SATHALIYA KANJIBHAI RAJABHAI Vs. DISTRICT EDUCATION OFFICER

JUDGEMENT

(1.) This petition has been filed for a direction and declaration that the cut off date of 1.7.90 prescribed in para-6 of the resolution no. LVE-1090(D-30)-5 dated 26.3.1991 is illegal, void, unconstitutional and violative of Article 14 of the Constitution of India.

(2.) The petitioner was appointed as Laboratory Assistant in the school managed by the respondents vide order dated 21st June, 1952 passed by the Deputy Education Inspecctor. The petitioner was posted as Principal Class III from 1st February, 1985 at the Kamalshi Highschool, Babra, Dist: Amreli. The petitioner was promoted from 18th November, 1986 as Deputy District Primary Education Officer class III (Mid-day Meal scheme) and posted at Amreli. Thereafter, the petitioner was transferred as Principal class-II at Government D.V.S.K. High school, Jasdan, Dist: Rajkot which was being managed by the State Government and the petitioner retired on 31st March, 1990. As such, the petitioner served the State of Gujarat for about 38 years. It is stated that he had at his credit balance of ununtilised half pay leave of 303 days. The petitioner made several representations to the authorities concerned for encashment of the untilised half pay leave and he sent a legal notice dated 4.9.92 to the respondent. The respondent no.1 informed by his letter dated 24th September, 1992 that he cannot be given the aforesaid benefit to encash his above untilised half pay leave as benefit of the Resolutions dated 4.8.90 and 4.9.90 issued by the Education Department of the State of Gujarat are to be given effect from 1.7.90. Therefore, the petitioner has filed the present petition.

(3.) I have heard the learned advocates for the parties and perused the relevant papers on record. The contention of the learned counsel for the petitioner is that the resolution dated 26th March, 1991 by which this benefit has been extended has been given effect from 1st July, 1990 while the petitioner retired on 31st March, 1990. Therefore, the petitioner has been denied thebenefit on the basis of the cut off date mentioned in para-6 of the Government resolution dated 26th March, 1991 and this cut off date is illegal, null and void and in violation of Article 14 of the Constitution of India. Hence, he has prayed that the cut off date mentioned in the above Government resolution be struck down. In this regard, he also relied on the decision of this Court in the case of Kamlaben widow of Govindlal Harilal Sheth vs. State of Gujarat and another reported in 1989(2) GLR, 1068 wherein it has been considered that the new Scheme of Family Pension came into force with effect from June 1, 1971 and was made applicable to all regular employees on pensionable establishment-temporary or permanent who were in service on June 1, 1971 or were recruited thereafter. Under para-5 of the Resolution every Government servant eligible to the benefit of the above scheme was required to surrender a portion of gratuity where admissible, equal to his two months' pay subject to the maximu of Rs.3600.00 (revised to Rs.5000.00). Government of Gujarat in Finance Department by Resolution no. FPS-1077-2485-P dated October 17,1977 decided to do away with the provisions of recovery of two months' pay from the amount of gratuity for the eligibility of the benefit of the New Family Pension Scheme, 1972. Accordingly, it directed that no deduction should be made from the amount of death-cum-retirement gratuity as a contribution towards Family Pension Scheme under the New Family Scheme, 1972. The Resolution stated that the above order would take effect from October 1, 1977. It was made clear that the order would be applicable to those who retired on October 1, 1987 and thereafter. The respondent Government was directed to compute the amount of pension and arrears of pension payable to the petitioners and such widows and dependents on the above basis and make the payment of arrears of pension on or before May 31, 1989. The State Government was further directed to pay to each of the petitioners and such widows and dependants of the retired Government servants and other persons referred to who are similarly situated, family pension from month to month regularly or or before 10th of every month with effect from April 1, 1989.