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2023 DIGILAW 798 (GUJ)

Gita Dhirendra Bajpai v. State of Gujarat

2023-07-05

RAJENDRA M.SAREEN

body2023
JUDGMENT : 1. By way of this petition under Article 226 of the Constitution of India, the petitioner has prayed for the following main reliefs :- “32(a). To admit this petition. (b) To quash and set aside the respondent's action in not considering the case of the petitioner by passing appropriate orders and declare that the petitioner's appointment/promotion as Professor is with effect from 7.9.1998 and therefore, she is entitled to pension as per the provisions in G.R. and further be pleased to direct the respondents to grant pension to the petitioner forthwith by considering the services rendered by her by issuing writ in the nature of mandamus or any other appropriate writ, order or direction. (c) To issue a writ in the nature of mandamus or any other appropriate writ order or direction, directing the respondents to pay all pensionary benefits to the petitioner with 18% interest p.a. with effect from the date on which she retired.” 2. Facts : 2.1. The petitioner says that she was appointed as Lecturer in History, Department of History, M.S. University, vide order dated 5.3.1979. The petitioner joined as Lecturer in History, in Department of History, M. S. University, with effect from 17.3.1979. Thereafter, she has applied for the post of Reader in History in Department of History, M. S. University, and she was selected by the Selection Committee and vide order dated 4.3.1982, she was appointed as Reader in History. The petitioner joined service as Reader in History with effect from 9.3.1982. 2.2. The petitioner was promoted as Professor under the UGC Career Advance Scheme and she was promoted with effect from 7.9.1998 vide order dated 2.8.2001. 2.3. The petitioner has retired with effect from 31.10.2009. Thereafter, the petitioner has filed the present petition for the above quotted reliefs. 2.4. Thereafter, this Court passed the following order in the present petition on 3.4.2023 : “1. Learned counsel for the petitioner submits that the present matter is squarely covered by the judgment and order dated 17.01.2023 rendered by the learned Division Bench of this Court in Letters Patent Appeal No.1228 of 2022 in Special Civil Application No.8767 of 2016. He also relies on the judgment and order dated 12.10.2020 passed by the learned Division Bench in Letters Patent Appeal No.737 of 2020 in Special Civil Application No.8765 of 2016. 2. Learned Assistant Government Pleader Mr. He also relies on the judgment and order dated 12.10.2020 passed by the learned Division Bench in Letters Patent Appeal No.737 of 2020 in Special Civil Application No.8765 of 2016. 2. Learned Assistant Government Pleader Mr. Ayaan Patel submits that the present issue has been settled by the learned Division Bench of this Court as mentioned by learned counsel for the petitioner. He submits that however some documents are needed to be verified before extending the benefits in terms of the order of the learned Division Bench of this Court. He therefore submits that the petitioner may make an appropriate representation and the same shall be decided expeditiously in terms of the judicial pronouncement of this Court. 3. In view of the statement made by learned Assistant Government Pleader, the petitioner is directed to make an appropriate representation to the respondent no.4 through the M.S.University within a period of one week. 4. Upon receipt of such representation, the same shall be decided by the respondent no.4 herein within a period of three weeks thereafter in terms of the judgments passed by this Court as mentioned herein above. 5. Let the decision on the said representation be placed on record by way of an affidavit before the next date of hearing. S.O. to 05.05.2023.” 2.5. Pursuant to the aforesaid direction, the petitioner made a representation to the respondent authority, however, the same is rejected by the respondent authority. 3. Submission of the petitioner : 3.1. Mr. Jayraj Chauhan, learned advocate for the petitioner has submitted that the pension scheme for teaching staff in non-Government affiliated colleges and in the University was introduced vide Govt. Resolution dated 15.10.1984 and as per the provisions of the Govt. Resolution dated 15.10.1984 the petitioner is entitled to pension even if she has not given option since the appointment/promotion of the petitioner is made on 7.9.1998 and the petitioner has retired on 31.10.2009. 3.2. Mr. Jayraj Chauhan, learned advocate for the petitioner has further submitted that her case is not being considered by the respondent authorities and therefore the petitioner has to prefer this petition before this Court. 3.3. Mr. Jayraj Chauhan, learned advocate for the petitioner has further submitted that in identical case decided by this Hon’ble Court in SCA No. 29641 of 2007 decided on 16.6.2008, wherein, this issue has been considered by the Hon'ble Court and pension was given. 3.4. Mr. 3.3. Mr. Jayraj Chauhan, learned advocate for the petitioner has further submitted that in identical case decided by this Hon’ble Court in SCA No. 29641 of 2007 decided on 16.6.2008, wherein, this issue has been considered by the Hon'ble Court and pension was given. 3.4. Mr. Jayraj Chauhan, learned advocate for the petitioner has further submitted that case of the petitioner is identical, however, the respondents are not considering the case of the petitioner. 3.5. Mr. Jayraj Chauhan, learned advocate for the petitioner has further submitted that as per recruitment of the said resolution, an employee recruited on or after 1.4.1982 are “automatically” covered in pension scheme and hence the petitioner’s case is covered under Clause 4 and 6 of the Resolution dated 15.10.1984 which is made effective from 1.4.1982 because of which the petitioner was not required to give any option. 3.6. Mr. Jayraj Chauhan, learned advocate for the petitioner has further submitted that the Principal or the teaching staff, who have completed five years of service tenure will be treated as holding permanent posts for the purpose of this Scheme. 3.7. Mr. Jayraj Chauhan, learned advocate for the petitioner has further submitted that in computing the length of qualifying service for pension under the Scheme all previous services, whether temporary, officiating or permanent, either in one or more than one non-Government aided colleges, university Department, Higher Secondary Schools, which are being paid grant in aid from the Government, shall be taken into account. The period of break in service will not be considered as qualifying service i.e. actual service rendered will be considered as qualifying service. 3.8. Mr. Jayraj Chauhan, learned advocate for the petitioner has further submitted that from the plain reading of clause (4), (5) and (6) of the Govt. Resolution dated 15.10.1984, since the petitioner has put in more than 20 years of service and her appointment date is after 1.4.1982, she is certainly entitled to pension as per the Govt. Resolution and the length of service is required to be considered right from the beginning. 3.9. Mr. Jayraj Chauhan, learned advocate for the petitioner has further submitted that in case of Mr. Korat of Bhavnagar University, Dr. Prajapati from North Gujarat University, Dr. Ranjana Harish from Gujarat University and Dr. Resolution and the length of service is required to be considered right from the beginning. 3.9. Mr. Jayraj Chauhan, learned advocate for the petitioner has further submitted that in case of Mr. Korat of Bhavnagar University, Dr. Prajapati from North Gujarat University, Dr. Ranjana Harish from Gujarat University and Dr. Arvind Bhandari from Gujarat University whose cases are identical since their second appointment was after 1.4.1982, they have not opted for pension even then, they have been given pension whereas in case of petitioner, same is denied. It is submitted that the action of respondents in not considering the case of petitioner for pension is arbitrary, high handed and capricious. 3.10. Mr. Jayraj Chauhan, learned advocate for the petitioner has further submitted that there is no requirement for the petitioner to exercise any option since the appointment of the petitioner is with effect from 7.9.1998 and therefore, covered by the provisions of the Govt. Resolution and inspite of that the respondents are not considering her case. It is submitted that the petitioner's case is squarely covered under clause 3(i) and 4 of Govt. Resolution dated 15.10.1984. 3.11. Mr. Jayraj Chauhan, learned advocate for the petitioner has further submitted that in case of Shri D.R. Korat, Principal, P.P. Science College, Bhavnagar, Bhavnagar University, the State Government has considered his case and he was given the benefit of pension. The case of the petitioner is almost identical with that of Shri D.R. Korat. It is pertinent to note that in case of Shri Korat considering his subsequent appointment as Principal, which was after 1.4.1982, the State Government has considered his case on the basis of above referred Govt. Resolution considering his appointment as fresh appointment after 1.4.1982. The petitioners case is also identical since she is appointed/promoted as Reader on 7.9.1998 i.e. after 1.4.1982. 3.12. Mr. Jayraj Chauhan, learned advocate for the petitioner has further submitted that vide Government Resolution dated 14.9.1988, the State Government was pleased to resolve that UGC pay scale made for university and college teachers under Government Resolution dated 23.11.1976 and the recommendations of Maherota Commission, Government of India has revised the pay scale from 1.1.1986 and thus, recommendations were accepted in toto by the State Government on receipt of the concurrence of the Finance Department vide its noting dated 17.9.1988 and pursuant to that, below Appendix-1, various benefits were given. 3.13. Mr. 3.13. Mr. Jayraj Chauhan, learned advocate for the petitioner has further submitted that in the year 1991, the State Government has issued circular directing the candidates to exercise their option to join pension services. It is submitted that said Government Resolution was issued on 19.10.1991 and names of respective colleges have provided and informed to exercise their option within 15 days. It is submitted that as per the syndicate resolution dated 18.5.1991, the Academic calendar was scheduled wherein Diwali Vacation is scheduled from 20.10.1991 to 23.11.1991, which means that said resolution dated 19.10.1991 was published during Diwali vacation and parties were directed to exercise their Option during Diwali vacation. It is submitted that it an admitted position on the part of respondent authorities that during Diwali vacation, the hostel, offices, colleges, and university offices remains closed for entire month and respective teaching and non-teaching staff were not available during vacation period therefore, it is stated that the option were never communicated and it was never intimated by the authority to the concerned teaching staff to exercise their option within stipulated time, therefore, it was not possible for the employee to exercise their option. 3.14. Mr. Jayraj Chauhan, learned advocate for the petitioner has further submitted that the Division Bench of this Hon'ble Court (Coram: Akil Qureshi & S.G. Gokani, JJ.) in Letters Patent Appeal No. 1213 of 2010 dated 7/10.2.2014 has considered the aforesaid definition of ‘recruitment’ and extended the benefits of pension scheme to the employee concerned. Therefore, it is submitted that the case of the applicant is squarely covered by the definition, policy and decisions rendered by this Hon’ble Court as well as Hon'ble Supreme Court of India. 3.15. Mr.Jayraj Chauhan, learned advocate for the petitioner has further submitted that as per the preamble of Government Resolution dated 15.10.1984, it is intimated that scheme, which has been floated by the State Government as benevolent scheme, which was made applicable to each and every member of teaching staff therefore said benefit is required to be extended to the petitioner also. 3.16. Mr. 3.16. Mr. Jayraj Chauhan, learned advocate for the petitioner has further submitted that the petitioner is seeking parity with the cases of Vice Chancellor Shri Korat, Shri Shankerbhai Patel, Shri Arvindbhai Sanghvi, former Finance Minister, and Smt. Vasuben Trivedi, the present Education Minister of the State who have been given the benefits of pension though they were appointed before 1982 and secured promotion/selection subsequently and therefore their case is identical with the case of the present petitioner. 3.17. Mr. Jayraj Chauhan, learned advocate for the petitioner has further submitted that similarly situated persons had moved Special Civil Application No. 12214 of 2005 before this Hon’ble Court, wherein, vide order dated 7.8.2013, this Hon'ble Court has held that persons, who are employed on or after 1.4.1984 by direct selection are not required to give their option but are automatically governed as per the provisions of Government Resolution dated 15.10.1984. It is submitted that the above referred order was challenged before the Division Bench by preferring Letters Patent Appeal No. 447 of 2014 whereby, the Division Bench of this Hon'ble Court has confirmed the order of learned Single Judge. 3.18. Mr. Jayraj Chauhan, learned advocate for the petitioner has further submitted that similar view has been taken by this Court in Special Civil Application No. 740 of 2013 vide decision dated 22.1.2015. It is further stated that similar view has been taken in Special Civil Application No. 29641 of 2007, said decision has been reported in 2008 (4) GLR 2903, which has been confirmed vide order dated 8.9.2014 in Letters Patent Appeal No. 1151 of 2008. It is further stated that similar view has been taken by this Court relying upon the said policy dated 15.10.1984 in Special Civil Application No. 6827 of 2010 vide order dated 9.7.2014. It is further stated that similar view has been taken by this Court relying upon the said policy dated 15.10.1984 in Special Civil Application No. 12620 of 2003 vide decision dated 17.3.2006 It is further stated that similar view has been taken by this Court in the decision dated 14.7.2014 passed in Special Civil Application No. 4845 of 1998, 3.19. Mr. Jayraj Chauhan, learned advocate for the petitioner has further submitted that by way of resolution dated 15.10.1984, the employee has been covered under Contributory Provident Fund Scheme. Mr. Jayraj Chauhan, learned advocate for the petitioner has further submitted that by way of resolution dated 15.10.1984, the employee has been covered under Contributory Provident Fund Scheme. Vide resolution dated 15.10.1984, the Pension Scheme was introduced, wherein, in clause-4, it has been held that any employee appointed after 15.10.1984 be automatically governed and fall in Pension Scheme and Clause-6 of said Government Resolution states that all the services whether temporary or any kind, Officiating or permanent either any one or more in the university, colleges, higher secondary school, etc. which has been granted grant-in-aid, shall be taken into account for calculating the length of qualifying service under the relevant scheme. Therefore, the authority is required to club the services of the petitioner which were rendered prior to Government Resolution dated 15.10.1984 to calculate the total qualifying service for being entitled to receive the pension. 3.20. Mr. Jayraj Chauhan, learned advocate for the petitioner has further submitted that in the year 1998 the petitioner was appointed/promoted as a Professor with effect from 7.9.1998. For that post, the petitioner had made a specific application to the concerned authority through proper channel and after considering her application, interviews were held and subsequently, the authorities were pleased to appoint present petitioner as ‘Principal’ with effect from 27.12.1989. Therefore as per clause 4 of the Government Resolution dated 15.10.1984 is applicable. 3.21. Mr. Jayraj Chauhan, learned advocate for the petitioner has further submitted that in view of very clear proposition of law and provisions of Government Resolution, the petitioner is automatically and completely governed by the Pension Scheme from her appointment in the year 1998. As per requirement of Government Resolution dated 15.10.1984, the petitioner is automatically governed under the Pension Scheme. It is submitted that as per aforesaid resolution, all the employees, who are appointed after 1.4.1982 are automatically covered under the Pension Scheme. Therefore, there is no alternative available for the petitioner to choose from two options i.e. Pension Scheme and Contributory Provident Fund Scheme. Therefore, there is basic fallacy in not granting the benefit to the petitioner. Submitting accordingly, it is prayed to allow the present petition. 4. Submissions of the respondents – State : Mr. Therefore, there is no alternative available for the petitioner to choose from two options i.e. Pension Scheme and Contributory Provident Fund Scheme. Therefore, there is basic fallacy in not granting the benefit to the petitioner. Submitting accordingly, it is prayed to allow the present petition. 4. Submissions of the respondents – State : Mr. Sanjay Udhwani, learned AGP for the respondents has vehemently submitted that the petitioner cannot be entitled to get any benefits of pension since she has not filed any option claiming pension as governed by the earlier CPF Scheme. 5. FINDINGS: 5.1. I have heard the learned advocates appearing for the respective parties. 5.2. The petitioner is claiming pension as per the Government Resolution dated 15.10.1984. She was appointed as a Lecturer on 05.03.1979 and she joined her duty as Lecturer on 17.3.1979 and subsequently, after following due selection process, she was selected by the Selection Committee and vide order dated 4.3.1982 she was appointed as Reader in History and she joined her service as Reader w.e.f. 9.3.1982. Thereafter, she was promoted as Professor under the UGC Career Advance Scheme and she was promoted w.e.f. 7.9.1998. It is the case of the petitioner that since she had joined the service after 01.04.1982 by undergoing selection process under relevant statute, he would automatically governed by the pension as promulgated vide resolution dated 15.08.1984 more particularly Clause 4 and 6. 5.3. The aforesaid issue was comprehensively considered by the Division Bench vide judgment dated 02.05.2019 passed in Letters Patent Appeal No.2259 2017 and allied matters, while considering earlier decision of the Division Bench, various decisions rendered by the Division Bench on similar issue and the provisions of resolution dated 15.10.1984 has observed thus : “14.1 Moreover, any recruitment/appointment made after 01.04.1982 for the teaching staff is through advertisement and selection hence it is fresh appointment and therefore pension scheme I.e. GPF is automatically applicable. Further, for the non teaching staff also, their promotion at a particular time is to be considered as recruitment and therefore they need not give the option at the time of promotion. In view of the overall facts of the case we are not inclined to entertain these appeals and therefore the appeals deserve to be dismissed. 15. For the aforesaid reasons, the judgements rendered by the learned Single Judges in the respective Letters Patent Appeals are confirmed. In view of the overall facts of the case we are not inclined to entertain these appeals and therefore the appeals deserve to be dismissed. 15. For the aforesaid reasons, the judgements rendered by the learned Single Judges in the respective Letters Patent Appeals are confirmed. The State authorities are directed to grant the benefit of the pension scheme to all the respondents in view of the Government Resolution dated 15.10.1984 from the date of their respective retirement. The respondents who have not refunded/repaid the amount of Contributory Provident Fund, their case be considered by the authorities by paying the amount of pension after adjusting/setting off the amount of Contributory Provident Fund payable by the respondents. In case of the respondents who have refunded/repaid the amount of Contributory Provident Fund, they shall be entitled for interest at the rate of 9% per annum on the amount of pension from the date of their repaying/refunding the amount of Contributory Provident Fund. The respective parties shall act upon these directions and implement the same within 8 weeks from the date of receipt of the writ of the order of this Court. Appeals are accordingly dismissed. Civil Applications also stand disposed of accordingly.” 5.4. The Coordinate Bench of this court in the judgment dated 21.08.2019 while examining the identical issue after referring the judgment of the division bench rendered in Letters Patent Appeal No.2259 of 2017 and allied matters has held thus : “9. In the present case, it is undisputed that the petitioner was initially appointed in the year 1976 by the M.S. University and thereafter, she was promoted as Reader in the Department of Clothing & Textile by the M.S. University vide promotion order dated 4.6.1985 further followed by the promotion as a Professor vide order dated 2.8.2001. In view of petitioner’s appointment being after 1.4.1982, provision of Government Resolution dated 15.10.1984 stands applicable to the petitioner. The case of the petitioner stands squarely covered by the judgment of the Division Bench in the case of State of Gujarat vs. Kalhans Harial Patel (supra). 11. So far as the issue of Contributory Provident Fund is concerned, the Division Bench has observed in paragraph 15 to the following effect: “15. For the aforesaid reasons, the judgements rendered by the learned Single Judges in the respective Letters Patent Appeals are confirmed. 11. So far as the issue of Contributory Provident Fund is concerned, the Division Bench has observed in paragraph 15 to the following effect: “15. For the aforesaid reasons, the judgements rendered by the learned Single Judges in the respective Letters Patent Appeals are confirmed. The State authorities are directed to grant the benefit of the pension scheme to all the respondents in view of the Government Resolution dated 15.10.1984 from the date of their respective retirement. The respondents who have not refunded/repaid the amount of Contributory Provident Fund, their case be considered by the authorities by paying the amount of pension after adjusting/setting off the amount of Contributory Provident Fund payable by the respondents ” 12. In view of the reasons recorded in the aforementioned judgment in the case of State of Gujarat Vs. Kalhans Harial Patel (supra), the present petition stands allowed. The respondent authorities are directed to grant the benefit of pension scheme to the petitioner in tune with the Government Resolution dated 15.10.1984 from the date of her retirement. So far as the aspect of Contributory Provident Fund is concerned, if the petitioner has not refunded/repaid the amount of Contributory Provident Fund, her case be considered by the authorities by paying the amount of pension after adjusting/setting off the amount of Contributory Provident Fund payable by the petitioner. In case the petitioner, has refunded/repaid the amount of Contributory Provident Fund, the petitioner shall be entitled for interest at the rate of 9% per annum on the amount of pension from the date of his repaying/refunding the amount of Contributory Provident Fund. The respective parties shall act upon these directions and pay the amount to the petitioner within a period of 8 weeks from the date of receipt of the writ of the order of this Court. 5.5. In this view of the matter, the issue is squarely covered by the aforenoted judgments, the present writ petition succeeds in terms of the by the division bench in the judgment dated 02.05.2019 rendered in Letters Patent Appeal No.2259 of 2017 and allied matters. 6. In the result, present petition is allowed. The respondents are hereby directed to grant the benefit of pension scheme in light of Government Resolution dated 15.10.1984 to the petitioner from the date of his retirement. 6.1. 6. In the result, present petition is allowed. The respondents are hereby directed to grant the benefit of pension scheme in light of Government Resolution dated 15.10.1984 to the petitioner from the date of his retirement. 6.1. In the present case, the petitioner has already received an amount of CPF and hence, the same has to be adjusted towards the pension from the date of his refunding the amount of CPF. Necessary orders granting the pension to the petitioner within a period of two months from the date of receipt of the writ of this order. Rule is made absolute. In the facts and circumstances of the case, there shall be no order as to costs.