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[Cites 19, Cited by 0]

Gujarat High Court

Harsukhbhai Ravjibhai Donga vs Secretary on 20 July, 2021

Author: Bhargav D. Karia

Bench: Bhargav D. Karia

     C/SCA/11305/2017                                  ORDER DATED: 20/07/2021




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 11305 of 2017

==========================================================
                        HARSUKHBHAI RAVJIBHAI DONGA
                                  Versus
                            SECRETARY & 4 other(s)
==========================================================
Appearance:
DIPESH D CHHAYA(8075) for the Petitioner(s) No. 1
KHUSHBU D CHHAYA(8093) for the Petitioner(s) No. 1
MR JAYNEEL PARIKH, AGP (1) for the Respondent(s) No. 1,2
MR HS MUNSHAW(495) for the Respondent(s) No. 3,4,5
==========================================================

 CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA

                              Date : 20/07/2021
                               ORAL ORDER

1. Heard learned advocate Ms. Khusbu Chhaya for the petitioner, learned Assistant Government Pleader Mr. Jayneel Parikh for the respondent Nos. 1 and 2-State and learned advocate Mr. H.S.Munshaw for respondent Nos. 3 to 5.

2. By this petition under Article 226 of the Constitution of India, the petitioner has prayed for the following reliefs:

"(a) This Hon'ble Court may kindly be pleased to issue a writ of certiorari, mandamus, prohibition or any other writ or order and be further pleased to:
(b) Your Lordships may be pleased to issue appropriate writ, order or direction declaring that, the petitioner is eligible and entitled to get pensionary benefit.
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(c) Any other relief as deemed fit in the interest of justice in favour of the petitioner."

3.The case of the petitioner is that he was appointed as a Valve man on 28th February, 1997 by the respondent District Panchayat. The petitioner raised an industrial dispute bearing Reference No. 42/1997 wherein petitioner and respondent no.5 entered into settlement and accordingly the petitioner was made permanent from 1st January, 1998 as Valve man and was placed in the grade of Rs. 3050- 4590. Thereafter, petitioner was granted higher grade pay from 1st January, 2007 and he was getting salary in the grade of Rs. 4000-6000.

3.1 It is the case of the petitioner that as per the resolution of the State Government dated 29th September, 1992, he is entitled to pension benefit and letter dated 18th November, 1996 is self explanatory and applies to the case of the petitioner. It is the case of the petitioner that after retirement, the petitioner already accepted CPF fund but he is ready to deposit the CPF fund along with interest.

3.2 It is the case of the petitioner that petitioner is posted on the regular set-up Page 2 of 26 Downloaded on : Sun Jan 16 01:23:15 IST 2022 C/SCA/11305/2017 ORDER DATED: 20/07/2021 and serving since long and made permanent on the post of regular setup and as per the letter of respondent no.1 dated 19th December, 2003 the petitioner is entitled to get pension.

3.3 It is the case of the petitioner that resolution of respondent no.1 dated 17 th September, 2007 is in connection with 609 employees and petition is one of the employee out of 609.

3.4 It is the case of the petitioner that similarly situated employees filed Special Civil Application No.18762/2013, wherein the petitioners were granted the benefit of pension.

3.5 The petitioner has therefore, preferred the present petition seeking pensionary benefits from the respondents.

4. Learned advocate Ms. Khusbu Chhaya for the petitioner submitted that the petitioner is entitled to get the pensionary benefits as per the different resolutions and circulars of the State Government.

5. It was submitted that as per the letter dated 19.12.2003 issued by the Panchayat, Gram Gruhnirman and Gram Vikas Section, the Page 3 of 26 Downloaded on : Sun Jan 16 01:23:15 IST 2022 C/SCA/11305/2017 ORDER DATED: 20/07/2021 petitioner is entitled to the pension. Reliance was also placed on the Government Resolution dated 17.09.2007.

6. Learned advocate Ms. Chhaya relied upon the decision of this Court [Coram:Hon'ble Mr. Justice Paresh Upadhyay, as His Lordships was then] tendered on 01.02.2017 in Special Civil Application No. 18762 of 2013 in case of Bhagvanji Nathabhai Savsani vs. State of Gujarat and ors. It was held that the petitioner was entitled to the pension and the respondents were directed to finalize pension in case of the petitioner and while making payment of arrears to the petitioner it was directed that it was open to the Municipality to deduct the amount of PF to the extent of the employee's share under the head 'Contributory Provident Fund', if any, paid to the petitioner.

7. Learned advocate Ms. Chhaya thereafter referred to and relied upon the decision of this Court [Coram: Hon'ble Mr. Justice J.B.Pardiwala] in case of Bhagwanji Vashrambhai Javia vs. State of Gujarat rendered on 11.04.2016 in Special Civil Application No. 13333 of 2014 to submit that the petitioner is entitled to the pensionary Page 4 of 26 Downloaded on : Sun Jan 16 01:23:15 IST 2022 C/SCA/11305/2017 ORDER DATED: 20/07/2021 benefits which was granted to the similarly situated persons by this Court.

8. On the other hand, learned advocate Mr. H.S. Munshaw appearing for respondent Nos. 3 to 5 submitted that the petitioner was granted the benefit of Pay Scale 950-1400 w.e.f. 01.01.1998 pursuant to the settlement arrived at between the petitioner and Jamkandorna Gram Panchayat in Reference No. 42 of 1997 filed by the petitioner for regularization of his service. It was pointed out that the higher authorities like Taluka Development Officer, District Development Officer or Development Commissioner were never approached for approval of the appointment of the petitioner in employment of the Gram Panchayat and none of the higher authorities were parties to the settlement arrived at between the petitioner and the Gram Panchayat. It was also submitted by learned advocate Mr. Munshaw that there is no sanctioned post of valve-man on which, the petitioner was appointed and regularized pursuant to the settlement between the petitioner and the gram panchayat before the Labour Court. Learned advocate Mr. Munshaw therefore submitted that the petitioner is neither a civil servant nor panchayat servant as defined under the provisions of the Gujarat Page 5 of 26 Downloaded on : Sun Jan 16 01:23:15 IST 2022 C/SCA/11305/2017 ORDER DATED: 20/07/2021 Civil Services Rules or the Gujarat Panchayat Act, 1993 and he is the only employee of Gram Panchayat. The respondent Nos. 3 to 5 also do not release any grant for the payment of salary to the employee of the Gram Panchayat and the petitioner was being paid salary by the Gram Panchayat from its own fund. It was therefore submitted that the Gram Panchayat has not framed any pension scheme or provident fund scheme for its employees the petitioner is not entitled to the pension benefits after his retirement from the Garam Panchayat.

9. It was submitted by learned advocate Mr. Munshaw that the reliance placed by the petitioner on the Government Resolution dated 29.09.1992 is not applicable in the facts of the case as the petitioner was not employed by the erstwhile Jamkandorna Municipality as the petitioner was the employee of Jamkandorna Gram Panchayat. It was submitted that the resolution dated GR 29.9.1992 issued by the respondent No.1 is made for employees of converted municipalities only and the employees who were employed by erstwhile municipalities would be entitled to the benefit as per terms and conditions stipulated in the said Resolution.

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10. It was also submitted that resolution dated 07.09.2007 is also not applicable to the petitioner as he is not allocated employee as stated in the said resolution. Learned advocate Mr. Munshaw submitted that reliance placed by the petitioner on the decision in case of Bhagvanji Nathabhai Savsani (supra) and Bhagwanji Vashrambhai Javia (supra) are also not applicable as the petitioner is not an employee of converted municipality.

11. Learned advocate Mr. Munshaw also relied upon the decision of Division Bench [Coram: Hon'ble The Chief Justice Mr. R.Subhash Reddy, as His Lordship was then and Hon'ble Mr. Justice A.G.Uraizee] in case of Dahyabhai Vajesing Aanjana Patel deceased through heirs vs. State of Gujarat and anr in Letters Patent Appeal No. 1099 of 2016 in Special Civil Application No. 3422 of 2010 rendered on 27.01.2017 to submit that the employees of the gram panchayat are not entitled to the pensionary benefits from the State Government as they are neither civil servant nor panchayat servant.

12. Reliance was also placed on the decision of the Division Bench [Coram: Hon'ble The Chief Justice Mr. Vikram Nath, as His Lordship was Page 7 of 26 Downloaded on : Sun Jan 16 01:23:15 IST 2022 C/SCA/11305/2017 ORDER DATED: 20/07/2021 then and Hon'ble Mr. Justice J.B.Pardiwala] in case of District Development Officer vs. Kamlaben Naranbhai Mehta rendered on 24.12.2020 in Letters Patent Appeal No. 81 of 2020 in Special Civil Application No. 11012 of 2015 to submit that if the petitioner is not a civil servant or was not a panchayat servant, the petitioner is not entitled to the pensionary benefits.

13. Having heard learned advocates for the parties and having gone through the material on record it appears that the petitioner was employed by the Jamkandorna Gram Panchayat and was neither a civil servant nor a panchayat servant as per the provisions of the Gujarat Civil Services Rules or the Panchayat Act, 1993.

14. The Division Bench of this Court in case of Dahyabhai Vajesing Aanjna Patel deceased through heirs [supra] has held as under:

"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 Page 8 of 26 Downloaded on : Sun Jan 16 01:23:15 IST 2022 C/SCA/11305/2017 ORDER DATED: 20/07/2021 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 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 Page 9 of 26 Downloaded on : Sun Jan 16 01:23:15 IST 2022 C/SCA/11305/2017 ORDER DATED: 20/07/2021 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 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 Page 10 of 26 Downloaded on : Sun Jan 16 01:23:15 IST 2022 C/SCA/11305/2017 ORDER DATED: 20/07/2021 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 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 respondentGram 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 Page 11 of 26 Downloaded on : Sun Jan 16 01:23:15 IST 2022 C/SCA/11305/2017 ORDER DATED: 20/07/2021 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.

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."

15. Similarly, in case of District Development Officer [supra], the Division Bench, after considering the decision of the Division Bench in case of State of Gujarat v. Chandubhai Page 12 of 26 Downloaded on : Sun Jan 16 01:23:15 IST 2022 C/SCA/11305/2017 ORDER DATED: 20/07/2021 Chhotabhai Patel and others reported in (2018)3 GLR 2658; the decision in case of State of Gujarat v. Raman Lal Keshav Lal Soni reported in AIR 1984 SC 161 as well as the decision in case of Chorvad Gram Panchayat & others Vs. Ramniklal Dahrshi Shah & others rendered in Letters Patent Appeal No.1381 of 2004, the decision of the Division Bench rendered on the reference made in Special Civil Application No. 13990 of 1993 and the Supreme Court decision in Civil Appeal No. 5441 of 2006 and allied matters decided in case of Harijan Paniben Dudabhai Vs. State of Gujarat and others came to the conclusion as under:

"34. The Supreme Court thereafter in paragraph 5 noted that a Constitution Bench in R.K.Soni (supra) held that the Panchayat Service constituted under the aforesaid Section 203 of the Act is a Civil Service of the State and the members of the service are Government servants. The Supreme Court thereafter proceeded to take notice of the facts of the lead matter arising from the Letters Patent Appeal No.1522 of 2004. The Supreme Court took notocei of the fact that one Vela Keshav (deceased husband of Paniben) was appointed by the Okha Gram Panchayat as a 'Safai Kamdar' on 4th February 1964. After having put in 33 years of service, he died in harness on 6th February 1977. The Supreme Court noticed that the record indicated that the monetary benefits, such as, leave encashment, group insurance and Page 13 of 26 Downloaded on : Sun Jan 16 01:23:15 IST 2022 C/SCA/11305/2017 ORDER DATED: 20/07/2021 general provident fund, were paid to Paniben as the legal representative of the deceased. Paniben represented that the family of Vela Keshav was also entitled to family pension and gratuity, which claim having not been accepted, Paniben moved this High Court by filing the Special Civil Application No.354 of 2004.
35. The Supreme Court thereafter looked into the affidavits filed in opposition by the Deputy District Development Officer, District Panchayat, Jamnagar, and by the Sarpanch of the Okha Gram Panchayat. The Supreme Court took notice of the stance of the respondents that since the deceased was not recruited by the Gram Panchayat in accordance with the statutory rules, the appelant was not entitled to claim the family pension. The Supreme Court took notice of the fact that the Single Judge of the High Court rejected the Special Civil Application on the ground that the deceased was not appointed by the District Panchayat Service Selection Committee constituted under Section 2(11) of the Act and was not a member of the Panchayat Service as envisaged by Section 203 of the Act, and for such reason, the appellant was not entitled to claim any family pension or gratuity. The Supreme Court thereafter took notice of the fact that the Letters Patent Appeal No.1522 of 2004 filed by Paniben against the judgment of the learned Single Judge also came to be dismissed on the ground that Vela Keshav (deceased husband of Paniben) had not undergone any selection procedure and had obtained the employment only on the strength of passing of the resolution in the Panchayat. The Okha Gram Panchayat had not made any proposal to regularize such unauthorized recruitment and appointment of the deceased husband of Paniben.
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C/SCA/11305/2017 ORDER DATED: 20/07/2021 Thereafter, in paragraph 9 of the judgment, the Supreme Court reproduced relevant extracts of the affidavit-in- reply filed on behalf of the respondent no.5. We quote the same as under :
"The appointment of deceased Vela Keshav was made by the Gram Panchayat by passing a Resolution and he was holding the post within the sanctioned set up of Safai Kamdars (Sweepers). The said Resolutions of the Gram Panchayat making the appointment of the deceased are not available at present. However, the necessary entry made in the Service Book of the deceased employee showing the other details in the Service Record is available....
The deceased employee was appointed as a Full time employee on the sanctioned set up of the Gram Panchayat getting regular salary....
The Okha Gram Panchayat appointed him as Safai Kamdar on the terms and conditions as its own employee where there were no rules. However, the fact remains that the deceased was holding the post on the set up sanctioned by the Development Commissioner and had continued till his retirement as a regular full time employee. Further, it cannot be said that his appointment was not made in accordance with the provisions under Section 203 of the Panchayat Act because no such rules of recruitment were as such framed on the date on which the deceased was appointed on 4.2.1964."

36. The Supreme Court thereafter proceeded to observe as under :

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C/SCA/11305/2017 ORDER DATED: 20/07/2021 "10. The Division Bench of the High Court by its judgment and order under appeal dismissed Letters Patent Appeal No.1522 of 2004 and other connected matters. It was observed that only those employees who had been appointed following the procedure laid down in Section 203 of the Act and the rules framed thereunder, would alone be members of Panchayat Service, apart from the allocated employees from the municipality to the Panchayats at the time of formation of the Panchayats or such other employees who had been recognized as members of Panchayat Service by the State Government, or by the District Panchayat Selection Committee. It was further observed that merely because Panchayat had paid salary and other benefits to the deceased, it did not mean that he was member of Panchayat Service so as to get the benefits available to members of Panchayat Service like family pension and gratuity.
11. In the present case the deceased was appointed as Safai Kamdar on 4.2.1964 by Gram Panchayat by passing an appropriate resolution. It is true that Section 203(3) of the Act empowers the State Government to make rules regulating mode of recruitment. Our attention in that behalf was invited to Gujarat Service (Appointing Authorities) Rules, 1967. Rule 2 of the said Rules stipulates, inter alia, that the Appointing Authority in respect of posts under the Gram Panchayat, which are included in the local cadre is Gram Panchayat itself. The term local cadre finds elaboration in Part III of Gujarat Panchayat Service (Conditions of Service) Rules, 1977 (hereinafter referred to as the 1977 Rules). Part III captioned Local Cadre is to the following effect:
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C/SCA/11305/2017 ORDER DATED: 20/07/2021 I. Secretary of a Nagar Panchayat II The following posts under the Nagar or as the Case may be, Gram Panchayat, namely Chief Officer (Nagar Panchayat) Head Clerk Senior Clerk Junior Clerk Vasulati Clerk Typist Octroi clerk Accountant Cashier Tax Inspector Shop Inspector Octroi Inspector Overseer Power House Manager Driver Cleaner Posts required for schools run by the Panchayat Posts required for dispensaries run by the Panchayat Posts required for libraries run by the Panchayat Posts required for dispensaries run by the Panchayat III All posts belonging to the inferior panchayat Service under Gram Panchayat or Nagar Panchayat.
IV. All other technical and non-technical posts under the Gram Panchayat or Nagar Panchayat.
12. Item III of aforementioned Part III deals with Inferior Panchayat Service under Gram Panchayat or Nagar Panchayat which term is defined inter alia in Rule 2(h) of the 1977 Rules, as under:
2(h) Superior Panchayat Service and Inferior Panchayat Service means respectively the Superior Panchayat Service and the Inferior Panchayat Service as constituted respectively by clause (a) and clause (d) of sub- rule (2) of Rule 3 of the Gujarat Panchayat Service (Classification and Recruitment) Rules, 1967. Sub-rule (2) of Rule 3 of the Gujarat Panchayat Service (Classification and Recruitment) Rules, 1967 deals with Panchayat Service and stipulates that it shall consist of two classes, namely, Superior Panchayat Service and Inferior Panchayat Service.
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13. The statutory provisions as mentioned above and the clear assertion by Respondent No.5 in his affidavit in reply, shows that in the year 1964 when deceased Vela Keshav came to be appointed, there were no rules governing the appointment in question. The rules regulating Superior Panchayat Service and Infereior Panchayat Service in the form of Gram Panchayat Service (Classification and Recruitment) Rules, 1967 came on the statute book in the year 1967. Going by the Gujarat Panchayat Service (Appointing Authorities) Rules, 1967, Gram Panchayat is the appropriate authority in respect of posts included in the Local Cadre. Thus, we do not find any infraction in the appointment of Vela Keshav, who was appointed pursuant to a resolution passed by Panchayat.

Nothing has been pointed out how Gram Panchayat was not competent to make such appointment or that at the relevant time in question the power to make appointments was vested in an authority other than Gram Panchayat or that there was any separate modality or procedure prescribed for effecting such an appointment.

14. As detailed in the affidavit in reply on behalf of Respondent No.5, the deceased Vela Keshav was holding the post within the sanctioned set up of Safai Kamdars and that he was a full time employee getting regular salary. The deceased Vela Keshav had put in 33 years of service and died in harness. At no stage, while he was in service any objection or even a doubt was raised that he was not validly appointed. In our view, Vela Keshav must be held to be one who was regularly appointed and we do not find any infirmity or illegality in his appointment so as to disentitle the family of the benefits of family pension and gratuity."

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37. The Supreme Court thereafter took notice of the Circular issued by the Government of Gujarat, Panchayat Rural Housing and Rural Development dated 26th February 2008 which was placed on record by way of additional documents. The Circular looked into by the Supreme Court reads thus :

"It is, therefore, informed to all the District Development Officers to initiate proceedings in accordance with the instructions given vide letters cited at preamble for regularizing services of the employees appointed/recruited under the converted gram/nagar panchayats during the period from 1.4.1963 to 10.7.1978 and 10.07.1978 to 5.06.1984 and to decide their other service related matters accordingly. Further, it is also hereby informed to submit proposal of posts of remaining employees as per item no.1 of letter at preamble 1 who have been recruited/appointed promoted during the period from 10.07.1978 to 5.06.1984 and on other aspects of the aforesaid letters also, if guidance/approval is required, DDO shall have to submit proposal through Development Officers office within six months after examining service record of each employee with their clear opinion."

38. The connected appeals of other employees also came to be allowed by the Supreme Court having regard to the facts and circumstances of each of the cases.

39. Mr.Barot, the learned counsel appearing for the writ-applicant has placed significant reliance on the afore- referred decision of the Supreme Court in the case of Harijan Paniben Dudabhai (supra). On the first splash, if the judgment of the Supreme Court in Harijan Page 19 of 26 Downloaded on : Sun Jan 16 01:23:15 IST 2022 C/SCA/11305/2017 ORDER DATED: 20/07/2021 Paniben Dudabhai (supra) is not read closely, then it may give an impression that the writ-applicant is entitled to draw pension. However, if read closely, one can say that the facts in the case of Harijan Paniben Dudabhai (supra) were altogether different.

40. For the sake of convenience, we may once again summarise what weighed with the Supreme Court in granting relief to Harijan Paniben Dudabhai (supra). We quote :-

(1) The appointment of deceased Vela Keshav was made by the Gram Panchayat by passing a resolution and he was holding the post within the sanctioned set up of 'Safai Kamdars' (Sweepers). The emphasis over here is on the 'sanctioned set up' of 'Safai Kamdars'.
(2) Although the resolutions of the Gram Panchayat making the appointment of Vela Keshav were not available, yet the necessary entry made in the service book of the deceased employee showed the other details in the service record.
(3)Vela Keshav was appointed as a Full Time employee on the sanctioned set up of the Gram Panchayat getting regular salary.
(4) The Okha Gram Panchayat appointed Vela Keshav as 'Safai Kamdar' on the terms and conditions as its own employee where there were no rules. However, Vela Keshav was holding the post on the sanctioned set up by the Development Commissioner and had continued till his retirement as a Full Time employee.
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C/SCA/11305/2017 ORDER DATED: 20/07/2021 (5) The Supreme Court took the view that the appointment of Vela Keshav could not be said to have not been made in accordance with the provisions under Section 203 of the Panchayats Act because no such rules of recruitment were as such framed on the date on which Vela Keshav was appointed on 4th February 1964 (emphasis supplied).

(6) Vela Keshav was appointed as 'Safai Kamdar' on 4th February 1964 by the Gram Panchayat. Section 203(3) of the Act empowers the State Government to make rules regulating the mode of recruitment. Rule 2 of the Gujarat Service (Appointing Authorities) Rules, 1967 stipulates, inter-alia, that the Appointing Authority in respect of posts under the Gram Panchayat, which are included in the local cadre is Gram Panchayat itself. The term 'local cadre' finds elaboration in Part- III of the Gujarat Panchayat Service (Conditions of Service) Rules, 1977. The emphasis over here is on the term 'local cadre'.

(7) In the year 1964, when deceased Vela Keshav came to be appointed, there were no rules governing the appointment as the rules regulating the Superior Panchayat Service and the Inferior Panchayat Service in the form of the Gram Panchayat Service (Classification and Recruitment) Rules, 1967, came on the statute book in the year 1967.

(8) Going by the Gujarat Panchayat Service (Appointing Authorities) Rules, 1967, Gram Panchayat is the appropriate authority in respect of the posts included in the local cadre. The emphasis once again over here is on the term 'local cadre'.

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C/SCA/11305/2017 ORDER DATED: 20/07/2021

41. We shall now compare the facts in the case of Harijan Paniben Dudabhai (supra) with the facts of the present case.

42. Before we undertake the aforesaid exercise, we must look into the Gujarat Panchayat Service (Classification and Recruitment) Rules, 1967. Section 2(f) defines the term 'Panchayat Service' to mean, 'Panchayat Service constituted under Section 203 of the Act'. Section 2(h) defines the term 'Selection Committee' to mean, 'District Panchayat Service Selection Committee constituted under sub- section (2) of Section 211 of the Act'.

43. The Rules thereafter classify services in the lower cadre. Rule 4 reads thus :

"4. 'Aya' and 'Dai' (Ward-maid and Midwifery). - The candidates -
(1) who are more than 40 years of age on the date of the appointment, and (2) who hold a Midwifery certificate issued by the office of the Director, Gujarat Public Health, or having such recognized qualification and training, those candidates will be appointed by direct recruitment."

45. The Rules make it abundantly clear that the posts of 'Aya' (Ward-maid) is of Taluka level cadre. The local cadres meant for the Nagar Panchayat/ Gram Panchayat does not include a cadre of 'Aya'. The District Panchayat Service Selection Committee (Functions) Rules, 1964, provides for the functions of the Committee. The selection for the cadre of 'Aya', a Taluka level cadre, is to be made by the District Panchayat Service Selection. In accordance with the Gujarat Page 22 of 26 Downloaded on : Sun Jan 16 01:23:15 IST 2022 C/SCA/11305/2017 ORDER DATED: 20/07/2021 Panchayat Service (Appointing Authority) Rules, 1967, the Deputy District Development Officer is the appointing authority for the Inferior Service employees of the Taluka level cadre and the District level cadre. On the other hand, the Gram Panchayat is the appointing authority for the posts of local cadres of the Gram Panchayat.

46. As noted above, the cadre of 'Aya' is not a local cadre, and as such, is a Taluka level cadre.

47. The most important distinguishing feature in Harijan Paniben Dudabhai (supra) compared to the case on hand is the finding recorded by the Supreme Court that, when deceased Vela Keshav was appointed in the year 1964, there were no rules in force. However, in the case on hand, when the writ-applicant came to be appointed in the year 1968, the rules had already come into force. Once the rules came into force, the Gram Panchayat could not have appointed the writ-applicant to the post of 'Aya' (Ward-maid) (Inferior Service) but a Taluka level cadre and not a Gram Panchayat level cadre.

48. In such circumstances referred to above, any appointment after the rules came into force had to be in accordance with the procedure laid down in Section 203 of the Act and the Rules framed thereunder.

49. By the Resolution dated 29th April 1989 issued by the Government of Gujarat through its Health Department, the dispensary of the Gram Panchayat was taken over and was converted into a Primary Health Centre. This is how late Kamlaben N.Mehta was absorbed as 'Aya' (Class-IV) Page 23 of 26 Downloaded on : Sun Jan 16 01:23:15 IST 2022 C/SCA/11305/2017 ORDER DATED: 20/07/2021 in the Panchayat Service in the regular pay-scale of Rs.750-940/- with effect from 29th April 1989 as a special case as she had already crossed the eligible age limit. The Condition No.6 of the Resolution dated 29th April 1989 categorically provided that the prior service rendered by late Kamlaben N.Mehta shall not be counted for the purpose of seniority, leave, pension, etc. The Condition No.1 therein provides that the pay-scale of Rs.750-940/- meant for a Class-IV employee would be available from the date of joining of the service as fresh appointment and the past service shall not be counted for the purpose of seniority, leave, pension, etc.

50. In the case on hand, the writ- applicant was not a member of the Panchayat Service between 1968 and 1989 and, therefore, was not entitled to draw 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 the members of the Panchayat Service.

51. Unfortunately, for the writ-applicant, after being appointed on the regular establishment, she retired within a period of 10 years. She could not be said to have put in 10 years of minimum qualifying service for the purpose of pension. Between 29.4.1989 and 31.5.1998, she could be said to be a 'Panchayat Servant' having rendered 'Panchayat Service', but as noted above, fell short of 10 years of qualifying service for the purpose of pension. The learned Single Judge, in our opinion, committed an error in taking the view that as there is a reference in the appointment order of 1968 to the provisions of the Grant-in-Aid Rules and Page 24 of 26 Downloaded on : Sun Jan 16 01:23:15 IST 2022 C/SCA/11305/2017 ORDER DATED: 20/07/2021 the Rules issued by the Panchayat, the writ-applicant is entitled to pension.

52. In our opinion, the learned Single Judge also committed an error in taking the view that as the entire 30 years of service has been considered for the purpose of gratuity, the same should also be considered for the purpose of pension.

53. In view of the aforesaid discussion, we hold that the learned Single Judge committed an error going to the root of the matter, warranting interference at our hands in this Appeal.

54. In the result, this Appeal succeeds and is hereby allowed. The impugned judgment and order passed by the learned Single Judge is set-aside. The Special Civil Application No.11012 of 2015 is hereby rejected."

16. Considering the above judgements it appears that the services of the petitioner were regularized pursuant to the settlement arrived at between the Gram Panchayat and the petitioner from 01.01.1998 as on the post of valve-man though such post was never sanctioned by the respondents authorities. It is also pertinent to note that services of the petitioner were never sanctioned by the higher authorities and the contributory provident fund received by the petitioner cannot be said to be a factor entitling the petitioner to get the benefit of pension as per the Government Resolutions dated 17.09.2007 or 29.09.1992.

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C/SCA/11305/2017 ORDER DATED: 20/07/2021 The petitioner was neither a civil servant nor a panchayat servant and therefore, the benefit of said resolutions are not applicable in the facts of the case and as such, the petitioner was not entitled to the pensionary benefits under the Gujarat Panchayat Service (Pension) Rules 1976 for any pension scheme framed by the Government for grant of pension or otherwise for the members of the panchayat service.

17. In view of the foregoing reasons, the petition fails and is accordingly dismissed. Notice is discharged.

(BHARGAV D. KARIA, J) JYOTI V. JANI Page 26 of 26 Downloaded on : Sun Jan 16 01:23:15 IST 2022