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2024 DIGILAW 467 (GUJ)

Chandrakant Anna Jadhav v. State Of Gujarat

2024-03-06

NIKHIL S.KARIEL

body2024
JUDGMENT : 1. Heard learned Advocate Mr. Tejas P. Satta for the petitioner, learned AGP Ms. Nidhi Vyas for the respondent-State and learned Advocate Mr. Mitul Shelat for the respondents No. 2 and 3. 2. By way of this petition, the petitioner has sought for the following prayers : "8. .... this Hon'ble Court may be graciously pleased to : A. Admit and allow this petition. B. Issue a Writ of Mandamus or any other appropriate Writ, Order or Direction to the respondent authorities for considering the case of the petitioner and granting the pensioner benefits to the petitioner. C. Issue a Writ or Mandamus or any other appropriate Writ, Order or Direction to the respondent authorities for considering the year 1983 as the joining year of the petitioner in the respondent university and considering the petitioner eligible for receiving the pensioner benefits. D. Issue a Writ or Mandamus or any other appropriate Writ, Order or Direction to the respondent authorities to consider the case of the petitioner within a stipulated time period and in accordance with law. E. Grant such interim relief, as may be deemed to be appropriate in the facts and circumstances of the present case. F. Grant such further and other relief, as may be deemed to be just and proper." 3. It appears that the petitioner, who had joined the service of the respondent-University from the year 1978 on temporary basis and from the year 1983 on regular basis, raises a grievance as regards non-payment of pension and other retiral benefits, more particularly non-joining the petitioner in the pension scheme as promulgated by the State Government. It appears that the petitioner had joined the respondent- University as a temporary cleaner on 04.11.1978 and had continued as such. It appears that later on, the petitioner and other similarly situated Class-IV employees working on temporary basis were to be appointed on permanent basis and to facilitate the same, vide an order dated 31.12.1983, the petitioner and other such temporary employees were appointed on probationary basis for a period of one year from the date of the order. It appears that later on, the petitioner and other similarly situated Class-IV employees working on temporary basis were to be appointed on permanent basis and to facilitate the same, vide an order dated 31.12.1983, the petitioner and other such temporary employees were appointed on probationary basis for a period of one year from the date of the order. It appears that the petitioner had continued as such till the date of his regular superannuation i.e. 14.06.2014, and whereas upon the proposal being sent to the respondent No.4 for payment of pension and other benefits, it appears that the same had not been considered, more particularly on the ground that the petitioner had not given any option as per the pension scheme for non-teaching staff in Government affiliated colleges and universities, promulgated vide Government Resolution dated 14.09.1988. It appears that, on the other hand, the petitioner had been treated as being covered under the General Provident Fund Scheme and an amount of Rs.1,42,451/- had been paid to the petitioner on 01.07.2014. It appears that the respondent-University and the petitioner had continuously approached the respondent-State Authorities for considering the case of the petitioner as being covered under the pension scheme in question and whereas since no positive response was elicited, more particularly since it appears that the respondent-State had rejected the request of considering the petitioner as being covered under the pension scheme vide communication dated 03.01.2016, the petitioner has approached this Court by way of the present petition. 4. Heard learned Advocate Mr. Tejas Satta for the petitioner, who would contend that the entire issue has arisen on account of the petitioner not having provided any option as per the Government Resolution dated 14.09.1988, whereby the pension scheme was made applicable to non-teaching staff in Government affiliated Colleges and Universities. It is submitted by learned Advocate Mr. Satta that while the appointment of the petitioner with the respondent-University was from the year 1978, yet, such appointment was only on temporary basis and whereas the petitioner was appointed on permanent basis vide an order dated 31.12.1983. It is submitted by learned Advocate Mr. Satta that while the appointment of the petitioner with the respondent-University was from the year 1978, yet, such appointment was only on temporary basis and whereas the petitioner was appointed on permanent basis vide an order dated 31.12.1983. Learned Advocate would submit that the respondent-State had not accepted the date 31.12.1983 as the appointment date of the petitioner because of the fact that the petitioner had been granted the benefit of first higher grade in the year 1987, thereby the original appointment of the petitioner in the year 1978 was treated as regular appointment even though it was a temporary appointment. Learned Advocate Mr. Satta would submit that as such, the petitioner had approached the respondent- University vide his communication dated 10.02.2016 inter alia requesting that as such, he was not entitled for the first higher grade from the year 1987 and he would be ready to repay entire amount received by him. Learned Advocate would submit that though the petitioner had been appointed on regular basis from 31.12.1983, since the year 1978 has been treated as the date of entry in service, therefore as per the Government Resolution dated 14.09.1988, the petitioner was required to give an option as to whether he would continue in the contributory provident fund scheme or in the pension scheme. Learned Advocate would submit that the petitioner had not given any option at the relevant point of time, rather no option had been sought for from him and whereas if the petitioner had been treated to be appointed from 31.12.1983, then he was not required to be given any option at all. It is submitted that because of the erroneous payment of first higher grade, the petitioner has now been denied the benefit of being included in the pension scheme, and therefore, intervention of this Court is requested. 5. This petition is opposed by learned AGP Ms. Nidhi Vyas for the respondent-State, who would submit that the petitioner though appointed in the year 1978 on temporary basis, had been given benefit of first higher grade from the year 1987 i.e. upon completion of 09 years of service, and therefore, date of entry in service of the petitioner was to be reckoned from the year 1978 itself. Nidhi Vyas for the respondent-State, who would submit that the petitioner though appointed in the year 1978 on temporary basis, had been given benefit of first higher grade from the year 1987 i.e. upon completion of 09 years of service, and therefore, date of entry in service of the petitioner was to be reckoned from the year 1978 itself. Learned AGP would submit that if the date of entry in service is reckoned from the year 1978, then as per the Government Resolution dated 14.09.1988, the petitioner was required to give an option as to whether he would want to be included in the pension scheme and the petitioner not having given any option whatsoever, no fault could be found with the State Authorities for denying the pensionary benefits to the petitioner by including him in the pension scheme. 6. Learned Advocate Mr. Mitul Shelat for the respondent-University would submit that as such, the documents on record would clearly reflect that the petitioner had been appointed in the year 1978 on temporary basis and whereas he was granted the benefit of permanency only from 31.12.1983. Learned Advocate would submit that while it is true that the petitioner had been granted the benefit of first higher grade from the year 1987, and whereas from the documents mentioned hereinabove, it would be apparent that it was an error and whereas in course of the communications with the respondent-State as regards the pension case of the petitioner, more particularly vide communication dated 27.03.2016, the University has admitted as much that the benefit of first higher grade was granted to the petitioner in the year 1987 by mistake and whereas the University has also relied upon the communication of the petitioner, whereby the petitioner also admits that such payment was by mistake and he was willing to repay the overpaid amount. Learned Advocate Mr. Shelat would submit that since the petitioner was appointed on regular basis only on 31.12.1983, therefore as per the Government Resolution dated 14.09.1988, the petitioner was not required to give any option at all and he was to be included in the pension scheme automatically. Learned Advocate Mr. Shelat would submit that since the petitioner was appointed on regular basis only on 31.12.1983, therefore as per the Government Resolution dated 14.09.1988, the petitioner was not required to give any option at all and he was to be included in the pension scheme automatically. Learned Advocate would submit that under such circumstances, while this Court may direct inclusion of the petitioner in the pension scheme, this Court may also direct the petitioner to repay the additional amount of first higher grade as well as the amount received by the petitioner under the head of General Provident Fund and whereas only upon such amount being repaid, the respondent-State may be directed to include the petitioner under the pension scheme and make all necessary payments. 7. Learned Advocate Mr. Satta in rejoineder, would submit that given some appropriate time, the petitioner would repay all the amounts. 8. Heard the learned Advocates for the respective parties and perused the documents on record. 9. The issue which requires consideration is whether the petitioner is entitled to be included in the pension scheme for non-teaching staff in Government affiliated colleges and universities as promulgated by the respondent-State vide Government Resolution dated 14.09.1988. 10. At the outset, before considering the factual position as regards the case of the petitioner, it would be apposite to refer to the Resolution/Scheme, more particularly whereby the eligibility criteria is prescribed. The scheme for grant of pension to non-teaching staff of universities under the State was introduced vide Government Resolution dated 14.09.1988. The title of the Government Resolution being 'Pension Scheme for the Non-teaching staff in the universities under the Education Department'. Paragraph No. 3(i) of the scheme inter alia states about the scheme being applicable to members of staff recruited before 30.04.1982 and who have retired on or after 30.04.1982. The scheme also requires that the category of employees referred to hereinabove, should within one year from the date of issuance of the Resolution submit an option as to whether they want to continue in the contributory provident fund scheme or they want to come under the pension scheme i.e. the scheme in question. It was also mandated in the scheme that the option once exercised would be final. It was also mandated in the scheme that the option once exercised would be final. It was also further stipulated that an employee, who does not exercise the option within the stipulated time period, would be deemed to have opted for retention of the benefit as admissible to the employee before issuance of the Government Resolution in question. 10.1 Most importantly, Clause-4 of the Government Resolution/Scheme inter alia envisages that a member of the staff recruited on or after 01.04.1982 would be automatically governed by the pension scheme and such employee would not be allowed to opt for contributory provident fund scheme. 11. Having appreciated the eligibility criteria of the pension scheme for non-teaching staff broadly, now this Court would examine the case of the present petitioner. It appears that the petitioner had been appointed in the respondent-University as a temporary cleaner vide order dated 04.11.1978. The order clearly stipulates that the appointment was as "temporary cleaner". It would further appear that the University vide an order dated 31.12.1983 had appointed the petitioner and other similarly situated persons on probation on Class-IV posts. 12. Conjoint reading of the above documents would clearly indicate that the appointment of the petitioner of the year 1978 was a temporary appointment and whereas the regular appointment of the petitioner had commenced from 31.12.1983 when he had been appointed on probationary basis. 13. It would appear that if things are remained as such, there would not have been any issue in including the petitioner under the pension scheme as per the Government Resolution dated 14.09.1988. The issue arose on account of the fact that the petitioner has been paid benefit of first higher grade from the year 1987 i.e. upon completion of 09 years in service and upon such grant, the original entry in service, which was temporary, automatically acquired the status of an appointment on permanent basis. The issue arose on account of the fact that the petitioner has been paid benefit of first higher grade from the year 1987 i.e. upon completion of 09 years in service and upon such grant, the original entry in service, which was temporary, automatically acquired the status of an appointment on permanent basis. If that was so, then naturally, the petitioner being an employee who had entered service before 30.04.1982 as per the Government Resolution dated 14.09.1988 would be required to give an option of whether he wanted to continue in the contributory provident fund scheme or he wanted to be included in the pension scheme, and furthermore, upon the petitioner not giving any option, the deemed provision would kick-in i.e. the petitioner would be deemed to have opted for retention of the benefit admissible to him before issuance of the Government Resolution. 14. While this would have been the normal position, in view of the fact that the order dated 04.11.1978 referred to hereinabove clearly stipulates that the appointment of the petitioner was on temporary basis and since the order dated 31.12.1983 clearly stipulates that the petitioner, who was working on temporary basis, was, vide the said order, appointed on probationary basis, therefore, the petitioner could not have been treated as a regular employee of the respondent-University before 31.12.1983. Thus, apparently, the petitioner had been granted the benefit of first higher grade on account of some error committed at the end of the University, more particularly the University having admitted to such a position vide their communication to the respondent-State Government, dated 27.03.2016. To elaborate, if the petitioner has been appointed on permanent basis on 31.03.1983, then the entitlement of the petitioner for higher grade would start from that date and whereas the date of entry in service as a temporary employee would not have been reckoned as the date for counting the period of 09 years from when the petitioner would be entitled for grant of the first higher grade. Thus, the benefit of first higher grade scale granted to the petitioner from the year 1987 appears to be clearly erroneous and it is declared that the petitioner had entered service as regular employee from 31.12.1983 only. 15. Thus, the benefit of first higher grade scale granted to the petitioner from the year 1987 appears to be clearly erroneous and it is declared that the petitioner had entered service as regular employee from 31.12.1983 only. 15. In the considered opinion of this Court, in view of the above declaration that the petitioner was a regular employee only with effect from 31.12.1983, as per Clause-4 of the Government Resolution dated 14.09.1988, the petitioner was not required to give any option and whereas the petitioner would be treated as automatically governed by the pension scheme for non-teaching staff. 16. The above being the position, while the petitioner's entitlement to be included in the pension scheme, having been confirmed by this Court, the issue now arises as to how the interest of the State could be taken care of, more particularly since it appears that there are amounts overpaid to the petitioner. Furthermore, the issue of amount paid to the petitioner under the contributory provident fund scheme, is also required to be addressed appropriately. 17. Learned Advocate Mr. Satta, having already made a statement, under instructions, that the petitioner would be ready to repay all such amounts overpaid or paid under the contributory provident fund scheme, makes the task easier for this Court. 18. In view of the statement made by learned Advocate Mr. Satta and in view of the discussion hereinabove, it requires to be observed that the amount of first higher grade, paid to the petitioner with effect from 1987 would have to be repaid by the petitioner and whereas the entry of service of the petitioner being fixed as 31.12.1983, the petitioner would be entitled to benefit of higher scale etc. from the said date of entry. Further since this Court has held the petitioner eligible to be included under the pension scheme, therefore the amount received by the petitioner under the Contributory Provident Fund scheme shall also be repaid by the petitioner. 19. Having regard to the above discussion, observations and conclusion, the following directions are issued : (1) The date of entry of the petitioner in service with the respondent-University is declared as the 31.12.1983. The date of entry in service, signifying that as per Clause-4 of the Government Resolution dated 14.09.1988, the petitioner being appointed after 01.04.1982 would be automatically governed under the pension scheme for non-teaching staff in the University. The date of entry in service, signifying that as per Clause-4 of the Government Resolution dated 14.09.1988, the petitioner being appointed after 01.04.1982 would be automatically governed under the pension scheme for non-teaching staff in the University. (2) The petitioner to submit an application, within a period of 15 days from the date of receipt of this order, before the respondent- University to include the petitioner in the pension scheme for non-teaching staff and also to indicate the amount of first higher grade overpaid to the petitioner and whereas the respondent-University and the respondent-State in co-ordination with each other shall indicate the over paid amount within a period of 15 days from the date of receipt of the application. (3) The amount of contributory provident fund and the overpaid amount of first higher grade shall be deposited by the petitioner with the Treasury of the State Government within a period of 15 days thereafter. Furthermore, the petitioner is also at liberty to request the State through the University to grant him the benefit of set off i.e. the amount overpaid to the petitioner as first higher grade and the CPF amount to be deducted from the arrears of pension as payable to the petitioner. (4) The respondent-State to take appropriate steps to pay the pension to the petitioner as the petitioner is covered under the pension scheme of non-teaching and whereas appropriate payment of arrears to be made within a period of three months from the date of receipt of the proposal from the University. In case the petitioner request for availing set off as above, then the petitioner shall be paid the remaining amount within the above stipulated time limit. (5) In the peculiar facts of the present case, none of the parties are directed to pay any interest to the other. 20. With above observations and directions, the present petition stands disposed of as allowed. Rule is made absolute to the above extent. Direct service is permitted.