SCA/1043/2008 1/9 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 1043 of 2008 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 ? ========================================================= PATEL MADHAVIBEN DILIPKUMAR - Petitioner(s) Versus STATE OF GUJARAT & 2 - Respondent(s) ========================================================= Appearance : MR ANAND L SHARMA for Petitioner(s) : 1, MS ASMITA PATEL ASST. GOVERNMENT PLEADER for Respondent(s) : 1, 3, NOTICE SERVED BY DS for Respondent(s) : 1 - 3. MR JB PARDIWALA for Respondent(s) : 2 - 3. ========================================================= CORAM : HONOURABLE MR.JUSTICE ANANT S. DAVE Date : 11/04/2008 ORAL JUDGMENT 1. This petition under Article 226 of the Constitution of India is filed by the petitioner to quash and set aside the letter dated 27.11.2007 directing the petitioner to fill up the form for securing GPF Account number under newly defined SCA/1043/2008 2/9 JUDGMENT Contribution Pension Scheme which is illegal, arbitrary and unconstitutional. 2. It is the case of the petitioner that the petitioner came to be appointed as early as on 8th September, 1989 as Water-servant and, therefore, continued to serve on the said post. The petitioner filed Special Civil Application No.8579/1998 seeking direction to regularise her services and to pay her regular pay scale treating as permanent employee came to be allowed by oral judgment dated 24.2.2004 with following direction: “4. the respondents are, therefore, now required to be directed that irrespective of the circular of 21st August, 1995, they shall consider the case of petitioner for appointment on permanent post in Class-IV and if the permanent post is found vacant, she shall be appointed on the same in accordance with her claim in the matter of seniority and the Regulations and if otherwise, she is not ineligible. Appointment should not be denied on the ground of overage or on the ground that it may amount to giving a back-door entry. This exercise to be carried out as early as possible, but in any case, not later than 30th May, 2004. If need be, the petitioner can make appropriate representation, which will be considered in light of this judgment and in particular the directions given therein. The result is that this petition is partly allowed. Rule is made absolute to the aforesaid extent with no order as to costs.” SCA/1043/2008 3/9 JUDGMENT 3. In appeal being Letters Patent Appeal No.2478/2004, the Division Bench of this Court by oral order dated 25.11.2004 refused to interfere with the order passed by the learned Single Judge and appeal came to be refused. 4. That State Government filed SLP before the Apex Court which was summarily dismissed by order dated 19.9.2005 and, therefore, the direction contained in paragraph 4 of the Special Civil Application No.8579/1998 remained undisturbed. 5. As usually happens with the officers of the State Government that either they ignore or do not comply the order passed by the Court, disregard to the directions of the learned Single Judge in the order dated 24.2.2004, the petitioner was appointed as a Peon by order dated 17.12.2005. After contempt petition was filed by the petitioner, later on, State Government passed another order on 21.8.2006 and appointment was given w.e.f. 30th May, 2004 and interregnum period was treated as notional and actual salary was not to be paid. Therefore, the petitioner for all purposes came to be appointed as a Peon on regular establishment w.e.f. 30.5.2004 as per the direction of para 4 of the order dated 24.2.2004 in Special Civil Application No.8579/1998. 6. When new number of Government Provident Fund which was forwarded for allotment, which came to be SCA/1043/2008 4/9 JUDGMENT returned by the office of the respondent No.3 with a note to comply with the objection raised in letter dated 6.12.2006 that in view of resolution dated 6.6.2005 of the Finance Department employee who have been appointed after 1.4.2005 are covered by New Pension Scheme and if the Account is to be opened in old Pension Scheme then the case be presented after taking due sanction from the Finance Department. 7. Once again, the authority was requested that by the order dated 21.8.2006, the petitioner was given appointment with retrospective effect i.e. 30.5.2004 and only the period between 30.5.2004 to 20.12.2005 was to be considered as notional, appointment of the petitioner cannot be considered to be an appointment after 1.4.2005 when the new pension scheme is made applicable. Since redressal of grievances were not made, the petitioner is constrained to approach this Court invoking under Article 226 of the Constitution of India. 8. Shri Anand Sharma, learned advocate, for the petitioner submits that appointment of the petitioner pursuant to the order passed by the learned Single Judge which came to be confirmed upto the Apex Court, initially by order dated 20.12.2005 came to be corrected by issuance of order dated 21.8.2006 and only interregnum period was treated as notional so as to bring the appointment of the petitioner with four corners of the orders passed by the learned Single Judge. Any other interpretation contrary to the SCA/1043/2008 5/9 JUDGMENT direction contained in paragraph 4 of the above order treating the appointment of the petitioner making it effective from 20.12.2005 will be contrary to the directions given by this Court. According to learned advocate for the petitioner if the resolution dated 18.3.2005 passed by the Department of Finance, State of Gujarat is perused, it is made effective from the date when it came to be issued and it is applicable to the employee of the State Government who is appointed after 1st April, 2005. 8.1. Therefore, according to learned advocate for the petitioner the impugned communication of treating the case of the petitioner under new pension scheme on the ground that the appointment of petitioner was after 1.4.2005 is unjust, unreasonable, arbitrary and violative in exercise of power under Article 14 of the Constitution of India and also in defiance of the order dated 24th February, 2004 passed in Special Civil Application No.8579/1998. 9. Ms. Asmita Patel, learned AGP submits that impugned order dated 3.4.2007 and subsequent communication dated 21.6.2007 treating the case of the petitioner under new pension scheme as per Government Resolution dated 18.3.2005 is covered by sub-clause 3 of clause 2 which provide the new scheme will be applicable to the employee appointed on fixed monthly salary and employee who are appointed after 1.4.2005 in a regular pay scale. The petitioner was given notional benefits of service from 30.5.2004 to 20.12.2005 and therefore cannot be said to have been SCA/1043/2008 6/9 JUDGMENT appointed in regular pay scale and, therefore, the decision of the authority is just and proper and deserves to be upheld. 10. The decision of the department accordingly to learned AGP is based on the clarification of Department of Finance, State of Gujarat that the case of the petitioner will be governed by the new Pension Scheme as per Government Resolution dated 18.3.2005. 11. Having heard learned advocates appearing for the parties, submissions made and perusal of the record including the decision of the learned Single Judge dated 24.12.2004 in Special Civil Application NO.8579/1998 in paragraph 4 of the above decision in no uncertain terms, the respondents were directed that irrespective of the circular on 21st August, 1995 they shall consider the case of the petitioner for appointment on permanent post in Class IV and if the permanent post is found vacant she shall be appointed on the same in accordance with her claim in the matter of seniority and the regularization. It was further directed that petitioner shall not be denied appointment on the ground of overage and the exercise was to be carried out, as early as, possible but not later than 30th May, 2004. The above decision came to be confirmed in Letters Patent Appeal and by the Apex Court. 12. The approach of the State authority in depriving a class IV employee is reflected from the correspondence undertaken by the two departments namely the Finance Department, as well as, the Sales SCA/1043/2008 7/9 JUDGMENT Tax Department of the State of Gujarat and for implementation of the direction of the learned Single Judge, though it was not stayed by the appellate forum ultimately after a period of 1 year and 7 months, the petitioner was appointed on 17.12.2005 and later on by another order dated 21.8.2006 by treating the period of 30.5.2004 to 20.12.2005 as notional. When the directions were clear and unambiguous there was no justification at all for respondent authority to treat the above period as notional. However, the petitioner has accepted the above position but at the same time the period of service treated as a notional cannot be said to be in any manner a period of irregular service or not in a regular pay scale. The above appointment was made pursuant to the order made by the learned Single Judge. Only difference between the regular pay scale and notional is absence of actual payment of the salary but the same shall be considered to be a regular service in regular pay scale for all purposes including continuous service and also for retiral dues. 12.1. Even otherwise also the petitioner was in service of the respondent authority and the case before this Court was for grant of permanent status and regular pay scale to the petitioner which came to be allowed as discussed earlier. 12.2. Therefore, the decision of the respondent authority dated 3.4.2007 and 21.6.2007 based on the clarification of the Finance Department of the State of Gujarat that case of the petitioner is governed by SCA/1043/2008 8/9 JUDGMENT the new Pension Scheme as per Government Resolution dated 18.3.2005 is absolutely arbitrary, unreasonable and utter disregard to the order dated 24.2.2004 passed in Special Civil Application No.8579/1998 as confirmed upto the Apex Court and violative of Article 14 of the Constitution of India deserves to be quashed and set aside and accordingly quashed and set aside. 13. In this case, even after succeeding in a case upto the Apex Court, the petitioner is made to suffer under one or other pretext initially for getting appointment as a permanent employee then order came to be passed for appointing the petitioner on 20th December, 2005, it was not in consonance with the directions contained in paragraph 4 of the order passed by the learned Single Judge which came to be corrected after a sizable period of passing an order on 21st August, 2006 treating the earlier period as a notional and now placing or treating the petitioner beneficial of new Pension Scheme on the ground that she is appointed after 1st April, 2005 in a regular pay scale which amounts willful and deliberate disobedience to the order passed on 24.2.2004 in Special Civil Application No.8579/1998. From time to time for redressal of the grievances, the petitioner had to incur cost in filing petition and defending the cases before the Appeal Court and later on filing the contempt proceedings and once again this Special Civil Application for absolutely no justifiable reasons, it will be appropriate to award reasonable cost. SCA/1043/2008 9/9 JUDGMENT 14. For the reasons stated herein above the petition is allowed. Rule is made absolute with cost quantified at Rs.5000/-. [ANANT S. DAVE, J.] //smita//