(Per : HONOURABLE MR.JUSTICE V. M. SAHAI) 1. We have heard Mr G.M. Amin, learned counsel for the appellant, Mr H.S. Munshaw, learned counsel appearing for respondent No.1, Mr Rakesh R Patel, learned AGP for respondents No.2, 4 and 5 and Mr R C Jani, learned counsel appearing for respondent No.3. This LPA has been filed challenging the judgment of the learned Single Judge dated 30.1.2009 passed in Special Civil Application No.7066 of 1999.
2. The appellant was appointed as Tube Well Operator in work charge establishment on 17.10.1968 in the service of Ahmedabad Jilla Panchayat, Ahmedabad. Respondent No.3 – Gujarat Water Resources Development Corporation (for short, 'Corporation') was created w.e.f. 8.6.1978. Thereafter services of the employees of Ahmedabad Jilla Panchayat (for short, 'Panchayat') stood transferred to the newly created Corporation and the employees including the appellant was treated on deputation as per Government Resolution dated 14.10.1981. It was also provided in this Resolution that services of the employees transferred from the Panchayat shall be treated to be on deputation with the Corporation till they are absorbed in the services of the Corporation. In the year 1981, options were invited and the appellant opted for pension and absorption in the services of the Corporation and he was absorbed in service on 14.12.1981. The appellant retired on 13.12.1996. The appellant claimed pension from the respondent-Panchayat on the ground that the appellant has worked for a period of 10 years in the Ahmedabad Jilla Panchayat and those employees who were working for a period of 10 years or more were entitled to pension from the Panchayat. It is not disputed that from 14.12.1981 when the appellant was absorbed in services of the Corporation no pension was payable to him.
3. The argument of Mr H.S. Munshaw, learned counsel appearing for respondent No.1 is that the appellant's services were transferred to the Corporation on 8.6.1978 and, therefore, on that date, the appellant had not completed 10 years' service which is qualifying service for grant of pension with the Ahmedabad Zilla Panchayat. According to the learned counsel for the petitioner, he was on deputation with the Corporation till 13.12.1981 and, therefore, his services till 13.12.1981 has to be treated in his parent cadre i.e. Ahmedabad Jilla Panchayat. This question came up for consideration before the learned Single Judge of this Court in Special Civil Application No. 6690 of 1989 in the case of Narubha Mahobatsinh Jhala v. District Development Officer & Ors. decided on 11.8.2000 wherein the learned Single Judge took the view that till the work-charged employees of Ahmedabad Jilla Panchayat were absorbed in the services of the Corporation he was on deputation with the Corporation and, therefore, he has to be treated to be an employee of the Ahmedabad Zilla Panchayat and if he has completed 10 years of service prior to his absorption in the services of the Corporation then he would be entitled for pension. Operative portion of the order dated 11.8.2000 is reproduced hereunder:
“As a result of the discussion above, the petition succeeds and is hereby allowed. Respondents Nos. 1 and 3 -
i.e. Panchayat Department represented through the District Development Officer and Director of Pension and Provident Fund, Government of Gujarat, are directed to entertain the claim of the petitioner for fixation of his pension and allow him pensionary benefits by treating him to have completed ten years of qualifying service. Since the petitioner retired in 1988, on his making suitable approach in writing to the concerned authorities respondents Nos. 1 and 3, within a period of one month, necessary orders in his favour would be passed to enable him to obtain pension within outer limit of three months from the date of receipt of representation. His pension be fixed from the due date and arrears to be also paid to him.”
This decision of the learned Single Judge was affirmed in LPA No. 831 of 2000 in the case of District Development Officer & Ors. v. Narubha Mahobatsinh Jhala decided on 12.1.2005. Para No.5 of the said decision is reproduced as under:
“5. Under the circumstances, when the learned Chief Justice of this Court allowed the petition of the original petitioner and directed the present appellant No.1-District Development Officer, Ahmedabad and original respondent No.3-The Director of Pension and Provident Fund, Government of Gujarat at Ahmedabad to entertain the claim of the petitioner for fixation of his pension and allowing him pensionary benefits treating him to have completed 10 years of qualifying service, then on peculiar facts and circumstances of the case, we would not like to interfere with such order in our Letters Patent Jurisdiction.”
The above decision became final and binding on the respondent-Panchayat namely Ahmedabad Jilla Panchayat. Therefore, the controversy involved in this case is squarely covered by the aforesaid decision and since the appellant remained on deputation with the Corporation till 13.12.1981 and joined services of Ahmedabad Jilla Panchayat in the year 1968, he completed more than 10 years of qualifying service and so he is entitled to pension from Ahmedabad Jilla Panchayat, consequently the appellant shall be paid. Therefore, Ahmedabad Jilla Panchayat, has to forward papers to respondent No.2 for payment of pension to the appellant.
4. Learned Single Judge has dismissed the writ petition filed by the appellant-petitioner on the ground that the petitioner should have claimed and challenged that he had completed more than 10 years' service in the year 1981 itself. According to learned Single Judge, the cause of action for getting his service calculated arose to the petitioner in the year 1981 and, therefore, the writ petition was barred by delay and laches. In paras 8,9 and 10 of the order, the learned Single Judge has observed as under:
8. Heard the learned Advocate for the respective parties.
Admittedly earlier the petitioner was in Panchayat Department. It is only because of option given to him the petitioner was taken in the respondent Corporation. Admittedly, even according to the petitioner, the respondent is not entitled to pension after the period of 1981. Thus the claim of the petitioner is prior to 1981 which is claimed in the present petition. Even looking to the clauses of the Resolution of 1981 it is clear that the petitioner had no objection in opting the service with the Corporation, otherwise, the petitioner would not have got the employment as his services would have been terminated or retrenched.
In any case, the cause of action as contended in the petition is of the year 1981 and there is a gross delay in filing the petition which cannot be condoned in view of the settled legal position.
In the case of Shiv Dass v. Union of India and others, reported in AIR 2007 SC 1330 it is held that if petition is filed beyond reasonable period, say three years, normally Court would reject the same or restrict the relief. The learned Advocate had unsuccessfully argued that the cause of action has arisen in the year 1995, but on the facts it is otherwise.
9. It is required to be noted that in the year 1981 it would have been retrenchment and not a retirement, and therefore the petitioner would not have become eligible for pension.
10. In the premises aforesaid, I do not find any merits in this petition. This petition is, therefore, dismissed.”
In our opinion, the view taken by the learned Single Judge is not correct. The cause of action arose to the petitioner after retirement when the respondents failed to count his service of 10 years from 1978 till 1981 prior to the petitioner's absorption of service in the Corporation. Prior to it there was no question of payment of any pension. Therefore, the petitioner could not have raised any grievance for counting of service in 1981 itself. For the aforesaid, the order of the learned Single Judge cannot be maintained and deserves to be set aside. We may make it clear that barring this the appellant will neither raise any other claim nor the respondent will entertain any such claim on the part of the appellant.
5. In the result this appeal succeeds and is allowed.
The judgment of the learned Single Judge dated 30.1.2009 passed in Special Civil Application No.7066 of 1999 is set aside. We hold that the appellant has actually worked with the respondent No.1 Ahmedabad Jilla Panchayat from 17.10.1968 to 13.12.1981 and he was entitled to pension from respondent No.1 as he has completed more than 10 years of qualifying service. The pension papers shall be prepared by respondent No.1 and sent to respondent No.2 within a period of 8 weeks from today and respondent No.2 shall in turn pass appropriate orders for payment of pension within a further period of 12 weeks. Parties shall bear their own costs.
[V.M. SAHAI, J.]
[G. B. SHAH, J.]
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