JUDGMENT
S. Nainar Sundaram, C.J.
1. This Letters Patent Appeal is directed against the order of the learned single Judge in Special Civil Application No. 4494 of 1987. Respondent No. 1 in the Special Civil Application is the appellant herein. Respondents Nos. 1 to 3 herein are the legal representatives of the original petitioner in the Special Civil Application and respondent No. 4 herein is respondent No. 4 in the Special Civil Application. It will be convenient if we refer to the parties as per their array in the Special Civil Application, except respondents Nos. 1 to 3 herein, who if occasion therefore arises, shall be referred to as ‘the legal representatives’.
2. The original petitioner was employed in the erstwhile Sind Government on and from 14-3-1941. His employment upto 11-6-1945 was on temporary basis. With effect from 12-6-1945, he became a permanent employee of the erstwhile Sind Government and he continued to be so upto 30-10-1947. There was a break in service between 1-11-1947 and 19-5-1948. On and from 20-5-1948; the original petitioner was employed in the State of Bombay. On 27-9-1949, he was transferred to the Bombay Housing Board. On bifurcation of the State of Bombay, the original petitioner was taken over by the Gujarat Housing Board on 1-5-1960. The original petitioner retired as an employee of the Gujarat Housing Board on 19-4-1974. The original petitioner, while he was in the services of the Gujarat Housing Board, opted for the Contributory Provident Fund Scheme of the Gujarat Housing Board and obtained all the benefits under the Scheme, on his superannuation. However, by preferring the Special Civil Application, the original petitioner coveted the relief of pension including arrears and other ancillary benefits. The learned single Judge, who dealt with the Special Civil Application, opined that with regard to the eligibility for pension of the original petitioner, there cannot be any doubt and chose to cast the liability to pay such pension on respondent No. 1. The initial order of the learned single Judge was made on 8-4-1992 and on further working out of the details of the pensionary benefits, the learned single Judge made the ultimate order on 2-9-1992 directing respondent No. 1 to disburse a sum of Rs. 1,49,248-40 Ps., as well as interest thereon. The learned single Judge also directed payment of family pension to legal representative No. 1.
3. We heard Mr. Anil R. Dave, learned Additional Government Pleader, appearing for respondent No. 1/appellant herein; Mr. K.G. Vakharia, learned Senior Counsel, who lent his services to the legal representatives, at the instance of the Court; and Mrs. K.A. Mehta, learned Counsel for respondent No. 4.
4. The endeavour of respondent No. 1, as put forth by the learned Additional Government Pleader appearing for respondent No. 1, was to shirk off its liability to bear the burden of pension that was directed to be borne by the orders of the learned single Judge. We have carefully looked into the implications of the service position of the original petitioner in the context of the statutory provisions, which have come into play with reference to such service position. All said, the indisputable feature, which we are bound to take note of is that after the original petitioner got into the services of the Bombay Housing Board with effect from 27-9-1949, it could not be said that he continued to be a Government servant to earn the pensionary benefit on that basis, whatever be the position prior to that date. However, Mr. K.G. Vakharia, learned Senior Counsel, advancing the cause of the legal representatives, would submit that the original petitioner though serving Housing Board of the States, must be deemed to have served in connection with the affairs of the State of Bombay and after bifurcation, of the State of Gujarat and hence he should not be denied pensionary benefits. In this behalf, the learned Senior Counsel placed reliance on Section 81 of the Bombay Re-organisation Act, 1960. Here, we find a case where on the constitution of the Bombay Housing Board, the original petitioner got into the service of the Bombay Housing Board and thereafter he could only have the character of a servant of the Bombay Housing Board, governed by all the service benefits annexed to such services. Here, we are not able to find a lever for the original petitioner to claim that despite his being drafted into the services of the Bombay Housing Board in 1949 and thereafter into the services of the Gujarat Housing Board in 1960, he continued to be a Government servant as such. It is true that the set of expressions ‘…in connection with the affairs of the State….’, occurring in Section 81 of The Bombay Re-organisation Act, 1960, has not been defined in that Act. But for that reason, it is not possible to give a large and an expansive meaning to that set of expressions so as to give an employee, who had ceased to be a Government servant and who bad gone into the services of the Bombay Housing Board and thereafter into the services of the Gujarat Housing Board, the character of a Government servant. While pronouncing this opinion of ours, we are not supposed to touch and we have not touched the question as to whether the original petitioner continued to have the pensionary benefits, which he might have had as a Government servant of the State of Bombay prior to his being drafted into the services of the Bombay Housing Board. Hence, we are not able to support the decision of the learned single Judge when he chose to mulct the liability on respondent No. 1, assuming that the original petitioner had the right to earn pensionary benefits.
5. Then the question that relevantly arises for consideration is as to whether the original petitioner had the right to pensionary benefits and continued to have the said right on the date of his superannuation. On the original petitioner getting into the services of the Bombay Housing Board, it is possible to bring his case within the ambit of Section 14(1) proviso of the Bombay Housing Board Act, 1948, which only speaks about absorption of the existing staff of the Bombay Provincial Housing Board by the Bombay Housing Board. There is no need to brood over and vivisect a proposition built on that provision. We shall however proceed on the assumption that the original petitioner could have had pensionary benefits by virtue of Section 14(1) proviso of the Bombay Housing Board Act, 1948. But when the original petitioner went over to the services under the Gujarat Housing Board on and from 1-5-1960, we have to see as to whether the said benefits continued to vest in him so as to mulct the Gujarat Housing Board with the liability to pay pensionary benefits to him. In this connection Mr. K.G. Vakharia, learned Senior Counsel, representing the cause of the legal representatives, would draw our attention to Section 86(2)(ix) of the Gujarat Housing Board Act, 1961 and in particular the proviso thereto to say that the original petitioner must be held to have continued to enjoy the conditions of service as he enjoyed prior to his being drafted into the services of the Gujarat Housing Board and any variation of the conditions of service could not be to the disadvantage of the original petitioner. In answer, Mrs. K. A. Mehta, learned Counsel appearing for respondent No. 4, would submit that even as per the language of the proviso to Section 86(2)(ix), the service conditions of a servant, like the original petitioner, which he enjoyed prior to his getting drafted into the Gujarat Housing Board will be effective until provision is otherwise made under the provisions of the Gujarat Housing Board Act, 1961 and here.
6. Section 15 of the Gujarat Housing Board Act, 1961 has been conceived of and provided for the establishment of the provident fund and that excludes the retrial benefits of pension. When we look to Section 15 of the Gujarat Housing Board Act, 1961, we find that there is a provision for establishment of the provident fund for the servants of the Gujarat Housing Board. Then, the question is as to whether the proviso to Section 86(2)(ix) should be taken note of so as to say that the conditions of service of the original petitioner were varied to his disadvantage by providing for the provident fund scheme. Such could not have been the concept entertained by the original petitioner himself, because we understand that he did contribute to the provident fund, thus obliging the Gujarat Housing Board to make its own contribution and ultimately he did withdraw the benefits under the provident fund. However, Mr. K.G. Vakharia, learned Senior Counsel, advancing the cause of the legal representatives, would draw our attention to the Resolution of the Gujarat Housing Board in the meeting held on 28-9-1978 to say that the Gujarat Housing Board decided to countenance the claim of the original petitioner for accord of pension on the original petitioner refunding the provident fund benefits received by him. In answer, Mrs. K. A. Mehta, learned Counsel appearing for respondent No. 4, would submit that the Resolution, as such, could not be stated to have become efficacious, the reason being that it did not have the approval of the Government and a bare Resolution of the Board could not be pressed forth into service by the original petitioner and now by the legal representatives; and in this connection the learned Counsel for respondent No. 4 draws our attention to the relevant provisions of the Gujarat Housing Board Act, 1961 to say that without the sanction of the State Government no effectuation of a Resolution determining the remuneration and other conditions of service of the servants of the Gujarat Housing Board could happen. We have not found any answer given on behalf of the legal representatives to this position advanced by the learned Counsel for respondent No. 4.
7. The result of our discussion which has preceded is, the original petitioner though, ultimately, was in the services of the Gujarat Housing Board and retired in such services, was not occupying any pensionable post and hence he could not ask for the accord of pension. Thus, there is no possibility of mulcting any liability for payment of pension to the original petitioner and thereafter arrears thereof to the legal representatives or family pension to legal representative No. 1, either on respondent No. 1 or on respondent No. 4. This being our assessment of the position in law and on the facts of the case, we are not able to sustain the order of the learned single Judge and we are not able to extend any relief to the legal representatives, who alone are now before the Court. Accordingly, we allow this Letters Patent Appeal, set aside the order of the learned single Judge, subject-matter of this Letters Patent Appeal and the Special Civil Application No. 4494 of 1987 will stand dismissed. Interim relief granted in Civil Application No. 398 of 1993 is made absolute. We make no order as to costs.