Gujarat High Court
Maniben Bhikhabhai Makwana vs Sarpanch / President on 26 August, 2016
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/10116/2003 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 10116 of 2003
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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MANIBEN BHIKHABHAI MAKWANA....Petitioner(s)
Versus
SARPANCH / PRESIDENT....Respondent(s)
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Appearance:
MR UM SHASTRI, ADVOCATE for the Petitioner(s) No. 1
MR PR NANAVATI, ADVOCATE for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 26/08/2016
ORAL JUDGMENT
By this writ-application under Article 226 of the Constitution of India, the writ-applicant, a retired employee of the Barwala Gram Panchayat, Dhandhuka, District Ahmedabad, Page 1 of 17 HC-NIC Page 1 of 17 Created On Sat Aug 27 08:14:19 IST 2016 C/SCA/10116/2003 JUDGMENT has prayed for the following reliefs :
"(a) that this Hon'ble Court may be pleased to issue a writ of mandamus or any other writ, order or direction, directing the respondents to pay to the petitioner, the pension and other incidental benefits if any available to her, with interest;
(b) Pending the hearing and final disposal of the present petition, this Hon'ble Court may be pleased to direct the respondent panchayat to pay at the minimum scale of the amount of pension from the date of filing of the present petition which could be adjusted when the pension amount is finally fixed;
(c) any other relief may pleased be granted looking to the facts and circumstances of the case;
(d) cost may be awarded from the respondent;"
It appears from the materials on record that the writ- applicant was appointed in the services of the Barwala Gram Panchayat as a Water Server in the year 1982. She retired from service on 30th June 1998. She put in almost 18 years of service before she attained superannuation. It is her case that she is entitled to draw pension. On 12th December 2003, the following order was passed :
"The petitioner is a retired employee of the Barwala Gram Panchayat, Dhandhuka, District-Ahmedabad. She has retired from service on 30th June, 1998. By filing this petition, she claims the pensionary benefits. Learned advocate Mr.U.M Shastri states that similar claims made by the other employees of the Gram Panchayat have been admitted to final hearing by this Court.
On perusal of the communication dated 1st December, 1999 sent by the Gram Panchayat to the petitioner, it appears that the petitioner had entered service on 1st May, 1973 as Waterwoman and she retired from service on 30th June, 1998 on attaining the age of 60 Page 2 of 17 HC-NIC Page 2 of 17 Created On Sat Aug 27 08:14:19 IST 2016 C/SCA/10116/2003 JUDGMENT years. On her retirement, the petitioner has been paid the amount of Provident Fund deducted from her salary and the contribution to the provident fund made by the Gram Panchayat. It is also stated that the benefit of contributory provident fund has been granted pursuant to the Award of the Labour Court made on 29th November, 1984. Thus, the petitioner having received the benefit of Contributory Provident Fund, the petitioner cannot claim the pensionary benefits. However, since the other petitions are admitted, this petition requires to be admitted. Hence, Rule. To be heard with Special Civil Application No 14016 of 1994.
Learned advocate Mr.Shastri states that immediately on receipt of CPF amount, the petitioner had deposited the same with a view to receiving the pensionery benefits. It is not the case of the petitioner that she was asked to deposit the said amount. She has deposited the said amount on her own volition. She cannot claim pension as of right, although the amount of CPF had been deposited back. It is, therefore, observed that pending this petition, the petitioner shall be at liberty to withdraw the amount of CPF that she might have deposited with the Gram Panchayat."
I take notice of the fact that this writ-application was ordered to be heard with the Special Civil Application No.14016 of 1994. The Special Civil Application No.14016 of 1994 came to be rejected along with other writ-applications vide a common order dated 23rd July 2009, which reads as under :
"1. In all these petitions, the respective petitioners, who were the employees of the concerned Gram Panchayats or heirs of the employees of the concerned Gram Panchayats have prayed for the pensionary benefits submitting that they were the Government employees.
2. It appears that all these Special Civil Applications were kept pending in view of the pendency of Letters Patent Appeal No. 614 of 1998 and other cognate Letters Patent Appeals, as the identical question was there before the Devision Bench of this Court. It is reported that the Letters Patent Appeal No. 614 of 1998 and other cognate Page 3 of 17 HC-NIC Page 3 of 17 Created On Sat Aug 27 08:14:19 IST 2016 C/SCA/10116/2003 JUDGMENT Letters Patent Appeals are already now decided and disposed of by the Division Bench of this Court vide judgment and order dated 2nd July 2009.
3. It is not in dispute that the controversy raised in the respective petitions is squarely covered by the decision of the Division Bench dated 2nd July 2009, passed in the Letters Patent Appeal No. 614 of 1998 and other cognate Letters Patent Appeals against the respective petitioners.
4. In view of the above and for the reasons stated in the judgment and order passed by this Division Bench of this Court dated 2nd July 2009, passed in the Letters Patent Appeal No. 614 of 98 and other cognate Letters Patent Appeals, all these Special Civil Applications deserve to be dismissed and are accordingly dismissed.
5. Ad-interim relief, if any, stands vacated forthwith.
6. Rule is discharged in each petition. No order as to costs."
The stance of the respondents is that the writ-applicant is not entitled to any pensionary benefits because she could not be said to be a member of the Panchayat Service within the meaning of Section 203 of the Gujarat Panchayats Act.
To put it in other words, according to the respondents, her appointment was illegal as no regular recruitment was undertaken. Reliance is placed on a Division Bench decision of this Court in the case of Chorvad Gram Panchayat and others v. Ramniklal Dahrshi Shah and others, reported in 2010(1) GCD
675. I could have rejected this writ-application relying on the judgment and order passed by this Court dated 23rd July 2009 and more particularly in view of the Division Bench decision in Page 4 of 17 HC-NIC Page 4 of 17 Created On Sat Aug 27 08:14:19 IST 2016 C/SCA/10116/2003 JUDGMENT the case of Chorvad Gram Panchayat (supra). However, the decision of this Court in the case of Chorvad Gram Panchayat (supra) is now no longer a good law in view of the recent pronouncement of the Supreme Court in the case of Harijan Paniben Dudabhai v. State of Gujarat and others (Civil Appeal No.5441 of 2016, decided on 1st July 2016). The case of the writ-applicant will have to be reconsidered in light of the recent pronouncement of the Supreme Court referred to above.
I had an occasion to consider the case of Harijan Paniben Dudabhai (supra) while deciding the Special Civil Application No.7388 of 2002, decided on 5th August 2016. While disposing of the Special Civil Application No.7388 of 2002, this Court observed as under :
"18. The issue as regards the pension and other retiral benefits is concerned, will have to be reexamined by the authority concerned in light of the recent pronouncement of the Supreme Court in the case of Harijan Paniben Dudabhai Vs. State of Gujarat and Others, Civil Appeal No.5441 of 2016, decided on 01/07/2016. The Supreme Court has explained very exhaustively the position of law as regards the claim of Panchayat employee for pension and other benefits is concerned.
19. I may quote the observations made by the Supreme Court as under:-
3. In terms of Gujarat Government Gazette dated 01.07.1961, the then Okha District Municipality got converted into Okha Gram and Nagar Panchayat on and w.e.f.02.02.1962. Upon such conversion, the existing staff of municipality was allocated to Gram Panchayat and treated as part of Panchayat Service. Gujarat Panchayats Act, 1961 (hereinafter referred to as the Act) deals with Panchayat Service and various sets of Rules framed pursuant to the power conferred under the Act, deal with matters including classification Page 5 of 17 HC-NIC Page 5 of 17 Created On Sat Aug 27 08:14:19 IST 2016 C/SCA/10116/2003 JUDGMENT of Panchayat Service and conditions of service as regards Panchayat Service.
4. Section 203 of the Act is to the following effect:
203. Panchayat Service to be regulated by rules (1) For this purpose of bringing about uniform scales of pay uniform conditions of service for persons employed in the discharge of functions and duties of panchayats, there shall be constituted a Panchayat Service in connection with the affairs of panchayats. Such service shall be distinct from the State service.
(2) The Panchayat Service shall consist of such classes, cadres and posts and the initials strength of officers and servants in each such class and cadre shall be such, as the State Government may by order from time to time determine:
Provided that nothing in this sub-section shall prevent a district panchayat from altering, with the previous approval of the State Government, any class, cadre or number of posts so determined by the State Government.
(2A) (a) The cadres referred to in sub-section (2) may consist of district cadres, taluka cadres and local cadres.
(b) A servant belonging to a district cadre shall be liable to be posted, whether by promotion or transfer to any post in any gram or nagar in the same taluka.
(c) A servant belonging to a taluka cadre shall be liable to be posted, whether by promotion or transfer to any post in any gram or nagar in the same taluka.
(d) A servant belonging to a local cadre shall be liable to be posted whether by promotion or transfer to any post in the same gram or, as the case may be, nagar.Page 6 of 17
HC-NIC Page 6 of 17 Created On Sat Aug 27 08:14:19 IST 2016 C/SCA/10116/2003 JUDGMENT (2B) In addition to the posts in the cadres referred to in sub-section (2A), a panchayat may have such other posts of such classes as the State Government may, by general or special order determine. Such posts shall be called deputation posts and shall be filled in accordance with the provisions of Section 207.
(3) Subject to the provisions of this Act, the State Government may make rules regulating the mode of recruitment either by holding examinations or otherwise and conditions of service of persons appointed to the panchayat service and the powers in respect of appointments, transfers and promotions of officers and servants in the panchayats service and disciplinary action against any such officers or servants.
(4) Rules made under sub-section(3) shall in particular contain
(a) a provision entitling servants of such cadres in the Panchayat Service to promotion to such cadres in the State Service as may be prescribed.
(b) A provision specifying the clauses of posts recruitment to which shall be made through the District Panchayat Service Selection Committee and the class of posts, recruitment to which shall be made by the Gujarat Panchayat Service Selection Board, and
(c) A provision regarding the percentage of vacancies to be reserved for the members of Scheduled Castes, Scheduled Tribes and other backward classes in the Panchayat Service.
(5) Such rules may provide for inter district transfers of servants belonging to the Panchayat Service and the circumstances in which and the conditions subject to which such transfers may be made .
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C/SCA/10116/2003 JUDGMENT
(6) The promotion of a servant in a cadre in the Panchayat Service to a cadre in the State service in accordance with the rules made under clause
(a) of the sub-section (4) shall not affect-
(a) any obligation or liability incurred or default committed by such servant during the period of his service in a cadre in the Panchayat Service while acting or purporting to act in the discharge of his duties as such servant, or
(b) any investigation, disciplinary action or remedy in respect of such obligation, liability or default and any such investigation, disciplinary action or remedy may be instituted, continued or enforced in accordance with the law applicable thereto during the said period of service by such authority as the State Government may, by general or special order specify in this behalf.
5. In State of Gujarat and another v. Ramanlal Keshavlal Soni and others, (1983) 2 SCC 33, a Constitution Bench of this Court held that Panchayat Service constituted under aforesaid Section 203 of the Act is a Civil Service of the State and the members of the Service are government servants.
6. Coming to the facts of the lead matter, one Vela Keshav, deceased husband of the appellant was appointed by Okha Gram Panchayat as Safai Kamdar on 04.02.1964. After having put in 33 years of service, he died in harness on 06.02.1997. The record indicates that monetary benefits such as Rs.14525.50 towards leave encashment, Rs.26,042/- towards Group Insurance and Rs.54,221/- towards General Provident Fund were paid to the appellant as legal representative of the deceased. The appellant represented that the family of Vela Keshav was also entitled to family pension and gratuity which claim having not been accepted, the appellant moved the High Court by filing Special Civil Application No. 354 of 2004.
7. Affidavits in opposition were filed by Deputy Page 8 of 17 HC-NIC Page 8 of 17 Created On Sat Aug 27 08:14:19 IST 2016 C/SCA/10116/2003 JUDGMENT District Development Officer, District Panchayat, Jamnagar as respondent no.3 and by Sarpanch of Okha Gram Panchayat as respondent No.5. It was submitted by them that since the deceased was not recruited by the Gram Panchayat in accordance with the Statutory Rules, the appellant was not entitled to claim family pension. The matter came up before a Single Judge of the High Court who by her order dated 15.07.2004 dismissed the Special Civil Application. The submission advanced on behalf of the respondents that since the deceased was not appointed by the District Panchayat Service Selection Committee constituted under Section 2(11) of the Act, was not a member of the Panchayat Service as envisaged by Section 203 of the Act and as such the appellant was not entitled to claim any family pension or gratuity, was accepted by the Single Judge.
8. The appellant being aggrieved carried the matter further by filing Letters Patent Appeal No.1522 of 2004. At the appellate stage affidavit in reply filed by District Development Officer, District Panchayat, Jamnagar reiterated the earlier stand. An affidavit in reply on behalf of the State Government was filed by Deputy Secretary, Panchayats, Rural Housing and Rule Development Department, Gandhi Nagar which dealt with the matter in issue in following terms.
In the present case, since appellant has not undergone any selection procedure and he has obtained the employment only on the strength of passing resolution in panchayat, Okha Gram Panchayat has not made any proposal to regularize such unauthorized recruitment and appointment of petitioners husband. Therefore, he cannot be treated as an employee of local cadre of panchayat service and since he cannot be considered as a member of panchayat service, he is not entitled for any pensionary benefits from government treasury. It is the responsibility of Okha Gram Panchayat to pay pensionary benefit from its own fund as per the terms and conditions at the time of petitioners Page 9 of 17 HC-NIC Page 9 of 17 Created On Sat Aug 27 08:14:19 IST 2016 C/SCA/10116/2003 JUDGMENT husband appointment by Okha Gram Panchayat&&.
However what was the procedure which was prevalent in 1964 and how the appointment was bad or illegal, was not specified
9. The reply filed on behalf of respondent no.5 by the Administrator of Okha Municipal Borough was 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 [The Affidavit wrongly mentioned that the employee had continued till he retired. As a matter of fact, Vela Keshav had died in harness.] 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.
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 Page 10 of 17 HC-NIC Page 10 of 17 Created On Sat Aug 27 08:14:19 IST 2016 C/SCA/10116/2003 JUDGMENT 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:
I. Secretary of a Nagar Panchayat II The following posts under the Nagar or as the Case may be, Gram Panchayat, namely
1. Chief Officer (Nagar Panchayat)
2. Head Clerk
3. Senior Clerk
4. Junior Clerk
5. Vasulati Clerk Page 11 of 17 HC-NIC Page 11 of 17 Created On Sat Aug 27 08:14:19 IST 2016 C/SCA/10116/2003 JUDGMENT
6. Typist
7. Octroi clerk
8. Accountant
9. Cashier
10. Tax Inspector
11. Shop Inspector
12. Octroi Inspector
13. Overseer
14. Power House Manager
15. Driver
16. Cleaner
17. Posts required for schools run by the Panchayat
18. Posts required for dispensaries run by the Panchayat
19. Posts required for libraries run by the Panchayat
20. 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 Page 12 of 17 HC-NIC Page 12 of 17 Created On Sat Aug 27 08:14:19 IST 2016 C/SCA/10116/2003 JUDGMENT Panchayat Service.
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.
15. At this stage, Circular dated 26.02.2008 issued by Government of Gujarat, Panchayat Rural Housing and Rural Development on Page 13 of 17 HC-NIC Page 13 of 17 Created On Sat Aug 27 08:14:19 IST 2016 C/SCA/10116/2003 JUDGMENT 26.02.2008, which was placed on record by way of Additional Documents, may be adverted to. This Circular after considering cases of those who were appointed between 1.04.1963 and 5.05.1984, stated as under:
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.
16. In the totality of circumstances, we find that the appellant cannot be denied the benefits in question. We, therefore allow this appeal and set aside the judgments and orders rendered by the Single Judge and the Division Bench and allow Special Civil Application No.354 of 2004. We direct the respondents to pay to the appellant all the arrears of pensionary benefits and gratuity with simple interest at the rate of 9% per annum within two months from the date of this Judgment.
17. In appeal arising out of SLP(C) No.8896 of 2010, the appellant was appointed as a Peon on 4.4.1964 and in due course of time was promoted to the post of Sanitary Mukadam and later to the post of Octroi Clerk. He retired in the year 2001 after having put in 37 years of service and all through he was paid all the benefits including those under 4th Pay Commission as a Page 14 of 17 HC-NIC Page 14 of 17 Created On Sat Aug 27 08:14:19 IST 2016 C/SCA/10116/2003 JUDGMENT regular employee would receive. His case was dealt with on the strength of the Judgment in the lead matter by the High Court and since we have set aside the view taken by the High Court in the lead matter, this appeal also deserves to be allowed. While condoning the delay and allowing the appeal, the respondents are directed to pay the arrears of pensionary benefits and the amount of gratuity to the appellant along and gratuity with simple interest at the rate of 9% per annum within two months from the date of this Judgment.
18. In appeal arising out of SLP(C) No.9756 of 2011, the deceased husband of the present appellant was appointed as Sanitary Inspector by Okha Gram Panchayat on 14.12.1964 and the said appointment was later confirmed by Development Commissioner vide order dated 5.4.1973. In accordance with the view taken by us in the lead matter, this appeal also deserves to be allowed. Allowing the appeal, we direct the respondents to pay to the appellant all the arrears of family pension and the amount of gratuity with simple interest at the rate of 9% per annum within two months from the date of this Judgment.
19. In appeal arising out of SLP(C) No.1305 of 2011 the appellant, 55 percent physically handicapped, was appointed as Typist-cum-Clerk on 13.10.1969 and retired from service in the year 2001. It is true that his appointment was after the Gujarat Panchayat Service (Appointing Authorities) Rules, 1967 and other set of Rules came into force. But nothing has been placed on record indicating any prevalent procedure which was allegedly infracted or any reason why his appointment could be termed as illegal or invalid. All through his service till he retired, he was paid all the emoluments and salary like any regular employee. We see no reason why the appellant could be denied the pensionary benefits and gratuity. We allow this appeal and direct the respondent to pay to the appellant family pension and the amount of gratuity with Page 15 of 17 HC-NIC Page 15 of 17 Created On Sat Aug 27 08:14:19 IST 2016 C/SCA/10116/2003 JUDGMENT simple interest at the rate of 9% per annum within two months from the date of this Judgment.
20. All the appeals are allowed in the aforesaid terms without any order as to costs.
20. While considering the case of the two writ-applicants, the authority shall also keep in mind the documents which have been referred to above, more particularly, the one which is at Page-14(P), the letter dated 30/11/1993 and the instructions issued by the State Government to all the District Development Officers of the State, which is at Page-14 (Q) i.e.09/09/1996.
21. I take notice of the fact that the proposal for pension was forwarded by the Panchayat in the year 2001 i.e. one year before date of superannuation. It appears that the Accounts Office of the District Panchayat turned down such proposal and declined to sanction the pension.
22. Be that as it may, the picture is now more than clear. The only reason assigned appears to be that they were not appointed on the sanctioned post and it is, by virtue of the award passed by the Labour Court that they were made permanent in the service.
23. Be that as it may, in view of the recent pronouncement of the Supreme Court, the position of law has changed drastically. The authorities concerned will have to reexamine the entire claim once-again keeping in mind the decision of the Supreme Court. In my view, the same clinches the issue. Moreover, no explanation is forthcoming why the instructions as contained in the letter dated 09/09/96 Page 14(Q) were not given its true effect. Probably, if such instructions would have been acted upon, then the picture would have been otherwise.
24. In view of the above, both the writ-applications are allowed to a certain extent. The respondent no.4- Panchayat shall forward a fresh proposal in the case of both the writ-applicants to the District Development Officer, Amreli as well as to the Accounts Officer, District Panchayat, Amreli. The District Development Officer, Amreli shall on receipt of the proposal with his notings forward the same to the State Government. The entire Page 16 of 17 HC-NIC Page 16 of 17 Created On Sat Aug 27 08:14:19 IST 2016 C/SCA/10116/2003 JUDGMENT exercise at the end of the Panchayat including the District Development Officer should be completed within a period of six weeks from the date of the receipt of the order. The State Government on receipt of the requisite proposal shall take an appropriate decision in this regard in accordance with law within a period of eight weeks thereafter. While taking an appropriate decision, the State Government shall keep in mind each and every observation made by this Court and more particularly, the grant of pension to Kaku Mavji. The State Government shall also consider the judgment of the Supreme Court in the case of Harijan Paniben Dudabhai (Supra). The decision shall be in writing and the same shall be communicated to the two writ- applicants.
It is needless to say that ultimately for any reason, if the writ-applicants are dissatisfied with the decision, that may be taken by the State Government, it shall be open for them to challenge the same before this Court. Since the issue in my view is more than clear, I expect the authority concerned to ensure that there is no second round of litigation in this regard. Rule is made absolute to the aforesaid extent. Direct service is permitted."
In view of the above, let the issue as regards the pensionary benefits as claimed by the writ-applicant be reconsidered by the Barwala Nagarpalika in accordance with law keeping in mind the dictum as laid down in the case of Harijan Paniben Dudabhai (supra). Such decision shall be taken within a period of two months from the date of the receipt of the order.
With the above, this writ-application is disposed of. Direct service is permitted.
(J.B.PARDIWALA, J.) MOIN Page 17 of 17 HC-NIC Page 17 of 17 Created On Sat Aug 27 08:14:19 IST 2016