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2016 DIGILAW 1590 (GUJ)

Ishwarbhai Amthabhai Parmar v. State of Gujarat

2016-08-02

J.B.PARDIWALA

body2016
JUDGMENT : J.B. Pardiwala, J. 1. This is one of the grossest cases of lethargy on the part of the State Government, I have come across in the present sitting. 2. By this writ application under Article 226 of the Constitution of India, the writ applicant, a retired primary teacher, has prayed for the following reliefs; "(A) Your Lordships may be pleased to admit this petition; (B) Your Lordships may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction in the nature of mandamus quashing and setting aside the impugned order dated at Annexure-G to the petition; (C) Your Lordships may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction in the nature of mandamus directing the respondent-authorities to make payment of the pension fixed and received till the impugned communication by way of interim direction till and pending the hearing and final disposal of this petition. (D) Your Lordships may be pleased to stay the further operation, implementation and execution of the order dated Annexure-G to the petition passed by the respondent No. 2 herein during the pendency of this petition. (E) That this Honourable court may be pleased to direct the respondent No. 1 to make counter endorsement and to forward the no event certificate and last pay certificate to the pension authority and to direct the respondents to make payment regularly of the pension fixed and received from time to time. (F) Be pleased to grant any such other and further reliefs as deemed just and proper in the facts and circumstances of the case and in the interests of justice. (G) Be pleased to provide for the costs. pm" 3. The facts of this case may be summarized as under: 3.1 The writ applicant was appointed on 17th July, 1951 as a primary teacher in the Primary School at Siddhpur. After having worked as a teacher at different places, he, ultimately came to be appointed as a professor. According to the writ applicant, he served as a professor between 1st June 1988 and 7th April, 1989 in the Sardar Vallabhbhai Patel Arts College, situated at Relief Road, Ahmedabad. He attained superannuation on 7th April, 1989. 3.2 By an order dated 18th August, 1989, the pension of the petitioner was fixed at Rs. 2038/- with effect from 8th April, 1989. He attained superannuation on 7th April, 1989. 3.2 By an order dated 18th August, 1989, the pension of the petitioner was fixed at Rs. 2038/- with effect from 8th April, 1989. 3.3 On 13th December, 1990, the respondent No. 2 called for certain information from the college. This information was for the purpose of fixing the final pension. 3.4 On 28th December, 1992, the respondent No. 2 addressed a letter to the Pension Sanctioning Authority along with the no event certificate and Last Pay Certificate. 3.5 On 14th February, 1996, the treasury office informed the writ applicant to submit the last pay certificate and the no event certificate once again. 3.6 On 15th December, 1996, the writ applicant submitted the said two documents. The respondent No. 2, thereafter, informed the writ applicant vide letter dated 11th September, 1997 that an amount of Rs. 1,47,281.57ps. was recoverable paid to the writ applicant by way of excess amount of pension. Hence, this writ application. 4. This writ application is of the year 2002. It has been notified for 68 times. There is no affidavit-in-reply at the end of any of the respondents. 5. On 19th December, 2002, notice was issued to the respondents, returnable on 4th February, 2003. 6. On 7th July, 2004, the following order was passed by this Court. "Heard the learned Advocates. Rule. Learned A.G.P. Mr. Dipen Desai waives service of rule for the respondents. 1. The petitioner, feeling aggrieved by the order dated 11th September, 1997 passed by the respondent No. 2 seeking recovery of Rs. 1,47,281.57ps being the amount of excessive pension paid to the petitioner, has preferred the present petition. 2. It is the grievance of the petitioner that though he has retired from service as far back as in the year 1989, final pension order is not yet made. The Joint Director of Education had made order dated 18th August, 1989 sanctioning a provisional monthly pension of Rs. 2038/- and gratuity in the sum of Rs. 60,500/-. Though final pension order is not yet made, the petitioner is called upon to refund the aforesaid sum of Rs. 1,47,281.57ps. Mr. Champaneri has also submitted that since the date of the order, the petitioner is not paid pension; nor the petitioner's representations have been answered. 3. Though served the respondents have not contested the petition. 60,500/-. Though final pension order is not yet made, the petitioner is called upon to refund the aforesaid sum of Rs. 1,47,281.57ps. Mr. Champaneri has also submitted that since the date of the order, the petitioner is not paid pension; nor the petitioner's representations have been answered. 3. Though served the respondents have not contested the petition. Pending this petition, commencing from 1st August 2004, the respondents are directed to pay monthly pension to the petitioner in accordance with the final pension order, if any. In absence of final pension order, the respondents shall pay monthly pension to the petitioner in accordance with the provisional pension order dated 18th August, 1989. S.O. to 11th August, 2004. 4. The respondents shall report the compliance of this order on the next date of hearing. The Registry is directed to send the writ forthwith." 7. Mr. Goutam, the learned AGP appearing for the respondents submitted that the amount of Rs. 2038/- towards the pension was fixed on the basis of the fact that the writ applicant had put in more than 33 years of service. However, at a later stage, it came to the notice of the authorities concerned that the writ applicant had, in fact, put in only 16 years of service, i.e., between 1972 and 1989. In such circumstances, according to the learned AGP, the amount of Rs. 1046/- towards the pension was rightly fixed, and the excess amount paid, is to be recovered from the writ applicant. 8. According to the learned counsel appearing for the writ applicant, the stance of the respondents that his client had worked only for 16 years, is without any basis and contrary to the record. The learned counsel invited my attention to page-23, Annexure-B to this petition. This is a letter dated 18th July, 1989 addressed by the College to the Director, Higher Education, giving certain particulars of the writ applicant. 9. It appears on plain reading of the said letter that the writ applicant had joined the service on 17th July, 1951. The service book for the service between 17th July, 1951 and 13th June, 1959 was also annexed along with the said letter. 9. It appears on plain reading of the said letter that the writ applicant had joined the service on 17th July, 1951. The service book for the service between 17th July, 1951 and 13th June, 1959 was also annexed along with the said letter. In the said letter, it has also been stated that for the period between 15th June, 1959 and 11th November, 1961, the amount towards the provident fund was not deducted and, therefore, the same has not been deposited with the State Government. It has been further stated that there is a reference of the service being put in by the writ applicant between 13th November, 1961 and 30th June, 1969 in the "C" Form as well as the service book. Thus, prima facie, it appears that the stance of the respondents that the writ applicant had put in 16 years of service, does not appear to be correct. It appears that no proper inquiry has been done in this regard. Unfortunately, as on date, the writ applicant is aged about 87 years. He is not in a condition to personally appeared before he authorities and furnished the necessary information in this regard. I am of the view that the respondents should undertake a detailed inquiry once again in this regard and verify the number of years of service put in by the writ applicant at the different places. If it is permissible under the rules or regulations to club the services, then the authorities may look into the same and take an appropriate decision in this regard. I am saying so because, according to the learned AGP, the writ applicant might not have rendered his service at one particular place only. Of course, there is no basis for making such a submission. 10. The officers, who are present in the Court today, pointed out that on the basis of the final pension which was fixed at Rs. 1046/- per month at the relevant point of time, is now Rs. 20,904/-. Today, the writ applicant is receiving the pension of Rs. 20,904/-. If 33 years of service is to be believed, on the basis of which the provisional pension of Rs. 2038/- per month was fixed, then probably the writ applicant is entitled to receive almost double the amount of pension, which he is receiving as on date. 11. 20,904/-. Today, the writ applicant is receiving the pension of Rs. 20,904/-. If 33 years of service is to be believed, on the basis of which the provisional pension of Rs. 2038/- per month was fixed, then probably the writ applicant is entitled to receive almost double the amount of pension, which he is receiving as on date. 11. It is very distressing to note that at the fag end of the life, the writ applicant has to still fight for his pension. 12. In view of the above, this writ application is allowed in part. The impugned order, Annexure-G to this petition dated 11th September, 1997, is hereby ordered to be quashed. 13. It is very disturbing to note that even the impugned order was passed without giving any opportunity of hearing to the writ applicant. He was put to terms that unless and until he deposits Rs. 1,47,281.57ps., his final pension would not be fixed. 14. The respondents are directed to immediately undertake an appropriate detailed inquiry as regards the total length of service put in by the writ applicant, and on the basis of the same, shall pass appropriate final order, re-fixing the pension. Ultimately, if the inquiry reveals that the original pension of Rs. 2038/- was rightly fixed, then the writ applicant shall also be paid the difference of the pension amount so far within a period of two months from the date of the receipt of the writ of the order. It is clarified that till appropriate decision is taken, the writ applicant shall keep on receiving the amount of pension which is being paid to him as on date. In any view of the matter, there shall be no recovery even, ultimately, if the authorities reach to the conclusion that the amount of Rs. 2038/- towards the provisional pension was wrongly fixed. 15. With the above, this writ application is disposed of. Rule is made absolute to the aforesaid extent. Direct service is permitted.