Chandrasinh Relibhai Chaudhari v. State of Gujarat
2020-08-04
BIREN VAISHNAV
body2020
DigiLaw.ai
ORDER : 1. The petitioner has filed this petition under Article 226 of the Constitution of India with a prayer to quash and set aside the orders dated 16.02.2015 and 03.07.2017. By the aforesaid orders, the respondent no. 1 – State of Gujarat has directed the respondent no. 2 i.e. Veer Narmad South Gujarat University to recover the amount of salaries earned for a period of two years from the petitioner. In turn, the respondent no. 2 by the order dated 03.07.2017 has directed recovery of Rs.12,26,274/- towards the amount of salary for a period of two years. 2. The facts in brief are as under: 2.1 The petitioner was appointed as a Junior Clerk – cum – Typist on an adhoc basis on a pay-scale of Rs.260-400 on 18.05.1982. Thereafter, he was appointed by an order dated 14.10.1982 on probation for a period of two years which was confirmed with effect from 15.10.1984 by an order dated 29.10.1984. The petitioner got revision of pay from the pay scale of Rs. 260-400 to Rs.950-1500 with effect from 01.01.1986. On 29.09.1989, the petitioner was promoted as Junior Stenographer on an adhoc basis for a period of six months. On completion of 9 years, the petitioner was awarded the first higher grade scale. He was thereafter on 17.10.1992 appointed as a Junior Stenographer on probation for a period of two years which was confirmed by an order dated 28.10.1994. Here too, the petitioner was given the benefit of revised pay scale by an order dated 04.07.1988. A seniority list was issued on 27.05.2009 wherein the name of the petitioner was shown and the date of confirmation was shown as 08.10.1994. In the year 2006, the petitioner was granted the second higher grade pay scale. 2.2 On 31.03.2012, the respondent no. 2 University issued an order that the petitioner will retire with effect from 14.06.2014 on account of superannuation at the age of 60. On 11.12.2014, it appears that respondent no. 2 passed an order stating that the age of retirement of the petitioner should be considered as 58 and not 60 and therefore the petitioner ought to have been treated as retired with effect from 14.06.2012 and not 14.06.2014. Reliance was placed on a resolution of the State Government dated 05.06.2000. Accordingly, the order dated 31.03.2012 retiring the petitioner from 14.06.2014 was directed to be treated as cancelled.
Reliance was placed on a resolution of the State Government dated 05.06.2000. Accordingly, the order dated 31.03.2012 retiring the petitioner from 14.06.2014 was directed to be treated as cancelled. The petitioner was treated to have been retired with effect from 14.06.2012. 2.3 On 16.02.2015 an order was passed that the salary for period of two years from 15.06.2012 to 14.06.2014 be recovered from the petitioner on account of he having worked for a period of two years beyond the age of superannuation. The petitioner was directed to deposit amount of Rs.12,26,274/- as salary by an order dated 01.04.2015. Reliance was placed on a resolution dated 26.09.1989 which referred to government resolution dated 15.10.1984. The order was challenged by the petitioner by filing SCA No. 11966 of 2015. The orders of recovery were set aside on the ground that they were without any opportunity of hearing. The petitioner accordingly was granted an opportunity of hearing and after hearing the petitioner, he was again visited with an order of 03.07.2017 reiterating that the petitioner ought to deposit sum of Rs.12,26,274/-. 3. Mr. Nilesh Shah, learned advocate for the petitioner has submitted that the orders are bad. The petitioner was admittedly appointed prior to 01.10.1984, as he was appointed as a Junior Clerk-cum-Typist on 18.05.1982. Accordingly therefore as per the resolution of 1989 since his appointment was prior to 01.10.1984, his age of superannuation was 60 years and not 58 years. He submitted that for no fault of the petitioner, he was continued in service for a period of two years, he served with the department and therefore recovery of the amount of Rs. 12 lakhs towards salaries is illegal. He further submitted that the petitioner completed 32 years of actual service, pension papers were sent for sanction and it is not the case of the respondents that the petitioner continued work on any misrepresentation of facts made by the petitioner and therefore the order of recovery and resultant withholding of pension was illegal. He submitted that the resolution dated 26.09.1989 was wrongly interpreted by the respondents. He further submitted that parity ought to be given to the petitioner as one Bhaskar Chhotalal Solanki and one Prakash Natwarlal Bardoliya who were appointed as Junior Stenographers after 1984 i.e. in 1988 were continued in service till they attained the age of 60 and no orders of recovery have been passed. Mr.
He further submitted that parity ought to be given to the petitioner as one Bhaskar Chhotalal Solanki and one Prakash Natwarlal Bardoliya who were appointed as Junior Stenographers after 1984 i.e. in 1988 were continued in service till they attained the age of 60 and no orders of recovery have been passed. Mr. Shah would therefore submit that the orders be quashed and set aside. 4. Mr. K.M. Antani, learned AGP appears for the respondent State. An affidavit in reply has been filed by the Joint Commissioner for Higher Education on behalf of respondent no. 1. The affidavit reiterated the service details of the petitioner. What was stated is that by virtue of resolution dated 26.09.1989, the age prescribed for retirement was 60 years for those who were recruited prior to 01.10.1984 whereas the age of retirement for those recruited on or from 01.10.1984 was 58 years. The case of the deponent on behalf of the State is that the petitioner was appointed as a Stenographer by direct selection in 1992 and though the petitioner was an existing employee as on the date of the resolution, since he was freshly recruited as a Junior Stenographer only on 02.11.1992, he cannot avail the benefit of the age of superannuation of 60 years. Mr. Antani, learned AGP further drew the attention of the court to the affidavit-in-reply contending that there was misinterpretation of the government resolution and therefore the petitioner was continued to be retained in service upto the age of 60 years and therefore recovery of amount of Rs.12,26,274/- from the salary of the petitioner was justified. To the contention that similarly situated employees were continued in service, the submission of learned AGP was that Article 14 cannot be pressed into service for wrongful benefit. 5. A rejoinder affidavit was filed by the petitioner to the affidavit filed by the State contending that the retirement age in fact was 60 years, the petitioner was appointed prior to 1984 and therefore the interpretation of the department was incorrect. 6. Mr. C.J. Vin, learned advocate appearing for respondent University also drew the attention of the court to the affidavit filed on behalf of the University and submitted that the petitioner's service details albeit indicated that the petitioner was appointed as a Junior Clerk-cum-Typist on an adhoc basis vide order dated 18.05.1982 for a period of 175 days. He joined duty on 27.05.1982.
He joined duty on 27.05.1982. On 14.10.1982 the petitioner was reappointed for a period of two years, thereafter by an order dated 29.10.1984 the petitioner was confirmed in employment and was granted promotion. As reading the order dated 17.10.1992, according to the University, the petitioner applied for appointment to the post of Junior Stenographer by his application dated 29.06.1992 and it was on the basis of this application that the petitioner was appointed as a Junior Stenographer in the year 1992. It was on this basis that the petitioner ought to have retired from service in the year 2012 and therefore the recovery is just and proper. He submitted that the petitioner was heard by the respondents and thereafter an order was passed. 7. Having heard learned advocates for the respective parties, the controversy need not detain us for very long. It is a settled principle of law that an order of recovery cannot be passed merely on the ground when in fact there has been no misrepresentation by the petitioner or an employee and the petitioner employee has continued to serve with the respondents for a period of two years for no fault of his. Neither of the parties have disputed the long line of judgments and citations which have reiterated the position rightly so that there can be no recovery of salary for which no misrepresentation has been made. The Apex Court in the case of State of Punjab vs. Rafiq Masih (White Washer) and Others reported in (2015) 4 SCC 334 has considered the issue at length and held that there can be no recovery when an employee has continued to serve without his fault, particularly, when the recovery is from a retired employee and causes undue hardship. This case therefore squarely falls within the parameters so decided by the decision of the Apex Court in the case of Rafiq Masih (supra). 8. There is even more than what appears to be a case of mere recovery on account of misrepresentation or mistake on the part of the employee. The stand of the respondents from the affidavits-in-reply filed is that as per the resolution of the government dated 26.09.1989 the age of superannuation of the petitioner ought to have been 58 years and not 60 years. This is based on a resolution dated 15.10.1984 which is the referred resolution at Sr.
The stand of the respondents from the affidavits-in-reply filed is that as per the resolution of the government dated 26.09.1989 the age of superannuation of the petitioner ought to have been 58 years and not 60 years. This is based on a resolution dated 15.10.1984 which is the referred resolution at Sr. No. 1 in the government resolution dated 26.09.1989 (page 32). Reliance was placed on clause 8 of the resolution which holds that the age of superannuation of the staff recruited before 01.10.1984 shall be 60 years and the age of superannuation and retirement for the staff which was recruited after on and from 01.10.1984 shall be 58 years. Reading of the replies would indicate that the stand of the University and the State is that the petitioner had applied for the post of Junior Stenographer in the year 1992 and therefore his appointment was post 01.10.1984 and therefore the petitioner ought to have retired at the age of 58. By the aforesaid interpretation that is sought to be canvassed by the respondents, the respondents have lost sight of the fact that the petitioner did work as is evident from his service details from the date of his initial appointment as a Junior Clerk-cum-Typist on an adhoc basis to which post he was appointed on 18.05.1982. It is not even disputed by the University as well as by the State that the petitioner did work with the University from 1982 till 1992 continuously and earned higher scales of pay and promotion. The respondents have treated his appointment from 06.11.1992. The respondents have treated his appointment as a Junior Stenographer with effect from 02.11.1992 as a fresh appointment. In fact it is not a misinterpretation or misrepresentation of the resolution of the government by the petitioner but by the State itself. 9. The issue that a person who is recruited prior to 01.10.1984 and even his past service even if it is fresh recruitment needs to be taken as service continuous for the purposes of government resolution dated 15.10.1984 is now a matter which is decided by a Division Bench of this court in LPA No. 2259 of 2017 by a decision dated 02.05.2019. In the aforesaid decision, the Division Bench has interpreted in detail relying on several decisions of this court, the resolution dated 15.10.1984, based on which the resolution of 26.09.1989 is passed.
In the aforesaid decision, the Division Bench has interpreted in detail relying on several decisions of this court, the resolution dated 15.10.1984, based on which the resolution of 26.09.1989 is passed. The relevant paragraphs of the judgment read as under where even the word 'recruitment has been interpreted and it has been held that past service should be considered for the purposes of recruitment and ought to be counted for pension purpose. “4. In the petitions so filed, there were two classes of teaching staff concerned - (a) direct recruits who had two parts of service (i) pre 01.04.1982 in private colleges and (ii) post 01.04.1982 on resignation in other colleges through a direct selection (b) the other class of the teaching staff who may have continued in the same institution but through a due process of selection, either by promotion or under the career advancement scheme risen in hierarchy from Tutor to Reader to Professor – a career spanning pre 01.04.1982 period and post 01.04.1982 period. In both these cases, the stand of the State Government was that since their initial appointment was prior to 01.04.1982, they were required to opt for pension option to switch over from CPF, which they did not, hence they were not entitled to pension. 4.1 The case of the petitioners was that irrespective of a fresh selection, post 01.04.1982, directly by joining an institution or climbing the ranks through promotion or career advancement they were “recruited” after 01.04.1982 and therefore as per clause (4) of the Government Resolution dated 15.10.1984, they were “automatically” governed by the pension scheme and there was no need for them to give any option for doing so. It was in this context that in one of the judgment (which all the judgments under challenge referred to) i.e. in the case of State of Gujarat Thro Secretary v. Bhupendra Vallabhdas Chudasama and another in Letters Patent Appeal No. 981 of 2015, the Court had answered the questions so raised in favour of the pensioner. The questions so raised read as under: 1. Whether an employee like the original petitioner who has been appointed after the G.R. dated 15.10.1984 can be denied the pension / pensionary benefits under the G.R. dated 15.10.1984 on the ground that he had not exercised the option for GPF? 2.
The questions so raised read as under: 1. Whether an employee like the original petitioner who has been appointed after the G.R. dated 15.10.1984 can be denied the pension / pensionary benefits under the G.R. dated 15.10.1984 on the ground that he had not exercised the option for GPF? 2. Whether past services of such an employee is required to be counted for qualifying services for pension? 3.Whether the past services is required to be counted / considered for fixation of the pension or for qualifying services for pension only? (c) Reading of clauses 3, 4 and 6 of the Government Resolution dated 15.10.1984 indicate that the members of the existing staff recruited before 01.04.1982 and those staff who have retired on or after 01.04.1982 and prior to the date of issue of the resolution only have to exercise their option. Those recruited on or after 01.04.1982 shall automatically be governed by the pension scheme of 1984. In the case of D.S Nakara vs. Union of India reported in (1983) 1 SCC 305 , the Apex Court has held that the pension retirees have to be treated as a homogeneous class and that any further classification amongst them would be violative of Article 14 of the Constitution of India. It was further held that the principle that when a certain date or eligibility criteria is selected with reference to legislative or executive measure which has the pernicious tendency of dividing an otherwise homogeneous class and the choice of beneficiaries of the legislative/executive action becomes selective, the division or classification made by choice of date or eligibility criteria must have some relation to the objects sought to be achieved. And apart from the first test that the division must be referable to some rational principle, if the choice of the date or classification is wholly unrelated to the objects sought to be achieved, it cannot be upheld on the specious plea that was the choice of the Legislature. In the facts of the present case, it is evident in accordance with the case of D.S. Nakara (supra), that all of them form a homogeneous group who have been working with the institution and therefore it is not fair for the ‘State’ to discriminate only on the ground of cut off date. (d) What is evident from the service details of the respondents is that they had two spells of service.
(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. (e) As held in the case of S.S. Patel (supra) which has received affirmation even by the Apex Court that the two clauses of the Government Resolution dated 15.10.1984 i.e. clauses 4 & 6 respectively cannot be read in isolation of each other, it will not be out of place to repeat the observations of this Court to make that clear. “16. At the same time the prior to issuance of Government Resolution dated 15.10.1984 which was made effective with retrospective effect from 1.4.1982, employee had no opportunity whatsoever, whether to opt for pension or for any other scheme and such an employee used to be governed by prevailing system of C.P.F.. When the G.R. dated 15.10.1984 came to be issued, the petitioner was serving as a lecturer with S.V.R.College of Engineering and Technology at Surat, which was a Regional Engineering College and later on nomenclatured as National Institute of Technology, the G.R. was not applicable to Engineering College which was under Government of India. From the record, what appears, the petitioner had continued to be Governed by the existing scheme the provident fund for employees of the S.V.R. College of Engineering and Technology (Surat) Society as per option exercised in 1978. There is no dispute about the amount which was credited in the account of the petitioner, came to be collected and ultimately in year 2000, the petitioner deposited the said amount with interest.
There is no dispute about the amount which was credited in the account of the petitioner, came to be collected and ultimately in year 2000, the petitioner deposited the said amount with interest. After resigning from the S.V.R. College of Engineering, when the petitioner joined as a 'Reader' with South Gujarat University from 31.3.1986 and served upto 5.10.1988, the petitioner was a Recruitee after 1.4.1982 and was being governed automatically for pension scheme as introduced by G.R. dated 15.10.1984 and accordingly no contributory amount was deducted and only G.P.F. account was credited. Thus, as a Reader with South Gujarat University, the petitioner was getting benefit of the pension scheme. Even as per the respondents, the period commencing from 31.3.1986 till the date of voluntary retirement on 30.11.2000, the service of the petitioner can be considered for pensionable job. The above fact is admitted in para 10 of the affidavit-in-reply dated 19th December, 2007 filed by Accounts Officer of Commissioner of Higher Education and, therefore, the interpretation of Government Resolution dated 15.10.1984 mainly revolves round Clauses 3, 4, 6 and 7 of the above Government Resolution and to be examined accordingly. 16.1. If the Government Resolution dated 15.10.1984 is perused the preamble of the resolution is pertaining to grant of benefit of pension scheme for the teaching staff in the Non-Government Affiliated Colleges and in the Universities at par with employees of the Government of Gujarat under Revised Pension Rules, 1950 as amended from time to time. Therefore, if Clause 3 is perused, two types of employees were to exercise option, viz. (1) members of the existing staff recruited before 1.4.1982 and (2) those staff who have retired on or after 1.4.1982 and prior to the date of issue of this resolution within a period of one year from the above date, whether to continue in C.P.F. or to go under the pension scheme and such option was to be final.
(1) members of the existing staff recruited before 1.4.1982 and (2) those staff who have retired on or after 1.4.1982 and prior to the date of issue of this resolution within a period of one year from the above date, whether to continue in C.P.F. or to go under the pension scheme and such option was to be final. In Clause 4, it is clearly stated that member of the staff recruited on or after 1st April, 1982 shall automatically be governed by this scheme and such staff will not be allowed to opt for C.P.F. Therefore, if principle of plain reading is applied, all the contents of the clauses read together, what transpires is that the member of the staff recruited on or after 1st April, 1982 was not supposed to exercise an option since he was to be automatically governed by the scheme. So far as the petitioner is concerned, he was recruited directly after the advertisement issued by the concerned Universities on the post of 'Reader' in South Gujarat University on 31.3.1986 to 5.10.1988 and later on appointed in the M.S. University as a 'Reader' from 6.10.1988 after undergoing valid selection procedure. Thus, the case of the petitioner is not governed by Clause 3 of the Government Resolution in view of fact that neither the petitioner is a member of existing staff recruited prior to 1.4.1982 nor he retired from 1.4.1982 to 15.10.1984. Therefore, the contention of learned AGP that the petitioner was to exercise option for pension which was mandatory, cannot be accepted and is hereby rejected. 16.2. So far as width and amplitude of Clause 6 of Government Resolution is concerned, it confers benefits upon an employee of all previous service whether temporary, officiating or permanent either in one or more than one non-government aided Colleges, University, Higher Secondary School who are being paid grant-in-aid from Government shall be taken into account for computing the length of qualifying service for pension under this scheme.
If the above clause is made applicable to the petitioner, service rendered in the B.V.M.College of Engineering at Vallabh Vidhyanagar as 'Assistant Lecturer' and even, subsequent service as a 'Lecturer' in the S.V.R. College of Engineering and Technology are to be counted since the above two colleges are recognised colleges and in view of service rendered in Non-Government Aided Colleges of the State of Gujarat and Union of India can be considered for qualifying service for pension and calculation of pensionable qualifying service by two offices of respondent Nos. 1 and 5 at the time of accepting application for voluntary retirement of the petitioner was just and proper and cannot be brought within the preview of Rule 41 (1) (a) of the Pension Rules, to deny pension to the petitioner, on the ground that the petitioner had not rendered any service in a pensionable establishment. The fact remains that the petitioner was a member of C.P.F. in both the above colleges and resigned from the service and ceased to be a member of C.P.F. for all purposes. It is very clear from the plain reading of clause 6 that clause 6 does not distinguish employees rendering service in a pensionable or non-pensionable establishment and on the contrary it covers all kinds of services even temporary or officiating rendered in Non-Government Aided Colleges. Even otherwise, no material contrary exist to show that the above two colleges were non-pensionable establishment. 16.3. If the submissions of learned AGP are accepted that to get benefits of clause 6 of G.R. of 15.10.1984, option is to be exercised as per clause 3, provisions of clause 6 will become redundant and inoperative for a recruitee on or after 1.4.1982. Neither clause 4 nor clause 6 envisaged or mandate a recruitee after 1.4.1982 to exercise any option as per clause 3. It can be safely concluded from the above, that the basic purpose of Clause 6 is to complete minimum years of qualified pension service for all existing and recruited employees before 1.4.1982 and retired between 1.4.1982 to 15.10.1984 and recruited after 1.4.1982, like the petitioner, clause 6 cannot be pressed into service for exercising option for the scheme by both pre and post 1.4.1982 recruitees, otherwise even clause 4 will be rendered nugatory.
At the same time, failure to exercise an option on the part of post 1.4.1982 recruitee, making him vulnerable for benefits of previous services as per clause 6, will be against the spirit and object of the scheme and will be creating artificial, arbitrary and discriminatory dividing line amongst university teaching staff not found in clause 6. 16.4. Likewise it was not obligatory at all upon the petitioner to exercise option as per subsequent G.R. 's dated 17.12.1987 and 17.9.1991 in view of the fact that the petitioner was automatically governed by pension scheme by G.R. dated 15.10.1984. At the same time there is no break of service of the petitioner from 22.7.1968 to 30.11.2000 and, therefore, rest of contents of clause 6 are not to be gone into. 16.5. Thus, when clause 6 is unambiguous and benefits of all previous services are not restricted to optee only, no other interpretation is permissible and restricting such benefits to the recruitee like the petitioner pursuant to fresh appointment on or after 1.4.1982 and automatically governed by clause 4 of the G.R., any attempt to add or alter any meaning of any word of phrase of clause 6 would amount giving narrow meaning to clause 6 which is not envisaged at all by the draftsman of the resolution. Therefore, the petitioner is entitled for continuity and gets benefit of all previous services rendered in B.V.M. College of Engineering and S.V.R. College of Engineering and Technology and the same is rightly considered by respondents No. 1 and 4 at relevant point of time while granting voluntarily retirement to the petitioner and, therefore, now they cannot be permitted to take another view and they are estopped from doing so. The petitioner has relied and acted on the orders passed by respondents No. 1 and 4 and preponed the date of superannuation now cannot be placed in disadvantageous position on the basis of ipsi-dixi of officers of Respondents No.1 and 4. 16.6.
The petitioner has relied and acted on the orders passed by respondents No. 1 and 4 and preponed the date of superannuation now cannot be placed in disadvantageous position on the basis of ipsi-dixi of officers of Respondents No.1 and 4. 16.6. The above fact will be clear if we read Clause 7 in juxtaposition to Clause 4 and 6, which carves out an exception with regard to applicability of general provision of Chapter 11 of B.C.S.R. Volume I in granting retirement benefits in case if a special provisions are made, the above applicability can be kept aside and this pension scheme of G.R. dated 15.10.1984 being a special scheme conferring benefits of pension and retiral dues, will govern the case of the petitioner and the contention of learned AGP about applicability of Rule 41(1) (a) cannot be accepted and is hereby rejected.” (f) Considering the tenor of the word “recruitment” as held in the case of K. Narayan vs. State of Karnataka reported in AIR 1994 SC 55 , which according to the dictionary meaning means “enlist”, it includes any method of inducting a person in public service. Appointment, selection, promotion, deputation are all well known methods of recruitment. 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. 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 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. 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.
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 1 st 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.” Accordingly, this court is of the opinion that the orders dated 16.02.2015 and 03.07.2017 by which the petitioner has been ordered to refund an amount of Rs.12,26,274/- deserve to be quashed and set aside. 10. In view of the above, the orders dated 16.02.2015 and 03.07.2017 are hereby quashed and set aside. The respondents are directed to consider the petitioner's date of superannuation as 14.06.2014 and the pensionary benefits, gratuity, encashment of leave etc. be counted and calculated considering the date of superannuation as 14.06.2014.
10. In view of the above, the orders dated 16.02.2015 and 03.07.2017 are hereby quashed and set aside. The respondents are directed to consider the petitioner's date of superannuation as 14.06.2014 and the pensionary benefits, gratuity, encashment of leave etc. be counted and calculated considering the date of superannuation as 14.06.2014. The pensionary benefits be paid as expeditiously as possible and not later than 4 weeks from the date of receipt of certified copy of the order. Petition is accordingly allowed. Rule is made absolute accordingly.