State of Gujarat vs Dahyabhai Vajesing Aanjana Patel and 2

Honourable Mr. Justice V.M. Sahai

We have heard Mr N J Shah, learned AGP for the appellant, Mr Dharmesh Patel, learned counsel for respondent No. 1 and Mr H S Munshaw, learned counsel for respondent No. 2.

Admit.

Mr Dharmesh Patel, learned counsel appearing for respondent No. 1 and Mr H.S. Munshaw, learned counsel appearing for respondent No. 2 waive service of notice of admission on behalf of respondents No. 1 and 2 respectively. Learned counsel for the parties state that this appeal may be heard and decided finally today itself. With the consent of the learned counsel for the parties, we have taken up this matter for final disposal.

The facts of the case in brief are that the respondent No. 1 was appointed as Clerk on 12.08.1974 in Tarapur Gram Panchayat and after the service of ten years he had become permanent employee of the Panchayat w.e.f. 1.1.1984. He had retired on 19.7.2009 and applied for pensionary benefits to the respondent Panchayat which was turned down on the ground that he was not regularly appointed employee and therefore, the respondent was not entitled for pensionary benefits.

The respondent filed Special Civil Application No. 3422 of 2010 in which order dated 23.4.2010 has been passed by the learned Single Judge during the pendency of this writ petition. We do not find that the learned Single Judge has either disposed of the writ petition or allowed the writ petition or it was dismissed. In absence of any such direction, the writ petition shall be treated to be pending before the learned Single Judge. Last para of the order dated 23.4.2010 is extracted below:

In view of the above, respondent No. 2-Panchayat shall forward the proposal of the petitioner whether the petitioner was regularized vide resolution dated 24.01.1984. The record shows that the service of the petitioner was regularized vide resolution dated 24.01.1984. If we take the year 1984 as the regularization of the service of the petitioner in Gram Panchayat, the petitioner has completed 24 years of service as he retired on 19.07.2008. I am, therefore, of the view that the petitioner has a pensionable service. Inspite of Resolution passed on 21.11.1997, the Gram Panchayat has not forwarded the proposal to the State Government. Prima facie, in view of the settled law, the petitioner is considered as employee of the Gram Panchayat. The petitioner was also granted benefit of higher pay scale as he was considered as permanent employee of the Panchayat at the time of granting higher pay scale on 24.06.1997. In view of that, respondent No. 2- Panchayat is directed to examine the case papers of the pension of the petitioner within a period of four weeks from today and will forward the same to the respondent No. 1. On furnishing such papers, respondent No. 1 will forward the papers to the appropriate Department and will take decision within a period of four months from the date of the order of this Court. Direct service is permitted.

The Learned Single Judge has granted four weeks time to the Panchayat to examine the case papers of the pension of the petitioner and thereafter direction was given to the State to forward the papers to the concerned Department to take decision within a further period of four months.

Learned counsel for the respondent No. 1 has urged that this Letters Patent Appeal has been filed by the appellants only after the notices have been issued by the Contempt Bench and further action is being taken by the Contempt Bench. Since Learned counsel for the respondent No. 1 has informed the Court that the learned AGP who was appearing before the learned Single Judge in the writ petition did not file any affidavit-in-reply nor learned counsel for respondent No. 2 Gram Panchayat has filed affidavit-in-reply. They may file their affidavits-in-reply before the learned Single Judge in the writ petition within a period of three weeks from today as the writ petition is still pending.

We find that in the order of the learned Single Judge on the one hand directs the Panchayat to forward the proposal of the petitioner whether the petitioner was regularized vide Resolution dated 24.01.1984. It means the learned Single Judge was not sure whether the petitioner was regularized in service vide Resolution dated 24.1.1984. On the other hand, the learned Single has observed that as per record, the service of the respondent was regularized vide Resolution dated 24.1.1984 and he had completed 24 years of service and the service is pensionable. Since we are setting aside the order dated 23.4.2010 on the basis of contradiction contained in the order and since an opportunity is being granted to the appellant as well as respondent No. 2 to file affidavit-in-reply afresh before the learned Single Judge and after the affidavits-in-reply is filed, the petitioner may file affidavit-in-rejoinder and thereafter the learned Single Judge may finally decide the writ petition at the earliest subject to His Lordship''s convenience.

In the result, this Appeal succeeds and is allowed. The order dated 23.4.2010 passed by the learned Single Judge in Special Civil Application No. 3422 of 2010 is set aside. The learned Single Judge is requested to decide Special Civil Application No. 3422 of 2010 after exchange of the affidavits and after hearing the learned counsel for the parties at an early date subject to His Lordship''s convenience.

Civil Application No. 6966 of 2011

In view of the order passed in the main Appeal, this Civil Application does not survive and is accordingly disposed of.