Vijaysinh Ratansinh Sisodia vs State Of Gujarat
2021 Latest Caselaw 13060 Guj

     C/SCA/4586/2021                             JUDGMENT DATED: 01/09/2021




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD


              R/SPECIAL CIVIL APPLICATION NO. 4586 of 2021
                                  With
              R/SPECIAL CIVIL APPLICATION NO. 2664 of 2021
                                  With
              R/SPECIAL CIVIL APPLICATION NO. 9098 of 2021
                                  With
              R/SPECIAL CIVIL APPLICATION NO. 10707 of 2021


FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE BHARGAV D. KARIA
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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 ?

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                       PARBATBHA DESHARBHA GADHAVI
                                   Versus
                             STATE OF GUJARAT
==========================================================
Appearance:
MS ASHLESHA M PATEL(6127) for the Petitioner(s) No.
1,10,11,12,13,14,15,16,2,3,4,5,6,7,8,9
MR HS MUNSHAW(495) for the Respondent(s) No. 2,3
NOTICE SERVED(4) for the Respondent(s) No. 1
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    CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA

                             Date : 01/09/2021
                             ORAL JUDGMENT

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

C/SCA/4586/2021 JUDGMENT DATED: 01/09/2021

for 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 writ of mandamus or any other writ or order or direction declaring the nature of mandamus and/or Certiorari or any other appropriate writ/order or direction declaring the action for the respondents in not paying the amount of leave encashment to the extent of 300 days (unavailed privilege leave) to the petitioners as illegal, arbitrary and in violation of Article 14, 16 and 21 of Constitution of India.

B. Your Lordship be pleased to direct respondents to release the amount of Leave Encashment (unavailed privilege leave) to the extent of 300 days with 12% interest thereon;

C. Your Lordship be pleased to pass nay 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

C/SCA/4586/2021 JUDGMENT DATED: 01/09/2021

decided to give all admissible benefits to similarly situated employees including leave encashment who are junior to the petitioners and appointed after 1994.

5. The case are that 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 Leave Encashment.

7. Being aggrieved by the aforesaid decision of the respondent- Board, daily rated employees preferred petition being Special Civil Application No. 9484 of 2013. The said petition was allowed vide order dated 21.08.2015 directing the respondent- Board to give the above mentioned benefit.

8. The respondent-Board challenged order dated 21.08.2015 by filing Letters Patent Appeal No. 457 of 2016 which was dismissed by the Division Bench of this Court by order dated 26.07.2016.

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9. The respondent Board challenged the order dated 26.07.2016 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 the leave encashment benefit, have preferred this petition on the ground that the petitioners are also working since more than 25 to 35 years with the respondent-Board and such benefit ought to has 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 the benefit of leave encashment which was given to the similarly situated employees of the Board.

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

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and relied upon the conclusion arrived at by the Division Bench in paras 3 to 6 of the judgement. It was therefore submitted that the respondent-Board should also extend the benefit of leave encashment to the petitioners.

13. On the other hand, learned advocate Mr. Munshaw could not controvert the fact of the decision of the Division Bench directing the respondent-Board to extend the benefit of leave encashment 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 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-I of the appeals relating to Leave Encashment.

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-I. The Division Bench, so far as appeals of Group-I pertaining to the challenge to the decision of the learned Single Judge extending the

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benefit of leave encashment to the employees of the Board is concerned, has held as under:

"3. We first deal with this issue as it has already been adjudicated upon upto the Supreme Court. The above appeals are filed either by the State of Gujarat or its Departments or the Sewerage Board assailing the judgment and order of the learned Single Judge whereby the benefit of Leave Encashment of 300 days was extended to the employees - petitioners.

4. The above issue apart from being raised in earlier rounds was also the subject-matter of consideration before a Division Bench of this Court in Letters Patent Appeal No.1614 of 2019 arising out of Special Civil Application No.8498 of 2019 and was disposed of by order dated 13.09.2019. The only ground raised before the Division Bench was that the learned Single Judge while extending the benefit of leave encashment of 300 days had issued a mandamus to extend the said benefit without giving liberty to the department to verify as to whether sufficient length of service had been rendered by the employees - petitioners so as to accumulate 300 days of earned leave in their account. To that limited extent, the judgment and order of the learned Single Judge was modified that the State would verify about the admissibility of 300 days for conversion into leave encashment considering the total length of service of the writ petitioners. The relevant portion of the said order dated 13.09.2019 is reproduced below :

"5. Normally, we would have issued notice to the respondents in the appeal, but considering the nature of relief pressed, which appears to be innocuous and even otherwise it is fair and reasonable that the State authorities (employers) may verify from the record regarding entitlement. We are not issuing notice to the respondents as apparently no prejudice would be caused to them by the modification sought.

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6. Thus without disturbing the entitlement allowed by the learned Single Judge, we dispose of this appeal with the limited modification that before making the payment, the appellants would verify about the admissibility of 300 days for conversion into leave encashment as per the direction given by the learned Single Judge considering the total length of the service of the writ petitioners (respondents 1 and 2).

7. In case, the respondents 1 and 2 feel aggrieved by this order, they would be free to apply for recall of this order.

8. With the above modification, the appeal is disposed of. Consequently, connected civil application for stay is disposed of."

5. This judgment and order dated 13.09.2019 passed in Letters Patent Appeal No.1614 of 2019 was carried by the State of Gujarat to the Supreme Court by way of Special Leave Petition (Civil) Diary No.20010 of 2020. The Special Leave Petition was dismissed both on the ground of limitation as also merits vide order dated 13.01.2021. The order of the Supreme Court is reproduced hereinbelow :

"We find no ground to condone the delay and we have dismissed a number of petitions of the very State Government with costs today. The factum of a young counsel before us is the only reason we restrain ourselves from imposing costs once again.

We may also notice that insofar as the merits of the case are concerned, the only issue which was raised was whether the respondent had accumulated sufficient leaves for grant of payment of 300 days' leave and it is stated in the arguments of the Assistant Government Pleader that "there is no issue" other than that. The appeal was thus, disposed of giving liberty to the petitioner to verify about the admissibility of 300 days for conversion into leave

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encashment. That being the position, we fail to appreciate why this SLP has been preferred. The reason which now appears is that the petitioner wants to raise other grounds which had never been pressed before the Division Bench.

In view of the aforesaid the matter is dismissed both on limitation and on merits.

Pending application stands disposed of."

6. Therefore, for the reasons recorded by the learned Single Judge in the order impugned in the appeal, subsequently also development has taken place vide judgment dated 13-09-2019 in Letters Patent Appeal No.1614 of 2019 by which the State employer was given liberty to verify the admissibility of 300 days leave encashment. This order having been affirmed by the Supreme Court, apparently no merit can be found in these appeals."

16. Similarly with regard to the Group No. IV of appeals, 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 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."

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17. In view of the above dictum of law, the petitions are allowed. Respondent-Board is directed to pay the amount of leave encashment to the petitioners after verifying the admissibility of 300 days of leave encashment. The respondent-Board is directed to pass necessary orders for extending such benefit 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