GHANSHYAMBHAI HARISHANKAR DAVE Vs. SECRETARY

JUDGEMENT

(1.) The petitioner, who is at the fag end of his life and is aged about 90 years, as stated in the affidavit at page 5 of the compilation, has approached this Court for the purpose of getting the pensionary benefits, which, according to him, are denied by the State Government.

(2.) The petitioner had taken part in the freedom struggle movement and is accordingly given the benefit of "freedom fighter pension" by the Union of India. So far as the present petition is concerned, the same is confined in relation to pension for the services rendered by the petitioner for the period between 1936 and 1943. Before independence, the petitioner was serving in the Forest Department of the State and it is, as such, not disputed that he has served for the period from 1936 to 1943 and that in the said year 1943 the petitioner gave resignation in order to join the freedom movement of the country. Thereafter, after considerable time, even after getting the independence, the petitioner had never approached the authority for reinstating him in service, nor has he submitted any application for the purpose of reinstating him in service. It is, however, not in dispute that the petitioner was already in service of the State Government in its forest department for a period of more than 7 years. It has come on record by way of some correspondence that the petitioner had served in the office of the Assistant Conservator of Forests as a clerk for about 7 years and 5 months. After considerable time, the petitioner started making correspondence with the Government to give him pension, treating him as having retired from the service on the basis of attaining the age of superannuation in the year 1972. For the above purpose, the petitioner earlier even approached this Court by way of filing Special Civil Application No.5712 of 1984. The prayer of the petitioner in that petition was that it may be declared that he was in service of the State Government up to the year 1972, with right to obtain promotions and perquisites available to the government servants and it was prayed that he may be awarded full pension, treating him as having retired in the year 1972, with other consequential benefits. This Court came to the conclusion that as per the petitioner's own case, he had served erstwhile State of Vadodara from 1936 to 1943, but he had never shown his willingness to get the reinstatement order and he was also paid some ex-gratia pension even though he was not having to his credit the qualifying service. This Court also found that the petitioner would have freed himself from the freedom struggle movement on 15th August, 1947 or 26th January, 1950 but till 1968 he never prayed for taking him back in service. The court, therefore, found that he was not interested in work and therefore the claim which was made by him, i.e. reinstatement in service is a belated claim, made after 21 years. This Court has found that the petitioner has made his claim for reinstatement in the service only after 21 years after independence and no such bleated claim can be allowed. On the aforesaid ground this Court rejected the said petition filed by the petitioner. The said order was confirmed in appeal and as pointed out by the learned AGP, the SLP was also dismissed. Therefore, the claim of the petitioner regarding getting full pensionary benefits treating him to be in government service till 1972 is negatived by this Court and the said decision has become final. However, it is required to be noted that subsequently, by the order dated 6th December, 2000 the Additional Secretary of the Forest Department wrote a letter to the Principal Secretary, Forest Department, on 6th December, 2000, in which it is mentioned that the petitioner has served the State Government between 1936 and 1943 and after considering documents produced by the petitioner in connection with his service during the aforesaid period, he has recommended that since the petitioner is a freedom fighter and is of advanced age, the government has decided to give him compassionate pension, and, accordingly, the Principal Secretary was requested to prepare the necessary papers in this connection by giving top priority. The said letter dated 6.12.2000 is produced at page 9 of the petition. It seems that, initially, the Government decided to give compassionate pension to the petitioner but, subsequently, by another letter dated 6th May, 2002, the petitioner was informed by the Deputy Secretary of the Government that after considering all the aspects of the case, it has been found that compassionate pension cannot be paid to the petitioner and the Government has not accordingly accepted the said proposal for giving compassionate pension to the petitioner. The said order dated 6th May, 2002 is produced at page 10 of the petition. The petitioner again made certain representations for the purpose of giving aforesaid compassionate pension. However, he was informed by letter dated 20th March, 2003 that the petitioner is not entitled to any such benefit. The said letter is produced at page 6 of the petition. Being aggrieved by the aforesaid decision of the State Government in not granting compassionate pension to the petitioner, the petitioner has filed the present petition. Ms V.L. Bhatt, learned Advocate, has appeared for the petitioner. At the request of the Court, the learned advocate Mr. Mukul Sinha has appeared in this matter as Amicus Curiae.

(3.) At the time of hearing of this petition, it is argued by learned advocate Mr Sinha, who was requested by the Court to assist the Court as Amicus Curiae, that so far as the claim of the petitioner for getting the regular pension, considering his total length of service and the date on which he might have reached the age of superannuation, is concerned, the same is finalised by this Court by the earlier judgement. He, however, submitted that subsequently the request of the petitioner for getting the compassionate pension for the period from 1936 to 1943 was considered by the State Government and it was initially decided to give the said benefit to the petitioner but, subsequently, the same is denied by the State Government by reviewing the earlier decision. It is submitted by Mr Sinha that there is no reason as to why the aforesaid benefit of compassionate pension should not be given to the present petitioner. Mr Sinha further submitted that when the petitioner has taken part in the freedom movement of the country and in order to serve the country, he was compelled to resign, such resignation should not come in his way for considering his case for compassionate pension. Mr Sinha has also further submitted that at least from the date on which the government has taken the decision to grant compassionate pension to the petitioner, the government should be directed to pay the same to the petitioner as per the Bombay Civil Service Rules. It is not in dispute that the petitioner has been given fixed amount of ex-gratia pension, which comes to Rs.12,500.00-. It has been pointed out that in the year 1982, he was paid the fixed amount of Rs.5,000/= and in March 2001 he was paid Rs.7,500/=. Mr Sinha further submitted that as per the BCS Rules, the ex-gratia pension amount that is paid to the petitioner may be adjusted in the amount of compassionate pension amount but there is no reason not to give the compassionate pension to the petitioner. Mr Sinha also submitted that simply because the petitioner was required to give resignation for the purpose of joining the freedom movement of the Country, he cannot be put to any disadvantageous position. Mr Sinha further submitted that after considering the facts and circumstances, the Government had, initially, decided to give compassionate pension to the petitioner but subsequently, the said decision is changed without giving any reasons. Mr Sinha further submitted that the present petition is filed in view of the subsequent cause of action of giving compassionate pension to the petitioner for a short period during which he has served the State i.e. during the period 1936-1943. He submitted that the cause of action for filing this petition arose in view of taking of decision by the State Government for sanctioning the compassionate pension to the petitioner and subsequently when the same was cancelled and finally when the representation of the petitioner was rejected by the State Government in the year 2003. It is submitted by Mr. Sinha that, even though the petitioner is not entitled to regular pension till the date of reaching the age of superannuation, there was no reason in not granting the pension for the period for which the petitioner had put in service prior to 1943.