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2016 DIGILAW 1430 (GUJ)

Anilbhai Jayantilal Sanghavi v. State of Gujarat

2016-07-21

R.SUBHASH REDDY, V.M.PANCHOLI

body2016
JUDGMENT : R. Subhash Reddy, J. 1. This Letters Patent Appeal is filed by the original petitioner in Special Civil Application No. 8557 of 2015 aggrieved by the order of the learned Single Judge dated 10.03.2016. 2. Special Civil Application No. 8557 of 2015 is filed with the prayers which read as under: "17(A) Admit this petition. (B) Quash and set aside the impugned order of respondent No.2 dated 23.3.2015 annexure J by holding it as illegal, unjust, improper, bad in law and violative of Article 14 and 21 of the Constitution of India and be further pleased to direct the respondents to extend the benefit of pension to the petitioner for the service rendered by him in Dhandhuka Nagarpalika for the period from 3.12.1956 to 23.7.1974 and the period of his service in Mahemdabad Nagarpalika from 1.4.1982 and 30.11.1996 the date on which he retired on his having reached the age of superannuation by directing the respondents to extend all such benefit of pension to the petitioner with interest at the rate of 12% per annum from the date of his retirement till the date of actual payment of such benefit to the petitioner with costs all throughout. (C) Pending admission, hearing and final disposal of this petition, to direct the respondents to pay provisional pension to the petitioner. (D) Grant such other and further reliefs deemed just and proper by this Court in the facts and circumstances of the case." 3. The appellant-petitioner joined as Secretary in Mahemdabad Nagarpalika on 01.04.1982 and he retired from service on 30.11.1996. Prior to joining Mahemdabad Nagarpalika, he had served as Secretary in Dhandhuka Nagarpalika during the period from 03.12.1956 to 23.07.1974. On account of heath problems it appears that he has resigned from service of Dhandhuka Nagarpalika in the year 1974. It is not in dispute that there was in a break in service during the period from 24.07.1974 to 31.03.1982. 4. The appellant-petitioner is drawing pension for his services rendered with Mahemdabad Nagarpalika, for the period between 1982 and 1996. Principally, his grievance is that though there was break in service during the period from 1974 to 1982, his previous service for the period from 1956 to 1974 should be clubbed for the purpose of award of pension. 4. The appellant-petitioner is drawing pension for his services rendered with Mahemdabad Nagarpalika, for the period between 1982 and 1996. Principally, his grievance is that though there was break in service during the period from 1974 to 1982, his previous service for the period from 1956 to 1974 should be clubbed for the purpose of award of pension. It is his case that in view of the provisions under Rule 327 of the Bombay Civil Services Rules, 1959, the whole period is to be treated for the purpose of calculation of pension notwithstanding the fact that his new service was not in continuance of the previous service. 5. At the first instance, the appellant-petitioner has filed Special Civil Application No. 3012 of 1998, which was disposed of by order dated 22.07.1998. The said order reads as under: "The say of the petitioner is that he had worked as a Clerk and later on as Secretary with the Dhanduka Nagar Panchayat during the period 3.12.1956 to 23.7.1994. He resigned on 23.7.1974 and joined the service of Mahemadabad Nagar Panchayat on 1.4.1982 and retired as Chief Officer of the said Nagar Panchayat on 30.11.1996. He made a representation to the respondents requesting to club the period of his service in the Dhanduka Nagar Panchayat for the purpose of retirement benefits. The learned Advocate states that there is a circular which permits clubbing of service, but he is not in a position to produce the same. He also submitted that such circulars are in possession of the respondents. In absence of such circular before this Court, it is not possible to decide the said controversy. In view of this, the respondents are directed to decide the petitioner's representation, if any pending, within a period of six weeks from the date of production of certified copy of this order. In case such a representation is not filed or not traceable, the petitioner may make fresh representation. 2. In view of this, the petitioner seeks permission to withdraw this petition. Permission granted. This Special Civil Application is dismissed as withdrawn. Direct Service is permitted." 6. Thereafter, he has filed another petition being Special Civil Application No. 11020 of 1998, which was dismissed vide order dated 18.10.1999. The order reads as under: "Heard learned counsel for the petitioner. 2. In view of this, the petitioner seeks permission to withdraw this petition. Permission granted. This Special Civil Application is dismissed as withdrawn. Direct Service is permitted." 6. Thereafter, he has filed another petition being Special Civil Application No. 11020 of 1998, which was dismissed vide order dated 18.10.1999. The order reads as under: "Heard learned counsel for the petitioner. Admittedly the petitioner has retired after serving at the Mahemadabad Nagar Panchayat from April 1982 to November 1996 he has made an application for calculating the service rendered by him at Dhandhuka Nagar Panchayat between December 1956 to July 1974 when he resigned from the services due to ill health. Admittedly he was not in service between 1974 and 1982. Petitioner claims that such power exists under some circular and he refers to Special Civil Application No.3012 of 1998. Petitioner was not even in a position to lay his hands and to specify the circular, to which he refers. Today also he is not in a better position. In these circumstances, I am not inclined to entertain this petition merely for the purpose of searching out a circular existence of which itself is doubtful. Dismissed." 7. Not satisfied with the order passed by the learned Single Judge in Special Civil Application No. 11020 of 1998, he preferred Letters Patent Appeal No. 1146 of 2001. The said Appeal came to be disposed of vide order dated 02.09.2002, the order reads as under: "Learned advocate Mr. Upadhyay, under instructions at this stage seeks permission to withdraw the main petition stating that the circular on which the claim is based is still not traced and made available and as and when it is obtained liberty may be reserved. In view of the above statement, the prayer as to withdraw the petition is granted. Since we find that the petition was premature. Accordingly, the petition shall stand disposed of and consequently this appeal would not survive." 8. In the second round to litigation the appellant-petitioner has preferred Special Civil Application No. 6142 of 2003 for the very same relief. The learned Single Judge vide order dated 19.12.2003 dismissed the said petition with cost. Aggrieved by the said order LPA No. 1376 of 2013 was filed, which also came to be dismissed vide order dated 28.07.2014. Operative portion of the said order reads as under: "12. The learned Single Judge vide order dated 19.12.2003 dismissed the said petition with cost. Aggrieved by the said order LPA No. 1376 of 2013 was filed, which also came to be dismissed vide order dated 28.07.2014. Operative portion of the said order reads as under: "12. In view of the aforesaid decisions of the Apex Court, we are in complete agreement with the view taken by the learned Single Judge. We find no infirmity in the view taken by the learned Single Judge. 13. With regard to the submission of the appellant that according to Rule 327 of the Bombay Civil Services Rules, the appellant would be entitled for pension is concerned, we are not entering into the merits of the matter for the simple reason that for the same cause of action, earlier writ petitions of the appellant have been dismissed and hence, the third writ petition for the same cause of action is not maintainable. 13. In the result, the present Letters Patent Appeal fails and is accordingly dismissed. There shall be no order as to costs." 9. As against these orders passed by this Court, the matter was carried in appeal before the Hon'ble Supreme Court in which directions were issued by the Hon'ble Supreme Court to consider the representation filed by the appellant-petitioner which was pending consideration before the authority. Consequent on the directions issued by the Hon'ble Supreme Court, orders were passed by the competent authority rejecting the claim of the appellant-petitioner. The same is challenged in the present Special Civil Application No.8557 of 2015. The said writ petition is also dismissed by the learned Single Judge, by recording finding that no case is made out to interfere with the order passed by the State Government. Further the learned Single Judge opined that any interference would amount to passing an order by sitting in appeal over the earlier judgments of this Court rendered by the learned Single Judge as well as by the Division Bench. 10. In this appeal, it is contended by Shri Shalin Mehta, learned senior counsel appearing for the appellant that in view of Rule 327 of the Bombay Civil Services Rules, 1959, the appellant-petitioner is entitled to computation of his earlier service for the purpose of pension. Said Rule 327 reads as under: "327. 10. In this appeal, it is contended by Shri Shalin Mehta, learned senior counsel appearing for the appellant that in view of Rule 327 of the Bombay Civil Services Rules, 1959, the appellant-petitioner is entitled to computation of his earlier service for the purpose of pension. Said 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 reemployed in Government service, be permitted to count his new service as qualifying for a second position. 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." 11. Notwithstanding the fact that in the earlier round of litigation claim of the appellant-petitioner was rejected by this Court, we have also perused Rule 327 of the Bombay Civil Services Rules, 1959 which was extracted above, to consider the claim of the appellant-petitioner for computation of his service for the purpose of pension. From a reading of the aforesaid rule, we are of the view that such benefit would extend only for Government servant, who has rendered pensionable service before re-employment. Having regard to the facts of the case, we are of the view that even by extending the benefit of Rule 327 of the Bombay Civil Services Rules, 1959, the appellant-petitioner will not fit into the rule to accept his claim. 12. For the aforesaid reasons and further earlier rejection orders passed for the very same claim became final, we do not find any merit in this appeal. We are in complete agreement with the view taken by the learned Single Judge. 13. For the aforesaid reasons and the reasons recorded by the learned Single Judge, this appeal is devoid of merits. The Letters Patent Appeal is accordingly dismissed. No order as to cost.