on or after 01.04.1982 shall automatically be governed by this scheme and such staff will not be allowed to opt for contributory provident fund scheme."

(IV) On 14.09.1988, the Government of Gujarat passed a resolution and directed that the pension, gratuity and other retirement benefits admissible to the Gujarat State Government Servants under the Revised Pension Rules, 1950 contained in the Appendix XlV-C to the B.C.S.R. Rules, Volumes II, as amended from time Page 49 of 121 Downloaded on : Fri Aug 05 21:09:47 IST 2022 C/SCA/20385/2019 CAV JUDGMENT DATED: 04/08/2022 to time and the family pension scheme sanctioned in Government Resolution, Finance Department No. FPS-1061-J dated 01.01.1972 as amended from time to time should be made applicable to the full time non-teaching staff of the Universities under the Education Department with effect from 01.04.1982. On 11.10.1988, the Government of Gujarat passed another resolution granting the teaching staff who have opted for contributory provident fund to switch over to the pensions scheme.

(V) On 11.10.1988, the Government of Gujarat passed another resolution for the pension scheme for the teaching staff in the non government affiliated colleges and in the universities where it was reiterated that the members of the staff recruited on or after 01 04.1982 shall automatically be governed by this scheme.

(VI) On 06.02.2012, the Higher Education Department addressed a communication to the M.S. University stating that the employees who have been appointed before 01.04.1982 who have not been extended the benefits of the pension scheme will be granted such benefits if they have been appointed on or after 01.04.1982 by way of direct selection as their service on or after 01.04.1982 will be pensionable.

(VII) The Petitioners came to know of the Page 50 of 121 Downloaded on : Fri Aug 05 21:09:47 IST 2022 C/SCA/20385/2019 CAV JUDGMENT DATED: 04/08/2022 above Communication and made inquiries with the Government regarding the same. However the Petitioners were informed that no decision was taken by the Government and the matter was still pending consideration and the Petitioners were advised to await the final decision of the Government in reference to the same. (VIII) The Petitioners have been appointed by way of open selection and Promotion after 01.04.1982 to different posts, however, they have not been granted the benefit of the pension scheme.

(IX) It is submitted that the Petitioners and other similarly situated persons had preferred petition before this Hon'ble Court challenging the action of the Respondents in depriving them of pensionary benefits and challenging the letter dated 07.01.2005 from the State Government to the M.S. University stating that because of financial constraints it is not possible for the State Government to shoulder the burden of heavy financial liabilities on the Government exchequer. This Hon'ble Court was pleased to dispose of the petitions by giving a direction to the State Government to reconsider the matter with sympathetic approach and to consider the sentimental issue for the concerned employees those who are retiring from the service and not able to get the pensionary benefits though similarly situated employees are getting it.

(X) The Government by its decision dated Page 51 of 121 Downloaded on : Fri Aug 05 21:09:47 IST 2022 C/SCA/20385/2019 CAV JUDGMENT DATED: 04/08/2022 29.08.2007 and 04.12.2007 again took the view that the employees who had not exercised the option were not entitled to claim pension. The decision however was not communicated to the Petitioners individually.

(XI) It is submitted that the impugned action of the respondent No.1 is not in accordance with law and its enacted resolution and is therefore illegal and arbitrary.

(XII) It is submitted that in an education institution to hold a higher post i.e. from the post of Assistant Lecturer to Lecturer, Lecturer to Reader, Reader to Professor the candidate has to be a part of the regular selection procedure. The selection from the selection process is to be approved by the University under the statute, the relevant rules and is also to be approved by the Education department of the State authority. Such process makes the appointment at a higher post a fresh appointment. Therefore the action of the state government in not holding them entitled to grant of pension and not making the pension scheme applicable to services of the Petitioners after 01.04.1982 is illegal and unjust. (XIII) It is submitted that appointment to a higher post can be by direct recruitment and/or promotion. In both the cases, the procedure of selection is the same, eligibility criteria is the same only the zone of consideration would change. Appointment to a higher post would always be a fresh appointment to that Page 52 of 121 Downloaded on : Fri Aug 05 21:09:47 IST 2022 C/SCA/20385/2019 CAV JUDGMENT DATED: 04/08/2022 post. The method of recruitment would not affect the nature of appointment and the consequent entitlement thereof. Consequently all the petitioners having been appointed to higher post after 01.04.1982 would be entitled to be automatically included in the pension scheme.

(XIV) It is submitted that the pension is in the nature of right which the Petitioners have earned by rendering service. The inequity which is created on account of difference in the two schemes is substantial and affects the quality of life of the petitioners. The petitioners are entitled to similar treatment from the Government. Therefore the action of the Respondent No.1 in not making the pension scheme applicable to the Petitioners is unjust and illegal. (XV) It is submitted that in view of the Clause-4 of the resolution dated 15.10.1984, the pension scheme is automatically applicable to the Petitioners as the resolution provides that the members of their staff recruited on or after 01.04.1982 shall automatically be governed by this scheme and such staff will not be allowed to opt for contributory provident fund scheme. Therefore the action of the State Government is in contravention to the Government Resolution dated 15.10.1984.

(XVI) It is submitted that the Respondent No.1 has adopted a discriminatory approach between employees who have Page 53 of 121 Downloaded on : Fri Aug 05 21:09:47 IST 2022 C/SCA/20385/2019 CAV JUDGMENT DATED: 04/08/2022 been appointed on or after 01.04.1982 and employees who have been appointed to a higher post on or after 01.04.1982. It is submitted that both the classes of employees should receive equal treatment. Therefore, the impugned action of the respondent No.1 is arbitrary, unjust and discriminatory.

(XVII) It is submitted that the impugned action is even otherwise arbitrary being violative of the constitutional mandate under Article 14 of the Constitution of India.

(XVIII) The petitioners state that they have been and are ready and willing to deposit the amount of Contributory Provident Fund received by them at the time of superannuation with interest as may be directed by this Honble Court."

7.5 Even the submissions of the State as made by learned AGP Mr. Sharma in para 6 of the decision of the Division Bench read as under:

"6. Ms. Manisha Lavkumar Shah, learned Government Pleader assisted by Mr. Rashesh Rindani, learned Assistant Government Pleader made the following submissions:

(i) Vide G.R dated 15.10.1984, with effect from 1.4.1982, the State Government introduced and extended the benefit of GPF Scheme, Pension Scheme and Family Pension Page 54 of 121 Downloaded on : Fri Aug 05 21:09:47 IST 2022 C/SCA/20385/2019 CAV JUDGMENT DATED: 04/08/2022 Scheme to the full time teaching staff of the Universities under Education Department as well as to all non affiliated and unaided Commerce and Science colleges in the State.

Similarly, vide GR dated 3.7.1987, a policy decision was taken for introducing the benefit of GPF pension scheme and Family Pension Scheme on and with effect from 1.4.1982 which was extended to full time non-teaching staff of the affiliated and aided non-government Arts, Science and Commerce colleges.

(ii) Both the Government Resolutions of 15.10.1984 and 3.7.1987 applicable to teaching and non-teaching staff expressly stipulated certain conditions to be fulfilled in order to avail of the benefit of the GPF Scheme. Condition No.3 of the GRs stipulates that:

(I) those who had recruited before 1.4.1982, and those members of the staff who had retired on or after 1.4.1982 and prior to the date of the issuance of the Resolution dated 15.10.1984, were required to exercise their option for switching over from CPF to GPF.

(iii) In all the above two categories an option of switching over from CPF to GPF was required to be exercised within a period of one year from the date of Resolution. The procedure prescribed required that the option should be exercised in writing in the form prescribed (Appendix-A) and communicate to Page 55 of 121 Downloaded on : Fri Aug 05 21:09:47 IST 2022 C/SCA/20385/2019 CAV JUDGMENT DATED: 04/08/2022 the Director of Higher Education. Members of the staff who do not exercise option within the stipulated period would be deemed to have opted for the retention of the benefit admissible to them as existed before 1.4.1982. Members of the staff who opted for the scheme shall join GPF Scheme concurrently and their share in the CPF together with interest thereon shall be credited to the GPF Account.

(iv) Vide GR dated 26.9.1989 for the teaching as well as non-teaching staff, it was provided that the age of superannuation/ retirement of the staff recruited before 1.10.1984 shall be 60 years and the age of superannuation / retirement for the staff which have been recruited on and from 1.10.1984 shall be 58 years for which Universities should be requested to take necessary steps for the amendment of relevant statutes, rules, regulations etc. It was further provided that if teachers who are originally required prior to 1.10.1984 change colleges / Universities or go to other colleges as Principals, they will be treated as existing teachers and their age of superannuation will be 60 years. All the aforesaid Resolutions consistently contemplate for the policy of the State Government in providing for the continuity of service i.e. without considering the period of break in service, for determining the qualifying service for pension. In other words, for the purpose of aforesaid Resolutions, if a person resigns from one position at one place and joins different position (may be higher) at different places, his all previous service will be taken into account and hence, for the purpose of exercise of Page 56 of 121 Downloaded on : Fri Aug 05 21:09:47 IST 2022 C/SCA/20385/2019 CAV JUDGMENT DATED: 04/08/2022 option, his joining at different places should not be treated as new recruitment / fresh service.

(v) Admittedly, in case of persons of teaching staff with reference to Government Resolution dated 15.10.1984, three times options were given to join the Pension Scheme, vide different Resolutions as indicated herein below:

                    Sr No.    Date of Resolution Period
                    (I)       10.1.1986          Upto
              31.3.1986
                    (ii)      11.10.1988         For         3
              months
                    (iii)     17.9.1991          For         2
              months

Similarly, in case of non teaching staff, on two occasions, such options were given vide Government Resolutions as indicated below:

                  Sr No.     Date of Resolution Period
                  (I)        03.07.1987          One year
                  (ii)       17.9.1991           Two months

(vi) In view of the above, for all practical purposes, if the persons have not exercised any option during the course of their service either in the same position and in the same place or in different positions and at different places, they should not, later on, be covered within the four corners of Pension Scheme.

(vii) Pertinently as per the Revision of Pay Rules of 1987, with effect from 1.1.1986, wages for the post of Professor were in the order of Rs.2200-4000 and there used to be CPF deduction to the tune of 8.33% of the minimum wage of Rs.2200 along with Management Page 57 of 121 Downloaded on : Fri Aug 05 21:09:47 IST 2022 C/SCA/20385/2019 CAV JUDGMENT DATED: 04/08/2022 Contribution of equal proportion, total whereof was coming to the tune of Rs.366.52. It was on this amount that interest at the rate of 12% per annum from 1994-95 to 1999-2000 was payable. As against the above, if a person had rendered pensionable service of 33 years, then in that case, he would have been entitled to 50% of the minimum pay of Rs.2200 i.e. Rs.1100/- which would have been payable by way of pension. Thus, at that time, the rate of wages being on a lower side, CPF Scheme was beneficial as compared to Pension Scheme. However, after the Revision of Pay Rules, 2009, rates of wages came to be increased whereby basic wages would come to the tune of Rs.46,400/- and 50% thereof, would be Rs.23,200/- which would be payable by way of monthly pension. As a result of this, the scheme of monthly pension became very favourable and attractive as compared to the CPF Scheme.

(viii) It is further submitted that if someone has been given 3 options to join the Pension Scheme and despite that, he does not join, and if direction is given at this juncture to cover him under the Pension Scheme, then in that case, his automatic coverage under the Pension Scheme would impose huge financial burden upon the State Government. It was under the aforesaid circumstances that the State Government issued a Government Resolution dated 7.1.2004, inter alia providing that, if after failing to avail of 3 opportunities, a chance is given to join the Pension Scheme as of today, the same would impose huge burden on the State Government and that therefore it was decided not to give any further opportunity of Page 58 of 121 Downloaded on : Fri Aug 05 21:09:47 IST 2022 C/SCA/20385/2019 CAV JUDGMENT DATED: 04/08/2022 option.

(ix) Notably all the petitioners claim that they have been appointed after 1.4.1982. In support of their claim, it is contended that they applied for the post of Lecturer, Reader or Professor or Principal pursuant to the advertisements and after due selection and approval by the State Government, they were appointed on the said post. Since it was pursuant to a selection process that they were appointed, their appointment as Lecturer, Reader, Professor or Principal should be construed as a fresh appointment.

(x) It is the case of the respondent that as per the UGC norms, there is no direct promotion from the post of Lecturer to Reader, Reader to Professor or Professor to Principal. For each of the posts in the Universities, advertisements are required to be issued and selections made in terms of the recruitment rules. Further at the time of retirement post 1.4.1982, all the petitioners have availed of Leave Encashment for their entire service commencing from prior to 1.4.1982 to till the date of retirement. Thus, though the petitioners contend that theirs is a case of fresh appointment post 1.4.1982 and therefore they are not required to exercise any option in favour of the GPF Scheme, factually all of them have availed of pay protection, leave encashment and other monetory benefits. All of them have received their CPF amounts with interest at the time of retirement. It is only on account of various pay revisions that today GPF Scheme appears monetarily far more advantageous that the petitioners have chosen Page 59 of 121 Downloaded on : Fri Aug 05 21:09:47 IST 2022 C/SCA/20385/2019 CAV JUDGMENT DATED: 04/08/2022 to contend that theirs is a fresh appointment post 1.4.1982.

(xi) It is submitted that the respondents though aware of the introduction of the pension scheme and options given on three occasion between the years 1984 to 1991, consciously did not opt for the pension scheme and continued with the CPF Scheme. In case of most of the petitioners of Special Civil Application No. 3250 of 2009 and allied matters, they remained in CPF Scheme till their retirement and availed all benefits of PF Scheme. Now they want to get the benefit of pension scheme hence they filed various petitions.

(xii) It is further submitted that before the implementation of 6th pay scheme, the benefit under the provident fund scheme were more or less equal and there was a general impression among employees that having regard to average life expectancy and avenues for investment of the lump sum PF amount, it was prudent to receive a larger PF amount on retirement rather than receive a small pension for a few years."

7.6 The Division Bench extensively after considering the decision set out by the respective parties and tracing the chequered history of litigation in para 8 set out what the learned Single Judges had considered on the question of recruitment vs. promotion. Para 8 of the decision of the Page 60 of 121 Downloaded on : Fri Aug 05 21:09:47 IST 2022 C/SCA/20385/2019 CAV JUDGMENT DATED: 04/08/2022 Division Bench reads as under:

"8. The learned Single Judges have considered the decisions which are pressed into service and also discussed that even when the teaching staff rises in rank, he/she has to undergo selection which is undertaken by a duly constituted selection committee after a public advertisement which comprises of subject expert, government nominee. The appointment orders issued pursuant to such selection specifically mentioned that he/she will be admissible to benefits of pension under the Rules. That such hierarchical promotions or career advancements were in fact akin to fresh recruitments. The learned Single Judges considered the two resolutions dated 23.11.1976 and 14.09.1988 and its relevant clauses. The consideration, as reflected read as under:

"10. Having thus heard both the sides and having also considered extensively various decisions, which are pressed into service, at the outset, it can be noticed that for selection of the Teaching Staff as per the UGC guidance, the issuance of public advertisement is must. Once a person applies under the said mode, a duly constituted selection committee is required to be formed, which comprises of the Subject Expert, Government Nominee, who is a Joint Director of the Education Department, Management Nominee and a Nominee of the Vice-Chancellor as per the Government Resolution dated November Page 61 of 121 Downloaded on : Fri Aug 05 21:09:47 IST 2022 C/SCA/20385/2019 CAV JUDGMENT DATED: 04/08/2022 23, 1976. Clause 15 of the very Government Resolution mandates prior approval.

11. The Government Resolution dated September 14, 1988, at this stage if is referred to, Clause 6 thereof provides for recruitment to the post of Lecturers, Readers and Professors in universities and colleges shall be on the basis of merit through all India advertisement and selection, provided that Lecturers who fulfill the criteria prescribed in the said scheme will be eligible for promotion to the posts of Readers. The minimum qualification required for appointment to the post of Lecturers, Readers and Professors will be those prescribed by the UGC from time to time. The Career Advancement System (for short 'CAS') is provided in Clause 10 of the said Government Resolution, which provides that every lecturer who has completed eight years of service after regular appointment, would be placed in the Senior Scale. Consistently satisfactory performance appraisal reports are also needed. He/she has to participate in two refresher courses/summer institutes, each of approximately 4 weeks' duration or engage in other appropriate continuing education programmes of comparable quality as may be specified by the UGC.

12. Clause 11 provides for eligibility criteria of a Lecturer for promotion to the post of a Reader in a senior scale.

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13. Clause 12 of the said Government Resolution dated September 14, 1988, provides for the process of selection for promotion to the post of a Reader by the Selection Committee to be set up under the Statutes/Ordinances of the University concerned or other such Committees set up by the appointing authorities in accordance with the guidelines to be laid down by the UGC. It further provides that the post of Readers will be created for this purpose by upgrading a corresponding number of posts of Lecturers in the Universities and Colleges.

14. Instead of further dilating any issue relating to the CAS and the aspect of promotion under the said Scheme, it would be sufficient to notice that for the post of Lecturers in the Universities, the criteria are prescribed for selection and recruitment vide the said Government Resolution.""

7.7 It had traced out the history of litigation set out by the coordinate bench of this court in the case of Patel Mathurbhai and therefore the relevant paras of the Division Bench decision are not reproduced extensively.

However, at the cost of brevity the judgement which was considered by the Division Bench in paras 9.1 to 10 are Page 63 of 121 Downloaded on : Fri Aug 05 21:09:47 IST 2022 C/SCA/20385/2019 CAV JUDGMENT DATED: 04/08/2022 reproduced hereinbelow:

"9.1 In the case of State of Gujarat and Others vs. Dr. S.G. Trivedi, Retd. Reader Physics Division and another decided on 17.03.2006 in Special Civil Application No. 12620 of 2003, the challenge was to the decision of the Gujarat University Services Tribunal denying pension to the petitioner therein and the issue was as to whether he joined service on October 01, 1984 and, whether he would be deemed to have been in service right from the year 1964 requiring his option pursuant to the Government Resolution dated October 15, 1984. It was held that having joined the service in University on July 08, 1985, the petitioner therein would be governed by the pension scheme as per Government Resolution dated October 15, 1984. Non- exercising of the option, therefore, was not taken as a factor to disentitle the petitioner therein from receiving pensionary benefits. The petitioner therein though was appointed on October 10, 1985 and though had specifically opted for CPF scheme and requested that he does not want to switch over to pension scheme, it was emphasised that those who had been appointed in the service prior to April 01, 1982, shall need to exercise such option as to whether to continue to CPF scheme. It was insisted that on the persons failing to exercise option, his preference for continuous coverage under the CPF scheme, would not entitle him to any pensionary benefits. The Tribunal since had allowed the application and held the petitioner entitled to receive pension and other Page 64 of 121 Downloaded on : Fri Aug 05 21:09:47 IST 2022 C/SCA/20385/2019 CAV JUDGMENT DATED: 04/08/2022 benefits pursuant to the pension scheme introduced by the Government for teaching staff of the University and colleges by October 01, 1984. The State had challenged the same.

9.2 In the aforesaid judgement, this Court held as under:

"9. Having considered rival submissions it would appear that the crucial question is whether respondent no.1 can be stated to have joined services of the University on 01-10-1984 or right from the time he was discharged from his duties in private affiliated aided college. If it is found that respondent no.1 joined services of South Gujarat University only on 01-10-1984 and the earlier services of respondent no.1 cannot be said to have any bearing on question of applicability of the pension scheme pursuant to Government Resolution dated 15-10-1984, his case for receiving pension would get a boost. On the other hand, if it is found that respondent no.1 who had served in private affiliated aided college right from 1964 and switched over to the university services on 01- 10-1984 after tendering technical resignation, joined his duties immediately on the next date in the University Services and that therefore, respondent no.1 should be treated to have been in service prior to 01-04-1982, the State Government would be justified in contending that Tribunal erred in granting pensionary benefits to the respondent no.1.

There is however, considerable force in the submissions made by the learned advocate Shri Joshi that under identical situation, Learned Page 65 of 121 Downloaded on : Fri Aug 05 21:09:47 IST 2022 C/SCA/20385/2019 CAV JUDGMENT DATED: 04/08/2022 Single Judge of this Court had made pensionary benefits available to the teacher in the case of Dr. Nalini V. Dave v. Government of Gujarat & ors(Supra).

In the said case also the petitioner had discharged duties in various colleges right from 1966 to 08-07-1985 when after getting relived from the private college, she joined as a Lecturer in the Department of Commerce in Saurashtra University on the very same date. In the said case also her earlier service came to be considered continuous for the purpose of her total length of service including pensionary benefits. Accordingly the entire service was considered as qualifying service for the purpose of pensionary benefits. Despite this factual aspect, Learned Single Judge of this Court found that Government Resolution cannot be interpreted so as to mean that the petitioner therein would be dis-entitled from receiving pension for not having exercised option. It was held that having joined the service in University on 08-07-1985, she would be governed by pension scheme as per Government Resolution dated 15-10-1984. Non-exercising of the option therefore, was not taken as a factor to dis- entitle her from receiving pensionary benefits. The ratio laid down in case of Dr. Nalini V. Dave v. Government of Gujarat & ors(Supra) would squarely apply in the present case also. The respondent no.1 herein had discharged duties in private colleges from 1966 to 01-10- 1984. Having resigned from his services he immediately joined as Reader in South Gujarat University on 01-10-1984. Thus on 01-10-1984 when he joined University Services only option available to him was to be governed by the Page 66 of 121 Downloaded on : Fri Aug 05 21:09:47 IST 2022 C/SCA/20385/2019 CAV JUDGMENT DATED: 04/08/2022 pension scheme as held by this Court in the case of Dr. Nalini V. Dave v. Government of Gujarat & ors(Supra). He therefore, had no option to exercise. His misconceived communication dated 10-10-1985 therefore, cannot be taken to be the factor against him to deny the pensionary benefits. If it is found as has been so in case of Dr. Nalini V. Dave v. Government of Gujarat & ors(Supra) that for such of the teachers who joined services after 01-04-1982 even with past background of employment in private colleges, option of continuing in CPF Scheme was not in existence and that pension scheme applied compulsorily and automatically, the assertion of the respondent no.1 that he wishes to continue in the CPF Scheme would be of no consequence. The factor that the employer stopped contributing towards Provident Fund of the respondent no.1 is one more indication of the stand of the University.

Therefore, following the decision in case of Dr. Nalini V. Dave v. Government of Gujarat & ors(Supra), I find that the Gujarat Universities Services Tribunal committed no error in allowing the application of the respondent no.1. I am conscious of the fact that there are some arguable points raised by the State Government. One of the relevant facts which appears attractive is that respondent no.1 not only joined University Service immediately after tendering resignation from private college, but also got all benefits of continuation of entire service for the purpose of qualifying service for post-retirement benefits. The question therefore, immediately arises is whether respondent no.1 can be said to have Page 67 of 121 Downloaded on : Fri Aug 05 21:09:47 IST 2022 C/SCA/20385/2019 CAV JUDGMENT DATED: 04/08/2022 joined service on 01-10-1984 as is contended by the learned advocate for respondent no.1 or whether he should be deemed to have been in service right from 1964 so as to require him to exercise his option pursuant to Government Resolution dated 15-10-1984. One more relevant aspect here is that the resolution makes pension scheme applicable not only to the teaching staff of the University but to all the members of the teaching staff of private affiliated aided arts,commerce and science colleges in which respondent no.1 was employed prior to his appointment in the South Gujarat University. However by the principles of precedence and judicial discipline, I am bound by the decision rendered by Learned Single Judge and respectfully following the ratio laid down therein, I find that it is not necessary to disturb the decision of the University Tribunal. The petition is therefore, rejected. Rule is discharged with no order as to costs. Interim relief is vacated."

9.3 Both these cases i.e. Dr. Nalini Dave (supra) and Dr. S.G. Trivedi (supra) were considered in the case of S.S. Patel vs. Director of Pension and Provident Fund, Gandhinagar & Others reported in 2008(4) GLR 2983. Relevant paragraphs are as under:

"14. That undisputed service history of the petitioner is produced in affidavit dated 29.1.2008 filed by Director of Pension and Provident Fund, State of Gujarat which reads as under:

"5. The Pension Scheme for teaching staff in Page 68 of 121 Downloaded on : Fri Aug 05 21:09:47 IST 2022 C/SCA/20385/2019 CAV JUDGMENT DATED: 04/08/2022 the non-government affiliated Colleges in the Universities was introduced by the respondent state after passing a resolution in its Education Department dated 15.10.1984. (Since the petitioner has already appended the same along with his memo of Special Civil Application from Page No.16 to 24, I am not annexing the same.) Perusing the said resolution, it would be very clear that the same is made effective from 1.4.1982 and was applicable to Affiliated Aid Non-Government Arts, Science, Commerce and Education Colleges in the State, however, the same was not applicable to affiliated Engineering Colleges to various Universities in the State. The service history of the petitioner can be summarized in tabular manner as follows:

                    Sr    Period         Position         Name of
                     .                    Held           Unviersity
                    N
                    o.

                   1.    22.7.1968       Asst.    B.V.M.   Engg.
                         to              Lecturer College,
                         3.12.1975                Vallabh
                                                  Vidyanagar

                   2.    4.12.1975       Lecturer SVR College of
                         to                       Engg.       &
                         31.3.1986                Technology
                         (BN)                     Surat

                   3.    31.3.1986       Reader      South Gujarat
                         to                          University
                         5.10.1988



                              Page 69 of 121

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                   Sr    Period        Position         Name of
                    .                   Held           Unviersity
                   N
                   o.

                   4.   6.10.1988 Reader           M.S.
                        to                         Univeristy,
                        30.11.2000                 Vadodara

The above service is without any break.

15. Thus, what is admitted position about service history of the petitioner is that from 22.7.1968 to 3.12.1975 when the petitioner was serving as a Assistant Lecturer with B.V.M.College of Engineering, Vallabh Vidhyanagar and thereafter from 4.12.1975 to 31.3.1986 as a Lecturer with S.V.R. College of Engineering and Technology, Surat, the petitioner was not governed by any pension scheme and was having C.P.F. and accordingly Contributed Provident Fund was credited in account of the petitioner and ultimately the petitioner had collected the amount.

16. At the same time the prior to issuance of Government Resolution dated 15.10.1984 which was made effective with retrospective effect from 1.4.1982, employee had no opportunity whatsoever, whether to opt for pension or for any other scheme and such an employee used to be governed by prevailing system of C.P.F.. When the G.R. dated 15.10.1984 came to be issued, the petitioner was serving as a lecturer with S.V.R.College of Engineering and Technology at Surat, which Page 70 of 121 Downloaded on : Fri Aug 05 21:09:47 IST 2022 C/SCA/20385/2019 CAV JUDGMENT DATED: 04/08/2022 was a Regional Engineering College and later on nomenclatured as National Institute of Technology, the G.R. was not applicable to Engineering College which was under Government of India. From the record, what appears, the petitioner had continued to be Governed by the existing scheme ?the provident fund for employees of the S.V.R. College of Engineering and Technology (Surat) Society? as per option exercised in 1978. There is no dispute about the amount which was credited in the account of the petitioner, came to be collected and ultimately in year 2000, the petitioner deposited the said amount with interest. After resigning from the S.V.R. College of Engineering, when the petitioner joined as a 'Reader' with South Gujarat University from 31.3.1986 and served upto 5.10.1988, the petitioner was a Recruitee after 1.4.1982 and was being governed automatically for pension scheme as introduced by G.R. dated 15.10.1984 and accordingly no contributory amount was deducted and only G.P.F. account was credited. Thus, as a Reader with South Gujarat University, the petitioner was getting benefit of the pension scheme. Even as per the respondents, the period commencing from 31.3.1986 till the date of voluntary retirement on 30.11.2000, the service of the petitioner can be considered for pensionable job. The above fact is admitted in para 10 of the affidavit-in- th reply dated 19 December, 2007 filed by Accounts Officer of Commissioner of Higher Education and, therefore, the interpretation of Government Resolution dated 15.10.1984 mainly revolves round Clauses 3, 4, 6 and 7 of Page 71 of 121 Downloaded on : Fri Aug 05 21:09:47 IST 2022 C/SCA/20385/2019 CAV JUDGMENT DATED: 04/08/2022 the above Government Resolution and to be examined accordingly.

16.1. If the Government Resolution dated 15.10.1984 is perused the preamble of the resolution is pertaining to grant of benefit of pension scheme for the teaching staff in the Non-Government Affiliated Colleges and in the Universities at par with employees of the Government of Gujarat under Revised Pension Rules, 1950 as amended from time to time. Therefore, if Clause 3 is perused, two types of employees were to exercise option, viz. (1) members of the existing staff recruited before 1.4.1982 and (2) those staff who have retired on or after 1.4.1982 and prior to the date of issue of this resolution within a period of one year from the above date, whether to continue in C.P.F. or to go under the pension scheme and such option was to be final. In Clause 4, it is clearly stated that member of the staff st recruited on or after 1 April, 1982 shall automatically be governed by this scheme and such staff will not be allowed to opt for C.P.F. Therefore, if principle of plain reading is applied, all the contents of the clauses read together, what transpires is that the member of st the staff recruited on or after 1 April, 1982 was not supposed to exercise an option since he was to be automatically governed by the scheme. So far as the petitioner is concerned, he was recruited directly after the advertisement issued by the concerned Universities on the post of 'Reader' in South Gujarat University on 31.3.1986 to 5.10.1988 and later on appointed in the M.S. University as Page 72 of 121 Downloaded on : Fri Aug 05 21:09:47 IST 2022 C/SCA/20385/2019 CAV JUDGMENT DATED: 04/08/2022 a 'Reader' from 6.10.1988 after undergoing valid selection procedure. Thus, the case of the petitioner is not governed by Clause 3 of the Government Resolution in view of fact that neither the petitioner is a member of existing staff recruited prior to 1.4.1982 nor he retired from 1.4.1982 to 15.10.1984. Therefore, the contention of learned AGP that the petitioner was to exercise option for pension which was mandatory, cannot be accepted and is hereby rejected.

16.2. So far as width and amplitude of Clause 6 of Government Resolution is concerned, it confers benefits upon an employee of all previous service whether temporary, officiating or permanent either in one or more than one non-government aided Colleges, University, Higher Secondary School who are being paid grant-in-aid from Government shall be taken into account for computing the length of qualifying service for pension under this scheme. If the above clause is made applicable to the petitioner, service rendered in the B.V.M.College of Engineering at Vallabh Vidhyanagar as 'Assistant Lecturer' and even, subsequent service as a 'Lecturer' in the S.V.R. College of Engineering and Technology are to be counted since the above two colleges are recognised colleges and in view of service rendered in Non-Government Aided Colleges of the State of Gujarat and Union of India can be considered for qualifying service for pension and calculation of pensionable qualifying service by two offices of respondent Nos. 1 and 5 at the time of accepting application for voluntary retirement of the petitioner was just Page 73 of 121 Downloaded on : Fri Aug 05 21:09:47 IST 2022 C/SCA/20385/2019 CAV JUDGMENT DATED: 04/08/2022 and proper and cannot be brought within the preview of Rule 41 (1) (a) of the Pension Rules, to deny pension to the petitioner, on the ground that the petitioner had not rendered any service in a pensionable establishment. The fact remains that the petitioner was a member of C.P.F. in both the above colleges and resigned from the service and ceased to be a member of C.P.F. for all purposes. It is very clear from the plain reading of clause 6 that clause 6 does not distinguish employees rendering service in a pensionable or non-pensionable establishment and on the contrary it covers all kinds of services even temporary or officiating rendered in Non-Government Aided Colleges. Even otherwise, no material contrary exist to show that the above two colleges were non- pensionable establishment.

16.3. If the submissions of learned AGP are accepted that to get benefits of clause 6 of G.R. of 15.10.1984, option is to be exercised as per clause 3, provisions of clause 6 will become redundant and inoperative for a recruitee on or after 1.4.1982. Neither clause 4 nor clause 6 envisaged or mandate a recruitee after 1.4.1982 to exercise any option as per clause 3.

It can be safely concluded from the above, that the basic purpose of Clause 6 is to complete minimum years of qualified pension service for all existing and recruited employees before 1.4.1982 and retired between 1.4.1982 to 15.10.1984 and recruited after 1.4.1982, like the petitioner, clause 6 cannot be pressed into service for exercising option for the scheme by both pre and post 1.4.1982 recruitees, Page 74 of 121 Downloaded on : Fri Aug 05 21:09:47 IST 2022 C/SCA/20385/2019 CAV JUDGMENT DATED: 04/08/2022 otherwise even clause 4 will be rendered nugatory. At the same time, failure to exercise an option on the part of post 1.4.1982 recruitee, making him vulnerable for benefits of previous services as per clause 6, will be against the spirit and object of the scheme and will be creating artificial, arbitrary and discriminatory dividing line amongst university teaching staff not found in clause 6.

16.4. Likewise it was not obligatory at all upon the petitioner to exercise option as per subsequent G.R. 's dated 17.12.1987 and 17.9.1991 in view of the fact that the petitioner was automatically governed by pension scheme by G.R. dated 15.10.1984. At the same time there is no break of service of the petitioner from 22.7.1968 to 30.11.2000 and, therefore, rest of contents of clause 6 are not to be gone into.

16.5. Thus, when clause 6 is unambiguous and benefits of all previous services are not restricted to optee only, no other interpretation is permissible and restricting such benefits to the recruitee like the petitioner pursuant to fresh appointment on or after 1.4.1982 and automatically governed by clause 4 of the G.R., any attempt to add or alter any meaning of any word of phrase of clause 6 would amount giving narrow meaning to clause 6 which is not envisaged at all by the draftsman of the resolution. Therefore, the petitioner is entitled for continuity and gets benefit of all previous services rendered in B.V.M. College of Engineering and S.V.R. College of Engineering and Technology and the same is rightly Page 75 of 121 Downloaded on : Fri Aug 05 21:09:47 IST 2022 C/SCA/20385/2019 CAV JUDGMENT DATED: 04/08/2022 considered by respondents No. 1 and 4 at relevant point of time while granting voluntarily retirement to the petitioner and, therefore, now they cannot be permitted to take another view and they are estopped from doing so. The petitioner has relied and acted on the orders passed by respondents No. 1 and 4 and preponed the date of superannuation now cannot be placed in disadvantageous position on the basis of ipsi-dixi of officers of Respondents No.1 and 4.

16.6. The above fact will be clear if we read Clause 7 in juxtaposition to Clause 4 and 6, which carves out an exception with regard to applicability of general provision of Chapter 11 of B.C.S.R. Volume I in granting retirement benefits in case if a special provisions are made, the above applicability can be kept aside and this pension scheme of G.R. dated 15.10.1984 being a special scheme conferring benefits of pension and retiral dues, will govern the case of the petitioner and the contention of learned AGP about applicability of Rule 41(1)

(a) cannot be accepted and is hereby rejected.

17. Thus, non-consideration of above aspect by learned Single Judge of this Court in decision of Dr. Nalini V. Dave (supra) also fails."

The Division Bench in the appeal so filed by the Director of Pension and Provident Fund being Letters Patent Appeal No. 1151 of 2008 challenging the above confirmed the said view. The SLP filed before the Apex Court challenging the order in appeal was also Page 76 of 121 Downloaded on : Fri Aug 05 21:09:47 IST 2022 C/SCA/20385/2019 CAV JUDGMENT DATED: 04/08/2022 dismissed.

9.4 In the case of Maheshbhai H. Bhatt vs. Secretary and Others rendered on 07.02.2014 in Letters Patent Appeal No. 1213 of 2010 the petitioner therein was appointed as an accountant in L.M. College of Pharmacy initially and thereafter, he was promoted to the post of Office Superintendent on November 09, 1989 and was posted in L.D. Arts College. While in service, he was dismissed on January 04, 1995. He challenged his order of dismissal before the Gujarat Affiliated Colleges Services Tribunal at Ahmedabad and on June 26, 2002, a compromise pursis was tendered before the Tribunal. The College Management withdrew the order of dismissal on a condition that he would opt for Voluntary Retirement and on such pursis, the Tribunal passed an order. As the Government official had not signed the said pursis, he needed to approach the Tribunal for implementation. Such approach was critisized by the Tribunal and further observations were made on July 09, 2003 against the Government officers. Pending such proceedings before the Tribunal, the petitioner preferred Special Civil Application No.21986 of 2005 before this Court, praying for release of his pension. He withdrew his application before the Tribunal and the Government when passed a detailed speaking order holding that the petitioner was required give his option for switching over from Contributory Provident Fund Scheme to the pension scheme and as such option was not given, he continued to be governed by the CPF scheme and, therefore, he cannot claim the pension. Such decision was Page 77 of 121 Downloaded on : Fri Aug 05 21:09:47 IST 2022 C/SCA/20385/2019 CAV JUDGMENT DATED: 04/08/2022 challenged by the appellant employee and this Court held in favour of the employee.

9.5 The relevant paragraphs in the said case of Maheshbhai H. Bhatt (supra) read as under:

"3. Before adverting to the rival contentions, th we may notice that till 9 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.

rd

4. On 3 July 1987, the Government issued a Resolution promulgating a pension scheme for the full time non-teaching staff of the affiliated and aided non-Government Arts, Science, Commerce and Education Colleges in the State st with effect from 1 April 1982. Such pension scheme was applicable to those members of non-teaching staff of the said colleges who were st in service as on 1 April 1982 and recruited thereafter. For the members of the existing staff recruited before 1.04.1982 and those of st the employees, who had retired after 1 April rd 1982, but before the date of the G.R ie., 3 July 1987, option was given whether to continue in CPF Scheme or switch-over to the pension scheme. Those employees who had st been recruited after 1 April 1982, there was Page 78 of 121 Downloaded on : Fri Aug 05 21:09:47 IST 2022 C/SCA/20385/2019 CAV JUDGMENT DATED: 04/08/2022 no 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 non-Government College includes non- Government affiliated Arts, Science, Commerce and B.Ed. Colleges receiving grant-in-aid 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 Page 79 of 121 Downloaded on : Fri Aug 05 21:09:47 IST 2022 C/SCA/20385/2019 CAV JUDGMENT DATED: 04/08/2022 st Resolution died on any date on or from 1 April 1982 and on or before expiry of the date before 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 st after 1 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 Grant-in-Aid 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.

nd 4.2 We may also notice that on 22 March 1993, Government issued a resolution making pension scheme for the full-time teaching and non-teaching staff of the non-Government Page 80 of 121 Downloaded on : Fri Aug 05 21:09:47 IST 2022 C/SCA/20385/2019 CAV JUDGMENT DATED: 04/08/2022 Degree and Diploma Colleges in the State. This pension scheme was made applicable with st effect from 1 April 1989. Similar options as in rd the G.R dated 3 July 1989 were made available to the employees who were in service st on 1 April 1989 and thereafter whether to be retired in CPF scheme or switch-over 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 petitioners 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 post- retiral benefits. What these post retiral benefits include is a more complex question, to which Page 81 of 121 Downloaded on : Fri Aug 05 21:09:47 IST 2022 C/SCA/20385/2019 CAV JUDGMENT DATED: 04/08/2022 we would devote more discussion later. At this stage, we may recall that the appellant- petitioner 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 th compromise pursis. In such pursis dated 26 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 th from 4 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 th 18 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.

6.1 Though the Government was not a signatory to the compromise pursis entered into between the petitioner and the college, it Page 82 of 121 Downloaded on : Fri Aug 05 21:09:47 IST 2022 C/SCA/20385/2019 CAV JUDGMENT DATED: 04/08/2022 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 appellant- petitioner would be entitled to receive all the post-retiral benefits as if he had retired th voluntarily with effect from 4 January 1995."

In the facts, therefore, the Court held that those who were recruited on or after 01.04.1982 had not to exercise any option and they would be automatically governed by the pension scheme.

9.6 In the case of Banuben Rameshbhai Dhakkan vs. State of Gujarat through Secretary and Others decided on 22.01.2015 in Special Civil Application No. 740 of 2013 the question for consideration was in relation to the petitioner therein who was a Lecturer in J.J. Kundaliya Commerce College for a period from August 12, 1974 to August 30, 1995. However, the person concerned resigned and got appointment as Principal in a college, wherein the respondent therein appointed the petitioner therein vide appointment letter dated June 29, 1995 with effect from July 01, 1995, which was approved by the University. However, on his retirement on October 31, 2012, the petitioner has been denied the benefit of pension under the Government Resolution dated October 15, 1984 on the ground that the petitioner therein did not exercise the option for pension scheme Page 83 of 121 Downloaded on : Fri Aug 05 21:09:47 IST 2022 C/SCA/20385/2019 CAV JUDGMENT DATED: 04/08/2022 within the time stipulated as required by the said Government Resolution, making reference to the decision rendered by this Court in Special Civil Application No.12214 of 2005 rendered on August 07, 2013, the Court held that there is fresh appointment after the said Government Resolution and, therefore, the benefits flowing from the said Government Resolution are required to be granted to the petitioner therein. The Court also made a reference of the said decision having been confirmed by the Division Bench in Letters Patent Appeal No.447 of 2014 and accordingly held thus :

"14. Impugned order dated 15.9.2012 at Annexure-A is quashed and set aside. The petitioner is held entitled to the benefit of pension (GPF scheme) under the resolution dated 15.10.1984 with effect from the date the petitioner joined as Principal from 1.4.1996. The respondents are directed to give benefit of GPF scheme to the petitioner by transferring the account of the petitioner from CPF to GPF if the petitioner is not paid any amount from CPF account, however if the petitioner has received any amount from her CPF account, the petitioner shall be entitled to the benefit of pension scheme under the resolution dated 15.10.1984 only on petitioner depositing such amount with the respondent No.2. For such purpose, the respondent No.2 shall intimate the petitioner within a period of one month from the date of receipt of this order to deposit the amount of CPF received by her for the period of service after 1.4.1996. After the petitioner receives such intimation, she shall deposit the Page 84 of 121 Downloaded on : Fri Aug 05 21:09:47 IST 2022 C/SCA/20385/2019 CAV JUDGMENT DATED: 04/08/2022 CPF amount within a period of one month thereafter with the respondent No.2. The respondent Nos.1 and 2 shall then complete the exercise of transferring the CPF amount to GPF account and finalize the pension case of the petitioner within a period of three months. However, if the petitioner has not received any CPF amount, the respondent Nos.1 and 2 shall complete the exercise of transferring the CPF amount to GPF account and finalize the pension case of the petitioner within a period of three months from the date of receipt of this order.

Rule is made absolute to the aforesaid extent."

9.7 In the case of Bhupendra Vallabhdas Chudasama vs. State of Gujarat rendered in Special Civil Application No. 7173 of 2012, which was held in favour of the petitioner, the Division Bench in Letters Patent Appeal No. 981 of 2015, confirmed the order of the learned Single Judge. The Division Bench of this Court held as under:

"From the aforesaid it appears that prior to 01.04.1982 the GPF Scheme / Pension Scheme and other retirement benefits admissible under the Gujarat State Government Servants was not applicable / admissible to the full time teaching staff of the University under the Education Department and in affiliated and aided non- government Arts, Science and Commerce Colleges in the State. By G.R. dated 15.10.1984, the State Government came out with a pension scheme for the teaching staff in the non-government affiliated colleges in the universities and by the G.R. dated 15.10.1984, Page 85 of 121 Downloaded on : Fri Aug 05 21:09:47 IST 2022 C/SCA/20385/2019 CAV JUDGMENT DATED: 04/08/2022 which was made effective from 01.04.1982, the pension, gratuity and other retiral benefits admissible to the Gujarat State Government servants under the Revised Pension Rules, 1950 contained in Appendix XIV-C to BCSR Rules, Volumes II, as amended from time to time, the family pensions scheme sanctioned in Government Resolution, Finance Department No.FPS-1071-J dated 01.01.1972 as amended from time to time is made applicable to the full time teaching staff of the universities under the Education Department and in affiliated and aided non-Government Arts, Science, Commerce and Education Colleges in this State with effect from 01.04.1982. As noted hereinabove, the said scheme is made applicable with effect from 01.04.1982. If Clause 3 is perused, two types of employees were to exercise option viz. (1) members of the existing staff recruited before 01.04.1982 and (2) those staff who have retired on or after 01.04.1982 and prior to the date of issue of the G.R. dated 15.10.1984, even the period of one year from the above date, whether to continue in CPF or to go under the pension scheme and such option was to be final. The reason for giving such option by the aforesaid two types of employees was because at the time and prior to the issuance of the G.R. dated 15.10.1984 which was made effective from 01.04.1982, the employee had no opportunity whatsoever, whether to opt for pension or for any other scheme and/or such employee should be governed by the prevailing system of CPF.

Clause No.4 of the G.R. dated 15.10.1984 makes it very much clear that member of staff recruited on or after 01.04.1982 shall Page 86 of 121 Downloaded on : Fri Aug 05 21:09:47 IST 2022 C/SCA/20385/2019 CAV JUDGMENT DATED: 04/08/2022 automatically be governed by the said scheme and such staff will not be allowed to opt for CPF. Therefore, all the employees recruited on or after 01.04.1982 shall automatically be governed by the Pension Scheme under the G.R. dated 15.10.1984 and only those employees who were recruited prior to 01.04.1982, meaning thereby the existing staff recruited before 01.04.1982 and those who have retired on or after 01.04.1982, but prior to the date of the issuance of the G.R. dated 15.10.1984 were required to exercise the option as to whether they would like to continue in CPF or to go under the pension scheme as per the G.R. dated 15.10.1984. Under the circumstances, as such the employee who was recruited after 01.04.1982 was not required to exercise any option as there was no such need under the G.R. dated 15.10.1984 to exercise such option by such employees who are recruited after 01.04.1982. Therefore, the contention of learned Government Pleader that the original petitioner was required to exercise option for pension and as at the time of joining original respondent No.4 College i.e. in the year 1987, he did not give any option and therefore, the petitioner is not entitled to the pension under the G.R. dated 15.10.1984 cannot be accepted and is hereby rejected. On fair reading of the entire G.R. dated 15.10.1984, it is observed and held that any staff and/or employee of the University under the Education Department and in affiliated and aided non-government Arts, Science and Commerce Colleges in the State, appointed / recruited after 01.04.1982 shall automatically be governed by the G.R. dated 15.10.1984 and Page 87 of 121 Downloaded on : Fri Aug 05 21:09:47 IST 2022 C/SCA/20385/2019 CAV JUDGMENT DATED: 04/08/2022 shall be entitled to the pension scheme automatically and they are not required to give any option.

[6.2] Now, so far as question Nos.2 and 3 posed for consideration of this Court referred to hereinabove i.e. with respect to past services of such an employee is concerned, as such Clause 6 of the G.R. dated 15.10.1984 is very clear. Clause 6 of the G.R. dated 15.10.1984 confers benefits upon an employee of all previous services whether temporary, officiating or permanent, either in one or more than one non- government aided colleges, University Department, Higher Secondary School, who were being paid Grant-in-aid from Government, shall be taken into account for computing the length of qualifying service for pension under the said scheme. Therefore, all previous services whether temporary, officiating or permanent either in one or more than one non- government aided colleges, University Department, Higher Secondary School, who were being paid Grant-in-aid from the Government was required to be taken into account for computing the length of qualifying service for pension. For example if the qualifying service for pension is 10 years and after getting appointment after 01.04.1982 an employee does not have the qualifying service of 10 years, however his previous service prior to 01.04.1982 whether temporary, officiating or permanent either in one or more than one non- government aided colleges, University Department, Higher Secondary School who were being paid Grant-in-aid is counted and thereafter it is found that he is fulfilling the Page 88 of 121 Downloaded on : Fri Aug 05 21:09:47 IST 2022 C/SCA/20385/2019 CAV JUDGMENT DATED: 04/08/2022 qualifying service for pension, in that case, his past services is required to be counted and/or taken into account for computing the qualifying length of service for pension. However, his previous service is not required to be considered for any other purpose other than for computing the length of qualifying service for pension i.e. for fixation of pension etc. Therefore, on fair reading of Clause 6 of the G.R. dated 15.10.1984, it is observed and held that all the previous services of the employee who has been appointed after 01.04.1982, is required to be counted and/or taken into account for computing the qualifying length of service for pension only.

[6.3] Identical question came to be considered by the learned Single Judge in the case of S.S. Patel (Supra). On interpretation of the very G.R. dated 15.10.1984, it is observed that so far as the width and amplitude of Clause 6 of the G.R. dated 15.10.1984 is concerned, it confers benefits upon employees of all previous service whether temporary, officiating or permanent either in one or more than one non-government aided Colleges, University, Higher Secondary School who are being paid grant-in-aid from Government, shall be taken into account for computing the length of qualifying service for pension under the said scheme. Considering Clause 3 and 4 of the aforesaid G.R. dated 15.10.1984 it is further observed that the member of the staff recruited on or after 01.04.1982 was not supposed to exercise an option since he was to be automatically governed by the scheme.

Page 89 of 121 Downloaded on : Fri Aug 05 21:09:47 IST 2022

C/SCA/20385/2019 CAV JUDGMENT DATED: 04/08/2022 We are in complete agreement with the view taken by the learned Single Judge referred to hereinabove.

[7.0] In view of the above, it cannot be said that the learned Single Judge has committed any error in directing the appellants to consider the previous service of the original petitioner i.e. for the period between 27.06.1968 to 17.11.1969 and 15.06.1970 to 30.06.1975 for computing the length of qualifying service for pension. However, as clarified hereinabove, the aforesaid previous service is required to be counted/considered and/or to be taken into consideration for computing the length of qualifying service only and not for computation of the pension and/or fixation of the amount of pension, as prior to 01.04.1982, the GPF Scheme / pension scheme was not applicable at all and it is made applicable with effect from 01.04.1982 and therefore, the past service / previous service is required to be taken into account only for computing the length of qualifying service for pension as per Clause 6 of the G.R. dated 15.10.1984. It is required to be noted that in the present case as such even if his previous service is not taken into account for fixation of the pension and/or for quantification of the amount of pension, the amount of pension is not likely to be changed. As observed hereinabove, the original petitioner was mainly denied the pensionary benefits / GPF Scheme as per the G.R. dated 15.10.1984 mainly on the ground that at the time when the original petitioner joined original respondent No.4 College/institution, he did not exercise the option for the pension scheme, Page 90 of 121 Downloaded on : Fri Aug 05 21:09:47 IST 2022 C/SCA/20385/2019 CAV JUDGMENT DATED: 04/08/2022 which as observed and held hereinabove the original petitioner was not required to exercise such an option.

9.8 In the case of L.P. Joshi vs. State of Gujarat and another decided by way of Special Civil Application No. 12241 of 2005 wherein the prayer was made by the petitioner to avail the benefit of the GPF Scheme and to treat the petitioner as newly appointed person on the post, this Court held that the transfer of the petitioner from CPF to GPF is automatic. The petitioner therein was also a Lecturer in Arts and Commerce College. He resigned from his service on July 02, 1991 on getting new appointment which was approved by the North Gujarat University. He was then selected in Arts and Commerce College vide order dated April 26, 1994, which was sanctioned by the Commissioner of Higher Education. It was his case that since he was covered under the pension scheme, a request was made to transfer his entitlement from CPF to the GPF. He was denied such benefit. He sent his option form for GPF, however, it was rejected on the ground that time limit for exercising such option had expired. It was the say of the then respondent-authority that as per Clause 3(1) after introduction of Government Resolution dated October 15, 1984, the existing staff members recruited before April 01, 1982, were required to exercise option within a period of one year from the date of coming into effect of the said Government Resolution. The said limit was extended for a further period of one year upto March 31, 1986 and thereafter, vide Page 91 of 121 Downloaded on : Fri Aug 05 21:09:47 IST 2022 C/SCA/20385/2019 CAV JUDGMENT DATED: 04/08/2022 Government Resolution dated October 11, 1988, the said time limit for exercising the option was extended for a further period of three months from the date of the said Government Resolution. Once again such time limit was extended for an additional period of two months vide Government Resolution dated September 17, 1991. However, those who did not opt for joining the GPF scheme, were held not entitled for the same.

9.8.1 As against the said order, an intra-court appeal being Letters Patent Appeal No.447 of 2014 was preferred, which ultimately came to be dismissed confirming the order passed by the learned Single Judge. It would be beneficial to reproduce the relevant paragraph of the said decision, which reads as under :

"4. We have gone through the facts of the case, and therefore, after going through the reply and more particularly Page-50 of the Paper Book, it is amply clear that the Respondent had already exercised his option. We are, therefore, unable to accept the submission made by Mr. Sharma that since, the Respondent had not exercised the option, he cannot be granted the benefit of GPF Scheme. Aforesaid submission of Mr. Sharma requires to be rejected also on the ground that the Respondent joined services with Ambaji Arts College, Ambaji, on 02.07.1991, i.e. after the issuance of GR of 1984. The above aspect further becomes clear from the observations made by the learned Single Judge at Paras-11 and 12 of the impugned judgment, which is reproduced herein below :

Page 92 of 121 Downloaded on : Fri Aug 05 21:09:47 IST 2022

C/SCA/20385/2019 CAV JUDGMENT DATED: 04/08/2022 "11. As per the resolution of the Government for Pension Scheme, only those teachers who were recruited prior to 01.04.1982 were required to exercise option to be governed by the Pension Scheme. Since the appointment of the petitioner from 02.07.1991 in Ambaji Arts College at Ambaji was after his resignation from the earlier college, the petitioner could not have been considered as recruited prior to 01.04.1982. For the purpose of Pension Scheme, the petitioner shall be required to be considered as recruited after 01.04.1982 and would thus stand governed by the Pension Scheme.

Reliance placed by the respondent No.2 on Clause No.8 of the resolution dated 15.10.1984 for refusing the request of the petitioner to take in GPF Scheme is on wrong reading of the resolution dated 15.10.1984. The respondent No.2 in impugned order dated 16.03.2005 has stated that as per Clause 8 of the resolution dated 15.10.1984 those teachers appointed prior to 1984 change the college or university on getting appointment as Principal are required to be treated as an employee of existing establishment and their age of retirement shall be 60 years. Such is wrong reading of Clause 8 of the resolution dated 15.10.1984. Clause 8 of the said resolution reads as under:-

The age of superannuation retirement for the existing staff covered under the scheme shall be 60 years. The age of superannuation retirement for the staff that may be recruited Page 93 of 121 Downloaded on : Fri Aug 05 21:09:47 IST 2022 C/SCA/20385/2019 CAV JUDGMENT DATED: 04/08/2022 on or from 1984 shall 58 years for which universities should be requested to take necessary action to amend the relevant statute.

5. From the record, it also transpires that there are two different retirement ages for two different category of employees. Since, the Respondent resigned from his earlier service with a private college in the year 1991, he became a new entrant, and therefore, the learned Single Judge rightly concluded that the GR dated 15.10.1984 will not apply to him. The learned Single Judge has considered the entire material placed before him and has passed the impugned judgment and order, quashing and setting aside the order of Appellant No.2 by passing and we are unable to persuade ourselves that any other view of the matter, than, the one taken by the learned Single Judge can be taken.

6. Insofar as the reliance placed on by Mr. Sharma on a decision of the Apex Court in the case of KENDRIYA VIDYALAYA SANGATHAN VS. JASPAL KAUR, 2007 (0) GLHEL-SC 39427 is concerned, same would not apply to the facts of the case on hand for the reason that the employee, in the said case, had clearly exercised her option, showing her willingness to continue with CPF Scheme, and therefore, the Apex Court rightly held that once having exercised option to avail benefits of CPF Scheme, the employee cannot be permitted to claim the benefits under GPF Scheme by changing her option, at a later stage.

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7. As regards the decision in the case of RAJASTHAN STATE ROAD TRANSPORT CORPORATION VS. PRESIDENT, RAJASTHAN ROADWAYS UNION, 2012(0)GLHEL-SC 52110, relied on by Mr. Sharma is concerned, in that case the employee, who had expired in harness, had not exercised the option for availing the benefits of GPF Scheme, though, the notification for the same was issued to all the departments, and therefore, the Apex Court held that the family members of the deceased employee, who had received benefits under CPF Scheme, cannot be granted the benefits of GPF Scheme, which is not the case with the present Respondent. Hence, this decision will also not help the case of the appellant in any manner.

8. However, the decision of the learned Single Judge in the case of SS PATEL VS.

DIRECTOR OF PENSION & PROVIDENT FUND & ORS., rendered in Special Civil Application No.29641 of 2007 and relied on by Mr. Sheth, learned Advocate for the Respondent, would squarely apply to the case of the present respondent. In that case, the learned Single Judge held that, since, the petitioner had entered into the service with the institution, which was governed by pension Scheme, after the issuance of G.R. Of 1984, he was entitled to get the benefits of pension scheme.

9. In the result, the appeal fails and is summarily DISMISSED.

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10. Since, the main matter is dismissed, civil application shall not survive and it also stands DISPOSED OF, accordingly."

9.9 In the case of Uma V. Chudasama v. State of Gujarat and others, which came up for consideration by way of Special Civil Application No.11473 of 2013, the Division Bench of this Court while deciding the appeal being Letters Patent Appeal No. 1019 of 2015 assailing the order passed in the Special Civil Application held as under:

"[5.0] Heard learned advocate appearing on behalf of respective parties at length. At the outset it is required to be noted that as such the appellant herein original petitioner served as a Lecturer with the M.S. University, Vadodara from 24.10.1980 till she was appointed as a Reader vide order 05.02.1986. It is also not in dispute that thereafter she was then selected for the post of Professor and was appointed on the post of Professor vide order dated 25.09.1986 and she served on the said post of Professor till she retired on 14.06.2012. Thus, her appointment as Reader and Professor was after 15.10.1984.

[5.1] Identical question came to be considered by the Division Bench of this Court in the case of Bhupendra Vallabhdas Chudasama and Anr. (Supra) rendered in Letters Patent Appeal No.981/2015 and after considering the G.R. dated 15.10.1984 and on interpreting the said resolution it is held that any staff and/or employee of the University under the Education Page 96 of 121 Downloaded on : Fri Aug 05 21:09:47 IST 2022 C/SCA/20385/2019 CAV JUDGMENT DATED: 04/08/2022 Department and in affiliated and aided non-

government Arts, Science and Commerce Colleges in the State, appointed / recruited after 01.04.1982 shall automatically be governed by the G.R. dated 15.10.1984 and shall be entitled to the pension scheme automatically and they are not required to give any option. In para 7 the Division Bench has observed and held as under:

[7.0] In view of the above, it cannot be said that the learned Single Judge has committed any error in directing the appellants to consider the previous service of the original petitioner i.e. for the period between 27.06.1968 to 17.11.1969 and 15.06.1970 to 30.06.1975 for computing the length of qualifying service for pension. However, as clarified hereinabove, the aforesaid previous service is required to be counted/considered and/or to be taken into consideration for computing the length of qualifying service only and not for computation of the pension and/or fixation of the amount of pension, as prior to 01.04.1982, the GPF Scheme / pension scheme was not applicable at all and it is made applicable with effect from 01.04.1982 and therefore, the past service / previous service is required to be taken into account only for computing the length of qualifying service for pension as per Clause 6 of the G.R. dated 15.10.1984. It is required to be noted that in the present case as such even if his previous service is not taken into account for fixation of the pension and/or for quantification of the amount of pension, the amount of pension is not likely to be changed.

As observed hereinabove, the original Page 97 of 121 Downloaded on : Fri Aug 05 21:09:47 IST 2022 C/SCA/20385/2019 CAV JUDGMENT DATED: 04/08/2022 petitioner was mainly denied the pensionary benefits / GPF Scheme as per the G.R. dated 15.10.1984 mainly on the ground that at the time when the original petitioner joined original respondent No.4 College/institution, he did not exercise the option for the pension scheme, which as observed and held hereinabove the original petitioner was not required to exercise such an option.

[5.2] The decision of the Division Bench of this Court in the case of Bhupendra Vallabhdas Chudasama and Anr. (Supra) squarely applies to the case on hand. Under the circumstances, the impugned order passed by the learned Single Judge cannot be sustained and the same deserves to be quashed and set aside and it is to be held that petitioner shall be entitled to the pension under the GPF Scheme as per the G.R. dated 15.10.1984 and her earlier services if prior to 01.04.1982, if any, as required to be counted for the purpose of pensionable service only, however before any benefit is granted to the petitioner under the GPF Scheme, the petitioner shall deposit the entire amount of CPF if any received by her during her service and only thereafter she shall be entitled to the benefit of GPF Scheme as per the G.R. dated 15.10.1984."

9.10 The State preferred SLP(C) No. 3831-3832 of 2016 against the said order which was rejected by an order dated 09.03.2016. From these preceding chain of decisions, except in the case of Banuben Dhakkan (supra) wherein SLP(C) No. 9018 of 2016 was filed, by Page 98 of 121 Downloaded on : Fri Aug 05 21:09:47 IST 2022 C/SCA/20385/2019 CAV JUDGMENT DATED: 04/08/2022 an order dated 02.09.2016, before the Apex court could grant stay, the order of the Division Bench is implemented.

10. The State would, therefore, contend that when the issue is at large before the Apex Court in SLPs in the case of Banuben Dhakkan (supra) and Bhupendra Vallabhdas Chudasama (supra), the issue does not stand concluded in favour of the respondent - original petitioners. We see no reason to take a view different from the line of decisions which have stood the test in the decisions rendered by the learned Single Judges and so confirmed by the Division Bench and by the Apex Court, except in the two cases referred to earlier."

7.8 The Division Bench taking into consideration the decision in the case of D.R.R Sastri (supra) and other decisions held as under:

"11. What is evident from the facts in juxtaposition to the case laws cited hereinabove is as under:

(a) The issue as far as this Court is concerned stands concluded by a number of judgements referred to hereinabove. At the outset, it has been reiterated by several judgements of this Court as well as the Apex Court that pension is not a bounty. In the judgement in the case of Deokinandan Prasad vs. State of Bihar reported in (1971) 2 SCC 330, the Apex Court has held as under:

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C/SCA/20385/2019 CAV JUDGMENT DATED: 04/08/2022 "29. We are not inclined to accept the contention of the learned counsel for the respondents. By a reference to the material provisions in the Pension Rules, we have already indicated that the grant of pension does not depend upon an order being passed by the authorities to that effect. It may be that for the purposes of quantifying the amount having regard to the period of service and other allied matters, it may be necessary for the authorities to pass an order to that effect, but the right to receive pension flows to an officer not because of the said order but by virtue of the Rules. The Rules, we have already pointed out, clearly recognise the fight of persons like the petitioner to receive pension under the circumstances mentioned therein.

30. The question whether the pension granted to a public servant is property attracting Art. 31(1) came up for consideration before the Punjab High Court in Bhagwant Singh v. Union of India.

It was held that such a right constitutes "property" and any interference will be a breach of Art. 31(1) of the Constitution. It was further held that the State cannot by an executive order curtail or abolish altogether the right of the public servant to receive pension. This decision was given by a learned Single Judge. This decision was taken up in Letters Patent Appeal by the Union of India. The Letters Patent Bench in its decision in Union of India v.

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C/SCA/20385/2019 CAV JUDGMENT DATED: 04/08/2022 Bhagwant Singh approved the decision of the learned Single Judge. The Letters Patent Bench held that the pension granted to a public servant on his retirement is "property" within the meaning of Art. 31(1) of the Constitution and he could be deprived of the same only by an authority of law and that pension does not cease to be property on the mere denial or cancellation of it. It was further held that the character of pension as "property" cannot possibly undergo such mutation at the whim of a particular person or authority.

31. The matter again came up before a Full Bench of the Punjab and Haryana High Court in K. R. Erry v. The State of Punjab. The High Court had to consider the nature of the right of an officer to get pension. The majority quoted with approval the principles laid down in the two earlier decisions of the same High Court, referred to above, and held that the pension is not to be treated as a bounty payable on the sweet will and pleasure of the Government and that the right to superannuation pension including its amount is a valuable right vesting in a Government servant. It was further held by the majority that even though an opportunity had already been afforded to the officer on an earlier occasion for showing cause against the imposition of penalty for lapse or misconduct on his part and he has been found guilty, nevertheless, when a cut is sought to be Page 101 of 121 Downloaded on : Fri Aug 05 21:09:47 IST 2022 C/SCA/20385/2019 CAV JUDGMENT DATED: 04/08/2022 imposed in the quantum of pension payable to an officer on the basis of misconduct already proved against him, a further opportunity to show cause in that regard must be given to the officer. This view regarding the giving of further opportunity was expressed by the learned Judges on the basis of the relevant Punjab Civil Service Rules. But the learned Chief Justice in his dissenting judgment was not prepared to agree with the majority that under such circumstances a further opportunity should be given to an officer when a reduction in the amount of pension payable is made by the State. It is not necessary for us in the case on hand, to consider the question whether (1) A. T. R. 1962 Punjab 503. (2) I. L. R. 1965 Punjab

1. (3) I. L. R. 1967 Punjab & Haryana 278 652 before taking action by way of reducing or denying the pension on the basis of disciplinary action already taken, a further notice to show cause should be given to an officer. That question does not arise for consideration before us. Nor are we concerned with the further question regarding the procedure, if any, to be adopted by the authorities before reducing or withholding the pension for the first time after the retirement of an officer. Hence we express no opinion regarding the views expressed by the majority and the minority Judges in the above Punjab High Court decision, on this aspect. But we agree with the view of the majority when it has approved its earlier decision that pension is not a bounty payable on the Page 102 of 121 Downloaded on : Fri Aug 05 21:09:47 IST 2022 C/SCA/20385/2019 CAV JUDGMENT DATED: 04/08/2022 sweet will and pleasure of the Government and that, on the other hand, the right to pension is a valuable right vesting in a government servant.

32. This Court in State of Madhya Pradesh v. Ranojirao Shinde and another had to consider the question whether a "cash grant" is "property" within the meaning of that expression in Arts. 19(1)

(f) and 31(1) of the Constitution. This Court held that it was property, observing "it is obvious that a right to sum of money is property".

33. Having due regard to the above decisions, we are of the opinion that the right of the petitioner to receive pension is property under Art. 31 (1) and by a mere executive order the State had no power to withhold the same. Similarly, the said claim is also property under Art. 19(1)(f) and it is not saved by sub-article (5) of Art.

19. Therefore, it follows that the order dated June 12, 1968 denying the petitioner fight to receive pension affects the fundamental right of the petitioner under Arts. 19(1)(f) and 31(1) of the Constitution, and as such the writ petition under Art. 32 is maintainable. It may be that under the Pension Act (Act 23 of 1871) there is a bar against a civil court entertaining any suit relating to the matters mentioned therein. That does not stand in the way of a Writ of Mandamus being issued to the State to properly consider the claim of the Page 103 of 121 Downloaded on : Fri Aug 05 21:09:47 IST 2022 C/SCA/20385/2019 CAV JUDGMENT DATED: 04/08/2022 petitioner for payment of pension according to law."

(b) The objection by the State Government that now the respondents' case is barred by delay deserves to be rejected. In the case of D.R.R Sastri (supra) relied upon by learned Senior Counsel Shri S.N. Shelat, there was a delay in exercise of option. The proposition of law as held so rightly by the learned Single Judge is that had they been asked to opt for pension scheme and informed, they would have done so. Delay in facts of the case would not be fatal and the respondents would be entitled to the benefit of exercising their option. This is particularly when from the minutes of Committee reproduced hereinabove, it is clear that the Committee did recommend that the Professors be given one more chance to exercise their options.

It is also evident that similarly situated petitioners including some of the present respondents had as early as in the year 2007 approached this Court by filing Special Civil Application No. 8383 of 2007 and group matters. This Court after recording the concise facts in the petitions and considering the judgements of the Apex Court and recording the contentions that the petitioners therein were not aware of the options to be given, practically gave positive directions which read as under and obviously therefore the State's objections on the ground of delay cannot be sustained.

"15. I have considered the submissions made by learned advocates Mr. Desai. I Page 104 of 121 Downloaded on : Fri Aug 05 21:09:47 IST 2022 C/SCA/20385/2019 CAV JUDGMENT DATED: 04/08/2022 have also considered the factual aspect in respect to claim of pensionary benefits by the petitioners.

16. Learned Government Pleader Mr. Sunit Shah with learned AGPs appearing on behalf of respondents ? State Authorities submitted that State Government will reconsider the case of petitioners and will also pass appropriate orders within some reasonable time in light of the observations made by the Apex Court as referred above.

17. In this group of petitions, this Court is passing the orders without determination of merits between the parties in respect to claim of pension. The reason behind it is that it is a burden upon the State Government to examine such issue as early as possible in accordance with law. The question is that State Government is not extending the benefit of pension in favour of petitioners and they remained continue as a member in CPF Scheme, however, ultimately, their requests has been rejected only on the ground of which have to shoulder burden of heavy financial liabilities. Therefore, in view of the recent decision of Apex Court in case of A.P.S.R.T.C. & Ors. v. G. Srinivas Reddy & Ors. Reported in 2006 AIR SCW 1108 and also in case of Employees State Insurance Corporation v. All India I.T.D.C. Employees Union & Ors. reported in 2006(2) GCD 1430 (SC). This Court has power to direct the Page 105 of 121 Downloaded on : Fri Aug 05 21:09:47 IST 2022 C/SCA/20385/2019 CAV JUDGMENT DATED: 04/08/2022 respondents ? State Government to reconsider the case of the petitioners in light of the aforesaid background and examine the issue within some reasonable time. It is legal obligation on the part of the State Government to consider such cases of denial of pensionary benefit to the petitioners.

18. In light of the above facts as observed by this Court, it is open for the petitioners to make detailed representation, if they so desire, along with the copy of the aforesaid decision of Apex Court in case of Union of India and Others v. S.L. Verma and Others reported in 2007 (112) FLR 697 to the respondents as early as possible.

19. As and when, the respondents ? State Government received any representation from the petitioners along with the aforesaid decision of the Apex Court, it is directed to the respondents ? State Government to reconsider the matter while examining the earlier representation which has been made by Association and recent one, in light of observations made by the Apex Court in case of Union of India and Others v. S.L. Verma and Others reported in 2007 (112) FLR 697 and pass appropriate reasoned order in accordance with law within a period of four months from the date of receiving the copy of the said order and communicate the same to each petitioner immediately.

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20. It is also directed to the State Government to reconsider the matter with sympathetic approach and to consider the sentimental issue for the concerned employees those who are retiring from the service and not able to get pensionary benefits though other similarly situated employees are getting it and enjoying it.

21. In view of above observation and directions, rule is made absolute to the aforesaid extent in each petition with no order as to costs."

(c) Reading of clauses 3, 4 and 6 of the Government Resolution dated 15.10.1984 indicate that the members of the existing staff recruited before 01.04.1982 and those staff who have retired on or after 01.04.1982 and prior to the date of issue of the resolution only have to exercise their option. Those recruited on or after 01.04.1982 shall automatically be governed by the pension scheme of 1984.

In the case of D.S Nakara vs. Union of India reported in (1983) 1 SCC 305, the Apex Court has held that the pension retirees have to be treated as a homogeneous class and that any further classification amongst them would be violative of Article 14 of the Constitution of India. It was further held that the principle that when a certain date or eligibility criteria is selected with reference to legislative or executive measure which has the pernicious tendency of dividing an otherwise homogeneous class and the choice of beneficiaries of the legislative/executive action becomes selective, the division or classification Page 107 of 121 Downloaded on : Fri Aug 05 21:09:47 IST 2022 C/SCA/20385/2019 CAV JUDGMENT DATED: 04/08/2022 made by choice of date or eligibility criteria must have some relation to the objects sought to be achieved. And apart from the first test that the division must be referable to some rational principle, if the choice of the date or classification is wholly unrelated to the objects sought to be achieved, it cannot be upheld on the specious plea that was the choice of the Legislature. In the facts of the present case, it is evident in accordance with the case of D.S. Nakara (supra), that all of them form a homogeneous group who have been working with the institution and therefore it is not fair for the 'State' to discriminate only on the ground of cut off date.

(d) What is evident from the service details of the respondents is that they had two spells of service. The first spell was prior to 01.04.1982 and the second one after 01.04.1982. As far as the first spell is concerned there was only one scheme CPF, therefore there was no question of exercising option. In the second spell, when they joined there was no question of exercising option as the pension scheme was compulsory. They were, to use the words of clause 4 of the resolution, "automatically" governed by the pension scheme as therefore there was no fault, inaction or omission which would disentitle them to claim pension. The disability of filling in the option form or asking for switching over belatedly cannot be held against them.

(e) As held in the case of S.S. Patel (supra) which has received affirmation even by the Apex Court that the two clauses of the Government Resolution dated 15.10.1984 i.e. Page 108 of 121 Downloaded on : Fri Aug 05 21:09:47 IST 2022 C/SCA/20385/2019 CAV JUDGMENT DATED: 04/08/2022 clauses 4 & 6 respectively cannot be read in isolation of each other, it will not be out of place to repeat the observations of this Court to make that clear.

"16. At the same time the prior to issuance of Government Resolution dated 15.10.1984 which was made effective with retrospective effect from 1.4.1982, employee had no opportunity whatsoever, whether to opt for pension or for any other scheme and such an employee used to be governed by prevailing system of C.P.F.. When the G.R. dated 15.10.1984 came to be issued, the petitioner was serving as a lecturer with S.V.R.College of Engineering and Technology at Surat, which was a Regional Engineering College and later on nomenclatured as National Institute of Technology, the G.R. was not applicable to Engineering College which was under

Government of India. From the record, what appears, the petitioner had continued to be Governed by the existing scheme ?the provident fund for employees of the S.V.R. College of Engineering and Technology (Surat) Society? as per option exercised in 1978. There is no dispute about the amount which was credited in the account of the petitioner, came to be collected and ultimately in year 2000, the petitioner deposited the said amount with interest. After resigning from the S.V.R. College of Engineering, when the petitioner joined as a 'Reader' with South Gujarat University from 31.3.1986 and served upto 5.10.1988, the petitioner was Page 109 of 121 Downloaded on : Fri Aug 05 21:09:47 IST 2022 C/SCA/20385/2019 CAV JUDGMENT DATED: 04/08/2022 a Recruitee after 1.4.1982 and was being governed automatically for pension scheme as introduced by G.R. dated 15.10.1984 and accordingly no contributory amount was deducted and only G.P.F. account was credited. Thus, as a Reader with South Gujarat University, the petitioner was getting benefit of the pension scheme. Even as per the respondents, the period commencing from 31.3.1986 till the date of voluntary retirement on 30.11.2000, the service of the petitioner can be considered for pensionable job. The above fact is admitted in para 10 of the affidavit-in-

th reply dated 19 December, 2007 filed by Accounts Officer of Commissioner of Higher Education and, therefore, the interpretation of Government Resolution dated 15.10.1984 mainly revolves round Clauses 3, 4, 6 and 7 of the above Government Resolution and to be examined accordingly.

16.1. If the Government Resolution dated 15.10.1984 is perused the preamble of the resolution is pertaining to grant of benefit of pension scheme for the teaching staff in the Non-Government Affiliated Colleges and in the Universities at par with employees of the Government of Gujarat under Revised Pension Rules, 1950 as amended from time to time. Therefore, if Clause 3 is perused, two types of employees were to exercise option, viz. (1) members of the existing staff recruited Page 110 of 121 Downloaded on : Fri Aug 05 21:09:47 IST 2022 C/SCA/20385/2019 CAV JUDGMENT DATED: 04/08/2022 before 1.4.1982 and (2) those staff who have retired on or after 1.4.1982 and prior to the date of issue of this resolution within a period of one year from the above date, whether to continue in C.P.F. or to go under the pension scheme and such option was to be final. In Clause 4, it is clearly stated that member of the staff st recruited on or after 1 April, 1982 shall automatically be governed by this scheme and such staff will not be allowed to opt for C.P.F. Therefore, if principle of plain reading is applied, all the contents of the clauses read together, what transpires is that the member of the staff recruited on st or after 1 April, 1982 was not supposed to exercise an option since he was to be automatically governed by the scheme. So far as the petitioner is concerned, he was recruited directly after the advertisement issued by the concerned Universities on the post of 'Reader' in South Gujarat University on 31.3.1986 to 5.10.1988 and later on appointed in the M.S. University as a 'Reader' from 6.10.1988 after undergoing valid selection procedure. Thus, the case of the petitioner is not governed by Clause 3 of the Government Resolution in view of fact that neither the petitioner is a member of existing staff recruited prior to 1.4.1982 nor he retired from 1.4.1982 to 15.10.1984. Therefore, the contention of learned AGP that the petitioner was to exercise option for pension which was mandatory, cannot be accepted and is hereby rejected.

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C/SCA/20385/2019 CAV JUDGMENT DATED: 04/08/2022 16.2. So far as width and amplitude of Clause 6 of Government Resolution is concerned, it confers benefits upon an employee of all previous service whether temporary, officiating or permanent either in one or more than one non-government aided Colleges, University, Higher Secondary School who are being paid grant-in-aid from Government shall be taken into account for computing the length of qualifying service for pension under this scheme. If the above clause is made applicable to the petitioner, service rendered in the B.V.M.College of Engineering at Vallabh Vidhyanagar as 'Assistant Lecturer' and even, subsequent service as a 'Lecturer' in the S.V.R. College of Engineering and Technology are to be counted since the above two colleges are recognised colleges and in view of service rendered in Non-

Government Aided Colleges of the State of Gujarat and Union of India can be considered for qualifying service for pension and calculation of pensionable qualifying service by two offices of respondent Nos. 1 and 5 at the time of accepting application for voluntary retirement of the petitioner was just and proper and cannot be brought within the preview of Rule 41 (1) (a) of the Pension Rules, to deny pension to the petitioner, on the ground that the petitioner had not rendered any service in a pensionable establishment. The fact remains that the petitioner was a member of C.P.F. in both Page 112 of 121 Downloaded on : Fri Aug 05 21:09:47 IST 2022 C/SCA/20385/2019 CAV JUDGMENT DATED: 04/08/2022 the above colleges and resigned from the service and ceased to be a member of C.P.F. for all purposes. It is very clear from the plain reading of clause 6 that clause 6 does not distinguish employees rendering service in a pensionable or non- pensionable establishment and on the contrary it covers all kinds of services even temporary or officiating rendered in Non-Government Aided Colleges. Even otherwise, no material contrary exist to show that the above two colleges were non-pensionable establishment.

16.3. If the submissions of learned AGP are accepted that to get benefits of clause 6 of G.R. of 15.10.1984, option is to be exercised as per clause 3, provisions of clause 6 will become redundant and inoperative for a recruitee on or after 1.4.1982. Neither clause 4 nor clause 6 envisaged or mandate a recruitee after 1.4.1982 to exercise any option as per clause 3.

It can be safely concluded from the above, that the basic purpose of Clause 6 is to complete minimum years of qualified pension service for all existing and recruited employees before 1.4.1982 and retired between 1.4.1982 to 15.10.1984 and recruited after 1.4.1982, like the petitioner, clause 6 cannot be pressed into service for exercising option for the scheme by both pre and post 1.4.1982 recruitees, otherwise even clause 4 will be rendered nugatory. At the same time, Page 113 of 121 Downloaded on : Fri Aug 05 21:09:47 IST 2022 C/SCA/20385/2019 CAV JUDGMENT DATED: 04/08/2022 failure to exercise an option on the part of post 1.4.1982 recruitee, making him vulnerable for benefits of previous services as per clause 6, will be against the spirit and object of the scheme and will be creating artificial, arbitrary and discriminatory dividing line amongst university teaching staff not found in clause 6.

16.4. Likewise it was not obligatory at all upon the petitioner to exercise option as per subsequent G.R. 's dated 17.12.1987 and 17.9.1991 in view of the fact that the petitioner was automatically governed by pension scheme by G.R. dated 15.10.1984. At the same time there is no break of service of the petitioner from 22.7.1968 to 30.11.2000 and, therefore, rest of contents of clause 6 are not to be gone into.

16.5. Thus, when clause 6 is unambiguous and benefits of all previous services are not restricted to optee only, no other interpretation is permissible and restricting such benefits to the recruitee like the petitioner pursuant to fresh appointment on or after 1.4.1982 and automatically governed by clause 4 of the G.R., any attempt to add or alter any meaning of any word of phrase of clause 6 would amount giving narrow meaning to clause 6 which is not envisaged at all by the draftsman of the resolution. Therefore, the petitioner is entitled for continuity and gets benefit of all previous services rendered in B.V.M. College of Engineering Page 114 of 121 Downloaded on : Fri Aug 05 21:09:47 IST 2022 C/SCA/20385/2019 CAV JUDGMENT DATED: 04/08/2022 and S.V.R. College of Engineering and Technology and the same is rightly considered by respondents No. 1 and 4 at relevant point of time while granting voluntarily retirement to the petitioner and, therefore, now they cannot be permitted to take another view and they are estopped from doing so. The petitioner has relied and acted on the orders passed by respondents No. 1 and 4 and preponed the date of superannuation now cannot be placed in disadvantageous position on the basis of ipsi-dixi of officers of Respondents No.1 and 4.

16.6. The above fact will be clear if we read Clause 7 in juxtaposition to Clause 4 and 6, which carves out an exception with regard to applicability of general provision of Chapter 11 of B.C.S.R. Volume I in granting retirement benefits in case if a special provisions are made, the above applicability can be kept aside and this pension scheme of G.R. dated 15.10.1984 being a special scheme conferring benefits of pension and retiral dues, will govern the case of the petitioner and the contention of learned AGP about applicability of Rule 41(1) (a) cannot be accepted and is hereby rejected."

(f) Considering the tenor of the word "recruitment" as held in the case of K. Narayan vs. State of Karnataka reported in AIR 1994 SC 55, which according to the dictionary meaning means "enlist", it includes any method of inducting a person in public Page 115 of 121 Downloaded on : Fri Aug 05 21:09:47 IST 2022 C/SCA/20385/2019 CAV JUDGMENT DATED: 04/08/2022 service. Appointment, selection, promotion, deputation are all well known methods of recruitment.

12. Having perused the facts in the context of the term what is apparent is from the Government Resolutions dated 23.11.1976 and 14.09.1988, the selection is by issuance of a public advertisement. Once a person makes an application, a duly constituted selection committee is formed. Even in the Career Advancement Scheme, the modus is of recruitment. All these aspects were rightly considered in the decision in the case of Dr. S.G. Trivedi (supra) where the Court specifically held that if it is found that respondent no.1 joined services of South Gujarat University only on 01-10-1984 and the earlier services of respondent no.1 cannot be said to have any bearing on question of applicability of the pension scheme pursuant to Government Resolution dated 15-10-1984, his case for receiving pension would get a boost. On the other hand, if it is found that respondent no.1 who had served in private affiliated aided college right from 1964 and switched over to the university services on 01-10-1984 after tendering technical resignation, joined his duties immediately on the next date in the University Services and that therefore, respondent no.1 should be treated to have been in service prior to 01-04-1982, the State Government would be justified in contending that Tribunal erred in granting pensionary benefits to the respondent no.1.

12.1 In the cases of L.P. Joshi (supra), Page 116 of 121 Downloaded on : Fri Aug 05 21:09:47 IST 2022 C/SCA/20385/2019 CAV JUDGMENT DATED: 04/08/2022 Banuben Dhakkan (supra), Bhupendra Chudasama (supra) and Uma Chudasama (supra), this Court has reiterated and revisited the entire scheme of the Government Resolution dated 15.10.1984 and in no uncertain terms held that if clause no. 3 of the resolution is perused there are two types of employees who have to exercise option namely

(a) members of the existing staff recruited before 01.04.1982 (b) Those staff who have retired on or after 01.04.1982 and prior to the issuance of the Government Resolution dated 15.10.1984. it is therefore the relief of option. Once an employee is a recruit post 01.04.1982, he automatically comes over to the pension scheme.

13. The objection of the State therefore that the subsequent decision of the respondents herein to ask for a switch over due to the rise in pension amounts to the revision of pay will also not hold good. Their coming over to pension being automatic, the State is obliged to extend the benefits. Once the learned Single Judge of the judgement under challenge had asked the State to so consider, the State was bound to consider the same positively in light of the directions so issued and not reject the same on the ground of financial implications. In fact, financial burden is no ground to deny benefits arising from the pension rules.

14. It is required to be noted that so far as the teaching staff is concerned, there is no concept of automatic promotion on higher posts on completion of certain number of years. An employee has to acquire educational Page 117 of 121 Downloaded on : Fri Aug 05 21:09:47 IST 2022 C/SCA/20385/2019 CAV JUDGMENT DATED: 04/08/2022 qualification and put in number of service to secure eligibility criteria for recruitment on higher post. Any appointment either direct or by transfer or by changing the post in the same institute and or in different institute for securing higher post or on a same post made after 1982 is covered under pension scheme - GPF for which option is not to be given as CPF scheme is discontinued with effect from 01.04.1982. It is settled that the employees even though recruited before 01.04.1982 on a given post but subsequently i.e. after 01.04.1982 if they are again recruited after following the procedure prescribed therein, then such employees are not required to give any option to switch over from CPF to GPF because of requirement of clause 4 of the Government Resolution dated 15.10.1984. The said clause 4 at the cost of repetition is reproduced hereinbelow:

"4. The member of the staff st recruited on or after 1 April, 1982 shall automatically be governed by this scheme. Such staff will not be allowed to opt for contributory provident fund scheme."

14.1 Moreover, any recruitment/appointment made after 01.04.1982 for the teaching staff is through advertisement and selection hence it is fresh appointment and therefore pension scheme i.e. GPF is automatically applicable. Further, for the non teaching staff also, their promotion at a particular time is to be Page 118 of 121 Downloaded on : Fri Aug 05 21:09:47 IST 2022 C/SCA/20385/2019 CAV JUDGMENT DATED: 04/08/2022 considered as recruitment and therefore they need not give the option at the time of promotion. In view of the overall facts of the case we are not inclined to entertain these appeals and therefore the appeals deserve to be dismissed.

15. For the aforesaid reasons, the judgements rendered by the learned Single Judges in the respective Letters Patent Appeals are confirmed. The State authorities are directed to grant the benefit of the pension scheme to all the respondents in view of the Government Resolution dated 15.10.1984 from the date of their respective retirement. The respondents who have not refunded/repaid the amount of Contributory Provident Fund, their case be considered by the authorities by paying the amount of pension after adjusting/setting off the amount of Contributory Provident Fund payable by the respondents. In case of the respondents who have refunded/repaid the amount of Contributory Provident Fund, they shall be entitled for interest at the rate of 9% per annum on the amount of pension from the date of their repaying/refunding the amount of Contributory Provident Fund. The respective parties shall act upon these directions and implement the same within 8 weeks from the date of receipt of the writ of the order of this Court. Appeals are accordingly dismissed. Civil Applications also stand disposed of accordingly."

8. What is therefore clear from reading the decision of the Division Bench considering the chequered history Page 119 of 121 Downloaded on : Fri Aug 05 21:09:47 IST 2022 C/SCA/20385/2019 CAV JUDGMENT DATED: 04/08/2022 which has been reproduced in the appeals is that the objection of the State and the subsequent decisions would indicate that it is not open for the State to object that the petitioners are seeking a right to switch over due to rise in pension amounts due to revision of pay. The Division Bench held that their coming over to the pension being automatic the State is obliged to extend the benefits.

Financial burden was no ground to deny the benefit of pension. In para 14 the Division Bench categorically held that any appointment either direct or by transfer or by changing the post in the same institute by securing a higher post or same post after 1982 is governed by the pension scheme and clause 4 thereof would entail that they would not have to exercise option but they would automatically coem under the pension scheme. The Division Bench decision has received affirmation by the Apex Court and it is a fact which is brought out by the learned counsel for the respective parties that the beneficiaries of this judgment pursuant to a settlement in the Lok Adalat are being paid the arrears in accordance with this decision. The facts of the present case Page 120 of 121 Downloaded on : Fri Aug 05 21:09:47 IST 2022 C/SCA/20385/2019 CAV JUDGMENT DATED: 04/08/2022 categorically therefore is governed by the decision of the Division Bench as stated hereinabove and the petitions are therefore required to be allowed.

9. The respondents are directed to grant the benefit of pension scheme to the petitioners in view of the government resolution dated 15.10.1984 from the date of their respective retirement. The petitioners who have not refunded/repaid the amount of CPF, the authorities can consider paying the amount of pension after adjusting/setting off the amount of CPF payable to them.

Petitions are allowed accordingly. Rule is made absolute.

No costs.

(BIREN VAISHNAV, J) DIVYA Page 121 of 121 Downloaded on : Fri Aug 05 21:09:47 IST 2022

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