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2019 DIGILAW 922 (GUJ)

Kamlaben Naranbhai Mehta v. State of Gujarat

2019-10-15

A.S.SUPEHIA

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JUDGMENT : A.S. SUPEHIA, J. 1. During the pendency of the present petition, the petitioner-Kamlaben Naranbhai Mehta has passed away and she is being represented by her legal heirs. 2. The present writ petition is filed seeking a direction to the respondent-authorities to pay her pension on the basis of the entire service rendered by her from the year 1968 till the date of her retirement i.e. 31.05.1998. It is further prayed that the condition incorporated in the order dated 20/21.07.1989 may be treated as unjust, improper and violative of Article 14, 16, and 21 of the Constitution of India. 3. The facts, which are not in dispute, are that the petitioner was appointed as Aya (Ward Maid) in the hospital run by Dhasa Visi Gram Panchayat by the order dated 03.02.1968 on the monthly salary of Rs. 112/-. It is further observed in the appointment order that the service will be subject to the rules of grant-in-aid institute and as decided by the Panchayat from time to time. 4. Thereafter, the petitioner was absorbed in the hospital run by Dhasa Visi Gram Panchayat to Primary Health Center vide resolution dated 29.04.1989 along with other employees. The petitioner retired on reaching the age of superannuation on 28.05.1998. 5. It appears that since the petitioner was not paid the amount of gratuity for total service of 30 years, she approached the Controlling Authority by filing an application to grant her gratuity for the entire service rendered by her from 1968 to 1995. The Controlling Authority by the order dated 17.04.2001 passed under the provision of Section 7(4) of the Payment of Gratuity Act, 1972 directed the respondent authorities to pay the provident fund and the gratuity for the entire service period i.e. 03.06.1968 to 31.05.1998 (the retirement date of the petitioner). The aforesaid order was subject matter of challenge before the Division Bench in Special Civil Application No. 2799 of 2004 filed by the Bhavnagar District Panchayat, which was dismissed by the order dated 18.07.2014 and confirmed the order passed by the Controlling Authority. 6. Learned advocate Mr. The aforesaid order was subject matter of challenge before the Division Bench in Special Civil Application No. 2799 of 2004 filed by the Bhavnagar District Panchayat, which was dismissed by the order dated 18.07.2014 and confirmed the order passed by the Controlling Authority. 6. Learned advocate Mr. Mayur Barot appearing for the petitioner has submitted that despite the aforesaid position, the respondent authorities did not pay the pension to the petitioner on the ground that she is not entitled to the same as her service from 29.04.1989 i.e. when she was absorbed in the Primary Health Center is only counted, which would be less than 10 years. 6.1. Learned advocate Mr. Barot for the petitioner has further submitted that the Controlling Authority has specifically held that the conditions incorporated in the resolution dated 29.04.1989 are held to be illegal and the entire service rendered by the petitioner for 30 years is ordered to be considered for the purpose of gratuity. He has submitted that the aforesaid order has become final as the writ petition challenging the same was rejected by the Division Bench. 6.2. Learned advocate Mr. Barot for the petitioner has placed reliance on the judgment in the case of State of Gujarat vs. Chandubhai Chhotabhai Patel & Ors., 2018 (3) GLR 2658 and submitted that the petitioner cannot be denied the pension as she was appointed in the year 1968 and her entire service tenure is required to be considered for pension. 7. Per contra, learned advocate Mr. H.S. Munshaw appearing for the respondent no. 2-District Development Officer has submitted that the petitioner is not entitled to any pension as she was not appointed as per the Recruitment Rules. He has submitted that the service period rendered by the petitioner commencing from 29.04.1989 to 31.05.1998 is not required to be considered as qualified service for pension since she has not completed 10 years of service and had worked for 8 years and 10 months. He has also submitted that the petitioner is not entitled to any pension as she has belatedly approached this Court by filing the present writ petition though she has retired in the year 1998. He has further submitted that as per the conditions incorporated in the resolution dated 29.04.1989, and her absorption order dated 20/21.07.1989 her prior service rendered before the Dhasa Visi Gram Panchayat is not required to be considered for pension. 8. He has further submitted that as per the conditions incorporated in the resolution dated 29.04.1989, and her absorption order dated 20/21.07.1989 her prior service rendered before the Dhasa Visi Gram Panchayat is not required to be considered for pension. 8. Learned AGP Mr. Swapneshwar Goutam has adopted the submissions advanced by the learned advocate Mr. Munshaw and submitted that since the petitioner has not completed 10 years of service, she is not entitled for pension. It is also stated that the writ petition is liable to be repealed on the ground of delay as the petitioner has approached this Court belatedly claiming pension. 9. I have heard the learned advocates appearing for the respective parties. The documents as pointed out by the learned advocates are also perused. 10. The facts, which are established from the petition, are that the petitioner joined the service on 03.06.1968 and the appointment order reveals that her service are governed by the provisions of the grant-in-aid rules and the rules issued by the Panchayat from time to time. The petitioner was thereafter absorbed in the Primary Health Center vide Resolution dated 29.04.1989 passed by the State Government with a condition that her service will not be governed for the purpose of pension, seniority, leave etc. Pursuant to the same the District Panchayat passed an order dated 20/21.07.1989 appointing her in the pay scale of Rs. 750-940. The said order reveals that her appointment is made afresh. The aforesaid resolution dated 29.04.1989 contains a specific condition that her prior service will not be counted. Since the petitioner was not paid the gratuity by considering total 30 years of service, she has filed Application No. 14 of 2000 before the Controlling Authority under the provisions of Payment of Gratuity Act, 1972. By the order dated 17.04.2001, the Controlling Authority after considering the aforesaid resolution dated 29.04.1989, by which the petitioner was absorbed in the Primary Health Center, held that the conditions incorporated in the said order are de hors the provisions of the Payment and Gratuity Act, 1972 and thereafter, the respondents are directed to pay the gratuity by calculating 30 years of service from the initial date of appointment i.e. 03.06.1968 till she retired. 11. 11. The aforesaid order passed by the Controlling Authority was challenged by the respondents before the Division Bench of this Court by filing Special Civil Application No. 2799 of 2004, which was dismissed by the Division Bench vide judgment and order dated 18.07.2014. 12. Thus, the finding of the Controlling Authority treating the entire period of 30 years of the petitioner for the purpose of gratuity of service was confirmed by the Division Bench. The Controlling Authority also specifically held that the conditions specified in the resolution dated 29.04.1989 absorbing the petitioner are illegal and contrary to the statute. Thus, once the aforesaid findings of the Controlling Authority have become final, it is not open for the respondent authorities to deny the pension on the basis of 30 years of service rendered by the petitioner. Even if the petitioner has accepted the aforesaid order of her fresh appointment, she cannot be denied pension, which is available under the statutory rules being Bombay Civil Services Rules, 1959. 13. It is pertinent to note that after considering the order passed by the Division Bench, the petitioner has filed the present writ petition claiming the pension. The contentions raised by the respondent no. 2 that the petition is liable to be rejected on the ground of delay does not merit acceptance since the non-payment of pension, results into a fresh cause of action every month when pension is denied to an employee. 14. The Division Bench in the case of Chandubhai Chhotabhai Patel & Ors. (supra) while considering the cases of those employees of the Panchayat, who were appointed prior to the prior to the promulgation of Gujarat Panchayat Act, 1961, w.e.f. 01.04.1963 has directed the State Government to grant pension. Such employees were denied pension on the ground that they were not working on the sanctioned post and their appointment was not made as per recruitment Rules. The Division Bench after examining the provision of Section 203 of the Gujarat Panchayats Act, 1961 has observed thus: 11. ……………. "(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. The Division Bench after examining the provision of Section 203 of the Gujarat Panchayats Act, 1961 has observed thus: 11. ……………. "(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. 12. 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 nought 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. The Division Bench has held that the employees of the Panchayat service are the employees of the State and hence, they are entitled to pension and gratuity. 15. In the present case, the petitioner was appointed on 03.02.1968 by the Gram Panchayat as Aya (Ward Maid) and thereafter, she was absorbed by the resolution dated 29.04.1989 as a Class-IV servant in the pay-scale of Rs. 750-940. The petitioner retired in the year 1998 and is governed by the provisions of the Bombay Civil Services Rules, 1959 (for short 'the Rules). Rule 234 of the Rules, which reads as under: "234. 750-940. The petitioner retired in the year 1998 and is governed by the provisions of the Bombay Civil Services Rules, 1959 (for short 'the Rules). Rule 234 of the Rules, which reads as under: "234. A Government servant employed on a fixed establishment which is paid by piece-work may be treated as in pensionable service (I) if he is employed not casually but as a member of a fixed establishment, and (ii) if during the last 72 months of his actual employment he has been attached to one office uniterruptedly for 24 months or it has not been through his own choice or misconduct that he has not been so attached." 16. In the present case, the appointment of the petitioner made in the year 1968 would satisfy the provisions of the aforesaid Rule 234 as she was appointed in a fixed establishment and she worked continuously till 1989 when she was absorbed in the Primary Health Center. Her service rendered in the Gram Panchayat cannot be washed away on the basis of subsequent resolution absorbing her in the Primary Health Center. The petitioner was not in a position to bargain with the State about the conditions incorporated in her absorption order to the effect that her earlier service may not be ignored for the purpose of pension. The "State" being a model employer cannot snatch away the right of an employee by incorporating the conditions which are contrary to the statute. The Controlling Authority, while directing the authorities to grant gratuity for the entire service of 30 years, has precisely held that the conditions incorporated in the resolution and the absorption order are contrary to the statute. It is no more res integra that the fundamental and statutory rights cannot be waived. 17. The petitioner has passed away during the pendency of the petition with a hope that she would be paid pension. In this view of the matter, the present writ petition succeeds with cost of Rs. 10,000/- imposed upon the respondent authorities. The respondents are hereby directed to confer the pension to the legal heirs of the deceased petitioner treating her service as continuous since 1968 till she reached at the age of superannuation. Necessary orders in terms of the directions issued by this Court shall be passed within a period of 08 (eight) weeks from the date of receipt of the writ of this order. 18. Necessary orders in terms of the directions issued by this Court shall be passed within a period of 08 (eight) weeks from the date of receipt of the writ of this order. 18. It is clarified that if the aforesaid amount is not paid within the time stipulated by this Court, the same shall carry an interest at the rate of 9% from the date such period gets over. The writ petition succeeds. Rule is made absolute.