1. The present Second Appeal under Section 100 of the Code of Civil Procedure has been preferred by the appellants-heirs and legal representative of the original plaintiff challenging the impugned judgment and order passed by the learned 5th Additional District Judge, Kutch-Bhuj dated 19/07/2011 in Regular Civil Appeal No. 87/2008 as well as judgment and decree passed by the learned 2nd Additional Senior Civil Judge, Kutch-Bhuj dated 06/10/2008 in Regular Civil Suit No. 5/2005 by which the learned trial Court has dismissed the said suit.
2. Original complainant-Shri Tejmalji Chandaji Jadeja (now deceased), who was serving as 'kotwal' had instituted Regular Civil Suit No. 5/2005 in the Court of learned Principal Senior Civil Judge, Kutch-Bhuj for getting retirement benefits/pensionory benefits. Considering the fact that the scheme for pension came to be introduced for the first time on 24/11/1979 and considering the fact that the original plaintiff retired on attaining the age of superannuation on 01/07/1977, the learned trial Court dismissed the suit by holding that the original plaintiff was not entitled to pensionory benefits. Being aggrieved and dissatisfied with the judgment and decree passed by the learned trial Court dismissing the suit, original plaintiff preferred Regular Civil Appeal No. 87/2008 before the District Court, Kutch-Bhuj, which has been dismissed by the learned appellate Court by impugned judgment and order dated 19/07/2011. Being aggrieved and dissatisfied with the impugned judgment and orders passed by both the Courts dismissing the suit/appeal the applicants-heirs and legal representatives of the original plaintiff has preferred the present Second Appeal under Section 100 of the Code of Civil Procedure.
3. Shri Saiyed, learned advocate appearing on behalf of the applicants has vehemently submitted that both the Courts below have materially erred in holding that original plaintiff was not entitled to pensionory benefits. It is submitted that initially by notification dated 01/10/1980 the pension scheme was introduced and/or made applicable with effect from 01/03/1979. However, subsequently the same was clarified by the State Government vide Resolution dated 24/11/1997 under which it was clarified that all those 'kotwals' who were serving regularly and permanently and who were getting the regular pay scale of 'kotwal' even prior to 01/03/1979 they are entitled to retirement benefits and, therefore, it is submitted that original plaintiff would be entitled to the retirement benefits. It is submitted that both the Courts below have not properly considered the aforesaid Government Resolution dated 24/11/1997 and, therefore, it is requested to admit/allow the present Second Appeal.
4. Shri Kabir Hathi, learned AGP appearing on behalf of the respondents has submitted that as such by Government Resolution dated 24/11/1997 it is not provided that all those 'kotwals' who have retired prior to 01/03/1979 shall be entitled to retirement benefits. It is submitted that by the aforesaid Resolution it was clarified that for the purpose of considering the pensionory job service prior to 01/03/1979, the same is also required to be considered. However, it is submitted that as per the Government Resolution dated 01/10/1980 retirement benefits shall be available only to those employees/'kotwals', who have retired after 01/03/1979 and, therefore, it is submitted that both the Courts below have not committed any error and/or illegality in dismissing the suit/appeal by holding that the original plaintiff was not entitled to retirement benefits and, therefore, it is requested to dismiss the present Second Appeal.
5. Heard the learned advocates appearing on behalf of the respective parties at length and considered the impugned judgment and order passed by both the Courts below. It is required to be noted that as such the original plaintiff has retired on attaining the age of superannuation on 01/07/1977 and the pension scheme/retirement benefits came to be introduced for the first time vide Resolution dated 01/10/1980 and was made applicable to only those employees who retired after 01/03/1979. However, there was some dispute with respect to the period prior to 01/03/1979 and whether the service rendered by the employee prior to 01/03/1979 is required to be considered for pensionory benefits or not came to be clarified by the State Government by subsequent Resolution dated 24/11/1997 and it is clarified that even the service rendered by the employees prior to 01/03/1979 is required to be considered for considering the pensionory benefits, if such an employee was appointed regularly and on permanent basis and was getting regular pay scale. In the said Resolution dated 24/11/1997, it does not provide that the pension scheme is made applicable to all those employee/'kotwals, who have retired prior to 01/03/1979 as sought to be contended on behalf of the appellants.
6. In view of the above, when the original plaintiff has retired on attaining the age of superannuation on 01/07/1977 and at the relevant time there was no pension scheme both the Courts below have rightly dismissed the suit and rightly held that the original plaintiff was not entitled to retirement benefits.
7. In view of the above and for the reasons stated hereinabove, the present Second Appeal fails and the same deserves to be dismissed and is accordingly dismissed.
(M.R.
SHAH, J.) siji Top