Gujarat High Court
Fulabhai Bapudabhai Pagi Since ... vs Department Of Forest on 29 November, 2021
Bench: Nikhil S. Kariel
C/SCA/13184/2021 JUDGMENT DATED: 29/11/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 13184 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 13186 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 13189 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 13190 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 13191 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 13193 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 13195 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 13198 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 13199 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 13201 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 13202 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 13204 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE NIKHIL S. KARIEL Sd/-
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ? NO
2 To be referred to the Reporter or not ?
NO
3 Whether their Lordships wish to see the fair copy
of the judgment ? NO
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution NO
of India or any order made thereunder ?
==========================================================
FULABHAI BAPUDABHAI PAGI SINCE DECD. THROUGH HIS LEGAL HEIR
MANIBEN FULABHAI PAGI
Page 1 of 7
Downloaded on : Wed Jan 12 05:28:22 IST 2022
C/SCA/13184/2021 JUDGMENT DATED: 29/11/2021
Versus
DEPARTMENT OF FOREST
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Appearance:
MR CHINTAN N DESAI(9940) for the Petitioner(s) No. 1
MR SHUBHAM K PRAJAPATI(10761) for the Petitioner(s) No. 1
MR UTKARSH SHARMA, AGP for the Respondent(s) No. 1
SERVED BY RPAD (N)(6) for the Respondent(s) No. 2,3,4
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CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
Date : 29/11/2021
ORAL JUDGMENT
1. Since a common issue is being raised in this group of petitions, they are
taken up together for final disposal.
2. Issue Rule returnable forthwith. Learned AGP waives service of notice
for respondent State.
3. The petitioners who are either retired employees, or legal heirs of retired
employees, who had worked with with the respondent Forest
Department of the State Government, seek benefits of Government
Resolution dated 17.10.1988 insofar as the said Resolution grants
benefits of 300 days leave encashment upon retirement/calculation of
retiral benefits on demise of the employee. The petitioners also pray for
being granted the benefits flowing from the 7th Pay Commission.
4. Heard the learned Advocate Mr.Chintan Desai for the petitioners and
learned AGP Mr.Utkarsh Sharma for the respondent State.
5. Insofar as the issue with regard to extending benefits of the 7 th Pay
Commission are concerned, learned AGP would submit that the issue is
in two parts i.e. with regard to entitlement of the petitioners to the 7 th
C/SCA/13184/2021 JUDGMENT DATED: 29/11/2021
Pay Commission benefits and as regards payment thereof along with
arrears. Learned AGP would submit that insofar as the entitlement of
the petitioners to the said benefits are concerned, the issue may be
relegated to the Department itself which would take decision in
accordance with law within some stipulated time period, as may be
directed by this Court. Learned AGP would further submit that insofar
as the actual disbursement is concerned, the issue is at large before the
Finance Department of the State Government, more particularly since
the State is suffering from some financial crunch on account of Covid
Pandemic. Learned AGP would further submit that if the petitioners are
deemed entitled for benefits of the 7 th Pay Commission, then actual
disbursement would be made as per final decision, which would be
taken by the Finance Department in case of large number of similarly
situated employees. Learned AGP would submit that considering the
pandemic situation this Court may give such leeway to the State
Government.
6. Learned Advocate Mr.Desai would not have any objection to such a
suggestion.
7. Hence, as far as grant of 7 th Pay Commission benefits are concerned,
appropriate directions as regards the same would be passed hereinafter .
8. As far as the issue of entitlement of 300 days leave encashment is
concerned, in the considered opinion of this Court, the issue is no more
res integra. A Co-ordinate Bench in case of Jorubhai Jijibhai Dabhi
and others vs Gujarat Water Supply and Sewerage Board has held
as under:
"9. Learned advocate Mr. Munshaw for respondent No.1 does not
dispute that the case of State of Gujarat and another vs. Mahendrakumar
Bhagvandas and another(supra) has reached to the conclusion at the
C/SCA/13184/2021 JUDGMENT DATED: 29/11/2021
hands of the Apex Court, whereas the decision of the Letters Patent
Appeal No.325 of 2013 is bagging attention, as the same has been
challenged before the Apex Court. He has urged, therefore, not to decide
the matter on merits.
10. On thus having heard learned advocates for both the sides and
having also considered the list of events so also the Government
Resolution dated 17.10.1988 and the decisions of the Apex Court and
that of Letters Patent Appeal Bench, this Court is of the opinion that the
petitioners are entitled to the leave encashment benefit for being the
permanent employees of the respondent authorities. This Court has
interpreted the entitlement of permanent employees, who have become
permanent by virtue of the said Government Resolution dated
17.10.1988. Leave encashment benefits in the decision sought to be
relied upon by the petitioner is granted in the following manner:-
"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
C/SCA/13184/2021 JUDGMENT DATED: 29/11/2021
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.
6. Letters Patent Appeal Nos.960, 961, 964 and 965 of 2001 are
preferred from common oral judgment dated 6.4.2000 of learned
Single Judge of this Court, inter alia, in Special Civil Application
Nos.28, 64, 67 and 68 of 1988 whereby original petitioners, working
under the appellants herein, were directed to be given benefits in
following terms:
11. ".................In terms of the order passed in earlier case on
23/10/1999, the respondents are directed to extend all the benefits of
regular employees to the petitioner, who have been made permanent
employees in regular scale of pay for more than 10 years of service.
They should not be discriminated with other employees. With the
aforesaid observations and direction all the petitions are allowed and
accordingly disposed of...............""
11. Resultantly, the petition is allowed. Leave encashment benefits shall
be paid to the petitioners within six weeks from the date of receipt of
copy of this judgment. If not paid, interest at the rate of 6% shall be
calculated on the amount granted. Petition is allowed to the above
extent. Rule is made absolute accordingly."
9. The said decision had been carried in appeal by the respondent - Board.
It is also not in dispute that the decision of Hon'ble Division was carried
before the Hon'ble Apex Court and whereas vide an order dated
25.10.2017 the Special Leave Petition had also been dismissed.
10. Having regard to the observations and discussions herein above, and in
view of the above referred decisions of this Court as well as of the
Hon'ble Apex Court, the petitioners are deemed entitled for benefits of
300 days leave encashment and whereas the respondent Department is
C/SCA/13184/2021 JUDGMENT DATED: 29/11/2021
directed to calculate the same and pay to the present petitioners
appropriate amount of leave encashment of 300 days leave. Such
calculation and appropriate disbursement shall be made by the
respondents within eight weeks from the date of receipt of this order. In
case the respondents are not able to make actual disbursement within a
period of eight weeks as directed, then the amount would carry interest
at the rate of 6% p. a. from the date of filing of the petition till actual
disbursement.
11. Insofar as the issue with regard to 7 th Pay Commission is concerned, the
respondent Department more particularly respondents No.3 and 4 shall
consider the case of the petitioners and decide whether the petitioners
would be entitled to benefits of 7th Pay Commission. Such decision
shall be taken by the respondents No.3 and 4 within a period of eight
weeks from the date of receipt of this order. It is clarified that upon the
petitioners being deemed entitled, as regards the payment of benefits of
7th Pay Commission, including the arrears, the same would be governed
by the final decision, which would be taken by the Finance Department
of the State of Gujarat. It is further clarified that the Finance
Department shall endeavour to take decision for the petitioners as well
as for all such class of employees giving a priority to considering cases
of retired employees and whereas such decision shall be taken by the
Finance Department as expeditiously as possible, but not later than 15
weeks from the date of receipt of this order.
12. Respondents No.3 and 4 shall upon taking a decision as regards the
entitlement of the petitioners, communicate the decision to the
petitioners in writing. Furthermore, the Finance Department also to
intimate to the petitioners through respondents No.3 and 4 as regards the
decision taken by the Finance Department about disbursement.
C/SCA/13184/2021 JUDGMENT DATED: 29/11/2021
13. With the above observations and directions, the petitions are disposed of
as allowed.
Sd/-
(NIKHIL S. KARIEL,J)
V.V.P. PODUVAL
