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2018 DIGILAW 493 (GUJ)

Navinbhai Ramanbhai Amin v. State of Gujarat

2018-02-14

S.R.BRAHMBHATT

body2018
JUDGMENT : 1. Heard learned counsels for the parties. 2. The petitioner, who retired from the services of respondent no.2 on attaining the age of superannuation on 30th September 2009 has taken out this petition under Article 226 of the Constitution of India with following prayers. “(A) Be pleased to admit the present Special Civil Application; (B) Be pleased to allow this Special Civil Application by way of passing appropriate Writ, orders, mandamus or directions quashing and setting aside the impugned letter dated 11th May 2009 annexed as ANNEXURED and further be pleased to hold that the petitioner herein is entitled to retiral benefit of pension under the provisions of Gujarat Civil Service [Pension]} Rules, 2002 as he has served for 10 years in the employment of respondent nos.1 and 2 in the interest of justice. (C) Pending the admission, final hearing and disposal of the present Special Civil Application be pleased to direct the respondents to consider the case of petitioner for release of pension on the basis of Gujarat Civil Service [Pension] Rules, 2002 and the Judgment dated 11/08/2000 of Hon'ble High Court of Gujarat passed in Special Civil Application no.6690/1989 annexed as ANNEXUREF and the Judgment of the Hon'ble Division Bench of the Hon'ble High Court of Gujarat dated 12/01/2005 passed in Letters Patent Appeal No.831 of 2000 annexed as ANNEXUREG in the interest of justice. (D) Be pleased to pass such other and further orders as the nature of the case may be required and the Hon'ble Court may deem thought fit to pass such order.” Thus, what is essentially under challenge is the denial of pensionary benefit and pension to the petitioner on ground of petitioner's tenure in service was less than 10 years for being eligible to receive pension. 3. The facts in brief as could be gathered from the memo of the petition are as under : 3.1 That the date of birth of the petitioner is 7th September 1951 and he is holding educational qualification of B.Com. The petitioner was appointed as Junior Clerk on 1st February 1977 in Gujarat State Construction Corporation Ltd., and he joined the services on 8th February 1977. Prior thereto, the petitioner was provided work as daily wage Clerk from 9th November 1975 to 30th August 1976 at a consolidated salary of Rs.312/per month w.e.f. 1st September 1976. The petitioner was appointed as Junior Clerk on 1st February 1977 in Gujarat State Construction Corporation Ltd., and he joined the services on 8th February 1977. Prior thereto, the petitioner was provided work as daily wage Clerk from 9th November 1975 to 30th August 1976 at a consolidated salary of Rs.312/per month w.e.f. 1st September 1976. The petitioner was promoted as Assistant vide order dated 9th March 1983 and thereafter as Junior Officer vide order dated 20th November 1988. Further, the petitioner was granted further promotion to the post of Assistant Manager (Accounts) vide order dated 5th April 1995 while in service of Gujarat State Construction Corporation Ltd., 3.2 Thereafter, the Government of Gujarat took a decision to wind up Gujarat State Construction Corporation Ltd., and the order/resolution for the same were passed on 29th January 2000 by the Finance Department. Prior to that final options were invited from the employees of Gujarat State Construction Corporation Ltd., pursuant to letter dated 27th November 1997 in response to which the petitioner opted for an employment in Govt. Dept. through option form dated 15th September 1999, wherein the petitioner had undertaken to forgo his seniority and abide by the rules and regulations. 3.3 Thereafter, the petitioner was appointed in the office of the Commissioner of Tribunal Development, Gandhinagar and was posted as Project Officer at Rajokot vide order dated 1st February 2000. The petitioner immediately joined the services on 2nd February 2000 and his pay and other benefits were fixed by way of granting a benefit of protection. The basic pay of the petitioner at that time was fixed at Rs.2,450/with other allowances and the same was revised to Rs.7,600/under the benefit of revision of pay scale and placed in the pay scale of Rs.55009000. The petitioner was also granted benefit of Sixth Pay Commission. The petitioner thereafter, served at various places of the State of Gujarat and ultimately retired on attaining the age of superannuation on 30th September 2009. 3.4 On superannuation, the petitioner was granted the benefit of Leave Encashment, Gratuity, Service Gratuity, Group Insurance, General Provident Fund etc., as per the applicable rules and regulations. However, his application for pension was turned down by the respondent no.2 on the ground that he had not completed 10 years of service. 4. 3.4 On superannuation, the petitioner was granted the benefit of Leave Encashment, Gratuity, Service Gratuity, Group Insurance, General Provident Fund etc., as per the applicable rules and regulations. However, his application for pension was turned down by the respondent no.2 on the ground that he had not completed 10 years of service. 4. Being aggrieved and dissatisfied with the denial of pensionary benefits by the respondent no.2, the petitioner has filed the present petition. 5. Learned counsel for the petitioner invited Court's attention to the fact that the petitioner in fact was in service from 2nd February 2000 to 30th September 2009 and thus he has put in 9 years 7 months and 28 days and that has not been disputed by the respondent as could be seen from the affidavit-in-reply and therefore, the relevant rules, which have been reproduced at page no.43 of the compilation would help the petitioner in claiming the pensionary benefit from the respondent. Learned counsel for the petitioner laid emphasis upon Rule 80(3) of the Gujarat Civil Services (Pension) Rules, 2002 (hereinafter referred to as “the Rules” for the sake of convenience and brevity) and submitted that the State has to treat the service of more than six months to be a year for reckoning the pensionary service. In the instant case, when the petitioner has admittedly put in service of 9 years 7 months and 28 days, the petitioner has clearly putin the pensionary service as per the methodology prescribed under the Rule 80(3) of the Rules. 6. Learned counsel for the petitioner also relied upon the decision of this Court rendered on 11th August 2000 in S.C.A. No.6690 of 1989 and submitted that the said reasoning has been approved and upheld by the Division Bench in L.P.A. no.831 of 2000 in S.C.A. No.6690 of 1989 on 12th January 2005. 7. Ms. Jirga Jhaveri, learned AGP appearing for the respondent-State submitted that the affidavit-in-reply is clear so far as the petitioner being not eligible for receiving the pension, as the 10 years' minimum service is required to be put in and the 10 years' service is admittedly not put in by the petitioner and the Rule 80(2) of the Rules is attracted in which it is mentioned that the minimum 10 years required to be put in by the employee for being eligible for receiving pension. 8. 8. The Court is of the considered view that the respondents have not indicated any justification for denying pension to the petitioner by reckoning the services of the petitioner rendered into the respondent no.2 organization from 2nd February 2000 to 30th September 2009 by applying the provision of Rule 80(3) of the Rules. Copy of the said Rules are produced at page no.40 of the petition. 9. The Court is unable to accept the contention of learned AGP qua non-applicability of the rule in view of the Rule 80(2) of the Rules. The entire Rule 80 of the Rules is required to be appreciated, which clearly indicated that while reckoning the services for considering the granting of pension, the period of 10 years is to be counted as provided under Rule 80(3) of the Rules and if that rule is attracted and is required to be attracted then, petitioner cannot be said to be falling short of eligibility of the pension and therefore, the petitioner's service is required to be considered as pensionable in accordance with the said Rules and considering 10 years' service, the pension is admissible to the Government Servant put in 10 years' service. Hence, the pension is admissible to the petitioner and the petition is required to be allowed. 10. The present petition is therefore, allowed. The respondent is directed to consider the case of the petitioner in light of the Rule 80(3) of the Rules for reckoning the pensionable service and pass appropriate orders granting pension to the petitioner and other benefits flowing there from as if the petitioner has put in 10 years of service into the respondent organization. Rule made absolute. However, there shall be no order as to costs.