Gujarat High Court
Dabhi Hasmukhlal Bhogilal vs State Of Gujarat on 3 April, 2018
Author: K.M.Thaker
Bench: K.M.Thaker
C/SCA/12970/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 12970 of 2015
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DABHI HASMUKHLAL BHOGILAL
Versus
STATE OF GUJARAT
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Appearance:
MR HASIT H JOSHI(2480) for the PETITIONER(s) No. 1
MR. D.M.DEVNANI, AGP for the RESPONDENT(s) No. 1
MRS KRISHNA G RAWAL(1315) for the RESPONDENT(s) No. 4
NOTICE SERVED BY DS(5) for the RESPONDENT(s) No. 1,2,3
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CORAM: HONOURABLE MR.JUSTICE K.M.THAKER
Date : 03/04/2018
ORAL ORDER
1. Heard Mr.Joshi, learned advocate for petitioner, Mr. Devnani, learned AGP for respondent nos. 1 to 3 and Ms. Rawal, learned advocate for respondent no.4.
2. In present petition, the petitioner has prayed, inter alia, that:
"8(a) This Hon'ble Court may be pleased to issue any appropriate writ, order or direction, directing the respondent authorities to forthwith grant the retirement dues such as Pension, Gratuity, GPF etc as per the 6th Pay Revision and last salary drawn by the petitioner from the date of his retirement."
3. To justify the request, the petitioner has Page 1 of 12 C/SCA/12970/2015 ORDER narrated below mentioned facts.
"1. That the present petitioner was appointed as an employee in Dhandhuka Nagar Panchayat, District Ahmedabad for the post of Draftsmen cum Clerk vide letter dated 17.9.1976. A true copy of the appointment letter dated 17.9.76 is annexed hereto and marked as AnnexureA to the present petition.
2. The petitioner further states that during his tenure in service he was getting promoted and thereafter in the year 1994 a Notification came to be published by the Urban Development and Urban Housing Department wherein Dhandhuka Nagar Panchayat was converted into Dhandhuka Nagarpalika and subsequently the allocated employees of the Nagar Palika were entitled for pensionary and other benefits from the Resolution dated 1122009. A copy of the said Notification in the year 1994 as well as the Resolution dated 1122009 is annexed hereto and marked as AnnexureB Colly to the present petition.
3. The petitioner further states that as per the provision of Rule 10 of the Gujarat Civil Services (Pension) Rules, 2002 the petitioner came to be retired from his service w.e.f. 3092014. A representation came to be made by the Chief Officer vide letter dated 299 2014 of Dhandhuka Nagarpalika, wherein the petitioner came to be notified about his retirement from service. A copy of the said notice dated 2992014 is annexed hereto and marked as AnnexureC to the present petition.
4. That thereafter on number of occasions the petitioner made various representations to the authorities vide letter dated 1102014 and 2952015 along with the Last pay certificate to consider his pension in accordance with the sixth pay drawn by the petitioner and other retirement benefits out of which it has been more than 10 months that the petitioner is made to run from pillar to post and the respondents till date have not granted any pension or benefit in favour of the petitioner. A copy of the representations made by the petitioner dated 1102014 and 2952015 along with the Last Pay Certificate is annexed hereto and marked as AnnexureD Colly to the present petition."
4. Broadly stated the facts are not in dispute.
After rendering service for more than 35 years, in different cadre/ category with respondent no.4 Nagarpalika, the petitioner retired from service Page 2 of 12 C/SCA/12970/2015 ORDER on superannuation on 30.9.2014.
5. It is not in dispute that retiral benefits to which the petitioner would be eligible are already paid to the petitioner i.e. the amount payable towards PF, Gratuity etc., are already paid to the petitioner.
6. The dispute has arisen only on account of alleged nonpayment of benefit of recommendation by 6th Pay Commission.
7. According to the petitioner, the respondents have not given effect to the revision in salary pursuant to implementation of the recommendation of 6th Pay Commission.
8. Learned advocate for respondent no.4 Nagarpalika does not dispute that the Nagarpalika has extended the said benefits (i.e. implementation of the recommendation of 6th Pay Commission) to all the employees of the Nagarpalika.
Page 3 of 12 C/SCA/12970/2015 ORDER9. According to learned advocate for Nagarpalika, since the benefits towards pension, gratuity and Provident Fund will be payable by Respondent nos. 1 to 3, the Nagarpalika has already forwarded the proposal to respondent no.3 as back in 2016.
10. Learned advocate for respondent no.4 has placed on record copy of the communication dated 21.10.2016 under which the respondent no.4 submitted proposal as well as recommendation in favour of present petitioner, to the respondent no.3.
11. In this background, the petitioner claims that respondents are bound to pay difference in respect of pension amount, gratuity and Provident Fund, by giving effect to the pay revision on the basis of recommendation of the 6th Pay Commission.
12. The respondent no.1 have failed to offer any explanation or justification on account of which Page 4 of 12 C/SCA/12970/2015 ORDER the benefit of pay revision and its actual effect in respect of pension amount, gratuity and Provident Fund are not granted to the petitioner.
13. Mr.Joshi, learned advocate for the petitioner submitted that this Court had occasion to consider similar claim and grievance (by another employee of same panchayat) in SCA No.2864/2012.
14. This Court disposed of the said petition i.e. SCA No.2864/2012 vide order dated 17.6.2016 wherein the Court observed and directed that:
"1. By this writ application under Article 226 of the Constitution of India, the petitioners, retired employees of the Dhandhuka Nagarpalika, have prayed for the following reliefs;
"(A) Directing the Respondent No.3, Collector, to forward the proposal dt. 7.10.2011 of the Respondent Nagarpalika within two weeks to the Respondent No.2, Director of Municipalities, who may be directed to approve the same within a further period of two weeks, with similar terms and conditions as its done in the case of employees of the Barwala Nagarpalika vide order dt.19.10.2011.
(B) Directing the Respondent Nagarpalika to fix and pay the retiral benefits to the petitioners on the basis of last pay drawn as if there was no orders of recovery against the petitioners. (C) Directing the Respondent Nagarpalika to refund the amounts already received from the petitioners, with 10% interest.
(D) During the pendency and final disposal of this petition, the Respondent Nagarpalika may be directed to refund the amounts already recovered from the petitioners.
(E) To grant such other and further relief as may Page 5 of 12 C/SCA/12970/2015 ORDER be deemed fit and proper."
2. The controversy raised in this writ application is in a very narrow compass. The Dhandhuka Nagarpalika thought fit to give benefits to the petitioners herein so far as the 6th Pay Commission is concerned. Accordingly, in all, an amount of Rs.10,00,000/ and odd was disbursed in favour of the twelve petitioners. At a later stage, the Local Fund Office raised an objection that the monetary benefits could not have been given by the Nagarpalika without the prior sanction of the Director of Municipalities. Accordingly, the Nagarpalika had to effect recovery of the amount which was already paid. By Chalan, an amount of Rs.10,26,393/ was deposited by the twelve petitioners herein in the treasury.
3. Hence, this petition.
4. On behalf of the respondent No.5, an affidavitin reply has been filed, duly affirmed by the Assistant Examiner of the Local Fund Accounts, inter alia, stating as under;
"5. As regards the contents of paragraph no. 9 of this petition, I say and submit that the facts stated by the petitioners in this para are not true and correct because as per resolution dated 03.09.2010 of the Uraban Development Department of the Government, the powers for giving benefit of sixth pay commission in the cases of Municipalities have been vested to the Director of Municipalities that means for giving benefit of the pay commission to the employees of the Municipalities, the Director of Municipalities is the authorized officer. I say and submit that as per the resolutions dated 12.02.2009 (AnnexureR I) and 27.02.2009 (Annexure R II) issued by the Finance Department of the Gujarat Government, the benefit of revised pay scales under the sixth pay commission was given to the Employees as well as pensioners of the State Government and at that time, vide Notification dated 20.03.2009 (Annexure R III) and circular dated 16.04.2009 (AnnexureR IV) and 17.06.2009 (AnnexureR V) issued by the Finance Department of the State Government, it was decided that the pay fixation and its verification was to be made online through IFMS. In this connection the rights for doing such online fixation (Long ID and Password) had been given to the concerned District Treasury Officer by the Office of the Directorate of Accounts and Treasuries, Gandhinagar and thereby, the concerned offices to whom the State Government have given a benefit of sixth pay commission, have to get necessary User ID and Password for making fixation online through concerned treasury officer and the offices, to whom, such User ID and Password have been allotted, can Page 6 of 12 C/SCA/12970/2015 ORDER proceed further for online pay fixation and verification of their employees. But, in this connection, the concerned District Treasury Officer had not alloted any Login ID or Password to the Dhandhuka Municipality for giving the pay scale to their employees under the recommendation of the sixth pay commission. Though by unauthorizedly using the Login ID or Password of the Taluka Panchayat, Dhandhuka, such cases had been sent to the office of Pay Verification Unit, Gandhinagar and Office of the District Assistant Examiner, Ahmedabad for online pay verification and because of that, the employees of the Dhandhuka Municipality were mentioned online as the employees of Taluka Panchayat and therefore, mistakenly these aforesaid both the verification authority had made verification of such employees/petitioners of Dhandhuka Municipality. Hence, it had come to the knowledge that such employees were not of the Panchayat but actually they were the employees were not of the Panchayat but actually they were the employees of the Dhandhuka Municipality and the Director of Municipalities has not granted the benefit of pay scales under the sixth pay commission to the employees of the Dhandhuka Municipality. Therefore, the office of answering respondent is not responsible for the act, which is challenged in the said petition.
6. As regards the contents of paragraph no. 10 of this petition, I say and submit that the facts stated by the petitioners in this para are not true and correct. I say and submit that the facts was came to the knowledge that the Director of Municipality has not granted the benefit of the pay scales under the Six Pay Commission, at that time being a first stage, the procedure regarding pension revision was to be done by this office under ROP - 2006 as regards the employees of the Dhandhuka Municipality, who had retired after 01.01.2006, whose pension had been fixed under ROP 98 through our office and whose pension was being paid through our office and whose pension was being paid through the Treasury Office and as a result therefore, the said petitioners werenot entitled to get benefit of Sixth Pay Commission, through the benefits was paid to them. Hence as per letter No.L/A.M.D./8772 to 8774 dated 30.11.2011 (Annexure R VI) after canceling the verification under ROP 2009 of 17 pensioners, the Pension Payment Officer, Pension Payment Office, Ahmedabad was directed to pay pension to such pensioners as per Fifth Pay Commission till the sanction order of the Director of Municipality under ROP09 and informed to recover the arrears amount of difference as regards Page 7 of 12 C/SCA/12970/2015 ORDER the pension paid under the revision of ROP09 as well as gratuity, VCP etc and its copy was sent to the Collector, Municipality Branch, Ahmedabad and Chief Officer, Dhandhuka Municipality for giving Clarification that the government has not passed any order for granting ROP09 though why should the cases of pension revision Had been placed online and directed them to make recovery of the retiral benefits, if paid under ROP09 to the retired employees. In connection with the letter dated 30.11.2011 of this office, the pension payment office had initiated procedure for recovering Rs. 14,99,419/. Therefore, the office of answering respondent is not responsible for the Act, which is challenged in the said petition. I further say and submit that as per this office letter dated 30.11.2011, the Chief Officer, Dhandhuka Municipality had recovered the amount of arrears of Rs. 10,56,027/ on 03.12.2011 through Challan on the Account head of Government and he had sent the original service book to this office vide letter dated 05.11.2011 (AnnexureR VII) for making cancellation of the earlier verification. Hence looking tot he procedure mentioned in the letter dated 05.11.2011 of the Chief Officer Dhandhuka Municipality, prima facie its appear that the benefit under sixth pay Commission for the employees/pensioner of the said Municipality had not been sanctioned by the competent authority. Therefore, it appears that the procedure made by this office is as per rules and regulations, further more, vide order No. NpaNi/Mahekam 1/Chh.P.Pan/Dhandhuka/Vashi/646/12 dated 04.09.2012 (Annexure - R VIII) the Director of the Municipalities has passed an order for granting benefit of Sixth Pay Commission to the employees of Dhandhuka Municipality as per pay scale of the State Government Employees and as per condition no. 1 of it, it is directed to make Notional Pay Fixation from 01.01.2006 to 31.12.2009 and as per condition no. 16 of it, it is stated that if the pay scale under the Sixth Pay Commission have been paid without the permission of the competent officer, then the Accountant and Chief Officer solely responsible for recovery such arrears amount. Therefore, the office of answering respondent is not responsible for the act, which is challenged in the said petition. Therefore, even on this ground, the petition is deserves to be dismissed."
5. On behalf of the Nagarpalika also, an affidavitin reply has been filed, duly affirmed by the Chief Officer, inter alia, stating as under;
Page 8 of 12 C/SCA/12970/2015 ORDER2. By circular dated 12.2.2009 the Government has given the benefit of sixth pay commission to the employees of the State Government and the Panchayat; the pay scale of the petitioners those being the allocated employees of the erstwhile Panchayat; were increased as per condition no. 13 and 14 of the said circular (Annexure D).
3. The State Government vide circular dated 3.9.2010 has given the benefit of the Sixth Pay Commission to the employees of the Municipalities. The copy of said circular is annexed herewith and marked as Annexure R2 to this reply. As per said circular the Municipality passed the Resolution in the General Meeting and sent the Darkhast to the office of the Collector for approval to grant the benefit of sixth Pay Commission to the employees of the Municipality vide letter dated 7.10.2011. (Annexure F)
4. The Municipality has given the benefit of Pay revision w.e.f. 1.5.2010 to the employees of the Municipality. Since it was not clear whether any prior permission from the Director of Municipality was to be obtained, in case of allocated employees, the same has not been taken by the Municipality. And as per circular dated 6.1.1986 the benefits were given to the petitioners being the allocated employees. No arrears have been granted to the employees. Since the approval was not taken, the Director of Municipality gave a show cause notice to the Municipality to the effect that why the payment towards to revision of Pay as per sixth pay commission given to the employees should not be recovered. (Annexure G)
5. The Municipality has replied to the said notice vide letter dated 23.12.2011. A copy of reply is annexed herewith and marked as Annexure R3 to this reply.
6. The Local Fund offices vide Communication dated 31.12.2011 instructed the Municipality that while granting the benefit of Fifth Pay Commission to the employees of the Municipality, the sanction from the Director of Municipality was not obtained and hence the benefit of the fifth Pay commission should be withdrawn from the employees of the municipality. A copy of letter is annexed herewith and marked as Annexure R4 to this reply. The District Panchayat also has informed the Municipality to recover the salary paid as per fifth pay commission. A copy of letter dated 11.1.2012 is annexed herewith and marked as Annexure R5 to this reply.
7. It is further submitted that vide communication dated 8.12.2011 the benefit of the sixth Pay commission has also been withdrawn and the Page 9 of 12 C/SCA/12970/2015 ORDER difference of pay has been directed to be recovered from the salary of the employees. A copy of the communication dated 8.12.2011 is annexed herewith and marked as Annexure R6 to this reply. Since the Local Fund office had withdrawn the benefits of 5th as well as 6th Pay commission; the pension of the employees had stopped till clarification from the authority.
8. It is humbly submitted that the Municipality has not affected any recovery from the account of the petitioners. But the local Fund Office has recovered the amount from their respective accounts. Since the amount was not sufficient the same has been paid by the petitioners to the local fund office through Chalan. The petitioners being the allocated employees the pension is being paid by the Local Fund office in their account. The Municipality has no role to play except to prepare the pension cases and to forward the same to the Collector. Today the petitioners are being paid the pension as per 5th Pay commission. The Municipality has sent the proposal for grant of 6th Pay Commission to the employees to the collector vide communication dated 7.10.2011 (Annexure F) with a view to forward the same to the Director of Municipality."
6. The learned counsel appearing for the petitioners has invited my attention to the subsequent development which took place during the pendency of this writ application. He has placed on record, an order dated 04.09.2012 passed by the Director of Municipalities so far as granting of benefits of the 6th Pay Commission to the employees of the Dhandhuka Nagarpalika is concerned.
7. In such circumstances referred to above, the respondent No.2, Director of Municipalities, is directed to immediately look into this matter and also the order dated 04.09.2012 referred to above and issue appropriate instructions to the Nagarpalika so far as the benefits of the 6th Pa Commission is concerned. Let this exercise be completed within a period of one month from today. It appears on a plain reading of the order passed by the Director dated 04.09.2012 that the sanction was accorded so far as the 6th Pay Commission is concerned. Once an appropriate decision in this regard is taken, the order for disbursement of the amount which is already deposited, shall also be passed.
8. With the above, this writ application is disposed of. Direct service is permitted."
15. Having regard to the submission and statement Page 10 of 12 C/SCA/12970/2015 ORDER by learned advocate for respondent no.4 and also having regard to the communication dated 21.10.2016 addressed by the respondent no.4 Nagarpalika to the respondent no.3 Collector and also having regard to the fact that respondent nos. 1 to 3 failed to offer any explanation or justification for not giving effect to the revision on the basis of the recommendation of 6th Pay Commission to the petitioner (in respect of the Pensionary benefit, gratuity and Provident Fund) it appears that present petition can be disposed of at this stage with following directions:
a. The competent authority shall take up petitioner's case and consider his claim and grievance for nonpayment of difference in respect of amount payable towards Provident Fund, Gratuity and pension after giving effect to the pay revision on the basis of recommendation of 6th Pay Commission.
b. The Authority shall pass necessary and appropriate order having regard to the facts of Page 11 of 12 C/SCA/12970/2015 ORDER the case, and the amount which may become payable to the petitioner, upon such verification, shall be paid as expeditiously as possible. The aforesaid process should be completed preferably before 30.06.2018.
With aforesaid clarification and direction, the petition is disposed of.
(K.M.THAKER, J) saj Page 12 of 12