Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No.5529 OF 2016
UNA NAGAR PALIKA ….Appellant(s)
VERSUS
KALIBEN BALUBHAI
MAKWANA & ANR. …Respondent(s)
WITH
CIVIL APPEAL No.5530/2016
CIVIL APPEAL No.5531/2016
CIVIL APPEAL No.5532/2016
CIVIL APPEAL No.6490/2016
J U D G M E N T
Abhay Manohar Sapre, J.
1) These appeals are directed against the
common final judgment and order dated 06.10.2015
Signature Not Verified
passed by the High Court of Gujarat at Ahmedabad
Digitally signed by
ANITA MALHOTRA
Date: 2018.09.26
16:52:58 IST
Reason:
in Letters Patent Appeal No.1122 of 2015 in Special
1
Civil Application No.3699 of 2014 with Letters
Patent Appeal No.1065 of 2015 in Special Civil
Application No.30402 of 2007 with Letters Patent
Appeal No.1066 of 2015 in Special Civil Application
No.4757 of 2012 with Letters Patent Appeal
No.1067 of 2015 in Special Civil Application
No.6137 of 2012 and Letters Patent Appeal No.1124
of 2015 in Special Civil Application No.11100 of
2014 whereby the Division Bench of the High Court
disposed of the Letters Patent Appeals filed by the
appellant herein on the basis of the judgment
rendered by the Division Bench of the High Court in
the matter of vs.
Chief Officers Mohmad Irshad
Husenbhai Baloch & Ors. (2011 (1) GCD 569 (Guj)
(D.B.).
2) In order to appreciate the issues involved in
these appeals, few relevant facts need mention infra .
3) The appellant herein was the respondent
whereas the five contesting respondents herein were
2
the petitioners in the special civil
applications(petitions) filed before the High Court.
4) The appellant is the “Municipality” also called
Nagar Palika for the place called “Una” in the State
of Gujarat. The five contesting respondents, out of
them four have expired and now represented by
their legal representatives, were the employees of
the appellantMunicipality. One of the respondents
was appointed in the year 1990 whereas others
were appointed in 1996 and 1998.
5) On their attaining the age of superannuation
in the appellant’s services on different dates, all the
five respondents requested the appellant to settle
their claims for payment of pension and pensionery
benefits.
6) The appellant declined to grant any pensionery
benefits (pension) to all the five respondents stating
that they were neither eligible and nor entitled to
claim the pension or/and any pensionery benefits
from the appellant.
3
7) This gave rise to filing of the special civil
applications (petitions) by the respondents against
the appellant in the High Court of Gujarat being
S.C.A. No. 3699 of 2014 and four others. The
appellant as respondent contested the petitions.
8) The Single Judge of the High Court by passing
separate orders on different dates allowed the
petitions and held that the petitioners (respondents
herein) are eligible and thus entitled to claim
pension and pensionery benefits from the appellant
being their employees and accordingly issued a writ
of mandamus against the appellantMunicipality
directing payment of pension to all the petitioners
therein (respondents herein) from the date of their
retirement.
9) The appellant (Municipality) felt aggrieved and
filed intra court appeals before the Division Bench
in the High Court. By common impugned order, the
Division Bench dismissed the appeals giving rise to
4
filing of these appeals by way of special leave in this
Court by the Una Nagar Palika(Municipality).
10) It is apposite to mention that the very
question, namely, whether an employee of a
Municipality is entitled to claim pension/pensionery
benefits from his employerMunicipality was the
subject matter of one litigation in Gujarat High
Court. The leading judgment was passed by the
Division Bench in LPA No. 214/2011 entitled
Chief
Officer vs. Mohamed Irshad Husenbhai Baloch
(supra) along with other connected
and Others
matters on 31.01.2013.
11) The Division Bench held that the employees
are eligible and thus entitled to claim the
Pension/Pensionery benefits provided they render
qualifying service while in the employment of the
Municipality in terms of the Rules. The concerned
Municipality felt aggrieved by the said order and
filed special leave to appeal (SLP Nos.15691 to
5
15700 of 2003) in this Court. It was, however,
dismissed by this Court by order dated 16.09.2013.
12) The order was accordingly given effect to by
sanctioning the pension to those employees, who
were parties in the said litigation.
13) It is with this background, when the petitions
out of which these appeals arise came up for
hearing, the Single Judge (writ court) essentially
placed reliance on the decision of vs.
Chief Officer
Mohamed Irshad Husenbhai Baloch and Others
(supra) and allowed the petitions finding no material
distinction in the case at hand and in the case of
Chief Officer vs. Mohamed Irshad Husenbhai
(supra).
Baloch and Others
14) When the matter came up in appeals, the
Division Bench also placed reliance on the view
taken in Chief Officer vs. Mohamed Irshad
(supra) and
Husenbhai Baloch and Others
dismissed the appeals.
6
15) The writ court and the Division Bench were of
the view that the issue in question has attained
finality by the decision rendered in the case of Chief
Officer vs. Mohamed Irshad Husenbhai Baloch
(supra) and affirmed by the order of
and Others
this Court dated 16.09.2012.
16) It is with this background facts, the question
arises for consideration in this appeal is whether
the view taken by the writ court and the Appellate
Court requires any interference.
17) Heard Mr. S.P. Hasurkar, learned counsel for
the appellant and Ms. Anushree Prashit Kapadia,
learned counsel for the respondents.
18) Having heard the learned counsel for the
parties and on perusal of the record of the case, we
find no case to interfere in the impugned order.
19) In our considered opinion, the High Court was
right in holding that the question involved in these
appeals is covered by the earlier decision of the
7
Gujarat High Court rendered in the case of
Chief
Officer vs. Mohamed Irshad Husenbhai Baloch
and Others (supra) which was upheld by this Court
by order dated 16.09.2013 and thus attained
finality.
20) We find that in order to show that the decision
rendered in the case of Chief Officer vs. Mohamed
(supra) has
Irshad Husenbhai Baloch and Others
no application to the facts of the case and that it
does not lay down the correct principle and be held
as per curium , the appellant (Municipality) made
attempts and contended before the Division Bench
that there lies a distinction between the employees,
who were originally working with the Panchayat and
later on convergence of Panchayat into the
Municipality became the employees of the
Municipality by virtue of its merger and the
employees, who were directly appointed by the
Municipality.
8
21) It was contended that the employees, who fall
in former category of case, were held entitled for the
grant of pension but not those employees, who fall
in the latter category of the case. It was pointed out
that since the employees in the case of Chief
vs.
Officer Mohamed Irshad Husenbhai Baloch
and Others (supra) fell in the former category of the
case and, therefore, they were held entitled to claim
the benefit of pension whereas the respondents of
this case fall in the latter category of cases, the
benefit of decision rendered in the case of Chief
vs.
Officer Mohamed Irshad Husenbhai Baloch
and Others (supra) could not be granted to the
respondents because they were appointed directly
by the appellant (Municipality).
22) The Division Bench while repelling the
aforementioned submission took note of the
following four undisputed facts arising in this case:
“1. The original petitionersrespondent No.1
herein in the respective appeals were
9
appointed by the municipality and they were
in service of the municipality.
2. After the appointment, the employee
concerned continued in service until he
reached to the age of superannuation, so far
as LPA No.1066/15 is concerned. Whereas,
in the rest of the Letters Patent Appeals, the
services of the employees concerned came to
an end on account of death of the employees.
3. It is an undisputed position that the
total length of service in respect of all cases
has exceeded 10 years which is the minimum
requirement for eligibility of pension.
4. In respect of all employees, which is
subject matter of the present group of
appeals, they were member of GPF and GPF
contributions were being deducted by the
municipality from their salary from time to
time until their services came to an end.”
23) The Division Bench was of the view and, in our
view, rightly that the distinction sought to be made
between the two groups of employees, namely, one
coming from the Panchayat and then becoming the
Municipal employees and the other directly
becoming the Municipal employees was held to be of
no significance because the appellant made the
respondents members of the GPF contributions and
10
went on to deduct regular contribution from their
salary till the date of their retirement.
24) In our view, the case at hand is covered by the
earlier decision rendered in the case of Chief
vs.
Officer Mohamed Irshad Husenbhai Baloch
and Others (supra) which stands upheld by this
Court by order dated 16.09.2013. We are also of the
view that the aforementioned distinction pointed out
by the appellant for coming out of the clutches of
the decision of Chief Officer vs. Mohamed Irshad
Husenbhai Baloch and Others (supra) was also
rightly found untenable by the High Court by
assigning the proper reasons.
25) Keeping in view the aforementioned four
undisputed facts arising in the case coupled with
the decision rendered in the case of Chief Officer
vs.
Mohamed Irshad Husenbhai Baloch and
Others (supra), which has attained finality, and was
then given effect to in relation to concerned
11
Municipal employees holding them eligible and
entitled to claim the pension and the pensionery
benefits, we find no good ground to take any other
view than the one taken by the writ court and the
Division Bench in the impugned order.
26) Learned counsel for the appellant
(Municipality), however, placed reliance on one
State Government’s Circular dated 28.11.1994
(Annexure P1) and contended that in the light of
this circular, the respondents are neither eligible
and nor entitled to claim the benefit of pension. We
find no merit in this submission.
27) Firstly, we find that it was not filed before the
High Court (writ court/Division Bench); Secondly,
the writ court and the Division Bench did not refer
it to; Thirdly, in any event, it is of no significance
to decide the present controversy.
28) Its perusal shows that it applies to the cases of
Panchayat employees, who later became the
Municipal employees.
12
29) In the light of the foregoing discussion, we find
no merit in these appeals. The appeals thus fail and
are accordingly dismissed.
30) The appellant (Municipality) is directed to
finalize the pension cases of the respondents herein
and release the amount of pension after proper
verification within four months from the date of this
order.
…...……..................................J.
[ABHAY MANOHAR SAPRE]
………...................................J.
[S. ABDUL NAZEER]
New Delhi;
September 20, 2018
13