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2024 DIGILAW 36 (GUJ)

Rupal Dinesh Patel v. State of Gujarat

2024-01-04

NIKHIL S.KARIEL

body2024
JUDGMENT : 1. Heard learned Advocate Mr. Vaibhav A. Vyas for the petitioner and learned AGP Mr. Sahil Trivedi for the respondent-State. 2. Issue Rule returnable forthwith. Learned AGP Ms. Trivedi waives service of Rule on behalf of the respondent-State. 3. By way of this petition, the petitioner has sought for the following prayers : "8. The petitioner respectfully prays that, on the basis of the facts and circumstances as mentioned hereinabove and which may be urged at the time of hearing, the Honourable Court may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction to the respondent authorities and may be pleased to :- (A) Direct the respondent authorities to grant the benefit of compensation pension to the petitioner and consequently direct the respondent authorities to make payment of retirement dues such as pension, gratuity, leave encashment, etc. to the petitioner, with interest from the date of her entitlement, or in the alternative (B) Direct the respondent authorities to grant the benefit of retiring pension to the petitioner by treating the petitioner as having retired voluntarily from service on completion of more than 20 years of qualifying service and consequently direct the respondent authorities to make payment of the retirement dues such as pension, gratuity, leave encashment, etc., to the petitioner. (C) Pending admission and final disposal of this petition Honourable Court may be pleased to direct the respondent authorities to make payment or provisional pension and gratuity to the petitioner. (D) Award the cost of this petition, and (E) Grant any other relief or pass any other order which the Honourable Court may consider as just and proper in facts and circumstances of the case." 4. It would appear that the petitioner had completed approximately 23 years of service with the respondent-State, as an ad-hoc lecturer and since the services of the petitioner were discontinued, the petitioner by way of this petition has claimed for payment of compensation pension under Rule 44 of the Gujarat Civil Services (Pension) Rules, 2002 (for short "Rules 2002"). Compensation Pension which is envisaged under Rule 44(4) of the Rules 2002 envisages a pension granted to a Government employee who is discharged from Government service other than on medical certificate and for no fault of his own, before attaining the age of superannuation. 5. Learned Advocate Mr. Compensation Pension which is envisaged under Rule 44(4) of the Rules 2002 envisages a pension granted to a Government employee who is discharged from Government service other than on medical certificate and for no fault of his own, before attaining the age of superannuation. 5. Learned Advocate Mr. Vyas for the petitioner would submit that the petitioner had been originally appointed as lecturer with the K.D. Polytechnics, Patan on 02.09.1997 after a selection process and whereas the petitioner had continued on the said position till she was posted at the R.C. Technical Institute, Ahmedabad where she took over from 31.01.2011 and continued there till her services were terminated and thereafter the petitioner came to be re-appointed on 24.06.2011 and till 25.06.2015, the petitioner had served at Government Polytechnic, Palanpur, and whereas later the petitioner had continued as lecturer in the Government Polytechnic, Himatnagar till 08.03.2021 when her services were discharged. It would appear that the petitioner had continued on ad-hoc basis on the above post and put in approximately 23 years of service and whereas while the petitioner does not question her termination etc., the petitioner has by way of this petition, according to learned Advocate Mr. Vyas, sought for grant of compensation pension as referred to hereinabove. Learned Advocate would submit that as such, the issue in question is no more res integra in view of the law laid down by a learned Co-ordinate Bench of this Court vide judgment dated 07.05.2019 in Special Civil Application No. 19042 of 2017, whereby the learned Coordinate Bench while interpreting Rule 25 of the Rules, 2002 had inter alia observed that all services including service rendered in ad-hoc capacity whether temporary or permanent, whether interrupted or continuous, would be treated as qualifying service for the purpose of grant of pension. Learned Advocate would submit that Division Bench of this Court in Letters Patent Appeal No. 1748 of 2019, vide decision dated 22.10.2019 had confirmed the decision of the learned Co-ordinate Bench. Learned Advocate would submit that the issue having been settled and since the law laid down is squarely applicable to the facts of the present case, the present petition may be allowed. 6. Learned AGP Mr. Learned Advocate would submit that the issue having been settled and since the law laid down is squarely applicable to the facts of the present case, the present petition may be allowed. 6. Learned AGP Mr. Sahil Trivedi for the respondent-State vehemently objects to the submissions made by learned Advocate for the petitioner and would submit that the petitioner has been paid all her entitlements and whereas no case for compensation pension has been made out. To a pointed query by this Court, learned AGP could not point out any decision of the Hon'ble Apex Court whereby the decision of the Division Bench confirming the decision of the learned Co-ordinate Bench referred to hereinabove, has been disturbed or any other contrary view of the Hon'ble Apex Court. 7. Heard learned Advocates for the parties and perused the documents on record. 8. At the outset, before examining the factual aspects, this Court seeks to refer to decision of the learned Co-ordinate Bench of this Court in case of Bahadur Hoshi Kotwal Vs. State of Gujarat and Others, decided vide judgment dated 07.05.2019 in Special Civil Application No. 19042 of 2017. It would appear that the learned Co-ordinate Bench was considering the scope and ambit of Rule 25 of the Gujarat Civil Services (Pension) Rules, 2002 and whereas observations of the learned Co-ordinate Bench at Paragraph Nos. 5.1, 5.2, 5.3, 5.8, 5.9 and 6 being relevant for the present purposes are reproduced hereinbelow for benefit. "5.1 Rule 25 of the Gujarat Civil Services (Pension) Rules, 2002, deals with the qualifying service for the purpose of pension. This rule extracted in its relevant part, reads as under, “Rule-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 contingencies, (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, and (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) … … … (iv) … … … (v) … … … (vi) … … … (vii) … … … (viii) … … … (viii) … … … (ix) … … … 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. Learned senior counsel for the petitioner could rightly emphasise 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. XXX XXX XXX 5.8 Keeping in view the above observations and principles when the petitioner was continued in work, though as ad-hoc, 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 put-forth 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. 5.9 The petitioner completed thirty three years of service. All the time he was treated as ad-hoc Lecturer. That the time of thirty three years is too long not to be adequate to treat it as permanent service. Sanction to the post of the petitioner has to be necessarily presumed when the petitioner was continued to thirty three years. 5.9 The petitioner completed thirty three years of service. All the time he was treated as ad-hoc Lecturer. That the time of thirty three years is too long not to be adequate to treat it as permanent service. Apart this, Rule 25 describes the qualifying service as one which may even be temporary, interrupted or continuous. The petitioner was serving in a pensionable establishment. His services could not have been treated as rendered as not qualified to be pensionable. 6. As a result of above discussion, it is declared that the ground for denial to the petitioner the pension and retirement benefits, that the petitioner was ad hoc employee, is not sustainable. The fact that the petitioner served on ad hoc basis would not disentitle him to receive the pension and the pensionary benefits. The decision reflected in communication-cum-order dated 06th May, 2017 of the Joint Director, Commissioner of Technical Education, Gandhinagar, treating the petitioner as ineligible for pension and retirement benefits, is hereby set aside." 9. Considering the law laid down by the learned Co-ordinate Bench, it would appear that even services rendered on ad-hoc basis, whether temporary or permanent, whether interrupted or continuous, would be included while calculating qualifying service for the purpose of pension as per Rule 25 of the Rules, 2002. The only exception being that the services should not be non-pensionable establishment or in daily-rated establishment. It would appear that the said decision had been confirmed by the Division Bench of this Court in Letters Patent Appeal No. 1748 of 2019 vide decision dated 22.10.2019. 10. Having regard to the law laid down by the learned Co-ordinate Bench, more particularly since it appears that the same squarely applies to the facts of the present case and since it clearly appears that the petitioner has worked on ad-hoc basis for approximately 23 years and whereas while it could be stated that the services of the petitioner may not be probably continuous, yet the facts remains that even for calculating the qualifying service, the services are not required to be continuous. 11. 11. Having considered and come to a conclusion that the petitioner has completed 23 years qualifying services for grant of pension, now this Court would address the issue of entitlement of the petitioner for compensation pension. A compensation pension has been explained at Rule 44(4) of the Gujarat Civil Services (Pension) Rules, 2002. The same is reproduced hereinbelow for benefit. "44(4) Compensation Pension, means a pension granted to a Government employee who is discharged from Government service otherwise than on medical certificate and for no fault of his own, before attaining the age of Superannuation." 11.1 From a plain reading of the Rule 44(4), it would clearly appear that compensation pension is a pension which is given to a Government employee who is discharged from Government service. As per the said Rule itself, there are three conditions attached for grant of compensation pension namely; employee discharge from Government service should not be on a medical certificate, should not be on account of any fault of the employee and should be before the age of superannuation. 12. Considering the facts of the present case from the perspective of the sub-rule as hereinabove, it would appear that while the petitioner was working with the respondents, after having put in approximately 23 years, vide the order dated 08.03.2021, the petitioner was discharged from service. The order does not reflect that the services of the petitioner were discharged on account of any fault of the petitioner nor is it the case of the respondents that the petitioner's services were discharged on account of any fault of the petitioner. While it is true that the wordings of the order reflect as the services of the petitioner are brought to an end and whereas the term used in the affidavit-in-reply is 'termination', yet, it would appear that the order was nothing but an order discharging the petitioner from services, more particularly as per the affidavit-in-reply on account of the fact that GPSC selected candidates were available and the ad-hoc employees like the petitioner are required to make way for GPSC selected candidates. Thus, the order in question satisfies the three requirements namely of not being on any medical certificate, not being on account of any fault of the petitioner and being prior to the date of superannuation since the petitioner is stated to be aged around 45 years when her services were discharged. 13. Thus, the order in question satisfies the three requirements namely of not being on any medical certificate, not being on account of any fault of the petitioner and being prior to the date of superannuation since the petitioner is stated to be aged around 45 years when her services were discharged. 13. In the considered opinion of this Court, since the petitioner has put in 23 years of qualifying services and since the petitioner is entitled for compensation pension, therefore the respondents could not be permitted to contend that the petitioner would not be entitled for any retiral benefits. 14. Having regard to the discussion hereinabove and the conclusion arrived at, the following directions are passed : (i) The petitioner is declared to be entitled for compensation pension and other corresponding retirement benefits based on the qualifying service put in by the petitioner. (ii) The services rendered by the petitioner altogether, on ad-hoc basis shall be treated by the respondents as the qualifying services for calculating the entitlement of the petitioner. (iii) The respondents shall calculate the entitlement of the petitioner based upon the above directions and whereas they will start paying the pension to the petitioner within a period of eight weeks from the date of receipt of this order and whereas the respondents shall also ensure that arrears of pension and other retirement benefits shall also be paid to the petitioner from the date of her discharge, within the said period. 15. With the above observations and directions, the present petition stands disposed of as allowed. Rule is made absolute to the aforesaid extent.