Back
2019 Supreme(Guj) 743
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
A.S. SUPEHIA, J.
Kamlaben Naranbhai Mehta - Appellant
Versus
State of Gujarat and Ors - Respondent
R/Special Civil Application No. 11012 of 2015
Decided On : 15-10-2019
Advocate Appeared:
For the Appellant : Mayur S. Barot
For the Respondent: Swapneshwar Goutam, AGP and H.S. Munshaw
Headnote:
Employment and Service matter – Bombay Civil Services Rules, 1959 – Rule 234 – Payment of Gratuity Act, 1972 – Constitution of India – Article 14, 16, and 21 – Salary – Petitioner has passed away and she is being represented by her legal heirs – Seeking direction to respondent-authorities to pay her pension on basis of entire service rendered by her from the year 1968 till the date of her retirement – It is further prayed that condition incorporated in the order may be treated as unjust, improper and violative of Article 14, 16, and 21 of Constitution of India – Facts, which are not in dispute, are that the petitioner was appointed as Aya (Ward Maid) in hospital run by Dhasa Visi Gram Panchayat by order on the monthly salary – It is further observed in appointment order that service will be subject to the rules of grant-in-aid institute and as decided by the Panchayat from time to time – Held, In present case, the appointment of the petitioner made in the year 1968 would satisfy the provisions of 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 Gram Panchayat cannot be washed away on basis of subsequent resolution absorbing her in Primary Health Center – petitioner was not in a position to bargain with State about the conditions incorporated in her absorption order to effect that her earlier service may not be ignored for purpose of pension – "State" being a model employer cannot snatch away the right of an employee by incorporating the conditions which are contrary to statute – Controlling Authority, while directing authorities to grant gratuity for entire service of 30 years, has precisely held that the conditions incorporated in resolution and the absorption order are contrary to the statute – It is no more res integra that fundamental and statutory rights cannot be waived – Petitioner has passed away during the pendency of the petition with a hope that she would be paid pension – In this view of matter, present writ petition succeeds with cost imposed upon the respondent authorities – Respondents are hereby directed to confer pension to legal heirs of deceased petitioner treating her service as continuous since 1968 till she reached at age of superannuation – Petition allowed. (Paras 16 and 17)
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. 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
