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2023 DIGILAW 175 (GUJ)

Ishwarlal Kalyanji Chauhan v. State of Gujarat

2023-01-20

ANIRUDDHA P.MAYEE

body2023
ORDER : 1. The present Special Civil Application is filed praying for the following reliefs :- "(A) Be pleased to admit the present Special Civil Application; (B) Be pleased to allow this Special Civil Application by way of passing appropriate orders, writ, mandamus or writ or directions holding that the petitioner herein is entitled to the benefits of pension in accordance with the provisions of Gujarat Civil Services (Pension) Rules, 2002 as he has served for 7 years in employment of respondent No.1 and 2 and further be pleased to direct the respondent No.2 to immediately prepare pension papers and further be pleased to direct the respondent No.2 to sanctioned the same and release the same with effect from 1.1.2007 and pay arrears with interest @ 12% p.a. in the interest of justice. (C) Pending the admission, final hearing and disposal of the present Special Civil Application be pleased to direct the respondents to consider the case of the petitioner for release of pension on the basis of Gujarat Civil Service (Pension) Rules, 2002 in the interest of justice. (D) Be pleased to pass such other and further orders as the nature of the case may require and the Honourable Court may deem thought fit to pass such order." 2. The factual matrix in the present case is as follows :- 2.1 The petitioner herein joined the service of Gujarat State Construction Corporation Limited as a daily wage clerk on 27.4.1976. Thereafter the petitioner came to be taken as work-charge clerk in a regular pay scale with effect from 28.11.1980. From 1.8.1985, the petitioner was made Junior Clerk in the said Corporation. On 1.8.1990, the petitioner came to be promoted as Assistant. 2.2 The Gujarat State Construction Corporation Limited came to be wound up by the State Government. As a part of the closure policy, option forms were invited from the employees including the petitioner for fresh appointment in Government Service in the office of the Charity Commissioner. The petitioner herein submitted an option form on 8.10.1998 accepting the appointment in the office of the Charity Commissioner in terms of the terms and conditions as per the closure policy. That thereafter the State Government by order dated 24.12.1999 posted the petitioner in the office of the Charity Commissioner, Gujarat State, Ahmedabad and the petitioner subsequently joined the services in the said office on 1.1.2000. That thereafter the State Government by order dated 24.12.1999 posted the petitioner in the office of the Charity Commissioner, Gujarat State, Ahmedabad and the petitioner subsequently joined the services in the said office on 1.1.2000. 2.3 The petitioner after rendering the service of 7 years superannuated on 31.12.2006 on attaining the age of 58 years from the office of the Charity Commissioner, Gujarat State, Ahmedabad. Since the petitioner had not put in the qualifying service as per the pension Rules, no pension papers were prepared in respect of the petitioner on his retirement. The petitioner requested the concerned authority to consider his case for grant of pensionary benefits however the same was not processed in view of the Pension Rules. 2.4 That the petitioner herein has preferred the present Special Civil Application on 13.6.2018 praying for the aforementioned reliefs. 3. Mr. H.S. Munshaw, learned advocate appearing on behalf of the petitioner submitted that the petitioner had joined the Gujarat State Construction Corporation Limited which was fully owned company by the Government of Gujarat on 27.4.1976 till the Corporation closed down in the year 1998. He submits that pursuant thereto in furtherance of the policy of the Government of Gujarat, the petitioner exercised his option and joined the office of the Charity Commissioner at Ahmedabad. He submits that the service rendered by him in the said Corporation ought not to have been ignored and should be taken into account while considering his entitlement for pension. He submits that it was the decision of the State Government to closedown the Corporation and therefore he had opted to join the Government Service. He further submits that as the petitioner had put in 7 years of service with the State Government, the services rendered by him in the Corporation should be considered to make him eligible for the pensionary benefits for the services rendered to the State Government in the office of the Charity Commissioner, Ahmedabad. He submits that the action on behalf of the respondents to deny him pensionary benefits is unjust and arbitrary thereby causing grave injustice to the petitioner. The petitioner therefore ought to have been granted pension for the services rendered in total and the writ-petition be allowed. 4. In opposition Ms. He submits that the action on behalf of the respondents to deny him pensionary benefits is unjust and arbitrary thereby causing grave injustice to the petitioner. The petitioner therefore ought to have been granted pension for the services rendered in total and the writ-petition be allowed. 4. In opposition Ms. Roshni J. Patel, learned Assistant Government Pleader appearing for the respondents submits that after the closure of the Corporation, the erstwhile employees were given an option for appointment in the State Government services on certain terms and conditions as their service was to come to an end. She submits that as per the Clause A(9) of the Government Resolution Dated 27.11.1997, such employees who have opted for Government Service, were to be appointed on the basis of fresh appointment. It was made clear as per the said Government Resolution that such employees like the petitioner were not entitled to any Seniority, Pension, Other Benefits taking into account the earlier service which was to come to an end from the date the Corporation was closed down. If the employee opts for Government Service, his appointment would be a fresh appointment. She further submits that the said terms and conditions had been accepted by the petitioner herein while opting for the Government service. She submits that it is an admitted position that the petitioner has rendered 7 years of service in the office of the Charity Commissioner. Since it was a fresh appointment, the said duration of service is not entitled for pension as per the Gujarat Civil Services (Pension) Rules, 2002. 4.1 She further submits that the present writ-petition also suffers from delay and laches. She submits that the petitioner has retired from Government service on 31.12.2006 whereas the present writ-petition has been filed on 13.6.2018 after a period of around 12 years after his retirement. She submits that this petition also deserves to be dismissed on the ground of delay and laches. 4.2 It is further submitted by Ms. Roshni Patel, learned Assistant Government Pleader appearing for the respondents that as per the provisions of Rule 80 of the Gujarat Civil Services (Pension) Rules, 2002, the period of 10 years of service is to be counted and considered for grant of pension. Such a period of 10 years is to be counted as provided under Rule 80(3) of the Rules. Such a period of 10 years is to be counted as provided under Rule 80(3) of the Rules. In the present case the petitioner has only rendered 7 years of service and therefore as per the rules he is not at all eligible for pension and the prayers as prayed for in the writ-petition. She therefore submitted that the writ-petition be dismissed. 5. Heard the learned counsels appearing for the parties and perused the documents on record, in the present case it is not disputed that in terms of Government Resolution dated 27.11.1997 of the Finance Department, Government of Gujarat and in terms of Clause A(9) thereof those employees who were working in the Corporation proposed to be closed down by the State Government, their services with the said Corporation would come to an end as per the said Government Resolution. The employees of such corporation were granted an option to join the services of the State Government if the employees so opted for. In case of such exercise by the employees, the Clause A(9) of the said Government Resolution stipulates that the earlier service of the employee in the Corporation would come to an end and such an employee would be given a fresh appointment in the service of the State Government. The earlier service, Seniority and Other Benefits will not be counted in the Government Service as the services of such employees in the Corporation will come to an end. 6. Admittedly having clearly accepted the terms and conditions, the petitioner herein has joined the services of the State Government in the office of the Charity Commissioner, Gujarat State, Ahmedabad on 1.1.2000. The petitioner herein has duly retired on attaining the age of 58 years on 31.12.2006 thereby rendering 7 years of service in the State Government. At this stage, it will be beneficial to reproduce the provisions of Rule 80 of the Gujarat Civil Services (Pension) Rules, 2002 :- "REGULATION OF AMOUNT OF PENSIONS AND GRATUITY 80. Amount of Service Gratuity/Pension : (1) In the case of a Government employee retiring on Superannuation, Retiring, Invalid, Wound and Injury or Compensation Pension before completing qualifying service of ten years, the amount of service gratuity shall be one month's ‘pay’ for each completed year of service. Amount of Service Gratuity/Pension : (1) In the case of a Government employee retiring on Superannuation, Retiring, Invalid, Wound and Injury or Compensation Pension before completing qualifying service of ten years, the amount of service gratuity shall be one month's ‘pay’ for each completed year of service. (2) (a) In the case of a Government employee retiring on Superannuation, Retiring, Invalid or Compensation Pension in accordance with the provisions of these rules after completing qualifying service of not less than thirty-three years, the amount of pension shall be fifty per cent of the pensionable pay subject to minimum amount of Rs. 1275 and maximum amount of Rs. 13000. Provided that the full pension in no case shall be less than 50 percent of the minimum of the revised scale of pay introduced with effect from 1st January, 1996 for the post held by the employee at the time of retirement. (b) In the case of a Government employee retiring on Superannuation, Retiring, Invalid or Compensation Pension in accordance with the provisions of these rules before completing qualifying service of thirty-three years but after completing qualifying service of the ten years, the amount of pension shall be proportionate to the amount of pension under clause (a) and in no case the amount shall be less than minimum. (3) In calculating the length of qualifying service, fraction of a year equal to six months and above shall be treated as a complete year and reckoned as qualifying service. (4) The amount of pension finally determined under clause (a) or clause (b) of sub-rule (2), shall be expressed in whole rupees and where the pension contains a fraction of a rupee it shall be rounded off to the next higher rupee. Note : The pay for the purpose of service gratuity admissible under sub-rule (1) shall be the last drawn pay plus dearness allowance admissible on the date of actual retirement." *** "Notification Finance Department Sachivalaya, Gandhinagar. Dated the 19th October 2006 No.(GN-109) PSN-2005-TH-50-P. - In exercise of the powers conferred by the proviso to article 309 of the constitution of India, the Governor of Gujarat hereby makes the following rules further to amend the Gujarat Civil Services (Pension) Rules, 2002 namely :- 1. (1) These rules may be called the Gujarat Civil services (Pension) (Second Amendment) Rules, 2006. (1) These rules may be called the Gujarat Civil services (Pension) (Second Amendment) Rules, 2006. (2) They shall be deemed to have come into force on and from 1st April, 2005, 2. In the Gujarat Civil Services (Pension) Rules, 2002 in rule 80, in sub-rule (2), in clause (a), for the words, letters and figures "minimum amount of Rs. 1275 and maximum amount of Rs.13,000" the words, letters and figures "minimum amount of Rs.1913 and maximum amount of Rs.19,500" shall be substituted." 7. Rule 80(2)(b) specifically stipulates that the length of qualifying service for eligibility to pension and gratuity shall be 10 years. In the present case admittedly the petitioner has joined the services of the State Government as a fresh appointment on 1.1.2000 after the end of his services in the Gujarat State Construction Corporation Limited. Looking to the provisions of the Rule 80(2) of the Rules, the petitioner is not eligible for pension since he has not completed the minimum qualifying service of 10 years. Once the petitioner has accepted the appointment in Government service as a fresh appointment in terms of the Government Resolution dated 27.11.1997 he is es-stopped from claiming the benefits of the services rendered in the said Corporation since on the closure of the Corporation his services had come to an end and he stood relieved. 8. The contention as raised by Ms. Roshni Patel, learned Assistant Government Pleader appearing for the respondents in regard to the present writ-petition having been filed after a period of more than 12 years and that the writ-petition suffered from delay and laches, the said contention is taken judicial note of, but since it is found that as per the rules, the petitioner herein is not entitled to pension, the same is not adjudicated. 9. In view of the aforesaid observations, the present Special Civil Application is devoid of merits and is accordingly dismissed. No order as to costs.