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2016 DIGILAW 533 (GUJ)

J. H. Patel v. State of Gujarat

2016-03-04

M.R.SHAH

body2016
JUDGMENT : M.R. Shah, J. 1. By way of this petition under Article 226 of the Constitution of India, petitioner has prayed for an appropriate writ, direction and order directing the respondents to grant pension and gratuity to the petitioner on the basis of the qualifying service from 06.10.1958 to 30.04.1996 and to pay the amount due and payable with 18% interest, by quashing and setting aside the communication/letter dated NIL (Annexure-D to the petition). In the alternative it is prayed that the respondents may be directed to pay pension on the basis of 12 years' pensionable service. 2. Facts leading to the present Special Civil Application in nut-shell are as under: "[2.1] That initially the petitioner was appointed by order dated 25.09.1958 as a Stockman. That he worked in Veterinary Dispensary at Ghorda, Kutch till 23.10.1962. That thereafter he was transferred to Mehsana by order dated 08.10.1962. The petitioner joined the service at Mehsana on 26.10.1962 and worked there upto 23.08.1966. It appears that while he was serving at Mehsana, he made an application for further study and the leave was granted for one year by order dated 23.08.1966. That thereafter the petitioner again applied for further time and the same was granted by order dated 19.06.1967 and further one year was granted for the study purpose. It appears that the time limit granted to the petitioner for study was to expire on 23.08.1968. The petitioner remained absent from 24.08.1968 to 11.12.1968. The petitioner made an application on 01.11.1968 and requested the authority to grant unauthorized leave from 12.12.1968 to 31.08.1969, which came to be sanctioned by the appropriate authority vide order dated 20.02.1971." However, it appears that in the meantime the petitioner appeared in the examination conducted by the Gujarat Panchayat Selection Service Board for Subsidized Medical Practitioner (hereinafter referred to as "SMP") and after having passed the said examination, the petitioner was appointed as SMP on 29.12.1969, however on a monthly fix pay of Rs. 120/- as honorarium. That thereafter by Government Resolution dated 30.12.1994, the petitioner and other similarly situated SMPs were put in the regular pay scale of Rs. 1640 - 2900 by giving age relaxation as well as by giving exemption from the regular recruitment procedure. That the petitioner attained the age of superannuation on 30.04.1996. Therefore, the petitioner prayed for retirement benefits such as pension, gratuity etc. 1640 - 2900 by giving age relaxation as well as by giving exemption from the regular recruitment procedure. That the petitioner attained the age of superannuation on 30.04.1996. Therefore, the petitioner prayed for retirement benefits such as pension, gratuity etc. and requested to consider his pensionable service from 25.09.1958 till he attained the age of superannuation. The aforesaid was not granted and therefore, the petitioner preferred Special Civil Application before this Court and the learned Single Judge disposed of the said Special Civil Application relegating the petitioner to make detailed representation to the appropriate authority. Thereafter, the petitioner made a detailed representation requesting to grant retirement benefits such as pension, gratuity etc. and to treat the entire service from 25.09.1958 till he attained the age of superannuation as pensionable service. That by impugned communication (Annexure-D to the petition), the same has been rejected/turned down solely on the ground that as per the resolution dated 30.12.1994 by which the petitioner and others were put in the regular pay scale, their services is required to be considered afresh from 30.12.1994 and/or from the date on which the petitioner resumed the duty pursuant to the Government Resolution dated 30.12.1994 and therefore, his pensionable services to be treated and/or considered from the date on which the petitioner resumes the duty pursuant to the Government Resolution dated 30.12.1994. Therefore, his earlier service has not been considered for pensionable service and therefore, the petitioner has been denied the retirement benefit such as pension, gratuity etc. Hence, the petitioner has preferred the present petition under Article 226 of the Constitution of India. 3. Shri A.S. Supehia, learned advocate appearing on behalf of the petitioner has stated at the Bar and has fairly conceded that his services as SMP can be considered only from 1969 and therefore, the case of the petitioner for pensionable service may be considered from 1969 till the petitioner attained the age of superannuation. Therefore, he has stated at the Bar that he does not press his original prayer to consider his entire service from 1958 till the petitioner attained the age of superannuation as pensionable service. Therefore, he has stated at the Bar that he does not press his original prayer to consider his entire service from 1958 till the petitioner attained the age of superannuation as pensionable service. Shri Supehia, learned advocate appearing on behalf of the petitioner has vehemently submitted that impugned decision/communication to treat the pensionable service of the petitioner from 30.12.1994 and to treat the appointment of the petitioner from December 1994 onwards only for the purpose of pensionable service is absolutely illegal and on misinterpretation and/or misreading of the Government Resolution dated 30.12.1994. 3.1 It is vehemently submitted by Shri Supehia, learned advocate appearing on behalf of the petitioner that as such by the Government Resolution dated 30.12.1994, there was no new and/or fresh appointment of the petitioner. It is submitted that as such the petitioner was already appointed as SMP in the year 1969 after following due procedure as required and after the petitioner having passed the examination conducted by the Gujarat Panchayat Selection Service Board. It is submitted that however at the relevant time the petitioner was put in fix salary. It is submitted that thereafter pursuant to the Government Resolution dated 30.12.1994, the petitioner and other similarly situated persons are as such put in the regular pay scale of Rs. 1640 - 2900. It is submitted that therefore it cannot be said that by Government Resolution dated 30.12.1994, the petitioner was newly appointed and/or the same cannot be said to be a fresh appointment. It is submitted that as such prior thereto the petitioner continued to be in service as SMP since 1969 and therefore, not to consider the period from 1969 till 1994 for the pensionable service would be arbitrary. Making above submissions, it is requested to allow the present petition and grant the relief as prayed for. 4. Present petition is vehemently opposed by Shri K.P. Raval, learned Assistant Government Pleader appearing on behalf of the State of Gujarat. He has heavily relied upon the affidavit in reply filed on behalf of the State. He has submitted that as such the period prior to 1969 cannot be considered and/or counted for the purpose of pensionary benefits/retirement benefits. It is submitted that as such the petitioner was appointed afresh as SMP in the year 1969 and therefore, as such his appointment in 1969 can be said to be a new appointment. He has submitted that as such the period prior to 1969 cannot be considered and/or counted for the purpose of pensionary benefits/retirement benefits. It is submitted that as such the petitioner was appointed afresh as SMP in the year 1969 and therefore, as such his appointment in 1969 can be said to be a new appointment. 4.1 It is further submitted that even otherwise when the petitioner came to be appointed in the regular pay scale of Rs. 1650 - 2900 by Government Resolution dated 30.12.1994, his appointment in the regular pay scale can be considered only from the order dated 09.01.1995, the period from 01.09.1995 till the petitioner retired on 30.04.1998 only is required to be considered for the pensionable service. Making above submissions, it is requested to dismiss the present petition. 5. Heard learned advocates appearing for respective parties at length. At the outset it is required to be noted that though in the petition the petitioner prayed to consider his service from 06.10.1958 onwards till he attain the age of superannuation for pensionable service, Shri Supehia, learned advocate appearing on behalf of the petitioner has stated at the Bar that his service on and from 22.12.1969 as SMP be considered for pensionable service. Therefore, the short question which is posed for consideration of this Court is whether the service of the petitioner with effect from 22.12.1969 as SMP till he attained the age of superannuation may be considered for pensionable service or not? 5.1 From the order dated 22.12.1969, it appears that the petitioner was appointed as SMP after due selection by the Gujarat Panchayat Service Selection Board and after following due procedure as required. However, at the relevant time the petitioner was put in the fixed salary of Rs. 120/- per month. However, thereafter, vide resolution dated 30.12.1994, the petitioner and other similarly situated persons were put in the regular pay scale of Rs. 1600 - 2900. Accordingly, the petitioner and others were put in the regular pay scale of Rs. 1600 - 2900. However, at the relevant time the petitioner was put in the fixed salary of Rs. 120/- per month. However, thereafter, vide resolution dated 30.12.1994, the petitioner and other similarly situated persons were put in the regular pay scale of Rs. 1600 - 2900. Accordingly, the petitioner and others were put in the regular pay scale of Rs. 1600 - 2900. By the impugned order the petitioner has been denied the pensionary benefits/retirement benefits and his past services prior to 30.12.1994 has not been considered/counted for pensionable service on the ground that as per the Clause 2 of Para 2 of the Government Resolution dated 30.12.1994, the appointment of the petitioner be treated as a fresh and new appointment from that day and his pensionable service be considered only from the date on which he entered the service. However, on fair reading of the Government Resolution dated 30.12.1994, it does not say/provide so. In the said Government Resolution, it is not stated that on and from 30.12.1994 his services may be considered as a fresh service/appointment and his pensionable service can be considered only from that day. Under the circumstances, as such the impugned decision is on misreading of the Government Resolution dated 30.12.1994. By the Government Resolution dated 30.12.1994, the petitioner and other similarly situated SMPs were put in the regular pay scale of Rs. 1600 - 2900. As observed hereinabove and it is not in dispute that as such the petitioner was appointed in the year 1969, he was appointed after due selection by the Gujarat Panchayat Selection Service Board and after following due procedure as required and he continued to be in service till he attained the age of superannuation. Under the circumstances, his past services from the date of his appointment as SMP vide order dated 20.12.1969 is required to be considered and counted for the purpose of pensionable benefits and as pensionable service. The petitioner cannot be denied the aforesaid period on and from December 1969 as SMP for the purpose of pensionable service. Under the circumstances, impugned decision not to count the service as SMP from 20.12.1969 onwards till Government Resolution dated 30.12.1994 for pensionable service cannot be sustained and the same deserves to be quashed and set aside. 6. In view of the above and for the reasons stated above, present Special Civil Application succeeds. Under the circumstances, impugned decision not to count the service as SMP from 20.12.1969 onwards till Government Resolution dated 30.12.1994 for pensionable service cannot be sustained and the same deserves to be quashed and set aside. 6. In view of the above and for the reasons stated above, present Special Civil Application succeeds. Impugned communication/letter dated NIL (Annexure-D to the petition) is hereby quashed and set aside and the respondents are directed to consider/count his past services as SMP with effect from 20.12.1969 till he attained the age of superannuation for pensionable service and if otherwise he is found entitled to and/or eligible for pension and/or other retirement benefits, the same may be granted to the petitioner. If it is found that the petitioner has completed the pensionable service in accordance with the law and as per the Rules, the petitioner may be paid the pensionary benefits/retirement benefits accordingly within a period of three months from the date of receipt of certified copy of the present order and/or the writ of this Court with interest at the rate of 7.5% per annum failing which interest at the rate of 9% per annum shall be charged. Rule is made absolute accordingly. In the facts and circumstances of the case, there shall be no order as to costs.