Gujarat High Court

Rahimkhan Raysangji Malek vs State Of Gujarat on 1 August, 2022

Bench: Biren Vaishnav

     C/SCA/19141/2021                             JUDGMENT DATED: 01/08/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 19141 of 2021


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE BIREN VAISHNAV

==========================================================

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 ?

==========================================================
                        RAHIMKHAN RAYSANGJI MALEK
                                   Versus
                             STATE OF GUJARAT
==========================================================
Appearance:
MR NILESH M SHAH(780) for the Petitioner(s) No. 1
MR SOAHAM JOSHI, AGP for the Respondent(s) No. 1,2,3,4
==========================================================

     CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV

                              Date : 01/08/2022

                             ORAL JUDGMENT

1. Rule returnable forthwith. Mr. Soaham Joshi, learned

Assistant Government Pleader waives service of notice

of Rule for the respondents.

C/SCA/19141/2021 JUDGMENT DATED: 01/08/2022

2. With the consent of the learned advocates for the

respective parties, the petition is taken up for final

hearing today.

3. Mr. Shah, learned counsel for the petitioner would

submit that the issue of granting of pensionary benefits

is covered by a case of co-employee who had

approached this Court by filing SCA No.1690/2020. The

order dated 18.4.2022 passed in SCA No.1690/2020

reads as under:

"1. Rule returnable forthwith. Ms. Surbhi Bhati, learned AGP waives service of notice of rule on behalf of respondent State.

2. This petition, under Article 226 of the Constitution of India, is filed by the petitioners claiming the benefit of pension for the services rendered by them for a period of ten years and six months. They have also prayed for benefits of leave encashment of 300 days.

3. Mr. Nilesh Shah, learned counsel appearing for the petitioners would submit that at this stage the prayer for leave encashment is not pressed. As far as entitlement of the petitioners for leave encashment is concerned, as the issue is pending and is at large before the Apex Court by way of

C/SCA/19141/2021 JUDGMENT DATED: 01/08/2022

Special Leave to Appeal No. 1505 of 2022 in the case of The State of Gujarat and Others vs. Vaktaji Rupaji Parmar and Others, he would concede that the issue regarding leave encashment can be dealt with at a later point of time depending on the outcome of the SLP, if occasion arises.

4. Facts in brief would indicate that the petitioners were working as daily wagers under the Deputy Executive Engineer, Patdi since 1975. Their services being terminated they raised an industrial dispute and the Labour Court partly allowed their references directing reinstatement without backwages. Challenge to these awards by the employer by way of Special Civil Applications failed. The State filed Special Leave Petitions before the Apex Court and the Apex Court by order dated 29.09.2008 held as under:

"In this matter, admittedly, reference was filed after 15 years.

We have heard learned counsel for the parties. Following five persons, namely:

1. Shri Bhikhabhai Bijalbhai Ref (LCS) No.130/2000

2. Shri Jashuben Pamabhai Ref (LCS) No.131/2000

3. Shri Rahimkhan Raisangji Malek Ref (LCS) No.132/2000

4. Shri Valiben Savjibhai Ref (LCS) No.133/2000

5. Shri Baluben Bikhabhai Ref (LCS) No.121/2000

C/SCA/19141/2021 JUDGMENT DATED: 01/08/2022

would be given fresh appointment w.e.f. 1st November, 2008. No further directions are necessary. These special leave petitions are disposed of in terms of the aforesaid direction."

4.1 Accordingly, as observed by the Apex Court by treating the appointments of the petitioners as fresh with effect from 01.11.2008, the department granted them the benefits of the resolution dated 17.10.1988 by order dated 25.11.2013 with effect from 01.11.2013. Both the petitioners retired on superannuation on 30.04.2019.

5. Mr. Nilesh Shah, learned advocate for the petitioners would submit, drawing support from the table of service details produced by the deponent to the reply, that admittedly from the years 2008 till 2019 both the petitioners had completed 240 days in each year of service. They had therefore completed more than ten years entitling them for the benefit of pension.

6. Ms. Bhati, learned AGP appearing for the State would rely on the affidavit-in-reply filed on behalf of the State by the Deputy Executive Engineer, Roads & Buildings, Sub-Division No. 2, Surendranagar. She would submit that treating the appointments as fresh with effect from 01.11.2008 the petitioners completed five years on 31.10.2013. It was only from 01.11.2013 till the date of their superannuation they completed five years of services. They had therefore rendered less than ten years of service and would therefore not be entitled to pension. She would submit that for the first five years of service they were eligible only for fixed pay and that service cannot be treated as service as eligible for pension. Based on this computation, the

C/SCA/19141/2021 JUDGMENT DATED: 01/08/2022

petitioners were paid gratuity from 2009 to 2019. So far as transport allowance and leave encashment is concerned, she would rely on decisions in the case of Letters Patent Appeal No. 923 of 2018 and also submit that Special Leave Petition No. 1011 of 2022 is pending consideration.

7. In the case of Executive Engineer Panchayat (MAA & M.) Department & Another vs. Samudabhai Jyotibhai Bhedi [2017(4) GLR 2952] the question before the Division Bench was whether a daily wager will have a right to receive pension on he being regularized in service based on the resolution dated 17.10.1988. The principle culled out from the decision was that if a daily wager who rendered ten years or more of service based on the benefits of the resolution dated 17.10.1988 he would be entitled to pensionary benefits.

8. Mr. Nilesh Shah, learned counsel for the petitioners would rely on an oral judgement dated 07.04.2022 in Special Civil Application No. 14532 of 2021. The only difference that falls for consideration of this court in the facts of the present case is that admittedly by virtue of the decision of the Apex Court, the petitioners accepted that their date of initial appointment as fresh appointees will be from 01.11.2008. Counting that as the initial date of appointment in service as per the principles in the case of Samudabhai Bhedi (supra), admittedly the petitioners on the date of their superannuation on 30.04.2019 had completed more than ten years of service.

9. Accordingly, petition is allowed. The respondents are directed to consider the case of

C/SCA/19141/2021 JUDGMENT DATED: 01/08/2022

the petitioners and grant pensionary benefits, gratuity as well as other terminal benefits counting the year of service from 2008 to 2019 admittedly being more than ten years of service. The pension may be fixed accordingly. The terminal benefits shall be recomputed and paid within a period of two months from the date of receipt of the writ of the order of this court. Liberty to revive this petition with regard to leave encashment if need arises pursuant to the final decision of the Apex Court in the pending SLP. Rule is made absolute."

4. Admittedly, as referred to in paragraph No.4 of the

order dated 18.4.2022 quoted hereinabove, the name

of the present petitioner figures in the Reference which

was a subject matter of challenge before the Apex

Court.

5. Accordingly, the petition is allowed. The respondents

are directed to consider the case of the petitioners and

grant pensionary benefits, gratuity as well as other

terminal benefits counting the year of service from

2008 to 2021 admittedly being more than ten years of

service. The pension may be fixed accordingly. The

terminal benefits shall be recomputed and paid within