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2022 Supreme(Guj) 652
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
A.S. SUPEHIA, J.
GHANSHYAM ARVINDBHAI BHATT – Petitioner
Versus
STATE OF GUJARAT – Respondent
Special Civil Application Nos. 14389, 14390 of 2011, 12863 of 2013
Decided On : 25-02-2022
Advocate Appeared:
For the Petitioners: MOHAMMED K. VOHRA, HARSHADRAY A. DAVE, HARSH K. RAVAL.
For the Respondents: ROHAN N. SHAH, S.N. SHELAT, VIKAS V. NAIR.
Headnote:
Gujarat University Act, 1949 - Section 53 - Payment of pension or retirement benefits - Retired from service - benefit of pension - Petitioners are paid the benefit of 6th Pay Commission by University benefit of 7th Pay Commission is also given - Petitioners, who have retired from service are denied the pension by the respondent-University State Government has refused to grant pension to the petitioners, for the reason that their initial appointment which was done in have been done without taking any approval from State Government - It is also neither disputed by the respondent-University nor by the State Government that all petitioners are appointed after following due process of selection and as per the Recruitment Rules only predicament which is coming in the way of the claim of pay-scale as well as pension is that University did not seek any approval from State Government before appointing them - Petitioners, who have rendered more than 30 years of service and have retired from the service, are denied the benefit of pension for the aforesaid reason. It is also not in dispute that the petitioners were conferred the benefits of 4th and 5th Pay Commissions by the State Government, however the benefits of 6th and 7th Pay Commissions have been conferred by the University from its own funds – Held, Court has expressed that State cannot be take benefit of its own wrong doing and deny pension to the employee, who has rendered his Advocate Appeared :-hoc service for more than 30 years. It is pertinent to note that the order passed in Special Civil Application by the Coordinate Bench after resorting to the provision of Rule 25 of Pension Rules and conferring the benefit to an employee who has rendered 30 years of Advocate Appeared :-hoc was subject matter of challenge and it is confirmed by the Division Bench of this Court and the Apex Court - settled proposition of law, that even an Advocate Appeared :-hoc employee, who has been continued for considerable long period cannot be denied pension merely because he/she was continued as such and the State Government or the authorities cannot take the benefit of their own wrong - Case of petitioners stand on better footing petitioners have honestly and diligently rendered their services and after retirement they are denied pension and retirement benefits only for the sole reason that University has not taken any approval from the State Government - Neither University has made any efforts for taking approval from State Government nor the State government before approving the pay scales of the petitioners has raised any objections - State Government is directed to grant the same to the petitioners - It is clarified that it will be open for State Government to initiate appropriate process, after conferring the said benefits to the petitioners to recover the same or to adjust the same from the grant given to the University - Clarified that such action can only be taken after appropriate consultation with the respondent-University keeping in mind that the initial appointment of the petitioners cannot be said to be illegal or against provisions of law since all petitioners have undergone the regular recruitment process - pension and retirement benefits shall be passed within a period of three months from date of receipt of writ of this Court - It is clarified that it will be open for State Government to examine the case of each of petitioners and only in such case if it is found that the appointment is made without following any recruitment process or illegally, State may deny such benefit - Writ petitions are allowed.
JUDGMENT :
A.S. SUPEHIA, J.
1. The present group of petitions have been filed seeking benefits of 6th Pay Commission, Pension and other retirement benefits. With regard to the prayers of 6th Pay Commission; the parties are ad idem that the same has been paid by the respondent-University to the petitioners. It is reported that some of the petitioners are still serving and some of them have retired from service. All the petitioners and the members of the Union i.e. Gujarat University General Employees Union, are/were appointed as Class-III and Class-IV (non-teaching staff) in the respondent-Gujarat University.
2. It appears that during the pendency of these petitions, the petitioners are paid the benefit of 6th Pay Commission by the University and subsequently, the benefit of 7th Pay Commission is also given. However, those petitioners, who have retired from service are denied the pension by the respondent-University, since the State Government has refused to grant pension to the petitioners, for the reason that their initial appointment which was done in the year 1983 to 2002, have been done without taking any approval from the State Government. It is also neither disputed by the respondent-University nor by the State Government that all the petitioners are appointed after following due process of selection and as per the Recruitment Rules, however, the only predicament which is coming in the way of the claim of pay-scale as well as pension is that the University did not seek any approval from the State Government before appointing them. Thus, the petitioners, who have rendered more than 30 years of service and have retired from the service, are denied the benefit of pension for the aforesaid reason. It is also not in dispute that the petitioners were conferred the benefits of 4th and 5th Pay Commissions by the State Government, however the benefits of 6th and 7th Pay Commissions have been conferred by the University from its own funds.
3. Vide resolution dated 15.01.2020, which is impugned in Special Civil Application No. 12863 of 2013, the State Government has conferred the benefits of 4th and 5th Pay Commissions, subject to condition No. 4, which states that such benefits of 4th and 5th Pay Commissions would not give rise to claim of 6th Pay Commission as well as pension and retirement benefits.
4. Being aggrieved by the said condition, the petitioners have challenged the said Resolution. It appears that during the pendency of these petitions, in view of the interim order passed by this Court directing the State Government to reconsider the case and after reconsidering it, the State Government has issued Resolution dated 14.08.2012 reiterating its stand of denying the benefit of 6th Pay Commission for the reason that no approval was taken by the University before appointing the petitioners. It is also incorporated that if any benefits are extended to the petitioners, the employees who are irregularly appointed by the other Universities will also claim pension which will create burden on the exchequer of the State Government.
5. Thus, the only issue which requires examination is with regard to the payment of pension or retirement benefits to those employees who have retired from services. Since the benefits of 6th and 7th Pay Commissions are already conferred by the University to the petitioners, who are in service, it is clarified that in case the University has not extended the benefits of 6th and 7th Pay Commissions to any of the petitioners, the same shall be extended to such class of persons, since the other petitioners have been extended the benefits by the University.
6. Learned advocates Mr. Harsh K. Raval and Mr. Mohammed K. Vohra, appearing for learned advocate Mr. Harshadray Dave, for the petitioners have placed reliance on the Statue 180-C of Chapter-16 of the Gujarat University Handbook, which is issued and farmed under Section 53 of the Gujarat University Act, 1949 in support of their submissions. It is submitted that
