JUDGMENT :

Biren Vaishnav, J.

1. With the consent of the learned advocates for the respective parties, the present petition is taken up for final hearing.

2. RULE returnable forthwith. Mr. Kurven Desai learned AGP waives service of notice of Rule for the respondent State.

3. Heard Mr. Rushabh Munshaw learned advocate for Mr. H.S. Munshaw learned advocate for the petitioner and Mr. Kurven Desai learned AGP for the respondent State.

4. This petition under Article 226 of the Constitution of India, the prayer of the petitioner is to quash and set aside the impugned decision dated 13.01.2009 issued by the respondent no. 3 and after for a direction to hold that the petitioner is entitled to receive retirement benefits of pension under the provisions of the Gujarat Civil Services (Pension) Rules as he has served for 10 years.

5. Admittedly, from the facts on hand, it is evident that the petitioner does not satisfy the immediate stipulation of 10 years of service in accordance with Rule 80(2) of the said Rules. The petitioner has put in 9 years, 8 months and 29 days of service.

6. Mr. Munshaw learned counsel for the petitioner would rely on a decision of this Court in Special Civil Application No. 3727 of 2018 dated 08.04.2019. Referring to the case on hand, learned counsel Mr. Munshaw would submit that in that case the petitioner had completed 9 years, 9 months and 13 days of service. In that context, the petitioner was constrained to approach this Court.

7. Relying on Rule 80(3) of the Pension Rules of 2002, Mr. Munshaw would submit that in calculating the month of qualifying service, fraction of year equal to six months above shall be treated as a complete year and as qualifying service. The Court considering such position and referring to the decisions in the earlier petitions, in Special Civil Application No. 3727 of 2018 has passed the order, relevant paragraphs of which, read as under:

"5. Rule 80(3) of the aforesaid Rules provides as under.

"80. Amount of Service Gratuity/Pension:

(1) … … …

(2) … … …

(3) In calculating the length of qualifying service, fraction of a year equal to six months and above shall be treated as a complete year and reckoned as qualifying service.

(4) … … …

5.1 Therefore, under the aforesaid Rule 80(3), expressly contemplates that fraction upto six months would be counted as full year. The benefit of this rounding of is required to be extended to the petitioner, who has to his credit nine years and nine months plus days service, thus deficiency of less than one month, which could be well treated by rounding of to make a complete year.

5.2 In Union of India v. Surender Singh Parmar [(2015) 3 SCC 404] the Supreme Court applied principle of rounding of.

5.3 In Navinbhai Ramanbhai Amin v. State of Gujarat being Special Civil Application No. 2681 of 2012, in which the similar issue had arisen. Pension was denied to the petitioner of the said petition on the ground that his tenure of service was less than 10 years. The Court observed thus referring to Rule 80(3) of the Rules,

"9. The Court is unable to accept the contention of learned AGP qua non-applicability of the rule in view of the Rule 80(2) of the Rules. The entire Rule 80 of the Rules is required to be appreciated, which clearly indicated that while reckoning the services for considering the granting of pension, the period of 10 years is to be counted as provided under Rule 80(3) of the Rules and if that rule is attracted and is required to be attracted then, petitioner cannot be said to be falling short of eligibility of the pension and therefore, the petitioner's service is required to be considered as pensionable in accordance with the said Rules and considering 10 years' service, the pension is admissible to the Government Servant put in 10 years' service. Hence, the pension is admissible to the petitioner and the petition is required to be allowed."

5.4 The position of law as emanating from Rule 80(3) as from the decision referred to above is amply clear.

6. Resul