Girdharbhai Jivrajbhai Padaria vs State Of Gujarat
2022 Latest Caselaw 8828 Guj

     C/SCA/6057/2021                               JUDGMENT DATED: 06/10/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 6057 of 2021


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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                       GIRDHARBHAI JIVRAJBHAI PADARIA
                                   Versus
                             STATE OF GUJARAT
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Appearance:
KRISHNAN M GHAVARIYA(8133) for the Petitioner(s) No. 1
MR. KURVEN DESAI, ASSISTANT GOVERNMENT PLEADER for the
Respondent(s) No. 1
MR HS MUNSHAW(495) for the Respondent(s) No. 2,3
NOTICE SERVED BY DS for the Respondent(s) No. 4
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    CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV

                               Date : 06/10/2022

                              ORAL JUDGMENT

1 Rule returnable forthwith. Mr.Kurven Desai, learned

Assistant Government Pleader, waives service of notice of

C/SCA/6057/2021 JUDGMENT DATED: 06/10/2022

rule on behalf of respondents Nos. 1 and 4,

Mr.H.S.Munshaw, learned advocate, waives service of

notice of rule on behalf of respondents Nos. 2 and 3.

2 The prayer in the petition is that the petitioner is

entitled to the benefit of leave encashment of 300 days

unavailed leave and also for a direction to revise the

pension as well as gratuity calculating from the date of

initial appointment i.e. 18.02.1989.

3 As far as the first relief is concerned, as pointed by

Mr.Ghavariya, learned counsel for the petitioner, the only

stand of the respondent as reflected from the affidavit-in-

reply filed by the Taluka Development Officer, Gondal

Taluka Panchayat, is that as far as the benefit of leave

encashment is concerned, the proceedings are pending

before the Hon'ble Supreme Court of India, wherein,

interim order is granted and there is Stay of the Hon'ble

Supreme Court vide order dated 07.02.2022 in SLP No.

1505 and SLP 1011 of 2022. The Hon'ble Supreme Court,

C/SCA/6057/2021 JUDGMENT DATED: 06/10/2022

now by way of an order dated 01.09.2022 in Special

Leave to Petition No. 7229 of 2022 has concluded the

issue in favour of the petitioner, inasmuch as, the

appellants of the State challenging the orders of the

Division Bench have been dismissed.

4 Accordingly, the prayer for leave encashment is

allowed. The respondents are directed to extend such

benefits to the petitioner within a period of ten weeks

from the date of receipt of copy of this order.

5 The second issue is with regard to revising the

pension and gratuity from the date of initial appointment.

The stand of the respondent from the reply indicates that

the same has been released in light of the order of the

Tribunal which granted benefits only on completion of ten

years in accordance with the policy Resolution dated

13.04.2009.

6 Two things need to be noted as far as this issue is

C/SCA/6057/2021 JUDGMENT DATED: 06/10/2022

concerned. The petitioner was an appellant before this

Court in Letters Patent Appeal No. 624 of 2018. The

appeal was decided by a Division Bench of this Court

(Coram: Hon'ble Mr.Justice Anant S. Dave & Biren A

Vaishnav, JJ). That appeal arose out of an oral order dated

02.05.2018 passed by the learned Single Judge who held

that the petitioner being a servant of the Gondal Taluka

Panchayat cannot claim the benefit as panchayat servant.

After recording the service history of the petitioner in the

oral order dated 06.02.2019 recording the objection of

the Panhayat, where also a specific objection was taken

as to the entitlement including that of the past service,

the Division Bench held as under:

"9 Having given anxious consideration to the submissions made by the learned advocates for the respective parties and considering the facts on hand, Mr.Munshaw, learned advocate for the respondent-Panchayat is not in a position to dispute the fact that the case of the appellant is covered by the decision in the case of State of Gujarat vs. Chandubhai Chhotabhai Patel (supra). The Division Bench of this Court while analyzing the provisions of the Gujarat Panchayat Act, 1961, and referring to the decision of the Supreme Court in the case of R.K.Soni (supra), had culled out the following propositions:

C/SCA/6057/2021 JUDGMENT DATED: 06/10/2022

"11. A conjoint reading of the provisions of the Bombay Village Panchayat Act and the Gujarat Panchayat Act bring out the following scenario: (A) Prior to 1/4/1963 the Gram Panchayat/Village Panchayat as per Section 9 of the Bombay Village Panchayats Act, 1958 was a Body Corporate by the name of "the Village Panchayat of....." having a perpetual succession and a common seal. (B) The Sarpanch had the power vested in him to take actions in implementation of the Panchayat's duties through Resolutions.

(C) Section 61 of the Bombay Village Panchayats Act, 1958 provided that the Panchayat may appoint such servants as may be necessary for the proper discharge of its duties under this Act and pay salaries from the Village Fund.

(D) Till the promulgation of the Gujarat Panchayats Act, 1961 w.e.f 1.04.1963 therefore the Village Panchayat was competent to appoint its servants/officers and act through Resolutions. The appointment of the Respondent made under such provisions was therefore valid and in accordance with the prevalent law in force, prior to the coming into force the provisions of Section 203 of the Gujarat Panchayats Act,1961 and the Rules thereunder. Therefore it was not a case where the prior sanction of the Development Commissioner or the State was inevitably a sine-qua non. No such provision existed. That the Panchayat in discharge of its duties under Section 45 of the Bombay Act, through its Resolution of the Sarpanch appointed the Respondent herein. That such appointment was on a sanctioned post was not a germane consideration as it was so presumed to be in accordance with law and therefore the appointment could not have been termed to be irregular or illegal.

(E) In the case of Harijan Paniben (supra) also, considering the question of appointment of servants prior to the 1961 Act which came into force on

C/SCA/6057/2021 JUDGMENT DATED: 06/10/2022

1/4/1963, there was no question of a distinction being drawn on the appointment being on a sanctioned post or not, and therefore the Division Bench Judgement in the case of Dahyabhai (Supra) would, in our opinion, made a distinction and dismissed the Petition of the employee on the ground that the appointment was not on a sanctioned post, would not be in consonance with the law laid down in the case of Harijan Paniben (supra) and the judgement of the Constitution Bench in R.K.Soni (supra). It categorically held that all such employees carried a common birth mark and therefore to hold that the appointment was not on a sanctioned post or that it was irregular or that the Panchayat employee belonged to a non-converted gram panchayat could not have been held to be against the respondent as that would lead to a microscopic discrimination which was set aside by the Judgement of the Constitution Bench in the case of R.K.Soni (supra).

(F) Referring to the decision in the case of G.L.Shukla (supra) reaffirmed in R K Soni (supra), the inevitable conclusion that is culled out is that the State is the master. Panchayat Service is a distinct and separate service set up for serving the Panchayat Organization of the State and it is as much a civil service of the State as the State Service. The State can have many services such as State Service, Police Service, Engineering Service etc. and Panchayat Service is one of them. In the Panchayat Service, as in the State Service, the State is the master and every officer or servant employed in the Panchayat Service is the servant of the State and not of the Panchayat under which he may be serving for the time being. The Panchayat Service is one single service with the State as the master.

12. Accordingly, we hold that the objections of the State and the Panchayat Authorities in the appeals on their behalf of denying the pensionary benefits to the Respondent amount to setting at nought an

C/SCA/6057/2021 JUDGMENT DATED: 06/10/2022

established and a settled principle of law as decided in the case of R K Soni (supra). The Respondent who served the Gram Panchayat is entitled to be granted pensionary benefits like pension and gratuity and other benefits that go hand in hand with the terminal benefits available to any other employee of the State who so retires. The appellants are, therefore, directed to pay the pensionary benefits to the employee within a period of eight weeks from today."

10 Apparently looking to the facts on hand, it is undisputed that the petitioner was initially appointed as a Driver on 18.02.1989. His services were terminated with effect from 04.06.1996. Aggrieved by this, he approached the Labour Court and pending such adjudication, he was reinstated on 14.06.1998. The Labour Court by the award held the entire period of service from 1996 to 1998 as continuous and set aside the order of termination as being bad.

10.1 In absence of being extended the benefits of regular employment, the appellant approached the Industrial Tribunal once again by raising an industrial dispute in Reference (IT) No. 52 of 2010. The Industrial Tribunal by an award dated 17.10.2013 directed that the petitioner be absorbed as a permanent employee on completion of ten years of service.

10.2 The Panchayat by an order dated 23.12.2013 passed an order granting him the benefit of regular pay-scale in view of completion of ten years with effect from 01.03.1999. Pay fixation was also accordingly done. Consequential benefits such as higher pay-scale etc., were granted to the petitioner. 11 All these factors, undisputedly rebut the stand of the District Panchayat as is evident from its reply that the petitioner was not employed on a regular set up without following the due procedure of law. Once having been granted the benefits of regularization and being absorbed in a regular pay-

C/SCA/6057/2021 JUDGMENT DATED: 06/10/2022

scale with effect from 23.12.2013, it is no longer open for the panchayat to contend that the petitioner - appellant herein was not a panchayat servant / civil servant. In view of position of law enunciated in the case of R.K.Soni (supra), and considered by the Division Bench in the case of Chandubhai Chhotabhai Patel (supra), the letters patent appeal is allowed. The oral order dated 02.05.2018 passed by the learned Single Judge is quashed and set aside. It is declared that the petitioner is entitled to be granted pensionary benefits like pension and gratuity and other benefits. The respondents are directed to pay the benefits, namely, the pensionary benefits and all other consequential terminal benefits to the appellant within a period of eight weeks from the date of receipt of a certified copy of this order."

7 Reading the aforesaid observations of the Division

Bench, it is apparent that, the Court observed that the

petitioner was entitled to the benefits of pension. Specific

observations were made as to the award of the Labour

Court and Tribunal which awarded continuity of service.

8 Keeping in mind this position of law as well as the

position enunciated by a Division Bench of this Court in

the case of EXECUTIVE ENGINEER PANCHAYAT

(MAA & M) DEPARTMENT and Another Versus

SAMUDABHAI JYOTIBHAI BHEDI & other

C/SCA/6057/2021 JUDGMENT DATED: 06/10/2022

reported in 2017 (4) GLR 2952, the petitioner is entitled

to the pensionary benefits being revised and gratuity too

from the date of his initial appointment i.e. 18.02.1989.

Pension be revised accordingly and gratuity amount

based on this and payments be made consequential to

this order within a period of 12 weeks from the date of

receipt of copy of this order. The petition is allowed,

accordingly. Rule is made absolute to the above extent.

(BIREN VAISHNAV, J) BIMAL