SCA/3787/2000 1/11 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 3787 of 2000 For Approval and Signature: HON'BLE SMT.JUSTICE ABHILASHA KUMARI ========================================================= 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 ISMAIL AHMED ISA - Petitioner(s) Versus STATE OF GUJARAT & 3 - Respondent(s) ========================================================= Appearance : MS SS PATHAN FOR MR AM RAVAL for Petitioner MS REETA CHANDARANA, AGP for Respondent(s) : 1-4 MS SEJAL K MANDAVIA for Respondent(s) : 2 - 3. ========================================================= CORAM : HON'BLE SMT. JUSTICE ABHILASHA KUMARI Date : 02/09/2008 ORAL JUDGMENT 1. This petition has been filed by the petitioner under Article 226 of the Constitution of India with the following prayers: SCA/3787/2000 2/11 JUDGMENT (A) To direct the respondents to give to the petitioner the benefit of Government Resolution dated 10.1.1996 and to increase the Dearness Allowance from 20% to 97% of basic pay for calculating gratuity, as per Annexure-B to the petition. (B) To direct the respondents to treat the date of retirement of the petitioner as of 1.4.1995 and to grant higher pay scale of 9-18-27 years as per Government G.R. by setting aside annexure E2. (C) To declare that the petitioner is entitled to the benefit of Government Resolution dated 10th January, 1996, at Annexure-B hereinabove, and to grant consequential benefit of payment. 5. Interim relief: Pending admission, final hearing and disposal of this petition, Your Lordships may be pleased to issue direction to the respondents to calculate provisionally the death-cum-retirement gratuity on the basis of Government Resolution dated 10.1.1996 and to pay to the petitioner provisionally. 2. The brief facts of the case are that the petitioner was employed as Gram Sevak with the respondent No.3. He joined the services as such on 1.4.1964. After serving for more than 31 SCA/3787/2000 3/11 JUDGMENT years, the petitioner preferred an application for voluntary retirement with effect from 31.3.1995. The request of the petitioner for voluntary retirement was granted by the respondent No.3, which is evident from a perusal of the order dated 22/23.3.1995. Accordingly, the petitioner stood voluntarily retired with effect from 31.3.1995 A.N. After about five years, the petitioner has preferred the present petition praying that he should have been given the benefit of the Government Resolution dated 10.1.1996 and the D.A. paid to him should be increased from 20% to 97% of basic pay for calculating the gratuity as per the said Government Resolution. 3. Ms.S.S.Pathan learned advocate for Mr.A.M.Raval, learned counsel for the petitioner, has submitted that no doubt the petitioner has retired on 31.3.1995 but he has performed his duties on 31.3.1995 and as per the note in his service book, he is entitled to receive pension from 1.4.1995 and, therefore, the benefit of SCA/3787/2000 4/11 JUDGMENT Government Resolution dated 10.1.1996 should be extended to him and his date of retirement should be taken to be 1.4.1995 and not 31.3.1995. It is forcefully contended by the learned counsel for the petitioner that by retiring the petitioner on 31.3.1995 instead of 1.4.1995, the fundamental rights of the petitioner under Article 14 of the Constitution have been violated and he has also been denied the benefit of higher pay-scale on the basis of another Government Resolution dated 16.8.1994 on the ground that he has retired on 31.3.1995. It is, therefore, submitted that the prayers made in the petition be granted. 4. Ms.Reeta Chandarana, learned Assistant Government Pleader, has submitted that the Government Resolution dated 10.1.1996 is applicable to employees who have retired on superannuation or have died on or after 1.4.1995 and it does not cover the case of the petitioner who has resigned voluntarily with effect from 31.3.1995. It is also submitted by the learned SCA/3787/2000 5/11 JUDGMENT Assistant Government Pleader that the Government Resolution dated 10.1.1996 clearly specifies the cut-off date of 1.4.1995 and only the employees who retired or died on or after the said cut-off date can be given the benefit of the said Government Resolution and as the petitioner has retired before 1.4.1995, the Government Resolution will not be applicable to him. In support of the above submissions, Ms.Reeta Chandarana, learned Assistant Government Pleader has placed reliance upon Motia Devi and others v. Municipal Corporation, Faridabad - 2005(4) SCC 603. 5. Ms.Sejal K.Mandavia, learned counsel for the respondents No.2 and 3, has supported the stand of the State Government and has stated that the case of the petitioner is not covered by the said Government Resolution and, therefore, the prayers made in the petitioner may not be granted. 6. I have heard the learned counsel for the SCA/3787/2000 6/11 JUDGMENT respective parties and have perused the averments made in the petition as well as the documents annexed thereto. 7. The operative, and relevant, part of the Government Resolution dated 10.1.1996 reads as under: The Departments concerned should instruct Head of Departments, Head of Offices under its control to forward service books of employee who have retired on or after 1/4/1995 to the Director of Pensions and Provident Fund, Gujarat State, Ahmedabad for District Assistant Examination, Local Fund Accounts for issue or revised gratuity orders within a period of two months. (emphasis supplied) From the above, it is clear that this Resolution is applicable to employees who have retired on or after 1.4.1995 and not prior thereto. From a reading of this Resolution, it also does not transpire that it is made applicable to employees who have voluntarily retired. The tenor of the said Resolution makes it clear that it is applicable to employees who have retired on superannuation or have died, on or after 1.4.1995. It is not disputed that the petitioner SCA/3787/2000 7/11 JUDGMENT made an application dated 31.1.1995 that he would like to retire voluntarily with effect from 31.3.1995. Upon the grant of the request made in the application, the petitioner stood voluntarily retired with effect from 31.3.1995 A.N. A perusal of the notings made in the service book of the petitioner, which have been heavily relied upon by Ms.S.S.Pathan, also go to show that that date of retirement of the petitioner is 31.3.1995. However, the date of entitlement for pensionary benefits is rightly mentioned as 1.4.1995, which cannot be taken to be the date of retirement, as urged by the learned counsel for the petitioner. The Government Resolution dated 10.1.1996 has been issued after the retirement of the petitioner. No doubt, it has been given retrospective effect upto the cut off date that is 1.4.1995, meaning thereby that employees who superannuated or died on or after 1.4.1995 will be given the benefit of this Resolution. However, by no stretch of imagination can the language of the Resolution be stretched to mean that it should also cover SCA/3787/2000 8/11 JUDGMENT cases of those employees who have voluntarily retired with effect from a date prior to 1.4.1995. The Government Resolution in question reflects the policy decision of the Government and as such, the Court, under Article 226 of the Constitution of India, will not interfere with the same, especially since the petitioner has not challenged the Resolution as being either arbitrary or discriminatory. 8. In Motia Devi and others v. Municipal Corporation, Faridabad (supra), the Supreme Court has upheld the date regarding the applicability of the pension scheme. In that case, the husband of the appellant No.1 therein had retired from services on 31.10.1984 and thereafter had expired on 3.6.1999. The State of Haryana had provided for a pension scheme to the employees of the Municipal Corporation which was to come into force with effect from 16.4.1992. The plea of the appellants has been negatived by the Supreme Court by holding that the Scheme itself provided that it shall come into force SCA/3787/2000 9/11 JUDGMENT with effect from 16.4.1992 and will apply to those who were appointed on or before 16.4.1992 on full-time regular basis or were working immediately before 16.4.1992 and opted for those Rules and since the husband of the appellant No.1 had already expired in 1984 and was not working on the relevant date i.e. 16.4.1992, the Scheme would not be applicable to him. Similar is the position in the present case. The Government Resolution dated 10.1.1996 makes it abundantly clear that it will be applicable to employees who retired on or after 1.4.1995 and since the petitioner retired on 31.3.1995, its provisions would, therefore, not be applicable to him, and the petitioner cannot claim any benefit as prayed for on the basis of the said Resolution. 9. It is also relevant to notice that the petitioner, upon coming to know of the issuance of the Government Resolution dated 10.1.1996, did not approach the concerned authorities by SCA/3787/2000 10/11 JUDGMENT making a suitable representation. However, after almost five years of retirement, the petitioner has straightaway approached this Court by filing the petition. 10.Although it may be understandable that some amount of heart-burning may be caused to the petitioner, who has missed receiving the benefits of the Government Resolution dated 10.1.1996 by just one day, as he retired on 31.3.1995, whereas the benefit of the Resolution can be availed only by employees who superannuated or died on or after 1.4.1995, however, the submission of the learned counsel for the petitioner to the effect that since the petitioner has worked on 31.3.1995, his date of retirement should be considered to be 1.4.1995 and not 31.3.1995, cannot be accepted. The petitioner stood voluntarily retired with effect from 31.3.1995 and, as such, is not entitled to receive the benefits of the Government Resolution dated 10.1.1996. No legal or fundamental right of the petitioner has been SCA/3787/2000 11/11 JUDGMENT infringed and the plea of discrimination is not well-founded. 11.For the above stated reasons, the petition must fail. It stands dismissed. Rule is discharged. Interim order, if any, stands vacated. There shall be no order as to costs. (Smt.Abhilasha Kumari, J.) (sunil)