RAJENDRAKUMAR CHIMANLAL SEVAK SINCE DECEASED THROUGH LEGAL HEIR AND SUCCESSOR Vs. STATE OF GUJARAT THROUGH SECRETARY & 4

JUDGEMENT

(1.) Heard learned advocate Mr. Nirav R. Mishra for the petitioner, learned advocate Mr. Nisarg Shah for Mr. Murali N. Devnani, learned counsel for respondent No.4 and learned Assistant Government Pleader Ms. Amita Shah for respondent Nos. 1, 2, 3 and 5. Perused the record.

(2.) Though total pleadings runs into almost 300 pages and though scrutiny of entire record would result into a decision for taking some action against some officers of all the respondents either Municipality or the State, considering the fact that original petitioner has already expired long back and that at present, his widow is waiting for pension, I am restraining myself from observing anything against any such officer because in that case, as it is settled legal position, I have to issue show cause notice to some of them and till then if widow of the original petitioner has to wait for pension, it would result into further injustice to her, more particularly, now, when such issue is well settled pursuant to the judgment by Honourable the Supreme Court in the case of Harijan Paniben Dudabhai Vs. State of Gujarat & Ors., Civil Appeal No.5441 of 2016, decided on 1st July, 2016 wherein while allowing all the appeals, the Honourable Supreme Court has categorically observed that if there is no evidence on record indicating that any prevalent procedure was allegedly infracted or any reason as to why appointment of the employee could be termed as illegal or invalid and, more particularly, when all through his services till the employee retired he was paid all the benefits and salary like any other employee, such employee could not be denied the pensionary benefits and gratuity. Thereby, Honourable Supreme Court has confirmed the view expressed by Division Bench of this High Court in the case of Chief Officer Vs. Mohmad Irshad Husenbhai Baloch & Ors. 2011 (I) GCD 569 wherein Division Bench has observed that if at any point of time, neither the Municipality nor the Government has ever refunded the amount of contribution by the employee or they have intimated to the employees concerned about their mistake or otherwise regarding appointment or services of the employee; after completion of his service, if a plea of absence of approval of posting is entertained or accepted, it would result into allowing the atrocious treatment to be applied by the Municipality or the Government or itself officers, which would be invalid under Art. 14 of the Constitution of India.

(3.) Therefore, after hearing learned advocates, now, it becomes clear that pursuant to judgment in the case of Mohmad Irshad Husenbhai Baloch (Supra), which is approved by the Honourable Supreme Court in the case of Harijan Paniben Dudabhai (Supra) so also the recent judgment relying upon above two judgments being judgment and order dated 11.4.2016 in Special Civil Application No.13333 of 2014 between Bhagwanji Vashrambhai Javia Vs. State of Gujarat and judgment and order dated 5.8.2016 in Special Civil Application No.7684 of 2002 between Chandubhai Chhotabhai Patel, now the issue is well settled, whereby it becomes clear that though in some other cases, matter has been referred to the Director of Municipalities to take necessary steps for all such cases, the fact remains that only because of absence or non availability of proper sanction of selecting or posting an employee like present petitioner, after completion of his services qualifying pensionary benefits, the authority like respondent cannot deny the pensionary benefits in absence of their disclosure about any irregularity or illegality at the relevant time and more particularly in absence of any evidence whatsoever to prove and confirm that the appointment of the employee like present petitioner was illegal or irregular.