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LPA/2107/2010 4/ 6 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS
PATENT APPEAL No. 2107 of 2010
In
SPECIAL
CIVIL APPLICATION No. 13847 of 2009
With
CIVIL
APPLICATION No. 10076 of 2010
In
LETTERS PATENT APPEAL No. 2107
of 2010
=========================================================
ARUNA
P RATHOD - Appellant(s)
Versus
STATE
OF GUJARAT & 2 - Respondent(s)
=========================================================
Appearance
:
MR
PARESH UPADHYAY for
Appellant(s) : 1,
MS ML SHAH AGP for Respondent(s) : 1 2
MR ND NANAVATI Sr. Counsel with MR RD DAVE for
Respondent(s):
3
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE A.L.DAVE
and
HONOURABLE
MR.JUSTICE BANKIM.N.MEHTA
Date
: 23/09/2010
ORAL ORDER
(Per
: HONOURABLE MR.JUSTICE A.L.DAVE)
The
appeal arises out of an order passed on 30.12.2009 in Special Civil
Application No.13847 of 2009 dismissing the appellant’s petition.
2. The
appellant had approached with the petition making the following
prayers :-
6. The
petitioner prays that, on the basis of the facts and circumstances as
mentioned hereinabove and which may be urged at the time of hearing,
the Honourable Court may be pleased to issue a writ of mandamus or
any other appropriate writ, order or direction to the respondent
authorities and may be pleased to :-
(A) quash
and set aside the decision of the respondent Corporation dated
21.3.2009, rejecting the application of the petitioner for Voluntary
Retirement and further be pleased to direct the respondent
authorities to accept the application of the petitioner for Voluntary
Retirement w.e.f. 8.9.2008 with all consequential benefits, and
(B) pending
admission and final disposal of this petition the Honourable Court
may be pleased to direct the respondent authorities to accept the
application of the petitioner for Voluntary Retirement w.e.f.
8.9.2008 and grant all consequential benefits, and
(C) award
the cost of this petition, and
(D) grant
any other relief or pass any other order which the Honourable Court
may consider as just and proper in the facts and circumstances of
the case.
3. The
facts of the case, in brief, are that the petitioner joined
respondent No.3-Corporation in the year 1979 and gradually rose to
the post of Deputy General Manager in the year 1996. Voluntary
Retirement Schemes for the employees of the Corporation were floated
in the year 1999 and 2003 and the appellant did not opt for the same.
The Corporation again floated such scheme in the year 2008, which was
almost on the same lines as the earlier schemes. The appellant opted
for the scheme. However, she was not permitted to do so on the ground
that she did not have more than three years of service left at the
time of opting for the scheme, which was an essential condition.
3.1 In
this context, the case of the petitioner was that her date of birth
is 8.9.1955. She would attain the age of 58 years on 8.9.2013 and,
therefore, in the year 2008 she would have more than three years of
service left before she attains the age of superannuation. The stand
of the Corporation being that as per the Rules, the age of retirement
is either the employee attaining the age of 58 years or completing 30
years of service, whichever is earlier. The petitioner-appellant
joined the service on 9.4.1979 and she would, therefore, complete 30
years on 8.4.2009 and, therefore, in the year 2008 she did not have
more than three years of service left for retirement at the time when
the Scheme was floated and opted for by the petitioner-appellant.
3.2 The
case of the petitioner-appellant is that uptill now all the Officers
were permitted to retire at the age of 58 years irrespective of
length of their service. It is also the case of the appellant that in
the year 2003 many Officers, who did not have more than three years
of service left for retirement were also permitted to opt for
Voluntary Retirement Scheme and the petitioner-appellant, therefore,
ought to have been given similar treatment.
4. The
case of the petitioner did not impress the learned Single Judge who
observed that the Scheme floated in the year 2008 clearly stipulated
that it was entirely the discretion of the management to accept or
not to accept any application for voluntary retirement and the
decision of the management on that issue was final and binding. It
was also observed that the petitioner had not challenged the
intimation about her reaching the age of superannuation on 9.4.2009
and had thus accepted the same and she, now, therefore, cannot
agitate on the question of length of service left considering the age
of superannuation to be 2013.
5. Learned
advocate Mr Upadhyay for the appellant has placed before us all the
facts and submitted that the appellant is denied equal treatment
along with others, who were permitted to work till they attained the
age of 58 years, irrespective of their length of service and who were
permitted to opt for VRS in the year 2003, irrespective of length of
service left at the time of opting for the VRS.
6. Learned
Senior Advocate Mr Nanavati appears with learned advocate Mr Dave for
the Corporation on an advance copy and learned AGP Ms Shah appears
for respondent Nos.1 and 2.
7. It
may be stated, at the outset, that the question of age of
superannuation is, now, no more available to be argued in light of
the Division Bench decision of this Court rendered in Letters Patent
Appeal No.1253 of 2005 and allied matters rendered on 14.3.2008,
where it has been specifically held that the age of superannuation
would be on the employee attaining 58 years of age or on completing
30 years of service, whichever is earlier. In the instant case,
therefore, the age of superannuation for the petitioner would be
8.4.2009. This aspect was communicated to the appellant and she did
not challenge or agitate the same. She, therefore, cannot be
permitted to say that because she would be attaining the age of 58
years in the year 2013, her case should be considered as a case of an
employee who has more than three years of service left at the time of
opting for VRS.
7.1 Similarly,
the parity claimed by the appellant that, earlier, employees were
permitted to take voluntary retirement irrespective of them having
more than three years of service left or not at the time of opting
VRS is not possible to be accepted for the reason that parity or
equal treatment cannot be claimed in acts which are dehors the rules
or law. An error or an illegal action cannot be made to subsist
perennially on the ground of equality. Similar, would be the
situation when it is contended that all Officers were permitted to
retire on attaining the age of 58 years. It would also be relevant to
note that the definition of age of superannuation came to be more
crystallized only in the year 2008 when the Division Bench decided
the issue.
8. In
light of the above fact situation, we do not find any merit in the
appeal. The appeal must fail and stands dismissed. No costs.
Consequently the civil application also stands disposed of.
(A.L.
DAVE, J.)
(BANKIM
N. MEHTA, J.)
zgs/-
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