IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 18177 of 2003 For Approval and Signature: HON'BLE MR.JUSTICE M.S.SHAH ============================================================ 1. Whether Reporters of Local Papers may be allowed : NO to see the judgements? 2. To be referred to the Reporter or not? : NO 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- AHMEDABAD MUNICIPAL CORPN. Versus PRAVINKANT BALKRISHNA THAKER -------------------------------------------------------------- Appearance: 1. Special Civil Application No. 18177 of 2003 MR HS MUNSHAW for Petitioner No. 1-2 MR BHARAT R PANDYA for Respondent No. 1 MRS VD NANAVATI for Respondent No. 2 NOTICE SERVED for Respondent No. 2 MS MITA PANCHAL AGP for Respondent No. 3 -------------------------------------------------------------- CORAM : HON'BLE MR.JUSTICE M.S.SHAH Date of decision: 29/09/2004 ORAL JUDGEMENT Rule. In the facts and circumstances of the case, the petition is taken up for final disposal today. 2. What is challenged in this petition purporting to be one under Articles 226 and 227 of the Constitution is the order dated 27.6.2003 of the Gujarat Affiliated Colleges Services Tribunal disposing of Application No.17 of 1997 on the ground that the application has become infructuous. 3. Respondent No.1 herein - Pravinkant Balkrishna Thaker filed the above-numbered application before the Tribunal for a declaration that the applicant is entitled to continue in service of Smt. NHL Municipal Medical College, Ahmedabad till completion of 60 years of age and for giving the benefits on that basis as per Ordinance 172 of the Gujarat University. The applicant had moved the Tribunal just before completion of 58 years of age and had, therefore, prayed for interim protection during pendency of the application. Since the applicant was to complete 58 years of age and on that basis was to retire on superannuation w.e.f. 30.4.1997 the Tribunal had passed interim order dated 4.4.1997 directing the respondents in the application to continue the applicant till completion of 60 years of age or till further orders, whichever was earlier. When the main application reached hearing on 27.6.2003, it appears that it was contended that since the applicant had already completed 60 years of age and also accordingly retired on that basis after having been continued in service till completion of 60 years of age, the application had become infructuous. The Tribunal accepted the contention and disposed of the application as infructuous. 4. Mr Barot for Mr Munshaw for Ahmedabad Municipal Corporation submits that since the retired employees of the Corporation are entitled to retiral benefits such as pension and gratuity, computation of such benefits would depend on the length of service put in by the concerned employee and that merely because the applicant before the Tribunal (respondent No.1 herein) had continued in service for two more years on the strength of an interim order of the Tribunal, such retired employee cannot be permitted to get the retiral benefits on the basis that the age of retirement is 60 years, without any finding of the Tribunal on merits of the controversy. 5. Mr Pandya for respondent No.1 herein (original applicant before the Tribunal) is not present before the Court, but it appears to the Court that since the Court does not propose to decide the controversy on merits and proposes to remand the matter to the Tribunal for deciding the controversy on merits, no prejudice is being caused to respondent No.1 and, therefore, the Court need not adjourn the hearing. 6. The Court does finds substance in the submission made on behalf of the Ahmedabad Municipal Corporation that since computation of retiral benefits would depend on the length of service put in by the concerned employee, the controversy whether the petitioner was entitled to continue in service till the age of 60 years or whether the Corporation was justified in superannuating the petitioner at the age of 58 years would still survive. Of course, even if the Tribunal holds that the age of superannuation is 58 years, the salary paid to the respondent for the services rendered by the respondent for the two years beyond 58 years of age is not to be recovered by the Corporation. 7. Accordingly, this petition is partly allowed. The impugned order dated 27.6.2003 of the Tribunal is set aside and the Gujarat Affiliated Colleges Services Tribunal shall hear and decide Application No.17 of 1997 on merits and in accordance with law as expeditiously as possible and preferably within four months from the date of receipt of the writ of this Court. Rule is made absolute to the aforesaid extent only. Direct service is permitted. (M.S. SHAH, J.) zgs/-