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SCA/8824/1998 21/ 21 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 8824 of 1998
For
Approval and Signature:
HONOURABLE
MR.JUSTICE KS JHAVERI Sd/-
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1.
Whether
Reporters of Local Papers may be allowed to see the judgment ?
NO
2.
To
be referred to the Reporter or not ?
NO
3.
Whether
their Lordships wish to see the fair copy of the judgment ?
NO
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 ?
NO
5.
Whether
it is to be circulated to the civil judge ?
NO
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M
N SHETH - Petitioner
Versus
STATE
OF GUJARAT & 2 - Respondents
======================================
Appearance
:
MR
RR VAKIL for Petitioner.
MS SHRUTI PATHAK, AGP for Respondent
Nos.1 - 2.
MRS VD NANAVATI for Respondent No.3.
======================================
CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date
: 03/10/2011
ORAL JUDGMENT
1. By
way of this petition, the petitioner has prayed for
the following reliefs :-
be
pleased to admit this petition;
be
pleased to issue a writ of mandamus or any other appropriate writ,
order or direction in the nature of mandamus restraining the
respondents from relieving the petitioner from his service in L. M.
College of Pharmacy, Ahmedabad on his superannuation on 31.10.1998
and further be pleased to direct the respondents to allow the
petitioner to continue in service beyond 31.10.1998 and treat him as
continuing in service as such and allow him to retire on
superannuation on his attaining the age of 62 years, with all
consequential and incidental benefits;
pending
admission, hearing and final disposal of this petition, be pleased
to restrain the respondents from relieving the petitioner from his
service in L. M. College of Pharmacy, Ahmedabad on his
superannuation on 31.10.1998 and further be pleased to direct the
respondents to allow the petitioner to continue in service beyond
31.10.1998 and treat him as continuing in service as such and allow
him to retire on superannuation on his attaining the age of 62
years, with all consequential and incidental benefits;
2. Identical
issue came to be raised in Special Civil Application No.4047 of 1999
and this Court vide judgment and order dated 05.12.2006 dismissed the
said petition. The said judgment is extracted below :-
“1. This
writ petition under Article 226 of the Constitution of India is
preferred by the petitioners, who were employees of the Government
Engineering Colleges of State of Gujarat. At the relevant point of
time, all the petitioners were in service and particulars regarding
service of the petitioners are provided as per the chart annexed at
Annexure-A to the petition. The petitioner Nos.1, 3 and 6 are
Assistant Professor, while petitioner Nos.2 and 5 are Professors and
petitioner No.4 is the Principal. In this petition, the petitioners
have prayed for the following reliefs :
(a) to direct
the respondents to give benefit of the increased age of
superannuation of 62 years to the petitioners – teachers of
Engineering Colleges w.e.f. 31.7.1998 as directed by the Central
Government and the All India Council for Technical Education (AICTE)
vide communications dated 31.7.1998, 2.9.1998 and 9.10.1998 as per
Annexure-B colly and to further direct the respondents to continue
the petitioners in service of their respective posts as teachers in
the faculty of Engineering till they attain the age of 62 years;
OR IN THE
ALTERNATIVE
(b) To direct
the respondents to give benefit of the enhanced age of superannuation
of 62 years to the petitioners – teachers of Engineering
Colleges w.e.f. 7.9.98 as has been given to the other employees of
the universities/colleges by the Government of Gujarat vide its
resolution dated 7.9.98, 30.10.98 and 29.4.99 as per Annexure-C
colly, and to further direct the respondents to continue the
petitioners in service on their respective posts as teachers in the
faculty of Engineering till they attain the age of 62 years.
1.1 The main
challenge in this petition is to the action of the respondent, in
issuing Government Resolution dated 26.5.1999 by which date of
superannuation of all teachers in the Department of Engineering is
fixed at the age of 62 years and effect of the superannuation age of
62 years is to be given from the date of issuance of the above GR
dated 26.5.1999. Thus, the petitioners who were to retire on
14.6.1999 were deprived of the above benefit accruing out of the said
GR dated 26.5.1999. It is to be noted that as per the G.R. Dated
16.6.1993 of the State Government, to obviate the difficulties
arising due to retirement of a teacher during current academic
session, if the date of the superannuation of any teacher falls
during such academic session, such an employee is allowed to be
retired on the last date of the academic session, meaning thereby two
dates for actual superannuation of the teachers in colleges are
namely 31st October and 14th June of a given
year and such dates become actual date of retirement. Since in the
present case date of superannuation, on attaining age of 58 years
occur in the midst of academic session beginning from 1.11.1998 to
14.6.1999, the actual date of retirement, with an extension, for all
the teachers / petitioners herein remain 14.6.1999. Thus, according
to the petitioners, if the benefit of fixation of superannuation age
of 62 years had been given to the petitioners, on par with other
teachers of different faculties of the colleges / universities of
the State of Gujarat, as decided by the Government of Gujarat w.e.f.
7.9.1998, the petitioners would have been benefited and by creating
artificial cut-off line dated 26.5.1999, in the case of the
petitioners the Government has acted discriminatorily,
unreasonably, arbitrarily and in violation of Articles 14 and 16 of
the Constitution of India. The case of the petitioners is on stronger
footing according to the petitioners, since Ministry of Human
Resources of Government of India by communication dated 31.7.1998,
copy of which was sent to AICTE, informing the decision
of Government of India that age of superannuation of the teachers of
Universities and Colleges is to be increased from 60 to 62 years for
all Central Institutions governed by AICTE. Apropos to that, AICTE
addressed communication dated 2.9.1998, to all Secretaries of State
Governments about decision taken by the Ministry
of Human Resources Department of Government of India, regarding
increasing the age of superannuation of teachers from 60 to 62 years
for information and necessary action. Since the
petitioners are the teachers in Engineering Colleges of the
State of Gujarat and governed by the decision of AICTE, an autonomous
statutory body, created under All India Council for Technical
Education Act,1987, they were entitled to
the benefits of the above decision with immediate effect as laid down
in the communication of Government of India dated 31.7.1998, where
effect of the decision was to be given from 31.7.1998 only.
1.2 According
to the petitioners, later on another decision was taken by the
Ministry of Human Resources Development (Department of Education) of
Government of India and communication was sent on 9.10.1998,
informing all the Secretaries dealing with technical education in
different States and Union territories about revision of pay scales
of teachers in engineering colleges and other such Institutions as
per recommendations of 5th Central Pay Commission. As per
the said communication, Central Government has decided to provide
financial assistance to State Government on certain terms and
conditions, by which expenses of revised pay scales to the extent of
80% was to be borne by Central while remaining 20% of the expenditure
to be borne by the State Government. The above financial assistance
was to be provided for the period from 1.1.1996 to 31.3.2000 and
thereafter, entire liability of the expenses pertaining to pay scales
to be borne by the State Government w.e.f. 1.4.2000. The effect of
the above revised pay scale was to be given by the State Government
from 1.1.1996 and from 27.7.1998, as the case may was a later date.
Thus, discretion of fixing date qua pay scale was left to the State
Government.
1.3 In view of
the above communications so far as the State Government of Education
Department is concerned, GR dated 7.9.1998 was issued by which
revision of pay scales of teachers, librarians
and other personnels in University and College was given effect from
1.1.1996. That another GR dated 30.10.1998 issued by the Education
Department of Government of Gujarat by which age of superannuation
was fixed for teachers of University / Colleges completing the age of
58-60 years as on 7.9.1998 or subsequent to that, superannuation age
was fixed at 62 years. Thus, benefits of superannuation age was given
to all those teachers of Government Colleges and Universities except
the petitioners who were serving in the
Engineering Colleges run by the State of Gujarat and governed as per
the Rules and Regulations framed by the AICTE, a technical body
formed under the statutory provisions of the Act.
2. Thus, the
grievance of the petitioners against the Resolution issued by the
Education Department of State of Gujarat dated 26.5.1999 by which
cut-off line of granting benefit of age of superannuation to the
persons like the petitioners is fixed at 62 years, but the effect of
enhanced age to be given from the date of the said GR i.e. 26.5.1999.
The State Government has conferred the benefits of higher and
revised pay scale w.e.f. 1.1.1996 by the same GR dated 26.5.1999 on
par with other teachers of the colleges and universities, even
receiving financial aids from the Government, but the petitioners are
deprived of benefit of superannuation by fixing the cut-off line
arbitrarily i.e. 26.5.1999, though they are serving in the Government
colleges.
3. Shri
K.B.Pujara, learned Advocate for the petitioners, has mainly argued
that pay scale and age of superannuation of the petitioners are
governed by the Circulars or Resolutions issued by the Education
Department of the State Government and such G.R and Circulars are
normally based on the recommendations made by the AICTE, a statutory
autonomous body constituted under All India Council for Technical
Education Act,1987. The above body also takes into consideration the
decision taken by the Ministry of Human Resources (Department of
Education) of the Government of India and thus, the service
conditions of the petitioners are based on the norms as fixed by
AICTE and Department of Education of State of Gujarat. Thus,
according to Shri Pujara, learned advocate, issuance of letter by
the Ministry of Human Resources dated 31.7.1998 and communication of
the above letter addressed by AICTE to all the Secretaries of the
State of Gujarat on 2.9.1998 and 9.10.1998 confer benefits of
enhanced age of superannuation and revised pay scale to the
petitioners and State Government cannot deprive the petitioners by
fixing the cut-off date as laid down in GR dated 26.5.1999,
particularly when the benefits of age of superannuation of 62 years
were given by the Education Department of the State of Gujarat to
other teachers and employees of the
Colleges and Universities of non-Government as well as affiliated
colleges, of revised pay scale w.e.f. 1.1.1996 and/or age of
superannuation w.e.f. 7.9.1998. According to Shri Pujara, learned
advocate, the above decision of the authority is directly against the
decision of the Apex Court in case of D.S.Nakara Vs. Union of India,
reported in AIR 1983 SC 130 and other decisions which followed the
ratio of the above decision and, therefore, unreasonable, arbitrary
and discriminatory and violative of Articles 14 and 16 of the
Constitution of India and require to be quashed and set aside in the
exercise of powers under Article 226 of the Constitution of India.
4. Shri
S.P.Hasurkar, learned AGP appearing for the respondent authorities,
has mainly relied on the affidavit-in-replies filed by the concerned
Officers of the Education Department namely Shri R.V.Suthar, Under
Secretary to the Government of Gujarat and another affidavit
explaining the rational behind fixing the date of benefit of
superannuation. According to him, the service conditions of the
petitioners are governed as direction issued by the AICTE while the
teachers of other colleges of Government as
well as affiliated to Government is by the University Grant
Commission and, therefore, no equality can be claimed. It is also
submitted that it was left open for the State Government to decide
about the date of implementation and scales of pay as communicated by
a letter dated 9.8.1998 and particularly in Clause-5 of the said
communication, the above discretion was given to the State
Government. He has also drawn attention to a letter dated 15.3.2000
addressed by the AICTE by which, in Para.2.2 date of effect of
revised pay scale was decided as 1.1.1996 or from such later date as
the concerned respective State may decide. Therefore, according to
him, the effect of the superannuation age of 62 years is the date on
which, GR dated 26.5.1999 was issued, which cannot be said to be
arbitrary or unreasonable or discriminatory and violative of Articles
14 and 16 of the Constitution of India, particularly when after
1.4.2000, the expenses with regard to revised pay scale was to be
borne by the State Government and any
retrospective effect of the above GR granting benefit to petitioners
would have entailed huge financial burden and, therefore, the
decision of the respondent authorities does not require any
interference, by issuing mandamus to the respondents, as prayed by
the petitioners in the prayer clause.
5. I have
considered the submissions of learned Advocates appearing for the
petitioners as well as for the respondents. On perusal of record,
which includes relevant annexures and affidavit-in-replies,
affidavit-in-rejoinder and also an additional affidavit filed by the
respondents, it is evidently clear that service conditions of the
petitioners are governed by various circulars and resolutions issued
by the Department of Education, State of Gujarat. It is also to be
noted that for issuing such circulars and GRs, the Department of
Education, State of Gujarat take into consideration various
recommendations made by All India Council for Technical Education
(“AICTE” for short), which is an autonomous statutory
body constituted under All India Council for Technical Education
Act,1987, based on the decision taken by the Ministry of Human
Resources Development (Department of Education) of Government of
India. Thus, the fortune of the petitioners moves on the axis of
decision taken at the highest level namely the Ministry of Human
Resources (Department of Education) of Government of India. It is to
be noted that after the formation of AICTE, the recommendations
regarding pay scale and age of superannuation are made by the AICTE,
whose functions and duties are enshrined in Section 10 of the said
Act and even AICTE also bound by direction given by Central
Government from time to time under Section 20 of the Act. That prior
to AICTE, service conditions of the petitioners were governed as per
the recommendations of the University Grant Commissions.
5.1 Therefore,
for all purposes, service tenure of the petitioners was to be
regulated as per the instructions and recommendations made by AICTE
from time to time. In the above backdrop of factual and legal
aspects, the Ministry of Human Resources had issued a communication
on 31.7.1998 by which age of superannuation of teachers was increased
from 60 to 62 years and all the concerned were informed accordingly
to take necessary action and the above order was to come into force
w.e.f. 31.7.1998. The AICTE had communicated the above decision of
the Ministry of Human Resources of Government of India to all
concerned State Governments where the impact of the said decision was
to take place. It was made clear that in view of the above decision
of increasing age of superannuation of teachers from 60 to 62 years,
necessary action was to be taken by the concerned State Government /
Union territories and other authorities.
5.2 Therefore,
the above communication dated 31.7.1998 by Ministry of Human
Resources, Government of India and following communications dated
2.9.1998 by the AICTE to all concerned Secretaries of the State /
Union territories and other authorities of that Union to the
increase of superannuation of the teachers from 60 to 62 years,
whose service conditions were governed in accordance with the AICTE
recommendations and guidelines. In view of the above, the State of
Gujarat, Department of Education was to carry out the above
directions of enhanced age of superannuation as early as possible and
as reflected, at least from the date of order i.e. 31.7.1998, as
fixed by the Ministry of Human Resources, Government of India.
5.3 It is to be
noted that other communications addressed by the Ministry of Human
Resources Development (Department of Education), Government of India
on 9.10.1998 is pertaining to revision of pay scale of teachers in
Engineering Colleges and degree level technical Institutions about
recommendations of 5th Central Pay Commission. It also
contains scheme of revision of pay scale and providing financial
assistance to the State Government, who wish to adopt and implement
the scheme of revision of pay scale to the tune of 80% of an
additional expenditure involving the implementation of the scheme and
20% of the rest of the expenditure to be borne by the State of
Gujarat. The said assistance covered the period from 1.1.1996 to
31.3.2000 and after 1.4.2000, the expenses were to be borne by the
State of Gujarat only. It is to be noted that Government of Gujarat
(Department of Education), by issuing the GR dated 7.9.1998 passed a
Resolution by which pay scale of teachers, librarians, physical
education and personnel of universities and colleges decided to
revise pay scale from 1.1.1996 to the above class of employees
bringing on par with revised pay scale given to the teachers of
universities and colleges as per earlier recommendations of Mehrotra
Commission of Government of India. So far as another Resolution dated
30.10.1998 is concerned, it also contained revision of pay scale of
teachers, librarians and other employees of physical education,
Department of Government and non-Government colleges and universities
it decided about fixation of age of superannuation and it was
resolved to increase the age of superannuation of teachers of
universities / colleges, who are completing the age of 58/60 years as
on 7.9.1998 to 62 years. Not only that, but revised pay scale was
subsequently given by keeping measures for maintenance of standard in
higher education for all personnels in universities and colleges in
Government as well as non-Governmental colleges by issuing GR on
29.4.1999 and there also, age of superannuation of 62 years was made
applicable to Registrars, Librarians, Physical Education personnels
and other employees of universities, who were treated on par with the
teachers and whose age of superannuation was 58/60 years. Till then,
the petitioners, who were serving in the Engineering Colleges run by
the State of Gujarat, were not given any benefit in spite of clear
communication dated 31.7.1998 and 2.9.1998 about fixation of date of
superannuation.
5.4 The
benefits of revised pay scales was conferred upon the petitioners
only by issuing GR dated 26.5.1999. Thus, pay scale of the
petitioners came to be revised w.e.f. 1.1.1996, making them on par
with other teachers of universities / colleges as decided in GR dated
30.10.1998 issued by the Education Department of Government of
Gujarat, but while granting the benefit of increased age of
superannuation, it was made effective from the date of issuance of
impugned GR i.e. 26.5.1999, without assigning any reasons or rational
of fixing the above date as the date of superannuation. Annexure-III
annexed with the aforesaid GR dated 26.5.1999, Clause-5 fixes the
above age of 62 years making it effective from the date of issuance
of GR.
6. It
is clear from the above discussions of facts that the petitioners,
before advent of AICTE, service conditions were governed by the UGC
and later on by the AICTE. All recommendations and guidelines issued
by AICTE were to be carried out by the Department of Education, State
of Gujarat and thus, the State Government was duty bound to implement
the recommendations of Ministry of Human Resources (Department of
Education) of Government of India dated 31.7.1998, as communicated by
AICTE on 2.9.1998. It is admitted position, as reflected from the
affidavit-in-reply that there appear to be delay of about 8 months,
only because files pertaining to implementation of the
recommendations as above, moved from one department to
other department. Meanwhile, the benefits of revised pay scales and
fixation of age of superannuation qua other employees of the
Governmental as well as non-Governmental colleges and universities
were already given by GR dated 30.10.1998 and 29.4.1999. Even date of
superannuation of 62 years indicated in Part-1 and Part-6 of the
Appendix appended to the GR dated 7.9.1998 was made applicable to all
employees of the universities. There appears to be no justification
or rational behind not granting
the benefit of age of superannuation 62 years to the petitioners,
whose services are governed by the AICTE recommendations made
pursuant to the decision taken by the Ministry of Human Resources,
Government of India. It is also to be noted that the present
petitioners are serving as the teachers in the colleges run by the
State of Gujarat and not any financial aided private or semi
Government colleges. It is also pertinent that only difference sought
to be made by the learned AGP is based on recommendations of
University Grant Commission and the AICTE from time to time.
According to him, the benefit given to the teachers of other colleges
may be Governmental or non-Governmental or even employees of the
universities was as per the guidelines issued by the UGC and the
present petitioners governed as per the recommendations of AICTE.
Therefore, it cannot be said that they formed a homogeneous group,
which require equal treatment at the hand of the State Government.
According to him, it was left open for the State Government to decide
about the date of implementation of revised pay scales and service
conditions as per the communication issued by the AICTE on 15.3.2002
as communicated by the letter dated 15.3.2000. He has submitted
that the revised pay scales was to be made effective from 1.1.1996 or
from such later date as may be decided by the State Government or
union territories and, therefore, no discriminatory treatment is
meted out to the present petitioners. He has submitted that in view
of the decision reported in AIR 1992 SC 767 since there is huge
financial burden, it is open for the State Government to fix a
particular date as the date of superannuation, does not appeal to
this Court, since the above decision was pertaining to introduction
of an entirely new scheme by the employer, where it had no connection
with the existing scheme and different considerations entered in the
decision making process and, therefore, considering the financial
impact the Apex Court upheld, the date of fixation of pensionary
benefit for the employees working in the Government aided private
primary school. In the present case, so far as the petitioners are
concerned, they were getting benefit of equal treatment with regard
to revised pay scales and other service conditions from time to time
on par with employees of all the Governmental as well as
non-Governmental colleges and universities, as issued by the
Department of Education, State of Gujarat. Not only that, but in the
instant case, even revision of pay scales were also
given to the petitioners and other employees
w.e.f. 1.1.1996 by GR dated 26.5.1999, the only discrimination meted
out is of granting benefit of age of superannuation i.e. 62 years. It
is profitable to note that similar issue arose in the case of
D.S.Nakara Vs. Union of India, reported in AIR
1983 SC 130
and Court has observed as under in Para.15, 16 and 32 :
“The
fundamental principle is that Art. 14 forbids class legislation but
permits reasonable classification for the purpose of legislation
which classification must satisfy the twin tests of classification
being founded on an intelligible differential which distinguishes
persons or things that are grouped together from those that are left
out of the group and that deferentia must have a rational nexus to
the object sought to be achieved by the statute in question. The
doctrine of classification was evolved to sustain a legislation or
State action designed to help weaker sections of the society or some
such segments of the society in need of succour. Legislative and
executive action may accordingly be sustained if it satisfies the
twin tests of reasonable classification and the rational principle
correlated to the object sought to be achieved. The State, therefore,
would have to affirmatively satisfy the Court that the twin tests
have been satisfied. It can only be satisfied if the State
establishes not only the rational principle on which classification
is founded but correlates it to the objects sought to be achieved.
Where all relevant considerations are the same, persons holding
identical posts may not be treated differently in the matter of their
pay merely because they belong to different departments. If that
cannot be done when they are in service, can that be done during
their retirement? Expanding this principle, it can confidently be
said that if pensioners form a class, their computation cannot be by
different formula affording unequal treatment solely on the ground
that some retired earlier and some retired later.”
6.1 That even
the Apex Court in the reported decision in the case of V.Kasturi
v. Managing Director, State Bank of India, Bombay & Anr., AIR
1999 SC 81, in Para.21, has held as under :
“21. If
the person retiring is eligible for pension at the time of his
retirement and if he survives till the time by subsequent amendment
of the relevant pension scheme, he would become eligible to get
enhanced pension or would become eligible to get more pension as per
the new formula of computation of pension subsequently brought into
force, he would be entitled to get the benefit of the amended pension
provision from the date of such order as he would be a member of the
very same class of pensioners when the additional benefit is being
conferred on all of them. In such a situation the additional benefit
available to the same class of pensioners cannot be denied to him on
the ground that he had retired prior to the date on which the
aforesaid additional benefit was conferred on all the members of the
same class of pensioners who had survived by the time the scheme
granting additional benefit to these pensioners came into force. The
line of decisions tracing their roots to the ratio of Nakara’s case
(AIR 1983 SC 130) (supra) would cover this category of cases.”
Thus, the Apex
Court has laid down the law to the extent that if an employee is
entitled to have the benefits conferred upon the other similarly
situated persons, such an employee cannot be deprived the benefits on
the ground of giving effect of such benefit from a particular date.
In the present case, it is an admitted position that the petitioners
are entitled to have benefit of enhanced superannuation age and
effect of which is given by the Government Resolution dated 26.5.1999
is on the ground that some delay has taken place of about 8 months in
processing the file of the subject by various departments of the
State of Gujarat. Therefore, petitioners, otherwise entitled for the
benefit of enhanced superannuation age on part with teachers of the
Arts, Commerce and Science colleges run by grant-in-aid colleges and
even the employees of the universities of the State of Gujarat, who
have been conferred the benefits of superannuation age of 62 years by
GR dated 7.9.1998 and 30.10.1998, the petitioners are equally
entitled for the above benefits and by not conferring such benefits
to the petitioners, the respondents have acted unreasonably and
arbitrarily in violation of Article 14 of the Constitution of India
and, therefore, it requires to be set right by this Court in exercise
of power under Article 226 of the Constitution of India.
6.2 It is also
to be noted that there are only six persons like the petitioners who
were to get benefit of the decision of the Government, if fixation of
age of superannuation of 62 years was given w.e.f. 7.9.1998, as
given to other employees by the Resolution supra.
6.3 Therefore,
in the present case, submissions of learned AGP about grant of
discretion to the State Government about fixation of particular date
by the communication of AICTE dated 15.3.2000 is concerned, the same
is about revision of pay scale like communication dated 9.10.1998 and
not about the fixation of age of superannuation. It was also made
clear by the AICTE in its earlier communication dated 9.10.1998,
where the decision taken by the Ministry of Human Resources,
Government of India on 31.7.1998 about enhanced age of superannuation
for the teachers from 60 to 62 years was already communicated for
necessary
action. If any delay is taken in getting sanction of various
departments of the State Government which is delayed by 8 months,
nothing prevented the State of Gujarat from giving effect of the
said decision with retrospectivity or at least from the date when the
same is given to similarly
situated persons by GR dated 7.9.1998, 30.10.1998 and 29.4.1999.
6.4 In the
circumstances, it is held that effect of fixation of the age of
superannuation of the petitioners, of 26.5.1999 i.e. the date of
issuance of the GR is unreasonable, arbitrary, discriminatory and has
no nexus with the object sought to be achieved and, therefore,
violative of Articles 14 and 16 of the Constitution
of India, which is required to be quashed and set aside in exercised
of powers under Article 226 of the Constitution of India and the same
is quashed and set aside.
6.5 In view of
the above discussion and findings, it is held that the decision of
the respondent authorities only to the extent of giving effect of
fixation of the age of superannuation from 58 to 62 years vide GR
dated 26.5.1999 issued by Department of Health, State of Gujarat, as
reflected in Clause-V of Annexure-III attached to the above GR, is
hereby quashed and set aside and rest of the contents of the
notification including enhanced age of superannuation of 62 years
remain as they are. It is hereby further held that petitioners are
entitled to have the benefits of enhanced age of superannuation from
58 to 62 years on par with other teachers of the colleges of the
Government and the staff of universities as per GR dated 7.9.1998 and
30.10.1998. However, it is made clear that since the petitioners have
already been superannuated by attaining the age of 58 years, the
period from 58 years to 62 years shall have to be considered for the
purpose of continuing of services and other retiral benefits and
notional for the payment of salary.
6.6 The effect
of this order be given to the petitioners within 8 weeks from date of
receipt of the order passed by this Court.
7. Rule is made
absolute accordingly to the above extent, with no order as to costs.
8. At this
stage, Shri K.B.Pujara, the learned counsel appearing for the
petitioner, submits that in view of oral order dated 14.6.1999 passed
by the learned Single Judge and specifically observation made in
Para.3 about petitioners succeeding in the petition finally, the
petitioners shall be deemed to be in service from the date of filing
of the petition and thereby, all available benefits shall be payable
to the petitioners. Therefore, it is necessary that the Court should
pass an order with regard to payment of salary of the petitioners for
the period of date of superannuation on the basis of completion of 58
years and fixation of age of superannuation at 62 years on the basis
of pronouncement by this Court, having set aside fixation of cut-off
line vide GR dated 26.5.1999.
8.1 The above
submissions are opposed by learned counsel appearing for the State on
the ground that since petitioners have already been superannuated and
have not worked for the said period on the basis of principle of ‘no
work not pay’, no order can be passed directing respondents to pay
salary for such period. Besides, Assistant Government Pleader has
submitted that interim order, if any, passed in the proceedings of
writ petition is always subject to the final order that may be
passed.
9. Considering
the above submissions, I am not inclined to accept the prayer made by
Shri Pujara, the learned counsel appearing for the petitioners on the
ground that the petitioners are already superannuated and they cannot
be paid idle salary for the period for which they have not worked at
all. Thus, observations of learned Single Judge in Para.3 of the
interim order cannot be given effect so as to grant payment of salary
as requested for.”
3. Since
the issue involved in the present petition is squarely covered by the
above referred decision of this Court, the present petition stands
dismissed. Rule discharged. No order as to costs.
Sd/-
[K. S. JHAVERI, J.]
Savariya
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