Gujarat High Court
Janardan Narendrakumar Joshi vs President, Shri Gayatri Vikas Mandal on 20 February, 2020
Author: Biren Vaishnav
Bench: Biren Vaishnav
C/SCA/20835/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 20835 of 2017
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JANARDAN NARENDRAKUMAR JOSHI
Versus
PRESIDENT, SHRI GAYATRI VIKAS MANDAL & 2 other(s)
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Appearance:
MR RR VAKIL(964) for the Petitioner(s) No. 1
MR ISHAN JOSHI, ASST GOVERNMENT PLEADER/PP(99) for the
Respondent(s) No. 3
NOTICE NOT RECD BACK(3) for the Respondent(s) No. 1,2
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CORAM: HONOURABLE MR.JUSTICE BIREN VAISHNAV
Date : 20/02/2020
ORAL ORDER
1. The petitioner has preferred this petition praying for quashing and setting aside the order dated 23.08.2017 passed by the Gujarat Educational Institution Services Tribunal in Application No. 1248 of 2014 (Old Application No. 199 of 2011) and to direct the respondents to start paying pension to the petitioner at the earliest.
2. The case of the petitioner is that he was working as a Junior Clerk from 18.07.1984 in respondent no. 2 school. He was promoted as a Senior Clerk on 10.06.1996. Since the petitioner was keeping unwell, by a letter dated 25.02.1999 he tendered his resignation. It appears that his resignation was accepted. In the petition what is stated is that the petitioner had put in 14 years, 7 months and 8 days of service i.e. he had put in more than 10 years of pensionary service and therefore he is entitled to pension.
Page 1 of 5 Downloaded on : Mon Jun 15 06:46:00 IST 2020 C/SCA/20835/2017 ORDER3. The case of the petitioner is that he approached the Gujarat State Legal Services Cell and pursued his case from 1999 till the year 2011. Having failed to secure a favourable response, he approached the Gujarat Educational Services Tribunal by filing Application No. 199 of 2011. The prayer of the petitioner before the Tribunal was that he was entitled to pension and the respondents were illegally not considering his case for such benefits. Perusal of the Tribunal's order indicates that the Tribunal was of the opinion that after having resigned from service on 25.02.1999, the petitioner had approached the Tribunal 12 years after such resignation. Based on this the Tribunal did not entertain the application. Hence the present petition.
4. Mr. R.R. Vakil, learned advocate for the petitioner submitted that pension is a right of the petitioner and that the petitioner's case may atleast be considered for invalid pension under Rule 258 and/or compassionate pension under Rule 274 of the Bombay Civil Service Rules, 1959.
5. Mr. Ishan Joshi, learned Assistant Government Pleader appearing for the respondent State relies on the affidavit-in- reply filed by one Sangitaben Kantilal Mistry, Education Inspector, District Education Officer, Bharuch. He would submit based on the affidavit-in-reply that since the petitioner had tendered his resignation and had completed 14 years of service, he would not be entitled to invalid pension under Rule 258 read with Rule 201 of the BCSR. According to the affidavit-in-reply since the petitioner did not produce any medical certificate, his entitlement of invalid pension cannot Page 2 of 5 Downloaded on : Mon Jun 15 06:46:00 IST 2020 C/SCA/20835/2017 ORDER be considered.
6. I have heard learned advocates appearing for the respective parties and have gone through the papers on record. At the outset, it shall be relevant to peruse Rule 258 of the BCSR as per which the petitioner seems to be seeking invalid pension. Rule 258 which pertains to invalid pension reads as under:
"258. Unless in any case it be otherwise distinctly provided in sub-section, an invalid pension shall be granted to a Government servant, who is permitted to retire from Government service before reaching the age of superannuation, on production of a medical certificate in the form prescribed in Rule 201, to the effect that he is by mental or bodily infirmity incapacitated for Government service or for the particular branch of Government service to which he belongs.
Provided that no such invalid pension under these rules shall be granted to a Government Servant unless he has completed ten years of qualifying service."
6.1 Perusal of the above rule indicates that an invalid pension shall be granted to a government servant who is permitted to retire from service on production of medical certificate. What appears from the letter dated 25.02.1999 is that the petitioner resigned which cannot be termed as retirement as contemplated under the Rule. No medical certificate was produced at the relevant time while resigning from the service.
6.2 Even compassionate pension would not be available to the petitioner in view of provisions of Rule 274 which provide Page 3 of 5 Downloaded on : Mon Jun 15 06:46:00 IST 2020 C/SCA/20835/2017 ORDER that such compassionate pension is available only to a government servant who is removed or required to retire from government service for misconduct. Rule 274 reads as under:
"274. When a Government servant is removed or required to retire from Government service for misconduct or insolvency, or is removed or required to retire from Government service on grounds of inefficiency before he is eligible for a retiring of superannuation pension, Government may, if the case is considered deserving, of special treatment, sanction the grant to him of a compassionate pension."
6.3 Accordingly the case of the petitioner that for the services rendered prior to the period of his resignation be considered as qualifying service for the purpose of pension cannot be considered as in fact what the petitioner did by the letter dated 25.02.1999 was resign from service. Further, Rule 250 of the BCSR clearly provides that resignation from government service is interruption of service and such an interruption of service entails cancellation of all dues for the purpose of pension. Rule 250 reads as under:
"250 (a) The following constitute an interruption of service:-
(1) Resignation of Government service.
(2) Removal from Government service.
(3) Absence from duty otherwise than on
authorised leave unless the absence follows immediately upon authorised leave and no other Government servant is appointed substantively to the post on which the absentee holds an lien, or on suspension immediately followed by reinstatement.
(b) unless Government in any case otherwise, direct an interruption of service shall entail cancellation of all duty counting for pension."Page 4 of 5 Downloaded on : Mon Jun 15 06:46:00 IST 2020 C/SCA/20835/2017 ORDER
7. In view of the above mentioned rules by which the petitioner was governed at the relevant time, considering the fact that the petitioner resigned from service, no relief qua pension can be granted to him. By resigning from service, the petitioner has forfeited his right to pension. Accordingly, no case is made out for entertaining this petition. Petition is accordingly dismissed.
(BIREN VAISHNAV, J) DIVYA Page 5 of 5 Downloaded on : Mon Jun 15 06:46:00 IST 2020