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Judgment
This Letters Patent Appeal is filed under Clause 15 of the
Letters Patent by the original petitioner in Special Civil Application
No.3422 of 2016 aggrieved by the judgment of the learned Single
Judge dated 07.04.2016. By the aforesaid judgment the learned
Single Judge dismissed the petition filed by the appellant.
The aforesaid Special Civil Application is filed with the
prayers which read as under:
"7(A) Admit this petition;
(B) Allow this petition by issuing a writ of mandamus or any other appropriate writ, order or direction by quashing and setting aside the order dated 26/08/09 by the respondent no.2, and thereby hold that the petitioner is entitled for the pensionary benefit from the date of his joining service in the Panchayat with arrears and interest and thereby, be pleased to direct the respondents to make payment of pension to the petitioner within a stipulated time;
C) Further be pleased to direct the respondents to pay the delay interest at the rate of 18% p.a. on the amount of pension as the delay has been caused due to the arbitrary action on the part of the respondents;
D) Pending admission and till final disposal of this petition direct the respondents to make ex-gratia/ad-
hoc payment of Rs. 2 lac to the petitioner with a view to
save the petitioner from starvation.
E) Grant such other and further relief(s) as deemed fit in the interest of justice."
The claim of the appellant- original petitioner for grant of
pensionary benefits is rejected by the learned Single Judge mainly
relying on judgment of a Division Bench of this Court in the case of
Chorvad Gram Panchayat & others Vs. Ramniklal Dahrshi
Shah & others rendered in Letters Patent Appeal No.1381 of 2004
and allied matters decided on 2nd July, 2009.
In this appeal it is mainly contended by Shri Dharmesh Patel,
learned counsel for the appellant that the learned Single Judge has
committed error by not considering the case of the Chief Officer
Vs. Mohmad Irshad Husenbhai Baloch & others reported in
2011 (1) GCD 569. During the course of hearing the learned
counsel also placed reliance on the judgment of the Hon''ble
Supreme Court 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. It is contended that as the appellant was
appointed as a Clerk by respondent no.2-Gram Panchayat on
12.08.1974 and his services were regularized and he became
permanent employee of the Panchayat pursuant to order dated
01.01.1984. It is submitted that on attaining the age of
superannuation he retired from service on 19.07.2008 and during
the service there was deduction towards Provident Fund from his
salary by the Panchayat and he was extended benefit of Special
Grade Pay during his service and there is no reason or justification
for denying pensionary benefits to the appellant.
On the other hand it is contended by Shri H.S. Munshaw,
learned counsel appearing for respondent no.2 that the appellant
was employed by the Gram Panchayat, on its own, without
following the due procedure of recruitment as a Clerk by passing
Resolution No.129 dated 07.09.1974 and the same was not a post
sanctioned by the competent authority. It is submitted that no
sanction was obtained by a body of Tarapur Gram Panchayat from
the competent authority. As such the appellant cannot be treated
as a Panchayat servant duly appointed under the provisions of the
rules of Gujarat Panchayats Act. It is also contended that as the
benefits were given to the appellant- petitioner by the Gram
Panchayat by passing resolutions from time to time, and at no point
of time any prior approval or sanction was obtained from the
competent authority and the Assistant Examiner of Local Fund
Audit has also not granted any approval and on the contrary has
raised objections. It is also further pleaded that so far as Tarapur
Grant Panchayat is concerned, it has not framed any scheme or
policy for retiral benefits like provident fund, gratuity, leave
encashment, group insurance etc. and further Tarapur Gram
Panchayat is not a Panchayat converted from Municipality, and
therefore, Government Resolution dated 21.11.2007 is also not
applicable, as claimed by the appellant. It is further submitted that
both the above judgments relied on by the learned counsel for the
appellant would not support the case of the appellant for grant of
pensionary benefits as claimed by him.
From the stance of the Gram Panchayat as is evident from
the affidavit in reply filed in the Special Civil Application and the
material placed on record it is clear that the appellant herein was
appointed by the Gram Panchayat, on its own, by merely passing a
Resolution without following due procedure for employment of the
appellant. It is also evident that there is no post of Clerk in the
sanctioned set up of the Gram Panchayat. It appears that from the
material placed on record, Gram Panchayat, on its own, has
appointed the appellant as a Clerk on 12.08.1974 and his services
were also made permanent by order dated 01.01.1984. It is the
specific case of the respondent that the appellant- petitioner was
not appointed by following the rules for recruitment to fill up the
posts in the Gram Panchayat. Nothing is placed on record to show
that the appellant was appointed by following due procedure as
contemplated under the law. It is also clear from the record that
there is no post of Clerk in the sanctioned set up of the Panchayat.
In that view of the matter the only question which falls for
consideration is whether the appellant, who is appointed by the
Gram Panchayat on its own, on the post which is not within the
sanctioned set up approved by the Competent Authority, is entitled
for grant of pensionary benefits.
In the case of Chorvad Gram Panchayat & others Vs.
Ramniklal Dahrshi Shah & others rendered in Letters Patent
Appeal No.1381 of 2004 and allied matters decided on 2nd July,
2009 (supra), precisely the very question fell for consideration. In
the aforesaid batch of cases, Division Bench of this Court has
considered whether a person, who has been appointed in
Panchayat without following the due procedure laid down under
section 203(4)(b) of the Gujarat Panchayats Act, 1961 can be
treated as a member of Panchayat service so as to claim pensionary
benefits under the Gujarat Panchayat Service (Pension) Rules, 1976
and the Family Pension Scheme, 1972. In the aforesaid case, the
Division Bench of this Court has answered the said question in
negative. In the aforesaid judgment, the Division Bench of this
Court has categorically held that unless and until the appointments
are made in the Gram Panchayat after following the provisions laid
down under Section 203 of the Gram Panchayat Act, 1961, a person
so appointed would not fall within the Panchayat Service
constituted under Section 203(1) of the Act. The learned counsel
for the appellant has strenuously contended that having extended
the benefit of the Special Grade Pay by the Panchayat and after
more than 30 years of service it is not open for the appellants to
deny the benefit of pensionary benefits. It is specifically pleaded
that in view of the judgment of the Hon''ble Supreme Court 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), the judgment rendered 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 No.1381 of 2004 and allied matters decided on 2nd July,
2009 (supra) is no more a good law. It is submitted that in view of
the judgment of the Hon''ble Supreme Court, the appellant is
entitled for the benefit of pension. Further, it is submitted that the
learned Single Judge failed to consider the judgment relied on by
the appellant in the case of Chief Officer Vs. Mohmad Irshad
Husenbhai Baloch & others reported in 2011 (1) GCD 569.
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 No.1381 of 2004 and allied matters decided on 2nd 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 & 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).
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.
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.
However, it is made clear that if the Gram Panchayat has
deducted, on its own, any amount towards Provident Fund, this will
not preclude them to pay back such amount deducted. We make it
clear that if any such application is filed it is open to the Gram
Panchayat to pass appropriate orders and if it is found that any
amount is deducted from the appellant''s salary such amount shall
be refunded to him.