C/SCA/5982/2022 ORDER DATED: 16/03/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 5982 of 2022
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AJOTIBEN AMRUTBHAI PARMAR WD/O AMRUTBHAI MADAJI PARMAR
Versus
STATE OF GUJARAT
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Appearance:
MS SHIKHA D PANCHAL(10764) for the Petitioner(s) No. 1
NOTICE NOT RECD BACK for the Respondent(s) No. 4
NOTICE SERVED for the Respondent(s) No. 1,2,3
MS. SUMAN MOTLA, AGP for the respondent - State
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 16/03/2023
ORAL ORDER
1. The present petition is filed by the petitioner for seeking following prayers:-
"(A) Your Lordships may be pleased to issue a writ of certiorari or any other appropriate writ, order or direction declaring the inaction on the part of the respondent authorities in granting and releasing the lump sum financial assistance of Rs. 8,00,000 to the petitioner, on the death of her husband in harness as bad in law, being illegal and arbitrary and discriminatory and thus violative of Articles 14, 16 and 21 of the Constitution of India;
(B) Your Lordships may be pleased to issue a writ of Page 1 of 9 Downloaded on : Mon Mar 20 20:37:11 IST 2023 C/SCA/5982/2022 ORDER DATED: 16/03/2023 mandamus or any other appropriate writ, order or direction commanding the respondent authorities to grant and release the lump sum financial assistance of Rs. 8,00,000 to the petitioner, in terms of Government Resolution dated 05.07.2011 read with Government Resolution dated 07.04.2016 from the General Administration Department;
(C) Pending admission and final hearing of the present petition, Your Lordships may be pleased to direct the respondent authorities to release the lump sum financial assistance of Rs. 8,00,000 to the petitioner; and (D) Your Lordships may be pleased to pass any other and/or further order, as deemed it, in the interest of justice."
2.1 It is the case of the petitioner in the present petition in nutshell that the petitioner is a widow of late Shri Amrutbhi Madaji Parmar, who was working as Gaurdsman in Class III (Armed) cadre in the pay band of Rs.5200-20200 with grade pay of Rs.2000 in Company 'B', No.1 Battalion, Palanpur. While in service, he passed away on 12.05.2021. A copy of death certificate is also annexed with the petition, which confirmed the death of Page 2 of 9 Downloaded on : Mon Mar 20 20:37:11 IST 2023 C/SCA/5982/2022 ORDER DATED: 16/03/2023 the employee. It is also further the case of the petitioner that Shri Amrutbhi Madaji Parmar was initially appointed as part time Home Guard in Border Wing Home Guard w.e.f. 17.08.1982.
2.2 Thereafter, Border Wing Home Guards approached this Court by way of filing writ petitions, being Special Civil Application No.10862 of 2003 and other cognate matters for seeking directions to the State to evolve fair, just and reasonable conditions of service and to grant service benefits, like fixation of pay, leave, overtime, medical allowance, travelling allowance, retirement benefits like provident fund, pension and gratuity and to declare them as permanent and full time members of the Border Wing Home Guards with all the consequential benefits.
2.3 The Court has allowed the petition by judgment dated 09.02.2005, and ordered the State Government to grant all the benefits admissible to the servants with effect from 30.07.2003 with a further direction to absorb them retrospectively from the same date. Page 3 of 9 Downloaded on : Mon Mar 20 20:37:11 IST 2023
C/SCA/5982/2022 ORDER DATED: 16/03/2023 2.4 It is the case of the petitioner that the aforesaid decision dated 09.02.2005 of the learned Single Judge was challenged by the State Authorities by way of filing Letters Patent Appeals, being Letters Patent Appeal No. 712 of 2005 in Special Civil Application No.10862 of 2003 and other cognate appeals, the Hon'ble Division Bench has decided those LPAs by judgment and order dated 06.04.2011 and passed certain directions. Pursuant to the directions in Special Civil Application as well as in the Letters Patent Appeals and in view of the Government Resolution dated 19.04.2012 from the Home Department by officer order date 05.07.2012, the respondent No.2 Commandant General appointed 106 Home Guards, including the husband of the petitioner, as Naik (Class II Armed) in the pay band of Rs.5200-20200 with grade pay of Rs.2000 with retrospective effect from 30.07.2003.
2.5 It is the case of the petitioner that her husband - Amrutbhi Madaji Parmar has served for the total period of 38 years and 9 months and the petitioner has relied on the Government Resolution dated 05.07.2011 for providing the lump sum financial assistant to the Page 4 of 9 Downloaded on : Mon Mar 20 20:37:11 IST 2023 C/SCA/5982/2022 ORDER DATED: 16/03/2023 dependent families of Class III and Class IV employees, which was subsequently amended by Resolution dated 07.04.2016, by which the financial assistance was replaced by uniform financial assistant of amount of Rs.8 lakhs and other conditions remaining the same in the Government Resolution dated 05.07.2011. 2.6 Further, it is also averred in the petition that Battalion Commandant No.1, Palanpur has also recommended and opined that by communications dated 19.08.2021, the present petitioner - widow of late Shri Amrutbhi Madaji Parmar is entitled to receive lump sum compensation as he has considered the affidavit, death certificate, etc., produced by the petitioner. 2.7 It is also the case of the petitioner that in the case of similarly situated persons i.e. Shri Gajendrasinh H. Solanki and Shri Dipsinh J. Solanki, the compensation was paid.
3. Heard learned advocate Ms. Shikha D. Panchal for the petitioner and learned Assistant Government Pleader Ms. Suman Motla for the respondent - State. Page 5 of 9 Downloaded on : Mon Mar 20 20:37:11 IST 2023
C/SCA/5982/2022 ORDER DATED: 16/03/2023 4.1 The main contention of the petitioner is pursuant to the abovementioned aspect and she has relied on the effect that when Government Resolution, which is applicable in the case of similarly situated persons, no differential treatment can be awarded to the present petitioner. Moreover, she has also drawn my attention towards earlier order passed by this Court in Letters Patent Appeal No.712 of 2005 in Special Civil Application No.10862 of 2003 and other cognate appeals and submitted that when the service of the petitioner was regularized by the order of the authority concerned, then there is no reason for not granting any benefit to the present petitioner.
4.2 She has further relied upon the judgment of Division Bench of this Court in the case of State of Gujarat Versus Nathabhai Ghemarbhai Parmar rendered in Letters Patent Appeal No.1234 of 2017 in Special Civil Application No.1795 of 2013 and allied matters dated 04.08.2017, whereby the daily wager is granted benefits by Government Resolution dated 05.07.2011, which was subsequently amended by Resolution dated Page 6 of 9 Downloaded on : Mon Mar 20 20:37:11 IST 2023 C/SCA/5982/2022 ORDER DATED: 16/03/2023 07.04.2016, and therefore, she has prayed to allowed this petition by directing the respondent - authority to grant the lump sum financial assistant of Rs.8 lakhs to the petitioner within stipulated period of time. 5.1 Per contra, learned AGP Ms. Suman Motla for the respondent - State has drawn my attention towards the affidavit-in-reply and more particularly paras 8, 10 & 11 is relevant of the said reply, and has submitted that since the husband of the petitioner was not appointed through the prescribed recruitment process, therefore, he is not entitled to get the lump sum financial assistant, and therefore, it is not sanctioned.
5.2 She has further submitted that as per the case of the respondent, the petitioner is not eligible for consideration of lump sum financial assistance, and therefore, she has prayed that the present petition is required to be dismissed.
6.1 I have heard learned advocates appearing for the respective parties. I have considered the rival contentions made at the Bar. I have perused the record and Page 7 of 9 Downloaded on : Mon Mar 20 20:37:11 IST 2023 C/SCA/5982/2022 ORDER DATED: 16/03/2023 proceedings. I have considered the fact that the services of the husband of the petitioner and similarly situated home guards were regularized by order dated 05.07.2012, which is passed by the Commandant General - respondent No.2, not only that in the judgment and order passed in Special Civil Application No.10862 of 2003 and other cognate matters, which is carried in the Letters Patent Appeal No.712 of 2005, is also dismissed with some relevant observations and moreover, the provisions of Government Resolution, which is pursuant to the benefit of the employee, who is died during service, is granted, and accordingly, the authority has considered the case of the two other similarly situated employees by orders dated 08.01.2021 and of the year 2019, it seems that Shri Gajendrasinh H. Solanki and Shri Dipsinh J. Solanki, who were also working as Home Guard Class-III in same Battalion, in whose case, compensation were granted, and therefore, there is no reason to discriminate the present petitioner. 6.2 Moreover, considering the judgment in the case of Nathabhai Ghemarbhai Parmar (supra) , wherein the Division Bench of this Court has also considered for such Page 8 of 9 Downloaded on : Mon Mar 20 20:37:11 IST 2023 C/SCA/5982/2022 ORDER DATED: 16/03/2023 benefit, I am of the opinion that the case of the petitioner deserves consideration and the present petition is allowed accordingly.
6.3 The respondent - Authority is directed to consider the case of the petitioner and pay the amount of Rs.8 lakhs as per Government Resolution 07.04.2016 to the present petitioner towards financial assistance, within a period of 10 weeks from today.
7. With above observation and direction, the present petition is disposed of.
Direct service is permitted. .
(SANDEEP N. BHATT,J)
DIWAKAR SHUKLA
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