Gujarat High Court
Kunvarben Lakhabhai Makwana vs State Of Gujarat on 4 December, 2020
Author: Biren Vaishnav
Bench: Biren Vaishnav
C/SCA/5677/2020 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 5677 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 8487 of 2020
With
CIVIL APPLICATION (FOR AMENDMENT) NO. 1 of 2020
In R/SPECIAL CIVIL APPLICATION NO. 8487 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 8536 of 2020
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VIJAYKUMAR AMRITLAL BHATT
Versus
STATE OF GUJARAT
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Appearance:
MRS KRISHNA G RAWAL(1315) for the Petitioner(s) No. 1
for the Respondent(s) No. 6
MR.ISHAN JOSHI, AGP (1) for the Respondent(s) No. 1
MR TULSHI R SAVANI(3070) for the Respondent(s) No. 2
NOTICE SERVED(4) for the Respondent(s) No. 3,4,5
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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
Date : 04/12/2020
COMMON ORAL ORDER
1. RULE returnable forthwith. Mr.Tulshi Savani learned advocate waives service of Rule for respondent no.2 and Mr.Ishan Joshi learned AGP waives service of Rule for respondent nos.1, 3, 4 and
5. With the consent of learned advocates for the respective parties, the petition is taken up for final hearing.
2. In all these petitions under Article 226 of the Constitution of India, the petitioners are retired employees of the respondent no.2-Una Nagarpalika and have approached this Court for pensionary benefits.
3. The issue at hand is no longer res-integra in view of the decision of this Court in Special Civil Application No.20211 of 2019 dated 25.02.2020. The said order reads as under:
Page 1 of 22 Downloaded on : Tue Feb 23 23:52:34 IST 2021 C/SCA/5677/2020 ORDER"1. RULE. Mr. Ishan Joshi, learned Assistant Government Pleader for respondent No.1 and Mr. Tulshi Savani, learned advocate for respondents No.2 to 4, waive service of notice of rule on behalf of the respective respondents.
2. By way of this petition, the petitioner has prayed to direct the respondents to release the amount of monthly pension and other retiral benefits, including Gratuity, Higher payscale, Leave Encashment and the benefits of both the Sixth and Seventh Pay Commissions; and have also prayed to direct the respondents to make payment of arrears of pension and other retiral dues along with interest.
3. Briefly stated, the facts are as under;
The petitioner joined the services of the respondent Municipality as a Wireman on 01.01.1997 on the regular setup. He was absorbed on the regular setup and was also granted the higher payscales. It is the case of the petitioner that he was working with the respondent Municipality on its regular setup with effect from 01.10.1997. At that time, he was given an option of pension, which he had duly filled in. The petitioner retired on superannuation on 30.09.2019. Thereafter, the petitioner requested the respondents to grant him pension and other benefits vide communication dated 16.09.2019. However, the respondents did not grant any such benefits to the petitioner. Being aggrieved by the same, the petitioner has preferred the present writ petition.
4. Mrs. Krishna Rawal, learned advocate for the petitioner, has drawn the attention of the court to a decision of this court passed in Special Civil Application No.30402 of 2007 and allied matters dated 08.04.2015, to submit that in similar set of facts, the court had issued directions to the respondent authorities to grant pension and other retiral benefits together with interest to the petitioner therein. She, therefore, prayed that similar direction may be issued in this petition.
5. Admittedly, the case of the petitioner is covered by a decision of this Court rendered in Special Civil Application No. 30402 of 2007 and allied matters dated 08.04.2015. The relevant paragraphs of the said order reads thus:
"11. As could be noted, petitioner of Special Civil Application Page 2 of 22 Downloaded on : Tue Feb 23 23:52:34 IST 2021 C/SCA/5677/2020 ORDER No.4757 of 2012 was working as Officer Clerk, whereas, deceased employees viz., Shri Bachubhai M. Bambhania and Bhurabhai S. Bhamat were working as Octroi Guards. It is not in dispute that they all were engaged on sanctioned posts. Therefore, in the present group of petitions also, stand of the respondents cannot be sustained. Apt it would be, to reproduce some of the relevant observations made in the said decision dated 1st April 2015, which reads thus:
12. Independently, this Court could have examined extensively the length of service of each petitioner with Nagarpalika so also the resolution dated 28th November 1994 and Clause 14 & 15 thereof. However, in wake of decision of this Court rendered in case of Arjanbhai Panchabhai Bambhania v. Una Nagar Palika [Special Civil Application No. 3969/2011 & allied cases], duly confirmed by the Division Bench vide Order dated 31.01.2013 in Letters Patent Appeal No. 96 of 2013 and allied appeals, such exercise may not be necessary. As rightly pointed out by the learned advocate, the case of these petitioners is identical to the one already decided by this Court. It is true that the facts of each case may require some scrutiny, but, once those basic facts already brought on record are found sufficient to equate the case of present petitioners with those who have already been availed the benefit of pension, no adjudication would be desirable.
13. The decision rendered in case of Chief Officer v. Mohmad Irshad Husenhbhai Baloch [Supra] has been followed in case of Arjanbhai Panchabhai Bambhania v. Una Nagar Palika [SCA No. 3969 of 2011 & allied petitions]. The Division Bench of this Court in case of Chief Officer vs. Mohmad Irshad Husenbhai Baloch [LPA No. 214 of 2011 & allied appeals] dated 3rd February 2011 was examining entitlement of the petitioner employees working initially as daily wagers with the concerned Panchayat, prior to conversion of Panchayat into Municipality viz., Una Nagar Palika to receive pension. It was an undisputed position before the Court that all the employees were under GPF scheme and the GPF accounts of all of them were opened, deductions were also made from their salary Page 3 of 22 Downloaded on : Tue Feb 23 23:52:34 IST 2021 C/SCA/5677/2020 ORDER from the date on which they were made permanent, till the date of their retirement or till the date of their death. Profitable it would be to reproduce the observations and findings given by this Court, which reads thus-
"6. It is undisputed position that all the concerned employees were treated in the GPF scheme, therefore, respective GPF accounts were opened and the deduction was also made from their salary from the date on which they were made permanent and until they retired from service or their service ended on account of their death. It is also undisputed position that all such employees were not treated in CPF scheme, which is applicable to other municipal employees and no deduction for the purpose of CPF has been made by the municipality from the salary of concerned employees. If the employee, when he is absorbed in service, is treated for all purposes in the GPF scheme for pensional benefits and not treated in the CPF scheme for lumpsum amount, and the said position continued until the person concerned reached to the age of superannuation or otherwise, would it be open to the employer or the concerned authorities to deny the pensionary benefits after retirement on the ground that the employees concerned was not eligible for pension as per the GPF scheme. In our view, if such is permitted to be entertained and accepted, it would not only be highly improper on the part of the authority, but can also be termed as atrocious action, which would be absurd on the face of it.
7. The learned counsel for the appellant, however contended that the employees concerned, who were in the then panchayat service and subsequently continued in the municipality, were not recruited by the regular selection process and it was submitted that it is only w.e.f. 1.1.1989 they have been granted permanency benefit. When on 1.1.1989 permanency benefits were granted, they were Page 4 of 22 Downloaded on : Tue Feb 23 23:52:34 IST 2021 C/SCA/5677/2020 ORDER taken as municipal employees and not as employees of the Panchayat. Under the circumstances, they would be entitled for all benefits, which may be available to other municipal employees. It was submitted that as per the decision of this Court in case of Chorwad Gram Panchayat Vs.Ramniklal Dharshi Shah reported at (2010)1 GCD 675, such employees who were not recruited by the regular selection process of the then Gram Panchayat, could not be termed as in panchayat service and, therefore, would not be eligible for the pensional benefits as available to other employees of the panchayat or Government service. Learned counsel, therefore, contended that if the employees were of the municipality, there is no scheme of the Government for pensional benefits, but the scheme applicable would be CPF to the employees of the municipality. It was submitted that the learned single Judge was guided by the resolution of the Government, which in the submission of the municipality is not applicable and, therefore, the order passed by the learned single Judge is erroneous.
8. There cannot be any different view in respect of the employees taken by this Court in Chorwad Gramp Panchayat (supra). However, the point which arise for consideration in the present group of matters did not arise in the said case inasmuch as if for all purposes the employees concerned were treated as in panchayat service with the scheme of the Government for pension by deduction of GPF, would it be open to the Government or the municipality to deny the pensional benefits, if the employees concerned have retired from service. It is true that if one was not appointed by regular recruitment process, he may not fall in the panchayat service. In our view, the factum of giving treatment by the municipality and Government to all the concerned employees in the present case as member of the panchayat service and the Page 5 of 22 Downloaded on : Tue Feb 23 23:52:34 IST 2021 C/SCA/5677/2020 ORDER consequent action of regular deduction of contribution of GPF account that too from the inception of the service as the permanent employees until reaching to the age of superannuation or until the services came to an end, would be sufficient to decline the entertainment of such plea taken by municipality and/or the Government as the case may be, that the employees concerned in view of the aforesaid decision of this Court in case of Chorwad Gram Panchayat (supra), would not be entitled for the pensional benefits. Be it noted that it is not the case of the appellant or any of the State authority that it is on account of any fraud or misrepresentation or any mischief played by the concerned employees at the relevant point of time or even thereafter they were treated as member of GPF scheme. Therefore, the question is to be examined in light of the bona fide action on the part of employee as well as the concerned officer of the employer or the Government, as the case may be. It is true that in normal circumstance, such estoppel may not operate against any statute, but it is not a mere case of considering the question of estoppel. In our view, a case of conduct of the party concerned coupled with the alteration of the position of the party concerned throughout. At any point of time, neither the municipality or the Government has refunded the amount of contribution nor they have intimated to the employees concerned for their mistake or otherwise. After completion of the service, if such a plea is entertained or is accepted, in our view, it would result into allowing the atrocious treatment to be played by the municipality or the Government or its officers, which would violate Article 14 of the Constitution.
9. The aforesaid is coupled with the circumstance that it is not that in every case whenever a person is daily wager or a temporary employee of the Government, he would not be eligible or entitled Page 6 of 22 Downloaded on : Tue Feb 23 23:52:34 IST 2021 C/SCA/5677/2020 ORDER for pension. On the contrary as per the policy of the Government, even if a person is an adhoc/temporary employee, after completion of requisite length of service, he is to be treated as eligible for the scheme of pension and once he is treated as eligible for the scheme of pension, and his contribution are being deducted from his salary, he would be eligible for the pension upon completion of the requisite length of service. Therefore, there is no absolute bar operating upon the entitlement of the pension by the employees of the then Gram Panchayat, who are treated as for all purposes covered by the scheme of pension for the contribution from their salary and same position continued until they reached to the age of superannuation or until the end of their service.
10. The learned single Judge additionally has relied upon the Government Resolution which interalia provides for pensionery benefits of the employees of the then Gram Panchayat, which has been converted into municipality and they are absorbed in the municipality.
11. In view of the aforesaid, we find that the ultimate conclusion recorded by the learned single Judge of treating the concerned employees as eligible for pension appears to be correct and consequently the direction issued for disbursement of the pension/family pension does not deserve to be interfered with."
13.1 This Court in case of Arjanbhai Panchabhai Bambhania v. Una Nagar Palika [Supra] {Coram :
Anant S. Dave, J.} also sought to rely upon the said judgment to conclude this wise "
"6.1. Thus, the subject matter and issues involved in present group of writ petitions are almost similar and identical to the subject matter and issues of the above Letters Patent Appeals, where directions came to be issued to pay Page 7 of 22 Downloaded on : Tue Feb 23 23:52:34 IST 2021 C/SCA/5677/2020 ORDER pensionery benefits and other benefits within eight weeks from the date of receipt of the order. In view of the above, the contentions raised by the learned counsels for the respondent Municipality and the State Government that the appointments of the petitioners were not approved or even the set up of the establishment was not sanctioned by the Competent Authority are irrelevant, when the common award passed by the Industrial court in various References ordering reinstatement, full back wages and granting permanency to the workmen attained finality. No administrative instructions or resolution can override the effect of the award passed by the competent court of law and, having received the benefits of the common award passed by the Industrial Court, and the petitioners attained the age of superannuation after conferment of benefits of permanency, they cannot be deprived of the retiral dues including pension/family pension on account of CPF scheme, for which the option was not exercised. Besides, the record produced by the petitioners would reveal that for all purposes, the respondent Municipality had accepted contribution of GPF and the accounts were opened accordingly and the amounts were also deposited in the accounts. Having done so, the respondent Municipality cannot retrieve the situation. Plea of financial burden cannot come in the away of this Court ordering the respondents to release and disburse the pension due and payable to the petitioners."
14. Considering the issues raised before this Court in all the petitions, it can be empathetically stated that the issues are no longer res integra and the contentions raised by the Municipality as well as the State of non entitlement of the petitioners on the aspect of set up establishment not being sanctioned by the competent authority also requires no sustainence. Admittedly, the award passed by the Labour Court which was competent under the law to pass such award and the Page 8 of 22 Downloaded on : Tue Feb 23 23:52:34 IST 2021 C/SCA/5677/2020 ORDER petitioners continued to serve on the posts till they attained the age of superannuation or died during service on the said post. Each of them had GPF account and their contribution from salary had already been deducted after opening the account. The only ground possibly raised is of additional and extensive financial burden which hardly relevant. Issue being squarely answered by both the decisions of this Court, the present group of writ petitions deserve to be allowed."
In wake of the observations and findings discussed hereinabove, the case of petitioners deserve to be allowed.
Resultantly, these writ petitions are allowed. Respondents shall arrange for payment of pension and other retiral benefits to the petitioner of Special Civil Application No. 4757/2012, as expeditiously as possible, preferably within four weeks of the date of receipt of this order. Arrears of pay; if any, shall also be worked out and paid to the petitioner forthwith. Whereas, in case of Family pension to the petitioners of Special Civil Application Nos. 30402 of 2007 and 6137 of 2012, the respondents shall work out service details and prepare the pension papers of the concerned deceased employees on the basis of last pay drawn by the deceased employee in accordance with law. Needless to state that such payment shall be released by the respondent authorities as expeditiously as possible, preferably within four months from the date of this judgment. Rule nisi made absolute in each petition with no order as to costs."
6. Against the aforesaid common order, Letters Patent Appeal No. 1067 of 2015 and allied matters came to be preferred. The said group of letters patent appeals came to be disposed of by the Division Bench vide common order dated 06.10.2015. Relevant paragraphs of the said common order reads thus:
"10. In view of the aforesaid fact situation, as such, the present Letters Patent Appeals as being covered by the above referred earlier decisions of this Court which has been ultimately not interfered with by the Apex Court and accepted by the appellant municipality at the later stage, it may not be required to be entertained.Page 9 of 22 Downloaded on : Tue Feb 23 23:52:34 IST 2021 C/SCA/5677/2020 ORDER
11. However, Mr. Hasurkar, learned counsel appearing for the appellant made twofold submissions and he further contended that the said aspects were not brought to the notice of the Court at the time when earlier Letters Patent Appeals were decided and therefore, this Court may hold the earlier decision as per incuriam and a different view may be taken than was taken in the above referred Letters Patent Appeals. The first submission was that in the earlier decision of this Court, the employees concerned were appointed by the then Gram Panchayat which is subsequently converted into appellant municipality and therefore, the present employees in respect of whom the petitions were filed before the learned Single Judge cannot be said to be on the same footing since all the original petitioners herein were appointed by the municipality itself and not by the then Gram Panchayat. In furtherance to his submission, the learned counsel submitted that in panchayat service pension would be available to the employees of the panchayat whereas such would be unavailable to the employees of the municipality. The second contention raised was that merely because GPF contribution is made and the amount is deposited in GPF, it cannot be said that the employees concerned would be entitled to pension unless it is expressly shown that the employees concerned are covered by a particular rule or resolution of the Government which makes the employees concerned as entitled for pension. In his submission, in absence thereof, the pension would not be available nor the municipality could be directed to pay pension either directly or through the Government.
12. The first contention raised for making distinction to the original appointment of the employees concerned in our view would be inconsequential for the simple reason that had the original petitioners treated as employees of municipality for the purpose of CPF Scheme, the matter might stand on different footing and different consideration, but once the employees concerned were treated as member of GPF and the contribution for GPF was deducted from time to time, whether they were appointed by the then Gram Panchayat or municipality would not make any difference for their status as the member of the GPF. It is not the case of the appellant municipality that by mistake they were admitted as member of GPF nor it is the case of the municipality that by misrepresentation or fraud the respective employees had Page 10 of 22 Downloaded on : Tue Feb 23 23:52:34 IST 2021 C/SCA/5677/2020 ORDER become the member of GPF. Under these circumstances, we find that the distinction as sought to be canvassed would be inconsequential for entitlement of the pension in capacity as the member of GPF by the employee concerned.
13. The second contention raised that unless expressly demonstrated before the Court for entitlement of the pension as per rules or as per Government Resolution, such amount of pension would be unavailable since the municipality in any case had to deposit the amount with the Government treasury as per section 57A of the Gujarat Municipalities Act, in our view also cannot be countenanced for two reasons, one is that it is not a matter of depositing the amount in the Government treasury as sought to be canvassed, but is a matter of depositing the amount in GPF fund which is a separate fund and being governed by separate mechanism, viz., Bombay General Provident Fund Rules. Secondly, once the municipality has treated the employees concerned as member of GPF and has deposited his GPF contribution with the GPF, it would not lie in the mouth of the municipality to contend that since the municipality had to deposit the amount of contribution in Government treasury, it should not be treated as contribution of GPF entitling the employee concerned for pension.
14. In view of the above, we do not find that a different view deserves to be taken than was taken by this Court in respect of the employees of the very municipality who were similarly situated and for whom this Court has found that the pension was available and the said order is not interfered with by the Apex Court in the above referred SLPs.
15. In view of the above, all appeals are meritless and therefore dismissed. Considering the facts and circumstances, no order as to costs.
16. Mr.Hasurkar, learned counsel for the municipality, after pronouncement of the order, prays that the operation of the order be stayed for some time so as to enable his client to approach before the higher forum.
17. Considering the facts and circumstances and more particularly the aspect that the issues are already covered by Page 11 of 22 Downloaded on : Tue Feb 23 23:52:34 IST 2021 C/SCA/5677/2020 ORDER the earlier decision of this Court, which has not been interfered with by the Apex Court in the above referred Special Leave Petitions, such request is declined."
7. The case on hand is also covered by the judgment of the Hon'ble Supreme Court in the case of Una Nagar Palika vs. Kaliben Balubhai Makwana reported in JT 2018(9) SC 336. While holding that the petitioners are entitled for the pensionary benefits, the Apex Court held as under:
"23. The Division Bench was of the view and, in our view, rightly that the distinction sought to be made between the two groups of employees, one coming from the Panchayat and then becoming the Municipal employees and the other directly becoming the Municipal employees was held to be of no significance because the appellant made the respondents members of the GPF contributions and went on to deduct regular contribution from their salary till the date of their retirement .
24. In our view, the case at hand is covered by the earlier decision rendered in the case of Chief Officer vs. Mohamed Irshad Baloch and Others (supra) which stands upheld by this Court by order dated 16.09.2013. We are also of the view that the aforementioned distinction pointed out by the appellant for coming out of the clutches of the decision of Chief Officer vs. Mohamed Irshad Husenbhai Balock and Others (supra) was also rightly found untenable by the High Court by assigning the proper reasons.
25. Keeping in view the aforementioned four undisputed facts arising in the case coupled with the decision rendered in the case of Chief Officer vs. Mohamed Irshad Husenbhai Balock and Others (supra), which has attained finality, and was then given effect to in relation to concerned Municipal Employees holding them eligible and entitled to claim the pension and the pensionery benefits, we find no good ground to take any other view than the one taken by the writ court and the Division bench in the impugned order.
26. Learned counsel for the appellant (Municipality), however, placed reliance on one State Government Circular dated 28.11.1994 (Annexure P1) and contended that in the Page 12 of 22 Downloaded on : Tue Feb 23 23:52:34 IST 2021 C/SCA/5677/2020 ORDER light of this circular, the respondents are neither eligible and nor entitled to claim the benefit of pension. We find no merit in this submission.
27. Firstly, we find that it was not filed before the High Court (writ Court / Division bench); secondly, the writ court and the Division Bench did not refer it to; Thirdly, in any event, it is of no significance to decide the present controversy.
28. Its perusal shows that it applies to the cases of panchayat employees who later became the Municipal employees.
29. In the light of the foregoing discussions, we find no merit in these appeals. The appeals thus fail and are accordingly dismissed.
30. The appellant (Municipality) is directed to finalize the pension cases of the respondents herein and release the amount of pension after proper verification within four months from the date of this order."
8. It is pointed out by Mrs. Krishna Rawal, learned advocate for the petitioner, that similar issue has been extensively dealt with by this court in a decision rendered in Special Civil Application No.17034 of 2017 dated 27.12.2018, which fact has not been disputed by learned advocate Mr. Tulshi Savani appearing for the respondent Municipality. The relevant paragraphs of the said decision reads thus:
"4. Learned advocate for the petitioner relied on decision of the Division Bench of this Court in Dahyabhai Vajesing Aanjna Patel deceased through Heirs v. State of Gujarat being Letters Patent Appeal No.1099 of 2016 decided on 27th January, 2017. In that case also, petitioner - appellant was employee of the converted Nagar Panchayat and became employee of the Municipality who prayed to declare that he was entitled to pensionary benefits from the date of assuming services in the Panchayat.
4.1 The Division Bench observed thus;
"8. In view of reliance placed on the judgment referred to above we have gone through the judgments relied on Page 13 of 22 Downloaded on : Tue Feb 23 23:52:34 IST 2021 C/SCA/5677/2020 ORDER 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 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 Page 14 of 22 Downloaded on : Tue Feb 23 23:52:34 IST 2021 C/SCA/5677/2020 ORDER 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.
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 Page 15 of 22 Downloaded on : Tue Feb 23 23:52:34 IST 2021 C/SCA/5677/2020 ORDER learned Single Judge. Accordingly this Letters Patent Appeal is dismissed. No order as to cost."
4.2 Though the petitioner has raised various submissions in support of his prayers and affidavit in reply is also filed by the respondents with set of contentions, it could not be disputed by the respondents that the issue is now covered by the decision of Apex Court in Una Nagarpalika v. Kaliben Balubhai Makwana being Civil Appeal No.5529 of 2016 decided on 20th September, 2018. The Division Bench of this Court in State of Gujarat v. Chandubhai Chhotabhai Patel [2018 (2) GLH 454] has also dealt with the same issue.
5. In Kaliben Balubhai Makwana (supra), the group of Civil Appeal Nos.5529 of 2016 and others dealt with by the Supreme Court, arose from judgment and order dated 06th October, 2015 passed by the Division Bench of this Court in Letters Patent Appeal No.1122 of 2015, the appellant Municipality had declined to grant pensionary benefits to the employees who are the employees of erstwhile Panchayat converted into Nagar Palika. The Apex Court considered the decision of Chief Officer v. Mohamad Irshad Husenbhai Baloch [2011 (1) GCD 569 (Guj) (D.B.) to dismiss the batch of appeals before it.
5.1 The appellant Una Municipality had contended before the Apex Court that there was a distinction between the employees who were originally working with the Panchayat and later on, upon conversion of Panchayat into the Municipality, had became the employees of the Municipality by virtue of its merger, and the employees, who are directly appointed by the Municipality.
5.1.1 The Apex Court held as under:
"The Division Bench was of the view and, in our view, rightly that the distinction sought to be made between the two groups of employees, namely, one coming from the panchayat and then becoming the Municipal employees and the other directly becoming the Municipal employees was held to be of no significance because the appellant made the respondents members Page 16 of 22 Downloaded on : Tue Feb 23 23:52:34 IST 2021 C/SCA/5677/2020 ORDER of the GPF contributions and went on to deduct regular contribution from their salary till the date of their retirement." (Para 23) "In our view, the case at hand is covered by the earlier decision rendered in the case of Chief Officer v. Mohamed Irshad Husenbhai Baloch and others (supra) which stands upheld by this Court by order dated 16.09.2013. We are also of the view that the aforementioned distinction pointed out by the appellant for coming out of the clutches of the decision of Chief Officer v. Mohamed Irshad Husenbhai Baloch and others (supra) was also rightly found untenable by the High Court by assigning the proper reasons."
(Para 24) "Keeping in view the aforementioned four undisputed facts arising in the case coupled with the decision rendered in the case of Chief Officer v. Mohamed Irshad Husenbhai Baloch and others (supra), which has attained finality, and was then given effect to in relation to concerned Municipal employees holding them eligible and entitled to claim the pension and the pensionary benefits, we find no good ground to take any other view than the one taken by the writ court and the Division Bench in the impugned order." (Para
25) 5.2 In Chandubhai Chhotabhai Patel (supra), the Division Bench was dealing with the set of appeals preferred by the State and the Panchayat authorities. The stand of the appellants were that since the employees concerned were part of the nonconverted Panchayat and their appointments were in accordance with the provisions of the Gujarat Panchayats Act, 1961, they could not be extended pensionary dues. The Division Bench took into account the law laid down by the Supreme Court in State of Gujarat v. Ramanlal Keshavlal Soni [AIR 1984 SC 161] as well as in Harijan Paniben Dudabhai v. State of Gujarat being Civil Appeal No.441 of 2016 arising out of SLP (C) No.2324 of 2010 to conclude as under.
"11. A conjoint reading of the provisions of the Bombay Village Panchayat Act and the Gujarat Panchayat Act bring out the following scenario:
(A) Prior to 1/4/1963 the Gram Panchayat/Village Panchayat as per Section 9 of the Bombay Village Page 17 of 22 Downloaded on : Tue Feb 23 23:52:34 IST 2021 C/SCA/5677/2020 ORDER Panchayats Act, 1958 was a Body Corporate by the name of "the Village Panchayat of....." having a perpetual succession and a common seal.
(B) The Sarpanch had the power vested in him to take actions in implementation of the Panchayat's duties through Resolutions.
(C) Section 61 of the Bombay Village Panchayats Act, 1958 provided that the Panchayat may appoint such servants as may be necessary for the proper discharge of its duties under this Act and pay salaries from the Village Fund.
(D) Till the promulgation of the Gujarat Panchayats Act, 1961 w.e.f 1.04.1963 therefore the Village Panchayat was competent to appoint its servants/officers and act through Resolutions. The appointment of the Respondent made under such provisions was therefore valid and in accordance with the prevalent law in force, prior to the coming into force the provisions of Section 203 of the Gujarat Panchayats Act,1961 and the Rules thereunder.
Therefore it was not a case where the prior sanction of the Development Commissioner or the State was inevitably a sinequa non. No such provision existed. That the Panchayat in discharge of its duties under Section 45 of the Bombay Act, through its Resolution of the Sarpanch appointed the Respondent herein. That such appointment was on a sanctioned post was not a germane consideration as it was so presumed to be in accordance with law and therefore the appointment could not have been termed to be irregular or illegal.
(E) In the case of Harijan Paniben (supra) also, considering the question of appointment of servants prior to the 1961 Act which came into force on 1/4/1963, there was no question of a distinction being drawn on the appointment being on a sanctioned post or not, and therefore the Division Bench Judgement in the case of Dahyabhai (Supra) would, in our opinion, made a distinction and dismissed the Petition of the employee on the ground that the appointment was not on a sanctioned Page 18 of 22 Downloaded on : Tue Feb 23 23:52:34 IST 2021 C/SCA/5677/2020 ORDER post, would not be in consonance with the law laid down in the case of Harijan Paniben (supra) and the judgement of the Constitution Bench in R.K.Soni (supra). It categorically held that all such employees carried a common birth mark and therefore to hold that the appointment was not on a sanctioned post or that it was irregular or that the Panchayat employee belonged to a nonconverted gram panchayat could not have been held to be against the respondent as that would lead to a microscopic discrimination which was set aside by the Judgement of the Constitution Bench in the case of R.K.Soni (supra).
(F) Referring to the decision in the case of G.L.Shukla (supra) reaffirmed in R K Soni (supra), the inevitable conclusion that is culled out is that the State is the master. Panchayat Service is a distinct and separate service set up for serving the Panchayat Organization of the State and it is as much a civil service of the State as the State Service. The State can have many services such as State Service, Police Service, Engineering Service etc. and Panchayat Service is one of them. In the Panchayat Service, as in the State Service, the State is the master and every officer or servant employed in the Panchayat Service is the servant of the State and not of the Panchayat under which he may be serving for the time being. The Panchayat Service is one single service with the State as the master.
12. Accordingly, we hold that the objections of the State and the Panchayat Authorities in the appeals on their behalf of denying the pensionary benefits to the Respondent amount to setting at naught an established and a settled principle of law as decided in the case of R K Soni (supra). The Respondent who served the Gram Panchayat is entitled to be granted pensionary benefits like pension and gratuity and other benefits that go hand in hand with the terminal benefits available to any other employee of the State who so retires. The appellants are, therefore, directed to pay the pensionary benefits to the employee within a period of eight weeks from today."
Page 19 of 22 Downloaded on : Tue Feb 23 23:52:34 IST 2021 C/SCA/5677/2020 ORDER6. The employees, as the petitioner is, who became the employees of the Municipality having been originally appointed in the erstwhile Gram Panchayat or Nagarpalika, are entitled to be considered their services so as to include the services rendered under the Panchayat. They are accordingly entitled for pension. However, question cropped up as to which authority, whether the state government or municipality would be liable to pay the pension and other retirement benefits. This controversy was set to rest by the Division Bench of this court in Mariyaben vs. State of Gujarat being Misc. Civil Application No. 425 of 2018 in Special Civil Application No. 12181 of 2015 wherein it was recorded that liability to pay the pension is upon the State.
7. In the aforesaid view, the present petition deserves to be allowed. The petitioner is required to be treated as eligible for pension and the higher pay grade on the basis of length of his services may also be paid to him to calculate and revise the pension accordingly. The respondent state and its authorities are directed to immediately process the case of the petitioner for pension and after completing the formalities sanction and release the amount of pension within three months from the date of receipt of the writ of this order and shall further pay other retirement benefits as admissible to the petitioner as directed above after giving effect to the 6th Pay Commission recommendation as may be admissible alongwith accrued arrears."
9. Considering the facts of the case and the principle laid down in the aforesaid decisions, this court is of the opinion that the case of the petitioner deserves consideration.
10. In the result, the petition is allowed. The respondents are directed to treat the petitioner as being eligible for the grant of pension and to grant him pension and other retiral benefits, in accordance with the law laid down by this Court. While fixing the amount of pension, the higher payscales granted to the petitioner during the period of service shall be taken into consideration. The entire process of obtaining necessary sanctions and other formalities for the grant of pension and for releasing the first monthly pension and other retiral dues shall be completed within a period of THREE MONTHS from the date of receipt of writ of this order. The respondent authorities are also directed to extend the benefits of the Sixth Pay Commission, as may be admissible to the petitioner, along with accrued arrears.
Page 20 of 22 Downloaded on : Tue Feb 23 23:52:34 IST 2021 C/SCA/5677/2020 ORDERIf the amount of arrears as aforesaid is not paid within the aforesaid period, then it shall carry interest at the rate of 7% from the date of filing of the petition till its realization. The petition stands disposed of accordingly. Rule is made absolute to the above extent with no order as to costs.
4. Mr.Savani learned advocate for the respondent no.2-Nagarpalika would contend that in view of the present petitioners being CPF beneficiaries, all employees post conversion are not entitled to the benefits of pension. In case of Una Nagarpalika v. Kaliben Dalubhai Makwana, the Supreme Court in Civil Appeal No.5529 of 2016 negated the arguments of the Nagarpalika confirming the view of the Division Bench of this Court holding that such an argument has no significance. This Court in Special Civil Application No.409 of 2017 in case of State of Gujarat v. Chandubhai Chhotabhai Patel, has extensively considered the issue on hand and held that irrespective of the division of Panchayat and/or bifurcation or allocation, Panchayat employees are in civil service. Hence, this submission of Mr.Savani does not hold good.
5. Considering the facts of the case and the principle laid down in the aforesaid decisions, this court is of the opinion that the cases of the petitioners deserve consideration.
6. In the result, the petitions are allowed. The respondents are directed to treat the petitioners as being eligible for the grant of pension and to grant them pension and other retiral benefits, in accordance with the law laid down by this Court. While fixing the amount of pension, the higher payscales granted to the petitioners during the period of service shall be taken into consideration. The entire process of obtaining necessary sanctions and other formalities for the grant of Page 21 of 22 Downloaded on : Tue Feb 23 23:52:34 IST 2021 C/SCA/5677/2020 ORDER pension and for releasing the first monthly pension and other retiral dues shall be completed within a period of THREE MONTHS from the date of receipt of writ of this order. The respondent authorities are also directed to extend the benefits of the Sixth Pay Commission, as may be admissible to the petitioners, along with accrued arrears. If the amount of arrears as aforesaid is not paid within the aforesaid period, then it shall carry interest at the rate of 7% from the date of filing of the petition till its realization. The petitions stand disposed of accordingly. Rule is made absolute to the above extent with no order as to costs.
7. In view of disposal of the main petition, Civil Application No.1 in Special Civil Application No.8487 of 2020 is allowed.
(BIREN VAISHNAV, J) ANKIT SHAH / BIMAL Page 22 of 22 Downloaded on : Tue Feb 23 23:52:34 IST 2021