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2019 DIGILAW 540 (GUJ)

State of Gujarat v. Murtzakhan M. Pathan

2019-05-03

ANANT S.DAVE, BIREN VAISHNAV

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ORDER : ANANT S. DAVE, J. 1. Heard learned Assistant Government Pleader Ms. Nisha Thakore for the appellants. Though served, no one is present on behalf of the respondents. 2. As common issue is involved in both these appeals, they are disposed of by this common order. For the sake of convenience, the facts are drawn from Letters Patent Appeal No. 1149 of 2019. 3. In both these letters patent appeals under clause-15 of the Letters Patent, challenge is to the order dated 5.5.2017 passed by learned Single Judge in Special Civil Application Nos. 11180 and 11181 of 2003. The said order reads as under: “1. After hearing learned advocates for the respective parties, number of issues have arisen. 2. Learned advocate for the petitioner has vehemently submitted that the petitioners were working in the school administered by Nagar Panchyat, Chhota Udeipur, whereas, learned AGP states that it was a school run by a private trust. He has also placed reliance on the resolution dated 31.12.1987 which was produced by the DEO in further affidavit. An averment is made in para 2 of the affidavit that the petitioners were serving in a private school and hence the resolution dated 13.12.1987 issued by the department will not apply in their case. 3. Learned AGP has stated that so far as petition of petitioner of SCA No.11180/2003 is concerned, he has resigned from the service. 4. It is directed to both the learned advocates for the respective parties to place relevant documents, Government Resolutions or Circulars which will assist this Court in deciding the controversy. Both the parties shall also place on record the petitioner documents showing that whether he was serving in a private school run by the Trust or it was administered by Nagar Panchayat. 5. The learned AGP shall further clarify that whether the services rendered by the petitioners for the period in question would be specifically governed by the Resolution dated 6.4.2002 or Resolution dated 31.12.1987. It requires to be noted that resolution dated 6.4.2002 does not refer to the resolution dated 31.12.1987. 6. The petitioners shall file further affidavit placing the resolutions relied by him today i.e. resolution dated 4.3.1976, 18.6.1974 and 28.1.1976. Further, controversy has arisen about the school in which the petitioners were working for the period in question. 7. It requires to be noted that resolution dated 6.4.2002 does not refer to the resolution dated 31.12.1987. 6. The petitioners shall file further affidavit placing the resolutions relied by him today i.e. resolution dated 4.3.1976, 18.6.1974 and 28.1.1976. Further, controversy has arisen about the school in which the petitioners were working for the period in question. 7. Another aspect which this Court is confronted with is about the resignation of the petitioner of SCA No.11180/2003. Learned AGP has placed reliance on the resolution dated 27.10.1972, wherein, the earlier resolutions is amended and it is stated that any service prior to resignation shall not be counted for pay scale. In my opinion, prima-facie, this will apply not apply to the present case. However, a specific averment to the entitlement of pension prior to resignation supported by relevant material has to be produced in the Affidavit. Accordingly, learned advocates for the respective parties is directed to file appropriate affidavit placing on record the relevant resolutions on which they are relying. Such affidavit shall be filed within a period of 8 weeks. No further time will be granted and it shall be seen that relevant material with appropriate contention raised therein is placed before the Court. 8. In view of above, these matters are adjourned.” 4. The above order was culmination of interim order dated 23rd July, 2004 passed by learned Single Judge in the above writ-petitions at the initial stage of hearing and at that time, clear statement was made by learned Assistant Government Pleader, then appearing on behalf of the Director of Pension before the Court that pension papers of the petitioners will be cleared from the office of the Commissioner of Mid-day Meal Scheme within one week and the said papers would be cleared from the office of the Director of Pension within two weeks thereafter. Pursuant to such statement made by learned Assistant Government Pleader before the learned Single Judge, the matters were adjourned to 19th August, 2004 and then they were adjourned from time to time. Finally, on 5.5.2017, when the matters were heard by learned Single Judge, A/c Payee Cheque for an amount of Rs. 4,17,849/- towards difference of pension and gratuity of both the petitioners of the above writ-petitions came to be deposited and liberty was granted to the petitioners to withdraw the same. Accordingly, the writ-petitions came to be disposed of. 5. Finally, on 5.5.2017, when the matters were heard by learned Single Judge, A/c Payee Cheque for an amount of Rs. 4,17,849/- towards difference of pension and gratuity of both the petitioners of the above writ-petitions came to be deposited and liberty was granted to the petitioners to withdraw the same. Accordingly, the writ-petitions came to be disposed of. 5. Before us, learned Assistant Government Pleader has raised contentions about entitlement of the petitioners-employees to receive such amounts towards pension and gratuity in view of Government Resolution dated 6.4.2002, which relates to implementation of pension scheme qua academic staff/employees of govt. aided private primary schools. It is submitted that the petitioner was serving in Higher Secondary School as Primary Teacher between the period from 12.6.1967 to 11.6.1970. According to the GR dated 6.4.2002 of Department of Education, benefit of pension would not be available to those teachers who took retirement prior to 1997. It is further submitted that it was clarified in the above resolution that services of those primary teachers who were in service on 1.1.1997, would be considered for the purpose of pension. Since the petitioner was working as primary teacher from 1967 to 1972, as per the above resolution, as on 1.1.1997, he was not working as primary teacher and therefore, he was not entitled to get benefit of the above resolution dated 6.4.2002 as claimed by him. Accordingly, it is submitted that by directing the authority to pay the amount towards difference of pension and gratuity of both the petitioners is contrary to the above GR and there appears to be no adjudication on merits of various issues raised by the deponent. She, therefore, submitted that the impugned order passed by learned Single Judge deserves to be quashed and set aside. 6. Our attention is drawn to further reply dated 2nd May, 2013 filed by the respondent-DEO, Baroda, reiterating inapplicability of GR dated 6.4.2002 and it is submitted that both these appeals deserve to be allowed by quashing and setting aside the order passed by learned single Judge. 7. 6. Our attention is drawn to further reply dated 2nd May, 2013 filed by the respondent-DEO, Baroda, reiterating inapplicability of GR dated 6.4.2002 and it is submitted that both these appeals deserve to be allowed by quashing and setting aside the order passed by learned single Judge. 7. A perusal of record of the writ-petitions and initial order dated 23.7.2004 passed in both the above writ-petitions, reveals that learned Assistant Government Pleader, on behalf of the Director of Pension, Mid Day Meal Scheme, when the Director was ordered to remain present before the Court, made a clear statement that payment of pension will be sanctioned and paid to the petitioners within two weeks but ultimately, it was only in the year 2013 that cheque dated 15.4.2013 for an amount of Rs. 1,75,099/- was deposited. 8. Therefore, when the amount so ordered by the Court came to be deposited and at the relevant point of time, no objection was raised by the learned Assistant Government Pleader on behalf of the respondent authorities, it is not possible for this Court to now consider the applicability or otherwise of the GR dated 6.4.2002, which draws distinction about entitlement of payment for employee who retired prior to 1.1.1997 and thereafter, option to be exercised to continue in the CPF scheme or pension scheme. Further, considering the fact that Special Civil Application No. 11181 of 2003 was filed by legal heirs of deceased Murtuzakhan M. Pathan and the petitioner of another petition being Special Civil Application No. 11180 of 2003 has already retired as Assistant Teacher, we deem it just and proper not to disturb the order passed by learned Single Judge. 9. In view of the above, both the letters patent appeals are dismissed, keeping it open for the State of Gujarat to raise contentions raised in these appeals in appropriate proceeding as and when interpretation of GR dated 6.4.2002, issued by Education Department comes into question. Both the appeals are disposed of accordingly. 10. Since the main appeals are disposed of, connected civil applications for stay do not survive and the same are disposed of.