Diwaliben Wd/O Bachubhai Chauhan vs State Of Gujarat
2022 Latest Caselaw 525 Guj

     C/SCA/1645/2020                             JUDGMENT DATED: 17/01/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 1645 of 2020


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE BIREN VAISHNAV

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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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             DIWALIBEN WD/O BACHUBHAI CHAUHAN & 3 other(s)
                               Versus
                     STATE OF GUJARAT & 2 other(s)
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Appearance:
MRS KRISHNA G RAWAL(1315) for the Petitioner(s) No. 1,2,3,4
MR. KURVEN DESAI, ASSISTANT GOVERNMENT PLEADER/PP(99) for the
Respondent(s) No. 1
MR TULSHI R SAVANI(3070) for the Respondent(s) No. 2
NOTICE SERVED BY DS(5) for the Respondent(s) No. 3
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    CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV

                             Date : 17/01/2022

                            ORAL JUDGMENT

1) Heard Mrs. Krishna Rawal, learned advocate for the petitioners,

Mr.Kurven Desai, learned Assistant Government Pleader for the State

respondents Nos. 1 and 3 and Mr.Tulshi Savani, learned advocate for the

C/SCA/1645/2020 JUDGMENT DATED: 17/01/2022

respondent Chief Officer, Una Nagarpalika, respondent No.2.

2) Rule returnable forthwith. With the consent of the learned

advocates appearing for the parties, taken up for final hearing.

3) In this petition under Article 226 of the Constitution of India, the

petitioner has prayed for a direction to direct the respondent authorities to

revise the pension of the petitioner as per sixth and seventh pay

commission recommendations.

4) Facts are not in dispute, inasmuch as, the petitioners are widows of

the erstwhile Municipality / Panchayat employees, who were serving with

the Una Nagarpalika having been granted the benefits of pension as per

the 5th Pay Commission recommendations. Therefore, the only prayer is

that their pension be revised in accordance with the subsequent pay

recommendations i.e. the 6th and 7th Pay Commission respectively.

5) Ms.Krishna Rawal, learned advocate for the petitioners, would rely

on orders passed by this Court in Special Civil Application No. 8608 of

2013 dated 29.01.2016. While considering the issue at hand, this Court

allowed the petition with a direction which reads as under:

"10 Having thus heard both the sides and having found from the affidavits filed by the District Assistant Examiner, Local Fund Accounts, Junagadh, dated 28.1.2016, as also the affidavit of Una Nagar Palika by the Chief Officer dated 21.1.2016, it is more than apparent that the State had continued to pay the amount of pension to all the petitioners. As far as the petitioners No.3 and 5 are concerned, there has been a specific adjudication by this Court in the case of Special Civil Application No. 27283 of 2006, particularly paragraph No.10 being relevant, it is produced

C/SCA/1645/2020 JUDGMENT DATED: 17/01/2022

hereinbelow:

"10. So far as, contention of the Municipality about non- availability of the sanctioned post of City Engineer is concerned, the petitioner came to be retired on 31st August, 2006 and before that Government Resolution dated 22.1.2004 issued by the department of Urban Development, State of Gujarat was in force which prescribed guidelines about minimum strength of the establishment of municipality and accordingly municipality was permitted to have two City Engineers and in a given case to seek approval of the Director and the State Government respectively even if an additional City Engineer was required other than sanctioned strength of the post in question. So far as, respondent municipality is concerned, the petitioner was the only City Engineer and, therefore, when two posts of City Engineer were included in the strength of the establishment of municipality as early as in 2004, it cannot be said that the petitioner was promoted contrary to the Government Resolution. At the same time respondent Municipality is directed to sent a proposal for formal sanction of post of City Engineer of Una Municipality within four weeks from the receipt of the order by this Court and upon receipt of such proposal of Municipality, the Director of Municipalities shall consider such proposal and pass appropriate order in accordance with law."

11. As far as the petitioners No.1 and 2 are concerned, they had preferred Special Civil Applications No. 15517 of 2011 and 15518 of 2011. This Court (Coram: R.M. Chhaya, J.) having noted the order passed by the Director of Municipalities dated 31.1.2012 has disposed of both the matters. No challenge of the same has been made so far.

12 Even the State Government has chosen to pay pension to the petitioners although averred to have done mistakenly for the reason that the Chief Officer has not placed the order of the Director of Municipalities before the Pension Payment authority. Be that as it may, it is for the State Government and the Nagar Palika to work out as to whether the State can recover such amount from the Nagar Palika or not in wake of the resolution and the direction of the Municipality, and this Court has chosen not to enter into that dispute in absence of any challenge to the said resolution by the Nagar Palika or any objection so far by the State in making payment of pension to the petitioners.

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        13    The petitioners being retired employees, who have continued

to be paid pension by the State all these years and who have also been made available the benefits of 5th Pay Commission as well so far, they cannot be denied the same when indisputably the State is paying pension to the petitioners, and especially when other similarly situated employees who are retired and who have been receiving pension from the State Government have also received the benefits of the 6th Pay Commission recommendations. The petitioners, therefore, cannot be discriminated and hence, the action of the respondent-State which is found to be discrimination shall have to be corrected by way of writ jurisdiction.

14 Accordingly, this petition is allowed. Petitioners shall be paid the benefits of 6th Pay Commission recommendations within six weeks with arrears and interest at the rate of 9% per annum by way of an account payee cheque drawn in their individual names.

Parties to bear their own respective costs. Petition stands disposed of in above terms."

6) Reliance is also placed on a decision of the Coordinate Bench of

this Court in Special Civil Application NO. 4994 of 2019 dated

02.04.2019 and Special Civil Application No. 5245 of 2019.

7) Mr.Tulshi Savani, learned counsel for the respondent Nagarpalika

would submit that the proposal for revision of pensionary benefits has

been rejected by the State on the ground that the establishment expenses

of the Municipality exceeds 48%. It is the case of the Municipality

therefore that not only because of the expenses exceeding the set up but

also because of the fact that the employees concerned are pre conversant,

they are not entitled to revision of pay.

8)      As far as the controversy regarding applicability of the cap of





      C/SCA/1645/2020                                JUDGMENT DATED: 17/01/2022

establishment expenses is concerned, reliance is placed by Ms. Rawal,

learned advocate for the petitioners, on a decision of the Division Bench

of this Court in Letters Patent Appeal No. 415 of 2017 dated 06.04.2018,

wherein, the issue of the expenditure cap of 48% was considered by the

Division Bench of this Court. Paras 2 and 3 of the Division Bench read as

under:

"2 The denial of revision of pay is now on the ground that the concerned municipality, namely, respondent No.3 herein has exceeded expenses for establishment beyond the ceiling of 48% so prescribed by Government Resolution dated 03.09.2010 and when even employees of such Nagar Palikas are not entitled for revision of pay, in revision any pension so directed by the learned Single Judge would be contrary to the Government Resolution, and therefore, the appeal deserves to be allowed by quashing and setting aside the order impugned.

3 Considering the entire record of the writ petition in the context of order passed by the learned Single Judge under challenge and Government Resolution dated 03.09.2010 prescribing ceiling of 48% qua expenses to be incurred towards establishment by municipality, benefits of recommendations of 6 th Pay Commission is available to employees of municipality upon fulfillment of ten conditions. It further provides that, from the date of passing of the resolution respectively, the benefits of pay-scale of 6th Pay Commission is to be granted, at the same time, an essential requirement mandates concerned nagarpalika not to incur establishment expenses beyond 48%."

9) In view of the aforesaid settled position of law, denial of revision

of pension on the basis of the sixth pay and the seventh pay Commission

to the petitioners cannot be withheld.

         C/SCA/1645/2020                             JUDGMENT DATED: 17/01/2022



10)        Accordingly, the petition is allowed. The respondents are directed

to revise the pension of the petitioners in line with the benefits that the

petitioners are entitled to on the basis of the 6 th and 7th Pay Commission

recommendations. The entire exercise shall be completed within a period

of eight weeks from the date of receipt of copy of this order and all

benefits, including arrears shall be paid to the petitioners within stipulated

time as mentioned hereinabove. Rule is made absolute accordingly.

(BIREN VAISHNAV, J) Bimal