(Per : HONOURABLE MR.JUSTICE G.B.SHAH) 1. This Appeal has been directed against the judgment and order dated 23.4.2010 passed by the learned Single Judge in Special Civil Application No. 3111 of 2010.
2. Brief facts of the case are that the appellant-original petitioner was appointed as Peon in the respondent-Morbi Nagarpalika. Nagarpalika Karmachari Mandal approached the Court for regularization of the employees by filing Special Civil Application No. 5974/1988. The said petition was withdrawn by the original petitioners. The Division Bench, by order dated 27.6.1989 gave directions to the Nagarpalika to consider the case of the Karmachari Mandal and regularize the employees. The Nagarpalika regularized the employees including the present appellant by order dated 7.7.1989. The respondent framed Rules of pension on 21.11.1998. As per the said Rules, the appellant is entitled to receive pension for the service rendered by him with the respondent Nagarpalika. The appellant had submitted pension form vide Serial No.106 with the respondent Nagarpaliaka which was accepted by it. After filing the pension form, 10% salary + DA was being deducted towards pension fund every month. On 9.10.2003 the respondent published a list of employees who had opted for pension benefits and the present appellant's name appears at Serial No.106. On 30.9.2006 the appellant retired from service. Before retirement the appellant was asked to file affidavit that he has left his right in the pension. On 2.8.2007, 324 employees filed Civil Application to get pensionary benefits and other benefits which was allowed by this Court vide order dated 2.8.2007. According to the appellant, though he was made permanent employee, benefit of pension was not given. He had made representation dated 7.12.2009 requesting to give him such benefits as was given to similarly situated employees in pursuance of the order dated 26.11.2009 passed in Special Civil Application No.6525 of 2009. As the said representation was not considered by the respondent, the appellant filed Special Civil Application No.3111 of 2010 for retiral benefits and benefit of pension with arrears and interest. The learned Single Judge after considering the affidavit-in-reply filed on behalf of the respondent Nagarpalika dismissed the petition primarily on the ground that the appellant had agreed not to claim benefit of past services at the time when he was reinstated by the Nagar Palika. The petition was dismissed by the learned Single Judge. This order is challenged in this Appeal.
3. Learned counsel for the appellant submitted that the reinstatement of the appellant was on account of Court's order and such undertaking could not have been insisted upon by the respondent. He submitted that similar issue came up before Division Bench of this Court in LPA No.3090 of 2010. That appeal came to be allowed by order dated 6.4.2011. The issue was carried before the Apex Court by way of filing SLP which was also dismissed. He further submitted that the learned Single Judge has committed grave error by arriving at a finding that as the appellant-petitioner has already forgone his rights by filing affidavit/undertaking, he is estopped from filing such petition. It is contended by the learned counsel for the appellant that the appellant is a permanent employee and his services were made permanent in pursuance of the order dated 27.6.1989 of this court passed in Special Civil Application No. 6142 of 1988. He contended that there is clear violation of Articles 14, 16 and 21 of the Constitution of India since the similarly situated employees are paid pension and the appellant's case is not considered by the authorities. Such action on the part of the respondent authorities is not sustainable in the eyes of law and the pension and other retiral benefits may be directed to be paid including arrears with interest.
4. Learned counsel for the respondent Municipality has placed reliance on the affidavit dated 29.9.2006 and submitted that the appellant had waived the disputes about salary and other benefits prior to his retirement on 30.9.2006. The learned Single Judge has dismissed the writ petition filed by the appellant on the basis of the aforesaid affidavit filed by the appellant wherein it has not been mentioned that the appellant had waived their right towards pension. He vehemently urged that the arrears and other benefits would not be available to the appellant as the appellant has waived his rights in pursuance of the Resolution passed by the respondent- Nagarpalika. He also submitted that the Nagarpalika was not the establishment and the post on which the appellant was working were not sanctioned by the Director of Municipalities. He finally submitted that the learned Single Judge has rightly dismissed the petition of the appellant. He, therefore, prays that the Appeal be dismissed.
5. We have heard the learned counsel for the parties.
On perusal of the record of the case and the decisions of the Coordinate Bench and the orders passed in SLP, it transpires that the learned Single Judge as well as the Division Bench in identical matters, has taken into consideration the scheme of pension framed by the Municipality which was to take effect from 01.04.1995. CPF was also available to the employees and were made applicable to permanently serving employees. It is further not in dispute that till the appellant attained the age of superannuation, qualifying service rendered by the appellant in the capacity of a permanent employee entitled him to receive pension as per the pension scheme framed by the Nagar Palika applicable and at the relevant point of time, the appellant had not opted for CPF. Thus the appellant being a permanent employee, he was entitled for pension in the said scheme. This opting for CPF on the previous day before attaining the age of superannuation, by the appellant on filing declaration/affidavit cannot be pressed into service against accrued and acquired right of the appellant to receive pension as per rules framed under the pension scheme and prevalent during the permanent service of the appellant. Therefore, the affidavit/undertaking given by the appellant before attaining age of superannuation will have no significance in light of the orders passed by the Co-ordinate Bench and the Division Bench as referred herein above.
6. The other issue about nature of establishment of the Municipality etc. cannot be gone into and to be rejected in view of the specific directions given by this Court in earlier round of litigation by filing a Writ Petition being Special Civil Application No.6142/1988 and order passed therein and pursuant to that benefits of permanency was already granted to the petitioner.
7. Considering the overall aspects and what is held and observed by the Division Bench in Paragraphs 9, 10 and 11 of the order dated 06.04.2011 passed in Letters Patent Appeal No.3090/2011, we are of the opinion that the appellant cannot be deprived of similar benefits conferred to the employees of the Nagar Palika in the above Writ Petitions and Letters Patent Appeals. Therefore, the appellant is held to be entitled to receive benefits of pension on the last drawn salary on the date of superannuation, i.e. on 30.9.2006 subject to the appellant filing declaration on oath that he would deposit the entire CPF amount at the rate of 6% (six percent) simple interest per annum with Morbi Nagar Palika and thereafter only, the respondent – Morbi Nagar Palika will fix and release the pension in accordance with law.
8. In the result, this appeal succeeds and is allowed.
The order dated 23.4.2010 passed by the learned Single Judge in Special Civil Application No. 3111 of 2010 is set aside. The appellant is held to be entitled to receive benefits of pension on the last drawn salary on the date of superannuation, i.e. on 30.9.2006 subject to the appellant filing declaration on oath that he would deposit the entire Contributory Provident Fund amount at the rate of 6% simple interest per annum with respondent No.3-Morbi Nagarpalika and thereafter only respondent No.3-Morbi Nagarpalika will fix and release the pension in accordance with law.
[V.M. SAHAI, J.] [G. B. SHAH, J.] msp