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2019 DIGILAW 955 (GUJ)

Gita P. Desai v. State of Gujarat

2019-10-17

A.S.SUPEHIA

body2019
JUDGMENT : A.S. Supehia, J. Since the common issue is involved in the present writ petitions, the same are decided by this common judgment and order. 1. At the outset, learned advocate Mr. Vishal Mehta appearing for the petitioners has submitted that the issue is squarely covered by the judgment dated 27.07.2015 passed in Letters Patent Appeal No. 1019 of 2015 and accordingly the present writ petition may be disposed. 2. In the present writ petition, the petitioners have prayed for the quashing and setting aside the communications dated 20.02.2015 and 17.02.2015 and further direction is sought against the respondent authority to forthwith accept the options forwarded by the petitioners and to extend the pensionary benefit to them with immediate effect. 3. The petitioners are claiming the pensionary benefits as per the scheme applicable to them. The petitioners were serving as Library Assistants in the Pharmacy Department and appointed between the year 1984-92. It appears that thereafter the respondent No. 3-Institute approached the Government authorities to regularize 12 posts of various categories in the Institute and hence, the request was acceded to and the Institute has been granted such regularization with effect from the academic year 1990-91 vide order dated 23.12.1997. Accordingly, the petitioners were placed in the pay-scale of Rs. 10,050/- with effect from 01.01.2006 and placed in the pay band of Rs. 5200-20200/- along with the grade pay of Rs. 2400/-. 4. Learned advocate Mr. Vishal Mehta appearing for the petitioners has submitted that thereafter the pension scheme was made applicable to the colleges, including the respondent No. 3-college since it was recognized institute attached with grant-in-aid and hence, the petitioners are entitled to the pension. It is submitted by the learned advocate Mr. Mehta that the respondent No. 3-Institute, at the relevant point of time, asked the petitioners to fill-up their option for pension. 5. Learned advocate Mr. Mehta for the petitioners has submitted that accordingly an intimation was given by the employees to exercise the option on 06.04.2000 and they opted for pension scheme and their option was also forwarded to the Director of Technical Education. He has further submitted that as per the resolution dated 22.03.1993 and the resolution dated 23.12.1997, the scheme of pension, which was floated by the State Government is applicable to the respondent No. 3-Institute and hence, the petitioners are also entitled to the same. He has further submitted that as per the resolution dated 22.03.1993 and the resolution dated 23.12.1997, the scheme of pension, which was floated by the State Government is applicable to the respondent No. 3-Institute and hence, the petitioners are also entitled to the same. It is submitted by the learned advocate Mr. Mehta that however one communication was sent to the petitioners on 20.02.2015 informing that vide communication dated 17.02.2014 the request/proposal came to be turned down by the respondent State authorities on the ground that there has been a delay in exercising the option of pension and such delay cannot be condoned. 6. Learned advocate Mr. Mehta has placed reliance on the decision dated 02.05.2019 passed by Division Bench of this court in Letters Patent Appeal No. 2259 of 2017 and allied matters in support of his submissions. 7. Per contra, learned AGP Mr. Ishan Joshi has submitted that the petitioners are not entitled for pension since they have belatedly exercised their option and hence, the delay cannot be condoned and the impugned order may not be set aside. 8. I have heard the learned advocates appearing for the respective parties. 9. A perusal of the judgment dated 27.07.2015 passed by the Division Bench of this court in Letters Patent Appeal No. 1019 of 2015 reveals that an analogous issue was considered by the Division Bench, wherein the pension was denied to the Professors for the reasons that they did not exercise their option for pension and some of them had exercised their option belatedly. The Division Bench, after considering the various resolutions governing the scheme of pension, has held thus: "[5.1] Identical question came to be considered by the Division Bench of this Court in the case of Bhupendra Vallabhdas Chudasama and Anr. (Supra) rendered in Letters Patent Appeal No. 981/2015 and after considering the G.R. dated 15.10.1984 and on interpreting the said resolution it is held that any staff and/or employee of the University under the Education Department and in affiliated and aided non-government Arts, Science and Commerce Colleges in the State, appointed/recruited after 01.04.1982 shall automatically be governed by the G.R. dated 15.10.1984 and shall be entitled to the pension scheme automatically and they are not required to give any option. In para 7 the Division Bench has observed and held as under: [7.0] In view of the above, it cannot be said that the learned Single Judge has committed any error in directing the appellants to consider the previous service of the original petitioner i.e. for the period between 27.06.1968 to 17.11.1969 and 15.06.1970 to 30.06.1975 for computing the length of qualifying service for pension. However, as clarified hereinabove, the aforesaid previous service is required to be counted/considered and/or to be taken into consideration for computing the length of qualifying service only and not for computation of the pension and/or fixation of the amount of pension, as prior to 01.04.1982, the GPF Scheme/pension scheme was not applicable at all and it is made applicable with effect from 01.04.1982 and therefore, the past service/previous service is required to be taken into account only for computing the length of qualifying service for pension as per Clause 6 of the G.R. dated 15.10.1984. It is required to be noted that in the present case as such even if his previous service is not taken into account for fixation of the pension and/or for quantification of the amount of pension, the amount of pension is not likely to be changed. As observed hereinabove, the original petitioner was mainly denied the pensionary benefits/GPF Scheme as per the G.R. dated 15.10.1984 mainly on the ground that at the time when the original petitioner joined original respondent No. 4 College/institution, he did not exercise the option for the pension scheme, which as observed and held hereinabove the original petitioner was not required to exercise such an option. [5.2] The decision of the Division Bench of this Court in the case of Bhupendra Vallabhdas Chudasama and Anr. (Supra) squarely applies to the case on hand. [5.2] The decision of the Division Bench of this Court in the case of Bhupendra Vallabhdas Chudasama and Anr. (Supra) squarely applies to the case on hand. Under the circumstances, the impugned order passed by the learned Single Judge cannot be sustained and the same deserves to be quashed and set aside and it is to be held that petitioner shall be entitled to the pension under the GPF Scheme as per the G.R. dated 15.10.1984 and her earlier services if prior to 01.04.1982, if any, as required to be counted for the purpose of pensionable service only, however before any benefit is granted to the petitioner under the GPF Scheme, the petitioner shall deposit the entire amount of CPF if any received by her during her service and only thereafter she shall be entitled to the benefit of GPF Scheme as per the G.R. dated 15.10.1984." Thus, it is held in the aforenoted observations that, under the Education Department and in affiliated and aided non-government Arts, Science and Commerce Colleges in the State, appointed/recruited after 01.04.1982 shall automatically be governed by the G.R. dated 15.10.1984 and shall be entitled to the pension scheme automatically and they are not required to give any option. The employees of such institutes were denied the pensionary benefits/GPF Scheme as per the G.R. dated 15.10.1984 mainly on the ground that at the time when they joined original respondent No. 4 College/institution, they did not exercise the option for the pension scheme. The Division Bench has held as mentioned hereinabove that they were not required to exercise such an option. Thus, it is held that such employees were not required to exercise option for pension and they would be governed by the pension scheme promulgated vide resolution dated 15.10.1984. 10. Thereafter, similar issue was considered by the Division Bench of this court in another judgment dated 02.05.2019 passed in Letters Patent Appeal No. 2259 of 2017. The Division Bench, after examining various circulars of the State Government as well as the scheme of pension scheme applicable to the various universities has finally laid quietus to the controversy by observing thus: "12. Having perused the facts in the context of the term what is apparent is from the Government Resolutions dated 23.11.1976 and 14.09.1988, the selection is by issuance of a public advertisement. Once a person makes an application, a duly constituted selection committee is formed. Having perused the facts in the context of the term what is apparent is from the Government Resolutions dated 23.11.1976 and 14.09.1988, the selection is by issuance of a public advertisement. Once a person makes an application, a duly constituted selection committee is formed. Even in the Career Advancement Scheme, the modus is of recruitment. All these aspects were rightly considered in the decision in the case of Dr. S.G. Trivedi (supra) where the Court specifically held that if it is found that respondent No. 1 joined services of South Gujarat University only on 01-10-1984 and the earlier services of respondent No. 1 cannot be said to have any bearing on question of applicability of the pension scheme pursuant to Government Resolution dated 15-10-1984, his case for receiving pension would get a boost. On the other hand, if it is found that respondent No. 1 who had served in private affiliated aided college right from 1964 and switched over to the university services on 01-10-1984 after tendering technical resignation, joined his duties immediately on the next date in the University Services and that therefore, respondent No. 1 should be treated to have been in service prior to 01-04-1982, the State Government would be justified in contending that Tribunal erred in granting the pensionary benefits to the respondent No. 1. 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. 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. 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. 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. 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." 11. The Division Bench in the aforesaid judgment dated 02.05.2019 has observed that in case of the respondents, who have refunded/repaid the amount of Contributory Provident Fund (CPF), 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 CPF. 12. In the present case, the learned advocate for the petitioners has submitted that the petitioners have not claimed the CPF and the same is lying with the respondent authorities. 13. In this view of the matter, the present writ petitions are allowed in the terms of the observations made by the Division Bench in the aforenoted judgment. The impugned communications dated 20.02.2015 and 17.02.2014 are hereby quashed and set aside. The respondents are hereby directed to pay the amount of pension to the petitioners at the rate of 9% per annum from the date of their retirement. The impugned communications dated 20.02.2015 and 17.02.2014 are hereby quashed and set aside. The respondents are hereby directed to pay the amount of pension to the petitioners at the rate of 9% per annum from the date of their retirement. The directions of this court shall be implemented within a period of eight weeks from the date of receipt of the writ of this order. Rule is made absolute. Direct service is permitted. 14. Registry is directed to place a copy of this order in the connected matter.