SURESHCHANDRA DEVIDAN GADHVI vs. PRINCIPAL VIVEKANAND VIDYALAYA

C/SCA/1562/2017 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/SPECIAL CIVIL APPLICATION NO. 1562 of 2017 ========================================================== SURESHCHANDRA DEVIDAN GADHVI Versus PRINCIPAL VIVEKANAND VIDYALAYA & 2 other(s) ========================================================== Appearance: MR DIPAK R DAVE(1232) for the Petitioner(s) No. 1 MS. KRINA CALLA, ASSISTANT GOVERNMENT PLEADER(1) for the Respondent(s) No. 3 MR NC SHAH(1052) for the Respondent(s) No. 2 NOTICE SERVED(4) for the Respondent(s) No. 1 ========================================================== CORAM: HONOURABLE MR.JUSTICE N.V.ANJARIA

Date : 22/08/2019

ORAL ORDER In the facts and circumstances of the case and having regard to the request and consent of the parties appearing through their respective learned advocates, the petition was taken up for final consideration today. 1.1 Rule returnable forthwith. Learned Assistant Government Pleader Ms. Krina Calla waives service of Rule for the respondent No.3. 1.2 Heard learned advocate Mr. Dipak Dave for the petitioner and learned Assistant Government Pleader. 2. The petitioner, Assistant Teacher, has prayed to set aside the Page 1 of 6

C/SCA/1562/2017 ORDER orders dated 27.10.2016 and 30.1.2017 passed by respondent No.3 District Education Officer, Ahmdabad. It is further prayed to direct the respondent No.3 to immediately fix the pension of the petitioner from the date of his appointment till his application dated 21.2.2005 and further to pay the arrears of pension from 1.3.2005 until actual payment with interest. 3. By the impugned order, on the ground that the pensionable service is less than 20 years, the petitioner was treated as dis-entitled to receive the pension. The impugned orders were passed disregarding the direction issued by this court in the earlier petitions whereby the petitioner's service period was required to be treated as notional and pension was required to be countenanced accordingly, which met up the total required pensionable service. Three earlier petitions were filed. The directions were issued by this court for processing the pension of the petitioner. However, the said directions came to be disregarded by the District Education Officer, Ahmedabad. 4. Notice was issued on 14.2.2017. Thereafter, on 9.6.2017 the court passed the following order,extracted as under, “Heard learned advocate Mr. Dipak R. Dave appearing for the petitioner and learned AGP Ms. Asmita Patel appearing for the respondent State. It is obvious from the record that though notice is issued in the Month of February, 2017, no reply has been filed till date. It is really a disturbing situation that even after three concurrent orders, the concerned District Education Officer has, in his impugned order dated 03.01.2017 held that petitioner has not completed the pensionable service of twenty years. Thereby, though there is specific observation in Page 2 of 6

C/SCA/1562/2017 ORDER last judgment dated 07.09.2016 by the Coordinate Bench that acceptance of resignation would mean that the petitioner was in service on that day, though notionally and consequently the District Education Officer would be under an obligation to process the matter for pension as if the resignation of the petitioner is accepted by the management the District Education Officer has failed to appreciate such direction in the judgment while denying pension to the petitioner. The District Education Officer has failed to comply with the directions in said judgment which reads thus: “The respondent No.3 has directed to process the petitioner's application dated 21.02.2005 as if resignation is accepted by the School management and the petitioner was in service on that day, though notionally.” Therefore, though it would be an express relief and may amount to allowing the petition at such stage, let there be an interim relief in terms of Para 8 (B). It may be noted that respondents have never challenged previous three judgments which are referred in the pleadings. If respondents are not inclined to release the pension as per above direction, then they have to file an explanation in writing before this Court within three weeks that why proceedings for disobedience of the Court's order shall not be initiated against them. List the matter on 10th July, 2017. Copy of this order to be provided to learned Assistant Government Pleader.” 4.1 The aforesaid interim order dated 9.6.2017 was carried in appeal by the state by preferring Letters Patent Appeal No. 2440 of 2017, which came to be dismissed by order dated 16.4.2018. The Division Bench noticed history of the litigations and the directions issued in the earlier petition to cull out the facts and the position of law obtaining by virtue of earlier directions, as under. “2.1 However, undisputed fact remains to the extent that in oral judgment dated 07.09.2016, passed in Special Civil Application No. 5368 of 2008, the learned Single Judge in paragraphs 9,10, 11 and 12 held as under: Page 3 of 6

C/SCA/1562/2017 ORDER “9 The order dated 21.11.2006 in Special Civil Application No. 16219 of 2006 indicates that resignation already tendered by the petitioner to the management has been accepted by the school management and forwarded to the District Education Officer. Thus the controversy regarding resignation of the petitioner was put an end by above observations of this Court. The said observations would also indicate that the petitioner is deemed to have resigned from the date of tendering of the resignation. It has been clearly observed in the two orders of this High Court that the termination is not required to be taken into consideration while processing the case of the petitioner. Therefore, this Court is of the opinion that even in absence of challenge the termination order as confirmed by Tribunal, the case for pension of the petitioner can be considered. Therefore no substance is found in the argument advanced by the learned Assistant Government Pleader that in absence of the challenge to the termination order, the management was justified in raising the issue regarding termination of petitioners services. 10 It seems that the school management, despite this Courts observation in above petition in relation to the above resignation was bent upon to ensure the rejection of the resignation of the petitioner for one reason or the another and therefore, the stand regarding non applicability of the rules for seeking approval on termination which was never taken before this Court during pendency of two writ petitions referred to above came to be taken before the District Education Officer. In the opinion of this Court, such stand of the management cannot be countenanced. 11 The resultant effect of the above discussion is that in view of the observations made by this Court in 21.11.2006 in Special Civil Application No. 16219 of 2006 the resignation is deemed to have been accepted even in absence of specific office order for its acceptance by the management. Thus acceptance of resignation would mean that the petitioner was in service on that day, though notionally. Consequently, the District Education Officer would be under an obligation to process the matter for pension as if the resignation of the petitioner is accepted by the management. 12. In view of the foregoing discussion, the petition is required to be allowed. Accordingly the same is allowed. The impugned order dated 16.07.2005 as well as 27.08.2007 passed by respondent no. 3 District Education Officer are quashed and set aside. The respondent no.3 is directed to proceed to process the petitioner's application dated 21.02.2005 as if the resignation is accepted by the school management and petitioner was in service Page 4 of 6

C/SCA/1562/2017 ORDER on that day, though notionally. The decision shall be rendered within six weeks from the date of receipt of the writ of this Court. Rule is made absolute with no order as to costs.” 2.2 The fact of treating the services of the respondent as notional i.e. from the date of application, namely, 21.02.2005, and as initial appointment of the respondent as an Assistant Teacher was on 25.04.1983, the respondent would be completing around 22 years, an objection based on Rule 47 and 48 of the Gujarat Civil Services (Pension Rules,2002) and not completing pensionable service of 20 years, are devoid of merit. 2.3 Under the circumstances, we are inclined to sustain interim directions issued by the learned Single Judge in order dated 09.06.2017 passed in Special Civil Application No. 1562 of 2017 by granting interim relief in terms of para 8(B) of the petition. The appeal is hereby dismissed. The appellant – original respondent No.3 is hereby directed to process and release the pension in favour of the respondent No.1 herein within three weeks of receipt of this order, subject to outcome of the Special Civil Application.” 5. After the aforesaid order passed in the LPA, the Respondent No.3 Education Inspector District Education Officer, Ahmedabad city, filed additional affidavit dated 7.8.2019, in which it was mentioned that the pension case of the petitioner was approved and the petitioner was paid pension. It was stated on oath thus, “Upon the rules and Regulation of pension, the petitioner is paid pension from 22.5.2005 to 31.5.2019 of Rs. 15,19,826 minus Rs. 2,15,000/- income tax and therefore, according to this the petitioner pension is sanctioned of total Rs. 13,04,826/- from Pension Payment Office Ahmedabad and is sent to the District Education Office, Ahmedabad on 2.7.2019.” 5.1 Thus pension case has been processed and the amount is sanctioned for the petitioner. 6. In view of the above development including the aspect that the Page 5 of 6

C/SCA/1562/2017 ORDER interim order dated 9.6.2017 was confirmed in Letters Patent Appeal No. 2440 of 2017 as above, the present petition deserves to be allowed. Accordingly, the petition is allowed and the impugned orders dated 27.10.2016 and 3.1.2017 passed by respondent No.3 District Education Officer are hereby set aside. The petitioner shall be entitled to receive pension and the respondents shall continue to pay the pension. 6.1 If any amount is remaining to be paid, the same shall be paid alongwith arrears within three weeks from the date of receipt of the present order else unpaid amount will carry interest at the rate of 8% from the date of order in the Letters Patent Appeal, that is from 16.4.2018 7. Rule is made absolute in the aforesaid terms. Direct service is permitted. (N.V.ANJARIA, J) C.M. JOSHI Page 6 of 6