DHIRAJLAL MADHAVLAL BHARATI Vs. MUNICIPAL COMMISSIONER

JUDGEMENT

(1.) The case has a checkered history. The relief to which petitioner claims in this petition is to direct the respondent municipal corporation to fix the pension and gratuity of the petitioner as per Circular of the Pension & Gratuity of the Chief Accounts Department, Ahmedabad Municipal Corporation from 1/1/1988 and give him that amount within a period of two months from the date of receipt of writ of this Court and to pay all the due arrears with interest of 12% with effect from 1/1/1988 to the date of payment of those dues. This is the second time the petitioner has come before this Court for the same relief.

(2.) As it will presently be noticed the claim of the petitioner is founded on the premise that he has superannuated from the services on 31/12/1987 on completion of 30 years of service with pension and gratuity under the rules governing the retiral benefits of the employees of the corporation, but the same has not been paid to him on that basis. As a matter of fact, no pension has been paid to the petitioner. According to the case of the petitioner, he was first appointed on 15/7/1954 as tracer in the Estate Department of the respondent corporation from which post he was discharged on 9/2/1955 there being no post available. Again he was appointed on 26/6/1955 in the Estate Department as Tracer and worked thereon upto 18/2/1957 and by order dated 19/2/1957, he was appointed on deputation in the establishment of Town Planning. Since the petitioners appointment on deputation to the Town Planning Establishment with effect from 22/2/1957, the chronology of the petitioner's service graph has been detailed in the judgement of Supreme Court in petitioner's own case since reported in AIR 1991 SC 940 which has relevant bearing in the present case concerning his reversion from deputation to the parent department, namely establishment of the municipal corporation by order dated 30th September 1976 as Tracer which order the petitioner never complied with. Between the date of deputation to the town planning establishment and to the date of reversion to the establishment of the corporation by order dated 30/09/1976, the petitioner was once removed from service as a result of some private quarrel in 1964 which again was first approved by the Industrial Tribunal, but later on being remanded by this Court, the approval was withheld, consequently the order of termination passed in 1964 became abortive. Again, the petitioner was retrenched in 1967 and was given reappointment during the pendency of the proceedings concerning his removal from service in 1964 and as the petitioner continued in services as a result of the failure of termination order of 1964, the petitioner continued to be in service as on deputation until 30/09/1976 in the town planning department. The petitioner had been promoted to the post of junior drafts man in the town planning department while he was on deputation. On repatriation to the parent department, the petitioner was posted as he there was on original post from which he was sent on deputation. The petitioner challenged that action and claimed right to hold the post of junior draftsman in the corporation, the post to which he has been promoted in the town planning establishment. Having failed in appeal before the standing committee on 15/3/1977, the petitioner preferred a writ petition before this Court which was rejected firstly by learned Single Judge of this Court then also in Letters Patent Appeal on 24/7/1978. The petitioner carried the matter upto the Supreme Court. The petitioner had attained the age of superannuation during the pendency of appeal before the Supreme Court. The petitioner failed in appeal and the order dated 30th September 1976 repatriating the petitioner to the parent department, namely the establishment of the corporation as Tracer was upheld. While rejecting the appeal, the Supreme Court noticed the contention of the corporation consequence of which was not decided as under :-

(3.) Thus, the observations suggest that there being no dispute about the non-joining of the duties in pursuance of the order dated 30/9/76, which was operative through out the period, but consequence of which it will carry was not decided by the Supreme Court. Thus, the fact which even now remains undisputed that the petitioner was reverted to the post of tracer in his parent department by order dated 30/9/76 and he never joined in compliance thereof in his parent department. During this period, the petitioner sought permission of the Corporation to be enrolled as an Advocate at the Bar Council by his letter dated 18/2/1985 and 12/6/1985. The corporation by letter dated 4/3/1985 made it clear to the petitioner that if he treats himself as having ceased to be a municipal employee, he had the right to start practice as a lawyer. The same stand was repeated by the corporation vide letter dated 9/06/1985. The petitioner as a matter of fact got himself enrolled in June 1985 and since then, he is a practising member of the Bar.