Gujarat High Court
Rasulbhai Umarbhai Malek vs Director Of Municipalities on 6 October, 2021
Bench: Bhargav D. Karia
C/SCA/12554/2004 CAV JUDGMENT DATED: 06/10/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 12554 of 2004
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BHARGAV D. KARIA
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1 Whether Reporters of Local Papers may be allowed NO
to see the judgment ?
2 To be referred to the Reporter or not ? NO
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 ?
==========================================================
RASULBHAI UMARBHAI MALEK
Versus
DIRECTOR OF MUNICIPALITIES & 1 other(s)
==========================================================
Appearance:
ME DHAWAN JAYSWAL, AGP for the Respondent(s) No.
MR KEYUR A VYAS(3247) for the Respondent(s) No. 2
==========================================================
CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA
Date : 06/10/2021
CAV JUDGMENT
1. The petitioner has prayed for pension
benefits on the ground that he has been
granted gratuity for the services rendered
by him.
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2. The petitioner was appointed as a driver
with respondent-Municipality in the year
1982 and on reaching the age of
superannuation, the petitioner retired from
service with effect from 14.5.2000.
3. It is the case of the petitioner that after
retirement of the petitioner, he was not
paid the termination dues including gratuity
and pension. The petitioner approached the
Controlling Authority under the Payment of
Gratuity Act, 1972 for claim of gratuity
amount which was allowed vide order dated
16.4.2001.
4. However respondent Nagarpalika did not pay
the amount of gratuity of Rs.49,461.30 with
10% simple interest from 14.5.2000 as per
the order passed by the Controlling
Authority. The petitioner therefore,
obtained certificate for recovery and
thereafter preferred Special Civil
Application No.7311/2001. This Court while
disposing of the Special Civil Application
directed the respondents to release the
payment of gratuity amount to the petitioner
which was subsequently paid to the
petitioner.
5. Respondent Nagarpalika however did not grant
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the pension of the petitioner for his
services from 1982 to 2000 which is almost
for 18 years. The petitioner therefore,
again made representation on 19.2.2004
before the respondents by issuing notice
from advocate as no response was given by
the respondent Nagarpalika for grant of
retirement dues including pension to the
petitioner. The petitioner has thereafter,
approached this Court with a prayer to
direct the respondent Nagarpalika to pay the
pension of the petitioner along with other
retirement dues.
6. It appears that during the pendency of the
petition, this Court (Coram : Hon'ble Mr.
Justice Mohinder Pal, As His Lordship was
then) passed the following order on
22.02.2018 :
"1. The petitioner in this case has
claimed pensionary benefits on the
ground that he has been granted gratuity
for the services rendered by him. In
view of these circumstances, this Court
has passed the following order on
23.3.2017.
"The learned advocate for the respondent
no. 2 has prayed for short adjournment
to collect the instruction with respect
to claim of the petitioner regarding
pensionary benefit as the learned
advocate for the petitioner has pointed
C/SCA/12554/2004 CAV JUDGMENT DATED: 06/10/2021
out from the material on record that the
petitioner has been paid amount of
gratuity, considering his total period
of services i.e. 18 years. Considering
the request made by Mr. Sanjay M. Amin,
learned advocate for the respondent no.
2, list again on 06.04.2017.
2. Perusal of the aforementioned order
shows that the learned counsel for the
respondent Nagarpalika was required to
take instructions regarding the payment
of pensionary benefits. However, no such
instructions has been brought to the
notice of this Court, rather learned
counsel has abstained from appearing in
this Court when this matter is taken up.
3. In view of these circumstances, the
relief claimed by the petitioner is
granted. The petitioner is held entitled
to the pension and other benefits.
Accordingly, prayer contained in para-
8(A) is allowed. The petitioner is
further entitled to the interest at the
rate of 9% from the date of his
retirement till the actual payment is
made. The required formalities will be
completed within a period of four weeks
from the date of receipt of the copy of
this order. Rule is made absolute.
Direct service permitted."
7. Being aggrieved by the aforesaid order,
Letters Patent Appeal No. 1127/2008 was
filed which was disposed of by the Division
Bench of this Court (Coram : Hon'ble the
C/SCA/12554/2004 CAV JUDGMENT DATED: 06/10/2021
Acting Chief Justice Anant S. Dave (As His
Lordship was then) and Hon'ble Mr. Justice
Biren Vaishnav) vide order dated 1.3.2019
remanding the matter back as under :
"1. In this appeal, the challenge is to
the oral order dated 22.2.2018 passed in
Special Civil Application No.12554 of
2004.
2. The challenge by the appellant is to
the order and direction of granting
pensionary benefits to the respondent-
workman on the ground that he was
granted gratuity for the service
rendered by him.
3. Before learned Single Judge, a
reference was made to an order dated
23.3.2017 passed for the very writ
petition whereby the learned advocate
for the petitioner submitted that an
amount of gratuity was paid considering
the total period of service of 18 years.
4. Certain facts about service record of
the petitioner-workman were disputed but
at the same time while passing the final
order learned Single Judge noticed that
learned advocate appearing for
Nagarpalika-the appellant herein
abstained from appearing and, therefore,
directed payment of pension with 9%
interest from the date of retirement
till the actual payment is made.
5. In our view, such a direction of
C/SCA/12554/2004 CAV JUDGMENT DATED: 06/10/2021
grant of pension without finding fact
based on material on record whether
concerned Municipality had framed any
pension rule and that workman was
eligible to receive pension based on
minimum service rendered in the
establishment etc. remain absent in the
order. Accordingly, we find that the
matter namely, Special Civil Application
deserves to be considered afresh and
that it was filed in the year 2004, we
hope and trust that the learned Single
Judge would give due priority to the
above matter and hear the case
preferably within 12 weeks from the date
of receipt of the order and all the
parties represent before learned Single
Judge are expected to cooperate and
shall not seek any undue advantage.
6. With the aforesaid, the order
impugned is quashed and set aside and
remand the matter to learned Single
Judge for deciding afresh in accordance
with law. 7. With the above, appeal and
civil application (for stay) stands
disposed of."
8. Learned advocate Mr. Vyas for respondent -
Nagarpalika thereafter, filed an affidavit
in reply as per the direction of this Court
issued vide order dated 17.06.2019.
9. Learned advocate Mr. Pathak for the
petitioner submitted that as the respondent
Nagarpalika was directed to pay the gratuity
C/SCA/12554/2004 CAV JUDGMENT DATED: 06/10/2021
amount to the petitioner by the Controlling
Authority and such amount is already paid to
the petitioner, the respondent Nagarpalika
cannot deny the pension as well as
retirement benefits to the petitioner.
9.1 Learned advocate Mr. Pathak further
submitted that the petitioner was rendering
work of permanent nature since 1982 and
though there was no fault on part of the
petitioner, the respondent Nagarpalika did
not absorb the petitioner on vacant post.
9.2 It was submitted that the petitioner was
working continuously without any actual break
in service which cannot be ignored. It was
pointed out that the petitioner has rendered
the qualifying years of service for pension.
9.3 Learned advocate Mr. Pathak relied upon
the decision of Apex Court in case of
Yashwant Hari Katakkar v. Union of India and
others rendered in Civil Appeal No.6673/1994
vide order dated 19.09.1994 and the decision
of Division Bench of this Court in case of
Union of India v. Devshi Valji rendered in
Special Civil Application No. 12298/2002 vide
order dated 21.1.2003.
9.4 Learned advocate Mr. Pathak also relied
upon the amendment made in the petition and
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referred to the award of the Industrial
Tribunal, Bombay in case of Kalol
Municipality v. The Workmen in Reference IT
No.10/1954 in which it was held that on
completion of one year of service, the
petitioner was otherwise also to be treated
as a permanent employee. It was submitted
that there was no justification in adopting
different treatment in case of the petitioner
and other employees and petitioner ought to
have been treated as a permanent employee
even if contention of respondent Nagarpalika
is accepted that on that basis the respondent
Nagarpalika has paid the amount of gratuity
to the petitioner for 17 years 7 months and 6
days.
9.5 Learned advocate Mr. Pathak further
submitted that respondent Nagarpalika has
wrongly stated that as service of the
petitioner was regularised in 1996, he has
not rendered the qualifying service for
pension contrary to the fact that the
petitioner was working since 1982 as driver
with respondent Nagarpalika on vacant post.
It was therefore, submitted that the
petitioner is required to be treated as a
permanent employee on completion of 240 days
in service for more than ten years and
accordingly pension benefits are required to
be paid to the petitioner.
C/SCA/12554/2004 CAV JUDGMENT DATED: 06/10/2021
10. On the other hand, learned advocate Mr.
Vyas referred to the affidavit-in-reply
filed on behalf of the respondent no.2
Nagarpalika and submitted that it is not
true that the petitioner was in service as
permanent employee since 1982 but as a
matter of fact on vacancy having arisen, the
petitioner was appointed on permanent post
from 21.3.1996. It was therefore, submitted
that the petitioner has undergone the
continuous service of 4 years, 1 month and
23 days from the date of his permanent
appointment and such service does not
qualify as pensionable service and
accordingly the petitioner is not paid the
pension benefits.
10.1 Learned advocate Mr. Vyas further
submitted that merely because the petitioner
was paid amount of gratuity, the petitioner
does not become eligible for pension benefits
as the petitioner was appointed on permanent
post only in the year 1996. It was submitted
that reliance placed by the petitioner on the
award passed by the Industrial Tribunal,
Bombay in the year 1954 is also not
applicable in view of decision of Full Bench
of this Court in case of Amreli Municipality
v. Gujarat Pradesh Municipal Employees Union1
1 2004(2) GLH 692
C/SCA/12554/2004 CAV JUDGMENT DATED: 06/10/2021
and decision in case of Vrajlal Bachubhai
Khachariya v. State of Gujarat2, wherein it
is held that the Labour Court or the Tribunal
has no power or authority to grant
regularisation of service and no direction
can be given for granting such benefit. It
was therefore, submitted that the petitioner
is not entitled to get benefits pursuant to
award dated 17.5.1954.
10.2 Learned advocate Mr. Vyas also submitted
that respondent Nagarpalika has framed
Pension Fund Rules vide General Board
Resolution no. 268 dated 7.3.1960 and the
petitioner is not qualified for the pension
benefits as per the said Rules. It was
submitted that the petitioner was appointed
as a driver as daily wager and was appointed
as per the need for work and the petitioner
was appointed as a permanent employee only on
21.3.1996 and as such petitioner is not
entitled to pension benefits. Learned
advocate Mr. Vyas further relied upon the
following averments made in additional
affidavit filed on behalf of respondent
Nagarpalika:
"2. I state that the respondent
nagarpalika had appointed total six
employees for the post of City bus
driver vides resolution no. 13dated
2 2018(2) GLR 917
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21.08.1982 Accordingly appointment
letter came to be issued on 27.08.1982.
A copy of the appointment letter is
annexed hereto and marked as Annexure-
R2.
3. I State that the respondent
nagarpalika in the general meeting dated
18.08.1986 passed a resolution no. 179,
by which employee named Gulamnabi
Nurmiya saiyad came to be appointed as a
driver in motor department. A copy of
appointment order dated 30.03.1988 is
annexed hereto and marked as Annexure-
R3.
4. I state that employees completed more
than 10 years of service on permanent
post is entitled for pension benefits.
The petitioner was working as daily
wagers since 1983 and on 21.03.1996 the
petitioner was made permanent, and
retired from service on 14.05.2000, Thus
the petitioner had undergone a
continuous service of only 4 years 1
month and 23 days. And as per the
Pension rules, the service of the
petitioner do not qualify as a
pensionable service, therefore the
petitioner is not entitled for pension
benefits."
10.3 Relying upon the above averments, it was
submitted that the petitioner is not entitled
to the pension benefits in view of decision
of Supreme Court in case of State of
Rajasthan v. Jagdish Narain Chaturvedi3,
3 2009 (12) SCC 49
C/SCA/12554/2004 CAV JUDGMENT DATED: 06/10/2021
wherein the Apex Court has held as under:
"11. It needs to be noted that there is
no scope for raising an issue that
executive instructions can override the
rules. The law is to the contrary. The
Notification dated 3.4.1993 speaks of
"in accordance with recruitment rules".
Clarification was necessary because of
doubts regarding regular appointment. It
is made clear that the period rendered
in the existing cadre before regular
employment in accordance with the
relevant recruitment rules to the post
is because of change of cadre the
previous period is not counted so there
is no question of giving the benefit to
ad hoc employees and the appointment
letters which were illustratively filed
indicate that the appointments were till
regular appointment was made. Ad hoc
appointment is not made in terms of the
requirements of the rules. The benefit
is extended to avoid stagnation. In case
of ad hoc employees, stagnation is till
the regularization is made. The stress
in the present case is on regular
appointment to cadre/service. As rightly
contended by learned counsel for the
State, the High Court confused itself
with appointment to post. The question
of promotion arises only when
appointment is a regular appointment.
Appointment to the post is not relevant;
on the other hand, what is relevant is
the period relatable to the cadre of the
service.
C/SCA/12554/2004 CAV JUDGMENT DATED: 06/10/2021
21. The High Court failed to appreciate
that the Recruitment Rules made a
distinction between appointments made to
the cadre/service in accordance with the
relevant Recruitment Rules which are
regular and appointments made de hors
the regular Recruitment Rules which are
ad hoc."
10.4 Learned advocate Mr. Vyas also relied
upon the decision of Delhi High Court in case
of National Bal Bhawan v. Vandana dated
27.11.2019 rendered in W.P.(C) 10027/2019 &
CM APPL. 41509/2019 and allied matters to
submit that the petitioner is not entitled to
pension as he is not a regular employee with
the respondent Nagarpalika and payment of
gratuity is a statutory liability under the
Payment of Gratuity Act, 1972. It was
therefore, submitted that merely because
payment of gratuity is made by respondent
Nagarpalika, the petitioner is not entitled
to retirement and pension benefits.
10.5 Learned advocate Mr. Vyas referred to the
decision of Allahabad High Court in case of
Dr. Anant Ram Dwivedi v. State of U.P. Thru
Prin. Secy. Medical Edu. Civil Sectt. & Ors.
dated 4.7.2017 to submit that the petitioner
cannot claim parity with directly recruited
candidate as the appointment of the
petitioner was not in accordance with the due
process of law and accordingly, the
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petitioner is not entitled to pension
benefits as service of the petitioner was
regularised in the year 1996 only.
11. Having heard the learned advocates for
the respective parties and having considered
the material on record, it emerges that the
petitioner has rendered the service as
driver with the respondent Nagarpalika from
1982 to 2000 though he was employed as daily
wager from 1982 to 1996 but there is nothing
on record to show that there was a break in
service of the petitioner or the petitioner
was discharged from service of driver during
such period.
12. The Apex Court in case of Yashwant Hari
Katakkar(supra) has held in respect of
extending retirement and pension benefits,
more particularly, when in facts of the
case, there is nothing on record to show
that why the petitioner was not made
permanent even when there was a sanctioned
vacant post available with the respondent
Nagarpalika as under :
"It would be travesty of justice if the
appellant is denied the pensionary
benefits simply on the ground that he
was not a permanent employee of the
Government. The appellant having served
the Government for almost two decades it
would be unfair to treat him
C/SCA/12554/2004 CAV JUDGMENT DATED: 06/10/2021
temporary/quasi-permanent. Keeping in
view the facts and circumstances of this
case we hold that the appellant shall be
deemed to have become permanent after he
served the Government for such a long
period. The services of the appellant
shall be treated to be in permanent
capacity and he shall be entitled to the
pensionary benefits."
13. In the further affidavit in reply filed
on behalf of respondent Nagarpalika, it is
placed on record that since June, 1989 there
was a vacant post upon which the petitioner
was employed as driver on daily wages. Hence
regularisation of service of the petitioner
in the year 1996 is due to inaction on the
part of the respondent Nagarpalika as though
vacant position was available for no fault
on part of the petitioner, his service was
not regularised. In such circumstances, the
services rendered by the petitioner since
1982 till 2000 is required to be considered
for the purpose of extending the retirement
and pension benefits to the petitioner.
14. Even if the submission made on behalf of
the respondent Nagarpalika is accepted that
payment of gratuity under the Payment of
Gratuity Act, 1972 was made in view of the
statutory provisions, the fact remains that
there is nothing on record to show any
contradictory statement to the findings
C/SCA/12554/2004 CAV JUDGMENT DATED: 06/10/2021
recorded by the Controlling Authority that
as per the seniority list published on
15.3.1993, the petitioner was placed at
Serial No.3 and his date of appointment was
shown as 8.10.1982. Therefore, it is not in
dispute that the petitioner has rendered
service of more than 240 days every year
continuously from 1982 till he was
superannuated in the year 2000.
15. In view of above facts, the services
rendered by the petitioner on permanent
vacant post of driver for more than 17 years
cannot be brushed aside to deny the
retirement benefits and pension only on the
ground that the respondent Nagarpalika
issued order of regularization of service
with effect from 21.3.1996.
16. Section 25 of the Gujarat Civil
Services (Pensions) Rules, 2002 provides
for qualifying service and reads as under:
"25. Qualifying Service :
Subject to the provisions of these
rules, qualifying service of a
Government employee, means and includes-
(i) all service including service on
probation rendered on a regular
establishment in any capacity whether,
temporary or permanent, interrupted or
continuous but it shall not include -
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(a) service in non-pensionable
establishment,
(b) service paid from contingences,
(c)service rendered in daily rated
establishment,
(d) actual periods of break in service
if any, between spell of service,
(e) service prior to resignation,
removal or dismissal,
(f) service as an apprentice,
(g) service on fixed pay basis, and
(h) service on contract basis.
(ii) all service rendered in work
charged establishment provided that the
total service put in, as such is five
years or more,
(iii)foreign service,
(iv) vacation taken by Government
employee in vacation department.
(v) all periods of leave including
extraordinary leave upto a maximum of
thirty six months during entire service,
(vi) addition to qualifying service
admissible under rule-37,
(vii) services rendered as Kotwal by a
Government employee after regular
appointment in the regular time scale.
(viii) services rendered as full time
attendant by a Government employee
before his regular appointment in class
IV service, and
(ix) services rendered under Central
Government/Central Government Autonomous
bodies having pension scheme, by a
Government employee who is absorbed in
Government
(x) Pensionable service rendered by an
employee in a grant-in-aid institution
the pension liability in respect of
which is borne by the Government to the
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extent as may be ordered by the
Government from time to time."
17. On perusal of the aforesaid Rule 25, it
is clear that the qualifying service of
Government employee includes services
rendered in daily rated establishment as per
sub-clause(c) of clause(i) of Rule 25.
Therefore, respondent Nagarpalika was
specifically directed by the Court to
clarify whether the petitioner was on daily
wage establishment or not and in response
thereto Nagarpalika has filed affidavit that
petitioner was on permanent establishment
and was paid monthly salary calculating the
same on daily wage basis. Thus the
petitioner has completed more than 10 years
of continuous service on the permanent
establishment but only because he was paid
salary from 1982 to 1996 on daily wage
basis, the entire service of the petitioner
cannot be excluded from considering
qualifying service for pension.
18. The Apex Court in case of D.S. Nakara
and others v. Union of India4 held that
pension is a reward to the employees for
their long satisfactory services by
observing as under:
"Viewed in the light of the present day
4 1983 (1) SCC 305
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notions pension is a term applied to
periodic money payments to a person who
retires at a certain age considered age
of disability; payments usually continue
for the rest of the natural life of the
recipient. The reasons underlying the
grant of pension vary from country to
country and from scheme to scheme. But
broadly stated they are (i) as
compensation to former members of the
armed forces or their dependents for old
age, disability, or death (usually from
service causes),
(ii) as old age retirement or disability
benefits for civilian employees, and
(iii) as social security payments for
the aged, disabled, or deceased citizens
made in accordance with the rules
governing social service programmes of
the country. Pensions under the first
head are of great antiquity. Under the
second head they have been in force in
one form or another in some countries
for over a century but those coming
under the third head are relatively of
recent origin, though they are of the
greatest magnitude. There are other
views about pensions such as charity,
paternalism, deferred pay, rewards for
service rendered, or as a means or
promoting general welfare (see
Encyclopaedia Britannica, Vol. 17
p.575.) But these views have become
otiose.
Pension to civil employees of the
Government and the defence personnel as
administered in India appear to be a
compensation for service rendered in the
past. However, as held in Douge v. Board
of Education(1) a pension is closely
akin to wages in that it consists of
payment provided by an employer, is paid
in consideration of past service and
C/SCA/12554/2004 CAV JUDGMENT DATED: 06/10/2021
serves the purpose of helping the
recipient meet the expenses of living.
This appears to be the nearest to our
approach to pension with the added
qualification that it should ordinarily
ensure freedom from undeserved want.
Summing-up it can be said with
confidence that pension is not only
compensation for loyal service rendered
in the past, but pension also has a
broader significance, in that it is a
measure of socio-economic justice which
inheres economic security in the fall of
life when physical and mental prowess is
ebbing corresponding to aging process
and therefore, one is required to fall
back on savings. One such saving in kind
is when you gave your best in the hey-
day of life to your employer, in days of
invalidity, economic security by way of
periodical payment is assured. The term
has been judicially defined as a stated
allowance or stipend made in
consideration of past service or a
surrender of rights or emoluments to one
retired from service. Thus the pension
payable to a Government employee is
earned by rendering long and efficient
service and therefore can be said to be
a deferred portion of the compensation
or for service rendered. In one sentence
one can say that the most practical
raison d'etre for pension is the
inability to provide for oneself due to
old age. One may live and avoid
unemployment but not senility and penury
if there is nothing to fall back upon.
The discernible purpose thus underlying
pension scheme or a statute introducing
the pension scheme must inform
interpretative process and accordingly
it should receive a liberal construction
and the courts may not so interpret such
C/SCA/12554/2004 CAV JUDGMENT DATED: 06/10/2021
statute as to render them inane (see
American Jurisprudence 2d. 881).
From the discussion three things emerge:
(i) that pension is neither a bounty nor
a matter of grace depending upon the
sweet will of the employer and that it
creates a vested right subject to 1972
rules which are statutory in character
because they are enacted in exercise of
powers conferred by the proviso to Art.
309 and clause (5) of Art. 148 of the
Constitution ; (ii) that the pension is
not an ex-gratia payment but it is a
payment for the past service rendered ;
and (iii) it is a social welfare measure
rendering socio-economic justice to
those who in the hey-day of their life
ceaselessly toiled for the employer on
an assurance that in their old age they
would not be left in lurch. It must also
be noticed that the quantum of pension
is a certain percentage correlated to
the average emoluments drawn during last
three years of service reduced to ten
months under liberalised pension scheme.
Its payment is dependent upon an
additional condition of impeccable
behaviour even subsequent to
requirement, that is, since the
cessation of the contract of service and
that it can be reduced or withdrawn as a
disciplinary measure."
19. Similarly, interpreting the welfare
legislation, the Apex Court in case of
Harijan Paniben Dudabhai v. State of Gujarat
and others5 held as under :
"9. In the present case the deceased was
appointed as Safai Kamdar on 4.2.1964 by
Gram Panchayat by passing an appropriate
5 2016 (12) SCC 801
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resolution. It is true that Section
203(3) of the Act empowers the State
Government to make rules regulating mode
of recruitment. Our attention in that
behalf was invited to Gujarat Service
(Appointing Authorities) Rules, 1967.
Rule 2 of the said Rules stipulates,
inter alia, that the Appointing
Authority in respect of posts under the
Gram Panchayat, which are included in
the "local cadre" is Gram Panchayat
itself. The term "local cadre" finds
elaboration in Part III of Gujarat
Panchayat Service (Conditions of
Service) Rules, 1977 (hereinafter
referred to as "the 1977 Rules). Part
III captioned "Local Cadre" is to the
following effect:
"I. Secretary of a Nagar Panchayat
II. The following posts under the Nagar
or as the Case may be, Gram Panchayat,
namely - 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."
10. Item III of aforementioned Part III
deals with "Inferior Panchayat Service"
under Gram Panchayat or Nagar Panchayat
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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."
11. Sub-rule (2) of Rule 3 of the
Gujarat Panchayat Service
(Classification and Recruitment) Rules,
1967 deals with Panchayat Service and
stipulates that it shall consist of two
classes, namely, "Superior Panchayat
Service" and "Inferior Panchayat
Service".
12. 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
C/SCA/12554/2004 CAV JUDGMENT DATED: 06/10/2021
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."
20. In case of Umrala Gram Panchayat v.
Secretary, Municipal Employees Union and
others6, the Apex Court held as under :
"8. With reference to the abovementioned
rival legal contentions urged on behalf
of the parties, we have to examine the
impugned judgements and orders of the
High Court as well as the Award passed
by the Labour Court, to find out whether
any substantial question of law would
arise in these appeals to exercise the
appellate jurisdiction of this Court?
9. On a perusal of the same, we have
come to the conclusion that the High
Court has rightly dismissed the case of
the appellant as the Labour Court has
dealt with the same in detail in its
reasoning portion of the Award in
support of its findings of fact while
answering the points of dispute and the
same cannot be said to be either
erroneous or error in law.
10. In support of the above said
conclusions arrived at by us, we record
our reasons hereunder: It is an admitted
fact that the work which was being done
by the concerned workmen was the same as
that of the permanent workmen of the
appellant- Panchayat. They have also
been working for similar number of
hours, however, the discrepancy in the
6 2015 (12) SCC 775
C/SCA/12554/2004 CAV JUDGMENT DATED: 06/10/2021
payment of wages/salary between the
permanent and the non-permanent workmen
is alarming and the same has to be
construed as being an unfair labour
practice as defined under Section
2(ra) of the ID Act r/w Entry No.10 of
the Fifth Schedule to the ID Act, which
is prohibited under Section 25(T) of the
ID Act. Further, there is no documentary
evidence produced on record before the
Labour Court which shows that the
present workmen are working less or for
lesser number of hours than the
permanent employees of the appellant-
Panchayat. Thus, on the face of it, the
work being done by the concerned workmen
has been permanent in nature and the
Labour Court as well as the High Court
have come to the right conclusion on the
points of dispute and have rightly
rejected the contention of the
appellant-Panchayat as the same amounts
to unfair labour practice by the
appellant-Panchayat which is prohibited
under Section 25(T) of the ID Act and it
also amounts to statutory offence on the
part of the appellant under Section
25(U) of the ID Act for which it is
liable to be prosecuted.
11. Further, the Labour Court has
rightly held that there is no
restriction for the recruitment of the
workmen in the Panchayat's set-up as
there is evidence to show that by making
a proposal, the District Panchayat has
increased the work force in the
establishment of the appellant-Panchayat
and therefore, the contention urged by
the learned senior counsel appearing for
the appellant-Panchayat that there are
only limited number of permanent
vacancies for the workmen in the
C/SCA/12554/2004 CAV JUDGMENT DATED: 06/10/2021
Panchayat of the appellant is not
tenable in law.
12. Further, we have also taken note of
the fact that the financial position of
the Panchayat is not so unsound as no
activity of the Panchayat has been
discontinued, as all the other workers
of the appellant-Panchayat are being
paid their wages regularly. Thus, there
would be no difficulty for the
appellant-Panchayat to bear the extra
cost for the payment of the wages/salary
and other monetary benefits to the
concerned workmen if they are made
permanent.
13. Further, Section 25(T) of the ID Act
clearly states that unfair labour
practice should not be encouraged and
the same should be discontinued. In the
present case, the principle "equal work,
equal pay" has been violated by the
appellant-Panchayat as they have been
treating the concerned workmen unfairly
and therefore, the demand raised by the
respondent-Union needs to be accepted.
The High Court has thus, rightly not
interfered with the Award of the Labour
Court as the same is legal and supported
with cogent and valid reasons.
14. Therefore, the learned single Judge
as well as the Division Bench of the
High Court have exercised the power
under Articles 226 and 227 of the
Constitution of India and have rightly
held that the Labour Court has
jurisdiction to decide the industrial
dispute that has been referred to it by
the Dy. Commissioner of Labour,
Ahmedabad. Reliance has been placed upon
the decision of this Court in the case
of Maharashtra State Road Transport
Corporation and Anr. v. Casteribe Rajya
C/SCA/12554/2004 CAV JUDGMENT DATED: 06/10/2021
P. Karmchari Sanghatana[1], wherein it
has been held thus:
"32.The power given to the
Industrial and Labour Courts
under Section 30 is very wide and
the affirmative action mentioned
therein is inclusive and not
exhaustive. Employing badlis,
casuals or temporaries and to
continue them as such for years,
with the object of depriving them of
the status and privileges of
permanent employees is an unfair
labour practice on the part of the
employer under item 6 of Schedule
IV. Once such unfair labour practice
on the part of the employer is
established in the complaint, the
Industrial and Labour Courts are
empowered to issue preventive as
well as positive direction to an
erring employer."
15. Further, reliance has been placed
upon the decision of this Court in the
case of Durgapur Casual Workers Union v.
Food Corporation of India,[2] wherein it
has been held thus:
"21. Almost similar issue relating
to unfair trade practice by employer
and the effect of decision of
Umadevi (3) in the grant of relief
was considered by this Court in
Ajaypal Singh v. Haryana Warehousing
Corporation in Civil Appeal No. 6327
of 2014 decided on 9th July, 2014.
In the said case, this Court
observed and held as follows:
17. The provisions of Industrial
Disputes Act and the powers of
the Industrial and Labour Courts
provided therein were not at all
under consideration in Umadevi's
C/SCA/12554/2004 CAV JUDGMENT DATED: 06/10/2021
case. The issue pertaining to
unfair labour practice was
neither the subject matter for
decision nor was it decided in
Umadevi's case.
18. We have noticed
that Industrial Disputes Act is
made for settlement of
industrial disputes and for
certain other purposes as
mentioned therein. It prohibits
unfair labour practice on the
part of the employer in engaging
employees as casual or temporary
employees for a long period
without giving them the status
and privileges of permanent
employees....""
16. Thus, in the light of the above
referred cases of this Court, it is
amply clear that the judgments and
orders of the High Court and the Award
passed by the Labour Court are
reasonable and the same have been
arrived at in a just and fair manner.
17. The reliance placed by the learned
senior counsel for the appellant upon
the decision of this Court in Secretary,
State of Karnataka & Ors. v. Umadevi &
Ors.[3], does not apply to the fact
situation of the present case and the
same cannot be accepted by us in the
light of the cogent reasons arrived at
by the courts below.
18. In view of the reasons stated supra
and in the light of the facts and
circumstances of the present case, we
hold that the services of the concerned
workmen are permanent in nature, since
they have worked for more than 240 days
in a calendar year from the date of
their initial appointment, which is
C/SCA/12554/2004 CAV JUDGMENT DATED: 06/10/2021
clear from the evidence on record.
Therefore, not making their services
permanent by the appellant-Panchayat is
erroneous and also amounts to error in
law. Hence, the same cannot be allowed
to sustain in law.
19. For the reasons stated supra, we
dismiss the appeals and direct the
appellants to treat the services of the
concerned workmen as permanent
employees, after five years of their
initial appointment as daily wage
workmen till they attain the age of
superannuation for the purpose of
granting terminal benefits to them.
20. The appellant is further directed to
pay the regular pay-scale as per the
revised pay scale fixed to the post of
permanent safai kamdars for a total
period of 15 years to the concerned
workmen and the legal representatives of
the deceased workmen. The same shall be
implemented within six weeks from the
date of receipt of copy of this judgment
and compliance report of the same shall
be submitted for the perusal of this
Court. No Costs."
21. In case of Bhikhabhai M. Bambhania v.
Chief Officer and others rendered in Special
Civil Application No. 589/2020 vide order
dated 28.10.2010, this Court held as under :
"3. From the aforesaid discussion it is
clear that what weighed with the
Tribunal in giving date of permanency is
the consequential financial burden. It
is not the case of the Nagarpalika that
these workmen are not working from the
date mentioned in their claim and
C/SCA/12554/2004 CAV JUDGMENT DATED: 06/10/2021
therefore, for all practical purposes
they were to be conferred with
permanency benefit from that date, but
the Tribunal being conscious of the fact
that if permanency benefit is given from
that date it is likely to result into
heavy financial burden on the
Nagarpalika, if Nagarpalika is asked to
pay those financial benefits. Similarly,
it must have weighed with the Tribunal
that if the date of permanency is not
given from the date when workman is
working and if financial benefits are
not ordered, it may cause heart burning
to the workmen. Therefore, as via media,
the Tribunal directed that the workmen,
who are not made permanent should be
made permanent with effect from 1st
January 1989 and they should be paid
financial benefits from 1st January
1990. Thus, the Tribunal struck a
balance between the date of giving
permanency and the date of giving
financial benefits. Had the Tribunal
been conscious of the fact that this
date of permanency will deprive them of
the benefits which are going to flow
from Government Resolution of 1994, the
Tribunal would have given date of
permanency at least from 1986, when
Panchayat got converted into a
Nagarpalika.
4. This Court therefore, of the opinion
that for all practical purposes, the
workmen were permanent from the date
they entered into service and it was
merely a formal declaration by the
Tribunal that they were given permanency
benefit with effect from 1st January
1989, and financial benefitss from 1st
January 1990. This Court is therefore,
of the opinion that benefit of 1994
Resolution must flow to the present
C/SCA/12554/2004 CAV JUDGMENT DATED: 06/10/2021
petitioners.
5. The learned advocate Mr.Murali N.
Devnani submitted that Resolution of
1994 is very clear and it specifically
provides in clause 16 that, 'the
employees who were recruited after the
Panchayat got converted into Nagarpalika
this pension scheme will not be
applicable to them'. The very fact that
the word used is 'recruited' and not
'confirmed' or 'regularised'; in the
present case the workmen-petitioners
herein have been working since 1977 and
therefore, they cannot be said to have
been recruited after the Panchayat got
converted into Nagarpalika. Therefore,
denying the benefit of this Resolution
to the workmen is unjust, arbitrary.
Therefore, the decision is required to
be quashed and set aside. (emphasis
supplied)
6. Learned advocate Mr.Devnani also
submitted that the Nagarpalika has
submitted cases of workmen in SCA
No.30243 of 2007 and SCA No.30660 of
2007 to the Government and the
Government has rejected their case for
grant of benefits of 1994 Resolution.
That decision is also not a legal and
valid one in light of the aforesaid
discussion. Therefore, that decision
deserves to be quashed and set aside.
Order accordingly.
7. So far as petitioners in Special
Civil Applications No.2048 of 2008 and
2143 of 2008 are concerned the case of
the petitioners in these two petitions
is that they were appointed as cleaners,
but they were made to work as drivers.
However, the case of Una Nagarpalika is
that they were appointed as 'cleaners'
only and not 'drivers'. This contention
C/SCA/12554/2004 CAV JUDGMENT DATED: 06/10/2021
of the Nagarpalika is refuted by the
learned advocate for the petitioners.
The learned advocate for the petitioners
invited attention of the Court to
Annexure 'A', Page 33 of Special Civil
Application No.2048 of 2008 and Annexure
'A', page 20 in Special Civil
Application No.2143 of 2008. This
contention could not be dislodged by the
Nagarpalika. Therefore, it is directed
that they be treated as drivers. In
light of these directions it is further
directed that the amount already
recovered from the concerned workmen be
repaid to them.
8. In view of the aforesaid facts and
discussion the decision of the
Nagarpalika and of the Government 'not
extending the benefit of 1994
Resolution' to the workmen is hereby
quashed and set aside. The authorities
are directed to extend them the benefits
of 1994 Resolution like granting of
pensionary benefits, etc. at par with
the other Government employees.
9. So far as Special Civil Application
No.30219 of 2007, SCA No.2048 of 2008,
SCA No.2143 of 2008, SCA No.9364 of
2008, SCA No.589 of 2010 are concerned
the learned advocate for the petitioner
submitted that the Nagarpalika is yet to
submit the case of petitioners to the
Government for grant of benefits of 1994
Resolution, the Municipality shall
submit the case of the petitioners to
the government at the earliest but not
later than six weeks from the date of
receipt of this judgement and order. On
receipt of the same the Government
should decide the same within four weeks
and communicate the decision to the
petitioners by Registered Post
Acknowledgement Due.
C/SCA/12554/2004 CAV JUDGMENT DATED: 06/10/2021
10. Rule is made absolute with no order
as to cost. Direct service is
permitted."
22. In case of Bhartiya Seva Samaj Trust
through President and another v. Yogeshbhai
Ambalal Patel and another7, the Apex Court
held as under :
"14. It is a settled legal proposition
that the court should not set aside the
order which appears to be illegal, if
its effect is to revive another illegal
order. It is for the reason that in such
an eventuality the illegality would
perpetuate and it would put a premium to
the undeserving party/person.
(Vide: Gadde Venkateswara Rao v.
Government of Andhra Pradesh & Ors., AIR
1966 SC 828; Maharaja Chintamani Saran
Nath Shahdeo v. State of Bihar & Ors.,
AIR 1999 SC 3609; Mallikarjuna Mudhagal
Nagappa & Ors. v. State of Karnataka &
Ors., AIR 2000 SC 2976; Chandra Singh v.
State of Rajasthan, AIR 2003 SC 2889;
and State of Uttaranchal & Anr. v. Ajit
Singh Bhola & Anr., (2004) 6 SCC 800).
15. In State of Orissa & Anr. v. Mamata
Mohanty, (2011) 3 SCC 436, this Court
while considering the similar issue
where teachers had been appointed
without possessing the eligibility has
held that if the appointment order
itself is bad in its inception, it
cannot be rectified and a person lacking
eligibility cannot be appointed unless
the statutory provision provides for
relaxation of eligibility in a
particular statute and order of
7 2012 (9) SCC 310
C/SCA/12554/2004 CAV JUDGMENT DATED: 06/10/2021
relaxation has been passed in terms of
the said order.
27. In ordinary circumstances, the
instant case could be decided in the
light of the aforesaid backdrop.
However, the Division Bench of the High
Court has given full details of the
teachers who had been appointed along
with the respondent No.1 in pursuance of
the same advertisement and possessing
the same qualification of
B.Sc.;B.Ed./B.A.;B.Ed. They are still
working with the same management and
some of them had been as under:
(i) Mrs. Rekhaben Virabhai Patel
(ii) Mrs. Urmilaben Chandrakantbhai
Mistry
iii) Mr. Dilipbhai Naranbhai Patel
iv) Mrs. Ritaben Shaileshbhai Joshi
The High Court further recorded a
finding that the list of such persons
was merely illustrative and not
exhaustive.
28. A person alleging his own infamy
cannot be heard at any forum, what to
talk of a Writ Court, as explained by
the legal maxim 'allegans suam
turpitudinem non est audiendus'. If a
party has committed a wrong, he cannot
be permitted to take the benefit of his
own wrong. (Vide: G. S. Lamba & Ors. v.
Union of India & Ors., AIR 1985 SC
1019; Narender Chadha & Ors. v. Union of
India & Ors., AIR 1986 SC 638; Molly
Joseph @ Nish v. George Sebastian @ Joy,
AIR 1997 SC 109; Jose v. Alice & Anr.,
(1996) 6 SCC 342; and T. Srinivasan v.
C/SCA/12554/2004 CAV JUDGMENT DATED: 06/10/2021
T. Varalakshmi (Mrs.), AIR 1999 SC 595).
This concept is also explained by the
legal maxims 'Commodum ex injuria sua
nemo habere debet'; and 'nullus commodum
capere potest de injuria sua propria'.
(See also: Eureka Forbes Ltd. v.
Allahabad Bank & Ors., (2010) 6 SCC 193;
and Inderjit Singh Grewal v. State of
Punjab & Anr., (2011) 12 SCC 588).
29. Thus, it is evident that the
appellant has acted with malice along
with respondent and held that it was not
merely a case of discrimination rather
it is a clear case of victimisation of
respondent No.1 by School Management for
raising his voice against exploitation.
30. After going through the material on
record and considering the submissions
made by learned counsel for the
appellant and the respondent No.1-in-
person, we do not find any cogent reason
whatsoever to interfere with the
aforesaid findings of fact."
23. In view of the aforesaid dictum of law,
when the petitioner has completed more than
17 years qualifying service, respondent
Nagarpalika cannot deny retirement and
pension benefits which are payable to a
regular permanent employee to the
petitioner. Moreover, in the facts of the
case, similarly situated daily wage drivers,
were also granted the benefits of regular
employee on completion of one year of
service. Merely because service of the
petitioner was regularised in the year 1996
for no fault on part of the petitioner,
C/SCA/12554/2004 CAV JUDGMENT DATED: 06/10/2021
respondent Nagarpalika was not justified in
denying the retirement and pension benefits
to the petitioner on the ground that the
petitioner has not completed 10 years of
qualifying service.
24. In view of the foregoing reasons, the
petition succeeds and is accordingly
allowed. Respondent Nagarpalika is directed
to pay the retirement and pension benefits
to the petitioner from the date of his
retirement. Such payment shall be made
within 12 weeks from the date of receipt of
the order and thereafter if the payment is
not made respondent Nagarpalika shall be
liable to pay interest @ 6% p.a. on the
amount payable to the petitioner on
completion of period of 12 weeks.
25. Rule is made absolute to the aforesaid
extent. No order as to costs.
(BHARGAV D. KARIA, J)
RAGHUNATH R NAIR
