Joshi Bipin Hariram vs State Of Gujarat
2021 Latest Caselaw 16776 Guj

       C/SCA/2846/2020                             ORDER DATED: 26/10/2021




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 2846 of 2020
                                 With
           CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2021
            In R/SPECIAL CIVIL APPLICATION NO. 2846 of 2020
                                 With
             R/SPECIAL CIVIL APPLICATION NO. 3080 of 2020
                                 With
           CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2021
            In R/SPECIAL CIVIL APPLICATION NO. 3080 of 2020
                                 With
             R/SPECIAL CIVIL APPLICATION NO. 7268 of 2019
                                 With
           CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2021
            In R/SPECIAL CIVIL APPLICATION NO. 7268 of 2019
                                 With
             R/SPECIAL CIVIL APPLICATION NO. 20440 of 2018
                                 With
           CIVIL APPLICATION (FOR DIRECTION) NO. 2 of 2021
           In R/SPECIAL CIVIL APPLICATION NO. 20440 of 2018
==========================================================
                           JOSHI BIPIN HARIRAM
                                  Versus
                            STATE OF GUJARAT
==========================================================
Appearance:
MR. MUKESH T MISHRA(5900) for the Petitioner(s) No.
1,10,11,12,13,14,15,16,17,18,19,2,20,21,22,23,24,25,26,27,28,29,3,30,31,32,
33,34,35,36,37,38,39,4,40,41,42,43,5,6,7,8,9
MS VRUNDA SHAH, AGP for the Respondent(s) No. 1
MR DG CHAUHAN(218) for the Respondent(s) No. 2,3
NOTICE SERVED BY DS(5) for the Respondent(s) No. 1
RONAK D CHAUHAN(7709) for the Respondent(s) No. 2,3
==========================================================
     CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL

                           Date : 26/10/2021
                         COMMON ORAL ORDER

1. Heard learned Advocate Mr. M.T. Mishra for the petitioners, learned AGP Ms. Vrunda Shah for the respondent-State and learned Advocate Mr. D.G. Chauhan for the respondent-Board.

2. Rule returnable forthwith. Learned Advocates appearing on behalf of respective respondents waive service of Rule.

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3. Since common issues are involved in all these petitions, with consent of learned Advocates for the parties, the same are taken up for final disposal together.

4. The petitioners herein can be broadly divided in three categories i.e. (1) petitioners working with the respondent-Board; (2) petitioners employed with the respondent-Board and have retired and (3) legal heirs of petitioners who have expired while working with the respondent-Board or expired after retirement from the Board.

5. The petitioners who are working with the respondent-Board seek for a declaration that the petitioners would be entitled to payment of 300 days Leave Encashment upon their retirement. The petitioners who have retired from the Board seek grant of benefit of 300 days Leave Encashment. The legal heirs of the petitioners also claim for the same benefit of Leave Encashment of 300 days. All the petitioners also seek to be granted five benefits as available to them under the Government Resolution dated 17.10.1988 i.e. (1) Transport Allowance; (2) Travelling Allowance; (3) Transfer Travelling Allowance; (4) Leave Encashment and (5) Leave Travel Concession.

6. Heard learned Advocate Mr.Mishra for the petitioners, learned AGP Ms. Vrunda Shah for the respondent-State and learned Advocate Mr. D.G. Chauhan for the respondent-Board.

7. At the outset, it is required to be noted that the issues raised in the present petitions are no more res integra.

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8. Learned Advocates for the petitioners would with respect to claim of Leave Encashment benefits refer to and rely upon the decision of the Co- ordinate Bench of this Court in Special Civil Application No. 9484 of 2013 in case of Jorubhai Jijibhai Dabhi and others vs Gujarat Water Supply and Sewerage Board dated 21.08.2015 which decision came to be confirmed by Hon'ble Division Bench of this Court in Letters Patent Appeal No. 457 of 2016 vide decision dated 26.07.2016. The Co-ordinate Bench in case of Jorubhai Jijibhai Dabhi and others vs Gujarat Water Supply and Sewerage Board has observed 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 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

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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.

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

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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. As mentioned hereinabove, 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. The Hon'ble Division Bench of this Court (Coram : Vikram Nath, CJ as then he was and Ashutosh J. Shastri, J) vide judgment dated 27.08.2021 in Civil Application No.3910 of 2019 in F/Letters Patent Appeal No. 35122 of 2019 in case of Arjanbhai Virabhai Bambhania Vs. State of Gujarat, had an occasion to deal with the present issue and certain related issues. The Hon'ble Division Bench had divided the issues raised before the Division Bench in four categories and whereas insofar as the issue of grant of the five benefits mentioned hereinabove is concerned, the Hon'ble Division Bench had dealt with the same in category three, which was categorized as "Group of matters challenging grant of benefits covered by Government Resolution". It would be pertinent to mention here that the respondent- Board as well as the State had questioned the grant of above mentioned benefits to the employees of the Board and whereas the observations of the Hon'ble Division Bench in this regard would be relevant and the same are quoted hereinbelow for better appreciation :

"34. We have considered the submissions. The argument

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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 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 the by not extending the said benefits, the authorities not 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 allowance, 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.

"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,

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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. dated17.10.1988 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. ... ... ..."

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 involved

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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.

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

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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.

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

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in the present appeal. Further, when the SLP is also dismissed against the above referred decision of the 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 discrimination has to be finally smothered by granting the relief. "

XXX XXX XXX

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 daily wagers covered by the Government Resolution dated 17.10.1988.

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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."

11. Having regard to the law laid down by this Court as recorded in the decisions quoted hereinabove, the prayers sought for by the petitioners are required to be granted. The petitioners who are at present working with the respondent-Board shall be entitled to the benefit of 300 days Leave Encashment upon their retirement. The retired employees as well as legal heirs of deceased employees are also held to be entitled for the benefit of 300 days Leave Encashment and whereas the respondents are directed to process the case of the retired petitioners and or legal heirs of the deceased petitioners for payment of benefit of 300 days Leave Encashment and appropriate disbursement of the amount in question shall be made within a period of eight weeks from the date of receipt of this order.

12. Furthermore, the respondents are directed to pass necessary orders of extending five benefits i.e. (1) Transport Allowance; (2) Travelling Allowance; (3) Transfer Travelling Allowance; (4) Leave Encashment and (5) Leave Travel Concession, to all the petitioners within a period of eight weeks from the date of receipt of this order.

13. It is further directed that in case, the respondents do not process the case of the petitioners herein for payment of Leave Encashment and/or the benefits of (1) Transport Allowance; (2) Travelling Allowance; (3) Transfer Travelling Allowance; (4) Leave Encashment and (5) Leave Travel Concession within the period of eight weeks as stipulated hereinabove, then

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the payment of benefits shall be accompanied with 6% interest from the date of filing of the petitions till actual payment.

14. With the above directions and observations, these petitions are allowed. Rule is made absolute. In view of the order passed in the main matters, connected Civil Applications stand disposed of.

(NIKHIL S. KARIEL,J) BDSONGARA