Upleta Municipality vs Prabhaben Premjibhai Sidhpura
2021 Latest Caselaw 4411 Guj

      C/LPA/1407/2016                                           CAV JUDGMENT Dt. : 19.03.2021


               UPLETA MUNICIPALITY Versus PRABHABEN PREMJIBHAI SIDHPURA & 7 other(s)




         IN THE HIGH COURT OF GUJARAT AT AHMEDABAD


               R/LETTERS PATENT APPEAL NO. 1407 of 2016
                                  In
              R/SPECIAL CIVIL APPLICATION NO. 8532 of 1999



HONOURABLE DR. JUSTICE VINEET KOTHARI

and

HONOURABLE MR. JUSTICE BIREN VAISHNAV

==========================================================

1 Whether Reporters of Local Papers may be allowed to NO see the judgment ?

2     To be referred to the Reporter or not ?                                     NO

3     Whether their Lordships wish to see the fair copy of                        NO
      the judgment ?

4     Whether this case involves a substantial question of                        NO

law as to the interpretation of the Constitution of India or any order made thereunder ?

========================================================== UPLETA MUNICIPALITY Versus PRABHABEN PREMJIBHAI SIDHPURA & 7 other(s) ========================================================== Appearance:

MR BHAVESH P TRIVEDI(2731) for the Appellant(s) No. 1

MR KM ANTANI, ASST GOVERNMENT PLEADER/PP(99) for the

MR MRUGEN K PUROHIT(1224) for the Respondent(s) No. 7 MR YOGEN N PANDYA(5766) for the Respondent(s) No. 2,5.1,5.2,5.4,6

C/LPA/1407/2016 CAV JUDGMENT Dt. : 19.03.2021

UPLETA MUNICIPALITY Versus PRABHABEN PREMJIBHAI SIDHPURA & 7 other(s)

MS. SHIVANGI M RANA(7053) for the Respondent(s) No. 5.3 ==========================================================

CORAM: HONOURABLE DR. JUSTICE VINEET KOTHARI

And

HONOURABLE MR. JUSTICE BIREN VAISHNAV

Date : 19/03/2021

CAV JUDGMENT

(PER : HONOURABLE MR. JUSTICE BIREN VAISHNAV)

1. This Letters Patent Appeal has been filed against the oral order dated 01.04.2016 passed by the learned Single Judge. By the order under challenge, the learned Single Judge issued directions to the Nagar Prathmik Shikshan Samiti of the appellant Municipality to prepare the necessary proposal for fixation of the revised pension and forward the same to the Upleta Municipality, who in turn, shall sanction the same and see to it that the regular pension is paid to the original petitioners.

2. The respondents - original petitioners had approached this Court by way of a petition stating that they have been working as Sweepers under the Education Committee of the Upleta Municipality for several years. The appointment orders have been issued in various years, namely, 23.08.1974, 10.11.1976, 07.02.1985, 25.07.1985 and 11.10.1988 respectively.

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UPLETA MUNICIPALITY Versus PRABHABEN PREMJIBHAI SIDHPURA & 7 other(s)

The petitioners came before this Court on the ground that some of the employees of the Education Committee of the Municipality have implemented the Fifth Pay Commission whereas it was not done for the petitioners. It was in these context that the prayers as quoted by the learned Single Judge were prayed for.

3. Mr. Bhavesh Trivedi, learned Counsel for the Appellant would draw the attention of the Court to the appointment orders and submit that the appointments of the respondents - original petitioners were temporary and therefore, no regular benefits of the Fifth Pay Commission and/or pension be paid. He would, therefore, submit that the directions of the learned Single Judge to grant the relief is misconceived.

4. Mr. Yogen Pandya, learned counsel for the respondents in appeal would submit that the learned Single Judge has

extensively relied on the decision dated 04.03.2016 passed in

Special Civil Application No. 14188 of 2011. The

contention of the appellant Municipality that the respondents - original petitioners were not serving on sanctioned posts was negated and the petition was allowed with a direction to the Municipality to prepare a necessary proposal for fixation of revised pension. He would submit that on an appeal being filed by the Municipality, the Division Bench by its oral order dated

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UPLETA MUNICIPALITY Versus PRABHABEN PREMJIBHAI SIDHPURA & 7 other(s)

09.11.2016 dismissed the appeal of the Municipality and the petitioners being the same, the order of Division Bench will govern the present appeal.

5. Having considered the facts of the case and noting the fact that the respondents herein continued to work under the appellant over a span of more than 20 to 25 years and either having retired or still in service, they cannot be denied the benefits of revision of pay. For the benefit of the Court, the

order passed by the Division Bench in Letters Patent Appeal

No. 1114 of 2016 is quoted as under:

"

1. This Letters Patent Appeal under Clause­15 of the Letters Patent is filed by the original respondent no. 2 in Special Civil Application No.14188 of 2011 being aggrieved by the order dated 4.3.2016 passed by the learned single Judge in the said petition.

2. Special Civil Application No. 14188 of 2011 was filed by respondent nos. 1 and 2 herein with the prayers which read as under:

(A) That this Hon'ble Court may be pleased to issue a writ of mandamus commanding the authorities to immediately implement and carry out their order dt. 12.7.2010 qua the petitioners for revision of pay, pension by paying arrears with 9% interest under the 5th Pay Rules which has been sanctioned and quash the inaction.

(B) That the respondents may be directed to properly fix the pension which has not been carried out under the revision of pay by taking into account certain recognised head of D.A. and interim relief.

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(C) Pending admission hearing ans final disposal of the petition the respondents may be directed to carry out fixation and calculate the arrears on such fixation and pay them accordingly.

(D) Such other and further relief or reliefs may kindly be granted in the interest of justice.

2. Original petitioners, respondent nos. 1 and 2 herein were working as Peon in the Nagar Prathmik Shikshan Samiti which is under administrative and disciplinary control of the appellant­municipality. Respondent nos. 1 and 2 retired from service in the year 2006. After the retirement, their pension papers were processed by the appellant and pension is being paid to them. However, when the revised pension was not paid by implementing the recommendations of 5th Pay Commission, they filed Special Civil Application No. 14188 of 2011. Reliance is placed on the order dated 12.7.2010 passed by the appellant­municipality, wherein decision was taken to implement the 5th Pay Commission recommendations by revising the pay­scales of the employees as well as the pensioners. During the pendency of the Special Civil Application, the appellant­municipality was directed by the learned single Judge to deposit amount of Rs.1,65,361/­ and Rs. 1,38,663/­ towards the arrears on account of implementation of 5th Pay Commission recommendations to respondent nos. 1 and 2 respectively and the appellant was further directed to pay revised pension by implementing the 5th Pay Commission recommendations to respondent nos. 1 and 2.

3. In this appeal, it is mainly contended by learned counsel for the appellant that respondent nos. 1 and 2­original petitioners were working under the Nagar Prathmik Shikshan Samiti which is under the administrative and disciplinary control of the appellant­municipality. It is submitted that separate fund is allotted to such Nagar Prathmik Shikshan Samiti. In that view of the matter, no directions have been issued by the learned single

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UPLETA MUNICIPALITY Versus PRABHABEN PREMJIBHAI SIDHPURA & 7 other(s)

Judge to pay the revised pension by implementing the 5th Pay Commission recommendations.

4. It is not in dispute that, Nagar Prathmik Shikshan Samiti, which runs school is under the administrative and disciplinary control of the appellant­Municipality. It is also not in dispute that after retirement, pension papers of respondents no.1 and 2 were processed for pension and recommended by the appellant­ Municipality. In that view of the matter, there is no reason for not implementing the order dated 12.07.2010 for the purpose of recommending revised pension, by implementing the recommendations of 5th Pay Commission. As it is pleaded that revised pension is to be granted by the Government, while it is open to the appellant­Municipality to claim such amount from the Government there is no reason for not processing the papers for grant of revised pension to respondents no.1 and 2. For the aforesaid reasons, we do not find any merit in this appeal so as to interfere with the order passed by the learned Single Judge.

5. Accordingly, while dismissing the appeal, we grant liberty to the appellant­Municipality to move the Government for reimbursement of arrears which are paid on account of implementation of the recommendations of 5th Pay Commission to respondents no.1 and 2. If any such proposals are sent, it is open to the Government to pass appropriate orders on the proposal of the appellant­Municipality.

6. Since the main appeal is dismissed, the Civil Application does not survive and the same is disposed of accordingly."

6. For the reasons as aforesaid, the present Letters Patent Appeal filed by Upleta Municipality is dismissed. The oral order dated 01.04.2016 passed by the learned Single Judge is confirmed and the direction as granted by the learned Single

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Judge in para 5 quoted hereinbelow is confirmed.

"5 . In such circumstances, the respondent No.1 - Nagar Prathmic Sikshan Samiti shall prepare the necessary proposal for fixation of the revised pension and forward the same to the Upleta Municipality, who in turn, shall sanction the same and see to it that the regular pension is paid to the petitioners. So far as the petitioners Nos.2 and 6 are concerned, who are still in service, their pay shall accordingly be revised including the arrears. Let the entire exercise be completed within a period of two months from the date of receipt of the writ of this order."

7. While dismissing the appeal, we grant liberty to the appellant Municipality to move the Government for reimbursement of arrears which are paid on account of

implementation of the recommendations of 5th Pay Commission to respondents. If any such proposals are sent, it is open to the Government to pass appropriate orders on the proposal of the appellant­Municipality (for such reimbursement). The benefits as directed by the learned Single Judge and so confirmed by this Court shall be paid to the respondents within a period of six months from the date of receipt of the writ of this Court. Appeal is dismissed. No costs.

(DR. VINEET KOTHARI,J)

C/LPA/1407/2016 CAV JUDGMENT Dt. : 19.03.2021

UPLETA MUNICIPALITY Versus PRABHABEN PREMJIBHAI SIDHPURA & 7 other(s)

(BIREN VAISHNAV,J) DIVYA