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Gujarat High Court · body

2019 DIGILAW 865 (GUJ)

Hasmukh Harjivandas Patel v. State of Gujarat

2019-10-07

A.S.SUPEHIA

body2019
JUDGMENT : A.S. Supehia, J. 1. The present writ petition is filed seeking quashing and setting aside the order dated 05.08.1999 and further direction, directing the respondent to pay all the pensionary benefits along with arrears. 2. The petitioner retired in the year 1991 from the grant in aid college and while retiring, he did not opt for the pension scheme. The pension scheme framed vide Government Resolution dated 26.09.1989 came to be amended vide Government Resolution dated 17.09.1991 and thereafter, on 24.10.1991 the petitioner has opted for the pension scheme. 3. It is the case of the petitioner that, initially his option for pension scheme was accepted by the Commissioner for Higher Education. Thereafter, an objection has been raised by an Account Officer of the office of the Director of Pension and Provident Fund and, therefore, the Commissioner has refused to accept the option. 3.1. Therefore, the petitioner has filed a writ petition being Special Civil Application No. 6871 of 1998 and vide judgment and order dated 23.06.1999, this Court has directed the respondent to constitute a High Power Committee to consider the case of the petitioner for being included in the pension scheme. It was also directed that if the petitioner is found eligible and entitled, he should be given all consequential benefits of pension and arrears of amount of pension with interest at the rate of 12% p.a. It appears that, thereafter the said committee was constituted and the case of the petitioner was rejected vide order dated 05.08.1999. 4. Learned senior counsel Mr. Tanna appearing for the petitioner has submitted that prior to framing the pension scheme for the teaching and non - teaching staff in non - government affiliated colleges and universities they were covered under the Contributory Provident Fund Scheme and were given gratuity and provident fund. Thereafter, pension scheme was formed vide Government Resolution dated 26.09.1989. The Petitioner retired in the year 1991 as a Professor in H.K. Arts College, Ahmedabad. He has submitted that therefore, the State government introduced Resolution dated 17.09.1991, whereunder it was decided to raise the maximum Death -cum-Retirement gratuity upto Rs. 75,000/- or 16 - 1/2 pay, whichever is less at the time of retirement of the employee who has opted for the pension scheme. 4.1. Learned senior counsel Mr. He has submitted that therefore, the State government introduced Resolution dated 17.09.1991, whereunder it was decided to raise the maximum Death -cum-Retirement gratuity upto Rs. 75,000/- or 16 - 1/2 pay, whichever is less at the time of retirement of the employee who has opted for the pension scheme. 4.1. Learned senior counsel Mr. Tanna has submitted that the petitioner has exercised his option under the scheme and opted for the pension scheme. It is submitted that, in fact, such option has been accepted by the authorities as per the letter dated 24.01.1992 issued by the office of the Commissioner of Higher Education. However, objection was taken as above and he was not paid the pension. 4.2. Learned senior counsel Mr. Tanna has submitted that there were various such employees similarly situated to the petitioner, who were not granted the pensionary benefits, in view of the non submission of the option in time limit, and such action of the State authority was subject matter of challenge in Special Civil Application No. 3250 of 2009 and allied matters. 4.3. Learned senior counsel has further submitted that vide judgment and order dated 29.06.2017 passed by the co- ordinate bench of this Court in the aforesaid group of petitions, it is held that the employees like the petitioner are entitled to the pensionary benefits even if there is delay in exercising the option. 4.4. Learned senior counsel has further pointed out that in Letters Patent Appeal No. 2259 of 2017 and allied matters, by a common judgment and order dated 02.05.2019, the Division Bench has confirmed the directions issued by the learned Single Judge and the State authorities are directed to grant the benefit of pension scheme. 4.5. Thus, he has submitted that the petitioner has exercised his option belatedly in view of consequential Government Resolution dated 24.10.1991, and, therefore, as per the law laid down by the Division Bench, the petitioner would be entitled to all the pensionary benefits. 5. Per contra, learned AGP has submitted that the case of the petitioner will not be governed by the decision of the Division Bench for the reason that the petitioner has belatedly exercised his option and, therefore, no benefit should be extended to the petitioner. 6. I have heard the learned advocates appearing for the parties. 5. Per contra, learned AGP has submitted that the case of the petitioner will not be governed by the decision of the Division Bench for the reason that the petitioner has belatedly exercised his option and, therefore, no benefit should be extended to the petitioner. 6. I have heard the learned advocates appearing for the parties. It is not in dispute that the petitioner was working as a Professor and retired on 14.06.1991 and after his retirement, he has filed the option on 24.10.1991 claiming pension under the Government Resolution dated 26.06.1989. 6.1. The petitioner also deposited his Provident Fund Contribution for availing pension benefits on 25.02.1992. 6.2. It is pertinent to note that the Commissioner of Higher Education vide letter dated 24.01.1992 accepted the option filed by the petitioner for claiming pension and forwarded to the same Director of Pension and Provident Fund for preparing the pension papers. Thereafter, the Accounts Officer of the Director of Pension and Provident Fund raised objections on 27.11.1992 stating that, since the petitioner has retired on 17.09.1991, and was a member of Contributory Provident Fund Scheme, he would not be entitled to such pension. 6.3. Thereafter, the petitioner has approached this Court by filing Special Civil Application No. 6871 of 1998, which was disposed of by this Court on 23.06.1999 directing the respondent - State Authority to constitute High Power Committee to examine the case of the petitioner. Ultimately, the High Power Committee has rejected the case of the petitioner by order dated 05.08.1999. 6.4. On perusal of the impugned order passed by the High Power Committee, it is revealed that the case of the petitioner is rejected on the ground that the petitioner has not opted for pension scheme in time and was a member of Contributory Provident Fund Scheme. 6.5. It is not in dispute that option of the petitioner, which was exercised by him on 24.10.1991 was accepted by the Commissioner of Higher Education on 24.01.1992 and office of the Commissioner has sent the case of the petitioner to the office of the Director of Pension and Provident Fund. 7. 6.5. It is not in dispute that option of the petitioner, which was exercised by him on 24.10.1991 was accepted by the Commissioner of Higher Education on 24.01.1992 and office of the Commissioner has sent the case of the petitioner to the office of the Director of Pension and Provident Fund. 7. The Division Bench while examining analogous issue in Letters Patent Appeal No. 2259 of 2017 and allied matter, in case of the employees of other university vide judgment and order dated 02.05.2019 has observed as under; "12.1 In the cases of L.P. Joshi (supra), Banuben Dhakkan (supra), Bhupendra Chudasama (supra) and Uma Chudasama (supra), this Court has reiterated and revisited the entire scheme of the Government Resolution dated 15.10.1984 and in no uncertain terms held that if clause no. 3 of the resolution is perused there are two types of employees who have to exercise option namely (a) members of the existing staff recruited before 01.04.1982 (b) Those staff who have retired on or after 01.04.1982 and prior to the issuance of the Government Resolution dated 15.10.1984, it is therefore the relief of option. Once an employee is a recruit post 01.04.1982, he automatically comes over to the pension scheme. 13. The objection of the State therefore that the subsequent decision of the respondents herein to ask for a switch over due to the rise in pension amounts to the revision of pay will also not hold good. Their coming over to pension being automatic, the State is obliged to extend the benefits. Once the learned Single Judge of the judgement under challenge had asked the State to so consider, the State was bound to consider the same positively in light of the directions so issued and not reject the same on the ground of financial implications. In fact, financial burden is no ground to deny benefits arising from the pension rules. 14. It is required to be noted that so far as the teaching staff is concerned, there is no concept of automatic promotion on higher posts on completion of certain number of years. An employee has to acquire educational qualification and put in number of service to secure eligibility criteria for recruitment on higher post. 14. It is required to be noted that so far as the teaching staff is concerned, there is no concept of automatic promotion on higher posts on completion of certain number of years. An employee has to acquire educational qualification and put in number of service to secure eligibility criteria for recruitment on higher post. Any appointment either direct or by transfer or by changing the post in the same institute and or in different institute for securing higher post or on a same post made after 1982 is covered under pension scheme - GPF for which option is not to be given as CPF scheme is discontinued with effect from 01.04.1982. It is settled that the employees even though recruited before 01.04.1982 on a given post but subsequently i.e. after 01.04.1982 if they are again recruited after following the procedure prescribed therein, then such employees are not required to give any option to switch over from CPF to GPF because of requirement of clause 4 of the Government Resolution dated 15.10.1984. The said clause 4 at the cost of repetition is reproduced hereinbelow: "4. The member of the staff recruited on or after 1st April, 1982 shall automatically be governed by this scheme. Such staff will not be allowed to opt for contributory provident fund scheme." 14.1 Moreover, any recruitment/appointment made after 01.04.1982 for the teaching staff is through advertisement and selection hence it is fresh appointment and therefore pension scheme i.e. GPF is automatically applicable. Further, for the non teaching staff also, their promotion at a particular time is to be considered as recruitment and therefore they need not give the option at the time of promotion. In view of the overall facts of the case we are not inclined to entertain these appeals and therefore the appeals deserve to be dismissed. 15. For the aforesaid reasons, the judgments rendered by the learned Single Judges in the respective Letters Patent Appeals are confirmed. The State authorities are directed to grant the benefit of the pension scheme to all the respondents in view of the Government Resolution dated 15.10.1984 from the date of their respective retirement. The respondents who have not refunded/repaid the amount of Contributory Provident Fund, their case be considered by the authorities by paying the amount of pension after adjusting/setting off the amount of Contributory Provident Fund payable by the respondents. The respondents who have not refunded/repaid the amount of Contributory Provident Fund, their case be considered by the authorities by paying the amount of pension after adjusting/setting off the amount of Contributory Provident Fund payable by the respondents. In case of the respondents who have refunded/repaid the amount of Contributory Provident Fund, they shall be entitled for interest at the rate of 9% per annum on the amount of pension from the date of their repaying/refunding the amount of Contributory Provident Fund. The respective parties shall act upon these directions and implement the same within 8 weeks from the date of receipt of the writ of the order of this Court. Appeals are accordingly dismissed. Civil Applications also stand disposed of accordingly." 7.1. In light of the observations made by the Division Bench, the undisputed facts of the present case are to be examined. In the present petition the pension scheme in the respondent universality was introduced w.e.f. 01.04.1982 and it was specifically observed that the employees who are retiring after 01.04.1982 are entitled for the same. Thereafter, the State Government by Resolution dated 26.09.1989 introduced the pension scheme for teaching and non teaching staff in non granting affiliated college. Subsequently, the Government has issued Resolution dated 17.09.1991 and raised the maximum limit of Death cum Retirement Gratuity upto Rs. 75,000/- and one more chance was given to the employees who have not filed their option to file the same within two months from the date of issuance of the Government Resolution. 7.2 The relevant para of Government Resolution dated 17.09.1991 reads thus; "Government is pleased to raise the maximum limit of Death cum Retirement Gratuity upto 75,000/- (Seventy Five Thousand Only) or 16½ Pay whichever is less on the line of employees who have opted for pension scheme and continues to remain under General Provident Fund Scheme. The other conditions shall remain same as referred to in Government Resolution G.R.E.D. No. NGC-1089-2793-KH dated 26.9.1989. On account of the said changes the employees are however given one more option to remain under the pension scheme or to remain in contributory provident Fund Scheme within 2 months from the issue of the Government Resolution. The concurrence of the Finance Department is obtained on the Department file of even number dated 12.8.1991." 7.3. On account of the said changes the employees are however given one more option to remain under the pension scheme or to remain in contributory provident Fund Scheme within 2 months from the issue of the Government Resolution. The concurrence of the Finance Department is obtained on the Department file of even number dated 12.8.1991." 7.3. Thus, the State Government has extended the time limit for filing the option of such employees by two months and accordingly, the petitioner opted for pension scheme on 24.10.1991 i.e. within two months. The respondent - authority has refused to accept the option of the petitioner by stating that the aforesaid resolution dated 17.09.1991 only applies to in service employees, which is misconceived, since no such prescription has been incorporated in the same. The aforesaid resolution is also considered by the Division Bench in the aforenoted judgment. The case of the petitioner stands on better traction than the employees who were before the Division Bench, since in their case, the employees were re-appointed and had not given any option for switching over to the pension scheme. The Division Bench has surveyed all the Resolution from the inception of the scheme and also the subsequent resolutions by which the time to give option was extended and thereafter has directed the State authorities to grant them the pension with interest at the rate of 9% from the date of refund of the amount of Contributory Provident Fund. 8. In this view of the matter, impugned order dated 05.08.1999 is quashed and set aside. The respondents are directed to fix and grant the pension to the petitioner from his date of retirement with 9% interest from the date of deposit of the Provident Fund amount within 8 weeks from the date of receipt of the writ of this order. Petition is allowed and disposed of. Rule is made absolute to that extent. Direct service is permitted.