Manchhaba Kiritsinh Sarvaiya ... vs State Of Gujarat
2022 Latest Caselaw 8798 Guj

      C/SCA/18492/2016                            JUDGMENT DATED: 06/10/2022




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                R/SPECIAL CIVIL APPLICATION NO. 18492 of 2016

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE A.Y. KOGJE
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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 ?

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      MANCHHABA KIRITSINH SARVAIYA WD/O KIRITSINH MANGLUBHA
                            SARVAIYA
                              Versus
                   STATE OF GUJARAT & 2 other(s)
================================================================
Appearance:
(MR BIPIN I MEHTA)(456) for the Petitioner(s) No. 1
MR VICKY B MEHTA(5422) for the Petitioner(s) No. 1
MR. ROHAN N. SHAH, AGP,for the Respondent(s) No. 1
MR HS MUNSHAW(495) for the Respondent(s) No. 3
MR PREMAL R JOSHI(1327) for the Respondent(s) No. 2
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    CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE

                              Date : 06/10/2022
                              ORAL JUDGMENT

[1] This petition under Article 226 of the Constitution of India is

filed by the petitioner claiming following reliefs:-

"(A) Your Lordships may be pleased to admit and allow this Special Civil Application;

C/SCA/18492/2016 JUDGMENT DATED: 06/10/2022

(B) Your Lordships may be pleased to issue appropriate writ, order or direction, declaring that, the petitioner is eligible and entitled to get family pension.

(C) Your Lordships may be pleased to issue appropriate writ, order or direction, directing the respondents to give Family Pension to the petitioner and further directing the respondents to give arrears alongwith interest to the petitioner from the date of death of the deceased employee Shri Kiritsinh Manglubhai Sarvaiya;"

[2] Essentially, the petition is seeking a declaration that the

petitioner widow of deceased employee of the respondent No.3 was

entitled to pension.

[3] Learned advocate for the petitioner submitted that the

petitioner, who is the widow of one Kiritsinh Manglubhai Sarvaiya

was appointed with the respondent Gram Panchayat in the year

1980 and since then had worked with the Gram Panchayat and had

opted for pension in place of contributory provident fund and

therefore, upon his retirement they were entitled to the pension.

[3.1] Learned advocate submitted that the case of the husband of

the petitioner for pension was perhaps not considered by treating

him not to be a regular employee of the Gram Panchayat. However,

he referred to the policy decision of the State Government to

regularize appointment of all the employees, who are appointed

between 1963 and 1984. Reference is made to the policy and the

communication dated 09.9.2016.

C/SCA/18492/2016 JUDGMENT DATED: 06/10/2022

[3.2] Learned advocate submitted that in view of the policy of the

State Government for giving an option to an employee either to

continue in Contributory Provident Fund Scheme or joint pension

scheme, the husband of the petitioner did exercise such option and

thereafter, in the year 2006, made a detailed representation. This

representation contained all the necessary details made in the

service books of the deceased husband and giving out the details

that the appointment of the husband of petitioner was against the

sanctioned post and was a permanent appointment. Despite this, no

response was received, as a result, Special Civil Application

No.21640 of 2007 was filed Seeking direction for grant of family

pension to the petitioner.

[3.3] It is submitted that despite the order dated 28.02.2007

passed in aforesaid petition, the proposal of the petitioner for family

pension was rejected and the ground for rejection was that the

husband of the petitioner had not exercise the option in accordance

with law.

[3.4] Learned advocate has relied upon the decision of the Apex

Court in case of Harijan Paniben Dudabhai v/s. State of

Gujarat and others, in Civil Appeal No.5441 of 2016 to submit

that in similar set of facts, the petitioner therein was given the

benefit of family pension also. He has also relied upon decision of

this court in Special Civil Application No.18634 of 2015, which was a

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case in connection with another Nagar Palika, wherein same set of

facts had arisen.

[4] As against this, learned advocate for the respondent-Gram

Panchayat submitted that the case of the petitioner was duly

considered. However, the petitioner had not exercised his option

either to join the pension scheme in order to continue with the

Contributory Provident Fund Scheme as per the policy and the

option which was exercised was much beyond the time period

prescribed to exercise such option. Moreover, the husband of the

petitioner had expired in the year 2001 and at that time, all

benefits also including contributory provident fund, received by the

petitioner without any objection and thereafter, for the first time, in

the year 2007, representation was made to claim family pension

and thereafter, the earlier round of petition.

[5] It is submitted that it in the earlier round of petition also, this

Court has not granted any relief in favour of the petitioner though

same Grounds were raised and there is no change in circumstances.

[6] It is submitted that the reliance is placed on the order in case

of Gariyadhar Nagarpalika, no right was decided and only direction

was given for considering the representation.

[7] In rejoinder, learned advocate for the petitioner submitted

that at the relevant time, it was the duty of the employer to bring to

C/SCA/18492/2016 JUDGMENT DATED: 06/10/2022

the notice of the husband of the petitioner the aspect of exercising

option for pension scheme and therefore, delay. if any, in exercising

search option, cannot be treated against the petitioner.

[8] The Court has heard learned advocate for the rival parties and

perused the documents placed on record. The petitioner is the

widow of one Kiritsinh Manglubhai Sarvaiya, who was appointed as a

Peon on daily wage basis and was made permanent w.e.f.

01.01.1981 by resolution dated 27.12.1980 passed by the Chittial

Gram Panchayat. The husband of petitioner was treated as

permanent employee against a sanctioned post and was put in the

pay scale applicable. It appears that on 10.09.2001, the husband of

the petitioner expired and thereafter the widow petitioner has

received all the benefits towards his retirement which included

contributory provident fund gratuity and leave encashment.

[9] Thereafter, it appears that in the year 2007, for the first time,

a representation was made by the petitioner, claiming family

pension in place of the benefit of contributory provident fund.

[10] It appears from record that the case of the petitioner was not

considered and hence, Special Civil Application No.21640 of 2007

came to be filed, wherein, this court passed an order dated

28.02.2007, directing the petitioner to make a detail of

representation and decision was required to be taken by the District

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Development Officer.

[11] The District Development Officer took the decision as per the

directions and communicated the same under order dated

22.01.2008, holding that as per the resolution providing for the

pension scheme for the panchayat department, the option was

required to be exercised within 6 months. However the husband of

the petitioner had not exercise such option and thereafter, the other

benefits available to the employee were given to the petitioner in

the year 2001 itself.

[12] The Government Resolution 29.09.1992 is made applicable to

the panchayat department, which provided for exercise of option to

continue with the contributory provident fund or to migrate to

pension scheme was required to be exercised within six months.

The record indicates that the option was not exercised by the

husband within the prescribed period. The claim of the petitioner

that the option was exercised by relying upon Annexure-B, the court

does not find such document to be reliable and part of the record of

the panchayat as there is no reference of such exercise of option in

writing in the record of the panchayat and no such reference is

made in the impugned order. It is relevant to observe that even at

the time of first petition in the year 2007, it was not the case of the

petitioner that the option was exercised in time and was submitted

to the Gram Panchayt. Had it been so, the same would have been

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the foundation in the earlier round of litigation. The document

Annexure-B is having a signature of Secretary, but hardly legible in

any manner so as to treat it as a proper exercise of an option.

[13] The Reliance placed by the petitioner in case of Harijan

Paniben Dudabhai (Supra), it is pertinent to observe that the

petition before the Apex Court had proceeded on entirely different

footing, where the claim of the petitioner therein who was the

widow of deceased employee of the Gram Panchayat was to hold

that the deceased employee was appointed within the sanctioned

setup as a full time employee and required to be treated as a

permanent employee with pay-scale salary and therefore, the Apex

Court had found the appointment made of the deceased employee

of panchayat in that case to be pursuant to resolution and at the

relevant time in the year 1964, the Gram Panchayat was an

appropriate authority for making appointment. Therefore, the issue

of exercising an option for family pension was never the question

before the apex court.

[14] The Apex court in a case of Pepsu Road Transport

Corporation, Patiala v/s. Amandeep Singh and Others,

reported in (2017) 2 SCC 766, hold that if the option for pension

scheme is not exercised and after retirement, CPF benefits are

received without any protest and without any grievance, thereafter

he cannot claim the benefit of pension scheme. The apex court in

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para 18 has held as under:-

"18. Further as per Regulation 4 (iii) if an option is not exercised within a period of six months from the date of issue of Regulations, it shall be deemed that the employee has to continue with the existing Contributory Provident Fund benefit, thus in the event of non-exercise of option within the period prescribed, the employee is deemed to continue in the existing CPF benefit. The deeming clause has been incorporated in the statutory provisions for achieving a purpose i.e. those who do not opt within six months new scheme, they shall continue in the existing CPF benefit. There are no exceptions engrafted in the deeming provisions and the deeming is a legal fiction which embraces all the employees who do not opt for new pension scheme. The suit filed by the plaintiff had been decreed mainly on the ground that notice inviting option has not been personally served on the plaintiff. Whether notice is required to be personally served to an employee before the period of six months as provided in Regulation 4 may start running is the question to be answered. A plain reading of the Regulations does not indicate that period of six months which is provided for submitting an option is dependent on personal service of notice. Although, as noticed above the Regulation has been forwarded on 15th June, 1992 itself to the General Manager of all the Depots and other places and the letter dated 15th June, 1992 further contemplates putting on the notice board in the Head Office and the Depots, the Corporation has thus taken care of circulation of Regulation to all concerned including the Head Office and all the Depots."

C/SCA/18492/2016 JUDGMENT DATED: 06/10/2022

[15] In view of the aforesaid reasoning, no case is made out for any

interference with regards to the decision taken by the respondent

panchayat. The petition therefor deserves to be and the same is

hereby dismissed. Rule is discharged. No order as to costs.

(A.Y. KOGJE, J) SIDDHARTH