Gujarat High Court
District Development Officer vs Kamlaben Naranbhai Mehta on 24 December, 2020
Author: Vikram Nath
Bench: Vikram Nath, J.B.Pardiwala
C/LPA/81/2020 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 81 of 2020
In R/SPECIAL CIVIL APPLICATION NO. 11012 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MR. VIKRAM NATH Sd/
and
HONOURABLE MR. JUSTICE J.B.PARDIWALA Sd/
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1 Whether Reporters of Local Papers may be allowed YES
to see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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DISTRICT DEVELOPMENT OFFICER
Versus
KAMLABEN NARANBHAI MEHTA
================================================================
Appearance:
MR HS MUNSHAW(495) for the Appellant(s) No. 1
ADVANCE COPY SERVED TO GOVERNMENT PLEADER/PP(99) for the
Respondent(s) No. 2
MR MAYUR S BAROT(1637) for the Respondent(s) No. 1,1.1,1.2
NOTICE SERVED(4) for the Respondent(s) No. 3
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CORAM: HONOURABLE THE CHIEF JUSTICE MR. VIKRAM NATH
and
HONOURABLE MR. JUSTICE J.B.PARDIWALA
Date : 24/12/2020
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C/LPA/81/2020 CAV JUDGMENT
CAV JUDGMENT
(PER : HONOURABLE MR. JUSTICE J.B.PARDIWALA)
1. This Appeal under Clause 15 of the Letters Patent is at the instance of an unsuccessful respondent of a writ-application and is directed against the judgment and order passed by a learned Single Judge of this Court dated 15th October 2019 in the Special Civil Application No.11012 of 2015, by which the learned Single Judge allowed the writ-application filed by the respondent no.1 herein (original writ-applicant) declaring that the writ-applicant is entitled to draw pension.
2. The facts giving rise to this Appeal may be summarised as under :
3. The original writ-applicant (since deceased) came before this High Court by filing the Special Civil Application No.11012 of 2015, praying for the following reliefs :
"(B) Direct the respondent authorities to recalculate and pay pension to the petitioner on the basis of the entire services rendered by the petitioner from the year 1968 till the date of her retirement, 31.5.1998 by considering the condition incorporated in the order dated 20/21,7.1989 as unjust, improper and violative of Articles 14, 16 and 21 of the Constitution of India and also direct the respondents to revise the pension of the petitioner on the basis of entire service period of service and pay arrears thereof to the petitioner with reasonable rate of interest as may be considered proper by this Hon'ble Court in the facts and circumstances of the case."Page 2 of 70 Downloaded on : Fri Dec 25 17:14:12 IST 2020 C/LPA/81/2020 CAV JUDGMENT
4. It appears from the materials on record that the original writ-applicant was appointed as "Aya" (Ward-maid) in the clinic run by the Dhasa Visi Gram Panchayat vide the appointment order dated 3rd February 1968 on the monthly salary of Rs.112/-. It was made clear in the appointment order that the service would be subject to the rules of Grant-in-Aid Institutes and also that may be framed by the Panchayat time to time. Later, the writ-applicant was absorbed in the Primary Health Centre run by the Dhasa Visi Gram Panchayat vide the Resolution dated 29th April 1989 along with the other employees. The writ-applicant retired on 28 th May 1998 upon reaching the age of superannuation.
5. It appears that as the writ-applicant was not paid the amount towards the provident fund and gratuity for the total service of 30 years rendered by her, she had to approach the Controlling Authority by filing an application with a prayer to sanction the gratuity for the entire service rendered by her between 1968 and 1998. The Controlling Authority passed an order under Section 7(4) of the Payment of Gratuity Act, 1962, dated 17th April 2001, directing the respondents to pay the provident fund and the gratuity for the entire service period, i.e. from 3rd June 1968 to 31st May 1998. The order passed by the Controlling Authority was challenged by the appellant herein by filing the Special Civil Application No.2799 of 2004. However, the challenge failed with the writ-application filed by the appellant being rejected vide the order dated 18th July 2014.
6. The writ-applicant thereafter requested the respondents to sanction pension in her favour in accordance with law. The respondents declined to sanction pension on the ground that she Page 3 of 70 Downloaded on : Fri Dec 25 17:14:12 IST 2020 C/LPA/81/2020 CAV JUDGMENT had not completed 10 years of service in the Primary Health Centre. In other words, the respondents took the stance that the writ-applicant came to be absorbed in the Primary Health Centre from 29th April 1989 and retired before completing 10 years of actual service.
7. In such circumstances referred to above, the writ-applicant had to come before this Court by filing the Special Civil Application No.11012 of 2015. The learned Single Judge adjudicated the writ-application and ultimately arrived at the conclusion that the writ-applicant is entitled to draw pension. We may quote few relevant observations made by the learned Single Judge in his impugned judgment and order as under :
"7. Per contra, learned advocate Mr.H.S.Munshaw appearing for the respondent no.2-District Development Officer has submitted that the petitioner is not entitled to any pension as she was not appointed as per the Recruitment Rules. He has submitted that the service period rendered by the petitioner commencing from 29.04.1989 to 31.05.1998 is not required to be considered as qualified service for pension since she has not completed 10 years of service and had worked for 8 years and 10 months. He has also submitted that the petitioner is not entitled to any pension as she has belatedly approached this Court by filing the present writ petition though she has retired in the year 1998. He has further submitted that as per the conditions incorporated in the resolution dated 29.04.1989, and her absorption order dated 20/21.07.1989 her prior service rendered before the Dhasa Visi Gram Panchayat is Page 4 of 70 Downloaded on : Fri Dec 25 17:14:12 IST 2020 C/LPA/81/2020 CAV JUDGMENT not required to be considered for pension.
8. Learned AGP Mr.Swapneshwar Goutam has adopted the submissions advanced by the learned advocate Mr.Munshaw and submitted that since the petitioner has not completed 10 years of service, she is not entitled for pension. It is also stated that the writ petition is liable to be repealed on the ground of delay as the petitioner has approached this Court belatedly claiming pension.
9.....
10. The facts, which are established from the petition, are that the petitioner joined the service on 03.06.1968 and the appointment order reveals that her service are governed by the provisions of the grant-in-aid rules and the rules issued by the Panchayat from time to time. The petitioner was thereafter absorbed in the Primary Health Center vide Resolution dated 29.04.1989 passed by the State Government with a condition that her service will not be governed for the purpose of pension, seniority, leave etc. Pursuant to the same the District Panchayat passed an order dated 20/21.07.1989 appointing her in the pay scale of Rs.750- 940. The said order reveals that her appointment is made afresh. The aforesaid resolution dated 29.04.1989 contains a specific condition that her prior service will not be counted. Since the petitioner was not paid the gratuity by considering total 30 years of service, she has filed Application No.14 of 2000 before the Controlling Authority under the provisions of Payment of Gratuity Act, 1972. By the order dated 17.04.2001, the Controlling Authority after Page 5 of 70 Downloaded on : Fri Dec 25 17:14:12 IST 2020 C/LPA/81/2020 CAV JUDGMENT considering the aforesaid resolution dated 29.04.1989, by which the petitioner was absorbed in the Primary Health Center, held that the conditions incorporated in the said order are dehors the provisions of the Payment and Gratuity Act, 1972 and thereafter, the respondents are directed to pay the gratuity by calculating 30 years of service from the initial date of appointment i.e. 03.06.1968 till she retired.
11. The aforesaid order passed by the Controlling Authority was challenged by the respondents before the Division Bench of this Court by filing Special Civil Application No.2799 of 2004, which was dismissed by the Division Bench vide judgment and order dated 18.07.2014.
12. Thus, the finding of the Controlling Authority treating the entire period of 30 years of the petitioner for the purpose of gratuity of service was confirmed by the Division Bench. The Controlling Authority also specifically held that the conditions specified in the resolution dated 29.04.1989 absorbing the petitioner are illegal and contrary to the statute. Thus, once the aforesaid findings of the Controlling Authority have become final, it is not open for the respondent authorities to deny the pension on the basis of 30 years of service rendered by the petitioner. Even if the petitioner has accepted the aforesaid order of her fresh appointment, she cannot be denied pension, which is available under the statutory rules being Bombay Civil Services Rules, 1959.
13. It is pertinent to note that after considering the order passed by the Division Bench, the petitioner has filed the Page 6 of 70 Downloaded on : Fri Dec 25 17:14:12 IST 2020 C/LPA/81/2020 CAV JUDGMENT present writ petition claiming the pension. The contentions raised by the respondent no.2 that the petition is liable to be rejected on the ground of delay does not merit acceptance since the non-payment of pension, results into a fresh cause of action every month when pension is denied to an employee.
14. The Division Bench in the case of Chandubhai Chhotabhai Patel & Ors. (supra) while considering the cases of those employees of the Panchayat, who were appointed prior to the prior to the promulgation of Gujarat Panchayats Act, 1961, w.e.f. 01.04.1963 has directed the State Government to grant pension. Such employees were denied pension on the ground that they were not working on the sanctioned post and their appointment was not made as per recruitment Rules. The Division Bench after examining the provision of Section 203 of the Gujarat Panchayats Act, 1961 has observed thus:
"11....
(F) Referring to the decision in the case of G.L.Shukla (supra) reaffirmed in R. K. Soni (supra), the inevitable conclusion that is culled out is that the State is the master. Panchayat Service is a distinct and separate service set up for serving the Panchayat Organization of the State and it is as much a civil service of the State as the State Service. The State can have many services such as State Service, Police Service, Engineering Service etc. and Panchayat Service is one of them. In the Panchayat Service, as in the State Service, the State is the master and every officer or Page 7 of 70 Downloaded on : Fri Dec 25 17:14:12 IST 2020 C/LPA/81/2020 CAV JUDGMENT servant employed in the Panchayat Service is the servant of the State and not of the Panchayat under which he may be serving for the time being. The Panchayat Service is one single service with the State as the master.
12. Accordingly, we hold that the objections of the State and the Panchayat Authorities in the appeals on their behalf of denying the pensionary benefits to the Respondent amount to setting at nought an established and a settled principle of law as decided in the case of R.K.Soni (supra). The Respondent who served the Gram Panchayat is entitled to be granted pensionary benefits like pension and gratuity and other benefits that go hand in hand with the terminal benefits available to any other employee of the State who so retires. The appellants are, therefore, directed to pay the pensionary benefits to the employee within a period of eight weeks from today. The Division Bench has held that the employees of the Panchayat service are the employees of the State and hence, they are entitled to pension and gratuity."
15. In the present case, the petitioner was appointed on 03.02.1968 by the Gram Panchayat as Aya (Ward-maid) and thereafter, she was absorbed by the resolution dated 29.04.1989 as a Class-IV servant in the pay-scale of Rs.750-940. The petitioner retired in the year 1998 and is governed by the provisions of the Bombay Civil Services Rules, 1959 (for short 'the Rules). Rule 234 of the Rules, which reads as under:
Page 8 of 70 Downloaded on : Fri Dec 25 17:14:12 IST 2020 C/LPA/81/2020 CAV JUDGMENT"234. A Government servant employed on a fixed establishment which is paid by piece-work may be treated as in pensionable service (I) if he is employed not casually but as a member of a fixed establishment, and (ii) if during the last 72 months of his actual employment he has been attached to one office uninterruptedly for 24 months or it has not been through his own choice or misconduct that he has not been so attached."
16. In the present case, the appointment of the petitioner made in the year 1968 would satisfy the provisions of the aforesaid Rule 234 as she was appointed in a fixed establishment and she worked continuously till 1989 when she was absorbed in the Primary Health Center. Her service rendered in the Gram Panchayat cannot be washed away on the basis of subsequent resolution absorbing her in the Primary Health Center. The petitioner was not in a position to bargain with the State about the conditions incorporated in her absorption order to the effect that her earlier service may not be ignored for the purpose of pension. The "State" being a model employer cannot snatch away the right of an employee by incorporating the conditions which are contrary to the statute. The Controlling Authority, while directing the authorities to grant gratuity for the entire service of 30 years, has precisely held that the conditions incorporated in the resolution and the absorption order are contrary to the statute. It is no more res integra that the fundamental and statutory rights cannot be waived.
Page 9 of 70 Downloaded on : Fri Dec 25 17:14:12 IST 2020 C/LPA/81/2020 CAV JUDGMENT17. The petitioner has passed away during the pendency of the petition with a hope that she would be paid pension. In this view of the matter, the present writ petition succeeds with cost of Rs.10,000/- imposed upon the respondent authorities. The respondents are hereby directed to confer the pension to the legal heirs of the deceased petitioner treating her service as continuous since 1968 till she reached at the age of superannuation. Necessary orders in terms of the directions issued by this Court shall be passed within a period of 08 (eight) weeks from the date of receipt of the writ of this order. "
8. Thus, the learned Single Judge, while holding that the writ-applicant is entitled to draw pension, took into consideration the following aspects :
(1) The Controlling Authority, vide its order dated 17 th April 2001 passed under Section 7(4) of the Payment of Gratuity Act, 1972, held that the writ-applicant shall be paid the provident fund and the gratuity for the entire service period, i.e. from 3rd June 1968 to 31st May 1998.
This Court, in the challenge to such order passed by the Controlling Authority, by the appellant herein, affirmed the order passed by the Controlling Authority.
(2) The writ-applicant had joined the service with effect from 3rd June 1968 and the appointment order made it clear that her service would be governed by the provisions of the Grant-in-Aid Rules and the Rules that may be framed by the Panchayat from time to time.
Page 10 of 70 Downloaded on : Fri Dec 25 17:14:12 IST 2020 C/LPA/81/2020 CAV JUDGMENT(3) The Controlling Authority, while passing the order for payment of the provident fund and the gratuity, held that the conditions specified in the Resolution dated 29 th April 1989 while absorbing the writ-applicant could be termed as illegal and contrary to the statute.
According to the learned Single Judge, such findings recorded by the Controlling Authority having been affirmed by this Court, it would not be open for the respondents now to deny pension on the ground that the appointment in the year 1989 was a fresh appointment and the entire service period cannot be clubbed or counted for the purpose of pension.
(4) Even if it is believed that the writ-applicant accepted the order as a fresh appointment in the year 1989, she could not have been denied pension which, she is otherwise entitled to draw under the Bombay Civil Services Rules, 1959.
9. The learned Single Judge has placed significant reliance on the decision of this Court in the case of State of Gujarat v. Chandubhai Chhotabhai Patel and others, (2018)3 GLR 2658. Chandubhai Chhotabhai Patel (supra) has referred to and relied upon the decision of the Supreme Court in the case of State of Gujarat v. Ramanbhai Soni, AIR 1984 SC 161. The learned Single Judge, by placing reliance on the decision of this Court in the case of Chandubhai Chhotabhai Patel (supra), has taken the view that in the Panchayat Service, as in the State Service, the State is the master and every officer or servant employed in the Page 11 of 70 Downloaded on : Fri Dec 25 17:14:12 IST 2020 C/LPA/81/2020 CAV JUDGMENT Panchayat Service is the servant of the State and not of the Panchayat under which he may be serving for the time being. The Panchayat Service is one single service with the State as the master. The learned Single Judge took into consideration Rule 234 of the Bombay Civil Services Rules, 1959, for the purpose of taking the view that the writ-applicant is entitled to draw pension. The services rendered by the writ-applicant in the Gram Panchayat cannot be ignored or done away with on the basis of the subsequent resolution absorbing the writ-applicant in the Primary Health Centre. The writ-applicant, being an illiterate rustic lady, could not have bargained with the State as regards the conditions to be incorporated in her order of absorption. She could not have incurred the risk of entering into confrontation with the concerned authorities asserting that her earlier service should not be ignored for the purpose of pension. The 'State', being a model employer, cannot deprive an employee of his/her legitimate right to draw pension by incorporating conditions in the appointment order contrary to the statute.
10. The appellant, being dissatisfied with the impugned judgment and order passed by the learned Single Judge, is here before this Court with the present Appeal.
SUBMISSIONS ON BEHALF OF THE APPELLANT :
11. Mr.Munshaw, the learned counsel appearing for the appellant, vehemently submitted that the learned Single Judge committed a serious error in passing the impugned order by placing reliance on the decision of the Supreme Court rendered in the case of Ramanbhai K.Soni (supra) and also the decision of Page 12 of 70 Downloaded on : Fri Dec 25 17:14:12 IST 2020 C/LPA/81/2020 CAV JUDGMENT this Court rendered in the case of Chandubhai Chhotabhai Patel (supra).
12. Mr.Munshaw has altogether a new point to canvas before us. According to Mr.Munshaw, the writ-applicant was appointed by the DVGP as a Ward-maid in the clinic run by the Gram Panchayat. According to Mr.Munshaw, the writ-applicant was an employee of the Gram Panchayat and was being paid salary by the Gram Panchayat from its own funds. According to Mr.Munshaw, the State of Gujarat never funded the Gram Panchayat for the purpose of paying salary to its employees. In such circumstances, according to Mr.Munshaw, the writ-applicant could not be said to have rendered Panchayat Service.
13. Mr.Munshaw, in the aforesaid context, further argued that the learned Single Judge failed to consider the provisions of the Gujarat Civil Services (Pension) Rules, 2002, including the provisions of the Gujarat Panchayats Act, 1993, more particularly, Section 203 of the Act. The main bone of contention of Mr.Munshaw is that the writ-applicant could be said to have become a Panchayat servant in accordance with the provisions of the Act, 1963, only with effect from 29th April 1989. If she would have completed 10 years of service, then she would have been entitled to draw pension in accordance with the Pension Rules, 2002, with effect from 29th April 1989 only. In short, the principal argument of Mr.Munshaw is that the entire service of the writ-applicant from 1968 till 1989, i.e. the point of time when she came to be absorbed in the Primary Health Centre, cannot counted, and once such period of service is ignored, then having Page 13 of 70 Downloaded on : Fri Dec 25 17:14:12 IST 2020 C/LPA/81/2020 CAV JUDGMENT not completed 10 years of service from 1989 onwards, she is not entitled to draw pension.
14. Mr.Munshaw submitted that in the case of Chandubhai Chhotabhai Patel (supra), the concerned employee was appointed prior to the promulgation of the Gujarat Panchayats Act, 1961, with effect from 1.4.1963, whereas in the case on hand, the writ-applicant was appointed by the Gram Panchayat in the year 1968. She remained an employee of the Gram Panchayat and could be said to have been taken up in the regular establishment by the Government of Gujarat only through the Government Resolution dated 29.4.1989. According to Mr.Munshaw, the writ-applicant could be said to have been placed in the regular pay-scale of Rs.750-940 only from 1989. Mr.Munshaw, in support of his afore-noted submissions, has placed reliance on the following judgments :
(1) Special Civil Application No.354 of 2004, Order dated
15.7.2004;
(2) Letters Patent Appeal No.1522 of 2004 in the Special Civil Application No.354 of 2004, decided on 2.7.2009;
(3) Letters Patent Appeal No.1099 of 2016 in the Special Civil Application No.3422 of 2010, decided on 27.1.2017;
(4) Special Civil Application No.1634 of 1995, Judgment dated 23.6.2016;
(5) Letters Patent Appeal No.1060 of 1998 in the Special Page 14 of 70 Downloaded on : Fri Dec 25 17:14:12 IST 2020 C/LPA/81/2020 CAV JUDGMENT Civil Application No.8725 of 1993, decided on 20.1.2014.
15. In such circumstances referred to above, Mr.Munshaw prays that there being merit in his appeal, the same may be allowed and the impugned order passed by the learned Single Judge may be set-aside.
SUBMISSIONS ON BEHALF OF THE RESPONDENT NO.1 (ORIGINAL WRIT-APPLICANT) :
16. On the other hand, this Appeal has been vehemently opposed by Mr.Mayur Barot, the learned counsel appearing for the original writ-applicant. Mr.Barot would submit that no error, not to speak of any error of law, could be said to have been committed by the learned Single Judge in passing the impugned judgment and order. According to Mr.Barot, the learned Single Judge has applied the correct principles of law in arriving at the conclusion that the writ-applicant is entitled to draw pension. According to Mr.Barot, the services of his client from 1968 to 1989 cannot be ignored or overlooked as asserted by the learned counsel appearing for the appellant. Mr.Barot, in support of his submissions, has placed reliance on the following decisions :
(1) State of Gujarat v. Chandubhai Chhotabhai Patel and others, (2018)3 GLR 2658;
(2) State of Gujarat and another v. Raman Lal Keshav Lal Soni and others, AIR 1984 SC 161;
(3) Harijan Paniben Dudabhai v. State of Gujarat and others, (2016)12 SCC 801;Page 15 of 70 Downloaded on : Fri Dec 25 17:14:12 IST 2020 C/LPA/81/2020 CAV JUDGMENT
(4) G.L.Shukla and another v. State of Gujarat and others, (1967) GLR 833.
17. In such circumstances referred to above, Mr.Barot, the learned counsel prays that there being no merit in this Appeal, the same may be dismissed.
ANALYSIS :
18. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the following questions fall for our consideration :
(1) Whether the learned Single Judge could be said to have committed any error of law in passing the impugned judgment and order ?
(2) Whether the services rendered by the writ-applicant as an employee of the Gram Panchayat between 1968 and 1989 should be ignored or excluded from consideration for the purpose of pension on the ground that the writ-applicant could be said to have been taken up in the regular establishment of the Government of Gujarat only through the Government Resolution dated 29th April 1989 ?
(3) Whether the services rendered by the writ-applicant with the Gram Panchayat would fall within the ambit of the 'Panchayat Service' ?Page 16 of 70 Downloaded on : Fri Dec 25 17:14:12 IST 2020 C/LPA/81/2020 CAV JUDGMENT
(4) Whether Section 203 of the Act, 1961, has any role to play in the present litigation, more particularly, having regard to the facts of this case ? In other words, whether the appointment of the writ-applicant made by the Sarpanch of the Gram Panchayat in the year 1968 could be termed as valid and in accordance with the provisions of Section 203 of the Act, 1961, and the Rules therein ?
19. We go straight to the Division Bench decision of this Court in the case of Chandubhai Chhotabhai Patel (supra), upon which significant reliance has been placed by the learned Single Judge while allowing the writ-application and also by the learned counsel appearing for the writ-applicant.
20. We take notice of the facts in Chandubhai Chhotabhai Patel's case (supra). The petitioner, namely Chandubhai, was appointed as an Octroi Clerk in October 1962 with the Kayavarohan Gram Panchayat. The Panchayat passed a resolution in its meeting held on 19th January 1963 approving the appointment of Chandubhai. During the service tenure with the Panchayat, Chandubhai was given all the regular benefits of pay/D.A. and pay revisions available to the employees of the State Government in accordance with the Pay Commissions at the relevant point of time. After having completed the age of 58 years, Chandubhai addressed a letter to the Sarpanch that since he was appointed on 1.10.1962 and had completed 58 years of age, he should be paid pension and gratuity in accordance with the Government rules. The Talati-cum-Mantri passed a Page 17 of 70 Downloaded on : Fri Dec 25 17:14:12 IST 2020 C/LPA/81/2020 CAV JUDGMENT resolution recommending that the benefits of pension and gratuity be paid to Chandubhai in accordance with the Government rules. As Chandubhai did not receive his terminal benefits, he came before this Court by way of filing the Special Civil Application No.7684 of 2002, pointing out to this Court that he was appointed in the year 1962, i.e. before the Panchayati Raj came into force with effect from 1.4.1963. He pointed out to the learned Single Judge that there were no recruitment rules in force at the relevant point of time and his appointment by the Gram Panchayat by way of a resolution was in accordance with the rules then prevalent. By placing strong reliance on the decision of the Supreme Court in the case of R.K.Soni (supra), he contended before the learned Single Judge that he could not have been denied pension. Chandubhai succeeded before the learned Single Judge. The learned Single Judge directed that Chandubhai be paid pension in accordance with the rules. The State of Gujarat, being dissatisfied with the judgment and order passed by the learned Single Judge allowing the writ-application of Chandubhai, went in appeal by filing the Letters Patent Appeal No.409 of 2017. In appeal, it was contended on behalf of the State of Gujarat that the principles as propounded by the Supreme Court in the case of R.K.Soni (supra) would not be applicable as the same would be applicable only to the employees of converted Panchayats and the Kayavarohan Gram Panchayat was not a converted Panchayat. In other words, the pension and the terminal benefits could be paid only to such Panchayats who were converted Panchayats. For example, in the case of Harijan Paniben Dudabhai (supra), the Okha Municipality was converted to a Panchayat and the Supreme Court in the said case noticed that the appointment therein was Page 18 of 70 Downloaded on : Fri Dec 25 17:14:12 IST 2020 C/LPA/81/2020 CAV JUDGMENT made on a sanctioned post, whereas in the case of Chandubhai Chhotabhai Patel (supra), he was not appointed in accordance with the procedure as prescribed under Section 203 of the Gujarat Panchayats Act, 1961.
21. The Division Bench of this Court first embarked upon the analysis of the law as discussed by the Supreme Court in the case of R.K.Soni (supra). The Bench observed as under :
"7. We would, therefore, embark upon an analysis of the law as discussed by the Supreme Court in the case of R. K. Soni (supra). In the case of R. K. Soni (supra) employees working under various Panchayat Institutions were denied benefits of the Sarela and Desai Pay Commissions on the sole ground that before they came to work under the Panchayat Institutions they were employed in municipalities (local bodies) while others were government servants, though Panchayat employees in the higher hierarchical ladder were extended such benefits. The employees succeeded before the Gujarat High Court and an appeal was filed before the Supreme Court. The Supreme Court, it would be relevant to suggest, referred to the provisions of the Gujarat Panchayats Act, 1961 and observed that the Gram Panchayat, Nagar Panchayat, Taluka Panchayat and the District Panchayat are bodies corporate with perpetual succession and a common seal. Historical perspective of the enactment of the Gujarat Panchayats Act from the Bombay Acts has been succinctly set out in the "tour of inspection "as the Court called it of the Panchayat Act. Relevant Paragraphs of the Judgement would support our endeavour Page 19 of 70 Downloaded on : Fri Dec 25 17:14:12 IST 2020 C/LPA/81/2020 CAV JUDGMENT to show that the Panchayat is a local-self-government institution of which the State is the master. Relevant paras so discussing the structure of the Panchayat system are as under:
"6. At this juncture, we may mention that prior to the enactment of the Gujarat Panchayats Act, 1961, there were in force in the State of Gujarat the Bombay Village Panchayats Act, 1958, the Bombay Local Boards Act, 1923, the Bombay District Municipal Act, 1901 and the Bombay Municipal Boroughs Act, 1925. The Bombay Village Panchayats Act 1958 and the Bombay Local Boards Act, 1923 are repealed by Secs. 325 and 326 of the Gujarat Village Panchayats Act, 1961. A local area declared to be a village under the Bombay Village Panchayats Act, 1958 and a Panchayat constituted under that Act, are deemed to be gram and panchayat under the Gujarat Gram Panchayats Act. 1961. The Secretaries and all officers and servants under the employment of the old village Panchayats are to be Secretaries, officers and servants of the new gram panchayats. A District Local Board constituted under the Bombay Local Boards Act for a local area is to stand dissolved. All property which stood vested in the district local board P immediately before the appointed day is to be deemed transferred to the district panchayat constituted for the local area, called the successor panchayat. All officers and servants in the employment of the District Local Board are similarly to be deemed transferred to Page 20 of 70 Downloaded on : Fri Dec 25 17:14:12 IST 2020 C/LPA/81/2020 CAV JUDGMENT the service of the successor panchayat. Where local areas are declared to be grams or nagars under Sec. 9 of the Gujarat Gram Panchayats Act, 1961 and such areas correspond to the limits of a municipal district or municipal borough under the Bombay District Municipal Act or Bombay Municipal Borough Act, it is provided by Sec. 307 of the Gujarat Panchayats Act that the municipality previously functioning in such local area shall cease to exist and that the councillors of such municipality shall constitute an interim 296 gram panchayat or interim nagar panchayat as the case may be for the gram or nagar. It is also provided that all officers and servants in the employment of the municipality immediately before the date of declaration of the local areas as gram or nagar, shall be officers and Servants of the interim panchayat.
7. Thus broadly, District Local Boards under the Bombay Local Boards Act stand transformed as District Panchayats, village panchayats under the Bombay Village Panchayats Act as gram panchayats and municipalities under the Bombay District Municipal Act and Bombay Municipal Boroughs Act as gram or nagar panchayats, depending on the population. Officers and servants in the employ of the District Local Boards are deemed to be transferred to the service of the district panchayats; Secretaries, officers and servants in the employ of the old village panchayat become Secretaries, officers and servants Page 21 of 70 Downloaded on : Fri Dec 25 17:14:12 IST 2020 C/LPA/81/2020 CAV JUDGMENT of new gram panchayats and officers and servants in the employ of municipalities become officers and servants of interim panchayats.
8. To continue our tour of inspection (if one may use such an expression) of the provisions of the Act, Sec. 88 of the Act empowers each gram panchayat to make, in the area within its jurisdiction, and so far as the fund at its disposal will allow, reasonable provision in regard to all or any of the matters specified in Sch. I. Sch. I enumerates a host of matters under the heads 'Sanitation and Health 'Public works', 'Education and Culture', Self Defence and Village Defence', 'Planning and Administration', 'Community Development, Agriculture, Preservation of forests and Pasture Lands', 'Animal Husbandry', 'Village Industries' and 'Collection of Land P Revenue'. Under each of these heads innumerable subjects are specified. In regard to the collection of land revenue express provision is further made by Sec. 149 that the Government shall, notwithstanding anything contained in Land Revenue Code or any other law, entrust to every Gram Panchayat and every Nagar Panchayat, any or all of the functions and duties of village Accountant or Patel or other similar functions of any other person by whatever name called, in relation to the collection of land revenue and dues recoverable as arrears of land revenue and all other functions and duties of village Accountant under the Land Revenue Page 22 of 70 Downloaded on : Fri Dec 25 17:14:12 IST 2020 C/LPA/81/2020 CAV JUDGMENT Code. Sec. 150 provides that the panchayat so entrusted under Sec. 149 shall be responsible for the collection of land revenue and other dues of the gram or nagar as the case may be.
9. In addition to the functions enumerated in Sch. E. Sec. 89 imposes certain other duties and functions on the panchayat. A panchayat may, for example, carry out in the area within the limits of jurisdiction, any other work or measure which is likely to promote health, safety, education, comfort, convenience or social or economic or culture well- being of the inhabitants of the area including secondary education. A panchayat is also required to carry out the directions or orders given or issued from time to time by the State Government for the amelioration of the condition of scheduled castes and scheduled tribes, and other backward classes.
10. Taluqa and District Panchayats are required by secs. 117 and 137 respectively to make reasonable provision in respect of matters specified in Schedules II and III. In Schedule II, a number of subjects are enumerated under the beads 'Sanitation and Health', 'Communication', 'Education and Culture', 'Social Education', 'Community Development', 'Agriculture and Irrigation', 'Animal Husbandry', 'Village and Small Scale Industries', 'Corporation'. 'Women's Welfare', 'Social Welfare', 'Relief', 'Collection of Statistics', Page 23 of 70 Downloaded on : Fri Dec 25 17:14:12 IST 2020 C/LPA/81/2020 CAV JUDGMENT 'Trusts', 'Forests', 'Rural Housing,' and 'Information'. ID Schedule III, similarly, a number of subjects are enumerated under the heads 'Sanitation and Health', 'Public Works', 'Education and other Cultural Activities', 'Administration', 'Community Development', 'Agriculture', 'Animal Husbandry', 'Village and Small Scale Industries', 'Social Welfare', 'Relief' and 'Minor Irrigation Projects'.
11. Sec. 155 provides for the transfer of the functions previously performed by District School Boards under the Bombay and Saurashtra Primary Education Act to taluqa and district panchayats.
12. Sec. 156 provides for the delegation to district and taluqa panchayats such powers and functions and duties of the Registrar or any other authority under the Bombay Cooperative Societies Act, as may be specified.
13. Sec. 157 provides for the transfer to District Panchayats of such powers, functions and duties relating to any matters as are exercised or performed by the State Government or any officer of the Government under any enactment which the State Legislature is competent to enact, or otherwise in the executive power of the State. On the transfer of such functions, the Government is also required to allot to Page 24 of 70 Downloaded on : Fri Dec 25 17:14:12 IST 2020 C/LPA/81/2020 CAV JUDGMENT the District Panchayats such funds and personnel 297 as may be necessary to enable the District Panchayats to exercise the powers and discharge functions and duties so transferred. Sec. 157 (2) mentions the subjects which in particular may be transferred to the District Panchayats. Sec. 157 (3) further provides that on the transfer of powers, functions and duties under sub-Sec. (I) and (2), the District Panchayat shall, if the State Government so directs and may with the previous approval of the Government, delegate to any panchayat subordinate to it any of the functions, powers and duties so transferred and allot to such Panchayats such funds and staff as may be-necessary to enable the Panchayat to discharge the functions and duties so delegated.
14. Sec. 158 provides that any function and duties relating to any of the matters specified in the Panchayat functions list, which were previously being performed by the State Government, shall be transferred to the District Panchayats together with the funds provided and the staff employed therefor. On such transfer, the District Panchayat may delegate, subject to the approval of the Government, to any panchayat subordinate to it any of the functions and duties so transferred.
15. Sec. 96 of the Act authorises the State Government Page 25 of 70 Downloaded on : Fri Dec 25 17:14:12 IST 2020 C/LPA/81/2020 CAV JUDGMENT to vest in a Panchayat open sites, waste, vacant or grazing lands or public roads, streets, bridges, ditches, dikes and fences, wells, river banks, streams, lakes, nallas, canals, water courses, trees or any other property in the gram or nagar.
16. Sec. 99 provides for the creation of gram and nagar funds. Each gram and nagar is to have a fund called the Gram Fund or the Nagar Fund into which are to be paid, inter- alia, the proceeds of any tax or fee imposed by or assigned to the panchayat under the Act, sums contributed to the fund by the State Government or the Taluqa Panchayat or the District Panchayat and all sums received by way of loans from the State Government or the Taluqa Panchayat or the District Panchayat or out of the District Development Fund or otherwise.
17. Sec. 119 vests in the Taluqa Panchayat every road building and other work constructed by the Taluqa Panchayat any land or property transferred to the Taluqa Panchayat by the State Government and any land or property transferred by any other Panchayat. Sec. 139 vests in the District Panchayat every road 299 building or other work constructed by the Panchayat, any land or property transferred to a District Panchayat by the State Government and any land or other property transferred to the District Panchayat by any other Panchayat.Page 26 of 70 Downloaded on : Fri Dec 25 17:14:12 IST 2020 C/LPA/81/2020 CAV JUDGMENT
18. We may now refer, conveniently, at this stage to the provisions relating to services. Sec. 102 provides that there shall be a Secretary for every gram panchayat and nagar panchayat, who shall be appointed in accordance with the rules. Rules, of course, have to be made by the Government under Sec. 323. Sec. 102 also provides that a gram panchayat and nagar panchayat may have suck other servants as may be determined under Sec. 203, who shall be appointed by such authority and with such conditions of service, as may be prescribed. 'Prescribed' again means 'prescribed by rules' and rules have to be made by the Government. It is further provided that having regard to the population of a gram and its income, the State Government may direct that a group of gram panchayats shall have one Secretary only. The Secretary is required to keep in his custody all records and registers of the panchayats, issue receipts on behalf of the panchayats, prepare all statements and reports required under the Act and perform such other functions and duties, as may be prescribed under the Act. Other servants of the panchayat are required to perform such functions and duties and exercise such powers as may be imposed or conferred on them by the Panchayat, subject to any rules which may be made.
19. Sec. 122 provides that there shall be a Secretary for every Taluqa Panchayat and that the Taluqa Page 27 of 70 Downloaded on : Fri Dec 25 17:14:12 IST 2020 C/LPA/81/2020 CAV JUDGMENT Development officer, who shall be an officer belonging to the State service and posted under the panchayat, shall be the ex- officio Secretary of the panchayat. Sec. 122 further provides that the taluqa panchayat shall have such other officers and servants as may be determined under Sec. 203, who may be appointed by such authority, with such conditions of service, as may be prescribed.
20. Similarly, Sec. 142 provides that the District Development officer posted under the District Panchayat shall be the ex-officio Secretary of the District Panchayat. In addition, the District Panchayat shall have such officers and servants, as may be determined under Sec. 203, performing such functions as may be prescribed and appointed by such authority with such conditions of service, as may be prescribed. We have earlier referred to Secs. 157 and 158 300 which provide for the allotment and transfer of staff to the District Panchayat when functions are transferred by the Government to the District Panchayats under those provisions. We have already referred to Sec. 326 which provides that all officers and servants in the employment of an existing District Local Board shall be deemed to be transferred of the service of the successor District Panchayat. We have also referred to Sec. 325 which stipulates that the Secretaries and all officers and servants in the employ of old village panchayats under the Bombay Village Panchayats Act Page 28 of 70 Downloaded on : Fri Dec 25 17:14:12 IST 2020 C/LPA/81/2020 CAV JUDGMENT shall be Secretaries, officers and servants of the new Gram Panchayats. We have further referred to Sec. 307 which provides that all officers and servants in the employment of municipalities whose local areas have been declared as grams or nagars as the case may be, shall be officers and servants of the interim panchayats of such grams or nagars.
21. Sec. 203, as it stood before it was amended in 1978, provided for the constitution of a Panchayat Service for the purpose of bringing about uniform scales of may and uniform conditions of service for persons employed in the discharge of functions and duties of Panchayats. Such service, it was declared, shall be distinct from the State Service. The panchayat service was to consist of such classes, cadres and posts and the initial strength of officers and strength of such classes cadres and posts was to be such as the State Government might determine from time to time. District Panchayats were empowered to alter, with the previous approval of the State Government, any class, cadre or number of posts determined by the Government. The cadres were to consist of district cadres, taluqa cadres and local cadres. A servant belonging to a district cadre was liable to be posted, whether by promotion or transfer, to any post in any taluqa or of the district. A servant belonging to the taluqa cadre was liable to be posted whether by promotion or transfer to any post in any gram or nagar Page 29 of 70 Downloaded on : Fri Dec 25 17:14:12 IST 2020 C/LPA/81/2020 CAV JUDGMENT in the same taluqa. A servant belonging to a local cadre was liable to be posted whether by promotion or transfer to any post in the same gram or nagar. In addition to the posts in the district taluqa and local cadres, a panchayat might have such other posts of such classes as the State Government may, by general or special order, determine such posts being called 'deputation posts'. They were to be filled in accordance with the provisions of Sec. 207. The State Government was empowered to make rules regulating the mode of recruitment either by holding examinations or otherwise and conditions 301 of service of persons appointed to the panchayat service and powers of appointment, transfer and promotion of officers and servants in the panchayat service and disciplinary action against such officers and servants. The rules were required to make provision entitling servants of such cadres in the Panchayat Service to promotion to such cadres in the State service as may be prescribed. The rules were also required to provide for inter-district transfer of servants belonging to the panchayat service.
22. Subject to the rules made under Sec. 203, appointment to posts in the panchayat service, Sec. 205 provides, shall be made by direct recruitment by promotion or by transfer of a member of the State service to the panchayat service. Sec. 206 obliges the State Government by general or special order to Page 30 of 70 Downloaded on : Fri Dec 25 17:14:12 IST 2020 C/LPA/81/2020 CAV JUDGMENT allocate to the panchayat service: "(i) such number of officers and servants out of the staff allotted or transferred to a panchayat under sections (157, 158 and 325) as it may deem fit, (ia) all officers and servants of the municipalities dissolved under Sec. 307, (ii) all officers and servants in the service of district local boards and district school boards immediately before their dissolution under this Act and transferred to the panchayats under secs. 155 and 326". It is further provided that officers and servants so allocated shall be taken over by such panchayats in such cadre and on such tenure, remuneration and other conditions of service, as the State Government may determine. Sec. 204 provides that, subject to the rules which the State Government may make, the expenditure towards the pay, allowances and other benefits allowed to an officer or servant of the panchayat service serving for the time being under any panchayat shall be met by that panchayat from its own fund. Sec. 207 enables the State Government to direct the posting of officers of the Indian Administrative Service and of Class II services of the State under panchayat institutions. Sec. 208 enables a panchayat to obtain the services of any officer of Government on loan. Sec. 210 provides for the constitution of a Panchayat Services Selection Board and Sec. 211 provides for the constitution of District Panchayat Service Selection Committees and District Primary Education Staff Selection Committees."Page 31 of 70 Downloaded on : Fri Dec 25 17:14:12 IST 2020 C/LPA/81/2020 CAV JUDGMENT
7.1 Analysing Section 203 of the Gujarat Panchayats Act, 1961 in para 21, the Court observed that in 1978 Panchayat Service was declared as a distinct service providing for a three tier system of district cadres; taluka cadres and local cadres. The State Government under the Section was empowered to make Rules for recruitment etc. of such employees. The issue arose before the Court when the State Government did not extend the benefits of revisions of pay to the staff born on the local cadre of Panchayat service though such benefits were extended to the District and Taluka Cadre. No promotional avenues were also provided for such local cadres. Writ Petitions were filed by such employees of the local cadre which were resisted by the State of Gujarat on the principal ground that the members of the Panchayat Service were not Government Servants. The High Court allowed the petitions holding that the members of the Panchayat Service belonging to the local cadre were Government Servants. The Government to overcome the judgement brought in an ordinance of 1978 which was later replaced by the Gujarat Panchayat (Third Amendment ) Act, 1978."
22. The Bench thereafter proceeded to briefly state the substantial features of the judgment in the case of R.K.Soni (supra) for the purpose of discussing the merits of the said case prior to the amendment referred to above.
"(1) The broad and general picture on a perusal of the relevant provisions of the Act, as it stood before it was Page 32 of 70 Downloaded on : Fri Dec 25 17:14:12 IST 2020 C/LPA/81/2020 CAV JUDGMENT amended in 1978, is that the Gujarat Legislature aimed at the democratic decentralization of important governmental functions by vesting such functions in gram, nagar, taluqa and district panchayats and, besides, by enabling the State Government to transfer other powers, functions and duties to the Panchayat institutions. A perusal of the lists of subjects entrusted to the Panchayat Institutions shows that they are not merely the ordinary run of subjects entrusted to municipal bodies, such as public health, sanitation, etc., but they include, a great variety of subjects intimately connected with all aspects of community life and vital to it, except functions, such as, law and order, administration of justice and the like. Even part of the revenue administration is entrusted to panchayat institutions, as evident from the fact that collection of land revenue is one of the duties of the gram panchayats under the Act. Since decentralisation was not to mean mere chaotic fission and confusion, a three tier organisation was set up, subject to the overall control of the Government and it was as if a parallel but subsidiary or subordinate Government was set up by the Government itself to discharge some of its functions. Not merely were the panchayat institutions required to discharge governmental functions, the organisation and its three-tier units were to have very close links with the Government at every twist and turn, as it were. The property of the panchayat was that which previously belonged to the Government but came to be vested in them or transferred to them and the funds of the panchayats were those to be provided substantially by way of contribution or loan by the Government. The Government was not only empowered to make the rules to Page 33 of 70 Downloaded on : Fri Dec 25 17:14:12 IST 2020 C/LPA/81/2020 CAV JUDGMENT carry out the objects of the Act, but also to issue directions from time to time to all or any of the panchayats. For the purpose of efficiently discharging the functions and duties of the various panchayat institutions and having regard to the three-tier system which had been established, it was apparently thought necessary to constitute a panchayat service, the members of which would have uniform scales of pay and uniform conditions of service. So a single centralised Panchayat Service was constituted which was to be 'distinct from the State Service'. The distinction lay in that it was a service parallel to the State Service and not in that the members of the service were not Government servants.
The question whether the members of the panchayat service are Government servants or not is the principal question to be answered in the appeal and we will come back to it again later."
23. The Bench thereafter proceeded to look into the salient features of the judgment in the case of R.K.Soni (supra) "(A) Panchayat Institutions were grass-root level institutions carrying out functions of the State service assigned to them under the provisions of the Panchayat Act, 1961. Essential functions basic to the rural infrastructure and basic human needs are catered to by the Institution which is manned at the local cadre by its employees who were recruited through the Panchayats even prior to coming into force of the Gujarat Panchayats Act, 1961 with effect from 01.04.1963.
Page 34 of 70 Downloaded on : Fri Dec 25 17:14:12 IST 2020 C/LPA/81/2020 CAV JUDGMENT(B) In the Panchayat Service, as in the State Service, the State is the master and every officer or servant employed in the Panchayat Service is the servant of the State and not of the Panchayat under which he may be serving for the time being. The Panchayat Service is one single service with the State as the master.
(C) The employees of the Panchayat institution namely that of the local cadre carry the mark of the 'brand' of his origin and a classification on the basis of the source from which they came into the service, was sought to be justified as a reasonable classification. The Court held that it wasn't. Once they had joined the common stream of service to perform the same duties, it is clearly not permissible to make any classification on the basis of their origin. Such a classification would be unreasonable and entirely irrelevant to the object sought to be achieved."
24. The Bench thereafter, in paragraph 11, conjointly read the provisions of the Bombay Village Panchayats Act and the Gujarat Panchayats Act and deduced the following :
"(A) Prior to 1/4/1963 the Gram Panchayat/Village Panchayat as per Section 9 of the Bombay Village Panchayats Act, 1958 was a Body Corporate by the name of "the Village Panchayat of....." having a perpetual succession and a common seal.Page 35 of 70 Downloaded on : Fri Dec 25 17:14:12 IST 2020 C/LPA/81/2020 CAV JUDGMENT
(B) The Sarpanch had the power vested in him to take actions in implementation of the Panchayat's duties through Resolutions.
(C) Section 61 of the Bombay Village Panchayats Act, 1958 provided that the Panchayat may appoint such servants as may be necessary for the proper discharge of its duties under this Act and pay salaries from the Village Fund.
(D) Till the promulgation of the Gujarat Panchayats Act, 1961 w.e.f 1.04.1963 therefore the Village Panchayat was competent to appoint its servants/officers and act through Resolutions. The appointment of the Respondent made under such provisions was therefore valid and in accordance with the prevalent law in force, prior to the coming into force the provisions of Section 203 of the Gujarat Panchayats Act,1961 and the Rules thereunder. Therefore it was not a case where the prior sanction of the Development Commissioner or the State was inevitably a sine-qua non.
No such provision existed. That the Panchayat in discharge of its duties under Section 45 of the Bombay Act, through its Resolution of the Sarpanch appointed the Respondent herein. That such appointment was on a sanctioned post was not a germane consideration as it was so presumed to be in accordance with law and therefore the appointment could not have been termed to be irregular or illegal.
(E) In the case of Harijan Paniben (supra) also, considering the question of appointment of servants prior to the 1961 Act Page 36 of 70 Downloaded on : Fri Dec 25 17:14:12 IST 2020 C/LPA/81/2020 CAV JUDGMENT which came into force on 1/4/1963, there was no question of a distinction being drawn on the appointment being on a sanctioned post or not, and therefore the Division Bench Judgement in the case of Dahyabhai (Supra) would, in our opinion, made a distinction and dismissed the Petition of the employee on the ground that the appointment was not on a sanctioned post, would not be in consonance with the law laid down in the case of Harijan Paniben (supra) and the judgement of the Constitution Bench in R.K.Soni (supra). It categorically held that all such employees carried a common birth mark and therefore to hold that the appointment was not on a sanctioned post or that it was irregular or that the Panchayat employee belonged to a non-converted gram panchayat could not have been held to be against the respondent as that would lead to a microscopic discrimination which was set aside by the Judgement of the Constitution Bench in the case of R.K.Soni (supra).
(F) Referring to the decision in the case of G.L.Shukla (supra) reaffirmed in R K Soni (supra), the inevitable conclusion that is culled out is that the State is the master. Panchayat Service is a distinct and separate service set up for serving the Panchayat Organization of the State and it is as much a civil service of the State as the State Service. The State can have many services such as State Service, Police Service, Engineering Service etc. and Panchayat Service is one of them. In the Panchayat Service, as in the State Service, the State is the master and every officer or servant employed in the Panchayat Service is the servant of the State and not of the Panchayat under which he may be serving for the time Page 37 of 70 Downloaded on : Fri Dec 25 17:14:12 IST 2020 C/LPA/81/2020 CAV JUDGMENT being. The Panchayat Service is one single service with the State as the master."
25. Thus, one very important distinguishing feature in the case of Chandubhai Chhotabhai Patel (supra) and the case on hand is that Chandubhai was appointed prior to the promulgation of the Gujarat Panchayats Act, 1961, that came into effect from 1.4.1963, whereas in the case on hand, the writ-applicant came to be appointed in the year 1968, i.e. after the promulgation of the Act, 1961. Keeping this in mind, the Bench took the view in the case of Chandubhai Chhotabhai Patel (supra) that till the promulgation of the Act, 1961, which came into force with effect from 1.4.1963, the Gram Panchayat was competent to appoint its servants/officers and act through resolutions. The Bench observed that the appointment of Chandubhai made under the provisions prevailing at the relevant point of time was valid as the same was prior to the coming into force of provisions of Section 203 of the Act, 1961 and the Rules. As the appointment was prior to the coming into force of Section 203 of the Act, 1961, the prior sanction of the Development Commissioner or the State was not a sine qua non. The Bench noticed that no such provision existed at the relevant point of time. The Bench ultimately concluded that the Gram Panchayat, in discharge of its duties under Section 45 of the Bombay Village Panchayats Act, 1958, through its resolution of the Sarpanch, had appointed Chandubhai, and such appointment was a valid appointment.
26. The facts in the case on hand are quite different. The aforesaid aspect has not been duly considered by the learned Page 38 of 70 Downloaded on : Fri Dec 25 17:14:12 IST 2020 C/LPA/81/2020 CAV JUDGMENT Single Judge while allowing the writ-application. The learned Single Judge has proceeded on the footing that the services rendered by the writ-applicant as a Ward-maid with the Gram Panchayat would constitute 'Panchayat Service' and, therefore, she is entitled to draw pension. This is not the correct statement of law.
27. We shall now look into a Division Bench decision of this Court in the case of Chorvad Gram Panchayat (supra). In Chorvad Gram Panchayat (supra), the question that came up for consideration was, whether a person who had been appointed in a Panchayat without following the procedure laid down under Section 203(4)(b) of the Act, 1961, could be treated as a member of the Panchayat Service so as to claim the pensionary benefits under the Gujarat Panchayat Service (Pension) Rules, 1976, and the Family Pension Scheme, 1972 and/or such appointee could be treated as an employee retired from the Panchayat Service.
28. A former learned Single Judge of this High Court (Rekha M.Doshit, J.), while deciding the Special Civil Application No.354 of 2004, took the view that a person who had not been appointed in the Panchayat Service following the provisions of Section 203 of the Act, cannot be treated as a Panchayat employee so as to claim the pensionary benefits under the Gujarat Panchayat Service (Pension) Rules, 1976 or to claim family pension under the Family Pension Scheme or from the Panchayat itself, in absence of a pension scheme.
29. One another former Judge of this High Court (Akshay H.Mehta, J.), while deciding the Special Civil Application Page 39 of 70 Downloaded on : Fri Dec 25 17:14:12 IST 2020 C/LPA/81/2020 CAV JUDGMENT No.2019 of 1988 also took the view that merely because the Pension Rules have been framed by the State Government, it cannot be saddled with the liability to discharge the burden of the Panchayats with regard to the pensionary benefits to the retired servants of the Panchayats. The learned Single Judge, however, interpreting Section 204 of the Act, held that the expenditure towards the pay and allowances and other benefits available to an officer or servant of a Panchayat shall have to be met by the Panchayat from its own funds and, therefore, it would be the responsibility of the Panchayat to discharge the liability of retiral benefits and the family pension to the petitioner.
30. Mr.Justice M.R.Shah (As His Lordship then was) noticed the conflict between the views expressed by both the Judges referred to above and accordingly passed an order dated 17th February 2009 in the Special Civil Application No.13990 of 1993, directing the registry of this High Court to place all such matters before a bench for appropriate decision so as to settle the controversy, as large number of cases were pending claiming similar benefits by the retired employees, including the family pension.
31. Accordingly, the matters were notified before a Division Bench of this High Court (Coram : K.S.Radhakrishnan, CJ (As His Lordship then was) and Akil Kureshi, J. (As His Lordship then was). The Division Bench, vide judgment and order dated 2nd July 2009, held as under :
"9. Gujarat Panchayats Act, 1961 was enacted to consolidate and amend the law relating to village Page 40 of 70 Downloaded on : Fri Dec 25 17:14:12 IST 2020 C/LPA/81/2020 CAV JUDGMENT Panchayat and district local Boards in the State of Gujarat with a view to reorganise the administration pertaining to local Government in furtherance of the object of the democratic decentralisation of powers in favour of different classes of Panchayats. For the purpose of the said Act, there shall be in each District a Gram Panchayat for each Gram, a Nagar Panchayat for each Nagar, a Taluka Panchayat for each Taluka and a District Panchayat for the District, as per Section 3 of the Act. Section 102 of the Act deals with officers and servants of the Panchayat. It says that subject to the provisions of this Act and the rules made thereunder, there shall be a Secretary for every Gram Panchayat and Nagar Panchayat, who shall be appointed in accordance with the rules. Section 102(b) of the Act states that a Gram Panchayat or as the case may be, Nagar Panchayat, shall have such other servants as may be determined under Section 203 and such servants shall be appointed by such authority and their conditions of service shall be such as may be prescribed. Section 122 of the Act deals with Officers and Servants of Taluka Panchayat. Section 142 of the Act deals with Officers and servants of District Panchayat. Chapter XI deals with provisions relating to Panchayat service. Section 203 of the Act falls under that Chapter. The relevant portion of Section 203 of the Act is extracted hereunder for easy reference.
"203. (1) For the purpose of bringing about uniform scales of pay and uniform conditions of service for persons employed in the discharge of Page 41 of 70 Downloaded on : Fri Dec 25 17:14:12 IST 2020 C/LPA/81/2020 CAV JUDGMENT 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 initial 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 sub-section 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 sub-section (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 taluka in the district.
(c) 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 Page 42 of 70 Downloaded on : Fri Dec 25 17:14:12 IST 2020 C/LPA/81/2020 CAV JUDGMENT 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 sub-section (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 sub-section (3) shall in particular contain-
(a) a provision entitling servants of such cadres in the Panchayat Service to promotion to such cadre in the State Service as may be prescribed.
(b) a provision specifying the classes of posts recruitment to which shall be made through the Page 43 of 70 Downloaded on : Fri Dec 25 17:14:12 IST 2020 C/LPA/81/2020 CAV JUDGMENT District Panchayat Service Selection Committee and the class of posts, recruitment to which shall be made by the Gujarat Panchayat Service Selection Board, and ...."
10. Section 323 of the Gujarat Panchayats Act, enables State Government to make Rules, and as per the powers conferred under Section 323 of the Act, Government of Gujarat framed Gujarat District Panchayat Service Selection Committee (Functions) Rules, 1964. Definitions 2 (vi) says "Panchayat Service" means service as constituted by an order made by Government from time to time under Section 203 of the Act. Section 211 of the Panchayat Act, 1961 says that there shall be District Panchayat Service Selection Committee in each district for selecting candidates for recruitment to such posts of the Panchayat service and to advise the panchayats in such matters and to perform such other functions as may be prescribed. "Selection Committee" has been defined under Rule 2 (ix).
11. The Government in exercise of powers conferred by Section 323 read with clauses (b) of sub-section (1) of Section 102, clause 3 of Section 122 and clause (3) of Section 142 of the Gujarat Panchayats Act, 1961, made Gujarat Panchayat Service (Appointing Authorities) Rules, 1967.
12. Above mentioned Rules clearly indicate that the appointments in the district cadres, taluka cadres and local Page 44 of 70 Downloaded on : Fri Dec 25 17:14:12 IST 2020 C/LPA/81/2020 CAV JUDGMENT cadres shall have to be made after following provisions laid down under Section 203 of the Act and persons so appointed would fall within the Panchayat service constituted under Section 203(1) of the Act. Once selection of an incumbent is made following the procedure laid down under Section 203 of the Act, appointments are effected by the appointing authorities under the Gujarat Panchayat (Appointing Authorities) Rules, 1967 framed by the Government in exercise of the powers conferred under Section 323, read with clause (b) of sub-section (1) of Section 102, Clause (3) of Section 122 and clause (3) of Section 142 of the Act.
13. Sub-section (2) of Section 203 of the Act says that Panchayat Service shall consist of such classes, cadres and posts and the initial 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. In exercise of the powers conferred under sub-section (2) of Section 203 of the Act, the State Government issued an order dated 2.1.1967 indicating respective cadres to which different posts in the Panchayat service belong. Yet another Departmental order was issued on 30.3.1977 dealing with district cadre, taluka cadre and local cadre. Part-I deals with district cadre, Part-II deals with taluka cadre and Part-III deals with local cadre. Service conditions of a Panchayat servant is governed by the Gujarat Panchayat Service (Conditions of Service) Rules, 1977. The word "Panchayat Service" is defined as a Panchayat Page 45 of 70 Downloaded on : Fri Dec 25 17:14:12 IST 2020 C/LPA/81/2020 CAV JUDGMENT Service constituted under Section 203 of the Act. Vela Keshav was never appointed by following above mentioned Rules or statutory provisions by way of selection made by the Staff Selection Committee constituted under Sec. 211 of the Act. Only those persons who are appointed in the Panchayat Service following the recruitment procedure laid down under Section 203(4)(b) of the Act, can be treated as members of Panchayat Service.
14. Government of Gujarat in exercise of powers conferred under Section 323 read with Section 203 of the Act, made Gujarat Panchayat Service (Pension) Rules, 1976. Rule 3 of the Pension Rules says that Pension Rules shall apply to all Panchayat servants. 'Panchayat Servant' has been defined under Rule 2(d) to mean any person who belongs to Superior Panchayat Service or, as the case may be, the Inferior Panchayat Service. Rule 2(c) defines "Inferior Panchayat Service" to mean the Inferior Panchayat Service as constituted by clause (d) of sub-rule (2) of rule 3 of the Gujarat Panchayat Service (Classification and Recruitment) Rules, 1967. Rule 2(e) defines "Superior Panchayat Service' to mean the Superior Panchayat Service as constituted by clause (a) of sub-rule 3 of the Gujarat Panchayat Service (Classification and Recruitment) Rules, 1967. Gujarat Panchayat Service Rules, 1967 would apply to only those Panchayat servants, and shall not apply to certain categories of Panchayat servants. For easy reference, Rule (3) of the Gujarat Panchayat Service (Pension) Rules, 1976 is extracted hereunder:-
Page 46 of 70 Downloaded on : Fri Dec 25 17:14:12 IST 2020 C/LPA/81/2020 CAV JUDGMENT"3. Applicability and option- (1) Save as otherwise provided in these rules, these rules shall apply to all the Panchayats Servants, but shall not apply to:-
(a) a panchayat servant not in the whole time employment of the panchayat;
(b) a panchayat servant paid out of contingencies;
(c) a panchayat servant paid otherwise than, on monthly basis, including those paid only on piece rate basis.
(d) a panchayat servant appointed on workcharged establishment or on daily rate basis or employed casually;
(e) a panchayat servant entitled to the benefit of a Contributory Provident Fund; other than that who opts to take the benefit of these rules in accordance with the provisions of sub-rule (4) of rule 3.
(f) a panchayat servant employed on contract except when the contract provides otherwise:
Provided that any such panchayat servant to whom these rules shall apply, have the right to opt to continue to be governed by any pension rules applicable to him immediately before the Page 47 of 70 Downloaded on : Fri Dec 25 17:14:12 IST 2020 C/LPA/81/2020 CAV JUDGMENT coming into force of these rules. Such of option shall be exercised in writing case Form in "A" before the 9th May, 1976. The option once exercised, shall be final.
(2) The option exercised under sub-rule (1), shall be communicated by the panchayat servant, to the Head of his office. This option when received from a Panchayat Servant should be countersigned by the Head of office and posted in the Service Book or, as the case may be Service Roll of the panchayat servant concerned.
(3) It shall be the responsibility of the Head of Office to acknowledge the option and the panchayat servant concerned shall ensure that the receipt of his option is acknowledged by the Head of Office and that he receives an intimation that it has been duly recorded by the Head of Office."
15. We may indicate that Vela Keshav had submitted an application exercising his option under the proviso to Rule 3 of the above Rules, but the same was rejected by the Local fund office stating that he was not a member of the Panchayat Service. We are therefore, clearly of the view that only those employees who have been appointed following the procedure laid down under Section 203 of the Act and the Rules framed thereunder, under Section 323 of the Act would alone be a member of the Panchayat Service, apart from the allocated employees from the Municipality to the Panchayats on its Page 48 of 70 Downloaded on : Fri Dec 25 17:14:12 IST 2020 C/LPA/81/2020 CAV JUDGMENT formation, or other employees who have been recognized as member of the Panchayat Service by the State Government, or by the District Panchayat Service Selection Committee. Since Vela Keshav was never a member of Panchayat service, in our view he is not entitled to get pension under the Gujarat Panchayat Service (Pension) Rules, 1976 or any Pension Scheme framed by the Government for grant of Family Pension or otherwise for members of the Panchayat Service.
16. We may indicate that the view taken by us is in consonance with the view expressed by the Apex Court in State of Gujarat Vs. R.K. Soni - AIR 1984 SC 161, in which decision the Hon'ble Supreme Court in paragraph 24 referred to the Gujarat Panchayat Service (Absorption Seniority Pay and Allowances) Rules, 1965, which provided for the equation of posts, fixation of seniority, scales of pay and allowances of "allocated employees". It was noted that the Rule provided that every allocated employee holding a corresponding post immediately before the appointed day, shall be appointed to the equivalent post. It was observed that unless equivalence of posts is first determined, by order, by the Government, the said Rules could not be effectively applied. The Government however, did not make any order regarding equation of posts of the staff in the local cadre and the fixation of their scale of pay although such orders were made in respect of posts of other cadres.
Page 49 of 70 Downloaded on : Fri Dec 25 17:14:12 IST 2020 C/LPA/81/2020 CAV JUDGMENT17. Circular issued by the Government bearing No. NPM/1083-964-K(1) dated 25.8.1983 would indicate that Gram and the Nagar Panchayats have no power or authority under Section 102 of the Act to recruit, fix pay scales or prescribe qualifications for recruitment of the employees.
18. We are also of the view that learned Single Judge (Akshay Mehta, J.) was not justified in giving a positive direction to the Gram Panchayat to pay pensionary benefits to Vela Keshav and family pension to his widow by holding that under Section 203, read with Sec. 204 of the Gujarat Panchayats Act, Panchayat has got a statutory obligation to pay pensionary benefits. In our view, the learned Single Judge has completely misunderstood the scope of Section 204 of the Act. Section 204 of the Act says that subject to the rules, which the State Government may make in this behalf, the expenditure towards the pay and allowances of and other benefits available to an officer or servant of the Panchayat Service serving for the time being under any panchayat shall be met by that panchayat from its own fund. In our view, Section 204 of the Act would apply to the officers and servants of Panchayat service which says that their pay and allowances be met by the Panchayat from its fund. Panchayat may give salary and other benefits including Gratuity, Provident Fund etc. to persons like Vela Keshav, appointed on the basis of resolutions passed by the Panchayat and not by following the procedure laid down under Section 203 of the Act. Mere Page 50 of 70 Downloaded on : Fri Dec 25 17:14:12 IST 2020 C/LPA/81/2020 CAV JUDGMENT fact that Panchayat has paid salary and other benefits to Vela Keshav does not mean that he was a member of the Panchayat service so as to get the benefit available to members of Panchayat service. Panchayat, in its counter affidavit has stated that they have not framed any Pension Scheme for employees like Vela Keshav. In the absence of any Pension Scheme, in our view, the learned Single Judge was not justified in directing the Panchayat to pay pensionary benefits to Vela Keshav and family pension to his widow. Needless to say that all the statutory benefits such as Provident Fund, Gratuity etc. may be available to such persons and not the pensionary benefits or the family pension unless there is a Pension Scheme available to such employees.
19. Under the circumstances, we are inclined to dismiss Letters Patent Appeal Nos. 1522 of 2004, 1523 of 2004 and 614 of 1998 and allow Letters Patent Appeal No. 1381 of 2004, declaring that only those employees who have been appointed in the Panchayat service following the procedure laid down under Section 203 of the Gujarat Panchayats Act, can be treated as member of the Panchayat service entitled to get pensionary benefits under Gujarat Panchayat Service (Pension) Rules, 1976 and Family Pension Scheme, 1972. We further hold that those persons who have been appointed by the Panchayat in their service otherwise than following the above mentioned statutory procedure are entitled to get pensionary benefits and family pension only if there is a Page 51 of 70 Downloaded on : Fri Dec 25 17:14:12 IST 2020 C/LPA/81/2020 CAV JUDGMENT Scheme available with the respective Panchayats. We make it clear if any pensionary benefits including Family Pension have already been paid to the petitioners on the strength of the judgments of the Court, they shall not be recovered from them, but they are not entitled to any future payments.
20. Appeals are disposed of. Connected Civil Application also stands disposed of."
32. The following is discernible from the judgment in the case of Chorvad Gram Panchayat (supra).
(1) The service conditions of a Panchayat servant is governed by the Gujarat Panchayat Service (Conditions of Service) Rules, 1977. The word 'Panchayat Service' is defined as a Panchayat Service constituted under Section 203 of the Act. Indisputably, the writ-applicant in the case on hand was never appointed by following the above mentioned rules or statutory provisions by way of selection made by the Staff Selection Committee constituted under Section 211 of the Act. Only those persons who were appointed in the Panchayat Service following the recruitment procedure laid down under Section 203(4)(b) of the Act can be treated as the members of the Panchayat Service.
(2) The Government of Gujarat, in exercise of powers conferred under Section 323 read with Section 203 of the Act, framed the Gujarat Panchayat Service (Pension) Rules, Page 52 of 70 Downloaded on : Fri Dec 25 17:14:12 IST 2020 C/LPA/81/2020 CAV JUDGMENT 1976. Rule 3 of the Pension Rules says that the Pension Rules shall apply to all the Panchayat servants. 'Panchayat Servant' has been defined under Rule 2(d) to mean, 'any person who belongs to Superior Panchayat Service or, as the case may be, the Inferior Panchayat Service. Rule 2(c) defines 'Inferior Panchayat Service' to mean, 'the Inferior Panchayat Service as constituted by clause (d) of sub-rule (2) of Rule 3 of the Gujarat Panchayat Service (Classification and Recruitment) Rules, 1967. Rule 2(e) defines 'Superior Panchayat Service' to mean, 'the Superior Panchayat Service as constituted by clause (a) of sub-rule (3) of the Gujarat Panchayat Service (Classification and Recruitment) Rules, 1967. The Rules, 1967, would apply to only those Panchayat servants, and shall not apply to certain categories of Panchayat servants. Thus, only those employees who have been appointed following the procedure laid down under Section 203 of the Act and the Rules framed thereunder alone be the members of the Panchayat Service, apart from the allocated employees from the Municipality to the Panchayats on its formation, or other employees who have been recognized as the members of the Panchayat Service by the State Government or by the District Panchayat Service Selection Committee.
33. The above referred judgment of the Division Bench was carried in appeal being the Civil Appeal No.5441 of 2006 and allied matters, decided in the case of Harijan Paniben Dudabhai (supra) dated 1st July 2016, by the unsuccessful employees. A batch of appeals was filed in the Supreme Court against the Page 53 of 70 Downloaded on : Fri Dec 25 17:14:12 IST 2020 C/LPA/81/2020 CAV JUDGMENT common judgment of this Court dated 2 nd July 2009 referred to above. As this Court considered the Letters Patent Appeal No.1522 of 2004 as the lead matter, the Supreme Court also considered the appeal arising therefrom as the lead matter. The Supreme Court took notice of the fact that in terms of the Gujarat Government Gazette dated 1 st July 1961, the then Okha District Municipality got converted into Okha Gram and Nagar Panchayat on and with effect from 2 nd February 1962. Upon such conversion, the then existing staff of the Municipality was allocated to the Gram Panchayat and was treated as part of the Panchayat Service. The Supreme Court, in paragraph 4 of the judgment, took notice of Section 203 of the Gujarat Panchayats Act, 1961, which reads thus :
"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 sub-section shall prevent a district panchayat from altering, with the previous approval Page 54 of 70 Downloaded on : Fri Dec 25 17:14:12 IST 2020 C/LPA/81/2020 CAV JUDGMENT of the State Government, any class, cadre or number of posts so determined by the State Government.
(2A) (a) The cadres referred to in sub-section (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 sub-section (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 Page 55 of 70 Downloaded on : Fri Dec 25 17:14:12 IST 2020 C/LPA/81/2020 CAV JUDGMENT 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 sub-section(3) shall in particular contain a provision entitling servants of such cadres in the Panchayat Service to promotion to such cadres in the State Service as may be prescribed.
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 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 Page 56 of 70 Downloaded on : Fri Dec 25 17:14:12 IST 2020 C/LPA/81/2020 CAV JUDGMENT rules made under clause (a) of the sub-section (4) shall not affect-
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 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."
34. The Supreme Court thereafter in paragraph 5 noted that a Constitution Bench in R.K.Soni (supra) held that the Panchayat Service constituted under the aforesaid Section 203 of the Act is a Civil Service of the State and the members of the service are Government servants. The Supreme Court thereafter proceeded to take notice of the facts of the lead matter arising from the Letters Patent Appeal No.1522 of 2004. The Supreme Court took notocei of the fact that one Vela Keshav (deceased husband of Paniben) was appointed by the Okha Gram Panchayat as a 'Safai Kamdar' on 4th February 1964. After having put in 33 years of service, he died in harness on 6 th February 1977. The Supreme Court noticed that the record indicated that the monetary benefits, such as, leave encashment, group insurance and general provident fund, were paid to Paniben as the legal representative of the deceased. Paniben represented that the family of Vela Keshav was also entitled to family pension and Page 57 of 70 Downloaded on : Fri Dec 25 17:14:12 IST 2020 C/LPA/81/2020 CAV JUDGMENT gratuity, which claim having not been accepted, Paniben moved this High Court by filing the Special Civil Application No.354 of 2004.
35. The Supreme Court thereafter looked into the affidavits filed in opposition by the Deputy District Development Officer, District Panchayat, Jamnagar, and by the Sarpanch of the Okha Gram Panchayat. The Supreme Court took notice of the stance of the respondents that since the deceased was not recruited by the Gram Panchayat in accordance with the statutory rules, the appelant was not entitled to claim the family pension. The Supreme Court took notice of the fact that the Single Judge of the High Court rejected the Special Civil Application on the ground that the deceased was not appointed by the District Panchayat Service Selection Committee constituted under Section 2(11) of the Act and was not a member of the Panchayat Service as envisaged by Section 203 of the Act, and for such reason, the appellant was not entitled to claim any family pension or gratuity. The Supreme Court thereafter took notice of the fact that the Letters Patent Appeal No.1522 of 2004 filed by Paniben against the judgment of the learned Single Judge also came to be dismissed on the ground that Vela Keshav (deceased husband of Paniben) had not undergone any selection procedure and had obtained the employment only on the strength of passing of the resolution in the Panchayat. The Okha Gram Panchayat had not made any proposal to regularize such unauthorized recruitment and appointment of the deceased husband of Paniben. Thereafter, in paragraph 9 of the judgment, the Supreme Court reproduced relevant extracts of the affidavit-in-reply filed on behalf of the respondent no.5. We quote the same as under :
Page 58 of 70 Downloaded on : Fri Dec 25 17:14:12 IST 2020 C/LPA/81/2020 CAV JUDGMENT"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 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."
36. The Supreme Court thereafter proceeded to observe as under :
"10. The Division Bench of the High Court by its judgment and order under appeal dismissed Letters Patent Appeal Page 59 of 70 Downloaded on : Fri Dec 25 17:14:12 IST 2020 C/LPA/81/2020 CAV JUDGMENT 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:Page 60 of 70 Downloaded on : Fri Dec 25 17:14:12 IST 2020 C/LPA/81/2020 CAV JUDGMENT
I. Secretary of a Nagar Panchayat II The following posts under the Nagar or as the Case may be, Gram Panchayat, namely Chief Officer (Nagar Panchayat) Head Clerk Senior Clerk Junior Clerk Vasulati Clerk Typist Octroi clerk Accountant Cashier Tax Inspector Shop Inspector Octroi Inspector Overseer Power House Manager Driver Cleaner Posts required for schools run by the Panchayat Posts required for dispensaries run by the Panchayat Posts required for libraries run by the Panchayat 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 non-technical 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 sub- rule (2) of Rule 3 of the Gujarat Panchayat Service (Classification and Recruitment) Rules, 1967. Sub-rule (2) of Rule 3 of the Gujarat Panchayat Service (Classification and Recruitment) Rules, 1967 deals with Panchayat Service and stipulates Page 61 of 70 Downloaded on : Fri Dec 25 17:14:12 IST 2020 C/LPA/81/2020 CAV JUDGMENT 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 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 Page 62 of 70 Downloaded on : Fri Dec 25 17:14:12 IST 2020 C/LPA/81/2020 CAV JUDGMENT 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."
37. The Supreme Court thereafter took notice of the Circular issued by the Government of Gujarat, Panchayat Rural Housing and Rural Development dated 26 th February 2008 which was placed on record by way of additional documents. The Circular looked into by the Supreme Court reads thus :
"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."Page 63 of 70 Downloaded on : Fri Dec 25 17:14:12 IST 2020 C/LPA/81/2020 CAV JUDGMENT
38. The connected appeals of other employees also came to be allowed by the Supreme Court having regard to the facts and circumstances of each of the cases.
39. Mr.Barot, the learned counsel appearing for the writ-applicant has placed significant reliance on the afore-referred decision of the Supreme Court in the case of Harijan Paniben Dudabhai (supra). On the first splash, if the judgment of the Supreme Court in Harijan Paniben Dudabhai (supra) is not read closely, then it may give an impression that the writ-applicant is entitled to draw pension. However, if read closely, one can say that the facts in the case of Harijan Paniben Dudabhai (supra) were altogether different.
40. For the sake of convenience, we may once again summarise what weighed with the Supreme Court in granting relief to Harijan Paniben Dudabhai (supra). We quote :-
(1) 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 emphasis over here is on the 'sanctioned set up' of 'Safai Kamdars'.
(2) Although the resolutions of the Gram Panchayat making the appointment of Vela Keshav were not available, yet the necessary entry made in the service book of the deceased employee showed the other details in the service record.Page 64 of 70 Downloaded on : Fri Dec 25 17:14:12 IST 2020 C/LPA/81/2020 CAV JUDGMENT
(3) Vela Keshav was appointed as a Full Time employee on the sanctioned set up of the Gram Panchayat getting regular salary.
(4) The Okha Gram Panchayat appointed Vela Keshav as 'Safai Kamdar' on the terms and conditions as its own employee where there were no rules. However, Vela Keshav was holding the post on the sanctioned set up by the Development Commissioner and had continued till his retirement as a Full Time employee.
(5) The Supreme Court took the view that the appointment of Vela Keshav could not be said to have not been made in accordance with the provisions under Section 203 of the Panchayats Act because no such rules of recruitment were as such framed on the date on which Vela Keshav was appointed on 4th February 1964 (emphasis supplied).
(6) Vela Keshav was appointed as 'Safai Kamdar' on 4 th February 1964 by the Gram Panchayat. Section 203(3) of the Act empowers the State Government to make rules regulating the mode of recruitment. Rule 2 of the Gujarat Service (Appointing Authorities) Rules, 1967 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 the Gujarat Panchayat Service (Conditions of Service) Rules, 1977. The emphasis over here is on the term 'local cadre'.Page 65 of 70 Downloaded on : Fri Dec 25 17:14:12 IST 2020 C/LPA/81/2020 CAV JUDGMENT
(7) In the year 1964, when deceased Vela Keshav came to be appointed, there were no rules governing the appointment as the rules regulating the Superior Panchayat Service and the Inferior Panchayat Service in the form of the Gram Panchayat Service (Classification and Recruitment) Rules, 1967, came on the statute book in the year 1967.
(8) Going by the Gujarat Panchayat Service (Appointing Authorities) Rules, 1967, Gram Panchayat is the appropriate authority in respect of the posts included in the local cadre. The emphasis once again over here is on the term 'local cadre'.
41. We shall now compare the facts in the case of Harijan Paniben Dudabhai (supra) with the facts of the present case.
42. Before we undertake the aforesaid exercise, we must look into the Gujarat Panchayat Service (Classification and Recruitment) Rules, 1967. Section 2(f) defines the term 'Panchayat Service' to mean, 'Panchayat Service constituted under Section 203 of the Act'. Section 2(h) defines the term 'Selection Committee' to mean, 'District Panchayat Service Selection Committee constituted under sub-section (2) of Section 211 of the Act'.
43. The Rules thereafter classify services in the lower cadre. Rule 4 reads thus :
"4. 'Aya' and 'Dai' (Ward-maid and Midwifery). - The candidates -Page 66 of 70 Downloaded on : Fri Dec 25 17:14:12 IST 2020 C/LPA/81/2020 CAV JUDGMENT
(1) who are more than 40 years of age on the date of the appointment, and (2) who hold a Midwifery certificate issued by the office of the Director, Gujarat Public Health, or having such recognized qualification and training, those candidates will be appointed by direct recruitment."
45. The Rules make it abundantly clear that the posts of 'Aya' (Ward-maid) is of Taluka level cadre. The local cadres meant for the Nagar Panchayat/ Gram Panchayat does not include a cadre of 'Aya'. The District Panchayat Service Selection Committee (Functions) Rules, 1964, provides for the functions of the Committee. The selection for the cadre of 'Aya', a Taluka level cadre, is to be made by the District Panchayat Service Selection. In accordance with the Gujarat Panchayat Service (Appointing Authority) Rules, 1967, the Deputy District Development Officer is the appointing authority for the Inferior Service employees of the Taluka level cadre and the District level cadre. On the other hand, the Gram Panchayat is the appointing authority for the posts of local cadres of the Gram Panchayat.
46. As noted above, the cadre of 'Aya' is not a local cadre, and as such, is a Taluka level cadre.
47. The most important distinguishing feature in Harijan Paniben Dudabhai (supra) compared to the case on hand is the finding recorded by the Supreme Court that, when deceased Vela Keshav was appointed in the year 1964, there were no rules in Page 67 of 70 Downloaded on : Fri Dec 25 17:14:12 IST 2020 C/LPA/81/2020 CAV JUDGMENT force. However, in the case on hand, when the writ-applicant came to be appointed in the year 1968, the rules had already come into force. Once the rules came into force, the Gram Panchayat could not have appointed the writ-applicant to the post of 'Aya' (Ward-maid) (Inferior Service) but a Taluka level cadre and not a Gram Panchayat level cadre.
48. In such circumstances referred to above, any appointment after the rules came into force had to be in accordance with the procedure laid down in Section 203 of the Act and the Rules framed thereunder.
49. By the Resolution dated 29th April 1989 issued by the Government of Gujarat through its Health Department, the dispensary of the Gram Panchayat was taken over and was converted into a Primary Health Centre. This is how late Kamlaben N.Mehta was absorbed as 'Aya' (Class-IV) in the Panchayat Service in the regular pay-scale of Rs.750-940/- with effect from 29th April 1989 as a special case as she had already crossed the eligible age limit. The Condition No.6 of the Resolution dated 29th April 1989 categorically provided that the prior service rendered by late Kamlaben N.Mehta shall not be counted for the purpose of seniority, leave, pension, etc. The Condition No.1 therein provides that the pay-scale of Rs.750-940/- meant for a Class-IV employee would be available from the date of joining of the service as fresh appointment and the past service shall not be counted for the purpose of seniority, leave, pension, etc.
50. In the case on hand, the writ-applicant was not a member of the Panchayat Service between 1968 and 1989 and, therefore, Page 68 of 70 Downloaded on : Fri Dec 25 17:14:12 IST 2020 C/LPA/81/2020 CAV JUDGMENT was not entitled to draw pension under the Gujarat Panchayat Service (Pension) Rules, 1976, or any pension scheme framed by the Government for grant of family pension or otherwise for the members of the Panchayat Service.
51. Unfortunately, for the writ-applicant, after being appointed on the regular establishment, she retired within a period of 10 years. She could not be said to have put in 10 years of minimum qualifying service for the purpose of pension. Between 29.4.1989 and 31.5.1998, she could be said to be a 'Panchayat Servant' having rendered 'Panchayat Service', but as noted above, fell short of 10 years of qualifying service for the purpose of pension. The learned Single Judge, in our opinion, committed an error in taking the view that as there is a reference in the appointment order of 1968 to the provisions of the Grant-in-Aid Rules and the Rules issued by the Panchayat, the writ-applicant is entitled to pension.
52. In our opinion, the learned Single Judge also committed an error in taking the view that as the entire 30 years of service has been considered for the purpose of gratuity, the same should also be considered for the purpose of pension.
53. In view of the aforesaid discussion, we hold that the learned Single Judge committed an error going to the root of the matter, warranting interference at our hands in this Appeal.
54. In the result, this Appeal succeeds and is hereby allowed. The impugned judgment and order passed by the learned Single Judge is set-aside. The Special Civil Application No.11012 of 2015 is hereby rejected.
Page 69 of 70 Downloaded on : Fri Dec 25 17:14:12 IST 2020 C/LPA/81/2020 CAV JUDGMENT55. We clarify that this judgment will have no bearing so far as the payment of provident fund and gratuity is concerned.
(VIKRAM NATH, CJ.) (J. B. PARDIWALA, J.) /MOINUDDIN Page 70 of 70 Downloaded on : Fri Dec 25 17:14:12 IST 2020