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Gujarat High Court · body

2016 DIGILAW 2073 (GUJ)

Nemaliben S. Patel v. State of Gujarat

2016-09-29

N.V.ANJARIA

body2016
ORDER : N.V. ANJARIA, J. Heard learned advocate Mr. M.A. Kharadi for the petitioner and learned Assistant Government Pleader Mr. Robin Mogera for the respondent State. 2. What the petitioner has prayed in the present petition is to grant her pensionary benefit and to pay the gratuity, as well as other consequential service benefits. 3. The total service period of the petitioner was divided into two segments. On 22.12.1986, the petitioner was selected as Mukhya Sevika and came to be appointed under the District Panchayat, Panchmahals at Godhra. She worked in Integrated Child Development Scheme (I.C.D.S.) Branch of Taluka Panchayat, Dahod upto 21.03.1996. She was thereafter relieved to join and serve under Director of Agriculture as Trainee Officer (Female) Class II. There, she worked upto 20.11.2009 until on that day, the office order passed terminating her services. The termination of her services was duty to her non-passing of pre-service training examination. As a service condition and under Rules 4 and 5 of the Government Gazetted Officers (Pre-service Training & Examination) Rules, 1970, such examination was required to be passed within four attempts, which the petitioner could not, even after attempting for six times, including an additional attempt allowed as per order of this Court passed. Passing of the examination was a stipulation in the appointment order itself. 4. By filing affidavit-in-reply, the respondent-Agriculture and Cooperation Department contested the petition and opposed the prayers. The material part of the affidavit and reasons supplied for treating the petitioner not entitled to pension may be reproduced hereunder : “11. As per the Rule No. 4 and 5 of the Government Gazetted Officers (pre-service Training and Examination) Rules 1970, unless and until the pre-service training examination is cleared, the candidate can be considered only as a probationary. Once the candidate succeeds in pre-service training examination, he or she can be appointed on regular services. Hence the petitioner cannot be considered as regular appointee and irregular employee has no right for pension, gratuity and other retirement benefits.” “12.......As mentioned in petition, the petitioner had worked from 22.12.1986 to 21.03.1996 as a Mukhya Sevika in Panchayat in Panchmahal district. She had worked as a training officer at Jamnagar District from 22-03-1996 to 20-11-2009. The petitioner intentionally miscalculated her services of more than 23 years and demands for pension. The appointment and services of State Government are not regular. She had worked as a training officer at Jamnagar District from 22-03-1996 to 20-11-2009. The petitioner intentionally miscalculated her services of more than 23 years and demands for pension. The appointment and services of State Government are not regular. Hence it cannot be considered for pensionary benefits.” 4.1 It is further stated and submitted that General Administration Department, Gujarat State has issued instructions vide resolution dated 24/02/1993 for joining the previous services rendered in the other office of the State Government for the purpose of pay, leave and pension. According to the said Circular, in para (4)(K) thereof, it is mentioned that, where the probation period is not completed satisfactorily, the orders for continuing the previous services should not be issued. 5. In view of the position provided under the aforesaid Rules, there is no gainsaying that the petitioner has not completed the probation period satisfactorily and hence, her previous panchayat services can not be joined with State Government Service for pensionary benefits. And therefore her demand to count the period of 23 years for pensionary benefits cannot be said to be improperly rejected. 5.1 The petitioner’s appointment on the post of Trainee Officer by way of appointment order dated 29.02.1996 was a fresh appointment as per the recruitment rules. The appointment on the post of Trainee Officer had no relation with the service conditions and nature of job as Mukhya Sevika. The petitioner could not clear the pre-service examination as a Trainee Officer. As seen above, the services of the petitioner as Trainee Officer remained a probation period throughout on account of the petitioner’s non-passing of pre-service training examination. Therefore, in view of the above rules, when the petitioner remained on probation, she was not entitled to receive pension. 5.2 The submission of petitioner’s learned advocate that there was no element of inefficiency because of which the petitioner had to remain a probationer, and therefore, her services ought to have been considered for pension, do not hold good in wake of the clear provisions of the aforementioned statutory rules. The requirement of passing of pre-service training examination and non-passing thereof could be viewed as an aspect of acquiring and equipping with the efficiency also. 6. Non-passing of the pre-service examination even after 13 years of service was possible to be perceived as on aspect of 'inefficiency' on part of the petitioner. The requirement of passing of pre-service training examination and non-passing thereof could be viewed as an aspect of acquiring and equipping with the efficiency also. 6. Non-passing of the pre-service examination even after 13 years of service was possible to be perceived as on aspect of 'inefficiency' on part of the petitioner. Therefore, though it is true that for the aforesaid considerations spelt out by the respondents, the petitioner would not be entitled for grant of regular pension and other benefits, but she may be entitled to pension differently under different provisions and her case deserves to be considered. 6.1 Now, in this regard, Rules 77 and 78 of the Gujarat Civil Services (Pension) Rules, 2002 which deal with grant of compassionate pension deserve an attention. Said Rules reads as under : “77. Grant of Compassionate Pension: (1) A Government employee who is removed or required to retire from Government service for misconduct or insolvency shall be granted no pension other than a Compassionate Pension. (2) A Government employee who is removed or required to retire from Government service on the ground of inefficiency, shall, if he be eligible for a superannuation, or retiring pension, be granted such pension. If he is not eligible for a Retiring or Superannuation pension he shall be granted no pension other than a Compassionate Pension. 78. Grant of Compassionate pension in deserving cases by Government: (1) When a Government employee is removed or required to retire from Government service for misconduct or insolvency or is removed or required to retire from Government service on grounds of inefficiency before he is eligible for a Retiring or Superannuation Pension, Government may, if the case is considered deserving of special treatment, sanction the grant to him of a Compassionate pension. (2) A dismissed Government employee is not eligible for Compassionate Pension.” 6.2 Compassionate pension under the aforesaid provisions can be granted in case where a government employee has retired from service on the grounds mentioned including on the ground of inefficiency. It is provided that if he is not eligible for retiring or superannuation pension, than he can be granted compassionate pension. It is provided that if he is not eligible for retiring or superannuation pension, than he can be granted compassionate pension. As noted above, it is possible to view non-passing of Pre-Service Training Examination during the tenure of service and resultant retirement in capacity of Probationer, as inefficiency inasmuch as the object of requiring an employee passing of the examination was to equip him for better and satisfactory performance in discharging his duties as government servant. As the petitioner did not pass the required examination even after six attempts, the entire service period was treated as on probation. In this circumstance, there is no reason that the respondent-government should not consider the case of the petitioner for allowing her compassionate pension looking to her long service of 23 years. 7. Therefore, even while upholding the stand of the authorities in the affidavit-in-reply, this petition is disposed of by directing the respondent authorities to consider the case of the petitioner positively and in true spirit for granting her compassionate pension applying the aforesaid provisions of Rules 77 and 78 of the Pension Rules, 2002, especially taking into account long service rendered; and in light of what is observed hereinabove, take appropriate decision within a period of three months from the date of receipt of this order. If and on being considered eligible to receive compassionate pension, the petitioner shall be paid the due benefit within three months. Direct service is permitted. Order accordingly.