Gujarat High Court

Pashabhai Umedbhai Patel vs State Of Gujarat on 8 February, 2022

Author:
Biren Vaishnav

Bench:
Biren Vaishnav

C/SCA/3180/2019 CAV JUDGMENT DATED: 08/02/2022

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/SPECIAL CIVIL APPLICATION NO. 3180 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 2688 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 177 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 2339 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 6258 of 2019

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE BIREN VAISHNAV

==========================================================

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 or any order made thereunder ?

==========================================================
PASHABHAI UMEDBHAI PATEL & 25 other(s)
Versus
STATE OF GUJARAT & 2 other(s)
==========================================================
Appearance:
MS HARSHAL N PANDYA(3141) for the Petitioner(s) No.
1,10,11,12,13,14,15,16,17,18,19,2,20,21,22,23,24,25,26,3,4,5,6,7,8,9
MR MEET THAKKAR, AGP for the Respondent(s) No. 1,2,3
==========================================================
CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
Date : 08/02/2022
CAV JUDGMENT

1. Rule, returnable forthwith. Mr. Meet M. Thakkar,

learned Assistant Government Pleader waives service

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of notice of Rule for the respondents.

2. With the consent of the learned advocates appearing

for the respective parties, the petitions were taken up

for its final disposal on 5.1.2022.

3. In all these petitions, under
Article 226
of the

Constitution of India, the petitioners who were

erstwhile employees of the State Government and

ultimately on retirement there-from were absorbed

with the Food and Civil Supplies Department, a Public

Sector undertaking, initially, prayed for a relief of

granting the benefit of medical allowance in their

monthly pension as well as family pension to the

heirs. When the petitions have come up for hearing,

the learned counsels for the respective parties have

made a statement that as far as their grievance of

family pension is concerned, the same has been

resolved, inasmuch as, family pension is now being

paid to them by virtue of the GR dated 10.7.2019. The

only controversy therefore that remains is that of

granting of the benefit of the medical allowance in

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their monthly pension.

4. For the purposes of this judgment, facts of Special

Civil Application No.3180 of 2019 are seen.

4.1. The petitioners are senior citizens and they

have approached this Court inasmuch as, it is their

case that the State is not implementing the verdict

given by this Court in cases of similarly situated

pensioners who are co-employees of the present

employers in respect of grant of medical allowance

in their monthly pensions. The petitioners had joined

the Food and Civil Supplies department on different

dates and, thereafter upon creation of the Gujarat

State Civil Supplies Corporation on 2.10.1980, the

petitioners are the employees of Civil Services

Department and were sent on deputation to the

Corporation. In the year 1986, the State Government

decided to absorb the employees sent on deputation

to the Corporation and other employees like the

petitioners were permanently absorbed. All those

employees had been treated to have retired from

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government service with effect from 4.12.1998 and

were sanctioned pension from the State

Government. Their pension is also commuted.

Thereafter, 1/3rd of commuted pension was restored

on completion of fifteen years and such pension

payment orders are placed on record. The

petitioners are also granted 50% of DA merger.

5. Ms. Harshal Pandya, learned counsel for the

petitioners would submit that the petitioners are not

being paid medical allowance which other pensioners

are being receiving as monthly pension. A

representation was made, which, however has

remained unanswered. Ms. Pandya for the petitioners

would place reliance on the decision of this Court

rendered in SCA No.12918 / 2010 with SCA No.12929

/ 2010 dated 5.4.2019, wherein, an identical issue of

the retired employees of the Gujarat State Civil

Supplies Corporation in context of prayer to direct

them to pay medical allowance with the pension was

considered. She would submit that following the

earlier decision rendered in SCA No.16209 of 2013

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the Court allowed the petition with a direction to see

that the medical allowance is sanctioned to the

petitioners and paid alongwith family pension. She

would therefore submit that the petitioners being

similarly situated are entitled to the benefits of

medical allowance as it forms part of components of

pension as decided by this Court. The aforesaid

decision was even confirmed in appeal as the LPA

against the said judgments have not been

entertained.

6. Learned AGP Mr. Thakkar appearing for the

respondent - State would draw the attention of the

Court to the affidavit-in-reply filed by the respondent-

State and submit that the case of the petitioners does

not fall within the parameters of Rule 9(55) of the

Gujarat Civil Services (Pension) Rules, 2002 and,

therefore, the petitioners are not entitled to seek the

benefits of medical allowance as a part of their

pension. Reliance is also placed on Rule 51(2)(c) of

the Rules which provides for retirement benefits and

the submission is made that the medical allowance

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and medical reimbursement would not form part of

the retirement benefits and, therefore, the petitioners

accordingly are not entitled to the benefits of medical

allowance. The pension defined in Rule 9(55) is

referred to for the purposes of this submission.

6.1. Reading the affidavit-in-reply, learned AGP

would further submit that the petition is barred by

delay and latches inasmuch as the petitioners have

been fence-sitters. They have not approached this

Court within time and they have slept over their

rights and chosen not to come to this Court. Fence-

sitters cannot be given the benefit of identical order

of the Court, merely, because such an order is

passed in the case of other co-employees. Reliance is

placed on the decision in the case of
State of Uttar

Pradesh v. Arvind Kumar Shrivastava
reported

in 2015(1) SCC 237. The relevant paragraphs of

that judgment are read before this Court to submit

that fence-sitters who have acquiescence cannot be

given the benefit of a subsequent decision of the

Court.

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7. Ms. Pandya on the other hand would rely on the

following decisions:

(1) Vipulkumar Atmaram Parekh v. State
of Gujarat reported in 2009(5) GLR 3914 -

Para 9 and 10

(2) Union of India v. Tarsem Singh

2008(8) SCC 648 - Para 4 to 8

(3) Lajja Ram & Others v. Union Territory
reported in 2013(
11) SCC 235 - Para 9 and
11 &

(4) Union of India v. Krishna Rao
reported
in 2018(18) SCC 107 - Para 12

8. Considering the above submissions made by the

learned advocates for the respective parties, the issue

need not detain us for long.

9. In an extensive consideration made by this Court in

SCA No.16209 of 2013, a judgment which was

rendered by this Court on 20.10.2015 which was

subsequently followed in the decision dated 5.4.2016

in SCA No.12918 of 2010, the Court extensively

considered the provisions in context of the prayer of

payment of medical allowance to the petitioners who

were employees of the Industrial Research

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Laboratory and the Court has in the decision dated

5.4.2016 rendered in SCA No.12918 of 2010 in the

context of the State Civil Supply Corporation, which

were the co-employees of the petitioners, held as

under extensively reproducing the decision. The

Court observed in para Nos.7 and 8 as under:

"7. In my view, this issue is no longer
res-integra, after the pronouncement of the
judgment and order of this Court dated
30th October, 2015 passed in the Special Civil
Application No.16209 of 2013. The order reads
thus:

"1 By this writ application under
Article 226
of
the Constitution of India, the petitioners
retired Government employees, have
prayed for the following reliefs:

7. The petitioners respectfully pray that, on the
basis of the facts and circumstances as
mentioned hereinabove and which may be
urged at the time of hearing, the Honourable
Court may be pleased to issue a writ of
mandamus or any other appropriate writ, order
or direction to the respondent authorities and
may be pleased to:

(A) declare and hold that the petitioners are
entitled and eligible for the benefit of medical
allowance in monthly pension and the family
pension, and

(B) direct the respondent authorities to
extend the benefit of medical allowance
in their monthly pension and the benefit
of family pension to the petitioners, and

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(C) award the cost of present petition, and

(D) pension admissible and final disposal
of this petition, this Honourable Court may
be pleased to direct the GIRDA, Res. No.4 to
sent the proposal to the State Government in
respect of grant of benefit of medical allowance
and family pension to the petitioners so as to
enable the authorities of the State Government
to consider the same, and

(E) pending admissible and final disposal
of this petition, this Honourable Court
may be pleased to direct the respondent
authorities to start paying medical allowance to
the petitioners in their monthly pension as
being paid to other pensioners, and/or

(F) grant any other relief or pass any
other order which the Honourable Court
may consider as just and proper in the facts
and circumstances of the case.

2 The case of the petitioners may be
summarized as under;

2.1 The petitioners joined the services of the
State Government and were posted in the
Industrial Research Laboratory (I.R.L., for
short) under the Administrative Control of
the Commissioner of Industries. All the
petitioners were holding the technical post.

2.2 On 06.04.1981, the Gujarat Industrial
Research and Development Agency (GIRDA,
for short) was established.

2.3 On 30.06.1982, the State
Government accorded approval to the GIRDA
to take over the Industrial Research Laboratory
with effect from 01.04.1982, and accordingly,

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the same was taken over by the GIRDA. All the
employees working in the I.R.L. were sent on
deputation in the GIRDA. In the year 1982, the
question of permanent absorption of the
employees working in the I.R.L. cropped up in
view of the merger of the I.R.L. with the
GIRDA, In such circumstances, the State
Government decided to call for an option from
the employees of the I.R.L. whether they
desired to be absorbed permanently in the
GIRDA or not. While calling for such option, it
was made clear to the employees working on
the technical side that as everything was being
taken over by the GIRDA, no technical post
would continue, and therefore, upon giving
option for being continued in the parent
department, their services would be
terminated.

2.4 In such circumstances
referred to above
,
the petitioners were left with no other option,
except being absorbed in the GIRDA, and
accordingly, they were absorbed with effect
from 01.10.1985 on permanent basis.

2.5 After being absorbed in the GIRDA, all the
petitioners were treated to have retired from
the services of the Government. The
pension was sanctioned in favour of the
petitioners with effect from 01.10.1985 for that
period and were permitted to commute full
pension. In the year 19981999, the State
Government decided to grant the benefit of the
commuted portion of pension to all the
Government employees who had been
absorbed in the Public Sector Undertaking /
Autonomous Body. Since the authority delayed
the process, the petitioners Nos.1 and 2 herein
filed two Special Civil Applications
Nos.12436 and 12437 of 2009 respectively.

Both the writ applications were disposed of in

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the following terms:

1. During the course of hearing, Mr.J.K.
Shah, learned Assistant Government Pleader,
has tendered the affidavit filed by Mr.Ramsing
R. Parmar, whereby it is categorically stated
that his office has received the letter from the
office of the Pension and Provident Fund,
Gandinagar, and the same is under
consideration by his office. In pursuance of
the same, learned Assistant Government
Pleader has submitted that the grievance of the
petitioners will be redressed by the respondent-

authority within the stipulated time.

2. Mr.Paresh Upadhyay, learned advocate for
the petitioners, states that in view of the
averments made in the said affidavit as well as
the statement made by the learned Assistant
Government Pleader, he does not press both
the petitions.

3. In view of aforesaid, both the petitions stand
disposed of as not pressed. It is made clear that
the respondentauthority will redress the
grievance of the petitioners within a period of
six weeks from today. Notice is discharged with
no order as to costs. Liberty to revive in case of
difficulty.

2.6 The authorities, thereafter, started
processing the pension cases by asking the
petitioners to provide the necessary
details in a prescribed format. In the year
201011, the sanction letters of restoration of
pension
were issued in favour of the petitioners with
revision pertaining to the 6th Pay Commission.
Since the authorities did not sanction the
pension, after merging 50% D.A. in view
of the policy of the State Government
of granting the benefit of merger of D.A.

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in pension with effect from 01.04.2004,
several representations were made in
that regard. On 11.05.2011, the Finance
Department clarified that since all the benefits
were granted to the absorbed employees at par
with the other pensioners, the benefit of
merger of 50% D.A. would be also
payable to such employees.

2.7 On 28.07.2011, the District Treasury Office
was instructed to pay pension after merging
50% D.A.

2.8 It is the case of the petitioners that in the
pension, which is being paid to them, the
medical allowance is not being paid. The other
pensioners are being paid the medical
allowance. The two widows of the Government
employees also preferred representations for
grant of the family pension upon death of their
respective husbands who were absorbed and
treated as retired from the Government
services along with the present petitioners.
However, the request was declined. On
09.05.2012, the District Treasury Office,
Vadodara replied that as there was no clear
direction for payment of medical allowance, the
same was not being paid. On the issue of family
pension and medical allowance, the
GIRDA informed the State Government that
such benefits are not being paid to the
employees of the GIRDA and appropriate
instructions were sought in that regard by the
GIRDA from the Government. The grievance of
the petitioners is that they have all retired
and although are entitled for the benefit
of medical allowance in their monthly pension,
yet the same has been wrongly denied without
there being any legal basis for the same.

3 Ms. Harshal Pandya, the learned advocate
appearing for the petitioners submitted that

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although the Commissioner of Industries
has issued appropriate directions as regards
the payment of medical allowance, the
authorities of GIRDA for some reasons or the
other are not forwarding the proposal for the
grant of medical allowance and family pension.

4 Ms. Pandya submitted that it is not proper on
the part of the State Government to harass
helpless widows. According to Ms.
Pandya, the benefit of family pension is
available to a widow / widower of a pensioner
under the statutory rules of the Gujarat Civil
Services (Pension) Rules, but the same has
been denied despite the fact that the
employees absorbed in other Boards /
Corporations are being paid the same.

5 Ms. Pandya submitted that her clients are all
retired employees of the State Government and
are claiming pension for the service rendered
with the State Government. For the service
rendered with the GIRDA, benefits have
already been paid which do not include
pension. Her clients are not claiming any
benefit from the GIRDA.

6 In such circumstances
referred to above
, Ms.
Pandya submitted that there being merit in this
application, the same be allowed and
appropriate Mandamus be issued.

7 On the other hand, this writ application has
been vehemently opposed by Mr. Swapneshwar
Gautam, the learned Assistant Government
Pleader appearing for the State respondent.
Mr. Gautam placed reliance on the following
averments made in the affidavitreply filed on
behalf of the respondents Nos.1, 3 and 4:

5. It is respectfully submits that by way of filing

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the present petition the petitioner has
prayed for to allow the benefit of
medical allowance in monthly pension and
family pension. It is further submits that on
06.04.1981 the Gujarat Industrial
Research Development Agency (GIRDA for
short) came into existence. The State
Government accorded the approval to GIRDA
take over the Research Laboratory with
effect from 01.04.1982, wide Government
Resolution dated 03.06.1982 and
accordingly, the same was taken over by
GIRDA and all the employees working in IRL
was take over by GIRDA, they have
been given fresh appointment letters from
GIRDA. The copy of GIRDA appointment letter
and GIRDS service rules 1981 are attached
herewith and marked as Annexure R1.

6. It is respectfully submits that as all the
petitioners were absorb GIRDA on 01.10.1985.
NonTechnical staff have been given the option
to absorb in GIRDS or to stay in parent
department while technical staff were
absorb with three increment and one
promotion it appears that the petitioner were
benefited by a good option. A copy of
acknowledgment for the appointment of three
increment and one promotion is attached
herewith and marked as Annexure R2. It is
further submits that the petitioner have been
also given commuted full pension for the
service which they have done in IRL. A copy of
commuted full pension for the services done by
the petitioners in IRL is attached
herewith and marked as Annexure R3.

7. It is respectfully submits that as order
passed by the Hon'ble Court dated 30.04.2010,
the pension and Provident Fund Office have
released pension with effect from
01.07.2004 vide order No.DPP/

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Restoratinpension/PR1/G/10/531/AG/REV/843
dated 13.05.2010. A copy is attached herewith
and marked as Annexure R4.

8. It is respectfully submits that the petitioners
are already being paid 6th pay commission and
their pension case are also approved by the
pension and provident fund office and they are
paid pension accordingly. It is further submits
that after seeking guidance from Finance
Department, Office of the Pension and
Providence Fund vide letter dated 28.07.2011
as Directed Treasury Officer, Vadodara
merging the benefit of 50 percent Dearness
Allowance on revised pension for the duration
of 01.04.2004 to 31.12.2005 the copy of letter
dated 28.07.2011 is attached as Annexure R5.

9. It is further submitted that in earlier time
Provident Fund and Pension Department has
decided to give 1/3 pension for period
petitioner work for IRL. By the letter dated
28.07.2011 they have given the merger of
50 percent Dearness Allowance on revised
pension.

10. It is respectfully submit that in accordance
with the provision of Finance Departments
G.R. No NVN/1074/U.O./352/J dated
19.02.1974 office of the Pension and Provident
Fund had issued as letter dated 29.11.2013
stating there in that, the State Government has
not been accepted responsibility, provide the
benefit of family pension to the employees who
are absorb in public sector unit and therefore
there is no question of sanction family pension
for their families. A copy of letter dated
29.11.2013 and Finance Department G.R.
Dated 19.02.1974 is attached herewith
and marked as Annexure R6.

11. It is respectfully draw the attention of this

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Honble Court that the widow of later Mr.
Shah and Mr. Machhi were paid full
commuted value of pension for services they
render in IRL. It is further submitted that late
Mr. Shah and Mr. Machhi were pay as
prescribe by GIRDA during service in GIRDA
they were also paid retirement benefit.

12. It is respectfully submit that as per the
provision made in Finance Department by GR
dated 03.10.2012 read with provision of 5th
pay GR dated 07.01.1998, the medical
allowance is to be paid to state Govt.
employees as per standard rules. Both above
referred G.R. Is attached herewith Annexure R-

7. It is further submitted that the two letters
as mentioned below annexed as Annexure R8:

1. Letter dated 01.06.2012 issued by
Accountant and Treasury Office, Gandhinagar.

The Director has clearly mentioned that
the employees of the State Government who
were deputation to public sector unit and
again repatriate are not entitle have
medical
allowance.

2. The finance dapartment has mentioned
in its letter dated 15.04.2010 that they get
the benefit of medical allowance from office
where they service during the period of
absorption. The petitioners have given
appointment letters from GIRDA and they are
abide by GIRDA service rules, as per
GIRDA service 1981, GIRDA is providing CPF
scheme to it employee.

13. It is further submits that GIRDA is grant in
aid organization and registered under society
act the copy of 100 percent grant in aid
certificate/resolution is attached as Annexure
R9. It is further submitted that as per

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GIRDA service, GIRDA is paying only
Contributive Provident Fund (CPF) to its
employee. The Industries and Mines
Department is the administrative authority
of the GIRDA. Therefore GIRDA has no
power to sanction medical allowance in
pension. It is respectfully submitted that the
present petitioner has given example of
Gujarat Water Resources and Development
Corporation Limited where the petitioner
want to convey that by GR dated 05.06.2012
granting benefit of family pension to the
Government employees who were absorb in
Gujarat Water Resources and Development
Corporation Limited and request to considered
their case grant of benefit for family pension
and medical allowance.

14. It is further submits that the Gujarat Water
Resources and Development Corporation
Limited is autonomous body, having liberty
to frame their own rules. Therefore their
rules are not applicable to Industries
Commissioner or GIRDA. It is respectfully
submits that the petitioner are seeking benefit
of medical allowance from the State
Government and alleged that as the pension is
paid by the State Government so they
should be treated as State Government
employees. The petitioners has also mentioned
since the GIRDA has no power to sanction
medical allowance, in light of petitioner. The
present department may refer issued to
State Government to direct GIRDA to
proposed medical allowance. GIRDA sought
guidance from Industries and Mines
Department as it is administrative authority
of GIRDA vide letter
No.GIRDA/PE.Ta.Bh/1213/1192 dated
30.01.2013 for medical allowances in
pension. In reply of letter dated 30.01.2013,
the Industry and Mines Department has

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advised us to act as per GIRDA service rule. A
copy of communication letters are attached
herein and marked as Annexure R10. It is
further submitted that GIRDA is having CPF
scheme in which such retire employees
are not entitled for pension or medical
allowances in pension.

15. It is respectfully submits that GIRDA has
not receive any official letter from its Head
Office i.e., Office of the Industry Commissioner
asking us to submit proposal for granting
medical allowance, the industries and mines
Dept. is an administrative authority the
authorities has asked to conduct suitable
action in this matter, therefore GIRDA is
sought their advise and having advised
as GIRDA and act as per GIRDA service
rule. GIRDA is being autonomous body
grant in aid organization and registered under
society act which has provided only CPF
to each employee. Therefore, no medical
allowance in the pension to be paid to its
employees. As per letter
No.DPP/LM/Spe.C.A.1620913/733/13 dated
29.11.2013 from office of the pension and
Provident Fund, the employees absorb on
01.10.1985 in GIRDA are paid commuted full
pension and after completion of 15 years they
are eligible to get 1/3 pension. With
reference to finance department G.R.
dated 19.02.1974 office of the pension and
Provident Fun as issued the letter
No.DPP/Lm.Spe.C.A. No.1620913/13 dated
29.11.2013
stating that the State Government has
not accept the responsibilities of the
family pension for their families for the
employees who are absorbed, therefore no
question of sanctioning family pension for the
present petitioner.

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16. It is respectfully submitted the
office of the Industries Commissioner wide
letter dated 27.02.103 have advised
GIRDA to contact treasury branch Vadodara
and taken action for the family pension of Mr.
R.R. Shah and Mr. Z.R. Machhi reference was
made to treasury officer vadodara were letter
dated 03.04.2013 in the matter. In reply to our
letter dated 01.03.2013 treasury officer has
informed GIRDA that family pension cannot
be sanction to the employees where
repatriated and absorb in present department.
The petitioner have also inform accordingly. A
copy of letters dated 27.02.2013, 01.03.2013
and 03.04.2014 are attached herewith and
marked as Annexure R11.

17. It is further submit that with reference the
finance department GR dated 19.02.1974 as
per letter No.DPP/LM/Spe. C.A. No.16209-
13/733/13 dated 29.11.2013 from the office of
Pension and Provident Fund, providing /
sanctioning medical allowance is policy matter
of the State Government. Medical
allowance in pension cannot be payable to
absorb employees entitle and in this their
official orders raised from the State
Government.

18. It is respectfully submits that the present
petitioner who are employees absorb from
IRL to GIRDA has got full commuted
pension from Government for the service done
in IRL. They have also paid salary and medical
allowance while they are on service with
GIRDA. They were paid retirement benefit and
contributive Provident Fund (CPF) after getting
retied from GIRDA.

8 Mr. Gautam submitted that in view of the
above stance of the State Government, this
application deserves to be rejected.

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9 Having heard the learned counsel appearing
for the parties and having gone through the
materials on record, the only question that falls
for my consideration is whether the petitioners
are entitled to reliefs, as prayed for, in this writ
application.

10 The word pensioner is defined in the Gujarat
Civil Service (Pension) Rules, 2002. Pensioner
means a retired Government employee who
has been granted pension

10.1 Rule 51 of the Gujarat Civil Service
(Pension) Rules, 2002 provides benefit of family
pension to the families of absorbed employees,
which reads as under:

Rule 51: Pension on absorption in or
under Public Sector undertaking:

(2)(b)(i) The benefit of family pension under
ChapterX of these rules shall be admissible
only to the families of those who are actually
in receipt of pension from the State
Government, after their absorption in the
Public Sector undertaking referred to in this
rule. This benefit shall not be admissible to the
families of those who got only the service
gratuity.

(ii) Family Pension shall not be admissible from
only one source either from the State
Government or the public sector undertaking
referred to in this rule in case such public
sector undertaking has a similar scheme for
payment of family pension. The beneficiary
shall be given option to choose either of the
two scheme.

(iii) Grant of family pension shall be subject to
other conditions specified in Chapter X of these

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rules.

(iv) It shall be responsibility of pension
sanctioning authority to process the claim of
family pension. He shall forward the claim of
family pension after verifying that there exists
no scheme for grant of family pension to the
families of the Government employees
already absorbed in the public sector
undertaking.

11 It appears from the stance of the GIRDA
that the grant of benefit of restoration of
pension, merger of D.A. and three increments,
disentitle the pensioners to claim the family
pension and medical allowance, as they cannot
be treated as employees of the State
Government. It also appears that the GIRDA
proposes to rely upon a Government
Resolution dated 19.02.1974, by which, the
State Government had declined to take the
responsibility of paying the family pension.

12 However, it appears that the State
Government, thereafter, issued another
resolution dated 01.04.1989 modifying the
earlier resolution/policy for bringing
uniformity in the mater of pensionery
benefits. The relevant part of the resolution
dated 01.04.1989 reads thus:

At present the cases of Government employees,
on deputation to Public Sector Undertaking
of the State Government, who are
absorbed in the PSUs in public interest
permanently, are regulated as per the
provisions contained in the G.Rs. F. D. referred
to in the preamble. The question of
establishing parity in the matter of,
pensionary benefit to such State Government
employees, with the provisions in force in

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Government of India had been under
consideration of Government. After careful
consideration, Government has decided
that in partial modification to the
provisions contained in the GRs referred to in
the preamble, the cases of the Government
employees who select to be absorbed in the
Autonomous body/Public Sector Undertaking
will be regulated as under:

(1) A Government employee on
absorption to Public Sector

Undertaking/Autonomous body is eligible for
prorata pension and DCRG based on the length
of his qualifying services till the date of his
absorption in the PSU/Autonomous Body. The
pension will be calculated on the average
emoluments for 3 years preceding the date of
absorption and DCRG will be calculated on the
basis of the emoluments immediately before
absorption.

(2) Within 6 months of absorption, every
such of Government employees, absorbed
in PSUs/Autonomous bodies will exercise
option for either of the two alternatives
indicated below:

(a) Receiving monthly pension and DCRG as
per the rules or

(b) Receiving DCTG and a lumpsum amount in
lieu of pension worked out with reference to
the commutation table. Were no option is
exercised, the absorbed employee will
automatically be governed under the option (b)
above. The option once exercised will be
final. The person who chooses the alternative
mentioned in Para1 and 2(b) above, 1/3 of the
lumpsum amount will be treated as
commutation of pension and 2/3 of the
amount will be treated as retirement

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benefits.

(3) In case the Government employee,
absorbed in PSU/Autonomous Bodies,
resigns after receiving pensionery benefits,
the resignation will be treated as
resignation from Government service and
as a consequence of resignation, pensionary
benefits received under these orders will be
forfeited.

(4) The absorbed Government employee will
receive all the benefits admissible to other
corresponding employees of PSUs/Autonomous
bodies. But in respect of gratuity the sum total
of the gratuity received from Government at
the time of absorption and the gratuity
received from the PSU/Autonomous body
for service rendered there should not exceed
the amount of gratuity that would have been
received had he been continued in Government
service and retired on the same pay which be
drew on retirement from PSUs/Autonomous
bodies.

(5) Any further liberalisation of pension
rule after permanent absorption will not be
extended. However, if such liberalisation
comes into effect retrospectively i.e., with
effect from the date prior to the date of
absorption, the benefit will be admissible.

(6) In the case where the absorbed
employee elects to receive recurring pension
and DCRG in terms of 1(2)(a) above, and
wishes to commute some portion of his pension
as per the rules, the same will be admissible.

(7) These benefits will be admissible only if the
absorption is in public interest.

(8) A permanent Government employee who

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has been appointed in an Autonomous Body/
PSU wholly on substantially financed by
Government, on his own application in
response to a press advertisement etc.,
on his permanent absorption in such
organisation will be entitled to get benefits of
these orders except carry forward of leave.

(9) All the cases to be regulated under this
order will have to be decided by the
concerned Administrative Departments in
Sachivalaya, who in turn will have to seek
approval of Finance Department.

(10) The pay of the Government
employee absorbed in PSUs/Autonomous

bodies will be regulated as per the provisions of
the G.R.F.D. No.NVT3286GOI95P dated 178-

1988 as amended from time time.

(11) (i) The benefit of family pension will be
admissible to those who are in receipt of
pension after absorption in PSUs.

(ii) The benefit is not admissible to those who
have not rendered requisite number of
qualifying service to earn them pension.
Accordingly the benefit of family, pension will
not be admissible to the families of those
Government servants absorbed in PSUs, who
have not completed 10 years qualifying service.

(iii) The family pension will also be
admissible to those Government servants
absorbed in PSUs who die before receiving
pensionery benefits admissible under these
orders subject to the fulfillment of conditions
mentioned in para 1(11)(ii) above.

(iv) The family pension will This benefit will be
admissible to the Government servant who
is appointed to PSUs in the manner

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indicated in para 1(8) above and has been
granted retirement benefits under these
orders.

(v) The family pension to the eligible
members of the PSU absorbed, Government
servants will be given from one source only,
i.e., either from the Government or from
the Public Sector Undertakings/ Autonomous
bodies if such organization has any scheme for
grant of family pension. The eligible member
may be allowed to choose either of the two
scheme.

(vi) It will be responsibility of the pension
sanctioning authority to process the claim for
family pension. He should forward the claim for
family pension after verifying that there exists
no scheme for grant of family pension to
the families of Government servant already
absorbed in the PSUs/Autonomous bodies.

(12) For actual payment of retired benefits as a
consequence of absorption, the procedure
prescribed for a retired employee should be
followed.

13 The materials on record would
indicate that the widows of the

respective employees, who were absorbed in
the Gujarat Water Resources Development
Corporation and were receiving the pension
from the State Government, are being
granted the benefit of family pension.
The G.W.R.D.C. is also a Public Sector
Undertaking of the State Government. I see no
good reason for the respondents to deny the
benefit so far as the petitioners are concerned,
including the widows. I also take notice of the
Government resolution dated 03.10.2012
sanctioning the medical allowance to the
Government / Panchayat employees, etc, which

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reads as under:

RESOLUTION:

Under the Government Resolution Dated :
22/01/98, mentioned in the preamble, the state
Government has decided to grant Medical
Allowance of Rs.100/ per month to
employees as well as pensioners of the
State Government and Panchayat. The revision
of the existing rate of Medical Allowance was
under consideration of the Government.
After careful consideration the
Government is pleased to revise the existing
rate of Medical Allowance Rs.100/ per month to
Rs.300/ per month with following conditions.

1) These orders shall be applicable to
employees and pensioners of the State
Government, employees and pensioners of
panchayat and Primary and Secondary School
teachers as well as Work Charged employees
(who have completed the service of one full
year without any break).

(2) These orders shall be implemented with
effect from dated 01102012.

(3) Other provisions of the G.R.F,D.
Dated 22011998 shall continue to be
applicable.

(4) Accounting system and conditions
regarding option shall be as it is.

14 I also take notice of the Government
resolution dated 09.03.1999 as regards the
absorption of the Government employees in the
Public Sector Undertaking / Autonomous Body
of the State Government. The same reads as
under:

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In the Government Resolution Finance
Department No.NVT1196 GOI10P, dated:

23.4.1998, Para 3 of the said Resolution
is substituted as follow:

3. The Government, after careful
considerations, has decided to grant benefit
of restoration of one third commuted
portion of pension of pension after 15 years
from the date of commutation or 1.4.1985,
whichever is later notwithstanding the
fact that having commuted the full pension
they were not in receipt of any monthly
pension.

15 I find merit in the submissions of Ms.
Pandya that the confusion has been created by
the Treasury Office, Vadodara, so far as the
grant of family pension to the two widows is
concerned. Ms. Pandya is right in submitting
that the Treasury Office has no authority to
take any decision in the absence of any
direction or decision taken by the highest
authority i.e. the Finance Department. I find
substance in the submissions of Ms. Pandya
that the petitioners are claiming the two
benefits in their capacity as retired employees
of the State Government i.e. for the services
rendered with the State Government and not
for the services rendered with the GIRDA. In
fact, the GIRDA has nothing to do with this
issue.

16 In the result, this application is allowed. The
State Government as well as the respondent
No.3 herein are directed to see that
the medical allowance is sanctioned and paid
to the pensioners along with the monthly
pension as they are receiving, and at the same
time, the two widows are paid the family
pensions in accordance with the rules
governing the same. This exercise shall be

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completed within a period of two months from
today and the payment should be made with
arrears from the date of filing of this petition."

8 In the result, both the writ applications are
allowed. The State Government as well as the
respondents Nos.1 and 2 are directed to see
that the medical allowance is sanctioned and
paid to the petitioners along with a monthly
pension as they are receiving. If any of
the petitioners have passed away, then the
widows shall be paid family pension in
accordance with the rules governing the
same with the necessary benefits. Let this
exercise be completed within a period of two
months from today and the payment should be
made with the arrears from the date of filing of
these petitions. Direct service is permitted."

10. Accordingly, the case of the present petitioners is

squarely covered by
the above decision
.

11. To the submission made by learned AGP that the

petitioners being fence-sitters and, therefore, the

decision of
State of Uttar Pradesh
(Supra) should

be made applicable, it is needless to say that by the

decision in the case of Vipul Aatmaram Parekh

(Supra), this Court observing as under (paragraph 9

thereof) has held that if at any particular of point,

there is decision of this Court every authority of the

State Government is bound to follow the same and

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apply its mind and extended them to the employees

rather than compel them to come to Court.

"9. At the outset, it is required to be noted that
the objection raised by the respondent No.3
that while granting the benefit of higher pay
scale on completion of 9 years service/seniority
prior to the request transfer is not required to
be counted is not sustainable in view of the
many decisions of the Division Bench as well as
learned Single Judges of this Court. Even, the
controversy in question is now not res integra
in view of the the decision of the Hon'ble
Supreme Court in the case of Uttam Vishun
Pawar (supra). All the decisions have been
considered by this Court in the recent decision
of this Court in the case of Naynaben Manubhai
Vyas & Others(supra) dated 12.3.2009 in
Special Civil Application No. 1446 of 1994 and
other allied matters. In spite of the above
decisions of this Court, since long the office of
the respondent No.3 is raising same and similar
objection driving the employee to the Court and
to obtain the similar order. If, on a particular
point there is a decision of this Court every
authority of the State Government is bound to
follow the same unless it is upset by the higher
forum. The authority has to apply its mind
before raising objection and grant the benefit
accordingly and shall not compel the employee
to obtain similar order from the Court. To raise
the objections again and again which are
overruled by the Court by decision would not
only compelling the employee to incur the
expenditure towards the legal proceedings but
it will also increase the litigation and burden to
the Courts, which are otherwise today heavy
burdened due to backlog of cases and Courts
are trying their best to get out of the backlog.
In the case of (Smt) Dhanlakshmiben Liladhar

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Suchak (supra) the learned Single Judge of this
Court as far as back in the year 1992 has
observed that the Government should be model
employer. The model employer is one who
would not deny just claim of his employee and
employees on any technical ground. Such
model employer would not wait for any
direction to be given to accept just claim of the
employee/employees. It is further observed that
once it is found that an employee is similarly
situated the benefits flowing from a judgment
in a case of other similarly situated employee,
it should be given to other similarly situated
employee and employee should not be driven to
the Court for addressing just grievances. Even
in the case of Secretary, Labour, Social Welfare
& Tribunal Development Department & Anr.
(Supra), the Full Bench of this Court in para 9
and 10 has observed and held as under:

"9. The legal position regarding the
binding nature of judgments delivered by
High Courts was clearly explained as far
back as 1962 by the Supreme Court.
In

East India Commercial Co. Ltd. V.
Collector of Customs, Calcuttam A.I.R.

1962 S.C. 1893, Subba Rao.
J. (as he then
was) speaking for himself and Mudholkar
J., has explained though A.K. Sarkar J.

who was the legal position, the legal
position in paragraph 29 of the report as
follows:

This raises the question whether an
administrative tribunal can ignore
the law declared by the highest court
in the State and initiate proceedings
in direct violation of the law so
declared. Under
Art. 215
, every High
Court shall be a court of record and
shall have all the powers of such a
court including the power to punish
for contempt of itself. Under Art:

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226, it has a plenary power to issue
orders or writs for the enforcement
of the fundamental rights and for any
other purpose to any person or
authority, including in appropriate
cases any Government, within its
territorial jurisdiction. Under
Art.
it has jurisdiction over all courts
and tribunals throughout the
territories in relation to which it
exercises jurisdiction. It would be
anomalous to suggest that a tribunal
over which the High Court has
superintendence can ignore the law
declared by that court and start
proceedings in direct violation of it. If
a tribunal can do so, all the
subordinate courts can equally do so,
for there is no specific provision, just
like in the case of Supreme Court,
making the law declared by the High
Court binding on subordinate courts.

It is implicit in the power of
supervision conferred on a superior
tribunal that all the tribunals subject
to its supervision should conform to
the law
laid down by
it. Such
obedience would also be conducive to
their smooth working: otherwise,
there would be confusion in the
administration of law and respect for
law would irretrievably suffer, We,
therefore, hold that the law declared
by the highest court in the State is
binding on authorities or tribunals
under its superintendence, and that
they cannot ignore it either in
initiating a proceeding or deciding on
the rights involved in such a
proceeding. If that be so, the notice
issued by the authority, signifying the
launching of proceedings contrary to

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the law
laid down by
the High Court
would be invalid and the proceedings
themselves would be without
jurisdiction."

The position was reiterated in
Makhan Lal
Vs. State of Jammu and Kashmir, A.I.R.

1971 S.C. 2206. It was the context of the
law declared by the Supreme Court that
the decision laid down to that effect so far
as
Article 141
of the Constitution was
concerned, but what has been observed in
paragraph 5 at page 2209 by Grover J.
speaking for the Supreme Court has equal
application so far as pronouncements by
the High Courts are concerned. Grover J.
observed at page 2209:

"The Judgment which was delivered
did not merely declare the
promotions granted to the
respondents in the writ petition filed
at the previous stage as
unconstitutional but also
laid down in

clear and unequivocal terms that the
distribution of appointments, posts or
promotions made in implementation
of the communal policy was contrary
to the constitutional guarantee of

Article 16.
The law so declared by
this court was binding on the
respondent State and its officers and
they were bound to follow it whether
a majority of the present respondents
were parties or not to the previous
petition."

It cannot, therefore, be contended by
anyone, that since Acharya, the
petitioner in Special Civil Application
No. 2215 of 1979, was not a party to
Special Civil Application No. 806 of
1975, that the law
laid down by
D.A.

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Desai, J. in his judgment
in that case

on August 7, 1975 was not applicable
to the case of Acharya.
Whether the
law is declared by the Supreme Court
or whether the law is declared by the
High Court, the legal position as
regards authorities and tribunals
subordinate to the Supreme Court
and High Courts respectively is the
same as pointed out by Subba Rao J.

in
East India Commercial Co.s
case
(supra).

10.
In
Shri Baradakanta Mishtra V.
Shri Bhimsen Dixit, A.I.R.
1972 S.C.
2466, the legal position regarding
binding nature of the High Court's
decision was once again reiterated by
the Supreme Court and after quoting
the above passage which we have
extracted from the judgment of
Subba Rao J. in East India
Commercial Co. s case (supra) in
paragraphs 15 and 16 of the
judgment, Dwiveid J. speaking for the
Supreme Court observed at page
2169:

"The conduct of the appellant in
following the previous decision of the
High Court is calculated to create
confusion in the administration of
law. It will undermine respect for law

laid down by
the High Court and
impair the constitutional authority of
the High Court. His conduct is
therefore comprehended by the
principles underlying the law of
contempt. The analogy of the inferior
court's disobedience to the specific
order of a superior court also
suggests that his conduct falls within
the purview of the law of contempt.

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Just as the disobedience to a specific
order of the Court undermines the
authority and dignity of the court in a
particular case, similarly any
deliberate and mala fide conduct of
not following the law
laid down in
the
previous decision undermines the
constitutional authority and respect
of the High Court. Indeed, while the
former conduct has repercussions on
an individual case and on a limited
number of persons, the later conduct
has a much wider and more
disastrous impact. It is calculated not
only to undermine the constitutional
authority and respect of the High
Court generally, but is also likely to
subvert the Rule of law and engender
harassing uncertainty and confusion
in the administration of law."

In
Hashmukhlal C. Shah V. State of
Gujarat
, 19 G.L.R. 378, a Division
Bench of this High Court consisting
of J.B. Mehta and P.D. Desai JJ. after
examining several decisions on the
point, observed: "... in a Government
which is ruled by laws, there must be
complete awareness to carry out
faithfully and honestly lawful orders
passed by a Court of law after
impartial adjudication. Then only will
private individuals, organizations and
institutions learn to respect the
decisions of Court. In absence of
such attitude on the part of all
concerned, chaotic conditions might
arise and the function assigned to the
Courts of law under the Constitution
might be rendered a futile exercise."

From these four decisions, the
following propositions emerges:

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(1).It is immaterial that in a previous
litigation the particular petitioner
before the Court was or was not a
party, but if law on a particular point
has been
laid down by
the High
Court, it must be followed by all
authorities and tribunals in the State.

(2).The law
laid down by
the High
Court must be followed by all
authorities and subordinate tribunals
when it has been declared by the
highest Court in the State and they
cannot ignore it either in initiating
proceeding of deciding on the rights
involved in such a proceeding.

(3).If in spite of the earlier exposition
of law by the High Court having been
pointed out and attention being
pointedly drawn to that legal position
in utter disregard of that position
proceedings are initiated, it must be
held to be a wilful disregard of the
law
laid down by
the High Court and
would amount to civil contempt as
defined in
section 2(b)
of the
Contempt Courts Act, 1971."

Thus, even the Division Bench has held
that not following the law
laid down by
the
High Court and disregarding the same
would amount to Civil Contempt as
defined in
Section 2(b)
of the of the
Contempt of Courts Act, 1971. However,
in view of the unconditional apology
tendered by the concerned officer, which
is accepted, no further order is passed."

12. Even in the case of
Tarsem Singh
(Supra), the

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Supreme Court in paragraph Nos.4 to 8 has observed

as under:

"4. The principles underlying continuing
wrongs and recurring/ successive wrongs have
been applied to service law disputes. A
`continuing wrong' refers to a single wrongful
act which causes a continuing injury.
`Recurring/successive wrongs' are those which
occur periodically, each wrong giving rise to a
distinct and separate cause of action. This
Court in Balakrishna S.P. Waghmare vs. Shree
Dhyaneshwar Maharaj Sansthan - [AIR 1959 SC
798], explained the concept of continuing
wrong (in the context of Section 23 of
Limitation Act, 1908 corresponding to
Section 22

of Limitation Act, 1963) :

"31. It is the very essence of a continuing
wrong that it is an act which creates a
continuing source of injury and renders the
doer of the act responsible and liable for the
continuance of the said injury. If the wrongful
act causes an injury which is complete, there is
no continuing wrong even though the damage
resulting from the act may continue. If,
however, a wrongful act is of such a character
that the injury caused by it itself continues,
then the act constitutes a continuing wrong. In
this connection, it is necessary to draw a
distinction between the injury caused by the
wrongful act and what may be described as the
effect of the said injury."

5.
In
M. R. Gupta vs. Union of India
[1995 (5)
SCC 628], the appellant approached the High
Court in 1989 with a grievance in regard to his
initial pay fixation with effect from 1.8.1978.
The claim was rejected as it was raised after 11
years. This Court applied the principles of

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continuing wrong and recurring wrongs and
reversed the decision. This Court held :

"5. ...The appellant's grievance that his
pay fixation was not in accordance with
the rules, was the assertion of a
continuing wrong against him which gave
rise to a recurring cause of action each
time he was paid a salary which was not
computed in accordance with the rules. So
long as the appellant is in service, a fresh
cause of action arises every month when
he is paid his monthly salary on the basis
of a wrong computation made contrary to
rules. It is no doubt true that if the
appellant's claim is found correct on
merits, he would be entitled to be paid
according to the properly fixed pay scale
in the future and the question of limitation
would arise for recovery of the arrears for
the past period. In other words, the
appellant's claim, if any, for recovery of
arrears calculated on the basis of
difference in the pay which has become
time barred would not be recoverable, but
he would be entitled to proper fixation of
his pay in accordance with rules and to
cessation of a continuing wrong if on
merits his claim is justified. Similarly, any
other consequential relief claimed by him,
such as, promotion etc., would also be
subject to the defence of latches etc. to
dis-entitle him to those reliefs. The pay
fixation can be made only on the basis of
the situation existing on 1.8.1978 without
taking into account any other
consequential relief which may be barred
by his latches and the bar of limitation. It
is to this limited extent of proper pay
fixation, the application cannot be treated
as time barred........."

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6.
In
Shiv Dass vs. Union of India
- 2007 (9)
SCC 277 Paras 8 & 10), this Court held:

"8... The High Court does not ordinarily
permit a belated resort to the
extraordinary remedy because it is likely
to cause confusion and public
inconvenience and bring in its train new
injustices, and if writ jurisdiction is
exercised after unreasonable delay, it may
have the effect of inflicting not only
hardship and inconvenience but also
injustice on third parties. It was pointed
out that when writ jurisdiction is invoked,
unexplained delay coupled with the
creation of third party rights in the
meantime is an important factor which
also weighs with the High Court in
deciding whether or not to exercise such
jurisdiction.

10. In the case of pension the cause of
action actually continues from month to
month. That, however, cannot be a ground
to overlook delay in filing the
petition.......... If petition is filed beyond a
reasonable period say three years
normally the Court would reject the same
or restrict the relief which could be
granted to a reasonable period of about
three years."

7. To summarise, normally, a belated service
related claim will be rejected on the ground of
delay and latches (where remedy is sought by
filing a writ petition) or limitation (where
remedy is sought by an application to the
Administrative Tribunal). One of the exceptions
to the said rule is cases relating to a continuing
wrong. Where a service related claim is based
on a continuing wrong, relief can be granted
even if there is a long delay in seeking remedy,

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with reference to the date on which the
continuing wrong commenced, if such
continuing wrong creates a continuing source
of injury. But there is an exception to the
exception. If the grievance is in respect of any
order or administrative decision which related
to or affected several others also, and if the re-
opening of the issue would affect the settled
rights of third parties, then the claim will not
be entertained. For example, if the issue relates
to payment or re-fixation of pay or pension,
relief may be granted in spite of delay as it
does not affect the rights of third parties. But if
the claim involved issues relating to seniority
or promotion etc., affecting others, delay would
render the claim stale and doctrine of
laches/limitation will be applied. In so far as
the consequential relief of recovery of arrears
for a past period, the principles relating to
recurring/successive wrongs will apply. As a
consequence, High Courts will restrict the
consequential relief relating to arrears
normally to a period of three years prior to the
date of filing of the writ petition.

8. In this case, the delay of 16 years would
affect the consequential claim for arrears. The
High Court was not justified in directing
payment of arrears relating to 16 years, and
that too with interest. It ought to have
restricted the relief relating to arrears to only
three years before the date of writ petition, or
from the date of demand to date of writ
petition, whichever was lesser. It ought not to
have granted interest on arrears in such
circumstances."

13. For the aforesaid reasons, all these petitions are

allowed. The respondents are directed to see that the

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petitioners are sanctioned medical allowance and the

same is paid to the petitioners alongwith monthly

pension in accordance with the directions issued by

this Court in the case of Special Civil Application

No.12918/2010. That exercise shall be completed

within a period of two months from the date of receipt

of copy of the order and the payment should be made

with arrears from the date of filing of the petition.

Rule is made absolute to the aforesaid extent. Direct

Service is permitted.

(BIREN VAISHNAV, J)
VATSAL S. KOTECHA

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