Non-Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 5441 OF 2016
(Arising out of S.L.P. (C) No.2324 of 2010)
Harijan Paniben Dudabhai …… Appellant
Versus
State of Gujarat and others …… Respondents
With
CIVIL APPEAL NO. 5442 OF 2016
(Arising out of S.L.P. (C) No.8896 of 2010)
CIVIL APPEAL NO. 5443 OF 2016
(Arising out of S.L.P. (C) No.1305 of 2011)
and
CIVIL APPEAL NO. 5444 OF 2016
(Arising out of S.L.P. (C) No. 9756 of 2011)
JUDGMENT
Uday Umesh Lalit, J.
Leave granted.
2. These appeals challenge common judgment of the High Court of Gujarat
dated 02.07.2009. As Letters Patent Appeal No.1522 of 2004 was considered
as lead matter by the High Court, the appeal arising therefrom is also
considered as lead matter by us. The facts giving rise to Letters Patent
Appeal No.1522 of 2004 are dealt with in detail hereafter.
3. In terms of Gujarat Government Gazette dated 01.07.1961, the then
Okha District Municipality got converted into Okha Gram and Nagar
Panchayat on and w.e.f. 02.02.1962. Upon such conversion, the existing
staff of municipality was allocated to Gram Panchayat and treated as part
of Panchayat Service. Gujarat Panchayats Act, 1961 (hereinafter referred to
as the “Act”) deals with Panchayat Service and various sets of Rules framed
pursuant to the power conferred under the Act, deal with matters including
classification of Panchayat Service and conditions of service as regards
Panchayat Service.
4. Section 203 of the Act is to the following effect:
“203. Panchayat Service to be regulated by rules – (1) For this purpose of
bringing about uniform scales of pay uniform conditions of service for
persons employed in the discharge of functions and duties of panchayats,
there shall be constituted a Panchayat Service in connection with the
affairs of panchayats. Such service shall be distinct from the State
service.
(2) The Panchayat Service shall consist of such classes, cadres and posts
and the initials strength of officers and servants in each such class and
cadre shall be such, as the State Government may by order from time to time
determine:
Provided that nothing in this sub-section shall prevent a district
panchayat from altering, with the previous approval of the State
Government, any class, cadre or number of posts so determined by the State
Government.
(2A) (a) The cadres referred to in sub-section (2) may consist of
district cadres, taluka cadres and local cadres.
(b) A servant belonging to a district cadre shall be liable to be
posted, whether by promotion or transfer to any post in any gram or nagar
in the same taluka.
(c) A servant belonging to a taluka cadre shall be liable to be
posted, whether by promotion or transfer to any post in any gram or nagar
in the same taluka.
(d) A servant belonging to a local cadre shall be liable to be
posted whether by promotion or transfer to any post in the same gram or, as
the case may be, nagar.
(2B) In addition to the posts in the cadres referred to in sub-section
(2A), a panchayat may have such other posts of such classes as the State
Government may, by general or special order determine. Such posts shall be
called “deputation posts” and shall be filled in accordance with the
provisions of Section 207.
(3) Subject to the provisions of this Act, the State Government may make
rules regulating the mode of recruitment either by holding examinations or
otherwise and conditions of service of persons appointed to the panchayat
service and the powers in respect of appointments, transfers and promotions
of officers and servants in the panchayats service and disciplinary action
against any such officers or servants.
(4) Rules made under sub-section(3) shall in particular contain –
a provision entitling servants of such cadres in the Panchayat Service to
promotion to such cadres in the State Service as may be prescribed.
A provision specifying the clauses of posts recruitment to which shall be
made through the District Panchayat Service Selection Committee and the
class of posts, recruitment to which shall be made by the Gujarat
Panchayat Service Selection Board, and
A provision regarding the percentage of vacancies to be reserved for the
members of Scheduled Castes, Scheduled Tribes and other backward classes in
the Panchayat Service.
(5) Such rules may provide for inter district transfers of servants
belonging to the Panchayat Service and the circumstances in which and the
conditions subject to which such transfers may be made .
(6) The promotion of a servant in a cadre in the Panchayat Service
to a cadre in the State service in accordance with the rules made under
clause (a) of the sub-section (4) shall not affect-
any obligation or liability incurred or default committed by such servant
during the period of his service in a cadre in the Panchayat Service while
acting or purporting to act in the discharge of his duties as such servant,
or
any investigation, disciplinary action or remedy in respect of such
obligation, liability or default and any such investigation, disciplinary
action or remedy may be instituted, continued or enforced in accordance
with the law applicable thereto during the said period of service by such
authority as the State Government may, by general or special order specify
in this behalf.”
5. In State of Gujarat and another v. Ramanlal Keshavlal Soni and
others[1] a Constitution Bench of this Court held that Panchayat Service
constituted under aforesaid Section 203 of the Act is a Civil Service of
the State and the members of the Service are government servants.
6. Coming to the facts of the lead matter, one Vela Keshav, deceased
husband of the appellant was appointed by Okha Gram Panchayat as Safai
Kamdar on 04.02.1964. After having put in 33 years of service, he died in
harness on 06.02.1997. The record indicates that monetary benefits such as
Rs.14525.50 towards leave encashment, Rs.26,042/- towards Group Insurance
and Rs.54,221/- towards General Provident Fund were paid to the appellant
as legal representative of the deceased. The appellant represented that
the family of Vela Keshav was also entitled to family pension and gratuity
which claim having not been accepted, the appellant moved the High Court by
filing Special Civil Application No. 354 of 2004.
7. Affidavits in opposition were filed by Deputy District Development
Officer, District Panchayat, Jamnagar as respondent no.3 and by Sarpanch of
Okha Gram Panchayat as respondent No.5. It was submitted by them that
since the deceased was not recruited by the Gram Panchayat in accordance
with the Statutory Rules, the appellant was not entitled to claim family
pension. The matter came up before a Single Judge of the High Court who by
her order dated 15.07.2004 dismissed the Special Civil Application. The
submission advanced on behalf of the respondents that since the deceased
was not appointed by the District Panchayat Service Selection Committee
constituted under Section 2(11) of the Act, was not a member of the
Panchayat Service as envisaged by Section 203 of the Act and as such the
appellant was not entitled to claim any family pension or gratuity, was
accepted by the Single Judge.
8. The appellant being aggrieved carried the matter further by filing
Letters Patent Appeal No.1522 of 2004. At the appellate stage affidavit in
reply filed by District Development Officer, District Panchayat, Jamnagar
reiterated the earlier stand. An affidavit in reply on behalf of the
State Government was filed by Deputy Secretary, Panchayats, Rural Housing
and Rule Development Department, Gandhi Nagar which dealt with the matter
in issue in following terms.
“In the present case, since appellant has not undergone any selection
procedure and he has obtained the employment only on the strength of
passing resolution in panchayat, Okha Gram Panchayat has not made any
proposal to regularize such unauthorized recruitment and appointment of
petitioner’s husband. Therefore, he cannot be treated as an employee of
local cadre of panchayat service and since he cannot be considered as a
member of panchayat service, he is not entitled for any pensionary benefits
from government treasury. It is the responsibility of Okha Gram Panchayat
to pay pensionary benefit from its own fund as per the terms and conditions
at the time of petitioner’s husband appointment by Okha Gram Panchayat…….”
However what was the procedure which was prevalent in 1964 and how the
appointment was bad or illegal, was not specified
9. The reply filed on behalf of respondent no.5 by the Administrator of
Okha Municipal Borough was as under:
“The appointment of deceased Vela Keshav was made by the Gram Panchayat by
passing a Resolution and he was holding the post within the sanctioned set
up of Safai Kamdars (Sweepers). The said Resolutions of the Gram Panchayat
making the appointment of the deceased are not available at present.
However, the necessary entry made in the Service Book of the deceased
employee showing the other details in the Service Record is available.
……..
The deceased employee was appointed as a Full time employee on the
sanctioned set up of the Gram Panchayat getting regular salary.
…….
The Okha Gram Panchayat appointed him as Safai Kamdar on the terms and
conditions as its own employee where there were no rules. However, the
fact remains that the deceased was holding the post on the set up
sanctioned by the Development Commissioner and had continued till his
retirement[2] as a regular full time employee. Further, it cannot be said
that his appointment was not made in accordance with the provisions under
Section 203 of the Panchayat Act because no such rules of recruitment were
as such framed on the date on which the deceased was appointed on
4.2.1964.”
10. The Division Bench of the High Court by its judgment and order under
appeal dismissed Letters Patent Appeal No.1522 of 2004 and other connected
matters. It was observed that only those employees who had been appointed
following the procedure laid down in Section 203 of the Act and the rules
framed thereunder, would alone be members of Panchayat Service, apart from
the allocated employees from the municipality to the Panchayats at the time
of formation of the Panchayats or such other employees who had been
recognized as members of Panchayat Service by the State Government, or by
the District Panchayat Selection Committee. It was further observed that
merely because Panchayat had paid salary and other benefits to the
deceased, it did not mean that he was member of Panchayat Service so as to
get the benefits available to members of Panchayat Service like family
pension and gratuity.
11. In the present case the deceased was appointed as Safai Kamdar on
4.2.1964 by Gram Panchayat by passing an appropriate resolution. It is
true that Section 203(3) of the Act empowers the State Government to make
rules regulating mode of recruitment. Our attention in that behalf was
invited to Gujarat Service (Appointing Authorities) Rules, 1967. Rule 2 of
the said Rules stipulates, inter alia, that the Appointing Authority in
respect of posts under the Gram Panchayat, which are included in the “local
cadre” is Gram Panchayat itself. The term “local cadre” finds elaboration
in Part III of Gujarat Panchayat Service (Conditions of Service) Rules,
1977 (hereinafter referred to as “the 1977 Rules). Part III captioned
“Local Cadre” is to the following effect:
“I. Secretary of a Nagar Panchayat
II The following posts under the Nagar or as the Case may be, Gram
Panchayat, namely –
Chief Officer (Nagar Panchayat)
Head Clerk
Senior Clerk
Junior Clerk
Vasulati Clerk
Typist
Octroi clerk
Accountant
Cashier
Tax Inspector
Shop Inspector
Octroi Inspector
Overseer
Power House Manager
Driver
Cleaner
Posts required for schools run by the Panchayat
Posts required for dispensaries run by the Panchayat
Posts required for libraries run by the Panchayat
Posts required for dispensaries run by the Panchayat
III All posts belonging to the inferior panchayat Service under Gram
Panchayat or Nagar Panchayat.
IV All other technical and non-technical posts under the Gram Panchayat
or Nagar Panchayat.”
12. Item III of aforementioned Part III deals with “Inferior Panchayat
Service” under Gram Panchayat or Nagar Panchayat which term is defined
inter alia in Rule 2(h) of the 1977 Rules, as under:
“2(h) “Superior Panchayat Service” and “Inferior Panchayat Service” means
respectively the Superior Panchayat Service and the Inferior Panchayat
Service as constituted respectively by clause (a) and clause (d) of sub-
rule (2) of Rule 3 of the Gujarat Panchayat Service (Classification and
Recruitment) Rules, 1967.”
Sub-rule (2) of Rule 3 of the Gujarat Panchayat Service (Classification and
Recruitment) Rules, 1967 deals with Panchayat Service and stipulates that
it shall consist of two classes, namely, “Superior Panchayat Service” and
“Inferior Panchayat Service”.
13. The statutory provisions as mentioned above and the clear assertion
by Respondent No.5 in his affidavit in reply, shows that in the year 1964
when deceased Vela Keshav came to be appointed, there were no rules
governing the appointment in question. The rules regulating ‘Superior
Panchayat Service’ and ‘Infereior Panchayat Service’ in the form of Gram
Panchayat Service (Classification and Recruitment) Rules, 1967 came on the
statute book in the year 1967. Going by the Gujarat Panchayat Service
(Appointing Authorities) Rules, 1967, Gram Panchayat is the appropriate
authority in respect of posts included in the Local Cadre. Thus, we do not
find any infraction in the appointment of Vela Keshav, who was appointed
pursuant to a resolution passed by Panchayat. Nothing has been pointed out
how Gram Panchayat was not competent to make such appointment or that at
the relevant time in question the power to make appointments was vested in
an authority other than Gram Panchayat or that there was any separate
modality or procedure prescribed for effecting such an appointment.
14. As detailed in the affidavit in reply on behalf of Respondent No.5,
the deceased Vela Keshav was holding the post within the sanctioned set up
of Safai Kamdars and that he was a full time employee getting regular
salary. The deceased Vela Keshav had put in 33 years of service and died
in harness. At no stage, while he was in service any objection or even a
doubt was raised that he was not validly appointed. In our view, Vela
Keshav must be held to be one who was regularly appointed and we do not
find any infirmity or illegality in his appointment so as to disentitle the
family of the benefits of family pension and gratuity.
15. At this stage, Circular dated 26.02.2008 issued by Government of
Gujarat, Panchayat Rural Housing and Rural Development on 26.02.2008,
which was placed on record by way of Additional Documents, may be adverted
to. This Circular after considering cases of those who were appointed
between 1.04.1963 and 5.05.1984, stated as under:
“It is, therefore, informed to all the District Development Officers
to initiate proceedings in accordance with the instructions given vide
letters cited at preamble for regularizing services of the employees
appointed/recruited under the converted gram/nagar panchayats during the
period from 1.4.1963 to 10.7.1978 and 10.07.1978 to 5.06.1984 and to decide
their other service related matters accordingly. Further, it is also
hereby informed to submit proposal of posts of remaining employees as per
item no.1 of letter at preamble 1 who have been recruited/appointed
promoted during the period from 10.07.1978 to 5.06.1984 and on other
aspects of the aforesaid letters also, if guidance/approval is required,
DDO shall have to submit proposal through Development Officer’s office
within six months after examining service record of each employee with
their clear opinion.”
16. In the totality of circumstances, we find that the appellant cannot
be denied the benefits in question. We, therefore allow this appeal and
set aside the judgments and orders rendered by the Single Judge and the
Division Bench and allow Special Civil Application No.354 of 2004. We
direct the respondents to pay to the appellant all the arrears of
pensionary benefits and gratuity with simple interest at the rate of 9% per
annum within two months from the date of this Judgment.
17. In appeal arising out of SLP(C) No.8896 of 2010, the appellant was
appointed as a Peon on 4.4.1964 and in due course of time was promoted to
the post of Sanitary Mukadam and later to the post of Octroi Clerk. He
retired in the year 2001 after having put in 37 years of service and all
through he was paid all the benefits including those under 4th Pay
Commission as a regular employee would receive. His case was dealt with
on the strength of the Judgment in the lead matter by the High Court and
since we have set aside the view taken by the High Court in the lead
matter, this appeal also deserves to be allowed. While condoning the delay
and allowing the appeal, the respondents are directed to pay the arrears of
pensionary benefits and the amount of gratuity to the appellant along and
gratuity with simple interest at the rate of 9% per annum within two
months from the date of this Judgment.
18. In appeal arising out of SLP(C) No.9756 of 2011, the deceased husband
of the present appellant was appointed as Sanitary Inspector by Okha Gram
Panchayat on 14.12.1964 and the said appointment was later confirmed by
Development Commissioner vide order dated 5.4.1973. In accordance with the
view taken by us in the lead matter, this appeal also deserves to be
allowed. Allowing the appeal, we direct the respondents to pay to the
appellant all the arrears of family pension and the amount of gratuity with
simple interest at the rate of 9% per annum within two months from the date
of this Judgment.
19. In appeal arising out of SLP(C) No.1305 of 2011 the appellant, 55 per
cent physically handicapped, was appointed as Typist-cum-Clerk on
13.10.1969 and retired from service in the year 2001. It is true that his
appointment was after the Gujarat Panchayat Service (Appointing
Authorities) Rules, 1967 and other set of Rules came into force. But
nothing has been placed on record indicating any prevalent procedure which
was allegedly infracted or any reason why his appointment could be termed
as illegal or invalid. All through his service till he retired, he was
paid all the emoluments and salary like any regular employee. We see no
reason why the appellant could be denied the pensionary benefits and
gratuity. We allow this appeal and direct the respondent to pay to the
appellant family pension and the amount of gratuity with simple interest at
the rate of 9% per annum within two months from the date of this Judgment.
20. All the appeals are allowed in the aforesaid terms without any order
as to costs.
……………………………..J,
(V. Gopala Gowda)
……………………………..J.
(Uday Umesh Lalit)
New Delhi,
July 1 , 2016
-----------------------
[1] [2] (1983) 2 SCC 33
[3]
[4] The Affidavit wrongly mentioned that the employee had continued
till he retired. As a matter of fact, Vela Keshav had died in harness.
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