Kalavad Nagar Palika vs Diwaliben Dayaljibhai ...
2022 Latest Caselaw 782 Guj

      C/LPA/1145/2021                          ORDER DATED: 25/01/2022




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                R/LETTERS PATENT APPEAL NO. 1145 of 2021
             In R/SPECIAL CIVIL APPLICATION NO. 7832 of 2018
                                     With
                CIVIL APPLICATION (FOR STAY) NO. 1 of 2021
               In R/LETTERS PATENT APPEAL NO. 1145 of 2021
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                           KALAVAD NAGAR PALIKA
                                    Versus
             DIWALIBEN DAYALJIBHAI BAGTHARIYA & 2 other(s)
==========================================================
Appearance:
MR DEEP D VYAS(3869) for the Appellant(s) No. 1
MS DHWANI TRIPATHI, AGP for the Respondents- State
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     CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
           and
           HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK

                           Date : 25/01/2022

                             ORAL ORDER

(PER : HONOURABLE MR. JUSTICE R.M.CHHAYA)

1. Draft amendment is granted. To be carried out forthwith.

2. Heard Mr. Deep D. Vyas, learned advocate for the appellant- Nagarpalika and Ms. Dhwani Tripathi, learned Assistant Government Pleader for the respondents No. 2 & 3 through the Video Conference.

3. Feeling aggrieved and dissatisfied with the impugned judgment and order dated 20.01.2020 passed by the learned Single Judge in Special Civil Application No. 7832 of 2018, preferred by respondent No.1 herein.

4. The brief facts of the present case emerge as under:

4.1    Respondent No.1 was working as Tedaga in Kalavad






     C/LPA/1145/2021                                     ORDER DATED: 25/01/2022

Nagarpalika since 02.04.1984. According to her, she was appointed on the said post and has attained the age of superannuation on 31.05.2016. The record indicates that Union raised a dispute for regularization the services of the employees including respondent No.1- original petitioner by way of filing reference being Reference No. 67 of 1990. The said reference was allowed by an award dated 12.01.1998, whereby the appellant erstwhile Kalavad Nagarpanchayat i.e. the petitioner was directed to make permanent all the workmen concerned in this reference from the date they had completed 240 days of services. It was further provided that the period of permanency so given, shall be notional for all the financial purposes except the fixation of wages, financial purposes except the fixation of wages upto 31.03.1992 and the concerned workmen including respondent No.1 was given benefit of arrears from 01.04.1992 onwards. The said reference was allowed by imposing cost of Rs. 5,00/- on Kalavad Nagarpanchayat. The record further indicates that thereafter respondent No.1 was made permanent w.e.f. 02.12.1985 and the appellant Nagarpalika gave all the benefits including the deduction of GPF till she retired. As the pensionary benefits were not given. Hence, respondent No.1 filed a writ petition being Special Civil Application No. 7832 of 2018 and inter-alia prayed as under:

"(A) Your Lordships may be pleased to admit and allow this petition.

(B) Your Lordships may be pleased to pass appropriate writ, order or direction, quashing and setting aside the order dated 18.05.2017.

(C) Your Lordships may be pleased to pass appropriate writ, order or direction, declaring that the petitioner is eligible and entitled to get pensionary benefits of the post of Tedagar from the date of her retirement and further directing the respondent to confer upon the

C/LPA/1145/2021 ORDER DATED: 25/01/2022

petitioner all consequential benefit i.e. salary, difference of salary of pension and interest thereon;

(D) Pending admission, hearing and final disposal of this petition, Your Lordship may be pleased to pass an order directing the respondent to give provisional pension to the petitioner immediately."

5. The appellant filed an affidavit and contested the writ petition, the learned Single Judge after relying upon binding the decision as confirmed by the Hon'ble Apex Court allowed the writ petition and being aggrieved by the same, the present appeal is being filed by the appellant - Nagarpalika.

6. Mr. Deep Vyas, learned advocate appearing for the appellant - Nagarpalika has contended that the services of respondent No.1 were never regularized and it is the burden of the State Government to pay pension, not the burden of the appellant - Nagarpalika. According to the learned advocate for the appellant, the appellant - Municipality has only to be a conduit pipe and forward the pension paper to the State Government.

7. The learned Single Judge has relied upon the judgment of this Court in the case of Chief Officer Vs. Mohmad Irshad Baloch and others reported in 2011 (1) GC 569 and as well as the judgment of the Division Bench of this Court recorded on Letters Patent Appeal No. 1061 of 2019 in the case of the appellant i.e. Kalawad Nagarpalika Vs. Govabhai Lakhabhai Solanki dated 01.08.2019, the respondent was working as a Sweeper. The learned Single Judge upon considering the same has also considered the judgment of the Hon'ble Apex Court in the case of Harijan Paniben Dudabhai v. State of Gujarat and others (Civil Appeal No.5441 of 2016, decided on 1st July

C/LPA/1145/2021 ORDER DATED: 25/01/2022

2016).

8. It is deserves to be noted that in Letters Patent Appeal No. 1061 of 2019 filed by the appellant Nagarpalika itself, the Division Bench of this Court has observed thus in Para 5, 6 & 7, which read as under:

"5. In the above backdrop of factual aspects and law laid down by this Court, to which, learned Single Judge addressed and reference is made by us in earlier paragraphs of this judgement, the petitioner belonged to erstwhile Kalawad Nagarpanchayat, which was no doubt governed by provisions of Gujarat Panchayat Act and Rules and, therefore, mere conversion of panchayat into Nagarpalika would not render entitlement of the petitioner for permanency and other benefits including retrial dues including fixation of pension and retiral dues. Admittedly, the petitioner attained the age of superannuation in the year 2011 and throughout remained in service by appellant Nagarpalika from his initial appointment in the year 1989 when he was made permanent but prior to that he was serving as a daily wager with erstwhile Kalawad Nagarpanchayat since 1973.

6. For the sake of convenience we are benefited by extracts of judgement laying down law in this regard, namely, entitlement of employees of erstwhile Nagarpanchayat and then converted into Nagarpalika so as to receive pension as addressed by learned Single Judge in paragraph 21 which reads as under:

"21. The following paragraphs from the decision would also require to be set out as under, which would indicate that case of petitioner for pension is justified.

(i) Decision rendered on 11.04.2016 passed in Special Civil Application No. 13333 of 2014:

(ii) para - 7:

"7. Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether the petitioner is entitled to the reliefs as prayed for. Let me assume for the moment, as submitted by the learned AGP, that the service of the petitioner was not regular. It is not in dispute that he served from 1988 to 2013. It is not in dispute that his services were

C/LPA/1145/2021 ORDER DATED: 25/01/2022

terminated and the Labour Court ordered his reinstatement in service with continuity. It is not in dispute that all throughout, he remained in the GPF. If that be so, it is difficult for me to accept the argument that he was not a regular employee. Apart from the above, it is not that in every case whenever a person is a daily wager, or a temporary employee, he would not be eligible or entitled for pension. A Division Bench of this Court in the case of Chief Officer vs. Mohamad Irshad Husenbhai Baloch & Ors. 2011 (I)GCD 569, observed as under; paragraph nos. 6 to

9...... .... .... ......."

[As paragraphs nos. 6 to 9 are reproduced hereinabove, same are not reproduced herein]

(ii) Decision reported in 2016(0) ALJEL-HC-236193, para-5 reads as under:

"(5) I could have rejected this writ-application relying on the judgment and order passed by this Court dated 23rd July 2009 and more particularly in view of the Division Bench decision in the case of Chorvad Gram Panchayat (supra). However, the decision of this Court in the case of Chorvad Gram Panchayat (supra) is now no longer a good law in view of the recent pronouncement of the Supreme Court in the case of Harijan Paniben Dudabhai v. State of Gujarat and others (Civil Appeal No.5441 of 2016, decided on 1st July 2016). The case of the writ-applicant will have to be reconsidered in light of the recent pronouncement of the Supreme Court referred to above. (6) I had an occasion to consider the case of Harijan Paniben Dudabhai (supra) while deciding the Special Civil Application No.7388 of 2002, decided on 5th August 2016. While disposing of the Special Civil Application No.7388 of 2002, this Court observed as under :

18. The issue as regards the pension and other retiral benefits is concerned, will have to be reexamined by the authority concerned in light of the recent pronouncement of the Supreme Court in the case of Harijan Paniben Dudabhai Vs. State of Gujarat and Others, Civil Appeal No.5441 of 2016, decided on 01/07/2016. The Supreme Court has explained very exhaustively the position of law as regards the claim of Panchayat employee for pension and other benefits is concerned.

19. I may quote the observations made by the Supreme Court as under:-

C/LPA/1145/2021 ORDER DATED: 25/01/2022

3. In terms of Gujarat Government Gazette dated 01.07.1961, the then Okha District Municipality got converted into Okha Gram and Nagar Panchayat on and w.e.f.

02.02.1962. Upon such conversion, the existing staff of municipality was allocated to Gram Panchayat and treated as part of Panchayat Service. Gujarat Panchayats Act, 1961 (hereinafter referred to as the Act) deals with Panchayat Service and various sets of Rules framed pursuant to the power conferred under the Act, deal with matters including classification of Panchayat Service and conditions of service as regards Panchayat Service...... ........."

(iii) decision reported in 2011(0) GLHEL-HC-226169, para-6 reads as under:

"6. Having heard the learned counsels appearing for the parties and upon perusal of the record of the case and the judgment and order dated 3.2.2011 passed by a Division Bench of this Court in Letters Patent Appeal No.214 of 2011 and allied matters, indisputably, the directions issued by the learned Single Judge in the writ petitions came to be confirmed in appeal by the Division Bench since the Letters Patent Appeals filed by the aggrieved Municipality came to be dismissed by the Division Bench, and the petitioners herein were the employees of the respondent Municipality, who were also parties to the common award referred to hereinabove, which attained finality upto the High Court, and the common award passed by the Industrial Court in various References was never disturbed, modified or changed and, for all purposes, the petitioners employees had not only acquired rights but their rights also came to be crystallized in their favour. Besides, the similarly situated employees from the very respondent Municipality were ordered to be paid retiral dues and benefits by the learned Single Judge, which came to be confirmed by the Division Bench of this Court and all the contentions which were raised there are on par with the contentions raised herein by the learned counsels for the respondentMunicipality and the State Government and answering those contentions, the Division Bench in paragraph 6 onwards held as under: paragraph nos. 6 to 9...... .... .... ......."

[As paragraphs nos. 6 to 9 are reproduced hereinabove, same are not reproduced herein.]

It is to be noted that aforesaid decision rendered in Special Civil

C/LPA/1145/2021 ORDER DATED: 25/01/2022

Application No. 3969 to of 2011 and allied matters, has been confirmed by the Division Bench vide judgment and order dated 21.01.2013 rendered in Letters Patent Appeal No. 96 of 2013 and allied matter. Against which, the State of Gujarat has preferred Special Leave to Appeal (Civil ) CC No. 15691015700 of 2013 and same was dismissed vide order dated 16.09.2013."

7. Accordingly, we are of the considered view that learned Single Judge has not committed any error warranting any interference by us. In absence of merit, the appeal fails and is dismissed."

9. The learned Single Judge of this Court has considered the similar view in the case and also respondent No.3 was working since 1984 till 1996. Hence both, the contentions raised by the learned advocate for the appellant deserve to be negatived.

10. In the light of the aforesaid, we are total agreement with the observations made by the learned Single Judge, and direction issued by the learned Single Judge, is proper and no interference is called for. The appeal is misconceived and the same deserves to be dismissed. The present appeal is dismissed. We expressed anguish from the conduct of the appellant - Municipality, who has already accorded same benefits to similarly situated class IVth employees of the very Nagarpalika and the same contentions which are now raised before us have been negatived by the Division Bench. The same issue is pursued again and again. However, in the facts of this case, there shall be no order as to costs.

(R.M.CHHAYA,J)

(HEMANT M. PRACHCHHAK,J) Salim/