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Gujarat High Court
District Panchayat - Junagadh vs Heirs Of Decd.Keshavlal Dhumabhai ... on 10 December, 2025
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C/SA/154/2007 ORDER DATED: 10/12/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 154 of 2007
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DISTRICT PANCHAYAT - JUNAGADH
Versus
HEIRS OF DECD.KESHAVLAL DHUMABHAI PUJARI & ORS.
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Appearance:
MR HS MUNSHAW(495) for the Appellant
MR AMAR D MITHANI(484) for the Respondents
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 10/12/2025
ORAL ORDER
1. Present second appeal filed u/s 100 of the Code of Civil
Procedure, 1908 (in short "the Code") is directed against the
judgment and decree dated 18.10.2005 passed by the learned
Principal District Judge, Junagadh in Regular Civil Appeal
No.6 of 2003 practically modifying the judgment and decree
passed by the learned 4th Joint Civil Judge (SD), Junagadh in
Regular Civil Suit No.357 of 1984.
2. Brief facts of the case are as under:-
2.1 That plaintiff deceased Keshavlal Pujari was selected for
the post of Tracer by the District Services Selection
Committee. Thereafter, he was appointed on 6/12/1974 and
posted in the office of Scarcity Relief, Deputy Engineer, Sub-
Division, Kutiyana. It is further the case plaintiff that he was
relieved from service with effect when from 31/7/1975. On
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enquiry, it was found that all Sub-Divisions in regards to
scarcity were closed with effect from 31/7/1975, hence, in
absence of other vacancies for the post of Tracer, the plaintiff
being surplused, he was relieved from service. All the
employees who were relieved from service on above ground,
their names were included in the waiting list. The plaintiff
came out with the case that subsequently, multiple posts of
Tracers were created, but the authority has not appointed the
plaintiffon such vacant post and some other candidates were
appointed instead though selection and waiting list is pending
for operation and the persons selected for the post
subsequent to the selection of plaintiff were appointed on the
post of Tracer, hence, it is claimed that action on the part of
the authority is against the provisions of Articles 14 & 16 of
the Constitution of India. Therefore, the plaintiff has filed
Regular Civil Suit No.357 of 1984 with a prayer of declaration
and permanent injunction.
2.2 The suit was resisted by the defendant by filing written
statement. However, the defendant District Panchayat,
Junagadh has admitted the fact in respect of selection,
appointment and retrenchment of the plaintiff, but saved their
skin on the ground that the plaintiff was selected for the
specific purpose for the Scarcity Relief, which took place in
1974-75. the Division was established on temporary basis and
the posts were on temporary basis which was for limited
period. It was the case of the defendant that the plaintiff was
not appointed on a permanent post, hence, no right was
accrued in favour of the plaintiff for the appointment and
therefore, no cause of action arose for filing the suit. It is also
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the case of the defendant that since the plaintiff's selection
and appointment was not on permanent basis, he was not
required to consider while appointing other persons on the
post of Tracer subsequently.
2.3 The learned civil Court has framed the issue and
decreed the suit by judgment and decree dated 31.7.1997.
The plaintiff's suit got partly allowed by holding that the
plaintiff is entitled to be appointed on the post of Tracer.
2.4 The defendant District Panchayat carried the judgment
and decree to the first appellate Court vide filing Regular Civil
Suit No.73 of 1999. The cross objection is also preferred in
the first appeal and ultimately, the learned appellate Court
passed an order allowing the appeal and cross objection and
remanded back the matter to the learned trial Court to decide
the issue that whether plaintiff deceased Keshavlal Pujari is
having right to get the job from the order which is produced
at Exh.26 or Exh.44 or the plaintiff is having a right to get all
the salary or having a right from 15.12.1981 and whether the
suit barred by limitation or not and whether the civil Court is
having a jurisdiction to entertain such relief as prayed or in
view of the decision of C.T. Nakum Vs. Ahmedabad Municipal
Corporation, 2002(3) SBR 9.
2.5 It is noticeable that during the aforesaid proceedings,
plaintiff Keshavlal Pujari was passed away and his heirs and
legal representatives were joined in his place.
2.6 Subsequent thereto, the learned trial Court has reheard
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the Regular Civil Suit by adding some more issues and passed
the judgment and decree that the plaintiff is entitled to get
appointment to the post of Tracer and the plaintiff is further
entitled to continue on the job of Tracer w.e.f. 15.12.1981
with all service benefits.
2.7 Regular Civil Appeal No.6 of 2003 was filed the legal
heirs of deceased Keshavlal Pujari, who unfortunately died
during the proceedings without being appointed on the post of
Tracer as he was entangled with the litigation.
2.8 The appeal was allowed by the learned Principal District
Judge, Junagadh by quashing and setting aside the judgment
and decree passed by the learned civil Court in Regular Civil
Suit No.357 of 1984; actually judgment and decree of the
learned trial Court was properly modified in favour of the
appellants. and it was declared that deceased Keshavlal Pujari
has all right to get the job from 1.8.1975 and he is declared to
be continued in service with all service benefits.
2.9 Considering the peculiar facts of the case where
deceased Keshavlal Pujari had not been appointed on the post
of Tracer and could not serve on the said post, the learned
appellate Court directed the District Panchayat, Junagadh to
pay 50% of emoluments, for which the deceased plaintiff was
entitled to from 1.8.1975 till the date of superannuation or his
death, whichever is earlier.
2.10 Being aggrieved by the aforesaid judgment and decree
passed by the learned appellate Court, the appellant District
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Panchayat has filed present second appeal. Said second
appeal was admitted vide order of this Court dated 27.7.2007
on the following substantial questions of law:-
"1. Whether on the facts and in the circumstances of
the case, the lower appellate Court has materially
erred in not holding that the plaintiff's challenge to
the termination of his service in the year 1975 was
barred by limitation ?
2. Whether on the facts and in the circumstances of
the case, lower appellate Court has materially erred
in holding that the plaintiff, pursuant to his selection
made in the year 1973, had an indefeasible right to
employment under the defendant-District Panchayat.
3. Whether on the facts and in the circumstances of
the case, the lower appellate Court has materially
erred in awarding fifty per cent of emoluments on the
basis of deemed employment of the plaintiff?"
3. Heard learned advocate Mr. Munshaw for the appellant
defendant and learned advocate Mr. Amar Mithani for the
respondent plaintiffs.
4. Learned advocate Mr. Munshaw submitted that the only
point arose in his mind that deceased plaintiff would get
pensionary benefit of the job of Tracer, as the learned
appellate Court has passed the order and indicates that his
service would be continued from 1.8.1975 till date of
superannuation and thus, it indicates that the legal heirs of
the deceased plaintiff would get pensionary benefits.
Fuurther, he would submit that deceased plaintiff has never
working as Tracer during his lifetime and therefore, his heirs
and legal representatives cannot get any payment on the
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ground of principle of "no work no pay". This aspect has not
been considered by the learned Courts below.
4.1 Upon such submission, learned advocate Mr. Munshaw
requests the Court to upturn the judgment and decree passed
by the learned appellate Court by allowing present second
appeal.
5. As against that, learned advocate Mr. Mithani appearing
for the deceased plaintiff would submit that the appellants
perhaps have misconstrued the judgment and order passed by
the learned first appellate Court, whereby the learned first
appellate Court has put the limit to grant 50% of emoluments
to the District Panchayat. It is very specific order passed by
the learned appellate Court that the heirs and legal
representatives of the deceased plaintiff are entitled to get
50% of emoluments from 1.8.1975 till the date of
superannuation or his death, whichever is earlier. He would
further submit that therefore, there is no reason arise to
believe that the learned appellate Court has granted
pensionary benefit to the legal heirs of the deceased Keshavlal
Pujari.
5.1 In regards to submission of principle of "no work no
pay", learned advocate Mr. Mithani submits the learned trial
Court passed the decree in favour of the deceased plaintiff
and held that the deceased plaintiff is entitled to service since
15.12.1981 with all service benefits. This judgment and order
passed by the learned trial Court in Regular Civil Suit No.357
of 1984 on 30.12.2002 was never challenged by the appellant
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District Panchayat before the learned appellate Court,
meaning thereby, the judgment and decree passed by the
learned trial Court on 30.12.2002 attained finality as far as
District Panchayat, Junagadh is concerned and therefore, the
District Panchayat, Junagadh has no locus standi to say that
principle of "no work no pay" applies. He would further
submit that against the judgment and decree in Regular Civil
Suit No.357 of 1984 dated 30.12.2002, Regular Civil Appeal
No.6 of 2003 was filed by legal heirs of deceased Keshavlal,
no cross objection was filed by the appellant District
Panchayat in the said Regular Civil Appeal. In these
circumstances, the submission that principle of "no work no
pay" no work applies is totally misconceived statement.
5.1 Upon above submission, learned advocate Mr. Mithani
requests the Court to dismiss the second appeal.
6. The first anxiety in the mind of the District Panchayat,
Junagadh is that they are required to give pensionary benefits
to the legal heirs of deceased Keshavlal after the death of
deceased plaintiff does not survive, as learned advocate Mr.
Mithani appearing for the legal heirs of deceased plaintiff
submits that they are not claiming any pensionary benefits,
but they are just claiming 50% of the emoluments for which,
the deceased plaintiff was entitled to from 1.8.1975 till he
expired. Yet, let refer final order passed by the learned
appellate Court, which reads as under:-
"Considering the facts, circumstances and
subsequent events, the defendant is directed to pay
50% of emoluments for which deceased Keshavlal
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Dumabhai Pujari was entitled from 1.8.1975 till the
date of his superannuation or his death whichever is
earlier."
7. Plain reading of the operative order passed by the
learned appellate Court indicates that the learned appellate
Court has put the limit to quantify 50% of emoluments which
the legal heirs of the deceased plaintiff were entitled to. It
has been stated by the learned appellate Court that they are
entitled to get 50% of emoluments from 1.8.1975 till the date
of superannuation or his death, whichever is earlier. Thus,
only using phrase "whichever is earlier" in the operative
order, the learned appellate Court has put embargo on the
rights of the appellant. In the present case, the deceased
plaintiff expired much prior to his superannuation. Thus, so
far that limited time period commencing from 1.8.1975 till
plaintiff Keshavlal expired, his heirs are entitled to 50% of
service emoluments and nothing more than that and it is very
much pellucid and translucent from reading of the judgment
and decree passed by the learned appellate Court. Yet for no
reason, the second appeal has been filed by the appellant.
8. Insofar as submission of learned advocate Mr. Munshaw
that since the deceased has not done any work as he was not
given any service and therefore, under the principle of "no
work no pay", the heirs and legal representatives of deceased
plaintiff are not entitled to get anything. I find no fathom or
shove in the submission of learned advocate Mr. Munshaw, as
impugned judgment and decree passed by the learned
appellate Court declaring the deceased plaintiff to continue on
service from 15.12.1981 has not been questioned, assailed or
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challenged by the appellant District Panchayat by filing first
appeal. In that circumstances, such submission would not lie
in the mouth of appellant. What has not been challenged by
way of filing first appeal cannot be challenged by way of filing
second appeal. Moreover, the appellant on their own wisdom
has not taken work from deceased Keshavlal Pujari and
engaged him in the litigation.
9. In the aforesaid premises, the substantial questions of
law framed herein above are answered against the appellant -
defendant. The second appeal fails and stands dismissed.
Interim relief, if any, granted earlier stands vacated forthwith.
9.1 The remaining amount of emoluments, if any deposited
before the concerned District Court or trial Court, is to be
disbursed in favour of legal heirs of the deceased plaintiff
Keshavlal Pujari with accrued interest, on identification and
proper verification, within fortnight from the receipt of copy
of this order, by the concerned learned Court. If no such
amount is deposited, the appellant is directed to deposit such
amount with accrued interest, as directed by the concerned
Court, within four weeks from today.
10. Registry is directed to return back the R & P, if any, to
the concerned Court forthwith.
(J. C. DOSHI,J)
SHEKHAR P. BARVE
