2022 Supreme(Guj) 601

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
BHARGAV D. KARIA, J.
Godhara Sarvjanik Shikshan Mandal & 1 other - Appellant
Versus
State Of Gujarat & 3 others – Respondents
R/Special Civil Application No. 10850 of 2017 With Civil Application (For Vacating Interim Relief) No. 1 of 2018 Civil Application (For Direction) No. 1 of 2020
Decided on : 10-06-2022

The main legal point established in the judgment is that the respondent No.4 is entitled to pension benefits as her application for voluntary retirement ought to have been accepted in the year 2003 itself. The impugned orders passed by the respondent-authorities are in consonance with the services rendered by the respondent No.4 and respondent No.4 cannot be denied the pension benefits only on the ground that respondent No.4 has persuaded the matter of entitlement to the pension benefits belatedly after a gap of 07 years in the year 2010.

Headnote:

DELAY AND LACHES - PENSION BENEFITS - SECTION 36(4) OF THE GUJARAT SECONDARY AND HIGHER SECONDARY EDUCATION ACT, 1972 - The court held that the respondent No.4 is entitled to pension benefits as her application for voluntary retirement ought to have been accepted in the year 2003 itself. However, the same was rejected because the relevant details of the service rendered from 1974 to 1976 was not made available to the competent authority. The impugned orders passed by the respondent-authorities are in consonance with the services rendered by the respondent No.4 and respondent No.4 cannot be denied the pension benefits only on the ground that respondent No.4 has persuaded the matter of entitlement to the pension benefits belatedly after a gap of 07 years in the year 2010. The fact remains that the respondent No.4 has completed the qualifying service for granting retirement for sanction of the voluntary retirement as per the impugned orders passed by the competent authorities. In such circumstances, as held by the Apex Court in case of Asger Ibrahim Amin vs. Life insurance Corporation of India(supra), the respondent No.4 cannot be deprived of pension benefits as the commendable objective of the Pension Rule is to extend the benefits to a class of people to tide over the crisis and vicissitudes of old age, and if there are some inconsistencies between the statutory provisions and the avowed objective of the statute so as to discriminate between the beneficiaries within the class, the end of justice obligates the Court to palliate the differences between the two and reconcile them as far as possible. It was therefore observed by the Apex Court that it is duty of the Court to go by the letter and not by the laudatory spirit of statutory provisions and the fundamental rights guaranteed under Article 14 of the Constitution of India. In the facts of the case, respondent No.4 did not tender the resignation in-person before the District Education Officer as she had sent such resignation from USA and therefore, as per the sub-section (4) of section 36 of the Act,1972 there is no valid resignation tendered by the petitioner. Section 36(4) of the Act,1972 reads as under: "36. Dismissal, removal and reduction in rank of certain persons. (4) Where a head-master, a teacher or a member of the non-teaching staff of a registered private secondary school desires to submit his resignation, the resignation shall be tendered by him in person to the District Education Officer concerned and shall not be accepted by the manager unless it is so tendered and forwarded to him by such officer duly endorsed. The acceptance of any such resignation tendered in contravention of this sub-section shall be ineffective." It is also not emerging from the record that the resignation which was received by the District Education Officer and forwarded to the petitioner was ever accepted by the petitioner. Thus, there is no acceptance of the resignation tendered by the respondent No.4. As held by the Apex Court in case of State of Himachal Pradesh vs. Rajesh Chander Sood and others reported in (2016) 10 SCC 77 as well as in case of Deokinandan Prasad vs. State of Bihar reported in (1971) 2 SCC 330, the pension is not a bounty and right to receive pension be treated as a right to property and therefore, the impugned orders passed by the competent authority granting sanction to the voluntary retirement with retrospective effect is in accordance with the settled legal position.

Fact of the Case:

The petitioner No.1 is a Public Charitable Trust registered under the provisions of Bombay Public Trust Act, 1950 and the Society Registration Act, 1860. The petitioner No.1 runs various institutions at Godhra. The petitioner No.2 is a school run by the petitioner No.1-Trust. Respondent No.4 was initially appointed in the New Era High School, Godhra run by the petitioner-Trust, as Teacher which was run by the Godhra Sarvajanik Sikshan Mandal. The respondent No.4 thereafter shifted to Morbi and left her services but thereafter, returned to Godhra in the year 1979 and requested the petitioner No.1 to appoint her as teacher in any other school. Considering her request, respondent No.4 was appointed as teacher with the petitioner No.2-School w.e.f. 03.12.1979. Respondent No.4 served in the petitioner No.2-School up to the year 1997 and thereafter left the service and settled in the USA. In the year 2000, respondent No.4 requested for voluntary retirement from service. However, the said request was rejected by the respondent-authorities as it was found that the petitioner did not complete the pensionable service period of 20 years as the details of her previous service from the year 1974 to 1976 were not available. Respondent No.2, by letters dated 21.01.2003 and 02.07.2003, rejected the proposal of the respondent No.4 for voluntary retirement. Respondent No.4 thereafter sent an application dated 12.05.2003 to respondent No.3-District Education Officer for tendering her resignation from the services w.e.f. 16.02.1998 in her own handwriting which was forwarded on 24.06.2003 to the petitioner No.2. It appears that thereafter the respondent No.4 by applications dated 18.01.2010 and 03.02.2010 addressed to the petitioner No.1 requested to grant pension and retirement benefits on the ground of voluntary retirement considering her total service of 20 years including the service during the period from 1974 to 1976. Respondent No.2 thereafter sent the applications along with proposal for considering the case of the respondent No.4 to the respondent-authorities for payment of pension and correspondence continued from 2010 to 2016. The respondent No.4 thereafter preferred Special Civil Application No. 4482 of 2016 before this Court which was disposed of by order dated 22.03.2016 with the observation that if the service of the petitioner from 09.07.1974 to 14.06.1976 would be considered, she has completed 20 years of service for the purpose of voluntary retirement and it was directed to take appropriate decision in accordance with law within a period of four weeks from the date of receipt of the order. The respondent No.4 thereafter preferred various representations before the respondent-authorities to consider the representation of the respondent No.4. The respondent No.4 also preferred contempt petition being Misc. Civil Application No. 697 of 2017. It appears that pursuant to the notice issued in the contempt petition, the respondent No.1-Education Department passed an order dated 24.04.2017 to consider the service of the respondent No.4 from 09.07.1974 to 14.06.1976 as part of the total service and calculated the service rendered by the respondent No.4 for 20 years 01 month and 19 days and voluntary retirement of the respondent No.4 was sanctioned with retrospective effect. Thereafter, by order dated 26.04.2017, the respondent No.2- Commissioner of School directed the District Education Officer to implement the order dated 24.04.2017 and by order dated 27.04.2017, the District Education Officer directed petitioner No.2 to prepare and forward the pension papers of respondent No.4. The petitioners therefore being aggrieved by the impugned orders have preferred this petition with the aforesaid prayers.

Finding of the Court:

The court found that the respondent No.4 is entitled to pension benefits as her application for voluntary retirement ought to have been accepted in the year 2003 itself. However, the same was rejected because the relevant details of the service rendered from 1974 to 1976 was not made available to the competent authority. The impugned orders passed by the respondent-authorities are in consonance with the services rendered by the respondent No.4 and respondent No.4 cannot be denied the pension benefits only on the ground that respondent No.4 has persuaded the matter of entitlement to the pension benefits belatedly after a gap of 07 years in the year 2010. The fact remains that the respondent No.4 has completed the qualifying service for granting retirement for sanction of the voluntary retirement as per the impugned orders passed by the competent authorities.

Issues: The issues in the case revolved around the entitlement of the respondent No.4 to pension benefits, the validity of the resignation tendered by the respondent No.4, and the delay and laches in pursuing the matter of entitlement to pension benefits.

Ratio Decidendi: The court held that the respondent No.4 is entitled to pension benefits as her application for voluntary retirement ought to have been accepted in the year 2003 itself. However, the same was rejected because the relevant details of the service rendered from 1974 to 1976 was not made available to the competent authority. The impugned orders passed by the respondent-authorities are in consonance with the services rendered by the respondent No.4 and respondent No.4 cannot be denied the pension benefits only on the ground that respondent No.4 has persuaded the matter of entitlement to the pension benefits belatedly after a gap of 07 years in the year 2010. The fact remains that the respondent No.4 has completed the qualifying service for granting retirement for sanction of the voluntary retirement as per the impugned orders passed by the competent authorities.

Final Decision: The petition is dismissed and the respondent authorities are directed to pay the pension to the respondent No.4 within a period of Eight weeks from the date of receipt of this order. No order for interest is passed.