RASIKLAL V JHAVERI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Heard learned counsel for the parties.

(2.) The petitioner, a retired teacher was compelled to approach this Court for seeking relief or direction to the respondents to pay him the pension and other retirementary benefits for which he is legally entitled. Though the petitioner has served the educational institution in the State of Gujarat which received grant-in-aid, the pension was not given to him on the ground that there were break in service. The petitioner has to his credit, about 30 years' service as a teacher/principal but his fate was to go without any pensionary benefits. The reply has not been filed by the respondents though this petition has been filed in the year 1986. There is no dispute that there was only one break in the service of the petitioner during his first 15 years' service and that break has also been condoned. The facts are not required to be dealt with in detail as the point which has arisen in this case for consideration is squarely covered in favour of the petitioner vide judgment of this Court rendered in L.P.A. No. 20 of 1982 decided on 26.11.82. The question before the Court in that case was whether the appellant therein has earned the right to pension under the pension scheme for the Teaching and Non Teaching Staff in Non Government secondary schools termed by the Education and Labour Department of the Government of Gujarat as per Resolution dated 21st December, 1971 or not. Here is the case of a teacher of a Non Government school. The expression "qualifying service" is defined in Clause 5 of the scheme and it provides that no Government servant can claim benefits to this pension scheme if his actual qualifying service at the time he quits the Government service is less than 10 years. So the petitioner has to establish that he acquired right to pension by putting in actual qualifying service of not less than 10 years. The petitioner has completed 30 years' service, but there were breaks. Para 7 of the scheme is indicated below:

(3.) This Court has considered in above case that the conditions embodied in the proviso contain certain riders. We are concerned with only one rider in this case, namely, whether there have been more than six breaks within the meaning of proviso so that the interruptions would entail forfeiture of the past service. Two types of breaks are there, non physical and physical and this Court has held in the aforesaid case as dispute was also not there, that non physical breaks are not to be treated as breaks. The petitioner has uninterrupted more than 10 years' service in the present case. There was only one break within 15 years of service and that has also been condoned. This position is not controverted by the learned counsel for the respondent. So it is not case where the petitioner has not qualifying service. He has completed qualifying service and as such he was entitled for fixation of his pay for pension and other retirementary benefits but the respondents have denied him those benefits without there being any justification. So the petitioner had put in qualifying service, i.e. the service for 10 years as contemplated by the scheme and as such he has earned the right to pension and it cannot be taken away unless there is some statutory provision in this behalf. So by interruption in subsequent period, may be more than six breaks, the qualifying services which the petitioner has already acquired are not forfeited.