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SCA/6077/1998 1/ 5 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 6077 of 1998
For
Approval and Signature:
HONOURABLE
MR.JUSTICE KS JHAVERI
=========================================================
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 ?
=========================================================
VAIDYA
M H BAROT - Petitioner(s)
Versus
STATE
OF GUJARAT & 2 - Respondent(s)
=========================================================
Appearance :
MR
BS SUPEHIA for
Petitioner(s) : 1,
MR. J.K.SHAH AGP for Respondent(s) : 1 -
3.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date
: 05/05/2010
ORAL
JUDGMENT
By way of this petition the
petitioner has prayed for directions declaring that the
respondents authorities are not entitled to recover from the
petitioner the market rent for the period from 21.5.1991 to
30.4.1993 being an amount of Rs. 41,650/- in view of rule 849(e) of
B.C.S. Rules and to restrain the respondent authorities from in any
manner recovering the said amount from the petitioner and also to
direct the respondent authorities to release the amount of Rs.
41,650/- withheld from the retiral benefits along with interest.
The
brief facts of the case are as under :-
2.1
As per the say of the petitioner, he has retired on superannuation
on 28.2.1998. The petitioner was not given retiral benefits and he
was informed by the respondent authority on 10.6.1998 that he had to
pay Rs. 41,650/- being the amount of market rent for the
unauthorized occupation of government quarter for the period from
21.5.1991 to 30.4.1993.
2.2
The petitioner therefore filed Special Civil Application bearing
no. 5664 of 1998 and authrised the government to withhold the
amount of Rs. 41,650/- from retrial benefits without prejudice to
his rights and contentions to challenge the power of the government
to recover the said amount after more than five years. As per the
petitioner , many officers of the government who had continued to
occupy unauthorizedly the government accommodation, was charged
market rent, but such amount was not recovered from them. On the
other hand the petitioner was charged market rent and sought
recovery thereof. Hence this petition.
Heard learned advocates
for the respective parties and perused the documents on record.
From the record it revealed
that the Petitioner has filed Special Civil Application bearing
no. 5664 of 1998. This Court on 22.9.1998, has passed following
order.:
The petitioner has retired on 28.2.1998
as Superintendent and Principal of Akhandanand Ayurved
Hospital/College, Ahmedabad. It is the grievance of the
petitioner that he has not been paid his post retirement
benefits even though no inquiry is initiated against him
or is contemplated under section 189-A the BCSRs.
Further, the provisional pension of the petitioner is not
fixed by the authorities on the basis of the new pay
scale, but the same is fixed on the basis of the old pay
scale at the time of his retirement and this has put the
petitioner into untold hardship and uncertainty and even
gratuity amount is also paid on the basis of old pay
scale though his pay has been revised in the new pay
scale by order dated 2.6.98.
2. It appears that the petitioner has retained the
Government quarters which he was occupying prior to his
retirement and therefore, recovery of an amount of Rs.
41,650/- is required to be made from the petitioner. The
petitioner, has in fact by his letter dated 29.6.98 at
Annexure.G informed the authorities that he has no
objection if the said amount is withheld without prejudice
tohisright and contention from the gratuity to be
received by the petitioner. However, there is no
justification to withhold the entire amount of retiral
benefits.
3. Even though this Court has issued notice to the
respondents on 28.7.98, the respondents have not filed
any reply. Considering the fact and circumstances of the
case, the following directions are given, the same would
serve the ends of justice.
A) The respondents are directed to take
appropriate decision as regards the payment of
retiral benefits of the petitioner according to
new pay scale within two weeks from today. If
any adverse decision is taken in the matter, the
same shall be communicated to the petitioner.
B) In pursuance to any adverse decision that
may be taken against him, if any inquiry is
initiated, then in that event, till the
completion of the inquiry, the petitioner shall
be paid provisional pension according to new pay
scale , if applicable to the petitioner. The
provisional pension and other retiral benefits of
the petitioner will be fixed on the basis of the
new pay scale, if applicable and subject to audit
objections.
C) In case a decision is taken that the
petitioner is entitled to have full retirement
benefits, then in that case it will be open for
the respondents to withhold such amount which is
permissible to be deducted from the gratuity
amount being the amount of rent for the use and
occupation of the residential quarter by the
petitioner.
In view of these directions, the petition stands disposed
of. Notice
discharged. No order as to costs.
The aforesaid order has not
been challenged and therefore, it achieved finality. In the said
order, there was a direction that if the petitioner is entitled to
have full retirement benefits, then in that case it will be open for
the respondents to withhold such amount which is permissible to be
deducted from the gratuity amount being the amount of rent for the
use and occupation of the residential quarter by the petitioner.
In my view, since the
petitioner has already given his consent for allowing the amount to
be deducted, the said amount is deducted and order is passed fixing
his new pay scale.
In any case, as per
Government Resolution No. SED/1076/1960-II (I) dated 22.10.1982,
the petitioner ought to have vacated the quarters within two months,
from the date of his transfer, on 20.3.1991. Thereafter the
petitioner continued in the quarter and he is liable to make the
market rent.
Even otherwise, since the
petitioner himself has given consent for deducting the amount, no
case is made out for interference. The petition is disposed of
accordingly . Rule is discharged with no order as to costs.
[K.S.Jhaveri,J.]
*Himansu
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