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2020 DIGILAW 108 (GUJ)

State of Gujarat v. Shah Bharatkumar Narsinhdas

2020-01-21

A.J.SHASTRI, VIKRAM NATH

body2020
ORDER : A.J. SHASTRI, J. 1. Present Letters Patent Appeals are filed under Clause 15 of the Letters Patent challenging the oral order passed by learned Single Judge on 9.7.2019 in group of petitions. 2. Since these three appeals are arising out of the common order and substantially, the facts and question of law are common, at the request of learned Assistant Government Pleader, all these appeals are taken up for disposal by the present common order by treating Letters Patent Appeal No.87 of 2020 as a lead matter. 3. Letters Patent Appeal No.87 of 2020 is arising out of Special Civil Application No.19369 of 2018, which appears to have been filed by four petitioners on the premise that they are full time teaching and non-teaching staff of the Universities under the Education Department and non-affiliated and aided non-Government Arts, Science, Commerce and Education Colleges in Gujarat. The Government Resolution dated 21.12.1971 has categorized the teaching staff, consisting of full-time Professor, Assistant Professor, Reader, Lecturers in Universities and Principal, Lecturer, Tutor, Demonstrator, Physical Training Instructors, Librarians working in non-Government aided colleges, which colleges are receiving University Grant Commission’s scales. According to the petitioners, Revised Pension Rules, 1950 sanctioned under GoG Finance Department Resolution dated 24.12.1969 and amended from time to time were applicable to all the employees of non-Government aided secondary schools as well. To be eligible for family pension benefits under the revised Pension Rules, 1950, completion of service of not less than 10 years was necessary and period of pension was also limited to 10 years. Since the revised Pension Rules was found to be inadequate, the Government of Gujarat introduced New Family Pension Scheme for Government employees, sanctioned under the Finance Department resolution dated 1.1.1972. This revised Family Pension Scheme was made available to all the employees who were in service on 1.6.1971 or were recruited thereafter. It had been submitted that para 6 of the said Government Resolution dated 1.1.1972 provides that GoG employees in service on 31.5.1971, to whom revised Pension Rules, 1950 and Bombay Civil Services Rules, 1959 were applicable will be deemed to have accepted the revised FPS instead of benefits under the revised Pension Rules, 1950. Unless they exercised the option of continuing the benefits received earlier before 31.5.1972. Unless they exercised the option of continuing the benefits received earlier before 31.5.1972. It appears that such revised Family Pension was liberalized substantially after issuance of the Government Resolution dated 15.10.1984 and it was observed that those staff who had retired on or after 1.4.1982 and prior to 15.7.1984 have to exercise their option within a period of one year from 15.10.1984 either to continue with CPF, i.e. Contributory Fund Scheme, or to come under revised Family Pension Scheme. The members of the staff who did not exercise option within the stipulated period were to be treated as deemed to have adopted for retention of benefits admissible to them before 1.4.1982 and other staff members recruited on or after 1.4.1982 would automatically be governed by the revised FPS and would not be allowed to opt for CPF scheme. It was the case that since the teaching staff (the petitioners) failed to exercise their option in the aforesaid stipulated period, one more option to switch over to liberalized Pension Scheme be made available. In view of such opportunity having been given, even specific resolution was passed on 11.10.1988, stating that those members of the teaching staff in service and who had selected CPF Scheme on earlier occasion have been given three months’ time from 11.10.1988 to switch over to liberalized Revised FPS. Further, according to the original petitioners, the Education Department issued a resolution 17.9.1991 inter alia enhancing Death-cum-Retirement, gratuity, limit for the employees of respective Universities and colleges. Even though who had opted for pension scheme and/or continued to remain under GPF scheme, on account of the said resolution dated 17.9.1991, which was issued, Sardar Patel University has issued circular dated 1.11.1991, wherein time limit to modify the option for pension scheme was extended till 16.11.1991. The said circular was issued in the period of Diwali vacation, on account of which, the petitioners were not aware about the same nor have been informed to exercise their option for pension scheme and its extended time limit, as a result of this, practically 90% of the members of the teaching staff could not exercise their option for pension scheme, which has deprived the petitioners of their legitimate benefits prescribed under the Pension Scheme. On account this, several representations were made to grant one more opportunity to opt for pension scheme but, all attempts failed, even the Registrar of Sardar Patel University on 16.6.2005 wrote a letter to the Education Department and requested that as per the resolution dated 17.9.1991, most of the employees of the University had not opted for pension scheme on account of intervening Diwali vacation and as such, recommended. Even the Federation of Teachers’ Association also made several representations, as a result of which, the Government appointed one Committee, named ‘Mavani Committee’, consisting of two Vice Chancellors, one Pro-Vice Chancellor, two Secretaries, Commissioner of Higher Education and three Presidents of different Federations for Teacher Association on 16.8.2002 to resolve such grievance in respect of one more option for pension scheme. But, such opportunity of option has not been granted, which has resulted into filing of the writ petition. According to the original petitioners, one Special Civil Application No.8353 of 2007 and allied matters came up for consideration before this Court, wherein on 23.3.2007, a direction was issued to the State Government to reconsider the case of the petitioners and other affected persons. After the disposal of the said petitions, firstly the petitioners made representation on 27.5.2007 before the authority but then a Section Officer of the Education Department wrote a letter on 29.8.2007 informing that in view of the decision delivered by the Apex Court in case of Bureau of Indian Standards, since option is not exercised within the specified time limit, benefit is not possible to be extended and having noticed that some 15 persons, who were initially appointed under CPF Scheme, but at a later stage, pensionary benefits were extended to them, aggrieved by such pick and choose policy, it appears that the petitioners have challenged the action of the respondent authority and prayed for the following reliefs:- “(A) YOUR LORDSHIPS may be pleased to tagged this SCA with other SCAs No.14322/2016, 10573/2016 and 16812/2016 and allow Special Civil Applications. (B) YOUR LORDSHIPS may be pleased to direct the respondent authorities to give benefits of GPF scheme by transferring to petitioners from CPF to GPF and further to give benefits of pension scheme under Resolution date 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. (C) Commanding the respondents to give to the petitioners within the time to be specified by this Hon’ble Court benefits of or option to join Revised Family Pension Scheme with efforts from 01.04.1982. (D) …...........” 4. Learned Single Judge after hearing both the sides, came to the conclusion that the petitioners have been erroneously deprived of such benefit, as a result of this, the petitions came to be allowed along with other petitions, and it is this common order passed by learned Single Judge on 9.7.2019, is made the subject matter of the present Letters Patent Appeal. For immediate perusal, operative part of the order contained in para 6 is reproduced hereinafter:- “6. As a result of above, all these petitions are allowed. Respondent authorities are directed to give the benefit of General Provident Fund Scheme to the petitioners and give the benefit of pension in view of the Government Resolution dated 15th October, 1984 from the date of their respective retirement. If the petitioners have not refunded the amount of Contributory Provident Fund, the case of such petitioners shall be considered by the authorities by paying the amount of pension after making due adjustment. In case of such petitioners who have refunded the amount of Contributory Provident Fund, they shall be entitled to interest at the rate of 9% per annum on the amount of pension from the date of their repaying of amount of Contributory Provident Fund. The respondents shall be completing the necessary process within eight weeks from the date of receipt of the present order.” 5. Almost similar is the circumstance with respect to the petitioners who are six in number in Special Civil Application No.4422 of 2018, out of which, Letters Patent Appeal No.88 of 2020 has arisen. Since the facts are not in controversy and the reliefs are identical in nature, detailed background of facts is not reproduced in the present order. However, according to learned Assistant Government Pleader, the status of those employees is almost similar to that of the previous Letters Patent Appeal. 6. Since the facts are not in controversy and the reliefs are identical in nature, detailed background of facts is not reproduced in the present order. However, according to learned Assistant Government Pleader, the status of those employees is almost similar to that of the previous Letters Patent Appeal. 6. Same is the case with yet Letters Patent Appeal No.89 of 2020, which arises out of Special Civil Application No.5373 of 2019 by almost six petitioners claiming identical relief and since there seem to be no dissimilarity of the grievance, we desist ourselves from overburdening the present order by not mentioning the facts in detail since the same are not in dispute. 7. We have heard learned Assistant Government Pleader Mr. J.K. Shah appearing on behalf of the State authority, who has vehemently contended that learned Single Judge has committed serious error in passing the impugned order. It was contended before us that undisputedly, the original petitioners have not exercised their option within the prescribed time limit and as such, having failed to maintain the time schedule, no equitable relief could have been given. Mr. Shah has submitted that a detailed affidavit-in-reply is filed contesting the claim made out by the original petitioners and such detailed reply has categorically submitted that in view of the several decisions delivered by the Apex Court, such benefit is not available to the original petitioners once having failed to exercise their option. It has been submitted that in an identical situation, cropped up before the Apex Court, wherein also, Hon’ble the Apex Court did not grant further opportunity to switch over from CPF to GPF, as a result of which, the order passed by learned Single Judge is not sustainable in the eye of law. Mr. Shah has submitted that the reliance which has been placed on the decision delivered by the Division Bench of this Court in which the circumstances are altogether different and as such, the same ought not to have been applied as straitjacket formula. It has been submitted that each Government Resolution is passed with specific indication about the time limit and lastly, when three months’ time was extended, it was the original petitioners who did not choose to opt. Hence, afterthought attempt might not have been encouraged by the learned Single Judge by passing the impugned order. However, Mr. It has been submitted that each Government Resolution is passed with specific indication about the time limit and lastly, when three months’ time was extended, it was the original petitioners who did not choose to opt. Hence, afterthought attempt might not have been encouraged by the learned Single Judge by passing the impugned order. However, Mr. Shah has candidly submitted that before the learned Single Judge, learned Assistant Government Pleader could not dispute the position of law emanating from the decision delivered by the Division Bench in Letters Patent Appeal No.2259 of 2017 and allied matters. Rather, learned Assistant Government Pleader before learned Single Judge could not deny that the original petitioners would not be entitled to the relief in view of the decision delivered by the Division Bench. As a result of this, Mr. Shah has submitted that appropriate order be passed in the interest of justice. 8. Additionally, Mr. Shah has further candidly submitted that in one identical case, the controversy is set at rest by this Bench also, i.e. in Letters Patent Appeal No.86 of 2020, decided on 20.1.2020. As a result of this, he has left the issue to be appropriately dealt with, with no other submissions. 9. Having heard learned Assistant Government Pleader Mr. J.K. Shah appearing for the appellants and having gone through the order passed by the learned Single Judge at length, we found that the learned Single Judge has in categorical terms observed that this controversy has been set at rest by the decision delivered by the Division Bench of this Court in the case of State of Gujarat Vs. Kalhans Harilal Patel, being Letters Patent Appeal No.2259 of 2017 and other allied matters, and found that in no uncertain terms, the Division Bench has observed while deciding the controversy, in para 5 and 5.1 of the judgment, as under:- “5. 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. 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.” 5.1 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. 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 judgements 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.” 10. Additionally, we also found that when this controversy with regard to the benevolent Scheme to be provided by the State authorities is examined at length, we are not inclined to interfere with, as this very Government Resolution in controversy has been examined. Even we have noticed that learned Assistant Government Pleader also before learned Single Judge could not dispute the proposition of law decided by the Division Bench and has not been able to make out a case that the original petitioners would not be entitled to the relief on the basis of the said decision delivered by the Division Bench. As a result of this, in absence of any deviating or distinguishing material, more favourable to the appellants, we are not inclined to exercise our appellate jurisdiction. Even this Bench has also dealt with this issue in the similar line, as referred to above. Hence, we see no reason to interfere with the view taken by the learned Single Judge. Since learned Assistant Government Pleader has also not been able to raise much resistance to the applicability of the said observations contained in the judgment of the Division Bench, on the basis of which the impugned order has been passed, we are not inclined to entertain the present Letters Patent Appeals. 11. Additionally, we are of the view that learned Assistant Government Pleader has not canvassed before us any other submission to examine the issue. Hence, we see no reasons to interfere with the view taken by the learned Single Judge as said in the judgment delivered by the Apex Court in the case of Management of Narendra & Company Private Limited Vs. Hence, we see no reasons to interfere with the view taken by the learned Single Judge as said in the judgment delivered by the Apex Court in the case of Management of Narendra & Company Private Limited Vs. Workmen of Narendra & Company reported in (2016) 3 SCC 340 , that, ‘Merely because another or better view is possible, order of Single Judge should not be interfered with, unless both sides agree for a fairer approach on relief’. 12. Here, in absence of such contingency or circumstance, we are not inclined to interfere with the view taken by the learned Single Judge. We are in complete agreement with the view taken by learned Single Judge even looking at the issue independently. Accordingly, we see no reasons to interfere with the present set of appeals. Accordingly, the appeals stand dismissed with no order as to costs. 13. Since the main appeals are dismissed, connected Civil Applications also stand dismissed hereby.