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2022 DIGILAW 346 (GUJ)

GHANSHYAM ARVINDBHAI BHATT v. STATE OF GUJARAT

2022-02-25

A.S.SUPEHIA

body2022
JUDGMENT : A.S. SUPEHIA, J. 1. The present group of petitions have been filed seeking benefits of 6th Pay Commission, Pension and other retirement benefits. With regard to the prayers of 6th Pay Commission; the parties are ad idem that the same has been paid by the respondent-University to the petitioners. It is reported that some of the petitioners are still serving and some of them have retired from service. All the petitioners and the members of the Union i.e. Gujarat University General Employees Union, are/were appointed as Class-III and Class-IV (non-teaching staff) in the respondent-Gujarat University. 2. It appears that during the pendency of these petitions, the petitioners are paid the benefit of 6th Pay Commission by the University and subsequently, the benefit of 7th Pay Commission is also given. However, those petitioners, who have retired from service are denied the pension by the respondent-University, since the State Government has refused to grant pension to the petitioners, for the reason that their initial appointment which was done in the year 1983 to 2002, have been done without taking any approval from the State Government. It is also neither disputed by the respondent-University nor by the State Government that all the petitioners are appointed after following due process of selection and as per the Recruitment Rules, however, the only predicament which is coming in the way of the claim of pay-scale as well as pension is that the University did not seek any approval from the State Government before appointing them. Thus, the petitioners, who have rendered more than 30 years of service and have retired from the service, are denied the benefit of pension for the aforesaid reason. It is also not in dispute that the petitioners were conferred the benefits of 4th and 5th Pay Commissions by the State Government, however the benefits of 6th and 7th Pay Commissions have been conferred by the University from its own funds. 3. Vide resolution dated 15.01.2020, which is impugned in Special Civil Application No. 12863 of 2013, the State Government has conferred the benefits of 4th and 5th Pay Commissions, subject to condition No. 4, which states that such benefits of 4th and 5th Pay Commissions would not give rise to claim of 6th Pay Commission as well as pension and retirement benefits. 4. Being aggrieved by the said condition, the petitioners have challenged the said Resolution. 4. Being aggrieved by the said condition, the petitioners have challenged the said Resolution. It appears that during the pendency of these petitions, in view of the interim order passed by this Court directing the State Government to reconsider the case and after reconsidering it, the State Government has issued Resolution dated 14.08.2012 reiterating its stand of denying the benefit of 6th Pay Commission for the reason that no approval was taken by the University before appointing the petitioners. It is also incorporated that if any benefits are extended to the petitioners, the employees who are irregularly appointed by the other Universities will also claim pension which will create burden on the exchequer of the State Government. 5. Thus, the only issue which requires examination is with regard to the payment of pension or retirement benefits to those employees who have retired from services. Since the benefits of 6th and 7th Pay Commissions are already conferred by the University to the petitioners, who are in service, it is clarified that in case the University has not extended the benefits of 6th and 7th Pay Commissions to any of the petitioners, the same shall be extended to such class of persons, since the other petitioners have been extended the benefits by the University. 6. Learned advocates Mr. Harsh K. Raval and Mr. Mohammed K. Vohra, appearing for learned advocate Mr. Harshadray Dave, for the petitioners have placed reliance on the Statue 180-C of Chapter-16 of the Gujarat University Handbook, which is issued and farmed under Section 53 of the Gujarat University Act, 1949 in support of their submissions. It is submitted that the case of the petitioners would be governed by the provisions of the Gujarat Civil Services Pensions Rules, 2002. It is further submitted that even the ad-hoc employees, who have rendered services in regular establishment are entitled to the pension under Rule 25 of the Pension Rules. Reliance is also placed by the learned advocate on the recent decision of the Apex Court in the case of the State of Gujarat and Others vs. Talsibhai Dhanjibhai Patel, dated 18.02.2022 passed in Special Leave to Appeal (C) No. 1109 of 2022. Thus, he has submitted that the petitioners cannot be denied the benefit of pension only for the objections raised by the State Government that initially the respondent-University had not taken any approval before appointing them. 7. Thus, he has submitted that the petitioners cannot be denied the benefit of pension only for the objections raised by the State Government that initially the respondent-University had not taken any approval before appointing them. 7. In response to the aforesaid submissions, learned Assistant Government Pleader Mr. Rohan N. Shan, has submitted that the petitioners cannot be extended the retirement benefits by the State Government, since the benefits of 6th and 7th Pay Commissions has been extended by the respondent-University from its own funds and if any directions are issued to the State Government to pay pension, the same would create burden on the State as other employees recruited who are irregularly recruited in the other Universities of the Sate of Gujarat, will also claim the same benefit. Learned Assistant Government Pleader Mr. Shah, has further placed reliance on the Resolution dated 16.03.2021 in support of his case. The same is ordered to be taken on record. It is submitted that as per the provisions of the said resolution, the State Government has decided to recover all the funds from the grant given to the University in case it is found that there has been any irregularity or illegality or any type of mistake in appointing its employees or officers without approval of the State Government. Thus, he has submitted that the writ petitions may not be entertained. 8. Learned senior advocate Mr. Shelat appearing for the University has submitted that all the petitioners were appointed after following due selection and the recruitment process. It is also submitted by him that in fact no approval is required to be obtained from the State Government for appointing or fixing the pay-scale as per the Rules and Regulations or Statute. He has submitted that the petitioners are denied the pension by the state government only because allegedly no approval was sought for before the appointing them. It is submitted that there is no such requirement and all the pay fixation in fact have been approved by the State Government. Thus, he has submitted that in fact the petitioners are entitled to the pension and the State Government would be the appropriate authority to confer such benefit as right from the appointment till the retirement all the pay-scales have been approved by the State government. 9. I have heard the learned advocates for respective parties to the lis. Thus, he has submitted that in fact the petitioners are entitled to the pension and the State Government would be the appropriate authority to confer such benefit as right from the appointment till the retirement all the pay-scales have been approved by the State government. 9. I have heard the learned advocates for respective parties to the lis. I have also perused the relevant documents. 10. The only issue requires consideration is whether the petitioners can be refused the benefit of pension after rendering the services of University only for the reason that the University had not taken approval before appointing them. 11. It is also not denied by the State Government that the petitioners were not appointed by any backdoor entry or any illegal method. It is also established that the petitioners, after undergoing or following the due process of selection, have been appointed by the University, however it appears that before appointing them, no approval was sought from the University. It is the case of the State Government, if no approval is sought, the entire burden of the pension has to be borne by the University and has to be paid from the funds of the University. It is not in dispute that the State Government, by the impugned resolution dated 15.01.2010, has conferred the benefits of 4th and 5th Pay Commissions with a condition that they would not be entitled to 6th Pay Commission or any retirement benefits. 12. Thereafter, the University from it own funds has conferred the benefits of 6th and 7th Pay Commissions to the employees like the present petitioners. Thus, the appointment of the petitioners cannot be said to be absolutely illegal but the alleged irregularity is only confined of not taking approval from the State Government. This Court is refraining itself in expressing anything whether such approval is required to be obtained from the state government and the issue is left open. The petitioners cannot be denied pension and retirement benefits because of the inter se dispute between the University and the state government. 13. The petitioners are claiming the benefit of pension under the provisions of Rule 25 of the Gujarat Civil Services (Pension) Rules, 2002. 14. I am refer to Statue 180-C of the Gujarat University Handbook, which is issued and framed under Section 53 of the Gujarat University Act. 13. The petitioners are claiming the benefit of pension under the provisions of Rule 25 of the Gujarat Civil Services (Pension) Rules, 2002. 14. I am refer to Statue 180-C of the Gujarat University Handbook, which is issued and framed under Section 53 of the Gujarat University Act. The Statue 180-C reads as under: “Statute 180-C: A non-teaching employee of the University shall be entitled to the benefits of Pension scheme inclusive of Family Pension, Gratuity and General Provident Fund according to the rules of the Gujarat State Government applicable to its employees from time to time : Notwithstanding anything contained elsewhere in the Statute, a non-teaching employee of this University who has already been in the employment of this University on or before 31st December, 1976 shall be entitled to exercise his option either to opt for the above provision of Pension scheme or to continue to draw the benefits of contributory Provident Fund and Gratuity as are available under Statute 180, 181, 182, 183, 184, 185, 186, 187, 188 and Statute 193-A provided that such an option is exercised within a period of six months from the date on which this Statute comes into force.” 15. As per the provisions of Statute 180-C, the benefit of pension has to be granted or conferred to the employees of the University (Non teaching Staff) as per the Rules of the Gujarat State applicable to its employees from time to time. Thus, the provisions of Rule 25 of the Gujarat Civil Services (Pension) Rules, 2002 which are applicable to the state government employees are applicable to the petitioners. The Rule 25 of the Gujarat Civil Services (Pension) Rules, 2002 defines the qualifying services, which is incorporated as under: “Rule-25. Qualifying Service: Subject to the provisions of these rules, qualifying service of a Government employee, means and includes: (i) all service including service on probation rendered on a regular establishment in any capacity whether, temporary or permanent, interrupted or continuous but it shall not include: (a) service in non-pensionable establishment. (b) service paid from contingencies. (c) service rendered in daily rated establishment. (d) actual periods of break in service if any, between spell of service. (e) service prior to resignation, removal or dismissal. (f) service as an apprentice. (g) service on fixed pay basis. (h) service on contract basis. (b) service paid from contingencies. (c) service rendered in daily rated establishment. (d) actual periods of break in service if any, between spell of service. (e) service prior to resignation, removal or dismissal. (f) service as an apprentice. (g) service on fixed pay basis. (h) service on contract basis. (ii) all service rendered in work charged establishment provided that the total service put in, as such is five years or more. (iii) foreign service. (iv) vacation taken by Government employee in vacation department. (v) all periods of leave including extraordinary leave upto a maximum of thirty six months during entire service. (vi) addition to qualifying service admissible under rule 37. (vii) services rendered as Kotwal by a Government employee after regular appointment in the regular time scale. (viii) services rendered as full time attendant by a Government employee before his regular appointment in class IV service. (ix) services rendered under the Central Government/Central Government Autonomous bodies having pension scheme, by a Government employee who is absorbed in Government. (x) pensionable service rendered by an employee in a grant-in-aid institution the pension liability in respect of which is borne by the Government to the extent as may be ordered by the Government from time to time.” 15.1 The qualifying service, as defined in Sub-Rule (i) includes all the services, including the services of probation rendered on regular establishment in any capacity whether temporary of permanent, interrupted or continuous but does not include the categories mentioned from (a) to (h). 15.2 Rule 25(x) reads as under: “Pensionable service rendered by an employee in a grant-in-aid institution the pension liability in respect of which is borne by the Government to the extent as may be ordered by the Government from time to time.” 16. Thus, even an employee who has rendered a service in regular establishment in any capacity whether temporary or permanent, interrupted or continuous, is held to be eligible for the pension as per the provisions of Rule 25 of the Gujarat Civil Services (Pension) Rules, 2002. Clause (x) encompasses those employees who have rendered service in a grant-in-aid institution. Indubitably, the petitioners and the University, both fall within the provisions of Rule 25 of the Pension Rules. Thus, the petitioners cannot be denied the pension since they have rendered their services in the University for all the years. 17. Clause (x) encompasses those employees who have rendered service in a grant-in-aid institution. Indubitably, the petitioners and the University, both fall within the provisions of Rule 25 of the Pension Rules. Thus, the petitioners cannot be denied the pension since they have rendered their services in the University for all the years. 17. In the decision of the Supreme Court in the case of Talsibhai Dhanjibhai Patel (supra), it has been observed thus: “It is unfortunate that the State continued to take the services of the respondent as an ad-hoc for 30 years and thereafter now to contend that as the services rendered by the respondent are ad-hoc, he is not entitled to pension/pensionary benefit. The State cannot be permitted to take the benefit of its own wrong. To take the Services continuously for 30 years and thereafter to contend that an employee who has rendered 30 years continues service shall not be eligible for pension is nothing but unreasonable. As a welfare State, the State as such ought not to have taken such a stand.” 18. Thus, the Supreme Court has expressed that the State cannot be take benefit of its own wrong doing and deny pension to the employee, who has rendered his ad-hoc service for more than 30 years. It is pertinent to note that the order dated 18.10.2019 passed in Special Civil Application No. 20185 of 2018 by the Coordinate Bench after resorting to the provision of Rule 25 of Pension Rules and conferring the benefit to an employee who has rendered 30 years of ad-hoc was subject matter of challenge and it is confirmed by the Division Bench of this Court and the Apex Court. 19. Thus, it is a well settled proposition of law, that even an ad-hoc employee, who has been continued for considerable long period cannot be denied pension merely because he/she was continued as such and the State Government or the authorities cannot take the benefit of their own wrong. The case of the petitioners stand on better footing. The petitioners have honestly and diligently rendered their services and after retirement they are denied pension and retirement benefits only for the sole reason that the University has not taken any approval from the State Government. The case of the petitioners stand on better footing. The petitioners have honestly and diligently rendered their services and after retirement they are denied pension and retirement benefits only for the sole reason that the University has not taken any approval from the State Government. Neither the University has made any efforts for taking approval from the State Government nor the State government before approving the pay scales of the petitioners has raised any objections. 20. Thus, in order to see that the petitioners are conferred the retirement benefits, the State Government is directed to grant the same to the petitioners. It is clarified that it will be open for the State Government to initiate appropriate process, after conferring the said benefits to the petitioners to recover the same or to adjust the same from the grant given to the University. However, it is clarified that such action can only be taken after appropriate consultation with the respondent-University keeping in mind that the initial appointment of the petitioners cannot be said to be illegal or against the provisions of law since all the petitioners have undergone the regular recruitment process. 21. Appropriate orders conferring the pension and retirement benefits shall be passed within a period of three months from the date of receipt of the writ of this Court. It is clarified that it will be open for the State Government to examine the case of each of the petitioners and only in such case if it is found that the appointment is made without following any recruitment process or illegally, the State may deny such benefit. It is clarified that it will be open for such employee to challenge the action of the State or the University in denying the benefits. 22. It is also reported that some of the employees have passed away. In such cases, the legal heirs of the deceased employees shall be conferred the benefits of pension and retirement benefits. 23. All these writ petitions are allowed. The Condition No. 4 of Resolution dated 15.01.2010 to the extent of denying the pension to the petitioners, is quashed and set aside. Rule is made absolute.