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Gujarat High Court · body

2019 DIGILAW 977 (GUJ)

Rajnikant Jayantilal Shah v. State of Gujarat

2019-10-18

A.S.SUPEHIA

body2019
JUDGMENT : A.S. Supehia, J. 1. Rule. learned AGP waves service of rule for the respondent no. 1-State. 2. The present writ petition has been filed seeking following prayers: "(b) To quash and set aside the respondent's action and inaction in not considering the case of the petitioner for pension by passing appropriate orders declaring him to be entitled to receive pension and further be pleased to declare that the petitioner's recruitment and appointment as Reader 06.06.1983 and Professor with effect from 07.09.1998 is fresh recruitment after 01.04.1982 therefore, he is entitled to pension as per the provisions of G.R. dated 15.10.1984 and further be pleased to direct the respondent to grant pension to the petitioner forthwith by considering the service rendered by him by issuing writ in the nature of mandamus or certiorari or any other appropriate writ, order or direction so deemed fit and proper (c) Be pleased to direct the respondent authorities to give benefits of GPF scheme by transferring account of applicant to GPF and further to give benefits of pension scheme under Resolution dated 15.10.1984 within 3 months from the date of order and further be pleased to direct the respondent authorities to start monthly pension immediately to serve the purpose of justice." 3. At the outset, learned advocate Mr. Chauhan appearing for the petitioner has submitted that the issue involved is squarely covered by the various judgments of this Court dated 21.08.2019 passed in Special Civil Application No. 8759 of 2016 and order dated 04.09.2019 passed in Special Civil Application No. 14259 of 2015. He has submitted that the aforesaid judgments are rendered on the basis of the judgment dated 02.05.2019 passed in Letters Patent Appeal No. 2259 of 2017 and allied matters. 4. Learned advocate Mr. Chauhan for the petitioner has submitted that the petitioner is entitled to the pensionary benefits as provided under the Government Resolution dated 15.10.1984. He has submitted that the petitioner was appointed as temporary Assistant Lecturer on 19.06.1972 and thereafter confirmed as lecture on 09.07.1973. 5. Subsequently, he has applied for the post of Reader advertised by the University notification, after passing through denovo selection process and pursuant to selection Committee's report, he was appointed as a Reader on 06.06.1983. 6. He has submitted that the petitioner was appointed as temporary Assistant Lecturer on 19.06.1972 and thereafter confirmed as lecture on 09.07.1973. 5. Subsequently, he has applied for the post of Reader advertised by the University notification, after passing through denovo selection process and pursuant to selection Committee's report, he was appointed as a Reader on 06.06.1983. 6. The University advertised the post of Professor under Career Advancement Scheme on 06.12.1999 vide circular No. ADE/6/39, pursuant to which, the petitioner was appointed after following the due selection process as prescribed under the law and government notification in view of UGC guideline. Subsequently, the petitioner was appointed as Professor vide order dated 18.08.2000 and 02.08.2001 with effect from 07.09.1998. 7. Learned advocate Mr. Chauhan for the petitioner has submitted that the petitioner has joined the services after 01.04.1982 by undergoing due selection process under the relevant statute, hence as per the requirement of said resolution an employee recruited on or after 01.04.1982 are "automatically" covered in pension scheme, hence the petitioner's case is covered under Clause 4 and 6 of the Resolution dated 15.10.1984, which is made effective from 01.04.1982 because of which he was not required to give any option form. Thus, he has submitted that the present writ petition may be allowed in terms of the directions issued by the Division Bench in the judgment dated 02.05.2019 passed in Letters Patent Appeal No. 2259 of 2017 and allied matters. 8. Per Contra, learned AGP Mr. Ishan Joshi has submitted that the petitioner cannot be entitled to get any benefits of pension since he has not filed any option claiming pension as governed by the earlier CPF scheme. 9. I have heard the learned advocates appearing for the respective parties. 10. The petitioner is claiming pension as per the Government Resolution dated 15.10.1984. He was appointed as a Lecturer on 09.07.1973 and subsequently, after following due selection process, he was appointed as a Professor vide order dated 18.08.2000 and 02.08.2001 with effect from 07.09.1998. It is the case of the petitioner that since he had joined the service after 01.04.1982 by undergoing selection process under relevant statute, he would automatically governed by the pension as promulgated vide resolution dated 15.08.1984 more particularly Clause 4 and 6. 11. It is the case of the petitioner that since he had joined the service after 01.04.1982 by undergoing selection process under relevant statute, he would automatically governed by the pension as promulgated vide resolution dated 15.08.1984 more particularly Clause 4 and 6. 11. The aforesaid issue was comprehensively considered by the Division Bench vide judgment dated 02.05.2019 passed in Letters Patent Appeal No. 2259 of 2017 and allied matters, while considering earlier decision of the Division Bench, various decisions rendered by the Division Bench on similar issue and the provisions of resolution dated 15.10.1984 has observed thus: "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. 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." 12. The Coordinate Bench of this court in the judgment dated 21.08.2019 while examining the identical issue after referring the judgment of the division bench rendered in Letters Patent Appeal No. 2259 of 2017 and allied matters has held thus: "9. Appeals are accordingly dismissed. Civil Applications also stand disposed of accordingly." 12. The Coordinate Bench of this court in the judgment dated 21.08.2019 while examining the identical issue after referring the judgment of the division bench rendered in Letters Patent Appeal No. 2259 of 2017 and allied matters has held thus: "9. In the present case, it is undisputed that the petitioner was initially appointed in the year 1976 by the M.S. University and thereafter, she was promoted as Reader in the Department of Clothing & Textile by the M.S. University vide promotion order dated 4.6.1985 further followed by the promotion as a Professor vide order dated 2.8.2001. In view of petitioner's appointment being after 1.4.1982, provision of Government Resolution dated 15.10.1984 stands applicable to the petitioner. The case of the petitioner stands squarely covered by the judgment of the Division Bench in the case of State of Gujarat vs. Kalhans Harial Patel (supra). 11. So far as the issue of Contributory Provident Fund is concerned, the Division Bench has observed in paragraph 15 to the following effect: "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...." 12. In view of the reasons recorded in the aforementioned judgment in the case of State of Gujarat Vs. Kalhans Harial Patel (supra), the present petition stands allowed. The respondent authorities are directed to grant the benefit of pension scheme to the petitioner in tune with the Government Resolution dated 15.10.1984 from the date of her retirement. So far as the aspect of Contributory Provident Fund is concerned, if the petitioner has not refunded/repaid the amount of Contributory Provident Fund, her 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 petitioner. So far as the aspect of Contributory Provident Fund is concerned, if the petitioner has not refunded/repaid the amount of Contributory Provident Fund, her 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 petitioner. In case the petitioner, has refunded/repaid the amount of Contributory Provident Fund, the petitioner shall be entitled for interest at the rate of 9% per annum on the amount of pension from the date of his repaying/refunding the amount of Contributory Provident Fund. The respective parties shall act upon these directions and pay the amount to the petitioner within a period of 8 weeks from the date of receipt of the writ of the order of this Court. 13. In this view of the matter, the issue is squarely covered by the aforenoted judgments, the present writ petition succeeds in terms of the by the division bench in the judgment dated 02.05.2019 rendered in Letters Patent Appeal No. 2259 of 2017 and allied matters. 14. The respondents are hereby directed to grant the benefit of pension scheme in light of Government Resolution dated 15.10.1984 to the petitioner from the date of his retirement. 15. In the present case, the petitioner has already received an amount of CPF and hence, the same has to be adjusted towards the pension from the date of his refunding the amount of CPF. Necessary orders granting the pension to the petitioner within a period of two months from the date of receipt of the writ of this order. Rule is made absolute. Direct service is permitted.