Gujarat High Court
Manojkumar Jayantilal Bhatt vs Jamnagar Municipal Corporation ... on 18 January, 2022
Bench: Biren Vaishnav
C/SCA/4202/2019 JUDGMENT DATED: 18/01/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 4202 of 2019
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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MANOJKUMAR JAYANTILAL BHATT
Versus
JAMNAGAR MUNICIPAL CORPORATION THROUGH MUNICIPAL
COMMISSIONER
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Appearance:
MR TR MISHRA(483) for the Petitioner(s) No. 1,2
MR. MEET THAKKAR, ASSISTANT GOVERNMENT PLEADER(1) for the
Respondent(s) No. 3
MR PREMAL S RACHH(3297) for the Respondent(s) No. 2
NOTICE SERVED BY DS(5) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
Date : 18/01/2022
ORAL JUDGMENT
1 Though served, nobody appears for respondent No.1 Jamnagar
Municipal Corporation. Heard Mr.T.R.Mishra, learned advocate for the
C/SCA/4202/2019 JUDGMENT DATED: 18/01/2022
petitioners, Mr.Premal rachh, learned advocate for respondent No.2 and
Mr.Meet Thakkar, learned AGP for respondent No.3, who asked for time
to file reply on behalf of the respondent No.3.
2 Rule returnable forthwith. With the consent of the learned
advocates appearing for the respective parties, the petition is taken up for
final hearing today.
3 In this petition under Article 226 of the Constitution of India, the
petitioner has challenged the order dated 27.08.2018 and the Resolution
No. 37. The facts in brief are that the petitioner's mother who was
working with the respondent Corporation died in harness. The petitioner
in the year 1993 i.e. on 21.12.1993 was appointed on compassionate
grounds. A certificate was also issued by the Corporation which is on
record. The petitioner continued to serve, as such his name was included
in the P.F Account and an account was accordingly opened. The benefit
of higher pay scale was also granted on 28.04.2006. By the impugned
order of the Resolution 37, the respondents Nos. 1 and 2, sought recovery
of bonus for the year 2012 to 2017 amounting to Rs.2,52,000/- and
discontinued the name of the petitioner from the benefit of Privident Fund
on the ground that an audit objection has been raised as to the
appointment procedure of the petitioner.
C/SCA/4202/2019 JUDGMENT DATED: 18/01/2022
3.1 Reading the resolution, Mr.Mishra, learned advocate, would submit
that the grievance is that the post could not have been filled in as it was
not sanctioned or it could have been filled in by outsourcing.
4 Mr.Premal Rachh, learned advocate for respondent No.2,
Administrative Officer, relied on the affidavit-in-reply and would submit
that in view of the decision of this Court in the case of Saurashtra
Shramik Sangh vs. Amreli Municipality & Anr., reported in 2017 (1)
CLR and in the case of Dahyabhai Ajesing Anjana vs. State of
Gujarat., reported in 2017 (2) GCD 1123, since the appointment was
without sanction, no right accrues to the petitioner to continue on the post
and by virtue of he being working without any authority of law, the
petitioner is not entitled to the benefits. He would also submit that the
Audit Committee while auditing the accounts for the year 2014-2015 and
2016-2017 raised an audit objection stating that the appointment was
made without sanction de-hors the sanctioned setup of the State
Government.
5 Mr.Meet Thakkar, learned AGP, at the outset, requested for time so
as to satisfy the Court with regard to the veracity of the audit objections
raised by the local fund office.
C/SCA/4202/2019 JUDGMENT DATED: 18/01/2022
6 Considering the fact that the petitioner was appointed on
compassionate grounds in the year 1993, the GPF Account was opened in
the year 1995. The benefits of higher pay scale accrues to the petitioner
continuously for several years and it was only in the year 2014-15 after
20 years that an objection was sought to be raised with regard to the mode
of appointment.
7 No fault can be found on the petitioner for he having been
appointed on compassionate grounds by virtue of resolution of the
respondents and having earned his amount of bonus and PF. An employee
cannot be faced with the uncertainty being told of his appointment being
not in accordance with law post 15 years of having taken the services,
essentially when it was on compassionate grounds. The recovery of the
stoppage of bonus and P.F by virtue of the order dated 27.08.2018 and
Resolution No.37 are contrary to law and are accordingly quashed and set
aside. The petition is allowed, accordingly.
The petitioner shall be entitled to all consequential benefits as if the
order of 27.08.2018 and the Resolution No. 37 under challenge were
never passed. Petition allowed accordingly.
(BIREN VAISHNAV, J)
Bimal
