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2019 DIGILAW 973 (GUJ)

Talsibhai Dhanjibhai Patel v. State of Gujarat

2019-10-18

N.V.ANJARIA

body2019
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 respondents. 1.2. Heard learned advocate Mr. Vaibhav Vyas for the petitioner and learned Assistant Government Pleader for the respondents. 2. It is for the following prayers that the present petition came to be filed, "(i) to declare and hold that the petitioner is entitled for the grant of retirement benefits such as pension, gratuity, leave encashment, etc. upon his retirement from service' (ii) to direct the respondent authorities to finalize the pension case of the petitioner and make payment of pension, gratuity, leave encashment, commutation of pension etc. to the petitioner; (iii) to make payment of interest on the delayed payment of retirement dues of the petitioner;" 3. The petitioner was appointed as Assistant Lecturer on 10.3.1987 under Gujarat Education Services and was ordered to be posted at Sir Bhavsinhji Polytechnic Institute, Bhavnagar, whose appointment was made by the state government after undertaking process of selection. The appointment of the petitioner was on ad hoc basis. The order of appointment inter alia provided that he would be continued until the regularly selected candidate from the Gujarat Public Service Commission was available or till the period of one year, whichever was earlier. On 31.3.1989, the petitioner became Lecturer and came to be appointed in the same college. This appointment was again on the similar terms as above. 3.1. It is the uncontroverted case of the petitioner that his services continued even after expiry of period of one year mentioned in the letter of appointment. It, however, appears that services of the petitioner came to be terminated on 4.9.1991. The petitioner filed Special Civil Application No. 8994 of 1991 and this court granted interim relief on 26.12.1991 to the petitioner. The petitioner alongwith other similarly situated persons who are also relieved, came to be reinstated in service. 3.2. It appears that again on 28.1.2011 services of the petitioner came to be terminated which led the petitioner to file yet another Special Civil Application No. 1290 of 2011 alongwith other similarly situated persons. The petitioner alongwith other similarly situated persons who are also relieved, came to be reinstated in service. 3.2. It appears that again on 28.1.2011 services of the petitioner came to be terminated which led the petitioner to file yet another Special Civil Application No. 1290 of 2011 alongwith other similarly situated persons. The said petition came to be disposed of on 7.9.2011 alongwith Letters Patent Appeal and other cognate petitions. 3.3. It is stated by the petitioner that during the pendency of the said petitions, the steps were taken by the government to fill-up the posts. The court also passed interim order on 21.6.2011 whereby the petitioner was ordered to be reinstated. The petitioner joined services on 24.6.2011. Thus, in the continuous service as ad hoc Lecturer, there were two interruptions which were for 26 days in the year 1999 and for about five months in the year 2011. The petitioner has put in total service of 30 years and 9 months services excluding above break for the short duration. The petitioner retired upon attaining the age of superannuation on 14.6.2018. He was asked to submit details for finalisating his pension papers. The petitioner submitted necessary details on 12.2.2016. 3.4. It is the case of the petitioner that he thereafter made representation on 30.11.2016. The petitioner was informed that guidance was sought from the Head Quarter. The petitioner made yet another representation on 9.2.2017, but nothing had been yielded. It is the specific case of the petitioner that similarly situated ad hoc Lecturers were granted the benefits of pension and other retirement benefits. Therefore, the present petition came to be filed with the prayers as above. 4. The petition and the prayers were contested by the respondents, in which it is inter alia stated in para-15 that the petitioner failed to pass the recruitment process which was advertised for more than one occasions and that his services throughout remained ad hoc in nature. It was sought to be contended that since service tenure was temporary and ad hoc in nature, it would not qualify for pension and retirement benefits. 5. In Bahadur Hoshi Kotwal vs. State of Gujarat being Special Civil Application No. 19042 of 2017 decided on 7.5.2019 similar issue came up for consideration. The claim of the petitioner for pension etc. was opposed on the ground that petitioner's services were ad hoc. 5.1. 5. In Bahadur Hoshi Kotwal vs. State of Gujarat being Special Civil Application No. 19042 of 2017 decided on 7.5.2019 similar issue came up for consideration. The claim of the petitioner for pension etc. was opposed on the ground that petitioner's services were ad hoc. 5.1. Rule 25 of the Gujarat Civil Services (Pension) Rules, 2002, deals with the qualifying service for the purpose of pension. This rule extracted in its relevant part, reads as under, "Rule-25. Qualifying Service : Subject to the provisions of these rules, qualifying service of a Government employee, means and includes,- (i) all service including service on probation rendered on a regular establishment in any capacity whether, temporary or permanent, interrupted or continuous but it shall not include- (a) service in non-pensionable establishment, (b) service paid from contingencies, (c) service rendered in daily rated establishment, (d) actual periods of break in service if any, between spell of service, (e) service prior to resignation, removal or dismissal, (f) service as an apprentice, (g) service on fixed pay basis, and (h) service on contract basis. (ii) all service rendered in work charged establishment provided that the total service put in, as such is five years or more, (iii) ..... to (ix) .... 5.2. Thus, Rule 25(i) of the Rules provides that qualifying service shall include all services including services rendered on probation. It also includes services rendered in any capacity whether temporary or permanent, whether interrupted or continuous. The qualifying service, but, would not include the service rendered in the non-pensionable establishment or service rendered in contingencies or service rendered in daily-rated establishment. Learned senior counsel for the petitioner could rightly emphasise the group of words "whether temporary or permanent, interrupted or continuous" from the language of the Rules to submit that the petitioner's services would be included as per the Rules, within the purview of qualifying service for pension. 5.3. In view of the above Rule-25 of Pension Rules 2002, temporary services are liable to be counted as pensionable. Even though the petitioner served as ad hoc for 30 years and 9 months, he was on the regular establishment entitled to get his services to be treated as pensionable. Rule 25 in terms says that qualifying service for pension include even interpreted services. Even though the petitioner served as ad hoc for 30 years and 9 months, he was on the regular establishment entitled to get his services to be treated as pensionable. Rule 25 in terms says that qualifying service for pension include even interpreted services. Therefore, short breaks of 26 days and 5 months during the tenure of the services of the petitioner, would be in no way implead in counting the services of the petitioner to qualify as pensionable services. 6. As a result of the above discussion, the petitioner has to be treated as entitled for grant of pensionary and retiral benefits such as gratuity, leave encashment and those admissible to him on the basis of services of 30 years and 9 months which would be treated as qualifying service for pension and retirement benefits. The respondents are directed to finalise the pension case of the petitioner within a period of three months from the date of receipt of copy of the present order and pay to the petitioner pension regularly alongwith other retirement dues admissible and payable to him. The arrears which may arise to be paid shall be paid within further period of two months. 7. The petition is allowed in the aforesaid terms. Rule is made absolute to the aforesaid extent. Direct service is permitted.