Bansilal Bhikhabhai Rana vs State Of Gujarat

Gujarat High Court

Bansilal Bhikhabhai Rana vs State Of Gujarat on 8 December, 2023

Author: Nikhil S. Kariel

Bench: Nikhil S. Kariel

                                                                               NEUTRAL CITATION




     C/SCA/1123/2022                            ORDER DATED: 08/12/2023

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           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 1123 of 2022

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                       BANSILAL BHIKHABHAI RANA
                                 Versus
                          STATE OF GUJARAT
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Appearance:
MR MURALI N DEVNANI(1863) for the Petitioner(s) No. 1
MR HS MUNSHAW(495) for the Respondent(s) No. 3,4
MR ADITYA PATHAK, AGP for the Respondent(s) No. 1,2,5,6
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 CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL

                            Date : 08/12/2023

                             ORAL ORDER

1. Heard learned advocate Mr.Krishnan Ghavariya for learned advocate Mr.Murli Devnani on behalf of the petitioner and learned Assistant Government Pleader Mr.Aditya Pathak on behalf of respondent - State and learned advocate Mr.H.S.Munshaw on behalf of respondent nos.3 and 4.

2. Considering the submissions made by learned advocates for the respective parties, while it would appear that the petitioner has approached this Court inter alia requesting grant of pension and other retiral benefits, at the same time, it would appear that the facts being slightly chequered require to be stated.

NEUTRAL CITATION C/SCA/1123/2022 ORDER DATED: 08/12/2023 undefined 2.1. It appears that the petitioner had been appointed on temporary/ad hoc and daily wage based on 03.01.1985 with the respondent no.3 herein and continued as such till he was placed with the respondent no.4 w.e.f. 16.10.1992. The petitioner has continuously worked as a daily wager watchman with the respondent no.3 from 16.10.1992 till the date of his retirement i.e. on 31.05.2019.

2.2. In the interregnum, it appears that the petitioner had approached this Court by preferring a writ petition inter alia requesting that the petitioner be regularized in service. In the said writ petition being Special Civil Application No.1986/2004, a learned Coordinate Bench of this Court vide decision dated 24.08.2005 had inter alia directed the respondents to consider the case of the petitioner which the petitioner would submit through a representation. It appears that the petitioner having submitted a representation, the respondent no.3 had rejected the same vide an order dated 12.12.2005. It appears that the petitioner has not challenged the same before any court of law and whereas, the present petition is filed approximately two years after the retirement of the petitioner in the year 2019.

NEUTRAL CITATION C/SCA/1123/2022 ORDER DATED: 08/12/2023 undefined 2.3. While it is attempted to be submitted that the since petitioner did not challenge the order of the year 2005 whereby his request has been rejected, but, in the peculiar facts of this case more particularly having regard to the fact that the petitioner was a daily rated employee and whereas to expect such a petitioner to approach the High Court repeatedly, would be too tall an ask and further considering the fact that the law with regard to the benefits as available to an employee who was originally appointed on daily wages, more particularly the law in light of Government Resolution dated 17.10.1988 constantly evolving and being explained in judgments which are later than 2005, therefore, this Court deems it appropriate not to countenance the said submission.

3. As such, it appears that the fact of the petitioner having worked from 1985 to 1992 with the respondent no.3 and from 1992 to 2019 with the respondent no.4 though as a daily rated employee, is undisputed. It also requires to be noted that as far as respondent no.3 is concerned, it is attempted to be submitted that the District Rural Development Agency is registered under the provisions of the Societies as well as the Gujarat Public Trusts Act and it is engaged in implementing Page 3 of 10 Downloaded on : Fri Dec 08 20:49:16 IST 2023 NEUTRAL CITATION C/SCA/1123/2022 ORDER DATED: 08/12/2023 undefined various scheme and projects of the Government of India and Government of Gujarat and whereas, it is also attempted to be disputed that the said respondent would be covered under the Government Resolution dated 17.10.1988.

3.1. As against the same, learned advocate for the petitioner would submit that without going into the said dispute, the petitioner would restrict his claim for the period between 1992 to 2019 when he had worked with the respondent no.4 herein.

4. Having regard to such circumstance, at this stage, this Court seeks to refer to observations made in recent decision of this Court in case of Babuji Becharji Thakarda vs. State of Gujarat in Special Civil Application No.16281/2022 and allied matters on 06.11.2023. Paragraph nos.3, 4, 5, 6, 7, 8 and 9 being relevant for the present purpose, are reproduced hereinbelow for benefit:-

"3. It is the submissions of the learned Advocate Ms.Bhatt on behalf of the petitioners that though they have put in a number of years with respondents, having worked for decades, where they have put in more than 240 days in each year, yet the petitioners are required to approach this Court for grant of benefits concerned. In the considered opinion of this Court, the grievance of the present petitioners could be assuaged at this stage, more particularly by Page 4 of 10 Downloaded on : Fri Dec 08 20:49:16 IST 2023 NEUTRAL CITATION C/SCA/1123/2022 ORDER DATED: 08/12/2023 undefined directing the respondents to take an appropriate decision on a representation that would be preferred by the present petitioners. Before issuing such directions, it would be apposite to refer to certain decisions of the Hon'ble Apex Court as well as of this Court, more particularly whereby the scope and ambit of G.R. dated 17.1988 has been explained by the Courts concerned. The Hon'ble Apex Court, in case of State of Gujarat Vs. PWD and Forest and Employees' Union, reported in (2019) 15 SCC 248, at paragraph 14, has observed as thus:-

"14.Having regard to the above, we are confining our discussion to the aforesaid exceptions taken by the appellant. In the first instance, it is pointed out by the appellant that even if the respondents become permanent, they would be entitled to be fitted in the job description in terms of the Rules. What is (arising out of SLP (C) No. 43592 of 2018) & Anr. emphasised is that even after regularisation, their pay scales cannot be more than the pay which is given to the employees who are taken on permanent basis.

This appears to be a very sound argument. The only plea was that whatever is given to such employees in other departments, same benefit be extended to the respondents as well. It is difficult to countenance this submission which we find to be legally impermissible. That is hardly any justifiable response to rebut the same. It is to be kept in mind that members of respondent union were all engaged on daily wage basis. No doubt, the appellant Government decided to confer certain benefits upon these daily wage workers depending upon the number of years of service they put in. Judgment dated July 09, 2013 proceeds on that basis. Under certain circumstances, namely, on completion of specified number of years of service on daily wage basis, these daily wage workers are entitled to become permanent. On attaining the status of permanency/regular employees, they become at par with those employees who were Page 5 of 10 Downloaded on : Fri Dec 08 20:49:16 IST 2023 NEUTRAL CITATION C/SCA/1123/2022 ORDER DATED: 08/12/2023 undefined appointed on permanent basis from beginning, after undergoing the proper selection procedure on proving their merit. These daily wagers cannot be given the pay scales which are even better than the pay scales given to regularly appointed employees. The Rules are statutory in nature (arising out of SLP (C) No. 43592 of 2018) & Anr. which have been framed in exercise of powers conferred by the proviso to Article 309 of the Constitution. On becoming permanent, such daily wagers can, at the most, claim that they be fitted in the job descriptions in terms of the said pay rules and their pay be fixed accordingly. The appellant is ready to do that. We, therefore, accept the plea mentioned in exception (i) above.

4. From the above quoted paragraph, it would clearly appear that the Hon'ble Apex Court had inter alia clarified that upon an employee, who had originally been appointed on daily-wages, completing a specific number of years, more particularly the same being in consonance with Section 25B of Industrial Disputes Act, then the employee is entitled to be granted benefits of permanency. The Hon'ble Apex Court has also further inter alia observed that upon attaining the status of permanency the employee, who was born in the department as daily- wager is entitled to be treated at part with employees, who have been appointed on regular/permanent basis by way of direct selection.

5. In case of State of Gujarat and Anr. Vs. Mahendrakumar Bhagvandas & Another, reported in 2011(2) GLR 1290 the Division Bench of this Court had stated the very position as stated by the Hon'ble Apex Court as noted herein above and whereas the Division Bench had also observed that the employees, upon being granted the benefits of permanency are also entitled to be granted the benefits of pension, higher pay scale, etc.

6. In case of Executive Engineer Panchayat (MAA & M) Department and Another Vs. Page 6 of 10 Downloaded on : Fri Dec 08 20:49:16 IST 2023 NEUTRAL CITATION C/SCA/1123/2022 ORDER DATED: 08/12/2023 undefined Samudabhai Jyotibhai Bhedi & Ors., reported in 2017(4) GLR 2952, Division Bench of this Court had taken the view that upon completion of a certain number of years, while the employees concerned would be entitled to claim permanency and whereas the period of service put in by the employees concerned on the date when they were treated as permanent employees was to be treated as continuous service for deciding pension as available to the petitioners.

7. It would also be pertinent to mention here that in a proceeding before the Hon'ble Apex Court i.e. in SLP No.7229 of 2022, the State has accepted its liability of paying leave encashment of 300 days to the employees, who have been granted permanency under G.R. dated 17.10.1988.

8. In case of Workmen of American Express International Banking Corporation Vs. Management of American Express International Banking Corporation, reported in (1985) 4 SCC 71, the Hon'ble Apex Court has inter alia laid down that while computing the period of service rendered by an employee under Section 25 of ID Act, Sundays and Public Holidays also to be added. The said decision though not expressly as regards the scope and ambit of G. R. dated 17.10.1988, yet the law laid down is to be followed while computing the number of days having put in by an employee while considering his case for grant of benefits under the said Government Resolution.

9. In the opinion of this Court, these are but few landmark decisions of the Hon'ble Apex Court as well as this Court on the issue of G.R. dated 17.10.1988 and whereas it would appear, as of now, that except for four benefits namely ; (a) public holiday, (b) transport allowance, (c) medical allowance, and (d) group allowances, which issue is pending consideration of the Hon'ble Apex Court in SLP No.4827 of 2023, an employee, who has been made permanent as per the terms of G.R. dated 17.10.1988 Page 7 of 10 Downloaded on : Fri Dec 08 20:49:16 IST 2023 NEUTRAL CITATION C/SCA/1123/2022 ORDER DATED: 08/12/2023 undefined would be entitled to all other benefits as would be entitled to a regularly appointed employee."

5. Considering the scope and ambit of Government Resolution dated 17.10.1988 which has been explained as hereinabove, it would prima facie appear that the petitioner who has worked for a substantially long period with the respondents, may be entitled to the benefit of permanency and consequentially, upon being made a permanent employee, he would also be entitled to claim all such benefits as a permanent employee would be entitled to. The issue of whether the applicant fulfills the requirements or not, is required to be examined by the concerned authority and whereas thereafter, appropriate proposal is required to be moved before the respondent no.1 by the authority concerned.

6. In view of the above, the following directions are passed by this Court:-

(i) The respondent no.4 to scrutinize the service record of the petitioner and whereas, the respondent no.4 shall, after such scrutiny, decide the benefits that would be available to the petitioner as flowing from the Government Resolution dated 17.10.1988.

NEUTRAL CITATION C/SCA/1123/2022 ORDER DATED: 08/12/2023 undefined

(ii) The respondent no.4 shall forward an appropriate proposal as regards the above through proper channel within a period of six weeks from the date of receipt of this order.

The scrutiny shall be completed within a period of six weeks from the date of receipt of this order.

(iii) Upon receipt of proposal, the respondent no.1 shall examine the same and whereafter the respondent no.1 shall direct payment of monetary benefits as available to the petitioner including benefit of pension etc. if the petitioner is so entitled. The said exercise shall be completed within a further period of six weeks.

(iv) The respondent no.1 to direct appropriate payment to the petitioner within a period of four weeks thereafter.

6.1. In case the petitioner is aggrieved by the decision that would be taken by the respondent no.4 or the respondent no.1 as the case may be, then, it would be open for the petitioner to approach appropriate forum in accordance with law.

7. Having regard to the above observations and directions, the present petition stands disposed of. Needless to clarify Page 9 of 10 Downloaded on : Fri Dec 08 20:49:16 IST 2023 NEUTRAL CITATION C/SCA/1123/2022 ORDER DATED: 08/12/2023 undefined that this Court has not examined the petition on its own merits and it would be open for respondent no.4 and respondent no.1 as the case may be to take appropriate decision on merits. Direct service is permitted.

(NIKHIL S. KARIEL,J) Bhoomi Page 10 of 10 Downloaded on : Fri Dec 08 20:49:16 IST 2023