Gujarat High Court
Savitaben W/O Decd. Valjibhai ... vs Secretary, Road And Building ... on 5 August, 2022
Bench: Biren Vaishnav
C/SCA/7043/2019 JUDGMENT DATED: 05/08/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 7043 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BIREN VAISHNAV
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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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SAVITABEN W/O DECD. VALJIBHAI SAVLBHAI PATELIYA
Versus
SECRETARY, ROAD AND BUILDING DEPARTMENT
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Appearance:
MR P C CHAUDHARI(5770) for the Petitioner(s) No. 1
MR.SOAHAM JOSHI, AGP for the Respondent(s) No. 1,2,3
MR HS MUNSHAW(495) for the Respondent(s) No. 4,5
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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
Date : 05/08/2022
ORAL JUDGMENT
1. RULE returnable forthwith. Mr.Soaham Joshi
learned AGP waives service of notice of Rule on
behalf of the respondent Nos.1 to 3,
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Mr.H.S.Munshaw learned advocate learned
advocate waives service of notice of Rule on
behalf of the respondent Nos.4 and 5.
2. With the consent of learned advocates for the
respective parties, the petition is taken up for
final hearing.
3. By way of this petition under Article 226 of the
Constitution of India, the petitioner-widow of the
deceased has prayed for a direction that the
action of the respondents in not considering the
claim of the petitioner for lump-sum
compensation in lieu of compassionate
appointment is arbitrary.
4. It is the case of the petitioner that her case for
appointment is not considered only on the
ground that the deceased was a daily wager.
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5. Mr.H.S.Munshaw learned counsel appearing for
respondent nos.4 and 5 would invite the Court's
attention to the affidavit in reply and submit that
the decesaed-husband of the petitioner was
working as a daily wager and had been granted
the benefit of the resolution dated 17.10.1988
with effect from 01.06.1996. When the petitioner
applied for compensation in lieu of
compassionate appointment, it was considered
and appointed that the policy does not provide
for lump-sum compensation for the benefits of
the dependents of the Government Resolution
dated 17.10.1988.
6. Mr.Chaudhary in support of his submission, rely
on the judgment of this Court dated 14.02.2022
rendered in Special Civil Application No.11554 of
2021 and allied matter. The relevant paragraphs
of the said order read as under:
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"6 Having considered the submissions
made by the learned counsels for the
respective parties, it will be apt to consider
the first decision in line rendered by this
Court (Coram : Hon'ble Ms.Justice
Abhilasha Kumari,J.) in Special Civil
Application No. 1795 of 2013. Therein too,
the claim of the petitioner for financial
benefits in lieu of compensation were
denied. After extensively hearing the
parties, the Court opined that it was strange
for the respondents to contend that the
services of the petitioner were regularized
and were coverted into "permanent daily
wager". There is no concept of permanent
daily wager. Extensively relying on the
decision in the case of State of Gujarat and
ors vs. Mahendarakumar Bhagwandas,
which was reproduced in para 9 of the
decision, the Court in no uncertain terms
held that there was no concept of
permanent daily wager. The relevant paras
8 to 11 of the decision reads as under:
"8. A strange ground is taken in
Paragraph7 of the affidavitinreply filed
by respondent No.2, wherein it is stated
that the "service of the petitioner was
regularised and his service was
converted as permanent dailywager".
There is no concept of a
"permanent dailywager" in service
jurisprudence. What the term
"permanent dailywager" means can only
be explained by the second
respondent. Mr.Niraj Ashar, learned
Assistant Government Pleader, has
remained unsuccessful in satisfying this
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query of the Court. In the order dated
28.03.2008, whereby the services of
the petitioner's father were made
permanent, respondent No.2 has used
the word "permanent" and not
"permanent dailywager". The term
"permanent dailywager", therefore,
appears to have been coined by
respondent No.2, presumably with a
view to taking the case of the petitioner
out of the scope and ambit of the
Government Resolution dated
05.07.2011.
9. The nomenclature of "permanent
dailywage employee" came up for
discussion before the Division Bench of
this Court in the case of State of Gujarat
& Anr V. Mahendrakumar Bhagvandas
& Anr., reported in 2011(2) GLR
1290. This is what the Division
Bench held:
"5. ...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 rebranded 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,
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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."
10. The contention in the affidavitinreply
that the father of the petitioner was a
"permanent dailywager" and, therefore,
could not be given the benefit of the
Government Resolution dated
05.07.2011 is, therefore, contrary to
the principles of law laid down by
the Division Bench in the above
judgment and also to their own order
dated 28.03.2008 by which the
petitioner's father was made permanent.
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11. A submission has been advanced by
Mr.Niraj Ashar, learned Assistant
Government Pleader, that the
services of the petitioner's father were
regularised under the Industrial
Disputes Act and not under the Gujarat
Civil Services Rules, therefore, he cannot
be said to be a permanent
employee. Another submission
advanced is that as the petitioner's
father was not appointed under the
Gujarat Civil Services Rules, he cannot
get benefit of the Government Resolution
dated 05.07.2011. Both these
submissions deserve outright
rejection. It is a matter of record
that the petitioner's father was
initially appointed as a dailywager
with effect from 01.01.1981 and his
services came to be made permanent
with effect from 01.01.1986, by the order
dated 28.03.2008. It is the permanent
nature of the appointment of the
petitioner's father at the time of his
death that is to be considered for the
benefit under the Government
Resolution dated 05.07.2011 and
not whether he was initially appointed
as a dailywager. The submission that the
petitioner's father was appointed under
the Industrial Disputes Act, is
factually and legally incorrect. Having
been engaged as a dailywager in the
year 1981 and thereafter, being
accorded permanent status with
effect from 01.01.1986, there is no
question of appointment under the
Gujarat Civil Services Rules. The
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contention raised by learned
Assistant Government Pleader is totally
irrelevant and out of context."
6.1 The same was confirmed by the
Division Bench of this Court in Letters
Patent Appeal No. 1234 of 2017. Para 8 of
the Division Bench judgment reads as
under:
"8. In this case, it is not in
dispute that late father of the
respondent herein was initially
appointed as a daily wager and
thereafter, his services were
regularized vide order dated
28.03.2008. A copy of such order is also
placed on record. As per the terms of the
said order, it is made clear that late
father of the respondent herein would
be entitled to the benefits of
regular employees including retiral
benefits, seniority, etc. There is also
specific observation that in the event of a
proposal for resignation, notice of
resignation also should be issued
before tendering the resignation.
Further, we have also perused the
Government Resolution dated 5.7.2011.
While it is true that para 3 clause 2
of the Government Resolution dated
5.7.2011 states that such scheme of
paying compensation amount is
applicable to the employees, who
are regularly recruited persons, but
there is a specific clause which
excludes applicability of the scheme
to the category of persons namely,
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daily wager, casual worker,
apprentice, adhoc, contract or re-
employment. If both the clauses are
conjointly read, it is clear that this
scheme is to be extended to all
the persons, who are on regular services
on the date of death of the deceased
employee. As the scheme itself is a
beneficial scheme for the employees,
who die in harness, the respondent
herein cannot be denied the same on the
ground that late father of the
respondent was initially recruited
as a daily wager. While it is also true
that initially late father of the
respondent was appointed as a daily
wager in the year 1981, after
considering his length of services,
his services were regularized with
effect from 1.1.1986, extending all the
benefits payable to regular
employees vide order dated
28.3.2008 passed by the appellant
No.2 herein. If the conditions of
regularisation order given while
appointing the late father of the
respondent herein are considered,
with reference to various clauses
under the scheme of the
Government Resolution dated
5.7.2011, we are of the view that
the respondent herein is entitled for
all the benefits. Moreover, the
Division Bench of this Court in the
judgment in the case of State of
Gujarat & Anr. V. Mahendrakumar
Bhagvandas & Anr., reported in
2011(2) GLR 1290 has held in
paragraph No.5 as under:
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"5. ...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 rebranded
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 rebranded 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
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impugned common judgment
except for the clarification made
hereunder."
6.2 The decision of this Court rendered by
a Co-ordinate Bench (Coram : Hon'ble
Mr.Justice N.V.Anjaria,J.) in Special Civil
Application No. 14126 of 2017 and the
relevant paras which considered the
decision of the Division Bench in Letters
Patent Appeal No. 1951 of 2017 read as
under:
"5.2 In Manjuben wd/o.Deceased
Merambhai Kalabhai Sondarava (supra),
the similar question arose. The
controversy with regard to interpretation
of the clauses of Resolution dated 05th
July, 2011 which provided for
compensation instead of compassionate
appointment. Clause 2 of the Resolution
signified that the benefit under the
scheme would be available to the regular
employees and that the heirs of the daily-
wagers were barred from the benefit of
Resolution dated 05th July, 2011. In that
case, however, the employee was
granted benefit of Resolution dated 17th
October, 1988 and was made permanent.
5.3 The Division Bench observed thus,
"7. However, in present case, the
undisputed fact remains that the
deceased employee was initially
appointed as Rojamdar Driver,
thereafter, he was granted the
benefit of Resolution dated
17.10.1988 and was also made
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permanent. We had called for the
service book for ascertaining the true
status of the deceased employee. We
have examined the service book of
the concerned employee. A perusal of
the service book reveals that the
employee was appointed as a
Rojamdar Driver on 20.06.1987. The
Initial notings made in the service
book , indicates that, after
completion of 5 years of service, the
deceased employee was granted the
benefit of Resolution dated
17.10.1988 and he was also
appointed as Work Charge employee
having pay of Rs.950/per month. The
said benefit was granted to the
deceased employee from 01.01.1995.
On 13.01.1999, he was placed under
Work Charge establishment. After
considering his continuity of service
from 20.06.1987 to 01.04.2006, the
deceased employee was placed in a
regular pay scale of Rs.3050 - 4590/-
by an order dated 13.12.2007, and
accordingly increments were also
fixed and paid. Thereafter, the
deceased employee was also granted
regular revisions of pay. The noting
dated 05.09.2012 indicates that from
01.01.2006, his post has been
mentioned as a "Driver" and his pay
was fixed at Rs.6510/- with effect
from 01.07.2006, his grade pay was
increased at Rs.1900/- and his
revised pay band as on 01.07.2006
was of Rs.5200 - 20,200/-. He expired
while in service on 02.02.2013."
5.4 It was thereafter held by the Division
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Bench that the distinction as sought to
be made out was not tenable in law.
While learned advocate for the
respondent Board tried to harp that even
if the benefit of Resolution dated 05th
July, 2011 could be extended, the
Division Bench held it to be extendable
since employee was on the workcharge.
This contention find emphatic answer
from the following observations of the
Division Bench in Manjuben wd/o.
Deceased Merambhai Kalabhai
Sondarava (supra),
"12. In the opinion of this Court, no
such distinguishing feature has been
incorporated in the Resolution dated
05.07.2011. The same only refers to
the employees of Class III and IV
working under the State
Government. Clause 2 specifically
confers benefit of compensation to
the heirs of deceased workman of
Class III and IV, who were working
on the Work Charge establishment.
Though, such benefit has been
specifically denied to heirs of the
Daily Wagers, casual workers,
apprentice, ad hoc and employees
working on contractual basis, the
same cannot be applied to the daily
wagers or employees, who have been
subsequently regularized and are
made permanent and have also been
conferred the benefits of regular
revision of pay under the statutory
pay rules. Thus, such employees, who
are working on Work Charge
establishment, cannot be compared
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with the Daily wager or casual etc.
Once the State Government grants
the benefits of Resolution dated
17.10.1988 and as per the settled
proposition of law, such Daily
Wagers, after completion of certain
number of years, are made
permanent and regular and their pay,
retirement benefits, etc are also paid
as a regular employee, their status of
being "permanent and regular"
employees cannot be reverted to a
"daily wager" after they expire
resulting in the denial of the benefit
of compensation to their legal heirs.
In the considered opinion of this
Court, once they have acquired
status of regular employees working
in Work Charge establishment, their
heirs cannot be barred from the
ambit of Resolution dated 05.07.2011
envisaging compensation, as
provided therein."
5.5 The position of law emerges from the
aforesaid decision is that even where the
employee is granted benefit of
Resolution dated 17th October, 1988 and
therein he is made permanent and the
permanency status is accorded to him by
extending various benefits, the employee
will become full-fledged permanent
employee for the purpose of receiving all
the benefits which a permanently
employed employee may receive. Once
the permanent status is accorded to the
daily-wager employee in the scheme of
Resolution dated 17th October, 1988, he
cannot be discriminated against by
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denying certain benefits which are
otherwise available to the permanent
employee on the ground of permanency
acquired by the employee was not by
way of regular appointment, but under
the scheme of the said Resolution. The
permanency benefits which stand vested
in the employee in the Resolution dated
17th October, 1988 shall be deemed to
pervade for all the benefits available to
the permanent or regular employee. It
cannot be that for certain benefits father
of the petitioner is to be treated as
temporary or daily-wager and for certain
benefits, he would be treated as regular
employee."
6.3 In Special Civil Application No. 14126
of 2017, the author of the judgement
(Hon'ble Mr.Justice N.V.Anjaria, J.) took the
view pursuant to the decision in the case of
State of Gujarat & Anr vs.
Mahendrakumar Bhagvandas (supra)
and that of the Division Bench rendered in
Letters Patent Appeal No. 1951 of 2017 in
the case of Manjuben (supra). Therefore,
the reliance placed by Shri Meet Thakkar,
learned AGP for the State, on a decision of
Special Civil Application No. 14834 of 2010
(Coram : Hon'ble Mr.Justice R.M.Chhaya, J.)
and that in Special Civil Application No.
12270 of 2013 (Coram: Hon'ble
Mr.N.V.Anjaria, J.) dated 30.08.2016, cannot
be said to be binding, inasmuch as, both
these decisions were rendered without
considering the decision in the case of
Mahendrakumar Bhagvandas (supra).
Moreover, in the case of S.C.A No.14834 of
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2010 Suresh Maganbhai Chavda (supra),
there is nothing on record to show that the
deceased employee was granted the benefit
of the Resolution dated 17.10.1988.
6.4 As far as the decision of the Hon'ble
Supreme Court in the case of State of
Madhya Pradesh & Ors., vs. Amit
Shrivas, reported in (2020) 10 SCC 496,
is concerned two glaring distinct facts stare
at the face of the Court and make it
completely distinguishable from the facts on
hand and the policy. Before the Hon'ble
Supreme Court, Amit Shrivaas, claimed
entitlement to compassionate appointment
on account of demise of his father Shri
Ranglal Shrivas. The nature of employment
of his late father was that of Workcharge
Employee, though he was made permanent
and was even given promotion from time to
time and also pension was paid to him, the
request for compassionate appointment was
rejected by the State relying on the policy
dated 18.08.2008. The Policy provided that
when a government servant dies while in
service, if such an employee is earning
salary from the workcharge contingency
fund at the time of his / her demise, then
there was no provision for grant of
appointment. Clause 12.1 of the Policy
provided for compassionate grant of Rs.1
lakh to the nominated dependant of such an
employee, which was sanctioned to the wife
of the deceased.
7 Therefore, on facts, firstly what the
request of the respondent before the
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Hon'ble Supreme Court was to grant him
compassionate appointment despite there
being a clear clause providing for
compassionate grant of Rs.1 lakh. In the
facts of the present case, the Policy of
05.07.2011 clearly denies even the lump-
sum compensation which is under challenge
before this Court. Admittedly, in the case
before the Hon'ble Supreme Court, the
employee's successor was granted that
compensation, however, he claimed
appointment on compassionate grounds.
The Court, drew distinction between the
workcharge employee and permanent
employee and considering the case on hand
opined as under:
"17 In our view, the aforesaid plea
misses the point of distinction between a
workcharge employee, a permanent
employee and a regular employee. The
late father of the respondent was
undoubtedly a work-charged employee
and it is nobody's case that he has not
been paid out of work-charged /
contingency fund. He attained the status
of a permanent employee on account of
having completed 15 years of service,
which entitled him to certain benefits
including pension and krammonati. This
will, however, not ipso facto give him the
status of a regular employee.
18 In the aforesaid behalf, an analogy
can be drawn with the Madhya Pradesh
Industrial Employment (Standing
Orders) Rules, 1963, under which
employees can be classified as
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permanent, permanent seasonal,
probationers, badlis, apprentices,
temporary and fixed term employment
employees. A work-charged contingency
employee can also be classified under
any of the aforementioned categories
and under the said Standing Orders, the
classification as permanent can be
granted even on the completion of 6
months' service in a clear vacancy."
7.1 In para 20 of the decision, the
conclusion of the Hon'ble Supreme Court
was that on attaining the status of a
permanent employee, the employee was
then entitled to a minimum of the pay-scale
without any increments. That is not the case
on hand. If the Policy of the Resolution
dated 17.10.1988 is perused in light of the
decision in the case of Mahendrakumar
Bhagvandas (supra), it is very clear that
what is granted is not the minimum of the
pay-scale but the pay-scale itself that of
Rs.750-940/-, and therefore, as opined by
the Court in the case of Mahendrakumar
(supra), there can be no distinction
between permanent daily wager and a daily
wager. Even on this count, the judgement of
the Hon'ble Supreme Court on facts is
clearly distinguishable.
8 Accordingly, based on the submissions
made by the learned counsels for the
respective parties, both these petitions are
allowed. The petitioners are entitled to be
extended the benefits of the Government
Resolution dated 05.07.2011 and
07.04.2016 and the respondents are
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directed to consider the case of the
petitioners for grant of lump-sum
compensation on the basis of the pro rata
services rendered by the deceased
employees whom the petitioners represent
under the Government Resolution dated
05.07.2011 and 07.04.2016. The benefits
shall be extended to the petitioners within a
period of two months from the date of
receipt of a copy of this judgement. Rule is
made absolute to the above extent with no
orders as to costs."
7. Accordingly, the petition is allowed. The
petitioner is entitled to be extended the benefits
of the Government Resolution dated 05.07.2011
and the respondents are directed to consider the
case of the petitioner for grant of lump-sum
compensation on the basis of the pro rata
services rendered by the deceased employee
whom the petitioner represent under the
Government Resolution dated 17.10.1988 and
05.07.2011. The benefits shall be extended to the
petitioner within a period of four months from
the date of receipt of a copy of this judgement.
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Rule is made absolute to the above extent with
no orders as to costs.
(BIREN VAISHNAV, J)
ANKIT SHAH
