LALJIBHAI KUVARJIBHAI PATEL Vs. STATE OF GUJARAT

JUDGEMENT

(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 The said petition was withdrawn by the original petitioners.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 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.