Pradyumna Ramniklal Joshi vs State Of Gujarat
2023 Latest Caselaw 5718 Guj

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     C/SCA/14886/2019                                ORDER DATED: 07/08/2023

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            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 14886 of 2019

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                         PRADYUMNA RAMNIKLAL JOSHI
                                   Versus
                             STATE OF GUJARAT
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Appearance:
MRS KRISHNA G RAWAL(1315) for the Petitioner(s) No. 1
MS. POOJA ASHAR, ASST. GOVERNMENT PLEADER for the
Respondent(s) No. 1,3
MR DEEPAK P SANCHELA(2696) for the Respondent(s) No. 2
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 CORAM:HONOURABLE MRS. JUSTICE MAUNA M. BHATT

                                Date : 07/08/2023
                                 ORAL ORDER

1. This petition is filed with the following prayers:

"A. To issue a Writ of Mandamus or any other appropriate writ, order or direction directing the Respondent Municipality to permit the petitioner to retire voluntarily from 31.5.2019 by accepting his voluntary retirement letter dated 20.9.2018.

B. Further be pleased to direct the respondents to release the pensionary benefits to the petitioner after acceptance of the voluntary retirement.

C. By way of interim relief this Court may permit the petitioner to proceed on leave.

D. Cost of this petition may kindly be awarded.

E. Any other relief/s looking to the facts and circumstances of the case may kindly be granted in the interest of justice."

2. Rule returnable forthwith. Learned advocate Mr. Hari Patel waives

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service of rule for respondent No.2- Halvad Nagarpalika and learned

Assistant Government Pleader Ms. Pooja Ashar waives service of rule

for respondent Nos. 1 and 3.

3. Considering the issue involved and with the consent of learned advocates for respective parties, this matter is taken up for final hearing and disposal today.

4. The facts in brief are as under:

(i) The petitioner was appointed as sanitary Inspector on daily

wage basis by Halvad Panchayat on 30.07.1991. Subsequently,

service of the petitioner was terminated by an order dated

31.03.1992. The order of termination was challenged by the

petitioner before this Court in Special Civil Application No. 2406 of

1992. This Court vide order dated 20.08.1993, directed the

respondent-Panchayat to consider the representation of the

petitioner sympathetically. Pursuant thereto the petitioner was taken

back in service by an order dated 07.09.1993.

(ii) The Panchayat thereafter recommended the case of the

petitioner for appointment on sanctioned set up to Development

Commissioner on 13.04.1994. During pendency of the said

recommendation, the Panchayat was converted into Municipality in

the year 1994. Accordingly, by communication dated 09.02.1995, the

newly constituted Municipality forwarded the proposal to Regional

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Director of Municipality for appointment of the petitioner on

sanctioned set up. The appointment of the petitioner came to be

sanctioned on 04.03.1995, and accordingly the petitioner was put in

a regular pay scale on 04.03.1995.

(iii) Accordingly, the earlier petition filed i.e. Special Civil

Application No. 2406 of 1992 was withdrawn by order dated

06.09.1995, as the grievance of the petitioner got settled.

(iv) The petitioner thereafter applied for voluntary retirement, upon

completion of 28 years of service. By an application dated

20.09.2018, he sought VRS to be made effective from 31.05.2019.

However, the application seeking VRS was refused by an order dated

13.08.2019. Aggrieved by which, the present petition is filed.

5. Heard learned advocate Ms. Krishna Raval for the petitioner,

learned advocate Mr. Hari Patel for respondent No.2- Halvad-

Municipality and learned Assistant Government Pleader Ms. Pooja

Ashar for the respondent Nos. 1 and 3.

6. Learned advocate Ms. Krishna Raval for the petitioner

submitted that Rule 49 of the Gujarat Civil Service Pension Rules,

1972, ("the Rules", for short), provides for retirement upon

completion of 25 years of service. In this case, the petitioner upon

completion of 28 years of service made an application dated

20.09.2018, seeking VRS with effect from 31.05.2019. However, the

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application seeking VRS was rejected by an order dated 13.08.2019,

i.e. after the period mentioned in the VRS application. She therefore,

submitted that since no response was received during notice period ,

the application is deemed to be accepted by the authority and

therefore, the respondents may be directed to treat the petitioner as

voluntarily retired from service. She in support of her submissions,

relied upon Rule-49(2) and submitted that there is deemed

acceptance of the VRS of the petitioner. She also relied upon the

decision of this Court (i) in the case of Suryakant Chimanlal Patel

Vs. State of Gujarat & Ors., reported in 2009(3) G.L.H. 153,(ii)

in the case of Makwana Himmatlal Gokaldas Vs. State of

Gujarat, reported in 2017 (0) AIJEL- HC 236993 and (iii) in the

case of Indian Bank Vs. Mahaveer Khariwal, reported in 2021

(0) AIJEL- SC 66956.

6.1 In relation to other reliefs sought, for grant of pension and

other retirement benefits, she submitted that the petitioner was

continued in service without any break. Upon formation of

Municipality a proposal was forwarded to Municipality to absorb the

petitioner in a sanctioned set up and to appoint accordingly. In

response to the said proposal dated 09.02.1995, the petitioner was

appointed by an order dated 04.03.1995 on the sanctioned set up as

Sanitary Inspector and communication to that effect was issued. The

petitioner was also placed on the regular pay scale under order dated

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04.03.1995.

6.2 Learned advocate Ms. Raval for the petitioner submitted that

since the petitioner has been continued as Sanitary Inspector from

the date of joining till he retired with effect from 31.05.2019, he is

entitled for pension and other consequential benefits as prayed for.

In support of her submissions, she relied upon decision of this Court

in the case of Bhikhabhai M. Bambhania Vs. Chief Officer & 2 in

Special Civil Application No.589 of 2010, which has been

confirmed by the Division Bench of this Court in Letters Patent

Appeal No. 214 of 2011 and allied matters, reported in 2011(0)

GLHEL- HC 224820 and therefore she prayed that the respondents

may be directed to grant pension and other consequential retirement

benefits eligible to the petitioner in accordance with law.

7. Per contra, learned advocate Mr. Hari Patel for respondent

No.2- Halvad Municipality submitted that the petitioner was given a

fresh appointment vide order dated 04.03.1995. Since he has been

given fresh appointment on sanctioned set up, the petitioner is not

entitled for pension for the earlier service he rendered in the Halvad

Nagar panchayat. Learned advocate Mr. Patel submitted that since

initially the petitioner was appointed as Sanitary Inspector on a daily

wage basis with effect from 30.07.1991, he is entitled for leave

encashment and other consequential benefits as per panchayat

rules. However, in relation to pension, he reiterated that by the order

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dated 04.03.1995 fresh appointment was given to the petitioner and

thus pensionary benefit is not available to the petitioner.

7.1 Learned advocate Mr. Patel relied upon the letter dated

13.04.1994 to submit that prior to conversion of Nagar panchayat

into Municipality, a proposal was already forwarded to have sanction

set up for Sanitary Inspector, which had not been accepted by the

Government. However, as there was no response received prior to

conversion of Nagar Panchayat into Municipality, the petitioner was

continued but is not entitled for the benefits of pension. He also

submitted that the petitioner has been stated to be allocated

employee of the Municipality only after his appointment and i.e.

evident by order dated 04.03.1995 and therefore, the petitioner is

not entitled to any benefit prior to that date. In the alternatively,

learned Advocate submitted that if any benefit, the petitioner is

entitled for, it will be only from the date of his appointment by an

order dated 04.03.1995 as the petitioner is stated to be allocated

employee of Panchayat by order dated 04.03.1995 and not prior

thereto. In other words, the petitioner cannot be stated as an

employee of the respondent - Municipality prior to 04.03.1995, and

therefore, the order dated 13.08.2019, rejecting the grant of pension

to the petitioner is appropriate and there is no illegality in the order

passed by the respondent - Municipality. In support of his

submissions, he relied upon the affidavit filed by Halvad-

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Municipality. Further, clause 18 of the Government Resolution dated

9.9.1996, refers to grant of pensionary benefits only upon having

exercised option and only after contributing the required amount by

the concerned workman. This has not been done. He therefore

submitted that the petition may be rejected.

8. Learned Assistant Government Pleader Ms. Pooja Ashar for

respondent Nos. 1 and 3 submitted that the petitioner was not

appointed by the respondent - State but he was appointee of Nagar

panchayat and thereafter upon conversion of Panchayat into

Municipality, the petitioner continued with the Halvad- Municipality

and therefore, he is not entitled for any benefit of Government

Employee as prayed for. She submitted that Gujarat Civil Services

(Pension) Rules, 2002 would not be applicable in the case of the

petitioner as the petitioner is employee of Municipality. The Circular

dated 28.11.1994 would be applicable in the present case, which is

annexed with the petition at Annexure-I, Page No. 24. She relied

upon Clause-24 of the Circular dated 28.11.1994, that only those

who are appointed on sanctioned post would be entitled for the

benefit of pension. It also refers that the Nagarpalika and Panchayat,

which have been converted after the Government Resolution dated

28.11.1994, would not be eligible for the benefits. She also submitted

that since the Panchayat has not contributed as per the Government

Resolution dated 28.11.1994, the Government is not responsible for

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any pension to be paid to the petitioner.

9. Considered the submissions. It is not in dispute that the

petitioner was earlier appointed as daily wager on the post of

Sanitary Inspector by an order dated 30.07.1991. The service of the

petitioner was thereafter terminated and upon directions of this

Court to decide the representation, was reinstated in the service by

order dated 07.09.1993. Subsequently, on 13.04.1994, a proposal

was sent by Development Commissioner for sanctioned set up.

During pendency of this proposal the Panchayat was converted into

Municipality and the petitioner was thereafter by communication

dated 04.03.1995, taken in service of Municipality as Sanitary

Inspector on a sanctioned set up. It is not in dispute that the order

dated 04.03.1995 was passed appointing the petitioner on a

sanctioned set up of Halvad- Municipality on the post of Sanitary

Inspector. The appointment on sanction set up was done after the

Resolution by Halvad Nagarpalika and thus, the petitioner continued

in the service from Halvad Panchayat to Halvad Nagarpalika from

30.07.1991, till he sought VRS. Further, the petitioner sought VRS

upon completion of 28 years of service.

9.1. Rule -49(2) of the Gujarat Civil Services (Pension) Rules, 2002,

reads as under"

"49(2) - The notice of voluntary retirement given under sub-rule (1) shall require acceptance by the

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appointing authority;

Provided that where the appointing authority does not refuse to grant the permission for retirement before the expiry of the period specified in the said notice, the retirement shall become effective from the date of expiry of the said period."

In this case, the rejection of VRS was admittedly after the

notice period and therefore, in the opinion of this Court, since

rejection order being subsequent to the date of seeking VRS, the

resignation shall be deemed to be accepted.

9.2. Moreover, the Hon'ble Supreme Court in the case of Indian

Bank Vs. Mahaveer Khariwal, reported in 2021 (0) AIJEL-SC

66956, while interpreting Regulation 29(2) of Indian Bank

(employees) Pension Regulations, 1995 which is pari-materia to Rule

-49(2) of the Gujarat Civil Services (Pension) Rules, 2002 has held

that any decision taken after expiry of notice period is bad in law.

9.3 Thus in view of reasons given in para 9.1 and 9.2 herein above,

the respondent No.2, Halvad Municipality is directed to treat the

petitioner as voluntarily retired with effect from 31.05.2019.

10. In relation to counting of service of the petitioner for

pensionary benefits as prayed, it is noticed that earlier the petitioner

was appointed as daily wager by Halvad Nagar panchayat, thereafter

upon conversion of Panchayat into Municipality, he was appointed on

sanctioned set up. Prior to conversion of Nagar Panchayat in to

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Municipality, the proposal was sent for sanctioned set up, and in this

case the petitioner was appointed after resolution by the Municipality

upon receiving sanction set up. The petitioner was thus appointed on

sanctioned set up of the Municipality as Sanitary Inspector.

11. The Division Bench of this Court, in the case of Chief Officer

Vs. Mohamad Irshad Husenbhai Baloch in judgment dated

03.02.2011 in Letters Patent Appeal No. 214 of 2011 has held

as under;

"7: The learned counsel for the appellant, however contended that the employees concerned, who were in the then panchayat service and subsequently continued in the municipality, were not recruited by the regular selection process and it was submitted that it is only w.e.f. 1.1.1989 they have been granted permanency benefit. When on 1.1.1989 permanency benefits were granted, they were taken as municipal employees and not as employees of the panchayat. Under the circumstances, they would be entitled for all benefits, which may be available to other municipal employees. It was submitted that as per the decision of this Court in case of Chorwad Gram Panchayat Vs.Ramniklal Dharshi Shah reported at (2010)1 GCD 675, such employees who were not recruited by the regular selection process of the then Gram Panchayat, could not be termed as in panchayat service and, therefore, would not be eligible for the pensionary benefits as available to other employees of the panchayat or Government service. Learned counsel, therefore, contended that if the employees were of the municipality, there is no scheme of the Government for

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pensionary benefits, but the scheme applicable would be CPF to the employees of the municipality. It was submitted that the learned single Judge was guided by the resolution of the Government, which in the submission of the municipality is not applicable and, therefore, the order passed by the learned single Judge is erroneous.

8. xxxx

9: The aforesaid is coupled with the circumstance that it is not that in every case whenever a person is daily wager or a temporary employee of the Government, he would not be eligible or entitled for pension. On the contrary as per the policy of the Government, even if a person is an adhoc/temporary employee, after completion of requisite length of service, he is to be treated as eligible for the scheme of pension and once he is treated as eligible for the scheme of pension, and his contribution are being deducted from his salary, he would be eligible for the pension upon completion of the requisite length of service. Therefore, there is no absolute bar operating upon the entitlement of the pension by the employees of the then Gram Panchayat, who are treated for all purposes as covered by the scheme of pension for the contribution from their salary and same position continued until they reached to the age of superannuation or until the end of their service."

12. In view of the above, the petitioner cannot be stated to have

been freshly recruited by Halvad Municipality- respondent No.2 and

his services are required to be considered for grant of pension only

after 04.03.1995. Further, it is not in dispute that the petitioner has

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been given GPF benefit. Therefore, the respondent- State is directed

to verify the details by counting petitioner's service from the date of

his initial appointment for grant of pension.

13. In relation to the contention of respondent State, that

respondent-No. -2-Municipality would be liable for payment of

pension in the decision of this court in case of Manubhai Ramjibhai

Solanki Vs. President, Dhari Gram Panchayat, reported in 2023

(1) GLH 449, in para 12, has held that once the petitioner has been

regularized in service and the regularization in service is not

doubted, he would be entitled to benefits, which are being paid to

the regular employee. The State Authority therefore, was accordingly

directed to pay such amount. However, the liberty is reserved in

favour of the State- Government to recover such amount from the

Gram Panchayat, if permissible under law.

14. In view of the above, following directions are issued: -

(i) That respondent No.2- Halvad-Nagarpanchayat is directed to

treat the petitioner as voluntary retired with effect from 31.05.2019.

(ii) Any contribution taken by the Municipality from the employee,

is directed to be deposited with the State-Authority immediately.

The Municipality is accordingly directed to prepare pension papers

and forward the same to the State- Authority. The said exercise is

directed to be carried out by respondent No.2- Municipality as

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expeditiously as possible. However, not beyond the period of 10

weeks from the date of receipt of this order.

(iii) Upon receipt of such pension papers, the State- Authority is

directed to verify the details and to make the payment of pension

within a period of 10 weeks thereafter.

15. This petition is allowed. Rule is made absolute to the aforesaid

extent.

(MAUNA M. BHATT,J) Prk