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2023 DIGILAW 668 (GUJ)

Chandubha Gagubha Jhala v. State Of Gujarat

2023-04-21

BHARGAV D.KARIA

body2023
ORDER : 1. Heard learned advocate Mr.Krishnan M. Ghavariya for the petitioner and learned Assistant Government Pleader Ms.Hetal Patel for the respondent No.1. 2. Learned advocate Mr.Krishnan M. Ghavariya for the petitioner has tendered a draft amendment. The same is allowed in terms of the draft. To be carried out forthwith. 3. The brief facts are as under: 3.1. The petitioner was appointed as a Driver on daily wage basis on 04.05.1993 with respondent no.2 and his services came to be terminated on 01.01.1995. 3.2. The petitioner challenged the order of termination by way of preferring Special Civil Application No.818 of 1995 which was dismissed on 15.04.1996. 3.3. The petitioner challenged the said order before the Division Bench of this Court (Coram: Hon’ble Mr.Justice C.K.Thakkar and Hon’ble Mr.Justice C.K.Buch As Their Lordships were Then) by way of preferring Letters Patent Appeal No.1301 of 1998 which was dismissed on 12.07.1999 observing that they are simply not disturbing the observations made by the learned Single Judge and the case of the petitioner for appointment on the regular post of Driver may be considered in accordance with law. 3.4. Pursuant to the observations made by the Division Bench of this Court in the aforesaid litigation, the petitioner was reinstated in service on ad-hoc basis in the year 1999 and the respondent No.2 continued to avail his services. 3.5. The petitioner was once again terminated from service after six years on 31.05.2005 and therefore, the petitioner approached this Court by preferring Special Civil Application No.19132 of 2005 which came to be dismissed on 20.09.2005. 3.6. The petitioner thereafter approached the Division Bench of this Court challenging the aforesaid order by preferring Letters Patent Appeal No.82 of 2006 which came up for hearing on 20.01.2006 and it is the case of the petitioner that on that day, the Division Bench of this Court issued notice in the matter and made several observations in favour of the petitioner. The petitioner thereafter made another representation/application to the respondents for absorption to the post of Peon or Bailiff and the same was directed to be considered and decided by the respondents. Accordingly, the said representation was decided in favour of the petitioner, and he was appointed as a Peon on work charge basis. 3.7. The petitioner thereafter made another representation/application to the respondents for absorption to the post of Peon or Bailiff and the same was directed to be considered and decided by the respondents. Accordingly, the said representation was decided in favour of the petitioner, and he was appointed as a Peon on work charge basis. 3.7. It is the case of the petitioner that the advocate appearing for the respondents had made a statement to the effect that as and when the regular recruitment process for Peon would be initiated, the petitioner would be considered for such recruitment for absorption to the regular post of Peon. Pursuant to the observations made by the Division Bench, the petitioner was appointed as a Peon (Class- IV) on 23.01.2006 on the fixed pay of Rs.2,550/- and his service was continued as a Peon till the year 2011 however, his service once again was terminated on 15.11.2011. 3.8. The petitioner, therefore, preferred Special Civil Application No.9309 of 2013 which came to be dismissed on 23.02.2015. The pending litigation was withdrawn with a view to pursue the representations dated 20.02.2016 and 02.03.2016. However, the same were not considered or decided by the respondents, and therefore the petitioner once again approached this Court by preferring another Special Civil Application No. 1973 of 2017 which was disposed of on 06.02.2017 by directing the respondents to consider and decide the representations of the petitioner dated 20.02.2016 and 02.03.2016. 3.9. It is the case of the petitioner that despite the order passed by this Court, the respondents did not decide the representations made by the petitioner and the petitioner attained the age of superannuation in the year 2016 and therefore, he made a representation for grant of retiral benefits such as pension and gratuity on 19.09.2022. 3.10. It is the case of the petitioner that while considering the representation made by the petitioner for pension benefits, the respondent No.2 informed him that if he does not withdraw his representations, appropriate steps would be taken against him and therefore he withdrew his representations as he was intimidated. 3.11. Thereafter, the petitioner made another representation dated 19.12.2022 which was rejected on 12.01.2023 on the grounds that the service rendered by the petitioner was not eligible for pension benefits. Being aggrieved, the petitioner has preferred this petition. 4.1. 3.11. Thereafter, the petitioner made another representation dated 19.12.2022 which was rejected on 12.01.2023 on the grounds that the service rendered by the petitioner was not eligible for pension benefits. Being aggrieved, the petitioner has preferred this petition. 4.1. Learned advocate Mr.Krishnan Ghavariya for the petitioner invited the attention of this Court to the order dated 6th February, 2017 passed by this Court in Special Civil Application No.1973 of 2017 wherein, it is observed as under : “6. The above referred judgment was challenged before the Letters Patent Appeal Bench by preferring Letters Patent Appeal No.1370 of 2015. The Court without expressing any opinion permitted the withdrawal on the ground that the withdrawal was sought with a view to pursue the representation already made to respondent No.1. Such order came to be passed on 03.02.2016. As none of the representations made thereafter has been decided, the present petition is being preferred. 7. In the earlier petition when the services of the petitioner had been terminated, this Court vide order dated 23.2.2015 extensively dealt with the entire chronology of events and held again the petitioner. The Court noticed that his engagement was purely on ad hoc and temporary and by way of stopgap- arrangement on fixed pay basis coupled with fact that he was age barred when his appointment was made which was impugned before the Court. On account of his unauthorised, his service was terminated. This Court is of the opinion that the petition does not deserve to be entertained. No fresh representation could be permitted, however, the one which had been permitted by the Division Bench has not been replied by the authority concerned it is directed to respond to the earlier representation within two weeks from the date of receipt of the copy of this order, petition stands disposed of accordingly. Direct service is permitted.” 4.2. Relying upon the above observations, it was submitted that the respondent authorities never decided the representation made by the petitioner. It was submitted that the petitioner has made a further representation on 19.12.2022 to consider his services as regular service from 1993 to 2011 and to pay pension to the petitioner as he has rendered service for more than ten years, but the same was rejected contrary to relevant legal position on the ground that the service of the petitioner was never regularized, hence he is not eligible for pension. 4.3. 4.3. Learned advocate Mr.Krishnan Ghavariya candidly admitted that the service of the petitioner was never regularised by the respondents. 5. In view of the above facts, as service of the petitioner was never regularised, the petitioner is not entitled to pension benefits as per the Gujarat Civil Services (Pension) Rules, 2002 (for short ‘the Rules, 2002’). Rule 6 of the Rules, 2002 provides for regulation of claims to pension or family pension wherein it is stated that any claim to pension or a class of pension shall be regulated by the provisions of these rules in force at the time when a Government employee retires or is retired or is discharged or dies, as the case may be. 6. Therefore, it is necessary to refer to Rule 2 of the Rules, 2002 wherein, it is stipulated as under: “2. Extent of application: - Except where it is otherwise expressly or impliedly provided, these rules shall apply to – (a) all members of services and holders of posts whose conditions of service; the Government of Gujarat is competent to prescribe, and (b) the person in respect of whose service conditions, pay and allowances and pension or any of them, special provision has been made under an agreement, in respect of any matter not covered by the provisions of such agreement.” 7. Rule 9(55) defines “Pension” which reads as under: “(55) “Pension” means any class of service pension including compensation pension referred to in rule 44 of Gujarat Civil Services (Pension) Rules, 2002 and gratuity but does not include temporary increase/dearness relief, granted by Government to a pensioner as compensation for higher cost of living.” 8. Rule 9(69) defines “Qualifying Service” which reads as under: “(69) “Qualifying Service” means service rendered while on duty or otherwise which may be taken in account for the purpose of pension and gratuity admissible under Gujarat Civil Services (Pension) Rules.” 9. As the petitioner was never appointed as a regular employee and his service was never taken continuously by the respondents. On perusal of the representation made by the petitioner for claim of his pension, it is clearly stated that he has rendered service from 04.05.1993 to 15.12.2011 at Jamnagar in capacity of driver, peon and watchman on adhoc basis only and he has discharged service when the regular employees were on leave. On perusal of the representation made by the petitioner for claim of his pension, it is clearly stated that he has rendered service from 04.05.1993 to 15.12.2011 at Jamnagar in capacity of driver, peon and watchman on adhoc basis only and he has discharged service when the regular employees were on leave. It is also stated in the application that he has discharged his duty as reliever. Admittedly, the claim of the petitioner to continue his service as regular service was never approved by the respondents. 10. In the case of the petitioner, this Court has extensively dealt with the entire chronology of events in the order dated 23rd February, 2015 and held against the petitioner that the engagement of the petitioner was purely on ad-hoc and temporary basis by way of stop gap arrangement and on fix pay basis, coupled with the fact that he was age barred when his appointment was made which was impugned before the Court. The service of the petitioner was terminated in the year 2011 on account of his unauthorised absence. 11. On perusal of the order dated 23rd February, 2015 passed by this Court in Special Civil Application No.9309 of 2013, after considering the statement giving out details about the notices/advices and instructions issued from time to time to the petitioner for reporting to the duty it was observed that the order dated 15.12.2011 terminating the services of the petitioner was passed after issuing various notices/instructions to improve the irregularity and to perform the duty diligently and in disciplined manner by the petitioner, however, the petitioner did not improve his conduct and continued to remain on unauthorised leave resulting into the order of termination. 12. This fact is also considered in the order dated 06.02.2017 in Special Civil Application No.1973 of 2017 taking into consideration the observation made in the order passed in the Letters Patent Appeal No.1370 of 2015 which was withdrawn by the petitioner with a view of pursue the representation made to the respondent No.1. This Court also dismissed the petition as observed herein above. In such circumstances, the authority was directed to respond to the earlier representation made by the petitioner. Such representation thereafter was withdrawn by the petitioner. 13. This Court also dismissed the petition as observed herein above. In such circumstances, the authority was directed to respond to the earlier representation made by the petitioner. Such representation thereafter was withdrawn by the petitioner. 13. In view of the above facts, as the petitioner has failed in past with regard to regularise his service, the claim of the petitioner to grant pension is rightly not considered by the respondent authorities. 14. In view of the foregoing reasons, the petition being devoid of any merit, is dismissed. No orders as to cost.