Gujarat High Court
Dahyabhai Vajesing Aanjna Patel Decd ... vs State Of Gujarat & on 27 January, 2017
Author: R. Subhash Reddy
Bench: R.Subhash Reddy, A.G.Uraizee
C/LPA/1099/2016 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS PATENT APPEAL NO. 1099 of 2016
in
SPECIAL CIVIL APPLICATION NO. 3422 of 2010
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH REDDY
and
HONOURABLE MR.JUSTICE A.G.URAIZEE
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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DAHYABHAI VAJESING AANJNA PATEL DECD THROUGH
HEIRS....Appellant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
SHRI DHARMESH R PATEL, ADVOCATE for the Appellant(s) No. 1 - 1.4
SHRI DHARMESH DEVNANI, ASSISTANT GOVERNMENT PLEADER for the
Respondent(s) No. 1.
SHRI H.S. MUNSHAW, ADVOCATE for the Respondent(s) No. 2.
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C/LPA/1099/2016 CAV JUDGMENT
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CORAM: HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH
REDDY
and
HONOURABLE MR.JUSTICE A.G.URAIZEE
Date : 27/01/2017
CAV JUDGMENT
(PER : HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH REDDY) This Letters Patent Appeal is filed under Clause 15 of the Letters Patent by the original petitioner in Special Civil Application No.3422 of 2016 aggrieved by the judgment of the learned Single Judge dated 07.04.2016. By the aforesaid judgment the learned Single Judge dismissed the petition filed by the appellant.
2. The aforesaid Special Civil Application is filed with the prayers which read as under:
"7(A) Admit this petition;
(B) Allow this petition by issuing a writ of mandamus or any other appropriate writ, order or direction by quashing and setting aside the order dated 26/08/09 by the respondent no.2, and thereby hold that the petitioner is entitled for the pensionary benefit from the date of his joining service in the Panchayat with arrears and interest and thereby, be pleased to direct the respondents to make payment of pension to the petitioner within a stipulated time;
C) Further be pleased to direct the respondents to pay the delay interest at the rate of 18% p.a. on the amount of pension as the delay has been caused due to the arbitrary action on the part of the respondents;
D) Pending admission and till final disposal of this petition direct the respondents to make ex-gratia/ad-
hoc payment of Rs. 2 lac to the petitioner with a view to Page 2 of 11 HC-NIC Page 2 of 11 Created On Sat Jan 28 02:31:28 IST 2017 C/LPA/1099/2016 CAV JUDGMENT save the petitioner from starvation.
E) Grant such other and further relief(s) as deemed fit in the interest of justice."
3. The claim of the appellant- original petitioner for grant of pensionary benefits is rejected by the learned Single Judge mainly relying on judgment of a Division Bench of this Court in the case of Chorvad Gram Panchayat & others Vs. Ramniklal Dahrshi Shah & others rendered in Letters Patent Appeal No.1381 of 2004 and allied matters decided on 2nd July, 2009.
4. In this appeal it is mainly contended by Shri Dharmesh Patel, learned counsel for the appellant that the learned Single Judge has committed error by not considering the case of the Chief Officer Vs. Mohmad Irshad Husenbhai Baloch & others reported in 2011 (1) GCD 569. During the course of hearing the learned counsel also placed reliance on the judgment of the Hon'ble Supreme Court in the case of Harijan Paniben Dudabhai Vs. State of Gujarat and others rendered in Civil Appeal No.5441 of 2016 dated 01.07.2016. It is contended that as the appellant was appointed as a Clerk by respondent no.2-Gram Panchayat on 12.08.1974 and his services were regularized and he became permanent employee of the Panchayat pursuant to order dated 01.01.1984. It is submitted that on attaining the age of superannuation he retired from service on 19.07.2008 and during the service there was deduction towards Provident Fund from his Page 3 of 11 HC-NIC Page 3 of 11 Created On Sat Jan 28 02:31:28 IST 2017 C/LPA/1099/2016 CAV JUDGMENT salary by the Panchayat and he was extended benefit of Special Grade Pay during his service and there is no reason or justification for denying pensionary benefits to the appellant.
5. On the other hand it is contended by Shri H.S. Munshaw, learned counsel appearing for respondent no.2 that the appellant was employed by the Gram Panchayat, on its own, without following the due procedure of recruitment as a Clerk by passing Resolution No.129 dated 07.09.1974 and the same was not a post sanctioned by the competent authority. It is submitted that no sanction was obtained by a body of Tarapur Gram Panchayat from the competent authority. As such the appellant cannot be treated as a Panchayat servant duly appointed under the provisions of the rules of Gujarat Panchayats Act. It is also contended that as the benefits were given to the appellant- petitioner by the Gram Panchayat by passing resolutions from time to time, and at no point of time any prior approval or sanction was obtained from the competent authority and the Assistant Examiner of Local Fund Audit has also not granted any approval and on the contrary has raised objections. It is also further pleaded that so far as Tarapur Grant Panchayat is concerned, it has not framed any scheme or policy for retiral benefits like provident fund, gratuity, leave encashment, group insurance etc. and further Tarapur Gram Panchayat is not a Panchayat converted from Municipality, and therefore, Government Resolution dated 21.11.2007 is also not Page 4 of 11 HC-NIC Page 4 of 11 Created On Sat Jan 28 02:31:28 IST 2017 C/LPA/1099/2016 CAV JUDGMENT applicable, as claimed by the appellant. It is further submitted that both the above judgments relied on by the learned counsel for the appellant would not support the case of the appellant for grant of pensionary benefits as claimed by him.
6. From the stance of the Gram Panchayat as is evident from the affidavit in reply filed in the Special Civil Application and the material placed on record it is clear that the appellant herein was appointed by the Gram Panchayat, on its own, by merely passing a Resolution without following due procedure for employment of the appellant. It is also evident that there is no post of Clerk in the sanctioned set up of the Gram Panchayat. It appears that from the material placed on record, Gram Panchayat, on its own, has appointed the appellant as a Clerk on 12.08.1974 and his services were also made permanent by order dated 01.01.1984. It is the specific case of the respondent that the appellant- petitioner was not appointed by following the rules for recruitment to fill up the posts in the Gram Panchayat. Nothing is placed on record to show that the appellant was appointed by following due procedure as contemplated under the law. It is also clear from the record that there is no post of Clerk in the sanctioned set up of the Panchayat. In that view of the matter the only question which falls for consideration is whether the appellant, who is appointed by the Gram Panchayat on its own, on the post which is not within the sanctioned set up approved by the Competent Authority, is entitled Page 5 of 11 HC-NIC Page 5 of 11 Created On Sat Jan 28 02:31:28 IST 2017 C/LPA/1099/2016 CAV JUDGMENT for grant of pensionary benefits.
7. In the case of Chorvad Gram Panchayat & others Vs. Ramniklal Dahrshi Shah & others rendered in Letters Patent Appeal No.1381 of 2004 and allied matters decided on 2nd July, 2009 (supra), precisely the very question fell for consideration. In the aforesaid batch of cases, Division Bench of this Court has considered whether a person, who has been appointed in Panchayat without following the due procedure laid down under section 203(4)(b) of the Gujarat Panchayats Act, 1961 can be treated as a member of Panchayat service so as to claim pensionary benefits under the Gujarat Panchayat Service (Pension) Rules, 1976 and the Family Pension Scheme, 1972. In the aforesaid case, the Division Bench of this Court has answered the said question in negative. In the aforesaid judgment, the Division Bench of this Court has categorically held that unless and until the appointments are made in the Gram Panchayat after following the provisions laid down under Section 203 of the Gram Panchayat Act, 1961, a person so appointed would not fall within the Panchayat Service constituted under Section 203(1) of the Act. The learned counsel for the appellant has strenuously contended that having extended the benefit of the Special Grade Pay by the Panchayat and after more than 30 years of service it is not open for the appellants to deny the benefit of pensionary benefits. It is specifically pleaded that in view of the judgment of the Hon'ble Supreme Court in the Page 6 of 11 HC-NIC Page 6 of 11 Created On Sat Jan 28 02:31:28 IST 2017 C/LPA/1099/2016 CAV JUDGMENT case of Harijan Paniben Dudabhai Vs. State of Gujarat and others rendered in Civil Appeal No.5441 of 2016 dated 01.07.2016 (supra), the judgment rendered by the Division Bench of this Court in the case of Chorvad Gram Panchayat & others Vs. Ramniklal Dahrshi Shah & others rendered in Letters Patent Appeal No.1381 of 2004 and allied matters decided on 2nd July, 2009 (supra) is no more a good law. It is submitted that in view of the judgment of the Hon'ble Supreme Court, the appellant is entitled for the benefit of pension. Further, it is submitted that the learned Single Judge failed to consider the judgment relied on by the appellant in the case of Chief Officer Vs. Mohmad Irshad Husenbhai Baloch & others reported in 2011 (1) GCD 569.
8. In view of reliance placed on the judgment referred to above we have gone through the judgments relied on by the learned counsel for the appellant. Having gone through the aforesaid judgments relied on by the learned counsel for the appellant we are not prepared to accept the submission that the issue in the present appeal is governed by the ratio laid down in the above said judgment. We are of the view that having regard to the fact situation both the judgments referred to above would not support the case of the appellant. The judgment in the case of Harijan Paniben Dudabhai Vs. State of Gujarat and others rendered in Civil Appeal No.5441 of 2016 dated 01.07.2016 (supra) by the Hon'ble Supreme Court, it is a case where a Municipality was Page 7 of 11 HC-NIC Page 7 of 11 Created On Sat Jan 28 02:31:28 IST 2017 C/LPA/1099/2016 CAV JUDGMENT converted into Gram Panchayat and upon such conversion existing staff of the Municipality was allocated to Gram Panchayat. In view of the same the question which fell for consideration was whether the staff of the Municipality, who were allocated to the Gram Panchayat can be treated as part of the Panchayat service. Further, in the aforesaid judgment it was categorically held that the deceased- employee was holding the post within the sanctioned set up of Safai Kamdars and he was getting regular salary. If one is appointed in the post within the sanctioned set up of the Gram Panchayat, he totally stands on a different footing than that of a person who is appointed to a post which is not sanctioned by Gram Panchayat. In view of the same the judgment in the case of Harijan Paniben Dudabhai Vs. State of Gujarat and others rendered in Civil Appeal No.5441 of 2016 dated 01.07.2016 (supra) would not apply to the facts of the present case. Further, decision in the case of the Chief Officer Vs. Mohmad Irshad Husenbhai Baloch & others reported in 2011 (1) GCD 569 (supra) would not support the case of the appellant for grant of pensionary benefits. In fact, in the aforesaid judgement, the view taken by the Division Bench of this Court in the case of Chorvad Gram Panchayat & others Vs. Ramniklal Dahrshi Shah & others rendered in Letters Patent Appeal No.1381 of 2004 and allied matters decided on 2nd July, 2009 (supra) is not distinguished as in view of the facts of such case the appeal filed by the Chief Officer of the Municipality was dismissed, but at the same time the view of the Division Bench of Page 8 of 11 HC-NIC Page 8 of 11 Created On Sat Jan 28 02:31:28 IST 2017 C/LPA/1099/2016 CAV JUDGMENT this Court in the case of Chorvad Gram Panchayat & others Vs. Ramniklal Dahrshi Shah & others (supra) is confirmed. As we are of the view that the facts of the present case exactly stand on the footing of the decision in Chorvad Gram Panchayat & others Vs. Ramniklal Dahrshi Shah & others (supra), the learned Single Judge has rightly dismissed the petition based on the decision in the case of Chorvad Gram Panchayat & others Vs. Ramniklal Dahrshi Shah & others (supra).
9. The judgment of the learned Single Judge in the case of Narsi Bacha Thacker Vs. State of Gujarat and others, reported in 1998 (1) GLH 1022 also supports the case of the respondent- Gram Panchayat. In the aforesaid judgment it is categorically held that merely because a person is appointed by the Gram Panchayat, he is not entitled for pensionary benefits unless he becomes a member of the Panchayat Service as envisaged under section 203 of the Gujarat Panchayats Act, 1961. It is categorically held that unless it is established that the appointed person is a member of the Panchayat Service, he cannot be held to be a civil servant of the State to claim pensionary benefits. Further, this Bench also has taken a similar view in the case of Jagdishbhai Mohanbhai Vidja Vs. State of Gujarat and others vide order dated 07.11.2016 rendered in Letters Patent Appeal No.634 of 2016. Both the above judgments also support the case of the respondents. Page 9 of 11 HC-NIC Page 9 of 11 Created On Sat Jan 28 02:31:28 IST 2017 C/LPA/1099/2016 CAV JUDGMENT
10. Having regard to the aforesaid reasons assigned by us we are in agreement with the view taken by the learned Single Judge in dismissing the petition filed by the appellant following the judgment in the case of Chorvad Gram Panchayat & others Vs. Ramniklal Dahrshi Shah & others (supra). It is needless to observe that the fact situation exactly fits into the view taken by this Court in the case of Chorvad Gram Panchayat & others Vs. Ramniklal Dahrshi Shah & others (supra). In that view of the matter, we are in agreement with the view taken by the learned Single Judge. We do not find any merit in this appeal filed by the appellant so as to interfere with the order of the learned Single Judge. Accordingly this Letters Patent Appeal is dismissed. No order as to cost.
11. However, it is made clear that if the Gram Panchayat has deducted, on its own, any amount towards Provident Fund, this will not preclude them to pay back such amount deducted. We make it clear that if any such application is filed it is open to the Gram Panchayat to pass appropriate orders and if it is found that any amount is deducted from the appellant's salary such amount shall be refunded to him.
(R. SUBHASH REDDY, CJ) Page 10 of 11 HC-NIC Page 10 of 11 Created On Sat Jan 28 02:31:28 IST 2017 C/LPA/1099/2016 CAV JUDGMENT (A.G.URAIZEE,J) karim Page 11 of 11 HC-NIC Page 11 of 11 Created On Sat Jan 28 02:31:28 IST 2017