Gujarat High Court
Ramtusinh Ramsinh Dabhi vs State Of Gujarat on 8 December, 2023
Author: Nikhil S. Kariel
Bench: Nikhil S. Kariel
NEUTRAL CITATION
C/SCA/20548/2023 ORDER DATED: 08/12/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 20548 of 2023
With
R/SPECIAL CIVIL APPLICATION NO. 20549 of 2023
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RAMTUSINH RAMSINH DABHI
Versus
STATE OF GUJARAT
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Appearance:
MS VIDHI J BHATT(6155) for the Petitioner(s) No. 1
for the Respondent(s) No. 2,3,4
MR ADITYA PATHAK ASSISTANT GOVERNMENT PLEADER/PP for the
Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
Date : 08/12/2023
ORAL ORDER
1. Heard learned Advocate Ms. Vidhi Bhatt on behalf of the petitioners and learned Assistant Government Pleader Mr. Aditya Pathak on behalf of the respondent- State.
2. By way of these petitions, the petitioners have raised a common grievance as regards non grant of benefits under Government Resolution dated 17.10.1988 as well as subsequent Government Resolution dated 15.10.2014 and 16.04.2014.
3. The grievance of the petitioners being that the petitioners having worked with the respondents from the year 1991 and 2008 respectively, having put in long year of service, have not been granted the benefits of Government Resolution dated 17.10.1988, which the petitioners would be Page 1 of 6 Downloaded on : Tue Dec 12 20:37:09 IST 2023 NEUTRAL CITATION C/SCA/20548/2023 ORDER DATED: 08/12/2023 undefined otherwise entitled to.
4. Considering the submissions made by learned Advocate Ms. Bhatt, more particularly since it appears that the petitioners have already filed a representation which has not been finally decided by the respondent authorities, and whereas considering that the law on the issue i.e. the scope and ambit of Government Resolution dated 17.10.1988 more or less having been settled by decisions of this Court as well as the Hon'ble Supreme Court, this Court would propose to direct the respondents to decide the representation preferred by the present petitioners within a specific period of time.
5. Before issuing such directions, as noted hereinabove, since the scope and ambit of Government Resolution dated 17.10.1988 has been explained by this Court and the Hon'ble Supreme Court in number of matters, for the benefit of the respondents, some of the observations of this Court as well as Hon'ble Supreme Court, on this issue are reproduced hereinbelow for benefit:
1. 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 Page 2 of 6 Downloaded on : Tue Dec 12 20:37:09 IST 2023 NEUTRAL CITATION C/SCA/20548/2023 ORDER DATED: 08/12/2023 undefined 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 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."
2. 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.
3. 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. Page 3 of 6 Downloaded on : Tue Dec 12 20:37:09 IST 2023 NEUTRAL CITATION C/SCA/20548/2023 ORDER DATED: 08/12/2023 undefined
4. In case of Executive Engineer Panchayat (MAA & M) Department and Another Vs. 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.
5. 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.
6. 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.
6. 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 ; (i) transportation allowances (ii) travelling allowances (iii) Leave Travel Concession (LTC) (iv) arrears of 5th Pay Commission to the Daily wagers from 01.01.1996 to 31.12.1997, which issue is pending Page 4 of 6 Downloaded on : Tue Dec 12 20:37:09 IST 2023 NEUTRAL CITATION C/SCA/20548/2023 ORDER DATED: 08/12/2023 undefined 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 would be entitled to all other benefits as would be entitled to a regularly appointed employee.
7 Considering that except the issues as mentioned in the above paragraphs which are pending consideration of the Hon'ble Supreme Court, more or less issue with regard to payment of all other benefits and the method of computing the days put in by the employees, now no more in dispute, the following directions are required to be passed: Furthermore it appears that the petitioners representation may be lacking certain directions to the petitioner, to submit a fresh representation is also required to be passed.
8. Hence the following directions are passed:
8.1. The petitioners to prefer a representation before respondent No.3 for grant of benefits as available to the petitioner under G. R. dated 17.10.1988 as clarified later on. Copy of such representation shall also be forwarded to respondent No.2 herein;
8.2. The respondent No.3, in consultation with respondent No.2, shall verify the service records of the present petitioners and shall forward a proposal to respondent No.1 as regards payment of benefits as available to the petitioners as commensurate to the period of service rendered by the petitioners. Such exercise shall be done by respondent No.3, in consultation with respondent No.2, within a period of six weeks from the date of receipt of the representation;Page 5 of 6 Downloaded on : Tue Dec 12 20:37:09 IST 2023
NEUTRAL CITATION C/SCA/20548/2023 ORDER DATED: 08/12/2023 undefined 8.3. Upon proposal being received by respondent No.1, respondent No.1 shall forthwith take appropriate steps to ensure payment of benefits is made to the petitioners within a period of four weeks thereafter;
8.4. In case the petitioners are aggrieved by any decision taken by respondent No.3 in consultation with respondent No.2 or decision taken by respondent No.1, either wholly or in part, then it would be open for the petitioners to avail appropriate remedy as available to the petitioners under the law;
8.5. It is further reiterated that the respondents shall do well in following the law laid down by the decisions of the Hon'ble Apex Court as well as this Court as noted herein above while taking an appropriate decision. It is further observed that any deliberate deviation from the law laid down by the Hon'ble Apex Court as well as this Court shall invite appropriate consequences.
With the above observations and directions, the present petitions are disposed of as partly allowed. Direct service is permitted.
(NIKHIL S. KARIEL,J) NIRU Page 6 of 6 Downloaded on : Tue Dec 12 20:37:09 IST 2023