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2016 DIGILAW 1687 (GUJ)

Vignaben Jayantilal Joshi v. State of Gujarat

2016-08-08

J.B.PARDIWALA

body2016
JUDGMENT : J.B. Pardiwala, J. 1. The writ applicants were appointed as the 'Shikshan Sahayaks' in accordance with the policy laid down by the Government in its resolution dated 2nd July 1999. They were appointed in the fixed pay of Rs. 4,500/- per month. On completion of the five years of service, they would be appointed on regular basis in the regular pay scale. 2. It is the case of the writ applicants that they came to be appointed as the 'Shikshan Sahayaks' and resumed his duties on 12th July 2000 and 18th January 2003 respectively. Before completion of the initial period of five years, the Government issued a resolution dated 18th March 2005 by which the State Government adopted the policy of the Central Government to enforce the newly defined Contributory Pension Scheme in the State of Gujarat. As per the Government Resolution dated 18th March 2005, all those employees appointed on or after 1st April 2005 would be covered under the Scheme. 3. The grievance of the writ applicants is that when they were appointed in the fixed pay, it was promised to them that on completion of the five years of service, they would be included in the Contributory Pension Scheme. A particular amount from their salaries would be deducted and the same would be credited in their accounts. They are aggrieved by the Notification dated 30th March 2010 issued by the Finance Department, which reads as under: "NOTIFICATION Finance Department Sachivalaya, Gandhinagar, Dated the 30th March, 2010. No.(GN-1)NPN-2003-GOI-10P:- In exercise of the powers conferred by the proviso to Article 309 of the Constitution of India, the Governor of Gujarat hereby makes the following rules further to amend the Gujarat Civil Services (Pension) Rules, 2002, namely:- 1. These rules may be called the Gujarat Civil Services (Pension) (Amendment) Rules, 2010. 2. In the Gujarat Civil Services (Pension) Rules, 2002, in rule-2, after clause (b), the following proviso shall be added, namely:-"(c) Provided that these rules, shall not apply to those members of services and holders of posts, who have been recruited on or after the 1st April, 2005". By order and in the name of the Governor of Gujarat," 4. Thus, it appears that before the writ applicants could complete the initial five years of service and were absorbed on regular basis, the above noted Notification came to be issued. By order and in the name of the Governor of Gujarat," 4. Thus, it appears that before the writ applicants could complete the initial five years of service and were absorbed on regular basis, the above noted Notification came to be issued. As a result, they could not avail of the benefit of the Pension Scheme. Mr. N.D. Nanavaty, the learned senior advocate appearing for the writ applicants vehemently submitted that in the midst of the employment, the State Government could not have altered the service conditions to the prejudice of his clients. According to him, his clients had accepted the employment having regard to the benefits which they would have derived of the Pension Scheme. Those benefits could not have been withdrawn by way of an amendment altering the service conditions. 5. Mr. Nanavaty invoked the doctrine of legitimate expectation. He, therefore, prays that there being merit in the writ application, the same be allowed and the reliefs as prayed for be granted. 6. On the other hand, the writ application has been vehemently opposed by the learned A.G.P. appearing for State of Gujarat. The learned A.G.P. would submit that the doctrine of legitimate expectation has no application at all in the case in hand. He would submit that there is no right in any employee of the State to claim that the rules governing conditions of his service should be forever the same and cannot be altered at any point of time. He would submit that the initial five years of service was on a fixed salary and during that period, no other benefit, except the fixed pay was being given to the writ applicants. He would submit that not a single penny was being deducted from the fixed salary towards the Pension Scheme. By the time, the writ applicants came to be regularized in service, the State Government thought fit to change its policy by passing the Notification dated 30th March 2010. According to the learned A.G.P., the writ applicants could be said to have been recruited on or after the 1st April 2005 on regular basis i.e. on completion of five years of initial service on fixed pay. 7. In such circumstances referred to above, he prays that there being no merit in this writ application, the same be rejected. 8. According to the learned A.G.P., the writ applicants could be said to have been recruited on or after the 1st April 2005 on regular basis i.e. on completion of five years of initial service on fixed pay. 7. In such circumstances referred to above, he prays that there being no merit in this writ application, the same be rejected. 8. The learned A.G.P. has placed reliance on the following averments made in the affidavit-in-reply filed on behalf of the State Government: "5. As transpires from the plain reading of the memorandum of the petition, the petitioner herein has sought to invoke an extraordinary jurisdiction of this Hon'ble High Court under Article 226 of the Constitution of India seeking a direction to quash and set aside the newly defined contributory pension scheme dated 18.03.2005 and also a direction to hold that the petitioner is governed by earlier policy and rules under the Gujarat Civil Service (Pension) Rues, 2002 as well as the Bombay Civil Services Rules, 1959. So far as the challenge to the earlier part viz. Quashing and setting the new defined contributory pension scheme dated 18.03.2005 is concerned, the petitioner has no authority to question the legislative wisdom of the State of Gujarat in introducing a scheme which admittedly was introduced after the directives issued by Union of India. (In addition thereto, by virtue of the present scheme the provisions of Gujarat Civil Service (Pension) Rules, 2002 are sought to be amended and therefore the same would qualify as subordinate legislation under Article 162 of the Constitution of India). So far as the later portion viz. direction to hold that the petitioner is governed by earlier policy and Rules of 2002 and Rules of 1959 is concerned, the petitioner does not have even a semblance of case at his command in seeking direction of aforesaid nature. 6. The petitioner was appointed to the post of Shikshan Sahayak in the fixed pay of Rs. 4500/- per month. The appointment order clearly envisages that the petitioner would remain on fixed pay till completion of the said period of probation. It is further mentioned in the said order that the petitioner would be entitled to the fixed salary during the said period. 4500/- per month. The appointment order clearly envisages that the petitioner would remain on fixed pay till completion of the said period of probation. It is further mentioned in the said order that the petitioner would be entitled to the fixed salary during the said period. As transpires from the order of appointment the petitioner completed the service of probation on the said date and therefore by virtue of the said order, the service of the petitioner came to be confirmed and the petitioner was put in the pay scale of Rs. 5000-8000/- with effect from the date of the order. It would be pertinent to mention at this juncture that the said order of appointment clearly stipulates that the effect from the date of the initial appointment (probation period) and therefore for all practical purposes the petitioner would be born in the cadre after completion of probation period and therefore past service viz. Period of probation cannot be reckoned for any purpose. 7. As transpires from the order of appointment, the service of the petitioner was liable to be terminated at any point of time during the period which he continued on fixed pay and therefore the said period of service cannot be considered, more particularly when the said period has not been considered by the authority while confirming the service of the petitioner. 8. During the said period of probation, a scheme viz. New Defined Contributory Pension Scheme came to be introduced by the State of Gujarat. The said scheme is in consonance with the scheme introduced by the Central Government for the employees serving therein. It is provided in the scheme introduced by the State Government that the said scheme would apply to the employees who are appointed on or after 1.4.2005., At this juncture it would be pertinent to mention that the appointment as envisaged in the said scheme of the State Government applies to the regular appointments on a pay scale. Clause 3 and 4 of the said scheme clearly defines that appointment mentioned therein relates to the appointment in a regular pay scale. Clause 5 of the said scheme provides for the amendment in the corresponding Rules. Therefore, the reliance sought to be placed by the petitioner on the provisions and rules Civil Service (Pension) Rules, 2002 is absolutely ill founded. 9. Clause 5 of the said scheme provides for the amendment in the corresponding Rules. Therefore, the reliance sought to be placed by the petitioner on the provisions and rules Civil Service (Pension) Rules, 2002 is absolutely ill founded. 9. So far as the challenge to the scheme on the ground of retrospective operation is concerned the same is not only misconceived but all ill founded in as much as the said scheme clearly provides the cut off date for its operation viz. 1.4.2005. Since the petitioner has been confirmed subsequent to the said cut off date, the case of the petitioner would squarely fall under the said scheme. As mentioned herein above the petitioner came to be confirmed upon completion of probation and therefore the period during which he was on fixed pay, cannot be considered for the exclusion of operation of the said scheme. 10. The petitioner has sought to asset his right of pension under the Rules of 1959 and Rules of 2002. The assertion of right is also ill founded in as much as the present scheme has an effect of amending the provisions of Rules of 2002 and therefore a case of the petitioner and alike persons would, now, be governed by the provisions of the scheme. 11. It would not be out of place to mention at this juncture that the appointment of the petitioner was made in light of the resolution dated 2.7.1999. It is clearly provided in the said Government Resolution that the person appointed as Shikshan Sahayak would be entitled to all the benefits from the 6th year of his service. In view of this specific provision, the tenure of service of probation cannot be considered for any purpose. Even for the purpose of retirement benefit the said period would commence from the date of the confirmation of such person. 12. So far as the claim of right on the basis of the legitimate expectation is concerned the same has no application in the instant case in as much as the requirements for assertion of right on the basis of legitimate expectation are clearly missing. The policy of the Government does not in any manner give assurance to any employee of the State Government that the benefits flowing therefrom would remain absolute and constant. The policy of the Government does not in any manner give assurance to any employee of the State Government that the benefits flowing therefrom would remain absolute and constant. The benefits flowing from the rules are always subject to future contingencies and policy of the State Government is always subject to amendment keeping in mind those future contingencies. As such, there is no indefeasible right in favour of the petitioner that governing conditions of service should remain the same and constant. As held by the Hon'ble Supreme Court in case of Tamilnadu Electricity Board and Anr v. Tamilnadu Electricity Board Thozhilalar Aykkiya Sangam, inter alia, reported in (2008) 3 SCC 359 ; "11. In this connection, our attention was invited to the decision of this Court in P.U. Joshi v. Accountant General and this Court has very categorically stated that: (SCC p. 639, para 10) "10... There is not right in any employee of the State to claim that rules governing conditions of his service should be forever the same as the one when he entered the service for all purposes and except for ensuring or safeguarding the rights or benefits already examined, acquired or accrued at a particular point of time, a government servant has no right to challenge the authority of the State Government to amend, alter and bring into force new rules relating to even an existing service." xx xx xx "15. A group of petitions mentioned above have been filed before the Hon'ble High Court by the petitioners who were appointed as "Shikshan Sahayaks" in the fixed salary before the "New Defined Contribution Pension Scheme" was introduced with effect from 1.4.2005 vide Finance Department, Government Resolution dated 18.3.2005 and who were appointed in regular pay-scale thereafter. As provided under paragraph 2(4) of the said Government Resolution this "New Defined Contribution Pension Scheme" is applicable to the "Teaching and non-teaching employees already appointed or to be appointed under the "Vidya Sahayak" or 'Shikshan Sahaya" scheme of the Education Department of the State Government as well as teaching and non-teaching employees appointed under the aforesaid scheme who would get salary in the regular pay-scale on or after 1st April, 2005". Having perused these petitions, the grounds/prayers mentioned in the petitions are similar and common having challenged the Finance Department, Government Resolution dated 18.3.2005. Having perused these petitions, the grounds/prayers mentioned in the petitions are similar and common having challenged the Finance Department, Government Resolution dated 18.3.2005. The provision in regard to the petitioners in the said Government Resolution is clear in content and this "New Defined Contribution Pension Scheme" is applicable to the petitioners as they were appointed as "Shikshan Sahayaks" before 1st April 2005 and they have been appointed in regular pay-scale thereafter. Hence, there is no ambiguity in its application to the petitioners as they specifically are covered thereunder. Hence, the demand of the petitioners to quash and set aside the Finance Department, Government Resolution dated 18.3.2005 is unjustified and requires to be rejected, being inconsistent with the specific provisions made in respect of the petitioners. 16. Initially the Government of Gujarat introduced the said "New Defined Contribution Pension Scheme" vide Finance Department Government Resolution dated 18.3.2005 but subsequently it has been made statutory with the issuance of the Finance Department Government Resolution dated 30.3.2002, which is annexed herewith as Annexure R-1. It is said that the "New Defined Contribution Pension Scheme" adopted by the State Government is on the basis of the similar scheme introduced by the Government of India with effect from 1.1.2004." 9. 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 writ applicants are entitled to the reliefs prayed for in this writ application. 10. In my view, the writ applicants have no case worth the name. They seek to challenge a policy decision taken by the State Government. The decision cannot be said to be discriminatory, arbitrary or violative of Article 19(1)(g) of the Constitution of India in any manner. The learned A.G.P. is right in his submission that there is no right in any employee of the State to claim that the rules governing conditions of his service can never be changed and should be forever the same as the one he entered the service for all purposes. The conditions of service are to be protected and the rights of benefits flowing thereof should be safeguarded, provided they are already earned, acquired or accrued at a particular point of time. 11. In the case in hand, no right or benefit could be said to have been earned, acquired or accrued by the writ applicants. 12. The conditions of service are to be protected and the rights of benefits flowing thereof should be safeguarded, provided they are already earned, acquired or accrued at a particular point of time. 11. In the case in hand, no right or benefit could be said to have been earned, acquired or accrued by the writ applicants. 12. In this connection, my attention was invited to the decision of the Supreme Court in the case of P.U. Joshi and others v. Accountant General, Ahmedabad and others reported in 2003(2) SCC 632. The Supreme Court has very categorically stated that: "There is no right in any employee of the State to claim that rules governing conditions of his service should be forever the same as the one when he entered service for all purposes and except for ensuring or safeguarding rights or benefits already earned, acquired or accrued at a particular point of time, a government servant has no right to challenge the authority of the State to amend, alter and bring into force new rules relating to even an existing service." 13. The Doctrine of legitimate expectation will also have no application in the present case. 14. When a challenge is made on the basis of the doctrine of legitimate expectation, the petitioner is not entitled to claim the relief straightway in the absence of any crystallized right. A person who puts forward his claim on the doctrine of legitimate expectation, in the first instance, must satisfy that there is a foundation and thus, has the locus-standi to make such a claim. In considering the same, several factors which give rise to such legitimate expectation must be present. The decision taken by the authority must be found to be arbitrary, unreasonable and prejudicial in any manner. If it is a question of policy, even by way of change of the policy, the Court may refuse to interfere with such decision. Whether there are such facts and circumstances giving rise to the legitimate expectation would be primarily a question of fact. If it is a question of policy, even by way of change of the policy, the Court may refuse to interfere with such decision. Whether there are such facts and circumstances giving rise to the legitimate expectation would be primarily a question of fact. A Constitution Bench of the Supreme Court in the Secretary, State of Karnataka v. Umadevi [ 2006 (4) SCC 1 ] referred to the circumstances in which the doctrine of legitimate expectation can be invoked thus: "The doctrine can be invoked if the decisions of the administrative authority affect the person by depriving him of some benefit or advantage which either (i) he had in the past been permitted by the decision-maker to enjoy and which he can legitimately expect to be permitted to continue to do until there have been communicated to him some rational grounds for withdrawing it on which he has been given an opportunity to comment; or (ii) he has received assurance from the decision-maker that they will not be withdrawn without giving him first an opportunity of advancing reasons for contending that they should not be withdrawn." 15. Another Constitution Bench, referring to the doctrine, observed thus in the Confederation of Ex-servicemen Associations v. Union of India [ 2006 (8) JT 547 ]: "No doubt, the doctrine has an important place in the development of Administrative Law and particularly law relating to 'judicial review'. Under the said doctrine, a person may have reasonable or legitimate expectation of being treated in a certain way by an administrative authority even though he has no right in law to receive the benefit. In such situation, if a decision is taken by an administrative authority adversely affecting his interests, he may have justifiable grievance in the light of the fact of continuous receipt of the benefit, legitimate expectation to receive the benefit or privilege which he has enjoyed all throughout. Such expectation may arise either from the express promise or from consistent practice which the applicant may reasonably expect to continue." "In such cases, therefore, the Court may not insist an administrative authority to act judicially but may still insist it to act fairly. Such expectation may arise either from the express promise or from consistent practice which the applicant may reasonably expect to continue." "In such cases, therefore, the Court may not insist an administrative authority to act judicially but may still insist it to act fairly. The doctrine is based on the principle that good administration demands observance of reasonableness and where it has adopted a particular practice for a long time even in absence of a provision of law, it should adhere to such practice without depriving its citizens of the benefit enjoyed or privilege exercised." 16. In view of the above, I do not find any merit in the case put forward by the writ applicants. 17. As a result, the writ application fails and is hereby rejected. Rule is discharged.