Gujarat High Court
Rajnikant Jamnadas Jani vs Bhavnagar Municipal Corporation on 17 November, 2016
Author: S.G. Shah
Bench: S.G. Shah
C/SCA/3790/2012 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 3790 of 2012
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE S.G. SHAH
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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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RAJNIKANT JAMNADAS JANI....Petitioner(s)
Versus
BHAVNAGAR MUNICIPAL CORPORATION....Respondent(s)
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Appearance:
MR YV SHAH, ADVOCATE for the Petitioner(s) No. 1
MR HS MUNSHAW, ADVOCATE for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE S.G. SHAH
Date : 17/11/2016
ORAL JUDGMENT
1. Heard learned advocate Mr.Y.V. Shah for the petitioner and learned advocate Mr.K.R. Patel appearing for learned advocate Mr.H.S. Munshaw for respondent. Perused the record. Petitioner herein has prayed to issue a writ of direction and/or order directing the respondent - Bhavnagar Municipal Corporation to revise and pay monthly retirement pension on the basis of last 10 months and to release the amount of arrears of pension at the rate of Rs.250/- as applicable on the date Page 1 of 6 HC-NIC Page 1 of 6 Created On Fri Nov 18 00:34:13 IST 2016 C/SCA/3790/2012 JUDGMENT of filing of application, which has been withheld from the date of retirement with interest and costs, more particularly when petitioner was promoted on the post of Tax Officer by an order dated 22.10.1997 and such promotion was confirmed by the general body of respondent - Corporation.
2. It is undisputed fact that petitioner was initially recruited as daily wager time keeper and appointed as a regular Tax Clerk on 10.04.1962 and then promoted to the post of Inspector on 01.05.1976. Thereafter, he was promoted as House-Tax Superintendent on 1.10.1984, Octroi Superintendent on 8.4.1986 and ultimately, as Tax Officer in the scale of Rs.2,500 - 4,200 (Rs.8,500 - 14,000) on the basis of seniority - cum - merits by order dated 22.10.1997, copy of which is produced on record at Annexure-A. Such order of promotion specifically confirms that petitioner has been promoted to the post of Tax Officer and the minutes of the meeting No.11 for the year 2002- 2003 dated 21.2.2003 confirms that such promotion has been approved by the Committee. Therefore, it is clear and certain that petitioner was serving in the grade of Rs.2,500 - 4,200, which is revised to Rs.8,500 - 14,000 on date of his retirement i.e. 31.5.2000 and as contended by him, his last basic pay-scale was Rs.10,425/-. Therefore, petitioner has contended that his pension ought to have been fixed on the basis of his average pay of last 10 months of Rs.10,425/-
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and thereby, pension ought to have been fixed at the rate of Rs.5,213/- and not Rs.4,963/-, as if he retired on the lower post of Superintendent as per order dated 25.8.2000, which results into monthly recurring loss of Rs.2,250/- as pension and thereby, total financial loss upto 31.12.2011 was calculated to the tune of Rs.76,434/- while filing such petition in the month of March, 2012.
3. Petitioner has also submitted that respondents have continued to pay full pension to P.B. Pandya, Secretary, who retired on 31.8.1988 and Jaydev T.Joshi, Assistant Commissioner, who retired on 31.8.1997 as per average of last 10 months of their salary in the scale of Rs.8,500 - 14,000 though it was not sanctioned by the Government, but as per the binding settlement between the respondents and Officers' Association. Therefore, it is contended that it amounts to arbitrariness and discrimination amongst equally situated persons. It is further contended that therefore petitioner has between 11.9.2000 to 31.1.2011, filed various representations to the respondent - Corporation, but respondents have failed to consider such representation and thereby, respondents have unlawfully deprived the petitioner from his legible amount of pension and therefore, petitioner is constrained to challenge such action of the respondent - Corporation for non- payment of proper pension on the basis of average 10 months salary. It is also contended Page 3 of 6 HC-NIC Page 3 of 6 Created On Fri Nov 18 00:34:13 IST 2016 C/SCA/3790/2012 JUDGMENT that in fact respondent - Corporation had arrived at amicable settlement between the Officers' Association regarding the pay-scale of Officers after considering the pay-scale prevailing in other Corporations of the State and thereby, when such agreement is binding upon the respondent - Corporation, and when Corporation has abided by such agreement for some Officers, even in absence of sanction to pay pension as per such agreement, or when sanction is not obtained in time by Corporation prior to promotion, the respondents cannot depart from the settlement on its own sweet-will in selective manner by extending the benefit to some of the Officers, denying the same benefit to the present petitioner, who is now 70 years old.
4. In view of above facts and circumstances, the petitioner has prayed for reliefs as recorded herein above and indulging the exercise of jurisdiction of this Hon'ble Court under Articles 14, 16, 21 and 226 of the Constitution of India. In support of his petition, petitioner has produced relevant documentary evidence confirming his promotion, pay-scale, approval of his promotion and order fixing his pension dated 25.8.2000 so also his representation and communication to him to get his legitimate benefits and a statement of calculation that how he is claiming Rs.76,434/- and difference in pension till December, 2011.
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5. I have considered the rival submissions and available record. In short, respondents have no defence or excuse to submit that petitioner is not entitled to the pension as claimed by him. The only pretext by the respondent is to the effect that since they did not get the sanction to release such amount of pension in time and since for some time Corporation was having some financial issues, pension was fixed in accordance with prevailing facts and circumstances before the Corporation, but otherwise they never wanted to do anything arbitrarily or cause discrimination amongst equally situated employees.
6. In view of above facts and circumstances, no further discussion is required. It is undisputed fact that respondent - Corporation has already released the pension as per Rules to some other Officers viz. P.B. Pandya and Jaydev T.Joshi. Therefore, respondents have no option, but to fix the pension and all other retirement benefits of the petitioner also in accordance with the same rules and calculation, whereby so far as monthly pension is concerned, it would be Rs.5,213/- instead of Rs.4,963/-.
7. Therefore, the petition is allowed. Thereby, respondents are directed to revise the pension of the petitioner considering his last 10 months salary for calculation of pension, which was Rs.10,425/- on the date of retirement. Pursuant Page 5 of 6 HC-NIC Page 5 of 6 Created On Fri Nov 18 00:34:13 IST 2016 C/SCA/3790/2012 JUDGMENT to such revision, petitioner is entitled to arrears of amount of pension with 6% interest and revision of all other benefits, including family pension. The amount of arrears till date with 6% interest shall be paid within three months without fail and further pension should be paid as per the revised pension.
8. Rule is made absolute. Direct service is permitted.
(S.G. SHAH, J.) binoy Page 6 of 6 HC-NIC Page 6 of 6 Created On Fri Nov 18 00:34:13 IST 2016