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2019 DIGILAW 908 (GUJ)

Shashikanta Dindayal Tuteja v. State of Gujarat

2019-10-15

N.V.ANJARIA

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ORDER : N.V. Anjaria, J. 1. In the facts and circumstances of the case and having regard to the request and consent of the parties appearing through their respective learned advocates, the petition was taken up for final consideration today. 1.1. Rule returnable forthwith. Learned Assistant Government Pleader Mr. Manan Mehta waives service of Rule for the respondent No. 1, 2, and whereas learned advocate Mr. Mitul Shelat waives waives service of Rule on behalf of respondent No. 4. 1.2. Heard learned advocate Mr. S.J. Gaekwad for the petitioner, learned Assistant Government Pleader and learned advocate for respondent No. 4. 2. The petitioner has prayed, "to permit the petitioner to switch over to GPF and Pension Scheme on payment of the amount of CPF received by the petitioner at the time of retirement, as directed by the University". 3. The petitioner joined the respondent No. 4 University as Lecturer in Biology on 20.1.1981. Subsequently, she was appointed as Reader on 30.11.1996 and retired on superannuation with effect from 14.6.2009. As per government Resolution dated 15.10.1984, the persons joining University services were automatically covered under the Pension Scheme which was made applicable by the University with effect from 1.4.1982. The resolution dated 15.10.1984 provided for one year's time to the persons who retired during the period from 1.4.1982 to 1.4.1984 to exercise the above option for switching over to General Provident Fund and Pension Scheme. 4.1. It is the case of the petitioner that University authorities did not brought to the notice of the petitioner the provisions of said resolution properly and as a result of which, the petitioner could not exercise option within the stipulated time. The petitioner wants to switch over to the Pension Scheme as per the government Resolution dated 15.10.1984. As the representation made in January, 2018 to the University did not yield any result, the present petition came to be filed. 5. It appears that by aforesaid Resolution dated 15.10.1884, the State Government extended the benefit of General Provident Fund scheme with effect from 1.4.1982 to be applicable to the full time teaching staff of the University under the Education department as well as to the non-affiliated unaided colleges. By another Resolution dated 14.9.1988, the policy decision was taken to introduce the benefit of pension scheme and family pension to the non-teaching staff. By another Resolution dated 14.9.1988, the policy decision was taken to introduce the benefit of pension scheme and family pension to the non-teaching staff. Both these Resolutions stipulated that in order to fall under the benefit of scheme, the employee must have retired before 1.4.1982. Those who had retired or after 1.4.1982 and prior to the date of issuance of Resolution dated 15.10.1984, were required to exercise option within one year. Thus, the petitioner wants the benefit of GPF scheme which is not being extended to the petitioner apparently on the ground that he did not exercise the option within the stipulated time. 6. Learned advocate for the petitioner relies on the decision of the Letters Patent Bench in State of Gujarat vs. Kalhans Harilal Patel being Letters Patent Appeal No. 2259 of 2017 arising from different petitions decided on 2nd May, 2019, to submit that the issue involved in this petition is covered by the said decision. Learned Assistant Government Pleader also could not dispute the position of law emanating from the said decision to further submit that in view of that, affidavit-in-reply was not necessary to be filed. 7. In Kalhans Harilal Patel (supra), following was held in paragraph 11(d) as under. "(d) What is evident from the service details of the respondents is that they had two spells of service. The first spell was prior to 01.04.1982 and the second one after 01.04.1982. As far as the first spell is concerned there was only one scheme CPF, therefore there was no question of exercising option. In the second spell, when they joined there was no question of exercising option as the pension scheme was compulsory. They were, to use the words of clause 4 of the resolution, "automatically" governed by the pension scheme as therefore there was no fault, inaction or omission which would disentitle them to claim pension. The disability of filling in the option form or asking for switching over belatedly cannot be held against them." 7.1. It was further held in paragraph 12.1 onwards 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. It was further held in paragraph 12.1 onwards 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 judgment 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. 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. 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 here in below: "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. 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. 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." 7.2. In view of the above law laid down by the Division Bench, the petitioner would be entitled to have the benefit of GPF Scheme. 8. As a result of the above discussion, the petitioner is entitled to relief prayed for in the petition. The respondent authorities are directed to permit the petitioner to switch over to General Provident Fund Scheme and Pension Scheme on payment of amount of CPF received by the petitioner at the time of retirement. 9. The petition is accordingly and allowed and disposed of. Direct service is permitted.