Bhavnagar Municipal Corporation vs Jamnaben Shankarbhai Makwana
2023 Latest Caselaw 5269 Guj

     C/LPA/831/2023                            ORDER DATED: 07/07/2023




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/LETTERS PATENT APPEAL NO. 831 of 2023

           In R/SPECIAL CIVIL APPLICATION NO. 6887 of 2018
                                 With
              CIVIL APPLICATION (FOR STAY) NO. 2 of 2023
             In R/LETTERS PATENT APPEAL NO. 831 of 2023
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                  BHAVNAGAR MUNICIPAL CORPORATION
                               Versus
                   JAMNABEN SHANKARBHAI MAKWANA
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Appearance:
MR HS MUNSHAW(495) for the Appellant(s) No. 1
for the Respondent(s) No. 2
MS SHRUTI DHRUV, AGP for the Respondent(s) No. 3
MS HARSHAL N PANDYA(3141) for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIA
       and
       HONOURABLE MR. JUSTICE J. C. DOSHI

                           Date : 07/07/2023

                            ORAL ORDER

(PER : HONOURABLE MR. JUSTICE J. C. DOSHI)

1. This intra Court appeal under clause 15 of the Letters Patent challenges the judgment and order dated 10.10.2022 passed in Special Civil Application No.6887 of 2018. In this judgment, learned Single Judge held that the issue raised by the original petitioner is covered by CAV judgment dated 23.09.2022 passed in Special Civil Application No.6243 of 2008 and allied matter and therefore, directed that case of the petitioner would be considered independently in terms of the judgment.

2. In CAV judgment dated 23.09.2022 passed in Special Civil Application No.6243 of 2008 and allied matters, in operative

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portion in para 27, the Court has held as under :-

"27. Considering the above conspectus of law, these petitions are allowed. The respondents are directed to consider the case of each of the petitioners for payment of pension and retirement benefits including family pension to the legal heirs, if any, together with interest at the rate of 6% per annum from date of superannuation till the date of payment of pension and other retirement benefits to each of the employee, within a period of 12 weeks from the date of receipt of copy of this order."

3. The facts of the case can be recapitulated. The petitioner was initially appointed on part time basis as peon under the Municipal School Board, Bhavnagar. Thereafter, vide order dated 12.09.1994, she came to be appointed as full time peon in the pay scale of Rs.750-940 and was posted in Municipal School Board, Bhavnagar. 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 continued to serve on the said post till retirement. Date of birth of the petitioner is 04.10.1956. She attained the age of superannuation on 31.10.2016. In view of Rules, the petitioner's pension was required to be fixed and finalize and for that purpose, Municipal School Board had to initiate procedure well in advance. The petitioner though retired on attaining superannuation on 31.10.2016, 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 was paid.

C/LPA/831/2023 ORDER DATED: 07/07/2023

3.1. It is also case of the petitioner that on 24.11.1988, State Government in its Education Department has granted benefit of pension scheme to non teaching staff in various Municipal School Board of Gujarat and as such Resolution came to be passed to grant pension scheme to non teaching staff appointed in various Municipal Schools. The scheme was made effective post resolution dated 24.11.1988.

3.2. It is the case of the petitioner that Municipal Corporation, Bhavnagar in its general meeting on 30.09.2005 decided that pension scheme shall be made applicable to the employees serving under Transport Department as well as non teaching staff under Municipal School Board, yet the petitioner was not given benefit of pension scheme and hence, the petitioner has filed Special Civil Application seeking following relief :-

"(A) declare and hold that petitioner is entitled for pension and other pensionary benefit upon her superannuation retirement in light of the Government Resolution dated 24/11/1988 and the resolution passed by the Bhavnagar Municipal Corporation on 30/9/2005, and (B) further be pleased to direct the respondent authorities to finalize pension case of petitioner and make payment of pension and arrears thereof with interest at the rate which the Honourable Court may consider as just and proper, (D) award the cost of the petition, and (E) pending admission and final disposal of the petition, the Honourable Court may be pleased to direct the respondent authority to finalize the pension case of petitioner and make payment of retirement dues, and/or"

C/LPA/831/2023 ORDER DATED: 07/07/2023

4. Since the same issue so raised and decided in CAV judgment dated 23.09.2022 passed in Special Civil Application No.6243 of 2008 and and allied matters, learned Single Judge taking aid of the judgment disposed of the petition placing the case of the petitioner with the case of the petitioners of Special Civil Application No.6243 of 2008 and other matters and directed that case of the petitioner would be independently considered in terms of CAV judgment. Being aggrieved with the judgment impugned herein above, Bhavnagar Municipal Corporation is in inter Court appeal.

5. Heard learned advocate Mr. H.S.Munshaw for the appellant, learned advocate Ms. Harshal Pandya for the respondent - original petitioner and learned Assistant Government Pleader Ms. Shruti Dhruve for rest of the respondents.

6. In his limited submission, learned advocate Mr. H.S.Munshaw submitted that resolution of Bhavnagar Municipal Corporation dated 30.09.2015 extending benefit of pension scheme to the Transport Department and non teaching staff under Municipal School Board has been suspended by the State Government and in that circumstances, Bhavnagar Municipal Corporation is not position to implement order. He would submit that even otherwise benefit of resolution dated 30.09.2015 would not be extended to non teaching staff of Municipal School Board. He would submit that it for the Education Department who can help the petitioner as resolution of Bhavnagar Municipal Corporation extending benefit of pension scheme is suspended by the State Government in its Education Department. Upon

C/LPA/831/2023 ORDER DATED: 07/07/2023

such submission, he would submit to allow this appeal.

7. On the other side, learned advocate Ms. Harshal Pandya for respondent - original petitioner referring to judgment of Special Civil Application No.6243 of 2008 submitted that same issue was argued during hearing of Special Civil Application, learned Single Judge has taken care of said submission by allowing the petition in favour of the petitioners. She would further submit that order passed in Special Civil Application No.6243 of 2008 and allied matters has been carried into challenge by filing Letters Patent Appeal No.49 of 2023 and allied matters. She would further submit that Division Bench of this Court while deciding Letters Patent Appeal has also taken care of submission canvassed by learned advocate Mr. Munshaw, but did not accepted it and in that circumstances, the issue is decided issue and hence no interference can be called into. Upon such submission, she submitted to dismiss this appeal.

8. Learned Assistant Government Pleader Ms. Shruti Dhruve made her submissions.

9. 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

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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."

10. 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 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,

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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."

11. In view of above, since the issue canvassed by learned advocate Mr. Munshaw for the 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.

12. In view of dismissal of Letters Patent Appeal, Civil Application would not survive. Civil Application stands disposed of accordingly.

(N.V.ANJARIA, J)

(J. C. DOSHI,J) SATISH