Gujarat High Court
Rameshbhai Atmaram Gajjar vs State Of Gujarat on 23 November, 2021
Bench: A.S. Supehia
C/SCA/14300/2019 ORDER DATED: 23/11/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 14300 of 2019
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RAMESHBHAI ATMARAM GAJJAR
Versus
STATE OF GUJARAT & 1 other(s)
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Appearance:
ARCHITA M PRAJAPATI(8241) for the Petitioner(s) No. 1
MR MP PRAJAPATI(677) for the Petitioner(s) No. 1
MR.HARDIK D. MEHTA, AGP for the Respondent(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
Date : 23/11/2021
ORAL ORDER
[1] RULE. Learned AGP waives service of notice of
rule on behalf of the respondent state.
[2] In the present case, the petitioner has prayed
for following reliefs:-
"25(a) That this Hon'ble Court may be pleased to issue a
writ of mandamus or any other appropriate writ, order or
direction, directing the Respondent Authorities to hold
and declare that the petitioner is entitled for
encashment of leave to the extent of 300 days at per with
other permanent employee of the respondent and
accordingly be pleased to direct the respondent to pay
the amount towards leave encashment to the petitioner;
(b) That this Hon'ble Court may be pleased to issue a writ of
mandamus or any other appropriate writ, order or
direction directing the respondents to consider the
initial period of 10 years of service spent as daily
wager for the purpose of grant of pension and gratuity
and further be pleased to direct them to pay the arrears
of pension and gratuity for the initial service of 10
years rendered by the petitioner by considering entire
length of service as continuous in nature."
[3] The brief facts of the present case are that the
petitioner has joined service as daily wager in the
office of the respondent no.2 and continuously served
for 40 years and retired on 30.06.2019. It is stated
C/SCA/14300/2019 ORDER DATED: 23/11/2021
that the petitioner was conferred benefit of
permanency on completion of 10 years of service and
was extended Pay Scale as regular daily wager
Watchman w.e.f. 28.11.1989. It is further stated that
since the petitioner served for 40 years continuous
service, he is entitled for leave encashment of 300
days. It is the case of the petitioner that the
respondent authorities have deducted the initial
period of 10 years of service of the petitioner while
extending retiral benefits of gratuity to the
petitioner.
[3.1] It is further stated that the petitioner is
entitled for the benefit of 300 days leave encashment
and the amount of gratuity considering the length of
service, the same was not extended by the respondent
authorities though they are aware about the judgments
delivered by the Apex Court as well as this High
Court with respect to payment of gratuity and 300
days leave encashment.
[4] At the outset, learned advocate Ms.Archita
Prajapati for the petitioner has submitted that the
issue is squarely covered by the decision of the
Division Bench of this Court passed on 26.09.2019 in
Letters Patent Appeal No. 1222 of 2018. She has
submitted that the aforesaid judgment is confirmed by
the Supreme Court. She has also placed reliance on
the judgment of the Coordinate Bench passed in
Special Civil Application No. 9702 of 2018 and allied
matters on 19.12.2018. She has also submitted that
C/SCA/14300/2019 ORDER DATED: 23/11/2021
there are similar judgments taking view of the
similar judgments of the Division Benches.
[4.1] Learned advocate for the petitioner has
submitted that the petitioner has completed
continuous services for 40 years without any break.
While extending retiral benefits, benefit of 300 days
leave encashment and arrears of pension and gratuity
for initial 10 years of services are not extended.
[5] Per Contra learned AGP Mr.Hardik Mehta has
submitted that the petitioner would not be entitled
to benefits as prayed for as he has not completed
requisite number of years, which is required to be
considered for calculation of the payment of 300 days
of leave.
[6] I have considered the rival submissions advanced
by the learned advocates for the respective parties.
As a prayer clause would suggest that the petitioner
is claiming benefits of 300 days of leave encashment,
arrears of gratuity for initial 10 years of service.
It is not in dispute that the petitioner has joined
as daily wager and thereafter was conferred the
benefits of permanency on completion of 10 years of
service and extended the pay scale of regular daily
wager Watchman w.e.f. 28.11.1989. It is also not in
dispute that the petitioner has continuously served
for 40 years. The issue raised in the present writ
petition is squarely covered by catena of judgments
of this Court.
[7] The Coordinate Bench of this Court while passing
C/SCA/14300/2019 ORDER DATED: 23/11/2021
order dated 12.04.2019 in Misc. Civil Application
(for modification of order) No.1 of 2018 in Special
Civil Application No. 8289 of 2014 has observed
thus:-
"13. Thus, the position of law is clear. In view of the
above, the applicant is entitled to the relief as prayed
for in terms of Paragraph 8(B) in the main petition. The
respondents shall consider the period of 10 years put in
by the applicant as a daily wager for the purpose of
grant of pension and gratuity. Let the pension and
gratuity are fixed keeping in mind the period of 10 years
also as a daily wager. Let this exercise be undertaken at
the earliest and shall be completed within a period of
two months from the date of receipt of this order."
[8] The Division Bench of this Court while passing
order dated 21.08.2020 in Civil Application No.1717
of 2020 in Letters Patent Appeal No. 442 of 2020 has
observed thus:-
"Two issues raised before the learned Single Judge, one
relating to leave encashment for 300 days and the other
for award of pension counting the 10 years previous
service under the Government Resolution dated 17.10.1988,
are both covered and already decided by this Court. We
thus, do not find any error in the order passed by the
learned Single Judge warranting interference in the appeal
as the issues decided are in view of the law already
settled by this Court. Appeal lacks merit and is
accordingly dismissed. Connected Civil Application is also
disposed of."
[9] Thus, the issue is well settled by the various
judgments of the Division Benches as well as the
Coordinate Benches. The respondents are directed to
grant amount of leave encashment to the extent of 300
days at par with other permanent employees to the
petitioner and also grant the pension and gratuity by
considering the initial period of 10 years spent as
daily wager. Accordingly arrears shall be paid to the
petitioner by considering the initial 10 years of
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service. Necessary orders re-fixing the pension and
grant of arrears of pension and gratuity as well as
the amount of leave encashment of 300 days shall be
passed within a period of three months from the date
of receipt of this order.
[10] With the aforesaid direction, the present
writ petition is disposed of. Rule is made absolute.
(A. S. SUPEHIA, J)
NABILA
