JETHALAL SOMESHWAR DAVE Vs. STATE OF GUJARAT
LAWS(GJH)-1966-4-10
HIGH COURT OF GUJARAT
Decided on April 07,1966

JETHALAL SOMESHWAR DAVE Appellant
VERSUS
STATE Respondents

JUDGEMENT

A.R.BAKSHI, N.M.MIABHOY - (1.) This is a petition under Article 2262of the Constitution of India by Jethalal Someshwar Dave. Petitioner has asked substantially for three reliefs. The first relief is that of a declaration that petitioner was entitled to recover from the two respondents or either of them pension in accordance with the pension rules incorporated in Resolution dated 30th May 1951 passed by the former Government of Bombay (hereafter called the pension rules simpliciter). The second relief is that respondents should be directed to pay to petitioner a sum of Rs. 18 360 that being the arrears of petitioners pension upto August 23 1962 plus such dearness allowance as is permissible under the rules. The third relief is that of a direction to respondents or either of them to pay to petitioner pension in future at the rate of Rs. 108/per month. The petition was originally filed against the State of Gujarat only but on an objection being raised by that State the State of Maharashtra was subsequently joined as second respondent.
(2.) The facts which may be stated in order to dispose of this petition are as follows Petitioner joined service in the former Devgadh Baria State on 2nd January 1930 as a budget clerk and he continued to serve that State in different capacities till that State merged with the Province of Bombay on 10th June 1948. Petitioner was appointed by His Highness the Ruler of Devgadh Baria State (hereafter called the State) as the First Huzur Khangi Karbhari under a resolution of the Ruler dated 7 August 1947 by which resolution the former post of the Raj Karbhari Officer was abolished and the new post of Huzur Khangi Karbhari was established. Under that resolution petitioners salary was fixed at Rs. 200 On 1st January 1948 the State brought into force a new set of rules called Baria State Pension Rules which rules were amended on 12th January 1948. Amongst the amended rules was rule No. 3 which stated that the rules would apply to all servants of the State employed in civil capacity. Petitioner's case is that whilst he was in the State service he was governed by these rules and that he was under those rules entitled to a pension in accordance with the conditions laid down in those rules. Before the merger an agreement was entered into between the Ruler and the Secretary to the Government of India Ministry of States on 19th March 1948 and that agreement was further supplemented by a letter which was addressed to the Ruler by the latter officer on 1st October 1948. Petitioner relied upon paragraph 5 of the letter dated 1st October 1948 in support of this petition. However after paragraph 5 was read Mr. Vakil the learned advocate for petitioner did not pursue that point any further. That paragraph 5 guarantees the payment of pension to all State servants who had already retired before 1st April 1948. Therefore that paragraph on admitted facts cannot govern the case of petitioner and in our judgment Mr. Vakil was right in making the concession that paragraph 5 did not apply to the facts of the present case. In para 9 of his petition petitioner states that after the State was merged with the Province of Bombay the petitioner was not absorbed in the service of the then Province of Bombay and elected to retire from service. Mr. Vakil submits that this averment in the petition is not quite accurate and that what really has happened in the case of petitioner is that though he was entitled to be absorbed in the service of the Province of Bombay he elected to retire from service under a rule to be presently mentioned. On 30th May 1951 the State of Bombay passed a resolution entitled Compensation-order regarding-to servants of the merged States who cannot be absorbed in Bombay Government service. By that resolution the Government after superseding a number of other resolutions issued consolidated rules and instructions for regulating the conditions applicable to State servants of the merged and integrated States who were not willing to be or were not absorbed in the Bombay Government service. Though it does not so appear from the record of the case both the sides admit that petitioner has been awarded compensation under these rules of an amount representing his salary for three months receivable by him under the State service. However on 17th March 1952 petitioner addressed a letter to the Government in which for the first time he demanded grant of pension. This request was rejected by the Government by its letter dated 31st March 1953. Petitioner however addressed a second letter on 11th August 1953 to the Government in which he set out facts and circumstances and referred to documents which he considered would establish his claim for a pension. This representation also was rejected by the Government by its letter dated 11 May 1954. Petitioner however addressed a third letter to the Government dated 27th July 1954 but despatched it on 18th August 1954 in which he set out some further facts. On this the Government referred the matter to the Collector Panchmahals for further investigation. According to petitioner the Collector made a report in his favour on 9th December 1954. According to respondents all that the Collector stated was that the salaries of the State servants were being paid from the State revenues. However the Government again rejected petitioners claim for a pension by its letter dated 13th December 1954 According to petitioner the Collector made a second report to the Government on 7th May 1955 Even thereafter the Mamlatdar by his letter dated 18th July 1955 wrote to petitioner that the Government did not see any reason to revise its previous orders. Thereupon after giving the statutory notice petitioner filed suit No. 2430 of 1956 in the City Civil Court Bombay in which substantially he asked for similar prayers as have been asked for in the present petition. Petitioner withdrew that suit on 8th September 1959. According to petitioner he did so because his suit was barred by sec. 4 of the Pensions Act 1871 Petitioner has in his affidavit relied upon the recommendation made by the learned Judge of the City Civil Court when passing the order of withdrawal. The recommendation was that petitioners claim having been found to be correct by the Collector petitioners case deserved sympathetic consideration. After this on 20th November 1959 petitioners attorney addressed another letter to the Government of Bombay and demanded pension for and on behalf of petitioner. On 1st May 1960 under the State Re-organisation Act of 1960 the former State of Bombay became bifurcated into the States of Maharashtra and Gujarat. Sec. 50 of that Act deals with the subject of the liability of each State in regard to the payment of pensions of servants of the State of Bombay. It appears that petitioner's attorney's letter was sent to the State of Gujarat for being dealt with according to law. That State by its letter dated 11th July 1961 again rejected petitioner claim stating that it saw no reason to revise the previous orders. Petitioner says that thereafter on 9th December 1961 he obtained a letter from the ex-Ruler recommending that petitioner should be paid a pension. Thereafter petitioner made two representations to the Chief Minister State of Gujarat on 10th December 1961 and 8th January 1962. A Deputy Secretary of the Government replied on 5th January 1962 that the representations were rejected and the Government stood by its former decisions. Thereafter petitioner filed the present petition on 23rd August 1962 seeking the aforesaid reliefs.
(3.) The respondents contest the petition both on merits and on a technical ground. But the technical ground urged in the affidavits in reply was not urged at the time of hearing. Instead petition was sought to be challenged on another technical ground and that was that petition should be thrown off on the ground of laches and delay. Mr. Sompura the learned Assistant Government Pleader appearing for the State of Gujarat contends that petitioners claim for pension was negatived by the Government as far back as 31st of March 1953 and the jurisdiction of this Court was invoked as late as 23rd August 1962 and that the grounds which have been given by petitioner in paragraph 19 of his petition for explaining the delay are insufficient and not warranted by law. There is some justification for this contention in regard to the first two reliefs claimed by petitioner. In so far as petitioner wants a declaration to the effect that he is entitled to receive pension with effect from the date of the merger there is no doubt whatsoever that the claim for declaration is stale having regard to the fact that petitioners claim for pension was rejected by the Government as far back as 31st March 1953. Equally there is no doubt whatsoever that in so far as petitioner claims a direction for the payment of arrears of pension the claim must be regarded to be stale at least for a major portion of that particular claim. But the difficulty in enforcing the aforesaid preliminary objection is that petitioner has also claimed a third relief and that relief is if petitioners claim is justified based upon a recurring right to receive pension. Neither Mr. Sompura nor Mr. Shah contends that the inaction of petitioner in spite of all or any of the aforesaid refusals of the Governments concerned to accede to the demand for pension has any repercussions on the right to receive pension in future if one had already vested in petitioner. Therefore we did not think it proper to dismiss the petition in limine on the above ground. We thought it proper to reserve the question as to which of the several reliefs should be granted after hearing the parties on merits.;


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