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2020 Supreme(Guj) 466
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
Biren Vaishnav, J.
Rameshbhai Jagjivandas Chauhan - Petitioner
Versus
State of Gujarat & Others - Respondents
R/Special Civil Application No. 12915 of 2018
Decided On : 28-02-2020
For the Petitioner: Deceased Litigant, Ms Mamta R Vyas
For the Respondent: Ms.Aishvarya Gupta, AGP., Mr Km Sheth
Point of Law:
The employees of the Panchayat institution namely that of the local cadre carry the mark of the 'brand' of his origin and a classification on the basis of the source from which they came into the service, was sought to be justified as a reasonable classification. The Court held that it wasn't .Once they had joined the common stream of service to perform the same duties, it is clearly not permissible to make any classification on the basis of their origin. Such a classification would be unreasonable and entirely irrelevant to the object sought to be achieved.
Headnote:
Gujarat Panchayats Act, 1961 - Section 203 - Constitution of India,1950 - Article 226 - Petitioner has challenged communication by which his request for granting all pensioner benefits for his services rendered with been rejected - Petitioner was appointed as a peon with discharge of his duties as a peon petitioner would operate street lights and also work in water works department approached Labor Court by way of Application of benefit of regularization however is case of petitioner that he withdrew same on result of a settlement arrived at - Petitioner would draw attention of Court through relevant pages of service book which details - Respondent would draw attention of this Court to affidavit-in-reply filed and justified communication of by which denial of pensioner benefits was on ground that petitioner was not appointed on a sanctioned post would also contend that petitioner was appointed purely on a temporary basis as a peon - Petitioner withdrew case before Labor Court and therefore having failed to secure regularization and having worked on a fixed salary till his retirement petitioner cannot claim pension - Held, Court in case of State of Gujarat considered decision in case held that is not open for Panchayat or Municipality to deny pensionary benefits on ground that petitioner's appointment was not on sanctioned post - Court decision in case of was extensively reproduced and salient feature is reproduced - Court also considering question of appointment of servants prior to Act which came into force on there was no question of a distinction being drawn on appointment being on a sanctioned post or not and therefore Division Bench Judgment in case of would in our opinion made a distinction and dismissed Petition of employee on ground that appointment was not on a sanctioned post would not be in consonance with law laid down in case of and judgment of Constitution Bench in - Court categorically held that all such employees carried a common birth mark and therefore hold that appointment was not on a sanctioned post or that it was irregular or that Panchayat employee belonged to a non-converted gram panchayat could not have been held to be against respondent as that would lead to a microscopic discrimination which was set aside by Judgment of Constitution Bench in case - Petition allowed (Para 16)
Facts of the Case:
Case of the petitioner is that for all purposes the petitioner was discharging his duties as a regular employee of the Nagarpalika and on his retirement therefore he was entitled to the benefits of pension which have been denied by the Nagarpalika.
Finding of the Court:
Court in case of State of Gujarat considered decision in case held that is not open for Panchayat or Municipality to deny pensionary benefits on ground that petitioner's appointment was not on sanctioned post - Court decision in case of was extensively reproduced and salient feature is reproduced - Court also considering question of appointment of servants prior to Act which came into force on there was no question of a distinction being drawn on appointment being on a sanctioned post or not and therefore Division Bench Judgment in case of would in our opinion made a distinction and dismissed Petition of employee on ground that appointment was not on a sanctioned post would not be in consonance with law laid down in case of and judgment of Constitution Bench in - Court categorically held that all such employees carried a common birth mark and therefore hold that appointment was not on a sanctioned post or that it was irregular or that Panchayat employee belonged to a non-converted gram panchayat could not have been held to be against respondent as that would lead to a microscopic discrimination which was set aside by Judgment of Constitution Bench in case.
Result: Petition allowed
JUDGMENT :
1. By way of this petition under Article 226 of the Constitution of India, the petitioner has challenged the communication dated 27.04.2018, by which, his request for granting all pensionary benefits for his services rendered with the Sanand Nagarpalika has been rejected.
2. Facts in brief are as under:
3. It is the case of the petitioner that the petitioner was appointed as a peon with the Sanand Nagarpalika on 01.08.1990. In discharge of his duties as a peon, the petitioner would operate street lights and also work in the water works department of the Nagarpalika.
4. He approached the Labour Court by way of Application No.358 of 1990 for the benefit of regularization, however, it is the case of the petitioner that he withdrew the same on 17.01.1991 as a result of a settlement arrived at. It appears that the petitioner continued to serve the Nagarpalika and retired on superannuation on 30.04.2013.
5. Ms.Mamta Vyas learned advocate for the petitioner would draw the attention of the Court through relevant pages of service book which details read as under:
A. The service book recorded a settlement that was arrived at between the petitioner and the Nagarpalika based on which the entry was made in the service book.
B. The service book also records that the petitioner was awarded a regular pay scale of Rs.196-232 as per Desai Pay Commission and increments were released periodically from 01.08.1991.
C. Group insurance benefits were also extended to the petitioner.
D. From time to time, his pay was revised and regular pay scales in accordance with the pay commission reports viz. The 5th and 6th Pay Commission were also granted to the petitioner which are also evident from the record of the service book.
6. In short the case of the petitioner is that for all purposes the petitioner was discharging his duties as a regular employee of the Nagarpalika and on his retirement therefore he was entitled to the benefits of pension which have been denied by the Nagarpalika.
7. Mr. K.M. Sheth learned counsel for the respondent- Nagarpalika would draw the attention of this Court to the affidavit-in-reply filed and justified the communication of the Nagarpalika dated 27.04.2018, by which, the denial of pensionary benefits was on the ground that the petitioner was not appointed on a sanctioned post. Mr.Sheth would also contend that the petitioner was appointed purely on a temporary basis as a peon. The petitioner withdrew the case before the Labour Court and therefore having failed to secure regularization and having worked on a fixed salary till his retirement, the petitioner cannot claim pension.
8. Mr.Sheth would further submit that having retired in the year 2013 and having kept quite for a period of five years thereafter and once the amount of gratuity and P.F. was paid, the petitioner cannot turn around and now claim the benefit of pension.
9. He would also draw the attention of the Court to the sanctioned set up and indicate that nowhere was a post of peon on the sanctioned set up of Nagarpalika and therefore, his appointment cannot be treated as regular so as to be counted for the purposes of pension. Distinguishing the case of a co-employee, Mr.Sheth submitted that in the case of Kamuben since her husband was on the sanctioned set up it is evident from the copy of the service book produced with the sur-rejoinder, the case of the petitioner cannot be compared to that of Kamuben.
10. Ms.Aishvarya Gupta learned AGP on instructions of the officer would submit that there were 94 sanctioned posts on the set up of the Nagarpalika of which 68 have been filled in. 26 posts are vacant. There was no post for peon on the sanctioned set up. The petitioner cannot compare his case with that of the other employee as is evident from the service book of the other employee which would suggest that he was working on the sanctioned set up.
11. Considered the submissions made by the learned advocates for the respective parties. The perusal of the service book and d
