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2016 DIGILAW 1395 (GUJ)

Ambubhai K. Patel v. S. R. Patel

2016-07-20

J.B.PARDIWALA

body2016
JUDGMENT : J.B. Pardiwala, J. 1. By this writ application under Article 226 of the Constitution of India, the petitioner (since deceased), a former teacher of the Non-Government Secondary School, now through his legal heir, has prayed for the following reliefs; "(A) This Hon'ble High Court under Articles 14, 16 and 226 of the Constitution of India, be pleased to issue an appropriate writ or order and direct the Respondents to start his pension forthwith and also due amount of arrears w.e.f 12.06.1978 with 18% of the interest to the petitioner forthwith and also be pleased to quash and set aside the decision at Annexure "E" dated 31.07.2001; (B) This Hon'ble High Court may be pleased to direct by way of interim mandatory order/direction to start his provisional pensionary benefits, during the pendency of this Special Civil Application in the interest of justice. (C) This Hon'ble High Court may be pleased to call for the necessary records and proceedings pertaining to the petitioner's service from the office of the Respondents. (D) This Hon'ble High Court may be pleased to declare that the decision dated 31.07.2001 at Annexure "E" is illegal and void and the petitioner is entitled to the pension w.e.f. 12.06.1978 with 18% interest. (E) Such other and further relief/reliefs that may be deemed fit and proper and just be granted in the interest of justice." 2. The case of the petitioner may be summarized as under; 2.1 The petitioner served in the Primary School at Village Ambaliyara, Ta: Kapadwanj between June 1948 and 1953. Between June 1954 and 14th June, 1955, he served at the Sarvajanik Vidyalaya, Barejadi as an Assistant Teacher. Between 15th June, 1955 and 10th June, 1957, he served in the M.K. High School, Petlad. 2.2 Between 10th June, 1957 and 9th June, 1963, he served in the respondent No. 1-School at Kapadwanj. Between 10th June, 1963 and 12th June, 1966, he served as an Assistant Teacher in the Sharda Mandir, Kapadvanj. He, once again, joined the respondent No. 1-School and served between 12th June, 1966 and 12th June 1978. On 12th June, 1978, he tendered the resignation. The resignation was accepted. Between 10th June, 1963 and 12th June, 1966, he served as an Assistant Teacher in the Sharda Mandir, Kapadvanj. He, once again, joined the respondent No. 1-School and served between 12th June, 1966 and 12th June 1978. On 12th June, 1978, he tendered the resignation. The resignation was accepted. 2.3 On 24th December, 1997, the State Government issued a circular stating that those employees serving with the Non-Government Secondary Schools between 8th October, 1970 and 14th September, 1978 had no option to voluntarily retire from the service even after putting in 25 years of service and, therefore, such teachers had left the service by tendering the resignation. The circular further clarified that those teachers could not avail of the benefit of the pension because of their resignation from the service. The Government thought fit to reconsider the cases of such teachers on the premise that since they had no option to voluntarily retire and were left with no other option but to resign from the service, their cases should be considered for the purpose of pension. 2.4 The petitioner applied pursuant to the said circular within a month from the date of issue of the same. 2.5 It appears that he had come before this Court by filing Special Civil Application No. 3335 of 2001, which came to be disposed of on 4th May, 2001 in the following terms; "In this petition under Article 226 of the Constitution the petitioner has prayed for a writ of mandamus to direct the respondents to pay the petitioner pension by taking into account the services rendered by him to various schools from June 1954 till 12/6/1978 as per the particulars, which are given by the petitioner in the petition as well as in the representation (at Annexure-C) to the Commissioner for Higher Education (Schools) and the representation dated 26/1/1998 (at Annexure-D) to the District Education Officer, Kheda at Nadiad. The petitioner's grievance is that the said representations are not yet decided inspite of the fact that by circular dated 24/12/1997 (Annexure-B) the Commissioner of Higher Education has laid down various principles for giving the pensionary benefits to persons who retired between 8/10/1970 and 14/9/1978. 2. The petitioner's grievance is that the said representations are not yet decided inspite of the fact that by circular dated 24/12/1997 (Annexure-B) the Commissioner of Higher Education has laid down various principles for giving the pensionary benefits to persons who retired between 8/10/1970 and 14/9/1978. 2. In view of the above, it would be just and proper to dispose of this petition with a direction to respondent No. 5 - Commissioner of Higher Education (Schools) and respondent No. 4 - District Education Officer to consider and decide the petitioner's representations at Annexures - C and D and supplementary representation if the petitioner desires to make one within a period of two weeks from today. The petitioner's representations shall be decided by respondent Nos. 5 and 4 within two months from the date of receipt of the writ of this Court or a certified copy of this order, whichever is earlier. 3. In case the respondents are inclined not to accept petitioner's representations, the respondents shall pass a reasoned order and communicate the same to the petitioner by R.P.A.D. In case the decision is adverse to petitioner, the petitioner will be at liberty to challenge the same before an appropriate forum. The petition is disposed of accordingly. Direct service is permitted." 2.6 Pursuant to the directions issued by this Court referred to above, the Commissioner, Schools, State of Gujarat, passed an order dated 31st July, 2001, Annexure-E to this petition, page-25 holding that the petitioner was not entitled to receive pension because he had resigned from the service. Hence, this writ application. 3. Having heard the learned counsel appearing for the parties and having considered the materials on record, I am of the view that the impugned order has not taken care of the circular dated 24th December, 1997 issued by the State Government. The circular dated 24th December, 1997, which is at page-14, Annexure-A was issued with some objective. The object was to provide the benefit of the pension to those teachers who had worked between 1970 and 1978 and had no option to voluntarily retire. It appears that the only ground assigned in the impugned order is that as the petitioner had resigned from the service even after putting in more than 20 years of service, he is not entitled to receive pension. There is a fine distinction between the "resignation" and "voluntary retirement". 4. It appears that the only ground assigned in the impugned order is that as the petitioner had resigned from the service even after putting in more than 20 years of service, he is not entitled to receive pension. There is a fine distinction between the "resignation" and "voluntary retirement". 4. The Apex Court in the case of M.R. Prabhakar and Ors. vs. Canara Bank & Ors., reported in (2012) 9 SCC 671 has given the difference between the resignation and retirement/voluntary retirement which reads as under; "14. The appellants, in our view, did not retire from the service, but resigned from the service. Appellants tried to build up a case that in the absence of a legal definition of voluntary retirement or in the absence of legally prescribed consequences of resignation, it must be understood in the sense of voluntary relinquishment of service. It was pointed out that there can be no distinction between voluntary retirement and resignation and those expressions are to be understood in their ordinary literal sense. 15. We find it difficult to accept the contentions raised by the appellants. There is no ambiguity in the definition clause under Regulation 2(y) which has statutorily brought in the voluntarily retirement as retirement. Though the concept of resignation is well known in Service Jurisprudence, the same has not been brought within the definition of retirement under Regulation 2(y). Further, the words retired and retirement have some resemblance in their meanings, but not resignation. Regulation 3(1)(a) specifically used the expression retirement and the expression resignation has not been incorporated either in the definition clause or in Regulation 3(1)(a). We need not labour much on this issue, since the difference between these two concepts resignation and retirement, in the context of the same Banking Regulations 1995, came up for consideration before this Court in Sanwar Mal (supra), wherein this Court has distinguished the words resignation and retirement and held as follows 9. ..........The words "resignation" and "retirement" carry different meanings in common parlance. An employee can resign at any point of time, even on the second day of his appointment but in the case of retirement he retires only after attaining the age of superannuation or in the case of voluntary retirement on completion of qualifying service. ..........The words "resignation" and "retirement" carry different meanings in common parlance. An employee can resign at any point of time, even on the second day of his appointment but in the case of retirement he retires only after attaining the age of superannuation or in the case of voluntary retirement on completion of qualifying service. The effect of resignation and retirement to the extent that there is severance of employment but in service jurisprudence both the expressions are understood differently. Under the Regulations, the expressions "resignation" and "retirement" have been employed for different purpose and carry different meanings. The pension scheme herein is based on actuarial calculation; it is a self financing scheme, which does not depend upon budgetary support and consequently it constitutes a complete code by itself. The scheme essentially covers retirees as the credit balance to their provident fund account is larger as compared to employees who resigned from service. Moreover, resignation brings about complete cessation of master and servant relationship whereas voluntary retirement maintains the relationship for the purposes of grant of retiral benefits, in view of the past service. Similarly, acceptance of resignation is dependent upon discretion of the employer whereas retirement is completion of service in terms of regulations/rules framed by the bank. Resignation can be tendered irrespective of the length of service whereas in the case of voluntary retirement, the employee has to complete qualifying service for retiral benefits ......." (emphasis added) In the above mentioned judgment, this Court has also held that there are different yardsticks and criteria for submitting the resignation, vis-a-vis voluntary retirement and exceptions thereof. In that context, the scope of Regulation 22 of Regulations 1995 was also considered and the Court held as follows: 9. .........In our view, Regulation 22 provides for disqualification of employees who have resigned from service and for those who have been dismissed or removed from service. Hence, we do not find any merit in the arguments advanced on behalf of the respondent that Regulation 22 makes an arbitrary and unreasonable classification repugnant to Article 14 of the Constitution by keeping out such class of employees. The view we have taken is supported by the judgment of this Court in the case of Reserve Bank of India v. Cecil Dennis Solomon, (2004) 9 SCC 461 . Before concluding we may state that Clause 22 is not in the nature of penalty as alleged. The view we have taken is supported by the judgment of this Court in the case of Reserve Bank of India v. Cecil Dennis Solomon, (2004) 9 SCC 461 . Before concluding we may state that Clause 22 is not in the nature of penalty as alleged. It only disentitles an employee who has resigned from service from becoming a member of the Fund. Such employees have received their retiral benefits earlier. The pension scheme, as stated above, only provides for a second retiral benefit. Hence there is no question of penalty being imposed on such employees as alleged. The pension scheme only provides for an avenue for investment to retirees. They are provided avenue to put in their savings and as a term or condition which is more in the nature of an eligibility criteria the scheme disentitles such category of employees out of it." 5. Thus, so far as the difference between the resignation and retirement/voluntary retirement is concerned, the same has been succinctly explained by the Supreme Court in the judgment referred to above. Thus, the controversy here is in a very narrow compass. Whether the petitioner was entitled to the benefit of the circular dated 24th December, 1997. The following facts are not in dispute; (i) Between 8th October, 1970 and 14th September, 1978, the petitioner was in service. (ii) He resigned from the service on 12th June, 1978. (iii) Between 8th October, 1970 and 14th September, 1978, there was no scheme applicable to the teachers of the Non-Government Secondary Schools so far as the voluntary retirement is concerned. (iv) All those teachers even after putting in more than 25 years of service, if they wanted to retire, the only option was to tender the resignation. 6. Taking the above into consideration, the Government thought fit to extend the benefit, and that is how the circular dated 24th December, 1997 came into picture. 7. In my view, the circular has not been appreciated in true perspective or rather not applied or considered properly in the facts of this case. 8. Mr. Goutam, the learned AGP, has placed strong reliance on the decision rendered by a Division Bench of this Court in the case of Vijaya Bank vs. Chandrakant Devjibhai Patel, Letters Patent Appeal No. 183 of 2013, decided on 24th April, 2013. 8. Mr. Goutam, the learned AGP, has placed strong reliance on the decision rendered by a Division Bench of this Court in the case of Vijaya Bank vs. Chandrakant Devjibhai Patel, Letters Patent Appeal No. 183 of 2013, decided on 24th April, 2013. There cannot be any debate so far as the proposition of law as discussed and explained by the Division Bench is concerned. I am only concerned with the circular of the State Government and its applicability. 9. As a result, the impugned order dated 31st July, 2001 is hereby quashed. The matter is remitted to the Commissioner, Schools, State of Gujarat for fresh consideration of the matter, keeping in mind the observations made by this Court in this judgment. Let such decision be taken within a period of two months from the date of the receipt of the writ of the order. Rule is made absolute to the aforesaid extent. 10. Mr. Ravindra Shah, the learned counsel has appeared on behalf of the respondent No. 3. According to him, after the demise of Mr. Desai, the learned counsel appearing for the respondent No. 2, he has been instructed to appear on behalf of the respondent No. 2 also, as well as the respondent No. 1. The Registry shall accept the V.P. of Mr. Shah, the learned counsel appearing on behalf of the respondents Nos. 1 and 2. Direct service is permitted.