Dharmavir Sarveshwarbhai ... vs State Of Gujarat
2021 Latest Caselaw 13043 Guj

    C/SCA/11921/2020                              JUDGMENT DATED: 01/09/2021




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD


              R/SPECIAL CIVIL APPLICATION NO. 11921 of 2020
                                  With
              R/SPECIAL CIVIL APPLICATION NO. 10845 of 2021


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE BHARGAV D. KARIA
==========================================================

1    Whether Reporters of Local Papers may be allowed
     to see the judgment ?

2    To be referred to the Reporter or not ?

3    Whether their Lordships wish to see the fair copy
     of the judgment ?

4    Whether this case involves a substantial question
     of law as to the interpretation of the Constitution
     of India or any order made thereunder ?

==========================================================
                  DHARMAVIR SARVESHWARBHAI DHOLAKIA
                                Versus
                          STATE OF GUJARAT
==========================================================
Appearance:
 for the Petitioner(s) No.
10,11,12,13,14,15,16,17,18,19,2,20,21,22,23,24,25,26,27,28,29,3,30,31,32,3
3,34,35,4,5,6,7,8,9
MS ASHLESHA M PATEL(6127) for the Petitioners
MR DHAWAN JAYSWAL, AGP (1) for the Respondent(s) No. 1
MR HS MUNSHAW(495) for the Respondent(s) No. 2
NOTICE SERVED(4) for the Respondent(s) No. 3,4,5
==========================================================

    CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA

                            Date : 01/09/2021
                            ORAL JUDGMENT

1. Heard learned advocate Ms. Ashlesha Patel for the petitioners,l earned Assistant Government Pleader Mr. Dhawan Jayswal for

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the respondent-State and learned advocate Mr. H.S.Munshaw for respondent No.2.

2. RULE returnable forthwith. Learned Assistant Government Pleader Mr. Dhawan Jayswal waives service of notice of rule on behalf of the respondent-State, learned advocate Mr. H.S.Munsahw waives service of notice of rule on behalf of respondent No.2.

3. By this petition under Article 226 of the Constitution of India, the petitioners have prayed for the following reliefs:

"A. Your Lordship be pleased to issue an order, writ in the nature of mandamus and/or Certiorari or any other appropriate writ/order or direction declaring the impugned action of the respondent in not granting the benefits of (I) Transport Allowance; (ii) Travelling Allowance; (iii) Transfer Travelling Allowance ;(iv) Leave Encashment and (v) Leave Travel Concession to the present petitioners as such benefits have been extended to the similarly situated employees (who are junior to the petitioners & appointed after 1994) is discriminatory, illegal, unjust, arbitrary and violation of Article-14 & 16 of Constitution of India.

B. Your Lordships be pleased to direct Respondents to extend the benefits of (I) Transport Allowance; (ii) Travelling Allowance; (iii) Transfer Travelling Allowance; (iv) Leave Encashment and (v) Leave Travel Concession to the present petitioners as such benefits have been extended to the similar situated employees (who are junior to present petitioners and appointed after 1994).

C. Pending admission, hearing and final disposal of this petition, be pleased to direct the respondents to

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consider the case of the petitioners to grant benefits of (I) Transport Allowance; (ii) Travelling Allowance;

(iii) Transfer Travelling Allowance ;(iv) Leave Encashment and (v) Leave Travel Concession.

D. Be pleased to pass any other further order as may be deemed fit, just and proper in facts and circumstances of the case and in the interest of justice."

4. Brief facts of the case are that pursuant to the order dated 14.11.2014 passed by the Supreme Court, respondent-Board decided to give all admissible benefits to similarly situated employees including transport allowances, travelling allowance, transport travelling allowance, leave encashment, leave travel concession who are junior to the petitioners and appointed after 1994.

5. The petitioners were initially appointed as daily wagers to work in different offices of the respondent-Gujarat Water Supply and Sewage Board. After completion of five years, the petitioners were given the benefit of GR dated 17.10.1988 and further benefits have been extended after completion of ten years and the petitioners were paid the salary as per the regular appointed employees.

6. It is the case of the petitioners that employees of the respondent-Board were granted all the benefits as per GR dated 17.10.1988 who were appointed prior to 01.10.1988 except the five benefits viz. (i) Transport Allowance; (ii)

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Travelling Allowance; (iii) Transfer Travelling Allowance ;

(iv) Leave Encashment and (v) Leave Travel Concession.

7. Being aggrieved by the aforesaid decision of the respondent-

Board, daily rated employees preferred petition being Special Civil Application No. 1563 of 1992. The said petition was allowed vide order dated 31.01.2013 directing the respondent- Board to give all the above mentioned benefits.

8. The respondent-Board challenged order dated 31.01.2013 by filing Letters Patent Appeal No. 325 of 2013 which was dismissed by the Division Bench of this Court by order dated 16.07.2014.

9. The respondent Board challenged the order dated 16.07.2014 before the Apex Court by filing Special Leave to Appeal (C) No. 29108-29114/2014. By order dated 14.11.2014 the Supreme Court granted stay for a limited purpose against the payment of arrears. The Apex Court also observed that the benefits held admissible in terms of the judgement and order passed by the Division Bench to be released in favour of the employees for the future.

10. It appears that pursuant to the order dated 14.11.2014 of the Supreme Court, the respondent Board decided to give all admissible benefits to the similarly situated employees. The petitioners, therefore being aggrieved by not granting above five benefits, have preferred this petition on the ground that

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the petitioners are also working since more than 25 to 35 years with the respondent-Board and such benefits ought to have been extended to the petitioners also.

11. Learned advocate Ms. Patel submitted that there is clear discrimination by the respondent-Board qua the petitioners for not extending five benefits which are given to the employees who are junior to the petitioners and appointed after 01.01.1994.

12. Learned advocate Ms. Patel relied upon the recent decision of the Division Bench dated 27.08.2021 passed in similar matter being Civil Application No. 3910 of 2019 in Letters Patent Appeal No. 35122 of 2019 and allied matters and relied upon the conclusion arrived at by the Division Bench in para 39 of the judgement. It was therefore submitted that the respondent-Board should also extend the five benefits to the petitioners.

13. On the other hand, learned advocate Mr. Munshaw appearing in Special Civil Application No. 11921 of 2020 could not controvert the fact of the decision of the Division Bench directing the respondent-Board to extend the five benefits to the similarly situated employees.

14. Having heard learned advocate for the respective parties the prayers made in these petitions are required to be granted in view of the judgement of the Division Bench dated

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27.08.2021 passed in Civil Application No. 3910 of 2019 in Letters Patent Appeal No. 35122 of 2019 and other allied matters. The Division Bench has decided group of appeals relating to the interpretation, implementation and benefits flowing from the Government Resolution dated 17.10.1988 which was initially made applicable to the Roads and Buildings Department of the State Government. The Division Bench bifurcated the group of appeals into four categories as under:

Group I :- Matters relating to Leave Encashment

Group II:- Matters relating to the employees seeking benefits of 6th Pay Commission w.e.f. 01.01.2006 instead of 14.11.2014

Group III:- The appeals filed by the respondent-Gujarat Water Supply and Sweage Board challenging the judgement of the learned Single Judge extending five benefits to the employees covered by the Government Resolution dated 17.10.1988;

Group IV:- With regard to the employees who have not been extended the five benefits by the learned Single Judge.

15. So far as these petitions are concerned, the same would be squarely covered by the decision taken by the Division Bench in similar facts in appeals of Group III and IV.

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The Division Bench so far as appeals of Group III pertaining to the challenge to the decision of the learned Single Judge extending the five benefits to the employees of the Board is concerned, has held as under:

"34. We have considered the submissions. The argument 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

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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 that by not extending the said benefits, the authorities 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.

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 alllowance, 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

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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, 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

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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- inreply 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 dailywagers 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 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

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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 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

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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

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Single Judge had committed any error in exercise of the power, which may call for interference 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. "

35. The other argument of Shri Trivedi placing reliance upon the judgment in the case of Karshanbhai K. Rabari (supra) would also not be available today in view of the subsequent developments that have taken place in

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between as narrated above in the judgment of the learned Single Judge.

36. The other argument of Shri Trivedi regarding difference between permanency and regularization would also not be available insofar as the present appeals are concerned inasmuch as the benefits extended by the learned Single Judge have already been extended by the Sewerage Board and the State of Gujarat for the employees of the Sewerage Board vide subsequent circulars after the judgment in the case of Atul C. Soni (supra) attained finality before the Supreme Court.

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.

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."

16. Similarly with regard to the Group of matters No. IV, all matters pertaining to not extending five benefits, the Division Bench has held as under:

39. The fourth group of appeals is by the employees who have not been extended five benefits by the learned Single Judge despite the same having been claimed as relief in the petitions, however, the leave

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encashment benefit has been extended. For the reasons recorded above, the five benefits to these appellants not being extended cannot be sustained and as such, the appellants of these appeals would also be entitled to the same benefits as the other similarly situated set of employees regarding the five benefits. Accordingly, all the aforesaid appeals are allowed to the above extent. Consequently, connected Civil Applications are also disposed of."

17. In view of the above dictum of law, the petitions are allowed. Respondent-Board is directed to extend the five benefits viz. (i) Transport Allowance; (ii) Travelling Allowance; (iii) Transfer Travelling Allowance ;(iv) Leave Encashment and (v) Leave Travel Concession to the petitioners which have been extended to the similarly situated employees. The respondent-Board is directed to pass necessary orders for extending such benefits within eight weeks from the date of receipt of this order. Rule is made absolute to the aforesaid extent. No order as to costs.

(BHARGAV D. KARIA, J) JYOTI V. JANI