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2017 DIGILAW 48 (GUJ)

J. H. Dave v. State of Gujarat

2017-01-12

P.P.BHATT

body2017
JUDGMENT : P.P. Bhatt, J. 1. By way of the present petition under Article 226 of the Constitution of India, the petitioner has prayed for issuance of appropriate writ/order quashing and setting aside the decision dated 23.11.2005 of respondent No. 2, and directing the respondents to pay pension to the petitioner as per letter dated 01.03.2005 by holding that the petitioner had voluntarily retired from service on 30.06.1998 and to pay the arrears with 10% interest. 2. It is the case of the petitioner that she was serving as Teacher in the respondent No. 4-School and she retired on 30.06.1998 voluntarily. She was appointed on 01.12.1973, and she has continuously worked for about more than 25 years as a Teacher in the respondent No. 4-School. Since the petitioner was not being paid pension, she has filed Special Civil Application No. 12198/2000 along with others claiming pension. The said petition was allowed vide judgment and order dated 30.10.2014 with the following directions: "Though the entitlement of petitioner Nos. 4 to 6 is not covered by the pension scheme but was crystalised only upon the decision of this High Court in Poul Cyril Parmar (supra), the case of petitioner No. 1 ought to have been considered by the respondents in light of their own circular dated 6.4.2002. If ultimately found that petitioner No. 1 is entitled to receive pension pursuant to the said scheme, the arrears shall be paid with simple interest at the rate of 10% per annum calculated after three months from the date of circular till the date of actual payment." 2.1 Against the above judgment, the respondents filed Letters Patent Appeal (Stamp) No. 1023/2005 which came to be disposed of by the judgment dated 29.8.2005. So far as the present petitioner- respondent No. 1 was concerned, the appeal was dismissed with following observations: "However, it is made clear that this order shall not preclude the appellants from taking appropriate action for withdrawal of the sanction given by the authority of the Municipal Corporation to treat the resignation of respondent No. 1 as voluntary retirement with effect from 30th June 1998." 2.2 After hearing the petitioner, the respondent No. 2 by its decision dated 23.11.2005 inter alia held that the petitioner had resigned from service, and not voluntarily retired, and hence, she was not entitled to pension and the amended order dated 27.11.2002 of the Administrative Officer, Rajkot, treating the petitioner as having voluntary retired was cancelled. 2.3 Being aggrieved by and dissatisfied with the said order, the petitioner has preferred the present petition for redressal of her grievance. 3. Mr. Hemang M. Shah, learned advocate appearing for the petitioner submits that the petitioner has tendered a letter of voluntary retirement on 22.07.1998, but since it was a cyclostyled copy of the application, inadvertently the word "resignation" was not deleted, and therefore, the said letter was treated as a letter of resignation. It is submitted that after tendering the letter of voluntary retirement on 22.07.1998, the Principal of the school addressed a letter to the Education Officer, Nagar Prathmik Samiti, Rajkot stating that the Assistant Teacher Jyotsnaben Harishankar Dave has taken voluntary retirement, and therefore, her resignation may be accepted. The said letter was inwarded on 22.07.1998. On the same day, the Education Officer, Nagar Prathmik Samiti, Rajkot addressed a letter to the Administrator, Adarsh Balniketan, Rajkot giving his opinion to accept the resignation of the Assistant Teacher Jyotsnaben Harishankar Dave, i.e. the petitioner herein, with effect from the date on which it was presented. Learned advocate further submits that thereafter, the State Government came with a policy vide its Government Resolution dated 06.04.2002 that those who have been voluntarily retired after 01.01.1997, shall be entitled for pension. It has been decided by the said circular that the previous service rendered by such teachers shall also be treated as pensionable service. Learned advocate further submits that thereafter, the State Government came with a policy vide its Government Resolution dated 06.04.2002 that those who have been voluntarily retired after 01.01.1997, shall be entitled for pension. It has been decided by the said circular that the previous service rendered by such teachers shall also be treated as pensionable service. As per the said circular, the concerned teacher was required to give option within a period of six months from the date of the resolution, and the option that may be given by the concerned teacher shall be treated as final, and thereafter, no changes will be permissible in the said option. Not only that, but an entry in the service book is also required to be made accordingly. Learned advocate further submits that in view of the Government Resolution passed by the State Government dated 06.04.2002, the entry was also made in the service book on the basis of the option given by the petitioner stating that the petitioner has opted for voluntary retirement with effect from 30.06.1998. In this context, learned advocate for the petitioner has placed reliance on the copy of the service book (Annexure-H). It is further submitted that thereafter, the Education Officer, Nagar Prathmik Samiti, Rajkot, vide its order dated 27.11.2002 made an amendment in the earlier proceedings and gave an opinion to treat the resignation of the petitioner as voluntary retirement in the case of the petitioner. While issuing the amended order dated 27.11.2002, the Education Officer has taken into consideration the entry made in the service book. Learned advocate further submitted that the said amended order was cancelled and set aside by the impugned order dated 23.11.2005, but the impugned decision was taken by the respondents in pursuance to the directions issued by this Court in its order dated 29.08.2005 given in Letters Patent Appeal (Stamp) No. 1023/2005 in Special Civil Application No. 12198/2000. Learned advocate further submits that while disposing of the Letters Patent Appeal, it was made clear that the said order does not preclude the appellants from taking appropriate action for withdrawal of the sanction given by the authority of the Municipal Corporation to treat the resignation of respondent No. 1 as voluntary retirement with effect from 30.06.1998. However, without taking into consideration the observation made by the Hon'ble Division Bench of this Court, the decision was taken vide the impugned order. However, without taking into consideration the observation made by the Hon'ble Division Bench of this Court, the decision was taken vide the impugned order. It is further submitted that all the co-teachers serving in the said school viz. Hansaben B. Upadhyay, Vinodiniben Keshavlal Patel, Jayaben D. Rajyaguri, Chandubhai L. Solanki and Yogeshbhai H. Dave have been given the benefit of pension in view of the Government Resolution dated 06.02.2002, whereas the case of the petitioner is not considered in its proper perspective by the respondent authority, and the claim of the petitioner is denied by the impugned order. Learned advocate further submits that the co-teacher Hansaben B. Upadhyay had also approached this Court by way of filing Special Civil Application No. 12335/2004 as she has not been extended the benefit flowing from the circular dated 06.04.2002. The said petition came to be allowed by the Coordinate Bench of this Court vide judgment and order dated 28.02.2013. Being aggrieved and dissatisfied with the said judgment and order, the State preferred Letters Patent Appeal No. 415/2014. The said appeal preferred by the State came to be dismissed vide the judgment and order dated 26.03.2014, and directions were issued upon the State to pay pension and other retirement dues to the petitioner by holding that she is entitled to get the pensionary benefit under the Government Resolution dated 06.04.2002. Learned advocate, while concluding his submissions, submitted that the petitioner has challenged the impugned order dated 23.11.2005 by way of filing the present petition. The said order is illegal, arbitrary and unreasonable and in violation of fundamental rights under Articles 14 and 16 of the Constitution of India. The only controversy that arises in the petition is whether the petitioner had voluntarily retired from services or had tendered resignation. In case of voluntary retirement, the petitioner would be entitled to get pension. In view of the facts and circumstances discussed, the case of the petitioner falls within the parameters of the Government Resolution dated 06.04.2002 as firstly, she had given option within the prescribed time limit. Secondly, she has taken voluntary retirement after the cut- off date prescribed in the said Government Resolution dated 01.01.1997, and thirdly the entry to this effect was also made in the service book. Thus, the case of the petitioner falls within the criteria/parameters laid down in the Government Resolution dated 06.04.2002 for grant of pensionary benefit. Secondly, she has taken voluntary retirement after the cut- off date prescribed in the said Government Resolution dated 01.01.1997, and thirdly the entry to this effect was also made in the service book. Thus, the case of the petitioner falls within the criteria/parameters laid down in the Government Resolution dated 06.04.2002 for grant of pensionary benefit. Moreover, all other co-teachers have been extended the said benefit. Therefore, the same benefit may also be extended to the petitioner. 4. Learned Assistant Government Pleader appearing for the respondent-State while opposing the present writ petition, tried to justify the stand taken by the respondent-State Government in its order dated 23.11.2005. It is further submitted that the petitioner has tendered resignation on 22.07.1998, and therefore, her case is different than the case of other co-teachers who have retired voluntarily. It is further submitted that though subsequently the petitioner has given clarification that inadvertently the word "resignation" was not deleted from the cyclostyled copy, but in reality, it was a letter of voluntary retirement, and accordingly, the Administrative Officer of Nagar Prathmik Samiti, Rajkot, had issued an amended order dated 27.11.2002, but the said order came to be set aside by the impugned order dated 23.11.2005. It was passed after direction issued by the Division Bench of this Court while considering the case of the petitioner. In this factual background, the case of the petitioner does not fall within the criteria/parameter laid down in the Government Resolution dated 06.04.2002, and therefore, the petitioner is not eligible and entitled to get the pensionary benefit as prayed for. It is further submitted that the Government issued resolution on 06.04.2002, but the cut-off date prescribed in the said resolution was 01.01.1997. It was an afterthought of the petitioner to submit a letter requesting the authorities to treat her resignation letter as letter of voluntary retirement, and therefore, considering the initial letters submitted by the petitioner tendering her resignation on 22.07.1998, the petitioner is not entitled to get the pensionary benefits. It is further submitted that after issuance of Government Resolution dated 06.04.2002, it is an afterthought of the petitioner to get the benefit under the said circular, and therefore, subsequent requests have been made to make modification in the earlier letter. 5. It is further submitted that after issuance of Government Resolution dated 06.04.2002, it is an afterthought of the petitioner to get the benefit under the said circular, and therefore, subsequent requests have been made to make modification in the earlier letter. 5. Regard being had to the above submissions and considering the facts and circumstances as it emerges from the material on record, it appears that the petitioner was appointed as Assistant Teacher on 01.12.1973 in the respondent No. 4-School. She retired on 30.06.1998. At the time of retirement, she had signed one cyclostyled letter dated 22.07.1998 addressed to the Administrative Officer, Nagar Prathmik Samiti, Rajkot stating that she is ready and willing to tender her resignation and the same may be accepted. It appears from Annexure-E that the Principal of the school addressed a letter to the Administrative Officer, Nagar Prathmik Samiti, Rajkot, to accept her resignation, but in the said letter, it is mentioned by the Principal that the petitioner had taken voluntarily retirement. The said letter was inwarded on 22.07.1998. The Administrative Officer on the same day intimated the Administrator of the School to accept the resignation. It also appears that the petitioner has addressed a letter to the Principal of Adarsh Balniketan Prathmik School inter alia stating that she is going to attain the age of superannuation on 02.01.1999, but she intends to take voluntary retirement. It appears that in view of the said request, the letter dated 22.07.1998 was prepared in prescribed format. In fact, in view of the letter submitted by the petitioner, the further formalities of voluntary retirement was required to be undertaken by the Administrative Officer, Nagar Prathmik Samiti, Rajkot. It appears that in the said cyclostyled letter dated 22.07.1998, the word "resignation" is used and therefore, the entire matter of the petitioner was processed as if she has tendered her resignation. Subsequent thereto, the Government policy was announced vide resolution dated 06.04.2002, whereby it has been decided to extend the benefit of pension to the Teachers who have been retired subsequent to 01.01.1997. It is also decided by the said resolution that the services rendered by such teachers prior to 01.01.1997 shall be treated as pensionable services and such teachers have been asked to give their option within a period of six months from the date of the resolution. It is also decided by the said resolution that the services rendered by such teachers prior to 01.01.1997 shall be treated as pensionable services and such teachers have been asked to give their option within a period of six months from the date of the resolution. It was also decided vide said resolution that the said option shall be treated as final and no changes thereafter shall be permitted. It is also mentioned in the said resolution that an entry in the service book is also required to be made to the said effect as revealed from the material on record i.e. Annexure-H a copy of service book, that there is an entry of taking voluntary retirement by the petitioner with effect from 30.06.1998. The Administrative Officer, Nagar Prathmik Samiti, Rajkot has also issued an amended order dated 27.11.2002 clarifying the position that the petitioner has taken voluntary retirement, and accordingly, he has given opinion to process the matter further. While issuing the amended order, the entry in service book was also taken into consideration. The said amended order was set aside by the District Education Officer vide its order dated 23.11.2005. It further appears that the co-teachers viz. Hansaben B. Upadhyay, Jayaben D. Rajyaguru, Chandubhai L. Solanki and Yogeshbhai H. Dave have been extended the pensionary benefit by treating their cases as voluntary retirement. The co-teacher Hansaben B. Upadhyay had to approach this Court by way of filing Special Civil Application No. 12335/2004. The said petition was allowed and the respondents were directed to extend the pensionary benefit in view of the Government Resolution dated 06.04.2002. The respondent-State Government, being aggrieved and dissatisfied with the said judgment, preferred Letters Patent Appeal No. 415/2014, which came to be partly allowed vide judgment and order dated 26.03.2014, and the respondents authorities were directed to extend the benefit of pension and other retiral dues to the petitioner therein. Thus, it appears that all the co-teachers, who have retired after 01.01.1997 have been extended the pensionary benefits under the Government Resolution dated 06.04.2002. On perusal of the Government Resolution dated 06.04.2002, those teachers, who have retired either voluntarily or upon reaching the age of superannuation, shall be entitled to get pensionary benefits. Such teachers were also asked to submit a form within a period of six months and entry in the service book was also required to be made accordingly. On perusal of the Government Resolution dated 06.04.2002, those teachers, who have retired either voluntarily or upon reaching the age of superannuation, shall be entitled to get pensionary benefits. Such teachers were also asked to submit a form within a period of six months and entry in the service book was also required to be made accordingly. From the facts of the present case and more particularly from the service book of the present petitioner, it appears that there is an entry of voluntary retirement with effect from 30.06.1998 and therefore, there is a reason to believe that the petitioner had given option in pursuance to the resolution dated 06.04.2002 within prescribed time limit and accordingly, the entry in the service book was made. The Administrative Officer of Nagar Prathmik Samiti, Rajkot issued the amended order clarifying the situation to remove the ambiguity/doubt with regard to the resignation or voluntary retirement of the petitioner and made it clear that in view of the Government Policy dated 06.04.2002, since the petitioner has given option of taking voluntary retirement, her case also needs to be considered accordingly. Of course, the said order was set aside by the District Education Officer vide its order dated 23.11.2005 which is under-challenge by way of the present petition. The case of the petitioner ultimately requires consideration in light of the Government Resolution dated 06.04.2002 which permits those teachers, who have retired after 01.01.1997. As per the said circular, it has been clearly decided that the services rendered prior to 01.01.1997 shall be treated as pensionable service. It is an admitted position that the petitioner has retired after 01.01.1997 and therefore, in view of the said resolution, the services rendered prior to 01.01.1997 are required to be treated as pensionable service. Moreover, the petitioner has also given option within the prescribed time limit and accordingly, entry was also made in the service book as reflected from Annexure-F. 6. Under the circumstances, this Court is of the view that the impugned order dated 23.11.2005 deserves to be quashed and set aside, and the petitioner is required to be extended the benefit of pension in view of the Government Resolution dated 06.04.2002 as other co-teachers working along with the petitioner have been extended this benefit who also retired after 01.01.1997 in view of the Government Resolution dated 06.04.2002. 7. 7. Accordingly, the present petition is allowed and the impugned order dated 23.11.2005 is ordered to be quashed and set aside. The respondents are directed to extend the pensionable benefit in view of the Government Resolution dated 06.04.2002 especially when other co-teachers have been extended the said benefit by treating her case as a case of the voluntary retirement. 8. Since the petitioner has retired from services long back, the respondents authorities shall extend the benefit of pension and shall pay arrears and other consequential retiral benefits within a period of three months from the date of receipt of a copy of this order. Rule is made absolute accordingly. No order as to costs. Direct Service is permitted.