NEUTRAL CITATION
C/LPA/934/2023 ORDER DATED: 24/08/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 934 of 2023
In R/SPECIAL CIVIL APPLICATION NO. 3153 of 2022
With
CIVIL APPLICATION (FOR STAY) NO. 2 of 2023
In R/LETTERS PATENT APPEAL NO. 934 of 2023
With
R/LETTERS PATENT APPEAL NO. 939 of 2023
In
SPECIAL CIVIL APPLICATION NO. 3202 of 2022
With
CIVIL APPLICATION (FOR STAY) NO. 2 of 2023
In R/LETTERS PATENT APPEAL NO. 939 of 2023
In
SPECIAL CIVIL APPLICATION NO. 3202 of 2022
With
R/LETTERS PATENT APPEAL NO. 940 of 2023
In
SPECIAL CIVIL APPLICATION NO. 2972 of 2022
With
CIVIL APPLICATION (FOR STAY) NO. 2 of 2023
In R/LETTERS PATENT APPEAL NO. 940 of 2023
In
SPECIAL CIVIL APPLICATION NO. 2972 of 2022
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GUJARAT WATER SUPPLY AND SEWERAGE BOARD
Versus
HANSABEN PRAMODBHAI PATEL
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Appearance:
MR. HARDEEP L MAHIDA(7112) for the Appellant(s) No. 1,2,3
MR. MANAN MEHTA, ASSISTANT GOVERNMENT PLEADER/PP for the
Respondent(s) No. 2
MS ASHLESHA M PATEL(6127) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIA
and
HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 24/08/2023
COMMON ORAL ORDER
(PER : HONOURABLE MR. JUSTICE N.V.ANJARIA) All the three Letters Patent Appeal arise out of common judgment and order dated 28.4.2022 of learned single Judge delivered in Special Page 1 of 8 Downloaded on : Sun Sep 17 02:19:55 IST 2023 NEUTRAL CITATION C/LPA/934/2023 ORDER DATED: 24/08/2023 undefined Civil Application No. 3153 of 2022, Special Civil Application No. 3202 of 2022 and Special Civil Application No.2972 of 2022 respectively.
1.1 Learned single Judge in para 5 of the common judgment and order, passed the following operative directions, "...The communications annexed to the petitions dated [1] 29.10.2021 & 30.10.2021 of Special Civil Application No.2972 of 2022, [2] 20.3.2021 of Special Civil Application No.3153 of 2022 & [3] 24.8.2021 and 2.9.2021 of Special Civil Application No.3202 of 2022 are hereby quashed and set aside. Thereby, the petitioners are entitled to be extended the benefits of the Government Resolution dated 05.07.2011 and 07.04.2016 and the respondents are directed to consider the case of the petitioners for grant of lump-sum compensation on the basis of the pro rata services rendered by the deceased employees whom the petitioners represent under the Government Resolutions dated 05.07.2011 and 07.04.2016."
2. Heard learned advocate Mr. Hardeep Mahida for the appellant-Board, learned Assistant Government Pleader Mr. Manan Mehta for the respondent State and learned advocate Ms. Ashlesha Patel for the private respondent.
3. The issue that arises in all these Letters Patent Appeals is whether the kith and kin of a daily-rated employee, who is granted the benefits including permanency benefit under Resolution dated 17.10.1988, could seek entitlement to get the benefit of scheme for payment of lumpsum compensation as per the government Resolution dated 5.7.2011 and whether the benefit under the said scheme in Resolution dated 5.7.2011 could be denied to the eligible kith and kin of the deceased employee only on the ground that the deceased employee was a daily-rated employee.
Page 2 of 8 Downloaded on : Sun Sep 17 02:19:55 IST 2023 NEUTRAL CITATION C/LPA/934/2023 ORDER DATED: 24/08/2023 undefined 3.1 This question has been dealt with by a recent decision delivered by
the Division Bench of this Court in State of Gujarat vs. Chhanaji Bhagaji Makwana (Deceased) through Legal Heir Punjiben Chhanaji Makwana, which was Letters Patent Appeal No. 1073 of 2023 decided on 10.08.2023.
3.2 The following was observed and held in the decision, which reasoning would apply and govern the present case also, "6. Learned Assistant Government Pleader however harped on the aspect that the benefit of lumpsum compassionate compensation under the Resolution dated 05.07.2011 would not be payable to the petitioner's heirs inasmuch as the said policy would not apply to the daily rated employees, but would be available to only those employees regularly employed. It was submitted that even if the deceased employee would draw the benefit on the basis of the length of services rendered under the Resolution dated 17.10.1988, the scheme of compassionate appointment and lumpsum compensation in lieu of appointment as envisaged in Resolution dated 05.07.2011 could not be applied for the simple reason that the employee was a daily rated employee and despite governed by Resolution dated 17.10.1988, he would not loose the status of daily rated employee.
6.1 In order to advance the contention that the kith and kin of daily rated employees, seeking application of scheme of compassionate appointment, and therefore also the Resolution dated 05.07.2011 providing for lumpsum compensation, would not be governed thereunder, learned Assistant Government Pleader wanted to press into service the decision of this Court in Javeed A Surangi vs. State of Gujarat, which was Special Civil Application No. 12270 of 2013, decided on 30.08.2016. The petitioner therein claimed the benefit of grant of appointment on compassionate basis upon death of father, who was Class-IV daily wager Watchman on the ground that the deceased employee had put in 32 years of service and in view of the provisions of the Resolution dated 17.10.1988, the services was liable to be regularised to be treated for permanency benefit.
6.2 The Court in paragraph 5.1 observed, "A daily wager receiving benefits under the Resolution dated Page 3 of 8 Downloaded on : Sun Sep 17 02:19:55 IST 2023 NEUTRAL CITATION C/LPA/934/2023 ORDER DATED: 24/08/2023 undefined 17th October, 1988 does not stand on same pedestal with a permanent employee who is permanent because he was appointed in regular way upon regular selection process. Therefore, though the daily wagers would receive benefits of permanency in form of pay-scales and perks, they do not form a same class as 'permanent employees' or 'regular employees'. A daily wager though getting benefits under the Resolution of 17th October, 1988, he is not regular or permanent employee per se. His original or inherent character and status remain unchanged, but benefits of pay, perks, etc., are secured. They stand as valid classification operating for respective different purposes."
6.3 According to the view taken, the Resolution dated 17.10.1988 operated to grant benefit of pay-scale and other service perks and the purpose was limited to conferment of such benefits and could not have any further import. It was observed in paragraph 5.2 thus, "5.2 In any view, even if for such purposes, the daily-rated employees are deemed to be viewed as 'regular' or given 'regularisation', the said concept is limited for applying and operating the Resolution in question. It cannot extend to seek benefits under the other benefit-oriented schemes when the scheme of compassionate appointment provides that the same applies to permanent employees only and not to ad-hoc or daily- waged employees."
6.4 Similar view was taken in another decision in Dharmeshgiri Balvantgiri Goswami Vs. State Of Gujarat in Special Civil Application No. 14126 of 2017 as well as in Suresh Maganbhai Chavda vs. State of Guajrat passed in Special Civil Application No. 14834 of 2010, which were also the decisions of learned Single Judges.
7. The issue whether the compassionate appointment/lumpsum compensation scheme could be extended in the cases of daily rated workmen securing benefits under the Resolution dated 17.10.1988 came up for consideration before the Court in Fatmabai Abdul Sumra vs. State of Gujarat, which were Special Civil Application No. 11554 of 2021 and another decided on 14.02.2022 and again in Gauriben Hargovinbhai Vaghela vs. Secretary, Narmada and Water Resources Department in Special Civil Application No. 2884 of 2022, decided on 20.04.2022.
7.1 In those cases, learned Single Judge held otherwise. It was noticed that the decision in Javeed A Surangi (supra), in Suresh Page 4 of 8 Downloaded on : Sun Sep 17 02:19:55 IST 2023 NEUTRAL CITATION C/LPA/934/2023 ORDER DATED: 24/08/2023 undefined Maganbhai Chavda (supra) and Dharmeshgiri Balvantgiri Goswami (supra) taking the view that benefit of compassionate scheme would not be available to the daily rated workmen was without noticing the binding observations of the Division Bench in State of Gujarat v. Mahendrakumar Bhagvandas [2011 (2) GLR 1290]. The view was taken by the Division Bench is inter alia that there was no concept such as permanent daily wager and it was strange in service jurisprudence to bring out the nomenclature or concept of permanent daily wager.
7.2 In Mahendrakumar Bhagvandas (supra), the Division Bench stated thus, "5. ...Once the employees concerned were, in fact, treated for all purposes as permanent employees in terms of G.R. dated 17.10.1988, any discrimination or denial of benefits for a segment of such employees, who were subsequently rebranded as "daily wager" (rojamdar) by G.R. dated 18.7.1994, could not be rationally explained and could not be countenanced in the face of Articles 14 and 16 of the Constitution. Nor can the State Government legally take away the rights conferred and benefits, already accorded to the employees concerned by or under a subsequent government resolution, which expressly supersedes earlier instructions and not earlier G.R. dated 17.10.1988 by which the benefits were accorded to the employees. It also sounds absurd and baseless that employee employed on daily wage basis for 15 years would be made permanent under G.R. dated 17.10.1988 but subsequently rebranded and treated as a daily wager. The submission of learned AGP that such employees had to continue as daily wage employee, with limited benefits in terms of subsequent G.R. dated 18.7.1994 and that they were at best "permanent daily wage employees", is contradictory and has no backing of any legal provision or precedent. Therefore, there is no reason to interfere with the impugned common judgment except for the clarification made hereunder."
7.3 The Division Bench of this Court in State of Gujarat vs. Nathabhai Ghemarbhai Parmar, which was Letters Patent Appeal No. 1234 of 2017, decided on 04.08.2017 observed thus in paragraph 8, in which also, the decision in Mahendrakumar Bhagvandas (supra) was relied on, "8. In this case, it is not in dispute that late father of the respondent herein was initially appointed as a daily wager and thereafter, his services were regularized vide order dated Page 5 of 8 Downloaded on : Sun Sep 17 02:19:55 IST 2023 NEUTRAL CITATION C/LPA/934/2023 ORDER DATED: 24/08/2023 undefined 28.03.2008. A copy of such order is also placed on record. As per the terms of the said order, it is made clear that late father of the respondent herein would be entitled to the benefits of regular employees including retiral benefits, seniority, etc.......Further, we have also perused the Government Resolution dated 5.7.2011. While it is true that para 3 clause 2 of the Government Resolution dated 5.7.2011 states that such scheme of paying compensation amount is applicable to the employees, who are regularly recruited persons, but there is a specific clause which excludes applicability of the scheme to the category of persons namely, daily wager, casual worker, apprentice, adhoc, contract or reemployment."
7.3.1 It was further observed and held in same paragraph, "If both the clauses are conjointly read, it is clear that this scheme is to be extended to all the persons, who are on regular services on the date of death of the deceased employee. As the scheme itself is a beneficial scheme for the employees, who die in harness, the respondent herein cannot be denied the same on the ground that late father of the respondent was initially recruited as a daily wager."
7.4 Therefore, there stands a binding proposition of law that a daily rated workman who is extended the benefit of Resolution dated 17.10.1988 to be considered for permanency benefit on the basis of length of service would derive all attendant benefits and benefits including of the scheme of compassionate appointment. The original status of the daily rated workman would not be an impediment or debilitating factor for the kith and kin of the deceased to claim the benefit of the scheme of compassionate appointment/compassionate lumpsum payment, provided their case falls within the corners of the scheme.
8. Learned Single Judge in the impugned judgment and order has rightly taken a view that the petitioner, who was the heir of the deceased daily rated workman would be entitled to be considered for the benefit under the Resolution dated 05.07.2011 for compassionate lumpsum payment even if they were the successor of the deceased daily wager. Learned Single Judge was justified in relying on the decision in Gauriben Hargovinbhai Vaghela (supra) to allow the petition.
3.3 The final directions given in Chhanaji Bhagaji Makwana (supra) Page 6 of 8 Downloaded on : Sun Sep 17 02:19:55 IST 2023 NEUTRAL CITATION C/LPA/934/2023 ORDER DATED: 24/08/2023 undefined were as under,
"8.1 It is therefore directed that the case of the petitioner shall be examined for the purpose of extending the benefit of Resolution dated 05.07.2011 and the petitioner shall be considered for lumpsum compensation under the said scheme provided the petitioner fulfills the conditions of the scheme to fall within the bounds of the scheme and that his claim shall not be rejected on the ground that the deceased employee was a daily wager."
4. Learned advocates for the respondents were not in a position to dispute the position of law emanating from the above decision holding the field.
5. In the above view, the present appeals are required to be disposed of in the same lines.
5.1 The extension of said policy shall not be denied to the petitioners and their claim shall not be rejected on the ground that the deceased employee was a daily wager.
6. While learned single Judge is right in holding that the petitioner would be entitled to be governed by the scheme under Resolution dated 5.7.2011 and 7.4.2016 for the purpose of grant of lumpsum compensation, learned single Judge could not have directed to grant such benefits. The benefit of scheme could be granted provided the person falls within the bounds of the scheme.
6.1 The above directions, which are absolute in nature, are therefore modified by holding and observing that the petitioners will be entitled to claim extension of policy for compassionate lumpsum payment under the Resolution dated 5.7.2011 and other attendant resolutions to get their Page 7 of 8 Downloaded on : Sun Sep 17 02:19:55 IST 2023 NEUTRAL CITATION C/LPA/934/2023 ORDER DATED: 24/08/2023 undefined cases considered thereunder. It is, however, open to the respondents to examine the case of the each of the petitioners as to whether they satisfy other conditions of the policy and their cases fall within the four corners of the policy.
7. All the appeals are dismissed subject to the above directions observations .
Civil Application for stay, in each of the Appeals, will not survive in view of order of dismissal, as above.
(N.V.ANJARIA, J) (D. M. DESAI,J) C.M. JOSHI Page 8 of 8 Downloaded on : Sun Sep 17 02:19:55 IST 2023