JALUJI VIRAMSINH VAGHELA vs DIRECTOR OF PENSION AND PROVIDENT FUND
- Court
- Gujarat High Court
C/SCA/13972/2026 JUDGMENT DATED: 03/11/2026
(GJHC240730272026)
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 13972 of 2026
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE NIRAL R. MEHTA
==========================================================
Approved for Reporting Yes No
✔
==========================================================
JALUJI VIRAMSINH VAGHELA
Versus
DIRECTOR OF PENSION AND PROVIDENT FUND & ORS.
==========================================================
Appearance:
MR SAMARTH S AMIN(8897) for the Petitioner(s) No. 1
MS POOJA ASHAR AGP for the Respondent(s) No. 1,4
MR VISHRUT JANI ADVOCATE FOR RC JANI & ASSOCIATE(6436) for the
Respondent(s) No. 2,3
==========================================================
CORAM: HONOURABLE MR. JUSTICE NIRAL R. MEHTA
Date : 03/11/2026
ORAL JUDGMENT
[1] Heard learned advocate Mr. S. S. Amin for the
petitioner, learned AGP Ms. Pooja Ashar for the respondent No.1
and 4 - State and learned advocate Mr. Vishrut Jani for RC Jani &
Associates for the respondent No.2 & 3.
[2] In the normal course, while it would have been
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effortless for this Court to have decided the present petitions, more
particularly considering decision of this Court dated 03.11.2023 in
Special Civil Application No.19350 of 2024 and allied matters,
which were in the group of the petitions, where identical reliefs
were sought for, yet since attention of this Court has been drawn to
an order of the learned Coordinate Bench dated 10.10.2024 in
Special Civil Application No.6490 of 2024 and in an identically
situated petition, therefore, the issue would have to be appreciated
and dealt with independently on its own merits.
[3] The facts relevant for the purpose of deciding the
present petition are summarized as under :-
[4] The petitioner was working with the concerned Department
of the respondents. The details of date of appointment and the
period for which he worked with the Department can be
summarized in a tabular form as under :
Sr.
No.
Petition
No.
Name of the
petitioner
Appointment Transfer Retired Service
period
1 SCA No.
13972/
2026
Jaluji
Viramsinh
Vaghela
15.5.1973 15.7.1978 30.11.1998 8 years 6
months
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[5] Heard learned advocate Mr. S. S. Amin for the
petitioner, who would submit that the issue in question i.e. as
regards entitlement of the employee for considering the period
prior to the transfer to the Corporation being treated as qualifying
services for the purpose of pension, is no more res integra. Learned
advocate would submit that this Court in various decisions starting
from the decision rendered in Special Civil Application No.6690 of
1989 dated 11.08.2000, decision dated 17.03.2016 in Special Civil
Application No. 16887 of 2014 as confirmed by decision of Division
Bench dated 28.07.2017 in Letters Patent Appeal No.307 of 2017
as well as decision of the learned Coordinate Bench dated
07.03.2011 in Special Civil Application No.5925 of 2001 affirmed
by the Division Bench in Letters Patent Appeal No.1552 of 2009
dated 13.09.2012 had taken a view in case of identically situated
employees that the period when the employee was working in the
District Panchayat, even though less than 10 years should be
counted for the purpose of granting pension. Learned advocate
would submit that since the law on the present issue is settled in
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identical set of facts, even if there has been any deviation by the
learned Coordinate Bench, it is requested that this Court may pass
order on the line as have been passed by the learned Coordinate
Benches as referred to herein above.
[6] On the other hand, the present petition is opposed by
the learned AGP Ms. Pooja Ashar on behalf of the respondent State.
Learned AGP would rely upon the decision of a learned Coordinate
Bench dated 10.10.2024 in Special Civil Application No.6490 of
2024, where in identical set of facts, learned Coordinate Bench had
rejected the petition on the ground of delay. In alternative, learned
AGP would further submit that in case, this Court were inclined to
grant prayer as prayed for in the present petition, then the period
of arrears may be circumscribed i.e. for a period of 3 years prior to
filing of the present writ petition since the petitioner has chosen to
approach this Court belatedly.
[7] Considering the submissions made by the parties, it
becomes apparent that the petitioner having continued with the
Corporation, had retired from the service of the Corporation. The
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issue being as to the period when the petitioner was working with
the Panchayat prior to the transfer and absorption of the petitioner
with Gujarat Water Resources Development Corporation. As
noticed hereinabove, as per the term of the Resolution dated
14.10.1981, the period, which such person had served with
Panchayat was to be treated as period in Government servant and
whereas the issue is as to whether the petitioner would be entitled
to family pension for such services rendered by the petitioner. It
appears in this regard that the issue had come up for the first time
in the writ petition being Special Civil Application No. 6690 of
1989, which had been decided by a learned Coordinate Bench (the
then Hon’ble Chief Justice of this Court) vide the decision dated
11.08.2000. It would appear that the learned Coordinate Bench
had inter alia held that the period of service prior to the service of
employee with the Corporation i.e. rendered with the Panchayat
was directed to be counted for the purpose of granting pensionary
benefit.
[8] The law laid down by the learned Coordinate Bench
had later on been followed by another learned Coordinate Bench
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(Mr. J. B. Pardiwala, as his Lordship then was) in decision dated
17.03.2016 in Special Civil Application No.16887 of 2014 and
whereas the said decision having been assailed before the Division
Bench, the Division Bench vide decision dated 28.02.2017 in
Letters Patent Appeal No.307 of 2017 had confirmed the decision
of the learned Coordinate Bench dated 17.03.2016. It would also
appear that in similar set of petitions, this Court vide an order
dated 0311.2023, had directed the respondents State to examine
the case of each of the petitioners in the said group of petitions, in
consultation with the Corporation and District Panchayat and had
directed that if the petitioners therein were fulfilling the
parameters laid down by the Division Bench of this Court in
decision dated 28.07.2017 rendered in Letters Patent Appeal
No.307 of 2017 then the benefits as conferred to the employee in
the said decision should be conferred to the petitioners before this
Court.
[9] It appears that in the interregnum i.e. the recently a
decision has been taken by a learned Coordinate Bench dated
10.10.2024 in Special Civil Application No.6490 of 2024, whereby
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the petition of an identically situated petitioner i.e. who had
worked with the District Panchayat and his service being
transferred to the Corporation, had sought similar set of reliefs and
whereas vide decision referred to, learned Coordinate Bench had
dismissed the petition on the ground of delay.
[10] In this regard, this Court is inclined to reproduce
observations of learned Coordinate Bench dated 07.03.2011 passed
in Special Civil Application No.5925 of 2001 affirmed by Division
Bench in Letters Patent Appeal No.1552 of 2009, which had been
relied upon by the Coordinate Bench, while passing decision dated
17.03.2016. The observations of the learned Coordinate bench vide
judgment dated 17.03.2016 at paras 6 and 7 are reproduced herein
below for benefit:
“6 I need not adjudicate this issue in details as the case in hand is
th
squarely covered by the judgment of this Court dated 7 March,
2011 passed in the Special Civil Application No.5925 of 2001 and
also affirmed by the Division Bench in the Letters Patent Appeal
No.1552 of 2009. An almost identical issue had come before this
Court wherein the petitioners were appointed as Tubewell Operators.
th
I may quote the entire judgment of this Court dated 7 March 2011
as under:
“2. The facts relevant for the purpose of deciding the present
petition are summarized as under :-
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The petitioners were appointed as Tube Well Operators and
were working with respondent No. 1 Panchayat. The details of
date of appointment and the period for which they worked
with the Panchayat can be summarized in a tabular form as
under :-
S.
No
Name Name
of
office
Date of
appointment
Date of
transfer
Temporary
date
Date of
service put
in with
Panchayat
(yy-mm-dd)
1 Modi Natvarlal
Narottamdas
Deodar 21.01.69 16.07.78 19.6.91 09-05-00
2 Soni Nagjibhai
Vaikuntlal
Tarad 19.04.69 -- 17.2.72 09-02-28
3 Patel Amratbhai
Dhanjibhai
Deodar 21.01.69 -- 1.8.79 09-05-25
4 Koli Chamanji
Jagsiji
Tharad 20.04.70 -- 17.2.72 08-03-05
5 Chauhan
Prabhuji Badarji
Tharad 01.01.70 -- 17.2.72 08-08-15
6 Modi Kantibhai
Shanerbhai
Deodar 23.03.69 -- 17.2.72 09-04-25
7 Makwana
Versinhji
Devsinhji
Deodar 01.12.69 -- -- 08-09-15
The petitioners alongwith other employees working on
tubewells came to be transferred en bloc to the newly formed Gujarat
Water Resources Department. While in service of the Corporation,
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nd
pay-scales were revised with effect from 1.1.1973 under the 2
Desai Pay Commission. The Pay Commission also recommended
terminal and pensionary benefits to be granted to all categories of
employees who have completed five years of service. The Pension
Rules, however, required completion of minimum ten years of
qualifying service. The grievance of the petitioners as raised in the
petition is that at the time when they were transferred to the
Corporation, they had put in about 9 years and a few months of
service falling short of hardly 4 to 5 months for completion of ten
years of qualifying service. The petitioners would be entitled to the
pensionary benefits only if they have put in minimum ten years of
qualifying service.
3. The question involved in this petition appears to be squarely
covered by the judgment rendered by a learned Single Judge (the
then Chief Justice of this Court) dated 11.8.2000 in Special Civil
Application No. 6690 of 1989. The question is whether the period of
service rendered by the petitioners in the Corporation can be counted
towards total period of service for the purpose of claiming pensionary
benefits from the State in the Panchayat services. This issue was
answered in the affirmative by the learned Single Judge while
deciding Special Civil Application No. 6690 of 1989. While deciding
this issue, the Court observed as under :-
“Learned counsel for the petitioner placed reliance on two
resolutions of the Government dated 10.6.1976 and
14.10.1981. On reading relevant part of the resolution, dated
14.10.1981, learned counsel points out that it was noticed
subsequently by the Government that employees whose services
were transferred cannot be treated as absorbed in the service
of Corporation until they are made to exercise their option for
transfer of service. The employees transferred from different
departments to the Corporation were,therefore, directed to be
given option for absorption in the service of the Corporation.
The resolution also directs that so long as employees do not
exercise their option, they would be treated to be as on
deputation in the service of the Corporation. Reliance is
ultimately placed on para 7 of the resolution, dated
14.10.1981 and part of para 9, relevant part whereof reads as
under:
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"9. All the three categories of officers and employees
mentioned above who were working in the erstwhile
Directorate on or before 10.6.1976 are only entitled for
exercising option and they should,therefore, exercise their
option within a period of two months from the date of issue
of this G.R. in the prescribed form appended to this G,R. The
options received thereafter will not be entertained under any
circumstances.
The above orders also apply mutatis mutandis to all the
employees of the district panchayats who have been
transferred en bloc to the Corporation along with the
tubewells activities and they should also, therefore, exercise
their options likewise subject to the same condition till the
expiry of the stipulated period of two months given for
exercising options and in the event of their exercising option
to remain with the Corporation, they will be deemed to have
severed all connections with the State Government service
from the date of completion of the period of two
months given for exercising option under this Government
resolution."
Learned Assistant Government Pleader appearing for
the State in his reply submitted that the resolution is of no
avail to the petitioner as he was working as work-charge
tubewell operator and such option was available only to
regular employees. It is submitted that when the entire
tubewell work stood transferred to the Corporation, the
work-charge employees could claim no right of option to
remain in service of the Panchayat and were compulsorily
transferred en bloc to the Corporation.
It is not in dispute that total service period of the
petitioner in the service of Panchayat is 9 years - 4 months
and 11 days , which is short only by a few months to be able
to claim pensionary benefits for which minimum qualifying
period of service prescribed is ten years.
The short question that arises before me is, as to
whether the petitioner is entitled to take the benefit of
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resolution, dated 14.10.1981 and seek addition of period of
his service in the Corporation for claiming pensionary benefits.
Relevant part of resolution has already been quoted above.
It is not made clear in the resolution dated 14.10.1981 that
work-charged employees are outside its purview. Even if the
petitioner was work-charged employee, he could have claimed
a right not to seek transfer to the Corporation service but
to seek employment elsewhere. Since his services were
compulsorily transferred without taking any option from him
under the resolution dated 14.10.,1981 along with other
employees transferred from different departments, he would
be deemed to be work-charged employee on deputation
from the service of the Panchayat to the services of the
Corporation. Period of service,therefore, spent by him in the
Corporation has to be added to his pensionary service. It is
also not in dispute that the petitioner on attaining
superannuation age of 58 years, has retired on 30.4.1988
and before his retirement, had not exercised any option to be
absorbed in the services of the Corporation. Subsequent
resolution on which reliance has been placed on behalf of the
State,therefore,cannot be made applicable to him as the
same has been issued after his retirement.
As a result of the discussion above, the petition succeeds
and is hereby allowed. Respondents Nos. 1 and 3-
i.e.Panchayat Department represented through the District
Development Officer and Director of Pension and Provident
Fund, Government of Gujarat, are directed to entertain the
claim of the petitioner for fixation of his pension and allow
him pensionary benefits by treating him to have completed ten
years of qualifying service. Since the petitioner retired in
1988, on his making suitable approach in writing to
the concerned authorities (respondents Nos. 1 and 3),
within a period of one month, necessary orders in his favour
would be passed to enable him to obtain pension within
outer limit of three months from the date of receipt of
representation. His pension be fixed from the due date and
arrears to be also paid to him. Rule is made absolute to
the aforesaid extent. There shall be no order as to costs.”
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4. It is also brought to my notice that the said judgment and
order passed by the learned Single Judge was a subject matter of
challenge in Letters Patent Appeal No. 831 of 2000 preferred by the
District Development Officer. The challenge failed in the appeal and
the judgment and order of the learned Single Judge was confirmed.
In this view of the matter, no extensive discussion is necessary in this
regard. However, learned AGP Ms Krina P Calla has brought to my
notice an identical petition being Special Civil Application No. 3372
of 2001 wherein the same issue was involved and the same reliefs
were prayed for and the said petition was rejected on the ground of
delay vide order dated 30.1.2009.
5. Be that as it may. In the facts and circumstances of that
particular case, the learned Single Judge may have thought fit to
reject the petition. However, so far as the aspect of delay is
concerned, I cannot be oblivious of the fact that what is being prayed
for by the petitioners is for pensionary benefits. Even otherwise,
having regard to the facts of the case and their date of retirement
and filing of the petition, there does not appear to be any gross or
inordinate delay. The principles underlying continuing wrongs and
recurring/successive wrongs have been applied to service law
disputes. The Supreme Court in the case of Union of India vs.
Tarsem Singh , reported in (2008) 8 SCC 648 has observed as
under:-
7. To summarise, normally a belated served related claim
will be rejected on the ground of delay and laches (where
remedy is sought by filing a writ petition) or limitation (where
remedy is sought by an application to the Administrative
Tribunal). One of the exceptions to the said rule is cases
relating to a continuing wrong. Where a service related claim
is based on a continuing wrong, relief can be granted even if
there is a long delay in seeking remedy, with reference to the
date on which the continuing wrong commenced, if such
continuing wrong creates a continuing source of injury. But
there is an exception to the exception. If the grievance is in
respect of any order or administrative decision which related
to or affected several others also, and if the reopening of the
issue would affect the settled rights of third parties, then the
claim will not be entertained. For example, if the issue relates
to payment or refixation of pay or pension, relief may be
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granted in spite of delay as it does not affect the rights of third
parties. But if the claim involved issues relating to seniority or
promotion, etc., affecting others, delay would render the claim
stale and doctrine of laches/limitation will be applied. Insofar
as the consequential relief of recovery of arrears for a past
period is concerned, the principles relating to
recurring/successive wrongs will apply. As a consequence, the
High Courts will restrict the consequential relief relating to
arrears normally to a period of three years prior to the date of
filing of the writ petition.
6. Way back in 1974, a Constitution Bench of the Supreme Court
in the case of RS Deodhar vs. State of Maharashtra , reported in
AIR 1974 SC 259, has taken the view that the rule which says that a
Court may not inquire into belated or stale claims is not a rule of
law, but a rule of practice based on sound and proper exercise of
discretion, and there is no inviolable rule that whenever there is
delay the Court must necessarily refuse to entertain the petition.
Each case must depend on its own facts. Applying the principles as
explained by the Supreme Court on the issue of delay, and taking
note of the fact that by granting reliefs as prayed for, I am not
disturbing the rights which have accrued to others by reason of delay
in filing the petition, the reliefs as prayed for deserves to be granted.
Had it been such a case, probably the Court would be justified in not
entertaining the petition on the ground of delay. However, in the
present case, the petitioners hailing from lower strata of society
having put in years of service are claiming for their pensionary
rights.
7. In this view of the matter, the petition deserves to be allowed
and the same is allowed. The respondents are directed to entertain
the claim of the petitioners for fixation of their pension and allow
them the pensionary benefits by treating them to have completed ten
years of qualifying service. Since the petitioners have retired, on
their making suitable approach in writing to the concerned
authorities (respondents Nos. 1 and 4), within a period of one
month, necessary orders in their favour would be passed to enable
them to obtain pension within outer limit of three months from the
date of receipt of the representation. Their pension be fixed from
the due date and arrears to be also paid to them.
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Rule is made absolute to the aforesaid extent. There shall be
no order as to costs.”
7 I may quote the order passed in the Letters Patent Appeal
th
No.1552 of 2009 decided on 13 September, 2012 as under:
“1. We have heard Mr G.M. Amin, learned counsel for the
appellant, Mr H.S. Munshaw, learned counsel appearing for
respondent No.1, Mr Rakesh R Patel, learned AGP for
respondents No.2, 4 and 5 and Mr R C Jani, learned counsel
appearing for respondent No.3. This LPA has been filed
challenging the judgment of the learned Single Judge dated
30.1.2009 passed in Special Civil Application No.7066 of
1999.
2. The appellant was appointed as Tube Well Operator in
work charge establishment on 17.10.1968 in the service of
Ahmedabad Jilla Panchayat, Ahmedabad. Respondent No.3 –
Gujarat Water Resources Development Corporation (for short,
'Corporation') was created w.e.f. 8.6.1978. Thereafter services
of the employees of Ahmedabad Jilla Panchayat (for short,
'Panchayat') stood transferred to the newly created
Corporation and the employees including the appellant was
treated on deputation as per Government Resolution dated
14.10.1981. It was also provided in this Resolution that
services of the employees transferred from the Panchayat shall
be treated to be on deputation with the Corporation till they
are absorbed in the services of the Corporation. In the year
1981, options were invited and the appellant opted for
pension and absorption in the services of the Corporation and
he was absorbed in service on 14.12.1981. The appellant
retired on 13.12.1996. The appellant claimed pension from
the respondent-Panchayat on the ground that the appellant
has worked for a period of 10 years in the Ahmedabad Jilla
Panchayat and those employees who were working for a
period of 10 years or more were entitled to pension from the
Panchayat. It is not disputed that from 14.12.1981 when the
appellant was absorbed in services of the Corporation no
pension was payable to him.
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3. The argument of Mr H.S. Munshaw, learned counsel
appearing for respondent No.1 is that the appellant's services
were transferred to the Corporation on 8.6.1978 and,
therefore, on that date, the appellant had not completed 10
years' service which is qualifying service for grant of pension
with the Ahmedabad Zilla Panchayat. According to the
learned counsel for the petitioner, he was on deputation with
the Corporation till 13.12.1981 and, therefore, his services till
13.12.1981 has to be treated in his parent cadre i.e.
Ahmedabad Jilla Panchayat. This question came up for
consideration before the learned Single Judge of this Court in
Special Civil Application No. 6690 of 1989 in the case of
Narubha Mahobatsinh Jhala v. District Development
Officer & Ors. decided on 11.8.2000 wherein the learned
Single Judge took the view that till the work-charged
employees of Ahmedabad Jilla Panchayat were absorbed in the
services of the Corporation he was on deputation with the
Corporation and, therefore, he has to be treated to be an
employee of the Ahmedabad Zilla Panchayat and if he has
completed 10 years of service prior to his absorption in the
services of the Corporation then he would be entitled for
pension. Operative portion of the order dated 11.8.2000 is
reproduced hereunder:
“As a result of the discussion above, the petition
succeeds and is hereby allowed. Respondents Nos. 1 and
3 - i.e. Panchayat Department represented through the
District Development Officer and Director of Pension
and Provident Fund, Government of Gujarat, are
directed to entertain the claim of the petitioner for
fixation of his pension and allow him pensionary
benefits by treating him to have completed ten years of
qualifying service. Since the petitioner retired in 1988,
on his making suitable approach in writing to the
concerned authorities respondents Nos. 1 and 3, within
a period of one month, necessary orders in his favour
would be passed to enable him to obtain pension within
outer limit of three months from the date of receipt of
representation. His pension be fixed from the due date
and arrears to be also paid to him.”
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This decision of the learned Single Judge was affirmed in LPA
No. 831 of 2000 in the case of District Development Officer
& Ors. v. Narubha Mahobatsinh Jhala decided on
12.1.2005. Para No.5 of the said decision is reproduced as
under:
“5. Under the circumstances, when the learned Chief
Justice of this Court allowed the petition of the original
petitioner and directed the present appellant No.1-
District Development Officer, Ahmedabad and original
respondent No.3-The Director of Pension and Provident
Fund, Government of Gujarat at Ahmedabad to
entertain the claim of the petitioner for fixation of his
pension and allowing him pensionary benefits treating
him to have completed 10 years of qualifying service,
then on peculiar facts and circumstances of the case, we
would not like to interfere with such order in our
Letters Patent Jurisdiction.”
The above decision became final and binding on the
respondent-Panchayat namely Ahmedabad Jilla Panchayat.
Therefore, the controversy involved in this case is squarely
covered by the aforesaid decision and since the appellant
remained on deputation with the Corporation till 13.12.1981
and joined services of Ahmedabad Jilla Panchayat in the year
1968, he completed more than 10 years of qualifying service
and so he is entitled to pension from Ahmedabad Jilla
Panchayat, consequently the appellant shall be paid.
Therefore, Ahmedabad Jilla Panchayat, has to forward papers
to respondent No.2 for payment of pension to the appellant.
4. Learned Single Judge has dismissed the writ petition filed
by the appellant-petitioner on the ground that the petitioner
should have claimed and challenged that he had completed
more than 10 years' service in the year 1981 itself. According
to learned Single Judge, the cause of action for getting his
service calculated arose to the petitioner in the year 1981 and,
therefore, the writ petition was barred by delay and laches. In
paras 8,9 and 10 of the order, the learned Single Judge has
observed as under:
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8. Heard the learned Advocate for the respective parties.
Admittedly earlier the petitioner was in
Panchayat Department. It is only because of option
given to him the petitioner was taken in the respondent
Corporation. Admittedly, even according to the
petitioner, the respondent is not entitled to pension
after the period of 1981. Thus the claim of the
petitioner is prior to 1981 which is claimed in the
present petition. Even looking to the clauses of the
Resolution of 1981 it is clear that the petitioner had no
objection in opting the service with the Corporation,
otherwise, the petitioner would not have got the
employment as his services would have been terminated
or retrenched.
In any case, the cause of action as contended in
the petition is of the year 1981 and there is a gross
delay in filing the petition which cannot be condoned in
view of the settled legal position.
In the case of Shiv Dass v. Union of India and
others, reported in AIR 2007 SC 1330 it is held that if
petition is filed beyond reasonable period, say three
years, normally Court would reject the same or restrict
the relief. The learned Advocate had unsuccessfully
argued that the cause of action has arisen in the year
1995, but on the facts it is otherwise.
9. It is required to be noted that in the year 1981 it
would have been retrenchment and not a retirement,
and therefore the petitioner would not have become
eligible for pension.
10. In the premises aforesaid, I do not find any merits
in this petition. This petition is, therefore, dismissed.”
In our opinion, the view taken by the learned Single Judge is
not correct. The cause of action arose to the petitioner after
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retirement when the respondents failed to count his service of
10 years from 1978 till 1981 prior to the petitioner's
absorption of service in the Corporation. Prior to it there was
no question of payment of any pension. Therefore, the
petitioner could not have raised any grievance for counting of
service in 1981 itself. For the aforesaid, the order of the
learned Single Judge cannot be maintained and deserves to be
set aside. We may make it clear that barring this the appellant
will neither raise any other claim nor the respondent will
entertain any such claim on the part of the appellant.
5. In the result this appeal succeeds and is allowed. The
judgment of the learned Single Judge dated 30.1.2009 passed
in Special Civil Application No.7066 of 1999 is set aside. We
hold that the appellant has actually worked with the
respondent No.1 Ahmedabad Jilla Panchayat from
17.10.1968 to 13.12.1981 and he was entitled to pension
from respondent No.1 as he has completed more than 10 years
of qualifying service. The pension papers shall be prepared by
respondent No.1 and sent to respondent No.2 within a period
of 8 weeks from today and respondent No.2 shall in turn pass
appropriate orders for payment of pension within a further
period of 12 weeks. Parties shall bear their own costs.”
[11] As noticed hereinabove, the decision dated 17.03.2016
had been affirmed by the Division Bench vide decision dated
28.02.2017 in Letters Patent Appeal No. 307 of 2017 and paras
13,14,15,16 being relevant for the present purpose are reproduced
herein below for benefit:
“13. Having considered the submissions canvassed on behalf of the
learned advocates appearing for the parties and having gone through
the material produced on petitioners record, were it appointed
emerges in the that the District Panchayat or in the Irrigation
Department and because of the Resolution dated 08.06.1978 all the
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activities pertaining to tubewells/irrigation which were made under
the Panchayat/Government, were transferred to the Corporation and
entire staff including the petitioners came to be transferred to the
Corporation and thereafter on 14.10.1981resolution was issued
respondent Government, whereby the options were invited and those
employees who did not exercise their options were treated to be the
employees of the Corporation. The concerned petitioners have served
with the Corporation and on attaining the age of superannuation,
they retired from service. At the time of retirement, the Corporation
has granted all the retiral benefits including CPF, leave encashement,
gratuity, etc. Thus, we are of the view that the direction issued by the
learned Single Judge to the appellant Corporation to pay the
pensionary modified by benefits clarifying is required that the to be
appellant Corporation is not liable to pay the pensionary benefits to
the petitioners. Orders accordingly.
14. However, so far as the appellant District Panchayat in Letters
Patent Appeal No.307 of 2017 is concerned, the original petitioner in
the said petition served with the District Panchayat for more than 8
years and 7 months. However, because of the resolution passed by
the Government, services of the said petitioner were transferred to
the Corporation and he was absorbed in the Corporation. The
contention of the learned advocate Mr. Munshaw that the petitioner
has not completed qualifying service of 10 years is misconceived, as
for calculating the qualifying service, the services rendered by the
petitioner from the date of his initial appointment till the date of his
retirement is required to be counted. However, it is to be clarified at
this stage that when the petitioner has completed service of 8 years
and 7 months, he is entitled to the benefit of pension for the said
purpose of qualifying service is required period service to and his be
for the continuous taken into consideration. Thus, we are of the view
that all the petitioners benefits for are the eligible period for for
pensionary which they have worked with the State Government or
the District Panchayat, as the case may be.
15. At this stage, it is also required to be noted that the similar issue
has been decided b23515y the Division Bench of this Court in an
order dated 07.03.2011 passed in Letters Patent Appeal No.1552 of
2009 and order dated 10.04.2015 passed in Letters Patent Appeal
No.1374 of 2011 and allied matters.
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16. In view of the aforesaid discussion and in view of the reasons
recorded by the learned Single Judge, Letters Patent Appeal No.307
of 2017 is dismissed. Whereas, other Letters Patent Appeal filed by
the Corporation are partly allowed by clarifying that the appellant
Corporation is not liable to pay the pensionary benefits concerned
petitioners, but the concerned District Panchayat and the the State
Government, as the case may be, are liable to pay the pensionary
benefits to the concerned petitioners. The other appeals are
accordingly disposed of with aforesaid modification in the order of
the learned Single Judge. Consequently, civil applications also stand
disposed of.”
[12] It would be apposite to reiterate at this stage that the
there has been no contest on the fact that the employee in the
aforementioned decision were identically situated to the petitioners
herein. It would thus, appear that the entitlement of the persons
like the petitioners had been upheld by the learned Coordinate
Bench vide decision as far as back dated 11.08.2000 in Special Civil
Application No.6690 of 1989 and whereas the said decision had
also been affirmed by the Division Bench in Letters Patent Appeal
No.831 of 2000. It also appears that the said view had been
followed by another learned Coordinate Bench vide judgment
dated 07.03.2011 in Special Civil Application No.5925 of 2001
affirmed by the Division Bench in Letters Patent Appeal No.1552 of
2009. The said view had further been followed by the learned
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Coordinate Bench vide judgment dated 17.03.2016 in Special Civil
Application No.16887 of 2014, affirmed by Division Bench vide
decision dated 28.02.2017 in Letters Patent Appeal No.307 of
2017.
Thus, while decision dated 10.10.2024, whereby the learned
Coordinate Bench had taken a different view and dismissed writ
petition by an identically situated employee, is a decision by Bench
of co-equal strength and in normal circumstances would be binding
on this Court, yet since in identical situation, learned Coordinate
Benches and the Hon’ble Division Benches have taken a view
different than the view taken by Coordinate Bench in decision
dated 10.10.2024 and since the earlier decisions being binding on
this Court both on the ground of being decisions earlier than
decision dated 10.10.2024 and also because there are decisions of
Division Benches, therefore, this Court is bound by the said
decisions.
There is no gainsaying to this Court that the decision of the
learned Coordinate Bench as confirmed by the Division Benches are
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binding upon this Court. Judicial discipline and propriety require
this Court to follow the decision of the learned Coordinate Benches
and Division Benches, which are of earlier date then the decision
dated 10.10.2024.
[13] In so far as the aspect of delay, it would appear that the
issue of delay not be a relevant factor in so far as recurring benefit
are concerned, is also no more res integra and as such had been
raised by the respondent before the learned Coordinate Bench in
Special Civil Application No.6690 of 1989 decision on 11.08.2000,
the same could be discernible from the quoted portion hereinabove,
where the learned Coordinate Bench having referred to the decision
of the Hon’ble Supreme Court in case Union of India Vs. Tarsem
Singh and in the case of R.S. Deodhar Vs. State of Maharashtra
reported in 2008(8) SCC 644 and AIR 1974 SC 259 respectively
has observed that the grant of pension could not refused or rather
the Court would not have justified in not entertaining a case for
grant of pensionary benefit on the ground of delay, more
particularly since it is continuing and recurring / successive wrong.
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[14] Hence, the submissions of learned AGP that the present
petitions should not be entertained relying upon the decision dated
10.10.2024 by the learned Coordinate Bench in Special Civil
Application No.6490 of 2024 cannot be countenanced.
[15] In so far as the second issue raised by the learned AGP
that the period of arrears be circumscribed inasmuch as the benefits
of arrears be paid to the petitioners only for period of three years
prior to the writ petition, to this Court, such a submission cannot be
countenanced.
[16] While the law on this aspect is undoubtedly clear, more
particularly the decision of the Hon’ble Supreme Court in case of
Tarsem Singh referred to hereinabove, observing as much, yet to
this Court, such an issue is neither open for the State to contend
nor it is open for this Court sitting as a Single Judge to adjudicate.
The reasons for this Court being that in the entire group of
petitions referred to hereinabove, up till the last order of this Court
dated 03.11.2023 in a group of writ petitions, where identical
prayers had been sought and granted, at no point of time herein
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before, the State has raised this issue. Again neither the Coordinate
Benches nor the Division Bench as the case may be has touched
upon such an issue. When the employees identically situated to the
petitioners have received the entire benefits i.e. from the date of
retirement / entitlement till the date of payment, there is no reason
for this Court to even delve into that aspect. Furthermore, it also
appears to this Court that the the submissions on the part of State
would be precluded by the doctrine of constructive res judicata i.e.
to say that when the State had not sought for circumscribing the
benefits for all these years in all the writ petitions referred to
hereinabove starting from writ petitions of the year 1989, it is too
late in the day for the State to now raise an issue of circumscribing
the arrears of pensionary benefit in case of the present petitioners.
Hence, to this Court, said submission cannot be countenanced and
is hereby rejected.
[17] Having regard to the observations made hereinabove,
to this Court, it would appear that the following observations
would meet with the ends of justice.
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(a) The period of services rendered by the petitioner with the
District Panchayat, is directed to be treated the period of
qualifying services for the purpose of pension i.e. the period
between 15.05.1973 till 14.10.1981. The respondents are
directed to calculate the pension as would have been
available to the petitioner from the date of their retirement
and family pension.
(b) The exercise of calculating the pension and family
pension and the arrears thereof, shall be completed within a
period of four months from the date of receipt of this
judgment and whereas the arrears shall be paid to the
petitioner within such period.
(c) The petitioner would be entitled to payment of family
pension on regular basis thereafter.
(d) It is clarified that in case, any amount of CPF has been
paid to the petitioner for the period, when service of the
petitioner rendered by the petitioners with District Panchayat,
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then said amount shall be adjusted from the arrears of
pension and whereas the remaining amount of arrears, if any,
shall be paid to the petitioner as directed hereinabove.
(f) In case, a set off is to be given, appropriate opportunity
shall be afforded to the petitioner for questioning the
calculation.
(g) The above exercise including payment of arrears to be
completed within a period of 8 weeks from the date of
decision is uploaded on the portal of the Gujarat High Court.
With this observations and directions, the present petition
stands disposed of as allowed.
(NIRAL R. MEHTA,J)
CHANDRESH
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