UNA NAGAR PALIKA versus KALIBEN BALUBHAI MAKWANA & ANR.
[2018] 11 S.C.R. 752, Supreme Court of India, 2018
Outcome: Dismissed (Dismissed)
Segment: Ratio
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SUPREME COURT REPORTS
[2018] 11 S.C.R.
UNA NAGAR PALIKA
v.
KALIBEN BALUBHAI MAKWANA & ANR.
(Civil Appeal No. 5529 of 2016)
SEPTEMBER 20, 2018
[ABHAY MANOHAR SAPRE AND S. ABDUL NAZEER, JJ.]
Service Law – Pension/Pensionary Benefits – Claim for –
Denial of – When not proper – Respondents-employees of appellant-
Municipality denied pension/pensionary benefits – Challenged by
respondents – Allowed by High Court – Held: High Court was right
in holding that the question involved in the present appeals is
covered by the earlier decision of the High Court rendered in
Mohamed Irshad Husenbhai case, which was upheld by Supreme
Court and has thus attained finality – Plea of appellant that there is
distinction 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 and that
in Mohamed Irshad Husenbhai case, the employees who fell in the
former category were held entitled for the grant of pension which
is not the situation in the present case – Such plea is of no
significance because the appellant made the respondents members
of the GPF contributions and deducted regular contribution from
their salary till the date of their retirement – Thus, the distinction
pointed out by the appellant for coming out of the clutches of the
decision of Mohamed Irshad Husenbhai case was rightly found
untenable by the High Court – No case to interfere in the impugned
order.
Dismissing the appeals, the Court
HELD: 1.1  The High Court was right in holding that the
question involved in these appeals is covered by the earlier
decision of the Gujarat High Court rendered in Mohamed Irshad
Husenbhai Baloch case, which was upheld by this Court by order
dated 16.09.2013 and thus attained finality. [Para 19] [756-E]
1.2 Distinction between the two groups of employees,
namely, one coming from the Panchayat and then becoming the
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Municipal employees and the other directly becoming the
Municipal employees was held to be of no significance because
the appellant made the respondents as the members of the GPF
contributions and went on to deduct regular contribution from
their salary till the date of their retirement. The aforementioned
distinction pointed out by the appellant for coming out of the
clutches of the decision of Mohamed Irshad Husenbhai Baloch
case was also rightly found untenable by the High Court by
assigning the proper reasons. Keeping in view the undisputed
facts arising in the case coupled with the decision rendered in
the Mohamed Irshad Husenbhai Baloch, which has attained finality,
and was then given effect to in relation to concerned Municipal
employees holding them eligible and entitled to claim the pension
and the pensionery benefits, no good ground is found to take any
other view than the one taken by the writ court and the Division
Bench in the impugned order.  [Paras 23, 24, 25] [757-G-H; 758-
A-D]
1.3 The appellant is directed to finalize the pension cases
of the respondents and release the amount of pension after proper
verification within four months from the date of this order.   [Para
30] [758-G]
Chief Officers v. Mohmad Irshad Husenbhai Baloch &
Ors. (2011) (1) GCD 569 (Guj) (D.B.) – approved.
Case Law Reference
(2011) (1) GCD 569 (Guj) (D.B.)
approved
Para 1
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5529
of 2016
From the Judgment and Order dated
06.10.2015 of the High
Court of Gujarat at Ahmedabad in Letters Patent Appeal No. 1122 of
2015 in Special Civil Application No. 3699 of 2014.
WITH
Civil Appeal Nos. 5530, 5531, 5532, 6490 of 2016.
S. P. Hasurkar, Anshul Narayan, Bhargav Hasurkar, Prem
Prakash, Ms. Anushree Prashit Kapadia, Vinod Tiwari, Ms. Promila,
Advs. for the appearing parties.
UNA NAGAR PALIKA v. KALIBEN BALUBHAI MAKWANA
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SUPREME COURT REPORTS
[2018] 11 S.C.R.
The Judgment of the Court was delivered by
ABHAY MANOHAR SAPRE, J. 1. These appeals are directed
against the common final judgment and order dated 06.10.2015 passed
by the High Court of Gujarat at Ahmedabad in Letters Patent Appeal
No.1122 of 2015 in Special 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 Chief
Officers vs. 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 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 appellant-
Municipality.  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.
7. This gave rise to filing of the special civil applications (petitions)
by the respondents against the appellant in the High Court of Gujarat
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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 appellant-Municipality
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
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 employer-Municipality 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 and Others (supra) along with
other connected 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 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 Chief Officer vs. 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
UNA NAGAR PALIKA v. KALIBEN BALUBHAI MAKWANA
[ABHAY MANOHAR SAPRE, J.]
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SUPREME COURT REPORTS
[2018] 11 S.C.R.
Chief Officer vs. Mohamed Irshad Husenbhai Baloch and Others
(supra).
14. When the matter came up in appeals, the Division Bench also
placed reliance on the view taken in Chief Officer vs. Mohamed Irshad
Husenbhai Baloch and Others (supra) and dismissed the appeals.
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 and
Others (supra) and affirmed by the order of 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 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 Irshad Husenbhai Baloch and
Others (supra) has 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.
21. It was contended that the employees, who fall in former
category of case, were held entitled for the grant of pension but not
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those employees, who fall in the latter category of the case. It was
pointed out that since the employees in the case of Chief Officer vs.
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 Officer vs. 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 petitioners-respondent No.1 herein in the
respective appeals were 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 went on to deduct
regular contribution from their salary till the date of their retirement.
UNA NAGAR PALIKA v. KALIBEN BALUBHAI MAKWANA
[ABHAY MANOHAR SAPRE, J.]
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[2018] 11 S.C.R.
24. In our view, the case at hand is covered by the earlier decision
rendered in the case of Chief Officer vs. 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 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 P-1) 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.
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.
Divya Pandey
              Appeals dismissed.