Virochan Nagar Gram Panchayat & 1 ­

(1) By way of this petition under Article 226 of the Constitution of India, the original petitioner, the widow of late Shri Gadakhan Amthakhan Pathan, who was serving with respondent No.1­Gram Panchayat as Kotwal, has prayed for an appropriate writ, order or directions directing the respondents to promptly pay the due amount of family pension due on the death of her husband, also to pay the gratuity amount and all other benefits along with interest @ 18%. It is a matter of record that during pendency of this petition original petitioner – Jenabibi, widow of late Gadakhan Amthakhan Pathan, expired on 16.08.2009 and hence, by an order of this Court dated 07.02.2011 passed in Civil Application No.80 of 2011 the present petitioners, who are the legal heirs of the original petitioner­ Jenabibi, have been substituted as the petitioners.

(2) The facts emerge from the record of the petition are that husband of the original petitioner late Gadakhan Amthakhan Pathan was working as Kotwal with respondent No.1­Gram Panchayat. That said deceased Pathan worked for about 25 years on the said post with respondent No.1­Gram Panchayat and was lastly drawing salary of Rs.100/­. According to the petitioners, Shri Pathan expired on 28.02.1978.

(2.1)That several representations were made by the petitioners to the respondent authorities, however, no payment is made towards family pension and even the gratuity amount, which is due and payable, has not been paid. That said late Gadakhan Amthakhan Pathan was a panchayat servant and hence, under the provisions of the Gujarat Panchayat Service (Pension) Rules, 1976, which is deemed to have come into force from 1st April, 1963, the original petitioner being a widowed wife of such a panchayat servant is entitled for the legal dues of amount of pension. Reliance is placed upon the ratio of decision of the Apex Court in the case of State of Gujarat Vs. Ramanlal, 24 (1) G.L.R. 708 and it is contended that services of late Gadakhan Amthakhan Pathan would mean civil service of the State. It is further contended that the original petitioner is legally entitled to get family pension from the respondent authority. Reliance is also placed upon the ratio of decision rendered by this Court (Coram: R.C.Mankad, J) in the case of Mankuvarba M. Vaghela Vs. Tharad Nagar Panchayat & Anr. in Special Civil Application No.731 of 1989 decided on 02.08.1991. It was further the case of the original petitioner that she was a poor aged widow and after death of her husband, she has no source of income and she is entitled for the amount of family pension and gratuity available to her due to the death of the husband, however, the same has not been paid.

(3) It is also contended that pension is not a bounty but it is a matter of legal right and non­payment of appropriate amount of pension is therefore illegal. It is further contended that in view of the fact that the legitimate dues of family pension has not been paid and the issue is being delayed since 1978 the respondent should pay interest @ 18% p.a. on such amount, which is found due and payable.

(4) Heard Mr.Parikh, learned advocate for the petitioners, and Mr.Alkesh N. Shah, learned Assistant Government Pleader for respondent No.2­ State. Though served, none appears on behalf of respondent No.1­Gram Panchayat.

(5) Mr.Parikh, learned advocate for the petitioners, has candidly submitted that the ratio laid down by this Court in the case of Mankuvarba (supra) is no more a good law and has further submitted that the issue whether an employee of a 'Gram Panchayat' is also entitled to get pension or pensionary benefits like family pension as in the present case, is pending before the Apex Court. It was further submitted that a Division Bench of this Court in a similar matter being Letters Patent Appeal No.2216 of 2010 has issued certain directions in regard to similarly situated persons i.e. employees of Gram Panchayat vide order dated 20.10.2010. It was therefore, submitted that at least similar directions may be issued in the present case. Upon instructions, it was further submitted by learned advocate for the petitioners that so far as the amount of gratuity is concerned, the petitioners, who are the legal heirs of the original petitioner­Jenabibi have not yet paid the same by respondent No.1­Gram Panchayat and, therefore, at least the Gram Panchayat may be directed to pay such amount, which is due towards gratuity.

(6) Mr.Alkesh N. Shah, learned Assistant Government Pleader, has submitted that so far as the issue of family pension is concerned, the same is pending before the Apex Court and the ratio laid down by this Court in Special Civil Application No.731 of 1989 is no more a good law and, therefore, it cannot be relied upon and, therefore, it was submitted that the petitioners are not entitled to family pension as the husband of the original petitioner was working with respondent No.1­Gram Panchayat and he being an employee of Gram Panchayat would not be entitled to the benefit of pension as a panchayat employee. It was therefore, submitted that so far as family pension is concerned, the petition deserves to be dismissed. It was further pointed out that so far as the gratuity amount is concerned, it transpires from the record and even as per the petitioners the amount of gratuity is to be deposited by respondent No.1­Gram Panchayat and the State of Gujarat, respondent No.2, has not to make any such payment.

(7) Considering the rival submissions so far as the prayer of family pension is concerned, in a similar matter being Letters Patent Appeal No.2216 of 2010 while rejecting the said appeal this Court has observed in Paragraph No.5 as under:

“5. It is indicated by learned advocate for the appellant that Special Leave Petition has been preferred to challenge the order passed by the Division Bench in the earlier group arising from orders in LPA Nos.1522/2004 and 1523/2004 and allied matters, where the Hon'ble Apex Court has issued Notice to the other side. While dismissing this appeal as per the law in exist today, it can only be stated that if the appellant is situated similarly to those who have preferred SLP before the Apex Court and if they ultimately succeed before the Apex Court to whatever extent, the benefit flowing from that order would also extend to the present appellant.”

(8) As submitted by Mr.Parikh, learned advocate for the petitioners, in order to see that right of the petitioners (the present petitioners being the legal heirs of the original petitioner) is not jeopardized and in the event if the Apex Court decides the matter pending before it in favour of the employees of the Gram Panchayat, interest of justice would be served if a similar directions are issued in case of the present petitioners also.

(9) It may also be further noted that though served no one appears on behalf of respondent No.1­Gram Panchayat and even after lapse of 20 years respondent No.2­State of Gujarat has not filed any affidavit and has not controverted the averments made in the petition. So far as the amount of gratuity is concerned, the petitioners have not brought on record any material to show that the husband of the original petitioner late Shri Gadakhan Amthakhan Pathan was working as Kotwal was entitled to such a payment and such payment has not been made by respondent No.1­Gram Panchayat. The prayer prayed for in so far as the gratuity is concerned, is mainly based on the averments in the petition, however, no such material is produced on record.

(10) Considering the above facts, therefore, the following directions are issued in the interest of justice:

(A) In case the Apex Court comes to the conclusion in similarly situated case that the employees of Gram Panchayat like husband of the original petitioner is entitled for pension and consequential family pension, it would be open for the petitioners to apply to the competent authority for the benefits flowing from that order as directed by this Court in case of State of Gujarat Vs. Ramanlal (supra);

(B) It would be open for the petitioners to file an appropriate application before respondent No.1­Gram Panchayat for amount of gratuity, if any, payable to the husband of the original petitioner i.e. late Shri Gadakhan Amthakhan Pathan and if such an application is made by the present petitioners as legal heirs of the original petitioner­Jenabibi widow of late Gadakhan Amthakhan Pathan latest by 17.02.2012 respondent No.1 i.e. Virochannagar Gram Panchayat is directed to consider such an application within a period of 01 (one) month from the date of receipt of the same and take appropriate decision on the same in accordance with law.

(11) In view of the aforesaid directions, the petition stands disposed of. Rule discharged. There shall be no order as to costs.

Sd/­ [ R.M.CHHAYA, J] B h a v e s h * ***