Gujarat High Court
Patel Mathurbhai Gopalbhai & 536 vs State Of Gujarat & 4 on 29 June, 2017
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/3250/2009 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 3250 of 2009
With
SPECIAL CIVIL APPLICATION NO. 7573 of 2015
With
SPECIAL CIVIL APPLICATION NO. 7557 of 2015
With
SPECIAL CIVIL APPLICATION NO. 8113 of 2015
With
SPECIAL CIVIL APPLICATION NO. 7218 of 2015
With
SPECIAL CIVIL APPLICATION NO. 3047 of 2016
With
SPECIAL CIVIL APPLICATION NO. 7026 of 2015
With
SPECIAL CIVIL APPLICATION NO. 9076 of 2015
With
SPECIAL CIVIL APPLICATION NO. 10150 of 2015
With
SPECIAL CIVIL APPLICATION NO. 10309 of 2015
With
SPECIAL CIVIL APPLICATION NO. 10293 of 2015
With
SPECIAL CIVIL APPLICATION NO. 11201 of 2015
With
SPECIAL CIVIL APPLICATION NO. 10099 of 2015
With
CIVIL APPLICATION NO. 4951 of 2015
In
SPECIAL CIVIL APPLICATION NO. 3250 of 2009
With
CIVIL APPLICATION NO. 5860 of 2015
In
SPECIAL CIVIL APPLICATION NO. 3250 of 2009
With
CIVIL APPLICATION NO. 5861 of 2015
In
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C/SCA/3250/2009 CAV JUDGMENT
SPECIAL CIVIL APPLICATION NO. 3250 of 2009
With
SPECIAL CIVIL APPLICATION NO. 12198 of 2015
With
SPECIAL CIVIL APPLICATION NO. 2183 of 2016
With
SPECIAL CIVIL APPLICATION NO. 9228 of 2015
With
CIVIL APPLICATION NO. 3592 of 2015
In
SPECIAL CIVIL APPLICATION NO. 3250 of 2009
With
SPECIAL CIVIL APPLICATION NO. 12356 of 2013
With
SPECIAL CIVIL APPLICATION NO. 15301 of 2015
With
SPECIAL CIVIL APPLICATION NO. 6465 of 2016
With
SPECIAL CIVIL APPLICATION NO. 10376 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
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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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PATEL MATHURBHAI GOPALBHAI & 536....Petitioner(s)
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C/SCA/3250/2009 CAV JUDGMENT
Versus
STATE OF GUJARAT & 4....Respondent(s)
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Appearance:
DELETED for the Petitioner(s) No. 65 , 117 , 131 , 135 , 146 , 148 , 151 , 162 ,
224 , 229 , 239 - 241 , 244 - 245 , 259 , 266 , 321 , 328 , 394 - 395 , 399 - 400 ,
405 , 407 , 412 , 416 - 419 , 421 , 424 - 425 , 428 , 432 , 441 - 442 , 464 - 465 ,
475 , 479 , 487 - 488 , 490 , 493 , 497 - 500 , 502 - 504 , 506 - 507 , 510 - 512 ,
520 , 522 , 530 - 531 , 537
MR MUKUND M DESAI, ADVOCATE for the Petitioner(s) No. 1 - 64 , 66 - 116 ,
118 - 130 , 132 - 134 , 136 - 145 , 147 , 149 - 150 , 152 - 161 , 163 - 223 , 225 -
228 , 230 - 238 , 242 - 243 , 246 - 258 , 260 - 265 , 267 - 320 , 322 - 327 , 329 -
393 , 396 - 398 , 401 - 404 , 406 , 408 - 411 , 413 - 416 , 420 , 422 - 424 , 426 -
427 , 429 - 431 , 433 - 440 , 443 - 463 , 466 - 474 , 476 - 478 , 480 - 486 , 489 ,
491 - 492 , 494 - 496 , 501 , 505 , 508 - 509 , 513 - 519 , 521 , 523 - 529 , 532 -
536
MS. MANISHA LAVKUMAR SHAH, LD. GOVERNMENT PLEADER for the
Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 1 - 5
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 29 /06/2017
CAV JUDGMENT
1. Since the issues raised in all the captioned writ applications are the same, those were heard analogously and are being disposed of by this common judgment and order.
2. In the Special Civil Application No.3250 of 2009, i.e., the lead matter, the writ applicants, retired employees of the Universities and colleges, have prayed for the following reliefs;
"(A) to issue a writ of mandamus or a writ in the (I) quashing and setting aside the aforesaid orders dated 29.08.2007 and 04.12.2007 of the Government of Page 3 of 127 HC-NIC Page 3 of 127 Created On Fri Jun 30 00:13:30 IST 2017 C/SCA/3250/2009 CAV JUDGMENT Gujarat, Education Department.
(ii) commanding the respondents to give to the petitioners within the time to be specified by this Hon'ble Court benefits of or option to join Revised Family Pension Scheme with effect from 01.04.1982.
OR IN THE ALTERNATIVE to comply within the time to be specified by this Hon'ble Court with the directions given by this Hon'ble Court in the said oral order dated 29.03.2007.
(B) to grant such other and further reliefs as this Hon'ble Court in the facts and circumstances of the case deems fit and proper.
(C ) to provide for the costs of this application."
3. So far as the Special Civil Application No.9228 of 2015 is concerned,, the same has been filed by the teaching staff employed in the various faculties of the M.S. University, Vadodara, and they have prayed for the following reliefs;
(A) The Hon'ble Court may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction and be pleased to hold and declare that the Petitioners are entitled to the grant of pension under the Government Resolution dated 15.10.1984 and to issue consequential directions to the respondent No.1 to make the pension scheme applicable to the petitioners and to grant them pension in accordance with law.
(B) The Hon'ble Court may be pleased to grant such other and further relief/s as deemed just and proper by this Hon'ble Court in the interest of justice."
4. The Special Civil Application No.6465 of 2016 has been filed by one Dr. Kumarpal Desai, retired Dean of the Arts Faculty in the Gujarat University with the following prayers;
Page 4 of 127HC-NIC Page 4 of 127 Created On Fri Jun 30 00:13:30 IST 2017 C/SCA/3250/2009 CAV JUDGMENT "(A) The Hon'ble Court may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction and be pleased to hold and declare that the petitioner is entitled to the grant of pension under the Government Resolution dated 15.10.1984 and to issue consequential directions to the Respondent No.1 to make the pension scheme applicable to the petitioner and to grant him pension in accordance with law.
(B) The Hon'ble Court may be pleased to grant such other and further relief/s as deemed just and proper by this Hon'ble Court in the interest of justice."
5. The genesis of this litigation lies in the order passed by a learned Single Judge of this Court dated 29th March, 2007 in the Special Civil Application No.8353 of 2007 and allied matters. As the aforesaid order contains the facts in detail as well as the issues, with which I am concerned, the entire order is reproduced herein below;
"1. Heard the learned advocates appearing for the respective parties.
2. In SCA No.8353 of 2007, petitioners have produced all the relevant material including court fees and there is no office objection raised by the Registry but, in respect to one page petitions filed by the petitioners in the Registry of this Court, Registry has taken the objection about annexues, list of events and index.
3. Learned advocate, Mr.Desai, has pointed out that these facts to this Court. Therefore, it is directed to the Registry to dispense with the filing of annexues, list of events and index in respect to one page petitions which have been filed by the petitioners and registered by the Registry as per chit given by this Court through Sirestdar. He also pointed out that in one page petitions, court fees according to rules has been affixed by the petitioners.
4. This Court has decided identical issue and examined it by an order dated 23.3.2007 in group of matters. This Page 5 of 127 HC-NIC Page 5 of 127 Created On Fri Jun 30 00:13:30 IST 2017 C/SCA/3250/2009 CAV JUDGMENT group of petitions also involved identical question by the petitioners which requires the same order to be passed by this Court.
5. Rule in each petition. Learned Government Pleader Mr. Sunit Shah with learned AGP Mr. Dave, learned AGP Mr. Shukla, learned AGP Mr. Chauhan and learned AGP Mr. Pandit waive service of notice of rule on behalf of respondents ? State Authorities. With consent of both the learned advocates, these group of petitions are heard finally today.
6. The concise facts of the present petitions is that the petitioners are working as Lecturer initially in Sir K.P. College of Commerce, Athwa Lines, Surat which is affiliated to South Gujarat University, now, Vir Narmad South Gujarat University and served there since many years. In the group of petitions, some of the petitioners had already retired and some of the petitioners are likely to retire in near future.
7. According to petitioners, in case, if, they opt for voluntary retirement, then, petitioners may not entitle for pensionary benefits. Therefore, there is no other option/alternate left for the petitioners except to challenge the inaction on the part of the State Government that inspite of inviting option from the college employees recently the State Government had decided not to give option for pension on account of financial constraints. Therefore, petitioners have no other option to challenge such inaction on the part of the State Government.
8. According to petitioners, the pension scheme was introduced by the State Government vide Government Resolution dated 15th October 1984, whereby, pension scheme has been made applicable to college teachers affiliated to different University of the State and the cut of date for option was given as 1st April 1985. As per scheme, one has to either opt for pension scheme or to continue with CPF. At the time of introduction pension scheme, the benefits were not explained and conveyed in proper perspective to the employees and therefore, petitioners are remained continued in CPF scheme.Page 6 of 127
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9. According to petitioners, recommendations of Malhotra Pay Commission have been accepted by the State Government and pay scale was revised and pension option was invited vide Government Resolution dated 11th October 1988. In Government Resolution dated 17th September 1991 which was issued by the State Government raising the gratuity limit, wherein, a passing reference of option for pension has been mentioned. The recommendations of Rastogi Pay Commission have been accepted by the State Government and Government Resolution dated 7th September 1998 has been issued and pension scheme was also liberalised by Government Resolution dated 10th October 1998. On behalf of petitioners, teachers' Association as well as Registrar of Sardar Patel University and In-charge Registrar of Gujarat University made representation to the State Government. Subsequently, meeting was held in presence of representatives of different Associations of the teachers serving in different colleges of the different University with Minister of Education Department, Secretary of Education Department and Secretary of Finance Department. Thereafter, High Power Committee was appointed consisting of Vice Chancellors of different Universities, Secretary, Education and Technical Department, etc., and the Committee recommended to give one more option to pension scheme. However, according to the petitioners, State Government has sent letter to the Colleges inviting options to the teachers who have been left out and not opted for the pension scheme. The concerned college and teacher sent their option, but, State Government has not accepted the same on the ground that it will have to shoulder burden of heavy financial liabilities. The University Grant Commission wrote one letter dated 17th May 2005, wherein also, it has been recommended that option to be given to concerned petitioners. The State Government accepted the recommendations of 5th Pay Commission as well as the decision of University Grant Commission, though pension is not given to the teachers like petitioners inspite of the fact that they have rendered the same length of service. Similarly, in one case, there are about 27 persons who have not opted for pension scheme. However, State Government granted pension to them under special consideration in gross violation of right to equality guaranteed under Article-14 of the Constitution Page 7 of 127 HC-NIC Page 7 of 127 Created On Fri Jun 30 00:13:30 IST 2017 C/SCA/3250/2009 CAV JUDGMENT of India.
10. According to the petitioners, number of representations have been made time and again with the respondents, but, ignored by State government and remained undecided which adversely affected the right of petitioners to get compensatory benefits as other similarly situated employees are getting the same benefits. The only dispute about option not submitted in time as and when it was demanded by the State Government. Now, State Government is not giving any concession for submitting the option by the petitioner for getting the benefit of pension or not prepared to consider the case of petitioners because of at the relevant time, options were not submitted by the petitioners.
11. Learned advocate Mr. M.M. Desai pointed out that in case of employees, who were working in Secondary Schools, have not given option at the relevant point of time when the scheme was made applicable, but, office had given option at the time of retirement and subsequently, accepted by the State Government and benefits of pension were extended in their favour. Therefore, learned advocate Mr. Desai submitted that same treatment is not given to the present petitioners those who are claiming the benefits of pension.
12. Learned advocate Mr. Desai has relied upon one recent decision of Apex Court in case of Union of India and Another v. S.L. Verma and others reported in 2007 (112) FLR 697 decided on 28th November 2006. Learned advocate Mr. Desai submitted that in this case also, the question of option not given by the concerned employee has been considered that what would be the legal effect if the option is not given by the employee in time. This aspect has been considered by the Apex Court. The Apex Court has observed that when employee consciously opted for to continue with the CPF Scheme, he would not become a member of the Pension Scheme. It is not disputed that the said respondents did not give their options by 30th September 1987. In that view of the matter, respondent Nos.1 to 13 in view of the legal fiction created, became members of the Pension Scheme. Once they became the member of the Pension Scheme, Regulation 16 of the Bureau of Indian Standards Page 8 of 127 HC-NIC Page 8 of 127 Created On Fri Jun 30 00:13:30 IST 2017 C/SCA/3250/2009 CAV JUDGMENT (Terms and Condition of Service of Employees Regulation, 1988) had become ipso-facto applicable in their case also. It may be that they had made an option to continue with the CPF Scheme at a later stage but if by reason of the legal fiction created, they became members of the Pension Scheme, the question of their reverting to the CPF would not arise.
13. Therefore, learned advocate Mr. Desai submitted that in light of aforesaid decision of Apex Court and observations made by Apex Court and considering the facts of the present case, when options were invited, petitioners, initially, were not aware about it and subsequently, when options were given but not accepted by the State Government on the ground of that it is not in time and lastly, due to financial burden also, that request was rejected by the State Government.
14. Learned advocate Mr. Desai has relied upon the aforesaid decision. The relevant paragraphs are quoted as under :
?The respondent Nos. 1 to 13 were employees of Bureau of Indian Standards. The said authority was created under the Bureau of Indian Standards Act, 1986. Although a statutory authority, it is said to be under the administrative control of Ministry of Consumer Affairs. Respondent Nos.1 to 13 were members of Contributory Provident Fund Scheme. (CPF Scheme). The respondent No.14 i.e., the Bureau of Indian Standards, which is an Autonomous Body, pursuant to and in furtherance of an Office Memorandum dated 1.5.1987 issued by the Government of India asked its employees to give their option whether to continue under the Provident Fund Scheme or not. The said Office Memorandum dated 1.5.1987 assumes importance in view of the language used therein to which, we intend to immediately advert to. The Office memorandum is prefaced with calling for repeated options in the past asking the employees to switch over to the Pension Scheme. It was Page 9 of 127 HC-NIC Page 9 of 127 Created On Fri Jun 30 00:13:30 IST 2017 C/SCA/3250/2009 CAV JUDGMENT mentioned that such option had been asked for on 6.6.1985. The Central Government notices that despite the same, some of the employees still continued in the CPF Scheme. It further notices the recommendations of the Fourth Central Pay Commission that CPF beneficiaries in service on 1.1.1986 would be deemed to have switched over to the Pension Scheme. On that date, unless specifically opt out to continue under the CPF Scheme. It is not in dispute that the said recommendations of the Fourth Central Pay Commission had been accepted by the Central Government and the same is applicable to the employees of the Respondent No.14. Bureau of Indian Standards. Paragraph 3 and paragraph 3.2 of the said Office Memorandum read as under :
?3. All CPF beneficiaries, who were in service on 1.1.1986 and who are still in service on the date of issue of these orders will be deemed to have come over to he Pension Scheme.
3.2 The employees of the category mentioned above will, however, have an option to continue under the CPF Scheme, if they so desire. The option will have to be exercised and conveyed to the concerned Head of Office by 30.9.1987 in the form enclosed if the employees wish to continue under the CPF Scheme. If no option is received by the Head of Office by the above date the employees will be deemed to have come over to the Pension Scheme.?
2. Pursuant to and in furtherance of the said Scheme of the Central Government, the respondent No.14 made a Regulation known as ?Bureau of Indian Standards (Terms and Condition of Service of Employees Regulation, 1988)?, Regulation Page 10 of 127 HC-NIC Page 10 of 127 Created On Fri Jun 30 00:13:30 IST 2017 C/SCA/3250/2009 CAV JUDGMENT 16 thereof reads as under :
?16. Pension ? The Employees shall be governed by the Central Civil Services (Pension) Rules, 1972 : provided that the employees who had specifically elected to be governed by the Contributory Provident Fund.
Rules (India), 1962, immediately before the date of commencement of these regulations shall continue to be governed under the Contributory Provident Fund Scheme.?
3. Despite the clear intent and purport of the said office Memorandum dated 1.5.1987, the respondent Nos.1 to 13 herein continued to be treated as if they had still been continuing under the CPF Scheme.
4. The Central Government as also the respondent No.14 ? Bureau of Indian Standards have proceeded on some legal misconception that it was obligatory on the part of the said employees to give a positive option for the said purpose. For the first time on 2.2.1999, the respondent No.14 requested the Union of India for grant of another chance to the respondents to switch over to Pension Scheme stating that they purported to have exercised their option for CPF Scheme on the cut off date.
5. The said request of the respondent No.14 was not acceded to by the Ministry of Finance. It was, however, accepted by the respondent No.14 that only 19 employees were left out and the total financial implication therefor would come to about Rs.7.20 lakhs per annum, if all the employees are allowed to switch over to the Pension Scheme. It was made clear Page 11 of 127 HC-NIC Page 11 of 127 Created On Fri Jun 30 00:13:30 IST 2017 C/SCA/3250/2009 CAV JUDGMENT that for the said purpose the respondent No.14 would not depend upon the Government grants. Although the Ministry of Consumer Affairs, Food and Distribution agreed with the aforesaid suggestion of the respondent No.14, it appears that the Ministry of Finance did not agree thereto stating:
?... In view of the above, we have been advising autonomous bodies under various Ministries/ Departments of the Government of India to continue to follow the CPF Scheme or the autonomous bodies, if they so desire, may work out an annuity, scheme through the life Insurance Corporation of India based on voluntary contributions by the employees and without any contribution from the Government or the employees may join the pension scheme introduced by the Ministry of Labour for the PF subscribers. It may pleased be noted that introduction of pension scheme on GOI pattern to the employees of autonomous bodies should not be agreed to as a rule, any exception in this regard should be referred to this Department?
6. At that juncture, the respondent Nos.1 to 13 approached the High Court.
Whereas, the learned Single Judge allowed the writ petition directing that the same would not be subject to any liability on the part of the Union of India, but on an appeal preferred by the Union of India, by reason of the impugned judgment, the Division Bench modified the said order directing as follows :
?Impugned writ Court order dated 22.10.2003 shall stand modified to the extent that appellants shall consider passing of a conditional approval Page 12 of 127 HC-NIC Page 12 of 127 Created On Fri Jun 30 00:13:30 IST 2017 C/SCA/3250/2009 CAV JUDGMENT stipulating that they shall not incur any liability in case respondent No.14 fails to satisfy the pension liability of Respondent Nos.1 to 13 and pass appropriate orders within two months from today. These respondents on their part shall remain bound by all other terms of the writ Court order including the undertaking to be executed by them.?
7. The Central Government, in our opinion, proceeded on a basic misconception. By reason of the said Office Memorandum dated 1.5.1987 a legal fiction was created. Only when an employee consciously opted for to continue with the CPF Scheme, he would not become a member of the Pension Scheme. It is not disputed that the said respondents did not give their options by 30.9.1987. In that view of the matter, respondent Nos.1 to 13 in view of the legal fiction created, became members of the Pension Scheme. Once they became the member of the Pension Scheme, Regulation 16 of the Bureau of Indian Standards (Terms and Condition of Service of Employees Regulation, 1988) had become ipso-facto applicable in their case also. It may be that they had made an option to continue with the CPF Scheme at later stage but if by reason of the legal fiction created, they became members of the Pension Scheme, the question of their reverting to the CPF would not arise. The respondent No.14 has correctly arrived at a conclusion that an anomaly would be created and in fact the said purported option on the part of respondent No.l to 13 was illegal when a request was made by respondent No.14 to the Union of India for grant of approval so that all those employees shall come within the purview of the Pension Scheme. In our opinion, the Ministry of Finance proceeded on a wrong premise that the Pension Scheme was not Page 13 of 127 HC-NIC Page 13 of 127 Created On Fri Jun 30 00:13:30 IST 2017 C/SCA/3250/2009 CAV JUDGMENT in existence and it was a new one. Two legal fictions, as noticed hereinbefore, were created, one by reason of the memorandum, and another by reason of the acceptance of the recommendations of the Fourth Central Pay Commission with effect from 1.1.1986. In terms of such legal fictions, it will bear repetition to state, the respondent Nos.1 to 13 would be deemed to have switched over to the pension scheme, which a fortiori would mean that they no longer remained in the CPF Scheme.?
15. I have considered the submissions made by learned advocates Mr. Desai. I 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 respondents ? State Government to reconsider the case of the petitioners in light of the aforesaid background and Page 14 of 127 HC-NIC Page 14 of 127 Created On Fri Jun 30 00:13:30 IST 2017 C/SCA/3250/2009 CAV JUDGMENT 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.
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."
6. It appears from the materials on record, more particularly, the facts of the Special Civil Application No.3250 of 2009 and allied matters that the petitioners are the full time teaching and non-teaching employees of the different Universities of the State of Gujarat and the colleges affiliated Page 15 of 127 HC-NIC Page 15 of 127 Created On Fri Jun 30 00:13:30 IST 2017 C/SCA/3250/2009 CAV JUDGMENT with the Universities of the State of Gujarat. The Universities and the colleges are receiving 100% grant from the State Government towards the salaries of the employees. These petitions have been filed as the State Government has declined to extend the benefit of the Revised Family Pension Scheme. Although, the High Power Committee, constituted by the State Government, recommended that one opportunity be given to the petitioners, yet the State Government declined on the ground of financial implications. As a result, the petitioners continue to be the members in the Contributory Provident Fund Scheme. Pursuant to the directions issued by this Court in the order dated 29th March, 2007, referred to above, the State Government reconsidered the issue and once again took the decision declining to grant the benefit of the Family Pension Scheme to the petitioners. It is the case of the State Government that all the petitioners had, on their own free will and volition, opted for the Contributory Provident Fund Scheme, and having accepted the requisite amount at the relevant point of time, now cannot ask the Government to permit them to switch over to the pension scheme.
7. The learned counsel appearing for the respective petitioners made the following submissions;
7.1 The Petitioners state that when the Petitioners joined services, there was no pension scheme applicable. The Petitioners were covered by the Contributory Provident Fund Scheme.
7.2 On 01.01.1972, the Government of Gujarat passed a resolution sanctioning a family pension scheme for the Page 16 of 127 HC-NIC Page 16 of 127 Created On Fri Jun 30 00:13:30 IST 2017 C/SCA/3250/2009 CAV JUDGMENT Government of Gujarat Employees. The revised family pension scheme was made applicable to all the regular employees, whether temporary or permanent, who were in service as on 01.06.1971, on the pensionable establishment. The revised family pension scheme was amended from time to time. However the scheme was not made applicable to the employees of the University.
7.3 On 15.10.1984, the Government of Gujarat passed a resolution directing 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- ll, as amended from time to time, the family pension scheme sanctioned in Government Resolution, Finance Department No. PPS-1061-J dated 01.01.1972 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 the State with effect from 01.04.1982.
7.4 The above mentioned scheme provided that :--
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.Page 17 of 127
HC-NIC Page 17 of 127 Created On Fri Jun 30 00:13:30 IST 2017 C/SCA/3250/2009 CAV JUDGMENT 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.
7.5 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 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.
7.6 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.
7.7 On 06.02.2012, the Higher Education Department addressed a communication to the M.S. University stating the employees who have been appointed before 01.04.1982 who Page 18 of 127 HC-NIC Page 18 of 127 Created On Fri Jun 30 00:13:30 IST 2017 C/SCA/3250/2009 CAV JUDGMENT 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.
7.8 The Petitioners came to know of the 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.
7.9 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.
7.10 The Petitioners state 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, 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.
Page 19 of 127HC-NIC Page 19 of 127 Created On Fri Jun 30 00:13:30 IST 2017 C/SCA/3250/2009 CAV JUDGMENT 7.11 The Petitioners state that the Government by its decision dated 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.
7.12 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.
7.13 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 t 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.
7.14 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 Page 20 of 127 HC-NIC Page 20 of 127 Created On Fri Jun 30 00:13:30 IST 2017 C/SCA/3250/2009 CAV JUDGMENT appointment to that 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.
7.15 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.
7.16 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 7.17 It is submitted that the Respondent No.1 has adopted a discriminatory approach between employees who have been appointed on or after 01.04.1982 and employees who have been appointed to a higher post on or after 01.04.11982. It is submitted that both the classes of employees should receive Page 21 of 127 HC-NIC Page 21 of 127 Created On Fri Jun 30 00:13:30 IST 2017 C/SCA/3250/2009 CAV JUDGMENT equal treatment. Therefore, the impugned action of the respondent No.1 is arbitrary, unjust and discriminatory.
7.18 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.
7.19 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 Hon'ble Court.
8. On the other hand, all the petitions have been opposed by Ms. Manisha Lavkumar Shah, the learned Government Pleader appearing for the State.
9. Ms. Shah, the learned Government Pleader submitted that having once accepted the amount under the Contributory Provident Fund Scheme, the petitioners should not be permitted to avail the benefit of the pension scheme. At the time when the petitioners decided to avail the benefit of the Contributory Provident Fund Scheme, they did not find the pension scheme attractive, but, later, with the revision of the pay scale, the pension scheme is now seem to be very attractive and, therefore, the petitioners want to switch over to the pension scheme after a long lapse of time. According to the learned Government Pleader, it is not permissible in law Page 22 of 127 HC-NIC Page 22 of 127 Created On Fri Jun 30 00:13:30 IST 2017 C/SCA/3250/2009 CAV JUDGMENT and they are not entitled to seek any relief from this Court.
10. The Government Pleader has provided the following information for the convenience of this Court;
"There are 537 petitioners.
These 537 petitioners comprise of teaching and non- teaching staff in various colleges and universities. 340 teaching.
136 non-teaching 61 no information received.
On two occasions, forms were put up oj the university and college website. A special camp was advertised and organized to assist and enable the staff members to furnish the requisite details. Such a camp was organized on 30th May, 2016. So far as 61 petitioners are concerned, no information were received. Details of the teaching staff.
Lecturer.
Reader.
Professors.
Principles 16 readers= 1 appointed before 01.04.1982 (no option given and therefore not entitled.
=2 appointed after 01.04.1982 (without pay without protection; hence, entitled) (13 readers promoted after 01.04.1982 and pay protection benefit given. Hence, not entitled) 69 professors =All appointed after 01.04.1982.
=14 appointed with (pay protections) As received by them when they were readers (therefore, not entitled).
=26 appointed without pay protection (18 of them have Page 23 of 127 HC-NIC Page 23 of 127 Created On Fri Jun 30 00:13:30 IST 2017 C/SCA/3250/2009 CAV JUDGMENT served less than 10 years), not entitled to pension. =29 promoted (with pay protection not entitled to GPF) :Therefore, out of 69 professors, 10 would be entitled. 30 principles =2 prior to 01.04.1982 (no option given therefore, not entitled) =28 principles after 01.04.1982 (All these principles were earlier serving as professors and it is after giving them pay protection of their pay package which they were receiving as professors that they have been appointed as principles and therefore, they would be entitled only to GPF as per Government Resolution dated 01.04.1982 and not GPF.
1 of the 28 has resigned (no pension receivable) 17 of them have put in less than 10 years of service (hence, not entitled) 136 non-teaching staff =21 appointed prior to 01.04.1982 (no option given) =1 appointed after 01.04.1982 without any pay protection, hence, would be entitled to the benefit of Government Resolution dated 15.10.1984. =113 promoted (No option given as per the Government Resolution dated 15.10.1984 and pay protection of pay receivable in feeder cadre granted. Hence, not entitled to GPF."
11. On behalf of the State, an affidavit has been filed duly affirmed by Mr. N.V. Palas, Administrative Officer of the Commissioner of Higher Education, Sachivalya, Gandhinagar, inter alia, stating as under;
"3.1 I respectfully say that prior to 1984, in all the grant- in-aid colleges and universities, the Scheme of Contributory Provident Fund ('CPF' for short) was in vogue and prior thereto, no Family Pension Scheme was in existence so far as teaching and non-teaching staff of Universities and affiliated grant-in-aid Colleges were concerned. On 15.10.1984, the State Government in its Education Department, issued a Government Resolution Page 24 of 127 HC-NIC Page 24 of 127 Created On Fri Jun 30 00:13:30 IST 2017 C/SCA/3250/2009 CAV JUDGMENT No.NGC-1582/9505(84)-KH inter-alia providing for the first time, Family Pension Scheme for teaching staff in non-Government affiliated colleges and Universities, effective from 1.4.1982. It is stated that an option was to be exercised by the concerned teachers who were in service before 1.4.1982 for joining the scheme before the expiry of one year from the date of the GR. as per Condition No. 3 (i) of the said G.R., relevant extract whereof is reproduced hereunder for ready reference:
"3(i) Member 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 exercise 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 member 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 1.4.1982."
4 I respectfully say that under clause 3(iii) the amount of contribution paid by the university or management of non-government aided colleges together with interest thereon standing at the credit of the member of teaching staff opting for pension scheme, after the exercise of option for pension scheme was to be credited to the State Government. The said clause 3(iii) is wroth referring to and which reads thus:
"3(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 'XLVlll Contribution and Recoveries towards pension and other retirement benefit after the correctness of amount is verified and certified by the Director of Higher Education."Page 25 of 127
HC-NIC Page 25 of 127 Created On Fri Jun 30 00:13:30 IST 2017 C/SCA/3250/2009 CAV JUDGMENT 5 I further respectfully say that Condition No. 6 of the GR stipulates computation of the length of qualifying service for pension under the scheme and Condition No.10 prescribes that the employees who got the retirement benefit of CPF and gratuity, etc. for the service rendered by them in the earlier institution before joining the other institution, shall have to be refunded and credited to the Government. Annexed hereto and marked as Annexure-l is a copy of the said Government Resolution dated 15.10.1984. l respectfully say that the State Government in its Education Department, issued a Government Resolution No. NGC-1187--48558-Kh dated 11.10.1988 extending the time limit to those members of the staff who were willing to opt for pension scheme provided that they shall exercise the option within a period of three months from the date of issue of the said Government Resolution.
6. I further respectfully say that the State Government, after careful consideration, vide Government Resolution No.NGC-1188-198-KH dated 16.6.1989, extended the time limit of one year for exercising option as provided in the earlier GR dated 15.10.1984. Condition No.2 in the said GR stipulated that if the concerned teachers/non- teaching staff who failed to credit the amount with the State Government on or before 31.3.1986 and again failed to deposit the amount within the extended period i.e. 30.6.1988, will have to credit the amount of CPF with the State Government on or before 31.3.1989 with simple interest and on and after 1.4.1989, they will be liable to bay simple interest plus penal interest 2-1/2 per cent. Annexed hereto and marked as Annexure-lI is a copy of the said Government Resolution dated 16.6.1989. l respectfully say that the State Government in its Education Department, issued a consolidated Government Resolution No. NGC-1089-2793-Kh dated 26.9.1989 regarding Pension Scheme applicable to the staff of Universities and non-Government colleges. Annexed hereto and marked as Annexure-lll is a copy of Government Resolution dated 26.9.1989.
7. I respectfully say that the aforesaid G.R. was followed by another Government Resolution No. MlS-1791-21-KH-1 dated 17.9.1991, raising the limit of death-cum-
Page 26 of 127HC-NIC Page 26 of 127 Created On Fri Jun 30 00:13:30 IST 2017 C/SCA/3250/2009 CAV JUDGMENT retirement gratuity to the employees of the universities and colleges as well as one more opportunity for exercising the option was given to the employees either to remain under the Family Pension Scheme or to retain themselves in CPF scheme, within a period of two months from the date of the said GR. Annexed hereto and marked as Annexure-IV is a copy of the Government Resolution dated 17.9.1991.
8. I respectfully say that thereafter in the year 2004, the State Government, after considering all the earlier GRs and taking into account various relevant factors, took a conscious decision and the same was translated in the form of Government Resolution No.PRCH-1198-M-208-KH dated 7.1.2004 providing inter-alia not to provide any further opportunity to the teaching and non-teaching staff of the Universities and Affiliated grant-in-aid Colleges to exercise the option for remaining in the pension scheme or under CPF. Annexed hereto and marked as Annexure-V is a copy of the Government Resolution dated 7.1.2004. It is pertinent to note on and from 1.4.2005, the Government in its Finance Department had already issued a new defined Contribution Pension Scheme vide Government Resolution dated 18.3.2005 and thus, there arises no question for the petitioners now to exercise any option under the old schemes which are not in existence as of date.
9' It is pertinent to note that most of the petitioners are retired employees having availed of the retirement benefits remaining within the OFF scheme. Despite giving several opportunities to exercise the option. the petitioners failed to do the same and they chose to continue in the CPF scheme which was favourable to them, inasmuch as the rate of interest prevailing in nationalized banks was on a very higher side and in all probabilities, the retiring employees could get more benefits rather than accepting the pension goheme. l respectfully say that the two orders under challenge, viz. dated 29.8.2007 as well as dated 4.12.2007 have been passed in accordance with the provisions of the Schemes/Resolutions issued by the State Government from time to time. I respectfully say that I hold this Hon'ble Court in the highest esteem and there cannot be any intention on my part or on the part of the officers of the State Government not to comply with the directions Page 27 of 127 HC-NIC Page 27 of 127 Created On Fri Jun 30 00:13:30 IST 2017 C/SCA/3250/2009 CAV JUDGMENT given by this Hon'ble Court in the orders dated 29.3.2007 passed in SCA No. 8353 to 8539 of 2007. l categorically deny that the order dated 29.8.2007 and 4122007 are passed without determining the merits of the petitioners' claim, as alleged or otherwise. l further respectfully deny that the respondents have not complied with the directions of this Hon'ble Court given in the order dated 29.3.2007 and that thereby committed a conscious and intentional violation of he said directions and committed a contempt of this Hon'ble Court, as alleged or otherwise."
12. The petitioners of the Special Civil Application No.3250 of 2009 have filed the rejoinder to the reply of the State Government, inter alia, stating as under;
"3.1 With reference to paragraphs nos.5.1 to 8 of the Reply, I crave leave to refer to and rely upon paragraphs nos. 3.1. to 3.7 of the petition for their true contents, meaning and effect and deny all statements and submissions contained in the Reply, which are in any manner contrary to or inconsistent therewith. Paragraph no.6 of the RFPS provided that GOG employees in service on 31.05.1971, to whom Revision Pension Rules, 1950 and Bombay Civil Service Rules, 1959 were applicable will be deemed to have accepted the RFPS instead of benefits under the Revised Pension Rules 1950, unless they exercise before 31.05.1972 the option of continuing the benefits received earlier. The RFPS as amended from time to time was bodily applied to the full time non- teaching staff of the Universities under the Education Department w.e.f. 01.04.1982. Though the non-teaching staff petitioners had not exercised. any option to be governed by the Revised Pension Rules, 1950 or the CPF Scheme, GOG did not give them pension in accordance with its G.R. Dated 23.06.1976, GOG by its Resolution dated 15.10.1954 directed that the RFPS sanctioned in GR dated 01.01.1972 as amended from time to time be made applicable also to the full time teaching staff of the University under the Education Department and non- affiliated and aided non-Government Arts, Science, Commerce and Education Colleges in Gujarat w.e.f.Page 28 of 127
HC-NIC Page 28 of 127 Created On Fri Jun 30 00:13:30 IST 2017 C/SCA/3250/2009 CAV JUDGMENT 01.04.1982. Under paragraph 3(1) of the G.R. dated 15.10.1984 members of the existing staff recruited before 01.04.1982 and those staff, who had retired on or after 01.04.1982 and prior to 15.10.1984 had to exercise their option within one year from 15.10.1984 either to continue in CPF Scheme or to come under RFPS. Members of the staff, who did not exercise option within the stipulated period were deemed to have opted for the retention of the benefit admissible to them before 01.04.1982. Staff members recruited on or after 01.04.1982 would automatically be governed by RFPS. GOG by its Resolution dated 11.10.1988 gave to teaching staff in service on 11.10.1988 and who had selected CPF Scheme on earlier occasion one more option to switch over to the liberalized pension scheme. GOG by its Resolution dated 11.10.1988 gave to the teaching staff in service then and who had selected CPF Scheme on earlier occasion one more option to swith over to liberalized RFPS within three months from 11.10.1988. Government of India (GOI) issued orders in respect of revision of pensionary benefits on the basis of recommendations of the Vth Central Pay Commission and issued orders in that regard under its office Memorandum dated 27.10.1997. GOG by its Resolution dated 20.01.1998 accorded sanction to regulate pension/ FPS of existing pensioners and family pensioners w.e.f. 01.01.1996 in the manner indicated in the GR. The said orders were made applicable to all pensioners/ family pensioners drawing pension on 01.01.1996 under Revised Pension Rules 1950 and RFPS. Representations were made to GOG for giving option to teachers to opt for RFPS. GOG constituted a Committee to examine the question pertaining to the teachers employed in affiliated colleges / universities, which Committee recommended that a further opportunity be given to such teachers on the basis of in principle acceptance of the same. However, GOG by its Resolution dated 07.01.2005 took a decision not to give any further option on the ground that there would be unbearable increase in the GOG's financial liabilities.
4. Captioned Special Civil Applications were filed for quashing and setting aside the Government's decision dated 07.01.2005. This Hon'ble Court decided identical issues and examined it by an order dated 29.03.2007 in a group of matters. This Hon'ble Court by its order dated Page 29 of 127 HC-NIC Page 29 of 127 Created On Fri Jun 30 00:13:30 IST 2017 C/SCA/3250/2009 CAV JUDGMENT 29.03.2007 issued rule in each petition, notice whereof on behalf of the State authorities was waived by the learned Government Pleader appearing with learned Assistant Government Pleaders. With consent of parties, the petitions were heard on the same day. It was brought to the notice of the Hon'ble Court that in case of employees working in secondary schools, who had not exercised option at the relevant point. of time, option was given at the time of retirement and benefits of option were extended in their favour. Attention of this Hon'ble Court was also invited to certain decisions of the Apex Court. This Hon'ble Court without determination of merits between the parties in respect to the claim for pension observed that it was open for the petitioners to make detailed representation and directed the State Government to reconsider the matter while examining the earlier representation, which had been made by the Association and recent one and to pass appropriate . reasoned order in accordance with law and to communicate the same to writ petitioners. As submitted in the petition the State Government has failed to comply with the directions of this Hon'ble Court and hence the petition.
5. With reference to the statements and submissions contained in paragraph no.9 of the Reply, I submit that the respondents have attempted to side track this Hon'ble Court's order dated 29.03.2007. The respondents have not reconsidered the petitioners' case or the matter or issue directed to be reconsidered by this Hon'ble Court and much less in light of the background nor examined the issue raised in the captioned petitions. What was to be reconsidered was the decision of the Government not to give a further option to teaching staff of the State Government affiliated colleges and not to take any strict technical legal decision as to whether the petitioners were not entitled to RFPS benefit on the ground of non- exercise of option within stipulated time. GOG was required to sympathetically consider whether extension of time for exercise of such option by the petitioners was required to be given considering inter alia that many employees similarly situate were having such benefits. However, instead of purging the contempt GOG has sought to justify its stand challenged in the captioned petitions by submitting that the impugned orders dated 29.08.2007 and 04.12.2007 have been passed in Page 30 of 127 HC-NIC Page 30 of 127 Created On Fri Jun 30 00:13:30 IST 2017 C/SCA/3250/2009 CAV JUDGMENT accordance with the provisions of the Schemes/Resolutions issued by the State Government from time to time and by running a blind eye to the question whether the time for exercise of option be extended or not."
13. Ms. Shah, the learned Government Pleader has placed on record, for the convenience of this Court, the synopsis of the propositions sought to be canvassed on behalf of the State. Those are as under;
"1. Policy decision of introducing the benefit of GPF Scheme, Pension Scheme and Family Pension Scheme vide Government Resolution dated 15.10.1984 effective from 1 4.1982 with regard to Full time teaching staff of the University under the Education Department and of non-affiliated and unaided Arts, Commerce and Science Colleges in the State did not distinguish between persons having worked. in the same position and at the same place, till retirement on one hand and the persons having worked in different positions at different places till retirement on the other.
2. Similarly, vide Government Resolution dated 3.7.1987, a policy decision was taken for introducing the benefits of 'GPF Scheme, Pension Scheme and Family Pension Scheme ffective from 1.4.1982 with regard to' Full time non teaching staff 'of the affiliated and aided non- Government Arts, Commerce and Science Colleges. The said policy also did not distinguish between the persons of non teaching staff having worked in the same position and in the same place till retirement and the persons having worked in different positions at different places, till retirement.
3. Vide a consolidated Government Resolution dated 26.9.1989 for teaching as Well as non-teaching staff it was provided that age of superannuation / retirement for the staff recruited before 1.10.1984 shall be 60 years and that age of superannuation / retirement for the staff which has been 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 statutes / Page 31 of 127 HC-NIC Page 31 of 127 Created On Fri Jun 30 00:13:30 IST 2017 C/SCA/3250/2009 CAV JUDGMENT rules / regulations accordingly. It has been further provided that if teachers who are originally recruited prior to 1.10.1984 change colleges / universities or go to other college as Principal they will be treated as existing teachers and their age of Superannuation will be 60 years.
4. 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 the 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 services will be taken into account and hence for the purpose of exercise of option,. his joining at different places should not be treated as new recruitment /fresh service.
5. .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 hereinbelow:
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) 3.07.1987 One year
(ii) 17.9.1991 Two months
6. In View of the above, for all practical purposes, if Page 32 of 127 HC-NIC Page 32 of 127 Created On Fri Jun 30 00:13:30 IST 2017 C/SCA/3250/2009 CAV JUDGMENT 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. "
14. Ms. Shah, the learned Government Pleader, in support of her submissions, has placed reliance on the following decisions;
(I) In the case of Rajasthan Rajya Vidyut Vitran Nigam Ltd. vs. Dwarka Prasd Koolwal, (2015) 12 SCC 51, more particularly, the observations made in paras-59 and 60.
(ii) In the case of Union of India Through The Secretary, National Council of Educational Research and Training vs. Shyam Babu Maheshwari, 2011 (6) SCC 412, more particularly, the observations contained in para-7.
(iii) A decision of a learned Single Judge of the Delhi High Court in the case of Prof. A.K. Sharma & Ors. vs. Union of India & Anr., Writ Petition (C ) No.842 of 2003, decided on 7th August, 2008.
15. Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether the petitioners are entitled to the relief as prayed for in their respective petitions.
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 Page 33 of 127 HC-NIC Page 33 of 127 Created On Fri Jun 30 00:13:30 IST 2017 C/SCA/3250/2009 CAV JUDGMENT 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."
17. I am of the view that so far as this Court is concerned, the issue has been concluded by number of judgments.
18. A learned Single Judge of this Court, vide judgment and order dated 3rd February, 2016 passed in the Special Civil Application No.14953 of 2015 and allied matters, considered the issue at length and held 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, Page 34 of 127 HC-NIC Page 34 of 127 Created On Fri Jun 30 00:13:30 IST 2017 C/SCA/3250/2009 CAV JUDGMENT which comprises of the Subject Expert, Government Nominee, who is a Joint Director of the Education Department, Management Nominee and a Nominee of the ViceChancellor as per the Government Resolution dated November 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
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 Page 35 of 127 HC-NIC Page 35 of 127 Created On Fri Jun 30 00:13:30 IST 2017 C/SCA/3250/2009 CAV JUDGMENT 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.
15.So far as pension scheme for teaching and non teaching Staff of the Universities is concerned, it can be seen from the record that the pension scheme for the first time was introduced on October 15, 1984, making Revised Pension Rules, 1950, admissible to the Government servants to the teaching staffs of nongovernment colleges and universities with effect from April 01, 1982.
16.In the earlier pension scheme, which was meant for the secondary and higher secondary schools in 1971, the employees were to opt for either GPF or the CPF (Contributed Provident Fund) on the retirement. Clause 1(c) of the Government Resolution dated October 15, 1984 defines the 'teaching staff' and Clause 4 of the very Government Resolution mentions that any staff recruited after April 01, 1982, is automatically covered by pension scheme (GPF) and is not allowed to opt for CPF. Clause 6 of the said Government Resolution dated October 15, 1984, mentions that all the previous service i.e. April 01, 1982, is to be computed and clubbed while computing qualifying length of service which is 33 years for being entitled to full pension. Likewise, Clause 11 of the said Government Resolution mentions that pension papers and service book are to be maintained and necessary endorsement are to be made by the Registrar in case of university and Principal for colleges, however, the service book is not given to the employee concerned. Clause 12 of the said Government Resolution mentions that until the pension papers are finally prepared, the employee is entitled to receive only part pension. Statutory benefits have been extended to the Page 36 of 127 HC-NIC Page 36 of 127 Created On Fri Jun 30 00:13:30 IST 2017 C/SCA/3250/2009 CAV JUDGMENT teaching and nonteaching staff of the University, nongovernment grantinaid colleges and institutions bringing them at par with the employees of the State Government.
17.This Court in Special Civil Application No.12620 of 2003, in the case of State of Gujarat and others v. Dr.S.G. Trivedi, Retd.Reader Physics Division and another, was concerned with the challenge of the decision of the Gujarat University Service 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. Nonexercising 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.
18.The Tribunal since had allowed the application and held the petitioner entitled to receive pension and other 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.
19.It would be profitable to reproduce the relevant paragraph of the said decision which reads as under :Page 37 of 127
HC-NIC Page 37 of 127 Created On Fri Jun 30 00:13:30 IST 2017 C/SCA/3250/2009 CAV JUDGMENT
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 01101984 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 01101984 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 15101984, 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 01101984 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 01041982, the State Government would be justified in contending that Tribunal erred in granting pensionary benefits to the respondent no.1.
10.There is however, considerable force in the submissions made by the learned advocate Shri Joshi that under identical situation, Learned 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).
11.In the said case also the petitioner had discharged duties in various colleges right from 1966 to 08071985 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 Page 38 of 127 HC-NIC Page 38 of 127 Created On Fri Jun 30 00:13:30 IST 2017 C/SCA/3250/2009 CAV JUDGMENT 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 disentitled from receiving pension for not having exercised option. It was held that having joined the service in University on 08071985, she would be governed by pension scheme as per Government Resolution dated 15101984. Non exercising of the option therefore, was not taken as a factor to disentitle her from receiving pensionary benefits.
12.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 01101984. Having resigned from his services he immediately joined as Reader in South Gujarat University on 0110 1984. Thus on 01101984 when he joined University Services only option available to him was to be governed by the 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 10101985 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 01041982 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.
13.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 Page 39 of 127 HC-NIC Page 39 of 127 Created On Fri Jun 30 00:13:30 IST 2017 C/SCA/3250/2009 CAV JUDGMENT 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 postretirement benefits. The question therefore, immediately arises is whether respondent no.1 can be said to have joined service on 01101984 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 15101984. 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.
20.In the case of Dr.Nalini K. Dave v. Government of Gujarat and others, reported in 2005 (3) GLH 656, the Court has held that the payment of pension is not a grace from the master but a right of the employee upon completion of qualifying service and the technical objections cannot be permitted to deprive a pensioner of his dues. The question was as to whether it was necessary for the petitioner to opt for a pension scheme, which was challenged in the Letters Patent Appeal.
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9. It appears that the peculiar aspects and special circumstances obtainable in the present case are, also, not seriously considered and properly examined and appreciated by respondent No.3University. The question of exercise of option could be raised when there is something to be opted for out of more than one options. In the present case, so far as the first spell of 19 years of actual service in the College for the period 15.6.1966 to 8.7.1985, as a Lecturer is concerned, admittedly, it had only one Scheme and that too, C.P.F. There was, therefore, no question of exercising any option. Likewise, during the period of service from 8.7.1985 till the date of Voluntary Retirement on 31.12.2000 in the Department of Commerce of respondent No.3 Unviersity, there was, also, compulsory scheme of pension. There, also, there was no question of exercising any option, particularly, when compulsory scheme was in existence.
10. It is in this context, it must be appreciated that there was no any fault or inaction or omission or commission on the part of the petitioner, which would disentitle the right to claim the pension, much less the dispute of raising the option Form, of late. Even assuming that there is a delay in exercise of the option, then also the available rights to pension, in this set of circumstances and special facts, cannot be allowed to thwart. Needless to reiterate that the Court is vitally concerned and the main anxiety of the process of the decision making and judicial adjudication has been to do justice and to undo injustice suffered, and thereby, render substantive justice, which cannot be eclipsed by a processual or technical objection. Delay in such a fact situational reality could never tantamount to a defeating factor against the entitlement of right to pension. It is a celebrated proposition of law that in such Page 41 of 127 HC-NIC Page 41 of 127 Created On Fri Jun 30 00:13:30 IST 2017 C/SCA/3250/2009 CAV JUDGMENT circumstances and in such special factual realistic profile, the expiry of time, specified in the Resolution or delay in submission of the Option Form, cannot defeat the Liberalised Scheme of Pension.
This Court in the said decision, thus, allowed pension to the petitioner therein with interest.
20.In the decision of this Court rendered on June 16, 2008 in the case of S.S. Patel v. Director of Pension and Provident Fund and others, while dealing with Special Civil Application No.29641 of 2007, the Court by referring to the decision in the case of Dr.Nalini K. Dave (supra) directed the authority to pay the retiral dues. The Court was of the opinion that if the Government Resolution dated October 15, 1984, is perused, the preamble provides that the pension, gratuity and other retirement benefits admissible to the Gujarat State Government servant under the Revised Pension Rules, 1950, be made applicable to the full time teaching staff of the universities under the Education Department and in affiliated and aided nonGovernment Arts, Science, Commerce and Education Colleges in the State, as amended from time to time. Emphasising on various clauses of the said Government Resolution, the Court was of the opinion that Clause 6 confers benefit upon employees 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 are being paid Grant inaid from Government.
22.The Court also concluded 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. In no uncertain terms, it held that failure to exercise an option for the Page 42 of 127 HC-NIC Page 42 of 127 Created On Fri Jun 30 00:13:30 IST 2017 C/SCA/3250/2009 CAV JUDGMENT post April 01, 1982 period, the recruitee cannot come in his way as the same would make him vulnerable for benefits of previous services as per clause 6 of the said Government Resolution and that would be against the spirit and object of the scheme and also would be creating artificial, arbitrary and discriminatory dividing line amongst university teaching staff not found in clause 6. The petitioner was automatically governed by pension scheme by G.R. dated 15.10.1984 and, thus, Clause 6 is unambiguous and benefits of all previous services are not restricted to optee only.
23.This decision of the learned Single Judge in the case of S.S. Patel (supra) came to be challenged by way of intracourt appeal being Letters Patent Appeal No.1151 of 2008 by the Director of Pension and Provident Fund and others, wherein the Division Bench has referred to various observations and findings of the learned Single Judge and confirmed the decision rendered by the learned Single Judge vide judgment dated September 08, 2014.
24.In yet another decision of a Division Bench of this Court in the case of Maheshbhai H. Bhatt v. Secretary and others, rendered on February 07, 2014, while dealing with Letters Patent Appeal No.1213 of 2010 and connected Civil Application, the Division Bench was dealing with an issue whether the petitioner would be covered by the pension scheme without exercising option for his service rendered in grantinaid college. 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 Page 43 of 127 HC-NIC Page 43 of 127 Created On Fri Jun 30 00:13:30 IST 2017 C/SCA/3250/2009 CAV JUDGMENT 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 challenged by the appellant employee and this Court held in favour of the employee. It would be profitable to regurgitate the relevant paragraphs of the said decision, which read as under :
3. Before adverting to the rival contentions, we may notice that till 9th November 1989, when the petitioner was brought over from L.M Pharmacy College to L.D Arts College, there was no pension scheme applicable to the aided pharmacy colleges. In L.M Pharmacy College, therefore, the petitioner was covered by CPF Scheme without any option.
4. On 3rd July 1987, the Government issued a Resolution promulgating a pension scheme for the full time nonteaching staff of the affiliated and aided nonGovernment Arts, Science, Commerce and Education Colleges in the State with effect from 1st April 1982.
Such pension scheme was applicable to those members of nonteaching staff of the said colleges who were in service as on 1st April 1982 and recruited thereafter. For the members of the existing staff recruited before 1.04.1982 and those of the employees, who had retired after 1st April 1982, but before the date of the G.R ie., 3rd July Page 44 of 127 HC-NIC Page 44 of 127 Created On Fri Jun 30 00:13:30 IST 2017 C/SCA/3250/2009 CAV JUDGMENT 1987, option was given whether to continue in CPF Scheme or switchover to the pension scheme. Those employees who had been recruited after 1st April 1982, there was no option and they were automatically governed by the pension scheme.
4.1 Relevant portion of the said Pension Scheme reads as under :
1. a] For the purpose of this scheme (1) A nonGovernment College includes nonGovernment affiliated Arts, Science, Commerce and B.Ed. Colleges receiving grantinaid and managed by the private body and affiliated with the Universities by the competent authority.
b] for the purpose of pensionable pay, pay means and includes :
1) Pay in the approved prescribed scale of pay;
2) Personal pay granted to save from loss of pay due to revision of pay scale of due to pay fixation.
2. xx xx xx
3. i) Members of the existing staff recruited before 1.4.1982 and those staff who have retired on or after 1.4.1982 and prior to the date of issue of this resolution should exercise their option within the period of one year from the date of issue of this resolution either to continue in Contributory Provident Fund scheme or to come under this Scheme. The option once exercised shall be final. The option should be exercised in writing in the form prescribed [Appendix A] and communicated to the Director of Higher Education. The members of the staff who do not exercise the option within stipulated period shall be deemed to have opted fro the retention of the benefit admissible to them before 4.4.1982. Where a member of the staff who was entitled to exercise an option in accordance with this Resolution died on any date on or from 1st April 1982 and on or before expiry of the date before which Page 45 of 127 HC-NIC Page 45 of 127 Created On Fri Jun 30 00:13:30 IST 2017 C/SCA/3250/2009 CAV JUDGMENT he had to exercise option without exercising it, his family may be given the benefit of these rules or may be allowed the benefit or CPF scheme, whichever is more favourable to them. The pension sanctioning authority should work out the benefits admissible under both the alternatives (ie., the CPF and the Revised Pension Rules, 1950) as admissible under this government resolution after taking into account the quantum of CPF as well as family pension and prepare pension papers accordingly with necessary sanction.
4. The members of the staff recruited on or after 1st April 1982 shall automatically be governed by this scheme. Such staff will not be allowed to opt for contributory provident fund scheme.
5. xx xx xx
6. In computing the length of qualifying service for pension under this scheme, all previous service whether temporary officiating or permanent either in one or more than one nonGovernment aided colleges, University, Department, Higher Secondary School who are being paid GrantinAid from Government shall be taken into account. The period of break in service will not be considered as qualifying service ie., actual service rendered will be considered as qualifying services.
4.2 We may also notice that on 22nd March 1993, Government issued a resolution making pension scheme for the fulltime teaching and nonteaching staff of the nonGovernment Degree and Diploma Colleges in the State. This pension scheme was made applicable with effect from 1st April 1989. Similar options as in the G.R dated 3rd July 1989 were made available to the employees who were in service on 1st April 1989 and thereafter Page 46 of 127 HC-NIC Page 46 of 127 Created On Fri Jun 30 00:13:30 IST 2017 C/SCA/3250/2009 CAV JUDGMENT whether to be retired in CPF scheme or switchover to the pension scheme.
4.3 On the basis of such facts, counsel for the appellant vehemently contended that the Government committed a serious error in rejecting the 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 postretiral benefits. What these post retiral benefits include is a more complex question, to which we would devote more discussion later. At this stage, we may recall that the appellantpetitioner was at one stage dismissed from service by the employer ie., L.D Arts college management. This happened in the year 1995. He challenged his dismissal before the Tribunal. Before the Tribunal, the employee as well as the employer entered into a compromise. The employee offered to resign in lieu of his dismissal. The employer thereupon agreed to withdraw the order of dismissal. This is precisely what the parties recorded in their compromise pursis. In such pursis dated 26th June 2002, the parties jointly declared that the college Page 47 of 127 HC-NIC Page 47 of 127 Created On Fri Jun 30 00:13:30 IST 2017 C/SCA/3250/2009 CAV JUDGMENT management agreed to withdraw the order of dismissal on condition that the petitioner would opt for voluntary retirement from 4th January 1995 ie., the date of dismissal. It is also recorded that on the basis of such voluntary retirement, the management would prepare the papers for the petitioner to claim post retiral benefits. It was on this compromise pursis that the Tribunal passed its order dated 18th July 2002. The Tribunal accepted the compromise, allowed the parties to act accordingly and also directed the management to release the benefits of the petitioner within the time prescribed and in case, the management is required to forward such bills to the Government, it would do so forthwith and the Government would sanction such bills within the time prescribed. 6.1 Though the Government was not a signatory to the compromise pursis entered into between the petitioner and the college, it was a party to the proceedings before the Tribunal. As noted above, the Government Pleader was present when the order was passed by the Tribunal. In any case, such order was never challenged by the Government. Under the circumstances, the appellantpetitioner would be entitled to receive all the postretiral benefits as if he had retired voluntarily with effect from 4th January 1995.
25.The Court, thus, held that there was no option available prior to April 01, 1982 and those who were recruited on or after April 01, 1982, had not to exercise any option and they would be automatically governed by the pension scheme and, therefore, cannot be denied the benefit of pension scheme only on the ground that they had not exercised the option. It was further held that promotion also would mean recruitment as entire exercise for promotion was after due process and, therefore, the employee should be given pensionery benefits on calculating the total length of service as early as possible Page 48 of 127 HC-NIC Page 48 of 127 Created On Fri Jun 30 00:13:30 IST 2017 C/SCA/3250/2009 CAV JUDGMENT within the prescribed time limit, after deducting the amount already paid towards the CPF. (Emphasis supplied)
26.A reference would also be required of the decision of this Court in the case of Banuben Rameshbhai Dhakkan v. State of Gujarat thro Secretary and others, rendered on January 22, 2015 while dealing with Special Civil Application No.740 of 2013, wherein the Court was considering the similar question 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 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 AnnexureA 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 Page 49 of 127 HC-NIC Page 49 of 127 Created On Fri Jun 30 00:13:30 IST 2017 C/SCA/3250/2009 CAV JUDGMENT 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 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.
27.The said order was challenged by the State by way of preferring intercourt appeal being Letters Patent Appeal No.982 of 2015. The Division Bench referred to the decision rendered on July 02, 2015 by the Division Bench of this Court in the case of State of Gujarat Thro Secretary v. Bhupendra Vallabhdas Chudasama and another, while dealing with Letters Patent Appeal No.981 of 2015, confirmed the decision rendered by the learned Single Judge.
3.1 In view of the above and for the reasons stated above and aforesaid direct decision of the Division Bench of this Court on the very issue, it cannot be said that the Page 50 of 127 HC-NIC Page 50 of 127 Created On Fri Jun 30 00:13:30 IST 2017 C/SCA/3250/2009 CAV JUDGMENT learned Single Judge has committed any error in quashing and setting aside the communication / order dated 15.09.2012 and in holding that the petitioner shall be entitled to the pension / GPF Scheme as per the G.R. dated 15.10.1984, however subject to her depositing / redepositing the amount of CPF received by her. However, it is clarified that the period of service prior to 01.04.1982 shall be counted only for the purpose of pensionable service and not for any other purpose.
28.This Court in the case of Bhupendra Vallabhdas Chudasama rendered on April 16, 2014 while dealing with Special Civil Application No.7173 of 2012, had extensively dealt with the decision in the case of S.S. Patel (supra), to hold in favour of the petitioner that the benefit of the said Government Resolution would be applicable in the case of those who have been employed on the post on or after April 01, 1982 period automatically.
The aforesaid decision in the case of Bhupendra Chudasama (supra) was challenged by the State in an intracourt appeal being Letters Patent Appeal No.981 of 2015, wherein the Division Bench of this Court has confirmed the order passed by the learned Single Judge while dealing with Special Civil Application No.7173 of 2012. It would be profitable to reproduce the relevant paragraphs of the said decision, which read 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 Page 51 of 127 HC-NIC Page 51 of 127 Created On Fri Jun 30 00:13:30 IST 2017 C/SCA/3250/2009 CAV JUDGMENT 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?
[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.NGC1582/9505(84)KH, Sachivalaya, Gandhinagar, Dated the 15th 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 nongovernment 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 XIVC to BCSR Rules, Volume II, as amended from time to time, the family pensions scheme sanctioned in Government Resolution, Finance Department No.FPS 1071J 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 Page 52 of 127 HC-NIC Page 52 of 127 Created On Fri Jun 30 00:13:30 IST 2017 C/SCA/3250/2009 CAV JUDGMENT Department and in affiliated and aided nongovernment 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 nonGovernment college includes non Government affiliated Arts, Science, Commerce and B.Ed. colleges receiving grantinaid and managed by the private body and affiliated with the universities by the competent authority, as such for the purpose of grantinaid 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 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 Page 53 of 127 HC-NIC Page 53 of 127 Created On Fri Jun 30 00:13:30 IST 2017 C/SCA/3250/2009 CAV JUDGMENT physical training instructors, Librarians etc. working in nonGovernment 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.
The option should be exercised in writing in the form prescribed (appendixA) 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.
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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.
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 Page 55 of 127 HC-NIC Page 55 of 127 Created On Fri Jun 30 00:13:30 IST 2017 C/SCA/3250/2009 CAV JUDGMENT by him immediately in the Government Treasury.
4. The member of the staff recruited on or after 1st April, 1982 shall automatically be governed by this scheme. Such staff will not be allowed to opt for contributory provident fund scheme.
5. 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 nongovernment aided colleges, University Department, Higher Secondary School who are being paid Grant inaid 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 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.NVN10821074P 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 Page 56 of 127 HC-NIC Page 56 of 127 Created On Fri Jun 30 00:13:30 IST 2017 C/SCA/3250/2009 CAV JUDGMENT 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 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 preaudit 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 Page 57 of 127 HC-NIC Page 57 of 127 Created On Fri Jun 30 00:13:30 IST 2017 C/SCA/3250/2009 CAV JUDGMENT regulated as per Government Resolution, Finance Department No.PEN10691874J, dated 17th June, 1969 and BCSR Rule 214 and 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 "
14.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.
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 nongovernment 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 nongovernment 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 XIVC to BCSR Rules, Volumes II, as amended from time to time, the family pensions scheme sanctioned in Government Resolution, Finance Department No.FPS1071J dated 01.01.1972 as amended from time to time is made applicable to the full time Page 58 of 127 HC-NIC Page 58 of 127 Created On Fri Jun 30 00:13:30 IST 2017 C/SCA/3250/2009 CAV JUDGMENT teaching staff of the universities under the Education Department and in affiliated and aided nonGovernment 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 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 Page 59 of 127 HC-NIC Page 59 of 127 Created On Fri Jun 30 00:13:30 IST 2017 C/SCA/3250/2009 CAV JUDGMENT 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 nongovernment 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 3posed 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 Grantinaid 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 nongovernment aided colleges, University Department, Higher Secondary School, who were being paid Grant Page 60 of 127 HC-NIC Page 60 of 127 Created On Fri Jun 30 00:13:30 IST 2017 C/SCA/3250/2009 CAV JUDGMENT inaid 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 nongovernment aided colleges, University Department, Higher Secondary School who were being paid Grantinaid 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.
[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 nongovernment aided Colleges, University, Higher Secondary School who are being paid grantinaid from Government, shall be taken into account for computing Page 61 of 127 HC-NIC Page 61 of 127 Created On Fri Jun 30 00:13:30 IST 2017 C/SCA/3250/2009 CAV JUDGMENT 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 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 Page 62 of 127 HC-NIC Page 62 of 127 Created On Fri Jun 30 00:13:30 IST 2017 C/SCA/3250/2009 CAV JUDGMENT 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.
24.There is yet another decision of this Court rendered on August 07, 2013 in the case of L.P. Joshi v. State of Gujarat and another, while dealing with 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 and 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 respondentauthority 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 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, Page 63 of 127 HC-NIC Page 63 of 127 Created On Fri Jun 30 00:13:30 IST 2017 C/SCA/3250/2009 CAV JUDGMENT those who did not opt for joining the GPF scheme, were held not entitled for the same.
As against the said order, an intracourt 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 Page50 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 Paras11 and 12 of the impugned judgment, which is reproduced herein below :
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.
12.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 Page 64 of 127 HC-NIC Page 64 of 127 Created On Fri Jun 30 00:13:30 IST 2017 C/SCA/3250/2009 CAV JUDGMENT 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 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) GLHELSC 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 Page 65 of 127 HC-NIC Page 65 of 127 Created On Fri Jun 30 00:13:30 IST 2017 C/SCA/3250/2009 CAV JUDGMENT the benefits under GPF Scheme by changing her option, at a later stage.
7. As regards the decision in the case of RAJASTHAN STATE ROAD TRANSPORT CORPORATION VS.
PRESIDENT, RAJASTHAN ROADWAYS UNION, 2012(0)GLHELSC 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.
10. Since, the main matter is dismissed, civil application shall not survive and it also stands DISPOSED OF, accordingly.
25.This Court in the decision rendered on February 27, 2015 in the case of Uma V. Chudasama v. State of Gujarat and others, while dealing with Special Civil Application No.11473 of 2013, was required to deal with once again the very issue and after referring to the decision in the case of Dr.Nalini K. Dave (supra) and S.S. Patel (supra) and other decisions, the Court held thus :
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5. Having heard the learned advocates for the parties, it appears that the petitioner was initially appointed as lecturer vide order dated 24.10.1980 at AnnexureA in MS University, Vadodara on probation for a period of two years. Subsequently, she was confirmed on the said post with effect from 24.11.1982 as per order at Annexure B. It appears that thereafter, vide order dated 5.2.1986, the petitioner was appointed on the post of reader. In the appointment order at annexure C for the post of reader, application of the petitioner for the post of reader as also report of selection committee dated 22.1.1986 are referred.
Relying on the selection report referred in appointment order, learned Advocate Mr. Chauhan submitted that the appointment of the petitioner on the post of reader is required to be considered as fresh appointment after 1.4.1982, i.e. cut off date mentioned in the resolution dated 15.10.1984, However, what is required to be considered is whether the petitioner was a member of teaching staff of the very same university prior to 1.4.82. If the petitioner is to be treated as a member of teaching staff prior to 1.4.1982, then, the petitioner was required to exercise option for pension scheme.
6.The phrase teaching staff is given meaning in clause (c) of clause (1) of the Resolution dated 15.10.1984 which reads as under:
(c) Teaching staff means a full time professor, Assistant Professor, Reader, Lecturers in Universities and Principal, Lecturer, Tutor, Demonstrator and also physical training instructions, librarians etc. working in non Government aided colleges who are receiving University Grants Commission Scales;
7.Clause 4 which is relevant for our purpose reads as under:
4. The member of the staff recruited on or after 1st April, 1982 shall automatically be governed Page 67 of 127 HC-NIC Page 67 of 127 Created On Fri Jun 30 00:13:30 IST 2017 C/SCA/3250/2009 CAV JUDGMENT by this scheme. Such staff will not be allowed to opt for contributory provident fund scheme.
8.As per clause 4, any member of the staff recruited on or after 1st April, 1982 shall stand automatically governed by the pension scheme and such member shall not be allowed to opt for the CPF Scheme.
9.As far as the case of the petitioner is concerned, the petitioner could be said to be a member of teaching staff as per the above referred sub clause (c) right from the date she was first appointed on 24.10.1980 as undisputedly the petitioner was working as full time lecturer.
10.It is not in dispute that till the petitioner retired on 14.6.2012, the petitioner continued with the CPF Scheme and in fact, got all the benefits of pay fixation, length of service, leave salary etc. on the basis of her original date of appointment of 24.10.1980. After two years of her retirement, the petitioner has now claimed benefit of pension under the resolution dated 15.10.1984. At such belated stage, such prayer cannot be accepted especially when the petitioner has already got benefits of CPF and other benefits on the basis of her initial date of appointment and especially when she could be considered as a member of teaching staff from her initial date of appointment.
11.None of the judgments relied by learned Advocate Mr. Chauhan shall have application to the facts of the case of the petitioner. In the case of Dr. Nalini V. Dave (supra), though the petitioner in the said case made repeated sincere efforts before the concerned authorities for the purpose of exercising option and to get benefit of pension scheme, she was denied the benefit of pension scheme. On account of taking no action by the concerned authority for long time, the Court held that the petitioner in the said case was not responsible for delay and she was not made aware about benefit of available under the pension scheme.
12.In the case of S.S. Patel (supra), the petitioner had joined the service as reader on 6.10.88 and the claim was to consider his past services for the purpose of pension benefits. The Page 68 of 127 HC-NIC Page 68 of 127 Created On Fri Jun 30 00:13:30 IST 2017 C/SCA/3250/2009 CAV JUDGMENT Court on construction of clause 6 of the scheme, held that the petitioner therein was entitled to the benefits of past services. However, in the said case, undisputedly, the petitioner was recruited after 1.4.82 and in fact after issuance of the Resolution dated 15.10.1984.
13.In Special Civil Application No. 740 of 2013, the petitioner of the said petition had resigned from earlier institution and joined another institution in the year 1995 wherefrom she retired. In such fact situation, the Court held that her appointment in another institution was to be considered as fresh appointment after the cut off date of 1.4.1982 and she was automatically covered by the pension scheme and there was no question of exercising option by her.
14.In the case on hand, since the court finds that the petitioner could be said to be a member of teaching staff even prior to 1.4.1982, the petitioner would not stand automatically governed by the pension scheme.
15.For the reasons stated above, the petition is dismissed. Notice is discharged.
This decision of the learned Single Judge was challenged before the Division Bench of this Court by way of an intracourt appeal being Letters Patent Appeal No.1019 of 2015. The Division Bench allowed the appeal by holding that the issue is squarely covered by the decision of this Court rendered on July 27, 2015 and held that the petitioner would be entitled to the pension under the GPF Scheme as per the Government Resolution dated October 15, 1984 and the entire service, including services prior to April 01, 1982 would be necessarily counted for the purpose of pension scheme with a rider that if he has already received the amount of CPF, the same shall be firstly repaid to the respondent authority and, thereafter only, the benefit would flow from the GPF scheme.
25.Reverting to the facts of the present case, the petitioner joined his services as Tutor Demonstrator in the Science College on April 10, 1970 on completion of due process of selection.
Page 69 of 127HC-NIC Page 69 of 127 Created On Fri Jun 30 00:13:30 IST 2017 C/SCA/3250/2009 CAV JUDGMENT He had applied for the post of Lecturer advertised by the Gujarat University and was, accordingly, appointed on June 15, 1982. Pursuant to the advertisement of the Gujarat University for filling in the vacant posts of Reader in the School of Science, once again he was required to undertake the entire selection process. After completion of the said de novo process of selection, he was initially appointed on probation period for two years vide order dated July 07, 1990. The appointment was given to him specifically mentioning that the GPF, Pension and other benefits are admissible. It is also the say of the petitioner that he had gone through the entire process of selection once again when he came to be appointed as a Professor on September 07, 1998. It is, thus, the say of the petitioner that he had joined the service after April 01, 1982 on undergoing due selection process. Therefore, the petitioner would be covered under Clauses 4 and 6 of the Government Resolution dated October 15, 1984, which is made effective with effect from April 01, 1982.
Not only there is no requirement of his giving any option as his appointment is after April 01, 1982 and his entitlement would be automatic so far as his claim of pension is concerned. Each time when he was appointed, he had undergone the very process which led to his appointment. In the decisions discussed hereinabove, this issue is at length discussed and decided and hence, the issue is no longer res integra. Particular reference of the judgment in the case of Maheshbhai H. Bhatt (supra) and the decision in the case of Banuben Rameshbhai Dhakkan (supra), at this stage, would be necessary. These decisions also take into account the observations rendered in the case of S.S. Patel (supra) and Dr.Nalini K. Dave (supra).
26.The issue of fresh recruitment and whether promotion to the post of a Principal/Professor would amount to recruitment is also, as discussed above, squarely covered by various decisions referred to hereinabove, more particularly, in the decision in the case of Maheshbhai H. Bhatt (supra) the petitioners, therefore, deserve to be Page 70 of 127 HC-NIC Page 70 of 127 Created On Fri Jun 30 00:13:30 IST 2017 C/SCA/3250/2009 CAV JUDGMENT granted the benefit of the pension scheme without there being any necessity to opt for such scheme specifically. As the appointment of the petitioner on the post of Lecturer was in the post April 01, 1982 period, it would not require this Court to adjudicate in this group of petitions, the issue as to whether the promotion would amount to recruitment or not. Although the Supreme Court in the case of K. Narayanan (supra) has held that the term 'recruitment' includes promotion and deputation; and the said issue, as such, is not required to be adjudicated upon as all the petitioners are already covered by the settled position of law. Although, that particular issue also has been extensively adjudicated upon by this Court.
27.For the foregoing reasons, all the petitions succeed and the same are, accordingly, allowed. The respondentauthority is directed to grant benefit of pension scheme to all the petitioners in view of Government Resolution October 15, 1984, from the date of their respective retirement, along with interest at the rate of 9% per annum.
In case of those petitioners, who have not refunded/repaid the amount of Contributed Provident Fund, only after repayment/refund of such amount of Contributed Provident Fund by the concerned petitioners, in case of such petitioners, the amount of pension shall be paid to the respective petitioner.
Insofar as the petitioners who have refunded/ repaid the amount of Contributed Provident Fund are concerned, they shall be entitled for interest on the amount of pension from the date of their repaying/refunding the amount of Contributed Provident Fund.
Disposed of accordingly. There shall be, however, no order as to costs. "
19. Against the aforesaid judgment and order of the learned Single Judge, I am told that the following letters patent appeals have been filed by the State of Gujarat and those also are pending before the Division Bench for consideration.Page 71 of 127
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(i) Letters Patent Appeals Nos.219 of 2017 to 238 of 2017 with Letters Patent Appeals Nos.474 of 2017 and 475 of 2017.
20. A learned Single Judge of this Court, in the case of Banuben Rameshbhai Dhakan vs. State of Gujarat Through Secretary & Ors., Special Civil Application No.740 of 2013, decided on 22nd January, 2015, held as under;
"1. In this petition filed under Article 226 of the Constitution of India, the petitioner has sought direction against the respondent Nos.1 and 2 to grant and pay pension and other statutory benefits to the petitioner as per the resolution dated 15.10.1984 and to set aside the order dated 15.9.2012 at Annexure-A whereby the request of the petitioner to consider her service for the purpose of pension is not accepted.
2. The case of the petitioner is that the petitioner served as Lecturer with J.J. Kundaliya Commerce College for a period from 12.8.1974 to 30.8.1995. The said college was run by Shri Mahatma Gandhi Charitable Trust, Rajkot. The petitioner was then appointed as Principal in Late Minaben Jayantilal Kundaliya Arts & Commerce Mahila College by appointment letter dated 29.6.1995 with effect from 1.7.1995 and was made permanent on 1.4.1996 in the grade of Rs.3700-5770. This college is run by respondent No.4. The appointment of the petitioner in this college was approved by respondent No.3- Saurashtra University. Since the petitioner got such appointed as Principal, she resigned as a lecturer from earlier college, which was accepted by order dated 8.7.1995. It is the case of the petitioner that the petitioner was under the Scheme of Central Provident Fund when she was serving as Lecturer. However, in view the resolution dated 15.10.1984 read with clarification in the said resolution dated 21.8.1989, the above scheme under this resolution would automatically apply to the case of the petitioner. The petitioner has averred that though this Court has taken a view in different petitions that pension scheme shall apply to all employees Page 72 of 127 HC-NIC Page 72 of 127 Created On Fri Jun 30 00:13:30 IST 2017 C/SCA/3250/2009 CAV JUDGMENT appointed after 1982, still the request of the petitioner for considering her services as pensionable is not accepted.
3. The petition is opposed by the respondents by filing affidavit-in-reply mainly stating that the petitioner had never opted for any pension scheme and preferred to continue in CPF scheme. It is stated that the petitioner should have opted for pension within the stipulated time as provided in the resolution dated 15.10.1984. To the aforesaid reply affidavit, the petitioner filed rejoinder mainly stating that there was no question of petitioner exercising option as she was appointed with effect from 1.4.1996 as Principal and was automatically governed by the pension scheme under the resolution dated 15.10.1984.
4. I have heard learned advocates for the parties.
5. Learned advocate Mr. Patel for the petitioner submitted that the benefit of pension and other retiral benefits under the resolution dated 15.10.1984 are automatically available to all the employees appointed after 1.4.1982. Mr. Patel submitted that as per the case of the petitioner and even as per the reply affidavit, the petitioner resigned from earlier college where she was serving as Lecturer on 30.8.1995 and thereafter was appointed in the college of respondent No.4 with effect from 1.4.1996 and therefore, such appointment as Principal since was after resolution dated 15.10.1984, there was no question of exercising any option for pension as the petitioner automatically stood governed by the resolution. Mr. Patel submitted that in similar facts situation, this Court has held in Special Civil Application No.12214 of 2005 vide judgment dated 7.8.2013 that if there is a fresh appointment after the date of resolution, the benefit of pension under the resolution is available to the appointee.
6. Learned Assistant Government Pleader Mr. Ashar submitted that the petitioner was earlier serving as Lecturer and immediately after resigning as Lecturer, the petitioner joined another college as Principal and therefore, as per the resolution dated 15.10.1984, the petitioner was required to exercise option within the stipulated time limit which since the petitioner failed to Page 73 of 127 HC-NIC Page 73 of 127 Created On Fri Jun 30 00:13:30 IST 2017 C/SCA/3250/2009 CAV JUDGMENT exercise, the petitioner has rightly not been made entitled to benefit of pension under the resolution dated 15.10.1984. Mr. Ashar submitted that since the petitioner continued with CPF scheme, she cannot be made entitled to pension scheme unless CPF amount is transferred to the pension scheme. However, learned Assistant Government Pleader could not dispute that this Court in the above-referred petition has taken a view that if there is a fresh appointment in different college, after effective date of 1.4.1982, benefit of resolution dated 15.10.1984 could be extended to such employee.
7. Learned advocate Mr. Thacker appearing for the concerned Institution also could not dispute that the petitioner since was appointed as Principal after 1.4.1982, the case of the petitioner could be said to be governed for the purpose of pension under the resolution dated 15.10.1984.
8. Having heard learned advocates for the parties, what is not in dispute is that the petitioner earlier put in services as a Lecturer in J.J. Kundaliya Commerce College for a period from 12.8.1974 to 30.8.1995, however from the said college, she resigned and got appointment as Principal in the college run by respondent No.4. Such appointment as Principal with effect from 1.4.1996 was then approved by the respondent No.3 University. The petitioner served the said Institution as Principal and retired on 31.10.2012. However, the petitioner is denied benefit of pension under the resolution dated 15.10.1984 on the ground that the petitioner did not exercise option for pension scheme within the time stipulated as required by resolution dated 15.10.1984 and by subsequent resolution extending the date for exercising option and continued with CPF scheme.
9. Such stand of respondent Nos.1 and 2 is not in consonance with the resolution dated 15.10.1984. This Court had an occasion in the above-referred Special Civil Application to consider the question as to whether employee who gets fresh appointment after effective date of 1.4.1982 as provided in the resolution dated 15.10.1984, after resigning from earlier Institution, would stand automatically covered under the pension scheme as per the resolution dated 15.10.1984.Page 74 of 127
HC-NIC Page 74 of 127 Created On Fri Jun 30 00:13:30 IST 2017 C/SCA/3250/2009 CAV JUDGMENT
10. In the judgment dated 7.8.2013 in the above- referred Special Civil Application, this Court has held and observed from para 8 to 13 as under:-
8. Having heard learned advocates for the parties and having gone through the documents placed with the petition including the impugned order as also the Government Resolutions providing for Pension Scheme for the Teaching Staff of Non-Government affiliated college, it appears that there is no dispute that the petitioner resigned from Arts & Commerce College Idar on 02.07.1991. In his application at Annexure-B for resignation, the petitioner has clearly stated that the petitioner was selected as Principal in Ambaji Arts College at Ambaji and the management of the said college asked him to resume the duty before 02.07.1991. From the endorsement on the back of the said application, it clearly appears that the resignation of the petitioner was accepted on the same day by the management of the said college.
9. The petitioner then joined the Ambaji Arts College at Ambaji on 02.07.1991 itself.
Thereafter, the appointment of the petitioner as Principal in the Ambaji Arts College at Ambaji came to be approved by the North Gujarat University vide order dated 20.01.1992 as per Annexure-D wherein it is clearly stated that the North Gujarat University has approved the new appointment of the petitioner as Principal in English subject with other two teachers. Thus the said appointment was new appointment for the petitioner.
10. This appointment was also approved by the respondent No.2 for the purpose of grant with other teachers of Ambaji Arts College at Ambaji by order dated 10.03.1993. However, subsequently the petitioner got appointment as Principal in Arts, Science and Commerce College at Borsad. The said appointment was Page 75 of 127 HC-NIC Page 75 of 127 Created On Fri Jun 30 00:13:30 IST 2017 C/SCA/3250/2009 CAV JUDGMENT approved by the respondent No.2 by order dated 26.04.1994 and petitioner therefore, resumed his duty in the said college at Borsad on 15.06.1994 as Principal. Since then the petitioner has been working as Principal in the said college at Borsad. Thus the petitioner has left behind is earlier service tenure after getting new appointment as Principal in Ambaji Arts College at Ambaji and thereafter, in college at Borsad.
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.
12. 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 Page 76 of 127 HC-NIC Page 76 of 127 Created On Fri Jun 30 00:13:30 IST 2017 C/SCA/3250/2009 CAV JUDGMENT retirement for the staff that may be recruited on or from 1984 shall 58 years for which universities should be requested to take necessary action to amend the relevant statute.
13. Thus the said clause provides two different retirement age for two different class of employees. This has nothing to with exercise of option for pension. Therefore, when the petitioner is treated as fresh and new employee from 02.07.1991, he shall be required to be governed by the GPF Scheme.
Thus the order passed by the respondent No.2 dated 16.03.2005 at Annexure-A can not stand scrutiny of law, and is required to be quashed and set aside.
In the said judgment, this Court has issued final directions in para 14 as under :-
14. For the reasons stated above, the order dated 16.03.2005 passed by the respondent No.2 at Annexure-A declining GPF Scheme benefit to the petitioner is quashed and set aside. The petitioner is held entitled to the benefit of GPF Scheme with effect from date the petitioner joined new service from 02.07.1991. The respondents are directed to give benefit of GPF Scheme to the petitioner by transferring the account of the petitioner from CPF to GPF.
This exercise shall be completed within one month from the date of receipt of this order.
11. It is pointed out that Division Bench has confirmed the view taken in the above-referred Special Civil Application by oral order dated 9.4.2014 in Letters Patent Appeal No.447 of 2014.
12. It appears that though the respondent No.2 has stated in the affidavit-in-reply that the petitioner cannot now avail benefit of pension having enjoyed the benefit under the CPF scheme, however, the petitioner in her Additional Affidavit at page 70 stated that there was a calculation done of GPF amount which comes to Rs.30,19,696/-. The petitioner contributed 50% of the said amount and Page 77 of 127 HC-NIC Page 77 of 127 Created On Fri Jun 30 00:13:30 IST 2017 C/SCA/3250/2009 CAV JUDGMENT from her contribution, she was paid Rs.9,75,000/-. It is therefore, not clear as to whether the petitioner enjoyed the amount of CPF or not. In such view of the matter, if the petitioner has received any amount towards CPF benefit, she shall be required to deposit such amount so as to transfer the said amount to her GPF account for the purpose of getting the benefit of pension under the resolution dated 15.10.1984.
13. In view of the above and for the reasons stated in Special Civil Application No.12214 of 2005, the petition is allowed.
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 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.
Page 78 of 127HC-NIC Page 78 of 127 Created On Fri Jun 30 00:13:30 IST 2017 C/SCA/3250/2009 CAV JUDGMENT Rule is made absolute to the aforesaid extent. "
21. The aforesaid judgment of the learned Single Judge was challenged by the State in the Letters Patent Appeal No.982 of 2015 before a Division Bench. The Division Bench of this Court, by judgment and order dated 2nd July, 2015, dismissed the appeal, observing as under;
"[1.0] ADMIT. Shri Vimal Patel, learned advocate waives service of notice of Admission on behalf of the respondent No.1 herein original petitioner, who can be said to be the main contesting party. In the facts and circumstances of the case and with the consent of learned advocates appearing for respective parties, present Letters Patent Appeal is taken up for final hearing today.
[2.0] Feeling aggrieved and dissatisfied with the impugned judgment and order dated 22.01.2015 passed by the learned Single Judge in Special Civil Application No.740/2013 by which the learned Single Judge has allowed the said Special Civil Application and has quashed and set aside the order dated 15.09.2012 and consequently has held that that the original petitioner is entitled to the benefit of pension (GPF Scheme) under Government Resolution dated 15.10.1984 with effect from the date she joined as Principal from 01.04.1996, however subject to the original petitioner depositing the amount of CPF received by her.
[2.1] At the outset it is required to be noted and it is not in dispute that admittedly the respondent No.1 herein original petitioner was appointed as Principal in the institution run by the respondent No.4 with effect from 01.04.1996 i.e. much after the G.R. dated 15.10.1984, it is not in dispute that the original petitioner earlier put in services as Lecturer in J.J. Kundaliya Commerce College for a period from 12.08.1974 to 30.08.1995, however from the said college she resigned and subsequently appointed as Principal in the college run by respondent No.4 with effect from 01.04.1996. Subsequently, when she retired on 31.10.2012, she was denied the pension / Page 79 of 127 HC-NIC Page 79 of 127 Created On Fri Jun 30 00:13:30 IST 2017 C/SCA/3250/2009 CAV JUDGMENT pensionary benefits flowing from the G.R. dated 15.10.1984 on the ground that after 15.10.1984, she did not opted for the GPF Scheme and consequently the order dated 15.09.2012 came to be passed, which was subject matter before the learned Single Judge in aforesaid Special Civil Application No.740/2013.
[2.2] That by impugned judgment and order the learned Single Judge has allowed the aforesaid Special Civil Application and has quashed and set aside the order dated 15.09.2012 and has held that the original petitioner shall be entitled to the pension as per the G.R. dated 15.10.1984 as, the appointment of the petitioner as the Principal was after 15.10.1984, she was not required to exercise any option as she was will be automatically governed by the G.R. dated 15.10.1984. However, the learned Single Judge also passed an order that if the original petitioner has received any amount of CPF and the same is not redeposited, the same shall be redeposited before she is granted the benefit of pension / GPF Scheme as per G.R. dated 15.10.1984.
[2.3] Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the learned Single Judge, the appellants herein original respondents State authorities have preferred the present Letters Patent Appeal.
[3.0] Heard Ms. Manisha Lavkumar, learned Government Pleader appearing on behalf of the appellants herein and Shri Vimal Patel, learned advocate appearing on behalf of the original petitioner.
At the outset it is required to be noted that as such the issue involved in the present appeal is now not res integra in view of the decision dated 02.07.2015 of the Division Bench of this Court in the case of State of Gujarat Thro Secretary & Ors. vs. Bhupendra Vallabhdas Chudasama & Anr. rendered in Letters Patent Appeal No.981/2015. In the aforesaid decision the Division Bench of this Court has specifically observed and held that an employee like the original petitioner who is appointed after 15.10.1984 shall automatically be governed by the GPF Scheme and no option was required to be exercised as sought to be contended on behalf of the State. The Division Bench has also held that however the services rendered by such employee prior to Page 80 of 127 HC-NIC Page 80 of 127 Created On Fri Jun 30 00:13:30 IST 2017 C/SCA/3250/2009 CAV JUDGMENT 01.04.1982 is required to be counted for the purpose of pensionable service only and not for any other purpose. In the aforesaid decision in para 7 the Division Bench has ultimately 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 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.
[3.1] In view of the above and for the reasons stated above and aforesaid direct decision of the Division Bench of this Court on the very issue, it cannot be said that the learned Single Judge has committed any error in quashing and setting aside the communication / order Page 81 of 127 HC-NIC Page 81 of 127 Created On Fri Jun 30 00:13:30 IST 2017 C/SCA/3250/2009 CAV JUDGMENT dated 15.09.2012 and in holding that the petitioner shall be entitled to the pension / GPF Scheme as per the G.R. dated 15.10.1984, however subject to her depositing / redepositing the amount of CPF received by her. However, it is clarified that the period of service prior to 01.04.1982 shall be counted only for the purpose of pensionable service and not for any other purpose.
[4.0] In view of the above and for the reasons stated above, with above observation and clarification, present Letters Patent Appeal deserves to be dismissed and is, accordingly, dismissed. However, in the facts and circumstances of the case, there shall be no order as to costs.
CIVIL APPLICATION NO.6483/2015 In view of dismissal of main Letters Patent Appeal, Civil Application No.6483/2015 also stands dismissed. "
22. In one another decision in the case of S.S. Patel vs. Director of Pension & Provident Fund & Ors., Special Civil Application No.29641 of 2007, a learned Single Judge of this Court held as under;
"11. Having heard the learned advocates appearing for the parties, on perusal of the record including various affidavits and rejoinders filed by the parties, relevant Rules and Government Resolutions, I am of the opinion that contentions raised by learned advocate for the petitioners deserve acceptance by this Court.
12. At the same time, what transpires from the submissions of the advocates appearing for the respective parties, is the interpretation of Government Resolution dated 15th October, 1984 and to appreciate the said contentions, it is necessary to reproduce relevant clauses of the G.R. dated 15.10.1984 which reads as under:
? The question of application of pension, gratuity and other retirement benefits to the members of teaching staff of the University Page 82 of 127 HC-NIC Page 82 of 127 Created On Fri Jun 30 00:13:30 IST 2017 C/SCA/3250/2009 CAV JUDGMENT 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 Govt. Servants under the Revised Pension Rules, 1950 contained in the 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 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 Department 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.
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 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 benefits of higher officiating or temporary pay should be given only if it is Page 83 of 127 HC-NIC Page 83 of 127 Created On Fri Jun 30 00:13:30 IST 2017 C/SCA/3250/2009 CAV JUDGMENT 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 authorised by him shall be competent authority to sanction pension, gratuity, family pension and other retirement benefits admissible under the scheme.
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 for the retention of the benefit admissible to them before 1.4.1982.
Where a member of the staff who was entitled to exercise an option in accordance with this Resolution died on any date on or from 1.4.1982 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 alternatives (i.e. the Page 84 of 127 HC-NIC Page 84 of 127 Created On Fri Jun 30 00:13:30 IST 2017 C/SCA/3250/2009 CAV JUDGMENT 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. 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 1.4.1982 to the date of issue of this Government Resolution and who have received their CPF amount including the management or University contribution and Government's 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, Government's 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 Page 85 of 127 HC-NIC Page 85 of 127 Created On Fri Jun 30 00:13:30 IST 2017 C/SCA/3250/2009 CAV JUDGMENT Government Treasury.
4. The member of the staff recruited on or after 1st April, 1982 shall automatically be governed by this scheme. Such staff will not be allowed to opt for contributory provident fund scheme.
5. The members of teaching staff who have completed five years 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, Universities 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 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 for which universities should be requested to take necessary action to amend the relevant statutes, Rules Regulations accordingly.?
12.1. The above Government Resolution introduced pension scheme for the teaching staff in the non- Government affiliated Colleges and in the Universities on par with retirement benefits admissible to the employees of the Gujarat State Government Servants with regard to Pension, Gratuity etc. under the revised pension Rules, 1950 including the family pension as amended from time to time.
Rule 41 (1) (a) of B.C.S.R. relied by the learned AGP reads as under:
?41.(1) In respect of persons retiring on or Page 86 of 127 HC-NIC Page 86 of 127 Created On Fri Jun 30 00:13:30 IST 2017 C/SCA/3250/2009 CAV JUDGMENT after 1st April, 1966, qualifying service means and includes:-
i. all services rendered on a regular establishment in any capacity whether temporary, or permanent interrupted or continuous but it shall not include-
(a) service on non-pensionable establishment.
........?
13. That other Government Resolution dated 17.12.1987 relied on by learned AGP is pertaining to pension scheme for the teaching and non-teaching staff in the Non- Government Engineering Colleges and Polytechnics and another Government Resolution dated 17.9.1991 about raising limit of death-cum-retirement gratuity to the employees of the Universities and Colleges which also have similar clauses like Government Resolution dated 15.10.1984 and provided an opportunity of exercising option by the employees of the Colleges/Universities for getting benefit of pension of D.C.R.G.
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 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:Page 87 of 127
HC-NIC Page 87 of 127 Created On Fri Jun 30 00:13:30 IST 2017 C/SCA/3250/2009 CAV JUDGMENT Sr. Period Position Name of Unviersity No. Held
1. 22.7.1968 to 3.12.1975 Asst. B.V.M. Engg. College, Lecturer Vallabh Vidyanagar
2. 4.12.1975 to 31.3.1986 Lecturer SVR College of Engg. & (BN) Technology Surat
3. 31.3.1986 to 5.10.1988 Reader South Gujarat University
4. 6.10.1988 to Reader M.S. 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 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. Page 88 of 127 HC-NIC Page 88 of 127 Created On Fri Jun 30 00:13:30 IST 2017 C/SCA/3250/2009 CAV JUDGMENT 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-reply dated 19th 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 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 recruited on or after 1st 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 Page 89 of 127 HC-NIC Page 89 of 127 Created On Fri Jun 30 00:13:30 IST 2017 C/SCA/3250/2009 CAV JUDGMENT transpires is that the member of the staff recruited on or after 1st 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.
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 the above colleges and resigned from the Page 90 of 127 HC-NIC Page 90 of 127 Created On Fri Jun 30 00:13:30 IST 2017 C/SCA/3250/2009 CAV JUDGMENT 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, 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 Page 91 of 127 HC-NIC Page 91 of 127 Created On Fri Jun 30 00:13:30 IST 2017 C/SCA/3250/2009 CAV JUDGMENT 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 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.
18. The two decisions relied on by learned advocate for the petitioner, are clearly applicable in the facts and circumstances of this case in as much as, in the case of Dr. Nalini V.Dave (supra), learned Single Judge after considering similar facts and circumstances when the petitioner was denied the benefits of Government Resolution dated 15.10.1984 and past services were not considered. Paras 9 and 10 is observed as under:
?9. It appears that the peculiar aspects and Page 92 of 127 HC-NIC Page 92 of 127 Created On Fri Jun 30 00:13:30 IST 2017 C/SCA/3250/2009 CAV JUDGMENT special circumstances obtainable in the present case are, also, not seriously considered and properly examined and appreciated by respondent No.3-University. The question of exercise of option could be raised when there is something to be opted for out of more than one options. In the present case, so far as the first spell of 19 years of actual service in the College for the period 15.6.1966 to 8.7.1985, as a Lecturer is concerned, admittedly, it had only one Scheme and that too, C.P.F. There was, therefore, no question of exercising any option. Likewise, during the period of service from 8.7.1985 till the date of Voluntary Retirement on 31.12.2000 in the Department of Commerce of respondent No.3_Unviersity, there was, also, compulsory scheme of pension. There, also, there was no question of exercising any option, particularly, when compulsory scheme was in existence.
10. It is in this context, it must be appreciated that there was no any fault or inaction or omission or commission on the part of the petitioner, which would disentitle the right to claim the pension, much less the dispute of raising the option Form, of late. Even assuming that there is a delay in exercise of the option, then also the available rights to pension, in this set of circumstances and special facts, cannot be allowed to thwart.
Needless to reiterate that the Court is vitally concerned and the main anxiety of the process of the decision-making and judicial adjudication has been to do justice and to undo injustice suffered, and thereby, render substantive justice, which cannot be eclipsed by a processual or technical objection. Delay in such a fact situational reality could never tantamount to a defeating factor against the entitlement of right to pension. It is a celebrated proposition of law that in such circumstances and in such special factual realistic profile, the expiry of time, specified in the Resolution or delay in submission of the Page 93 of 127 HC-NIC Page 93 of 127 Created On Fri Jun 30 00:13:30 IST 2017 C/SCA/3250/2009 CAV JUDGMENT Option Form, cannot defeat the Liberalised Scheme of Pension?.
18.1. Then the learned Single Judge relied on two decisions of the Apex Court reported in Union of India & Ors. v. D.R.R.Sastri 1997 (1) SCC 514 and after lamenting the bureaucratic approach and dogmatic perception and delaying tactics, all respondents were directed finalization of process of the pension of the petitioner with 9% interest till its actually paid and in another case i.e. Special Civil Application No.12620/2003 dated 17.3.2006, where the Government of Gujarat had challenged the decision of the Gujarat University Services Tribunal rendered on 29.3.2003 in Application No.18/2002 by which benefits of G.R. dated 15.10.1984 was conferred upon the employee on the ground that non-exercising of option by a recruitee after 1.4.1982 was not vital or in any manner defeating the benefits of pensionary benefits came to be confirmed by learned Single Judge after placing reliance on Dr. Nalini V. Dave (supra).
18.2. While confirming the order of the Tribunal in paragraphs 9, 10, 11 and 12 following observations were made.
?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 Page 94 of 127 HC-NIC Page 94 of 127 Created On Fri Jun 30 00:13:30 IST 2017 C/SCA/3250/2009 CAV JUDGMENT respondent no.1.
10.There is however, considerable force in the submissions made by the learned advocate Shri Joshi that under identical situation, Learned 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).
11.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.
12.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 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 Page 95 of 127 HC-NIC Page 95 of 127 Created On Fri Jun 30 00:13:30 IST 2017 C/SCA/3250/2009 CAV JUDGMENT 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, both the above decisions, support the case of the petitioner on hand and in addition to the above, a fortiorari, when the service of the petitioner was considered as pensionable and permitted to retire by respondents No. 1 and 2, I am in total agreement with law laid down by this Court as above, and hold the petitioner entitled to receive retiral dues on the basis of voluntary retirement granted by respondents No.1 and 4 w.e.f. 30.11.2000.
18.3. The reliance placed by learned AGP on the decision of the Apex Court in the case of Visitor, Amu & Ors. vs. K.S.Misra reported in (2007) 8 SCC 593, cannot be made applicable in view of the fact that in the above cases provisions of Statutes 61(6)(iv)(b) and (c) provided mandatory exercise on the part of an employee to give an option and in that view of the case, the Apex Court held that it was obligatory on the part of an employee to exercise an option and facts of the case of the petitioner on hand with regard to clauses 3, 4, 6 and 7 are seen, Government Resolution dated 15.10.1984 as discussed earlier, no such compulsion arise but on the contrary, an employee who is recruited after 1.4.1982 is automatically governed for receiving benefits of pension scheme. 18.4. In view of the two decisions of the learned Single Judge of this Court in Dr.Nalini V. Dave vs. Government of Gujarat & Ors. and State of Gujarat vs. Dr. S.G.Trivedi, I am of the opinion that the case of the petitioner herein is also governed by the similar set of facts and circumstances of the case and denial of pension and other benefits to the petitioner in spite of the fact that qualifying services of 25 years was certified by respondent NO.1 and voluntary retirement came to be granted by respondent No.4 is nothing but unjust, unreasonable, arbitrary and illegal exercise on the part of the respondent Nos. 1 and 4 in violation of Article 14 of Page 96 of 127 HC-NIC Page 96 of 127 Created On Fri Jun 30 00:13:30 IST 2017 C/SCA/3250/2009 CAV JUDGMENT Constitution of India and, therefore, it is a fit case under Article 226 of the Constitution of India to issue suitable direction to the respondents for releasing retiral dues of the petitioner with reasonable rate of interest.
18.5. Thus, cumulative effect of all the above facts, provisions of G.R. dated 15.10.1984 and relevant rules is that the objection raised by respondent Nos. 1 and 4 with regard to entitlement of petitioner to receive retiral dues including pension and gratuity is not justified and based on any rational and valid legal grounds and, being arbitrary and unreasonable, violative of Article 14 of the Constitution of India, therefore, the same is hereby quashed and set aside and declare that the petitioner is entitled to receive the retiral dues on the basis of acceptance of application for voluntary retirement w.e.f. 30.11.2000 with all other consequential benefits as directed hereinafter. Order accordingly.
19. That reliance is placed by Shri Upadhyay on the decisions of the Apex Court with regard to awarding interest on the outstanding retiral dues, reported in AIR 1971 SC 330, AIR 1992 SC 767, 2008 (3) SCC 44 and 2005 (6) SCC 344 and for cost of the litigation and for dis-obedience to the decisions of this Court, viz. Dr. Dr.Nalini V. Dave vs. Government of Gujarat & Ors. and State of Gujarat vs. Dr. S.G.Trivedi (supra), reliance was placed on 1982 Vol.I GLR 61 in case of Muljibhai Ajarambhai Harijan & Anr. v. United India Insurance Col Ltd. & Ors. for contempt committed by the respondents.
20. I am of the opinion that the petitioner herein has persuaded representations relentlessly as supported by respondent No.5-University and even till 2003 as disclosed under Information Act, recommended by respondent No.4 to release pension and other retiral dues, approached this Court after exhausting all remedies and persuasion, filed this petition in the year 2007 cannot be said to be responsible for delay in any manner and, therefore, delay is completely attributable to the respondents No.1 to 4 and they are hereby directed to finalise and fix pension and other retiral dues and release the amount towards retiral dues as payable to the petitioner on the basis of last pay drawn, from the date of acceptance of voluntary retirement till its Page 97 of 127 HC-NIC Page 97 of 127 Created On Fri Jun 30 00:13:30 IST 2017 C/SCA/3250/2009 CAV JUDGMENT realization with 9% interest within six weeks from today.
21. The collective efforts are made by respondents NO.1 and 4 for denying and delaying retiral dues to the petitioner in spite of two decisions of this Court on identical issues and subject matter clearly attract law laid down by this Court in 1982(1) GLR 61 and arguments advance by learned AGP that the case on hand can be distinguished on the ground that in earlier cases applicability of Rule 41(1) (a) of B.C.S.R. was not considered, cannot be a ground as discussed earlier and such exercise of distinguishing facts of this case with earlier cases is nothing but hairsplitting exercise, solely with a view to deprive the petitioner of a claim which was already accepted and recommended by respondent NO.4 uptil 2003 and only when it was realised that denial of benefits may entail interest as well as cost, the stand is taken to justify denial and objection to the claim of pension and retiral dues of the petitioner on flimsy and nebulous grounds.
22. Considering the above aspect, however, I do not think it just and proper to refer this matter to the Bench taking up contempt matters even though conduct of respondents No.1 and 4 deserves condemnation.
23. However, by considering the various decisions including 2005(6) SCC 344 in the case of Salem Advocate Bar Association T.N. vs. Union of India and Section 35 of Code of Civil Procedure, I am of the opinion that the counsel's fees and cost are quantified to Rs. 25,000/- and cost is to be born by respondents No. 1 to 4 accordingly.
24. Rule is made absolute."
23. The aforesaid judgment was challenged by the State by filing the Letters Patent Appeal No.1151 of 2008, which came to be partly allowed by a Division Bench vide order dated 8th September, 2014. The order reads as under;
"1. We have heard Ms. Nisha Thakore, learned AGP appearing for the appellant and Mr. Vaibhav Vyas, Page 98 of 127 HC-NIC Page 98 of 127 Created On Fri Jun 30 00:13:30 IST 2017 C/SCA/3250/2009 CAV JUDGMENT learned advocate appearing for the respondent original petitioner.
2. This intra-court Letters Patent Appeal has been filed challenging the judgement and order dated 16.06.2008 passed by the learned Single Judge in Special Civil Application No. 29641 of 2007 whereby the learned Single Judge allowing the writ petition has directed the appellant to pay the retiral dues on the basis of acceptance of application for voluntary retirement with effect from 30.11.2000 with all the other consequential benefits as directed hereinafter. The learned Single Judge also directed the appellant to pay Rs. 25000/- by way of costs to the original petitioner respondent.
3. The respondent original petitioner had joined the service with the original respondent no. 5 - University as a Reader on 6.10.1988. Prior thereto, the respondent was in the service of the South Gujarat University as a Reader for the period from 31.3.1986 to 5.10.1988 and even before that, the respondent had served as a lecturer at S.V.R.College of Engineering and Technology, Surat from 4.12.1975 to 31.3.1986 and earlier appointment of the respondent was with B.V.M. Engineering College at Vallabh Vidyanagar, on the post of Assistance Lecturer from 22.7.1968 and was their till 3.12.1975. Thus, the respondent has rendered his services in various educational institutions as a teaching staff from 22.7.1968 till permitted to retire voluntarily from the post of Reader on 30.11.2000 with the original respondent no. 5 - University.
3.1 The respondent submitted an application for voluntary retirement and sought permission of the original respondent no. 5 - University on 3.8.2000 on completion of 32 years of total service in various educational institutions. The above application of seeking permission for voluntary retirement w.e.f. 30.11.2000 was forwarded by original respondent NO.5-University to the Commissioner of Higher Education-original respondent NO.4. By a letter dated 8.11.2000, a certificate was issued to the effect that the respondent had completed pensionable qualifying service of more than 25 years and upon the above certificate after careful scrutiny by Commissioner of Higher Education -Page 99 of 127
HC-NIC Page 99 of 127 Created On Fri Jun 30 00:13:30 IST 2017 C/SCA/3250/2009 CAV JUDGMENT original respondent No.4, by order dated 4.12.2000 sanctioned the voluntary retirement of the respondent w.e.f. 30.11.2000 and consequential order came to be passed from original respondent NO.5-University on 2.3.2001.
3.2 Therefore, by the end of the year 2000, after following all relevant procedure as required under Rules, the respondent was permitted to retire voluntarily after considering completion of 25 years of qualifying pensionable service based on verification of service book and other relevant records of the respondent.
4. Ms. Nisha Thakore, learned AGP appearing for the appellant submitted that the learned Single Judge ought to have appreciated that vide Government Resolution dated 15.10.1984, an option was required to be exercised within one year from the date of the said resolution and at the relevant time the respondent was in S.V.R. Engineering College, Surat and had not given any option. She submitted that thereafter he joined South Gujarat University in the year 1986 and while the respondent was in the said service, the Government vide resolution dated 11.10.1988 again called for options. She submitted that the respondent did not give any option for pension scheme and he remained in CPF scheme.
4.1 Ms. Thakore has drawn the attention of this Court to clause 3 of the Government Resolution dated 15.10.1984 which clearly envisages the circumstances of not exercising the option. Clause 3(i) reads as under:
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.
4.2 Ms. Thakore submitted that in this set of circumstances, the learned Single Judge patently erred in not giving the effect of the said resolution and deeming fiction in its correct perspective more particularly when option form was part of the resolution/scheme which is a Page 100 of 127 HC-NIC Page 100 of 127 Created On Fri Jun 30 00:13:30 IST 2017 C/SCA/3250/2009 CAV JUDGMENT policy decision of the Government. Ms. Thakore further submitted that an erroneous certificate granted by an officer contrary to the provision of law would not bind the State Government as the same would be at par with the scheme estopped against the statute. She submitted that the learned Single Judge has imposed cost upon the appellant which may be quashed and set aside.
5. Mr. Vaibhav Vyas, learned advocate appearing for the respondent supported the impugned judgement and order passed by the learned Single Judge and submitted that the same does not call for any interference by this Court.
6. Having heard learned advocates for both the sides and having gone through the records of the case, the facts which emerge from the records are required to be set out. It is borne out that the original petitioner respondent had applied for voluntary retirement on 03.08.2000 and before processing the said request, it appears that the University referred the matter vide letter dated 12.09.2000 to the Commissioner of Higher Education, inter alia making it clear that there was no necessity on the part of the respondent to give option for pension considering his date of joining the University. Thereafter, the appellant issued certificate dated 08.11.2000 inter alia stating that the service record of the respondent original petitioner and its connected papers are taken into consideration and it was certified by the appellant that the respondent original petitioner qualified for voluntary retirement and has put in more than 25 years of qualifying service. The Commissioner of Higher Education issued an office order on 04.12.2000 to the effect that request of the respondent original petitioner to opt for voluntary retirement with effect from 30.11.2000 is accepted. Therefore, on the basis of this office order, the respondent original petitioner stood retired with effect from 30.11.2000.
6.1 It may be noted that had the office order dated 04.12.2000 not been accepted and had the option of the respondent original petitioner not been accepted, he would have retired on attaining the age of superannuation with effect from 31.03.2006 as the date of birth of the respondent original petitioner is 01.03.1944 in view of the fact that the superannuation Page 101 of 127 HC-NIC Page 101 of 127 Created On Fri Jun 30 00:13:30 IST 2017 C/SCA/3250/2009 CAV JUDGMENT age for teachers is 62 years. Therefore, there is no dispute on the point that had the respondent not applied for voluntary retirement, he would have received pension on superannuation because at that time the respondent would have put in more than 20 years of pensionable service. Had the appellant department not accepted the request of the respondent and had the appellant department verified the same at the relevant time, the respondent would have continued in service and would have retired at the age of superannuation. Once the appellant department accepted the request of the respondent, now it cannot turn a blind eye towards the case of the respondent and deprive him of his legitimate right.
6.2 The learned Single Judge vide the impugned judgment and order dated 16.06.2008 observed as under:
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 recruited on or after 1st 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 or after 1st April, 1982 was not supposed to exercise Page 102 of 127 HC-NIC Page 102 of 127 Created On Fri Jun 30 00:13:30 IST 2017 C/SCA/3250/2009 CAV JUDGMENT 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.
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 Page 103 of 127 HC-NIC Page 103 of 127 Created On Fri Jun 30 00:13:30 IST 2017 C/SCA/3250/2009 CAV JUDGMENT 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, 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 Page 104 of 127 HC-NIC Page 104 of 127 Created On Fri Jun 30 00:13:30 IST 2017 C/SCA/3250/2009 CAV JUDGMENT 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 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.
7. The affidavit filed at the appellate stage by the appellant were not considered by this Court as the same was not filed before the learned Single Judge and therefore we cannot accept the averments made therein.
Page 105 of 127HC-NIC Page 105 of 127 Created On Fri Jun 30 00:13:30 IST 2017 C/SCA/3250/2009 CAV JUDGMENT In our view the existence of office order dated 04.12.2000 itself covers the issue on the principle of estoppel as if the said order would not have been passed, the respondent would have continued in service and would have duly retired on attaining the age of superannuation. We are in complete agreement with the reasonings adopted by the learned Single Judge and we agree with the findings arrived at vide the impugned judgment and order to the extent the learned Single Judge granted the benefits to the respondent. However, we think it fit to quash and set aside the order to the extent it imposes costs upon the appellant. The respondent is entitled to receive the amount of pension with interest from the year 2000.
8. For the foregoing reasons, appeal is partly allowed. The pension on the basis of a rough calculation of the last drawn salary from 2000 shall be paid to the respondent within a period of four weeks from today. The balance amount shall be paid within a period of three months thereafter. Cost of Rs. 25000/- imposed upon the appellants is hereby quashed and set aside. It is clarified that if the appellant department does not adhere to the aforesaid order and if the amount is not paid to the respondent in time, it shall be open to the respondent to file appropriate application before this Court. No costs."
24. The State challenged the same before the Supreme Court by filing the Special Leave to Appeal No.5587 of 2015, which came to be dismissed by an order dated 1st April, 2015. The order reads as under;
"Delay condoned.
We are not inclined to entertain this special leave petition, which is dismissed."
25. It also appears that the judgment and order passed by the Division Bench in the Letters Patent Appeal No.1019 of 2015 was taken in review at the instance of the State in the Misc. Civil Application No.2513 of 2015. The said application Page 106 of 127 HC-NIC Page 106 of 127 Created On Fri Jun 30 00:13:30 IST 2017 C/SCA/3250/2009 CAV JUDGMENT came to be rejected by an order dated 15th October, 2015. The order reads as under;
"1.00. Present application has been preferred by the applicants - State of Gujarat to recall and review order passed by this Court in Letters Patent Appeal No. 1019 of 2015 in Special Civil Application No. 11473 of 2013 dated 27/7/2015.
2.00. Heard Mr.P.K. Jani, learned Additional Advocate General has appeared on behalf of the applicants.
3.00. At the outset, it is required to be noted that this Court disposed of the Letters Patent Appeal No. 1019 of 2015 considering another decision of the Division Bench of this Court in Letters Patent Appeal No. 981 of 2015, in which identical question which was raised in the Letters Patent Appeal No. 1019 of 2015 was considered.
3.01. It is not in dispute that the decision of this Court in Letters Patent Appeal No. 981 of 2015 has been accepted by the State and the same is not challenged further.
3.02. In the present application it is averred that the facts in Letters Patent Appeal No. 981 of 2015 and facts in the present case are different. However, in fact, the question of law decided in the Letters Patent Appeal No. 981 of 2015 and in the main Letters Patent Appeal No. 1019 of 2015, is identical. In both the Letters Patent Appeals, issue was with respect to interpretation of Government Resolution dated 15/10/1984. In the order under review passed by this Court in the Letters Patent Appeal No. 1019 of 2015, relying upon para 7 of the decision in Letters Patent Appeal No. 981 of 2015, this Court held that the respondent herein original petitioner shall be entitled to benefits of GPF Scheme as per Government Resolution dated 15/10/1984, and her services prior to 1/4/1982, if any, shall be counted for the purpose of pensionable service only and not for any other purpose. Under the circumstances, as such, no error has been committed by this Court in allowing the Letters Patent Appeal No. 1019 of 2015 relying on the decision of the Division Bench of this Court in Letters Patent Appeal No. 981 of 2015. Under the circumstances, the Page 107 of 127 HC-NIC Page 107 of 127 Created On Fri Jun 30 00:13:30 IST 2017 C/SCA/3250/2009 CAV JUDGMENT judgement and order under review passed by this Court in Letters Patent Appeal No. 1019 of 2015 need not require to be recalled and reviewed, as prayed for in the present application.
3.03. Even oral submissions made by Mr.P.K. Jani, learned Additional Advocate General that there shall be financial burden upon the State, if the judgement and order passed by this Court in Letters Patent Appeal No. 1019 of 2015 is not recalled and reviewed, is concerned, on the aforesaid ground, the order under review passed by this Court is not required to be recalled and reviewed. This Court has passed the judgement and order under review in Letters Patent Appeal No. 1019 of 2015, relying upon decision of the Division Bench in Letters Patent Appeal No.981 of 2015, in which identical question came to be considered by the Division Bench and as observed hereinabove, the said decision in Letters Patent Appeal No. 981 of 2015, relying on which this Court has passed the judgement and order under review, has been accepted by the applicants.
4.0. In view of the above, as such, there is no substance in the present application and the same deserves to be dismissed and is accordingly dismissed. In the facts and circumstances of the case, there shall be no order as to costs. "
26. The aforesaid order was carried by the State in Appeal before the Supreme Court. The S.L.P was dismissed by an order dated 9th March, 2016. However, the question of law was kept open.
27. All the judgments relied upon by the Government Pleader, referred to above, have been discussed in the different orders passed by this Court at length.
28. Let me also distinguish the facts so far as the Special Civil Application No.3250 of 2009 and allied matters are concerned with the facts of the Special Civil Application Page 108 of 127 HC-NIC Page 108 of 127 Created On Fri Jun 30 00:13:30 IST 2017 C/SCA/3250/2009 CAV JUDGMENT No.14953 of 2015 and allied matters, decided on 3rd February, 2016.
Sr. No. SCA No.3250 of 2009 SCA No.14953 of 2015 and allied matters.
1 The service record or Advertisement as well as the appointment orders of appointment order of the the petitioners are not employee were on record to on record so as to show that their appointments ascertain their date of were made after 1.4.1982 i.e. recruitment made after following the denovo after 1.4.1982. recruitment process. 2 Most of the teaching All the employees who were employees were recruited before 1.4.1982 recruited before have been appointed on 1.4.1982. They higher post like reader, remained on the same professor or principal after post (lecturer) from 1.4.1984 by under going the date of initi8al denovo recruitment process appointment till their like public advertisement, date of retirement selection committee and therefore they are issuance of fresh appointment duty bound to order as well as Probation, exercise option therefore they are automatically covered in the pension scheme as per clause 4 of GR dated 15.10.1984.
3 Non teaching staff has Non teaching staff was not been promoted on the before the court.
higher post but details
like formation of
departmental
promotion committee
is not available.
4 Shri Mavani Not applicable in the present
committee report is case.
not accepted by the
government
5 No judicial precedents Since the year 2009, 3
rendered by this Court decisions have been
on the subject. confirmed by the apex court
decision reported in
Page 109 of 127
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C/SCA/3250/2009 CAV JUDGMENT
2009 vol 4 GLR 2983 Hon'ble
Mr. Justice Anant Dave is
confirmed by the apex court
by rejecting the SLP of the
state government similarly 2
other decisions of Hon'ble Mr.
Justice C.L. Soni are
confirmed by the apex court.
Relying upon the above
referred decision Hon'ble Mr.
Justice N.V. Anjarria and
Hon'ble Mr. Justice V.M.
Pancholi have allowed the
petitions of the teaching
employee on account of the
condition of applicability of
the pension scheme
mentioned in the
appointment order.
6 Petitioners are Petitioners are already in the
seeking additional pension scheme as per the
option to switch over conditions of their
to the pension scheme appointment however they
sought direction to release
the pension and pensionary
benefits.
7 CPF amount is Sardar Patel University has
withdrawn which has re-deposited the amount of
not been refunded the CPF amount which the
with interest by the state government for MS Univ
employees and Guj Univ. state govt has
adjusted the amount of CPF
with GPF disbursement and
govt have bargained to save
the payment of amount of
interest on delayed payment
of pension and pensionary
benefits to the employer.
8 Teaching employee University rules are applicable
remained on same to the employee, therefore as
post. per the clause no.4 & 6 of GR
dated 15.10.1984 read with
provision of S51, 53A and 54
statutes and ordinances
Page 110 of 127
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C/SCA/3250/2009 CAV JUDGMENT
no.69 and 69A of South
Gujarat University act, section
57, 198, 201 and 204 of
Sardar Patel University act
and section 54 of M.S.
University act read with
condition of advertisement
wherein it is mentioned that
pension scheme is applicable
to the employee.
Teaching and non Ordinance no.69 and 69A of
teaching staff of South South Gujarat University act,
Gujarat University covers the case of teaching
Surat will be covered staff under pension scheme.
by the pension
scheme because
Ordinance 69 of the
SGU has been
retrospectively
amended extending
the benefits of
pension to the
employees recruited
after 1973.
29. So far as the two matters of Mr. Mitul Shelat, the learned counsel, is concerned, his clients were recruited/promoted after 01.04.1982. However, in this regard, there is no cogent materials on record. As against this, none of the employees of the Special Civil Application No.3250 of 2009 and allied matters have claimed that they were recruited after 01.04.1982.
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 Page 111 of 127 HC-NIC Page 111 of 127 Created On Fri Jun 30 00:13:30 IST 2017 C/SCA/3250/2009 CAV JUDGMENT 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 circumstances and special facts, the exercise of option to switch over to the pension scheme, in my opinion, should not be thwarted.
31. At this let me look into the report of the committee constituted by the State Government to look into the issues of the professors of the affiliated colleges and universities. The free English translation reads as under;
"Under Resolution of Governmentof Guajrat, Education Department bearing No. N.G.C. - 1101 - 5405-13-Kh. Dated 16/08/2002, a Committee has been constituted regarding the issues of the Government of Gujarat Affiliated Colleges / Universities. In this Committee following members have been included.
1. Dr.K.G. Mavani, Chancellor, Saurashtra University - Chairman.
2. Dr.B.S. Jani, Chancellor, North Gujarat University - Member.
3. Pro. K.S. Shastri, President, Professors' Association, Gujarat University Area - Member.
4. Pro. Indravijaysinh Gohil, President, P.G. Teachers' Association, Bhavnagar - Member
5. Pro. D.m. Patel, Representative, Gujarat State Professors' Association - Member.
6. Secretary, Higher & Technical Education - Member.
7. Secretary (Expense), Finance Department - Member.
8. Commissioner, Higher Education - Member Secretary.
9. Prof. J.J. Bhatt, Prof. Vice-Chancellor, South Gujarat University - Convener.
Recommendations made the aforesaid Committee Page 112 of 127 HC-NIC Page 112 of 127 Created On Fri Jun 30 00:13:30 IST 2017 C/SCA/3250/2009 CAV JUDGMENT after due consideration of all aspects regarding issues of the Professors of Affiliated Colleges - Universities are as under.
1. Clarification regarding work load of the professors and its effect and interpretation under the Circular dated 06/06/2002 Regarding work load of the profession, opinion of all the members of the Committee is that, as per the guideline of U.G.C. professors have to perform education work for 40 hours per week and actual 180 days. Considering the distribution of work load and other educational matters of the Lecturers for division of 16 hours direct teaching and for preparation of broad frame line, after due discussion, all the members of the Committee have suggested following option. It is decided that how to divide 24 hours work apart from 16 hours is left open to the concerned University.
• As per the recommendations of Chairman Shri Dr. K.G.Mavani, Dr. Balwantbhai Jani and Dr. J.J. Bhatt, education work of 16 hours should be divided into 18 periods of 55 minutes and 3 periods per paper. While performing above calculation, if any Professor takes one period in P.G. then to count one period at the level of degree and calculating the work load of division, Professor should be continued in the same college until last 12 periods remains. • It is recommended by Pro. K.S. Shastri that as per guidelines of U.G.C. work load of professors, work load of institute and practical work etc. includes many matters like fixed number of students, hours of professors stay in institute along with providing physical facilities etc. And U.G.C. mentioned that purpose of all this is to maintain standard of education. It is also the guideline of the U.G.C. that no Professor should be discharged. As matters of work load and number of classes ' falls within the jurisdiction of University, Universities should take decision in this regard. However, it is mainly desirable to bring uniformity in administrative Page 113 of 127 HC-NIC Page 113 of 127 Created On Fri Jun 30 00:13:30 IST 2017 C/SCA/3250/2009 CAV JUDGMENT matters. University should take decision in consonance with the structure of U.G.C. within prescribed time and to inform it.
• Recommendations of Pro. Indravijaysinh Gohil is as under.
1. 18 periods of 55 minutes and 4 periods per paper
2. 16 periods of 60 minutes and 3 periods per paper.
3. 18 periods of 55 minutes and 3 periods per paper, however, for grant, 80 students per class should be taken into consideration. While making calculation as above, if any Professor takes one period in P.G. then to count two period at the level of degree, at the college level Head of the Department should give proportionate benefit and calculating the work load of division, Professor should be continued in the same college until last 10 periods remains • Recommendation of Pro. D.M. Patel is that while calculating the work load simultaneously not discharging any Professor from service also to give protection of nature of service and place. 16 hours work should be performed in accordance with regulations of the U.G.C. Number of batches in Science Education Branch should be in accordance with recommendation of U.G.C. • Opinion of Secretary, Higher & Technical Education, Commissioner, Higher Education and Finance Advisor (Education), Secretary, Expense (as representative of Finance Department) division of work load of 16 hours should be 18 periods of 55 minutes and 3 periods per paper.
2. Regarding salary of Part-time Professors - It is recommended to give proportionate salary, increment and other benefits as per recommendations of U.G.C. to Part-time Professors. Statement of proportionate pay-scale is enclosed herewith. Opinion of Secretary, Higher & Technical Education, Commissioner, Higher Education and Page 114 of 127 HC-NIC Page 114 of 127 Created On Fri Jun 30 00:13:30 IST 2017 C/SCA/3250/2009 CAV JUDGMENT Finance Advisor (Education), Secretary, Expense (as representative of Finance Department) is that proportionate salary should be made considering the education work of 40 hours and as per recommendations of UGC, this recommendation is made for the Professors holding NET or SLAT or Ph.D. Degree.
3. Equality of matter of Senior Scale - Selection Grade for the Professors of Physical Education and Librarian -
It is decided for the above matter to obtain guidance by sending fresh proposal to UGC at the Secretary level.
4. Increments admissible to Professors holding Ph.D.
-
The Committee recommends to implement the letter of UGC in respect of granting additional increment to the Professors holding Ph.D. Degree and to grant the same however, it is the opinion of the Secretary, Higher & Technical Education, Commissioner, Higher Education and Finance Advisor (Education), Secretary, Expense (as representative of Finance Department) that if other departments of the Government of Gujarat accepts this matter then recommended to accept the same.
5. Regarding leave as per recommendations of UGC -
Members have decided to recommend to take into consideration the provisions of encashment of earned leave, half-pay leave within the limits of 300 leaves on the occasion of retirement, resignation or death. At present there is a provision of leave encashment of maximum 300 days leave at the time of retirement of Government employee. It is further resolved that taking into consideration the recommendations of UGC, this Committee hereby suggested to accept the recommendations of UGC in respect of leave rules.Page 115 of 127
HC-NIC Page 115 of 127 Created On Fri Jun 30 00:13:30 IST 2017 C/SCA/3250/2009 CAV JUDGMENT However, Secretary, Higher & Technical Education, Commissioner, Higher Education and Finance Advisor (Education), Secretary, Expense (as representative of Finance Department) opines that if recommendations of UGC is to be accepted then other provisions regarding leave should not be taken into consideration. They recommended to accept the leave rules as per recommendations of UGC.
6. Regarding granting one more option for pension -
With regard to grant pension option, it is hereby resolved that as principally agreed in the meeting of the leaders of Professors with the then Hon'ble Education Minister held in November, 2001, this Committee recommends that Professors who left out may be given an opportunity. Further, Professors who have already filled-up option and already deposited C.P.F. contribution with the Government and for the administrative reasons options were not forwarded to the Government by Colleges or Universities then it is resolved to accept such cases immediately.
1. 6.
2. 7.
3. 8.
4. 9.
5. SCHEDULE - 1 Minutes of the Meeting of the representatives of the Federation of Professors of Government affiliated Colleges and Universities with the Hon'ble State Minister of Education, Higher & Technical Education :-
A Meeting of the representatives of the Federation of Professors of Government affiliated Colleges and Universities with the Hon'ble State Minister of Education, Higher & Technical Education was convened on dated 02/11/2001 at 10--Hours, Page 116 of 127 HC-NIC Page 116 of 127 Created On Fri Jun 30 00:13:30 IST 2017 C/SCA/3250/2009 CAV JUDGMENT wherein following Officials/Officers remained present :-
(1) Hon'ble State Minister for Education - Higher & Technical Education.
(2) Secretary, Higher & Technical Education. (3) Shri hanshyambhai Pate;, President, Bhavnagar Professor Family.
(4) Shri Ashish Shukal, Secretary, Bhavnagar Professor Family.
(5) Shri Uthal S. Dave, Vice President, Bhavnagar Professor Family.
(6) Shri Dahyabhai A. Patel, Joint Secretary, Gujarati University Area Professors Association (7) Dr. R.C. Patel, General Secretary, BUTTA, Vadodara (8) Shri Girish Bhavsar, Secretary, s.P. University, Vallabh Vidhyanagar. (9) Shri Chandubhai K. Thakker (10) Dr.B.R. Patel Gujarat State Professors Association (11) A. Peppalla, BUTTA (12) Prof. K.G. Mehta, GUTTA (13) Pro. R.P. Jani (14) Shri Bharat Dave (15) Shri N.K. Patel, S.P. University (16) Pro. N.K. Pathak, Secretary, GUTTA (17) Pro. K.S. Shastri, Chairman, Co-ordination Committee, Gujarat University (18) Shri dilubha k. Vaghela, North Gujarat University (19) Shri J.G. Vohra, Deputy Secretary, Higher Education (20) Shri Pradip Parekh, Under Secretary, Higher Education (21) Shri P.H. Brahmbhatt, Joint Education Director (Co. Sha) (22) Shri Sabuwala, Accounts Officer (Office of the Commissioner, Higher Education) (23) Shri Kharadi Shreyan, Superintendant, Office of the Commissioner, Higher Education On commencing the proceedings of discussion, President of the Federation has welcoming the Page 117 of 127 HC-NIC Page 117 of 127 Created On Fri Jun 30 00:13:30 IST 2017 C/SCA/3250/2009 CAV JUDGMENT Hon'ble State Minister states that representatives of Colleges and Universities co-operate with the work of the education department, however, as some issues are required to be discussed immediately, this meeting is convened.
(2) At the end of detailed discussion it is decided that State Government has under the provisions/conditions of the Government of India, as a complete package scheme accepted the Recommendations of U.G.C. of 1998. Therefore, for implementing the recommendations of U.G.C. proceedings are required to be initiated by all and all have agreed to proceed as per the recommendations of U.G.C. Recommendations of U.G.S. includes revision of pay scales, determine recruitment process and qualifications for appointment, to grant 4/2 advance increment respectively as incentive to the professors holding Ph.D./M.Phil. degree, benefits of career advancement, consider past services without break for sanction of senior scale/selection grade, rewarding the merit, to grant proportionate pay scale to the Part-time Lecturers, matters of calculation of educational days, to determine work load of teachers, to extend the superannuation retirement age limit, matters of implementation leave rules, service agreement, Code of Professional Ethics, accountability, orientation/refresh course etc. As part of recommendations of U.G.C., Education Department has issued various Resolutions dated 7/9/98, 29/4/99, 18/11/2000, 21/07/2001 for giving benefits of revision of pay, grant of 4/2 advance increment to the professors holding Ph.D./ M.Phil.
Degree, benefit of career advancement, rewarding the merit, grant various allowances, extending age limit of retirement, to determine work load of teachers, fix educational days, orientation/refresh course etc. Thus, Government of Gujarat has accepted most of recommendations.
Page 118 of 127HC-NIC Page 118 of 127 Created On Fri Jun 30 00:13:30 IST 2017 C/SCA/3250/2009 CAV JUDGMENT However, some of orders have yet not implemented completely. The said matters have been taken into note and all parties have retrieve to initiate proceedings for implementing recommendations of U.G.C.
3. Other than U.G.C. package, representatives of the associations has raised some points that -
(a) At present Government is considering Grant Policy then it is desirable to obtain opinion of Teachers Association for reviewing Grant Policy. Finance Department has issued orders for constitution of Committee for reviewing Grant Policy. Therefore, if association gives written representation then the same will be forwarded to the Finance Department for its consideration.
(b) Common Act:
About the matter of present proceedings for Common University Act, association has submitted that opinion may be obtained by publication at public place and public discussion. In this respect, Association has been informed that representations of the association will be verified and notice of the committee constituted in this respect would be drawn to do the needful.
(c) Pension Option:
For giving pension option, Association has submitted that earlier in 1984 Government has issued orders for giving benefit and issued orders to accept option in this respect and thereafter twice orders have been issued for accepting option. Department has made proposal to the Finance Department for giving one more option. In fact such option should be provided at every pay revision. In this respect, it is decided to forward proposal to Finance Department once again.
Lastly, Hon'ble State Minister for Higher Education concluded the meeting by emphasis to give priority to interest of students and to redress the issues by discussion instead of conflict.Page 119 of 127
HC-NIC Page 119 of 127 Created On Fri Jun 30 00:13:30 IST 2017 C/SCA/3250/2009 CAV JUDGMENT No. NGC-1101-13-Kh.
To The Personal Secretary, Hon'ble State Minister - Higher Education.
The Personal Secretary to the Secretary, Higher & Technical Education Deputy Secretary, Higher Education (S.V.) Commissioner, Higher Education, Government of Gujarat, Gandhinagar.
Shri K.S. Shastri, President, Co-ordination Committee, Gujarat University, Ahmedabad.
(Pradip Parekh) Under Secretary, Education Department SCHEDULE -3 REPORT OF THE COMMITTEE CONSTITUTED BY THE GOVERNMENT OF GUJARAT REGARDING ISSUES OF THE PROFESSORS OF THE AFFILIATED COLLEGES -UNIVERSITIES.
Under Resolution of Governmentof Guajrat, Education Department bearing No. N.G.C. - 1101 - 5405-13-Kh. Dated 16/08/2002, a Committee has been constituted regarding the issues of the Government of Gujarat Affiliated Colleges / Universities. In this Committee following members have been included.
1. Dr.K.G. Mavani, Chancellor, Saurashtra University - Chairman.
2. Dr.B.S. Jani, Chancellor, North Gujarat University - Member.
3. Pro. K.S. Shastri, President, Professors' Association, Gujarat University Area - Member.
4. Pro. Indravijaysinh Gohil, President, P.G. Teachers' Association, Bhavnagar - Member
5. Pro. D.m. Patel, Representative, Gujarat State Professors' Association - Member.
6. Secretary, Higher & Technical Education - Member.
7. Secretary (Expense), Finance Department - Member.
8. Commissioner, Higher Education - Member Page 120 of 127 HC-NIC Page 120 of 127 Created On Fri Jun 30 00:13:30 IST 2017 C/SCA/3250/2009 CAV JUDGMENT Secretary.
9. Prof. J.J. Bhatt, Prof. Vice-Chancellor, South Gujarat University - Convener.
Recommendations made the aforesaid Committee after due consideration of all aspects regarding issues of the Professors of Affiliated Colleges - Universities are as under.
1. Clarification regarding work load of the professors and its effect and interpretation under the Circular dated 06/06/2002 Regarding work load of the profession, opinion of all the members of the Committee is that, as per the guideline of U.G.C. professors have to perform education work for 40 hours per week and actual 180 days. Considering the distribution of work load and other educational matters of the Lecturers for division of 16 hours direct teaching and for preparation of broad frame line, after due discussion, all the members of the Committee have suggested following option. It is decided that how to divide 24 hours work apart from 16 hours is left open to the concerned University.
• As per the recommendations of Chairman Shri Dr. K.G.Mavani, Dr. Balwantbhai Jani and Dr. J.J. Bhatt, education work of 16 hours should be divided into 18 periods of 55 minutes and 3 periods per paper. While performing above calculation, if any Professor takes one period in P.G. then to count one period at the level of degree and calculating the work load of division, Professor should be continued in the same college until last 12 periods remains. • It is recommended by Pro. K.S. Shastri that as per guidelines of U.G.C. work load of professors, work load of institute and practical work etc. includes many matters like fixed number of students, hours of professors stay in institute along with providing physical facilities etc. And U.G.C. mentioned that purpose of all this is to maintain standard of education. It is also the guideline of the U.G.C. that Page 121 of 127 HC-NIC Page 121 of 127 Created On Fri Jun 30 00:13:30 IST 2017 C/SCA/3250/2009 CAV JUDGMENT no Professor should be discharged. As matters of work load and number of classes ' falls within the jurisdiction of University, Universities should take decision in this regard. However, it is mainly desirable to bring uniformity in administrative matters. University should take decision in consonance with the structure of U.G.C. within prescribed time and to inform it.
• Recommendations of Pro. Indravijaysinh Gohil is as under.
4. 18 periods of 55 minutes and 4 periods per paper
5. 16 periods of 60 minutes and 3 periods per paper.
6. 18 periods of 55 minutes and 3 periods per paper, however, for grant, 80 students per class should be taken into consideration. While making calculation as above, if any Professor takes one period in P.G. then to count two period at the level of degree, at the college level Head of the Department should give proportionate benefit and calculating the work load of division, Professor should be continued in the same college until last 10 periods remains • Recommendation of Pro. D.M. Patel is that while calculating the work load simultaneously not discharging any Professor from service also to give protection of nature of service and place. 16 hours work should be performed in accordance with regulations of the U.G.C. Number of batches in Science Education Branch should be in accordance with recommendation of U.G.C. • Opinion of Secretary, Higher & Technical Education, Commissioner, Higher Education and Finance Advisor (Education), Secretary, Expense (as representative of Finance Department) division of work load of 16 hours should be 18 periods of 55 minutes and 3 periods per paper.
2. Regarding salary of Part-time Professors - It is recommended to give proportionate salary, Page 122 of 127 HC-NIC Page 122 of 127 Created On Fri Jun 30 00:13:30 IST 2017 C/SCA/3250/2009 CAV JUDGMENT increment and other benefits as per recommendations of U.G.C. to Part-time Professors. Statement of proportionate pay-scale is enclosed herewith. Opinion of Secretary, Higher & Technical Education, Commissioner, Higher Education and Finance Advisor (Education), Secretary, Expense (as representative of Finance Department) is that proportionate salary should be made considering the education work of 40 hours and as per recommendations of UGC, this recommendation is made for the Professors holding NET or SLAT or Ph.D. Degree.
3. Equality of matter of Senior Scale - Selection Grade for the Professors of Physical Education and Librarian -
It is decided for the above matter to obtain guidance by sending fresh proposal to UGC at the Secretary level.
4. Increments admissible to Professors holding Ph.D.
-
The Committee recommends to implement the letter of UGC in respect of granting additional increment to the Professors holding Ph.D. Degree and to grant the same however, it is the opinion of the Secretary, Higher & Technical Education, Commissioner, Higher Education and Finance Advisor (Education), Secretary, Expense (as representative of Finance Department) that if other departments of the Government of Gujarat accepts this matter then recommended to accept the same.
5. Regarding leave as per recommendations of UGC -
Members have decided to recommend to take into consideration the provisions of encashment of earned leave, half-pay leave within the limits of 300 leaves on the occasion of retirement, resignation or death. At present there is a provision of leave encashment Page 123 of 127 HC-NIC Page 123 of 127 Created On Fri Jun 30 00:13:30 IST 2017 C/SCA/3250/2009 CAV JUDGMENT of maximum 300 days leave at the time of retirement of Government employee. It is further resolved that taking into consideration the recommendations of UGC, this Committee hereby suggested to accept the recommendations of UGC in respect of leave rules. However, Secretary, Higher & Technical Education, Commissioner, Higher Education and Finance Advisor (Education), Secretary, Expense (as representative of Finance Department) opines that if recommendations of UGC is to be accepted then other provisions regarding leave should not be taken into consideration. They recommended to accept the leave rules as per recommendations of UGC.
6. Regarding granting one more option for pension -
With regard to grant pension option, it is hereby resolved that as principally agreed in the meeting of the leaders of Professors with the then Hon'ble Education Minister held in November, 2001, this Committee recommends that Professors who left out may be given an opportunity. Further, Professors who have already filled-up option and already deposited C.P.F. contribution with the Government and for the administrative reasons options were not forwarded to the Government by Colleges or Universities then it is resolved to accept such cases immediately.
1. 6.
2. 7.
3. 8.
4. 9.
5. SCHEDULE - 4 Regarding fixing workload of teacher of Non- Government Arts, Commerce, Science, Education and Law Colleges affiliated to University and to grant permission for filling up vacant post..
Government of Gujarat, Education Department, Resolution No. NGC-1103-631-Kh Page 124 of 127 HC-NIC Page 124 of 127 Created On Fri Jun 30 00:13:30 IST 2017 C/SCA/3250/2009 CAV JUDGMENT Sachivalya, Gandhinagar Dated : 8/4/2003 Read:
(1) U.G.C. Notification No. F-1-28-84 (CPP)-Volu dated 5/7-12-88 (2) Government Resolution Education Department bearing No. MES-1197-2283-(9-98)Kh dated 7/9/88 (3) U.G.C. Notification No. F-1-117-83(CP)-C dated 24/12/98"
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 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 Page 125 of 127 HC-NIC Page 125 of 127 Created On Fri Jun 30 00:13:30 IST 2017 C/SCA/3250/2009 CAV JUDGMENT 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 the Government Resolution dated 15th 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 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.
Direct service is permitted.
(J.B.PARDIWALA, J.) In view of the judgment passed today in the main matters, all the connected civil applications are also disposed of.Page 126 of 127
HC-NIC Page 126 of 127 Created On Fri Jun 30 00:13:30 IST 2017 C/SCA/3250/2009 CAV JUDGMENT (J.B.PARDIWALA, J.) Vahid Page 127 of 127 HC-NIC Page 127 of 127 Created On Fri Jun 30 00:13:30 IST 2017