Gujarat High Court
Jaysukhlal Makanji Grach vs District Development Officer & on 16 September, 2016
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/7151/2003 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 7151 of 2003
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 the judgment ? NO
2 To be referred to the Reporter or not ?
NO
3 Whether their Lordships wish to see the fair copy of the
judgment ? NO
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of India
NO
or any order made thereunder ?
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JAYSUKHLAL MAKANJI GRACH....Petitioner(s)
Versus
DISTRICT DEVELOPMENT OFFICER & 1....Respondent(s)
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Appearance:
MR GM JOSHI, ADVOCATE for the Petitioner(s) No. 1
MR D M AHUJA, ADVOCATE for the Respondent(s) No. 2
MS ILA U VORA, ADVOCATE for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 1 - 2
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 16/09/2016
ORAL JUDGMENT
1 By this application under Article 227 of the Constitution of India, the applicant, a former employee of the Majevadi Gram Panchayat, calls Page 1 of 13 HC-NIC Page 1 of 13 Created On Wed Sep 21 02:03:58 IST 2016 C/SCA/7151/2003 JUDGMENT in question the legality and validity of the order dated 18th June 2002 passed by the Gujarat Civil Services Tribunal in the appeal No.401 of 1996.
2 It appears from the materials on record that the applicant herein joined the services of the Majevadi Gram Panchayat on 9th December 1963 as a "Octroi Clerk". The applicant was appointed by the Gram Panchayat by passing a resolution No.2 dated 2nd December 1963. After putting in five years of the initial service, his services were regularised and he was appointed as the "Octroi Clerk" on 1st May 1968 on long term basis. The applicant retired from service on 30th November 1993. At the time of his retirement, he was paid provident fund amount, but the claim of the applicant for pension and gratuity was declined.
3 Being dissatisfied, the applicant preferred the appeal No.401 of 1996 before the Tribunal. The Tribunal took the view that the appointment of the applicant by the Panchayat was irregular and he could not be said to be a panchayat employee under Section 203 of the Gujarat Panchayat Act.
4 Being dissatisfied, the applicant has come up with this application.
5 The following facts are not in dispute:
(i) The applicant was appointed by the Panchayat by passing a resolution in the year 1963.
(ii) In the year 1968, the services of the applicant were regularised.
(iii) The applicant retired from service in the year 1993.
(iv) At the time of the appointment of the applicant in the year Page 2 of 13 HC-NIC Page 2 of 13 Created On Wed Sep 21 02:03:58 IST 2016 C/SCA/7151/2003 JUDGMENT 1963, the Gram Panchayat Service (Classification and Recruitment) Rules, 1967 were not in force. There were no statutory rules, regulations governing the appointments in the panchayat service at the relevant point of time.
6 The issue whether the applicant is entitled to receive pension and gratuity after retirement as the Gram Panchayat employee is no longer res integra, in view 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 1st July 2016]. I had the occasion to consider the decision of the Supreme Court in the case of Harijan Paniben (supra) at length while deciding the Special Civil Application No.7684 of 2002 decided on 5th August 2016. This Court ruled as under:
3. "Mr. Mehta, the learned counsel appearing for the writ applicant submits that the issue raised in this writ application as regards the entitlement to claim pension and other retiral benefits is no longer res integra in view of the very recent pronouncement of the Supreme Court in the case of Harijan Paniben Dudabhai vs. State of Gujarat & Ors., Civil Appeal No.5441 of 2016, decided on 1st July, 2016. Let me quote the entire judgment 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 Page 3 of 13 HC-NIC Page 3 of 13 Created On Wed Sep 21 02:03:58 IST 2016 C/SCA/7151/2003 JUDGMENT 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 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 Page 4 of 13 HC-NIC Page 4 of 13 Created On Wed Sep 21 02:03:58 IST 2016 C/SCA/7151/2003 JUDGMENT 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 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.
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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 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 petitioners 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 petitioners 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 Keshay 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 Page 6 of 13 HC-NIC Page 6 of 13 Created On Wed Sep 21 02:03:58 IST 2016 C/SCA/7151/2003 JUDGMENT 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 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 Page 7 of 13 HC-NIC Page 7 of 13 Created On Wed Sep 21 02:03:58 IST 2016 C/SCA/7151/2003 JUDGMENT
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
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 Page 8 of 13 HC-NIC Page 8 of 13 Created On Wed Sep 21 02:03:58 IST 2016 C/SCA/7151/2003 JUDGMENT (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 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 Officers 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 Page 9 of 13 HC-NIC Page 9 of 13 Created On Wed Sep 21 02:03:58 IST 2016 C/SCA/7151/2003 JUDGMENT 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 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.
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20. All the appeals are allowed in the aforesaid terms without any order as to costs."
4. Indisputably, so far as the writ applicant is concerned, he was appointed in the year 1962, i.e., prior to coming into force the Gram Panchayat Service (Classification & Recruitment) Rules, 1967. In my view, the case of the writ applicant is covered by the findings of the Supreme Court as contained in para13 of the judgment referred to above.
5. At this stage, let me note the contention canvassed by Mr. Munshaw, the learned counsel appearing for the Panchayat. According to Mr. Munshaw, although the writ applicant was appointed by the Panchayat much prior to the coming into force of the Rules, 1967, yet there is nothing on record to show that he was appointed on any sanctioned post. According to him, the writ applicant was appointed by the Gram Panchayat on the basis of a simple resolution. No approval was sought for at any point of time of the District Panchayat in this regard. According to Mr. Munshaw, the writ applicant remained, for all times to come, an employee of the Gram Panchayat and, therefore, he is not entitled to receive any pension or retiral benefits from the State Government. If the Gram Panchayat has any scheme in this regard and is financially capable of paying pension and other retiral benefits, then the Panchayat may do so.
6. According to Mr. Munshaw, all throughout his service, the wages were paid by the Gram Panchayat and not from the grant of the State Government.
7. I am afraid, I am not in a position to accept the submissions of Mr. Munshaw. The authority concerned will have to take into consideration the judgment of the Supreme Court, which has been referred to above and pass appropriate orders in this regard at the earliest.
8. Mr. Munshaw has placed reliance on the decision of this Court in the case of Narsinh Bacha Thacker vs. State of Gujarat, 1998 (1) GLH 1022.
9. Mr. Goutam, the learned AGP appearing for the State has also opposed this writ application. According to Mr. Goutam, the fact remains that, at no point of time, the writ applicant was a member of the Panchayat service in terms of section 203 of the Panchayat Act.
10. As a result, this writ application succeeds to a certain extent. The Panchayat shall prepare a fresh proposal in this regard keeping in mind the mandate of the Supreme Court and forward the same to the State Government within a period of four weeks from the date of the receipt of the writ of the order. The State Government, on receipt of such proposal, Page 11 of 13 HC-NIC Page 11 of 13 Created On Wed Sep 21 02:03:58 IST 2016 C/SCA/7151/2003 JUDGMENT shall, within eight weeks thereafter, take an appropriate decision in accordance with law keeping in mind the observations made by this Court. The decision shall be in writing and the same shall be communicated to the writ applicant. While taking the appropriate decision, the State shall also keep in mind that all throughout, from the salary of the writ applicant, a particular amount towards the provident fund was being deducted. In this regard, the State shall consider a Division Benchs decision of this Court in the case of Chief Officer vs. Mohmad Irshad Husenbhai Baloch & Ors. 2011 (I) GCD 569."
7 Thus, the law as on date is wellsettled. The Division Bench decision of this Court in the case of Chorvad Gram Panchayat vs. Ramniklal Dahrshi Shah [Letters Patent Appeal No.1381 of 2004 and allied matters decided on 2nd July 2009] is no longer a good law. One additional factor, so far as the case in hand is concerned, is that the applicant was appointed much prior to coming the Recruitment Rules of 1967 into force. In such circumstances, the Division Bench of the Supreme Court in the case of Harijan Paniben (supra) will apply in toto.
8 In view of the above, this application succeeds and is hereby allowed. The impugned order passed by the Tribunal is hereby quashed. The District Development Officer, District Panchayat Junagadh is directed to immediately prepare an appropriate proposal for the pensionary benefits and gratuity, keeping in mind the decision of the Supreme Court and other observations made by this Court and forward the same to the State Government for appropriate orders. The District Development Officer, Junagadh shall undertake the entire exercise at the earliest and see to it that the proposal is forwarded within a period of four weeks from the date of receipt of this order and the Government shall consider the proposal in accordance with law within a period of one month on receipt of such proposal and pass appropriate orders. Rule is made absolute. Direct service is permitted.
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