Ahmadabad, May 05: In R/SPECIAL CIVIL APPLICATION NO. 15908 of 2018 With CIVIL APPLICATION (FOR BRINGING HEIRS) NO. 1 of 2023 In R/SPECIAL CIVIL APPLICATION NO. 15908 of 2018 titled NARAN DEVASHI MEHESHWARI & ANR. Versus STATE OF GUJARAT & ORS after hearing a bench of HONOURABLE MR. JUSTICE NIKHIL S. KARIEL ordered as under:-
1. Heard learned advocate Ms.Reena Kamani for learned advocate Mr.P.H.Pathak on behalf of the petitioners, learned Assistant Government Pleader Mr.Sahil Trivedi on behalf of the respondent – State and learned advocate Mr.H.S.Munshaw on behalf of the respondent no.3.
2. By way of this petition, the petitioner has sought for the following reliefs:- “(A) The Hon’ble Court be pleased to issue a writ of mandamus or any other appropriate writ, order or direction, declaring the inaction on the part of the respondents in releasing the amount of pension & other retirement benefits to the petitioner as illegal, unjust, arbitrary and violative of Art.14 of the Constitution of India and hence, be pleased to deprecate the same by directing the respondents to pay the amount of pension and other retirement benefits to the petitioner from retrospective date with 12% interest etc etc.
3. It is the case of the petitioner that the period of service put in by the husband of the petitioner prior to his regularization under the policy of the Government Resolution dated 17.10.1988 having not been considered for the purpose of pension and other retiral benefits, the petitioner has filed the present petition.
4.1. It would appear that the husband of the petitioner was appointed as a daily wager with the respondent no.3 on 18.04.1993 and whereas, from the said date, he had worked up to 28.02.2014 and in the interregnum, the husband of the petitioner has put-in 15 years where he has completed 240 days. It also appears that while the period from 01.04.2009 to 28.02.2014 was counted for the purpose of pension, but, since the husband of the petitioner has not put in the minimum qualifying service, therefore, he was not paid any pension as such.
4.2. As a matter of fact, paragraph no.6 of the affidavit-in reply reads thus:- “6. The respondent no.3 submits that as such the petitioner herein had served as daily wager between 18.04.1993 to 28.02.2014 and has put in service of 240 days per year for in all 15 years.
It is submitted that as per the provisions of the Government Resolution dated 17.10.1988, initial 10 years of service prior to grant of benefits flowing from Government Resolution dated 17.10.1988 are not to be counted and a copy of Government Resolution dated 17.10.1988 issued by Roads and Building Dept is annexed herewith and marked as Annexure-E. Resultantly, service of 5 years i.e. 01.04.2009 to 28.02.2014 is to be counted for the purpose of pension but as he has not put in minimum qualifying service of 10 years as per the provisions of Gujarat Civil Service (Pension) Rules, 2002, he is not entitled to pensionary benefits as per the decision of Director of Pension and Provident Fund, Gujarat State, Gandhinagar.”
5. In the considered opinion of this Court, the stand taken by the respondents prior to the date of regularization is not to be counted, is no more an issue which is res integra.
A learned Coordinate Bench of this Court in case of Samudabhai Jyotibhai Bhedi vs. Executive Engineer, reported in 2017 (4) GLR 2952 has inter alia held that period prior to the date of regularization where the employee has put-in 240 days for a period of 10 years is required to be counted for the purpose of pension and other retiral benefits. Paragraph nos.11, 12 and 13 of the said decision being relevant for the present purpose, are quoted hereinbelow for benefit:- “11. In the past, same or similar issues have traveled to the Division Benches in Letters Patent Appeals.......
6. Considering the issue from the perspective of the law laid down by this Court, it would appear that the stand taken by the respondents is completely erroneous and de hors the settled principle. Under such circumstances, while the husband of the petitioner is deemed entitled for the benefits, while this Court ought to have taken some actions against the respondents for filing such affidavits which are contrary to the provisions of law, but, taking a lenient view more particularly in view of the submissions made by learned advocate Mr.Munshaw that proposal would be sent in a short period for grant of benefits, therefore, this Court refrains itself.
7. In this view of the matter, more particularly since the issue not requiring any further elaboration, the following directions are passed:-
(i) The period put-in by the husband of the petitioner prior to 01.04.2009 where he has put-in 240 days in each year shall be counted along with the total length of service put-in by the husband of the petitioner and whereas all dues including pensionary dues and other terminal dues shall be paid to the petitioner, if the petitioner is so entitled.
(ii) Appropriate computation and consequent grant of benefits shall be carried out by the respondents within a period of eight weeks from the date of receipt of this order.
(iii) In case the above directions are not complied with within a period of eight weeks, then the petitioner shall be entitled to claim interest on arrears from the date of entitlement at the rate of 6%.
8. With the above observations and directions, the present petition stands disposed of as allowed. Consequently, civil application stands disposed of.
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