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2016 DIGILAW 1334 (GUJ)

State of Gujarat v. Navinchandra B. Pandya

2016-07-15

J.B.PARDIWALA

body2016
JUDGMENT : J.B. Pardiwala, J. 1. By this writ application under Article 226 of the Constitution of India, the Petitioner - State of Gujarat through the Director of Technical Education, Gandhinagar seeks to challenge the legality and validity of the order dated 20.12.2000 passed by the Gujarat affiliated Colleges Services Tribunal at Ahmedabad in the Application No. 56 of 1999 with Application No. 27 of 2000. 2. The facts of this case may be summarized as under:- 3. The respondent No. 1 herein was serving as a lecturer in the subject of Commerce at the L.M. College of Pharmacy, Ahmedabad. The L.M. College of Pharmacy, Ahmedabad is run and managed by the Ahmedabad Education Society. According to the conditions of service and the rules regulating the age of superannuation, the respondent No. 1 attained the age of 60 on 8.11.1998. 4. The respondent No. 1 wanted to continue in service as a lecturer in the L.M. College of Pharmacy, Ahmedabad for another two years i.e. upto the age of 62. 5. In such circumstances referred to above, he preferred an application before the Tribunal seeking the benefits of the GR dated 27.7.1998. It appears that the Tribunal passed an interim order in favour of the respondent No. 1 on the basis of the GR dated 27.7.1998 which otherwise was not applicable in the facts of this case. 6. By virtue of the interim order passed by the Tribunal, respondent No. 1 continued to work as a lecturer. Ultimately, the application was adjudicated by the Tribunal and the same was allowed. While allowing the application filed by the respondent No. 1, the Tribunal observed in Paragraphs 8 and 9, which reads as under:- "8. So as per my view, it is very much clear that the respondent management has accepted the provisions of the resolutions of the Government of Gujarat dated 7.9.98 as well as 30.10.98 and has given the benefits of these resolutions to the applicant and the applicant was continued in the service of the respondent college till completion of 62 years of age and there is no dispute that the applicant has completed the age of 62 years of age and now the only resolution is whether the applicant is entitled to continue in the service of the respondent college till the term end after superannuation age, as per the resolution of the Government of Gujarat dated 11.12.90. It is nowhere mentioned in the Resolutions dated 7.9.98 and 30.10.98 and there are no restrictions regarding resolution dated 11.12.90 and when the resolutions dated 7.9.98 and 30.10.98 were passed by the government, the resolution dated 11.12.90 was very much in force. So, all the employees of the affiliated colleges are entitled to get the benefit of the resolution dated 11.12.90 and considering this resolution and others dated 7.9.98, 27.7.98, 30.10.98 and 11.12.90 and in the above circumstances, the applicant has completed 62 years of his age in the respondent college and after that notice is served to the applicant on 23.10.2000 for retiring him w.e.f. 7.10.2000. But, here, when the applicant has completed 62 years of his age in the respondent college till the completion of his age of 62 years, then he is entitled for the benefit of term end as per the resolution of the government dated 11.12.90 and as per this resolution, the applicant is entitled to continue in the respondent college till the term end i.e. 14.6.2001. So, at this stage, the only question before me is that whether the applicant is entitled to continue in the respondent college even after 7.11.2000 or not. So in view of the above discussion and considering the resolution of 11.12.90, the applicant is entitled to get the benefit of the term end and the applicant is entitled to continue in the respondent college till 14.6.2001. 9. In the above circumstances, both the applications are allowed and the applicant is entitled to get the benefit of the above resolutions." 7. Being dissatisfied with the order of the Tribunal, the State of Gujarat has come up with this application. 8. Mr. Gautam, the learned AGP appearing for the State vehemently submitted that the impugned order passed by the Tribunal is erroneous and contrary to the GR. He submitted that the Tribunal proceeded on a erroneous footing that the GR dated 27.9.1998 was applicable and on the strength of the same, the respondent No. 1 could have continued in service for another two years i.e. upto the age of 62. He submitted that the resolution on which the Tribunal placed reliance is not at all applicable and his case was governed by the Resolution dated 26.5.1999. He submitted that the resolution on which the Tribunal placed reliance is not at all applicable and his case was governed by the Resolution dated 26.5.1999. He further submitted that by the GR dated 26.5.1999, the benefit of extension of two years of service was given on the condition that the same would apply only to those teachers attaining 50/60 years of age on or after the date of issue i.e. 26.5.1999. He pointed out that the respondent No. 1 attained the age of 60 on 7.11.1998 and, therefore, the GR dated 26.5.1999 could not have helped him. He clarified that so far as the GR on which the Tribunal has placed reliance, the same is not applicable so far as the pharmacy colleges are concerned. The said GR only takes care of the teachers, librarians and physical education personnel in the universities and colleges. 9. Mr. Gautam, the learned AGP, therefore, prays that there being merit in the application, the impugned order be quashed. 10. Ms. K.J. Brahmbhatt, the learned counsel appearing for the College and Society vehemently submitted while assailing the impugned order that the same is erroneous and deserves to be quashed. She submitted that the respondent No. 1 was not entitled to continue as a lecturer beyond the period of 7.11.1998. According to Ms. Brahmbhatt, the Tribunal should not have entertained the application. She also pointed out that only by virtue of the interim order passed by the Tribunal that the respondent No. 1 continued in service. 11. Ms. Brahmbhatt, the learned counsel for the respondent No. 1 prays that there being merit in the application, the impugned order be quashed. 12. Ms. Dhara Shah, the learned counsel appearing for the University supported the submissions made by the learned AGP as well as Ms. Brahmbhatt, the learned counsel for the College and University. 13. On the other hand, this application has been vehemently opposed by Mr. Rana, the learned counsel appearing for the respondent No. 1. He submitted that no error much less an error of law could be said to have been committed by the Tribunal. According to him, no interference is warranted at the end of this Court in exercise of its supervisory jurisdiction under Article 227 of the Constitution. Rana, the learned counsel appearing for the respondent No. 1. He submitted that no error much less an error of law could be said to have been committed by the Tribunal. According to him, no interference is warranted at the end of this Court in exercise of its supervisory jurisdiction under Article 227 of the Constitution. His principal contention is that his client having served as a lecturer upto 14.6.2001, the authority ought not to have recovered certain amount from his retiral benefits. He has placed reliance on the following averments made in the affidavit in reply duly affirmed by his client. "4 It is submitted that being aggrieved and dissatisfied with the order dated 28.12.2000 passed by the Hon'ble Tribunal, the State of Gujarat through Director of Technical Education preferred the present petition on 10.9.2001 before this Hon'ble Court wherein the order was passed on 13.02.2002 admitting the petition and interim relief in terms of para 13(b) was granted. 5. It is submitted that the respondent No. 1 herein preferred Civil Application No. 1056 of 2002 in SCA No. 7898/2001 on 7.2.2002 for release of salary and other retiral dues. It is submitted that the Hon'ble Court (Coram: Hon'ble Mr. Justice A.R. Dave) passed an order dated 13.02.2002 in the said application and the respondent authorities paid retiral dues as if the respondent No. 1 is retired on 7.11.1998, considering the age of superannuation as 60 years. A copy of the order dated 13.02.2002 passed in Civil Application No. 1056 of 2002 is annexed herewith and marked as Annexure-A to this affidavit. 6. It is submitted that pursuant to the order dated 13.02.2002, the Director of Pension and Provident Fund Office, Gandhinagar issued PPO on 13.03.2003 fixing the pension on the pay last drawn by the respondent No. 1 i.e. November, 1998 and decided illegally to recover the amount of Rs. 1,18,994/- for the salary paid from 1.1.1999 to 30.10.1999 (though the respondent No. 1 was permitted to work as per the interim order of the Hon'ble Tribunal) and if the respondent No. 1 was permitted to function, the respondent authorities ought not to have recovered the said amount from the retiral dues. Hence, the Hon'ble Court be pleased to direct to pay the said amount of recovery made from the retiral dues at the time of final disposal of the petition. Hence, the Hon'ble Court be pleased to direct to pay the said amount of recovery made from the retiral dues at the time of final disposal of the petition. A copy of PPO issued on 13.03.2003 alongwith the note is annexed herewith and marked as Annexure-B to this affidavit. 7. It is further submitted that the respondent authorities also recovered the amount of Rs. 1,19,522/- towards the payment of temporary pension for the period December, 1998 to October, 1999, which is also illegally and wrongly recovered from the retiral dues. Hence, the Hon'ble Court may pass necessary orders to repay the said amount at the time of final disposal of the petition. 8. It is submitted that if the respondent No. 1 succeed in the petition at the stage of final hearing, the respondent authorities may be directed to revise the pension with all consequential benefits which are entitle and admissible to the deponent." 14. According to Mr. Rana, the learned counsel appearing for respondent No. 1, there being no merit in this application, the same be rejected. 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 Tribunal committed any error in passing the impugned order. 16. It appears that the respondent No. 1 alongwith others had filed SCA No. 3539 of 1999 for the very same relief which was prayed before the Tribunal. The learned Single Judge vide judgment and order dated 11.5.1999 was pleased to reject the Writ application. The order reads as under:- "Heard the learned counsel for the petitioners. The petitioners are teachers in different Engineering Colleges of the Government of Gujarat and they are praying for the following reliefs: (A) That by a writ of mandamus and/or by a writ in the nature of mandamus and/or by appropriate writ, order or direction, the respondents herein be directed to give benefit of revision of pay scale of teachers w.e.f. 1.1.96 and the benefit of extension of age of superannuation upto the age of 62 w.e.f. 7th September, 1998 to the petitioners and respondents be further directed to continue the petitioners in service on the respective posts as teachers in the faculty of engineering and pharmacy till they attain the age of 62 years. (B) pending the hearing and final disposal of this writ petition, the respondents herein be restrained from retiring the petitioners on 14th June 1999 and be further directed to continue the petitioners in service on their respective posts. What should be the age of superannuation of the teachers of engineering colleges is a matter for consideration and decision of the Government. The learned counsel for the petitioners admits that the age of superannuation for the teachers in the engineering colleges is of 58 years and all these petitioners are to retire on 14th June 1999. The learned counsel for the petitioners submits that in the other faculties the age of superannuation of teachers has been raised to 62 years on the basis of recommendations of U.G.C. It is further contended that the matter for raising of the age of superannuation of the teachers in engineering colleges is pending for consideration before the State Government and this Court may give directions to the State Government to decide the same and till that matter is decided, the petitioners may be allowed to continue. Such directions cannot be given by this Court. If ultimately the age of superannuation is decided not making it higher than what it is prescribed today, and if the petitioners feel it to be discriminatory, certainly a cause of action may arise to them at that point of time to come up before this Court, but this Court cannot give any directions at this stage as it is a policy matter of the State of Gujarat. The learned counsel for the petitioners submitted that the Government may decide the matter in their favour with respect to engineering colleges, but it may give prospective effect and these petitioners may not get any benefits. This is not the matter to be gone into at this stage. As and when such a decision is taken and if the petitioners are not benefitted by that and they consider it to be discriminatory, then on their approach to this Court, the Court may examine this question, but not at this stage. A Writ of Mandamus as prayed for in the special civil application cannot be granted. This Court cannot compel the State of Gujarat to raise the age of superannuation of the teachers in the Education Department. It is solely in the discretion and domain of the State of Gujarat. A Writ of Mandamus as prayed for in the special civil application cannot be granted. This Court cannot compel the State of Gujarat to raise the age of superannuation of the teachers in the Education Department. It is solely in the discretion and domain of the State of Gujarat. Another contention raised is that the All India Council of Technical Education has already recommended for raising of age of superannuation of teachers in engineering colleges but it is the concern of the Government. Similarly, 80% financial burden has to be shared by the Central Government is hardly of any substance and it is a matter for consideration by the State Government and this Court at this stage cannot give any directions. The whole purpose of filing of this special civil application seems to be and which is clear to get interim relief from this Court in favour of petitioners so that they may continue in service. Otherwise also, no such interim relief can be granted. In the matter of correction of date of birth or in the matter of what should have been the age of superannuation, it is suffice to say that these are not the matters of the category where interim relief should be granted as a rule. Contrary to it, these are not fit cases where the Court should grant any interim relief. Their Lordships, Supreme Court though in the context of the date of birth of the employees have very categorically said that in such matters no interim relief should be granted and the same principle are to be adhered to and followed in the cases where the litigants are claiming for higher age of superannuation. Even if it is taken that ultimately the Government may decide in favour of petitioners by raising age of superannuation, till that matter is decided, I do not find any justification to grant interim relief in favour of the petitioners. If ultimately the petitioners succeed in the matter of their age of superannuation, then this Court has all the powers to grant all consequential benefits following therefrom to them. Contrary to it, in case they are allowed to continue, there are two possibilities. Ultimately the Government may not raise the age of superannuation and in that eventuality the amount which has been paid to the petitioners by way of salary may be difficult to be recovered. Contrary to it, in case they are allowed to continue, there are two possibilities. Ultimately the Government may not raise the age of superannuation and in that eventuality the amount which has been paid to the petitioners by way of salary may be difficult to be recovered. Secondly, what this Court will do is to allow the petitioners to continue beyond the age of superannuation. It is not gainsaid that such directions cannot be given by this Court. Their Lordships, Supreme Court have said in many cases that this Court, sitting under Article 226 of the Constitution of India cannot give directions contrary to the statutory rules, Regulations etc. The age of superannuation is the matter provided under the Rules, Regulations, Resolutions etc. and if what the learned counsel for the petitioners is praying for is granted, then it will amount to perpetuating illegality by this Court, sitting under Article 226 of the Constitution of India. Even beyond a day on which the petitioners attain the age of superannuation, they cannot be allowed to continue on the post. This is what the petitioners are claiming, which is otherwise legally not permissible. In the result, this special civil application fails and the same is dismissed. However, dismissal of this special civil application will not come in the way of the petitioners to file a detailed representation in respect of their grievances to the State of Gujarat, and it is expected of the State of Gujarat to decide the same within a period of one month from the date of receipt thereof and the decision taken thereon be communicated to the petitioners." 17. Being dissatisfied, the respondent No. 1 and others preferred LPA No. 769/1999. It appears that the respondent No. 1 herein though fit to withdraw himself from the appeal. After withdrawing himself from appeal, he approached the Tribunal. This is evident from the order passed by the Division Bench dated 14.6.1999, which reads as under:- "Learned counsel for the appellants seeks permission to withdraw this appeal. The appellants have filed an affidavit in which it is stated that some of them have filed a substantive petition which is pending before the learned Single Judge. It is also stated that Appellant No. 9 Prof. N.D. Pandya has filed an application before the Gujarat Affiliated Colleges Services Tribunal. The appellants have filed an affidavit in which it is stated that some of them have filed a substantive petition which is pending before the learned Single Judge. It is also stated that Appellant No. 9 Prof. N.D. Pandya has filed an application before the Gujarat Affiliated Colleges Services Tribunal. In view of his above statement, permission is granted without prejudice to the rights of the appellants in appropriate proceedings in accordance with law. Disposal of this Appeal will not come in the way of the appellants. Notice discharged. No order as to costs. Notice is also discharged in Civil Application with no order as to costs." 18. I take notice of the fact that on 13.2.2002, Rule was issued and interim relief in terms of Para 13(B) was granted. Thus, the impugned order passed by the Tribunal was stayed from its operation, implementation and execution. 19. I have quoted the reasonings assigned by the Tribunal as contained in Para 8. In my view, the reasonings are not sustainable in law and are erroneous. The GR which was otherwise not applicable to the respondent No. 1 was made applicable and the benefit came to be granted. As pointed out by the learned counsel appearing for the State as well as for the College, the GR dated 26.5.1991 provided for the first time, the age of superannuation, more particularly, the extension in service beyond the age of 60. Let me quote the relevant portion of the said GR as under:- "Age of Superannuation:- According to Government Resolution No. TEM-1089-827-SH dated 18.8.89, the age of superannuation of teachers of Government/Grant-in-Aid Engineering College is 58 years, while through Government Resolution No. TEM-1089-1432-S dated 27.10.89, in grant-in-aid colleges, those teachers who have joined before 1.10.84, the age of superannuation is fixed at 60 years. According to Government Resolution No. TEM-1089-3397(92) GH dated 16.6.93, the date of actual retirement for teachers has been fixed at 14th June and 31st October for continuity in their academic activities. The above Government Resolutions recommendations are now modified as follows:-- In respect of those teachers who are attaining 50/60 years of age on or after the date of issue of this Government Resolution, the date of superannuation shall be 62 years and thereafter no extension in service will be given. The above Government Resolutions recommendations are now modified as follows:-- In respect of those teachers who are attaining 50/60 years of age on or after the date of issue of this Government Resolution, the date of superannuation shall be 62 years and thereafter no extension in service will be given. However, the institute/Government may reemploy a superannuated teacher upto 65 years in accordance with the existing provisions in the Statutes/Memorandum of Association and Rules/Scheme, Regulations and Bye-laws of the Institute, as the case may be." 20. Thus, the GR referred to above makes it clear that those teachers who were attaining 50/60 years of age on or after the date of issue of the Resolution, the date of superannuation was fixed at 62 years. It was further clarified that no extension in service would be given. If the institution wanted to continue a particular lecturer beyond the age of 62, then, the same was permissible only by way of reemployment and that too only upto the age of 65 years. 21. It appears that the pensionary benefits of the respondent No. 1 has been fixed taking into consideration the superannuation age as 7.11.1998 i.e. 60 years. If the authorities have acted accordingly, then, in my view, they have not done anything wrong. The grievance of Mr. Rana that the amount of Rs. 2,38,516/- has been wrongly deducted from the retiral benefits is not sustainable in law. Even otherwise, the respondent No. 1 was not entitled to continue beyond the period of 7.11.1998. He continued in service and received the salary by virtue of the interim order passed by the Tribunal. 22. The learned AGP has placed reliance on the decision rendered by a Division Bench of this Court in LPA No. 1897 of 2007 decided on 27.7.2011. In that case, the petitioners were teachers in the Government College and according to the service conditions prevailing then, the age of superannuation was 58 years and they reached the age of superannuation in February, 1999. However, according to the policy of the Government, if any teacher reaches the age of superannuation during the academic year, the extension is to be considered in service until the expiry of the academic session and, therefore, they retired from service on 14.6.1999 instead of February, 1999. However, according to the policy of the Government, if any teacher reaches the age of superannuation during the academic year, the extension is to be considered in service until the expiry of the academic session and, therefore, they retired from service on 14.6.1999 instead of February, 1999. It appears that in the meantime, on 26.5.1995 the Government passed a resolution enhancing the age of superannuation from 58 to 62 years. According to the said resolution, there was revision in the pay scale with effect from 1.1.1996. However, such effect was not given for enhancement of age of retirement and therefore, was to be treated from the date of the resolution but the benefit of the said resolution was not given to the original petitioners and under the circumstances, the original petitioners preferred petition for the relief inter-alia directing the respondents to extend the benefit of increasing in the age of superannuation to the teachers of the government colleges and, alternatively, it was prayed to direct the respondent to give the benefits of the enhanced age of superannuation on par with the teachers of the Universities/Colleges affiliated to the Universities. 23. The learned Single Judge noticed that the original petitioners, who were working in the government colleges as teachers and the teachers who are working in the colleges affiliated to the Universities formed a homogeneous class, and therefore it was not open for the government to give a special treatment to its employees working in the Colleges run by the Government. The learned Single Judge therefore found that the action was violative of Articles 14 and 16 of the Constitution and consequently quashed the action. The learned Single Judge thereafter directed for grant of the benefits to the petitioners for the enhanced age of superannuation notionally and, it was further directed to extend the benefit for continuity in service and other retiral benefits, however, for the period during which the original petitioners did not actually work there as teachers, the salary was not ordered to be paid. In such circumstances, the State being aggrieved by the direction for continuity in service and on the other hand the original petitioners being aggrieved by the direction of not to pay the salary, preferred their respective appeals. 24. The Division Bench ruled as under:- "11. Another aspect for availing the benefit on account of extension in service should not detain us further. 24. The Division Bench ruled as under:- "11. Another aspect for availing the benefit on account of extension in service should not detain us further. Obvious reason is that it is not even the case of the petitioners that they did not reach of superannuation. Upon completion of the age of 58 years in February, 1999, if on account of non completion of the academic year the service period is extended such period after reaching age of superannuation is treated as extension in service but such extension in service cannot be read to confer any right for retiral benefit or continuity in service or for any extra benefit therefrom except the salary and the perks to be paid during period of extension. Under the circumstances, when resolution dated 26.5.1999 was passed whereby the age is enhanced from 58 to 62 years the petitioners had already reached the age of superannuation and merely because the resolution came to be passed during the extended period of service, it cannot be said that any benefit would be available to the original petitioners for enhancement of the age of superannuation which in any case is prospective from the date of resolution i.e. after 26.5.1999. 12. In view of the aforesaid, we are unable to agree with the view taken by the learned Single Judge, hence, the Appeal preferred by the State deserves to be allowed and it is hereby allowed and the impugned judgment of the learned Single Judge is quashed and set aside. As the judgment of the learned Single Judge is quashed and set aside and the action of the government is maintained, naturally there will not be a question of paying any salary to the original petitioners and consequently the Appeal preferred by one of the original petitioner No. 5 would be required to be dismissed and hence dismissed. 13. In view of the above, Letters Patent Appeal No. 1897 of 2007 is allowed. Letters Patent Appeal No. 809 of 2008 is dismissed. Considering the facts and circumstances there shall be no order as to costs." 25. In view of the above, this application succeeds and is hereby allowed. The impugned order passed by the Tribunal is quashed. However, it is clarified that there shall not be any further deduction of any amount so far as the retiral benefits of the respondent No. 1 is concerned. In view of the above, this application succeeds and is hereby allowed. The impugned order passed by the Tribunal is quashed. However, it is clarified that there shall not be any further deduction of any amount so far as the retiral benefits of the respondent No. 1 is concerned. He shall continue to receive his pension in accordance with the rules, regulations and as fixed at the relevant point of time. 26. Rule is made absolute to the aforesaid extent. Direct Service is permitted.