UNA NAGAR PALIKAversusKALIBEN BALUBHAI MAKWANA & ANR.

752                     [2018] REPORTS
               SUPREME COURT   11 S.C.R. 752               [2018] 11 S.C.R.


A                           UNA NAGAR PALIKA
                                        v.
                KALIBEN BALUBHAI MAKWANA & ANR.
                         (Civil Appeal No. 5529 of 2016)
B                            SEPTEMBER 20, 2018
      [ABHAY MANOHAR SAPRE AND S. ABDUL NAZEER, JJ.]
             Service Law – Pension/Pensionary Benefits – Claim for –
      Denial of – When not proper – Respondents-employees of appellant-
      Municipality denied pension/pensionary benefits – Challenged by
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      respondents – Allowed by High Court – Held: High Court was right
      in holding that the question involved in the present appeals is
      covered by the earlier decision of the High Court rendered in
      Mohamed Irshad Husenbhai case, which was upheld by Supreme
      Court and has thus attained finality – Plea of appellant that there is
D     distinction between the two groups of employees, namely, one coming
      from the Panchayat and then becoming the Municipal employees
      and the other directly becoming the Municipal employees and that
      in Mohamed Irshad Husenbhai case, the employees who fell in the
      former category were held entitled for the grant of pension which
      is not the situation in the present case – Such plea is of no
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      significance because the appellant made the respondents members
      of the GPF contributions and deducted regular contribution from
      their salary till the date of their retirement – Thus, the distinction
      pointed out by the appellant for coming out of the clutches of the
      decision of Mohamed Irshad Husenbhai case was rightly found
F     untenable by the High Court – No case to interfere in the impugned
      order.
            Dismissing the appeals, the Court
            HELD: 1.1 The High Court was right in holding that the
      question involved in these appeals is covered by the earlier
G     decision of the Gujarat High Court rendered in Mohamed Irshad
      Husenbhai Baloch case, which was upheld by this Court by order
      dated 16.09.2013 and thus attained finality. [Para 19] [756-E]
           1.2 Distinction between the two groups of employees,
      namely, one coming from the Panchayat and then becoming the
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                                      752
 UNA NAGAR PALIKA v. KALIBEN BALUBHAI MAKWANA                        753


Municipal employees and the other directly becoming the              A
Municipal employees was held to be of no significance because
the appellant made the respondents as the members of the GPF
contributions and went on to deduct regular contribution from
their salary till the date of their retirement. The aforementioned
distinction pointed out by the appellant for coming out of the
                                                                     B
clutches of the decision of Mohamed Irshad Husenbhai Baloch
case was also rightly found untenable by the High Court by
assigning the proper reasons. Keeping in view the undisputed
facts arising in the case coupled with the decision rendered in
the Mohamed Irshad Husenbhai Baloch, which has attained finality,
and was then given effect to in relation to concerned Municipal      C
employees holding them eligible and entitled to claim the pension
and the pensionery benefits, no good ground is found to take any
other view than the one taken by the writ court and the Division
Bench in the impugned order. [Paras 23, 24, 25] [757-G-H; 758-
A-D]
                                                                     D
       1.3 The appellant is directed to finalize the pension cases
of the respondents and release the amount of pension after proper
verification within four months from the date of this order. [Para
30] [758-G]
     Chief Officers v. Mohmad Irshad Husenbhai Baloch &              E
     Ors. (2011) (1) GCD 569 (Guj) (D.B.) – approved.
                      Case Law Reference
(2011) (1) GCD 569 (Guj) (D.B.)       approved           Para 1
      CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5529            F
of 2016
      From the Judgment and Order dated 06.10.2015 of the High
Court of Gujarat at Ahmedabad in Letters Patent Appeal No. 1122 of
2015 in Special Civil Application No. 3699 of 2014.
                              WITH                                   G
     Civil Appeal Nos. 5530, 5531, 5532, 6490 of 2016.
      S. P. Hasurkar, Anshul Narayan, Bhargav Hasurkar, Prem
Prakash, Ms. Anushree Prashit Kapadia, Vinod Tiwari, Ms. Promila,
Advs. for the appearing parties.
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754             SUPREME COURT REPORTS                            [2018] 11 S.C.R.


A            The Judgment of the Court was delivered by
             ABHAY MANOHAR SAPRE, J. 1. These appeals are directed
      against the common final judgment and order dated 06.10.2015 passed
      by the High Court of Gujarat at Ahmedabad in Letters Patent Appeal
      No.1122 of 2015 in Special Civil Application No.3699 of 2014 with Letters
B     Patent Appeal No.1065 of 2015 in Special Civil Application No.30402 of
      2007 with Letters Patent Appeal No.1066 of 2015 in Special Civil
      Application No.4757 of 2012 with Letters Patent Appeal No.1067 of
      2015 in Special Civil Application No.6137 of 2012 and Letters Patent
      Appeal No.1124 of 2015 in Special Civil Application No.11100 of 2014
      whereby the Division Bench of the High Court disposed of the Letters
C     Patent Appeals filed by the appellant herein on the basis of the judgment
      rendered by the Division Bench of the High Court in the matter of Chief
      Officers vs. Mohmad Irshad Husenbhai Baloch & Ors. (2011 (1)
      GCD 569 (Guj) (D.B.).
            2. In order to appreciate the issues involved in these appeals, few
D     relevant facts need mention infra.
            3. The appellant herein was the respondent whereas the five
      contesting respondents herein were the petitioners in the special civil
      applications(petitions) filed before the High Court.

E            4. The appellant is the “Municipality” also called Nagar Palika for
      the place called “Una” in the State of Gujarat. The five contesting
      respondents, out of them four have expired and now represented by
      their legal representatives, were the employees of the appellant-
      Municipality. One of the respondents was appointed in the year 1990
      whereas others were appointed in 1996 and 1998.
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              5. On their attaining the age of superannuation in the appellant’s
      services on different dates, all the five respondents requested the appellant
      to settle their claims for payment of pension and pensionery benefits.
              6. The appellant declined to grant any pensionery benefits (pension)
      to all the five respondents stating that they were neither eligible and nor
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      entitled to claim the pension or/and any pensionery benefits from the
      appellant.
            7. This gave rise to filing of the special civil applications (petitions)
      by the respondents against the appellant in the High Court of Gujarat
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 UNA NAGAR PALIKA v. KALIBEN BALUBHAI MAKWANA                                   755
           [ABHAY MANOHAR SAPRE, J.]

being S.C.A. No. 3699 of 2014 and four others. The appellant as                 A
respondent contested the petitions.
       8. The Single Judge of the High Court by passing separate orders
on different dates allowed the petitions and held that the petitioners
(respondents herein) are eligible and thus entitled to claim pension and
pensionery benefits from the appellant being their employees and                B
accordingly issued a writ of mandamus against the appellant-Municipality
directing payment of pension to all the petitioners therein (respondents
herein) from the date of their retirement.
       9. The appellant (Municipality) felt aggrieved and filed intra court
appeals before the Division Bench in the High Court. By common                  C
impugned order, the Division Bench dismissed the appeals giving rise to
filing of these appeals by way of special leave in this Court by the Una
Nagar Palika(Municipality).
        10. It is apposite to mention that the very question, namely, whether
an employee of a Municipality is entitled to claim pension/pensionery           D
benefits from his employer-Municipality was the subject matter of one
litigation in Gujarat High Court. The leading judgment was passed by the
Division Bench in LPA No. 214/2011 entitled Chief Officer vs.
Mohamed Irshad Husenbhai Baloch and Others (supra) along with
other connected matters on 31.01.2013.
                                                                                E
       11. The Division Bench held that the employees are eligible and
thus entitled to claim the Pension/Pensionery benefits provided they render
qualifying service while in the employment of the Municipality in terms
of the Rules. The concerned Municipality felt aggrieved by the said
order and filed special leave to appeal (SLP Nos.15691 to 15700 of
2003) in this Court. It was, however, dismissed by this Court by order          F
dated 16.09.2013.
      12. The order was accordingly given effect to by sanctioning the
pension to those employees, who were parties in the said litigation.
       13. It is with this background, when the petitions out of which
                                                                                G
these appeals arise came up for hearing, the Single Judge (writ court)
essentially placed reliance on the decision of Chief Officer vs. Mohamed
Irshad Husenbhai Baloch and Others (supra) and allowed the petitions
finding no material distinction in the case at hand and in the case of

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756            SUPREME COURT REPORTS                          [2018] 11 S.C.R.


A     Chief Officer vs. Mohamed Irshad Husenbhai Baloch and Others
      (supra).
            14. When the matter came up in appeals, the Division Bench also
      placed reliance on the view taken in Chief Officer vs. Mohamed Irshad
      Husenbhai Baloch and Others (supra) and dismissed the appeals.
B            15. The writ court and the Division Bench were of the view that
      the issue in question has attained finality by the decision rendered in the
      case of Chief Officer vs. Mohamed Irshad Husenbhai Baloch and
      Others (supra) and affirmed by the order of this Court dated 16.09.2012.
            16. It is with this background facts, the question arises for
C     consideration in this appeal is whether the view taken by the writ court
      and the Appellate Court requires any interference.
           17. Heard Mr. S.P. Hasurkar, learned counsel for the appellant
      and Ms. Anushree Prashit Kapadia, learned counsel for the respondents.

D            18. Having heard the learned counsel for the parties and on perusal
      of the record of the case, we find no case to interfere in the impugned
      order.
              19. In our considered opinion, the High Court was right in holding
      that the question involved in these appeals is covered by the earlier
      decision of the Gujarat High Court rendered in the case of Chief Officer
E
      vs. Mohamed Irshad Husenbhai Baloch and Others (supra) which
      was upheld by this Court by order dated 16.09.2013 and thus attained
      finality.
             20. We find that in order to show that the decision rendered in the
      case of Chief Officer vs. Mohamed Irshad Husenbhai Baloch and
F
      Others (supra) has no application to the facts of the case and that it
      does not lay down the correct principle and be held as per curium, the
      appellant (Municipality) made attempts and contended before the Division
      Bench that there lies a distinction between the employees, who were
      originally working with the Panchayat and later on convergence of
G     Panchayat into the Municipality became the employees of the Municipality
      by virtue of its merger and the employees, who were directly appointed
      by the Municipality.
            21. It was contended that the employees, who fall in former
      category of case, were held entitled for the grant of pension but not
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 UNA NAGAR PALIKA v. KALIBEN BALUBHAI MAKWANA                                 757
           [ABHAY MANOHAR SAPRE, J.]

those employees, who fall in the latter category of the case. It was          A
pointed out that since the employees in the case of Chief Officer vs.
Mohamed Irshad Husenbhai Baloch and Others (supra) fell in the
former category of the case and, therefore, they were held entitled to
claim the benefit of pension whereas the respondents of this case fall in
the latter category of cases, the benefit of decision rendered in the case
                                                                              B
of Chief Officer vs. Mohamed Irshad Husenbhai Baloch and Others
(supra) could not be granted to the respondents because they were
appointed directly by the appellant (Municipality).
      22. The Division Bench while repelling the aforementioned
submission took note of the following four undisputed facts arising in this
case:                                                                         C

      “1. The original petitioners-respondent No.1 herein in the
      respective appeals were appointed by the municipality and
      they were in service of the municipality.
      2. After the appointment, the employee concerned                        D
      continued in service until he reached to the age of
      superannuation, so far as LPA No.1066/15 is concerned.
      Whereas, in the rest of the Letters Patent Appeals, the
      services of the employees concerned came to an end on
      account of death of the employees.
                                                                              E
      3. It is an undisputed position that the total length of service
      in respect of all cases has exceeded 10 years which is the
      minimum requirement for eligibility of pension.
      4. In respect of all employees, which is subject matter of
      the present group of appeals, they were member of GPF                   F
      and GPF contributions were being deducted by the
      municipality from their salary from time to time until their
      services came to an end.”
       23. The Division Bench was of the view and, in our view, rightly
that the distinction sought to be made between the two groups of
                                                                              G
employees, namely, one coming from the Panchayat and then becoming
the Municipal employees and the other directly becoming the Municipal
employees was held to be of no significance because the appellant made
the respondents members of the GPF contributions and went on to deduct
regular contribution from their salary till the date of their retirement.
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758             SUPREME COURT REPORTS                           [2018] 11 S.C.R.


A            24. In our view, the case at hand is covered by the earlier decision
      rendered in the case of Chief Officer vs. Mohamed Irshad Husenbhai
      Baloch and Others (supra) which stands upheld by this Court by order
      dated 16.09.2013. We are also of the view that the aforementioned
      distinction pointed out by the appellant for coming out of the clutches of
      the decision of Chief Officer vs. Mohamed Irshad Husenbhai Baloch
B
      and Others (supra) was also rightly found untenable by the High Court
      by assigning the proper reasons.
             25. Keeping in view the aforementioned four undisputed facts
      arising in the case coupled with the decision rendered in the case of
      Chief Officer vs. Mohamed Irshad Husenbhai Baloch and Others
C     (supra), which has attained finality, and was then given effect to in relation
      to concerned Municipal employees holding them eligible and entitled to
      claim the pension and the pensionery benefits, we find no good ground
      to take any other view than the one taken by the writ court and the
      Division Bench in the impugned order.
D           26. Learned counsel for the appellant (Municipality), however,
      placed reliance on one State Government’s Circular dated 28.11.1994
      (Annexure P-1) and contended that in the light of this circular, the
      respondents are neither eligible and nor entitled to claim the benefit of
      pension. We find no merit in this submission.
E            27. Firstly, we find that it was not filed before the High Court
      (writ court/Division Bench); Secondly, the writ court and the Division
      Bench did not refer it to; Thirdly, in any event, it is of no significance to
      decide the present controversy.
           28. Its perusal shows that it applies to the cases of Panchayat
F     employees, who later became the Municipal employees.
             29. In the light of the foregoing discussion, we find no merit in
      these appeals. The appeals thus fail and are accordingly dismissed.
            30. The appellant (Municipality) is directed to finalize the pension
      cases of the respondents herein and release the amount of pension after
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      proper verification within four months from the date of this order.


      Divya Pandey                                                  Appeals dismissed.


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