C/SCA/16621/2021 ORDER DATED: 15/03/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 16621 of 2021
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PRAKASH DHIRAJLAL BABARIYA
Versus
STATE OF GUJARAT
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Appearance:
MS MAMTA R VYAS(994) for the Petitioner(s) No. 1
MS SUMAN MOTLA, AGP for the Respondent(s) No. 1,2
MR BJ TRIVEDI(921) for the Respondent(s) No. 3
MR JT TRIVEDI(931) for the Respondent(s) No. 3
MS JIGNASA B TRIVEDI(3090) for the Respondent(s) No. 3
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 15/03/2023
ORAL ORDER
1. Rule. Learned advocates for the respective parties waive service of notice of Rule on behalf of the respective respondents.
2. With the consent of the learned advocates appearing for the respective parties, the matter is taken up for final hearing.
3. In the present writ petition, the petitioners have prayed for the following prayers:
"11(A) Your Lordships may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction Page 1 of 13 Downloaded on : Thu Mar 16 20:50:09 IST 2023 C/SCA/16621/2021 ORDER DATED: 15/03/2023 quashing and setting aside the order dated 02/10/2021 passed by Resp.No.3 denying to process the pension papers and further be pleased to hold that the petitioner is entitled for the pension and other retiral benefits counting his services with effect from 1/1/1999 till 30/09/2021 for the purpose of pension and further be pleased direct the respondents to pay the arrears of pension and other benefits to the petitioner with consequential benefits alongwith interest @15%.
(B) Pending admission, hearing and final disposal of this Writ petition, Your Lordships may be pleased to direct the Resp. No.3 to process the pension papers of the petitioner and direct the Respondents to pay the pension every month to the petitioner forthwith;
(C) Be pleased to impose heavy cost upon respondents for dragging the petitioner before this Hon'ble Court for his legitimate rights of retiral dues.
(D) xxxx"
4. The petitioner joined the respondent Municipality in the year 1985 and his service is regularized w.e.f.
1.1.1999.
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5. At the outset, learned advocate Ms.Mamta Vyas appearing for the petitioners and the learned advocate Mr.B.J.Trivedi appearing for the respondent No.1 have submitted that the issue is squarely covered by the decision of the Division Bench dated 16.04.2018 passed in Letters Patent Appeal No.891 of 2017. Learned advocate Mr.Trivedi has invited the attention of this Court to the averments made in paragraph No.3 of the affidavit-in-
reply dated 18.12.2019, wherein a categorical statement has been made that the aforementioned judgment would be binding in the case of the petitioner and the same has attained finality.
6. It is the case of the petitioner that the petitioner came to be appointed as daily-wager in the Jamjodhpur Nagarpalika. It appears that, the petitioner was in continuous service with the respondent No.1 Nagar Panchayat for several years and his service is regularized w.e.f. 1.1.1999. The petitioner is superannuated in the year 2021.
7. This Court has perused the judgment and order dated 16.04.2018 passed in Letters Patent Appeal No.891 of Page 3 of 13 Downloaded on : Thu Mar 16 20:50:09 IST 2023 C/SCA/16621/2021 ORDER DATED: 15/03/2023 2017. A perusal of the judgment reveals that the similar issue with regard to the same employees has been considered by the Division Bench and ultimately, the Division Bench has issued the following directions:
"3.1 Even subsequent Government Resolutions issued by the Department of Urban Development and Urban Housing on 01.12.2009 and 22.03.2017, extended the benefit of pension, for which sanction is given by Department of Finance vide Resolutions dated 30.12.2016 and 28.02.2017 and to extend benefits of provisional pension so provided in Gujarat Civil Services (Pension Rules, 2002).
3.3 Thus, learned Single Judge has taken proper care to see that while making payment of arrear of pension to the petitioner, it would be open to the Municipality to deduct the amount of Provident Fund, to the extent of that employer share (under the head of C.P.F) if paid to the petitioner. Such direction according to us, are within the four corners of law and entitlement of the petitioner to receive pension and other retiral dues based on various resolutions to which reference is made in earlier part of this judgment, we find no substance in this appeal preferred by the appellant - Municipality. That, submissions made in paragraph 4 of the affidavit-inreply that, so far the appellant - Municipality is concerned, no financial liability Page 4 of 13 Downloaded on : Thu Mar 16 20:50:09 IST 2023 C/SCA/16621/2021 ORDER DATED: 15/03/2023 would be incurred by the appellant if the pension is directed to be paid. Conjointly, the appointment of the respondent- employee is confirmed in sanctioned setup as a regular employee with effect from 01.01.1992, for which, Director of Municipality has accorded the sanction and the Municipality has passed subsequent resolutions with regard to the entitlement of the respondent-employee for receiving pensionary benefits and other retiral dues along with the arrears by adjusting the amount already paid to the employee towards C.P.F. Under the circumstances, the appeal do not deserve any interference. The appeal is accordingly dismissed. Interim relief stands vacated in view of dismissal of the appeal. In view of dismissal of the main appeal, the Civil Application No. 1 of 2017 also stand dismissed."
8. Learned advocate Ms.Mamta Vyas has drawn the attention of this Court towards paragraphs 5.5 to 6.5 of the order passed in Special Civil Application No.18762 of 2013 of similarly situated persons like the petitioner, which is reproduced as under:
"5.5 Thus this is not that the petitioner had not opted for pension, but it is the Municipality which did not give that option to the petitioner. Whether the Municipality had authority to do so or not is also a question, but even if that is not gone into, suffice it to hold that, the petitioner can not be blamed for it.Page 5 of 13 Downloaded on : Thu Mar 16 20:50:09 IST 2023
C/SCA/16621/2021 ORDER DATED: 15/03/2023 Further, the above point is interconnected with the second which is dealt with hereunder.
5.6 The contest of the Municipality on the ground that the service of the petitioner was not within the regular sanctioned set up, also needs to be rejected, since it is contrary to record. There is material on record which indicates that, the question of regularisation of service of many employees of the respondent Municipality was under consideration of the Government. The State Authorities sanctioned the set up and regularised the service of many employees with retrospective effect. One of such orders was passed by the Director of Municipalities, Gujarat State on 17.05.2012. Based on the said order, the respondent Municipality passed the consequential order on 17.05.2012. The said order is on record as Annexure : D. The petitioner is the first amongst 20 persons whose services were regularised by the said order. As per the said order, the petitioner is treated to be permanent employee (Driver) of the respondent Municipality with effect from 01.01.1992. His pay was fixed in the pay-scale of Rs.950-1500 then prevailing. With the revision of pay with effect from 01.01.1996, his pay-scale was revised from Rs.950-1500 to Rs.3050-4590. All these details are reflected in the office order passed by the Municipality itself and along with the petitioner, there are 19 other employees also. The controversy is raised by the respondent Municipality qua the present petitioner only, that too after his retirement that his appointment was not within the regular sanctioned set up. The basic argument of the respondent Municipality against the petitioner on this ground therefore needs to be rejected.
Page 6 of 13 Downloaded on : Thu Mar 16 20:50:09 IST 2023C/SCA/16621/2021 ORDER DATED: 15/03/2023 5.7 There is also material on record to indicate that to derail the pension case of the petitioner, it is claimed by the Municipality that guidance is sought from the State Authorities (letter dated 03.10.2013 - Annexure : H). That guidance has not come so far. The contest is not on the ground that guidance is sought, which has not come and therefore delay. The contest is that petitioner is not entitled to pension at all. Thus the respondent Municipality has acted as if it is in search of reasons to frustrate this petition.
5.8 When the Municipality has ventured to take such a stand against the petitioner, which is not only inconsistent but is contrary to its own record and the record of the Government, the matter is probed little further. In this background, Mr. Rindani, learned Assistant Government Pleader has drawn the attention of this Court to the facts of Special Civil Application No.394 of 2016 (which is a 'labour matter' by some different person against this very Municipality), which may have some interconnection. It is a matter of record (on the said petition) that, the proposal to regularise the service of the petitioner with retrospective effect, along with other similarly situated persons, was already made by the respondent Municipality in its various proposals. One of such proposal was dated 02.01.2012, which has ultimately been culminated in the sanction of the State Authorities. The respondent Municipality has thus chosen to disclose only convenient facts to this Court. This attempt is rejected in strongest words. Since Special Civil Application No.394 of 2016 is pending consideration by a Coordinate Bench of this Court, further deliberation in that regard is avoided. Suffice it to hold that, so far the present petitioner is concerned, the action of the Page 7 of 13 Downloaded on : Thu Mar 16 20:50:09 IST 2023 C/SCA/16621/2021 ORDER DATED: 15/03/2023 respondent Municipality is not only illegal, but also lacks bona fide. For all these reasons this Court finds that, the stand of the Municipality needs to be rejected and the relief as prayed for by the petitioner needs to be granted.
6. For the reasons recorded above, the following order is passed.
6.1 This petition is allowed.
6.2 It is held that the petitioner is entitled to pension. The respondents are directed to finalise the pension case of the petitioner within a period of three months from the date receipt of this order.
6.3 The petitioner is also entitled to get statutory interest, for the delayed payment of his retiral dues, as per the policy of the State.
6.4 While making payment of arrears of pension to the petitioner, it would be open to the Municipality to deduct the amount of provident fund, to the extent of 'employer's share' (under the head of Contributory Provident Fund), if any paid to the petitioner. If there is any grievance with regard to the calculation in this regard, it would be open to the petitioner to agitate the same, before appropriate forum, in accordance with law.
6.5 Rule is made absolute in above terms. No order as to costs."
9. The petitioner has filed rejoinder to the affidavit-in-reply filed by the respondent Municipality.
The respondent-State Government has not filed any Page 8 of 13 Downloaded on : Thu Mar 16 20:50:09 IST 2023 C/SCA/16621/2021 ORDER DATED: 15/03/2023 affidavit-in-reply. The petitioner has drawn my attention towards the judgment of Division Bench of this Court in Letters Patent Appeal No.1067 of 2015 decided on 6.10.2015, more particularly, to paragraphs 10 to 15, which is reproduced hereunder:
"10. In view of the aforesaid fact situation, as such, the present Letters Patent Appeals as being covered by the above referred earlier decisions of this Court which has been ultimately not interfered with by the Apex Court and accepted by the appellant municipality at the later stage, it may not be required to be entertained.
11. However, Mr. Hasurkar, learned counsel appearing for the appellant made twofold submissions and he further contended that the said aspects were not brought to the notice of the Court at the time when earlier Letters Patent Appeals were decided and therefore, this Court may hold the earlier decision as per incuriam and a different view may be taken than was taken in the above referred Letters Patent Appeals. The first submission was that in the earlier decision of this Court, the employees concerned were appointed by the then Gram Panchayat which is subsequently converted into appellant municipality and therefore, the present employees Page 9 of 13 Downloaded on : Thu Mar 16 20:50:09 IST 2023 C/SCA/16621/2021 ORDER DATED: 15/03/2023 in respect of whom the petitions were filed before the learned Single Judge cannot be said to be on the same footing since all the original petitioners herein were appointed by the municipality itself and not by the then Gram Panchayat. In furtherance to his submission, the learned counsel submitted that in panchayat service pension would be available to the employees of the panchayat whereas such would be unavailable to the employees of the municipality. The second contention raised was that merely because GPF contribution is made and the amount is deposited in GPF, it cannot be said that the employees concerned would be entitled to pension unless it is expressly shown that the employees concerned are covered by a particular rule or resolution of the Government which makes the employees concerned as entitled for pension. In his submission, in absence thereof, the pension would not be available nor the municipality could be directed to pay pension either directly or through the Government.
12. The first contention raised for making distinction to the original appointment of the employees concerned in our view would be inconsequential for the simple reason that had
the original petitioners treated as employees of municipality Page 10 of 13 Downloaded on : Thu Mar 16 20:50:09 IST 2023 C/SCA/16621/2021 ORDER DATED: 15/03/2023 for the purpose of CPF Scheme, the matter might stand on different footing and different consideration, but once the employees concerned were treated as member of GPF and the contribution for GPF was deducted from time to time, whether they were appointed by the then Gram Panchayat or municipality would not make any difference for their status as the member of the GPF. It is not the case of the appellant municipality that by mistake they were admitted as member of GPF nor it is the case of the municipality that by misrepresentation or fraud the respective employees had become the member of GPF. Under these circumstances, we find that the distinction as sought to be canvassed would be inconsequential for entitlement of the pension in capacity as the member of GPF by the employee concerned.
13. The second contention raised that unless expressly demonstrated before the Court for entitlement of the pension as per rules or as per Government Resolution, such amount of pension would be unavailable since the municipality in any case had to deposit the amount with the Government treasury as per section 57A of the Gujarat Municipalities Act, in our view also cannot be countenanced for two reasons, one is that it is Page 11 of 13 Downloaded on : Thu Mar 16 20:50:09 IST 2023 C/SCA/16621/2021 ORDER DATED: 15/03/2023 not a matter of depositing the amount in the Government treasury as sought to be canvassed, but is a matter of depositing the amount in GPF fund which is a separate fund and being governed by separate mechanism, viz., Bombay General Provident Fund Rules. Secondly, once the municipality has treated the employees concerned as member of GPF and has deposited his GPF contribution with the GPF, it would not lie in the mouth of the municipality to contend that since the municipality had to deposit the amount of contribution in Government treasury, it should not be treated as contribution of GPF entitling the employee concerned for pension.
14. In view of the above, we do not find
that a different view deserves to be taken than
was taken by this Court in respect of the employees of the very municipality who were similarly situated and for whom this Court has found that the pension was available and the said order is not interfered with by the Apex Court in the above referred SLPs.
15. In view of the above, all appeals are meritless and therefore dismissed. Considering the facts and circumstances, no order as to costs."
10. Learned AGP Ms.Motla has submitted that if respondent no.3 will forward pension papers to the State Government, then it will be decided expeditiously in view Page 12 of 13 Downloaded on : Thu Mar 16 20:50:09 IST 2023 C/SCA/16621/2021 ORDER DATED: 15/03/2023 of the judgments referred in paragraphs 7 to 9 in this judgment.
11. Thus, in view of the above discussion, present petition deserves to be allowed and the same is allowed in terms of prayer clause 11(A) by setting aside the impugned order dated 2.10.2021 issued by respondent no.3. It is directed that respondent no.3 shall prepare the papers for pension for the entire period for which the petitioner has rendered his service and shall forward the same to the respondent no.1 and 2 within two weeks from today and on receipt of such papers, the respondent no.1 and 2 shall consider and grant pension and other retiral benefits to the petitioner from the date of his retirement. The same shall be considered and paid to the petitioner as expeditiously as possible but not later than six weeks from receipt of pension papers from respondent no.3.
12. Rule is made absolute to the aforesaid extent.
Direct service is permitted.
(SANDEEP N. BHATT,J) SRILATHA Page 13 of 13 Downloaded on : Thu Mar 16 20:50:09 IST 2023