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2004 DIGILAW 47 (GUJ)

M. B. PHANSE v. STATE OF GUJARAT

2004-02-03

RAVI R.TRIPATHI

body2004
RAVI R. TRIPATHI, J. ( 1 ) THE present petition is filed by the petitioner, who retired as Additional Principal Judge of the City Civil Court-Ahmedabad, seeking the relief by way of directions to the respondents, to add the period of service rendered by the petitioner as a Member of the Gujarat Civil Services Tribunal, to the pensionable service rendered by him prior to his reemployment and also, to award all consequential benefits, inclusive of arrears of pension and interest on refixation of the pension payable to the petitioner by taking into consideration the period of service rendered by the petitioner as a Member of the Gujarat Civil Services Tribunal. ( 2 ) THE short facts of the petition are as under: the petitioner started his career as a District Judge on 3rd September, 1973. While he was holding the post of Additional Principal Judge of the Ahmedabad City Civil Court, he retired on 31st October, 1983; he was then appointed as a member of the Gujarat Civil Services Tribunal ("the Tribunal" for short) with effect from 24th June, 1985 as his experience in the judiciary rendered him eligible for such appointment. He continued as a Member of the Tribunal till 13th October, 1990. On 26th June, 1991, the petitioner made a representation to the Government to consider his case for payment of pensionary benefits on the basis of more than 25 years service. The petitioner did not get any reply to his representation from the Government, though the case of the Government is that a decision was taken on the said representation on the file. The petitioner made a second representation dated 12th December, 1998 and as he did not get any reply to the second representation also, he is constrained to file the present petition. ( 3 ) THE Government works through bureaucrats and, therefore, every matter gets a touch of bureaucratic approach. The present case is yet another example of the same. Rule-327 of the Bombay Civil Services Rules ("bcsrs" for short) is very clear, which has a direct bearing on the issue involved in the present petition. For ready reference, rule-327 reads as under:"327. UNLESS in any case it be otherwise distinctly provided in this Section a Government servant who has received a pension on retirement shall not, if re-employed in Government service, be permitted to count his new service as qualifying for a second pension. For ready reference, rule-327 reads as under:"327. UNLESS in any case it be otherwise distinctly provided in this Section a Government servant who has received a pension on retirement shall not, if re-employed in Government service, be permitted to count his new service as qualifying for a second pension. If the new service is pensionable, it must be combined for the purpose of calculating pension with the service previously rendered and the whole treated as one service. "from the plain reading of rule-327, it is clear that in cases where a Government Servant gets an occasion to render any Government Service, after his retirement, he is not permitted to count his new service as qualifying service for `second pension. But then, it is specifically provided that if the new service is pensionable, IT MUST BE COMBINED for the purpose of calculating pension of the service previously rendered and the whole be treated as one service. In light of this clear position, the case of the petitioner ought not to have been delayed, for the purpose of calculating his pension on the basis of the length of service, being 25 years, and more. For any reason, if that was not done, the same should have been done, the moment the petitioner made the first representation dated 26th June, 1991. But then, only due to bureaucratic approach on the part of concerned Officers, the petitioner - senior citizen, at his advanced age, is deprived of his legitimate dues. ( 4 ) AT this stage, the provisions of sub-rule (5) of rule-4 of the Gujarat Civil Services Tribunal (Conditions of Service of President and Members) Rules, 1973 ["the Rules" for short), have to be taken note of. The same reads as under:" (5) The service rendered by the President or a member shall count as Government service for the purpose of pay, pension, leave and such other purposes. The same reads as under:" (5) The service rendered by the President or a member shall count as Government service for the purpose of pay, pension, leave and such other purposes. "the provision of the rule is very clear, there is no ambiguity of any nature inasmuch as it is categorically provided that the service rendered by the President or a member shall be counted as Government Service, that to, for the purpose of pay, pension, leave and such other purposes, there was nothing which should have delayed the case of the petitioner from being considered and granted, allowing him the pension on the basis of the length of the service taking to be more than 25 years. ( 5 ) MAY be, after having realised the consequences of this rule, the aforesaid Rules are amended in the year 1998 by the Gujarat Civil Services Tribunal (Conditions of Service of President and Members) (Amendment) Rules, 1998 ["the Amended Rules" for short]. Sub-rule (5) of the Amended Rules is as under:"when an officer who is in active Government service is appointed as President or Member, the services rendered by him as President or Member shall be counted as Government service for the purpose of pay, pension, leave and such other purposes. "a plain reading of sub-rule (5) of rule-4 makes it clear that it is rewritten and the purpose of rewriting of this sub-rule is elaborated in the impugned order wherein in sub. paragraph- (viii) of paragraph-5, it is stated as under:"the amendment dated 23. 6. 1998 has not been carried out with a view to depriving the Petitioner of any benefit and it has nowhere been quoted as ground or reason for rejection of the Petitioners plea/representations. As mentioned above, the said Amendment was carried out with a view to making the relevant provision unambiguous and unequivocal so that the cases such as that of the Petitioner do not arise in future". ( 6 ) MR. J. T. TRIVEDI, learned Advocate appearing for the petitioner, submitted that the matter was remitted to the Government by this Court (Coram:h. K. Rathod, J.), reposing confidence, with high hopes, that the matter will be looked into objectively, by an order dated 26th August, 2003. ( 6 ) MR. J. T. TRIVEDI, learned Advocate appearing for the petitioner, submitted that the matter was remitted to the Government by this Court (Coram:h. K. Rathod, J.), reposing confidence, with high hopes, that the matter will be looked into objectively, by an order dated 26th August, 2003. The Court, after recording the gist of the contentions/submissions of the learned Advocates, directed as under:"in view of the submissions made by the learned advocates for the parties and also in view of the facts and circumstances of the case, it is directed to the respondent No. 2, (Secretary, Legal Department, who was then changed to Secretary [gad]) to sympathetically decide two representations of the petitioner dated 26. 9. 1998 within the period of one month from the date of receipt of the copy of this order and to pass appropriate well reasoned speaking order and to communicate the same to the petitioner immediately thereafter and to place copy thereof on the record of this petition on or before the next date of this petition. Respondent No. 2 is directed to pass such orders with sympathetic approach within the aforesaid period after affording reasonable opportunity of hearing to the petitioner or to his representative. "in pursuance to the aforesaid directions, the impugned order dated 25th November, 2003 is passed, by the Principal Secretary to Government of Gujarat, General Administration Department. It is to be noted that despite a clear direction of this Court to consider the case of the petitioner sympathetically, no sympathy is apparent in the order. This observation is required to be made because even, according to the Government itself, sub-rule (5) of rule-4 of the Rules stands amended and, therefore, in future also, there is no question of any such similar claim coming up. None of the past members and/or the Presidents are likely to approach the Government with a similar request. In such circumstances, a high ranking officer like the Principal Secretary to the Government of Gujarat, General Administration Department, could have taken a decision to the effect that as an exception, it is decided that on a plausible interpretation of sub-rule (5) of rule-4 of the Rules and rule-327 of the BCSRs, the case of the petitioner is accepted and that this decision is not to be treated as precedent. ( 7 ) MR. ( 7 ) MR. J. T. TRIVEDI, learned Advocate for the petitioner, relied upon a judgement of this Court in the matter of S. H. Sanghvi vs. State of Gujarat and Anr. , reported at 1986 G. L. H. 250. The relevant part of the said judgement is quoted in the impugned order, as it was cited before the authority. Mr. M. S. Rao, learned AGP, is not able to point out filing of any Letters Patent Appeal against the aforesaid decision, cited by Mr. Trivedi. Not only that, no judgement to the contrary either of the learned single Judge or the Division Bench is cited. This Court is in full agreement with the observations of the learned Judge in S. H. Sanghvis case (supra) and on the same reasoning, is of the opinion that when the terms, `reemployment and `fresh appointment, are not defined anywhere, there is no reason for the author of the impugned order to give artificial meaning to these terms. If the legislature wanted to give such specific meaning to the term, `reemployment, or if the legislature wanted to make a difference between the so-called `reemployment and the `fresh employment, nothing prevented it from providing the same in specific terms in rule-327 of BCSRs. ( 8 ) MR. J. T. TRIVEDI, learned Advocate for the petitioner, produced extracts from Prems Judicial Dictionary, Volume-2, 1993 Edition, page 1399, wherein the term `reemployment is defined. Therein, it is stated that :". . . . . . IN the case of re-employment a person, at the time of his re-employment, is not deemed to be in service and his re-employment really amounts to a fresh recruitment or appointment. "the dictionary has also considered the terms `reinstatement and `reemployment in reference to each other. There, it is said that:"the position in the case of re-instatement is different as re-instatement, implies continuance of previous service. It is true that the effect of re-instatement in one respect is the same as the effect of re-employment, viz. , that the person re-instated or re-employed comes back into the service of the employer from the date on which the order for re-instatement, or re-employment is made effective but there is one very important distinction. In the case of re-instatement, there is continuity with the previous service whereas, in the case of re-employment, there is a fresh start of a new service. . . . In the case of re-instatement, there is continuity with the previous service whereas, in the case of re-employment, there is a fresh start of a new service. . . . . . . " ( 9 ) THE observations made by the author of the impugned order in sub. paragraph (vi) of paragraph-5 do not make any meaningful reading because when a Government Servant is reemployed, it means that he is given a fresh appointment after his first term/tenure of the appointment is over. In majority of the cases, reemployment does not take effect coinciding with the date of retirement because then, it is not actually reemployment but it is extension of service beyond the tenure admissible under the Rules. In the facts of the case on hand, the petitioner was reemployed as Member of the Tribunal and service rendered by him as Member of the Tribunal was governed by the Rules and under the provisions of sub-rule (5) of rule-4, the service rendered by the President or the Member is to be counted as the Government Service. Not only that, `sub-rule goes further and provides that the said service is to be counted as Government service for the purpose of PAY, PENSION, LEAVE AND SUCH OTHER PURPOSE. (emphasis supplied) the fact that the service rendered by the petitioner as Member of the Tribunal is to be counted as Government Service brings him under the provisions of rule-327 of the BCSRs. Rule-327 of the BCSRs specifically bars a claim being raised for second pension by any employee on his reemployment. As observed by the learned Judge in the case of S. H. Sanghvi vs. State of Gujarat and Anr. (supra) in paragraph-7, Rule-327 does not speak about continuity of service for combining the pensionable service rendered after reemployment with the previous service. The learned Judge of this Court has observed as under:". . . . . . REEMPLOYMENT in Government service after retirement, can be at any time after retirement for the purpose of combining the pensionable service with the previous service under Rule 327. Rule does not say that a Government servant would be entitled to combine the service rendered by him on re-employment which is pensionable service with his previous service provided (i) re-employment is in continuation of the retirement from service and (ii) he has not obtained benefit of commutation. Rule does not say that a Government servant would be entitled to combine the service rendered by him on re-employment which is pensionable service with his previous service provided (i) re-employment is in continuation of the retirement from service and (ii) he has not obtained benefit of commutation. Rule 327 does not permit re-employed Government servant to count his new service as qualifying for second pension but it permits combining of new service with previous service provided new service is pensionable. If new service is pensionable the Government servant is entitled to combine it with previous service and whole to be treated as one service for the purpose of pension notwithstanding that new service is not in continuation of previous service and that there is break between the two services. The question of break in service and condonation thereof does not arise for consideration while granting benefit of combining two services under Rule 327. . . . . . . "the learned Judge has very succinctly put, the only way in which rule-327 can be interpreted and in view of that, the author of the impugned order should not have travelled beyond such interpretation. ( 10 ) MR. M. S. RAO, learned AGP for the respondent-State, heavily relied upon the observations made by this Court (Coram:s. K. Keshote, J.) in the order dated 26th July, 1999 passed in Special Civil Application No. 5307 of 1999, wherein the learned Judge was pleased to take a view that 1998 Amendment Rules are not in real sense rewriting of the rules, but, it is in the nature of clarification of the earlier rule and, therefore, in view of the 1998 Amendment Rules, the case of the petitioner (of that petition) was dismissed. In view of this, Mr. Rao, learned AGP, submitted that the author of the impugned order dated 25th November, 2003 observed in sub. paragraph- (ix) of paragraph-5 as under:" (IX) The Service rendered as Member, GCST is not Pensionable as claimed by the Petitioner. In fact none of the President/members has been paid Pension for the Service rendered by him in the GCST after retirement. Incidentally, Hon. High Court of Gujarat has already rejected the Petition of Shri P. V. Bhatt, IAS (Retired) who was also appointed as Member, GCST after retirement and had claimed Pension for the tenure as Member, GCST. In fact none of the President/members has been paid Pension for the Service rendered by him in the GCST after retirement. Incidentally, Hon. High Court of Gujarat has already rejected the Petition of Shri P. V. Bhatt, IAS (Retired) who was also appointed as Member, GCST after retirement and had claimed Pension for the tenure as Member, GCST. This also corroborates the stand taken by the State Government that the Service rendered by a retired person as Member or President of the GCST and is not pensionable. "but then, against that order, it is reported that Letters Patent Appeal No. 1156 of 1999 is filed, which is admitted on 29th October, 2001 by this Court (Coram:j. N. Bhatt and D. H. Waghela, JJ.) and the same is pending. The author of the order ought to have made a reference to the pendency of the Letters Patent Appeal, which according to Mr. Trivedi, the learned Advocate for the petitioner, was brought to his notice. If that is so, it is not proper on his part to escape such reference. Be that as it may. The order even otherwise is not in accordance with law and the same is required to be quashed and set aside. ( 11 ) MR. M. S. RAO, learned AGP, also emphasised that the case of the petitioner was not covered under the term, `reemployment, used in rule-327 of BCSRs. He submitted that the author of the impugned order has dealt with this aspect in sub. paragraph (vi) of paragraph-5, which reads as under:" (VI) The Government Servants who are re-employed in various organisations after superannuation only get the benefit of Rule 327 of the BCSRs for counting their Service in re-employment with the Service rendered by them before retirement on superannuation. The retired officers appointed in any capacity in any organisations are otherwise governed by the provisions of the Rules governing such appointments. Moreover, Rule 327 of the BCSRs is not applicable to Shri Phanse as he was not "re-employed" as Member, GCST, but as mentioned above, it was "a fresh appointment after retirement under the provisions of GCST Act, 1972 and Rules framed thereunder". "the reasoning sought to be advanced in sub. paragraph (vi) is self contradictory. The term `reemployment is not defined in the BCSRs. "the reasoning sought to be advanced in sub. paragraph (vi) is self contradictory. The term `reemployment is not defined in the BCSRs. ( 12 ) IN light of the plain reading of sub-rule (5) of rule-4 of the Rules and rule-327 of the BCSRs, this Court is of the considered opinion that the petitioner is entitled to grant of pension on the basis of the length of pensionable service to be more than 25 years and not on the basis of 20 years. The only point which requires consideration from the submissions of Mr. M. S. Rao, learned AGP, is about the payment of Contributory Provident Fund (CPF) to the petitioner. It is stated in sub. paragraph- (v) of paragraph- (v) of the impugned order that the petitioner, after joining as Member, GCST, had opted for the Contributory Provident Fund (CPF), and under that he is paid a total amount of Rs. 98,844=00 in December-1990. It is also further stated in that paragraph that out of the total amount, Rs. 57,652=00 was his personal contribution and Rs. 41,192=00 was the contribution of the Government. Mr. Rao emphatically submitted that once a person is paid the benefit of CPF, he cannot ask for the benefit of pension for the same service. But then, the Government Authorities are not able to produce before the Court the `option Form, which was obtained from the petitioner, as it is stated that the petitioner had opted for the CPF. Be that as it may. In light of the fact that this Court is of the opinion that the services rendered by the petitioner as Member of the Tribunal is to be included while calculating his total pensionable service, the only thing which is required to be done is that the amount paid by way of Government contribution i. e. Rs. 41,192=00 be adjusted towards the arrears of pension, payable to the petitioner under this order. ( 13 ) IN view of the aforesaid discussion, the present petition is allowed. Rule is made absolute. No order as to costs. Mr. J. T. Trivedi, learned Advocate appearing for the petitioner, submitted that the petitioner is more than 78 years and is not keeping good health, hence, the respondents be directed to implement this order as expeditiously as possible. Rule is made absolute. No order as to costs. Mr. J. T. Trivedi, learned Advocate appearing for the petitioner, submitted that the petitioner is more than 78 years and is not keeping good health, hence, the respondents be directed to implement this order as expeditiously as possible. The request sounds reasonable and appropriate one and, therefore, the respondents are directed to calculate and refix the pension of the petitioner on or before 31st March, 2004 and see to it that the amount is paid to the petitioner on or before 15th April, 2004. The compliance of this order be placed on the record of this case. .