ARUN ASHARAM PANDYA v. STATE OF GUJARAT

Mr. Sudhir Mehta, AGP for Respondent. --------------------------------------------------------- CORAM : MR.JUSTICE K.A.PUJ Date of decision: 20/07/2002 ORAL JUDGEMENT (cid:9)The petitioner, in this petition under Article 226 of the Constitution of India, has prayed for relief in respect of continuing him in service till the age of 60 years in accordance with the Junagadh State Superannuation Rules.

2.(cid:9)The brief facts, giving rise to the present petition, are that the petitioner joined the Police Department as Constable in the year 1948. At that time, the Junagadh State was an independent princely sovereign State headed by the Nawab of Junagadh. After the partition of the country the Nawab went to Pakistan and the Junagadh State territory came under the rule of Council of Administration. The princely States were classified as Class-I to Class VII according to British Government. They were all integrated and the newly formed unit of Saurashtra came into existence on and from

15.4.1948 where the Jam-Saheb of Navanagar came to be the Raj Pramukh as the Constitutional Head of the State. At the time of integration, there was a covenant between the integrating States and the Raj Pramukh as well as the Secretary on behalf of the Union of India, under which the staff of the States had to be absorbed but the conditions of service were not to be less advantageous.

3.(cid:9)It is further stated by the petitioner in the petition that even after the formation of the Saurashtra State, Junagadh State remained independent but ultimately somewhere in July 1949 it was also integrated with Saurashtra and there was a covenant between the Raj Pramukh and the Council of Administration. It is further submitted that thereafter the Government of India issued certain orders or directives containing, inter alia, that the guarantee of service even in the covenant was a matter of assurance and was a commitment which was to be abided by. It is further submitted by the petitioner that the petitioner was absorbed in Saurashtra State and continued in service. The Saurashtra State merged with Bombay State on 1.11.1956 under the provisions of State Reorganisation Act. Under Section 115(7), the service condition could not be changed without the prior approval of the President of India. On and from 1-5-1960 the State of Gujarat came into existence under the Bombay Reorganisation Act and under Section 81(6) the service condition could not be changed without the approval of the President of India. The petitioner therefore submitted that the petitioner carried the right to continue in service till 60 years of age on account of integration and reorganisation of States.

4.(cid:9)The petitioner further submitted that under the guarantee of service the petitioner ought to have been continued till he attained 60 years in 1987 but the petitioner was compelled to retire at the age of 58 in

1985. The said retirement at an early date was illegal and unconstitutional and hence he sought for the declaration in this petition and also claimed that he was entitled to the benefits at the revised rate considering the age of retirement of the petitioner at 60 years.

5.(cid:9)When the petitioner came to know about certain legal proceedings filed by various employees, the present petition was filed by the petitioner before this Court. At the time of admission of this petition, it was brought to the notice of this Court that Special Civil Application No. 703 of 1989, which involved identical question, was admitted by this Court and on that basis the Rule was ordered to be heard along with Special Civil Application No. 703 of 1989. Though appearance was filed on behalf of the respondent authorities, no affidavit-in-reply is filed till this date.

6.(cid:9)Heard Mr. M.D. Rana, the learned advocate appearing for the petitioner and Mr. Sudhir Mehta, the ld. Asst. Govt. Pleader appearing for the respondent. At the time of hearing of this petition, my attention is drawn to the decision of this Court in Special Civil Application No. 703 of 1989 and other two cognate matters bearing Special Civil Application No. 3025 of 1989 and Special Civil Application No. 2307 of 1990. All the three petitions were decided by this Court on

11.6.2001. While disposing of the said three petitions, this Court has observed that a similar matter has been decided by this Court [Coram: S.K. Keshote, J.] vide judgment dated 20th January 2001 disposing of Special Civil Applications No. 2691 of 1989, 5124 of 1990, 1556 of 1990 and 6352 of 1996. It has been further observed as under : (cid:9)"The judgment of civil court is not binding on this court. The judgment given by the Civil Court is binding in between that person and the State Government and rightly the benefit has been given to that person. However, the learned counsel for the respondents have failed to produce on the record of these Special Civil Applications that the service condition, the age of retirement of 60 years was not there of the employees of the ex-Junagadh State. The learned counsel for the respondents has also failed to produce on that record any evidence to show that the service condition of the servants of the ex-Junagadh State has been changed with prior approval of the Central Government. Out of these four petitions, in two petitions, reply to the special civil application has not been filed. So far as two other special civil applications are concerned, reply has been filed and therein only defence has been taken that those petitions have given in writing to the respondents, an undertaking, to be governed by Bombay Civil Service Rules, 1959. I find that those two petitioners have given undertaking in writing to be governed by Bombay Civil Service Rules. However, in the reply, it is not the case of the respondents that their service conditions have been changed with prior approval of the Central Government. Nothing has been stated also so far as the case of Shri T.K. Budhecha is concerned. "