Gujarat High Court
Bhagwanji Vashrambhai Javia vs State Of Gujarat & 5 on 11 April, 2016
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/13333/2014 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 13333 of 2014
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BHAGWANJI VASHRAMBHAI JAVIA....Petitioner(s)
Versus
STATE OF GUJARAT & 5....Respondent(s)
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Appearance:
MR BIPIN I MEHTA, ADVOCATE for the Petitioner(s) No. 1
MR. GOUTAM, ASST. GOVERNMENT PLEADER for the Respondent(s) No. 1
MR RK MISHRA, ADVOCATE for the Respondent(s) No. 6
NOTICE SERVED for the Respondent(s) No. 1 - 5
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 11/04/2016
ORAL ORDER
1. By this writ application under Article 226 of the Constitution of India, the petitioner, a retired employee of the Jam-Jodhpur Nagarpalika, has prayed for the following reliefs;
"(A) YOUR LORDSHIPS may be pleased to admit and allow this petition;
(B) YOUR LORDSHIPS may be pleased to issue appropriate writ, order or direction directing the respondent no.1 and 2 to reconsider the case of the petitioner;
(C ) YOUR LORDSHIPS may be pleased to issue appropriate writ, order or direction quashing and setting aside the letter/ order dated 26.8.2014 at Ann.M. (D) YOUR LORDSHIPS may be pleased to issue appropriate writ, order or direction declaring that the petitioner is eligible and entitle to get pensionary Page 1 of 9 HC-NIC Page 1 of 9 Created On Wed Apr 13 01:41:23 IST 2016 C/SCA/13333/2014 ORDER benefits with interest thereon;
(E) Pending admission and final disposal of this petition, YOUR LORDSHIPS may be pleased to pass an order directing the respondents to give provisional pension to the petitioner immediately;
(E) YOUR LORDSHIPS may be pleased to grant such other and further relief/s that may be deemed fit and proper in the interest of justice."
2. The facts of this case may be summarized as under;
2.1 The petitioner was appointed on the post of the Naka Clerk on 1.7.1988. Later on, he was regularized in service pursuant to an award passed by the Labour Court, Rajkot in Reference (LCD) No.72 of 1987 dated 8.7.1988. It appears that he attained superannuation on 31st October, 2013. It appears from the materials on record that he was given the benefits of the pay commissions including the 6th Pay Commission vide order dated 24th September, 2012 passed by the Regional Director of Municipality.
2.2 It appears that the petitioner was earlier serving with the Nagar Panchayat. The Nagar Panchayat got converted into Jam-Jodhpur Nagarpalika. This happened in the year 1994. The petitioner came to be absorbed as an employee of the Jam- Jodhpur Nagarpalika.
2.3 An identically situated person who was working with the petitioner in the very same Nagarpalika has been sanctioned the pension without any objection. In the case in hand, the objection raised is that although the petitioner served on the establishment of the Nagarpalika for almost more than 25 Page 2 of 9 HC-NIC Page 2 of 9 Created On Wed Apr 13 01:41:23 IST 2016 C/SCA/13333/2014 ORDER years, yet there is nothing to indicate that his appointment was regular.
2.4 According to the learned AGP appearing for the State- respondents, if there is nothing to indicate that his appointment was regular, then he is not entitled to pension.
3. On behalf of the Nagarpalika, i.e., the respondent No.6, an affidavit-in-reply has been filed, inter alia, stating as under;
"7. Regarding para 4 of the petition, I say that the benefits as have been stated herein have been extended by the competent authority vide its order dated 7.4.2001 vide Annexure -C.
8. Regarding para 5 and 6 of the petition, I say that the vide circular dated 29.91992 issued by the Government of Gujarat through its Rural Housing Development Department, the petitioners have opted for pension and applications for such option for pension came to be received and came to be forwarded for further actions to the Administrative Branch of the District Panchayat. It is true that the employees have been extended the benefits of 6th Pay Commission vide order dated 24.7.2012 issued by the Regional Director of Municipalities.
9. Regarding para 7 of the petition, I say that the employees of Jamjodhpur Nagar Palika who were in the employment prior to conversion of the Gram Panchayat into Nagar Palika, they have filled in option forms as submitted hereinabove for opting for pension and the say applications had been acted upon and the same had been sent to the Collector, Jamnagar. The amounts that came to be deposited by them have been deposited in the Treasury by Challan along with the amount that has been contributed by the employees and as per the Rules, in turn, whatever was payable by the Nagar Palika, the same stands deposited to the credit of the petition with the Government in accounts under G.P.F. Page 3 of 9 HC-NIC Page 3 of 9 Created On Wed Apr 13 01:41:23 IST 2016 C/SCA/13333/2014 ORDER
10. Regarding para 8 of the petition, I say that the action that was required by the deponent Nagar Palika had been complete and the same had been forwarded to the office of the Collector along with all requisite papers.
11. Regarding para 9 and 10 of the petition, I reserve my comments as the averments of these paragraphs are appertaining to the Collector, Jamnagar and the respondent Regional Director of Municipalities, Rajkot. However, these paragraphs appertaining to me are in respect of the award that has been passed. It is true that the said award was consent award and that the said award was not challenged before this Hon'ble Court.
12. Regarding para 11 of the petition, I say that it is true that the date of permanency of Shri Jivanlal Rudabhai Vachhani is 1.7.1988 as per the award. Therefore, the policy of pension and willingness coupled with the option form that procedure has undergone and the same has been forwarded from the Nagar Palika to the higher-ups.
13. The facts of repeated paragraph 11 are not disputed and these facts are based on the material produced on record vide Annexure-K, therefore, no further comments are required.
14. Regarding para 12 of the petition, I say that the document at Annexure-"L" is not controverted and the facts below this paragraphs are also not controverted.
15. Regarding para 13, 14, 15 and 16 of the petition, I say that the facts stated in these paragraphs are true and are based on the documents at Annexure-M, Annexure-N, Annexure-O and to that of Annexure-P. The averments made in these paragraphs are not requiring any comments from the Jamjodhpur Nagar Palika as they are appertaining to the respondent Collector and the Director of Municipalities."
4. Mr. Goutam, the learned AGP, requested the Court to grant him some time to file reply. This petition is of the year Page 4 of 9 HC-NIC Page 4 of 9 Created On Wed Apr 13 01:41:23 IST 2016 C/SCA/13333/2014 ORDER 2014. It has been listed for 21 times by now. In such circumstances, I decline to grant any further time.
5. Mr. Goutam, the learned AGP tried to rely on a Government Resolution dated 22nd January, 2004, more particularly, the Condition No.7 therein. This government resolution is not on record.
6. In view of the above, the submission is rejected.
7. 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 petitioner is entitled to the reliefs as prayed for. Let me assume for the moment, as submitted by the learned AGP, that the service of the petitioner was not regular. It is not in dispute that he served from 1988 to 2013. It is not in dispute that his services were terminated and the Labour Court ordered his reinstatement in service with continuity. It is not in dispute that all throughout, he remained in the GPF. If that be so, it is difficult for me to accept the argument that he was not a regular employee. Apart from the above, it is not that in every case whenever a person is a daily wager, or a temporary employee, he would not be eligible or entitled for pension. A Division Bench of this Court in the case of Chief Officer vs. Mohamad Irshad Husenbhai Baloch & Ors. 2011 (I)GCD 569, observed as under;
"6. It is undisputed position that all the concerned employees were treated in the GPF scheme, therefore, respective GPF accounts were opened and the deduction was also made from their salary from the date on which Page 5 of 9 HC-NIC Page 5 of 9 Created On Wed Apr 13 01:41:23 IST 2016 C/SCA/13333/2014 ORDER they were made permanent and until they retired from service or their service ended on account of their death. It is also undisputed position that all such employees were not treated in CPF scheme, which is applicable to other municipal employees and no deduction for the purpose of CPF has been made by the municipality from the salary of concerned employees. If the employee, when he is absorbed in service, is treated for all purposes in the GPF scheme for pensional benefits and not treated in the CPF scheme for lumpsum amount, and the said position continued until the person concerned reached to the age of superannuation or otherwise, would it be open to the employer or the concerned authorities to deny the pensionary benefits after retirement on the ground that the employees concerned was not eligible for pension as per the GPF scheme. In our view, if such is permitted to be entertained and accepted, it would not only be highly improper on the part of the authority, but can also be termed as atrocious action, which would be absurd on the face of it.
7. The learned counsel for the appellant, however contended that the employees concerned, who were in the then panchayat service and subsequently continued in the municipality, were not recruited by the regular selection process and it was submitted that it is only w.e.f. 1.1.1989 they have been granted permanency benefit. When on 1.1.1989 permanency benefits were granted, they were taken as municipal employees and not as employees of the panchayat. Under the circumstances, they would be entitled for all benefits, which may be available to other municipal employees. It was submitted that as per the decision of this Court in case of Chorwad Gram Panchayat Vs.Ramniklal Dharshi Shah reported at (2010)1 GCD 675, such employees who were not recruited by the regular selection process of the then Gram Panchayat, could not be termed as in panchayat service and, therefore, would not be eligible for the pensional benefits as available to other employees of the panchayat or Government service. Learned counsel, therefore, contended that if the employees were of the municipality, there is no scheme of the Government for pensional benefits, but the scheme applicable would be CPF to the employees of the municipality. It was submitted that the learned single Judge was guided by the resolution of the Government, Page 6 of 9 HC-NIC Page 6 of 9 Created On Wed Apr 13 01:41:23 IST 2016 C/SCA/13333/2014 ORDER which in the submission of the municipality is not applicable and, therefore, the order passed by the learned single Judge is erroneous.
8.There cannot be any different view in respect of the employees taken by this Court in Chorwad Gramp Panchayat (supra). However, the point which arise for consideration in the present group of matters did not arise in the said case inasmuch as if for all purposes the employees concerned were treated as in panchayat service with the scheme of the Government for pension by deduction of GPF, would it be open to the Government or the municipality to deny the pensional benefits, if the employees concerned have retired from service. It is true that if one was not appointed by regular recruitment process, he may not fall in the panchayat service. In our view, the factum of giving treatment by the municipality and Government to all the concerned employees in the present case as member of the panchayat service and the consequent action of regular deduction of contribution of GPF account that too from the inception of the service as the permanent employees until reaching to the age of superannuation or until the services came to an end, would be sufficient to decline the entertainment of such plea taken by municipality and/or the Government as the case may be, that the employees concerned in view of the aforesaid decision of this Court in case of Chorwad Gram Panchayat (supra), would not be entitled for the pensional benefits. Be it noted that it is not the case of the appellant or any of the State authority that it is on account of any fraud or misrepresentation or any mischief played by the concerned employees at the relevant point of time or even thereafter they were treated as member of GPF scheme. Therefore, the question is to be examined in light of the bonafide action on the part of employee as well as the concerned officer of the employer or the Government, as the case may be. It is true that in normal circumstance, such estoppel may not operate against any statute, but it is not a mere case of considering the question of estoppel. In our view, a case of conduct of the party concerned coupled with the alteration of the position of the party concerned throughout. At any point of time, neither the municipality or the Government has refunded the amount of contribution nor they have intimated to the employees concerned for their mistake Page 7 of 9 HC-NIC Page 7 of 9 Created On Wed Apr 13 01:41:23 IST 2016 C/SCA/13333/2014 ORDER or otherwise. After completion of the service, if such a plea is entertained or is accepted, in our view, it would result into allowing the atrocious treatment to be played by the municipality or the Government or its officers, which would violate Article 14 of the Constitution.
9. The aforesaid is coupled with the circumstance that it is not that in every case whenever a person is daily wager or a temporary employee of the Government, he would not be eligible or entitled for pension. On the contrary as per the policy of the Government, even if a person is an adhoc/temporary employee, after completion of requisite length of service, he is to be treated as eligible for the scheme of pension and once he is treated as eligible for the scheme of pension, and his contribution are being deducted from his salary, he would be eligible for the pension upon completion of the requisite length of service. Therefore, there is no absolute bar operating upon the entitlement of the pension by the employees of the then Gram Panchayat, who are treated as for all purposes covered by the scheme of pension for the contribution from their salary and same position continued until they reached to the age of superannuation or until the end of their service.
10. The learned single Judge additionally has relied upon the Government Resolution which inter-alia provides for pensional benefits of the employees of the then Gram Panchayat, which has been converted into municipality and they are absorbed in the municipality.
11. In view of the aforesaid, we find that the ultimate conclusion recorded by the learned single Judge of treating the concerned employees as eligible for pension appears to be correct and consequently the direction issued for disbursement of the pension/family pension does not deserve to be interfered with."
8. There is no explanation why an identically situated employee of the Nagarpalika, namely, Jeevanlal Rudabhai Vachchani is receiving the pension. The order, sanctioning the pension dated 27.4.2012 is at Page-52, Annexure-N collectively.
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9. In the overall view of the matter, I am convinced with the case put up by the petitioner.
10. Mr. R.K. Mishra, the learned counsel appearing for the respondent No.6 makes a statement that his client has already processed the papers of pension and has forwarded the same to the office of the respondent No.5. The respondent No.5, in turn, forwarded it to the respondent No.4. I expect the authorities concerned to now pass appropriate orders, fixing the pension.
11. Let such exercise be undertaken within a period of four weeks from today. The arrears of pension shall be calculated and paid to the petitioner within a period of four weeks thereafter.
12. With the above, this writ application is disposed of.
Direct service is permitted.
(J.B.PARDIWALA, J.) Vahid Page 9 of 9 HC-NIC Page 9 of 9 Created On Wed Apr 13 01:41:23 IST 2016