1. The petitioner has challenged the communication/order dated 24.05.2001 issued by the Accounts Officer, Office of the Commissioner of Higher Education, Gandhinagar in following factual background.
2. The petitioner was working as a Lecturer in respondent No.3, M.G.Science College. As per his date of birth, he was to cross 62 years of age which was the age of superannuation, on 05.07.2000. However, the case of the petitioner is that as per the Government Policy, the teaching staff in the college would retire not at the end of the month of crossing the age of superannuation but either on 14th June or 31st October depending on the term during which he crossed the age of superannuation.
3. Despite such circulars, the respondent No.3-College retired the petitioner from service by an order dated 05.07.2000 with effect from the said date. The case of the petitioner is that he should have been permitted to work till 31.10.2000. He, thereupon, approached this Court by filing Special Civil Application No. 8179 of 2000. Such petition was disposed of by an order dated 26.09.2000 permitting the petitioner to make representation to the State Government granting liberty to the petitioner to revive the petition, if decision is adverse to him.
4. The petitioner's representation was considered by the Government and by an order dated 05.12.2000, it was held that in terms of the Government Resolution dated 11.12.1990, the petitioner would get the benefit of retiring at the end of the term. It, was however, clarified that such benefit will not include any increment in the pay or for counting such extended service for pension.
5. The petitioner, thereupon, applied through proper channel for salary for the period during which he was denied the benefit of service. By impugned order dated 24.05.2000 such request was rejected on the ground that since he had not discharged his duties, he would not be entitled to any salary.
6. Having heard learned counsel for the parties, I am of the opinion that the said order is clearly unsustainable. The petitioner was made to retire on 05.07.2000 i.e. the date on which he completed 62 years of service. His case is that ordinarily also a Government Servant would be retired at the end of the month when he would cross the age of superannuation. In case of teaching staff of the colleges receiving grant from the Government, the superannuation would take effect on 31st October or the 14th June, as the case may be. His case was in fact based on Government Resolutions and validity thereof was accepted by the Government. In the order dated 05.12.2000 having so done it was not open to the respondents to deny him the actual salary for the period, during which he was denied the benefit of service. In fact, in the order dated 05.12.2000 it was clearly provided that he would get the benefit of extended service till the term end. Such extended benefit, however, would not include either the increment or counting such service for pension. Thus, except for actual salary for the period during which the petitioner was prevented from discharging his duties, no other benefit was flowing from the Government's resolution dated 05.12.2000. If now the Accounts Officer is allowed to take a stand that since the petitioner did not actually work, he cannot be paid salary for the said period, it would amount to completely undoing the Government's order dated 05.12.2000.
7. Even otherwise I am of the opinion that the petitioner was prevented from discharging his duties on account of the action of the college retiring him on the date of his crossing superannuation instead of allowing him to work till the end of the term. Therefore, no blame can be attached to the petitioner due to which he could not discharge his duties. It is entirely between the Government and the College who should bear the burden of such salary. In any case, it cannot be the petitioner who should be denied the salary for such period. Counsel for the college however, submitted that the college took such a step because the Gujarat Affiliated College Services Tribunal, in the judgement dated 06.04.2000, had provided that the petitioner should be allowed to continue in service till he crosses 62 years of age. To my mind, the Tribunal never meant that the petitioner would not be entitled to other benefits if available as per Government Resolution of retiring at the end of the term instead of on the date of crossing the age of superannuation. However, this is an aspect which the Government shall have to examine in consultation with the College. In any case the petitioner cannot be denied the salary for the intervening period.
8. In the result, impugned order dated 24.05.2001 is quashed. Respondents are directed to release the salary of the petitioner for the period between 05.07.2000 to 31.10.2000. This shall be done along with simple interest @ 8% p.a. calculated from 01.11.2000 till actual payment.
9. Entire payment shall be made latest by 31.12.2012. With above direction, petition is disposed of. Rule is made absolute accordingly. No costs.
[AKIL KURESHI, J.] JYOTI