Dismissed

State of Gujarat v. Kanjibhai Nagjibhai Desai

Gujarat HC24 Feb 2020LPA/189/2020

Case brief

AI extract

What is this about?

This Letters Patent Appeal dismissed the State's challenge to a Single Judge order. The court ruled that long-term ad-hoc service did not disentitle the respondent from pension benefits, directing authorities to process the case with interest.

What did the court decide?

The respondents are directed to immediately prepare and process the petitioner's pension case, sanction it within one month, and pay arrears within six weeks with 6% interest.

State of Gujarat Vs Kanjibhai Nagjibhai Desai — Pension and Retirement Benefits | Gujarat HC (2020)

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C/LPA/189/2020 ORDER

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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R/LETTERS PATENT APPEAL NO. 189 of 2020 In R/SPECIAL CIVIL APPLICATION NO. 16009 of 2018 With

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CIVIL APPLICATION (FOR INTERIM RELIEF) NO. 1 of 2020 In R/LETTERS PATENT APPEAL NO. 189 of 2020

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STATE OF GUJARAT

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Versus

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KANJIBHAI NAGJIBHAI DESAI

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========================================================== Appearance:

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MR JK SHAH, AGP for the Appellant(s) No. 1,2,3,4 for the Respondent(s) No. 1

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CORAM: HONOURABLE THE CHIEF JUSTICE MR. VIKRAM NATH and HONOURABLE MR.JUSTICE ASHUTOSH J. SHASTRI

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Date : 24/02/2020

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ORAL ORDER (PER : HONOURABLE MR.JUSTICE ASHUTOSH J. SHASTRI)

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Present Letters Patent Appeal under Clause 15 of the Letters Patent has been filed by the appellant – State authority, assailing the correctness of an order dated 8.8.2019 passed by the learned Single Judge in Special Civil Application No.16009 of 2018.

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The background facts giving rise to present appeal are that the respondent – original petitioner approached the writ Court under Article 226 of the Constitution of India on the premise that his date of birth is 1.6.1961 and he is belonging

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C/LPA/189/2020 ORDER

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to Socially and Economically Backward Class (SEBC) and is also possessed with educational qualification of SSC, PTC and M.A., M.Ed. degree. Originally, he was appointed as Head Teacher in a Government recognized grant-in-aid Baxipanch Ashram Shala at Jagatpur, Taluka – Daskroi, District – Ahmedabad w.e.f. 1.8.1983. By that time, the Education Department of the Government of Gujarat established the Gujarat Council for Educational Research and Training (GCERT) by Government Resolution dated 11.5.1988 and the Director of GCERT was declared as head of the department by Government Resolution dated 3.3.1990. In response to a later Government Resolution dated 28.5.1997, the Director was authorized to fill up the posts of Senior Lecturers in the District Institutes of Educational and Training (DIET) under GCERT on ad-hoc basis until the candidates selected by the Gujarat Public Service Commission are appointed. For that purpose, 9 member committee was constituted which published an advertisement in the month of June, 1997, inviting applications for ad-hoc appointment on duly sanctioned 84 posts of Senior Lecturers (Class-II) in DIETS under GCERT.

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2.1 The respondent – original petitioner, being eligible, applied for the said post and was also given a call letter dated 4.8.1997.

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C/LPA/189/2020 ORDER

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The said selection committee scanned the eligibility of the respondent herein and in the pay scale of Rs.2000-3500, a letter of appointment was issued on 23.8.1997. Since the said appointment order came to be received, the respondent herein was relieved from the Baxipanch Ashram Shala on 3.9.1997 and immediately on the next day, without any break on 4.9.1997, he joined the services as Senior Lecturers (Class-II) in DIET at Surendranagar.

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2.2 It is the case of the respondent herein that later on, he came to be transferred to DIET, Kukas, District – Mehsana vide order dated 12.3.2001. Subsequently, the GCERT wrote a letter on 30.3.2001 to the State Government informing that the Senior Lecturers, who are appointed on ad-hoc basis, are required to be continued until the recruitment takes place through GPSC. But without waiting for the State Government’s response, by an order dated 31.3.2001 and consequently, vide order dated 3.4.2001, the respondent herein was discharged from the services. But then, on account of some intra departmental deliberation, another order dated 29.5.2001 came to be issued by GCERT and the respondent herein was continued again on the post in question. Thereafter, on expiration of the said period of appointment i.e. by further order dated 29.5.2001, the period

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of appointment of the respondent herein was further continued till 31.3.2002. Apprehending discontinuance, the respondent herein along with other lecturers of DIET preferred a writ petition before this Court being Special Civil Application No.3669 of 2002 and allied matters. But then, by virtue of order dated 4.4.2002, the respondent herein and other lecturers were directed to be continued on their respective posts till eligible duly selected and recruited candidates are made available through GPSC. It appears that until filing of the writ petition, neither any advertisement came to be issued nor the recruitment had taken place.

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2.3 It further reveals from the record that in the mean time, by virtue of another Government Resolution dated 29.10.2009, all the posts in GCERT are taken out from the purview of GPSC and it was decided to fill up the posts of Senior Lecturers (Class-II) by GCERT only and later on, pursuant to the advertisement dated 28.12.2009, some 100 Senior Lecturers (Class-II) came to be recruited. It has been the case of the respondent herein that once the post of Senior Lecturers stated above are taken out from the purview of GPSC and entrusted to GCERT, the appointment of the respondent herein took place by GCERT only through a duly constituted 9 member selection committee and as

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such, a question of mere formality of regularizing the services of respondent herein left out. But then, the same remained undecided. There was a small break in service of 56 days i.e. from 4.4.2001 to 29.5.2001. But, by that time, the respondent herein had also cleared CCC examination provided for Class-I and II officers of the State of Gujarat and the benefits of 5^th , 6^th and 7^th Pay Commissions recommendations have also been extended to the respondent herein including annual increments regularly right from his appointment as Senior Lecturers (ClassII) i.e. from 4.8.1997. So, in substance, the respondent herein rendered his initial services for the period commencing from 11.2.1983 to 3.9.1987 i.e. almost 13 years, 10 months and 3 days in grant-in-aid Ashram Shala which is the limb of the State and his present services as ad-hoc Senior Lecturers (Class-II) under GCERT is right from 4.9.1997 and on account of attaining the age of superannuation i.e. 58 years, the respondent herein retired from the service on 30.6.2019. So, in substance, from 4.9.1997 to 30.6.2019, the services remained as 21 years 9 months and 29 days and as such, qualifying total length of service for the purpose of pension under the provisions of the Gujarat Civil Services Pension Rules, 2002 comes to around 35 years and 8 months. However, the grievance of the respondent

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remained that despite the aforesaid length of service, for no fault on his part, the authorities were not inclined to process his pension papers which are required to be prepared well in advance. As a result of this, well in advance before the date of his superannuation, the respondent herein approached this Court by way of aforesaid writ petition being Special Civil Application No.16009 of 2018, seeking following reliefs:

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“(a) to admit this petition and to allow the same by issuing notice for final disposal on returnable date;

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(b) to direct the respondents to forthwith prepare and sanction the petitioner’s pension case and to issue the pension payment order and death-cum-retirement gratuity order and to pay all the retirement benefits in view of the petitioner’s retirement as Senior Lecturer, Class-II from GCERT on 30.6.2019 on reaching the age of superannuation of 58 years;

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(c) to restrain the respondents from altering the serviceconditions of the petitioner as Senior Lecturer, Class of GCERT to his disadvantage in any manner whatsoever;

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(d) to direct the respondent authorities to complete the formality of regularizing the petitioner’s ad-hoc service as Senior Lecturer, Class-II of GCERT since 4.9.1997 at the earliest;

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(e) to direct the respondents to pay interest @ 18% per annum on the delayed payment of the retirement benefits with effect from 3.6.2019;

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(f) Pending the hearing, and final disposal of this petition, be pleased to direct the respondents to forthwith prepare and sanction the petitioner’s pension case and to issue the pension payment order and death-cumretirement gratuity order and to pay all the retirement

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C/LPA/189/2020 ORDER

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benefits on 30.6.2019 as Senior Lecturer, Class-II of GCERT, on reaching the age of superannuation of 58 years, subject to further orders that may be passed by the Hon’ble Court.

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(g) Pending the hearing, and final disposal of this petition, be pleased to direct the respondents to pay provisional pension to the petitioner with effect from 1.7.2019 until petitioner’s pension case is prepared and sanctioned;

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(h) Pending the hearing, and final disposal of this petition, be pleased to restrain the respondents from altering service conditions of the petitioner as Senior Lecturer, Class-II of GCERT in any manner adverse to him;

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(i) to grant costs of this petition and to grant any other appropriate and just relief’/s;”

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2.4 The said writ petition came up for consideration before the learned Single Judge, who, after hearing both the parties, finally allowed the petition vide judgment and order dated 8.8.2019, by holding that the respondent herein – original petitioner is entitled to pension and consequential interest.

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2.5 It is this judgment and order which is made the subject matter of present Letters Patent Appeal.

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We have heard Shri J.K. Shah, learned Assistant Government Pleader appearing on behalf of the State – appellants. Shri Shah has vehemently contended that the learned Single Judge has committed a serious error in not

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C/LPA/189/2020 ORDER

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appreciating that the appointment of the respondent herein – original petitioner was on ad-hoc appointment and till the age of superannuation, his regularization issue was not ultimately decided and as such, the respondent herein is not entitled to any pensionary benefits. It has been contended vehemently that if the view taken by the learned Single Judge is allowed to be operated then, almost all ad-hoc employees would claim the benefit of pension. Shri Shah further submitted that respondent herein was purely appointed on ad-hoc basis and was not on a sanctioned post and as such, his pension papers were rightly not prepared by the respondent authorities at the relevant point of time. Simply because the respondent herein has worked on a long period on ad-hoc basis, he would not be ipso facto entitled to the pensionary benefits which are otherwise meant for regular employees.

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3.1 Shri Shah has vehemently contended that while passing the impugned order, the learned Single Judge has not properly construed the relevant rules which are applicable, precisely, Rules 25 and 26 of the Gujarat Civil Services (Pension) Rules, 2002. Bare reading of the said Rules would make it clear that the view taken by the learned Single Judge is not just and proper. Hence, such error which has been committed deserves to

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be rectified, by setting aside the impugned order. However, Shri Shah has fairly conceded that almost similar issue was dealt with by this Court in Letters Patent Appeal No.1748 of 2019 decided on 22.10.2019 and as such, after referring to aforesaid brief submissions, Shri Shah has left the issue to the discretion of this Court. No other submissions have been made.

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Having heard Shri Shah, learned Assistant Government Pleader and having gone through the material placed before us, the overall service period as has been contended comes to more than 35 years’ service. It further appears that when the advertisement came to be issued in June, 1997, inviting application for ad-hoc appointment, there were 84 sanctioned posts and as such, the respondent herein was duly scrutinized by the 9 member selection committee constituted for such purpose. As such, though the appointment of the respondent herein might be on ad-hoc basis, it was pursuant to the advertisement and towards the sanctioned post as mentioned above. It further appears that during the span of service, not only the regular post was made available to the respondent but, the benefits have also been extended of 5^th , 6^th and 7^th Pay Commission recommendations. It has also been found from the record that in past, the respondent herein for a period of 13

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years and 10 months was in a grant-in-aid Ashram Shala which is nothing but a limb of the State and then, immediately was appointed as Senior Lecturer (Class-II) which appointment continued may be on ad-hoc, but for a pretty long period of 21 years, 9 months and 27 days and as such, keeping this service track record of the respondent in mind, the learned Single Judge has examined the applicability and effect of Rules 25 and 26 of the Pension Rules, 2002 and then, arrived at a conclusion that the respondent herein is entitled to the benefit of pension.

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While examining the order from the aforesaid view point, we have also noticed that the learned Single Judge while coming to the conclusion has also considered the effect of Rule 25 which indicates the group of words “whether temporary or permanent, interrupted or continuous” and then, justifiable conclusion that tenure of service of respondent may be ad-hoc, also deserves to be considered keeping in view the decision delivered in Special Civil Application No.19042 of 2017 and further clearly held that ad-hoc nature of service of such a long period would not be an impediment in granting benefit of pension to the respondent herein. The conclusion arrived at by the learned Single Judge since based upon another decision of the coordinate Bench, we see no reason to take any deviation from such a view. Hence, in

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our considered opinion, no error appears to have been committed by the learned Single Judge in passing the impugned order.

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It is candidly submitted by Shri Shah that this Bench has also taken similar view based upon true construction of Rules 25 and 28 of the Pension Rules, 2002 and has allowed the petition. The said case is also having almost similar controversy and as such, in the absence of better material or distinguishable submission, we are not in a position to take a different view since identical controversy has been set at rest. Considering the aforesaid circumstances, we feel that no error is committed by the learned Single Judge in passing the impugned order. A specific conclusion which has been arrived at by the learned Single Judge based upon the material on record is reproduced hereinafter :

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“6. The facts of the services of the petitioner highlighted above undeniably show that the petitioner worked continuously and his total services were more than 35 years as mentioned above. Though as ad hoc, the petitioner continued to serve on the post of Lecturer which necessarily imply that the posts was pursuant to need of the respondents and the petitioner actually discharged his duties on the permanent establishment. 6.1 When the petitioner has claimed pension and his claim falls within the purview of Rule-25 of the Pension Rules of 2002 as above and since the petitioner has to his credit qualifying service, his ad hoc nature of service

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would not be an impediment in granting the pension to him.

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6.2 The petitioner has completed more than 35 years of service. This tenure is sufficiently long not to treat it as ad hoc in that way. Apart this, rule 25 describes qualifying services to be one which may have been temporary interpreted or continuous. The petitioner was serving in a pensionable establishment which was a permanent establishment and his services could not have been treated as not countable for the purpose of pension.

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As a result, it is held that inaction on part of the respondents in not processing the pension case of the petitioner on the ground that the status of the petitioner was ad hoc Lecturer, is not sustainable. The mere fact that the petitioner served on ad hoc basis would not disentitle him to receive the pension and other pensionary benefits. The respondents are directed to immediately prepare and process the pension case of the petitioner and sanction the same within a period of one month from the date of receipt of present order. The payment of pension shall be started immediately and the arrears shall be paid within six weeks from the date of completion of pension papers.

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7.1 It is observed that if any of the time limits indicated above including processing and finalisation of pension case of the petitioner is not observed, the petitioner shall be entitled to interest at the rate of 6% on the amount payable from 1st August, 2019.

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The petition is allowed in terms of the aforesaid observations and directions.”

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The aforesaid observations are reflecting the view which is

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possible view and as such, keeping in view the peripheral scope of Letters Patent Appeal enlisted by the Apex Court in the case of

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Management of Narendra & Company Private Limited v.

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C/LPA/189/2020 ORDER

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Workmen of Narendra & Company , reported in (2016) 3 SCC

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340, we are not inclined to disturb the finding arrived at by the learned Single Judge. Hence, in the absence of any perversity or irregularity of any nature, we are of the considered opinion that the appeal lacks merit and the same is dismissed hereby.

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Consequently, connected civil application also stands disposed of.

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(VIKRAM NATH, CJ)

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(ASHUTOSH J. SHASTRI, J)

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V.J. SATWARA

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State of Gujarat v. Kanjibhai Nagjibhai Desai

Case brief

What is this about?

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State of Gujarat v. Kanjibhai Nagjibhai Desai

Case brief

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What did the court decide?

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