IMPORTANT POINT
The main legal point established in the judgment is that entitlement to notional service for calculating pensionable service is determined by the specific provisions of the relevant pension rules, and not all cases may qualify for such benefits.

JUDGMENT :

1. The petitioner has preferred present petition under Articles 14 and 16 of the Constitution of India and challenged impugned letter of the respondent dated 24.4.2007, seeking below mentioned relief/s:-

“12(A) Quashing and setting aside the letter of respondent dated 24.4.2007 and directing the respondents that as per new G.C.S.R. (Pension (rule 2002 rule 37 (1) to add 10 years notional service to the pensionable service of the petitioner and to revise his pensionary benefits and to pay the arrears with 10% interest.

12(B) Alternatively the respondent no-1 directed to rectify the mistake of G.C.S.R. rule 2002(pension) directed to add in the list below rule 37(1) in favour of the officers of charity organisation including petitioner for notional benefit of 10 years as it is maximum benefits of notional pension, and mean while directing the Respondents to add five years notional service to the pensionable service of the petitioner and to revise his pensionary benefits and to pay the arrears with 10% interest.

(C) directing the Respondents to grant interest at the rate of 10% on the amounts of pension, gratuity and commuted pension from 1.12.2005 to 20.2.2008 to the petitioner.

(D) During the pendency and final disposal of this petition, the Respondents may be directed to re-fix the pensionary benefits of the petitioner by adding five years notional pensionable service.

(E) to grant such other and further relief's as may be deemed fit."

2. The facts giving rise to present petition are that the petitioner was initially appointed as Assistant Charity Commissioner on 1.12.1982 and thereafter, promoted to the post of Deputy Charity Commissioner on 13.8.1999. Thereafter, he was directly appointed to the post of Joint Charity Commissioner from 24.6.2003 till his retirement on 30.11.2005 on superannuation.

2.1 At the time of retirement, a controversy arose whether the petitioner is entitled to count five years service notionally as per Rule 284 of the Bombay Civil Services Rules for calculating the pensionable service or not. Ultimately, by letter dated 24.4.2007, the State Government decided that the petitioner was not entitled to notional five years of service as per Rule 37 of the Gujarat Civil Services (Pension) Rules 2002.

2.2 Hence, the petitioner has challenged the above action on the part of the Respondents as being illegal unreasonable and in violation of fundamental rights under Articles 14 and 16 of the Constitution of India.

3. I have heard Mr. J.I. Antani, learned Counsel for the petitioner and Ms. Dharitri Pancholi, learned Assistant Government Pleader for respondent Nos. 1 and 2.

4. Mr.J.I. Antani, learned Counsel for the petitioner has submitted that during pendency of present petition, the petitioner has passed away and his legal heirs are joined as party petitioners to the proceedings.

4.1 Mr. J.I. Antani, learned Counsel for the petitioner has submitted that the petitioner has completed almost 22 years and 11 months of service and considering the qualifying service, as per Old Rule 284 of the Bombay Civil Services Rules ("B.C.S.R." for short), the notional period is to be counted, at the time of calculating the total month of service of 33 years, for full pensionable service. Mr. J.I. Antani, learned Counsel for the petitioner has further submitted the petitioner is entitled to get the benefits under Old Rule 284 of B.C.S.R.. The said Old Rule 284 of B.C.S.R reads as under:-

"284. (a). The scales of pensions prescribed by rule 282 are applicable to the superannuation pensions of all government servants subject to these rules.

(b). An addition may be made for the purpose of calculating superannuation pension to the duty performed in the following cases.

(i). A government servant who entered government service on or before the 3rd August, 1931 and has no break in his service since that date and whose what pensionable service has been rendered in one or other of the posts and services included in Appendix XI m