Ajabsinh Ramsinh Baria vs State Of Gujarat
2021 Latest Caselaw 12896 Guj

     C/SCA/16185/2020                                       ORDER DATED: 31/08/2021



     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

      R/SPECIAL CIVIL APPLICATION NO. 16185 of 2020
                             With
  CIVIL APPLICATION (FOR BRINGING HEIRS) NO. 1 of 2021
     In R/SPECIAL CIVIL APPLICATION NO. 16185 of 2020
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                AJABSINH RAMSINH BARIA
                            Versus
                   STATE OF GUJARAT
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Appearance:
MR DIPAK R DAVE(1232) for the Petitioner(s) No. 1,2
MR. SAHIL B TRIVEDI, AGP for the Respondent(s) No. 1
NOTICE SERVED(4) for the Respondent(s) No. 1,2,3,4
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 CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
                       Date : 31/08/2021
                       ORAL ORDER

1) RULE. Learned AGP waives service of notice of rule for and on behalf of respondent - State.

2) At the outset, learned advocate Mr. Dipak Dave appearing for the petitioners has submitted that the issue raised in the writ petition is squarely covered by the catena of decision of Division Benches as well as of the Coordinate Benches.

3) By way of the present writ petition, the petitioners have prayed for the following prayers;-

"6. (i) to hold and declare that action on part of the respondents in not making full payment of pensionary benefits to the petitioners by counting their entire length of service from date of joining till date of retirement as illegal, unjustified, arbitrary and further be pleased to direct the respondents to fix the pension of the petitioners by counting their service from date of joining until the date of retirement and fix the pension accordingly;

(ii) to hold and declare that petitioners are entitled to all other retire benefits including benefit of leave encashment and be pleased to further direct

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the respondents to pay amount of leave encashment of leave standing in the account of the petitioners;

(iii) to hold and declare that the petitioners shall be paid all other benefits like public Holidays, Transport Allowance, Medical Allowance, Group Insurance at par with the permanent employee;

(iv) to direct the respondents to pay difference of pensionary benefits, gratuity amount, other benefits and leave encashment with 18% interest from the date when it fell due."

4) Thus, the petitioners are claiming the benefits of public holidays, transport allowances, Group Insurance at par with the permanent employees and also fixation of pension by counting their service from the date of joining until the date of retirement.

5) Learned AGP Mr. Trivedi has submitted that so far as the group insurance is concerned, the petitioner No. 1 i.e. Ajabsinh Ramsinh Baria would not be entitled to the same as per Government Resolution dated 19.05.2009, since the benefit of group insurance is extended from 01.04.2009 and he has retired on 31.12.2008. Thus, so far as the claim of the petitioner No.1 with regard to the group insurance is concerned, he would not be entitled to the same, as he has retired on 31.12.2008 i.e. after cut-off-date of Government resolution dated 19.05.2019. So far as the public Holidays and medical allowances are concerned, learned AGP has submitted that the same has been extended to the petitioners. So far as other benefits are concerned, he has submitted that they would not be entitled to same.

6) I have considered the rival submissions advanced by the learned advocates for the respective parties as well as the judgments of the Division Benches. The recent judgment on the issue of grant of aforesaid benefits is dated 27.08.2021 rendered by the Division Bench of this Court in Letters Patent Appeal No. 35122 of 2019. The Division Bench has

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referred the various judgments as well as the resolutions of the State Government as well as the decision of the Apex Court. The first judgment is rendered in the case of State of the Gujarat and Anr. v. Mahendrakumar Bhagvandas and Anr. reported in 2011(2)GLR1290, whereby the Division Bench has directed the State to extend the benefits of Transport Allowance, leave encashment, LTC on the basis of the Government Resolution dated 17.10.1988. It is not in dispute that the aforesaid judgment has been implemented and accordingly the benefits have been granted to the daily wagers. The aforesaid judgment has been upheld by the Supreme Court so far as the extension of pension from the initial date of appointment after the service of the petitioner is regularized. The same is also covered by the judgment dated 25.08.2021 in Special Civil Application No. 16903 of 2020.

7) It is not in dispute that the petitioners are granted the other benefits as per the Government Resolution dated 17th October, 1988 and they are seeking ancillary benefits like Leave Encashment, Traveling Allowance etc, which are available to the Class-IV employees. The aforesaid grant of ancillary benefits was subject matter of consideration before the Division Bench in Letters Patent Appeal No. 958 of 2001. By the judgment and order dated 18th March, 2011, this Court has held that the daily-wagers, who are conferred the benefits under the resolution dated 17th October, 1988 cannot be discriminated or denied the benefits as mentioned hereinabove and they are also entitled to the same. The Division Bench has observed thus:-

"4. Bare reading of above stipulations contained in the G.R.dated 17.10.1988 makes it crystal clear that upon completion of ten years of service, in terms of the provisions of Section 25B of the Industrial Disputes Act, 1947, on or before 1.10.1988, daily rated employees to whom the G.R. applied were to be treated as permanent employees with concomitant benefits. It is further clarified and resolved in clause (10) of subsequent resolution dated 18.7.1994 that the employees, who were

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completing 5/10/15 years of continuous service due to which whose categories would change should be immediately accorded benefits of the category in which such employees would fall. Government Resolution dated 18.7.1994 is, according to its own preamble, meant to supersede earlier instructions issued vide government resolution dated 3.11.1990. The instructions are primarily meant to regulate treatment of daily rated employees, who had completed one or more years of service on 1.10.1988, with the stipulation that such employees shall continue to be treated as daily rated employees. Detailed instructions have been issued in said government resolution for categorizing such daily rated employees and maintaining their seniority lists, as also for regulating their pension and termination of their service by way of retrenchment. At the end, in Clause 15 of the government resolution, it is stipulated that the word 'permanent' as used in G.R. Dated 17.10.1988 is intended to provide protection of service but not for treating such employees on regular establishment of the government.

5. As noted earlier, 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 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. Therefore, there is no reason to interfere with the impugned common judgment except for the clarification made hereunder ."

8) The aforesaid order of the Division Bench was implemented by one of the departments in the State Government and accordingly vide resolution dated 6th January, 2014, in which, it was decided that all the dailywagers, who are given the benefits under the resolution dated 17th October, 1988 are entitled to the ancillary benefits, which are conferred to Class-IV employees.

      C/SCA/16185/2020                                             ORDER DATED: 31/08/2021



9)     In similar issue raised by the employees of the Gujarat Water

Supply and Sewerage Board, the Division Bench vide judgment and order dated 16th July, 2014 passed in Letters Patent Appeal No. 325 of 2013 and allied matters has held thus;-

" 9.2 In the case of State of Gujarat & Ors. v. PWD Employees Union & Ors, reported in (2013) 12 SCC 417, after considering all the case laws and the facts and circumstances of the case, the Supreme Court directed to grant benefit of the scheme as contained in the Government Resolution dated 17.10.1988 to all the daily wage workers of the Forest and Environment Department working for more than five years. Incidentally, it is relevant to note here that the aforesaid case pertains to daily wagers of the Forest Department, who have been in service for about 5- 0 years as on 29.10.2010, for more than 240 days for large number of years, doing full time work of a perennial nature.

9.3 In the case of Nand Kumar v. State of Bihar, reported in (2014) 5 SCC 300, it is held that the regularization / absorption is not a matter of course. It would depend upon the facts of the case following the rules and regulations and cannot be de hors the rules for such regularizations / absorptions.

10. Admittedly, there is no dispute about the fact that the respondents in above Letters Patent Appeals are daily wagers. Before us, there are two sets of daily wagers. One set of daily wagers appointed upto the year 1988 are given all benefits flowing from the Government Resolution dated 17.10.1988. However, benefits like Transport Allowance, Traveling Allowance, Transfer Traveling Allowance, Leave Encashment and Leave Travel Concessions have not been extended to them. Whereas another set of daily wagers were appointed after 30.11.1994 and they are not given any benefits flowing from the Government Resolution dated 17.10.1988, though they have put in more than five/ten/fifteen years of service.

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 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

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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 ."

10) The Division Bench has specifically held that the daily wagers appointed after the resolution dated 17th October, 1988, are also entitled to the benefits of Transport allowances, Traveling Allowances, LTC and Leave Encashment. Thereafter, in another judgment dated 28.12.2018 passed in Letters Patent Appeal No.1567 of 2018 and allied matters, the Division Bench after survey of all the judgments has reiterated that daily wagers are entitled to all the benefits of a regular employee after he is granted the benefit of the Government Resolution dated 17.10.1988.

11) The aforesaid order was challenged before the Supreme Court in Special Leave Petition No. 29108-29114 of 2014. By the judgment and order dated 14th August, 2015, the SLPs were disposed of since the concerned appellants i.e. Gujarat Water Supply and Sewerage Board accepted the decision of the Division Bench and granted the benefits of the employees as ordered by the Division Bench. As observed by the Division Bench in the aforesaid judgment and order dated 16th July, 2014, the applicability of the resolution dated 17th October, 1988 have been extended to various departments of the State of Gujarat. It is now well settled that the resolution dated 17th October, 1988 have been made

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applicable to daily wage workers, who are serving in all the departments of the State of Gujarat. The Supreme Court in the case of the State of Gujarat Versus PWD and Forest Employees Union & Ors, reported in 2013 (12) SCC 417 has observed that the benefits of the provisions of Government Resolution dated 17th October, 1988 apply to all the departments of State.

12) With regard to the prayer of grant of pension by counting entire service is concerned the same is also covered by the decision of the Division Bench. At this stage, I may with profit refer to the decision of the Division Bench in the case of State of Gujarat vs Ranabha Ajmalbhai Harijan, 2018 JX (Guj.) 829, judgment dated 10.04.2018 passed in Letters Patent Appeal No.1518 of 2017, after considering the Resolution dated 17.10.1988 it is held thus:

"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 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

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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 ."

13) Thus, the Division Bench has held that the past continuous service cannot be wiped out for the purpose of pensionary benefits, and such stand of the 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.

14) The Supreme Court in the case of the State of Gujarat vs. PWD and Forest Employees Union and Ors., (2019) 3 SCALE 642, while examining the cases of the workmen, who are engaged on daily wagers, while clarifying the decision of the Apex Court in the case of State of Gujarat and Ors. vs. PWD and Forest Employees Union and Ors., (2013) 12 SCC 417, has held that the daily wagers are also entitled to the benefit of pay-scale as per the Gujarat Civil Services (Revision of Pay) Rules,

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2009, as revised from time to time, however, it is clarified that such daily wagers though would not be entitled to the pay-scales of permanent employee, but they are entitled to pay-scales under those Rules as per their job description. It is specifically observed that on attaining the status of permanency/regular employees, they become at par with those employees who are appointed as permanent, after undergoing the proper selection procedure on proving their merit, however, such daily wagers cannot be given the pay-scales which are even better than the pay scales given to the regularly appointed employees.

15) In this view of the matter, the present petition succeeds. The respondents are hereby directed to grant the benefits to the petitioners as conferred to the similarly situated employees. Necessary orders conferring the benefits to the petitioners shall be passed within a period of ten weeks from the date of receipt of the writ of this Court. If the same is not paid within the prescribed period, the same shall carry an interest of 6% p.a. from the date of filing of the writ petition. Rule is made absolute.

ORDER IN CA

1) The present application has been filed for bringing legal heirs of the deceased-applicant on record.

2) Considering the submissions advanced by the learned advocate for the applicant and the avernments made in the application, this Court is of the considered opinion that the application is required to be allowed and the same is allowed.

3) Application stands disposed of. Registry to amend the cause title accordingly.

(A. S. SUPEHIA, J) VISHAL MISHRA