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2024 DIGILAW 1689 (GUJ)

STATE OF GUJARAT v. RUPAL DINESH PATEL

2024-08-08

A.S.SUPEHIA, MAUNA M.BHATT

body2024
ORDER : 1. This appeal under Clause 15 of the Letters Patent is directed against the judgment dated 04.01.2024 in Special Civil Application No. 15235 of 2021, wherein the learned Single Judge has allowed the petition directing the appellants to pay to the respondent compensation pension and other corresponding retirement benefits based on the qualifying services put in by her within a period of 8 weeks from the date of receipt of the order. It is further directed that the appellant shall also pay the arrears of pension and other retirement benefits to the respondent from the date of her discharge within the period directed. 2. The facts in brief emanating from the record are as under: The respondent was appointed to the post of lecturer at K.D. Polytechnic, Patan on 27.08.1997 which is the Government polytechnic after due process of selection pursuant to the advertisement issued by the appellant. The said appointment was made by the State Government on sanctioned vacant post on the regular pay scale in the cadre of lecturer Class-II in Gujarat Education Service. The appointment of respondent was on adhoc basis till the regularly selected candidates through Gujarat Public Service Commission was available or till 11 months whichever was earlier. Admittedly, after appointment, she continued to serve the appellant for a period of more than 23 years without any break. The appellant authorities thereafter passed an order dated 08.03.2021 discharging the respondent from service. Pursuant to the order dated 08.03.2021, discharging the respondent from service, she came to be relived from service on 02.08.2021. Upon order dated 08.03.2021 and 02.08.2021, the respondent made detailed representations on 20.04.2021, 23.06.2021 and 02.08.2021 with a request to grant her retirement benefits such as pension and gratuity. Aggrieved by non-action of the appellant for release of pension and other retiral benefits, a petition was preferred wherein, the learned Single Judge directed the appellant to pay the compensation pension and other corresponding retirement benefits based on qualifying service put in by the respondent. It is also directed that the service rendered by the respondent on adhoc basis shall be counted for qualifying service and for calculating the retiral benefits. The arrears of pension and other retiral benefits shall be directed to be paid from the date of her discharge order dated 08.03.2021. It is also directed that the service rendered by the respondent on adhoc basis shall be counted for qualifying service and for calculating the retiral benefits. The arrears of pension and other retiral benefits shall be directed to be paid from the date of her discharge order dated 08.03.2021. Aggrieved by the order dated 04.01.2024 passed by the learned Single Judge in the captioned writ petition, State has filed this appeal. 3. Learned Assistant Government Pleader Ms. Shruti Dhruve for the appellant-State submitted that since the respondent has rendered her service on adhoc basis, she would not be entitled for benefit of family pension. 4. On the other hand, learned advocate for the respondent-original petitioner submitted that the employee who was working on adhoc basis is entitled for family pension, as per Rule 25 of the Gujarat Civil Services (Pension) Rules, 2002 (for short ‘the Rules’). In support of her submissions, she has relied upon the judgment dated 07.05.2019 passed in Special Civil Application No. 19042 of 2017 and also on the order dated 18.10.2019 passed in Special Civil Application No. 20185 of 2018, which has been confirmed up to the Apex Court. She has further submitted that as per the Family Pension Rules and as per the Government Resolution dated 11.05.1990, if an employee before his death has completed 5 years’ service, is entitled for family pension and since the respondent had completed more than 5 years of service, she would be entitled to the family pension. Thus, it is urged that no interference is called for in the order of Learned Single Judge. 5. Having heard learned advocates for the respective parties, it is noticed that the respondent completed approximately 23 years of service with the appellant-State as an adhoc lecturer and since her services were discontinued, the same was subject matter of challenge in the captioned writ petition. By filing the captioned writ petitions the respondent had claimed for payment of compensation pension under Rule 44 of the Rules. The compensation pension is envisaged under Rule 44(4) of the Rules where pension is to be granted to a Government Employee who is discharged from Government Service other than on medical certificate and for no fault of his, before attaining the age of superannuation. The compensation pension is envisaged under Rule 44(4) of the Rules where pension is to be granted to a Government Employee who is discharged from Government Service other than on medical certificate and for no fault of his, before attaining the age of superannuation. Revisitation of facts suggest that the respondent was selected and appointed to the post of lecturer in K.D. Polytechnic, Patan on a sanctioned vacant post in the regular pay scale and cadre of Lecturer, Class-II in Gujarat Education Service. It was condition in the appointment that she was stated to be on adhoc basis till regularly selected candidate through Gujarat Public Service Commission is available or 11 months whichever is earlier. It is not in dispute that she was continued on the said post for more than 22 years and thereafter by an order dated 08.03.2021, she was discharged from service. The claim of pension has been rejected by the appellant authority considering the service of the respondent as adhoc. 6. The learned Single Judge by placing reliance on the decision in Special Civil Application No. 19042 of 2017 has allowed the petition. The learned Single Judge also relied upon the decision of the Division Bench of this Court in Letters Patent Appeal No. 1748 of 2019 dated 22.10.2019. Moreover, in Letters Patent Appeal No. 140 of 2018, this Court considered the issue in relation to Rule 25 of the Rules which is as under: “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 contingences. (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. (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 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.” 7. Clause (i) of Rule 25 of the Gujarat Civil Services (Pension) Rules, 2002 enumerates the services from (a) to (h), which are not included as qualifying service. In fact, sub-clause (ii) of Rule 25 of the Gujarat Civil Services (Pension) Rules, 2002 reveals that all service rendered in work charged establishment for five years or more, is required to be considered as qualified service for the purpose of pension. 8. Even the services, which are rendered on probation/temporary or permanent, interrupted or continuous, rendered on regular establishment as per sub-clause (i) of Rule 25, are included as qualified service under the Pension Rules, 2002. 9. In the judgment dated 07.05.2019 passed by the learned Single Judge in Special Civil Application No. 19042 of 2017, the learned Single Judge after considering provisions of Rule 25 and 26 of the Pension Rules, has held thus: “5.2 Thus, Rule 25(i) of the Rules provides that qualifying service shall include all services including services rendered on probation. It also includes services rendered in any capacity whether temporary or permanent, whether interrupted or continuous. The qualifying service, but, would not include the service rendered in the non-pensionable establishment or service rendered in contingencies or service rendered in daily-rated establishment. It also includes services rendered in any capacity whether temporary or permanent, whether interrupted or continuous. The qualifying service, but, would not include the service rendered in the non-pensionable establishment or service rendered in contingencies or service rendered in daily-rated establishment. Learned senior counsel for the petitioner could rightly emphasis the group of words “whether temporary or permanent, interrupted or continuous” from the language of the Rules to submit that the petitioner's services would be included as per the Rules, within the purview of qualifying service for pension. 5.3 There is no gainsaying that in the present case, the appointment of the petitioner was never converted into contractual, nor the appointment was on a fixed salary. The Respondent where the petitioner was serving was grant-in-aid institute and the salary was paid to the petitioner under the grant-in-aid code. The petitioner also received Fourth, Fifth and Sixth Pay Commissions benefits from time-to-time. 5.4 Further, Rule 26 of the Rules reads to state about the Conditions subject to which service qualifies. It says in its sub-rule (1) that the service of a Government employee shall not qualify unless his duties, pay and allowance are regulated by the Government or under conditions determined by the Government. As per sub-section (2), it is provided that for the purpose of sub-rule (1) the expression ‘service’ means service under Government and paid by Government from the Consolidated Fund of State. As noted above, the salary to the petitioner was paid out of grant, therefore non-qualification contemplated under above Rule 26 would not arise for the petitioner. 5.8 Keeping in view the above observations and principles when the petitioner was continued in work, though as adhoc, on the post of Lecturer, it necessarily implied that the petitioner's post was pursuant to the need of the respondents and the petitioner discharged the duties in the permanent establishment. When the petitioner has putforth his claim for pension and when the said claim falls within the purview of Rule 25 of the applicable rules and further that the petitioner possessed the qualifying service, the contention that his post was not sanctioned, could hardly be countenanced to impede an enforcement of right of the petitioner to get the pension. Sanction to the post of the petitioner has to be necessarily presumed when the petitioner was continued to thirty three years.” 10. Sanction to the post of the petitioner has to be necessarily presumed when the petitioner was continued to thirty three years.” 10. While placing reliance on the said judgment, learned Single Judge in the order dated 18.10.2019 passed in Special Civil Application No. 20185 of 2018 has allowed the writ petition and directed the State Government to confirm the benefits to an employee, who has rendered the ad-hoc services. The same was assailed before the Division Bench by filing Letters Patent Appeal No. 762 of 2020 and the same was rejected by order dated 13.10.2020, against which the State filed Special Leave to Appeal (C) No. 1109 of 2022. The same was rejected vide order dated 18.02.2022 by the Apex Court, which reads as under: “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 content that an employee who has rendered 30 years continues service shall be eligible for pension is nothing but unreasonable. As a welfare State, the State as such ought not to have taken such a stand.” 11. In view of above, and in view of judgment dated 15.07.2024 in Letters Patent Appeal No. 140 of 2018, we could not see any error in the decision of the learned Single Judge which warrants interference. Hence, the present appeal being meritless deserves to be rejected and the same is rejected.