Gujarat High Court
Ghedia Harischandra Chimanlal vs Govt. Of Gujarat on 5 April, 2016
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/12918/2010 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 12918 of 2010
With
SPECIAL CIVIL APPLICATION NO. 12929 of 2010
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
==========================================================
1 Whether Reporters of Local Papers may be allowed to see the judgment ? NO 2 To be referred to the Reporter or not ?
NO
3 Whether their Lordships wish to see the fair copy of the
judgment ? NO
4 Whether this case involves a substantial question of law
as to the interpretation of the Constitution of India or NO any order made thereunder ?
========================================================== GHEDIA HARISCHANDRA CHIMANLAL....Petitioner(s) Versus GOVT. OF GUJARAT, THROUGH ADDITIONAL PRINCIPAL SECRETARY &
2....Respondent(s) ========================================================== Appearance:
MR AD OZA, ADVOCATE for the Petitioner(s) No. 1 AGP for the Respondent(s) No. 1 RULE NOT RECD BACK for the Respondent(s) No. 1 RULE SERVED for the Respondent(s) No. 1 - 3========================================================== CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA Date : 05/04/2016 Page 1 of 18 HC-NIC Page 1 of 18 Created On Sat Apr 09 00:56:11 IST 2016 C/SCA/12918/2010 JUDGMENT ORAL COMMON JUDGMENT 1 Since the issues raised in both the captioned writ applications are more or less the same, those were heard analogously and are being disposed of by this common judgment and order.
2 By these writ applications, the writ applicants - retired employees of the Gujarat State Civil Supplies Corporation Limited have prayed for the following reliefs:
"10 (A) This Hon'ble Court may be pleased to admit and allow this petition.
(B) This Hon'ble Court may be pleased to issue writ of mandamus and/or any other appropriate writ, order or direction, to quash and set aside the action/stand of the respondents No.1 and 2, which has been produced by the State Government before the permanent Gujarat High Court Lok Adalat, vide communication dated 12th / 15th April, 2010 (AnnexureG), by declaring that the same is improper, illegal, arbitrary and violative of fundamental rights of the petitioners and further be pleased to quash and set aside the same.
(C) Be pleased to declare that the petitioner is entitled for the medical allowances/reimbursement and be pleased to direct the respondents to pay the same along with the regular monthly pension and further be pleased to direct respondent No.1 to pay arrears of the medical allowances with interest at 18% per annum.
(D) Pending hearing and final disposal of this petition, this Hon'ble Court may be pleased to direct respondents to start paying the medical allowances along with monthly pension from the date of interim order and further be pleased to direct the respondents authorities to reimbursement the medical expenses incurred and bills submitted by the petitioner within a stipulated time.
(E) This Hon'ble Court may be pleased to fix the date of final hearing of the matter at an early date, as the petitioner is a senior citizen.
(F) This Hon'ble Court may be pleased to grant any other and further reliefs, as the nature and circumstances of the present case may require."
3 The facts of this case may be summarized as under:
Page 2 of 18HC-NIC Page 2 of 18 Created On Sat Apr 09 00:56:11 IST 2016 C/SCA/12918/2010 JUDGMENT 3.1 The petitioners were appointed as the Assistants (Class III) in the Education Department of the State Government through the Public Service Commission in 1967.
3.2 After rendering service for about more than twenty years with the State Government, they came to be absorbed, in public interest, in the Gujarat State Civil Supplies Corporation Limited. They have retired from service. They are drawing pension, but without medical allowance.
3.3 Hence these petitions.
4 Mr. Oza, the learned counsel appearing for the petitioners submitted that the petitioners are entitled to receive the medical allowance in accordance with the Office Memorandum dated 18th August, 2009 issued by the Ministry of Health & Family Welfare, Department of Health & Family Welfare, Government of India. He submitted that the Corporation would be covered by the said Memorandum which provides for certain benefits to the P.S.U. absorbees. The relevant Clauses of the said office memorandum i.e. Clauses 3, 4 and 5 reads thus:
"3. Aggrieved, again, by the denial of the restoration of pension by the Department of Pensions and Pensioners' Welfare, a group of PSU absorbees approached the Hon'ble Supreme Court for restoration of full pension, medical facility etc. After going through the rule position, the Hon'ble Supreme Court held that PSU absorbees who had commuted 100% of the pension stood on a different pedestal when it came to be balance portion of pension left after the commutation of 1/3rd portion of the pension in as much as they have surrendered their right to draw 2/3 rd portion of the pension in lieu of receipt of a lump sum amount. Based on the order of Hon'ble Supreme Court, the Department of Pensions and Pensioners' Welfare issued orders for restoration of 1/3rd portion of commuted pension of PSU absorbees. The Hon'ble Supreme Court vide its order dated the 1 st May, 1998, ordered that PSU absorbees along with the restoration of 1/3rd portion of the pension were entitled to other attendant benefits.
4. In the case of PSU absorbees, we had commuted 100% of their pension, they do not draw any pension for fifteen years and start getting Page 3 of 18 HC-NIC Page 3 of 18 Created On Sat Apr 09 00:56:11 IST 2016 C/SCA/12918/2010 JUDGMENT 1/3rd portion of their pension with dearness relief on 100% of their notionally fixed pension. PSU absorbees who had commuted 100% of their pension were not extended CGHS facility, as they were not availing CGHS facility at the time of their retirement from the PSUs. Shri G. Jayaraman, a PSU absorbee, filed an OA No.628 / 2004, in the Central Administrative Tribunal, Chennai, requesting for the extension of CGHS facility to him. CAT, Chennai Bench, vide its order dated the 15th September, 2005, ordered that since the applicant has become a pensioner after the restoration of 1/3rd portion of his pension, he is entitled to CGHS facility. The decision of Chennai Bench of CAT was first challenged by the Government first in the High Court of Judicature in Chennai and then in the Hon'ble Supreme Court. The Hon'ble Supreme Court dismissed the SLP No.21225/2007 by its order dated the 9th February, 2009.
5. The matter has been examined in consultation with the Ministry of Law & Justice and IFD in the Ministry of Health & Family Welfare and it has been decided with the approval of the competent authority that CGHS facility may be extended to those PSU absorbees who had commuted 100% of their pension and they have been restored 1/3 rd portion of their pension after 15 years in terms of the order of the Hon'ble Supreme Court of India dated the 1st May, 1998, referred to above. The contributions to be made will be decided by the Grade Pay that they would now have drawn in the Government in the post held by them but for their absorption in the PSU."
5 By way of an additional affidavit, the petitioners have pointed out the following which does not seem to have been controverted by the respondents:
"2. I further say and submit that one Mr. P.J. Vakotar (who is at Sr. No.1 in appendix - II, in the said resolution) was also absorbed in the same corporation by the aforesaid Government resolution. I say and submit that Mr. Vakotar has been granted the benefits of medical expenses of cardiac treatment by the District Treasury Gandhinagar. A copy of the letter of District Treasury Gandhinagar is annexed herewith and marked as AnnexureII. I further say and submit that I am also absorbed by the said Government Resolution (at sr.no.1, page5, appendixII of the above said resolution) and is entitled for the same benefits and treatment but I am not being given the equal treatment though being at par with others for the reasons best known to the respondents."
6 On behalf of the respondent No.1, an affidavitinreply has been filed inter alia stating as under:
Page 4 of 18HC-NIC Page 4 of 18 Created On Sat Apr 09 00:56:11 IST 2016 C/SCA/12918/2010 JUDGMENT "7(b) Pension is a deferred wage and accordingly benefits have been granted in accordance with the length of service in the Government. However, benefit of medical allowance/medical reimbursement is in the nature of allowance and does not form part of the pension as per the Rule 9(55) of the Gujarat Civil Services (Pension) Rules, 2002. Therefore, no benefit of medical allowance/medical reimbursement is permissible to the absorbed pensioners in the Public Sector Undertakings from the Government.
(C) The Government of Gujarat in Finance Department vide Government Resolution dated 17.02.1974 also resolved that no further liberalization of pension rules would be extended to the absorbed pensioners since their absorption in the Public Sector Undertakings.
Similar provision has also been made under the Rule 51 (2) (c) of the Gujarat Civil Services (Pension) Rules, 2002.
(D) All admissible benefits were granted to the petitioner while he retired from the Gujarat State Civil Services Corporation Ltd."
7 In my view, this issue is no longer res integra, after the pronouncement of the judgment and order of this Court dated 30 th October, 2015 passed in the Special Civil Application No.16209 of 2013. The order reads thus:
"1 By this writ application under Article 226 of the Constitution of India, the petitioners retired Government employees, have prayed for the following reliefs:
7. The petitioners respectfully pray that, on the basis of the facts and circumstances as mentioned hereinabove and which may be urged at the time of hearing, the Honourable Court may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction to the respondent authorities and may be pleased to: (A) declare and hold that the petitioners are entitled and eligible for the benefit of medical allowance in monthly pension and the family pension, and (B) direct the respondent authorities to extend the benefit of medical allowance in their monthly pension and the benefit of family pension to the petitioners, and (C) award the cost of present petition, and (D) pension admissible and final disposal of this petition, this Page 5 of 18 HC-NIC Page 5 of 18 Created On Sat Apr 09 00:56:11 IST 2016 C/SCA/12918/2010 JUDGMENT Honourable Court may be pleased to direct the GIRDA, Res. No.4 to sent the proposal to the State Government in respect of grant of benefit of medical allowance and family pension to the petitioners so as to enable the authorities of the State Government to consider the same, and (E) pending admissible and final disposal of this petition, this Honourable Court may be pleased to direct the respondent authorities to start paying medical allowance to the petitioners in their monthly pension as being paid to other pensioners, and/or (F) grant any other relief or pass any other order which the Honourable Court may consider as just and proper in the facts and circumstances of the case.
2 The case of the petitioners may be summarized as under; 2.1 The petitioners joined the services of the State Government and were posted in the Industrial Research Laboratory (I.R.L., for short) under the Administrative Control of the Commissioner of Industries. All the petitioners were holding the technical post.
2.2 On 06.04.1981, the Gujarat Industrial Research and Development Agency (GIRDA, for short) was established.
2.3 On 30.06.1982, the State Government accorded approval to the GIRDA to take over the Industrial Research Laboratory with effect from 01.04.1982, and accordingly, the same was taken over by the GIRDA. All the employees working in the I.R.L. were sent on deputation in the GIRDA. In the year 1982, the question of permanent absorption of the employees working in the I.R.L. cropped up in view of the merger of the I.R.L. with the GIRDA, In such circumstances, the State Government decided to call for an option from the employees of the I.R.L. whether they desired to be absorbed permanently in the GIRDA or not. While calling for such option, it was made clear to the employees working on the technical side that as everything was being taken over by the GIRDA, no technical post would continue, and therefore, upon giving option for being continued in the parent department, their services would be terminated.
2.4 In such circumstances referred to above, the petitioners were left with no other option, except being absorbed in the GIRDA, and accordingly, they were absorbed with effect from 01.10.1985 on permanent basis.
2.5 After being absorbed in the GIRDA, all the petitioners were treated to have retired from the services of the Government. The pension was sanctioned in favour of the petitioners with effect from 01.10.1985 for that period and were permitted to commute full pension. In the year 1998 Page 6 of 18 HC-NIC Page 6 of 18 Created On Sat Apr 09 00:56:11 IST 2016 C/SCA/12918/2010 JUDGMENT 1999, the State Government decided to grant the benefit of the commuted portion of pension to all the Government employees who had been absorbed in the Public Sector Undertaking / Autonomous Body. Since the authority delayed the process, the petitioners Nos.1 and 2 herein filed two Special Civil Applications Nos.12436 and 12437 of 2009 respectively. Both the writ applications were disposed of in the following terms:
1. During the course of hearing, Mr.J.K. Shah, learned Assistant Government Pleader, has tendered the affidavit filed by Mr.Ramsing R. Parmar, whereby it is categorically stated that his office has received the letter from the office of the Pension and Provident Fund, Gandinagar, and the same is under consideration by his office. In pursuance of the same, learned Assistant Government Pleader has submitted that the grievance of the petitioners will be redressed by the respondentauthority within the stipulated time.
2. Mr.Paresh Upadhyay, learned advocate for the petitioners, states that in view of the averments made in the said affidavit as well as the statement made by the learned Assistant Government Pleader, he does not press both the petitions.
3. In view of aforesaid, both the petitions stand disposed of as not pressed. It is made clear that the respondentauthority will redress the grievance of the petitioners within a period of six weeks from today. Notice is discharged with no order as to costs. Liberty to revive in case of difficulty.
2.6 The authorities, thereafter, started processing the pension cases by asking the petitioners to provide the necessary details in a prescribed format. In the year 201011, the sanction letters of restoration of pension were issued in favour of the petitioners with revision pertaining to the 6th Pay Commission. Since the authorities did not sanction the pension, after merging 50% D.A. in view of the policy of the State Government of granting the benefit of merger of D.A. in pension with effect from 01.04.2004, several representations were made in that regard. On 11.05.2011, the Finance Department clarified that since all the benefits were granted to the absorbed employees at par with the other pensioners, the benefit of merger of 50% D.A. would be also payable to such employees.
2.7 On 28.07.2011, the District Treasury Office was instructed to pay pension after merging 50% D.A. 2.8 It is the case of the petitioners that in the pension, which is being paid to them, the medical allowance is not being paid. The other pensioners are being paid the medical allowance. The two widows of the Government employees also preferred representations for grant of the family pension upon death of their respective husbands who were absorbed and treated as retired from the Government services along with the present petitioners.Page 7 of 18
HC-NIC Page 7 of 18 Created On Sat Apr 09 00:56:11 IST 2016 C/SCA/12918/2010 JUDGMENT However, the request was declined. On 09.05.2012, the District Treasury Office, Vadodara replied that as there was no clear direction for payment of medical allowance, the same was not being paid. On the issue of family pension and medical allowance, the GIRDA informed the State Government that such benefits are not being paid to the employees of the GIRDA and appropriate instructions were sought in that regard by the GIRDA from the Government. The grievance of the petitioners is that they have all retired and although are entitled for the benefit of medical allowance in their monthly pension, yet the same has been wrongly denied without there being any legal basis for the same.
3 Ms. Harshal Pandya, the learned advocate appearing for the petitioners submitted that although the Commissioner of Industries has issued appropriate directions as regards the payment of medical allowance, the authorities of GIRDA for some reasons or the other are not forwarding the proposal for the grant of medical allowance and family pension.
4 Ms. Pandya submitted that it is not proper on the part of the State Government to harass helpless widows. According to Ms. Pandya, the benefit of family pension is available to a widow / widower of a pensioner under the statutory rules of the Gujarat Civil Services (Pension) Rules, but the same has been denied despite the fact that the employees absorbed in other Boards / Corporations are being paid the same. 5 Ms. Pandya submitted that her clients are all retired employees of the State Government and are claiming pension for the service rendered with the State Government. For the service rendered with the GIRDA, benefits have already been paid which do not include pension. Her clients are not claiming any benefit from the GIRDA.
6 In such circumstances referred to above, Ms. Pandya submitted that there being merit in this application, the same be allowed and appropriate Mandamus be issued.
7 On the other hand, this writ application has been vehemently opposed by Mr. Swapneshwar Gautam, the learned Assistant Government Pleader appearing for the State respondent. Mr. Gautam placed reliance on the following averments made in the affidavitreply filed on behalf of the respondents Nos.1, 3 and 4:
5. It is respectfully submits that by way of filing the present petition the petitioner has prayed for to allow the benefit of medical allowance in monthly pension and family pension. It is further submits that on 06.04.1981 the Gujarat Industrial Research Development Agency (GIRDA for short) came into existence. The State Government accorded the approval to GIRDA take over the Research Laboratory with effect from 01.04.1982, wide Government Resolution dated 03.06.1982 and accordingly, the Page 8 of 18 HC-NIC Page 8 of 18 Created On Sat Apr 09 00:56:11 IST 2016 C/SCA/12918/2010 JUDGMENT same was taken over by GIRDA and all the employees working in IRL was take over by GIRDA, they have been given fresh appointment letters from GIRDA. The copy of GIRDA appointment letter and GIRDS service rules 1981 are attached herewith and marked as Annexure R1.
6. It is respectfully submits that as all the petitioners were absorb GIRDA on 01.10.1985. NonTechnical staff have been given the option to absorb in GIRDS or to stay in parent department while technical staff were absorb with three increment and one promotion it appears that the petitioner were benefited by a good option. A copy of acknowledgment for the appointment of three increment and one promotion is attached herewith and marked as Annexure R2. It is further submits that the petitioner have been also given commuted full pension for the service which they have done in IRL. A copy of commuted full pension for the services done by the petitioners in IRL is attached herewith and marked as Annexure R3.
7. It is respectfully submits that as order passed by the Honble Court dated 30.04.2010, the pension and Provident Fund Office have released pension with effect from 01.07.2004 vide order No.DPP/ Restoratinpension/PR1/G/10/531/AG/REV/843 dated 13.05.2010. A copy is attached herewith and marked as Annexure R4.
8. It is respectfully submits that the petitioners are already being paid 6th pay commission and their pension case are also approved by the pension and provident fund office and they are paid pension accordingly. It is further submits that after seeking guidance from Finance Department, Office of the Pension and Providence Fund vide leter dated 28.07.2011 as Directed Treasury Officer, Vadodara merging the benefit of 50 percent Dearness Allowance on revised pension for the duration of 01.04.2004 to 31.12.2005 the copy of letter dated 28.07.2011 is attached as Annexure R5.
9. It is further submitted that in earlier time Provident Fund and Pension Department has decided to give 1/3 pension for period petitioner work for IRL. By the letter dated 28.07.2011 they have given the merger of 50 percent Dearness Allowance on revised pension.
10. It is respectfully submit that in accordance with the provision of Finance Departments G.R. No NVN/1074/U.O./352/J dated 19.02.1974 office of the Pension and Provident Fund had issued as letter dated 29.11.2013 stating there in that, the State Government has not been accepted responsibility, provide the benefit of family Page 9 of 18 HC-NIC Page 9 of 18 Created On Sat Apr 09 00:56:11 IST 2016 C/SCA/12918/2010 JUDGMENT pension to the employees who are absorb in public sector unit and therefore there is no question of sanction family pension for their families. A copy of letter dated 29.11.2013 and Finance Department G.R. Dated 19.02.1974 is attached herewith and marked as Annexure R6.
11. It is respectfully draw the attention of this Honble Court that the widow of later Mr. Shah and Mr. Machhi were paid full commuted value of pension for services they render in IRL. It is further submitted that late Mr. Shah and Mr. Machhi were pay as prescribe by GIRDA during service in GIRDA they were also paid retirement benefit.
12. It is respectfully submit that as per the provision made in Finance Department by GR dated 03.10.2012 read with provision of 5th pay GR dated 07.01.1998, the medical allowance is to be paid to state Govt. employees as per standard rules. Both above referred G.R. Is attached herewith Annexure R7.
It is further submitted that the two letters as mentioned below annexed as Annexure R8:
1. Letter dated 01.06.2012 issued by Accountant and Treasury Office, Gandhinagar. The Director has clearly mentioned that the employees of the State Government who were deputation to public sector unit and again repatriate are not entitle have medical allowance.
2. The finance dapartment has mentioned in its letter dated 15.04.2010 that they get the benefit of medical allowance from office where they service during the period of absorption. The petitioners have given appointment letters from GIRDA and they are abide by GIRDA service rules, as per GIRDA service 1981, GIRDA is providing CPF scheme to it employee.
13. It is further submits that GIRDA is grant in aid organization and registered under society act the copy of 100 percent grant in aid certificate/resolution is attached as Annexure R9. It is further submitted that as per GIRDA service, GIRDA is paying only Contributive Provident Fund (CPF) to its employee. The Industries and Mines Department is the administrative authority of the GIRDA. Therefore GIRDA has no power to sanction medical allowance in pension. It is respectfully submitted that the present petitioner has given example of Gujarat Water Resources and Development Corporation Limited where the petitioner want to convey that by GR dated 05.06.2012 granting benefit of family pension to the Government employees who were absorb in Gujarat Water Resources and Development Corporation Limited and request Page 10 of 18 HC-NIC Page 10 of 18 Created On Sat Apr 09 00:56:11 IST 2016 C/SCA/12918/2010 JUDGMENT to considered their case grant of benefit for family pension and medical allowance.
14. It is further submits that the Gujarat Water Resources and Development Corporation Limited is autonomous body, having liberty to frame their own rules. Therefore their rules are not applicable to Industries Commissioner or GIRDA. It is respectfully submits that the petitioner are seeking benefit of medical allowance from the State Government and alleged that as the pension is paid by the State Government so they should be treated as State Government employees. The petitioners has also mentioned since the GIRDA has no power to sanction medical allowance, in light of petitioner. The present department may refer issued to State Government to direct GIRDA to proposed medical allowance. GIRDA sought guidance from Industries and Mines Department as it is administrative authority of GIRDA vide letter No.GIRDA/PE.Ta.Bh/1213/1192 dated 30.01.2013 for medical allowances in pension. In reply of letter dated 30.01.2013, the Industry and Mines Department has advised us to act as per GIRDA service rule. A copy of communication letters are attached herein and marked as Annexure R10. It is further submitted that GIRDA is having CPF scheme in which such retire employees are not entitled for pension or medical allowances in pension.
15. It is respectfully submits that GIRDA has not receive any official letter from its Head Office i.e., Office of the Industry Commissioner asking us to submit proposal for granting medical allowance, the industries and mines Dept. is an administrative authority the authorities has asked to conduct suitable action in this matter, therefore GIRDA is sought their advise and having advised as GIRDA and act as per GIRDA service rule. GIRDA is being autonomous body grant in aid organization and registered under society act which has provided only CPF to each employee. Therefore, no medical allowance in the pension to be paid to its employees. As per letter No.DPP/LM/Spe.C.A.1620913/733/13 dated 29.11.2013 from office of the pension and Provident Fund, the employees absorb on 01.10.1985 in GIRDA are paid commuted full pension and after completion of 15 years they are eligible to get 1/3 pension. With reference to finance department G.R. dated 19.02.1974 office of the pension and Provident Fun as issued the letter No.DPP/Lm.Spe.C.A. No.1620913/13 dated 29.11.2013 stating that the State Government has not accept the responsibilities of the family pension for their families for the employees who are absorbed, therefore no question of sanctioning family pension for the present petitioner.
16. It is respectfully submitted the office of the Industries Cm Page 11 of 18 HC-NIC Page 11 of 18 Created On Sat Apr 09 00:56:11 IST 2016 C/SCA/12918/2010 JUDGMENT missioner wide letter dated 27.02.103 have advised GIRDA to contact treasury branch Vadodara and taken action for the family pension of Mr. R.R. Shah and Mr. Z.R. Machhi reference was made to treasury officer vadodara were letter dated 03.04.2013 in the matter. In reply to our letter dated 01.03.2013 treasury officer has informed GIRDA that family pension cannot be sanction to the employees where repatriated and absorb in present department. The petitioner have also inform accordingly. A copy of letters dated 27.02.2013, 01.03.2013 and 03.04.2014 are attached herewith and marked as Annexure R11.
17. It is further submit that with reference the finance department GR dated 19.02.1974 as per letter No.DPP/LM/Spe. C.A. No 1620913/733/13 dated 29.11.2013 from the office of Pension and Provident Fund, providing / sanctioning medical allowance is policy matter of the State Government. Medical allowance in pension cannot be payable to absorb employees entitle and in this their official orders raised from the State Government.
18. It is respectfully submits that the present petitioner who are employees absorb from IRL to GIRDA has got full commuted pension from Government for the service done in IRL. They have also paid salary and medical allowance while they are on service with GIRDA. They were paid retirement benefit and contributive Provident Fund (CPF) after getting retied from GIRDA.
8 Mr. Gautam submitted that in view of the above stance of the State Government, this application deserves to be rejected.
9 Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for my consideration is whether the petitioners are entitled to reliefs, as prayed for, in this writ application.
10 The word pensioner is defined in the Gujarat Civil Service (Pension) Rules, 2002.
Pensioner means a retired Government employee who has been granted pension 10.1 Rule 51 of the Gujarat Civil Service (Pension) Rules, 2002 provides benefit of family pension to the families of absorbed employees, which reads as under:
Rule 51: Pension on absorption in or under Public Sector undertaking:Page 12 of 18
HC-NIC Page 12 of 18 Created On Sat Apr 09 00:56:11 IST 2016 C/SCA/12918/2010 JUDGMENT (2)(b)(i) The benefit of family pension under ChapterX of these rules shall be admissible only to the families of those who are actually in receipt of pension from the State Government, after their absorption in the Public Sector undertaking referred to in this rule. This benefit shall not be admissible to the families of those who got only the service gratuity.
(ii) Family Pension shall not be admissible from only one source either from the State Government or the public sector undertaking referred to in this rule in case such public sector undertaking has a similar scheme for payment of family pension. The beneficiary shall be given option to choose either of the two scheme.
(iii) Grant of family pension shall be subject to other conditions specified in Chapter X of these rules.
(iv) It shall be responsibility of pension sanctioning authority to process the claim of family pension. He shall forward the claim of family pension after verifying that there exists no scheme for grant of family pension to the families of the Government employees already absorbed in the public sector undertaking.
11 It appears from the stance of the GIRDA that the grant of benefit of restoration of pension, merger of D.A. and three increments, disentitle the pensioners to claim the family pension and medical allowance, as they cannot be treated as employees of the State Government. It also appears that the GIRDA proposes to rely upon a Government Resolution dated 19.02.1974, by which, the State Government had declined to take the responsibility of paying the family pension.
12 However, it appears that the State Government, thereafter, issued another resolution dated 01.04.1989 modifying the earlier resolution/policy for bringing uniformity in the mater of pensionery benefits. The relevant part of the resolution dated 01.04.1989 reads thus:
At present the cases of Government employees, on deputation to Public Sector Undertaking of the State Government, who are absorbed in the PSUs in public interest permanently, are regulated as per the provisions contained in the G.Rs. F. D. referred to in the preamble. The question of establishing parity in the matter of, pensionary benefit to such State Government employees, with the provisions in force in Government of India had been under consideration of Government. After careful consideration, Government has decided that in partial modification to the provisions contained in the GRs referred to in the preamble, the cases of the Government employees who select to be absorbed in the Autonomous body/Public Sector Undertaking will be regulated as under: Page 13 of 18 HC-NIC Page 13 of 18 Created On Sat Apr 09 00:56:11 IST 2016 C/SCA/12918/2010 JUDGMENT (1) A Government employee on absorption to Public Sector Undertaking/Autonomous body is eligible for prorata pension and DCRG based on the length of his qualifying services till the date of his absorption in the PSU/Autonomous Body. The pension will be calculated on the average emoluments for 3 years preceding the date of absorption and DCRG will be calculated on the basis of the emoluments immediately before absorption.
(2) Within 6 months of absorption, every such of Government employees, absorbed in PSUs/Autonomous bodies will exercise option for either of the two alternatives indicated below:
(a) Receiving monthly pension and DCRG as per the rules or
(b) Receiving DCTG and a lumpsum amount in lieu of pension worked out with reference to the commutation table. Were no option is exercised, the absorbed employee will automatically be governed under the option (b) above.
The option once exercised will be final. The person who chooses the alternative mentioned in Para1 and 2(b) above, 1/3 of the lumpsum amount will be treated as commutation of pension and 2/3 of the amount will be treated as retirement benefits.
(3) In case the Government employee, absorbed in PSU/Autonomous Bodies, resigns after receiving pensionery benefits, the resignation will be treated as resignation from Government service and as a consequence of resignation, pensionary benefits received under these orders will be forfeited.
(4) The absorbed Government employee will receive all the benefits admissible to other corresponding employees of PSUs/Autonomous bodies. But in respect of gratuity the sum total of the gratuity received from Government at the time of absorption and the gratuity received from the PSU/Autonomous body for service rendered there should not exceed the amount of gratuity that would have been received had he been continued in Government service and retired on the same pay which be drew on retirement from PSUs/Autonomous bodies.
(5) Any further liberalisation of pension rule after permanent absorption will not be extended. However, if such liberalisation comes into effect retrospectively i.e., with effect from the date prior to the date of absorption, the benefit will be admissible.
(6) In the case where the absorbed employee elects to receive recurring pension and DCRG in terms of 1(2)(a) above, and wishes Page 14 of 18 HC-NIC Page 14 of 18 Created On Sat Apr 09 00:56:11 IST 2016 C/SCA/12918/2010 JUDGMENT to commute some portion of his pension as per the rules, the same will be admissible.
(7) These benefits will be admissible only if the absorption is in public interest.
(8) A permanent Government employee who has been appointed in an Autonomous Body/PSU wholly on substantially financed by Government, on his own application in response to a press advertisement etc., on his permanent absorption in such organisation will be entitled to get benefits of these orders except carry forward of leave.
(9) All the cases to be regulated under this order will have to be decided by the concerned Administrative Departments in Sachivalaya, who in turn will have to seek approval of Finance Department.
(10) The pay of the Government employee absorbed in PSUs/Autonomous bodies will be regulated as per the provisions of the G.R.F.D. No.NVT3286GOI95P dated 1781988 as amended from time time.
(11) (i) The benefit of family pension will be admissible to those who are in receipt of pension after absorption in PSUs.
(ii) The benefit is not admissible to those who have not rendered requisite number of qualifying service to earn them pension. Accordingly the benefit of family, pension will not be admissible to the families of those Government servants absorbed in PSUs, who have not completed 10 years qualifying service.
(iii) The family pension will also be admissible to those Government servants absorbed in PSUs who die before receiving pensionery benefits admissible under these orders subject to the fulfillment of conditions mentioned in para 1(11)(ii) above.
(iv) The family pension will This benefit will be admissible to the Government servant who is appointed to PSUs in the manner indicated in para 1(8) above and has been granted retirement benefits under these orders.
(v) The family pension to the eligible members of the PSU absorbed, Government servants will be given from one source only, i.e., either from the Government or from the Public Sector Undertakings/ Autonomous bodies if such organization has any scheme for grant of family pension. The eligible member may be Page 15 of 18 HC-NIC Page 15 of 18 Created On Sat Apr 09 00:56:11 IST 2016 C/SCA/12918/2010 JUDGMENT allowed to choose either of the two scheme.
(vi) It will be responsibility of the pension sanctioning authority to process the claim for family pension. He should forward the claim for family pension after verifying that there exists no scheme for grant of family pension to the families of Government servant already absorbed in the PSUs/Autonomous bodies.
(12) For actual payment of retired benefits as a consequence of absorption, the procedure prescribed for a retired employee should be followed.
13 The materials on record would indicate that the widows of the respective employees, who were absorbed in the Gujarat Water Resources Development Corporation and were receiving the pension from the State Government, are being granted the benefit of family pension. The G.W.R.D.C. is also a Public Sector Undertaking of the State Government. I see no good reason for the respondents to deny the benefit so far as the petitioners are concerned, including the widows. I also take notice of the Government resolution dated 03.10.2012 sanctioning the medical allowance to the Government / Panchayat employees, etc, which reads as under:
RESOLUTION:
Under the Government Resolution Dated : 22/01/98, mentioned in the preamble, the state Government has decided to grant Medical Allowance of Rs.100/ per month to employees as well as pensioners of the State Government and Panchayat. The revision of the existing rate of Medical Allowance was under consideration of the Government. After careful consideration the Government is pleased to revise the existing rate of Medical Allowance Rs.100/ per month to Rs.300/ per month with following conditions.
1) These orders shall be applicable to employees and pensioners of the State Government, employees and pensioners of panchayat and Primary and Secondary School teachers as well as Work Charged employees (who have completed the service of one full year without any break).
(2) These orders shall be implemented with effect from dated 01 102012.
(3) Other provisions of the G.R.F,D. Dated 22011998 shall continue to be applicable.Page 16 of 18
HC-NIC Page 16 of 18 Created On Sat Apr 09 00:56:11 IST 2016 C/SCA/12918/2010 JUDGMENT (4) Accounting system and conditions regarding option shall be as it is.
14 I also take notice of the Government resolution dated 09.03.1999 as regards the absorption of the Government employees in the Public Sector Undertaking / Autonomous Body of the State Government. The same reads as under:
In the Government Resolution Finance Department No.NVT1196 GOI10P, dated: 23.4.1998, Para 3 of the said Resolution is substituted as follow:
3. The Government, after careful considerations, has decided to grant benefit of restoration of one third commuted portion of pension of pension after 15 years from the date of commutation or 1.4.1985, whichever is later notwithstanding the fact that having commuted the full pension they were not in receipt of any monthly pension.
15 I find merit in the submissions of Ms. Pandya that the confusion has been created by the Treasury Office, Vadodara, so far as the grant of family pension to the two widows is concerned. Ms. Pandya is right in submitting that the Treasury Office has no authority to take any decision in the absence of any direction or decision taken by the highest authority i.e. the Finance Department. I find substance in the submissions of Ms. Pandya that the petitioners are claiming the two benefits in their capacity as retired employees of the State Government i.e. for the services rendered with the State Government and not for the services rendered with the GIRDA. In fact, the GIRDA has nothing to do with this issue.
16 In the result, this application is allowed. The State Government as well as the respondent No.3 herein are directed to see that the medical allowance is sanctioned and paid to the pensioners along with the monthly pension as they are receiving, and at the same time, the two widows are paid the family pensions in accordance with the rules governing the same. This exercise shall be completed within a period of two months from today and the payment should be made with arrears from the date of filing of this petition."
8 In the result, both the writ applications are allowed. The State Government as well as the respondents Nos.1 and 2 are directed to see that the medical allowance is sanctioned and paid to the petitioners along with a monthly pension as they are receiving. If any of the Page 17 of 18 HC-NIC Page 17 of 18 Created On Sat Apr 09 00:56:11 IST 2016 C/SCA/12918/2010 JUDGMENT petitioners have passed away, then the widows shall be paid family pension in accordance with the rules governing the same with the necessary benefits. Let this exercise be completed within a period of two months from today and the payment should be made with the arrears from the date of filing of these petitions. Direct service is permitted.
(J.B.PARDIWALA, J.) chandresh Page 18 of 18 HC-NIC Page 18 of 18 Created On Sat Apr 09 00:56:11 IST 2016