Gujarat High Court
Bhikhabhai Rudabhai Dabhi vs State Of Gujarat on 19 December, 2018
Author: N.V.Anjaria
Bench: N.V.Anjaria
C/SCA/2343/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 2343 of 2016
With
CIVIL APPLICATION NO. 1 of 2018
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BHIKHABHAI RUDABHAI DABHI
Versus
STATE OF GUJARAT
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Appearance:
MR KRISHNAN GHAVARIYA FOR MR MURALIN DEVNANI(1863) for the
PETITIONER(s) No. 1
MR KM ANTANI, AGP (99) for the RESPONDENT(s) No. 1
MR DIPAL R RAVAIYA(6532) for the RESPONDENT(s) No. 5
NOTICE SERVED BY DS(5) for the RESPONDENT(s) No. 1,2,3,4
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CORAM: HONOURABLE MR.JUSTICE N.V.ANJARIA
Date : 19/12/2018
COMMON ORAL ORDER
Heard learned advocate Mr.Krishnan Ghavariya for learned advocate Mr.Murli Devnani for the petitioner and learned Assistant Government Pleader Mr.K.M. Antani for the respondent - State and its authorities.
2. The petitioner, by filing this petition, questions the action on part of the respondent authority in not granting the petitioner the pensionary benefits.
3. The facts are that the petitioner joined with Chorwad Nagar Panchayat from 01st February, 1979 as Junior Clerk. Since the petitioner and other similarly situated employees of the Chorwad Nagar Panchayat were not extended the benefits of Page 1 of 10 C/SCA/2343/2016 ORDER permanency, they raised an industrial dispute through union. By judgment and award, Industrial Tribunal, Rajkot in Reference (I.T.) No.529 of 1984, directed to extend the benefits of permanency to the workmen before it on completion of 240 days of service. The benefit of permanency was directed to be made available from 01st October, 1988. It is the case of the petitioner that after passing of the said judgment and award by the Industrial Tribunal, the petitioner was considered as permanent employee. It appears that Chorwad Nagar Panchayat subsequently came to be converted into Chorwad Nagarpalika. In the Nagarpalika also the petitioner's status was of permanent employee as reflected in the service book of the petitioner. The General Body of the Municipality, submits the petitioner, accepted the aforesaid judgment and award dated 30th July, 1993 in the meeting convened on 30th October, 1993.
3.1 It is the case of the petitioner that though benefit of permanency was required to be extended to the petitioner with effect from 01st October, 1988, then Nagar Panchayat did not give the actual benefit. The petitioner even came to be promoted to the post of Head Clerk-cum-Accountant on the basis of the Resolution passed by the General Body of the Chorwad Municipal Borough on 16th March, 1996 and 13th March, 1999 and came to be extended the benefit of Fourth Pay Commission. However, the benefits flowing from the judgment and award were not extended and in the meantime, the petitioner attained the age of superannuation on 28th February, 2013.
Page 2 of 10 C/SCA/2343/2016 ORDER3.2 The petitioner made representation to extend the pensionary benefits. It is the grievance of the petitioner that despite he happens to be a regular employee of the Nagar Panchayat in the Chorwad Municipal Borough in the year 1994, he is deprived of the pension.
3.3 Thus, in nutshell the case of the petitioner is that the petitioner joined erstwhile Chorwad Nagar Panchayat as Junior Clerk in the year 1979. He was not extended the benefit of permanency though he worked for long under the Nagar Panchayat. Thereafter, along with other similarly situated employees, petitioner raised industrial dispute which came to be allowed as per judgment and award dated 30th July, 1993 of the Industrial Tribunal. The award was accepted by passing Resolution, still however, the benefits thereof were not extended to the petitioner for no good reason. The petitioner claims the benefits from 01st October, 1988 till 31st May, 1998. Though the petitioner was promoted to the post of Head Clerk-cum-Accountant and retired with effect from 28th February, 2013, the benefit of pension remained to be extended to him. The petitioner has worked for 34 years and claims that he is eligible for the benefits as permanent employee of the Chorwad Nagrpalika.
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 Page 3 of 10 C/SCA/2343/2016 ORDER 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 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 Page 4 of 10 C/SCA/2343/2016 ORDER 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 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 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-
Page 5 of 10 C/SCA/2343/2016 ORDERin-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.
Page 6 of 10 C/SCA/2343/2016 ORDER5.1.1 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 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 non-converted 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 Page 7 of 10 C/SCA/2343/2016 ORDER 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 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 sine-qua 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 Page 8 of 10 C/SCA/2343/2016 ORDER a distinction and dismissed the Petition of the employee on the ground that the appointment was not on a sanctioned 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 non-converted 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."
6. In view of the above position of law emerging, the petitioner is entitled to succeed for his prayers. Accordingly, the petition is allowed by directing the respondents to act through its competent authority and grant benefit of pension to Page 9 of 10 C/SCA/2343/2016 ORDER the petitioner from the date on which he became entitled to. It is further directed that arrears arising by virtue of this order shall be paid to the petitioner within eight weeks from the date of receipt of writ of this order of the Court. If the amount of arrears is not paid within the stipulated time of eight weeks, it shall carry interest at the rate of 7% from the date of filing of the petition that is 11th February, 2016.
7. Accordingly, the present petition is allowed.
ORDER IN CIVIL APPLICATION In view of order passed in the main Special Civil Application, the present Civil Application does not survive and stands disposed of accordingly.
(N.V.ANJARIA, J) Anup Page 10 of 10