Nashirkhan Sherkhan Babi vs State Of Gujarat
2021 Latest Caselaw 15821 Guj

    C/SCA/10749/2020                                   ORDER DATED: 07/10/2021




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

            R/SPECIAL CIVIL APPLICATION NO. 10749 of 2020

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                       NASHIRKHAN SHERKHAN BABI
                                 Versus
                           STATE OF GUJARAT
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Appearance:
MR SAMIR B GOHIL(5718) for the Petitioner(s) No. 1,2
ADVANCE COPY SERVED TO GOVERNMENT PLEADER/PP(99) for the
Respondent(s) No. 1
MS KHYATI P HATHI(346) for the Respondent(s) No. 2,3
NOTICE SERVED(4) for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL

                              Date : 07/10/2021

                                ORAL ORDER

1. Heard learned Advocate Mr.Samir Gohil on behalf of the petitioner, learned AGP Ms.Dharitri Pancholi on behalf respondent No.1 and learned Advocate Ms.Hathi on behalf of respondent Nos.2 and 3.

2. By way of this petition, the petitioner seeks for the following relief:-

"14(A) Quashing and setting aside order dated 18.3.2020 and directing the respondents to grant benefits of Government Resolution dated 17.10.1988 from the date the petitioner became entitled and further directing the respondents to pay all the consequential benefits;

(B)During the pendency and final disposal of this petition, the respondents may be directed to absorb the petitioner in regular pay scale as per GR dated 17.10.1988."

3. Learned Advocate Mr.Gohil for the petitioner would submit that the respondents have denied the benefits of Government Resolution dated 17.10.1988 to the present petitioner, more particularly on a ground that since the petitioner had joined the service after the date of the said Resolution, therefore, he would not be entitled to the benefits of the said Resolution. Mr.Gohil would submit in this regard that the issue raised

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in present petition is no more res integra and whereas he draws the attention of this Court to a decision of Coordinate Bench of this Court in Special Civil Application No.11126 of 2019 dated 22.7.2019, wherein similar issue had been considered by this Court.

4. Having regard to the fact that Coordinate Bench has already considered the issue, this Court deems it appropriate to reproduce the relevant paragraphs of the said order in the present order:-

2. Petitioners seek grant of benefit flowing from the Resolution dated 17th October, 1988 of the State Government. In this regard, it is prayed to set aside order dated 13th February, 2019 whereby such benefits are denied. A declaration is also prayed for that non-payment of minimum pay-scale to the petitioners and non-grant of benefits by not implementing the Resolution dated 17th October, 1988 amounts to unfair labour practice and exploitation and stands in violation of Articles 14 and 16 of the Constitution.

3. The three petitioners have been continuously working since 1989-90 as per their case. It is the case that in view of their continuous service and completion of requisite number of years in the service, they are entitled to the benefits of Resolution dated 17th October, 1988. It is the say of the petitioners that they are engaged in the maintenance of canal work and for supply of water at Madhuben Colony, Silvassa and were transfered to different sections. Their nature of work is claimed to be permanent. It is stated that 600-700 farmers have been taking benefits of canal water within the area of 10 kms. and the petitioners are engaged in maintenance of such canal work which is perennial kind of work.

3.1 It is the further case of the petitioners that similarly situated employees who approached this Court earlier, have been extended the benefits of Resolution and have also been placed in the time scale. It is stated that earlier the petitioners had an occasion to approach this Court by filing Special Civil Application No.211 of 2018, in which this Court directed the respondents to look into the grievance of the petitioners about grant of benefits under Resolution dated 17th October, 1988.

4. When the ground of denial of the benefits as stated in the impugned order is noticed, it is on the consideration that the petitioners' date of entry in service was in the year 1989-90 which was after 01st October, 1988, the petitioners are held not entitled to the benefits under the Resolution dated 17th October, 1988 on the ground that the petitioners

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could not be said to have completed 10 years of service upto the date mentioned in the Resolution. Therefore, on the ground of cut-off date that the petitioners were appointed subsequent to 01st October, 1988, benefits of Resolution were denied.

5. While the respondent authorities would be entitled to consider the service details of the petitioners including the aspect of continuous service put in by the petitioners, for conferment of the benefits under the Resolution in question, the ground that petitioners' appointment was after 01st October, 1988 to make them disentitled to the benefits, would not sustain in eye of law.

5.1 In Kutch District Panchayat v. Mangalbhai K. Rabari being Special Civil Application No.15670 of 2005 decided as per judgment dated 08th October, 2014, in turn confirmed in Letters Patent Appeal No.1381 of 2015 decided on 04th January, 2016, it was observed and held in judgment dated 08th October, 2014 as under,

"7. Shri Pathak, learned counsel for the respondent workmen contended that the decision of the Supreme Court as cited herein above in case of State of Gujarat Vs. PWD Employees Union & Ors (supra) would have straightway applicability to the present case. The so called inapplicability of GR has been answered squarely by the Court as there are subsequent Government Resolutions clarifying such things. Besides this, in the affidavit in reply at page-47 Courts attention was drawn to indicate that G.R. Dated 17/10/1988 is clarified and given effect to all those who are subsequently appointed also and that has been accepted as policy governing such employment thereafter.

8. Shri Pathak pointed out that learned counsel for the petitioner is not correct in contending that all were employed after GR dated 17/10/1988. In fact four were employed before that. Shri Munshaw at this stage submitted that he never meant all employees were employed after the GR and statement annexed to the employees list would clarify the situation.

11. The Court is of the considered view that the GR dated 17/10/1988 was no doubt containing reference to the future employment but the subsequent course of action and developments as it indicate that the Government continued employing daily wagers, temporary hands irrespective of those conditions which gave rise to a situation where litigations came up and hence as Shri Pathak has pointed out clarificatory GR came to be issued and over all facts & circumstances of the case indicate that the benefits of GR dated

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17/10/1988 were to be extended to all, else it would have meant to Government employing unfair labour practice which would have been highly depreciable.

12. The Court is also of the view that the decision cited at the bar in case of State of Gujarat And Others Vs. PWD Employees Union And Others will have applicability to the facts & circumstances of the case and counsel of the petitioners submission qua some of the workmen were employed after GR dated 17/10/1988 would be of no avail as the judgment itself has answered that contention squarely."

5.2 In PWD Employees Union through President v. State of Gujarat being Special Civil Application No.4662 of 2015, this Court relied on the aforesaid decision in Kutch District Panchayat (supra). PWD Employees Union (supra) had a similar set of facts wherein also the petitioners were denied the benefits of Resolution dated 17th October, 1988 on the ground that their appointments were subsequent to the date of Resolution dated 17th October, 1988.

5.3 Therefore, the petitioners could not have been denied the benefits under the Resolution dated 17th October, 1988. They stand covered under the said Resolution for the purpose of benefits flowing therefrom and the petitioners are entitled to the same. It was not the ground to be valid in law to deny the petitioners the benefit of Resolution dated 17th October, 1988 and incidental benefits that the petitioners were appointed subsequent to the date of Resolution, that is after 17th October, 1988.

5.4 Denial of the benefits of Resolution dated 17th October, 1988 to the daily-rated employees such as petitioners whose employment was subsequent to the said date was a manifest invidious discrimination meted out by adopting artificial cut-off date which had no rationale for dividing the homogeneous class of daily-rated employees who were otherwise entitled to the benefits of the Resolution on the basis of length of the service as contemplated in the Resolution. It tantamount to segregating one class into two classes who were meted out discriminatory treatment leading to violation of Articles 14 and 16 of the Constitution. Therefore, the petitioners deserve the relief as prayed for.

6. As a result of above discussion, the petition is allowed. The respondents are directed to take into account the service details and the facts relating to continuity of service, the length of service etc. of the petitioners for the purpose of extending to them the benefits flowing from the Resolution dated 17th October, 1988 of the State Government. The respondents are directed to extend all the benefits flowing from the said Resolution without applying the cut-off date. The petitioners shall

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be paid the regular scale and shall be conferred other benefits on the basis of the completion of continuous service for requisite number of years of service as contemplated under policy Resolution including the grant of permanency benefits. Whatever arrears are required to be paid because of the petitioners becoming entitled to the benefits of Resolution dated 17th October, 1988 as above, shall be paid to the petitioners within a period of 10 weeks from the date of receipt of the present order.

6.1 If in the aforesaid time limit the payment of benefits from the Resolution dated 17th October, 1988 of the State Government is not paid, then the payment shall be calculated with 6% interest from the date of filing of the petition to the actual payment."

5. Having regard to the findings recorded by this Court in order dated 22.7.2019 in SCA No.11126 of 2019, more particularly since the same is binding on this Court, the relief, which had been granted to the petitioners therein, deserves to be extended to the present petitioner also.

6. In view of the above discussion, the impugned order passed by the respondent No.2 dated 18.3.2020 is quashed and set aside. The petitioner to be paid all the benefits to which the petitioner is entitled to under the government Resolution dated 17.10.1988 within a period of 10 weeks from the date of receipt of this order and whereas if the aforesaid time limit is not followed by the State Government, then all the benefits to which the petitioner would be entitled shall be paid with interest at the rate of 6% p.a. from the date of filing of the petition to the date of actual payment.

7. With the aforesaid observations and directions, the present petition is disposed as allowed. Direct service is permitted.

(NIKHIL S. KARIEL,J) V.V.P. PODUVAL