S.R.BRAHMBHATT,J. - (1.)The present petition was filed by the petitioner on 31.3.1997, challenging the order and communication dated 13.2.1997, issued by the Home Department, State of Gujarat, informing the petitioner that the petitioner 's request for recognising his past service rendered earlier in the case of Refugee migrating after 23.3.1971, is not acceptable.
(2.)The said matter had been filed before this Court which was listed before the learned Single Judge of this court and the learned Single Judge, after taking into consideration the decision cited at the Bar, recorded that as she was not agreeing with the proposition laid down in the decision of the learned Single Judge cited a the Bar referred the matter to the Division Bench and the Division Bench on 15.4.1997 issued Rule in the matter.
(3.)The order of reference by the learned Single Judge was made on 3.4.1997 and the matter was admitted on 15.4.1997. The order of reference, therefore, would be required to be produced, which reads as under:
"1. The petitioner herein was originally a citizen of Pakistan who has immigrated to India after 1971 and has acquired Indian Citizenship. After his emigration to India, under order dated 8th March, 1988, the petitioner was appointed in the Government service as a Junior Clerk in the Home Guards. The petitioner, thus, served till he reached the age of superannuation and was retired from service on 30th July, 1994. The petitioner has served the Government of Gujarat for a period of six years. Prior to his emigration from Pakistan, the petitioner was serving under the Government as a junior clerk in the Police Department. He served there for more than 21 years i.e. from the year 1959 to the year 1972.

2. It is the claim of the petitioner that the petitioner 's service rendered to Government in Pakistan shall be considered as pensionable service and the petitioner shall be paid pension and other retiral benefits accordingly.

3. Learned advocate Mr. Sharma appearing for the petitioner has relied upon the orders made in favour of certain other Government servants who wee emigrants from Pakistan and had earlier served under the Government in Pakistan. Copies of such orders are annexed to the petition at annexures "I", "J" and "K". Mr. Sharma has submitted that the above referred orders at annexures I, to K made in favour of various employees of the Government have been made pursuant to the Government resolution dated 17th April, 1967 [annexure Rs.to the petition]. He has also relied upon the judgment of this Court in the matter of Vishandas Gangaram Khatri Vs. Union of India [1996(2) GLR 261].

4. It is true that relying upon the above resolution dated 17th April, 1967, several employees have been given benefits of condonation of break in service and their services rendered to Government in Pakistan has been treated as pensionable service under the State of Gujarat. This court in the matter of Vishandas Gangaram (supra) has relied on the same orders and has directed the Government to give similar benefits to that petitioner also. I, however, an unable to agree with the contention raised by Mr. Sharma. The resolution dated 17th April, 1967 is based on earlier resolutions dated 13th Jan., 1955 and 22nd March, 1959. Under the said resolution, temporary service rendered by temporary displaced Government servants under the former Government of Sindh and North East Frontier Provinces prior to their migration to India is allowed to be counted in full as duty or service qualifying for pension subject to the conditions contained therein. It is obvious that the said resolution refers to the servants of the former Province of Sindh and North West Frontier who emigrated to India on or after 1947 bifurcation. The service which is treated as pensionable service is that which is rendered under the former Government of Sindh and North West Frontier Provinces i.e. that part of India prior to 1947. The benefits under the said resolution cannot be extended to the Government employees who had emigrated from Pakistan after 1971 and had earlier rendered services under the Government in Pakistan. If the State Government has granted such benefits to some of its employees either by misinterpreting the aforesaid resolution or for any other extraneous reason, said benefit cannot be granted to other who are similarly situated by invoking the principles of equality. I am unable to agree to the proposition that service rendered to an alien country should be treated as pensionable service under the State of Gujarat for the purpose of pension and other retiral benefits. In view of the above referred judgment of the learned Single Judge of this Court in the matter of Vishandas (supra), which is binding to this Court, this matter is referred to the Division Bench for its consideration. Registry is, therefore, directed to place this petition for admission hearing before the Division Bench. Petitioner is directed to furnish additional set of paper book within a period of one week from today."