Allowed

Manjulaben Shamjibhai Vaghela v. State of Gujarat

Gujarat HC25 Aug 2022SCA/18851/2017

Case brief

AI extract

What is this about?

The petition challenged orders denying regular appointment and pension benefits. The High Court set aside the orders directing regular absorption with continuity of service and pension entitlement based on prior judgments.

What did the court decide?

Impugned orders of 08.06.2017 and 31.08.2017 were set aside; the petitioner was directed to be treated as appointed in the regular setup with continuity of service.

Manjulaben Shamjibhai Vaghela Vs State of… — Pension and Retirement Benefits | Gujarat HC (2022)

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C/SCA/18851/2017 JUDGMENT DATED: 25/08/2022

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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R/SPECIAL CIVIL APPLICATION NO. 18851 of 2017

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FOR APPROVAL AND SIGNATURE:

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HONOURABLE MR. JUSTICE A.Y. KOGJE Sd/- ============================================================	===========
1 Whether Reporters of Local Papers may be allowed to see the judgment ?	Yes
2 To be referred to the Reporter or not ?	Yes
3 Whether their Lordships wish to see the fair copy of the judgment ?	No
4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ?	No

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======================================================================= MANJULABEN SHAMJIBHAI VAGHELA

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Versus

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STATE OF GUJARAT & 1 other(s)

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======================================================================= Appearance: MR SAMIR B GOHIL(5718) for the Petitioner(s) No. 1 MR DHAWAL JAYSWAL, AGP for the Respondent(s) No. 1 MR BHAVESH P TRIVEDI(2731) for the Respondent(s) No. 2 MR RR TRIVEDI(941) for the Respondent(s) No. 2

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=======================================================================

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CORAM: HONOURABLE MR. JUSTICE A.Y. KOGJE

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Date : 25/08/2022

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ORAL JUDGMENT

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RULE . Learned AGP Mr.Dhawal Jayswal waives

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service of Rule on behalf of respondent No.1 and learned Advocate Mr.Trivedi waives service of Rule on behalf of respondent No.2.

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The present petition under Article 226 of the Constitution of India is filed with following prayers:-

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“A) Quashing and setting aside the order dt.3.8.2017

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Page 1 of 7

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C/SCA/18851/2017 JUDGMENT DATED: 25/08/2022

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and directing the respondents to absorb the petitioner in regular sanctioned set up with continuity of service and further declaring the petitioner to be entitled for pension and other benefits.

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AA) Quashing and setting aside the order dt.8.6.2017 passed by the respondent no.1 (Annexure R-2 page-30).”

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Learned Advocate for the petitioner submitted that the petitioner was given appointment as a regular “safai kamdar” on 17.12.1997 in the pay scale of Rs.750-940 as per 4^th pay commission. Thereafter, she was terminated from service on 3.4.1998. The said order was challenged before the Labour Court, Rajkot by filing Reference (LCR) No.100 of 2001. By award dated 01.11.2012, the Labour Court awarded reinstatement with continuity of service without back wages.

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3.1 The respondent-Nagarpalika challenged the aforesaid award before this Court by filing Special Civil Application No.1275 of 2013 which was dismissed vide order dated 10.06.2013. Thereafter, the respondent-Nagarpalika preferred Letters Patent Appeal No.374 of 2014, which was also dismissed by the Division Bench by order dated 27.03.2014. Thereafter, the respondentNagarpalika gave appointment to the petitioner by order dated 25.06.2014 in regular sanctioned set up in the pay scale of rs.44407440/-.

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Page 2 of 7

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C/SCA/18851/2017 JUDGMENT DATED: 25/08/2022

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3.2 It is submitted that the respondent-Nagarpalika sent proposal to the Director of Municipalities for granting sanction for appointment of the petitioner in regular sanctioned set up vide letter dated 06.09.2014, which was rejected by the said authority by letter dated 08.06.2017. By order dated 31.08.2017, the respondent-Nagarpalika gave fresh appointment order to the petitioner as a regular “safai kamdar”, but out of sanctioned set up. As a result of this order, the petitioner will not be entitled to the benefits such as pension, increments and pay scale.

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3.3 Learned Advocate for the petitioner submitted that the petitioner was given appointment as a regular “safai kamdar” on 02.07.1997 in the pay scale of Rs.750-940. She was terminated on 03.04.1998. Thereafter, she filed litigation in the Labour Court and subsequently, she succeeded up to Division Bench of this Court. Hence, she is required to be appointed in regular set up. It is further submitted that the Labour Court has granted continuity of service from the date she was terminated. Thus, the respondents are under legal obligation to give effect of appointment from 03.04.1998 as if she has never been out of service.

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3.4 It is submitted that the petitioner was given appointment in regular set up by order dated 25.06.2014. Moreover, before passing the impugned order dated 03.08.2017, the petitioner has not been given opportunity of hearing.

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Page 3 of 7

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C/SCA/18851/2017 JUDGMENT DATED: 25/08/2022

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As against this, learned Advocate for the respondentNagrapalika submitted that the Nagarpalika has passed the impugned order only in view of the decision of the State Government. Therefore, this action is pursuant to the stand of the Government.

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Learned AGP submitted that the respondentNagarpalika has also not stated on record as to how the petitioner was appointed with it and from the order of settlement passed by the President of the Nagarpalika.

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5.1 It is submitted that before the Labour Court, the State Government was not party and when the settlement was arrived at between the Nagarpalika and the petitioner, no consent of the State Government was obtained. It is also submitted that the petitioner was not appointed following the due process of law.

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5.2 It is submitted that after receiving proposal on 04.07.2015, necessary correspondences and communications were exchanged and the Director of Municipalities has taken a decision dated 08.06.2017 and rejected the proposal of the respondentNagarpalika on the ground that the petitioner was not appointed by following due procedure of law and no prior permission under the Provisions of Section 271 of Gujarat Municipalities Act, 1963 has been taken by the respondent-Nagarpalika before selecting the

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Page 4 of 7

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C/SCA/18851/2017 JUDGMENT DATED: 25/08/2022

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petitioner. It is submitted that the Director of Municipalities also considered the direction given by the this Court in the case of Amreli Nagarpalika and the circular dated 03.08.2004 issued by the Director of Municipalities as per the direction of the this Court in the case of Amreli Nagarpalika and considering the order passed by the Supreme Court in the case of Secretary, School Education Department, Chennai Vs. Thiru R. Govindswamy reported in 2014 (4) SCC 769 , the proposal of the respondentNagarpalika was rejected. Thus, considering above facts and circumstances, it seems that the petitioner was appointed in the respondent-Nagarpalika in January, 1997 and by way of settlement, she was made Permanent in December, 1997 and till date, the respondent-Nagarpalika not given any details with regard to manner and method of her appointment and when the Chairman of the respondent-Nagarpalika has passed order dated 02.07.1997 appointing the petitioner as on minimum wages.

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Having heard learned Advocates for the parties and having perused documents on record, it appears that the petitioner and others preferred Reference 9IT) No.128 of 1997 and Reference (IT) No.125 of 1997, wherein it was prayed that the petitioner be made permanent and get other benefits. As per the settlement, order has been passed on 17.12.1997 by the President of the Nagarpalika and the petitioner along with other persons has been

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Page 5 of 7

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C/SCA/18851/2017 JUDGMENT DATED: 25/08/2022

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accepted as permanent employee in the Nagarpalika on the post of “safai kamdar” in sanitation branch in the pay scale of Rs.750-640 from 17.12.1997 and her pay was fixed at Rs.750/-.

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It also appears that as per the settlement on 16.12.1997, the petitioner was taken in service and she was given appointment on 17.12.1997 and she was terminated on 03.04.1998 by the respondent-Nagarpalika, against which the petitioner preferred Reference (LCR) No.100 of 2001 before the Labour Court, Rajkot under Section 10(1) of the Industrial Disputes Act, 1947 and the Labour Court passed order on 01.11.2012 quashing action of the respondent-Nagarpalika of relieving termination the petitioner from service and it was directed to the respondentNagarpalika to reinstate the petitioner in service with continuity of service without back wages and cost of Rs.750/- was imposed upon the respondent-Nagarpalika.

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Against the aforesaid award of the Labour Court dated 01.11.2012, the respondent-Nagarpalika preferred Special Civil Application No.1275 of 2013 before this Court, which was rejected by this Court by order dated 10.06.2013. Against order dated 10.06.2013, the respondent-Nagarpalika preferred Letters Patent Appeal No.374 of 2014, which was also dismissed. Thereafter, the respondent-Nagarpalika passed resolution on 25.06.2014 and the petitioner is given appointment on the post of “safai kamdar” with

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Page 6 of 7

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C/SCA/18851/2017 JUDGMENT DATED: 25/08/2022

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effect from 06.12.2012 on vacant post of sanctioned set up as permanent employee. The period between 01.01.2006 to 30.06.2012 is treated as notional and her pay was fixed in the pay scale of Rs.4440-7440/- and grade pay of Rs.1300/- and her pay was fixed at Rs.5740/- and it was also resolved that the respondentNagrapalika issued resolution dated 27.07.2003 and the newly appointed employees shall not get the benefits of the pension scheme. Therefore, it was resolved that the petitioner will be included in the PF scheme of the respondent-Nagarpalika.

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In view of the aforesaid facts, particularly case the case of the petitioner being examined firstly by the Labour Court and thereafter, by this Court at two stages, the impugned decisions are arbitrary and illegal and have set at naught the decision of this Court in the case of the very petitioner. Hence, both the orders dated 08.06.2017 by the Director of Municipalities and also order dated 31.08.2017 are set aside. It is hereby directed that the petitioner be treated as an appointment pursuant to the order of the Labour Court, confirmed by this Court, in the regular set up of the respondent-Nagarpalika. The petition stands allowed. Rule is made absolute. No order as to costs.

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Sd/(A.Y. KOGJE, J)

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SHITOLE

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Manjulaben Shamjibhai Vaghela v. State of Gujarat

Case brief

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Manjulaben Shamjibhai Vaghela v. State of Gujarat

Case brief

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