Gujarat High Court
Bhavnagar Mahanagar Seva Sadan vs Manish G. Gagwani on 10 April, 2023
Bench: Hasmukh D. Suthar
C/LPA/49/2023 ORDER DATED: 10/04/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 49 of 2023
In R/SPECIAL CIVIL APPLICATION NO. 6243 of 2008
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2022
In R/LETTERS PATENT APPEAL NO. 49 of 2023
With
R/LETTERS PATENT APPEAL NO. 86 of 2023
In
SPECIAL CIVIL APPLICATION NO. 15163 of 2010
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2022
In R/LETTERS PATENT APPEAL NO. 86 of 2023
In
SPECIAL CIVIL APPLICATION NO. 15163 of 2010
With
R/LETTERS PATENT APPEAL NO. 87 of 2023
In
SPECIAL CIVIL APPLICATION NO. 9022 of 2017
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2022
In R/LETTERS PATENT APPEAL NO. 87 of 2023
In
SPECIAL CIVIL APPLICATION NO. 9022 of 2017
==========================================================
BHAVNAGAR MAHANAGAR SEVA SADAN
Versus
MANISH G. GAGWANI
==========================================================
Appearance:
MR HS MUNSHAW(495) for the Appellant(s) No. 1,2
for the Respondent(s) No. 3,4
MR KURVEN DESAI, ADVANCE COPY SERVED TO GOVERNMENT PLEADER/PP for the
Respondent(s) No. 2
MR GM JOSHI, SR. ADVOCATE, MR VYOM H SHAH(9387) for the Respondent(s) No. 1
MR KB PUJARA for the Respondent(s) No. 1 IN LPA NO. 87 of 2023
==========================================================
CORAM: HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
and
HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 10/04/2023
COMMON ORAL ORDER
(PER : HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI)
1. Since, all these appeals arise out of the common
CAV judgment and order, Dated: 23.09.2022, passed by
the learned Single Judge and as they involve common
C/LPA/49/2023 ORDER DATED: 10/04/2023
question of law and facts, they are heard together
and being disposed of by this common order.
2. The brief facts of the case are that the father
of the opponent No.1 in Letters Patent Appeal No. 49
of 2023, opponent Nos. 1 to 3 in Letters Patent
Appeal No. 86 of 2023 and Opponent No.1 in Letters
Patent Appeal No. 87 of 2023 were working under the
Nagar Prathmik Shikshan Samiti ('NPSS', hereinafter)
of the erstwhile District Panchayat, Bhavnagar, /
Bhavnagar Municipal Corporation. Since, they were
denied the benefits of pension and other retiral
benefits, the opponents approached this Court by
filing captioned petitions, wherein, the learned
Single Judge passed the common impugned judgment and
order dated 23.09.2022.
Hence, the present appeals.
3. Heard, learned Advocate, Mr. Munshaw, for the
appellants, learned AGP, Mr. Desai, for the Opponent-
State, learned Sr. Advocate, Mr. Gautam Joshi,
assisted by learned Advocate, Mr. Shah, for the
private Opponents in LPA Nos. 49 & 86 of 2023 and
learned Advocate, Mr. Pujara, for Opponent No.1 in
LPA No. 87 of 2023.
4. Learned Advocate, Mr. Munshaw, appearing for the
appellants submitted that, since, the opponents are
not covered under the pension scheme of the state
C/LPA/49/2023 ORDER DATED: 10/04/2023
government, which was implemented by the Bhavnagar
Municipal Corporation, they are not entitled to get
the pension and other retiral benefits. In support of
this submission, learned Advocate, Mr. Munshaw,
referred to the relevant paragraphs of the affidavit
filed by and on behalf of the appellants.
4.1 Learned Advocate, Mr. Munshaw, submitted that as
per Government Resolution dated 24.08.1994, a copy
whereof is produced at Page-65 of the compilation,
since, the opponents were working under NPSS, they
are not entitled to get pension and other retiral
benefits.
4.2 It was submitted that so far as the father of
the Opponent in LPA 49 of 2023 is concerned, as he
was working on the post of Sr. Clerk, which was not
sanctioned, he is not entitled to get the benefits,
as is claimed in the captioned petition.
4.3 Learned Advocate, Mr. Munshaw, at this stage,
submitted that Appellant No.1 had, in fact, sent a
proposal on 28.04.2015 for taking appropriate
decision for granting the benefit of pension to the
employees working as non-teaching staff in NPSS and
the transport department of Appellant No.1. However,
the aforesaid proposal was suspended by the State
vide order dated 05.07.2017. It was, therefore,
submitted that the opponents are not entitled to get
pension and other retiral benefits.
C/LPA/49/2023 ORDER DATED: 10/04/2023
4.4 Learned Advocate, Mr. Munshaw, submitted that
the present appellants, since, are not financially
capable to pay the pension and other retiral benefits
to the non-teaching staff working in NPSS, the
learned Single Judge has committed a grave error by
passing the impugned order dated 23.09.2022, whereby,
the directions have been issued to grant pensionary
and other benefits to the private opponents, along
with interest at the rate of six per cent per annum
from the date of superannuation, till the date of
payment, thereof.
4.5 It was, therefore, prayed that the present
appeals be allowed and the impugned order dated
23.09.2022, passed by the learned Single Judge, be
quashed and set aside.
5. Learned AGP, Mr. Desai, appearing for the
Opponent-State supported the submissions made by the
learned Advocate for the appellants and submitted
that the present appeals be allowed.
6. Per contra, learned Sr. Advocate, Mr. Joshi,
appearing with learned Advocate, Mr. Shah, and
learned Advocate, Mr. Pujara, appearing for the
private opponents in the respective matters, strongly
opposed the present appeals and, by placing reliance
on the GR dated 24.11.1988, which was issued by the
Education Department of the State of Gujarat and a
C/LPA/49/2023 ORDER DATED: 10/04/2023
copy of which is produced at Page-155 of the
compilation, contended that, as per the aforesaid
resolution the non-teaching staff of various
authorized municipal school boards, which were not
covered by the pension scheme, earlier, were declared
to be covered by the aforesaid resolution.
6.1 At this stage, learned Sr. Advocate, Mr. Joshi,
referred to the case of Opponent No.1 in Letters
Patent Appeal No. 49 of 2023 and submitted that, his
father earlier filed a petition, being Special Civil
Application No. 1415 of 2004, wherein, the learned
Single Judge of this Court had directed the
appellants to reconsider his case vide order dated
05.09.2005. It appears that, thereafter, Appellant
No.2, herein, had passed an order on 08.08.2006,
stating that the father of Opponent No.1 in Letters
Patent Appeal No. 49 of 2023 is entitled to get
pension for the period from 01.02.2000 to 12.01.2005
and family pension for the period from 13.01.2005 to
11.05.2006, i.e. the date on which present Opponent
No.1 attained 25 years of age.
6.1.1 Learned Sr. Advocate, Mr. Joshi, submitted
that the aforesaid decision has neither been
withdrawn nor the same has been implemented, till
date, and therefore, Opponent No.1 was constrained to
file the captioned petition. It was, therefore, urged
that, now, it is not open to the appellants to
contend that the private opponents are not entitled
C/LPA/49/2023 ORDER DATED: 10/04/2023
to get the pensionary and other retiral benefits.
6.2 Learned Advocates appearing for the respective
private opponents, then, referred to the reasons
recorded by the learned Single Judge in the impugned
order and contended that no error is committed by the
learned Single Judge in passing the order dated
23.09.2022.
7. We have heard the learned Advocates appearing
for the parties and considered the submissions made
by them and also perused the material placed on
record.
7.1 From a perusal of the material on record, it
emerges that so far as father of Opponent No.1 in LPA
No. 49 of 2023 is concerned, initially, he was
granted temporary pension and thereafter, the
appellants stopped depositing the amount of pension,
suddenly.
7.1.1 It appears that being aggrieved with the
same, the father of Opponent in LPA No. 49 of 2023
had preferred Special Civil Application No. 1415 of
2004 and since, during the pendency of the said
petition the original petitioner-father expired,
present Opponent No.1-Manish was brought on record as
the heir and legal representative of the original
petitioner, i.e. his father.
C/LPA/49/2023 ORDER DATED: 10/04/2023
7.1.2 The learned Single Judge of this Court
disposed of SCA No. 1415 of 2004 vide order dated
05.09.2005, while issuing the direction to the
Respondent-authorities, therein, to re-consider his
case.
7.1.3 It may be noted that, thereafter, appellant
No.2, herein, passed the order dated 08.08.2006,
whereby, father of Opponent No.1 in LPA No. 49 of
2023 was held to be entitled to get pension for the
period from 01.02.2000 to 12.01.2005 and family
pension for the period from 13.01.2005 to 11.05.2006,
i.e. the date on which Opponent No.1 in LPA No. 49 of
2023 attained 25 years of age.
7.1.4 The order dated 08.08.2006 was passed by
appellant No.2, after obtaining necessary sanction /
approval of the competent authority. However, neither
the said order has been withdrawn nor the same has
been implemented, till date. It was because of this
reason that opponent No.1 was constrained to file the
captioned petition.
7.1.4.1 In above view of the matter, we are of the
considered opinion that, now, it is not open to the
appellants to plead that as the father of Opponent
No.1 in LPA No. 43 of 2023 was working as non-
teaching staff, i.e. as Sr. Clerk, which was not
sanctioned by NPSS, he is not entitled to get the
pensionary and other benefits. It may be noted that
C/LPA/49/2023 ORDER DATED: 10/04/2023
before the learned Single Judge no such contention
was ever raised / taken and it is for the first time,
in the present proceedings, the same is being pressed
into service by way of affidavit filed on behalf of
the appellants, which cannot be permitted.
7.5 We have also gone through the GR dated
24.11.1988, issued by the Education Department of the
State of Gujarat. A perusal of the said GR reveals
that State Government had decided to grant pension to
non-teaching staff of various authorized municipal
school boards within the State and Clause-2 thereof,
specifically provides that the authorized
municipalities / municipal corporations, who will
give the above benefit to their non-teaching staff of
Municipal School Board, will be eligible for the
admission grant towards the State Government share on
pension contribution only.
7.5.1 Now, it is the case of the appellants that
the State Government is not providing admission grant
towards the State Government's share on pension
contribution, and therefore, they are financially not
in a position to grant pension and other retiral
benefits to the private opponents, herein.
7.5.2 So far as the non-payment of admission grant
by the State Government towards its share on pension
contribution is concerned, it is always open to the
appellants to take appropriate steps, in accordance
C/LPA/49/2023 ORDER DATED: 10/04/2023
with law, but, at the same time, by that reason
alone, the appellants cannot deprive the private
opponents of the benefits, which they are entitled to
get.
7.6 We have also gone through the impugned judgment
and order, Dated: 23.09.2022, where, the learned
Single Judge, after taking into consideration various
decisions of the Apex Court as well as of this Court,
has specifically held that the private opponents are
entitled to get pension and other retiral benefits
along with interest at six per cent per annum.
7.7 In view of the above discussion, we are of the
considered view that the learned Single Judge has
committed no error in passing the common CAV judgment
and order dated 23.09.2022.
8. Resultantly, all these appeals fail and the same
are DISMISSED, accordingly.
8.1 In view of the disposal of the main matters,
Civil Applications shall not survive and they also
stand DISPOSED OF, accordingly.
(VIPUL M. PANCHOLI, J)
(HASMUKH D. SUTHAR,J)
UMESH/-
