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2022 DIGILAW 1349 (GUJ)

Vinod N Joshi v. State Of Gujarat

2022-10-12

A.Y.KOGJE

body2022
JUDGMENT : 1. These two petitions are filed on identical issues and are raising similar questions of facts and law and hence at the request of both the parties the petitions are taken up for joint hearing and disposal. The basic facts are recorded from the lead matter being Special Civil Application No. 4473 of 2011. 2. This petition is filed under Article 226 of the Constitution of India to declare the petitioner is entitled to pension and other retiral benefits and to finalize the pension case of the petitioner along with other retirement benefits which include gratuity, leave encashment etc. The petitioner also claims interest on the delay in making the payment of retirement dues. 3. Learned advocate for the petitioner submit that the petitioner had retired in the year 2008 after attaining the age of superannuation and at the time of retirement he had rendered 27 years of service with respondent No.7, which was being managed by the respondent No.6 3.1. It is submitted that after the retirement, the petitioner was not receiving any pension and therefore made a representation to the authorities to make payment of the pension and other retirement benefits. However, such request was not granted on the ground that the school in which the petitioner was working was a non granted School and therefore benefits were not available to the teachers of non granted School. The petitioner therefore approached the Gujarat Secondary Education Tribunal by filing an Application No. 79 of 2009, however by an order dated 21.06.2010, the Tribunal disposed of the application with direction to the District Education Officer to consider as to whether the petitioner is entitled to pension and post retirement benefits. 3.2 It is submitted that the Education Tribunal had specifically referred to the Government Resolution dated 05.02.1980 and to the decision of this Court in case of S.D.Bhatt v/s. State of Gujarat dated 18.11.2002 in Special Civil Application No.4987 of 2002. According to the learned advocate for the petitioner, the observation made in the aforesaid decision and the provision of the Government Resolution itself cover the case of the petitioner and therefore, the petitioner is entitled to the benefit of pension. He drew attention of this court to Government Resolution dated 05.02.1980, wherein Clause 1 specifically provides for grant of pension to the teachers, who were working with the school which was voluntarily not receiving any grant. He drew attention of this court to Government Resolution dated 05.02.1980, wherein Clause 1 specifically provides for grant of pension to the teachers, who were working with the school which was voluntarily not receiving any grant. Therefore the District Education Officer ought to have taken the decision in favour of the petitioner in this regards. Despite the aforesaid position and the direction of the Tribunal, the representation made by the petitioner was decided by an order dated 11.11.2010 (Annexure-A), which is the subject matter of challenge. 3.3 It is submitted that the impugned order is based on an erroneous fact that the petitioner has played fraud on the Government by submitting an application for General Provident Fund and such application could not have been made in view of the fact that the scheme of General Provident Fund was only for the teachers of grant in aid school and not for the teachers of non grant in aid school. It is submitted that the application for proforma form was available only for the grant in aid school and therefore made application just to clarify the status in the heading of search form in place of grant in aid school he had added word “non granted”, but there was no intention to mislead. 3.4 Learned advocate submitted that the petition is opposed on behalf of respond Nos.6 and 7 by an affidavit filed by one Manjari Nikhilbhai Goradiya, Principle of respondent No.7 School, however she herself is one of the applicants like the petitioner, who had also made the application similar to the petitioner. Moreover, the other school teachers of another school which was not grant in aid had also made such application though such teachers have been given the benefit of pension. He referred to one such application of Kantibhai Narayanbhai Patel of PS Patel Secondary School. 3.5 Learned advocate has thereafter relied upon a decision of this Court in Special Civil Application No.10807 of 2012 dated 07.10.2015 in case of Gitaben Ajitbhai Desai v/s. State of Gujarat Through Secretary to submit that the entitlement to pension of teacher of a non grant in aid school is decided in the aforesaid judgment. In fact the present petition was also ordered to be heard with the case of Gitaben Desai, but somehow the same could not take place. In fact the present petition was also ordered to be heard with the case of Gitaben Desai, but somehow the same could not take place. Nonetheless it is submitted that the present case should also be decided similarly as in case of Gitaben Ajitbhai Desai (Supra). 4. As against this, learned advocate appearing for the respondent Nos.6 and 7 submitted that the petitioner has played fraud on the school and ultimately on the State Government as the petitioner, who was incharge Principal and petitioner of the second petitioner was the clerk were very much aware that scheme of GPF was not applicable to the school staff and teachers. Despite this, surreptitiously both the petitioners submitted their respective form and to avoid the same being detected in their own handwriting added word “non granted”. It is submitted that the from the entire staff of the school, which consisted of several teaching and non teaching staff, only 3 such applications have been made to the office of District Education Officer. He drew attention of the Court to the relevant form and tried to point out the fraud being played by the petitioner, wherein the petitioner has signed in dual capacity as an applicant as well as the representative of the school authority. He also pointed out that the another form required to be forwarded did not consist of the approval by the District Education Officer. 4.1 It is further submitted that if an employee is a member of GPF, part of the salary is deducted for depositing the contribution of employee in the scheme and part of the contribution is given by the employer. It is submitted that the employer had never deposited their part of the contribution with the Government as a part of the scheme, however other petitioner namely Devendra Panchal and another employee Manjari Goradiya, they had deposited with the Government, the employer’s contribution also surreptitiously present petitioner Vinod N. Joshi never deposited the employer’s part of the contribution with the State Government. It is submitted that when the other applicants namely Devendra Panchal and Manjri Goradiya withdrew the amount from the GPF account and voluntarily closed their GPF account, it is only because the present petitioner Vinod N. Joshi filed the present petition and that the another petitioner Devendra Panchal filed another petition. It is submitted that when the other applicants namely Devendra Panchal and Manjri Goradiya withdrew the amount from the GPF account and voluntarily closed their GPF account, it is only because the present petitioner Vinod N. Joshi filed the present petition and that the another petitioner Devendra Panchal filed another petition. 4.2 It is lastly submitted that the petitioner was given the appointment letter with the only benefit of Dearness Allowance and HRA as per the policy of the State Government, otherwise, the petitioner was aware that he would never be entitled to the pension. 5. Learned Assistant Government Pleader also supported the arguments of the private respondents and submitted that the petitioner has definitely played fraud on the Government for receiving monetary benefit in the form of pension though his case is not covered under the Government Resolution of 1980. It is submitted that the resolution covers only those teachers of non grant in aid school, who were covered under CPF scheme or any scheme which was applicable and adopted by the school and when such contribution made by the school authority or any other scheme has been re-deposited with the Government. In the instant case, no such re-depositing of the funds which were collected under the CPF scheme or any other scheme was deposited with the Government as a part with the respondent School in which the petitioner was working, no others scheme was being made applicable. 5.1 It is submitted that the documents placed on record along with the affidavit of the school is indicated of the fact that the petitioner is taking advantage of the fact that he was in charge Principal had made the application for himself and the clerk. However, there is no such application from of any other staff member from the entire School, which would consist of several teaching and non teaching staff and therefore, the intention of the petitioner is clearly to defraud the State by taking advantage. 6. The Court has heard learned advocate for the rival parties and perused the documents placed on record. It is a case where petitioner had joined the services of respondent No.7-school on 08.06.1981. After rendering service of 27 years, the petitioner retired on 31.10.2008. 6. The Court has heard learned advocate for the rival parties and perused the documents placed on record. It is a case where petitioner had joined the services of respondent No.7-school on 08.06.1981. After rendering service of 27 years, the petitioner retired on 31.10.2008. The claim of the petitioner is that the petitioner is entitled to the pension and other retirement benefits as is available to the other teachers of the secondary school which are registered, but not given grant-in-aid. Upon retirement, the petitioner had made detailed representation to the authorities claiming pension and pensionary benefits. 7. The appointment letter of the petitioner dated 07.06.1981 at Annexure-R1 indicates the appointment of the petitioner for a period of one year in the scale of rupees 440-750 Plus dearness allowance and HRA. It is pertinent to observe that the appointment letter did not prescribe the service to be pensionable service. The claim of the petitioner is based on the Government Resolution dated 05.02.1980, wherein Clause 1 reads as under: “The contribution made by the institution under their own C.P.F scheme to the employees of the recognized secondary school voluntarily not receiving grant or the pension contribution to be given under the rules in force at that time, whichever is higher is to be deposited in the Government.” 7.1 Clause-2 off the very resolution reads as under:- “If the employees of the recognized non-granted secondary schools have joined the C.P.F. scheme, then the contribution of the Government in that regard is to be deposited in the government treasury. However, the cases falling within the clarifications/ provisions made vide Government circular dated 29/05/1974 and resolution dated 31/08/1979 are to be regularized accordingly.” 8. From the record, it appears that as the representation of the petitioner was not considered, the petitioner filed Application No.79 of 2009 before Gujarat Secondary Education Tribunal and the Tribunal give oral judgment dated 21.06.2010, wherein the Tribunal directed under please:- “6. Learned advocate for the applicant has also argued that throughout the career of the applicant he was never given the salaries as prescribed by the state govt and his salaries were always on a much lower side. Learned advocate for the management submits that the school is unaided self-financed institution and, therefore, it is not obliged to make payment as per the govt. payscales. Learned advocate for the management submits that the school is unaided self-financed institution and, therefore, it is not obliged to make payment as per the govt. payscales. As the principal question involved in this application is about the pension and pensonary benefits, this question is kept open at this stage. In the result, this application is disposed of with a direction to the D.E.O. (1) to consider whether in the facts of the case the applicant is entitled for pension and other post-retiral benefits and if yes, then pass such appropriate orders at the earliest since the applicant has already retired 2 yrs. back (2 the D.E.O, shall also consider the claim of the applicant in the light of the E.D.G.R. dt.5.2.80 which has already been referred by the Hon’ble Gujarat High Court in the case of S.D. Bhatt Vs. State of Gujarat (Supra) (3) the applicant shall approach the D.E.O. through the school and also by sending an advance copy of the representation appending therewith the certified copy of this judgment so also the judgment of Hon’ble High Court and G.R. dt.5.2.80 and any other document that he deems fit. Upon receipt of the representation from the applicant the D.E.O. as a pension sanctioning authority (as mentioned by the learned advocate for the applicant) shall render his decision with reasoned order within one month from receipt of the representation. No order as to costs.” 9. Pursuant to the aforesaid order, the case of the petitioner was considered by the District Education Officer of Anand District and impugned order dated 23.09.2010 came to be passed, wherein it was held that the case of the petitioner does not fall within the conditions of the Government Resolution dated 05.02.1980 and that the petitioner being aware of the prevailing rules regarding general provident fund had fabricated documents and defrauded the State Government and when the petitioner was asked to close down the falsely opened GPF account, he had refused to do so. 10. It is not a matter of dispute that the GPF scheme was applicable only for the staff of the schools which were recognized and grant in aid schools. Respondent No.7 school was not a grant in aid school and hence, the teaching staff of the respondent School were not entitled to become the member of the GPF scheme. 10. It is not a matter of dispute that the GPF scheme was applicable only for the staff of the schools which were recognized and grant in aid schools. Respondent No.7 school was not a grant in aid school and hence, the teaching staff of the respondent School were not entitled to become the member of the GPF scheme. Despite this petitioner has become the member of GPF scheme by making an application to the State Government in a prescribed proforma by interpolating the title of the prescribed form, as if the petitioner was eligible to be the members of the GPF scheme. The Stand taken by the school and the management is that the petitioner had misused his post as in-charge Principal and committed fraud by making such application. 11. From the pleadings, it appear that the petitioner, who was working as an in-charge Principal had made an application in proforma form, which was meant for an application to be member of GPF for the teachers of grant in aid school. The petitioner was aware that he was not a member of a grant in aid school and therefore, by interpolating the prescribed form has added in the heading in handwritten manner word “non granted”. It appears that the application form for opening GPF account was accepted by the District Education Office in due course without any further scrutiny, considering the application to be eligible applicant. From the record, it appears that it was only at the stage of computerization of the record that it was realized that the petitioner was a teacher in non grant in aid school was not entitled to open a GPF account as at the relevant time the GPF scheme was not applicable to the teachers of non grant in aid school This argument is supported by glaring fact that from the Institution of the respondent Nos.6 and 7, only three such applications were made and in all three applications the heading of the form has been interpolated to substitute the word ‘grant in aid’ by word ‘non grant in aid’. This according to the Court, cannot be treated to be an innocent act of the petitioner as is submitted by the learned advocate for the petitioner that the application form in the prescribed form was available only for the grant in aid school and therefore only such interpolation was made. 12. This according to the Court, cannot be treated to be an innocent act of the petitioner as is submitted by the learned advocate for the petitioner that the application form in the prescribed form was available only for the grant in aid school and therefore only such interpolation was made. 12. One more aspect to which the attention of the Court is drawn is the proper sealing and Stamping of the forms by the office of District Education Officer. Firstly, the application form of the petitioner is signed by the petitioner in dual capacity as an applicant and as also the representative of the school as an in-charge principal and first form had the time of District Education Officer with signature, however the another form in a prescribed form did not bear the stamp and seal of the District Education Officer and therefore, did not have the approval of the District Education Officer for opening and continuing with the GPF account, still however such account was opened by mistake. 13. It is pertinent to observe that for successful operation of GPF account, an employee has to make his part of the contribution from his salary, which is deducted and deposited in the GPF account at the same time contribution of the employer is also deposited in such GPF account. In the instant case, the petitioner has deposited only his part of the contribution, whereas the contribution of the employer side was never deposited in the GPF account and therefore, the GPF account was not fully operational. It would also be pertinent to observe that in case of the other petitioner, the employer’s contribution was also deposited by the petitioner himself however when he realized the mistake committed by him immediately rectify the same by withdrawing and closing the GPF account but, later on the second petitioner Devendra Panchal has changed his stand as if he was forced to close the GPF account. 14. It is a well known phenomenon that fraud vitiates everything. 14. It is a well known phenomenon that fraud vitiates everything. In the instant case, as is recorded in the preceding paras, this Court is of the view that it the petitioner at the relevant time was not entitled to the beneficiary benefits of GPF scheme has made such application to open the GPF account as if he is a teacher in a grant in aid school as the scheme of GPF at that point of time was applicable only to the teachers of grant in aid school. As discussed above, undoubtedly there is an interpolation in the heading in the application form of GPF of the both petitioners and did not bear the seal and signature of approval by the District Education Officer and knowingly petitioner has opened the GPF account against the prevailing policy of the Government. This was the deliberate attempt on the part of the petitioner. 15. Therefore, coming to the question of applicability of Government Resolution dated 05.02.1980, in the opinion of the Court, Clause 1 and 2 of the aforesaid GR makes it abundantly clear that the teachers of non grant in aid school would be entitled to pension in case they are members of the CPF scheme or the like scheme, where by contribution from the salary of the employee and that of the employer is refunded to the State Government to make the pension scheme applicable to such individual employee. 16. From the pleadings of the respondent School, it is clear that neither the contribution of the employee was deducted from his salary by the school for depositing it in the GPF scheme or any other scheme nor the school itself has deposited it's part of the contribution. In that event of the matter, there was no question of depositing such contribution with the State Government and hence the case of the petitioner would not be covered under Clause 1 and 2 of the Government Resolution dated 05.02.1980. 17. In that event of the matter, there was no question of depositing such contribution with the State Government and hence the case of the petitioner would not be covered under Clause 1 and 2 of the Government Resolution dated 05.02.1980. 17. The aforesaid factual aspect is further fortified by fact that from the respondent School, except for the petitioners no other staff teaching or non teaching, had opened a GPF account and therefore it is evident that the respondent School was non grant in aid school and its teachers where not members of the CPF scheme or any other scheme as is contemplated under Clause 1 and 2 of the of the Government Resolution dated 05.02.1980. 18. The strong reliance placed by the petitioner on the decision of Gitaben Ajitbhai Desai (Supra), It would be pertinent to refer to the relevant facts which the Court noticed from the stand taken by the respondent School therein, wherein the school has stated before the Court that general provident fund account of all employees recruited till 1992 were opened and approved by the District Education Officer and insofar as the petitioner therein was concerned, the account was opened in the year 1992 and continued till February 1999 and therefore the school had accepted the fact that the teachers were part of the provident fund scheme and School had deposited there share in the applicable scheme. Such is not the case in the present facts, where the School has categorically taken a stand that they had not deposited their part of the contribution as obviously being non grant in aid school, no scheme was applicable to their staff. The School has also taken a stand that the petitioners had knowingly made the application for opening GPF account in surreptitious manner behind the back of the school. Hence, the finding given by this Court in in case of Gitaben Ajitbhai Desai (Supra) will not help the case of the petitioner because in those specific facts of the case, this Court has held the petitioner therein to be entitled to pension though such school was not grant in aid school. 19. Similarly, strong reliance place by the petitioner on decision of Mayaben S. Desai v/s. State of Gujarat and others in Special Civil Application No.7089 of 2008, it is pertinent to observe that the case of the petitioner therein was that:- “5. Learned advocate Ms. 19. Similarly, strong reliance place by the petitioner on decision of Mayaben S. Desai v/s. State of Gujarat and others in Special Civil Application No.7089 of 2008, it is pertinent to observe that the case of the petitioner therein was that:- “5. Learned advocate Ms. Harshal N. Pandya for the petitioner submitted that the petitioner has been denied pension benefit for the services rendered by the petitioner from 3.12.1993 to 31.10.2003 on wrong interpretation of the resolution of the Education Department, State of Gujarat dated 28.9.1992. Ms. Pandya submitted that reliance placed on the resolution dated 23.1.2007 issued by the Government which clarified the resolution dated 28.9.1992 is also on misconception as the said resolution has not taken away the effect of the resolution dated 28.9.1992, which specifically provided for grant of pension benefit to the employees of non-grantable school recognized and registered before June 1992. Ms. Pandya submitted that undisputably, the school run by respondent No.6 wherefrom the petitioner retired, was recognized and registered before June 1992 and has not been claiming grant from the Government and therefore, by virtue of the said resolution, the service rendered by the present petitioner in the said school is required to be considered as pensionable service.” 20. This court in aforesaid judgment in para 7 has held as under: “7. Having considered the rival submissions made by the learned advocates for the parties, it appears that the Government decided not to grant pension benefits to the teachers appointed in the schools given recognition after June 1992 on the condition of not claiming grant from the Government. It appears that earlier, there was already a resolution dated 5.2.1980 providing for grant of pension benefit to the teachers of non-grantable school. But, then it was discontinued by resolution dated 28.9.1992 providing that the teachers appointed in the schools given recognition after June 1992 on condition of not claiming grant from Government shall not be entitled to pension benefits. Therefore, the teachers who were appointed in non-grantable schools which were recognized prior to June 1992, were entitled pension benefits. There is no dispute about the fact that the school wherefrom the petitioner retired was recognized prior to June 1992 on condition of not claiming grant from Government. In the resolution dated 28.9.1992, at Annexure-R-II, it is nowhere provided that the teachers appointed after 1992 in such schools shall not be entitled to pension benefits. There is no dispute about the fact that the school wherefrom the petitioner retired was recognized prior to June 1992 on condition of not claiming grant from Government. In the resolution dated 28.9.1992, at Annexure-R-II, it is nowhere provided that the teachers appointed after 1992 in such schools shall not be entitled to pension benefits. The above was the clear position emerging from the said resolution dated 28.9.1992 till the petitioner retired on 31.10.2003” 21. In view of the aforesaid facts situation in the aforesaid case, this Court proceeded to hold the petitioner therein entitled to the pension scheme. This decision was carried in Letters Patent Appeal No.398 of 2014, however the facts of the present case are at great varieties and therefore, the decision rendered in the aforesaid case will not help the case of the petitioners. 22. In view of the aforesaid discussion, this Court is of the opinion that petitioners have failed to make out a case for entitlement to pensionary benefit under the Government Resolution dated 05.02.1980. The petitions deserve to be and the same are hereby dismissed. Rule is discharged.