VISHANDAS GANGARAM KHATRI Vs. UNION OF INDIA

JUDGEMENT

(1.) . The petitioner's case is that he was a resident of village Chachro, District Tharparkar in Pakistan which forms part of Pakistan since 1 4/08/1947. During the Indo-Pak Conflict in the year 1971, a portion of Tharparkar was occupied by the Indian Army and the area was under the control of Indian Army till 22/12/1972. It is the case of the petitioner that some of the Hindus who were residents of this area migrated to India while the Muslims of this area went back to Pakistan when the area was handed over to Pakistan, following the Simla Pact of 1972. It is the further case of the petitioner that he was in the service of Pakistan Government from 16/08/1952 to 16/02/1972 and following the outbreak of the Indo-Pak Conflict in 1971, the petitioner left his job from Thatta (Sind) on 17/02/1972 and joined his family at Chachro on 19/02/1972. The petitioner was appointed as Patwari-cum-clerk on 2 2/02/1972 by the Civil Administrator, Chachro and whereas the situation in Pakistan was surcharged against Hindus and Hindu employees, the petitioner was obliged to stay in India. The petitioner goes on stating that he was able to bring his service record from the office of the D.S.P., Thatta (Sind) in Pakistan. When the aforesaid area was handed over back to Pakistan, he was relieved from the duties of Patwari-cum-clerk by the Civil Administrator, Chachro on 22/12/1972. The petitioner, thus, served for about 10 months as Patwari-cum-clerk under the Civil Administrator, Chachro, in the occupied area at a pay of Rs. 110.00 plus usual allowances per month. A copy of the certificate dated 21-12-1972 issued by the Civil Administrator, occupied territory, Gadra Road, relieving the petitioner from his duties of Patwari-cum-clerk with Civil Administrator, Chachro has been annexed with the petition at Annexure-E. According to the petitioner, the policy of the Government of India existing at that time was that the ex-employees of the Sind and Frontier Provinces from Pakistan were to be absorbed in the Government employment corresponding to the grades which they held in Pakistan. Ever since 1947, the State of Bombay and after bifurcation in 1960, the State of Gujarat has formulated the policy to count the service of the employees in the erstwhile Sind Provinces for the purpose of terminal benefits. After having been relieved by the Civil Administrator, Chachro on 22/12/1972, the petitioner made efforts to get employment in the State of Gujarat as well as in the Union of India and he made a number of representations to the Union of India as well as State of Gujarat. A number of persons who have been displaced from Pakistan during the 1971 Indo- Pak Conflict had been appointed by the Govt. of Gujarat during the period from 1972 to 1974, but the petitioner could not get any employment for a considerable period of 15 years and, ultimately, he, along with three others observed hunger strike before the Legislative Assembly at Gandhinagar and thereafter, Government of Gujarat issued directions for their appointment, by Resolution No. EST/1081/ 549/S dated 5/10/1987. The petitioner joined the office of the D.S.P., Banaskantha, Palanpur on 28/10/1987 and within a period of three years thereafter, he attained the age of superannuation and retired from the service on 31/12/1990. It is the case of the petitioner that no pension or any retiral benefits or gratuity has been paid to the petitioner. The petitioner claims that he served in Pakistan from 16/08/1952 to 16/02/1972, i.e., for a period of 19 years and 6 months and from 22/02/1972 to 22/12/1972, he served in the occupied area by India at Chachro, i.e., for a period of 10 months and thereafter he has served with the D.S.P., Banaskantha, Palanpur under the Gujarat Government from 2 8/10/1987 to 31/12/1990, i.e., for a period of 3 years, 2 months and 4 days. The petitioner, thus, claims to have served in all, 23 years, 6 months and 9 days. When the repeated requests made by the petitioner for grant of pension, gratuity etc. did not yield any result, he preferred a writ petition being Special Civil Application No. 6559 of -1990 in this High Court, based on the policy outlined by the Government of Gujarat, vide Resolution No. DPP-1166/141-R dated 1 7/04/1967, according to which, the previous service rendered by the displaced persons in erstwhile Sind and Frontier Provinces in Pakistan was to be taken into account and the break in service due to their displacement was to be condoned. The petitioner has stated that Shri R. K. Bhanani, Shri P. M. Sodha, Shri M. D. Oza, Shri R. C. Sodha and Shri Vishandas P. Jaipal, who too have since retired from service have been given the retiral benefits condoning the break in service, by Government of Gujarat vide Resolution No. PRE/1383/K dated 31/03/1984. The High Court, directed the State Government to consider the case of the petitioner for payment of pension and gratuity, vide order dated 23/04/1993 passed in the aforesaid Special Civil Application, but his case was not considered as per the directions of the High Court and the petitioner was refused the grant of pension or gratuity. The petitioner complains the action of the State Government as highly discriminatory, arbitrary and illegal. He has further stated that the State of Gujarat (Education Department), vide Resolution No. UMRA-1287-MP -418-G1 dated 15/11/1989 granted pension and gratuity to yet another employee, namely, Shri Vishandas P. Jaipal, who last served as an Assistant Teacher in Mahatma Gandhi Higher Secondary School, Kuber Nagar at Ahmedabad who too had migrated from Sind to India, along with the petitioner during the 1971 Indo-Pak Conflict. He claims that he is entitled to pension for a period over 21 years of continuous service, by including the service rendered by him in the occupied area and adding the period during which he was unemployed in accordance with the decision in respect of Shri Vishandas P. Jaipal, vide Government Resolution No. UMRA-1287-MO-418-G1 dated 15/11/1989. Facing such a situation, the petitioner again filed the present Special Civil Application on 6/07/1994. On 7th July 1994, a retuturnable notice was issued. When the matter came up before the Court on 29/12/1994, it was found that no return was filed by the State of Gujarat, as usual. Rule was issued and the matter was fixed for final disposal. On 30/12/1994, when the matter came up before the Court, a detailed order was passed with reference to the document at Annexure-H. from the contents of which, it appeared that, in case of certain employees who were displaced from West Pakistan during the Indo- Pak Conflict of 1971, a view was taken by the Government that the maximum period of service rendered in Pakistan to be accepted on the basis of the collateral evidence for the purpose of pension should not exceed five years. The learned Asstt. Govt. Pleader who appeared on behalf of the respondent-State on that day, under instructions from the concerned officers, made a statement before the Court that, the petitioner had produced certain collateral evidence indicating that he was in the service of the Pakistan Government right from 1952 till he was displaced in February 1972 and it was not disputed that for a period of 10 months the petitioner had served the Indian Administration in 1972 and thereafter, for a period of little more than three years, i.e., from October 198 7/12/1990, he was in the regular service of the State of Gujarat and he had retired from service in December 1990. It was given out by learned Asstt. Govt. Pleader on behalf of the respondent-State that the petitioner's case was under active consideration of the Government and the decision was likely to be taken within a short term and therefore, the time was granted with the expectation that the concerned authority would decide the matter at the earliest possible opportunity. Even uptil now, no return has been filed, but a copy of the order dated 31/01/1995 passed by the Deputy Secretary, Home Department has been placed on record. In this document, it has been held out that the benefits with regard to the pension had been given only to those employees who had come prior to 23/03/1971 in accordance with the decision of the Government of India and whereas the petitioner had come to serve under the Indian Administration after 23/03/1971, he was not entitled to any pension.

(2.) . Mr. Sharma, learned Counsel for the petitioner has invited my attention to several orders passed by the Supdt. of Police, Tharparkar. Mirpurkhas and certain Certificates issued by the West Pakistan and these documents, about 20 in number have been placed on record, collectively, as Annexure-C. These documents do indicate that the petitioner was in the service of the Pakistan Government since 1954 or 1952. It is the petitioner's own case that his service record has not been received by the Government of India through the functionaries of the Government of Pakistan, but the above-referred documents 20 in number, placed on record, collectively, as Annexure-C form a collateral contemporaneous evidence to show that he was in the service of the Pakistan Government and the document Annexure-D shows that he was appointed as Clerk by the Civil administrator, Chachro on 22/02/1972 and the Certificate Annexure-E shows that he had worked as patwari-cumclerk in the occupied area at Chachro from 1-4-1972 to 22-12-1972. The document Annexure-F dated 8/10/1987 is the order, by which the petitioner was given appointment under the Government of Gujarat as Junior Clerk. Documents at Annexures-H and I show that, in case of certain employees who were displaced from West Pakistan like the petitioner during the Indo-Pak Conflict of 1971 had been absorbed as Primary Teachers under the District Education Committee, Kachchh, with effect from 1-2-1973, 12-1-1974, 15-1-1974 and 12-1-1974 respectively, noted against their names in the document. The Resolution contained in this document dated 31/03/1984 goes to show that the question of counting the previous service rendered by the employees mentioned therein in Pakistan condoning the break in service earned on account of migration to India for the purpose of pension was considered by the Government and after sympathetic consideration, the Government directed that the break in service for periods shown in column 4 against their names in the table should be condoned for that purpose and the maximum period of service in Pakistan which should be accepted on the basis of collateral evidence should not exceed five years and further that the ceiling of five years on service will not operate in the case of any of them whose service record has been received from the authorities in Pakistan. This Resolution was issued with the concurrence of the Revenue Department, General Administration Department and the Finance Department of the Government of Gujarat. Document Annexure- I relates to one Shri Vishandas P. Jaipal who is also claimed to be a similarly situated candidate and he has also been paid the pension.

(3.) . As against the documentary evidence placed on record by the petitioner, neither any document has been filed on behalf of the respondents nor any return has been filed nor any averment or any part of the averment of the petition has been controverted by the respondents despite several opportunities having been granted to them and the sole document placed on record on behalf of the respondent Nos. 2 and 3 is the copy of the order dated 31/01/1995 passed by the Home Department, Government of Gujarat, declining the grant of pension or any retiral benefits to the petitioner. This order, of course, says that the retiral benefits and pension would be paid only to those who had come under the Civil Administration in the area occupied by the Indian Army prior to 23/03/1971, but the stand taken by the Government in this order does not withstand the test of the decisions taken by the Government of Gujarat and the orders passed with regard to 5 similarly situated persons as named and contained in Annexures - H and I placed on record by the petitioner. It appears that the case of the petitioner is identical to those five employees mentioned in Annexures-H and I, i.e., Shri R. K. Bhanani, Shri P. M. Sodha, Shri M. D. Oza, Shri R. C. Sodha and Shri Vishandas P. Jaipal, who were absorbed. as Primary Teachers in the Education Department like the petitioner and who had come to India as displaced persons on account of the Indo-Pak Conflict of 1971. Thus, the stand taken with reference to the date that the benefit of pension and retiral benefits was given only to those who came before 23/03/1971 does not appear to be correct in view of the Resolution dated 31/03/1984 contained in Annexure-H and the order passed by the Education Department of the Government of Gujarat on 15/03/1989 as contained in Annexure-I. All these persons were absorbed after 23rd h4arch 1971 and, therefore, there is no justification to deny the same treatment to the petitioner. The petitioner has also placed on record the Resolution dated 17/04/1967 passed by the Government of Gujarat and this document is at Annexure-G at page 38 of the paper book and this again is a Resolution in the matter of ignoring the period of break in service in determining the total length of qualifying service and with regard to the service rendered in Sind/ North-West Frontier Provinces. The condition Nos. (ii), (iv), (vii) and (viii) of this Resolution are reproduced as under :