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2022 DIGILAW 446 (GUJ)

Upadhyay Parulben Anandbhai v. State Of Gujarat

2022-04-01

BIREN VAISHNAV

body2022
JUDGMENT : 1. RULE returnable forthwith. Mr.Krutik Parikh learned AGP waives service of notice of Rule on behalf of the respondent State. 2. With the consent of learned advocates for the respective parties, the petition is taken up for final hearing. 3. By way of this petition under Article 226 of the Constitution of India, the petitioners have prayed for quashing and settings aside the orders dated 20.11.2018, 09.10.2019, 10.07.2020 and 19.08.2020, holding that the discontinuance of the benefit of GPF is bad. 4. At the outset, it is pointed out that the issue is covered by a decision of this Court in Special Civil Application No.7522 of 2020. 5. The above order passed was confirmed by the Division Bench of this Court in Letters Patent Appeal No.147 of 2022 dated 22.03.2022. 6. Reading the decision of the coordinate bench of this Court dated 16.06.2021 rendered in Special Civil Application No.7522 of 2020, for the purposes of disposal of the present petition, it will be apt to reproduce the relevant portion of the order of the coordinate bench, which reads as under: “[7] The facts which are relevant and not in dispute are that the petitioner was appointed as Ad-Hoc Lecturer in Computer Engineering Department on 25.03.1997. During his employment as Ad-Hoc employee, the GPF Account of the petitioner was opened as per the prevailing rules pertaining to the GPF under Circular dated 20.09.1975 issued by the Finance Department as well as Circular dated 29.05.1988 again issued by the Finance Department. Both these provide for opening of GPF Account compulsory for those Government servants/officers who though may not be permanent, but have put in three years of continuous service. The petitioner thereafter, faced selection procedure and after successfully cleared the selection procedure by the GPSC was appointed against the regular post of the very Department as the Head of the Department w.e.f. 25.09.2006. The relevant portion of the Government Resolution dated 18.03.2005 and Clause-3 read as under:- “Announcement was made in the budget of the year 2003- 04 in the parliament to insert new structure known as Defined Pension Scheme for the new candidates recruited in the service of central government and towards the first step of its implementation, the Government of India introduced a New Defined Contribution Pension Scheme for its employees (Except armed forces) w.e.f. 01/01/2004. The Government of India has formed interim scheme for implementation of the said scheme as detailed rules and regulations are yet to be formed. At the end of careful consideration, as it was decided to implement the said new defined pension scheme (NEW DEFINED CONTRIBUTION PENSION SCHEME) w.e.f. 01st April, 2005, New Defined Pension Scheme shall be applicable to the employees appointed on or after 01st April, 2005 as mentioned hereunder “Clause-3 The employees who have been appointed with respect to the Monthly Lump Sum Pay Policy implemented by the State Government and the employees who shall be appointed on or after 01/04/2005 in the regular pay scale.” [8] The amendment to the Government Resolution dated 18.03.2005 issued by the Finance Department on 06.09.2005 would read as under:-. “New Pension Scheme becomes applicable vide 18/03/2005 cited at Preamble (1) to the employees of the State Government recruited on or after 01/04/2005. But as per the Orders of the Government of India cited at Sr.(2) of the preamble, the employees who have been in the service of the state government prior to the date of implementation of new pension scheme i.e. 01/04/2005 and are entitled to the benefit of the pension scheme pursuant to their original appointment / service, if such employees/officers get selected and appointed on new post in the government on or after 01/04/2005 by direct recruitment from their original appointment/service by recognized process and if they required to tender resignation for technical reasons to join new appointment, present scheme (Pensions Scheme of 1972) of the government shall be applicable to such employees/officers.” [9] It would be pertinent to refer to the Government Resolution dated 03.07.1998 for the better understanding of application of the benefits of employment, wherein the employee shifts from Ad-hoc basis to regular post. The Clause2 of Government Resolution dated 03.07.1998, reads as under:- “2.After a careful consideration, the Government has resolved that, if a government employee has been appointed in any cadre on ad-hoc basis and later, gets appointment after selection through Gujarat Public Service Commission or Centralized Recruitment or any recognized process and if there is no break in the service, then such earlier ad-hoc service shall be counted only for the purpose of pension in consultation with the Finance Department and the General Administrative Department and if there is a break between two services, then such breaks shall be counted as leave without pay in consultation with the Finance Department and the General Administrative Department.” [10] From the combine reading of the aforesaid resolutions and the subsequent amendment, the Court is of the view that the amendment was specifically moved by the Finance Department so as the benefit which has accrued to employee who is already in Government service prior to the date specified in the Government Resolution dated 18.03.2005 i.e. 01.04.2005 in terms of the pensionary benefits and that for the technical reason required to be resign from the post in question to join the new post, in that case, the pensionary benefits under the scheme which is prevailing prior to 01.04.2005 and which was already in favour of the employee then such benefit should continue to accrue even after fresh appointment after 2005. [11] In the instant case, when the petitioner was appointed in the year 1997 on Ad-Hoc basis the GPF Account was already opened and was being operated and when in the year 2006, the petitioner was appointed after due selection against the regular post, then the benefit of the GPF Account opened prior to 01.04.2005 in favour of the petitioner is required to be continued as the case of the petitioner will squarely be covered by the amendment dated 06.09.2005 to the Government Resolution dated 18.03.2005. [12] The argument on the part of the Government to treat the appointment of the petitioner in the year 2006 to be fresh appointment, cannot be accepted as in the amendment of 06.09.2005, the emphasis and requirement to continue in the old GPF scheme is to be made available to a “Government servant” and is not related to the scale, grade or post. Therefore, only the requirement is to see that the petitioner prior to 01.04.2005 is a Government servant is already beneficiary of the GPF scheme. With these two aspects, requirement of the amended Resolution dated 18.03.2005 is fulfilled and would squarely cover the case of the petitioner. [13] In view of the aforesaid, the case of the petitioner for continuing the GPF as a Ad-Hoc employee in the year 1997 is required to be continued without any break upon his being appointed as regular employee after due selection by the GPSC. [14] With the aforesaid, present petition is allowed. the impugned order dated 25.02.2021 issued by the respondent No.4 is ordered to be quashed and set aside. Rule is made absolute to the aforesaid extent.” 7. The Division Bench in the Letters Patent Appeal No.147 of 2021 while confirming the order referred above of the learned Single Judge, held as under: “6.0. Having heard the learned advocates for the respective parties and on perusal of the impugned judgment and order, we are of the considered opinion that the learned Single Judge has rightly considered the Circular dated 29.05.1988 and has correctly interpreted the relevant clause of the policy decision of the Government dated 3.7.1998. The contention raised by learned Assistant Government Pleader that as the respondent – original petitioner was appointed afresh as ad-hoc service has to be considered to be break out period for considering the pension is without any basis. The learned Single Judge has succinctly considered the said aspect even considering the Government Resolution dated 18.3.2005 and has observed thus: “9. It would be pertinent to refer to the Government Resolution dated 03.07.1998 for the better understanding of application of the benefits of employment, wherein the employee shifts from Ad-hoc basis to regular post. The Clause2 of Government Resolution dated 03.07.1998, reads as under:- “2. It would be pertinent to refer to the Government Resolution dated 03.07.1998 for the better understanding of application of the benefits of employment, wherein the employee shifts from Ad-hoc basis to regular post. The Clause2 of Government Resolution dated 03.07.1998, reads as under:- “2. After a careful consideration, the Government has resolved that, if a government employee has been appointed in any cadre on ad-hoc basis and later, gets appointment after selection through Gujarat Public Service Commission or Centralized Recruitment or any recognized process and if there is no break in the service, then such earlier ad-hoc service shall be counted only for the purpose of pension in consultation with the Finance Department and the General Administrative Department and if there is a break between two services, then such breaks shall be counted as leave without pay in consultation with the Finance Department and the General Administrative Department.” [10] From the combine reading of the aforesaid resolutions and the subsequent amendment, the Court is of the view that the amendment was specifically moved by the Finance Department so as the benefit which has accrued to employee who is already in Government service prior to the date specified in the Government Resolution dated 18.03.2005 i.e. 01.04.2005 in terms of the pensionary benefits and that for the technical reason required to be resign from the post in question to join the new post, in that case, the pensionary benefits under the scheme which is prevailing prior to 01.04.2005 and which was already in favour of the employee then such benefit should continue to accrue even after fresh appointment after 2005. [11] In the instant case, when the petitioner was appointed in the year 1997 on Ad-Hoc basis the GPF Account was already opened and was being operated and when in the year 2006, the petitioner was appointed after due selection against the regular post, then the benefit of the GPF Account opened prior to 01.04.2005 in favour of the petitioner is required to be continued as the case of the petitioner will squarely be covered by the amendment dated 06.09.2005 to the Government Resolution dated 18.03.2005. [12] The argument on the part of the Government to treat the appointment of the petitioner in the year 2006 to be fresh appointment, cannot be accepted as in the amendment of 06.09.2005, the emphasis and requirement to continue in the old GPF scheme is to be made available to a “Government servant” and is not related to the scale, grade or post. Therefore, only the requirement is to see that the petitioner prior to 01.04.2005 is a Government servant is already beneficiary of the GPF scheme. With these two aspects, requirement of the amended Resolution dated 18.03.2005 is fulfilled and would squarely cover the case of the petitioner. [13] In view of the aforesaid, the case of the petitioner for continuing the GPF as a Ad-Hoc employee in the year 1997 is required to be continued without any break upon his being appointed as regular employee after due selection by the GPSC. [14] With the aforesaid, present petition is allowed. The impugned order dated 25.02.2021 issued by the respondent No.4 is ordered to be quashed and set aside. Rule is made absolute to the aforesaid extent.” 8. Accordingly, the petition is allowed. The orders dated 20.11.2018, 09.10.2019, 10.07.2020 and 19.08.2020 are quashed and set aside. In view of quashing of the orders, the petitioners will get the benefit of continuity in the GPF scheme and the respondents are directed to deduct the contribution of the GPF from the salary of the petitioner. Rule is made absolute.