Gujarat High Court
Nanuben Khodabhai vs State Of Gujarat & 3 on 5 August, 2016
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/7388/2002 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 7388 of 2002
With
SPECIAL CIVIL APPLICATION NO. 7379 of 2002
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 NO
the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy of the NO
judgment ?
4 Whether this case involves a substantial question of law as NO
to the interpretation of the Constitution of India or any
order made thereunder ?
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NANUBEN KHODABHAI....Petitioner(s)
Versus
STATE OF GUJARAT & 3....Respondent(s)
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Appearance:
MR BHARAT R PATEL, ADVOCATE for the Petitioner(s) No. 1
MR HITESH N ACHARYA, ADVOCATE for the Petitioner(s) No. 1
No Appearance, ADVOCATE for the Petitioner(s) No. 1.1 1.4
MR SWAPNESHWAR GOUTAM, AGP for the Respondent(s) No. 1
MR HS MUNSHAW, ADVOCATE for the Respondent(s) No. 2 4
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 05/08/2016
COMMON ORAL JUDGMENT
1. Since the issues raised in both the captioned writapplications are Page 1 of 18 HC-NIC Page 1 of 18 Created On Fri Aug 12 00:14:51 IST 2016 C/SCA/7388/2002 JUDGMENT more or less the same, those were heard analogously and are being disposed of by this common judgment and order
2. The two writapplicants before me are retired employees of the Chittal Jasvantgad - Timba Gram Panchayat, DistrictAmreli. It appears that the writapplicant of the Special Civil Application No.7388 of 2002 viz.Smt. Nanuben Khodabhai has passed away. The legal heirs are on record.
3. Both the writapplicants were appointed by the respondent no.4 Panchayat as the Safaikamdars. The writapplicant of the Special Civil Application No.7379 of 2002 viz.Divaliben Amrabhai was appointed in the year 1971, whereas, the writapplicant of the Special Civil Application No.7388 of 2002 viz.Late Nanuben Khodabhai was appointed in the year 1978.
4. After serving the Panchayat for years together, both the writ applicants retired from the service. They prayed for pension and other retiral benefits. The same was declined. In such circumstances, the two writapplications have been filed for appropriate directions as regards the pension and other retiral benefits.
5. Mr. Hitesh Acharya, the learned counsel appearing for the writ applicants invited my attention to few relevant and important facts. First, he invited my attention to the statement of the pay fixation under the Gujarat Civil Services (Revision of Pay) Rules, 1987, duly signed by the Deputy District Development Officer. In the said statement, the status of the both the writapplicants have been shown as regular/permanent. Mr. Acharya thereafter invited my attention to a letter dated 30/11/1993 of the Panchayat addressed to the Accounts Page 2 of 18 HC-NIC Page 2 of 18 Created On Fri Aug 12 00:14:51 IST 2016 C/SCA/7388/2002 JUDGMENT Officer, District Panchayat, Amreli furnishing the details of the employees, who opted for pension and got the amount towards the C.P.F. credited under the head of pension. Divaliben Amrabhai figures at Sr.No.7, whereas, late Nanuben Khodabhai figures at Sr.No.9.
6. Mr. Acharya thereafter invited my attention to a letter dated 09/09/1996 issued by the State Government in its Panchayat Department addressed to all the District Development Officers across the State informing that as regards those employees appointed between 01/04/1963 and 09/07/1978 by the Gram Panchayat and Nagar Panchayat without the prior approval and sanction of the authority concerned, the concerned Panchayat shall forward an appropriate proposal to the District Development Officer and Development Commissioner seeking sanction with retrospective effect. The instructions further read that all those posts which were created before 10/07/1978 and filled up between 10/07/1978 and 05/06/1984 by the concerned Panchayat shall be regularized.
7. Mr. Acharya thereafter invited my attention to the service book of the two writapplicants which indicates that the appointments were treated as regular. He submits that all throughout the service, his clients were paid the regular salary and were treated as regular/ permanent employees of the Panchayat.
8. Mr. Acharya lastly pointed out that in the letter dated 30/11/1993 referred to above, one Kaku Mavji has been shown at Sr.No. 4. He has placed on record the order passed by the Local Fund Office, Amreli sanctioning the pension and gratuity in favour of Kaku Mavji. According to Mr. Acharya, this order passed in favour of Kaku Mavji, should put an end to the entire controversy because in the very same letter, his two Page 3 of 18 HC-NIC Page 3 of 18 Created On Fri Aug 12 00:14:51 IST 2016 C/SCA/7388/2002 JUDGMENT clients figure at Sr. No.7 and Sr.No.9 respectively.
9. In such circumstances referred to above, Mr. Acharya prays that both his clients are entitled to receive pension and the gratuity.
10. On the otherhand, both the writapplications have been vehemently opposed by Mr. Munshaw, the learned counsel appearing for the District Development Officer as well as the Gram Panchayat. Mr. Munshaw submits that both the writapplicants were appointed by the concerned Panchayat by just passing a resolution. No prior approval was sought for from the Amreli District Panchayat. According to Mr. Munshaw, the writapplicants cannot be said to be the members of the Panchayat Service. He submits that they are not entitled to receive pensionary benefits.
11. On behalf of the Panchayat, an affidavitinreply has been filed in the Special Civil Application No.7379 of 2002 which reads as under: "4. It is most respectfully stated that the petitioner herein who was born on 1st July, 1941, as per service record, was employed by the respondent no4 Gram Panchayat through a Resolution dated 1st October, 1971 without following due procedure of the recruitment and thereafter she approached Labour Court for the benefit of regularization against the respondent no.4 Gram Panchayat and the Labour Court, Ahmedabad passed an order to that effect through an Award dated 18th May, 1979 in a Reference LCA no.217/1977 filed by the petitioner herein. It is stated that the said benefits of treating her as a permanent employee with effect from 1st January, 1978 were conferred. It is pertinent to note that only the respondent no.4 was partyrespondent in the said Reference LCA No.217/77. Accordingly the petitioner herein was paid monetary benefits by the respondent no.4 Gram Panchayat till the retirement of the petitioner. It is stated that after the retirement, the petitioner herein requested for the pensionary benefits and, therefore, pension papers were forwarded on 20th June, 2001 by the respondent no.4 to the Accounts Officer, Amreli District Panchayat through the Taluka Panchayat, but through orders dated 7th August, 2001, the said Authority has turned Page 4 of 18 HC-NIC Page 4 of 18 Created On Fri Aug 12 00:14:51 IST 2016 C/SCA/7388/2002 JUDGMENT down the proposal and a copy of a letter dated 20 th June, 2001 as well as a copy of an order dated 7th August, 2001 are annexed herewith and marked as Annexure 'A' & 'B' respectively to this reply. It is pertinent to note that as per decision of the Accounts Officer, Amreli District Panchayat, the petitioner was not appointed between 1st April, 1963 and 11th February, 1969 by a converted Municipality and the petitioner was as such appointed on 1st October, 1971 by the respondent no.4 Gram Panchayat. Hence, such benefits cannot be conferred in favour of the petitioner. Respondent no.4 states that there are administrative instructions as well as Government Resolutions on the subject matter and copies of the Government Resolution dated 17th October, 1983 as well as Government Resolution dated 19th September, 1992 and administrative instructions dated 28th September, 1992 issued by the Panchayats Department through a letter are annexed herewith and marked as Annexure 'C', 'D' & 'E' to this reply. Respondent no.4 states that the Accounts Officer of Amreli District Panchayat is a competent authority to take appropriate decision on the issue of the retiral benefits as the same are to be paid by the District Panchayat and ultimately the State Government.
In humble opinion of the respondent no.4 that the said proposal is turned down due to prevailing rules and regulations and as the respondent no.4 has throughout paid the salary and other benefits to the petitioner from its own funds and it has no pensionary scheme for its retired employees, the petitioner cannot be paid the said benefits as it has no sufficient resources and hence the petitioner cannot be paid the said benefits by the Gram Panchayat."
12. Mr. Munshaw therefore prays that there being no merit in both the writapplications, they may be rejected.
13. Mr. Goutam, the learned AGP appearing for the State has also opposed both the writapplications. He seeks to rely on the affidavitin reply filed on behalf of the State Government, which reads as under:
4. I say that the petitioner came to be appointed at Jaswantgadh Gram Panchayat, in view of the resolution dated 1st January, 1978, but the said appointment is not in accordance with law and no prior permission or approval is obtained in the matter and is not in accordance with law and appointment under Section 203 of the Gujarat Panchayat Act 1961. I say that in view of the judgment of the Apex Court, appointment is made under Section 206 and 307 of Page 5 of 18 HC-NIC Page 5 of 18 Created On Fri Aug 12 00:14:51 IST 2016 C/SCA/7388/2002 JUDGMENT the Gujarat Panchayat Act. If, after conversion of the Municipality into Nagar Panchayat, the employee is an allocated employee, then only question of granting benefits arise. I say that the petitioner is not an allocated employee but his appointment is made by the Panchayat of its own, and for that, the present respondent is not responsible to pay the pensionary benefits and other benefits form the pocket of the respondent No.1. I say that if any benefits are required to be paid, then the said benefits are required to be paid by the Nagar Palika/ Gram Panchayat. I say that the said view is also expressed by this Hon'ble Court by Special Civil Application No.9264 of 1993 that if the appointment is made regular under Section 203 of the Gujarat Panchayat Act 1961, then only the question of granting benefits by the respondent arises and if the appointment is made in view of the resolution made by the Nagar Palika/ Gram Panchayat without obtaining the permission/ approval of the respondent then the appointment being regular, benefits if any, are required to be paid. For that, Gram Panchayat/ Nagar Panchayat is to pay the said benefits from their own resources and present respondent is not responsible for the said benefits. I say and submit that as per the judgment of Hon. High Court dated 21.12.99 of the M.C. No.482/95 in S.C.A. No.1205/78 and the judgment dated 18.8.2000 of the S.C.A. No.149/1988 and as per the Section 204 of the Gujarat Panchayat Act, 1961 and the Section 228 of Gujarat Panchayat Act, 1993 the expenditure of the establishment pay scales and other due benefits is born by concern Gram/Nagar Panchayats/ Municipal Borough and therefore Government is not liable in the present case. The copies of the said judgments are annexed herewith and marked as AnnexureA collectively.
In view of Government Circular No.NPM1083/964/K1, dated 25.8.83 and the Judgment of Hon. Supreme Court in AIR 1984 S.C. 161 the gram nagar panchayat has no power to recruit to appoint and to fix the pay scale of any employee is gram/nagar panchayat and even though the gram nagar panchayat has made such recruitment/appointment/ fixation of pay scale considered as cancelled. A copy of the said circular dated 25.8.83 is annexed herewith and marked as Annexure B. Further as per the judgment of Hon. Gujarat High Court Resported in GIR 1998 Page 2264 to 2309 the petitioner was not recruited appointed as per the following procedure by Competent Authority and therefore he was neither panchayat service employee nor State Service employee. Further, he was not ex. Municipality employee and not allocated employee as the judgment of Hon. Supreme Court reported in AIR 1984 SC 161 and Government Circular No.CFS18651446Ch, dated 11.2.69 and therefore the pension scheme of the state is not applicable to the petitioner. A copy of the said order is annexed herewith and marked as AnnexureC looking to the all facts the petitioner is not entitled to Page 6 of 18 HC-NIC Page 6 of 18 Created On Fri Aug 12 00:14:51 IST 2016 C/SCA/7388/2002 JUDGMENT get all the service benefits as prayed by her in the present petition. Further in light of the above mentioned facts and circumstances such backdoor entry dehorses the rules can not be permitted.
14. He also seeks to rely on one another reply dated 23/11/2004 which reads as under:
5. So far as para 2.2.1 of memo of petition is concerned, I say and submit that according to the instructions given in Govt. letter bearing No.NPM/1084/1480/K, dated 9.9.96 appointment of staff as well as services rendered by them can be regularized by respective Panchayat after obtaining sanction/ consent from State Government through proper chanels. A copy of the said letter is annexed herewith and marked as AnnexureI to this affidavit in reply. I say that according to said letter post which have been created by Gram Panchayat or Nagar Panchayat in view of Sec. 102 of Gujarat Panchayat Act 1961 which is amended by 6th Notification/ Ordinance, 1978 prior to 10.7.78 in their regular establishment will be adjusted against the sanctioned vacant posts according to their seniority which have been created and recruited after 10.7.78 and due to adjustment of such staff post which have been fallen vacant will be considered as abolished and no such post will be filled up at any cost and same will be treated as abolished one. I say and submit that due to adjustment of staff pot which have been fallen vacant, the concerned District Development officer were requested to send their proposal through the Development Commissioner for excess post which are vacant due to adjustment of staff as on the date of the letter. I say and submit that here in the present case no proper procedure has been adopted for regularization of appointment of the petitioner as mentioned in Govt. letter dtd.9.9.96 and therefore, petitioner is not entitled for pensionary benefits as prayed for here in this petition and petition deserves to be dismissed in limine.
I say and submit that as mentioned in para (2) of the letter dated 9.9.96, post which have been created from 1.4.63 to 9.7.78 without obtaining consent of the competent authority, for such posts proposals were invited by Government fr regularising such post from the respective District Development Officer through the Development Commissioner but the concerned Gram Panchayat had not made any such proposal to regularize of the appointment of petitioner. Therefore, here in the present case, the petitioner was not a regular employee of the Gram Panchayat and the appointment of the petitioner has not been regularized and crystal clear that petitioner is not entitled for any pensionary benefits from the Govt. Treasury.
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6. So far as para 2.2.2 of memo of petition is concerned, I say and submit that as per directions issued by Hon'ble Supreme Court reported in AIR 1984 SC page 161 and circular issued by Panchayat Department dtd. 25.8.83 bearing No.NPM/1083/964/K, recruitment /appointment/ promotion of the employees of Gram Panchayat is to be done according to Sec.203 of Gujarat Panchayat Act, 1961 and Sec.227 of Gujarat Panchayat Act, 1993 by adopting proper procedure according to rules and no other procedure could have been adopted by Gram Panchayat for recruitment of staff. I say and submit that if employees have been recruited according to rules, then in that case pay fixation of the employee can be made by present respondent. Here in the present case recruitment of the petitioner has not been done by prescribed procedure and therefore, pay fixation made by the District Development Officer is against the provisions of rules. Therefore, petitioner is not entitled for pensionary benefits as prayed for here in this petition and petition deserves to be dismissed.
15. According to Mr. Goutam, the learned AGP there being no merit in both the writapplications, they be rejected.
16. Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether the two writapplicants are entitled to receive the pension and other benefits.
17. As noted above, in the service book of both the writapplicants, the status of the employment has been shown as that of being a permanent employee of the Panchayat. It also appears that they were being paid the regular salary on the post of the Safai Kamdar. It also appears that they were given an option and while exercising their option for pension, the amount of C.P.F. was adjusted in the pension fund. I see no good reason to deny the pension and other benefits to the two writ applicants, more particularly, when identically situated employee viz. Kaku Mavji is being paid the pension as on date. I have referred to the order passed by the authority concerned above, passed in favour of Kaku Page 8 of 18 HC-NIC Page 8 of 18 Created On Fri Aug 12 00:14:51 IST 2016 C/SCA/7388/2002 JUDGMENT Mavji. Kaku Mavji has been paid even the gratuity amount.
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 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 subsection 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 Page 9 of 18 HC-NIC Page 9 of 18 Created On Fri Aug 12 00:14:51 IST 2016 C/SCA/7388/2002 JUDGMENT State Government.
(2A) (a) The cadres referred to in subsection (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.
(2B) In addition to the posts in the cadres referred to in subsection (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 subsection(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
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belonging to the Panchayat Service and the circumstances in which and the conditions subject to which such transfers may be made .
(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 subsection (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 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 Page 11 of 18 HC-NIC Page 11 of 18 Created On Fri Aug 12 00:14:51 IST 2016 C/SCA/7388/2002 JUDGMENT 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 petitioner's 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 petitioner's 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 Page 12 of 18 HC-NIC Page 12 of 18 Created On Fri Aug 12 00:14:51 IST 2016 C/SCA/7388/2002 JUDGMENT 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 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
6. Typist
7. Octroi clerk
8. Accountant
9. Cashier
10. Tax Inspector
11. Shop Inspector
12. Octroi Inspector Page 13 of 18 HC-NIC Page 13 of 18 Created On Fri Aug 12 00:14:51 IST 2016 C/SCA/7388/2002 JUDGMENT
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 nontechnical 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 subrule (2) of Rule 3 of the Gujarat Panchayat Service (Classification and Recruitment) Rules, 1967."
Subrule (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 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 Page 14 of 18 HC-NIC Page 14 of 18 Created On Fri Aug 12 00:14:51 IST 2016 C/SCA/7388/2002 JUDGMENT 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 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 Officer's 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 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 Page 15 of 18 HC-NIC Page 15 of 18 Created On Fri Aug 12 00:14:51 IST 2016 C/SCA/7388/2002 JUDGMENT 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 Typistcum 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 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 writapplicants, the authority shall also keep in mind the documents which have been referred to above, more particularly, the one which is at Page14(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 Page14 (Q) i.e.09/09/1996.
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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 onceagain 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 writapplications are allowed to a certain extent. The respondent no.4 Panchayat shall forward a fresh proposal in the case of both the writapplicants 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 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 Page 17 of 18 HC-NIC Page 17 of 18 Created On Fri Aug 12 00:14:51 IST 2016 C/SCA/7388/2002 JUDGMENT 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 writapplicants.
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.
(J.B.PARDIWALA, J.) aruna Page 18 of 18 HC-NIC Page 18 of 18 Created On Fri Aug 12 00:14:51 IST 2016