Gujarat High Court
Arjanbhai Virabhai Bambhania vs State Of Gujarat on 27 August, 2021
Bench: Ashutosh J. Shastri
C/CA/3910/2019 CAV JUDGMENT DATED: 27/08/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
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C/CA/3910/2019 CAV JUDGMENT DATED: 27/08/2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MR. JUSTICE VIKRAM NATH
and
HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI
==========================================================
1 Whether Reporters of Local Papers may be allowed Yes
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
==========================================================
ARJANBHAI VIRABHAI BAMBHANIA
Versus
STATE OF GUJARAT
==========================================================
Appearances:
(LETTERS PATENT APPEAL NOS. 1764/2019, 1765/2019 &
1766/2019) , CIVIL APPLICATION NO.3910 OF 2019
MR. MUKESH T MISHRA(5900) for the Applicant(s) No. 1
MR KAMAL TRIVEDI, ADVOCATE GENERAL ASSISTED BY MS NISHA
THAKORE & MR VINAY VISHEN, AGPs for the Respondent(s) No. 1
MR DEEPAK G ALORIA(6580) for the Respondent(s) No. 2
(LETTERS PATENT APPEAL NOS. 587/2018, 326/2018, 325/2018,
413/2018, 588/2018 , 1356/2018, 289/2019, 294/2020, 350/2020 to
377/2020 ) CIVIL APPLICATION NO.22/2020
MR SN SHELAT, SR.ADVOCATE with MR.HS MUNSHAW for Appellants
MR SHALIN MEHTA, SR. ADVOCATE ASSISTED BY MS ASHLESHA PATEL, MS
ADITI RAOL for MS VIDHI BHATT AND MR NAVALDAN LANGA for
Respondent(s)
MR KAMAL TRIVEDI, ADVOCATE GENERAL ASSISTED BY MS NISHA
THAKORE & MR VINAY VISHEN, AGPs for the Respondent(s)
SHRI KIRTIDEV R DAVE for private Respondent
(LETTERS PATENT APPEAL NO. 1211/2019, 1209/2019, 1358/2019,
1238/2019, 1602/2019)
MR. DG CHAUHAN for the Appellant(s)
C/CA/3910/2019 CAV JUDGMENT DATED: 27/08/2021
MR PH PATHAK & MS REENA KAMANI, for private Respondents
MR DIPAK DAVE, ADVOCATE , for the private Respondents
MR KAMAL TRIVEDI, ADVOCATE GENERAL ASSISTED BY MS NISHA
THAKORE & MR VINAY VISHEN, AGPs for the Respondent(s)
(LETTERS PATENT APPEAL NOS. 1734/2019, 1735/2019,
1736/2019) CIVIL APPLICATION NOS.818/2020, 819/2020,
867/2020, 876/2020
MR SHALIN MEHTA, SR. ADVOCATE with MS ASHLESHA PATEL, for
Appellant (s)
MR SN SHELAT, SR. ADVOCATE with MR. HS MUNSHAW for Respondent(s)
MR KAMAL TRIVEDI, ADVOCATE GENERAL ASSISTED BY MS NISHA
THAKORE & MR VINAY VISHEN, AGPs for the Respondent(s)
(LETTERS PATENT APPEAL NOS. 1731/2019, 1733/2019,
1737/2019) CIVIL APPLICATION NO.4161/2019
MR SHALIN MEHTA, SR. ADVOCATE with MS ADITI RAOL, for MS VIDHI
BHATT, for the Appellant(s)
MR SN SHELAT, SR. ADVOCATE with MR. HS MUNSHAW for Respondent(s)
MR KAMAL TRIVEDI, ADVOCATE GENERAL ASSISTED BY MS NISHA
THAKORE & MR VINAY VISHEN, AGPs for the Respondent(s)
==========================================================
CORAM:HONOURABLE THE CHIEF JUSTICE MR. JUSTICE
VIKRAM NATH
and
HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI
Date : 27/08/2021
(PER : HONOURABLE THE CHIEF JUSTICE MR. JUSTICE VIKRAM NATH)
1. These groups of appeals relate to the interpretation,
implementation and the benefits flowing from the Government
Resolution dated 17.10.1988, which was initially made
applicable to the Roads and Building Department of the State
Government, as such, have been heard analogously and are
being disposed of by this common judgment.
2. Later on, the Gujarat Water and Sewerage Board
also adopted the said Government Resolution. There are four
C/CA/3910/2019 CAV JUDGMENT DATED: 27/08/2021
categories of appeals. First group relates to grant of leave
encashment of 300 days to those employees covered by the
Government Resolution dated 17.10.1988. Second group is by
the employees, claiming benefits of the 6 th Pay Commission
with effect from 01.01.2006 instead of 14.11.2014 as has been
extended by the learned Single Judge. Third group of appeals
has been filed by the Gujarat Water and Sewerage Board,
challenging the judgment of the learned Single Judge
extending five benefits to the employees covered by the
aforesaid Government Resolution. The fourth group is by the
employees who have not been extended five benefits by the
learned Single Judge. We will deal with each of the aforesaid
classified groups separately one by one.
I. Group of matters relating to Leave Encashment
(Letters Patent Appeal Nos.294 of 2020, 350 of 2020 to
377 of 2020, 1602 of 2019, 1209 of 2019, 1211 of 2019,
1358 of 2019 and Letters Patent Appeal (Filing)
Nos.4056 of 2020, 18580 of 2020 and 18595 of 2020):
3. We first deal with this issue as it has already been
adjudicated upon upto the Supreme Court. The above appeals
are filed either by the State of Gujarat or its Departments or
the Sewerage Board assailing the judgment and order of the
C/CA/3910/2019 CAV JUDGMENT DATED: 27/08/2021
learned Single Judge whereby the benefit of Leave Encashment
of 300 days was extended to the employees - petitioners.
4. The above issue apart from being raised in earlier rounds
was also the subject-matter of consideration before a Division
Bench of this Court in Letters Patent Appeal No.1614 of 2019
arising out of Special Civil Application No.8498 of 2019 and
was disposed of by order dated 13.09.2019. The only ground
raised before the Division Bench was that the learned Single
Judge while extending the benefit of leave encashment of 300
days had issued a mandamus to extend the said benefit
without giving liberty to the department to verify as to whether
sufficient length of service had been rendered by the
employees - petitioners so as to accumulate 300 days of
earned leave in their account. To that limited extent, the
judgment and order of the learned Single Judge was modified
that the State would verify about the admissibility of 300 days
for conversion into leave encashment considering the total
length of service of the writ petitioners. The relevant portion of
the said order dated 13.09.2019 is reproduced below :
"5. Normally, we would have issued notice to the
respondents in the appeal, but considering the nature
of relief pressed, which appears to be innocuous and
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even otherwise it is fair and reasonable that the State
authorities (employers) may verify from the record
regarding entitlement. We are not issuing notice to the
respondents as apparently no prejudice would be
caused to them by the modification sought.
6. Thus without disturbing the entitlement allowed
by the learned Single Judge, we dispose of this appeal
with the limited modification that before making the
payment, the appellants would verify about the
admissibility of 300 days for conversion into leave
encashment as per the direction given by the learned
Single Judge considering the total length of the service
of the writ petitioners (respondents 1 and 2).
7. In case, the respondents 1 and 2 feel aggrieved
by this order, they would be free to apply for recall of
this order.
8. With the above modification, the appeal is
disposed of. Consequently, connected civil application
for stay is disposed of."
5. This judgment and order dated 13.09.2019 passed in
Letters Patent Appeal No.1614 of 2019 was carried by the
State of Gujarat to the Supreme Court by way of Special Leave
Petition (Civil) Diary No.20010 of 2020. The Special Leave
Petition was dismissed both on the ground of limitation as also
merits vide order dated 13.01.2021. The order of the Supreme
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Court is reproduced hereinbelow :
"We find no ground to condone the delay and we have
dismissed a number of petitions of the very State
Government with costs today. The factum of a young
counsel before us is the only reason we restrain
ourselves from imposing costs once again.
We may also notice that insofar as the merits of the
case are concerned, the only issue which was raised
was whether the respondent had accumulated
sufficient leaves for grant of payment of 300 days'
leave and it is stated in the arguments of the Assistant
Government Pleader that "there is no issue" other
than that. The appeal was thus, disposed of giving
liberty to the petitioner to verify about the
admissibility of 300 days for conversion into leave
encashment. That being the position, we fail to
appreciate why this SLP has been preferred. The
reason which now appears is that the petitioner wants
to raise other grounds which had never been pressed
before the Division Bench.
In view of the aforesaid the matter is dismissed both
on limitation and on merits.
Pending application stands disposed of."
6. Therefore, for the reasons recorded by the learned Single
Judge in the order impugned in the appeal, subsequently also
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development has taken place vide judgment dated 13-09-2019
in Letters Patent Appeal No.1614 of 2019 by which the State
employer was given liberty to verify the admissibility of 300
days leave encashment. This order having been affirmed by
the Supreme Court, apparently no merit can be found in these
appeals.
7. The delay caused in filing Letters Patent Appeal (Filing)
Nos.18580 of 2020 and 18595 of 2020 is condoned and the
Civil Applications for condonation of delay filed in the said
appeals are allowed.
8. Accordingly, this group of appeals comprising of Letters
Patent Appeal Nos.294 of 2020, 350 of 2020 to 377 of 2020,
4056 of 2020, 1602 of 2019, 1209 of 2019, 1211 of 2019,
1358 of 2019 and Letters Patent Appeal (Filing) Nos.18580 of
2020 and 18595 of 2020 are hereby disposed of in the same
terms as the judgment dated 13.09.2019 duly affirmed by the
Supreme Court. Consequently, the connected Civil
Applications to these appeals stand disposed of.
II. Group of matters claiming benefits of 6 th Pay
Commission(Letters Patent Appeal Nos.1356 of 2018,
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1731 of 2019, 1735 of 2019, 1733 of 2019 to 1734 of
2019, 1736 of 2019, 1765 of 2019 and Letters Patent
Appeal (Filing) Nos.35122 of 2019 and 18672 of 2020):
9. The second group of petitions is by the original writ
petitioners whereby they have claimed the benefits of the 6 th
Pay Commission with effect from 01.01.2006 instead of
14.11.2014 as has been extended by the learned Single Judge.
To this extent, they have prayed for modification of the
judgment and order of the learned Single Judge.
10. We first examine the reasoning given by the learned
Single Judge based upon the facts, grounds and arguments
advanced before the learned Single Judge.
11. The learned Single Judge traced the litigation relating to
the grant of the benefits of 6th Pay Commission by referring to
a judgment of this Court dated 18.10.2016 in the case of
Anand Bhausaheb Pawar Vs. Gujarat Water Supply and
Sewerage Board, Special Civil Application No.11239 of
2016 and other connected matters wherein benefit of 6 th Pay
Commission was awarded prospectively i.e. October, 2016. In
the said case, the petitioners were similarly situated as the
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present original petitioners. They had also complained of not
being extended the benefits of the 6 th Pay Commission. This
Court had relied upon the judgment dated 16.07.2014 passed
in the case of Atul C. Soni Vs. Gujarat Water Supply and
Sewerage Board, Special Civil Application No.1563 of
1992. The judgment in the case of Atul C. Soni (supra) was
based upon the judgment dated 18-03-2011 of the Division
Bench of this Court in the case of State of Gujarat Vs.
Mahendrakumar Bhagvandas rendered in Letters
Patent Appeal No.958 of 2001 reported in 2011(2) GLR
1190.
12. The judgment in the case of Atul C. Soni (supra) came
to be confirmed by the Division Bench vide judgment dated
16.07.2014 in Letters Patent Appeal No.325 of 2013 and
Letters Patent Appeal No.789 of 2013. This was further carried
to the Supreme Court by way of Special Leave to Appeal (Civil)
Nos.29108-29114 of 2014. The Supreme Court vide order
dated 14.11.2014 passed an interim order to the extent that
the payment of arrears in terms of the impugned judgment
would remain stayed. Further, benefits held admissible in
terms of the said judgment may be released in favour of the
respondents for the future i.e. from 14.11.2014 onwards. Later
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on, the Supreme Court vide order dated 14.08.2015 relied
upon the statement of Shri L.N. Rao, learned Senior Counsel
appearing for the petitioner Board that a decision in principle
had been taken to extend the benefits admissible to such
employees for the future in terms of the order dated
14.11.2014 within a period of six weeks. Later on, the Supreme
Court vide order dated 25.10.2017 disposed of the Special
Leave Petitions by recording that in view of the statement
made on behalf of the petitioner Board as recorded in the
order dated 14.08.2015, pending applications were also
disposed of.
13. From the above, it was clear that the policy decision
taken by the Board to extend the benefit with effect from the
date of the interim order passed by the Supreme Court dated
14.11.2014 was accepted by the Supreme Court and
accordingly, the Special Leave Petitions were disposed of in
terms of the statement recorded in the order dated
14.08.2015. Based upon the aforesaid analogy, the learned
Single Judge relying upon the order passed in Anand
Bhausaheb Pawar (supra) held that the benefit as extended
with effect from 14.11.2014 which had in turn relied upon the
order of the Supreme Court in the case of Atul C. Soni
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(supra), Special Leave to Appeal (Civil) Nos.29108-29114 of
2014 extended the benefit from the same date i.e. 14.11.2014.
The relevant paragraphs of the judgment of the learned Single
Judge as recorded in paragraph Nos.5, 5.1, 5.2, 5.3, 5.4, 5.5
and 6 are reproduced hereunder:-
"5. Having considered the controversy and the
contentions, it was at the outset noticed that this Court
decided Special Civil Application No.1563 of 1992 and
cognate petitions holding inter alia that benefit of
Government Resolution dated 17th October, 1988 is
required to be extended to even those who came to be
appointed after the date of Resolution. The said group of
petitions were by the similarly situated employees of the
same respondent Board, which came to be decided by
common judgment dated 31st January, 2013 and in
which it was held by the Court in the concluding
paragraph 10,
"Considering the totality of the facts and law as
discussed above, I find that the grouping of daily
wagers sought to be made by the respondent Board
on the basis of the cut off date of 30.11.1994, to
deny benefits of Government Resolution dated
17.10.1988, is illegal and arbitrary and the same is
rejected. It is held that even those daily wagers who
are appointed after 30.11.1994 shall also be
extended the benefits of Government Resolution
dated 17.10.1988 and thus, they will stand at par
with the petitioners of Special Civil Application
No.1563 of 1992 and shall also be entitled to the
benefits, which are claimed by and are directed to
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be paid to the petitioners of Special Civil Application
No.1563 of 1992."
5.1 Against the said judgment, Letters Patent Appeal
No.325 of 2013 in Special Civil Application No.11280 of
2013 (part of the above group), was preferred and the
judgment came to be confirmed. It is useful to reproduce
the following paragraphs from the Division Bench
judgment.
"11. As regards daily wagers appointed upto the
year 1988, it is the case of the appellants that the
benefits accorded to the permanent employees
could not be extended to them as they do not hold
any post. It has come to our notice that similar
issues were raised in Special Civil Application
Nos.5699 of 1987; 517 of 1988 and 6783 of 1988,
decided on 02.05.2000. The petitions were allowed
with a direction that all the workmen concerned be
treated as permanent employees at par with other
regular employees and that they shall be granted
all the benefits as such. Being aggrieved with the
said order, Letters Patent Appeal No.958 of 2001
and cognate matters were filed which were decided
on 18.03.2011. Notwithstanding the fact that earlier
in Special Civil Application No.26790 of 2007 and
cognate matters, the learned Single Judge had vide
Order dated 01.07.2009 rejected similar contention
of the petitioner and the said Order was upheld in
Letters Patent Appeal No.2117 of 2010 decided on
11.10.2010; the Division Bench of this Court
dismissed Letters Patent Appeal No.958 of 2001 and
cognate matters, reported in (2011) 2 GLR 1290.
The said judgment and order was challenged before
the Supreme Court which was rejected vide Order
dated 09.11.2012 recorded in Special Leave to
Petition (Civil) Nos.35043-35048 of 2012. Thus, the
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decision of this Court in Letters Patent Appeal
No.958 of 2001 and cognate matters, decided on
18.03.2011 has attained finality and all issues are
properly addressed. The learned Single Judge has
rightly observed that the grievance raised by the
respondents, i.e original petitioners in Special Civil
Application No.1563 of 1992 is already answered by
the Division Bench of this Court. We are in full
agreement with the above decision rendered by the
learned Single Judge. Independent of this, we are of
the considered opinion that these benefits in nature
of allowances and concessions are incidental to
services and they should be normally granted to
such employees when they are treated at par with
other regular employees. In view of the above,
Letter Patel Appeal No.789 of 2013 fails and is
accordingly, dismissed.
12. Now, we may proceed to examine the case of
the daily wagers appointed after 30.11.1994. It is
the contention of the appellants that the Board had
taken a policy decision on 30.11.1994 that no new
daily wagers be appointed. Still, they were
appointed without prior permission or even
intimation to the higher authorities, for which
penalties are imposed on number of officers for
breach of administrative instructions issued on
30.11.1994. The appointment as daily wagers at the
grass root level are without following any regular
procedure laid down for regular recruitment and
therefore they do not have any right of
regularization or the benefits flowing from the
Government Resolution dated 17.10.1988.
13. It is an admitted position that the appellant
Board adopted the Government Resolution dated
17.10.1988 as a policy vide its circular dated
08.06.1989. The said Resolution, inter-alia, provides
that no appointment as daily wager shall be made
by any office thereafter. Still, daily wagers
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continued to be appointed by the Board and they
were given benefits flowing from the aforesaid
Government Resolution. Thereafter the appellant
Board reiterated its policy vide another Circular
dated 30.11.1994 that no daily wager shall be
appointed but still hundreds of daily wagers came
to be appointed after 30.11.1994 and now the
Board denies to extend the benefits flowing from
the Government Resolution dated 17.10.1988 to
such daily wagers appointed after 30.11.1994
terming their appointment as illegal, which cannot
be accepted as it is arbitrary and bad in law. On one
hand, the Board issues circular that no daily wagers
shall be appointed from 30.11.1994 and still the
very Board appoint hundreds of daily wagers in
gross violation of their own policy and after passage
of more than 15 years terming the action of
appointing these daily wagers as illegal cannot be
accepted and needs to be rejected. The Board
cannot punish others for their own wrongdoings. It
is a settled legal proposition that a person alleging
his own infamy cannot be heard at any forum. If a
person has committed a wrong, he cannot be
permitted to take the benefit of his own wrong,
14. In view of the above discussion, we see no
infirmity in the judgment and order passed by the
learned Single Judge and we are in complete
agreement with the reasons recorded by the
learned Single Judge."
5.2 Against the aforesaid judgment, Special Leave
Petition (C) No.29108-29114 of 2014 was preferred, in
which the Apex Court on 14th November, 2014 passed
the order thus,
"Issue notice returnable within six weeks.
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We direct that while payment of arrears in terms of
the impugned judgment shall remain stayed,
benefits held admissible in terms of the said
judgment may be released in favour of the
respondents for the future.
Mr. Abhishek Vinod Deshmukh, Adv. has entered
appearance on behalf of the respondent in SLP (C)
No.29108 of 2014. Notice shall now issue to the
remaining respondents only."
5.3 Therefore, as per the unequivocal order of the
Apex Court, it is in terms directed that though the
judgment will remain stayed, the benefits held
admissible in terms of the judgment shall be given to the
employees for the future. It is therefore clear that the
petitioners of the said petitions are allowed
prospectively the benefits of the 6th Pay Commission.
There is no gainsaying that the present group of
employees consisting of the petitioners in the captioned
petitions, are identically placed.
5.4 It is further not disputable, as it stems from the
record of the petition that pursuant to the order of the
Supreme Court as above, availment of the benefits have
been acted upon. The petitioners have produced on
record copy of office order No.59/2016 dated 02 nd
September, 2016. The said order provides to grant the
6th Pay Commission benefits to all those employees who
filed petitions. On perusal of the said order (Page 119 to
143 in Special Civil Application No.11239 of 2016)
accompanies the details of all such persons who had
filed respective petitions and given benefits. The
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respondent Board has issued Circulars dated 10 th
September, 2016 and 30th August, 2016. It is further
born out from the record that the Narmada and Water
Supply Department of the State Government addressed
communication to the respondent Board, with reference
to the orders passed in the aforementioned petitions,
Letters Patent Appeals and the order of the Apex Court,
forwarded proposal dated 10th August, 2016 for
initiating the procedure to pay the 6th Pay Commission
pay-scales to the said class of persons who were the
petitioners. The State Government accorded sanction
and approved to pay the benefits subject to final
outcome of the Leave Petitions before the Supreme
Court.
5.5 The conspectus of the aforesaid undisputed facts
go to show that the petitioners herein hold the same
capacity and entitlement to the employees who had filed
the aforementioned petition, the order in which travels
to the Letters Patent Bench and finally before the Apex
Court to culminate into order mentioned in paragraph
5.2 hereinabove. Those petitions and the present
petitioners constitute a single homogeneous class. The
very benefits of 6th Pay Commission Recommendations
accorded and approved by the Supreme Court by virtue
of the aforesaid order, are required to be given to the
same extent, to the present petitioners. The petitioners
belonging to the same class of persons and similarly
situated, denial of 6th Pay Commission benefit to them
would offend Articles 14 and 16 of the Constitution. The
respondents would act only in violation of Articles 14 and
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16 of the Constitution, if they do not accord the benefit
to the petitioners herein.
6. The defence that there is a financial constraints
in releasing the payment of 6th Pay Commission
benefits, sought to be raised by the respondents, stand
on a weak footing, more particularly in the facts and
circumstances of the case where the petitioners are
identically placed to the other batch of employees who
upon the orders of the Courts as above, have been
extended the benefit. Financial pressure on the
exchequer of the Government may be a ground which
could be generally pleaded as defence in a general fact
situation, but in the specifics of the present case, it
would be a clear discrimination and unfair treatment
against the constitutional guarantee of equality and
equal treatment in the public employment, to refuse the
benefits of the present similarly situated petitioners. In
State of Rajasthan Vs Mahendra Nath Sharma
[(2015) 9 SCC 540], though in the context of payment
of pension, the Supreme Court in clear terms observed
that when the respondent Lecturers were entitled to
selection grade and effect thereof in their pension, the
fact that it could impose heavy financial burden on the
State was inconsequential, since legitimate dues of the
employees cannot be denied."
14. Mr. Shalin Mehta, learned Senior Advocate appearing for
the employees-appellants submitted that all the daily wagers
engaged by the respondent Board whether prior to 01.10.1988
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or thereafter should be treated alike. According to him, once
the benefit of 6th Pay Commission has been extended to the
daily wagers appointed prior to 01.10.1988, with effect from
01.01.2006, the daily wagers appointed after 01.10.1988 are
being discriminated by extending the benefit from 14.11.2014.
The appellants, according to Mr. Mehta, were appointed
between 01.10.1988 and 30.11.1994, as such, they have been
wrongly clubbed with daily wagers appointed after 30.11.1994.
Mr. Mehta submitted that they all form one homogeneous
group and any attempt to discriminate against them on the
basis of any cut-off date would amount to mini-classification
which is not permissible and would be arbitrary, unreasonable
and hit by Article 14 of the Constitution of India. He, therefore,
submitted that the action of the respondents is discriminatory,
arbitrary and violative of Article 14 of the Constitution of India.
15. Mr. Mehta further submitted that the cut-off date
30.11.1994 adopted by the Board for denying benefits under
the Government Resolution dated 17.10.1988 to daily wagers
appointed after 30.11.1994 has already been held to be illegal
and unconstitutional by this Court and the Supreme Court. Mr.
Mehta submitted that the daily wagers appointed after
30.11.1994 had filed several petitions claiming benefit of the
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Government Resolution dated 17.10.1988. The said group of
petitions was allowed vide judgment dated 31.01.2013 passed
in Special Civil Application No. 1563 of 1992, case of Atul C.
Soni (supra) and other connected matters. The matters were
carried in an intra-court appeal by the respondent Board which
were dismissed by the Division Bench vide judgment dated
16.07.2014 thereupon the Board preferred Special Leave to
Appeal Nos.29108-29114 of 2014. The Supreme Court in this
group of Special Leave Petitions finally disposed of the same in
terms of the statement made by the learned counsel on behalf
of the Board recorded in the order dated 14.08.2015. Thus,
according to Mr. Mehta, the employees who were engaged
after 30.11.1994 were given the benefits from the future date
of the interim order i.e. 14.11.2014.
16. Mr. Mehta further submitted that the question would be
that why should the employees engaged between 01.10.1988
and 30.11.1994 be granted the benefit of 6th Pay Commission
from subsequent date which was applicable to the employees
appointed after 30.11.1994 and why should not they be
clubbed with the employees appointed prior to 01.10.1988.
17. The submissions advanced on behalf of the State and the
Sewerage Board is to the effect that the employees in the
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present group of appeals are those who were appointed after
01.10.1988 but before 30.11.1994. They form a separate class.
The benefits of the 6th Pay Commission although extended to
the daily wagers appointed prior to 01.10.1988, as they fell in
a separate class and were covered by the first Government
Resolution dated 17.10.1988, extending permanency with
other benefits as enumerated therein. Insofar as the daily
wagers who were appointed after 30.11.1994 and who are not
being extended the benefit of the Government Resolution
dated 17.10.1988, had raised their claim by way of petitions
before this Court. This Court extended the benefits of the
Government Resolution dated 17.10.1988. The Division Bench
dismissed the appeals filed by the Sewerage Board and
confirmed the judgment of the learned Single Judge. The
matter was taken to the Supreme Court by way of Special
Leave Petitions wherein an interim order was passed on
14.11.2014 staying the payment of arrears but with a rider
that future dues as per the Government Resolution dated
17.10.1988 may be paid. Thereafter, learned Senior Counsel
appearing for the Sewerage Board Shri L.N. Rao made a
statement that in principle the Board has decided to extend
the benefits for future i.e. to say with effect from 14.11.2014.
The Supreme Court recorded the said statement of Shri L.N.
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Rao and subsequently disposed of the Special Leave to Appeal
in terms of the interim order i.e. to say that the benefits of the
Government Resolution dated 17.10.1988 were to be extended
with effect from 14.11.2014 only and accordingly, the benefits
of the 6th Pay Commission to those daily wagers who were
appointed after 30.11.1994 was given from 14.11.2014.
According to the learned counsels for the Sewerage Board and
the State, the learned Single Judge did not commit any error in
adopting the same and approving the policy decision of the
Sewerage Board to extend the benefit of 6th Pay Commission
with effect from 14.11.2014.
18. The policy decision taken by the State or the Board
normally would not be interfered with by way of judicial review
unless it is found to be completely arbitrary, unreasonable or
without any basis. The law is well settled on this by the
Supreme Court. A reference may be had to the following
decisions:
i) (2017)3 SCC 504 in the case of Union Of
India & Ors vs M. Selvakumar & Anr. It has
been held by the Supreme Court in paragraph 47
of the said case as under:
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"47. There is one more reason due to which we are
unable to subscribe to the view taken by the Madras High
Court and Delhi High Court. The horizontal reservation
and relaxation for Physically Handicapped Category
candidates for Civil Services Examination, is a matter of
Governmental policy and the Government after
considering the relevant materials have extended
relaxation and concessions to the Physically Handicapped
candidates belonging to the Reserved Category as well
as General Category. It is not in the domain of the courts
to embark upon an inquiry as to whether a particular
public policy is wise and acceptable or whether better
policy could be evolved. The Court can only interfere if
the policy framed is absolutely capricious and non-
informed by reasons, or totally arbitrary, offending the
basic requirement of the Article 14 of the Constitution."
ii) AIR 2021 SC 3183 in the case of Rachna vs
Union Of India. The Supreme Court in paragraph 45
of the said case observed as under:
"45. Judicial review of a policy decision and to issue
mandamus to frame policy in a particular manner are
absolutely different. It is within the realm of the
executive to take a policy decision based on the
prevailing circumstances for better administration and in
meeting out the exigencies but at the same time, it is not
within the domain of the Courts to legislate. The Courts
do interpret the laws and in such an interpretation,
certain creative process is involved. The Courts have the
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jurisdiction to declare the law as unconstitutional. That
too, where it is called for. The Court is called upon to
consider the validity of a policy decision only when a
challenge is made that such policy decision infringes
fundamental rights guaranteed by the Constitution or any
other statutory right. Merely because as a matter of
policy, if the 1st respondent has granted relaxation in the
past for the reason that there was a change in the
examination pattern/syllabus and in the given situation,
had considered to be an impediment for the participant
in the Civil Service Examination, no assistance can be
claimed by the petitioners in seeking mandamus to the 1
st respondent to come out with a policy granting
relaxation to the participants who had availed a final and
last attempt or have crossed the upper age by appearing
in the Examination 2020 as a matter of right."
19. In the present case, what we found is that the earlier
policy decision taken by the Sewerage Board with respect to
daily wagers appointed after 30.11.1994 stood endorsed and
approved by the Supreme Court. The employees in the present
group of appeals are those who were appointed between
01.10.1988 and 30.11.1994. The learned Single Judge has,
therefore, extended the same benefits to this group of
employees by directing that 6th Pay Commission benefits be
extended from the same date from which the employees
appointed after 30.11.1994 were extended.
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20. Having considered the submissions, what falls for our
consideration is the question that there were already two
different classes of employees who were extended the benefits
of the 6th Pay Commission from different dates. One category is
of the employees appointed prior to 01.10.1988 who have
been extended the benefit with effect from 01.01.2006 of the
6th Pay Commission and the other category is of the employees
engaged after 30.11.1994 who have been extended the
benefit with effect from 14.11.2014. The appellants in the
present set of appeals were appointed in between the two
dates. They form a third category of employees. The extension
of benefit from a particular date would be a policy decision and
it was for the employer to decide the same. The present
appellants therefore form a different class of having been
engaged after 01.10.1988 but before 30.11.1994. They want
parity and equal treatment with the employees engaged prior
to 01.10.1988. When there is already a second class created
which had been extended the benefit from 14.11.2014, the
appellants if placed in the said category, it cannot be said that
they have been discriminated, as such a decision would be in
the realm of a policy decision with which this Court would be
loathe to interfere unless it was arbitrary.
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21. The Government Resolution dated 17.10.1988 had been
brought in, in order to extend the benefit to the employees
who were working on daily wage basis and engaged prior to
01.10.1988. By subsequent Government Resolutions, although
benefit was extended to subsequently engaged daily wagers
also and ultimately vide Government Resolution dated
30.11.1994, the Government had taken a decision not to make
any further appointment on daily wage basis. The very fact
that the appellants form a different class, is crystal clear. If
they had been extended the benefit with effect from
14.11.2014 of the 6th Pay Commission, no fault can be found
with the policy decision of the Sewerage Board or the State
Government. This Court cannot interfere with the policy
decision which is based upon a rationale. The learned Single
Judge therefore cannot be faulted with the relief granted to the
appellants of being extended the benefit of the 6 th pay
Commission with effect from 14.11.2014. Accordingly, this
group of appeals is dismissed. Consequently, connected Civil
Applications stand disposed of.
III. Group of matters challenging grant of benefits
covered by Government Resolution (Letters Patent
Appeal Nos.325 of 2018, 326 of 2018, 413 of 2018, 587
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of 2018, 588 of 2018, 289 of 2019, 1238 of 2019, 1737
of 2019, 1764 of 2019, 1766 of 2019 and Letters Patent
Appeal (Filing) Nos.36046 of 2019 and 38202 of 2019):
22. The arguments on behalf of the Board and the State are
on similar lines. Shri S.N. Shelat, learned Senior Counsel
assisted by Shri D.G. Chauhan, learned advocate for the Board
in some of the appeals and for the State, learned Advocate
General, Shri Kamal Trivedi assisted by Ms. Nisha Thakore, Shri
D.M.Devnani and Shri Vinay Vishen, learned AGPs have been
heard.
23. Shri Kamal Trivedi, learned Advocate General has
assisted the Court in dealing with the controversy in question.
The State is impleaded as the respondent in a number of
appeals and various departments of the State like Roads and
Building Department have preferred appeals and as such, we
have had the benefit of hearing learned Advocate General.
Although serious objection was raised by the learned counsels
for the original writ petitioners, in particular Shri Shalin Mehta,
learned Senior Advocate, that the State does not have any
locus to argue in these appeals inasmuch as the State has not
preferred any appeal against the judgment of the learned
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Single Judge, however, for the reasons recorded above, we are
unable to sustain the objection raised by Shri Mehta and have
accordingly heard Shri Trivedi, learned Advocate General at
length.
24. Shri Trivedi's submission is very specific to the extent
that the Government Resolution dated 17.10.1988 has never
been interpreted in any of the judgments relied upon by the
learned counsels for the original petitioners. Shri Trivedi has
drawn our attention and has referred to the history of the
litigation relating to the Government Resolution dated
17.10.1988 which we will shortly refer to. Before that Shri
Trivedi gave us a brief history which gave rise to, rather
compelled the State to issue the Government Resolution dated
17.10.1988.
25. According to Shri Trivedi, there was State-wide agitation
going on of the Labour Unions working in the Government
departments alleging victimization, harassment, inequity and
discrimination of the daily-wage labourers, who were engaged
on contract basis in thousands and lakhs by different
Government departments and in particular the Road and
Building Department. Large scale protests were being made
disrupting the normal life in the State of Gujarat. The
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Government at that stage had constituted a Committee under
the Chairmanship of Shri Daulatbhai Parmar, who was the then
Minister for Road and Building Department. The said
Committee submitted its report and on the basis of which the
Government Resolution dated 17.10.1988 was issued. The
recommendations apparently were to the effect that subject to
minimum number of years being completed by the daily-
wagers / contractual labourers working in the State
departments, their status would be enhanced, providing them
security of job. It was a kind of understanding / agreement
between the Labour Union and the State that all such workers
would be given a permanent status with pay-scale subject to
fulfillment of minimum length of service. This condition of the
length of service to be fulfilled and the elevated status given to
the workman is laid out in the Government Resolution dated
17.10.1988.
26. The State issued three separate Government Resolutions
dated 17.10.1988 dealing with unskilled workers, semi-skilled
workers and skilled workers. The Resolutions bearing No.WCE-
1588-(5)(1)/G.2 are materially the same with very slight
modification of the category etc. In effect, the Resolution No.1
provided that all those daily-wage labourers who have
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completed less than 5 years would be paid on daily-wage basis
as per the prevailing minimum wages and upon completion of
more than 240 days of work in the first year, they would be
given benefit of paid holidays on Sundays, Medical Allowance
and other National Festival holidays. Resolution No.2 was to
the effect that as on 01.10.1988 all the daily-wage labourers
who had rendered service of more than 5 years but less than
10 years would be entitled to wages for the days of work and
Sundays on a fixed pay of Rs.750/- with prevailing Dearness
Allowances and they would also be further entitled to 2 days
Optional Leave, 14 days Casual Leave and other benefits
mentioned therein which also include contribution to General
Provident Fund. Resolution No.3 provided that all daily-wage
labourers who had completed more than 10 days of service as
on 01.10.1988 would be treated as permanent daily-wage
labourers and would be placed in the pay-scale of Rs.750-940/-
with Dearness Allowances and City Compensatory Allowance.
They would be also entitled to pension, gratuity, General
Provident Fund etc. as per the prevailing Rules and in addition
to the above, holidays, earned leave etc. To make the
narration accurate and complete, English translation (provided
by the State) of the Government Resolution dated 17.10.1988
is being reproduced hereunder :
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"Regarding acceptance
of the recommendations
of the Committee
constituted under the
Chairmanship of Shri
Dolatbhai Parmar, the
Hon'ble Minister for
Roads and Buildings on
the demands of labour
unions.
Daily-wage labourers
State of Gujarat
Road and Building Department
Resolution No.: WCE-1588-(5)(1)/G.2.
Block No. 14, Sardar Bhavan,
Sachivalay, Gandhinagar, 17.10.1988
READ: Roads and Buildings Department Resolution No.
WCE-1588-(5)-G dated 24.03.1988.
The daily-wagers working under the different
departments of the State Government had been making
representations, in regard to their long pending
questions, through Gujarat State Employees Union,
Gujarat State Public Works Labourers Union and other
different unions time and again. Therefore, with a view to
carry out the study of the policy demands of those labour
unions and their pending questions and to make
appropriate recommendations to the State Government,
the State had formed a committee under the
Chairmanship of Shri Dolatbhai Parmar, the Hon'ble
Minister for Roads and Buildings Department, vide its
Resolution bearing No.WCE-1488-(5)-G, Dated:
24.03.1988 and the said Committee, after carefully
examining the issues of salary, service conditions and
other benefits extended to the labourers working in the
different departments of the State and discharging the
duties of the maintenance of the constructions etc., viz.
Roads and Buildings Department, Water Resource
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Department, Forest Department, Agriculture Department,
Narmada Development Department, Water Supply and
the Panchayats and Rural Housing Development,
submitted its report to the State.
RESOLUTION:
The report submitted by the Committee has been taken
into consideration by the State Government. And
accordingly, it is, hereby, resolved to accept all the
recommendations of the Committee. It is, therefore,
resolved to extend the following salary and other service
related benefits to the daily-wage labourers discharging
duties in the different departments of the State
Government.
(1) The daily-wage labourers, who have completed less
than five years of service as on 01.10.1988, shall be paid
on daily wage basis as per the prevailing Minimum
Wages Act, and on completion of more than 240 days of
work in the first year, they shall be granted the benefit of
paid holidays on Sundays, medical allowances and other
national festival holidays.
(2) As on 01.10.1988, daily-wage labourers who have
rendered service of more than five years but less than
ten years, as defined in section 25B of the Industrial
Disputes Act, are entitled to wages for the days of work
and Sundays at the rates worked out by taking the Rs.
750 as fixed pay with the prevailing dearness allowance.
Such daily-wagers will also get 2 days optional leave in
addition to 14 days casual leave, paid Sunday holiday
and national festival holidays. Such daily-wagers will also
be eligible for medical allowance and benefit of
contribution to General Provident Fund as per the
prevalent rules.
(3) As on 01.10.1988, daily-wage labourers who have
completed more than ten years of service as defined in
section 25B of the Industrial Disputes Act, are treated as
permanent daily-wage labourers and they will be placed
in the pay scale of Rs. 750-940 with dearness allowance,
and city compensatory allowance. They are entitled to
the benefits of pension, gratuity, General Provident Fund,
etc., as per the prevailing rules. This apart, every year,
they are entitled to 2 days optional leave, 14 days casual
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leave, 30 days earned leave and 20 days half-pay leave,
besides weekly Sunday holiday and national festival
holidays. Permanent labourers' retirement age is 60
years. Permanent service will be treated as pensionable
service.
Further, the daily-wage labourers, who have
completed more than 15 years' service as on
01.10.1988, shall be entitled to one Increment in the pay
scale of Rs.750-940, 2 Increments on completion of 20
years and 3 increments on completion of 25 years and
accordingly their pay will be fixed as on 01.10.1988.
2. Now, a complete and total ban is, hereby, imposed
on the recruitment of daily-wagers. If, any new
recruitment of daily-wagers is done by any officer, the
amount of salary paid to such daily-wagers shall be
recovered from the salary of the officer concerned.
3. Since, the State Government has resolved to
implement the recommendations of the Committee with
effect from 01.10.1988, this order shall be effective from
01.10.1988.
4. This order has been issued with the consent of the
Finance Department of the State, Dated: 14.10.1988, and
the General Administration Department of the State,
Dated: 17.10.1988.
By Order and in the name of the Governor of Gujarat.
Sd./illegible
(H.K. Akhani)
Deputy Secretary to the State Government
Road and Building Department."
27. The core issue according to Shri Trivedi would be the
interpretation of the language as couched in Resolution No.3
i.e. where the daily-wage labourers have completed 10 years
or more, were to be given pay-scale with Dearness Allowance
and other benefits and were to be treated as permanent. Shri
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Trivedi submitted that at no place in the entire Government
Resolution dated 17.10.1988, it is mentioned that such daily-
wage labourers were being regularized against existing
vacancies and were being given the status of the Government
servant or were to be treated at par with Government
servants.
28. Shri Trivedi, however, submitted that the Government
Resolution dated 17.10.1988 although has been in
consideration and the basis of hundreds of judgments before
the High Court by the learned Single Judge, Division Bench and
also the Supreme Court but in no case the interpretation and
the true import of the Government Resolution dated
17.10.1988 has either occasioned or was drawn to the
attention of the Court or that the Court whether the High Court
or the Supreme Court has dealt with this aspect of the matter
as to what status was being conferred to the daily-wage
labourers under the aforesaid Government Resolutions.
29. Shri Trivedi has traced out the litigation dealing with the
involvement of the Government Resolution dated 17.10.1988,
the various claims made on its basis and the views expressed
by this Court, be it the learned Single Judge or the Division
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Bench and the Supreme Court. The details of the same are
referred hereunder:-
i. In the case of Karshanbhai K. Rabari & Ors. v. State
of Gujarat, Special Civil Application No. 11071 of
1993 decided on 09-05-1997, referring to paragraphs 9
and 10, Shri Trivedi submitted that the reliefs claimed by
the writ petitioners directing the State of Gujarat to give
benefits such as L.T.C, Leave encashment, etc. relying
upon Government Resolution dated 17.10.1988 with
respect to the daily wagers who became eligible on
completion of 240 days of employment and further
regularizing their services with all the consequential
benefits were granted by the learned Single Judge by
dismissing the said petitions. The learned Single Judge
was of the view that the employees appointed on daily
wage basis cannot claim parity with the employees in
regular establishment who were appointed in accordance
with the recruitment rules in all respect. It is also the
finding of the learned Single Judge that the Government
Resolution dated 17.10.1988 does not confer any such
benefit.
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ii. The writ petitioners-Karshanbhai K. Rabari and others
preferred Letters Patent Appeal No.1134 of 1997.
The Division Bench allowed the appeal and held that the
original writ petitioners would be entitled to the benefits
given to other permanent Government employees, vide
judgment dated 10.03.2004. A reference has been made
to paragraph No.6 thereof.
iii. The State of Gujarat preferred Special Leave Petition
before the Supreme Court. The Supreme Court vide
judgment and order dated 18.07.2006 reported in
(2006) 6 SCC 21 allowed the appeal and remanded the
matter to the High Court before the Division Bench to
reconsider the same in the light of the judgment of
Union of India & Anr. V. Manu Dev Arya reported in
(2004)5 SCC 232.
iv. The Supreme Court in the case of Union of India & Anr.
v. Manu Dev Arya reported in (2004) 5 SCC 232 had
held that Homeopathy Research Assistants are not
entitled to non-practicing allowance eligible to Allopathic
Doctors on the premise that grant of allowances to a
section of employees is a question of policy and hence
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cannot be challenged. A reference has been made to
paragraphs 8 to 12 thereof.
v. After remand by the Supreme Court, the Letters Patent
Appeal of Karshanbhai K. Rabari was dismissed by the
Division Bench vide judgment and order dated
25.03.2014.
vi. In the case of Devikaben Bhanabhai Nayka v. Dy.
Executive Engineer & Ors., Special Civil Application
No. 1176 of 2012, wherein the claim was for granting
the benefit of the Government Resolution dated
17.10.1988 regarding the benefit of leave encashment,
which had been denied by the respondent, the learned
Single Judge vide judgment dated 05.09.2012 dismissed
the writ petition distinguishing the earlier judgment in the
case of Mahendrakumar Bhagwandas reported in
(2012) 2 GLR 1290.
vii. Heirs of deceased Bhanabhai Budhabhai Nayka
preferred Letters Patent Appeal which was got
dismissed as withdrawn vide order dated 14.12.2015.
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viii. Against an award of the Labour Court, the
Superintendent Engineer of the Roads and
Buildings Department preferred Special Civil
Application No. 5126 of 2016 against the Secretary,
Majoor Mahajan Sangh, Jamnagar praying for
quashing the award of the Industrial Tribunal granting
additional benefits which were over and above the
benefits mentioned as per Government Resolution dated
17.10.1988. The learned Single Judge vide judgment and
order dated 13.04.2016 allowed the writ petition and set
aside the award of the Industrial Tribunal, Jamnagar.
ix. Majoor Mahajan Sangh, Jamnagar through General
Secretary preferred Letters Patent Appeal No.471 of
2016 which was dismissed by the Division Bench vide
judgment dated 19.07.2016 observing that granting such
additional benefits would be inconsistent with policy of
the Government.
x. The State of Gujarat had carried a matter to the
Supreme Court against the judgment of this Court in the
case of PWD Employees Union & Ors. The Supreme
Court vide judgment dated 09.07.2013 held that the
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said judgment would be applicable to all daily wagers
across all Government departments. In paragraph No.29
of the judgment, the Supreme Court listed the benefits
that daily wagers would be entitled to, as per the
Government Resolution dated 17.10.1988. According to
it, the benefits Leave Travel Concession, Leave
Encashment, Travelling Allowance, TTRA Transport
Travelling Allowance etc. were not admissible. The said
judgment is reported in (2013) 12 SCC 417.
xi. This Court vide judgment and order dated 30.03.2016
while considering the petition filed by Budhaj Ataji
Vaghela Vs. State of Gujarat being Special Civil
Application No. 14297 of 2015 allowed the said writ
petition and directed the respondent to extend all the
benefits available to Class IV permanent employees to
the original writ petitioners.
xii. State of Gujarat had preferred an intra-court
appeal. The Division Bench tagged multiple matters
relating to the Government Resolution dated 17.10.1988,
the leading case being Letters Patent Appeal No.380
of 2016, vide judgment dated 29.06.2018 allowed the
appeals, set aside the judgment of the learned Single
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Judge and held that the eligible daily wagers would be
entitled to the benefits flowing from the aforementioned
Government Resolution dated 17.10.1988 and not all
benefits available to Government employees, as held by
the learned Single Judge.
xiii. The Supreme Court while considering the contempt
petition arising out of non-compliance of the order dated
09.07.2013 in the case of State of Gujarat & Ors. Vs.
PWD Employees Union & Ors., (2013) 12 SCC 417,
observed that there is a difference between the
permanent daily wagers and the employees who are
regularly appointed as per the statutory rules and the
daily wagers cannot be given the pay scales given to
regularly appointed employees. The said judgment of the
Supreme Court in the contempt matter dated 15.02.2019
is reported in (2019) SCC Online SC 204.
xiv. The Supreme Court in the case of Ram Naresh
Rawat Vs. Ashwini Ray & Ors. reported in (2017) 3
SCC 436 differentiated between permanent and regular
employees.
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30. Shri Trivedi referring to the aforementioned judgments
submitted that the daily rated employees of the Sewerage
Board were granted permanency in terms of the Government
Resolution dated 17.10.1988. However, granting permanency
cannot be equated with the employees who are regularly
employed. A reference was made by Shri Trivedi to the
judgment of the State of Gujarat Vs. PWD & Forest
Employees Union & Ors., reported in (2019) SCC Online
SC 204 in particular paragraph 14 thereof which is reproduced
hereunder:
"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
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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."
31. Shri Trivedi further submitted that the reliance placed
upon by the learned Single Judge on the judgment of
Mahendrakumar Bhagvandas (supra) was misplaced
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inasmuch as the Supreme Court had observed in (2019) SCC
Online SC 204 (supra) that there is a difference between the
permanent daily wagers and the employees who are regularly
appointed as per statutory rules and both cannot be equated.
Shri Trivedi further submitted that the learned Single Judge
failed to take into consideration the judgment of this Court in
the case of Karshanbhai K. Rabari & Ors. (supra) wherein
this Court had dismissed the petitions praying for extension of
benefits like LTC, leave encashment, etc.
32. Shri Trivedi laid great emphasis on the language and
input of the Government Resolution dated 17.10.1988 relating
to unskilled, semi-skilled and skilled labourers that they were
only granted status of permanency and nothing more, as such,
only those benefits could be availed which were extended by
the said the Government Resolution dated 17.10.1988. Said
daily wagers covered by the Government Resolution dated
17.10.1988 cannot and could not claim parity with regularly
appointed Government servants as per the statutory rules. Shri
Trivedi also placed reliance upon the judgment of the Supreme
Court in the case of Ram Naresh Rawat v. Ashwini Ray &
Ors., reported in (2017) 3 SCC 436 which clarified the
difference between the regular and permanent employees.
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Relevant paragraphs 24 and 26 thereof as relied upon by Shri
Trivedi are reproduced below:
"24. It is, thus, somewhat puzzling as to whether
the employee, on getting the designation of
'permanent employee' can be treated as 'regular'
employee. This answer does not flow from the
reading of the Standing Orders Act and Rules. In
common parlance, normally, a person who is known
as 'permanent employee' would be treated as a
regular employee but it does not appear to be
exactly that kind of situation in the instant case
when we find that merely after completing six
months' service an employee gets right to be
treated as 'permanent employee'. Moreover, this
Court has, as would be noticed now, drawn a
distinction between 'permanent employee' and
'regular employee'.
26. From the aforesaid, it follows that though a
'permanent employee' has right to receive pay in
the graded pay-scale, at the same time, he would
be getting only minimum of the said pay-scale with
no increments. It is only the regularisation in
service which would entail grant of increments etc.
in the pay-scale."
33. On the other hand, learned counsels for the Employees
Union and employees, Shri Shalin Mehta, Senior Advocate
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assisted by Ms Aditi Raol vehemently submitted that the State
raising all these pleas at this stage is being unfair to its own
employees falling in same homogeneous class who have
already been extended the benefits. It is next submitted that
even the daily wagers appointed after 30.11.1994 i.e. much
after the employees in the present group of appeals were
appointed, have already been extended the benefit vide Office
Order No.59/2016 dated 2nd September, 2016 after the
Supreme Court had disposed of the Special Leave to Appeals
(Civil) Nos.29108-29114 of 2014 granting the befits from the
future date of the interim order i.e. 14.11.2014. The stand of
the Sewerage Board and the State today to deny such benefits
to the daily wagers who were appointed much before the
employees covered by the order of the Supreme Court who
were appointed after 30.11.1994, would be very unfair and
unreasonable. The State should have brought about a policy of
such employees who were appointed between 01.10.1988 and
30.11.1994. Merely because they were forced to litigate, today
the State is taking such a stand. It is also submitted by the
learned counsels for the employees that the judgment in the
case of Mahendrakumar Bhagvandas (supra) was confirmed
by the Division Bench of this Court, Special Leave Petitions of
the State were dismissed by the Supreme Court and review
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was also dismissed by the Supreme Court. Thus also, there is
no reason why any interference should be made with the
judgment of the learned Single Judge.
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
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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
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 that by not
extending the said benefits, the authorities 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.
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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 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 alllowance, uniform allowance etc. were
denied to them on the basis that they were not
fullfledged 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.
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"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 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. dated
17.10.1988 by which the benefits were accorded to the
employees. It also sounds absurd and baseless that
employee employed on daily wage basis for 15 years
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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
Encashment, Leave Travel Concession, etc., by submitting
that the issue with regard to grant of these benefits to
daily-wagers 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
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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 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 hereinabove. 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.
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8. The issues in the controversy and claims of and
relief prayed for by the petitioners operate interactively.
The decision in Atul C. Soni (supra) was also based on the
Division Bench decision in Mahendrakumar Bhagvandas
(supra).
8.1 It is to be further noticed that the decision in
Mahendrakumar Bhagvandas (supra) was challenged
before the Supreme Court by filing Special Leave Petition
(Civil) Nos.19970-19975 of 2012 which came to be
dismissed by order dated 09th November, 2012.
Thereafter the review applications came to be filed by the
State being Nos.35043-35048 of 2012 and the said review
applications were also dismissed on 14th May, 2015.
Therefore, the decision in Mahendrakumar Bhagvandas
(supra) having attained finality upto the stage of the Apex
Court, stands to operate to apply to the present
petitioners and all other similarly situated employees for
the purpose of their claim to be granted the allowances in
question as part of permanency benefits.
9. In the above view, class of the daily-wagers to
which the petitioners herein belonged, have to be held
entitled to the relief prayed in paragraph 33(C) and the
benefits of (i) Transport Allowance; (ii) Travelling
Allowance; (iii) Transfer Travelling Allowance; (iv) Leave
Encashment and (v) Leave Travel Concession are required
to be extended to them in the same lines as they are
extended to the permanent employees since these
petitioners are also treated as permanent on the basis of
Resolution dated 17th October, 1988.
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9.1 The view taken as above stand solidified by
subsequent decisions on the aspect. In Vallabhbhai
Chhotabhai Chauhan v. State of Gujarat being Special Civil
Application No.1945 of 2014, the petitioner therein was a
retired daily-wager who prayed that he was entitled for
encashment of privilege leave. The petitioner was
appointed as daily-wager and was granted benefit of
permanency under Resolution dated 17th October, 1988.
Learned Single Judge relied on Mahendrakumar
Bhagvandas (supra) and allowed the petition holding that
the petitioner was entitled to the encashment of privilege
leave to the extent of 300 days. This decision in
Vallabhbhai Chhotabhai Chauhan (supra) was confirmed
by the Division Bench in Letters Patent Appeal No.1310 of
2015 decided on 30th October, 2015.
9.2 Referring to the decision of Division Bench in State
of Gujarat v. Mahendrakumar Bhagvandas (supra), it was
observed in the aforementioned judgment dated 30th
October, 2015 as under.
"6. When the decision of the Division Bench of this
Court, which has been relied upon by the learned Single
Judge is not interfered with by the Apex Court in the
afore referred proceedings of SLP and the review is also
dismissed, in our view, it cannot be said that the
learned Single Judge had committed any error in
exercise of the power, which may call for interference in
the present appeal. Further, when the SLP is also
dismissed against the above referred decision of the
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Division Bench of this Court in the case of State of
Gujarat (supra) and the review application is also
subsequently dismissed, such would be a further more
ground not to interfere with the order of the learned
Single Judge."
9.3 The same question came to be dealt with by
another Division Bench of this Court in Gujarat Water
Supply and Sewerage Board v. Jorubhai Jijibhai Dabhi
being Letters Patent Appeal No.457 of 2016 wherein also
the original petitioner had claimed benefit of leave
encashment upon his retirement. Learned Single Judge
allowed the petition, against which Letters Patent Appeal
No.457 of 2016 was preferred. The Division Bench relied
on Mahendrakumar Bhagvandas (supra) and confirmed
the decision of the learned Single Judge by dismissing the
appeal.
10. The aforesaid facts and the principles of law
highlighted, render the inaction on part of the respondent
authorities (a) in not extending the benefits of 6th Pay
Commission to the petitioners; (b) in not merging 50%
Dearness Allowance in the basic salary with effect from
01st April, 2004 and (c) in not granting the benefits of
allowances (i) Transport Allowance; (ii) Travelling
Allowance; (iii) Transfer Travelling Allowance; (iv) Leave
Encashment and (v) Leave Travel Concession as part of
permanency benefits though the benefit of permanency is
granted to the petitioners under Resolution dated 17th
October, 1988, as violative of petitioners' rights under
Article 14 read with Article 16 of the Constitution. This
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discrimination has to be finally smothered by granting the
relief. "
35. The other argument of Shri Trivedi placing reliance upon
the judgment in the case of Karshanbhai K. Rabari (supra)
would also not be available today in view of the subsequent
developments that have taken place in between as narrated
above in the judgment of the learned Single Judge.
36. The other argument of Shri Trivedi regarding difference
between permanency and regularization would also not be
available insofar as the present appeals are concerned
inasmuch as the benefits extended by the learned Single Judge
have already been extended by the Sewerage Board and the
State of Gujarat for the employees of the Sewerage Board vide
subsequent circulars after the judgment in the case of Atul C.
Soni (supra) attained finality before the Supreme Court.
37. It would also be worthwhile to mention here that the
judgment in the case of Mahendrakumar Bhagwandas
(supra) having been upheld upto the Supreme Court and all
the issues having been raised and having been discussed and
dealt with, it would be unreasonable and unfair to the original
petitioners from denying the benefit extended to the other
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daily wagers covered by the Government Resolution dated
17.10.1988.
38. In view of the above, group of appeals filed by the
Sewerage Board and the State against the judgment of the
learned Single Judge extending the five benefits also deserve
to be dismissed and are accordingly dismissed. Consequently,
the connected Civil Applications to these appeals stand
disposed of.
IV. Group of matters not extending five benefits
(Letters Patent Appeal (Filing) Nos.5920 of 2019, 41066
of 2019, 41068 of 2019, 41069 of 2019 and 6241 of
2020)
39. The fourth group of appeals is by the employees who
have not been extended five benefits by the learned Single
Judge despite the same having been claimed as relief in the
petitions, however, the leave encashment benefit has been
extended. For the reasons recorded above, the five benefits to
these appellants not being extended cannot be sustained and
as such, the appellants of these appeals would also be entitled
to the same benefits as the other similarly situated set of
employees regarding the five benefits. Accordingly, all the
aforesaid appeals are allowed to the above extent.
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Consequently, connected Civil Applications are also disposed
of.
40. In view of the fact that we have heard all the appeals on
merits, the delay condonation applications in all the appeals,
whether by the employees, Sewerage Board, Unions or the
State are allowed.
(VIKRAM NATH, CJ)
(ASHUTOSH J. SHASTRI, J)
GAURAV J THAKER/RADHAN
