Gujarat High Court
Ansuyaben Govindbhai Parikh Widow Of ... vs State Of Gujarat on 5 August, 2016
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/1559/2000 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 1559 of 2000
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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ANSUYABEN GOVINDBHAI PARIKH WIDOW OF DECEASED....Petitioner(s)
Versus
STATE OF GUJARAT, THROUGH SECRETARY, PANCHAYAT AND &
2....Respondent(s)
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Appearance:
MR BIPIN I MEHTA, ADVOCATE for the Petitioner(s) No. 1
MR. GOUTAM, ASST. GOVERNMENT PLEADER for the Respondent(s) No. 1
MR HS MUNSHAW, ADVOCATE for the Respondent(s) No. 2
RULE SERVED for the Respondent(s) No. 3
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 05/08/2016
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C/SCA/1559/2000 JUDGMENT
ORAL JUDGMENT
1. By this writ application under Article 226 of the Constitution of India, the writ applicant, a widow of a deceased employee of the Gram Panchayat, has prayed for the following reliefs;
"(A) directing the respondents to give to the petitioner family pension of the deceased employee Shri Govindbhai L. Parikh.
(B) directing that the petitioner being a legal heir of the deceased employee is eligible and entitled to get the benefit of family pension;
(C ) directing the respondents to give arrears of amount of family pension to the petitioner with 18% interest since the date of death of the deceased employee Shri Govindbhai L. Parikh;
(D) Any other and further reliefs as may be deemed just and proper by Your Lordships may please be granted.
(E) Awarding the cost of this petition"
2. The case of the writ applicant may be summarized as under;
2.1 The husband of the writ applicant was serving on the post of the Octroi Clerk with the Respondent No.3-Gram Panchayat. The husband was appointed initially on 18th February, 1971 on ad-hoc basis. Thereafter, he was conferred the permanent status on the post of the Octroi Clerk. On 30th August, 1997, the husband passed away.
2.2 On 15th February, 1998, the writ applicant herein requested that she be paid the family pension in accordance Page 2 of 7 HC-NIC Page 2 of 7 Created On Wed Aug 10 02:23:20 IST 2016 C/SCA/1559/2000 JUDGMENT with the Family Pension Scheme of the Government. Since the request of the writ applicant for the family pension has not been considered, this writ application has been filed.
3. Mr. Mehta, the learned counsel appearing for the writ applicant submits that his client is entitled to receive the family pension in accordance with the Family Pension Scheme framed by the State Government under Resolution No.FPS- 1071-J dated 1st January, 1972. According to Mr. Mehta, the family pension scheme has been considered by this Court in the case of Mankuvarba Manaharsinh Vaghela v. Tharad Nagar Panchayat & Anr., 1992 (I) GLR 375.
4. On the other hand this writ application has been vehemently opposed by Mr. Munshaw, the learned counsel appearing for the District Panchayat. According to Mr. Munshaw, the writ applicant is not entitled to receive any family pension.
5. Mr. Munshaw has placed reliance on the following averments made in the affidavit-in-reply filed by the Joint Secretary, Panchayat Rural Housing & Rural Development Department, State of Gujarat.
"3. With reference to para: 1 of the petition, I say and submit that the petitioner's husband was appointed as a Octroi Clerk by by Kharaghoda Gram Panchayat it's own resolution no.3 dated 5.1.71 in the fix pay of Rs.100/- on the adhoc basis as a daily wager. The petitioner's husband had joined the service in the Kharaghoda Gram Panchayat on 18.2.71 as a daily wager and he had worked in the fix pay from 18.2.71 to 31.12.76. Then after the petitioner's husband was getting regular pay from Kharaghoda Gram Panchayat as per its own terms and conditions. The petitioner's husband expired on 30.8.97. Thus, looking to the facts, the petitioner's husband was not required as per section 203 of Gujarat Page 3 of 7 HC-NIC Page 3 of 7 Created On Wed Aug 10 02:23:20 IST 2016 C/SCA/1559/2000 JUDGMENT Panchayat Act, 1961 and therefore, he was neither panchayat service's employee nor Government Service's employee. I say that as per the judgment of Hon'ble the Supreme Court of India reported in AIR-1984 SC-161 the gram/nagar Panchayat has no power to recruit any person, or to recruit any person to regularize his service and fixation of the pay etc. The Panchayat department has issued circular No.NPM-1083-964-K-1 dated 25.8.83. A copy of said circular dated 25.8.83 is annexed herewith and marked as Annexure'A". As per the judgment of Hon. Gujarat High Court reported in GLR-1998(2) Page: 1644 the petitioner's husband was 10th fail and he was not qualified per4son and not recruited as per section 203 of Gujarat Panchayat Act 19761 and therefore, the petitioner is not entitled to get pensionary benefit as prayed by her in the present petition. But, she is entitled to get the service benefit as per the terms and conditions of her husband's appointment, which was made by Kharaghoda Gram Panchayat. As per the judgment of Hon. Gujarat High Court dated 21.12.99 in MCA No.482/95 the liability of payment is concerned to gram/nagar from it's own fund as per the terms, conditions of the emloyees at relevant time of their appointments. A copy of the said judgment dated 21.12.99 is annexed herewith and marked as annexure 'B' . The Kharaghoda Gram Panchayat has passed resolution No.11 dated 19.10.1972 and applied the C.P.F from 1.11.1972 and to his employees. As per the said schyeme Kharaghoda Gram Panchayat paid C.P.F Rs.35,714,00 to the petitioner on 10.12.1997 and the Gratuity Rs.57,528.00 paid on 17.11.1997 and leave amount Rs.6,082/- also paid. Thus, looking to the all facts the petitioner is not entitled to get the family pension.
5. With reference to the averments made in para:3 and 4 of the petition I say and submit that as per the Gujarat High Court's judgment reported in GLR-1998 page 2264 to 2309 the petitioner's husband was not recruited as per the due following procedure laid down in the section 203 of the Gujarat Panchayat Act, 1961 and therefore, the petitioner is not entitled to get all service benefits and family pension. As per the scheme of C.P.F Kharaghoda Gram Panchayat had paid Rs.35,714/- to the petitioner on 10.12.1997. The petitioner has given retirement benefits as per the terms and conditions of Kharaghoda Gram Panchayat.
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C/SCA/1559/2000 JUDGMENT
6. With reference to the averments made in para 5 of the petition, I say and submit that petitioner's husband was neither panchayat service's employee nor Government Service's employees. Kharaghoda Gram Panchayat is self Governing autonomous body under the Gujarat Panchayats Act, 1961. The State Government Scheme's or family pension is not applicable to the petitioner because her husband was not recruited as per the due following procedure narrated in above paragraphs.
7. With reference to the averments made in para 6 of the petition, I say and submit that the petitioner's case is not compared with the case of Mankuvarba vs. Tharad Nagar Panchayat, 1992 Vol. I.GLR-375 because as per the terms and conditions of Tharad Nagar Panchayat are different. Tharad Nagar Panchayat has applied the pension scheme to it's employee. The same Nagar Panchayat has not applied the C.P.F scheme to its employees. In this case the gram/nagar panchayat is giving the pension from the its' own fund as per the section 204 of Gujarat Panchayat Act, 1961 and Government Resolution No.NPM-16010467-K, dated 14.9.1993 up to 45 percentage establishment expenditure of the total annual income of the concerned gram/nagar panchayat. A copy of the said circular is annexed herewith and marked as annexure 'C'.
8. With reference to the averments made in para 7 of the petition, I say and submit that in the case of Gujarat High Court SCA No.101/92 the family pension is giving to widow Dilheriben Thakore by Halol Nagar Panchayat from its own funds as per the section 204 of Gujarat Panchayat Act, 1961 and section 228 of Gujarat Panchayat Act, 1993 and the terms and conditions of the Dilheriben Thakore's husband's appointment made by Halol Nagar Panchayat.
9. With rerence the averments made in para 8 of the petition, I say and submit that in the case of Gujarat High Court SCA No.5789/95 the family pension is giving to widow Kokilaben V. Desai by Kalol Nagar Panchayat from it's own fund as per the section 204 of Gujarat Panchayats Act, 1961 and section 228 of Gujarat Panchayat Act 1993 and the terms and conditions of the Page 5 of 7 HC-NIC Page 5 of 7 Created On Wed Aug 10 02:23:20 IST 2016 C/SCA/1559/2000 JUDGMENT Kokilaben Desai's husband's appointment made by Kalol Nagar Panchayat.
10. With reference to the averments made in para 9 and 10 of the petition, I say and submit that the petitioner's case is not identified to the above said case because Kharaghoda Gram Panchayat has applied the C.P.F Scheme, not G.P.F Scheme to it's employees. Further the petitioner husband was not recruited as per duly procedure as narrated in above paragraphs. Thus, the petitioner's husband's appointment was illegal, irregular and out of the rules. As per the Gujarat High Court's judgment reported in GLR-1998 page 2264 to 2309, the petitioner is not entitled to get the all service benefits and the family pension. Thus, there is no arbitrary discriminatory and violative of Articles 14 and 16 of the Constitution of India.
11. With reference to the averments made in para 11 of the petition, I say and submit that the employees who are recruited as per section 203 of Gujarat Panchayats Act, 1961 and the Section 227 of Gujart Panchayats Act, 1993 they are entitled for pension/family pension as per rules, who are working in the District Cadre / Taluka Cadre/Local cadre but the petitioner's husband was not recruited as per the due procedure and therefore, the petitioner is not entitled to get the family pension. Further, Kharaghoda Gram Panchayat has applied C.P.F Scheme to it's employee and therefore, the petitioner is not entitled to get the family pension. Further, in the light of the afore mentioned facts and circumstances such backdoor entry dehors the rules is not permitted. As per the judgment of Hon. Gujarat High Court dtd. 15.3.200 of the present petition and looking to the all facts, the State Govt. has made speaking order dtd. 10.4.2000. A copy of the said order is annexed herewith and marked as annexure'D'."
6. Mr. Munshaw has also placed reliance on the averments made in the affidavit-in-reply filed on behalf of the respondent No.3-Gram Panchayat. He has also placed reliance on the averments made in the affidavit-in-reply filed on behalf of the District Panchayat.
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C/SCA/1559/2000 JUDGMENT
7. Mr. Goutam, the learned AGP appearing for the State has also opposed this writ application. He has placed reliance on the averments made in the affidavit-in-reply filed on behalf of the State.
8. Since there is no decision taken till this date and there is no order in writing, I am of the view that the authorities should immediately take into consideration the claim put forward by the writ applicant herein and, more particularly, keeping in mind the decision of this Court in the case of Mankuvarba Manaharsinh Vaghela (supra) referred to above. The respondent No.1 shall look into the judgment of this Court referred to above and take an appropriate decision in this regard in accordance with law within a period of two months from the date of the receipt of the writ of the order. The decision shall be in writing and the same shall be communicated to the writ applicant. For any reason, if the writ applicant is dissatisfied with the final decision of the State Government, then it shall be open for her to challenge the same before this Court.
9. With the above, this writ application is disposed of. Rule is made absolute to the aforesaid extent.
Direct service is permitted.
(J.B.PARDIWALA, J.) Vahid Page 7 of 7 HC-NIC Page 7 of 7 Created On Wed Aug 10 02:23:20 IST 2016