Gujarat High Court
Prakash Dhirajlal Babariya vs State Of Gujarat on 15 March, 2023
Bench: Sandeep N. Bhatt
C/SCA/16621/2021 ORDER DATED: 15/03/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 16621 of 2021
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PRAKASH DHIRAJLAL BABARIYA
Versus
STATE OF GUJARAT
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Appearance:
MS MAMTA R VYAS(994) for the Petitioner(s) No. 1
MS SUMAN MOTLA, AGP for the Respondent(s) No. 1,2
MR BJ TRIVEDI(921) for the Respondent(s) No. 3
MR JT TRIVEDI(931) for the Respondent(s) No. 3
MS JIGNASA B TRIVEDI(3090) for the Respondent(s) No. 3
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 15/03/2023
ORAL ORDER
1. Rule. Learned advocates for the respective parties
waive service of notice of Rule on behalf of the
respective respondents.
2. With the consent of the learned advocates appearing
for the respective parties, the matter is taken up for
final hearing.
3. In the present writ petition, the petitioners have
prayed for the following prayers:
"11(A) Your Lordships may be pleased to issue a writ of
mandamus or any other appropriate writ, order or direction
C/SCA/16621/2021 ORDER DATED: 15/03/2023
quashing and setting aside the order dated 02/10/2021
passed by Resp.No.3 denying to process the pension papers
and further be pleased to hold that the petitioner is entitled
for the pension and other retiral benefits counting his
services with effect from 1/1/1999 till 30/09/2021 for the
purpose of pension and further be pleased direct the
respondents to pay the arrears of pension and other benefits
to the petitioner with consequential benefits alongwith
interest @15%.
(B) Pending admission, hearing and final disposal of this
Writ petition, Your Lordships may be pleased to direct the
Resp. No.3 to process the pension papers of the petitioner
and direct the Respondents to pay the pension every month
to the petitioner forthwith;
(C) Be pleased to impose heavy cost upon respondents for
dragging the petitioner before this Hon'ble Court for his
legitimate rights of retiral dues.
(D) xxxx"
4. The petitioner joined the respondent Municipality in
the year 1985 and his service is regularized w.e.f.
1.1.1999.
C/SCA/16621/2021 ORDER DATED: 15/03/2023
5. At the outset, learned advocate Ms.Mamta Vyas
appearing for the petitioners and the learned advocate
Mr.B.J.Trivedi appearing for the respondent No.1 have
submitted that the issue is squarely covered by the
decision of the Division Bench dated 16.04.2018 passed in
Letters Patent Appeal No.891 of 2017. Learned advocate
Mr.Trivedi has invited the attention of this Court to the
averments made in paragraph No.3 of the affidavit-in-
reply dated 18.12.2019, wherein a categorical statement
has been made that the aforementioned judgment would
be binding in the case of the petitioner and the same
has attained finality.
6. It is the case of the petitioner that the petitioner
came to be appointed as daily-wager in the Jamjodhpur
Nagarpalika. It appears that, the petitioner was in
continuous service with the respondent No.1 Nagar
Panchayat for several years and his service is regularized
w.e.f. 1.1.1999. The petitioner is superannuated in the
year 2021.
7. This Court has perused the judgment and order dated
16.04.2018 passed in Letters Patent Appeal No.891 of
C/SCA/16621/2021 ORDER DATED: 15/03/2023
2017. A perusal of the judgment reveals that the similar
issue with regard to the same employees has been
considered by the Division Bench and ultimately, the
Division Bench has issued the following directions:
"3.1 Even subsequent Government Resolutions issued by the
Department of Urban Development and Urban Housing on
01.12.2009 and 22.03.2017, extended the benefit of pension,
for which sanction is given by Department of Finance vide
Resolutions dated 30.12.2016 and 28.02.2017 and to extend
benefits of provisional pension so provided in Gujarat Civil
Services (Pension Rules, 2002).
3.3 Thus, learned Single Judge has taken proper care to see
that while making payment of arrear of pension to the
petitioner, it would be open to the Municipality to deduct
the amount of Provident Fund, to the extent of that
employer share (under the head of C.P.F) if paid to the
petitioner. Such direction according to us, are within the
four corners of law and entitlement of the petitioner to
receive pension and other retiral dues based on various
resolutions to which reference is made in earlier part of this
judgment, we find no substance in this appeal preferred by
the appellant - Municipality. That, submissions made in
paragraph 4 of the affidavit-inreply that, so far the
appellant - Municipality is concerned, no financial liability
C/SCA/16621/2021 ORDER DATED: 15/03/2023
would be incurred by the appellant if the pension is directed
to be paid. Conjointly, the appointment of the respondent-
employee is confirmed in sanctioned setup as a regular
employee with effect from 01.01.1992, for which, Director of
Municipality has accorded the sanction and the Municipality
has passed subsequent resolutions with regard to the
entitlement of the respondent-employee for receiving
pensionary benefits and other retiral dues along with the
arrears by adjusting the amount already paid to the
employee towards C.P.F. Under the circumstances, the
appeal do not deserve any interference. The appeal is
accordingly dismissed. Interim relief stands vacated in view
of dismissal of the appeal. In view of dismissal of the main
appeal, the Civil Application No. 1 of 2017 also stand
dismissed."
8. Learned advocate Ms.Mamta Vyas has drawn the
attention of this Court towards paragraphs 5.5 to 6.5 of
the order passed in Special Civil Application No.18762 of
2013 of similarly situated persons like the petitioner,
which is reproduced as under:
"5.5 Thus this is not that the petitioner had not opted for
pension, but it is the Municipality which did not give that option
to the petitioner. Whether the Municipality had authority to do so
or not is also a question, but even if that is not gone into,
suffice it to hold that, the petitioner can not be blamed for it.
C/SCA/16621/2021 ORDER DATED: 15/03/2023
Further, the above point is interconnected with the second which
is dealt with hereunder.
5.6 The contest of the Municipality on the ground that the service
of the petitioner was not within the regular sanctioned set up,
also needs to be rejected, since it is contrary to record. There is
material on record which indicates that, the question of
regularisation of service of many employees of the respondent
Municipality was under consideration of the Government. The
State Authorities sanctioned the set up and regularised the
service of many employees with retrospective effect. One of such
orders was passed by the Director of Municipalities, Gujarat State
on 17.05.2012. Based on the said order, the respondent
Municipality passed the consequential order on 17.05.2012. The
said order is on record as Annexure : D. The petitioner is the
first amongst 20 persons whose services were regularised by the
said order. As per the said order, the petitioner is treated to be
permanent employee (Driver) of the respondent Municipality with
effect from 01.01.1992. His pay was fixed in the pay-scale of
Rs.950-1500 then prevailing. With the revision of pay with effect
from 01.01.1996, his pay-scale was revised from Rs.950-1500 to
Rs.3050-4590. All these details are reflected in the office order
passed by the Municipality itself and along with the petitioner,
there are 19 other employees also. The controversy is raised by
the respondent Municipality qua the present petitioner only, that
too after his retirement that his appointment was not within the
regular sanctioned set up. The basic argument of the respondent
Municipality against the petitioner on this ground therefore needs
to be rejected.
C/SCA/16621/2021 ORDER DATED: 15/03/2023
5.7 There is also material on record to indicate that to derail the
pension case of the petitioner, it is claimed by the Municipality
that guidance is sought from the State Authorities (letter dated
03.10.2013 - Annexure : H). That guidance has not come so far.
The contest is not on the ground that guidance is sought, which
has not come and therefore delay. The contest is that petitioner
is not entitled to pension at all. Thus the respondent Municipality
has acted as if it is in search of reasons to frustrate this
petition.
5.8 When the Municipality has ventured to take such a stand
against the petitioner, which is not only inconsistent but is
contrary to its own record and the record of the Government, the
matter is probed little further. In this background, Mr. Rindani,
learned Assistant Government Pleader has drawn the attention of
this Court to the facts of Special Civil Application No.394 of 2016
(which is a 'labour matter' by some different person against this
very Municipality), which may have some interconnection. It is a
matter of record (on the said petition) that, the proposal to
regularise the service of the petitioner with retrospective effect,
along with other similarly situated persons, was already made by
the respondent Municipality in its various proposals. One of such
proposal was dated 02.01.2012, which has ultimately been
culminated in the sanction of the State Authorities. The
respondent Municipality has thus chosen to disclose only
convenient facts to this Court. This attempt is rejected in
strongest words. Since Special Civil Application No.394 of 2016 is
pending consideration by a Coordinate Bench of this Court,
further deliberation in that regard is avoided. Suffice it to hold
that, so far the present petitioner is concerned, the action of the
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respondent Municipality is not only illegal, but also lacks bona
fide. For all these reasons this Court finds that, the stand of the
Municipality needs to be rejected and the relief as prayed for by
the petitioner needs to be granted.
6. For the reasons recorded above, the following order is passed.
6.1 This petition is allowed.
6.2 It is held that the petitioner is entitled to pension. The
respondents are directed to finalise the pension case of the
petitioner within a period of three months from the date receipt
of this order.
6.3 The petitioner is also entitled to get statutory interest, for the
delayed payment of his retiral dues, as per the policy of the
State.
6.4 While making payment of arrears of pension to the petitioner,
it would be open to the Municipality to deduct the amount of
provident fund, to the extent of 'employer's share' (under the head
of Contributory Provident Fund), if any paid to the petitioner. If
there is any grievance with regard to the calculation in this
regard, it would be open to the petitioner to agitate the same,
before appropriate forum, in accordance with law.
6.5 Rule is made absolute in above terms. No order as to costs."
9. The petitioner has filed rejoinder to the
affidavit-in-reply filed by the respondent Municipality.
The respondent-State Government has not filed any
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affidavit-in-reply. The petitioner has drawn my attention
towards the judgment of Division Bench of this Court in
Letters Patent Appeal No.1067 of 2015 decided on
6.10.2015, more particularly, to paragraphs 10 to 15,
which is reproduced hereunder:
"10. In view of the aforesaid fact situation, as such, the
present Letters Patent Appeals as being covered
by the above referred earlier decisions of this Court
which has been ultimately not interfered with by
the Apex Court and accepted by the appellant municipality
at the later stage, it may not be required to be entertained.
11. However, Mr. Hasurkar, learned counsel appearing for
the appellant made twofold submissions and he further
contended that the said aspects were not brought to the
notice of the Court at the time when earlier
Letters Patent Appeals were decided and therefore,
this Court may hold the earlier decision as per
incuriam and a different view may be taken than
was taken in the above referred Letters Patent
Appeals. The first submission was that in the
earlier decision of this Court, the employees
concerned were appointed by the then Gram
Panchayat which is subsequently converted into
appellant municipality and therefore, the present employees
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in respect of whom the petitions were filed
before the learned Single Judge cannot be said to be on
the same footing since all the original
petitioners herein were appointed by the
municipality itself and not by the then
Gram Panchayat. In furtherance to his submission, the
learned counsel submitted that in panchayat
service pension would be available to the
employees of the panchayat whereas such would be
unavailable to the employees of the municipality. The
second contention raised was that merely because
GPF contribution is made and the amount is deposited in
GPF, it cannot be said that the employees concerned would
be entitled to pension unless it is expressly shown that the
employees concerned are covered by a particular
rule or resolution of the Government which
makes the employees concerned as entitled for pension.
In his submission, in absence thereof, the pension would not
be available nor the municipality could be directed to
pay pension either directly or through the
Government.
12. The first contention raised for making
distinction to the original appointment of the
employees concerned in our view would be
inconsequential for the simple reason that had
the original petitioners treated as employees of municipality
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for the purpose of CPF Scheme, the matter might stand
on different footing and different consideration,
but once the employees concerned were treated as
member of GPF and the contribution for GPF was
deducted from time to time, whether they were
appointed by the then Gram Panchayat or
municipality would not make any difference for their status
as the member of the GPF. It is not the case
of the appellant municipality that by mistake they were
admitted as member of GPF nor it is the
case of the municipality that by
misrepresentation or fraud the respective employees had
become the member of GPF. Under these circumstances, we
find that the distinction as sought to be
canvassed would be inconsequential for entitlement of
the pension in capacity as the member of GPF
by the employee concerned.
13. The second contention raised that unless
expressly demonstrated before the Court for
entitlement of the pension as per rules or as per
Government Resolution, such amount of pension
would be unavailable since the municipality in any
case had to deposit the amount with the
Government treasury as per section 57A of the
Gujarat Municipalities Act, in our view also cannot
be countenanced for two reasons, one is that it is
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not a matter of depositing the amount in the
Government treasury as sought to be canvassed,
but is a matter of depositing the amount in GPF
fund which is a separate fund and being governed by
separate mechanism, viz., Bombay General Provident Fund
Rules. Secondly, once the municipality has treated the
employees concerned as member of GPF and has deposited
his GPF contribution with the GPF, it would not lie in the
mouth of the municipality to contend that since the
municipality had to deposit the amount of contribution in
Government treasury, it should not be treated as
contribution of GPF entitling the employee concerned for
pension.
14. In view of the above, we do not find
that a different view deserves to be taken than
was taken by this Court in respect of the employees of
the very municipality who were similarly situated and
for whom this Court has found that the pension was
available and the said order is not interfered with by
the Apex Court in the above referred SLPs.
15. In view of the above, all appeals are meritless and
therefore dismissed. Considering the facts and circumstances,
no order as to costs."
10. Learned AGP Ms.Motla has submitted that if
respondent no.3 will forward pension papers to the State
Government, then it will be decided expeditiously in view
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of the judgments referred in paragraphs 7 to 9 in this
judgment.
11. Thus, in view of the above discussion, present
petition deserves to be allowed and the same is allowed
in terms of prayer clause 11(A) by setting aside the
impugned order dated 2.10.2021 issued by respondent
no.3. It is directed that respondent no.3 shall prepare
the papers for pension for the entire period for which
the petitioner has rendered his service and shall forward
the same to the respondent no.1 and 2 within two weeks
from today and on receipt of such papers, the respondent
no.1 and 2 shall consider and grant pension and other
retiral benefits to the petitioner from the date of his
retirement. The same shall be considered and paid to the
petitioner as expeditiously as possible but not later than
six weeks from receipt of pension papers from respondent
no.3.
12. Rule is made absolute to the aforesaid extent.
Direct service is permitted.
(SANDEEP N. BHATT,J)
SRILATHA
