Gujarat High Court
Panchmahal District Panchayat ... vs Balvantbhai Kalubhai Pagi on 24 March, 2023
Bench: Hasmukh D. Suthar
C/LPA/1736/2022 ORDER DATED: 24/03/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 1736 of 2022
In
R/SPECIAL CIVIL APPLICATION NO. 2676 of 2021
With
CIVIL APPLICATION (FOR INTERIM RELIEF) NO. 2 of 2022
In
R/LETTERS PATENT APPEAL NO. 1736 of 2022
=======================================================
PANCHMAHAL DISTRICT PANCHAYAT
THROUGH ITS EXECUTIVE ENGINEER
Versus
BALVANTBHAI KALUBHAI PAGI
=======================================================
Appearance:
MR HS MUNSHAW(495) for the Appellant(s) No. 1,2
MR KURVEN DESAI AGP for the Respondent(s) No. 2
MR DIPAK R DAVE(1232) for the Respondent(s) No. 1
=======================================================
CORAM:HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
and
HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 24/03/2023
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI)
1. This appeal is filed under Clause 15 of the
Letters Patent against the order dated 29.04.2022
passed by learned Single Judge in Special Civil
Application No.2676/2021.
2. Heard learned advocate, Mr. H.S. Munshaw for the
appellants, learned advocate, Mr. Dipak Dave for
the respondent no.1 and learned AGP Mr. Kurven
Desai for the respondent no.2.
3. Learned advocate, Mr. Munshaw submitted that the
present appellants are the original petitioners,
C/LPA/1736/2022 ORDER DATED: 24/03/2023
who have challenged the order dated 24.01.2020
passed by the Labour Court in Recovery Application
No.C-2. 102/2008, whereby the Labour Court
directed the appellants - original petitioners to
release the benefit of pension in favour of the
respondent - workman.
4. It is submitted that the respondent - workman was
offered work as daily wager in November, 1976
without following procedure of recruitment and he
was offered work based on availability of the work
and funds. It is submitted that the benefit of GR
dated 17.10.1988 was extended to the respondent -
workman on completion of 5 years on 01.11.2022
and, thereafter on completion of 10 years of
service as daily wager on 01.04.2007, however, the
respondent - workmen is not entitled to get the
pensionary benefit. Learned advocate has mainly
placed reliance upon the GR dated 24.03.2006
issued by the State Government, wherein it has
been specifically stated that if the daily wager
has completed ten years of continuous service, he
is entitled to get pensionary benefit. In the
present case, the respondent - workman is not
entitled to get pensionary benefit as prayed for
by him before the Labour Court in the recovery
application, inspite of that, the Labour Court has
granted such benefit to the respondent - workman.
Learned advocate further submitted that learned
Single Judge has also committed an error while
placing reliance upon the decision rendered in
C/LPA/1736/2022 ORDER DATED: 24/03/2023
case of Tribhovan Jerambhai Vs. Deputy Executive
Engineer, reported in 1998 (2) GLH 1. Learned
advocate, therefore, urged that this appeal be
allowed and the impugned order passed by the
learned Single Judge be quashed and set aside.
5. On the other hand, learned advocate, Mr. Dipak
Dave has opposed this appeal and mainly submitted
that in identical matters filed by similarly
situated workmen being Special Civil Application
No.12350/2016 and allied matters, learned Single
Judge of this Court passed an order on 22.12.2016
and the petitions filed by the concerned workman
were partly allowed and thereby direction was
given by the learned Single Judge to grant
pensionary benefits to the concerned workman. It
is submitted that the State Government challenged
the said order by filing Letters Patent Appeal
No.38/2016 and allied matters, however, the
Division Bench of this Court vide order dated
10.01.2018 dismissed the said appeal filed by the
State of Gujarat. It is also contended that
against the said order, the State of Gujarat
preferred SLP before the Hon'ble Supreme Court
being Special Leave Petition (Civil) Diary
No.45860/2018 and the Hon'ble Supreme Court
dismissed the said SLP vide order dated
04.01.2019. Learned advocate, Mr. Dave has
produced on record copies of aforesaid orders.
Learned advocate, therefore, urged that the issue
involved in the present appeal is squarely covered
C/LPA/1736/2022 ORDER DATED: 24/03/2023
by the aforesaid decisions as ell as the decision
rendered by this Court in case of Tribhovan
Jerambhai (supra). Learned advocate, therefore,
urged that no error is committed by learned Single
Judge while dismissing the petition filed by the
petitioners and, therefore, this appeal be
dismissed.
6. Having heard learned advocates for the parties and
having gone through the material placed on record,
it would emerge that the respondent - workman was
offered work as daily wager in November, 1976 and
the benefit of GR dated 17.10.1988 was also given
to the workman on completion of 5 years as well as
10 years of service. The Recovery Application
filed by the respondent - workman was allowed by
the Labour Court and the direction was given to
grant pensionary benefits to the respondent -
workman. At this stage, it is relevant to note
that in similar type of cases, this Court passed
an order on 22.12.2016 in Special Civil
Application No.12350/2016 and learned Single Judge
of this Court has observed in Paragraph Nos.9, 10
and 13 as under,
9. The interpretation of the G.R.dated
17.10.1988 so far made by this Court
briefly stated is that, once the eligible
daily wager is found to have rendered
specified service within the meaning of
Section 25B of the Act, entire
such service from the date of his entry
until retirement has to be reckoned for
pensionary and other related benefits. If
the reference is required on this count,
this Court may refer to the case of
C/LPA/1736/2022 ORDER DATED: 24/03/2023
Tribhovanbhai Jerambhai v. Deputy Executive
Engineer [1998(2) GLH 1]. The Court had
extensively discussed the issue similar to
the one raised in these petitions thus:
"1. The petition relates to travails of a
person who has been in the employment of
the State Government for almost 28 years
and still awaiting for his retiral
benefits in terms of the Government's
order, revealing a pathetic
insensitivity towards the fellow
employees who has superannuated and look
for a peaceful and quiet life at the
twilight of his life banking upon the
retiral benefits assured under the
relevant rules and orders of the State
authorities themselves.
2. The facts which are not in dispute are
that the petitioner had been in service
of the State Government mostly as a
daily rated workman since 1966 until he
was treated permanent in terms of
Government Resolution dated 17.10.1988
and retired on completing sixty years on
31.1.1994. After laying the claim before
the Assistant Labour Commissioner and
Provident Fund Commissioner his retiral
benefits in the form of gratuity and
provident fund contributions were
determined and paid by treating the
period of service rendered by the
petitioner from 1966 to 1994. However,
the pension, the regular source of
income to maintain a retired employee
had not so far not been granted. In
fact, an attempt has been made to show
that the petitioner is not entitled to
pensionary benefit because he has not
completed qualifying service as per the
award read in the light of Bombay Civil
Services Rules governing the grant of
pension.
3. Though initially the learned counsel
C/LPA/1736/2022 ORDER DATED: 24/03/2023
for the respondent tentatively sought
to urge that as on the date of
retirement on 31.1.1994 the petitioner
has not completed 10 years of service as
daily rated employee and he cannot be
treated as permanent in terms of
resolution dated 17.10.1966. But
when it was pointed out that in reply
the respondents have admitted that the
petitioner was a daily wager for the
period of 1966 to 1987. It is further
revealed from the reply that though
department initially treated the
petitioner in employment as daily rated
workman on work charge establishment
with effect from 16.4.1987 only, and
paid gratuity for that period only,
ultimately on a dispute having been
raised in that regard the petitioner was
held to be in service with effect from
1966 and gratuity was paid for the
entire period from 1966 to 1994, the
learned counsel candidly stated that the
fact that petitioner was in service of
respondents since 1966 cannot be
disputed. This further makes it clear
that as on date resolutions dated
17.10.1988 was made by the Government
the petitioner had been in employment of
State for more than ten years as daily
rated employee, entitled to be treated
as permanent.
4. The short question which concerns the
issue before me is whether the
petitioner is entitled to pension or
not. Primarily, the question of
pension in pensionable service has
been determined under Section III of
the Bombay Civil Services Rules, 1959
commencing from Rule 230 onwards. It
has been contended by the learned
counsel for the respondents that the
petitioner being on daily wages, was
not holding a pensionable service
under Section 230 nor he falls in the
C/LPA/1736/2022 ORDER DATED: 24/03/2023
exception to the Rule provided
thereunder, therefore, the services
rendered on daily wages basis prior to
his becoming permanent cannot be
considered as qualifying service for
the purpose of pension.
5. It was urged also that the service has
been declared as pensionable by the
resolution dated 17.10.1988 by the
Government, which deems a daily rated
workman on completion of ten years
service as on 1.10.1988 or thereafter as
deemed to be in permanent service and
has been made entitled to pension.
However, for the purpose of entitlement
of pension under resolution the service
on regular basis only has to be counted
for determining qualifying service and
entitled to pension. As the petitioner
has not been on permanent basis after he
can be deemed to have become permanent
as on 1.10.1988, for the qualifying
period of ten years he is not entitled
to pension.
6. This plea, in my opinion, cannot be
sustained being contrary to record and
Government's own decision.
7. Rule 230 of Bombay Civil Services Rules
says that unless in any case it is
otherwise provided by or under the Rules
a Government Servant is considered in
pensionable service if he holds
substantively a permanent post in
Government service. The argument is that
though the petitioner may be treated as
permanent under Resolution dated
17.10.1988, he cannot be deemed to
holding a permanent post. Without going
into this contention it may be noticed
that rule itself envisages that a
person may be otherwise eligible to
pension if so provided by or under the
Rules. In this connection, attention
C/LPA/1736/2022 ORDER DATED: 24/03/2023
has been drawn to Rule 248 of the
Rules.
8. Rule 248 of the Bombay Civil Services
Rules provide that Government may by
general or special order permit service
other than pensionable service for
performing which a government servant is
paid from State revenues or from a local
fund to be treated as a duty counting
for pension. In issuing such order the
Government is to specify the method at
which the amount of duty shall be
calculated and may impose any condition
which it thinks fit. Thus Government has
necessary power to provide for pension
even in cases where service other than
pensionable service may become eligible
for grant of pension.
9. In the resolution dated 17.10.1988, it
has been envisaged that those workman
who as on 1.10.1988 or thereafter
completes ten years of continuous
service to be counted in accordance
with provisions of Section 25B of the
Industrial Disputes Act shall be
deemed to be permanent and amongst
other benefits conferred on being
treated as permanent their age of
superannuation was fixed at 60 years
and they were made entitled for
pensionary benefit. By yet another
resolution dated 30.5.1989 (Annexure
E), in which a specific query was
raised at item No (6) with reference
to resolution dated 17.10.1988, about
the calculation of period of
qualifying service for the purpose of
entitlement to pension in connection
with the pensionary benefits made
available to those daily wagers who
are deemed to be permanent on
completion of ten years of service
and it was specifically made clear
that within the meaning of
C/LPA/1736/2022 ORDER DATED: 24/03/2023
resolution dated 17.10.1988, the
service which is to be counted is that
which can be said as continuous within
the meaning of Section 25B with effect
from the date of entry in the service is
duty
counted for the purpose of pension and
pension has to be accordingly
determined. This does not say that
qualifying service is to be counted with
effect from date of becoming permanent.
This leaves no room of doubt that the
resolution dated 17.10.1988 along with
clarification issued on the various
aspects of it vide resolution dated
30.5.1989 is in consonance with the
provisions of Rule 248 of the Bombay
Civil Services Rules, 1959 which
provide that Government has not only
power by general or special order
to permit
service other than pensionable service,
for performing which a Government
servant is paid from State revenues or
from a local fund, to be treated as duty
counting for pension and in issuing such
an order Government is to specify the
method by
which the amount of duty shall be
calculated for the purpose of pension.
Once the Government has made it clear
that those who have completed ten years
of service as daily rated workman are to
be deemed permanent with effect from and
after 17.10.1988 and are entitled to
various benefits on that basis
including pension and thereafter
has provided by the
resolution dated 30.5.1989 that the
continuous service for the purposes of
pension, made available to
employees under resolution dated
17.10.1988, is to be counted with
effect from the date of entry in the
service provided it can be continuous
within the meaning of Section 25B
of the Industrial Act, thus
C/LPA/1736/2022 ORDER DATED: 24/03/2023
making it clear that once a daily
rated workman is treated to be
permanent under the resolution dated
17.10.1988 his entire continuous
service from the date
of entry until he retires including
his services rendered prior to the
date of his regularisation is taken
into consideration for the purpose of
computing pension or making pension
available to such retired employee.
10. There is yet another aspect of the
matter. Assuming that Bombay Civil
Services Rules do not provide for
grant of pension to those, who are not
holding a permanent post in the
service, then it must be held that
daily rated workman working on daily
wages, are ex cadre employees and not
governed by particular service rules,
but are governed by terms of
employment under which they have been
engaged. This further leads to
conclusion that area of employment on
daily wages is not covered by
statutory rules either promulgated
under Act 309 or by other legislature
enactment. That is the area left
uncovered by specific law, and such
employment is in exercise of general
executive powers of the State and terms
and conditions of such employment is
governed by terms of order under which
such employment is made and shall be
further governed by orders made by State
in exercise of its executive power from
time to time. The resolution dated
17.10.88 and 30.5.89 shall thus govern
the terms of employment of such
employees. If considered from this view,
the conclusion will be the same.
11. In view of the aforesaid, I have no
hesitation in coming to the conclusion
that resolution dated 17.10.1988 read
C/LPA/1736/2022 ORDER DATED: 24/03/2023
with resolution dated 30.5.1989 read
with Rule 248, of the Bombay Civil
Services Rules, the petitioner is
entitled to pensionary benefits by
counting the entire period of service
from 1966 to 1994 until the date of
his retirement which is to be counted
continuous under Section 25B of the
Industrial Disputes Act as qualifying
service and determining the pension
payable to the petitioner who has
retired on 31.1.1994, on that basis.
12. Accordingly, this petition is
allowed. The respondents are directed
to compute the pension payable to the
petitioner on the aforesaid basis
within the period of months from today
and release the arrears of pension
payable to the petitioner on such
determination within a further period of
one month and start making regular
payment of pension with effect from the
date of such determination. The
petitioner be paid the costs of this
petition which is quantified at
Rs.3000/. Rule made absolute
accordingly."
The ratio laid down in the said case
which has subsequently been followed by
this Court in several cases, relied upon by
the learned counsel for the petitioners
ought to have concluded the issue as
regards entitlement to the pension and
other related benefits or clubbing of two
periods of service indicated above; and in
all fairness, the respondent No.2 ought to
have conceded to the fact that the benefits
under G.R. dated 17.10.1988 were already
conferred upon the eligible daily wagers,
and that, in view of the ratio laid down by
this Court in the above case,
the petitioners are entitled to more
benefits including pension and related
terminal benefits. The entitlement of the
workman under the circumstances could not
C/LPA/1736/2022 ORDER DATED: 24/03/2023
have been genuinely disputed inasmuch as,
at the cost of repetition, it must be
observed that the grant of benefit under
G.R. dated 17.10.1988 implies an admission
on the part of the respondents that they
were so entitled and the relevant criteria
including completion of the service as
provided in Section 25B of the Act was
satisfied inasmuch as, in absence of such
satisfaction, the benefits under G.R.dated
17.10.1988 could not have been conferred upon
the workmen. The matter is,
therefore, squarely covered by the decision
of this Court in Tribhovanbhai (supra) and
could not have been reagitated.
10. The Hon'ble Supreme Court in State of
Maharashtra v. Digambar (supra) had
recognised the right of the State or the
public body to agitate and reagitate
certain issues. It would thus appear that
while there cannot be an absolute ban on
the State or the other public
authority raising the issue of certain
categories over and over again for the
reason similar to those indicated by the
Hon'ble Supreme Court, the judgment cannot
be cited as laying down the
proposition of law that the ratio laid down
by the High Court or the Supreme Court
after considering the arguments advanced
before it can be agitated and reagitated
without any justification. When the
constitutional court interprets the policy
or the statute and lays down the ratio,
undisputedly it has a binding effect. Once
the pronouncement is accepted without
further challenge, the State or the public
bodies cannot be permitted to reiterate the
argument which was rejected in decided
cases, without any justification. The
decision in State of Maharashtra v.
Digambar (supra) cannot be interpreted as
dispensing with the principle of stare
decisis. To say that even in the matters
which are covered by the decision of the
C/LPA/1736/2022 ORDER DATED: 24/03/2023
constitutional court can be challenged by
the State or the other public body over and
over again without any conceivable
justification would be against the
litigation policy of the State itself which
promises to curb the avoidable cases going
to the courts.
11. xxx xxx xxx.
12. xxx xxx xxx.
13. Reliance placed on G.R. dated 24.3.2006 in
support of the above contention is also
misconceived since the said issue has been
set at rest in Nirubha Vajubhai Sarvaiya v.
State of Gujarat and three others [2016
Lawsuit (Guj) 155]. The said case has been
followed by this Court in Ranabhai
Ajmalbhai Harijan, since deceased through
legal heirs - petitioners v. Secretary,
Road and Building, Sachivalaya, Gandhinagar
and two others [Special Civil
Application No. 18036 of 2013 decided on
19.10.2016. It is, however, stated by the
learned AGP that the decision in Nirubha
(supra) is pending consideration in Letters
Patent Appeal. In the opinion of this
Court, mere pendency of the appeal would
not be sufficient to deter this Court from
following the said case."
7. The aforesaid order passed by the learned Single
Judge was challenged by the State of Gujarat by
filing Letters Patent Appeal No.36/2018, wherein
the Division Bench of this Court has observed in
Paragraph Nos.4 and 4.1 as under,
"4.00. Having heard the learned advocates
appearing on behalf of the respective
parties, it is not in dispute that as such
the dispute in the present Letters Patent
Appeals, namely, whether the services
rendered by the daily wager is required to
be counted / considered for the purpose of
C/LPA/1736/2022 ORDER DATED: 24/03/2023
pensionable service or not, is now not res-
integra in view of decision of the
Division Bench of this Court in the case of
Executive Engineer Panchayat (MAA & M)
Department and another Versus Samudabhai
Jyotibhai Bhedi and others, reported in
2017(4) GLR 2952 as well as recent decision
of the Division Bench of this Court dated
16/11/2017 rendered in Letters Patent
Appeal No. 1215 of 2017, by which it is
specifically observed and held that all
those years in which the concerned workman
has worked for more than 240 days as a
daily wager is required to be considered
while counting / considering the
pensionable services of the daily wager.
Under the circumstances, as such the issue
involved in the present Letters Patent
Appeals is now not res-integra in view of
the aforesaid two decisions of the Division
Bench of this Court.
4.01.In view of the above, more particularly
aforesaid two decisions of the Division
Bench of this Court, it cannot be said that
the learned Single Judge has committed any
error in directing to count/consider the
services rendered by the concerned workmen
as daily wager for the purpose of
counting / considering pensionable service.
However, it is observed and even as agreed
by Mr.Dave, learned advocate appearing on
behalf of the original petitioners that
only those years in which the concerned
workmen / employees - original petitioners
have worked for more than 240 days as a
daily wager are required to be considered /
counted for the purpose of counting /
considering pensionable service."
8. Against the aforesaid order dated 10.01.2018, the
State of Gujarat preferred SLP before the Hon'ble
Supreme Court as stated above, which came to be
dismissed by the Hon'ble Supreme Court by an order
C/LPA/1736/2022 ORDER DATED: 24/03/2023
dated 04.01.2019.
9. Learned Single Judge, in the present case, has
placed reliance upon the decision rendered by this
Court in case of Tribhovan Jerambhai (supra) and,
thereafter, dismissed the petition filed by the
present appellants - original petitioners. We are
of the view that the issue involved in the present
matter is squarely covered by the said decision
rendered by this Court in Special Civil
Application No.12350/2016, which has been
confirmed by the Division Bench in Letters Patent
Appeal No.36/2018 as also by the Hon'ble Supreme
Court in Special Leave Petition (Civil) Diary
No.45860/2018 and, therefore, the learned Single
Judge has not committed any error while dismissing
the petition filed by the present appellants -
original petitioners. Hence, no interference is
required in the present appeal.
10. Accordingly, the present appeal is dismissed,
Notice is discharge. Connected civil application
also stands disposed of.
Sd/-
(VIPUL M. PANCHOLI, J.)
Sd/-
(HASMUKH D. SUTHAR, J.)
Gautam
