Gujarat High Court
Administrative Officer vs Rupaben Valjibhai Sambad on 21 August, 2023
Bench: Devan M. Desai
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C/LPA/924/2023 ORDER DATED: 21/08/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 924 of 2023
In R/SPECIAL CIVIL APPLICATION NO. 4025 of 2018
With
CIVIL APPLICATION (FOR STAY) NO. 2 of 2022
In R/LETTERS PATENT APPEAL NO. 924 of 2023
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ADMINISTRATIVE OFFICER
Versus
RUPABEN VALJIBHAI SAMBAD
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Appearance:
MR DEEPAK N KHANCHANDANI(7781) for the Appellant(s) No. 1
MS SHRUTI DHRUVE, AGP for the Respondent(s) No. 1,2,3
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CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIA
and
HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 21/08/2023
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE DEVAN M. DESAI)
Heard learned advocate Mr. Deepak N. Khanchandani for the
appellant and learned Assistant Government Pleader Ms. Shruti
Dhruve for the respondent No.2.
2. This Letters Patent Appeal is challenging the order dated
10.10.2022 passed in Special Civil Application No.4025 of 2018,
whereby, the learned Single Judge has allowed the petition by
observing that both the parties were in agreement to the fact that the
issue raised in the petition have been dealt with and covered in the
CAV Judgment dated 23.9.2022 in Special Civil Application
No.6243 of 2008 and disposed of the petition by giving direction
that the case of the petitioner would be independently considered by
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the original respondents in terms of the aforesaid CAV judgment.
3. The following prayers are made in the present Appeal:
"(A) That Your Lordships be pleased to issue
an order, direction and / or writ in the nature
of mandamus and / or any other appropriate
writ, order or direction, directing the
respondents to immediately fix and grant the
pension for the services rendered by the
petitioner and retired on reaching the age of
superannuation;
(B) Direct the respondents to pay the arrears
of pension and encashment of unavailed
Privilege Leaves with 12% interest &
(C) Pending admission and final disposal of
this petition, Your Lordships be pleased to
direct the respondents to take the immediate
action for grant of pension"
4. The facts in brief of this Appeal are as under:
4.1. Respondent No.1 herein, is the original petitioner, was initially
appointed on part time basis as Peon in the Nagar Palika Sikshan,
Bhavnagar Municipal corporation. Thereafter, vide order dated
14.06.1990, she came to be appointed as full time Peon. This
appointment of the petitioner was treated as fresh appointment and
her seniority was counted from the date of her joining the duty as
full time Peon. The petitioner having joined service as full time Peon
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continued to serve on the said post till retirement. She attained the
age of superannuation on 31.05.2012.
4.2. In view of Rules, the petitioner's pension was required to be
fixed and finalize and for that purpose, Nagar Palika Shikshan,
Bhavnagar Municipal corporation had to initiate procedure well in
advance. The petitioner though retired on attaining superannuation
on 31.05.2012, the Municipal School Board has not taken any action
or proceeded to finalize pension of the petitioner though other
benefits like GPF and gratuity amount were paid. Therefore, the
petitioner has filed this petition for the aforementioned reliefs.
4.3. Since the same issue so raised and decided in judgment dated
23.09.2022 passed in Special Civil Application No.6243 of 2008 and
allied matters, learned Single Judge taking into consideration said
decision, disposed of the petition by directing to consider the case of
the petitioner independently in terms of the judgment. Being
aggrieved with the judgment impugned herein above, the appellant
has preferred this Letters Patent Appeal.
5. The appellant herein has challenged the impugned decision of
the learned Single Judge on the ground that there was delay on the
part of the original petitioner in preferring the petition. Since the
petitioner retired in 2012, there was a considerable delay in
preferring the petition. It is further submitted by the learned advocate
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for the appellant that Resolution No.17 passed by the General Board
of Bhavnagar Municipal Corporation dated 28.4.2015 was set aside
by respondent No.2 vide order dated 5.7.2017. Since the Resolution
No.17 dated 28.4.2015 was set aside by the Government, a huge
financial burden on the appellant would be fasten if the petitioner's
case is considered for pension and other benefits. Though the
petitioner is not entitled to the reliefs claimed under the petition
since the petitioner was a non teaching staff member and being non
teaching staff member, the petitioner is not entitled to the pensionary
benefits.
6. Having heard learned advocate for the appellant and perused
the Oral Judgment impugned dated 10.10.2022 passed in Special
Civil Application No.4025 of 2018, the learned Single Judge has
considered the CAV judgment dated 23.9.2022 passed in Special
Civil Application No.6243 of 2008 and allied matters, wherein,
paragraph No.7 has been reproduced hereunder:
"7. As both the sides are in agreement to the
fact that the issue raised in this petition, have
been dealt with and covered in the aforesaid
CAV Judgment, the Court deems it fit to dispose
of this petition with the direction that the case of
the petitioner would be independently
considered in terms of the aforesaid CAV
Judgment."
7. It is pointed out that the present respondent No.3, the
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Municipal Commissioner, Bhavnagar Municipal Corporation had
preferred Letters Patent Appeal No.869 of 2023 against the
judgment and order dated 10.10.2022 passed in Special Civil
Application No.4025 of 2018 wherein the Coordinate Bench of this
Court has observed as under:
"11. At the outset, perusal of the impugned order
indicates that the parties to the dispute were at ad-
idem that the dispute is covered by CAV judgment
delivered in Special Civil Application No.6243 of
2008. Para 7 of the impugned order dated
10.10.2022 passed in Special Civil Application
No.6887 of 2018 reads as under :-
"7. As both the sides are in agreement
to the fact that the issue raised in this
petition, have been dealt with and
covered in the aforesaid CAV Judgment,
the Court deems it fit to dispose of this
petition with the direction that the case
of the petitioner would be independently
considered in terms of the aforesaid
CAV Judgment."
12. Finding of the learned Single Judge in CAV
judgment delivered in Special Civil Application
No.6243 of 2008 has been confirmed and
approved in Letters Patent Appeal No.49 of 2023
and allied matters. Finding of the Division Bench
in Letters Patent Appeal No.49 of 2023 is
important and more particularly finding given in
para 7.5, 7.5.1 and 7.5.2, which reads as
under :-
"7.5 We have also gone through the GR
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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 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."
13. In view of above, since the issue canvassed
by learned advocate Mr. Munshaw for the
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appellant is squarely dealt with by the Co-
ordinate Bench in Letters Patent Appeal No.49 of
2023, there is no reason to re-examine the said
issue. Therefore, no case is made out to interfere
with the order impugned in the limited
jurisdiction of Letters Patent Appeal. The Letters
Patent Appeal is dismissed.
14. In view of dismissal of Letters Patent
Appeal, Civil Application would not survive.
Civil Application stands disposed of
accordingly."
8. Whereas, the present Letters Patent Appeal has been preferred
by the Administrative Officer, Nagar Prathmik Sikshan Samittee,
Bhavnagar Municipal Corporation against the same judgment and
order. Thus, the issue which has been raised in the present Letters
Patent Appeal has already been dealt with in the above referred
Letters Patent Appeal No.869 of 2023.
9. It is noticable that impugned Oral Judgment dated 10.10.2022
passed in Special Civil Application No.4025 of 2018 was delivered
after agreement of both the sides to the effect that the issue raised in
the petition is covered in the aforesaid CAV judgment.
10. Having considered the totality of the facts as well as the issue
being covered by the decision rendered in Special Civil Application
No.6243 of 2008 and allied matters, this Letters Patent Appeal does
not require to be admitted and the same is merit-less and deserves to
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be dismissed. Accordingly, the same is dismissed with no order as to
costs.
11. In view of dismissal of Letters Patent Appeal, Civil
Application would not survive. Civil Application stands disposed of
accordingly.
(N.V.ANJARIA, J)
(D. M. DESAI,J)
VATSAL
