JUDGMENT

1. Heard Mrs. Nasrin Shaikh, learned Advocate appearing on behalf of Mr. Pankaj R. Desai, learned Advocate for the petitioners, Mr. Kirit Patel, learned Advocate appearing on behalf of Mr. H. S. Munshaw, learned Advocate for the respondent No.1 and Ms. Dhruti Pandya, learned Assistant Government Pleader for the respondent Nos.2 & 3.

2. The present writ petition is filed under Article 226 of the Constitution of India, seeking the following reliefs:

“A) Your Lordship may be pleased to issue a appropriate writ – order – direction directing the Respondent No.1 to 3 to forthwith grant benefits udder the Resolution of State of Gujarat, P.G.R. - 1009 - 5 - pay cell (M) Dt.13/04/2009 and grant pension benefits from the date of superannuation (30/06/2017)

B) Your Lordship pleased to direct the Respondents to produce before this Hon'ble Court the calculation of amount of pension which petitioner is entitled as per the Govt. notifications, pending the admission, hearing and final disposal of this petition.

C) Your Lordship may pass such other and further order or as may be deemed just and proper in the facts and circumstances of the present case.”

3. At the outset, it is required to be noted here that though there is a reference of the resolution of the State of Gujarat dated 13.04.2009 made in the prayer clause, but the same is not submitted with this petition. Upon inquiry, Mrs. Shaikh, learned Advocate, was unable to reply as she is not aware about the same.

4. Be that as it may, it is the case of the original petitioner that he was a permanent employee of the respondent-Corporation and entitled to receive pension. Whereas, the respondent- Corporation has filed the reply opposing this petition, wherein, it is categorically stated that the petitioner was appointed as a daily wager and he was put in regular pay scale only on 07.02.2006, thereby, he is not entitled to receive any benefit of the provisions of the Gujarat Civil Service (Pension) Rules, 2002. The relevant portion of the reply needs reference, which is reproduced hereinbelow:

“4. The Respondent No. 1 humbly states that the prayer for pensionary benefits may not be entertained as the provisions of Gujarat Civil Service (Pension) Rules, 2002 are not applicable in case of the petitioner herein who is taken up as a driver in a regular pay scale only on 7th February, 2006 and prior thereto he was a daily wager. It is submitted that as such prior to appointment of the petitioner in a regular pay scale meant for a cadre of driver, a New Pension Scheme has come into force w.e.f. 01.04.2005 and the same is adopted by Rajkot Municipal Corporation and copies of appointment order dated 07.02.2006 passed in favour of the petitioner as well as Resolution are annexed herewith and marked as Annexure-A & B respectively. In other words, Gujarat Civil Service (Pension) Rules, 2002 are not applicable in case of present petitioner as New Pension Scheme is come into force in 2005 and therefore, the petitioner is not entitled to the benefit of Gujarat Civil Service (Pension) Rules, 2002.”

5. There is no rejoinder filed against the same.

6. In light of the aforesaid facts, when the petitioner was put in regular pay scale after coming into force of the New Pension Scheme, which came into effect from 01.04.2005, the claim of the petitioner to receive any pensionary benefits as per the aforesaid provisions of law would not be sustainable.

7. Nonetheless, when the stance taken by the respondent- Corporation that the new pension scheme has come into force w.e.f. 01.04.2005 and the original petitioner was put in a regular pay scale from 07.02.2006, if he was a part of the New Pension Scheme, it is the duty of the respondent-Corporation to give benefit of such scheme.

8. It is open for the legal heirs of the original petitioner to make suitable representation in this regard before the respondent Corporation. Once such representation w