Gujarat High Court
Jagdishbhai Mohanbhai Vidja vs State Of Gujarat & 5 on 8 June, 2016
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/14889/2013 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 14889 of 2013
With
CIVIL APPLICATION NO. 4506 of 2016
In
SPECIAL CIVIL APPLICATION NO. 14889 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
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1 Whether Reporters of Local Papers may be allowed to see NO
the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy of the NO
judgment ?
4 Whether this case involves a substantial question of law as NO
to the interpretation of the Constitution of India or any
order made thereunder ?
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JAGDISHBHAI MOHANBHAI VIDJA....Petitioner(s)
Versus
STATE OF GUJARAT & 5....Respondent(s)
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Appearance:
MR RAJESH O GIDIYA, ADVOCATE for the Petitioner(s) No. 1
MR SWAPNESHWAR GOUTAM, AGP for the Respondent(s) No. 1
MR HS MUNSHAW, ADVOCATE for the Respondent(s) No. 5 6
RULE SERVED for the Respondent(s) No. 1 6
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 08/06/2016
COMMON ORAL JUDGMENT
1. By this writapplication under Article226 of the Constitution of Page 1 of 11 HC-NIC Page 1 of 11 Created On Tue Jun 14 01:05:35 IST 2016 C/SCA/14889/2013 JUDGMENT India, the petitioner - a retired employee of the Juna Ghatila Gram Panchayat, Taluka Maliya (Miyana), DistrictRajkot, has prayed for the following reliefs: 13(A) to admit and allow this Special Civil Application;
(B) to issue a writ of mandamus or any other writ, direction or order to direction by quashing and setting aside the impugned communication dated 13.8.2013 issued by the Panchayat Rural Housing Department and Rural Development Department, Sachivalaya, Gandhinagar at Ann.:A, as well as the impugned communication dated 26.3.2013 issued by the District Development Officer, Rajkot at Ann.:B in the interest of justice;
(C) pending admission, hearing and final disposal of this petition, to restrain the respondent to regularize the services of the petitioner in the set up post and further be pleased to reconsider the case of the petitioner praying for regularize the set up post by directing the respondent authority to reconsider the case of the petitioner praying for regularize set up at the earliest, in the interest of justice;
(D) to grant such other and further relief that may be deemed fit and proper in the facts and circumstances of the case;
2. It is the case of the petitioner that he was appointed by the Gram Panchayat sometime in the year 1977. He worked with the Gram Panchayat for years together and ultimately, in 2013 he retired from the service. It is his case that after his retirement, he is not being paid pension. It is also his case that on attaining the superannuation, nothing was paid towards the retiral benefits. As a result, it is difficult for him to survive.
3. Mr. Gidiya, the learned counsel appearing for the petitioner submitted that the petitioner is entitled to the benefits of a Circular issued by the State Government dated 9th September, 1996 in this regard.
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4. On behalf of the Gram Panchayat, an affidavitinreply has been filed dully affirmed by the TalaticumMantri interalia stating as under:
2. The respnt. No.6 submits that so far as Juna Ghatila Gram Panchayat is concerned there is no sanctioned set up of staff for the Gram Panchayat. It is stated that the respnt. no.2 has not sanctioned any set up of staff for any cadre. The respnt. no.6 submits that the Gram Panchayat has on its own recruited the petitioner without following due procedure of recruitment through an order dated 17.4.77 and a copy of the order is annexed as AnnexureA. From a kind perusal thereof it would be clear that the same was issued by Sarpanch of the Gram Panchayat in his personal capacity and the appointment was purely temporary, adhoc and at a fixed monthly salary of Rs.201/ due to resignation tendered by one Mr. Prabhu Govind serving as Octroi Clerk and a copy thereof is annexed as AnnexureA. The respont. no.6 craves leave to add that the appointment was made by the Sarpanch of the Gram Panchayat and even no resolution was passed in that regard by the body of the Gram Panchayat.
The respnt. no.6 submits that the petitioner was serving as purely on temporary and adhoc basis without following due procedure of recruitment and attending work of collection of octroi. It is further stated that no prior approval was sought from Taluka Panchayat, District Panchayat or State Govt. by the Gram Panchayat prior to appointment of petitioner and not only that even thereafter no intimation was sent to the said higher authority. The Gram Panchayat was making the payment of salary out of its own fund and no grant was available from the District Panchayat or the State Govt.
The respnt. no.6 submits that the Gram Panchayat has not framed any recruitment rules or pay scales or any rules with regard to the retiral benefits. The respont. no.6 submits that though the cadre was abolished in the year 2001, services of the petitioner and one Mr. Nareshbhai K. Vidja were continued and ultimately both of them are relieved pursuant to a resolution No.8 passed by the Gram Panchayat in its meeting dated 30.3.13 and a copy thereof is annexed as AnnexureB.
3. The respont. no.6 submits that at present there is one employee viz.Keshavji Shivaji Harijan in employment of Gram Panchayat and is paid Rs.5000/ per month and is looking after the water supply work. It is stated that the Gram Panchayat has not employed any person except Mr. Harijan in its establishment and considering the population of Gram Panchayat which is 4488 and financial condition of Gram Panchayat is not sound.
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4. The respnt. no.6 submits that considering all these factual and legal aspects, District Development Officer, Rajkot i.e.respnt. no.5 has held on 26.3.13 that petitioner herein is not entitled to any relief subsequent to the orders passed by the Hon'ble High Court of Gujarat on 30.1.13 in Special Civil Application No.778/13 as well as instructions received from Development Commissioner, Govt. of Gujarat, Gandhinagar on 17.2.13 and a copy of the order is annexed as AnnexureC. The respnt. no.6 submits that even the Respnt. no.2 has also considered the issue raised by the petitioner with regard to regularization in employment of Gram Panchayat subsequent to the orders passed by the Hon'ble High Court of Gujarat on 30.1.13 in Special Civil Application No.778/13. It is submitted that the respnt. no.2 has taken in to consideration a Circular dated .9.96 and thereafter concluded that no such benefit can be made available to the petitioner as there is no sanctioned set up and petitioner was not employed on any of the sanctioned posts after following due procedure of recruitment.
5. In view of the above mentioned facts and circumstances Hon'ble Court is humbly prayed not to grant any interim relief and reject the present petition in limine with cost in the interest of justice.
5. The petitioner has filed affidavitinrejoinder to the reply of the Grant Panchayat.
6. It is not in dispute that the appointment of the petitioner at the relevant point of time was without any regular recruitment process. It is also not in dispute that there was no sanctioned post on the set up of the Gram Panchayat. This is evident from the reply of the Gram Panchayat referred to above.
7. This issue by and large squarely covered by the judgment of the Division Bench of this Court in the case of 'Chorvad Gram Panchayat & Ors. Vs. Ramniklal Dahrshi Shah & Ors.' in Letters Patent Appeal No.1381 of 2004, decided on 02/07/2009. The issue before the Division Bench was whether a person who has been appointed in a Panchayat without following the procedures laid down under Section203(4)(b) of the Gujarat Panchayats Act, 1961, can be treated as a member of the Page 4 of 11 HC-NIC Page 4 of 11 Created On Tue Jun 14 01:05:35 IST 2016 C/SCA/14889/2013 JUDGMENT Panchayat service so as to claim the pensionary benefits under the Gujarat Panchayat Service (Pension) Rules, 1976 and the Family Pension Scheme, 1972, and/or such appointee can be treated as an employee retired from the Panchayat service.
8. A Division Bench while taking the view that only those employees appointed in the Panchayat Service following the procedure laid down under Section 203 of the Gujarat Panchayats Act, can be treated as member of the Panchayat Service entitled to get pensionary benefits under the Gujarat Panchayat Service (Pension) Rules, 1976 and the Family Pension Scheme, 1972 observed as under:
9. Gujarat Panchayats Act, 1961 was enacted to consolidate and amend the law relating to village Panchayat and district local Boards in the State of Gujarat with a view to reorganise the administration pertaining to local Government in furtherance of the object of the democratic decentralisation of powers in favour of different classes of Panchayats. For the purpose of the said Act, there shall be in each district a Gram Panchayat for each Gram, a Nagar Panchayat for each Nagar, a Taluka Panchayat for each Taluka and a District Panchayat for the District, as per Section 3 of the Act. Section 102 of the Act deals with officers and servants of the Panchayat. It says that subject to the provisions of this Act and the rules made thereunder, there shall be a Secretary for every Gram Panchayat and Nagar Panchayat, who shall be appointed in accordance with the rules. Section 102(b) of the Act states that a Gram Panchayat or as the case may be, Nagar Panchayat, shall have such other servants as may be determined under Section 203 and such servants shall be appointed by such authority and their conditions of service shall be such as may be prescribed. Section 122 of the Act deals with Officers and Servants of Taluka Panchayat. Section 142 of the Act deals with Officers and servants of District Panchayat. Chapter XI deals with provisions relating to Panchayat service. Section 203 of the Act falls under that Chapter. The relevant portion of Section 203 of the Act is extracted hereunder for easy reference.
203. (1) For the purpose of bringing about uniform scales of pay and uniform conditions of service for persons employed in the discharge of functions and duties of panchayats, there shall be constituted a Panchayat Service in connection with the affairs of Panchayats. Such service shall be distinct from the State Service.
(2) The Panchayat Service shall consist of such classes, cadres and posts and the initial strength of officers and servants in each such class and cadre shall be such, as the State Government may by order from time to time determine:
Provided that nothing in this subsection shall prevent a district panchayat Page 5 of 11 HC-NIC Page 5 of 11 Created On Tue Jun 14 01:05:35 IST 2016 C/SCA/14889/2013 JUDGMENT from altering, with the previous approval of the State Government, any class, cadre or number of posts so determined by the State Government.
(2A)(a) The cadres referred to in subsection (2) may consist of district cadres, taluka cadres and local cadres.
(b) A servant belonging to a district cadre shall be liable to be posted whether by promotion or transfer to any post in any taluka in the district.
© servant belonging to a taluka cadre shall be liable to be posted, whether by promotion or transfer to any post in any gram or nagar in the same taluka.
(d) A servant belonging to a local cadre shall be liable to be posted whether by promotion or transfer to any post in the same gram or, as the case may be, nagar.
(2B) In addition to the posts in the cadres referred to in subsection (2A), a panchayat may have such other posts of such classes as the State Government may by general or special order determine. Such posts shall be called deputation posts and shall be filled in accordance with the provisions of Section 207.
(3) Subject to the provisions of this Act, the State Government may make rules regulating the mode of recruitment either by holding examinations or otherwise and conditions of service of persons appointed to the panchayat service and the powers in respect of appointments, transfers and promotions of officers and servants in the Panchayats Service and disciplinary action against any such officers or servants.
(4) Rules made under subsection (3) shall in particular contain
(a) a provision entitling servants of such cadres in the Panchayat Service to promotion to such cadre in the State Service as may be prescribed.
(b) a provision specifying the classes of posts recruitment to which shall be made through the District Panchayat Service Selection Committee and the class of posts, recruitment to which shall be made by the Gujarat Panchayat Service Selection Board, and ..... ...... .......
10. Section 323 of the Gujarat Panchayats Act, enables State Government to make Rules, and as per the powers conferred under Section 323 of the Act, Government of Gujarat framed Gujarat District Panchayat Service Selection Committee (Functions) Rules, 1964. Definitions 2 (vi) says Panchayat Service means service as constituted by an order made by Government from time to time under Section 203 of the Act. Section 211 of the Panchayat Act, 1961 says that there shall be District Panchayat Service Selection Committee in each district for selecting candidates for recruitment to such posts of the Panchayat service and to advise the panchayats in such matters and to perform such other functions as may be prescribed. Selection Committee has been defined under Rule 2 (ix).
11. The Government in exercise of powers conferred by Section 323 read with clauses (b) of subsection (1) of Section 102, clause 3 of Section 122 and Page 6 of 11 HC-NIC Page 6 of 11 Created On Tue Jun 14 01:05:35 IST 2016 C/SCA/14889/2013 JUDGMENT clause (3) of Section 142 of the Gujarat Panchayats Act, 1961, made Gujarat Panchayat Service (Appointing Authorities) Rules, 1967.
12. Above mentioned Rules clearly indicate that the appointments in the district cadres, taluka cadres and local cadres shall have to be made after following provisions laid down under Section 203 of the Act and persons so appointed would fall within the Panchayat service constituted under Section 203(1) of the Act. Once selection of an incumbent is made following the procedure laid down under Section 203 of the Act, appointments are effected by the appointing authorities under the Gujarat Panchayat (Appointing Authorities) Rules, 1967 framed by the Government in exercise of the powers conferred under Section 323, read with clause (b) of subsection (1) of Section 102, Clause (3) of Section 122 and clause (3) of Section 142 of the Act.
13. Subsection (2) of Section 203 of the Act says that Panchayat Service shall consist of such classes, cadres and posts and the initial strength of officers and servants in each such class and cadre shall be such, as the State Government may by order from time to time determine. In exercise of the powers conferred under subsection (2) of Section 203 of the Act, the State Government issued an order dated 2.1.1967 indicating respective cadres to which different posts in the Panchayat service belong. Yet another Departmental order was issued on 30.3.1977 dealing with district cadre, taluka cadre and local cadre. PartI deals with district cadre, PartII deals with taluka cadre and PartIII deals with local cadre. Service conditions of a Panchayat servant is governed by the Gujarat Panchayat Service (Conditions of Service) Rules, 1977. The word Panchayat service is defined as a Panchayat service constituted under Section 203 of the Act. Vela Keshav was never appointed by following above mentioned Rules or statutory provisions by way of selection made by the Staff Selection Committee constituted under Sec. 211 of the Act. Only those persons who are appointed in the Panchayat Service following the recruitment procedure laid down under Section 203(4)
(b) of the Act, can be treated as members of Panchayat service.
14. Government of Gujarat in exercise of powers conferred under Section 323 read with Section 203 of the Act, made Gujarat Panchayat Service (Pension) Rules, 1976. Rule 3 of the Pension Rules says that Pension Rules shall apply to all Panchayat servants. 'Panchayat Servant' has been defined under Rule 2(d) to mean any person who belongs to Superior Panchayat service or, as the case may be, the Inferior Panchayat service. Rule 2(c) defines Inferior Panchayat Service to mean the Inferior Panchayat service as constituted by clause (d) of subrule (2) of rule 3 of the Gujarat Panchayat Service (Classification and Recruitment) Rules, 1967. Rule 2(e) defines Superior Panchayat Service' to mean the Superior Panchayat service as constituted by clause (a) of subrule 3 of the Gujarat Panchayat Service (Classification and Recruitment) Rules, 1967. Gujarat Panchayat Service Rules, 1967 would apply to only those Panchayat servants, and shall not apply to certain categories of Panchayat servants. For easy reference, Rule (3) of the Gujarat Panchayat Service (Pension) Rules, 1976 is extracted hereunder:
3. Applicability and option (1) Save as otherwise provided in these rules, these Page 7 of 11 HC-NIC Page 7 of 11 Created On Tue Jun 14 01:05:35 IST 2016 C/SCA/14889/2013 JUDGMENT rules shall apply to all the Panchayats Servants, but shall not apply to:
(a) a panchayat servant not in the whole time employment of the panchayat;
(b) a panchayat servant paid out of contingencies;
© a panchayat servant paid otherwise than, on monthly basis, including those paid only on piece rate basis.
(d) a panchayat servant appointed on workcharged establishment or on daily rate basis or employed casually;
(e) a panchayat servant entitled to the benefit of a Contributory Provident Fund; other than that who opts to take the benefit of these rules in accordance with the provisions of subrule (4) of rule 3.
(f) a panchayat servant employed on contract except when the contract provides otherwise:
Provided that any such panchayat servant to whom these rules shall apply, have the right to opt to continue to be governed by any pension rules applicable to him immediately before the coming into force of these rules. Such of option shall be exercised in writing case Form in A before the 9th May, 1976. The option once exercised, shall be final.
(2) The option exercised under subrule (1), shall be communicated by the panchayat servant, to the Head of his office. This option when received from a Panchayat Servant should be countersigned by the Head of office and posted in the Service Book or, as the case may be Service Roll of the panchayat servant concerned.
(3) It shall be the responsibility of the Head of Office to acknowledge the option and the panchayat servant concerned shall ensure that the receipt of his option is acknowledged by the Head of Office and that he receives an intimation that it has been duly recorded by the Head of Office.
15. We may indicate that Vela Keshav had submitted an application exercising his option under the proviso to Rule 3 of the above Rules, but the same was rejected by the Local fund office stating that he was not a member of the Panchayat service. We are therefore, clearly of the view that only those employees who have been appointed following the procedure laid down under Section 203 of the Act and the Rules framed thereunder, under Section 323 of the Act would alone be a member of the Panchayat service, apart from the allocated employees from the Municipality to the Panchayats on its formation, or other employees who have been recognized as member of the Panchayat service by the State Government, or by the District Panchayat Service Selection Committee. Since Vela Keshav was never a member of Panchayat service, in our view he is not entitled to get pension under the Gujarat Panchayat Service (Pension) Rules, 1976 or any Pension Scheme framed by the Government for grant of Family Pension or otherwise for members of the Panchayat service.
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16. We may indicate that the view taken by us is in consonance with the view expressed by the Apex Court in State of Gujarat Vs. R.K. Soni AIR 1984 SC 161, in which decision the Hon'ble Supreme Court in paragraph 24 referred to the Gujarat Panchayat Service (Absorption Seniority Pay and Allowances) Rules, 1965, which provided for the equation of posts, fixation of seniority, scales of pay and allowances of allocated employees. It was noted that the Rule provided that every allocated employee holding a corresponding post immediately before the appointed day, shall be appointed to the equivalent post. It was observed that unless equivalence of posts is first determined, by order, by the Government, the said Rules could not be effectively applied. The Government however, did not make any order regarding equation of posts of the staff in the local cadre and the fixation of their scale of pay although such orders were made in respect of posts of other cadres.
17. Circular issued by the Government bearing No. NPM/1083964K(1) dated 25.8.1983 would indicate that Gram and the Nagar Panchayats have no power or authority under Section 102 of the Act to recruit, fix pay scales or prescribe qualifications for recruitment of the employees.
18. We are also of the view that learned Single Judge (Akshay Mehta, J.) was not justified in giving a positive direction to the Gram Panchayat to pay pensionary benefits to Vela Keshav and family pension to his widow by holding that under Section 203, read with Sec. 204 of the Gujarat Panchayats Act, Panchayat has got a statutory obligation to pay pensionary benefits. In our view, the learned Single Judge has completely misunderstood the scope of Section 204 of the Act. Section 204 of the Act says that subject to the rules, which the State Government may make in this behalf, the expenditure towards the pay and allowances of and other benefits available to an officer or servant of the Panchayat Service serving for the time being under any panchayat shall be met by that panchayat from its own fund. In our view, Section 204 of the Act would apply to the officers and servants of Panchayat service which says that their pay and allowances be met by the Panchayat from its fund. Panchayat may give salary and other benefits including Gratuity, Provident Fund etc. to persons like Vela Keshav, appointed on the basis of resolutions passed by the Panchayat and not by following the procedure laid down under Section 203 of the Act. Mere fact that Panchayat has paid salary and other benefits to Vela Keshav does not mean that he was a member of the Panchayat service so as to get the benefit available to members of Panchayat service. Panchayat, in its counter affidavit has stated that they have not framed any Pension Scheme for employees like Vela Keshav. In the absence of any Pension Scheme, in our view, the learned Single Judge was not justified in directing the Panchayat to pay pensionary benefits to Vela Keshav and family pension to his widow. Needless to say that all the statutory benefits such as Provident Fund, Gratuity etc. may be available to such persons and not the pensionary benefits or the family pension unless there is a Pension Scheme available to such employees.
19. Under the circumstances, we are inclined to dismiss Letters Patent Appeal Nos. 1522 of 2004, 1523 of 2004 and 614 of 1998 and allow Letters Patent Appeal No. 1381 of 2004, declaring that only those employees who have been appointed in the Panchayat service following the procedure laid down under Section 203 of the Gujarat Panchayats Act, can be treated as member of the Page 9 of 11 HC-NIC Page 9 of 11 Created On Tue Jun 14 01:05:35 IST 2016 C/SCA/14889/2013 JUDGMENT Panchayat service entitled to get pensionary benefits under Gujarat Panchayat Service (Pension) Rules, 1976 and Family Pension Scheme, 1972. We further hold that those persons who have been appointed by the Panchayat in their service otherwise than following the above mentioned statutory procedure are entitled to get pensionary benefits and family pension only if there is a Scheme available with the respective Panchayats. We make it clear if any pensionary benefits including Family Pension have already been paid to the petitioners on the strength of the judgments of the Court, they shall not be recovered from them, but they are not entitled to any future payments.
20. Appeals are disposed of. Connected Civil Application also stands disposed of.
9. The learned counsel appearing for the petitioner placed strong reliance on the judgment of the Constitutional Bench of the Supreme Court in the case of 'State of Gujarat & Anr. Vs. Raman Lal Keshav Lal Soni & Ors.' reported in (1983) 2 SCC 33 in support of his submission. However, this Constitutional Bench's judgment of the Supreme Court has been elaborately considered and discussed by the Division Bench in Chorvad Gram Panchayat (Supra).
10. The learned counsel appearing for the petitioner further submitted that his client should have been given the benefit of a Circular dated 9th September, 1996. It appears from the Communication dated 13/08/2013 addressed by the State Government to the petitioner herein that his case was considered keeping in mind the Circular dated 09/09/1996. But, the Government took the view that the same would not be applicable in the case of the petitioner since the Panchayat in question was not a converted one. The communication which is at Page 13, Annexure'A' is selfexplanatory. It is not in dispute that there is no pension scheme so far as the Juna Ghatila Panchayat is concerned.
11. In such circumstances referred to above, it is difficult for me to grant any relief to the petitioner. As a result, this application fails and is hereby rejected. Rule stands discharged.
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ORDER IN CIVIL APPLICATION:
In view of the order passed in the main matter, the connected Civil Application stands disposed of.
(J.B.PARDIWALA, J.) aruna Page 11 of 11 HC-NIC Page 11 of 11 Created On Tue Jun 14 01:05:35 IST 2016