MORBI NAGAR PALIKA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THIS Appeal has been directed against the judgment and order dated 28.9.2011 passed by the learned Single Judge in Special Civil Application No. 37 of 2011. By consent of the parties, this appeal has been taken up for final hearing at the admission stage.

(2.) BRIEF facts of the case are that respondent No.3- original petitioner initially joined the service of the appellant Municipality from 29.9.1979 as work charge and on 1.4.1980 he was appointed as a mechanic on permanent basis. Respondent No.3 retired on 31.12.2004. It is not in dispute that Morbi Nagar Palika has framed pension rules which provide rules of pension scheme. Those Rules provided that pension rules framed as above adopted BCSR Chapter 11, modified and revised from time to time by the State Government shall be applied to the full time and permanent employees of Morbi Nagar Palika. Thus, the service condition of the respondent No.3 being a permanent employee with the Nagar Palika was governed as per the prevalent rules and qualifying services rendered with the Nagar Palika entitled the respondent No.3 to claim pension under the above Rules. On the basis of the Rules, employees of the appellant were permitted to submit their option form. Respondent No.3 had also opted for pension scheme. Later on on 1.2.2006 he submitted an undertaking on stamp paper of Rs.50.00 that he did not want to continue with the pension scheme and that he wanted to join Contributory Provident Fund Scheme (for short, 'CPF'). Thus benefits of CPF scheme was granted to respondent No.3. After a period of six years from the date of his retirement, he got a notice issued through his Advocate calling upon the appellant and the Director of Municipalities to release the amount of pension. The appellant informed the respondent No.3 in writing that once he has relinquished his right in respect of pension scheme, he could not opt for pension again. Consequently, respondent No.3 preferred Special Civil Application No.37/2011 before this court seeking direction for release of pension and other benefits. After hearing the parties, the learned Single Judge allowed the Special Civil Application filed by the respondent No.3 as aforesaid. The said judgment of the learned Single Judge is under challenge by the appellant.

(3.) LEARNED counsel for respondent No.3 submitted that denial of pensionary benefits to superannuated and permanent employee is contrary to Articles 14, 16 and 21 of the Constitution of India inasmuch as the employees similarly situated and serving with the appellant who approached this court and order passed by the coordinate Bench and carried in LPA before Division Bench of this court and Special Leave Petition filed in the Apex Court which came to be dismissed and the benefits conferred upon the employees for pensionary benefits attained its finality. He submitted that the respondent is ready and willing to undertake to deposit the entire CPF amount with 6% interest per annum in terms of the order dated 16.9.2011 passed in SLP No.14890/2011 and in terms of the directions given in the orders passed by the Division Bench of this court in LPA No. 3090/2010. He, therefore, submitted that the LPA be dismissed.