Gujarat High Court
Girishbhai Jivrajbhai Dave vs Bhavnagar Municipal Corporation & ... on 11 July, 2017
Author: K.M.Thaker
Bench: K.M.Thaker
C/MCA/1706/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
MISC. CIVIL APPLICATION (FOR REVIEW) NO. 1706 of 2017
In SPECIAL CIVIL APPLICATION NO. 13928 of 2011
GIRISHBHAI JIVRAJBHAI DAVE....Applicant(s)
Versus
BHAVNAGAR MUNICIPAL CORPORATION & 1....Opponent(s)
Appearance:
MR YV SHAH, ADVOCATE for the Applicant(s) No. 1
MR VR JANI AGP for the Opponent(s) No. 2
MR HS MUNSHAW, ADVOCATE for the Opponent(s) No. 1
CORAM: HONOURABLE MR.JUSTICE K.M.THAKER
Date : 11/07/2017
ORAL ORDER
Heard Mr. Shah, learned advocate for the applicant, Mr. Munshaw, learned advocate for the opponent No.1, and Mr. Jani, learned AGP for the opponent No.2.
2. In present application, the applicant has prayed, inter alia, that: "9(A) Be pleased to review/clarify in the oral judgment dated 5.6.2017 given by the Honourable Court in the aforesaid Special Civil Application No.13928 of 2011 Ann: A and be pleased to award high rate of interest towards the arrears of pension that may be payable to the petitioner after about more than 17 years for withholding proper pension at the proper rate, in the interest of justice."
3. This application is taken out in connection with judgment dated 5.6.2017 rendered in Special Civil Application No.13928 of 2011.
Page 1 HC-NIC Page 1 of 9 Created On Sun Aug 20 15:55:24 IST 2017 C/MCA/1706/2017 ORDER The subject matter of the said writ petition (i.e. Special Civil Application No.13928 of 2011) is reproduced in paragraph No.3 of the said judgment, which reads thus: "3. So far as factual background is concerned, the petitioner has averred and stated that:
2. The facts of the case of the Petitioner for the purpose of the present Special Civil Application in brief are that, the Petitioner was initially recruited as daily wager Time Keeper with effect from 22.11.1958 and thereafter was appointed as Jr. Clerk with effect from 7.10.1961 and thereafter as he was fully qualified and as his work was satisfactory, he was promoted as Inspector with effect from 1.4.1974 and thereafter further promoted as Superintendent with effect from 2.5.1986 and thereafter further promoted as Asst. Commissioner of the respondent corporation with effect from 23.11.1997 subject to sanction of the General Board of the Corporation and sanction of State Government.
A copy of promotion given to the petitioner as Asst. Commissioner is annexed here to and marked as Annexure A. A copy of General Board Resolution No.34 Dt.24.8.1999 passed by the Respondent Corporation confirming the promotion of the petitioner is annexed here to at Annexure A A copy of sanction by the State Govt. promoting the petitioner as Asst. Commissioner is annexed here to and marked as Annexure B A copy of order of regularising the promotion of the petitioner as Asst. Commissioner is annexed here and marked as Annexure C
3. That the petitioner has been given salary for the last Ten months before the date of his retirement and monthly pension payable to the petitioner @ of Rs.5790 statement is annexed here to and marked as Annexure D That the Chief Account Officer of the respondent corporation under his statement prepared for the payment of monthly pension is also of Rs.5790/ A copy of statement for monthly pension payable to the petitioner prepared by the Chief Account Officer is annexed here and marked as Annexure E Page 2 HC-NIC Page 2 of 9 Created On Sun Aug 20 15:55:24 IST 2017 C/MCA/1706/2017 ORDER
4. The petitioner states that the respondent Commissioner has also fixed monthly pension payable to the petitioner is also Rs.5790/ A copy of Office Orders Dtd.29.12.1999 passed by the respondent Commissioner is annexed here to and marked as Annexure F.
5. The petitioner further states that subsequently by order Dtd. 7.4.2000 his monthly pension is fixed and reduced from Rs. 5790/ to @ Rs. 5609/ per month without any justifiable legal reasons and by withholding payment of Rs.181 p.m. less pension each and every month from the date of his retirement is paid, eventhough the post and promotion of the petitioner as Asst. Commissioner is sanctioned by the General Board of the respondent Corporation and State Government. As the sanction of the State Government was not available at the time of retirement, pension was fixed as if petitioner retired on the lower post of Superintendent. A copy of Order is annexed hereto and marked as Annexure : G.
6. That therefore the petitioner having Fundamental Rights to get proper monthly pension @ Rs.5709 PM and paid less amount of Rs.181 PM, the petitioner had severally requested the respondent from time to time and by written representations Dtd.6.1.2003, 9.7.2003, 11.9.2008 and 9.8.2011 to revise pension, but the respondent has neglected to decide the same and petitioner gets Rs.181 less amount of pension each and every month from the date of his retirement without any justifiable valid reasons for his no fault. That the petitioner states that when his promotion is confirmed by the General Board of the respondent and State Govt. has also sanctioned his promotions, he ought to have been given proper pensions @ Rs.5790 and not Rs.5609 for each and every month from the date of his retirement. That the petitioner has not committed any such misconduct to reduce his pensions at the lower rate. That once pension is fixed @ Rs.5709 PM, it cannot be with held and punished the petitioner without due process of Law. That the petitioner is aged above 70 years old and he is senior citizen and has fundamental right to get the proper amount of pension. That the respondent corporation as per usual habit has neglected to decide the representations filed by the petitioner without the order of the Hon'ble Court and, petitioner will not be paid proper pension. Thus the impugned action of the respondent corporation of not giving the petitioner pension @ RS.5790 as per Annexure E and F is violating to the Fundamental rights of the petitioner guaranteed under article 14,16, and 21 of the Constitution of India.
7. That the petitioner submits that when Chief account Page 3 HC-NIC Page 3 of 9 Created On Sun Aug 20 15:55:24 IST 2017 C/MCA/1706/2017 ORDER Officer of the respondent Corporation at Annexure E and respondent Commissioner at Annexure F has fixed the pension of the petitioner payable at the rate of Rs.5790 p.m. and promotion of the petitioner is confirmed by the General Board and State Govt. ,there is no valid reasons for the corporation to withhold Rs.181 pm. and to pay less amount each and every month The cause of action for the petitioner to get proper pension as per Annexure E and F @ Rs.5790 p.m. continues and arises each and every month and respondent corporation has neglected to decide the representations filed by the petitioner at Annexure H collectively. Thus the impugned actions of the respondent corporation of withholding 181 Rs. P.M is arbitrary and illegal after the continuous service of 41 years.
The petitioner is aggrieved by the decision and action of the respondent of reducing pension."
3.1 In above mentioned background, the applicant
- petitioner prayed in the petition that: "13(A) Be pleased to issue an appropriate writ, direction petition and/or order by directing the respondent Municipal Corporation to revise and to pay monthly retirement pensions as per statement prepared by the Chief Accountant Officer at Annexure E and Office order passed by the respondent Commissioner at Annexure F and to release the amount of Arrears of difference of pension @ 181 p.m. withheld from the date of retirement with interest and cost, particularly when promotion of petitioner is confirmed by the General Board at Annexure A and subsequently sanctioned by the State Govt. at Annexure B."
4. From the relief prayed for by the petitioner in the writ petition, it emerges that the petitioner was aggrieved by short payment of amount payable towards pension/delay in payment of pension amount.
In light of factual background, the petitioner prayed for payment of difference of pension amount alongwith interest and cost.
Page 4 HC-NIC Page 4 of 9 Created On Sun Aug 20 15:55:24 IST 2017 C/MCA/1706/2017 ORDER
5. At the time of hearing of said writ petition, apart from merits of the case, learned advocate for the petitioner - present applicant also contended that, a case involving similar set of facts and circumstances was already decided by this Court, i.e. Special Civil Application No.3790 of 2010.
The petitioner, therefore, prayed for parity. The learned advocate for the petitioner in the writ petition also contended that the decision by learned Single Judge in said other petition was confirmed by Division Bench in Letters Patent Appeal.
6. Having regard to the facts and circumstances of Special Civil Application No.13928 of 2011 and also having regard to the judgment in said other petition i.e. Special Civil Application No.3790 of 2010, this Court decided Special Civil Application No.13928 of 2011 vide judgment dated 5.6.2017.
7. By the judgment dated 5.6.2017, this Court quashed the order dated 7.4.2000 passed by present opponent against present applicant and this Court also restored original pension amount i.e. Rs.5,790/.
This Court also directed the respondents to pay difference amount / arrears within eight Page 5 HC-NIC Page 5 of 9 Created On Sun Aug 20 15:55:24 IST 2017 C/MCA/1706/2017 ORDER weeks from receipt of certified copy of the order.
In paragraph Nos.10 to 11.2 of the said judgment, this Court held and observed that: "10. As mentioned above, there is nothing on record to distinguish the case of the petitioner from the case of person concerned in Letters Patent Appeal No.720 of 2017.
Besides this, even otherwise, having regard to the fact that the petitioner was promoted to the post of Assistant Commissioner in 1997 and he worked on the said post for almost 2 years (i.e. until he reached the age of superannuation in November 1999) and during that period, he received salary of said post and case for almost 2 years. In this background and in light of the fact that the Government sanctioned said post in July 2000 and promotion of the petitioner was also regularized on 29.7.2000, there is no justification to accept the respondent's submission that the petitioner's case would not be covered by the provision under Rule 43 of GCS (Pension) Rules, 2002.
11. In this view of the matter, the petition deserves to be allowed and is allowed.
11.1 The order dated 7.4.2000 is setaside and original/initial order fixing pension @ Rs.5,790/ is restored.
11.2 If the respondent has actually withheld any amount or recovered any amount on the basis of order reducing pension, then, such difference/arrears should be paid within eight weeks from receipt of certified copy of this order."
8. Now, the applicant - original petitioner has taken out present application with above mentioned relief.
9. At the time of hearing of this application, learned advocate for the applicant submitted that, inadvertently, the direction for payment of interest is not mentioned in the judgment dated Page 6 HC-NIC Page 6 of 9 Created On Sun Aug 20 15:55:24 IST 2017 C/MCA/1706/2017 ORDER 5.6.2017.
10. Mr. Munshaw, learned counsel for the opponent, fairly submitted that this Court may pass order as considered appropriate in light of the facts of the case.
11. It is clear from the judgment dated 5.6.2017 that this Court, after examining rival contentions of both sides, found that the order dated 7.4.2000 passed by the respondent was unjustified and deserved to be set aside.
Consequently, the said order dated 7.4.2000 came to be quashed.
By virtue of said order dated 7.4.2000, the respondents had reduced pension amount of the petitioner.
Originally the competent authority had quantified and sanctioned Rs.5,790/ towards pension.
However, subsequently, the respondents modified the pension order and reduced petitioner's pension to Rs.5,609/.
The petitioner challenged the said decision. This Court found substance in the claim of the petitioner and therefore, the Court restored the original sanctioned amount of Rs.5,790/.
The Court also directed the respondents to pay difference/arrears.
Page 7 HC-NIC Page 7 of 9 Created On Sun Aug 20 15:55:24 IST 2017 C/MCA/1706/2017 ORDER Since this Court found impugned order unjust and unsustainable, the claim for interest deserved to be granted.
In this background, learned advocate for the petitioner is right and justified in his contention that inadvertently, in the judgment dated 5.6.2017 any direction with regard to interest is not mentioned.
When the Court granted interest in similar case i.e. in Special Civil Application No.3790 of 2017, there would not be any justification to deny the claim for interest to present applicant.
12. Therefore, the judgment dated 5.6.2017 is modified and following order is passed: 12.1 Office is directed to add following subpara in paragraph No.11.1 in the judgment dated 5.6.2009.
"The petitioner is also considered eligible for simple interest at the rate of 6% p.a."
12.2 Office is also directed to add below mentioned words in fourth line of paragraph No.11.2 of the judgment dated 5.6.2017.
"with interest at 6%"
The said words shall be added after the words Page 8 HC-NIC Page 8 of 9 Created On Sun Aug 20 15:55:24 IST 2017 C/MCA/1706/2017 ORDER "difference/arrears" and before the word "should"
12.3 The above mentioned changes shall be incorporated in the judgment dated 5.6.2017 and office shall issue fresh certified copy of the judgment dated 5.6.2017 to the concerned parties.
12.4 The respondents shall comply the said direction within four weeks from receipt of certified copy of this order.
Accordingly, present application stands disposed of.
Sd/-
(K.M.THAKER, J.) kdc Page 9 HC-NIC Page 9 of 9 Created On Sun Aug 20 15:55:24 IST 2017