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2024 DIGILAW 433 (GUJ)

Navinchandra Nanalal Joshi v. State of Gujarat

2024-03-04

NIKHIL S.KARIEL

body2024
JUDGMENT : 1. Heard learned Advocate Mr.Asit Joshi for the petitioner and learned AGP Mr.Sahil Trivedi for the respondent State. 2. Issue Rule returnable forthwith. Learned AGP waives service of Rule for the respondent State. 3. JUDGMENT : 1. Heard learned Advocate Mr.Asit Joshi for the petitioner and learned AGP Mr.Sahil Trivedi for the respondent State. 2. Issue Rule returnable forthwith. Learned AGP waives service of Rule for the respondent State. 3. By way of this petition, the petitioner has sought for the following main prayers :- “20(A) Your Lordships be pleased to issue a writ of mandamus, or a writ in the nature of mandamus, or any other appropriate writ, order or direction, directing respondent No.1 and 2 to consider the representation dated 30.3.2017 submitted by the petitioner for grant of pension, gratuity and other retiral benefits, in accordance with the settled legal proposition and various orders and decisions rendered by this Hon’ble Court and then take decision after affording reasonable opportunity of hearing to the petitioner, within such stipulated time as may be deem fit by this Hon’ble Court, in the interest of justice & equity; (AA) Your Lordships be pleased to issue a writ of mandamus, or any other appropriate writ order or direction, quashing and setting aside the impugned order dated 2.3.2019 passed by respondent No.1 as being illegal, arbitrary, discriminatory, unjust, contrary to the provisions of the Rules, contrary to the settled legal position as also violative of Art. 14 and 19 of Constitution of India; (B) Your Lordships be pleased to quash and set aside the action of the respondent authority in not granting the benefit of pension, gratuity and other retiral benefits to the petitioner, even after completion of more than 30 years of service on the sanctioned set up of Class II Medical Officer with the State Government, as being illegal, unreasonable, unjustified, arbitrary, discriminatory, contrary to the provisions of Gujarat Civil Services (Pension) Rules, 2002 as also violative of Art. 14 and 16 of the Constitution of India; (C) Your Lordships be pleased to call for the progress report from the respondent No.1 and 2 office on the action taken on the representation dated 15.7.2007 and 30.3.2017 submitted by the petitioner, pending admission and hearing of the present petition; (CC) Your Lordships be pleased to direct respondent No.1 to reconsider the representation/case of the petitioner, after considering the detailed submissions made by the petitioner and after considering provisions of R.25 of the GCS (Pension) Rules, 2002 as also various orders and decisions passed by this Hon’ble Court and settled legal position and then pass a reasoned order after affording reasonable opportunity of hearing to the petitioner within such stipulated time as may be deem fit by this Hon’ble Court in the interest of justice and equity.” 4. It is the case of the petitioner that he had been appointed on temporary basis as a Medical Officer with the respondents vide an order dated 19.5.1976 and whereas the petitioner was appointed for a period of one year till candidates for regular appointment, either by promotion or nomination would be available. It is submitted by learned Advocate Mr.Joshi that while the petitioner had worked with the respondents from the year 1976 to the year 2008, i.e. till 30.6.2008 when the petitioner had retired upon attaining the age of superannuation. It is submitted that while in the year 1977 while the services of the petitioner were artificially broken by breaks of one or two days, yet, it is submitted that thereafter there were no breaks as such and whereas it is submitted that the petitioner had worked from the year 1976 to 2008 uninterruptedly. It is submitted by learned Advocate Mr.Joshi that the issue with regard to payment of pensionary benefits to persons appointed on adhoc or temporary basis is no more res integra, more particularly a learned Coordinate Bench of this Court in case of Bahadur Hoshi Kotwal Vs. State of Gujarat & Ors., in SCA No.19042 of 2017 vide decision dated 7.5.2019 had interpreted Rule 25 of the Gujarat Civil Services (Pension) Rules, 2002 and had come to a conclusion that even adhoc - temporary services would be counted for payment of pension and other benefits. Learned Advocate Mr.Joshi would submit that the law laid down in Bahadur Hoshi Kotwal (supra) had been followed by another learned Coordinate Bench in case of Talsibhai Dhanjibhai Patel Vs. State of Gujarat being SCA No.20185 of 2018, which was decided on 18.10.2019 and whereas the view taken by the latter Coordinate Bench, relying upon the decision of Bahadur Hoshi Kotwal had been confirmed by the Hon’ble Division Bench of this Court in LPA No.762 of 2020, which came to be dismissed and whereas though an SLP had also been preferred and the same had also been rejected. Learned Advocate would submit that the law on the issue no more being res integra the respondents ought to have granted pension and other admissible benefits to the present petitioner. 5. Learned Advocate would submit that the law on the issue no more being res integra the respondents ought to have granted pension and other admissible benefits to the present petitioner. 5. This petition is vehemently objected to by learned AGP Mr.Sahil Trivedi for the respondent State, who would submit that the petitioner having retired in the year 2008, has approached this Court after ten years of retirement and whereas it is submitted that the petitioner was nothing but a fence-sitter and only after this Court had passed orders in favour of other petitioners similarly situated, did the petitioner think it appropriate to file the present petition. Learned AGP Mr.Trivedi would submit that the services of the petitioner having been appointed on temporary basis, the petitioner would not be entitled to grant of pension and whereas it is requested that the present petition may be rejected by this Court. 6. Heard learned Advocates for the respective parties, who have not submitted anything further. 7. In the considered opinion of this Court, insofar as the substantive issue is concerned, the same is no more res integra. As noted herein above, this Court in case of Bahadur Hoshi Kotwal (supra), after analyzing Rule 25 of GCS (Pension) Rules 2002, has come to a conclusion that the persons even on adhoc or temporary appointments, who have completed the qualifying services would be required or would be entitled to grant of pensionary benefits. Observations of learned Coordinate Bench in case of Talsibhai Dhanjibhai Patel Talsibhai Dhanjibhai Patel (supra) is reproduced herein below for benefits:- “5. In Bahadur Hoshi Kotwal vs. State of Gujarat being Special Civil Application No. 19042 of 2017 decided on 7.5.2019 similar issue came up for consideration. The claim of the petitioner for pension etc. was opposed on the ground that petitioner's services were ad hoc. 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. The claim of the petitioner for pension etc. was opposed on the ground that petitioner's services were ad hoc. 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) ….. to (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 In view of the above Rule-25 of Pension Rules 2002, temporary services are liable to be counted as pensionable. Even though the petitioner served as ad hoc for 30 years and 9 months, he was on the regular establishment entitled to get his services to be treated as pensionable. Rule 25 in terms says that qualifying service for pension include even interpreted services. Therefore, short breaks of 26 days and 5 months during the tenure of the services of the petitioner, would be in no way impead in counting the services of the petitioner to qualify as pensionable services.” 8. Rule 25 in terms says that qualifying service for pension include even interpreted services. Therefore, short breaks of 26 days and 5 months during the tenure of the services of the petitioner, would be in no way impead in counting the services of the petitioner to qualify as pensionable services.” 8. As noted herein above, it appears that the decision of Talsibhai Dhanjibhai Patel has been confirmed in LPA and further the SLP preferred by the State also appears to have been rejected. Thus, it appears that the entitlement of the petitioner is no more in question, more particularly the period of services rendered by the present petitioner as temporary employee from 1976 to 2008 is required to be taken into consideration for grant of pensionary benefits. As far as the issue of fence-sitter is concerned, this Court would not agree with learned AGP, more particularly since it appears that the decision in Bahadur Hoshi Kotwal had been rendered by the Hon’ble Division Bench on 7.5.2019, whereas the present petition has been preferred in the month of May 2018 i.e. more than a year earlier. 9. Having regard to the observations, more particularly since it appears that the issue does not require any further elaboration more particularly since temporary services rendered by an employee would also qualify for being considered for grant of pension, the present petition requires consideration. Hence, the following directions are passed :- 9.1. The impugned order passed by the respondents dated 2.3.2019 is hereby quashed and set aside; 9.2. The respondents are required to calculate and pay pension and other admissible benefits to the petitioner, more particularly treating the period from the date of appointment of the petitioner i.e. 19.5.1976 till 30.6.2008 as qualifying services for the purpose of grant of pension and other retiral benefits. 9.3. Since the petitioner has approached this Court after ten years of his retirement, while the petitioner would be entitled to arrears, the same shall not carry any interest thereupon; 9.4. The calculation of pension and arrears to be done by the respondents within a period of 10 weeks from the date of receipt of this order and whereas, disbursement also to be done of arrears within the said period, failing which the petitioner would be entitled for interest at the rate of 6% per annum. 10. The calculation of pension and arrears to be done by the respondents within a period of 10 weeks from the date of receipt of this order and whereas, disbursement also to be done of arrears within the said period, failing which the petitioner would be entitled for interest at the rate of 6% per annum. 10. With the above observations and directions, the present petition is disposed of as allowed. Rule is made absolute accordingly.