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2021 DIGILAW 757 (GUJ)

DINKAR AMBALAL SHAH v. NADIAD NAGAR PALIKA

2021-09-01

BHARGAV D.KARIA

body2021
JUDGMENT : 1. Heard learned advocate Mr. Ashish H. Shah for the petitioner and learned advocate Mr. Mehul Sharad Shah for the respondent no.1. 2. By this petition under Article 226 of the Constitution of India, the petitioner has prayed for the following reliefs : “a) This Hon'ble Court will be pleased to admit/allow this petition; (b) This Hon'ble Court will be pleased to issue a writ of or in the nature of mandamus or any other appropriate writ, order or direction directing the respondent- Municipality to pay commuted pension to the petitioner forthwith; (c) Pending admission, hearing and final disposal of this petition, this Hon'ble Court will be pleased to issue necessary directions to the respondent- Municipality to calculate commuted pension of the petitioner and submit a report to this Hon'ble Court; (d) This Hon'ble Court will be pleased to grant ad-interim relief in terms of the aforesaid prayer clause; (e) This Hon'ble Court will be pleased to grant any other relief deemed fit and expedient in the interest of justice.” 3. Brief facts of the case are that the petitioner was serving as an Office Superintendent with the respondent Nagarpalika and retired voluntarily on 30th September, 2007. 3.1 The petitioner alongwith application dated 3rd October, 2007 submitted the requisite documents for fixing the pension. The petitioner also made application dated 21st February, 2008 before the respondent Nagarpalika for commuted pension. 3.2 It is the case of the petitioner that the respondent Nagarpalika had fixed the pension of the petitioner but had not paid the commuted pension and therefore, the petitioner had made a representation dated 15th April, 2008. Pursuant to such representation, the respondent- Nagarpalika vide letter dated 26th November, 2008 informed the petitioner that since the administrative expenses of the Nagarpalika increased beyond 45%, the payment of commuted pension was temporarily stopped. 3.3 It is the case of the petitioner that thereafter, the respondent-Nagarpalika had adopted revised pay scales and conferred the benefits of such revised pay scales to its employees and therefore, the petitioner vide letter dated 22nd August, 2013 requested the respondent-Nagarpalika to pay the commuted pension to the petitioner in view of improved financial condition. 3.3 It is the case of the petitioner that thereafter, the respondent-Nagarpalika had adopted revised pay scales and conferred the benefits of such revised pay scales to its employees and therefore, the petitioner vide letter dated 22nd August, 2013 requested the respondent-Nagarpalika to pay the commuted pension to the petitioner in view of improved financial condition. 3.4 It is the case of the petitioner that the Collector-Kheda vide letter dated 17th September, 2014 had directed the respondent- Nagarpalika to consider the application of the petitioner for commuted pension in accordance with law and pursuant thereto, the respondent- Nagarpalika vide letter dated 10th April, 2015 informed the petitioner that the process of calculation of commuted pension is in progress and on completion of the same, the respondent Nagarpalika would take appropriate decision. However, the respondent-Nagarpalika did not pay the commuted pension to the petitioner and therefore, being aggrieved by such action of the respondent-Nagarpalika, the petitioner has preferred this petition. 4. Learned advocate Mr. Ashish Shah appearing for the petitioner submitted that the respondent- Nagarpalika is required to pay the commuted pension to the petitioner on his retirement in the year 2007 which was denied to the petitioner on the ground that since the administrative expenses increased beyond 45%, payment of commuted pension was temporarily stopped. 4.1 It was submitted that in the year 2009-2010, the respondent-Nagarpalika adopted the revised pay scale and benefits of the revised pay scale were conferred upon its employees and therefore, it is presumed that the financial condition of the respondent-Municipality was sound, but respondent-Nagarpalika failed to pay the commuted pension to the petitioner even after eight years of retirement. 4.2 It was further submitted that by letter dated 10th April, 2015 the petitioner was informed by the respondent Nagarpalika that the process of calculation of commuted pension was in progress and on completion of the same, the decision would be taken regarding payment of commuted pension but the respondent Nagarplaika did not pay the commuted pension to the petitioner. 5. Per contra, learned advocate Mr. Mehul Sharad Shah for the respondent-Nagarpalika submitted that the respondent Nagarpalika has been paying regular pension to the petitioner and the claim made by the petitioner for commuted pension is in the nature of advance/loan and therefore, the petitioner has no right to claim commuted pension. 5.1 Learned advocate Mr. 5. Per contra, learned advocate Mr. Mehul Sharad Shah for the respondent-Nagarpalika submitted that the respondent Nagarpalika has been paying regular pension to the petitioner and the claim made by the petitioner for commuted pension is in the nature of advance/loan and therefore, the petitioner has no right to claim commuted pension. 5.1 Learned advocate Mr. Shah relied upon the following averments made in the affidavit in reply filed on behalf of the Nagarpalika : “6. That the petitioner preferred application dated 03.10.2007 for the commutation of pension. It is respectfully submitted that petitioner again made representation before respondent Nagarpalika on 21.02.2008 and 15.04.2008 for the grant of commuted pension. It is respectfully submitted that Nagarpalika has vide letter dated 26.11.2008 refused to grant commuted pension to the petitioner as establishment expense would have crossed 45% if commuted pension to employees would have been granted. Hereto annexed and marked as Annexure-R1 is a copy of letter dated 26.11.2008. 7. It is respectfully submitted that petitioner has retired on 30.09.2007 and made application on 03.10.2007 but respondent Nagarpalika has not paid commuted pension to any of its employee since 2007 as it is financially not viable. 8. I say and submit that after refusal to grant commuted pension, petitioner from the year 2013 onwards, has made representations for the commuted pension. I state and submit that vide letter dated 10.04.2015, petitioner was informed by the Nagerpalika that process as to calculation of amount of commuted pension has been initiated and decision as to grant of commuted pension will be taken. Hereto annexed and marked as Annexure-R2 is a copy of letter dated 10.04.2015. 9. I respectfully state and submit that after initial calculation as to total amount payable to all the employees who have applied for commutation of pension, it became apparent that it is not financially viable to make payment of commuted pension as it has adverse effect on establishment expenditure of Nagarpalika. 10. I state and submit that commuted pension is in nature of advance loan and employee cannot ask Nagarpelika to pay it as a matter of right and therefore due to increase of regular pay scale of employees, petitioner does not derive any right to receive commuted pension. 10. I state and submit that commuted pension is in nature of advance loan and employee cannot ask Nagarpelika to pay it as a matter of right and therefore due to increase of regular pay scale of employees, petitioner does not derive any right to receive commuted pension. The petitioner is getting regular pension from Nagarpalika, but due to financial constraints, the Nagarpalika not paid commuted pension to any employee after 2007.” 5.2 Relying upon the above averments, it was submitted that it was not viable for the respondent Nagarpalika to pay the commuted pension. Reliance was also placed on the decision of this Court (Coram : Hon’ble Mr. Justice K.S. Jhaveri) dated 15th September, 2012 passed in Special Civil Application NO.939/2012 in case of Bharatbhai Ravjibhai Desai v. Nadiad Nagarpalika and others as well as decision of Division Bench of this Court (Coram :Hon’ble Mr. Justice S.R. Brahmbhatt and Hon’ble Mr. Justice K.J. Thaker) dated 25th January, 2016 rendered in Letters Patent Appeal No.1381/2012 in Special Civil Application NO.939/2012 to submit that belated claim with passage of time would dissuade this Court from granting any relief. It was also submitted that when the respondent- Nagarpalika has not been paying commuted pension to any of its employees due to financial constraints, the petitioner cannot claim commuted pension as a matter of right. 6. Having heard the learned advocates for the respective parties and having gone through the material on record, it is apparent that the request of the petitioner to pay the commuted pension was denied by the respondent-Nagarpalika on the ground of financial constraints. 7. This Court in case of Bharatbhai Ravjibhai Desai(supra) held as under : “3. Heard learned counsel for the parties and perused the documents on record. So far as the grievance as regards commuted pension is concerned, it transpires from the record that due to financial constraints, the respondent Nagarpalika is not able to pay the commuted pension to any of the employees after the year 2002. However, commuted pension is not a right of the employee and it is in the nature of advance loan. Thus, the petitioner cannot claim commuted pension as a matter of right.” 8. The above decision was carried in appeal, wherein the Division Bench while rejecting the Letters Patent Appeal held as under : “7. We have perused the record and proceeding and heard learned counsel for the parties. Thus, the petitioner cannot claim commuted pension as a matter of right.” 8. The above decision was carried in appeal, wherein the Division Bench while rejecting the Letters Patent Appeal held as under : “7. We have perused the record and proceeding and heard learned counsel for the parties. The relevant rule of B.C.S.R., as it originally stood, read as under; Rule. 315 (a) Government may sanction commutation for a lump amount, of one-half of the pension or any lesser amount provided that the residue of pension after commutation is not reduced to less than Rs.20 per mensem. (b) The commutation of any part of pension is concession and not a matter of right, and Government reserve to themselves the discretion to refuse commutation in any case without stating reasons. 8. The appellant's prayer for seeking commutation cannot be acceded to, as not only the delay in raising the request is militating against granting thereof, but the relevant rules under which the said relief is sought itself contains an unequivocal factum that the said be a concession cannot be insisted upon as a matter of right. The Court hasten to add here that even if the commutation is said to have concession, if in case, if it is otherwise admissible in law, the same cannot be declined in a case. However, in the instant case, the peculiar facts of the case that the appellant, who had retired on voluntary retirement basis on 09.07.2001, had raised his demand for commuted pension only in the year 2006 and thereafter he is pursuing the same, would not now justify any order of granting him the same on account of passage of time and looking to the aspects of the scheme and its implementation. The appellant infact had sought voluntary retirement at the age of 54 years 8 months and 9 days and he admittedly at that stage did not seek any commutation in the pension. 9. The belated claim and passage of time would dissuade this Court from granting any relief. Non granting of relief would not be a precedent so as to deny such relief in an appropriate case. Hence, with these observations, the appeal being devoid of merits and required to be rejected and accordingly rejected. However, there shall be no order as to cost.” 9. Non granting of relief would not be a precedent so as to deny such relief in an appropriate case. Hence, with these observations, the appeal being devoid of merits and required to be rejected and accordingly rejected. However, there shall be no order as to cost.” 9. In facts of the present case also, the petitioner has voluntarily retired on 30th September, 2007 and raised his demand for commuted pension which was refused by the respondent-Nagarpalika and thereafter in the year 2013 again raised his demand for commuted pension and pursued the same, but on account of delay in raising the request and also in view of Rule 315 of the Bombay Civil Services Rules (For short “B.C.S.R.”) under which such relief is sought itself contains that the commutation of pension cannot be insisted upon as a matter of right, the petitioner is not entitled to commuted pension as a matter of right. Rule 315 of the B.C.S.R. reads as under : “Rule. 315 (a) Government may sanction commutation for a lump amount, of one-half of the pension or any lesser amount provided that the residue of pension after commutation is not reduced to less than Rs.20 per mensem. (b) The commutation of any part of pension is concession and not a matter of right, and Government reserve to themselves the discretion to refuse commutation in any case without stating reasons.” 10. In view of the above facts and the decision of this Court, belated claim with passage of time read together with Rule 315 of the B.C.S.R., the petitioner is not entitled to commuted pension as a matter of right. 11. The petition is therefore, devoid of any merit and is accordingly dismissed. Rule is discharged.