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Gujarat High Court · body

2019 DIGILAW 236 (GUJ)

Rambhai Ishwarbhai Patel v. Gujarat Vidhyapith

2019-03-15

A.S.SUPEHIA

body2019
JUDGMENT : 1. These writ petitions raise identical issue and are, therefore, with the consent of the parties, taken up for final disposal together. 2. The issue involved in these petitions is with regard to extending the pensionary and gratuity benefits and such other supplemental and incidental benefits to the petitioners with immediate effect along with arrears with interest at the rate of 12% per annum. 3. In view of the fact that common issue has arisen in these writ petitions, the same were heard together and Special Civil Application No.19003 of 2017 being treated as a lead matter and the facts mentioned in the memorandum of petition are reproduced here-in-below for deciding the present controversy. 4. The petitioners have secured their posts after following due process of appearing before an interview committee and subsequently getting selected between 1962 to 2002. It would be pertinent to note that 20 out of 24 petitioners have already retired from services and out of 20 petitioners; 04 petitioners are the legal heirs of the deceased employees. (4.1) The Tribal Research and Training Institute (TRTI) is established in those States in India where the tribal population is beyond 10 lacs. Except the State of Gujarat where the TRTI is run as an integral part of the respondent-Gujarat Vidhyapith, in all other States the TRTI is run under the direct control of respective Department of Tribal Development. Other States, wherein the Department of Tribal Affairs have a direct control and not through a nodal agency (Gujarat Vidhyapith), which is the case herein, have all extended the benefits of the available pension schemes prevailing in their respective States before 2005. (4.2) The petitioners working under the TRTI have also made representations regarding the inaction of the State Government and have pleaded for extending pensionary benefits as applicable in the State of Gujarat at par with other Government employees. (4.3) The respondent – State of Gujarat decided to extent pensionary benefits and gratuity benefits to the teachers and non-teaching staffs of all the universities and the affiliated colleges, including the respondent-Gujarat Vidhyapith since it was termed as deemed university in the year 1986. Respondent-Gujarat Vidhyapith framed the Pension Rules in the year 1988. (4.4) The Respondent-Gujarat Vidhyapith has been giving pensionary benefits to all its teaching and non-teaching employees since 1986, except to its employees posted at TRTI and Hindi Bhasha Bhavan. Respondent-Gujarat Vidhyapith framed the Pension Rules in the year 1988. (4.4) The Respondent-Gujarat Vidhyapith has been giving pensionary benefits to all its teaching and non-teaching employees since 1986, except to its employees posted at TRTI and Hindi Bhasha Bhavan. According to the respondent-Gujarat Vidhyapith, these two institutes are not the institutes of the higher education and, therefore, its own employees posted there are not entitled to get pensionary and gratuity benefits. Moreover, the respondent-Gujarat Vidhyapith grants such benefits to the employees, teaching and non-teaching, who are covered under the maintenance grant given by the University Grants Commission (UGC). Since the TRTI is not covered for the maintenance grant of the UGC, the respondent-Gujarat Vidhyapith does not give pensionary benefits. (4.5) On the basis of the Rules, the respondent-Gujarat Vidhyapith draws a so-called distinction between the pensionable posts for its employees and the post of the petitioners is classified as non-pensionable post and, therefore, they have not been granted pensionary and gratuity benefits. (4.6) It is contended that even if the petitioners are not covered under the Pension Rules, they are entitled to pensionary and gratuity benefits being employees of the respondent-Gujarat Vidhyapith. It is submitted that such rules and regulations interpreted so as to deny the benefits to the petitioners are discriminatory, arbitrary and violative of Article 14 of the Constitution of India. 5. Learned advocate Mr.Yagnik for the petitioners has submitted that the petitioners are seeking the retirement benefits such as pension and gratuity being the employees/retired employees of the respondent-Gujarat Vidhyapith and having worked throughout in TRTI receiving 100% grant from the respondent-State of Gujarat. It is submitted that the TRTI falls directly under the respondent-Department of the Tribal Development. (5.1) The learned advocate for the petitioners has further submitted that the petitioners were appointed as employees of the respondent-Gujarat Vidhyapith and as per the appointment letter, all the terms and conditions of the services applicable to the other employees of the respondent-Gujarat Vidhyapith are applicable to the petitioners. It is submitted that the petitioners/employees of the TRTI are discriminated against inasmuch as the employees of TRTI in other States are receiving the retirement benefits. It is submitted that the petitioners cannot be denied such benefits when other employees of such institutes set up across the country are receiving the pensionary and other ancillary benefits. It is submitted that the petitioners/employees of the TRTI are discriminated against inasmuch as the employees of TRTI in other States are receiving the retirement benefits. It is submitted that the petitioners cannot be denied such benefits when other employees of such institutes set up across the country are receiving the pensionary and other ancillary benefits. (5.2) Learned Advocate Mr.Yagnik has submitted that as the employees of the respondent-Gujarat Vidhyapith, i.e. the petitioners cannot be denied such benefits when other employees placed in the respondent-Gujarat Vidhyapith are receiving/ drawing pensionary benefits and particularly when the pension rules do not differentiate the employees on the basis of the 'titles'. It is submitted that the respondent-State and the respondent-Gujarat Vidhyapith's decision of not extending the pensionary and gratuity benefits to the petitioners is arbitrary, discriminatory, illegal, unfair and unjust and in breach of the Pension Rules applicable to the petitioners. (5.3) Learned Advocate Mr.Yagnik has submitted that the petitioner of the connected writ petition – Special Civil Application No.6550 of 2008 had approached the Gujarat Universities Services Tribunal, Ahmedabad, by filing Application No.24 of 2003 whereby the petitioner therein, inter alia, sought pension for the service rendered by him with the respondent-Gujarat Vidhyapith for the period of 18.05.1967 to 17.01.1998. By the impugned order dated 07.09.2007 the said matter came to be dismissed by observing that considering the limited jurisdiction conferred on the Tribunal to decide only “dispute between University and University employee” connected with conditions of service, it is difficult for this Tribunal to give any verdict considering the case of the petitioner therein and issue direction accepting he prayers made by the petitioner. It was also observed that, it will be open for the petitioner to take up the aspect before appropriate forum in accordance with law. 6. Learned advocate Mr.Udyan Vyas appearing for the respondent-Gujarat Vidhyapith has placed reliance upon the affidavit-in-reply and has submitted that earlier in 1961, the Commissioner, Schedule Caste and Schedule Tribe suggested to the respondent-Gujarat Vidhyapith to prepare a scheme for the purpose of the TRTI and pursue the same with the Government of Gujarat for having complete financial assistance for implementation, execution and operation of the Scheme. It is submitted that in response to the aforesaid, the respondent-Gujarat Vidhyapith submitted a Scheme by a letter dated 03.01.1962 to the Government of Gujarat, inter alia, suggesting therein the method and manner wherein the said Scheme can be implemented and the purpose of the Scheme can be materialized by establishing the TRTI as one of the Departments of the Gujarat Vidhyapith. (6.1) Learned advocate Mr.Udyan Vyas has further submitted that besides other proposals, it was specifically proposed that the Gujarat Vidhyapith shall employ the requisite members of the staff as and when required for the implementation and operation of the Scheme, who shall be governed by the Service Rules of the Gujarat Vidhyapith. It is further submitted that it was also proposed on behalf of the Gujarat Vidhyapith that the Government of Gujarat shall provide financial assistance for the implementation and execution of the Scheme. (6.2) The learned advocate has further submitted that on consideration of the letter of the Gujarat Vidhyapith in the form of the Scheme, the Education and Labour Department of the Government of Gujarat issued Government Resolution 16.07.1962 giving sanction for the implementation and execution of the Scheme of TRTI, as stated above, and started giving financial assistance in the form of grant for the same. Thus, the Government of Gujarat accepted the proposal of the Gujarat Vidhyapith and agreed that the TRTI was to be established and run by the Gujarat Vidhyapith. As such the running of the TRTI was the plan of the Central Government decided to be implemented through the State Governments and, therefore, ever since the Gujarat Vidhyapith established the TRTI in the year 1962 and started running the same, 50% of the financial assistance in the form of grant is being received by the Gujarat Vidhyapith from the State Government and 50% of the financial assistance in the form of grant is being received by the Gujarat Vidhyapith from the Central Government. It is submitted that accordingly, all expenditures, including salary and wages of the staff working under the Scheme of the TRTI is shared equally by the Government of Gujarat and the Government of India. (6.3) The learned advocate has further submitted that all the petitioners were appointed as employees of the Gujarat Vidhyapith and all the terms and conditions of the services applicable to the other employees of the Gujarat Vidhyapith are also applicable to the petitioners. (6.3) The learned advocate has further submitted that all the petitioners were appointed as employees of the Gujarat Vidhyapith and all the terms and conditions of the services applicable to the other employees of the Gujarat Vidhyapith are also applicable to the petitioners. However, the learned advocate has submitted that these terms and conditions relating to the service do not include the claim of pension and other retirement benefits, as the employment under the Department of TRTI is not pensionable. (6.4) The learned advocate has further submitted that the pensionary benefits to the employees of TRTI are denied because the Government of Gujarat as well as the Government of India have refused to extend the financial assistance in the form of grant to the Gujarat Vidhyapith in this regard. Learned advocate has submitted that the Gujarat Vidhyapith, being a Public Trust, is not giving pensionary benefits to any of its staff working in the Department of TRTI. However, the learned advocate has submitted that the Gujarat Vidhyapith has addressed various representations to the State Government for sanctioning the pensionary benefits by extending the financial assistance on the line of grants received from the UGC for the staff employed under the Higher Education. (6.5) The learned advocate has also submitted that the steps of introducing the Pension Scheme for the staff employed under the Higher Education funded by the UGC were taken in the year 1986 and as the Gujarat Vidhyapith's Higher Education Department is declared deemed to be University by the Government of India in the year 1963, a proposal was made to the UGC by a letter dated 15/17.02.1986 to extend the Pension Scheme to the Higher Education staff of the Gujarat Vidhyapith. Learned advocate has further submitted that in response to the letter addressed by the Gujarat Vidhyapith, the UGC by a letter dated 20.08.1986, informed the Gujarat Vidhyapith that the Commission has no objection to extend the Pension Scheme to the staff of the Gujarat Vidhyapith covered under the maintenance grant on the basis of the Central Universities Retirement Benefits Rules, 1967 as amended from time to time. Thus, only the Higher Education staff of the Gujarat Vidhyapith covered under the maintenance grant of UGC are entitled for the pensionary benefits. Thus, only the Higher Education staff of the Gujarat Vidhyapith covered under the maintenance grant of UGC are entitled for the pensionary benefits. (6.6) Learned advocate Mr.Udayan Vyas, has also submitted that not only the issue of extending the benefits of pension to the staff of the TRTI was represented to the Government of Gujarat, but the Gujarat Vidhyapith had also sought guidance of the Tribal Development Department, State of Gujarat by a letter dated 10.03.1999 seeking clarification with regard to the superannuation age of the staff members of the TRTI. In response to the aforesaid letter, the Government of Gujarat replied to the Gujarat Vidhyapith by addressing a letter dated 16.03.1999, inter alia, that the members of the staff of the TRTI belong to the Gujarat Vidhyapith and, therefore, the terms and conditions of their services are also required to be decided by the Gujarat Vidhyapith. Reiterating the demand for the grant of benefit of pension to the members of the staff of the TRTI, it is submitted that the Gujarat Vidhyapith addressed another letter dated 30.04.2003 to the Tribal Development Department, State of Gujarat and urged to take a decision in this regard promptly. (6.7) Learned Advocate Mr.Vyas has also invited the attention of this Court to the various communications entered into between the University and the state government. He has submitted that in continuation with the earlier representation dated 30.04.2003, the Gujarat Vidhyapith also addressed another letter dated 04.08.2003 to the Tribal Development Department, State of Gujarat, inter alia, furnishing the financial details with regard to contribution to Contributory Provide Fund (CPF) of the employees of the TRTI and the amount of pension to be given to the employees, who have retired from the service, if the benefits of pension is to be applied to them. However, it is submitted that by a letter dated 07.10.2003 addressed by the Deputy Secretary, Tribal Development Department, State of Gujarat, it was informed to the Gujarat Vidhyapith that the State Government has taken the decision not to extend the benefits of Pension Scheme to the employees of Institution, getting Grant-in-Aid from the State Government and, therefore, the demand made by the Gujarat Vidhyapith to extend the pension to the employees of the TRTI cannot be accepted. (6.8) The learned advocate has also submitted that it appears that the decision of not extending the benefits of the pension scheme to the staff of the TRTI is taken by the State Government on the basis of the decision communicated by Joint Director, Ministry of Tribal Affairs, Government of India by letter dated 24.12.2001 addressed to the Secretary, Tribal Welfare Department, State of Gujarat, a copy was forwarded to the Director, Tribal Research Institute, Gujarat Vidhyapith, inter alia, declining to provide matching central assistance for pensionary benefits to the employees of the TRTI. In other words, it is submitted that the demand of the Gujarat Vidhyapith to extend the benefits of pension to the employees working under the TRTI is also refused by the Central Government. (6.9) Learned Advocate Mr.Vyas has further submitted that the pensionary benefits are extended only to the members of the staff working under Higher Education Department of the Gujarat Vidhyapith, for which 100% grant are received from the UGC in accordance with the rules framed by the Government of India. 7. Learned Assistant Government Pleader Ms.Krina Calla, upon the instructions of the officers of the Tribal Department – (1) Mr.J.R.Dodia, Joint Secretary; (2) Mr.R.I.Thakkar, Under Secretary; (3) Mr.G.T.Patel, Under Secretary, (4) Mr.Diveyesh Bhatasana, Deputy Section Officer; and (5) Mr.D.P.Thakkar, Legal Executive, who are present before this Court has submitted that the petitioners are not entitled to the pension since they working under the TRTI, which was formed for the purpose of Tribal Research and Training. She has submitted that the scheme is closed in the year 2004. Further, it is submitted that the TRTI was founded pursuant to the suggestion of the Central Government and it was run by receiving the grant. Learned AGP has further submitted that the TRTI is a non-pensionable institute and hence, the employees working under the same will not get any pension. 8. Heard the learned advocates appearing on behalf of the respective parties and perused the documents relied upon by the learned advocates. 9. The established facts in the writ petition are that all the petitioners have rendered 25 to 30 years of regular service under the respondents. All the petitioners are appointed after following regular procedure of law between 1962 and 2002 by the Gujarat Vidhyapith. It appears that only 24 employees were appointed and out of them 20 have retired from service. The established facts in the writ petition are that all the petitioners have rendered 25 to 30 years of regular service under the respondents. All the petitioners are appointed after following regular procedure of law between 1962 and 2002 by the Gujarat Vidhyapith. It appears that only 24 employees were appointed and out of them 20 have retired from service. The petitioners thereafter were posted under the TRTI. The TRTI was established pursuant to the directions and suggestions of the State Government issued to the Gujarat Vidhyapith, which is a deemed University and is receiving 100% grant from the State Government. The State Government vide Resolution dated 16.07.1962 accorded sanction for the implementation and execution of the scheme of the TRTI. A perusal of the resolution suggests that the formation of the TRTI was suggested by the Central Government. It is not in dispute that the TRTI is run by 50% grant received by the Gujarat Vidhyapith and 50% financial assistant is provided by the State Government. 10. It also an established fact that all the petitioners were appointed by the Gujarat Vidhyapith and all the terms and conditions of the services which were applicable to the other employees of the Gujarat Vidyapith are also made applicable to the petitioners. The employees, who are working in the Higher Education Department, the Gujarat Vidhyapith are being paid pension since 1988 after their retirement, whereas the petitioners are denied since their employment under the TRTI is not considered as pensionable. Vide communication dated 16/17.02.1986, the Registrar, Gujarat Vidhyapith requested to extend the pension benefit to the staff of the Gujarat Vidhyapith. Thereafter, the benefits are extended to the staff as they are covered under the maintenance grant of the UGC. 11. There are various inter se communications between the Gujarat Vidhyapith and the State Government on the issue of grant of pension to the staff of the TRTI. It appears that lastly, vide communication dated 24.12.2001, the Ministry of Tribal Affairs, New Delhi asked the State Government to submit a proposal for financial assistance under the Research and Training programme. The details of the released amount of previous years were also called for along with the proposal. It appears that lastly, vide communication dated 24.12.2001, the Ministry of Tribal Affairs, New Delhi asked the State Government to submit a proposal for financial assistance under the Research and Training programme. The details of the released amount of previous years were also called for along with the proposal. The tenor of the communication dated 24.12.2001 reveals that the State Government has already sent a proposal to the Central Government to provide funds to extend the pension scheme to the staff of the TRTI i.e. to the petitioners, but nothing is shown to this court whether such proposal was sent or not. Thereafter, by various communications the Registrar and the Director of the Gujarat Vidhyapith have requested the State Government to approve the pension scheme to the petitioners. In one of the communications dated 14.03.2011, addressed by the Registrar of Gujarat Vidhyapith to the Deputy Secretary of the Tribal Department of the State, it is specifically stated that the pension scheme, which is made applicable to the employees of the Higher Education Department of the Gujarat Vidhyapith can also be made applicable to the employees of the TRTI, and the amount of the CPF, which is received by such employees, will be deposited with the State Government. 12. Be that as it may, it is not in dispute that the entire staff/employees of the Higher Education of the Gujarat Vidhyapith are getting pension, except the petitioners, who are working under the TRTI. The appointment order dated 08.05.1967 appointing one of the petitioners – Dr. Mustaali Ibrahimbhai Masavi (i.e. petitioner of connected writ petition Special Civil Application No.6550 of 2008) reveals that he was appointed by the Gujarat Vidhyapith as an employee of the Gujarat Vidhyapith but posted as a Research Assistant in the TRTI. Thus, the petitioners cannot be discriminated from the other employees of the Gujarat Vidhyapith only on the basis of their posting. The respondents cannot deny the benefit of pension on the ground of their “posting” in the TRTI. The undisputed fact is that the appointment orders are issued by the Gujarat Vidhyapith by undertaking a regular recruitment process and not by the TRTI and hence, for all purposes they are to be treated as the employees of the Gujarat Vidhyapith and not the employees of the TRTI. The posting of the petitioners in the TRTI cannot alter their appointments. The posting of the petitioners in the TRTI cannot alter their appointments. They cannot be in any manner termed as the employees of the TRTI. The respondents are misconstruing their “posting” as “appointments”. Thus, the pension scheme, which is made applicable to other employees of the Gujarat Vidhyapith is required to be extended to the petitioners as their original appointment is made by the Gujarat Vidhyapith and not by the TRTI. The petitioners cannot be denied pension on the pretext of non-availability of grant. The pension of the petitioners is required to be conferred from the grant which is received for the employees of the Gujarat Vidhyapith. The State Government, the Central Government and the Gujarat Vidhyapith are/were required to include the pension expenditure of the petitioners and sanction the grants accordingly so that they can receive pension as received by other employees in wake of the fact that there were only 24 such employees. It was not an uphill task for the respondent authorities to manage the grant for pension of 24 employees. As a model employer, the State Government/Central Government and the Gujarat Vidhyapith should have tidied up the controversy by making necessary adjustment in the grant for conferring pensionary benefits to the petitioners along with other employees. Since the petitioners have received the CPF, the prayer made for 12% interest is denied. 13. On the bedrock of the aforesaid observations and analysis, the petitions are allowed. 14. The respondents are directed to extend the benefit of pension to the petitioners as granted to the other employees of the Gujarat Vidhyapith. The amount of Contributory Provide Fund, which is received by the petitioners shall be adjusted while paying the pension or arrears to them. Necessary orders fixing and paying the pension to the petitioners shall be passed within a period of 02 (two) months from the date of receipt of this order. 15. Rule is made absolute in both the petitions to the aforesaid extent. 16. Registry to place a copy of this judgment in the connected matter. Petition allowed.