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LPA/1942/2007 4/ 7 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS
PATENT APPEAL No. 1942 of 2007
In
SPECIAL
CIVIL APPLICATION No. 5287 of 2007
For
Approval and Signature:
HONOURABLE
MS. JUSTICE R.M.DOSHIT
HONOURABLE
MR.JUSTICE MD SHAH
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
STATE
OF GUJARAT THROUGH LEGAL DEPARTMENT & 4 - Appellant(s)
Versus
RANJANBEN
GHANSHYAMBHAI GADHAVI - Respondent(s)
=========================================================
Appearance
:
MS
MINI NAIR, AGP for Appellant(s) : 1 - 5.
MR PARESH UPADHYAY for
Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MS. JUSTICE R.M.DOSHIT
and
HONOURABLE
MR.JUSTICE MD SHAH
Date
: 18/03/2010
ORAL
JUDGMENT
(Per
: HONOURABLE MS. JUSTICE R.M.DOSHIT)
This
Appeal preferred under Clause 15 of the Letters Patent arises from
the judgment and order dated 3rd August 2007 passed by the
learned Single Judge in the above Special Civil Application No.5287
of 2007.
The
respondent Ranjanben Ghanshyambhai Gadhvi is the wife of
Ghanshyambhai Gadhvi-City Civil Judge, Ahmedabad (hereinafter
referred to as the late Shri Gadhvi ).
The late Shri Gadhvi passed away on 31st March 2006. The
dispute is in respect of entitlement of the respondent to family
pension as the widow of a deceased City Civil Judge.
The
late Shri Gadhvi, while practicing as a lawyer at Mehsana, had
accepted the employment as a Part Time Lecturer in S.M.Patel Law
College at Mehsana. Having served as Part Time Lecturer for two
years, in the year 1988 he joined the said Law College as Full Time
Lecturer. He served as Full Time Lecturer from 28th
November 1988 to 4th April 2000. On 4th April
2000, he resigned from the service and started legal practice. For
the service rendered by him as a teacher in the Law College, he was
receiving certain pension. After the practice of around two years,
he was selected and appointed as a City Civil Judge on 27th
September 2002. While in service as a City Civil Judge, he passed
away on 31st March 2006. On his passing away, the
respondent claimed family pension as the widow of a deceased City
Civil Judge.
While
her claim was under process, she was sanctioned family pension on the
basis of the pension received by the late Shri Gadhvi for his service
as a teacher in the law college. At first, the sanctioning authority
was skeptical. On 15th June 2006, a query was raised
regarding legality of the appointment of the late Shri Gadhvi as a
City Civil Judge. The officer was of the opinion that having
resigned from one Government service, the late Shri Gadhvi could not
have been appointed to another Government service or to any other
service for which he would be paid out of the Government treasury.
The officer was also of the opinion that in view of Rules 168 and 169
of the Gujarat Civil Services (Pension) Rules, 2002 (hereinafter
referred to as the Rules of 2002 ), late Shri Gadhvi was
not entitled to the second pension.
Feeling
aggrieved, the respondent filed the above Special Civil Application
No.5287 of 2007 before this Court under Article 226 of the
Constitution.
We
are informed that pending the petition, the petitioner’s claim for
family pension as the widow of a deceased City Civil Judge with
effect from 1st April 2006 is granted. Thus, the
grievance of the respondent stood substantially redressed. However,
as disclosed in the counter affidavit made by the Deputy Director of
Pension and Provident Fund; while paying the amount of family pension
and gratuity a sum of Rs.2,15,464/- was deducted and a sum of
Rs.62,071/- the amount of family pension paid to the respondent
since 1st April 2006 was adjusted.
In
view of the above development, the controversy now relates to the
deduction of Rs.2,15,464/- from the amount of family pension and
gratuity. The respondent does not dispute that she is not entitled to
two family pensions; one as the widow of the deceased teacher and the
other as the widow of the deceased Judicial Officer. She has no
grievance in respect of the sum of Rs.62,071/- adjusted against the
amount of arrears of family pension payable to her. As recorded
hereinabove, the controversy now centers around the deduction of the
above referred sum of Rs.2,15,464/-.
According
to the State Government that was the amount paid to late Shri Gadhvi
by way of pension and gratuity since his resignation from service as
a teacher. According to the State Government, late Shri Gadhvi was
not entitled to the pension and, therefore, the aforesaid amount was
required to be deducted. The defense did not find favour with the
learned Single Judge. The learned Single Judge has allowed the
petition to the extent the appellants are directed to pay to the
respondent the aforesaid sum of Rs.2,15,464/-. We are informed that
pending the Appeal, the said amount has been paid to the respondent.
Learned
AGP Ms.Nair has appeared for the appellants. She has relied upon
Rule 168 of the Rules of 2002. Rule 168 of the Rules of 2002
provides, inter alia, a Government employee who has received a
pension on retirement shall not, if re-employed in Government
service, be permitted to count his new service as qualifying for
second pension. If the new service is pensionable, it must be
combined for the purpose of calculating pension with the service
previously rendered and the whole service period be treated as one
service.
We
are of the opinion that fallacy lies in reliance placed on the
aforesaid Rule 168 of the Rules of 2002. The rule specifically
applies to a case of reemployment of retired Government servant. In
the present matter, neither late Shri Gadhvi had retired from service
as a teacher in the law school nor his appointment as a Judge, City
Civil Court was reemployment. The question of claim for second
pension, therefore, did not arise. We see no justification in
recovery of the amount of pension paid to late Shri Gadhvi during his
lifetime.
No
other contention is raised before us. We are of the opinion that the
Appeal is devoid of any merit. The Appeal is dismissed. The parties
will bear their own cost.
(Ms.R.M.Doshit,J)
(M.D.Shah,J)
pathan
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