Allowed

Babugiri Somgiri Goswami v. State of Gujarat

Gujarat HC27 Dec 2018SCA/17034/2017

Case brief

AI extract

What is this about?

The court held that employees originally appointed in a converted Panchardt and absorbed by the Municipality are entitled to pension. Relying on SC precedents, the court directed the State to process the pension claim, include service length for higher pay scale, and pay arrears with interest.

What did the court decide?

Pension granted, pay scale revised based on service length, 6th Pay Commission recommendations applied, arrears with 7% interest directed to be paid.

Babugiri Somgiri Goswami Vs State of Gujarat — Pension and Retirement Benefits | Gujarat HC (2018)

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C/SCA/17034/2017 ORDER

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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R/SPECIAL CIVIL APPLICATION NO. 17034 of 2017

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BABUGIRI SOMGIRI GOSWAMI

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Versus

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STATE OF GUJARAT

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Appearance:

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MRS KRISHNA G RAWAL(1315) for the PETITIONER(s) No. 1 MR GM JOSHI(370) for the RESPONDENT(s) No. 2 MR. K.M.ANTANI, AGPfor the RESPONDENT(s) No. 1,3,4

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CORAM: HONOURABLE MR.JUSTICE N.V.ANJARIA

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Date : 27/12/2018

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ORAL ORDER

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In the facts and circumstances of the case and having regard to the consent and request of the parties appearing through their respective learned advocates, the petition was taken up for final consideration today.

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1.1 Rule returnable forthwith. Learned Assistant Government Pleader Mr. K. M. Antani waives service of Rule on behalf of respondent Nos. 1, 3 and 4, whereas learned advocate Mr. Gautam Joshi waives service of Rule on behalf of respondent No.2 Municipality.

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The petitioner has prayed to direct the respondent authorities to grant the pension and other retirement benefits. The petitioner further wants the respondent authorities to extend to him the benefits of higher pay scale available upon completion of service for 9, 8 and 27 years of service and fix the pension accordingly. It is also the

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Page 1 of 8

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C/SCA/17034/2017 ORDER

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prayer of the petitioner to revise the pension as per 6^th Pay Commission Recommendation. Also prayed is a direction against the Municipality to make payment of leave encashment. It is prayed that all the arrears may be directed to be paid with interest.

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The petitioner joined services as mali (gardner) on 26.9.1982 under the erstwhile Una Panchayat. In the year 1986, this Una Panchayat converted into the Municipality. Entire staff of the Panchayat came to be absorbed in the services of the Municipality without any any break.

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3.1 It appears that the petitioner alongwith other employees filed Reference (ITR) 349 /87, 350/87 and 31/90 before the Industrial Tribunal, Rajkot seeking regularisation in services. It is stated that during the pendency of the reference, the petitioner's services came to be regularised in the sanctioned set-up in regular pay scale with effect from 1.1.1989. The petitioner opted for pension scheme, therefore, regular deduction to general provident fund was made from his salary. The Industrial Tribunal finally allowed the reference on 12.2.1997. The State challenged the judgment and award of the Tribunal by filling Special Civil Application No. 844 of 1999 which was dismissed by this court and further challenge thereto in Letters Patent Appeal, also failed.

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3.2 Though the petitioner retired with effect from 31.7.2017 pension was not paid to him. The petitioner made several representations, but all in vain.

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It is in the background of above set of facts that the present petition came to be filed with the prayers made as above.

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Page 2 of 8

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C/SCA/17034/2017 ORDER

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Learned advocate for the petitioner relied on decision of the Division Bench of this Court in Dahyabhai Vajesing Aanjna Patel deceased through Heirs v. State of Gujarat being Letters Patent Appeal No.1099 of 2016 decided on 27^th January, 2017. In that case also, petitioner – appellant was employee of the converted Nagar Panchayat and became employee of the Municipality who prayed to declare that he was entitled to pensionary benefits from the date of assuming services in the Panchayat.

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4.1 The Division Bench observed thus,

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“8. In view of reliance placed on the judgment referred to above we have gone through the judgments relied on by the learned counsel for the appellant. Having gone through the aforesaid judgments relied on by the learned counsel for the appellant we are not prepared to accept the submission that the issue in the present appeal is governed by the ratio laid down in the above said judgment. We are of the view that having regard to the fact situation both the judgments referred to above would not support the case of the appellant. The judgment in the case of Harijan Paniben Dudabhai Vs. State of Gujarat and others rendered in Civil Appeal No.5441 of 2016 dated 01.07.2016 (supra) by the Hon'ble Supreme Court, it is a case where a Municipality was converted into Gram Panchayat and upon such conversion existing staff of the Municipality was allocated to Gram Panchayat. In view of the same the question which fell for consideration was whether the staff of the Municipality, who were allocated to the Gram Panchayat can be treated as part of the Panchayat service. Further, in the aforesaid judgment it was categorically held that the deceased- employee was holding the post within the sanctioned set up of Safai Kamdars and he was getting regular salary. If one is appointed in the post within the sanctioned set up of the Gram Panchayat, he totally stands on a different footing than that of a person who is appointed to a post which is not sanctioned by Gram Panchayat. In view of the same the judgment in the case of Harijan Paniben Dudabhai Vs. State of Gujarat and others rendered in Civil Appeal No.5441 of 2016 dated 01.07.2016 (supra) would not apply to the facts of the present case. Further, decision in the case of the Chief Officer Vs. Mohmad Irshad Husenbhai Baloch & others reported in 2011 (1) GCD 569 (supra) would not support the case of the appellant for grant of pensionary benefits. In fact, in the aforesaid judgement, the view taken by the Division Bench of this Court in the case of Chorvad Gram Panchayat & others Vs. Ramniklal Dahrshi Shah & others rendered in Letters Patent Appeal

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No.1381 of 2004 and allied matters decided on 2^nd July, 2009 (supra) is not distinguished as in view of the facts of such case the appeal filed by the Chief Officer of the Municipality was dismissed, but at the same time the view of the Division Bench of this Court in the case of Chorvad Gram Panchayat & others Vs. Ramniklal Dahrshi Shah & others (supra) is confirmed. As we are of the view that the facts of the present case exactly stand on the footing of the decision in Chorvad Gram Panchayat & others Vs. Ramniklal Dahrshi Shah &

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C/SCA/17034/2017 ORDER

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others (supra), the learned Single Judge has rightly dismissed the petition based on the decision in the case of Chorvad Gram Panchayat & others Vs. Ramniklal Dahrshi Shah & others (supra).

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The judgment of the learned Single Judge in the case of Narsi Bacha Thacker Vs. State of Gujarat and others , reported in 1998 (1) GLH 1022 also supports the case of the respondent- Gram Panchayat. In the aforesaid judgment it is categorically held that merely because a person is appointed by the Gram Panchayat, he is not entitled for pensionary benefits unless he becomes a member of the Panchayat Service as envisaged under section 203 of the Gujarat Panchayats Act, 1961. It is categorically held that unless it is established that the appointed person is a member of the Panchayat Service, he cannot be held to be a civil servant of the State to claim pensionary benefits. Further, this Bench also has taken a similar view in the case of Jagdishbhai Mohanbhai Vidja Vs. State of Gujarat and others vide order dated 07.11.2016 rendered in Letters Patent Appeal No.634 of 2016. Both the above judgments also support the case of the respondents.

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Having regard to the aforesaid reasons assigned by us we are in agreement with the view taken by the learned Single Judge in dismissing the petition filed by the appellant following the judgment in the case of Chorvad Gram Panchayat & others Vs. Ramniklal Dahrshi Shah & others (supra). It is needless to observe that the fact situation exactly fits into the view taken by this Court in the case of Chorvad Gram Panchayat & others Vs. Ramniklal Dahrshi Shah & others (supra). In that view of the matter, we are in agreement with the view taken by the learned Single Judge. We do not find any merit in this appeal filed by the appellant so as to interfere with the order of the learned Single Judge. Accordingly this Letters Patent Appeal is dismissed. No order as to cost.”

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4.2 Though the petitioner has raised various submissions in support of his prayers and affidavit-in-reply is also filed by the respondents with set of contentions, it could not be disputed by the respondents that the issue is now covered by the decision of Apex Court in Una Nagarpalika v. Kaliben Balubhai Makwana being Civil Appeal No.5529 of 2016 decided on 20^th September, 2018. The Division Bench of this Court in State of Gujarat v. Chandubhai Chhotabhai Patel [2018 (2) GLH 454] has also dealt with the same issue.

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In Kaliben Balubhai Makwana (supra), the group of Civil Appeal Nos.5529 of 2016 and others dealt with by the Supreme Court, arose from judgment and order dated 06^th October, 2015

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C/SCA/17034/2017 ORDER

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passed by the Division Bench of this Court in Letters Patent Appeal No.1122 of 2015 , the appellant Municipality had declined to grant pensionary benefits to the employees who are the employees of erstwhile Panchayat converted into Nagar Palika. The Apex Court considered the decision of Chief Officer v. Mohamad Irshad Husenbhai Baloch [2011 (1) GCD 569 (Guj) (D.B.) to dismiss the batch of appeals before it.

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5.1 The appellant Una Municipality had contended before the Apex Court that there was a distinction between the employees who were originally working with the Panchayat and later on, upon conversion of Panchayat into the Municipality, had became the employees of the Municipality by virtue of its merger, and the employees, who are directly appointed by the Municipality.

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5.1.1 The Apex Court held as under.

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“The Division Bench was of the view and, in our view, rightly that the distinction sought to be made between the two groups of employees, namely, one coming from the panchayat and then becoming the Municipal employees and the other directly becoming the Municipal employees was held to be of no significance because the appellant made the respondents members of the GPF contributions and went on to deduct regular contribution from their salary till the date of their retirement.” (Para 23)

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“In our view, the case at hand is covered by the earlier decision rendered in the case of Chief Officer v. Mohamed Irshad Husenbhai Baloch and others (supra) which stands upheld by this Court by order dated 16.09.2013. We are also of the view that the aforementioned distinction pointed out by the appellant for coming out of the clutches of the decision of Chief Officer v. Mohamed Irshad Husenbhai Baloch and others (supra) was also rightly found untenable by the High Court by assigning the proper reasons.”

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(Para 24)

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“Keeping in view the aforementioned four undisputed facts arising in the case coupled with the decision rendered in the case of Chief Officer v. Mohamed Irshad Husenbhai Baloch and others (supra), which has attained finality, and was then given effect to in relation to concerned Municipal employees holding them eligible and entitled to claim the pension and the pensionary benefits, we find no good ground to take any other view than the one taken by the writ court and the

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C/SCA/17034/2017 ORDER

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Division Bench in the impugned order.”

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(Para 25)

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5.2 In Chandubhai Chhotabhai Patel (supra), the Division Bench was dealing with the set of appeals preferred by the State and the Panchayat authorities. The stand of the appellants were that since the employees concerned were part of the non-converted Panchayat and their appointments were in accordance with the provisions of the Gujarat Panchayats Act, 1961, they could not be extended pensionary dues. The Division Bench took into account the law laid down by the Supreme Court in State of Gujarat v. Ramanlal Keshavlal Soni [AIR 1984 SC 161] as well as in Harijan Paniben Dudabhai v. State of Gujarat being Civil Appeal No.441 of 2016 arising out of SLP (C) No.2324 of 2010 to conclude as under.

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“11. A conjoint reading of the provisions of the Bombay Village Panchayat Act and the Gujarat Panchayat Act bring out the following scenario:

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(A) Prior to 1/4/1963 the Gram Panchayat/Village Panchayat as per Section 9 of the Bombay Village Panchayats Act, 1958 was a Body Corporate by the name of “the Village Panchayat of…..” having a perpetual succession and a common seal.

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(B) The Sarpanch had the power vested in him to take actions in implementation of the Panchayat’s duties through Resolutions.

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(C) Section 61 of the Bombay Village Panchayats Act, 1958 provided that the Panchayat may appoint such servants as may be necessary for the proper discharge of its duties under this Act and pay salaries from the Village Fund.

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(D) Till the promulgation of the Gujarat Panchayats Act, 1961 w.e.f 1.04.1963 therefore the Village Panchayat was competent to appoint its servants/officers and act through Resolutions. The appointment of the Respondent made under such provisions was therefore valid and in accordance with the prevalent law in force, prior to the coming into force the provisions of Section 203 of the Gujarat Panchayats Act,1961 and the Rules thereunder. Therefore it was not a case where the prior sanction of the Development Commissioner or the State was inevitably a sine-qua non. No such provision existed. That the Panchayat in discharge of its duties under Section 45 of the Bombay Act, through its Resolution of the Sarpanch appointed the Respondent herein. That such appointment was on a sanctioned post was not a germane consideration as it was so presumed to be in accordance with law and therefore the appointment could not have been termed to be irregular or illegal.

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(E) In the case of Harijan Paniben (supra) also, considering the question of

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C/SCA/17034/2017 ORDER

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appointment of servants prior to the 1961 Act which came into force on 1/4/1963, there was no question of a distinction being drawn on the appointment being on a sanctioned post or not, and therefore the Division Bench Judgement in the case of Dahyabhai (Supra) would, in our opinion, made a distinction and dismissed the Petition of the employee on the ground that the appointment was not on a sanctioned post, would not be in consonance with the law laid down in the case of Harijan Paniben (supra) and the judgement of the Constitution Bench in R.K.Soni (supra). It categorically held that all such employees carried a common birth mark and therefore to hold that the appointment was not on a sanctioned post or that it was irregular or that the Panchayat employee belonged to a nonconverted gram panchayat could not have been held to be against the respondent as that would lead to a microscopic discrimination which was set aside by the Judgement of the Constitution Bench in the case of R.K.Soni (supra).

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(F) Referring to the decision in the case of G.L.Shukla (supra) reaffirmed in R K Soni (supra), the inevitable conclusion that is culled out is that the State is the master. Panchayat Service is a distinct and separate service set up for serving the Panchayat Organization of the State and it is as much a civil service of the State as the State Service. The State can have many services such as State Service, Police Service, Engineering Service etc. and Panchayat Service is one of them. In the Panchayat Service, as in the State Service, the State is the master and every officer or servant employed in the Panchayat Service is the servant of the State and not of the Panchayat under which he may be serving for the time being. The Panchayat Service is one single service with the State as the master.

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Accordingly, we hold that the objections of the State and the Panchayat Authorities in the appeals on their behalf of denying the pensionary benefits to the Respondent amount to setting at naught an established and a settled principle of law as decided in the case of R K Soni (supra). The Respondent who served the Gram Panchayat is entitled to be granted pensionary benefits like pension and gratuity and other benefits that go hand in hand with the terminal benefits available to any other employee of the State who so retires. The appellants are, therefore, directed to pay the pensionary benefits to the employee within a period of eight weeks from today.”

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The employees, as the petitioner is, who became the employees of the Municipality having been originally appointed in the erstwhile Gram Panchayat or Nagarpalika, are entitled to be considered their services so as to include the services rendered under the Panchayat. They are accordingly entitled for pension. However, question cropped up as to which authority, whether the state government or municipality would be liable to pay the pension and other retirement benefits. This controversy was set to rest by the Division Bench of this court in Mariyaben vs. State of Gujarat being Misc. Civil Application No. 425 of 2018 in Special Civil

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C/SCA/17034/2017 ORDER

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Application No. 12181 of 2015 wherein it was recorded that liability to pay the pension is upon the State.

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In the aforesaid view, the present petition deserves to be allowed. The petitioner is required to be treated as eligible for pension and the higher pay grade on the basis of length of his services may also be paid to him to calculate and revise the pension accordingly. The respondent state and its authorities are directed to immediately process the case of the petitioner for pension and after completing the formalities sanction and release the amount of pension within three months from the date of receipt of the writ of this order and shall further pay other retirement benefits as admissible to the petitioner as directed above after giving effect to the 6^th Pay Commission recommendation as may be admissible alongwith accrued arrears.

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If the amount of arrears is not paid within the time stipulated above it shall carry interest @ 7% from the date of filling of the petition, that is from 15^th September, 2017.

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The petition is allowed accordingly. Rule is made absolute.

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(N.V.ANJARIA, J)

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C.M. JOSHI

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Babugiri Somgiri Goswami v. State of Gujarat

Case brief

What is this about?

What did the court decide?

Babugiri Somgiri Goswami v. State of Gujarat

Case brief

What is this about?

What did the court decide?

What the court decided

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