SCA/29641/2007 1/39 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 29641 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE ANANT S. DAVE ========================================= === 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================= === S S PATEL - Petitioner(s) Versus DIRECTOR OF PENSION & PROVIDENT FUND & 4 - Respondent(s) ========================================= === Appearance : MR PARESH UPADHYAY for Petitioner(s) : 1, NOTICE SERVED BY DS for Respondent(s) : 1 - 5. MR SP HASURKAR ASST. GOVERNMENT PLEADER for Respondent(s) : 2 - 3. ========================================= === CORAM : HONOURABLE MR.JUSTICE ANANT S. DAVE Date : 16/06/2008 CAV JUDGMENT SCA/29641/2007 2/39 JUDGMENT 1. Rule. Learned AGP Shri S.P.Hasurkar waives service of rule on behalf of respondent-State. 2. This petition under Article 226 of the Constitution of India is filed by the petitioner, who retired from the post of Reader from M.S. University, Baroda w.e.f. 30.11.2000 for issuance of writ of mandamus or any other writ, order or direction to the respondent authorities, to finalise the pension case of the petitioner and make payment of pension, gratuity and commutation of pension and to release other retiral dues with reasonable rate of interest on delayed payment and also to award exemplary cost. 3. The short facts are as under: 3.1. The petitioner had joined the service as a Reader with respondent NO.5 University on 6.10.1988 after due process of selection, in response to an advertisement. Prior thereto, the petitioner was in the service of the South Gujarat University as a Reader for the period from 31.3.1986 to 5.10.1988 and even before that, the petitioner had served as a lecturer at S.V.R.College of Engineering and Technology, Surat from 4.12.1975 to 31.3.1986 and earlier appointment of the petitioner was with B.V.M. Engineering College at Vallabh SCA/29641/2007 3/39 JUDGMENT Vidyanagar, on the post of Assistance Lecturer from 22.7.1968 and was their uptil 3.12.1975. Thus, the petitioner has rendered his services in various educational institutions as a teaching staff from 22.7.1968 till permitted to retire voluntarily from the post of Reader on 30.11.2000 with respondent NO.5 University. 3.2. The petitioner submitted an application for voluntary retirement and sought permission of respondent NO.5 on 3.8.2000 on completion of 32 years of total service in various educational institutions. The above application of seeking permission for voluntary retirement w.e.f. 30.11.2000 was forwarded by respondent NO.5-University to the Commissioner of Higher Education-respondent NO.4 herein and as per procedure, a certificate is to be issued by the Director of Pension and Provident Fund-respondent NO.1 herein with regard to pensionable service of the concerned officer, after verifying the original service book of the petitioner. By a letter dated 8.11.2000, a certificate was issued to the effect that petitioner had completed pensionable qualifying service of more than 25 years and upon the above certificate after careful scrutiny by Commissioner of Higher Education – respondent NO.4 herein, by order dated 4.12.2000 sanctioned SCA/29641/2007 4/39 JUDGMENT the voluntary retirement of the petitioner w.e.f. 30.11.2000 and consequential order came to be passed from respondent NO.5-University on 2.3.2001. 3.3. Therefore, by the end of the year 2000, after following all relevant procedure as required under Rules, the petitioner was permitted to retire voluntarily after considering completion of 25 years of qualifying pensionable service based on verification of service book and other relevant records of the petitioner. 3.4. It is to be submitted that so far as respondent NO.5- University is concerned, it is all supportive of the petitioner for receiving pension and accordingly from time to time the University has entered into correspondence with either respondent NO.1 or respondent NO.4 to release retiral dues of the petitioner. 3.5. From the record it appears that certain objections were raised by respondent NO.1 on 4.8.2001 about non-exercise of option by the petitioner for pension at relevant point of time, on the basis of certain clauses of Government Resolution dated 15.10.1984 by which pension scheme was made applicable to the teaching staff of the Universities by the State of Gujarat SCA/29641/2007 5/39 JUDGMENT w.e.f. 1.4.1982. 3.6. As per respondent NO.1, the petitioner cannot be given retiral dues in view of non-exercise of option for pension, though mandatory to do so within a period of one year from the date of issue of the above Government Resolution either to continue in Contributory Provident Fund or to come under the scheme of Government Resolution and option as exercised shall be final. If any member of the staff do not exercise option within stipulated period as above, shall be deemed to have opted for the retention of the pension admissible to them before 1.4.1982. 3.7. This was the main objection of respondent NO.1. However, it was replied by the petitioner to respondent No.1 that the provision of exercising option as per above Government Resolution dated 15.10.1984 is not applicable to a person joining the service on and after 1.4.1982 in view of Clause 4 of the above Government Resolution which specifically provided that the member of the staff recruited on or after 1982 shall automatically be governed by this scheme. Such staff will not be allowed to opt for Contributory Provident Fund Scheme. As per Clause 6 of the above Government SCA/29641/2007 6/39 JUDGMENT Resolution, all previous services rendered by a person was to be considered as qualifying service for pension and, therefore, the objection of respondent NO.1, according to the petitioner was not just and proper. Even respondent No.5-University also made it clear from time to time that the petitioner was permitted to retire voluntarily on the basis of completion of 25 years of qualifying service of pension, by letters dated 22.10.2001, 18.3.2005, 22.3.2007, that the petitioner is eligible for pension, gratuity and other retiral dues but no heed was paid and ultimately the petitioner is constrained to file this petition under Article 226 of the Constitution of India. 4. Shri Paresh Upadhyay, learned advocate appearing for the petitioner vehemently contended that the issue involved in this petition with regard to interpretation of Government Resolution dated 15.10.1984 issued by the Education Department of State of Gujarat pertaining to pension scheme for the teaching staff in the Non-Government Affiliated Colleges and the Universities is no more res integra in view of the decision of this Court in case of Dr. Nalini V. Dave vs. Government of Gujarat & Ors. reported in 2005(3) GLR 1844 and another decision of learned Single Judge dated 17.3.2006 in Special Civil Application NO.12620/2003, SCA/29641/2007 7/39 JUDGMENT where similarly situated employees of the College/University were directed to be paid pension and other retiral dues by issuing appropriate writ, order or direction and, therefore, petitioner also deserves equal treatment by this Court in exercise of equitable jurisdiction under Article 226 of the Constitution of India. 4.1. Learned advocate next contended that, it is clear from bare reading of Government Resolution dated 15.10.1984 that pension scheme for the full time teaching staff of the Universities under the Education Department of the State of Gujarat came to be framed after careful consideration by the authority that pension, gratuity and other retiral benefits admissible to the Gujarat State Government Servants under the Revised Pension Rules, 1950 as amended from time to time including the family pension etc. be made applicable as per clauses contained in this Government Resolution. According to learned advocate for the petitioner as per Clause 3 of the above Government Resolution, option was to be exercised only by the members of the existing staff recruited before 1.4.1982 and those staff who have retired on or after 1.4.1982 and prior to the date of issue of this resolution namely 15.10.1984 within period of one year from the date of the issue of the SCA/29641/2007 8/39 JUDGMENT Government resolution either to continue in C.P.F. Scheme or to opt for this pension scheme and such option for the above class of people once exercised shall remain final and in case if option is not exercised within stipulated period, it was considered that employee wanted to retain the C.P.F. scheme or the benefit admissible to him prior to 1.4.1982. 4.2. According to learned advocate for the petitioner, it is more clear from reading of clause 4 of the above Government resolution which clearly provides that a member of the staff recruited on or after 1st April, 1982 shall automatically be governed by the scheme under Government Resolution and such member will not be allowed to opt for C.P.F. Scheme. Even as per Clause 6 qualifying service for pension under this scheme of Government Resolution, all previous service whether temporary or officiating or permanent in one or more than Non-Government Aided Colleges, University, Department, Higher Secondary School receiving grant-in-aid shall be taken into account and, therefore, all previous service of the petitioner, prior to joining with respondent NO.5-University i.e. 6.10.1988 irrespective of nature of such educational establishment whether it was pensionable or not, such services will have to be counted and considered for pension purposes. SCA/29641/2007 9/39 JUDGMENT It is further submitted that the provisions of Chapter XI of B.C.S.R. Rules, Volume I will be applicable in the matter of grant of retiral benefits except where otherwise provided and, therefore, according to Shri Upadhyay, learned advocate for the petitioner when there is a specific provision as specified in the clauses of Government Resolution of 15.10.1984 and subject to such provisions Chapter XI of B.C.S.R. will be applicable. 4.3. In view of the above, any objection by any respondent authority, according to learned advocate for the petitioner is unjust, arbitrary, unreasonable, discriminatory, colorable exercise of power and violative of Articles 14 and 16 of the Constitution of India and deserves to be set right by this Court particularly, when the pension is held akin to right of property and not bounty as per various decisions of the Apex Court reported in 1971(2) SCC 330, AIR 1992 SC 767 and 2008(3) SCC 44, for delay in making payment of retiral dues, the respondent Nos. 1 and 4 may be saddled with heavy cost as laid down by the Apex Court in 2005(6) SCC 344 and reasonable rate of interest be awarded to the petitioner by allowing the petition. SCA/29641/2007 10/39 JUDGMENT 5. Shri S.P.Hasurkar, learned AGP for respondents vehemently contended that service of the petitioner prior to 1.4.1986 was not a pensionable service rendered in a pensionable establishment as per Rule 41(1) (a) of B.C.S.R., and, therefore, the petitioner is not eligible for pension, gratuity and other retiral dues as claimed. 6. According to learned AGP, before joining as a Reader with respondent No.5-University on 6.10.1988, the petitioner was serving as a Reader with Vir Narmad University for the period from 1.4.1986 to 5.10.1988 and contribution was only towards General Provident Fund as deducted by the employer. Therefore, at the most the petitioner may get retiral dues from the above date and the total period from 31.3.1986 to 30.11.2000 i.e. 14 years and 7 months is qualifying pensionable service and service prior to 31.3.1986 i.e. from initial date of joining the service on 22.7.1968 till 31.3.1986 i.e. for about 17 years and 7 months, no benefits can be given for the above service to the petitioner, since it was rendered in non-pensionable establishment. Learned AGP has gone to the extent of making submissions that earlier orders passed by the officer of respondent Nos. 1 and 4 of issuance of certificate of completion of 25 years of pensionable service by the petitioner SCA/29641/2007 11/39 JUDGMENT and permission to retire voluntarily were wrong and the petitioner ought not to have been permitted to retire voluntarily. 7. Learned AGP has heavily relied on various affidavits filed by respondent Nos. 1 and 4 and submitted that considering the service history of the petitioner, the service rendered by the petitioner from 4.12.1975 to 31.3.1986 as a lecturer with S.V.R.College of Engineering and Technology, Surat, the above period of service is not rendered in pensionable establishment inasmuch as the petitioner had opted for C.P.F. and collected the amount, so is the case with earlier establishment of B.V.M. Engineering College for a period from 22.7.1968 to 3.12.75 is also not to be considered for pension since no option was exercised by the petitioner. When the petitioner joined the South Gujarat University on 31.3.1986, Government Resolution dated 15.10.1984 was already issued for pension scheme and, again no option was exercised, therefore, the case of the petitioner cannot be considered. It is further contended by learned AGP that benefits of Clause 6 of G.R. dated 15.10.1984 is available only in case if option is exercised as per Clause 3. 8. In the light of the above, learned AGP contends that it SCA/29641/2007 12/39 JUDGMENT was mandatory on the part of the petitioner to exercise option as provided in Government Resolution dated 15.10.1984 and by not exercising such an option and even by a later stage when further opportunities were given to the petitioner in the year 1987 and 1991 on the basis of relevant resolutions, no such option was exercised and, therefore, the petitioner cannot be given any benefits of retiral dues. 8.1. With regard to grant of pension and other retiral dues to similarly situated persons, it is submitted by learned AGP that the petitioner is not discriminated and other two employees i.e. Shri Tandel and Shri Oza , who opted for C.P.F. were not granted retiral dues, while Shri Mehta who opted for pension at the relevant point of time was given retiral dues. Therefore in overall submissions of learned AGP no case is made out by the petitioner for claim put forth by him. 8.2. Learned AGP further submits that the ratio laid down by the decision in the case of Dr. Nalini Dave (Supra) and Dr. S.G. Trivedi (supra) is not applicable in the facts of the present case and alternatively Rule 41 (1) (a) of B.C.S.R. was not considered by the learned Single Judges of this Court in the above two decisions and, therefore, the facts of the present case can be SCA/29641/2007 13/39 JUDGMENT distinguished. 8.3. That learned AGP has relied on the decision in the case of Visitor, Amu & Ors. vs. K.S.Misra reported in 2007(8) SCC 593 in support of his submissions that benefits of pension cannot be given unless an option is exercised by the employee. 9. In rejoinder Shri Upadhyay, learned advocate for the petitioner submitted that the amount of contribution with regard to service in B.V.M. Engineering College of Rs.58,304/- was deposited on 27.3.2000 and other amount of Rs.95,440/- of C.P.F. and Rs.15,000/- of gratuity for the service period with S.V.R. College of Engineering and Technology was deposited on 18.4.2000 and reiterated that there is no justification for denial of retiral dues in view of no mandatory provisions which necessitated exercising option by the petitioner for pension scheme in view of direct recruitment on the post of Reader with respondent No.5-University after undergoing valid selection procedure on 6.10.1988 is admittedly after 1.4.1982 and, therefore, denial by the respondents of retiral dues is illegal. 10. Learned advocate for the petitioner submitted that Clause SCA/29641/2007 14/39 JUDGMENT 4 and 6 of Government Resolution dated 15.10.1984 are amply clear and pension scheme made applicable by this Government Resolution is a specific provision made for the full time teaching staff of the College/Universities and all previous services prior to 1.4.1982 rendered by member of the staff is to be considered and counted for pension purpose and particularly a certificate dated 8.11.2000 issued by respondent No.1 and order dated 4.12.2000 passed by respondent NO.4 with regard to qualifying pensionable service of 25 years, stand as legal and valid as on date, submissions of learned AGP with regard to illegal exercise of power by the above two authorities on earlier occasion cannot be accepted simply for the reason that on the basis of the above orders, the petitioner was permitted to retire voluntarily and acted as per the just, legal and valid decisions of the authorities and after 8 years the authorities i.e. respondent Nos. 1 and 4 cannot be permitted to back track solely with a view to deny retirement benefits to the petitioner. 10.1. Learned advocate for the petitioner further submitted that as per the record produced by the petitioner along with affidavit-in-rejoinder filed by him on 21.1.2008 pertaining to the information received by the petitioner under the SCA/29641/2007 15/39 JUDGMENT Information Act, after decision of 2000 of sanctioning voluntary retirement of the petitioner, on 2.6.2001, 12.11.2001, 3.7.2002 and 10.1.2003 office of the respondent NO.4 namely Commissioner of Higher Education had forwarded necessary documents and informations in support of claim of the petitioner to respondent NO.1 Therefore, according to learned advocate for the petitioner, the respondents are now estopped from raising any objection for prayer / relief claimed in this petition on the ground of final decision being not in accordance with the record of the service rendered by the petitioner. 11. Having heard the learned advocates appearing for the parties, on perusal of the record including various affidavits and rejoinders filed by the parties, relevant Rules and Government Resolutions, I am of the opinion that contentions raised by learned advocate for the petitioners deserve acceptance by this Court. 12. At the same time, what transpires from the submissions of the advocates appearing for the respective parties, is the interpretation of Government Resolution dated 15th October, 1984 and to appreciate the said contentions, it is necessary to reproduce relevant clauses of the G.R. dated 15.10.1984 which reads as under: SCA/29641/2007 16/39 JUDGMENT “ The question of application of pension, gratuity and other retirement benefits to the members of teaching staff of the University under Education Department and in affiliated and aided non-Government colleges in Gujarat was under consideration of the Government for some time past. After careful consideration, Government is now pleased to direct that the pension, gratuity and other retirement benefits admissible to the Gujarat State Govt. Servants under the Revised Pension Rules, 1950 contained in the Appendix XIV-C to BCSR Rules, Volumes II, as amended from time to time, the family pensions scheme sanctioned in Government Resolution, Finance Department No.FPS-1071-J dated 1.1.72 as amended from time to time should be made applicable to the full time teaching staff of the universities under the Education Department and in affiliated and aided non-Government Arts, Science, Commerce and Education Colleges in this State with effect from 1.4.1982. 1. a) for the purpose of this scheme. (1)University means universities under Education Department established by the Acts. (2)A non-Government College includes non- Government affiliated Arts, Science, Commerce and B.Ed. Colleges receiving grant-in-aid and managed by the private body and affiliated with the universities by the competent authority. b) for the purpose of pensionable pay, pay means and includes: (1)pay in the approved prescribed scale of pay, (2)additional pay for additional academic and professional qualification admissible under the orders issued by Government from time to time, (3)personal pay granted to save from less to pay due to revision of pay scale or due to pay fixation. SCA/29641/2007 17/39 JUDGMENT Note:-If a member of staff during the last three years of his service has been absent from duty on leave with allowances, his pay for that period should be taken what it would have been, had he been on duty at any time during the first six months of period of leave. Provided that the benefits of higher officiating or temporary pay should be given only if it is certified that member of the staff concerned would have continued to hold the higher officiating or temporary appointment but for his proceeding on leave. c) Teaching staff means a full time professor, Asstt. Professor, reader, lecturers in universities and Principal, Lecturer, Tutor, demonstrator and also physical training instructors, Librarians etc. working in non-Government aided colleges who are receiving university Grants Commission scales. 2. The Director of Higher Education or the officer authorised by him shall be competent authority to sanction pension, gratuity, family pension and other retirement benefits admissible under the scheme. 3. i) Members of the existing staff recruited before 1.4.1982 and those staff who have retired on or after 1.4.1982 and prior to the date of issue of this resolution should exercise their option within the period of one year from the date of issue of this resolution either to continue in contributory provident Fund scheme or to come under this scheme. The option once exercised shall be final. The option should be exercised in writing in the form prescribed (appendix-A) and communicated to the Director of Higher Education. The members of the staff who do not exercise the option within stipulated period shall be deemed to have opted for the SCA/29641/2007 18/39 JUDGMENT retention of the benefit admissible to them before 1.4.1982. Where a member of the staff who was entitled to exercise an option in accordance with this Resolution died on any date on or from 1.4.1982 and on or before expiry of the date before which he had to exercise option without exercising it, his family may be given the benefit of these rules or may be allowed the benefit or CPF scheme, whichever is more favourable to them. The pension sanctioning authority should work out the benefits admissible under both alternatives (i.e. the CPF and the Revised Pension Rules, 1950 as admissible under this government resolution) after taking into account the quantum of CPF as well as family pension and prepare pension paper accordingly with necessary sanctions. ii) The member of the staff who have opted for the pension scheme shall join GPF scheme concurrently as in the case of Government employees and their share in the GPF together with interest thereon shall be credited to their GPF account. The general provident fund shall be kept with Government and on retirement, the amount shall be paid to them in accordance with the rules. iii) The amount of contribution paid by the University or management of Non- Government aided colleges and institutions mentioned in para 6 of this resolution together with interest thereon standing at the credit of the member of teaching staff opting for pension scheme, after they exercise their option for pension scheme should be credited to the State Government within a period of two months under the head of account “XLVIII contribution and Recoveries towards pension and other retirement benefit” after the correctness of amount is verified and certified by the Director of Higher Education. SCA/29641/2007 19/39 JUDGMENT iv)Where the members of staff eligible for the scheme have retired/resigned after 1.4.1982 to the date of issue of this Government Resolution and who have received their CPF amount including the management or University contribution and Government's share together with the interest thereon desires to opt pension scheme as admissible under this Government Resolution should execute undertaking as in Appendix 'B' alongwith an option as provided under this scheme. In such cases the amount received on account of Universities Managements contribution, Government's share and interest earned thereon by the member shall be adjusted against the arrears of pension and amount of D.C.R.G. Admissible under this scheme . If the amount so received exceeds the amount of arrears pension/DCRG payable to him, the balance amount shall be paid by him immediately in the Government Treasury. 4. The member of the staff recruited on or after 1st April, 1982 shall automatically be governed by this scheme. Such staff will not be allowed to opt for contributory provident fund scheme. 5. The members of teaching staff who have completed five years of continuous service will be treated as holding permanent post substantively for the purpose of this scheme. 6. In computing the length of qualifying service for pension under this scheme,