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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
ANANT S. DAVE, BIREN VAISHNAV, JJ.
State of Gujarat & Others - Petitioners
Versus
Kalhans Harial Patel & Others - Respondents
R/Letters Patent Appeal No. 2259, 1357, 2180, 2260, 2261, 2263, 2264, 2265, 2266, 2267, 2268, 2269, 2270, 2271, 2272, 2273, 2274, 2275, 2276, 2277, 2278, 2279, 2280, 2281, 2282, 2283, 2284, 2291, 2292, 2293, 2294, 2295, 2296, 2297, 2298, 2299, 2300, 2301, 2302, 2303, 2304, 2305, 2306, 2307, 2308, 2412, 258, 811 of 2017, 94 of 2018, R/Special Civil Application No. 8764 of 2016, Special Civil Application No. 12356 of 2013, 10376, 10099, 10150, 10293, 10309, 11201, 12198, 12378, 14953, 15052, 15301, 15338, 6317, 7026, 7218, 7557, 7573, 8043, 8113, 9076, 9228 of 2015, 10822, 2183, 3047, 5006, 5007, 5008, 5009, 6465, 8756, 8757, 8758, 8760, 8761, 8762, 8763, 8766, 9602, 9603, 9604, 9605, 9606, 9607, 9609, 9627, 9629, of, 2016, 3250 of 2009, Civil Application (For Stay) No. 2, 1 of 2017, 1 of 2018
Decided On : 02-05-2019
Education and University – Employment and Service matter – Government Resolution – Bounty – Appointed on probation – Non-Government Aided Colleges – De novo process of selection – Pension Scheme for teaching staff in the non-government affiliated Colleges – Issue on respondents - Senior Citizens who have rendered selfless service in the academic field as members of the teaching and non-teaching staff have been deprived of their right of earning pension – Though, unequivocally held by catena of decisions of the Apex Court as well as this Court, which this judgment only reiterates, respondents – original petitioners have had no option other than to be compelled to litigate for their rights because the State which is considered as a model employer still resists their claim for pension on the ground that such members had not exercised their options for pension – It is averred by the petitioner that he had undergone the process of selection once again when he came to be appointed as a Professor on September 07, 1998. It is, thus, the say of the petitioner that he had joined the service after April 01, 1982 on due selection process – Petitioner would be covered under Clauses 4 and 6 of the Government Resolution dated October 15, 1984, which is made effective with effect from April 01, 1982 – It is further his say that his appointment as reader and Professor in the respondent-College is a new and fresh appointment approved by the State Government and on respective posts of Reader and Professor, as the appointment was made prior to April 01, 1982, this would amount to recruitment and the pension scheme would automatically be effective in the case of the petitioner – Whether respondent no.1 can be said to have joined service on 01-10-1984 as is contended by the learned advocate for respondent no.1 or whether he should be deemed to have been in service right from 1964 so as to require him to exercise his option pursuant to Government Resolution – Held, Perusing the said resolution, it would be very clear that the same is made effective from 1.4.1982 and was applicable to Affiliated Aid Non-Government Arts, Science, Commerce and Education Colleges in the State, however, the same was not applicable to affiliated Engineering Colleges to various Universities in the State – Service history of the petitioner can be summarized in tabular manner – Held, So far as width and amplitude of Clause 6 of Government Resolution is concerned, it confers benefits upon an employee of all previous service whether temporary, officiating or permanent either in one or more than one non-government aided Colleges, University, Higher Secondary School who are being paid grant-in-aid from Government shall be taken into account for computing the length of qualifying service for pension under this scheme – If the above clause is made applicable to the petitioner, service rendered in College of Engineering as Assistant Lecturer and even, subsequent service as a Lecturer in the S.V.R. College of Engineering and Technology are to be counted since the above two colleges are recognised colleges and in view of service rendered in Non-Government Aided Colleges of the State of Gujarat and Union of India can be considered for qualifying service for pension and calculation of pensionable qualifying service by two offices of respondent Nos. 1 and 5 at the time of accepting application for voluntary retirement of the petitioner was just and proper and cannot be brought within the preview of Rule 41 (1) (a) of the Pension Rules, to deny pension to the petitioner, on the ground that the petitioner had not rendered any service in a pensionable establishment – clear from the plain reading of clause 6 that clause 6 does not distinguish employees rendering service in a pensionable or non-pensionable establishment and on the contrary it covers all kinds of services even temporary or officiating rendered in Non-Government Aided Colleges – Even otherwise, no material contrary exist to show that the above two colleges were non-pensionable establishment – It can be safely concluded from the above, that the basic purpose of Clause 6 is to complete minimum years of qualified pension service for all existing and recruited employees before 1.4.1982 and retired between 1.4.1982 to 15.10.1984 and recruited after 1.4.1982, like the petitioner, clause 6 cannot be pressed into service for exercising option for the scheme by both pre and post 1.4.1982 recruitees, otherwise even clause 4 will be rendered nugatory – At the same time, failure to exercise an option on the part of post 1.4.1982 recruitee, making him vulnerable for benefits of previous services as per clause 6, will be against the spirit and object of the scheme and will be creating artificial, arbitrary and discriminatory dividing line amongst university teaching staff not found in clause 6 – Not obligatory at all upon the petitioner to exercise option as per subsequent G.R. view of the fact that the petitioner was automatically governed by pension scheme by G.R. dated 15.10.1984 – At the same time there is no break of service of the petitioner from 22.7.1968 to 30.11.2000 and, therefore, rest of contents of clause 6 are not to be gone into – Order accordingly. (Para 13 to 16)
BIREN VAISHNAV, J.
1. Pension is not a ‘bounty’. Several rounds of litigation, though have concluded the issue on hand, present respondents - Senior Citizens who have rendered selfless service in the academic field as members of the teaching and non-teaching staff have been deprived of their right of earning pension. Though, unequivocally held by catena of decisions of the Apex Court as well as this Court, which this judgment only reiterates, respondents – original petitioners have had no option other than to be compelled to litigate for their rights because the State which is considered as a model employer still resists their claim for pension on the ground that such members had not exercised their options for pension.
2. In these batches of appeals before us, judgments rendered in four separate batches of petitions filed by the original petitioners – teaching/non teaching staff of different educational institutions are under challenge before us. They are :
(I) Letters Patent Appeals No. 258 of 2017, 811 of 2017 and 1357 of 2017 arising out of a judgment rendered by a learned Single Judge (Coram : Hon’ble Ms. Justice Sonia Gokani) dated 03.02.2016.
(II) Letters Patent Appeal No. 2412 of 2017 arising out of the judgment of the learned Single Judge (Coram : Hon’ble Mr. Justice N.V. Anjaria) dated 01.08.2016.
(III) Letters Patent Appeals No. 94 of 2018, 2180 of 2017, 2291 to 2308 of 2017 arising out of the judgment of the learned Single Judge (Coram : Hon’ble Mr. Justice J.B. Pardiwala) dated 29.06.2017.
(IV) Letters Patent Appeal No. 2259 of 2017 and Letters Patent Appeals No. 2260 & 2261 of 2017 with Letters Patent Appeal No. 2263 of 2017 to Letters Patent Appeal No. 2284 of 2017 arising out of the judgment of the learned Single Judge (Coram : Hon’ble Ms. Justice Sonia Gokani) dated 11.07.2017.
3. The facts of the respective lead petitions as set out by the learned Single Judges in their respective judgments are reproduced herein-below, in order to avoid duplicity.
3.1 In Letters Patent Appeals where the order dated 03.02.2016 is under challenge, the lead petition was Special Civil Application No. 14953 of 2015, the facts of which are as under:
“3. The petitioner joined his services as Tutor Demonstrator in the Science College on April 10, 1970 on completion of due process of selection. He had applied for the post of Lecturer advertised by the Gujarat University and was, accordingly, appointed on June 15, 1982.
4. Pursuant to the advertisement of the Gujarat University for filling in the vacant posts of Readers in the School of Science, once again, he was required to undertake the entire selection process. After completion of the said de novo process of selection, he was initially appointed on probation period of two years vide order dated July 07, 1990. The appointment was given to him specifically mentioning that the GPF, Pension and other benefits are admissible.
5. It is averred by the petitioner that he had undergone the process of selection once again when he came to be appointed as a Professor on September 07, 1998. It is, thus, the say of the petitioner that he had joined the service after April 01, 1982 on due selection process. Therefore, the petitioner would be covered under Clauses 4 and 6 of the Government Resolution dated October 15, 1984, which is made effective with effect from April 01, 1982. It is further his say that his appointment as reader and Professor in the respondent-College is a new and fresh appointment approved by the State Government and, therefore, on the respective posts of Reader and Professor, as the appointment was made prior to April 01, 1982, this would amount to 'recruitment' and the pension scheme would automatically be effective in the case of the petitioner.
6. By way of the said Government Resolution dated October 15, 1984, a scheme was introduced for Teaching and non-Teaching Staf
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