Gujarat High Court
District Development Officer vs Maganbhai Mohanbhai Sarvaiya on 7 May, 2019
Author: Biren Vaishnav
Bench: Anant S. Dave, Biren Vaishnav
C/LPA/1058/2019 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 1058 of 2019
In R/SPECIAL CIVIL APPLICATION NO. 17499 of 2016
With
CIVIL APPLICATION (FOR STAY) NO. 2 of 2018
In R/LETTERS PATENT APPEAL NO. 1058 of 2019
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DISTRICT DEVELOPMENT OFFICER
Versus
MAGANBHAI MOHANBHAI SARVAIYA & 2 other(s)
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Appearance:
MS HARSHAL N PANDYA(3141) for the Appellant(s) No. 1,2,3
for the Respondent(s) No. 2,3
MR MUKESH H RATHOD(2432) for the Respondent(s) No. 1
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CORAM: HONOURABLE THE ACTING CHIEF JUSTICE ANANT S. DAVE
and
HONOURABLE MR.JUSTICE BIREN VAISHNAV
Date : 07/05/2019
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE BIREN VAISHNAV)
1. This appeal is filed challenging C.A.V. order dated 19.01.2018, passed by learned Single Judge in Special Civil Application No.17499/2016. Learned Single Judge, while allowing the petition, directed the appellants to fix the pension of respondent No.1 - original petitioner and issued further directions to pay arrears from 01.01.2016. Page 1 of 7 Downloaded on : Sun Jun 30 16:32:47 IST 2019 C/LPA/1058/2019 ORDER
2. The background of facts is that respondent No.1 was appointed as a daily wager in the Road and Building Department in the year 1978. His services were terminated on 21.04.1985. He approached the Labour Court by raising Reference, being LCR No.1499/1986. The Labour Court, Rajkot, by judgment and award dated 23.10.1989, directed that the respondent-workman be reinstated in service as per his seniority.
3. The employers challenged the award by filing Special Civil Application No.1170/1989 and failed. Respondent No.1 was reinstated in service from 16.10.1990. Having retired from service with effect from 31.03.2007 and having rendered 29 years of service, naturally, he expected the Department to grant him pensionary benefits.
4. The Directorate of Pension, by communication dated 14.06.2007, denied pension to him. It was the case of the Pension Department that, since the petitioner - respondent No.1 herein was regularised in service with effect from 01.10.2000 and having retired in the year 2007, he had not completed ten years of service and therefore, was not eligible for pension. Respondent No.1 therefore approached this Court. Page 2 of 7 Downloaded on : Sun Jun 30 16:32:47 IST 2019 C/LPA/1058/2019 ORDER
5. The learned Single Judge, considering the decision of the Division Bench of this Court rendered in Executive Engineer Panchayat (MAA & M) Department & Anr. v. Samudabhai Jyotibhai Bhedi & Anr. reported in 2017(4) GLR 2952, directed that respondent No.1 is entitled to pension and accordingly allowed the petition.
6. Ms.Harshal Pandya, learned advocate for the appellants, fairly submits that the appellants had, in fact, forwarded the pension papers to the Director of Pension and Provident Fund and but, for their opinion that respondent No.1 had not completed ten years of service, they were not in a position to pay pension.
7. Considering the reasonings advanced by learned Single Judge relying upon decision in the case of Executive Engineer Panchayat (MAA & M) Department & Anr. v. Samudabhai Jyotibhai Bhedi & Anr. (supra), what is evident is that after having been initially appointed in the year 1978, on termination of service in the year 1985, and having succeeded before the Labour Court and this Court, the services or respondent No.1 rendered from 1978 had to be clubbed with Page 3 of 7 Downloaded on : Sun Jun 30 16:32:47 IST 2019 C/LPA/1058/2019 ORDER the services from the date when he was regularized in the year 2000 for the purposes of pension. It will be worthwhile to quote the observations of the Division Bench in the case of Executive Engineer Panchayat (MAA & M) Department & Anr. v. Samudabhai Jyotibhai Bhedi & Anr. (supra), which learned Single Judge has quoted extensively in Paragraph 6.1 of the judgment which reads as under:
"6.1 Following observations and findings from Samudabhai Jyotibhai Bhedi (supra) are relevant to be noticed.
"6. As is well known, under Government Resolution dated 17.10.1988, the Government decided to grant benefits of regularization and permanency to daily rated workers who had completed more than 10 years of actual service prior to such date, of course subject to certain conditions. One of the clauses in the said Government Resolution was that the benefit of regularization would be available to those workmen who had completed more than 10 years of service considering the provisions of section 25B of the Industrial Disputes Act. They would get benefits of regular pay scale and other allowances, pension, gratuity, regular leaves etc. They would retire on crossing age of 60 years. That the period of regular service shall be pensionable.
7. This Government Resolution led to several Page 4 of 7 Downloaded on : Sun Jun 30 16:32:47 IST 2019 C/LPA/1058/2019 ORDER doubts. The Government itself therefore came up with a clarificatory circular dated 30.05.1989, in which, several queries which were likely to arise were clarified and answered. Clause-6 of this circular is crucial for our purpose. The question raised was that an employee who had put in more than 10 years of service as on 01.10.1988, would be granted the benefit of Government Resolution dated 17.10.1988. In that context, the doubt was whether for the purpose of pension, the past service of completed years prior to regularization would be considered or whether the pensionable service would be confined to the service put in by the employee after he is actually regularized. The answer to this query was that those employees who had put in more than 10 years of service as per Government Resolution dated 17.10.1988 would get the benefit of pension. For such purpose, those years during which the employee had fulfilled the provisions of section 25B of Industrial Disputes Act, such years would qualify for pensionary benefit.
8. Two things immediately emerge from this clarification. First is that the query raised was precisely what is the dispute before us and second is that the clarification of the Government was unambiguous and provided that every year during which the employee even prior to his regularization had put in continuous service by fulfilling the requirement of having worked for not less than 240 days as provided under section 25B of the Industrial Page 5 of 7 Downloaded on : Sun Jun 30 16:32:47 IST 2019 C/LPA/1058/2019 ORDER Disputes Act, would count towards qualifying service for pension. In view of the clarification by the government itself, there is no scope for any further debate. The petitioner was correct in contending that having put in more than 10 years of continuous service as a labourer in the past, he had a right to receive pension upon superannuation. This is precisely what the learned Single Judge has directed, further enabling the employer to verify as to in how many years he had put in such service and then to compute his pension."
8. We see no reason therefore to take a different view other than the one taken by learned Single Judge, obviously because the issue is concluded by the Division Bench of this Court in Executive Engineer Panchayat (MAA & M) Department & Anr. v. Samudabhai Jyotibhai Bhedi & Anr. (supra). Once having rendered service which was treated as continuous from the initial date of appointment in the year 1978, and respondent No.1 having retired in the year 2007, the Directorate of Pension and Provident Fund was in error in counting his service only from 01.12.2000 and not from 1978. The Directorate of Pension therefore clearly fell in error in not adhering to the principles enunciated in the case of Executive Engineer Panchayat (MAA & M) Department & Anr. v. Samudabhai Page 6 of 7 Downloaded on : Sun Jun 30 16:32:47 IST 2019 C/LPA/1058/2019 ORDER Jyotibhai Bhedi & Anr. (supra).
9. In view of the aforesaid, we see no reason to interfere with the directions issued by learned Single Judge in the petition. The appeal is therefore dismissed.
10. The appellants are expected to comply with the directions issued by learned Single Judge in Paragraph-9 of the order within a period of six weeks from the date of receipt of Writ of this order.
11. In view of dismissal of appeal, Civil Application for interim relief stands disposed of.
(ANANT S. DAVE, ACJ) (BIREN VAISHNAV, J) sunil Page 7 of 7 Downloaded on : Sun Jun 30 16:32:47 IST 2019