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2015 DIGILAW 1240 (GUJ)

RANOMAL SAROOPCHAND ADEPAL v. STATE OF GUJARAT

2015-12-03

K.J.THAKER, S.R.BRAHMBHATT

body2015
JUDGMENT : S.R.BRAHMBHATT, J. 1. The present petition was filed by the petitioner on 31.3.1997, challenging the order and communication dated 13.2.1997, issued by the Home Department, State of Gujarat, informing the petitioner that the petitioner’s request for recognizing his past service rendered earlier in the case of Refugee migrating after 23.3.1971, is not acceptable. 2. The said matter had been filed before this Court which was listed before the learned Single Judge of this court and the learned Single Judge, after taking into consideration the decision cited at the Bar, recorded that as she was not agreeing with the proposition laid down in the decision of the learned Single Judge cited a the Bar referred the matter to the Division Bench and the Division Bench on 15.4.1997 issued Rule in the matter. 3. The order of reference by the learned Single Judge was made on 3.4.1997 and the matter was admitted on 15.4.1997. The order of reference, therefore, would be required to be produced, which reads as under: “1. The petitioner herein was originally a citizen of Pakistan who has immigrated to India after 1971 and has acquired Indian Citizenship. After his emigration to India, under order dated 8th March, 1988, the petitioner was appointed in the Government service as a Junior Clerk in the Home Guards. The petitioner, thus, served till he reached the age of superannuation and was retired from service on 30th July, 1994. The petitioner has served the Government of Gujarat for a period of six years. Prior to his emigration from Pakistan, the petitioner was serving under the Government as a junior clerk in the Police Department. He served there for more than 21 years i.e. from the year 1959 to the year 1972. 2. It is the claim of the petitioner that the petitioner’s service rendered to Government in Pakistan shall be considered as pensionable service and the petitioner shall be paid pension and other retiral benefits accordingly. Learned advocate Mr. Sharma appearing for the petitioner has relied upon the orders made in favour of certain other Government servants who wee emigrants from Pakistan and had earlier served under the Government in Pakistan. Copies of such orders are annexed to the petition at annexures “I”, “J” and “K”. Mr. Learned advocate Mr. Sharma appearing for the petitioner has relied upon the orders made in favour of certain other Government servants who wee emigrants from Pakistan and had earlier served under the Government in Pakistan. Copies of such orders are annexed to the petition at annexures “I”, “J” and “K”. Mr. Sharma has submitted that the above referred orders at annexures I, to K made in favour of various employees of the Government have been made pursuant to the Government resolution dated 17th April, 1967 [annexure L to the petition]. He has also relied upon the judgment of this Court in the matter of Vishandas Gangaram Khatri versus Union of India [ 1996(2) GLR 261 ]. 4. It is true that relying upon the above resolution dated 17th April, 1967, several employees have been given benefits of condonation of break in service and their services rendered to Government in Pakistan has been treated as pensionable service under the State of Gujarat. This court in the mater of Vishandas Gangaram (supra) has relied on the same orders and has directed the Government to give similar benefits to that petitioner also. I, however, an unable to agree with the contention raised by Mr. Sharma. The resolution dated 17th April, 1967 is based on earlier resolutions dated 13th January, 1955 and 22nd March, 1959. Under the said resolution, temporary service rendered by temporary displaced Government servants under the former Government of Sindh and North East Frontier Provinces prior to their migration to India is allowed to be counted in full as duty or service qualifying for pension subject to the conditions contained therein. It is obvious that the said resolution refers to the servants of the former Province of Sindh and North West Frontier who emigrated to India on or after 1947 bifurcation. The service which is treated as pensionable service is that which is rendered under the former Government of Sindh and North West Frontier Provinces i.e. that part of India prior to 1947. The benefits under the said resolution cannot be extended to the Government employees who had emigrated from Pakistan after 1971 and had earlier rendered services under the Government in Pakistan. The benefits under the said resolution cannot be extended to the Government employees who had emigrated from Pakistan after 1971 and had earlier rendered services under the Government in Pakistan. If the State Government has granted such benefits to some of its employees either by misinterpreting the aforesaid resolution or for any other extraneous reason, said benefit cannot be granted to other who are similarly situated by invoking the principles of equality. I am unable to agree to the proposition that service rendered to an alien country should be treated as pensionable service under the State of Gujarat for the purpose of pension and other retiral benefits. In view of the above referred judgment of the learned Single Judge of this Court in the matter of Vishandas (supra), which is binding to this Court, this matter is referred to the Division Bench for its consideration. Registry is, therefore, directed to place this petition for admission hearing before the Division Bench. Petitioner is directed to furnish additional set of paper book within a period of one week from today.” 4. Before adverting to the proposition of law, it would be most proper to set out facts in brief so as to appreciate the controversy based thereupon. The petitioner had joined the service as Jr. Clerk in the office of Superintendent of Police, Tharparkar, Sindh, on 25.11.1959, which is part of Pakistan and he continued to serve there as such up to 7.2.1972. The petitioner was compelled to leave Pakistan on account of strain relationship between the country and the occupation of Tharparkar area by the Indian Armed Forces during the Indo-Pak war of 1971. The petitioner took shelter as refugee, at Tharad on 29.7.1972, in the territory of India and the Government of India treated him to be refugee. The petitioner knew English typing, and hence, he was engaged by the Camp Commandant, Refugee Camp, Tharad, for a period from 1.8.1972 to 28.2.1973. The petitioner was accorded citizenship of India by Collector, Banaskantha on 23.8.1978. The petitioner’s efforts for obtaining employment resulted into his getting the engagement as temporary service in the office of Deputy Executive Engineer, Tharad. The petitioner was, thereafter, employed as Jr. Clerk in the Home Department. That could be seen from the order dated 8.10.1987 placed at Annexure-E of the petition. The petitioner’s efforts for obtaining employment resulted into his getting the engagement as temporary service in the office of Deputy Executive Engineer, Tharad. The petitioner was, thereafter, employed as Jr. Clerk in the Home Department. That could be seen from the order dated 8.10.1987 placed at Annexure-E of the petition. It is required to be mentioned herein that the petitioner has also produced service book indicating his service rendered in Pakistan prior to his migration to India, which also would substantiate the case of the petitioner, so far as facts of his serving in Pakistan in the region of Tharparkar is concerned. 5. The order of his appointment dated 8.10.1987 placed on record at Annexure-E page 32 of the petition, indicates that along with the petitioners, there were three more persons of similarly situated condition came to be appointed. The petitioner’ name is figured thereunder at Sr. No. 3, whereas, one gentleman called Vishandas Gangaram Khatri is figuring at Sr. No. 4 in that order. The petitioner, thereafter, retired and as he was not getting pension on account of non-pensionable service, moved authorities, which ultimately were turned down, as could be seen from the communication impugned in this petition. The fourth gentleman, whose name is figured at sr. no. 4, moved a petition being Special Civil application 8630 of 1994, in which, the learned Single Judge of this Court, after elaborate discussion of all the situation issued directions to the State on 24.2.1995. The operative part of the judgment is required to be reproduced as under: “4. The fourth gentleman, whose name is figured at sr. no. 4, moved a petition being Special Civil application 8630 of 1994, in which, the learned Single Judge of this Court, after elaborate discussion of all the situation issued directions to the State on 24.2.1995. The operative part of the judgment is required to be reproduced as under: “4. The upshot of the aforesaid discussion is that the petitioner is also held to be entitled to the benefit of the Resolutions passed by the Government of Gujarat, i.e. Annexure-G dated 17th April 1967 in the matter of displaced Government servants from Pakistan, contained in the Scheme of counting the temporary service and it is directed that in the case of the petitioner also, the maximum period of service in Pakistan as rendered by the petitioner should be accepted on the basis of the collateral evidence produced by the petitioner and for the purpose of condoning the break in service and grant of pension and other retiral benefits etc., his case should be treated at par with Shri R.K. Bhanani, Shri P.M. Sodha, Shri M.D. Oza, Shri R.C. Sodha and Shri Vishandas P. Jaipal, who were absorbed in the service of Government of Gujarat in Education Department and the petitioner’s case for pension, gratuity and retiral benefits etc. be dealt with and decided and the due amount should be paid to the petitioner in accordance with law at par with the employees as aforesaid. The petitioner’s case for the purpose of pension, gratuity, retiral benefits etc. shall be processed and finalised within a period of three months from the date the writ is served upon the respondents. This Special Civil Application, therefore, succeeds and the same is allowed as indicated above. Rule is made absolute accordingly, with no order as to costs. 6. This judgment appears to have been accepted by the State as thereafter the said petitioner of that petition namely Shri Vishandas G. Khatri was accorded the benefits, as could be seen from the order at Annexure-K page 58 dated 25.4.1995. 7. Rule is made absolute accordingly, with no order as to costs. 6. This judgment appears to have been accepted by the State as thereafter the said petitioner of that petition namely Shri Vishandas G. Khatri was accorded the benefits, as could be seen from the order at Annexure-K page 58 dated 25.4.1995. 7. It is required to be noted at this stage that the learned Single Judge of this Court appears to have not been in agreement with the reasonings of the learned Single Judge who rendered the order and judgment in Special Civil Application No. 8630 of 1994 on 24.2.1995, referred the matter to the Division Bench and the Division Bench admitted the matter by issuing Rule. 8. Looking to the passage of time and the fact that during the pendency of the petition, the petitioner himself passed away without seeing the result of the petition and his heirs are on record, we propose to answer the Reference and thereafter without following the formality of referring the matter to the learned Single Judge, undertake the exercise of issuing appropriate directions also in this very decision as requested by the learned advocates of both the sides. 9. Close perusal of the order of Reference by the learned Single Judge would indicate as to what had weighed with the learned Single Judge for not agreeing with the reasoning of the another learned Single Judge who rendered the order and judgment in Special Civil Application No. 8630 of 1994. The entire order of the learned Single Judge is set out for ready reference, however, a part thereof, needs to be once again reproduced for calling out the reasonings given by the learned Single Judge for her inability to agree with the reasoning given by the learned Single Judge who rendered the judgment in Special Civil Application No. 8630 of 1994 on 24.2.1995. Part of para-4 of the order of learned single Judge reads as under: “4. It is true that relying upon the above resolution dated 17th April, 1967, several employees have been given benefits of condonation of break in service and their services rendered to Government in Pakistan has been treated as pensionable service under the State of Gujarat. This court in the mater of Vishandas Gangaram (supra) has relied on the same orders and has directed the Government to give similar benefits to that petitioner also. This court in the mater of Vishandas Gangaram (supra) has relied on the same orders and has directed the Government to give similar benefits to that petitioner also. I, however, an unable to agree with the contention raised by Mr. Sharma. The resolution dated 17th April, 1967 is based on earlier resolutions dated 13th January, 1955 and 22nd March, 1959. Under the said resolution, temporary service rendered by temporary displaced Government servants under the former Government of Sindh and North East Frontier Provinces prior to their migration to India is allowed to be counted in full as duty or service qualifying for pension subject to the conditions contained therein. It is obvious that the said resolution refers to the servants of the former Province of Sindh and North West Frontier who emigrated to India on or after 1947 bifurcation. The service which is treated as pensionable service is that which is rendered under the former Government of Sindh and North West Frontier Provinces i.e. that part of India prior to 1947. The benefits under the said resolution cannot be extended to the Government employees who had emigrated from Pakistan after 1971 and had earlier rendered services under the Government in Pakistan. If the State Government has granted such benefits to some of its employees either by misinterpreting the aforesaid resolution or for any other extraneous reason, said benefit cannot be granted to other who are similarly situated by invoking the principles of equality. I am unable to agree to the proposition that service rendered to an alien country should be treated as pensionable service under the State of Gujarat for the purpose of pension and other retiral benefits.....” 10. I am unable to agree to the proposition that service rendered to an alien country should be treated as pensionable service under the State of Gujarat for the purpose of pension and other retiral benefits.....” 10. Thus, the learned Single Judge has recorded that the Resolution 17.4.1967 relied upon by the petitioner in case of Special Civil Application No. 8630 of 1994, was in fact based upon earlier Resolutions dated 13.1.1955 and 22.3.1959, and has further recorded that under the said resolution, temporary service rendered by temporary displaced Government servants under the former Government of Sindh and North East Frontier Provinces prior to their migration to India is allowed to be counted in full as duty or service qualifying for pension subject to the conditions contained therein, and the learned Single Judge has observed that it was, therefore, obvious that the said resolution refers to the servants of the former Province of Sindh and North West Frontier who emigrated to India on or after 1947 bifurcation and the service which was treated as pensionable was rendered in the former Government of Sindh and North West Frontier Provinces i.e. that part of India prior to 1947 and the benefit of that resolution cannot be extended to the Government employees who had emigrated from Pakistan after 1971 and had earlier rendered services under the Government in Pakistan, and if the State Government has granted such benefits to some of its employees either by misinterpreting the aforesaid resolution or for any other extraneous reason, the said benefit cannot be granted to others who are similarly situated by invoking the principles of equality, and the learned Single Judge also recorded that the service rendered to an alien country cannot be treated as pensionable service under the State of Gujarat for the purpose of pension and retiral benefits. 11. We have to record the indisputable facts which have emerged from the perusal of material, G.R. and orders on record which would indicate as under: (1) The Government resolution dated 17.4.1967, is in fact, in respect of total, indicates counting of temporary service rendered in the Province of Sindh and North East Frontier Provinces which was part of undivided India once upon a time. Therefore, the displaced persons and refugees who were rendering the service in those Provinces were required to be taken into consideration. Therefore, the displaced persons and refugees who were rendering the service in those Provinces were required to be taken into consideration. That resolution is, in fact, referring to a resolution dated 13.1.1955 and 22.3.1959. The two dates and the purpose of the resolution would unequivocally indicate that the resolution was essentially for giving some respite to those refugees who had rendered their service in the Provinces of Sindh and North East Frontier prior to their migration in India as at the relevant time those two Provinces were part of the undivided India prior to division. The 1967 resolution which is not to be treated to be governing the situation after Indo-Pak War in 1971. However, it seems that the State Government in Education Department considered that resolution for granting benefits to four teachers as could be seen from the resolution dated 31.3.1984. This resolution makes a reference of earlier resolution dated 17.4.1967 which admittedly was not for displaced persons of West Pakistan after the Indo-Pak war. Naturally, it has a reference to the earlier situation and it was issued in the year 1967 i.e. much prior to Indo-Pak War in the year 1971. (2) The said resolution is issued by the State of Gujarat in Education Department. That has been in respect of four teachers who had migrated from West Pakistan after Indo- Pak conflict in the year 1971 and the learned Single Judge while referring the judgment in the case of Vishandas Gangaram Khatri in Special Civil Application No. 8630/1994, has therefore, relied thereupon to indicate that such a treatment was permissible and he has also relied upon earlier orders made in similarly situated persons matter. (3) In the instant case, the present petitioner and the heirs relied upon the decision of the learned Single Judge in the case of Vishandas Gangaram Khatri (supra) which is not been subject matter of challenge to any other forum and has been accepted and acted upon by the respondent-State. 12. (3) In the instant case, the present petitioner and the heirs relied upon the decision of the learned Single Judge in the case of Vishandas Gangaram Khatri (supra) which is not been subject matter of challenge to any other forum and has been accepted and acted upon by the respondent-State. 12. Against the aforesaid scenario of factual back-drop, we are called upon to render our decision in respect of peculiar facts of the present case which would indicate that the learned Single Judge while referring the matter was justified in recording that the resolution of 1967 could not have been pressed into service for covering the persons migrated to this country after the Indo-Pak conflict of 1971 as they cannot be equated with the refugees who chose to migrate to India after the historical devision in the year 1947. As in their case, the reason of rehabilitation was based upon their service rendered in the State or province which was once upon a time forming part of the undivided India prior to the partition, whereas, in the case of refugee and emigrants after 1971, they cannot and could not seek any similarity based thereupon. Hence, we are of the clear opinion that the learned Single Judge is correct in holding that the service rendered in alien country straightway on the strength of 1967 resolution could not have been made eligible for reckoning the same for pensionary benefits. The question of rehabilitating refugees who were subject and domicile of divided India after the historic divide on their migration to India was required to be viewed in a larger and broader perspective, and it also was required to be noted that their services rendered in any Provinces of undivided India was required to be treated as their services to the Government then prevailing and ruling the part of undivided India, in which, the domicile and subjects were to be treated as a part of the system. Therefore, there is absolute logic and justification, if one peruses the resolutions dated 13.1.1955 and 22.3.1959, or for that matter, the subsequent resolution 1967 has natural consequences the process of rehabilitation of the refugees, who migrated to India after the unfortunate divide. Therefore, there is absolute logic and justification, if one peruses the resolutions dated 13.1.1955 and 22.3.1959, or for that matter, the subsequent resolution 1967 has natural consequences the process of rehabilitation of the refugees, who migrated to India after the unfortunate divide. This policy of rehabilitation had, thus, nexus with the historic back-ground of the events and the refugees migrating to the country, and therefore, these resolutions cannot be construed as ennuring for the situation when there was no historic back-ground of such nature available. In view thereof, we have took conclude that the interpretation of subsequent resolution has extention of the policy which was propounded under the early resolutions of 1955 and 1959 cannot be countenance as legal and valid. 13. The question, therefore, is to be considered by this Court is, that can the heirs and legal representatives of the deceased, who migrated to India in the aftermath of India-Pak Conflict in the year 1971, be continued the benefits which they claimed from the policy emanating from the Resolution dated 31.3.1984. The answer would be empathetically “No”. The State of Gujarat, through the Education Department, propounded a policy though purportedly an extention of the earlier policy which basis was not available. Nonetheless, that policy as being not in any manner under challenge or unconstitutional, on a strength of it offered benefits to the refugees and migrants who migrated to this country after the Indo-Pak Conflict of 1971. This policy, if is not declared to be ultra vires, the provisions of the Constitution, and as if not challenged in any manner, can be said to be a policy under which the State of Gujarat did accord the benefit of reckoning of the service for the purpose of helping the refugees who took shelter in India after Indo-Pak Conflict 1971. This policy, if is not obnoxious to the principle of our Constitution ethos, then it cannot be brushed aside for denying the benefits flowing thereunder to others. The refugees, who took shelter in India, after the Indo-Pak Conflict, 1971, are also required to be viewed as if they were part of the system which had its roots in Provinces which was subject matter of common rule tradition aspiration. The refugees, who took shelter in India, after the Indo-Pak Conflict, 1971, are also required to be viewed as if they were part of the system which had its roots in Provinces which was subject matter of common rule tradition aspiration. Therefore, such refugees, though originally belonging to an alien country called Pakistan, nonetheless, looking to their historic background and the fact that at one point of time, prior to the divide of 1947, the entire region was forming part of the undivided India. The said benefit was sought to be extendable to the refugees who migrated to this country after Indo-Pak Conflict, 1971, and therefore, if that is the policy, that it cannot be said that the State has wrongly given the benefits to the teachers, and therefore, such wrong benefits cannot be extended to others, on the contrary, the policy decision is that of State in which this Court has almost very limited say to comment upon as the policy of the State is ordinarily beyond judicial scrutiny. Of course, so far as the same is not in conflict with the principles enshrined in the Constitution. 14. The policy of the State, if one could read the resolution of the State in Education Department dated 31.3.1984 and the same is capable of clearly indicating that the State consciously decided to accord the benefits of service to the refugee who migrated to India after Indo-Pak conflict in the year 1971, and when though the State had decided so far as teachers were concerned, the same cannot be confined only to the Government teachers, and therefore, when a similarly situated person namely Vishandas Gangaram Khatri in Special Civil Application No. 8630 of 1994 was granted the benefits and the said judgment has not been subject to any further challenge, the said benefits could not have been denied to the petitioner and heirs. The resolution dated 31.3.1984 was in consonance with the resolution of 1967 or earlier resolution. As the learned Single Judge has rightly observed that the said policy could not have been said to be based upon the principles which were governing the situation. The resolution dated 31.3.1984 was in consonance with the resolution of 1967 or earlier resolution. As the learned Single Judge has rightly observed that the said policy could not have been said to be based upon the principles which were governing the situation. However, the said policy appears to be an independent policy to help the refugees migrated to the country after Indo-Pak conflict of 1971 and that policy being in force, and not challenged by any one and not resisted or revoked by the State, there was no reasons to decline the benefits thereof to the petitioner as could be seen from the communication at page 16, and therefore, we are of the view that the same is required to be quashed and set aside and the State is required to be directed as under: 15. The State shall consider the case of the petitioner exactly on the same line of Vishandas Gangaram Khatri v. Union of India (supra), and if, otherwise, is found eligible, then accord the benefits in accordance with law, as it is done in the case of Vishandas Gangaram Khatri, and whatever is admissible to the heirs of the petitioner be paid on that basis, and if, thereafter, also family pension, if available the same also be started and the entire exercise be over within a period of three months from the date of receipt of the order. Rule is made absolute to the above extent only. Direct service permitted.