Vimal Mahidharlal Jani vs Gujarta Water Supply And Sewerage ...

     C/SCA/14287/2018                                    ORDER DATED: 22/02/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
              R/SPECIAL CIVIL APPLICATION NO. 14287 of 2018
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              VIMAL MAHIDHARLAL JANI & 44 other(s)
                           Versus
     GUJARTA WATER SUPPLY AND SEWERAGE BOARD & 3 other(s)
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Appearance:
MR YOGEN N PANDYA for the Petitioners No.1 to 45
MR HS MUNSHAW(495) for the Respondent(s) No. 2
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 CORAM:HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE

                              Date : 22/02/2023
                               ORAL ORDER

1. The present Special Civil Application is filed praying for the following reliefs:-

"A. Your Lordships may be pleased to admit and allow this petition;

B. Your Lordships may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction, directing the respondent authorities to grant the benefits i.e. 50% arrears of 5th Pay Commission w.e.f. 01.04.2004, the pay-scale and arrears of 6th Pay Commission w.e.f. 01.01.2006, Travelling Allowance, LTC, Leave Encashment, Pension etc. in the interest of justice and fairness of things; C. Pending admission, hearing and final disposal of this petition, Your Lordships may be pleased to grant the benefits i.e. 50% arrears of 5th Pay Commission w.e.f.

C/SCA/14287/2018 ORDER DATED: 22/02/2023 01.01.2006, Travelling Allowance, LTC, Leave Encashment, Pension etc. to the petitioners forthwith in the interest of justice;

D. Your Lordships be pleased to pass such other and further orders as may be deemed fit, just and proper in the peculiar facts and circumstances of the present case."

2. The factual matrix of the present case is that the petitioners are appointed as daily- wagers on the different posts such as Operators, Plant Fitters, Store Keepers, Linemen, Watchmen etc. All the petitioners were appointed between the period from 1988 to 1994.

2.1 The State Government thereafter issued a Government Resolution dated 17.10.1988 and granted benefits to these daily-wager workmen. By the office order dated 26.10.2016, the respondents herein have also granted benefits as recommended by various Pay Commissions and adopted by the Government of Gujarat. However, by the prayers in the present Special Civil Application, the petitioners herein are praying for reminder of the benefits which have not been available to them under the 5th and 6th Pay Commissions.

3. Mr.Yogen Pandya, learned counsel Page 2 of 12 Downloaded on : Mon Feb 27 20:33:57 IST 2023 C/SCA/14287/2018 ORDER DATED: 22/02/2023 appearing for the petitioners submits that the issue with respect to payment of benefits and allowances under the 5th and 6th Pay Commissions to the daily-wagers who have been conferred benefits under Government Resolution dated 17.10.1988 has since been concluded by various judgments of this Hon'ble Court as well as the Hon'ble Supreme Court. He submits that by the order dated 08.12.2022, the learned Division Bench in Letters Patent Appeal No.27 of 2022 and other allied cases, has held after considering various judgments and pronouncements of this Court that the State Authorities shall release all the benefits in favour of the employees as per the 5th Pay Commission recommendations from 01.01.1996 to 31.12.1997. He further submits that in respect of the release of the benefits of the 6th Pay Commission, the State Government has passed Resolution granting the benefits w.e.f. 14.11.2014. He therefore submits that as the petitioners have already been granted the benefits of 5th Pay Commission, therefore, no grievance remains with respect to the implementation of the benefits of 5 th Pay Commission. He further submits that the benefits of 6th Pay Commission should now be made available to the petitioners from 14.11.2014 as per the Government Resolution and various decisions of this Hon'ble Court which have already been implemented also by the Respondents herein in Page 3 of 12 Downloaded on : Mon Feb 27 20:33:57 IST 2023 C/SCA/14287/2018 ORDER DATED: 22/02/2023 cases of similarly situated employees.

4. Mr.H.S.Munshaw, learned counsel appearing on behalf of the Respondents has not disputed the legal position. He submits that following the judgments of this Hon'ble Court in cases of similarly situated employees, the benefits of the 6th Pay Commission have been implemented w.e.f. 14.11.2014 as directed by this Hon'ble Court. He therefore submits that in view thereof the present petitioners are entitled for the benefits of 6th Pay Commission only w.e.f. 14.11.2014.

5. Heard learned counsels for the respective parties and perused the documents on record.

6. The Division Bench of this Court (Coram: A.J.Desai and N.M.Thakore, JJ.) by the common judgment and order dated 08.12.2022 in Letters Patent Appeal No.27 of 2022 and other allied cases has observed as follows:-

"14. As per the highlighted portion of the above referred paragraph, the Hon'ble Supreme Court in no uncertain terms has held that all the daily wage employees should be treated at par with those employees who were appointed on permanent basis from beginning, after undergoing the proper selection procedure on proving their merit. It is needless to Page 4 of 12 Downloaded on : Mon Feb 27 20:33:57 IST 2023 C/SCA/14287/2018 ORDER DATED: 22/02/2023 state that all the employees who were appointed on permanent basis from the beginning are getting all the benefits like Public Holidays, Transport Allowances, Travelling Allowances, LTC and Leave Encashment, Arrears of pay as per 5th Pay Commission recommendations from 1.1.1996 to 31.12.1997 and counting of service from the date of joining for the purpose of computing pension, gratuity and pensionary/retirement benefits. 15. Insofar as the prayer seeking for grant of the five benefits i.e. (1) Transport Allowance; (2) Travelling Allowance;

(3) Transfer Travelling Allowance; (4) Leave Encashment and (5) Leave Travel Concession, we find further support from the decision dated 21.12.2017 of the Coordinate Bench of this Court in Letters Patent Appeal arising from the order of the Learned Single Judge passed in Special Civil Application No. 18120 of 2016, whereby it has been held had that the petitioners therein were entitled to such benefits as stated hereinabove. The facts as emerges from the orders, were that the State of Gujarat and the Gujarat Water and Sewerage Board had challenged the said decision by preferring Letters Patent Appeal No. 587 of 2018 and allied matters whereas the Hon'ble Division Bench of this Court (Coram : Vikram Nath, CJ as then he was and Ashutosh J. Shastri, J) vide common judgment dated 27.08.2021 in Civil Application No.3910 of 2019 in F/Letters Patent Appeal No. 35122 of 2019, in which the Hon'ble Division Bench had also decided the Letters Patent Appeal No. 587 of 2018 observed with regard to the issue of extending the five benefits to the petitioners therein. The relevant observations of the Hon'ble Division Bench are quoted herein below for better appreciation :-

C/SCA/14287/2018 ORDER DATED: 22/02/2023 "34. We have considered the submissions. The argument advanced by Shri Trivedi today is a day late and a dollar short. May be if such argument had been advanced at an appropriate time, the Court would have examined in that light. But reopening the whole issue today would result into severe discrimination and would be very unjust to the present group of employees who are engaged prior to the employees in the case of Atul C. Soni (supra) which was carried upto the Supreme Court. The learned Single Judge has examined this aspect of the matter in great detail and has referred to the relevant judgments which has resulted into grant of the benefits on the grounds of equality and parity, rather the present employees are holding better case than the case of the employees in case of Atul C. Soni (supra). We may also note here that in the case of Mahendrakumar Bhagvandas (supra), the issue regarding permanency and regularization was considered and the judgment went upto the Supreme Court to be affirmed not once but twice. Paragraph 7 and its sub-paragraphs, 8, 9 and 10 of the judgment of the learned Single Judge contain detailed discussion on this aspect. The same are reproduced hereunder:

"7. This takes to the relief for extension of benefits of (i) Transport Allowance; (ii) Travelling Allowance; (iii) Transfer Travelling Allowance; (iv) Leave Encashment and (v) Leave Travel Concession on the basis of Resolution dated 17th October, 1988. It is the case of the petitioners Page 6 of 12 Downloaded on : Mon Feb 27 20:33:57 IST 2023 C/SCA/14287/2018 ORDER DATED: 22/02/2023 that though the said benefits are not expressly mentioned in the Resolution dated 17th October, 1988, they are part of the permanency benefits which are available under the Resolution and when these benefits are available to homogeneous class of permanent employees, the petitioners should also be granted the same.

7.1 This issue cannot be said to be res integra in view of decision in Mahendrakumar Bhagvandas (supra). Those were the petitioners who were dailyrated employees, regularise in service under the Resolution dated 17th October, 1988 and all benefits as regular government servants were extended to them except the leave encashment, leave travel concession, etc. They had approached this Court with grievance the by not extending the said benefits, the authorities not had discriminated them, as though they were accorded permanency benefits, it was minus of the aforesaid benefits of encashment of leave, travelling allowance, etc., even as these benefits were part and parcels of permanency status.

7.1.1 In Mahendrakumar Bhagvandas (supra), the Division Bench confirmed the judgment of the learned Single Judge, noted the submissions on behalf of the State authorities thus, "2. Learned AGP reiterated the argument that even as workmen concerned were entitled to, and were in Page 7 of 12 Downloaded on : Mon Feb 27 20:33:57 IST 2023 C/SCA/14287/2018 ORDER DATED: 22/02/2023 fact granted most of the benefits at par with regular employees of the State, in terms of Government Resolution dated 17.10.1988, some of the benefits such as encashment of leave, leave travel assistance, travelling allowance, uniform allowance etc. were denied to them on the basis that they were not full-fledged duly recruited government servants. Learned AGP relied upon subsequent government resolution dated 18.7.1994, whereby it was sought to be clarified that the word 'permanent' in G.R. dated 17.10.1988 was meant to convey job security but it was not meant to be understood to make daily rated employees regular employees on the set up and establishment of respective departments. It was fairly conceded that entitlement of the employees concerned was wholly dependent upon reading and interpretation of G.R. dated 17.10.1988."

7.1.2 The Division Bench thereafter considered the object, applicability and scope of Government Circular dated 17th October, 1988 and further noted the clauses in the subsequent Resolution dated 18th July, 1994. It was thereafter observed in paragraph 5 to hold as under.

"5. ... ... ... subsequent G.R. dated 18.7.1994 is expressly superseding the instructions contained in government resolution dated 3.11.1990 but does not supersede original Page 8 of 12 Downloaded on : Mon Feb 27 20:33:57 IST 2023 C/SCA/14287/2018 ORDER DATED: 22/02/2023 G.R. dated 17.10.1988. It is also an admitted position that most of substantive benefits of permanent service are already accorded to the employees concerned in terms of G.R.

dated 17.10.1988. Under such circumstances, it was argued that nomenclature for treating the employees concerned as permanent was clarified by the government, and hence, denial of few benefits was justified and in order. However, no ground or rational basis could be made out for grant of most of the benefits to most of the employees in terms of G.R. dated 17.10.1988 and for denial of the remaining few benefits. 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 re-branded 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. dated17.10.1988 by which Page 9 of 12 Downloaded on : Mon Feb 27 20:33:57 IST 2023 C/SCA/14287/2018 ORDER DATED: 22/02/2023 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 re- branded 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. ... ... ..."

7.2 On behalf of respondent No.1 - State, affidavit-in-reply was filed through the Under Secretary, Narmada Water Resource, Water Supply and Kalpsar Department in which it was accepted that Special Leave Petition Nos.29108-29114 of 2014 was disposed of by the Apex Court and the question of granting benefits to the daily-wagers of respondent No.2 Board attained finality and that the entitlement of the petitioners for grant of benefits concerned is within the purview of respondent No.2 - Gujarat Water Supply and Sewerage Board. However, respondent No.1 expressed objection to the grant of the prayer in respect of extending the benefit of various allowances such as Transport Allowance, Leave Page 10 of 12 Downloaded on : Mon Feb 27 20:33:57 IST 2023 C/SCA/14287/2018 ORDER DATED: 22/02/2023 Encashment, Leave Travel Concession, etc., by submitting that the issue with regard to grant of these benefits to dailywagers is pending in Letters Patent Appeal (Stamp) Nos.1134 of 2017 and 1271 of 2017. Dealing with the said aspect of pendency of said Letters Patent Appeals, no orders are passed in the said Letters Patent Appeals.

7.3 Not only that and in in any view, the employees involved in the said Letters Patent Appeals are the employees of the Departments of the Government whereas the present petitioners are the employees of respondent No.2 - Board. They are identically placed with other similarly situated employees of the same Board who are granted the benefits claimed in the petition. Therefore, since the petitioners belonged to the homogeneous class, they are entitled to the same benefit and same treatment. As far as the entitlement of this class of employees working under the respondent No.2- Board, the issue can be said to have already been considered and decided.

7.4 There is yet another reason as to why the petitioners herein could not be denied the equal treatment in respect of payment of the allowances of transport allowance, travelling allowance, etc. Subsequent to the orders of the Supreme Court in Special Leave to Appeal (Civil) Nos.29108-29114 Page 11 of 12 Downloaded on : Mon Feb 27 20:33:57 IST 2023 C/SCA/14287/2018 ORDER DATED: 22/02/2023 of 2014 mentioned above, similarly placed batch of employees were granted the benefits by the respondent - Board by passing Office Order No.59 of 2016 dated 02nd September, 2016 in which, along with granting of benefits of 6th Pay Commission, the Board also accorded benefits of the allowances mentioned herein above. A reference is made to this office order in paragraph 5.4 in Anand Bhausaheb Pawar (supra). Therefore, as far as the Board's employees are concerned and all those other similarly situated, these benefits to be extended to them as flowing from the status of permanency which they may acquire by getting benefit of Resolution dated 17th October, 1988."

7. In view of the aforesaid observations and reasons of the learned Division Bench in Letters Patent Appeal No.27 of 2022 and allied cases and considering the submissions of the learned counsels for the parties, the petitioners are entitled to the benefits and other allowances of 6th Pay Commission w.e.f. 14.11.2014.

8. With the aforesaid observations, the present Special Civil Application stands allowed and disposed of. No order as to costs.

(ANIRUDDHA P. MAYEE, J.) NABILA Page 12 of 12 Downloaded on : Mon Feb 27 20:33:57 IST 2023