Gujarat High Court
Nirmalaben Hirabhai Jethwa vs Jetpur Navagadh Nagar Palika on 11 July, 2025
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C/SCA/13176/2014 JUDGMENT DATED: 11/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 13176 of 2014
With
R/SPECIAL CIVIL APPLICATION NO. 653 of 2015
With
R/SPECIAL CIVIL APPLICATION NO. 16057 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
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Approved for Reporting Yes No
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NIRMALABEN HIRABHAI JETHWA & ORS.
Versus
JETPUR NAVAGADH NAGAR PALIKA
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Appearance:
MR VICKY B MEHTA(5422) for the Petitioner(s) No.
1,10,11,12,13,17,18,2,20,22,23,24,25,27,3,5,6,7
ADVOCATE NOTICE SERVED for the Petitioner(s) No.
14,15,16,19,21,26,4,8,9
MR BHAVESH P TRIVEDI & MR DEVANG BHATT for HS MUNSHAW,
ADVOCATES for the respective contesting Respondents
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 11/07/2025
ORAL JUDGMENT
1. Since the issue involved in all these matters is
identical, with consent of the learned advocates for the
parties, all these matters are taken up for hearing and final
disposal today.
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2. By way of these petitions, the petitioners seek
benefits from General Provident Fund Scheme and not from
Contributory Provident Fund.
3. Though advocate notice is served to all the
petitioners, some of the petitioners have chosen not to appear
and pursue the prayers as prayed for. However, learned
advocate Mr. Vicky Mehta is appearing for some of the
petitioners.
4. Heard learned advocates.
5.1 Learned advocate Mr.Vicky Mehta for the
petitioners has raised main contention before this Court that
the petitioners have not been granted benefits of the General
Provident Fund Scheme and in turn, pension after retirement
by the respondent authorities. He has also raised contention
that the respondent Nagarpalika should frame the rules and
get approval from the competent authority and should provide
pension scheme to the petitioners. He has submitted that
Nagarpalika has to frame its own rules under the provisions
of the Gujarat Municipalities Act and Rules and thereafter,
the Nagarpalika has to approve the same from the competent
authority of the Government. He has cited examples of other
Nagarpalikas where the employees are receiving pensionary
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benefits.
5.2 He has further submitted that the Nagarpalikas
have rejected the representation of the petitioner regarding it
on the ground that the Nagarpalika has only CPF scheme
and not a GPF scheme, which is contrary to law and
violative or Articles 14 and 16 of the Constitution of India.
He has submitted that it is an obligatory duty of the
Nagarpalika to frame GPF scheme for their employees. He
has submitted that the petitioners are ready to deposit the
amount of CPF before the Nagarpalika and GPF scheme may
be implemented and pension may be given to the petitioners.
In support of his submissions, he has relied upon the
decisions : (i) of the Hon'ble Apex Court in the case of Una
Nagar Palika versus Kaliben Balubhai Makwana & Anr.,
reported in 2018 (11) SCALE 364 and (ii) of this Court in
the case of Bhagwanji Vashrambhai Javia versus State of
Gujarat recorded on Special Civil Application No.13333 of
2014 dated 11.04.2016. He has submitted that these petitions
may be allowed.
6.1 Per contra, learned advocate Mr. Bhavesh Trivedi
and learned advocate Mr. Devang Bhatt for learned advocate
Mr. H.S. Munshaw for the contesting respondent/s authorities
have submitted that the employees of the Nagarpalika are
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not entitled for pension because the Nagarpalika has not
accepted the pension scheme. It is further submitted that the
Nagarpalika cannot be implement any such scheme and it
has to obtain permission from the State Government. It is
submitted that since the GPF scheme is not available in the
Nagarpalika, the question of granting pension does not arise
at all. It is submitted that majority of the Nagarpalikas in
the State do not have GPF scheme. They operate only CPF
scheme for their employees. It is submitted that the
respondent authorities have deposited their contribution
towards the CPF amount regularly and the said benefits
have also been paid to their employees at the time of
retirement.
6.2 In support of their contentions, they have relied
upon the decision of the Hon'ble Apex Court in the case
Uttar Pradesh Roadways Retired Officials and Officers
Association versus State of Uttar Pradesh and Another
reported in (2024) 9 SCC 331. They have submitted that
these petitions may be dismissed.
7. I have considered the submissions made by the
learned advocates for the respective parties. I have perused
the documents available on record.
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7.1 From the record, it transpires that the petitioners
are the employees of the respective nagarpalikas indisputably.
The nagarpalika does not have the GPF scheme approved by
the State Government. Almost all the Nagarpalikas of the
State has CPF scheme. The respondent Nagarpalikas have
regularly deposited their contribution towards the CPF before
the concerned authorities indisputably. The employees retired
from these nagarpalikas have also received the benefits of the
CPF scheme at the time of their retirement. There is no
pending dues towards the CPF qua the petitioners and that
is not the issue of the petitioners before this Court.
7.2 At this stage, it would be fruitful to refer to the
decision of the Hon'ble Apex Court in the case of Uttar
Pradesh Roadways Retired Officials and Officers Association
(supra), more particularly, paras : 44 to 46 thereof, which are
as under :
"44. In the matter of Prabhu Narain vs.
State of U.P., (2004) 13 SCC 662 , this
Court held that to receive pension the
employees must establish that they are
entitled to pension under a particular rule or
scheme. The following has been held in
par 5 :
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"5. No doubt pension is not a bounty,
it is a valuable right given to an
employee, but, in the first place it
must be shown that the employee is
entitled to pension under a particular
rule or the scheme, as the case may
be."
45. In yet another judgment rendered in
Rajasthan Road Transport Corporation & Anr.
Vs. Mohini Devi, (2013) 11 SCC 603, it is
held thus in para nos. 7, 8 & 9 :
"7. The Division Bench has considered
the Regulations but failed to notice
that there is apparent error in the
order passed by the learned Single
Judge. Indisputably, the employees
concerned retired from service in 1991
and 1992 and after retirement they
were paid CPF including the share of
employer's contribution. Hence, as per
Regulation 3 of the Regulations, no
right accrued to the
appellants/employees to claim
pensionary benefits without first
depositing the amount and complying
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with the Regulations.
8. The matter was examined by this
Court in Pepsu RTC vs. Mangal Singh
[(2011) 11 SCC 702 : (2011) 2 SCC
(L&S) 322], wherein it was held as
under: (SCC p. 722, paras 51-52)
"51. The common thread which
runs through all these appeals
canvassed before us is that the
respondents have failed to comply
with the terms and conditions of
the Regulations, which govern the
Pension Scheme. We have already
considered the nature and effect
of the Regulations, which are
made under a statute. These
statutory regulations require to be
interpreted in the same manner
which is adopted while
interpreting any other statutory
provisions. The Corporation as
well as the respondents are
obliged and bound to comply with
its mandatory conditions and
requirements. Any action or
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conduct deviating from these
conditions shall render such action
illegal and invalid. Moreover, the
respondents have availed the
retiral benefits arising out of CPF
and gratuity without any protest.
52. The respondents in all these
appeals, before us, have made a
claim for pensionary benefits
under the Pension Scheme for the
first time only after their
retirement with an unreasonable
delay of more than 8 years. It is
not in dispute, in some appeals,
that the respondents never opted
for the Pension Scheme for their
alleged want of knowledge for
non-service of individual notices.
In other appeals, although the
respondents applied for the option
of the Pension Scheme but
indisputably never fulfilled the
quintessential conditions envisaged
by the Regulations which are
statutory in nature."
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9. We are, therefore, of the opinion
that, in the facts and circumstances of
the case and in view of the law laid
down by this Court in the judgment
referred to hereinabove, the impugned
orders passed by the learned Single
Judge [Madugiri v. Rajasthan SRTC,
WP (C) No. 5425 of 1993 (Civil Writ
5425/1993), order dated 5-1-2006 (Raj)]
and the Division Bench [Rajasthan
SRTC v. Madugiri, Civil Special
Appeal (Writ) No. 212 of 2006, decided
on 11-10-2006 (Raj)] of the High Court
cannot be sustained in law."
46. The common thread in the above
referred judgments of this Court is that
pension is a right and not a bounty. It is a
constitutional right for which an employee is
entitled on his superannuation. However,
pension can be claimed only when it is
permissible under the relevant rules or a
scheme. If an employee is covered under the
Provident Fund Scheme and is not holding a
pensionable post, he cannot claim pension,
nor the writ court can issue mandamus
directing the employer to provide pension to
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an employee who is not covered under the
rules."
7.3 Since there is no GPF scheme in existence, the
respondent Nagarpalikas cannot give pension to its employees.
There is a procedure for the Nagarpalika for the GPF
scheme, which is that the Nagarpalika has to send the
proposal for the GPF scheme to the State Government and
the State Government, in turn, has to approve it. In the
present case, the respondents Nagarpalikas have not sent any
proposal to the State Government and therefore the question
of approval of the State Government for the GPF scheme
does not arise. Under the circumstances, in the absence of
the GPF scheme, the respondent Nagarpalikas cannot pay the
pension to the present petitioners.
7.4 Further, the CPF scheme is already in existence
and the respondent Nagarpalikas have paid all the dues
regarding the CPF scheme to the petitioners at the time of
their retirement. Under the circumstances, since there is no
pension scheme framed by the respondents Nagarpalikas,
therefore, not sent the same for approval of the State
Government and thereby the State Government has not
approved it, the respondents cannot be directed for the same.
These petitions are devoid of merit, since there is no
violation of any rules or scheme by the respondents
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Nagarpalikas. The action of the respondents Nagarpalikas is
just and proper. The petitioners have received their dues
from the CPF scheme and there is no dispute about it.
These petitions, therefore, need to be dismissed.
7.5 There cannot be any dispute with regard to the
law enunciated in the decisions of the Hon'ble Apex Court as
well as by this Court relied upon by the learned advocate for
the petitioners, however, it cannot be helpful to the
petitioners any further in view of the facts and circumstances
of the present case. The present case does not fall within the
purview of these decisions with such facts. Therefore, the
present petitions deserve to be dismissed.
8. In view of above, these petitions are dismissed
accordingly. Rule is discharged.
9. It would be open for the petitioners to make
appropriate representation / application before the State
Government for framing the GPF scheme, if permissible and
the authorities are at liberty to decide the same in
accordance with law/policy.
(SANDEEP N. BHATT,J)
M.H. DAVE
