SCA/20590/2006 1/14 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 20590 of 2006 with SPECIAL CIVIL APPLICATION No. 20591 of 2006 with SPECIAL CIVIL APPLICATION No. 20593 of 2006 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 ? ====================================== SHRI V.M. PANCHOLI, KUMARI S N SHAH AND SMT. N.H. SHAH Versus STATE OF GUJARAT & another ====================================== Appearance : Mr. S.N. Shelat, Senior Advocate, with Mr. S.J. Gaekwad for the petitioners Ms. Sangita Vishen, Assistant Government Pleader for the respondents ====================================== SCA/20590/2006 2/14 JUDGMENT CORAM : HONOURABLE MR.JUSTICE ANANT S. DAVE Date : 16/06/2008 COMMON CAV JUDGMENT 1 The genesis of the writ petitions is in the order dated 3rd May 2005 passed by the Division Bench of this Court {Coram: G.S. Singhvi [as His Lordship then was} & A.S. Dave, JJ.] in Letters Patent Appeal No.1042 of 1994 in Special Civil Application No.4554 of 1983, by which, the appeal preferred by the appellants and the petitioners herein came to be dismissed and other Special Civil Application Nos. 8058 of 1998 and 8059 of 1998 came to be allowed by quashing and setting aside the order dated 31st August 1998 passed by the concerned Authority of the State of Gujarat terminating the service of the appellants. Letters Patent Appeal No.1042 of 1994 and Special Civil Application Nos. 8058 of 1998 and 8059 of 1998 came to be clubbed together in view of the cause of action which had arisen being common in as much as Letters Patent Appeal No.1042 of 1994, which was preferred against Special Civil Application No.4554 of 1983 by the aggrieved Assistants of the Legal Department of the State of Gujarat against the grant of promotions to the present petitioners [private respondents in the writ petition], came to be allowed by the learned Single Judge of this Court [Coram: S.K. Keshote, J.] by judgment and order dated 27th July 1998 and in the operative portion, paragraphs 64, 65 and 66, the learned Single Judge has observed as under: “64. Looking to the facts which have come on record of the Special Civil Application on which the parties are not at variance, it cannot be said to be a case where the services of SCA/20590/2006 3/14 JUDGMENT respondents No.3 to 6 have been regularized in the interest of public service, and on the contrary, it is a clear case where their services have been regularized in the interest of individuals. Equities no doubt, sometimes play an important role and in many of the cases, despite the Courts have found some illegality here and there in appointments or regularization etc. still the Courts have declined to interfere, but the present one is a case where if such a view is taken and equity is allowed to prevail over all these illegalities committed by none other than the Legal Department of the Secretariat of the State, then certainly, as rightly prayed by the learned counsel for the petitioners, there will be no end to all these illegal appointments and it will open the floodgates for favouritism and nepotism. 65. If we go by the facts of the present case, then certainly it cannot be said to be a case where this Court should give consideration to equity and show any sympathy to respondents No.3 to 6. This contention made by the learned Additional Advocate General cannot be accepted. 66. In the result, this Special Civil Application succeeds and the same is allowed. The orders annexures `C' and `D' dated 19th February 1976 and 25th April 1978 respectively are quashed and set aside. Consequent upon the quashing of those orders, the orders annexures `G' and `G-1' dated 8th August 1983 and 20th August 1983 also are quashed and set aside. The respondents are directed to prepare the fresh seniority list of the Assistants by placing the petitioners at appropriate place and to consider their cases for promotion to the next higher posts as per their seniority with reference to the date from which the private respondents were given promotions from time to time on the higher posts. Further, if the petitioner or any of the petitioners is/are found suitable for promotion for the higher post, they or he/she shall be entitled only for notional benefits for the interregnum. The parties are directed to bear their own costs of this litigation. Rule is made absolute.” 2. Pursuant to the above order of the learned Single Judge of this Court, the Secretary, Legal Department of the State of Gujarat passed order dated 31st August 1998 to comply with the afore-mentioned directions of the learned Single Judge and, ultimately, terminated their SCA/20590/2006 4/14 JUDGMENT services after adjusting seniority inter-se on respective posts. The above order was the subject matter of challenge in Special Civil Application Nos. 8058 and 8059 of 1998 and allied matters along with Letters Patent Appeal No.1042 of 1994 wherein the petitioners challenged the direction of the learned Single Judge in Special Civil Application No.4554 of 1993 by judgment and order dated 27th July 1998. 3 When the appeal came up for final hearing, the Division Bench of this Court, while dismissing Letters Patent Appeal No.1042 of 1998, against the judgment and order dated 27th July 1998 in Special Civil Application No.4554 of 1983, allowed the Special Civil Applications filed by the petitioners against the order dated 31st August 1998 of terminating their services under the guise of compliance of directions contained in the above order of the learned Single Judge, and observed as under: “However, we find substance in the grievance made by the appellants qua order dated 31.08.1998 vide which the State Government terminated their services. Although the official respondents have tried to defend this action by contending that as a result of quashing of the order of regularisation of their services, the appellants had lost the right to continue in service, but we have not felt impressed. Undisputedly, as on 31.08.1998 the appellants had rendered 30-32 years service. During this long interregnum their services were regularised on the post of Assistant and they were promoted to the Section Officer. Some of them were promoted to next higher post of Under Secretary. In our opinion, the Government could not have terminated the services of the appellants ignoring the fact that they had been in service for more than three decades and in any case, such an action could not have been taken on the pretext of implementation of order dated 27.08.1998 passed by the learned Single Judge and that too without giving them action oriented notice and opportunity of hearing. As a matter of fact, Shri K.B.Trivedi fairly conceded that the termination of the appellants' services could not have been brought about without hearing them. SCA/20590/2006 5/14 JUDGMENT As a sequel to the above discussion, we hold that even though order dated 27.7.1998 passed by the learned Single Judge in Special Civil Application No.4554 of 1983 does not call for interference, the action taken by the State Government to terminate the services of the appellants is liable to be nullified on the ground of violation of the rules of natural justice. In the result, Letters Patent Appeal No.1042 of 1998 is dismissed and Special Civil Applications Nos.8058 of 1998 and 8059 of 1998 are allowed. Order dated 31.8.1998 passed by the Government terminating the appellants' services is declared as illegal and quashed. Ordinarily, we would have given liberty to the competent authority to pass fresh order after hearing the appellants, but keeping in view the fact that all of them have retired from service, we do not deem it proper to give this liberty to the concerned authority. The parties are left to bear their own costs.” 3.1. Thus, all the petitioners are now denied retiral benefits including pension and gratuity by the respondents on the ground that the service rendered by the petitioners is not pensionable in view of quashment of the orders of regularization of their services and fixation of seniority and subsequent promotion by the learned Single Judge of this Court as confirmed in Letters Patent Appeal No.1042 of 1998 by the Division Bench of this Court and the petitioners are treated as ad-hoc and temporary employees by order dated 31.8.1998. According to the petitioners, the above denial of release of retiral dues including pension and gratuity by the respondents is contrary to the judgment and order dated 3rd May 2005 in the very Letters Patent Appeal No.1042 of 1998 in as much as the order dated 31st August 1998 passed by the Legal Department of the State of Gujarat terminating the services of the appellants was declared as illegal and quashed and set aside and no liberty was granted to the Competent Authority to pass fresh order after hearing the appellants and, considering the fact of rendering service by the petitioners of 30 to 33 years, denial to fix pension and other retiral SCA/20590/2006 6/14 JUDGMENT dues on the basis of last pay drawn on the respective posts by the respondents is unjust, unreasonable, arbitrary, discriminatory and contrary to law laid down by the Division Bench of this Court and, therefore, all the petitioners be granted the relief claimed in the prayer clauses of the petitions by directing the respondents to finalize pension and gratuity of the petitioners at the earliest on the basis of last pay drawn in their respective cadres by issuing a writ of mandamus or any other appropriate writ, order or direction to the respondents. 4 Shri S.N. Shelat, learned Senior Advocate, with Shri S.J. Gaekwad, for the petitioners has submitted that, by virtue of quashing of the order dated 31st August 1998 passed by the respondents and declaration by the Division Bench holding that the above order is illegal and no liberty was granted to the respondents to pass fresh order after hearing the appellants and rendering of clean service of 30 to 33 years in the Legal Department of the State of Gujarat, by virtue of Rule 248 of the Bombay Civil Service Rules, 1959, the petitioners have rendered pensionable service in the pensionable department of the State of Gujarat and, therefore, a mandamus emanates from the judgment and order of the Division Bench dated 3rd May 2005 in Letters Patent Appeal No.1042 of 1998 and the right accrues to all the petitioners out of the above judgment and, if denied by the respondents-authorities by taking recourse to the very order which was quashed and set aside, the writ of mandamus will certainly lie and the relief claimed in the writ petitions be granted accordingly. 4.1 Shri S.N. Shelat, learned Senior Advocate, for the petitioners has next contended that, if the judgment and order dated 3rd May 2005 of the Division Bench in Letters Patent Appeal No.1042 of 1998 is perused as a whole, it precedes on the basis of a statement made by the learned SCA/20590/2006 7/14 JUDGMENT Senior Counsel on 27th April 2005 before the Division Bench that the challenge qua the directions given by the learned Single Judge for fixing seniority of the private respondents as Assistants/Section Officer in the Legal Department and considering their cases for further promotion was not pressed for. Not only that, the submissions were made specifically with regard to consequential action of the State Government to terminate the services of the appellants on the basis of the order of the learned Single Judge to be quashed and set aside so that the appellants [the petitioners herein] can avail and receive retiral benefits in accordance with law and, thereafter, the matter was adjourned at the request of the learned Assistant Government Pleader to obtain appropriate instructions. Therefore, according to the learned counsel for the petitioners, the whole subject matter of terminating services of the petitioners by order dated 31st August 1998 in illegal and arbitrary manner, was scrutinized by the Division Bench and even certain concession given by Shri Kamal B Trivedi, learned Additional Advocate General at that point of time, was also highlighted and, therefore, according to the learned counsel for the petitioners, there is no room left for the respondents to argue contrary to the law laid down by the Division Bench in Letters Patent Appeal No.1042 of 1998 and the pension and retiral dues are to be released. 4.2 Learned counsel for the petitioners further submits that Smt. B.D. Trivedi, who retired before the order dated 31.8.1998 came to be passed, is being paid pension in spite of the fact that she was also one of the private respondents in Special Civil Application No.4554 of 1983, where, by order dated 27.7.1998, similar directions were issued by the learned Single Judge. That, the case of all the petitioners is on par with Smt. B.D. Trivedi and non-release of retiral dues in favour of the petitioners amounts to discrimination, arbitrary in nature, violative of Article 14 of SCA/20590/2006 8/14 JUDGMENT the Constitution of India and, therefore also, this Court can exercise power under Article 226 of the Constitution of India to remove the inequality and discrimination meted out to the petitioners by directing the respondents to release the retiral dues. 5 Ms. Sangeeta Vishen, learned Assistant Government Pleader for the respondents, has submitted, at the threshold, that no mandamus lies in view of the order dated 31st August 1998 passed by the Legal Department of the State of Gujarat in compliance with the directions issued by the learned Single Judge in the judgment and order dated 27th July 1998 in Special Civil Application No.4554 of 1983, which came to be confirmed in the very order dated 3rd May 2004 of the Division Bench in Letters Patent Appeal No.1042 of 1998. According to learned Assistant Government Pleader, when the orders of regularizing the service of the petitioners on 19th February 1976 and the order dated 25th April 1978 of fixation of seniority after regularization of service and subsequent orders of promotions in the year 1983 came to be quashed and set aside, the petitioners cannot claim benefits of retiral dues available to regular employees since their service in the Legal Department was treated as temporary and ad-hoc by order dated 31st August 1998 and it cannot be said to be pensionable service and, therefore, in all, the petitioners are not entitled for any retiral benefits. 5.1 The learned Assistant Government Pleader has relied upon the decisions of the Apex Court in [2002] 4 SCC 638 [Director of Settlements, A.P. And others vs. M.R. Apparao and antoher], [2008] 1 SCC 456 [State of M.P. And others vs. Sanjay Kumar Pathank and others] and [2008] 2 SCC 310 [Uttar Haryana Bijli Vitran Nagam Limited and others vs. Surji Devi] in support of her submission that the condition precedent for issuance of writ of mandamus in the back-drop SCA/20590/2006 9/14 JUDGMENT of non-existence of any legal right of the petitioners does not exist at all and, therefore, no mandamus can be issued and, on the basis of sympathy alone, no writ can be issued. There must be a legal right in favour of a person seeking such mandamus and particularly when service rendered by the petitioners is not pensionable, the relief claimed by the petitioners cannot be granted. 6 Having heard learned advocates for the parties and considering the facts and circumstances of the case and perusal of the record and particularly the judgment and order dated 27th July 1998 passed by the learned Single Judge in Special Civil Application No. 4554 of 1983 and the order dated 3rd May 2005 passed by the Division Bench of this Court in Letters Patent Appeal No.1042 of 1994, I am inclined to accept the submission of Shri S.N. Shelat, learned Senior Advocate appearing for the petitioners, that the petitioners are entitled to receive retiral dues including pension and gratuity on the basis of last pay drawn by them on the posts lastly held by them when they came to be either terminated or their service came to be put an end by order dated 31st August 1998 by the Legal Department of State of Gujarat, which was, no doubt, ultimately quashed and set aside and the action of the State of Gujarat in terminating the service of the petitioners was declared as illegal and no liberty was granted to the respondents to pass fresh order after hearing the appellants in view of 30 to 33 years of length of service rendered by the petitioners. 7 The following is the brief service record of the petitioners: SCA/20590/2006 10/14 JUDGMENT Name Date of appoin tment Date of Regula rizatio n Date of Seniori ty Length of service disrega rded by Govt for seniorit y Date of passin g Depart mental Exami nation Date of notific ation of first promo tion to the post of Sectio n Officer Date of notificat ion of second promoti on to the post of Under Secretar y Date of supera nnuati on Date of Notifica tion termina ting the service V.M. Pancholi SCA 20590 of 2006 11.3.66 19.2.76 25.4.78 12 years 6.10.82 8.8.83 11.12.95 31.8.98 31.8.98 Kum S.N. Shah SCA 20591 of 2006 15.5.67 19.2.76 25.4.78 11 years 6.11.81 8.8.83 27.3.96 31.8.01 31.8.98 Smt. N.H. Shah SCA 20593 of 2006 14.8.67 19.2.76 25.4.78 11 years 6.10.82 20.8.83 20.1.97 30.9.01 31.8.98 7.1 If the above table is perused, all the petitioners rendered about 30 to 33 years of service. The impugned order dated 31.8.1998 of termination of the petitioner was set aside by the Division Bench in Letters Patent Appeal No.1042 of 1998. Since the issue before the Division Bench was restricted qua illegal order of termination of service of the petitioner dated 31.8.1998, as submitted by the learned counsel appearing for the petitioners at that point of time, by giving up the challenge qua direction given by the learned Single Judge for fixation of seniority qua the petitioner, denial of retiral dues by the respondents to the petitioners is illegal, unlawful, unjust and improper particularly when the order of termination dated 31.8.1990 was quashed and set aside and declared as illegal and the petitioners have undoubtedly rendered service in pensionable establishment, namely, Legal SCA/20590/2006 11/14 JUDGMENT Department of the State of Gujarat and such service continuous of about 30 to 33 years is pensionable. 8 Rule 248 of the Bombay Civil Service Rules, 1959, reads as under: “248. Government may by general or special order permit service other than pensionable service, for performing which a Government is paid from State revenues or from a local fund, to be treated as duty counting for pension. In issuing such an order Government shall specify the method by which the amount of duty shall be calculated and may impose any condition which it thinks fit.” If the above Rule is perused, undoubtedly, the salary of the petitioners was paid from the consolidation fund of the State and the service was pensionable. What is treated to be illegal is the order of regularization and fixation of seniority by the learned Single Judge which came to be confirmed by the Division Bench. At the same time, it remains undisputed that the petitioners have rendered service to the respondent- authority on the post of Assistant, Section Officer and Under Secretary at respective point of time and none of the petitioners has ever misconducted while in service. Not only that, but the stand of the State Government before the learned Single Judge in Special Civil Application No.4554 of 1983 was all supportive, however, did not find favour with the learned Single Judge and the decision of the Authority to regularize the service of the petitioner and subsequent fixation of seniority and promotion on the post of Section Officer, etc. was held illegal, which remained confirmed by the Division Bench, barring quashment of termination order dated 31.8.1998 of all the petitioners, which was declared illegal and void. Therefore, the fact remains that all the petitioners were treated in service when they served last with the Legal Department which is pensionable department. SCA/20590/2006 12/14 JUDGMENT 9. Thus, from the directions contained in the penultimate and the last paragraphs of the order of the Division Bench, it is clear that the order dated 31.8.1999 was quashed and set aside as being illegal and no liberty was granted to the respondents-authorities to pass fresh order and, therefore, since all the petitioners were in the employment of the Legal Department and the similarly situated Officers of the Legal Department like the petitioners are being paid pension and other retiral dues, there is no justification for the respondents to take a shelter under the directions contained in the order dated 27.7.1998 in Special Civil Application No.4554 of 1983, which was not disturbed by the Division Bench. 10 Even if the directions of the learned Single Judge in the above order are perused, it was to the extent of preparing fresh seniority list of the Assistants by placing the petitioners of that petition at the appropriate place and to consider their cases for promotion to the next higher posts as per their seniority vis-a-vis promotion to the private respondents, the petitioners herein, from time to time. No mandate was issued to terminate the service of the petitioners herein. However, under the guise of compliance of the above order and consequence thereof, the respondents passed the order dated 31.8.1998 terminating the service of the petitioners, which was quashed and set aside in the back- drop of the submissions of the learned counsel appearing for the petitioners herein in two Special Civil Applications, where, the order dated 31.8.1999 was challenged, giving up the challenge qua the directions contained in the order of the learned Single Judge for fixation of seniority of the private respondents [petitioners herein] as Assistant in the Legal Department and consideration of their cases for promotion to the post of Section Officer and higher posts, and the prayer came to be restricted to quashment of the order of termination and claim with SCA/20590/2006 13/14 JUDGMENT regard to retiral dues. The resultant effect is that the petitioners herein were eligible to be treated in the employment of the Legal Department of the State of Gujarat and they are entitled to retiral dues including pension and gratuity, as permissible in accordance with law. 11 The submission with regard to fixation of pension on the basis of last-pay drawn by the petitioners, as vehemently canvassed by the learned counsel for the petitioners, cannot be accepted in view of challenge given up by the petitioners qua fixation of their seniority vis-a- vis the petitioners of Special Civil Application No.4554 of 1983 and restriction of prayer with regard to challenge to illegal order of termination dated 31.8.1998 and release of retiral dues. If the above submission of the learned counsel for the petitioners is accepted, the resultant effect would be reviving all the orders of regularization, fixation of seniority and grant of promotion to the petitioners on the posts of Section Officer and Under Secretary in the Legal Department from time to time, which came to be quashed and set aside by the learned Single Judge and not disturbed by the Division Bench, more particularly when, as observed in the foregoing paragraphs, the challenge to the above directions was given up by the petitioners themselves and the petitioners have acquiesced the decision of the learned Single Judge to the extent as stated above. 12 Therefore, it would be just and proper to direct the respondents to consider the case of the petitioners for release of retiral dues including pension and gratuity from the date of their superannuation on the post