Mahesh Janardan Dave vs Gujarat Maritime Board
2021 Latest Caselaw 10237 Guj

     C/SCA/12030/2019                               JUDGMENT DATED: 02/08/2021




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 12030 of 2019


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE BHARGAV D. KARIA

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1     Whether Reporters of Local Papers may be allowed
      to see the judgment ?

2     To be referred to the Reporter or not ?

3     Whether their Lordships wish to see the fair copy
      of the judgment ?

4     Whether this case involves a substantial question
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

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                            MAHESH JANARDAN DAVE
                                    Versus
                            GUJARAT MARITIME BOARD
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Appearance:
MS HARSHAL N PANDYA(3141) for the Petitioner(s) No. 1
MS SEJAL K MANDAVIA(436) for the Respondent(s) No. 1,2
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    CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA

                                Date : 02/08/2021

                                ORAL JUDGMENT

Heard learned advocate Ms.Harshal Pandya for the petitioner and learned advocate Ms.Sejal Mandavia for the respondents through video conference.

1. Rule, returnable forthwith. Learned advocate Ms.Sejal Mandavia waives service of notice of rule on

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behalf of the respondents.

2. Having regard to the controversy raised in this petition in narrow compass, the same is taken up for final hearing with the consent of the learned advocates for the respective parties.

3. By this petition under Article 226 of the Constitution of India, the petitioner has prayed for the following reliefs:

"PRAYERS

6. The petitioner prays that, on the basis of the facts and circumstances of the case as mentioned hereinabove and which may be urged at the time of hearing, the Honorable Court may be pleased to issue a writ of mandamus or any other appropriate writ, order of direction to the respondent authorities and may be pleased to :

(A) hold and declare that petitioner is entitled to be continued in service till 31.07.2019 considering his age of 60 years as provided in Government Resolution dated 17.10.1988 and consequently, direction may please be issued to fix his pay notionally till that date for the purpose of pension and other retirement dues, and

(B) direct the respondent authorities to revise pay of petitioner as per sixth and seventh pay commission and then finalize his pension case of petitioner and make payment of pension and other retirement dues considering his entire service except those years which are not counted as per settlement between the petitioner and authorities, and

(C) direct the respondent authorities to pay arrears flowing from above prayer clause with interest at the rate which the Honourable Court may consider as just and proper in the facts and circumstances of the case, and

(D) award exemplary cost of this petition, and

(E) pending admission and final disposal of this petition, the Hon'ble Court may be pleased to direct the respondent authorities to finalize pension case of petitioner after revising, pay of petitioner as per 6th and 7th pay commission as has been granted to other Daily Wager, and

(F) grant any other relief or pass any other order which the Honorable Court may consider as just and proper in the facts and circumstances of the case."

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4.       The brief facts of the case are as under :

4.1. It         is      the    case   of     the     petitioner         that        the

petitioner joined the service of the Gujarat Maritime Board as daily wager on 16.06.1987. Thereafter the petitioner was terminated in September, 1990. The petitioner preferred Reference Case being Ref.(LCB) No.233 of 1991 before the Labour Court raising an industrial dispute and vide order dated 22nd March, 2001 the petitioner was ordered to be reinstated in service in view of the settlement arrived at between the petitioner and the respondents.

4.2. According to the petitioner as per the terms of settlement by which the petitioner was reinstated, one of the condition was that the earlier service rendered by the petitioner would be counted for the purpose of pension.

4.3. The petitioner was thereafter given the benefit of the Government Resolution dated 17.10.1988 on completion of five years of service in the year 2006 and was placed in the pay scale of 3050-4590 with effect from 1st June, 2005.

4.4. The services of the petitioner was thereafter regularized on completion of ten years with effect from 1st June, 2010 vide order dated 28th June, 2010 as per the Government Resolution dated 17.10.1988. According to the petitioner order dated 28 th June, 2010 provides for granting all the benefits available

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to regular employee including benefit of pension. It is also the case of the petitioner that while counting the ten years of services, respondent authorities have taken into consideration all the years wherein petitioner had completed service of more than 240 days.

4.5.       According              to    the       petitioner           the       Government
Resolution                   dated           17.10.1988               provides                 for

superannuation at the age of 60 years. However, the petitioner was retired on 01.07.2017 on completion of 58 years of age.

4.6. The petitioner therefore preferred representation dated 25.04.2017 with a prayer that petitioner could not have been retired at the age of 58 years and he ought to have been continued till he attains age of 60 years and the petitioner is entitled to pension.

4.7. However, the respondents without considering the representation of the petitioner, paid the retirement dues including Leave Encashment, Group Insurance, etc. to the petitioner however, denied the pensionary benefits to the petitioner on the ground that the petitioner did not complete ten years of service from the date of regularization in the year 2010.

Petitioner has therefore preferred this petition with the aforesaid prayer.

5.1. Learned advocate Ms.Pandya submitted that the

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petitioner could not have been retired at the age of 58 years as the Government Resolution dated 17.10.1988 provides for the retirement of the employee at the age of 60 years.

5.2. It was further submitted that the petitioner is entitled to the pension on two counts firstly, the order of reinstatement stipulates a condition No.3 to the effect that the earlier services rendered by the petitioner is required to be considered for the purpose of pension and secondly a clarification issued by the Government Resolution dated 30th May, 1989 also provides that for the purpose of counting eligible period for pension, such period should include the services rendered by the petitioner as per Section 25B of the Industrial Disputes Act, 1947 (for short 'the ID Act, 1947').

5.3. It was therefore submitted that the petitioner has rendered the service of 17 years which is also evident from the order dated 28th June, 2010 whereby the services of the petitioner was regularized because in the said order, the calculation of the ten years of service as per Section 25B of the ID Act, 1947 is calculated and then only services of the petitioner is regularized. It was therefore submitted that the reliance placed by the respondents on the Government Resolution dated 24th March, 2006 is not applicable in the facts of the case as the said Government Resolution refers to the retirement benefits from the date of regularization whereas the

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pensionary benefits are required to be considered as per the clarification issued in the Government Resolution dated 30th May, 1989.

5.4. It      was      further   submitted          that    the       Government
Resolution           dated   24th    March,        2006    was       issued          in

respect of counting services as daily wager and work charge employees for the purpose of granting pension and other benefits and the said Government Resolution is not issued either in suppression or cancelling the earlier resolutions dated 17.10.1988 and 30.05.1989.

5.5. In support of her submission, learned advocate Ms.Pandya relied upon the decision of this Court in case of Tribhovanbhai Jerambhai Versus Dy. Executive Engineer and others reported in 1988 (2) G.L.H. Page 1 in which it is held that once a daily rated workman is treated to be permanent under the Resolution dated 17.10.1988, his entire continuous service from the date of entry until he retires including his services prior to the date of his regularization is required to be taken into consideration for the purpose of commuting pension or making pension available to such retired employee. It was further pointed out that the aforesaid decision was applied by the Division Bench in case of Executive Engineer Panchayat (MAA & M.) Department & Anr. Vs. Samudabhai Jyotibhai Bhedi & Anr. in Letters Patent Appeal No.1439 of 2015 reported in 2017 4 GLR Page 2952 wherein the Division Bench has held that the question raised in the said petition was answered in Clause 6 of the

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clarificatory circular dated 30th May, 1989 issued by the State Government to the effect that the employee who had put in more than ten years of service as per the Government Resolution dated 17.10.1988 would be paid the benefit of pension and for such purpose, those years in which the employees had fulfilled the provisions of Section 25B of the ID Act, 1947, such years would qualify for pensionary benefits. Reliance was also placed on the decision in the case of State of Gujarat Vs. Ranabhai Ajmalbhai Harijan Since Decd. Through Legal Heirs in Letters Patent Appeal No.1518 of 2017 rendered on 10th April, 2018 in which Resolution dated 24th March, 2006 is also considered by the Division Bench after taking into consideration the above two decisions. It was held by the Division Bench that the entire period of service rendered by the employee including those years of service as 'Rojamdar' where he has rendered continuous service of 240 days in a year has to be considered for the purpose of extending pensionary benefits.

6.1. On the other hand, learned advocate Ms.Mandavia submitted that the respondents are bound by the Government Resolution dated 24th March, 2006 which provides that the retirement benefits are to be given from the date granting permanent benefit to the daily wager. Learned advocate Ms.Mandavia relied upon the following averments made in the affidavit-in-reply, which reads as under :

"3. At the outset, I say and submit that the petitioner is not entitled to get the relief which is prayed for whole the reason that as per the government resolution dated 24/3/2006 ,the benefit of pension can be given with effect from the date on which the

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daily wager is made permanent/given the benefit of 17/10/1988 resolution.

4. I say and submit that the daily wagers like the petitioners are on one hand saying that they are class III employees or work charge employees/permanent employees for getting other benefits which are given to the permanent employees and on other hand while getting the benefit of retirement at the age of 60, they are saying that they are daily wagers.

5. Isay and submit that it is true that the petitioner was given benefit of government resolution dated 17/10/1988 upon completion of 5 years of service with effect from 01/06/2005 and also then after completion of 10 years benefits after completion of 10 years of service made permanent daily wager on 28/06/2010. But the petitioner is retired in the year of 31/07/2017. Therefore, he has not served minimum 10 years of service after his benefit of permanency and therefore he is not entitled to get the pension. For gettng pension, minimum Service requires to be counted as 10 years of service form the date on which he made permanent daily wager. The government has passed the resolution clarifying the situation on 24/03/2006 in which the same issue was under consideration with the government that whether the service of daily wager or work charge is required to be counted in paying the pension or not? After consideration of this issue the government has decided that if the daily wagers were already retired from the date on which the resolution is passed nothing is required to be reconsidered but after the resolution is passed that is 24/03/2006 it is decided that the service of the daily wager is required to be considered from the date on which he made permanent or given the benefit of permanency for the purpose of paying the pension. Here in present case, the petitioner made permanent daily wager after completion of 10 years of service that is 26/08/2010. And the petitioner is retired in the year of 2017. Therefore, he has not completed 10 years of service after getting the benefit of permanency and therefore as per the government resolution he is not entitled to get the pension. Copy of the government resolution dated 24/03/2006 is annexed herewith and marked as Annexure I to the reply.

6. I say and submit that with regard to the prayer of retiring him in the age of 60 years is concerned, the petitioner was made permanent and was getting the pay scale of class III, before he retired from the year of 2017. The petitioner has prayed that he is entitled to be continued in service till 31/07/2019 and the direction may be pleased to be issued to fix his pay notionally till that date for the purpose of pension and other retirement dues. The petitioner has not prayed the salary or other financial benefits for these two years but he has prayed to treat his period continuous and notational for the purpose of paying the pension. As stated hereinabove, that the petitioner made permanent in the year of 2010. So, if the petitioner is retired in the year of 2019, then also he has not completed 10 years of service from 2010.so, this period can not be counted for paying the pension.

7. I say and submit that both the prayer which the petitioner has prayed ,cannot be granted looking into consideration above mentioned facts more particularly the government resolution dated 24/03/2006. The Gujarat Maritime board has to follow the government resolutions which are published by the government. The petitioner has not joined the government as party respondent and also not challenged the government resolution dated 24/03/2006. It is pertinent to note that the said resolution is passed after taking into consideration the government resolution dated 17/10/1988 upon which the petitioner is relying. Hence ,the petitioner is not entitled to get the benefit of pension and other retirement dues as he is not eligible for getting the pension and he has not so after 10 years from the date on which he made permanent daily wager."

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6.2. Referring                 to      the        above       averments            it        was

submitted that the petitioner was made permanent with effect from 1st June, 2010 and petitioner was made to retire in the year 2017. Admittedly, he has not completed ten years of service according to the Government Resolution dated 24th March, 2006 and therefore, the petitioner is not granted the pensionary benefits. Learned advocate Ms.Mandavia further submitted that the petitioner is entitled to get the notional benefits up to the age of 60 years as per the Government Resolution dated 17.10.1988. With regard to the contention raised on behalf of the petitioner that the petitioner is entitled to the 6th and 7th Pay Commissions benefits, it was submitted that when the petitioner retired in the year 2017, no benefit was granted to the employees of the respondents with regard to the 6th and 7th Pay Commissions Recommendations and accordingly, the petitioner is not entitled to such benefits.

7. Learned advocate Ms.Pandya referring to the affidavit-in-rejoinder submitted that there was no contention raised in the affidavit-in-reply by the respondents with regard to granting of 6th and 7th Pay Commissions benefits. It was submitted that the petitioner is one of the similarly situated persons of the respondent Board who have been extended the benefits of 6th Pay Commission and 7th Pay Commission as held by this Court in case of Kanojia Dharmendra Jaysukhlal Vs. Gujarat Maritime Board Gujarat in

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Special Civil Application No.3756 of 2018 rendered on 26th October, 2018, which judgment and order is confirmed by the Division Bench in Letters Patent Appeal No.231 of 2019 vide order dated 24th January, 2019. It was therefore submitted that the petitioner is entitled to the pensionary benefits on the basis of the 6th and 7th Pay Commissions Recommendations.

8.       Having         heard     the      learned        advocates           for        the
respective              parties    and        having      gone        through            the
materials on record, it is not in dispute that the

Government Resolution dated 17.10.1988 provides that the employees whose services are regularized as per the terms of the Government Resolution are to be superannuated at the age of 60 years. Admittedly, the petitioner is made to retired on attaining the age of 58 years and therefore the petitioner ought to have been continued till he attained the age of 60 years up to the year 2019. Accordingly, the petitioner is entitled to the notional benefits of two years of service for considering his pensionary benefits.

9. The petitioner is also not granted the pensionary benefits by the respondent relying upon the Government Resolution dated 24th March, 2006. However, on perusal of the said Government Resolution in its entirety it is clear that it provides for considering the services rendered by the employees as daily wager as well as on the work charge basis and it is on the contrary in favour of the employee so as to count the services rendered as daily wager and work charge together for the purpose of granting

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pension. The Government Resolution dated 24th March, 2006 is not issued in supersession or contrary to the Government Resolutions dated 17.10.1988 or Circular dated 30th May, 1989 which provides that the services rendered by the daily wager prior to date of his regularization is required to be considered for the pensionary benefits.

10. It is also pertinent to note that the Government Resolution dated 17.10.1988 clearly provides for regularization of an employee on completion of ten years of service and the service period is to be counted by considering the 240 days rendered by the employee as per Section 25B of the ID Act, 1947.

Accordingly, as per the Government Resolution dated 17.10.1988 only when an employee completes ten years of services rendering 240 days in each year, such service of an employee would be regularized. Meaning thereby that, the employee who has not completed ten years of service would never be regularized as per Government Resolution dated 17.10.1988. Therefore, even if an employee retires immediately after being regularized as per the Government Resolution dated 17.10.1988, he would be entitled to the pensionary benefits, whereas in the facts of the case, the petitioner is made to retire after seven years from the date of his regularization and therefore, the entire period of seventeen years is required to be considered for the purpose of granting pension to the petitioner.

11. In       that       view     of     the         matter,     the        relevant





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observations made by the Division Bench in case of
State       of     Gujarat         Vs.      Ranabhai          Ajmalbhai           Harijan

(Supra) wherein, earlier two decisions are relevant :

"3. The contentions raised by the learned Assistant Government Pleader before learned Single Judge have been reiterated by Shri Rohan Yagnik, learned AGP for the appellant. According to Shri Yagnik, the petitioner having rendered service of less than ten years, viz. that of nine years and six months, the Government is right in denying the pensionary benefits to the employee-respondent herein in view of Government Resolution dated 24.3.2006.

4. Shri Dipak Dave, learned advocate for the respondentoriginal petitioner, as submitted before learned Single Judge, has contended that the government fell in serious error in computing the period of service. According to Shri Dave, in view of the fact that the employee-original petitioner was granted benefit of the Government Resolution dated 17.10.1988 and was placed in the pay scale with effect from 1.4.1998, his past service as a 'daily wager' with effect from 21.6.1983 could not have been wiped out for computing the period for awarding pensionary benefits. This was particularly in view of the fact that in accordance with Government Resolution dated 17.10.1988 and in accordance with Section 25-B of the Industrial Disputes Act, it was not disputed between the parties that the employee had rendered continuous service for a period of 240 days in a year in compliance of the requirement of Government Resolution dated 17.10.1988.

5. Reliance was placed on the judgment of this Court in the case of Tribhovanbhai Jerambhai v. Deputy Executive Engineer, reported in 1998 (2) GLH 1, in support of contention that the service rendered as a 'daily wager' ought to be considered for the purposes of counting the period of qualifying service for pension purpose. Learned Single Judge has considered the said judgment and we too, deem it fit to reproduce the relevant paragraphs which learned Single Judge has reproduced:-

""9. In the resolution dated 17.10.1988, it has been envisaged that those workman who as on 1.10.1988 or thereafter completes ten years of continuous service to be counted in accordance with provisions of Section 25B of the Industrial Disputes Act shall be deemed to be permanent and amongst other benefits conferred on being treated as permanent their age of superannuation was fixed at 60 years and they were made entitled for pensionary benefit. By yet another resolution dated 30.5.1989 (Annexure E), in which a specific query was raised at item No (6) with reference to resolution dated 17.10.1988, about the calculation of period of qualifying service for the purpose of entitlement to pension in connection with the pensionary benefits made available to those daily wagers who are deemed to be permanent on completion of ten years of service and it was specifically made clear that within the meaning of resolution dated 17.10.1988, the service which is to be counted is that which can be said as continuous within the meaning of Section 25B with effect from the date of entry in the service is duty counted for the purpose of pension and pension has to be accordingly determined. This does not say that qualifying service is to be counted with effect from date of becoming permanent. This leaves no room of doubt that the resolution dated 17.10.1988 along with clarification issued on the various aspects of it vide resolution dated 30.5.1989 is in consonance with the provisions of Rule 248 of the Bombay Civil Services Rules, 1959 which provide that Government has not only power by general or special order to permit service other than pensionable service, for performing which a Government servant is paid from State revenues or from a local fund, to be treated as duty counting for pension and in issuing such an order Government is to specify the method by which the amount of duty shall be calculated for the purpose of pension. Once the Government has made it clear that those who have completed ten years of service as daily rated workman are to be deemed permanent with effect from and after 17.10.1988 and are entitled to various benefits on that basis including pension and

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thereafter has provided by the resolution dated 30.5.1989 that the continuous service for the purposes of pension, made available to employees under resolution dated 17.10.1988, is to be counted with effect from the date of entry in the service provided it can be continuous within the meaning of Section 25B of the Industrial Act, thus making it clear that once a daily rated workman is treated to be permanent under the resolution dated 17.10.1988 his entire continuous service from the date of entry until he retires including his services rendered prior to the date of his regularization is taken into consideration for the purpose of computing pension or making pension available to such retired employee.

10. There is yet another aspect of the matter. Assuming that Bombay Civil Services Rules do not provide for grant of pension to those, who are not holding a permanent post in the service, then it must be held that daily rated workman working on daily wages, are ex cadre employees and not governed by particular service rules, but are governed by terms of employment under which they have been engaged. This further leads to conclusion that area of employment on daily wages is not covered by statutory rules either promulgated under Act 309 or by other legislature enactment. That is the area left uncovered by specific law, and such employment is in exercise of general executive powers of the State and terms and conditions of such employment is governed by terms of order under which such employment is made and shall be further governed by orders made by State in exercise of its executive power from time to time. The resolution dated 17.10.88 and 30.5.89 shall thus govern the terms of employment of such employees. If considered from this view, the conclusion will be the same."

6. Reading of the judgment categorically suggests that there is no room for doubt that Government Resolution dated 17.10.1988 when read in the context of meaning of continuous service as defined under Section 25B of the Industrial Disputes Act suggests that while conferring benefits, viz. pensionary benefits, calculation of the entire service rendered even prior to the benefit of the regular pay scale being conferred needs to be considered for the purpose of awarding pensionary benefits. (from the date of initial appointment as a daily wager).

7. Learned Single Judge has observed that the judgment so rendered has attained finality and, therefore, in consonance with the question of law decided by the Division bench, learned Single Judge thought it fit to give the direction as reproduced herein above in the earlier part of the judgment.

8. Even otherwise while considering Sub-rule (3) of Rule 80 of the Pension Rules, learned Single Judge in the context of Government Resolution dated 24.3.2006, has observed that the benefit of the Rule for the purpose of bridging the gap for computation of ten years of service needs to be granted. As pointed out by Shri Dave, learned counsel for the respondent herein this issue had again arisen in the case of the Executive Engineer, Panchayat (MAA & M) Department and Another v. Samudabhai Jyotibhai Bhedi and Others reported in 2017 (4) GLR 2952. Considering the provisions of the Government Resolution dated 17.10.1988, the Division Bench of this Court in the judgment of Samudabhai Bhedi (supra) held as under:-

"6. As is well known, under Government Resolution dated 17.10.1988, the Government decided to grant benefits of regularization and permanency to daily rated workers who had completed more than 10 years of actual service prior to such date, of course subject to certain conditions. One of the clauses in the said Government Resolution was that the benefit of regularization would be available to those workmen who had completed more than 10 years of service considering the provisions of section 25B of the Industrial Disputes Act. They would get benefits of regular pay scale and other allowances, pension, gratuity, regular leaves etc. They would retire on crossing age of 60 years. That the period of regular service shall be pensionable.

7. This Government Resolution led to several doubts. The Government itself therefore came up with a clarificatory circular dated 30.05.1989, in which, several queries which were likely to arise were clarified and answered. Clause 6 of this circular is crucial for

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our purpose. The question raised was that an employee who had put in more than 10 years of service as on 01.10.1988, would be granted the benefit of Government Resolution dated 17.10.1988. In that context, the doubt was whether for the purpose of pension, the past service of completed years prior to regularization would be considered or whether the pensionable service would be confined to the service put in by the employee after he is actually regularized. The answer to this query was that those employees who had put in more than 10 years of service as per Government Resolution dated 17.10.1988 would get the benefit of pension. For such purpose, those years during which the employee had fulfilled the provisions of section 25B of Industrial Disputes Act, such years would qualify for pensionary benefit.

8. Two things immediately emerge from this clarification. First is that the query raised was precisely what is the dispute before us and second is that the clarification of the Government was unambiguous and provided that every year during which the employee even prior to his regularization had put in continuous service by fulfilling the requirement of having worked for not less than 240 days as provided under section 25B of the Industrial Disputes Act, would count towards qualifying service for pension. In view of the clarification by the government itself, there is no scope for any further debate. The petitioner was correct in contending that having put in more than 10 years of continuous service as a labourer in the past, he had a right to receive pension upon superannuation. This is precisely what the learned Single Judge has directed, further enabling the employer to verify as to in how many years he had put in such service and then to compute his pension.

9. Learned counsel Shri Munshaw for the Panchayat however drew our attention to some other clauses of the said clarificatory circular dated 30.05.1989. None of these clauses have a direct bearing on the controversy at hand. These clauses merely refer to from which point of time such benefits may be available. It may be that benefits of regular services such as regular pay scale, leave, gratuity and pensionary benefits may be available only after regularization of an employee. However, this does not mean that his past continuous service would be wiped out for the purpose of pensionary benefits. The stand of the authorities that only that service which the employee had put in after actual order of regularization would count for pension is thus in conflict with the Government circulars itself.

10. The issue can be looked from slightly different angle. As it likely to happen in many cases and appears to have happened in the present case, actual order of regularization may not be passed immediately upon an employee having put in 10 years of continuous service for variety of reasons such as inaction on the part of the employee to press for such benefits, verification needed at the hands of the administration and sometimes, sheer inertia may delay actual regularization. Would that mean, the benefit of pension would be denied to an employee because after the belated regularization he did not have sufficient time to render 10 years of qualifying service? The answer has to be in the negative.

11. In the past, same or similar issues have traveled to the Division Benches in Letters Patent Appeals. Learned Single Judge in case of Tribhovanbhai Jerambhai v. Dy. Executive Engineer, Sub Division, R & B Deptt. & Anr. reported in 1998 (2) GLH 1, held that once a daily rated workman is treated to be permanent in terms of resolution dated 17.10.1988, his entire continuous service from the date of entry till retirement including his services rendered prior to the date of his regularization has to be taken into consideration for the purpose of computing pension or for making pension available to the employee. This decision was carried in appeal by the employer before the Division Bench. The Division Bench by order dated 04.04.2003 noted that the appeal had become time barred. Even on merits, the Division Bench was not inclined to take a different view.

12. In case of Surendranagar Dist. Panchayat and Anr. v. Umarkhan Alikhan Malek and ors., Division Bench of this Court in its judgment dated 29.03.2016 rendered in Letters Patent Appeal No.2047 of 2004, considered the issue where the employee had

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sought pensionary benefits having worked from the years 1978 to 1991. The learned Single Judge applying the formula of section 25B of the Industrial Disputes Act held that the employee had put in continuous service for more than 10 years as a daily wager. He was entitled to benefit of Government Resolution dated 17.10.1988 including the benefits of pension. The administration had merely contended that the workman had not put in actual 10 years of service after regularization before he can seek pensionary benefits."

9. Having therefore considered the issue at hand, it leaves no manner of doubt that after repeated reiteration of position of law as rendered by this Court in the judgment referred to herein above, the directions are given by learned Single Judge that entire period of service rendered by him, including those years of service as 'Rojmadar' where he has rendered continuous service of 240 days a year has to be considered for the purpose of extending pensionary benefits. The stand of the Government, therefore that the respondent herein had not completed the stipulated period of qualifying service is, undisputedly a stand, which is contrary to the settled position of law, in view of the judgments referred to. Therefore, we have no reason to interfere with the direction given by learned Single Judge in the judgment impugned herein. "

12. In         view         of    the     above         dictum       of      law,         the
petitioner             is   entitled        to    the     pensionary            benefits

considering his entire service from the date of entry in the service with the respondents excluding the period for which he did not serve due to termination.

13. With regard to granting of extension of benefits of 6th and 7th Pay Commissions Recommendations to the petitioner for the purpose of pension is no more res integra in view of the decision of the Co-ordinate Bench rendered in case of Kanojia Dharmendra Jaysukhlal (Supra) wherein, it is held as under :

"2. Seven petitioners who joined the services under respondent-Gujarat Maritime Board as daily rated workers and subsequently came to be extended the benefit under Government Resolution dated 17.10.1988, have prayed, by filing the present petition, to extend the benefit of 6th Pay Commission and 7 th Pay Commission and to pay their pay in the revised payscale with effect from 01.01.2006 and 01.01.2016 respectively. The petitioners have further prayed to direct the respondent authorities to pay the arrears.

3. Noticing the relevant facts, having been appointed initially as daily wagers, the petitioners were granted the benefits under resolution dated 17.10.1988 upon their completion of requisite number of years in service. When 5th Pay Commission recommendations were implemented, they were granted the said benefit also. The 6th Pay Commission was implemented by the Central Government with effect from 01.01.2006. The recommendations

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came to be adopted by the State Government and all governmental authorities in the year 2009. The 7th Pay Commission recommendations which was brought into force from 01.01.2016 was also adopted by the State Government and its authorities.

3.1 The case of the petitioner is that they have not been given the pay scales as per the 6th and 7th Pay Commission despite their request and representations in that regard.

3.2 It appears that Workcharged employees appointed after 1989 in different departments filed Special Civil Application Nos.12527 of 2013 and 18083 of 2013 seeking benefit of the 6th Pay Commission. This Court directed by judgment and order dated 06.08.2015 to extend to them the benefits of the 6 th Pay Commission with the effective date. The Letters Patent Appeal against the said judgment dated 06.08.2015 came to be dismissed. The State Government also filed before the Supreme Court Special Leave Petition No.34352 to 34353 of 2015 which was rejected. Directions appears to have been issued for 6 th Pay Commission benefits also in Special Civil Application No.2723 of 2016 and allied matters as per the order of this Court dated 23.03.2016. Against judgment in this group of petitions also, Letters Patent Appeal No.768 of 2016 came to be dismissed.

4. Learned advocate for the petitioner relied on the decision of this Court in Maganbhai Durlabhbhai Koladiya and others vs. State of Gujarat, being Special Civil Application No.6083 of 2017 decided on 23.01.2018 in which case the benefits to the said petitioners were denied on the ground that they were appointed after 1988, that is after relevant date under resolution dated 17.10.1988. Those petitioners were appointed between the years 19901991, the present petitioners are identically situated. Merely because they came to be appointed after 17.10.1988, they could not have been denied the benefit.

4.1 The parties appearing through their respective learned advocates could not dispute the position that the decision in Maganbhai Durlabhbhai Koladiya (supra) would apply to the present case.

5. From Maganbhai Durlabhbhai Koladiya (supra), following observations and findings are extracted to be relevant for the present case as well,

"5. The denial of benefits of the 6 th Pay Commission to the petitioners is thus on the ground that the petitioners were appointed after 17th October, 1988 and as per the instructions, in view of the said cut off date, petitioners are considered not entitled to get 6 th Pay Commission payscale and benefits.

6. The identical issue arose in case of Kalubhai Nathubhai Sonegara v. State of Gujarat being Special Civil Application No.2700 of 2016 decided on 30th November, 2017 by this Court. What is discussed, observed and held in paragraphs 5.1 to paragraph 6 in decision in Kalubhai Nathubhai Sonegara (supra) directly applies to the present case. They are as under.

"5.1 In Patel Tarunkumar Shankarlal v. State of Gujarat being Special Civil Application No.12527 of 2013 with cognate petition, the petitioners were the employees of Gujarat Maritime Board who were workcharge employees appointed after 31 st March, 1989. Their

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grievance was similar to one involved in the present petition and that they were not given benefits of 6th Pay Commission, although all the work- charge employees appointed prior to 31 st March, 1989 were granted the benefits. While contesting the said petition, respondents relied on Circular dated 31 st March, 1989 of the Road & Building Department adopted by it, which was in connection with the State Government Resolution dated 17 th October, 1988 and according to the said Circular, conversion from dailywagers to workcharge was restricted after 31st March, 1989 and appointment of dailywagers was prohibited. Raising the said cutoff date, those petitioners were denied the benefits of 6th Pay Commission that they were appointed after the said date. The direction was prayed before the Court for grant of 6th Pay Commission benefits. The said petition came to be allowed by judgment dated 06th August, 2015. Learned Single Judge observed that it was incomprehensible that after having extending the benefits of 5th Pay Commission recommendations with effect from 1998 for the petitioners, 6th Pay Commission benefits were denied and it was further observed that there was no rationale or basis for placing reliance on Circular dated 31st March, 1989. the decision in Patel Tarunkumar Shankarlal (supra) came to be confirmed in Letters Patent Appeal No.1230 of 2015, decided on 23rd September, 2015 wherein the Court emphasise the equal treatment to be accorded to the homogeneous class of persons and disapproved the prescription of cutoff date. Special Leave Petition Nos.3435234353 of 2015 came to be dismissed by the Apex Court on 04 th January, 2016. The principle in the aforesaid decision directly applies to the case of the present petitioner.

5.2 Exactly similar was the case of Mansukh Arjanbhai Bhakhotara v. State of Gujarat being Special Civil Application No.2723 of 2016 decided on 23rd March, 2016. Those petitioners were identically placed with the present petitioners, who were dailywagers of the Irrigation Department as the present petitioner is, and claimed benefit of 6 th Pay Commission as per the State Government Resolutions dated 27 th February, 2009 and 15th March, 2010. The said petition was allowed by negativing same defence raised and the respondents were directed to calculate and pay the necessary benefits as per the 6 th Pay Commission recommendations.

5.3 Decision in Mansukh Arjanbhai Bhakhotara (supra) was carried in Letters Patent Appeal No.768 of 2016 which was decided and dismissed as per order dated 07th July, 2017. While dismissing the Letters Patent Appeal, the Court relied on Patel Tarunkumar Shankarlal (supra).

6. In view of the above settled legal position, there is no gainsaying that the petitioner herein belongs to the similar class of person to be treated equally with Patel Tarunkumar Shankarlal (supra) and Mansukh Arjanbhai Bhakhotara (supra), to be extended the benefits of 6 th Pay Commission recommendations. Denial of benefits to the petitioner is violation of fundamental rights of the petitioner under Articles 14 and 16 of the Constitution."

5.1 The aforesaid decision in Maganbhai Durlabhbhai Koladiya (supra) was carried in Letters Patent Appeal No.1101 of 2018 which came to be dismissed by the Division Bench on 24.08.2018 and the judgment in

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Maganbhai Durlabhbhai Koladiya (supra) was confirmed. The Division Bench observed and held as under,

"4. We have carefully perused the judgment and order passed by the learned Single Judge. The learned Single Judge, after placing reliance on various decisions of this court as well as the decision of a Division Bench of this court rendered on 23.9.2015 in Letters Patent Appeal No.1230 of 2015, entertained the writ petition and directed the present appellants to grant the benefits as prayed for in the writ petition. It is undeniable fact that the respondents herein are appointed between the year 1990 and 1991 and that they have also been paid the benefit of the Fifth Pay Commission. The employees who are appointed prior to the Resolution dated 17 th October, 1988, have already been granted the benefit Sixth Pay Commission. Thus, the present appellants who are subsequently appointed in the year 1990 and 1991 and are similarly situated to the employees appointed prior to 17.10.1988 cannot be discriminated in conferring the benefit of Sixth Pay Commission in wake of the fact they are already paid the benefit of Fifth Pay Commission."

6. In view of above, the petitioners are entitled to succeed. The denial to the petitioner the benefits of 6th Pay Commission and 7 th Pay Commission cannot stand valid in eye of law. The decision in not extending the benefit is illegal and arbitrary.

6.1 The State Government is directed to consider the case of the petitioners for grant of 6 th Pay Commission benefits as well as 7 th Pay Commission benefits and all consequential benefits arising therefrom. The respondents are further directed to take the necessary decision and pay to the petitioners within ten weeks from the date of receipt of this order the amount payable to the petitioners on the basis of the 6th Pay Commission payscale and revised as per the 7th Pay Commission payscales.

6.2 The arrears which may be payable shall also be paid within ten weeks from the date of receipt of this order.

6.3 It is further directed that if the benefits as directed above are not paid to the petitioners after expiry of the ten weeks period stipulated above, it shall carry interest at the rate of 6% from the date of filing of the petition that is 08.03.2018."

14. The Letters Patent Appeal preferred by the respondent being Letters Patent Appeal No.231 of 2019 is also dismissed by the Division Bench wherein it is held as under :

"We find that learned Single Judge has correctly in exercise of powers under Article 226 of the Constitution of India, after considering the entire record, directed the respondent authorities to consider the case of the petitioners for granting the benefits of 6th Pay Commission and 7 th Pay Commission and grant the same with arrears.

The argument advanced by the learned counsel for the Maritime Board that

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the employees have not made any proposal for getting the benefits pales into insignificance since the learned Single Judge has categorically directed the respondent authorities to consider the case of the petitioners and grant the benefits with arrears without any insistence on the petitioners making any proposal for getting benefits. We further find nothing unusual in the learned Single Judge granting a time bound direction for the implementation of the directions given in the proceedings in exercise of his discretionary powers. The argument made by the counsel for the appellant-Maritime Board regarding interest being awarded is required to be turned down. Learned Single Judge considering the facts of the case in exercise of his discretionary powers, in the event of the benefits as directed not being paid to the petitioners after the expiry of prescribed time limit, directed payment of interest at the rate of 6% from the date of filing of the petition. We do not think it fit to interfere with the said findings of the learned Single Judge.

In line of such clear recording of facts and directions given by the Learned Single Judge, we were not inclined to allow the present Letters Patent Appeal. However, learned counsel for the appellant-Maritime Board continued arguing the matter inspite of our disinclination to interfere with the order passed by learned Single Judge and continued making the same arguments repeatedly. We therefore, impose cost of Rs. 50,000/to be paid by the appellant-Gujarat Maritime Board to the petitioners. Letters Patent Appeal along with Civil Application stands disposed of."

15. In view of the above, the petition deserves to be allowed and is accordingly allowed. The petitioner ought to have been continued in service till he attained the age of 60 years and therefore the respondents are directed to grant notional benefits of two years of service to the petitioner. The petitioner is entitled to the pensionary benefits considering his entire service with the respondents from the date of his entry considering the years in which the petitioner has completed 240 days as per Section 25B of the ID Act, 1947.

16. The petitioner is also entitled to the benefit of 6th and 7th Pay Commissions Recommendations for fixing his pension by revising his pay scale giving effect thereto by the respondent-Board.

17. Such exercise shall be completed within a period

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of 15 weeks from the date of receipt of this order, failing which, the respondents shall be liable to pay interest at the rate of 6% from the date of entitlement of the benefits granted by this order to the petitioner. Rule is made absolute to the aforesaid extent. No order as to cost.

(BHARGAV D. KARIA, J) PALAK