HASMUKH HARJIVANDAS PATEL Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This writ petition under Article 226 of the Constitution is filed by the petitioner, a retired Professor of H.K.Arts College, Ahmedabad. The petitioner retired from the services on attaining the age of superannuation in the year 1991. The College wherefrom he retired is undisputedly receiving grant-in-aid from the State of Gujarat. The Government framed pensionary scheme benefitting teaching and non teaching staff of non Government affiliated colleges and Universities vide Resolution dated 2 6/09/1989. It is not in dispute that as per the provisions as contained in the aforesaid scheme of pension, the petitioner has not opted for pensionary scheme. This pension scheme framed under the Resolution dated 2 6/09/1989 came to be amended vide Government Resolution dated 17th September 1991. The learned counsel for the respondents does not dispute that on 24/10/1991, the petitioner opted for pensionary scheme. It is also not in dispute that on 24.2.92, the petitioner deposited in the Government treasury, the institution's contribution towards his provident fund. This amount has been deposited by him to avail the pensionary benefits. The option submitted by the petitioner for pension scheme was accepted by the Commissioner for Higher Education and in support of this averment, he placed on the record of this Special Civil Application, document, annexure-D, a communication which came to him from the office of the Commissioner for Higher Education. It is the case of the petitioner that the Commissioner for Higher Education sent a letter to the Director of Pension and Provident Funds, Khanpur, Ahmedabad, dated 4.9.92, for preparing pension papers of the petitioner. The grievance of the petitioner is that in spite of giving him the pension benefits the Accounts Officer of the Director of Pension and Provident Fund raised an objection that the petitioner is not eligible for pension which reflects from the letter dated 17th November 1992 of this Officer addressed to the Commissioner for Higher Education. The objection raised is that the petitioner has retired on 17/06/1991 and on the date on which the relevant pension scheme was modified, he was not existing employee. The say of the petitioner is that the Commissioner for Higher Education also without applying its mind fall in error in relying on the objection raised by the Accounts Officer and communicated to the petitioner under its letter dated 30th September 1994 that he is not entitled for pensionary scheme. The petitioner submits that he has thereafter approached to all the authorities but when nothing has been done he has filed this writ petition before this Court. In paragraphs 6 and 7 of this Special Civil Application he has given out details of the efforts which have been made by him to pursue the authorities to release the pension in his favour.

(2.) This writ petition has been contested by respondents by filing reply and further affidavit-in-reply.

(3.) The learned counsel for the petitioner contended that the respondents have totally misconstrued the Resolution dated 2 6/09/1989 and the Resolution dated 17th September 1991. He further contended that a combined reading of these two Resolutions clearly gives out that the petitioner was entitled for pension and denial of the same is contrary to Article 14 and 21 of the Constitution of India. It has next been contended that in case what the respondents are now stating before this Court is accepted, then the second Resolution giving one more change of option for the pension scheme will become redundant, inoperative and useless. Lastly, it is contended that the sanctioning authority has accepted the claim of the petitioner but the Accounts Officer has arbitrarily raised the objection. The learned counsel for the petitioner submits that the petitioner deposited with the respondents Rs.68,814/= being the amount of employer's contribution to the provident fund and this amount has been accepted long back which goes to show that the authorities have accepted his claim, eligibility and entitlement for pension. In case it is a case that the case of the petitioner is not acceptable for pension, then this amount of Rs.68,814/= should have been forthwith sent to the petitioner. The respondents are retaining this huge amount of the petitioner for more than seven years till date.