Gujarat High Court
Vikramsinh Bharatsinh Sarvaiya vs Gujarat Water Supply & Sewerage ... on 1 February, 2022
Bench: Biren Vaishnav
C/SCA/17092/2017 JUDGMENT DATED: 01/02/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 17092 of 2017
With
CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2021
In R/SPECIAL CIVIL APPLICATION NO. 17092 of 2017
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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VIKRAMSINH BHARATSINH SARVAIYA
Versus
GUJARAT WATER SUPPLY & SEWERAGE BOARD & 1 other(s)
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Appearance:
MR TR MISHRA(483) for the Petitioner(s) No. 1
MR RITURAJ M MEENA(3224) for the Respondent(s) No. 2
RULE SERVED for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
Date : 01/02/2022
ORAL JUDGMENT
1 Heard Mr.T.R.Mishra, learned advocate for the petitioner.
2 In this petition under Article 226 of the Constitution of India,
C/SCA/17092/2017 JUDGMENT DATED: 01/02/2022
the prayer of the petitioner is to extend the benefit of the 6 th Pay
Commission to the petitioner.
3 As far as the second prayer with regard to merger of 50% of
Dearness Allowance, Mr.Mishra, learned advocate states that prayer
is not pressed as the same is satisfied. In the civil application,
Mr.Mishra, learned advocate, places reliance on the decision of this
Court rendered in Special Civil Application No. 3068 of 2020 and
allied matters dated 26.10.2021. Reference is also made in the said
judgement to a decision of the Division Bench rendered in Letters
Patent Appeal No. 325 of 2018 dated 27.08.2021. Decision rendered
in Special Civil Application No. 3068 of 2020 dated 26.10.2021 reads
as under"
"1. Heard learned Advocate Mr. Mukesh T. Mishra for the
petitioner, learned AGP Ms. Surbhai Bhati for the respondent-
State and learned Advocate Mr. H.S. Munshaw for the
respondent-Board.
2. At the outset, learned Advocate Mr. Mishra for the
petitioner seeks permission to withdraw the petition insofar as
prayer with regard to the payment of benefit under 7th Pay
Commission is concerned, with liberty to file fresh petition.
Permission as sought for is granted. The petition is treated as
disposed of as withdrawn insofar as request for payment of
benefit under 7th Pay Commission is concerned.
3. Rule returnable forthwith. Learned Advocates appearing on
behalf of respective respondents waive service of Rule.
4. With consent of learned Advocates for the parties, the
petition is taken up for final disposal.
5. By way of this petition, the petitioner who is retired
employee of the respondent-Board and who had been granted
appropriate benefits as per the Government Resolution dated
17.10.1988 upon completion of five years and ten years
respectively, seeks to be granted benefit of revision of pay
C/SCA/17092/2017 JUDGMENT DATED: 01/02/2022
and consequential benefits as per the 6th Pay Commission
and the petitioners also seeks to be granted the benefit of
merger of 50% Dearness Allowance to be added to the basic
salary of the petitioner with effect from 01.04.2004 and
consequential benefits thereof as well as seeks to be granted
300 days Leave Encashment upon his retirement. The
petitioner further seeks to be granted five benefits i.e. (1)
Transport Allowance; (2) Travelling Allowance; (3) Transfer
Travelling Allowance; (4) Leave Encashment and (5) Leave
Travel Concession, as available to the petitioner under the
Government Resolution dated 17.10.1988 and which have
been paid to the similarly situated employees.
6. Heard learned Advocate Mr. Mukesh T. Mishra for the
petitioner, learned AGP Ms. Surbhai Bhati for the respondent-
State and learned Advocate Mr. H.S. Munshaw for the
respondent-Board.
7. At the outset, it is required to be stated that the issues
raised in the present petition are no more res integra.
8. Insofar as the benefit of merger of 50% Dearness Allowance
with basic salary and grant of 6th Pay Commission benefit are
concerned, this Court seeks to rely upon the decision of Co-
ordinate Bench of this Court (Coram : N.V. Anjaria, J) dated
21.12.2017 in Special Civil Application No. 18120 of 2016. The
observations of the Co-ordinate Bench of this Court in this
regard would be relevant and the same are quoted
hereinbelow for better appreciation.
"5. As as prayer for granting the benefit of 6th Pay
Commission is concerned, the relief in this regard could
be extended to the class of the petitioners herein
straightway in view of decision of this Court in Anand
Bhausaheb Pawar v. Gujarat Water Supply and
Sewerage Board of being Special Civil Application
No.11239 of 2016 and allied petitions decided as per
judgment dated 18th October, 2016. The said batch of
petitions were filed by similarly situated employees of
the very Board who complained that they were not
granted 6th Pay Commission's payscale even though
similarly situated employees including juniors were
accorded such benefit. This Court noticed the position of
law emerging from Atul C.Soni (supra) confirmed in
Letters Patent Appeal No.325 of 2013 and further
treated and confirmed for grant of benefits for future,
before the Supreme Court in Special Leave to Appeal
(Civil) Nos.29108-29114 of 2014 mentioned above, held
as under.
"5.3 Therefore, as per the unequivocal order of
the Apex Court, it is in terms directed that though
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the judgment will remain stayed, the benefits held
admissible in terms of the judgment shall be given
to the employees for the future. It is therefore
clear that the petitioners of the said petitions are
allowed prospectively the benefits of the 6th Pay
Commission. There is no gainsaying that the
present group of employees consisting of the
petitioners in the captioned petitions, are
identically placed."
5.1 It was noticed and observed in Anand Bhausaheb Pawar
(supra) also that subsequent to the aforementioned order
dated 14th November, 2014 of the Supreme Court in Special
Leave to Appeal (Civil) Nos.29108-29114 of 2014, respondent
- Board had passed Office Order No.59/2016 dated 02nd
September, 2016 granting 6th Pay Commission to all those
employees who had filed the petitions, which was yet another
direct reason to readily avail the benefit to the petitioners. It
was thereafter observed and held,
"5.5 ... ... ... The very benefits of 6th Pay Commission
Recommendations accorded and approved by the
Supreme Court by virtue of the aforesaid order, are
required to be given to the same extent, to the present
petitioners. The petitioners belonging to the same class
of persons and similarly situated, denial of 6th Pay
Commission benefit to them would offend Articles 14
and 16 of the Constitution. The respondents would act
only in violation of Articles 14 and 16 of the
Constitution, if they do not accord the benefit to the
petitioners herein."
5.2 The defence of the Board about the financial constraint
was negatived on the ground that such benefit could not book
any justification whatsoever when the discrimination and
unfair treatment was manifest. The final directions issued in
Anand Bhausaheb Pawar (supra) were as under.
"7. In view of foregoing discussion and reasons, all the
petitioners in the present group of petitions are held
entitled to be granted benefit of 6th Pay Commission by
paying salary in the 6th Pay Commission scales from the
month of October, 2016 onwards when the present
order is passed. They are entitled to be treated in
similar way as the employees who had approached the
Court by filing aforesaid Special Civil Application
No.1563 of 1992 and Special Civil Application No.11280
of 2010 and other cognate matters. The present
petitioners shall be entitled to benefits of 6th Pay
Commission prospectively. They shall receive the
benefits subject to the order which may be passed by
the Apex Court in Special Leave Petition (C) No.29108-
29114 of 2014."
C/SCA/17092/2017 JUDGMENT DATED: 01/02/2022
5.3 The respondent No.3 by filing affidavit-in- reply contested
the petition and objected to the grant of prayer. Noticeably,
what was contended by respondent No.3 inter alia was as
under, extracted from paragraph 5.
"... ... ... as stated hereinabove, the petitioners are
appointed after 30/09/1988 in spite of specific
prohibition, but ultimately granted the benefit of
Government Resolution dated 17/10/1988 issued by the
Government of Gujarat through Roads & Building
Department subsequent to a policy decision dated
30/11/1994. In other words, it is a separate Class of
daily wagers and cannot be treated at par with the daily
wagers who are provided work as daily wagers prior to
30/09/1988. It is submitted that therefore, the benefit of
recommendation of 6 th Pay Commission are not
released in favour of the petitioners and similarly
situated daily wagers aggregating 2491 daily wagers.
The Respondent No.3 submits that however, 50%
dearness allowance is merged with the pay of the
Petitioners and such other daily wagers with effect from
30/07/2012 pursuant to the order passed on
30/07/2012.... ... ..."
5.4 The stand of the respondent No.3 in sticking to the policy
decision dated 30th November, 1994 and the cut-off date
sought to be projected as 30th November, 1994, could hardly
hold good when this court has unequivocally held that the
benefits flowing from the respondent is to be made available
to all the daily-rated workmen whether they were appointed
prior or after the so-called cut-off date sought to be created
by the respondents. When this position has been clearly laid
down by this court and the Appeal and the Special Leave
Petition has been dismissed, taking the stand by respondent
No.3 as above could be said to be indeed contumacious, if not
contemptuous, to the orders of the Court. No defence much
less any valid defence, has been forthcoming out of the stand
of the said respondent.
5.5 The decision in Anand Bhausaheb Pawar (supra) and the
directions therein holds the field and has not been carried in
Appeal before the higher forum. The said direction applies to
the class of petitioners herein in so far as their prayer for
granting of 6th Pay Commission's pay-scale is concerned. The
petitioners are entitled to this relief in terms of the directions
issued in Anand Bhausaheb Pawar (supra).
5.6 As would be noticed from the final directions in Anand
Bhausaheb Pawar (supra) quoted in paragraph 5.2
hereinabove, benefit of 6th Pay Commission were ordered to
C/SCA/17092/2017 JUDGMENT DATED: 01/02/2022
be granted for future on the same lines as per the order of the
Supreme Court. Subsequently, those petitioners filed
Miscellaneous Civil Application No.375 of 2017 which was
allowed and the benefits were ordered to be granted, instead
of from the month of October, 2016 onwards, with effect from
14th November, 2014 as the respondent - Board had granted
such benefit from 14th November, 2014 by passing order in
respect identically placed daily-rated workmen. Thus the
benefits of 6th Pay Commission to the present petitioners who
similarly situated, would be granted with effect from 14 th
November, 2014. 6. The next prayer in respect of the benefit
of merger of 50% Dearness Allowance in the basic salary with
effect 01st April, 2004 also stands meritorious on the same
lines of rationale and reasoning. Once the similarly situated
set of employees are granted the benefit under Resolution
dated 17th October, 1988 with effect from 01st April, 2004,
these petitioners cannot deny the said benefit with effect
from the said date. Therefore, the petitioners herein stand
entitled to the relief for merging 50% Dearness Allowance
with effect from 01st April, 2004.
XXX XXX XXX
11. In view of the foregoing discussion and the position of law
obtained, the present petition stands allowed by passing the
order and directions as under.
(i) Respondents are directed to grant the petitioners the
benefit of 6th Pay Commission on the lines as is granted to
the similarly situated petitioners in Anand Bhausaheb Pawar
(supra) as per judgment dated 18th October, 2016 read with
modified directions issued in Miscellaneous Civil Application
No.375 of 2017 and accordingly confer the benefits of 6th Pay
Commission for future with effect from 14th November, 2014;
XXX XXX XXX
(iii) Respondents are directed to grant the benefit of the State
Government Resolution dated 08th October, 2007 to the
petitioners as is granted in case of other daily-wagers working
with respondent No.2 Board by merging 50% of the Dearness
Allowance in the basic salary of the petitioners with effect
from 01st April, 2004; ......"
9. It would be pertinent to mention here that the said decision
of the Co-ordinate Bench of this Court had been challenged by
the respondentBoard by preferring Letters Patent Appeal No.
587 of 2018 and whereas vide interim order dated
11.02.2019, the Hon'ble Division Bench of this Court had
recorded the statement of learned Senior Counsel appearing
for the respondent-Board that as regards directions at Para
C/SCA/17092/2017 JUDGMENT DATED: 01/02/2022
Nos. 11(i) and (iii) of the judgment of Co-ordinate Bench with
regard to extending benefit of 6th Pay Commission and
merging 50% of Dearness Allowance in basic salary with
effect from 01.04.2004, had been accepted by the Board and
apropos to such directions, a proposal has been forwarded to
the State Government for following necessary procedure.
10. In view of the fact that in case of similarly situated
employees, the respondent-Board had accepted the directions
for extending the benefit of 6th Pay Commission and merging
50% of the Dearness Allowance in the basic salary, in the
considered opinion of this Court, non-grant of such benefits to
the present petitioner would be a case of clear
palpablediscrimination and hence, the same benefits need to
be extended to the petitioner also.
11. Insofar as the issue with regard to payment of 300 days
Leave Encashment is concerned, learned Advocate for the
petitioner would 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 held 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:-
C/SCA/17092/2017 JUDGMENT DATED: 01/02/2022
"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 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 CivilApplication 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
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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 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."
12. 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.
13. Insofar as the prayer seeking for grant of the five benefits
i.e. (1) Transport Allowance; (2) Travelling Allowance; (3)
Transfer Travelling Allowance; (4) Leave Encashment and (5)
Leave Travel Concession, the Coordinate Bench of this Court
in the aforesaid decision dated 21.12.2017 in Special Civil
Application No. 18120 of 2016 had been pleased to hold that
the petitioners therein were entitled to such benefits as stated
hereinabove. The respondent-Board had challenged the said
decision by preferring Letters Patent Appeal No. 587 of 2018
and whereas the Hon'ble Division Bench of this Court (Coram :
Vikram Nath, CJ as then he was and Ashutosh J. Shastri, J) vide
common judgment dated 27.08.2021 in Civil Application
No.3910 of 2019 in F/Letters Patent Appeal No. 35122 of
2019, in which the Hon'ble Division Bench had also decided
the Letters Patent Appeal No. 587 of 2018, and had observed
with regard to the issue of extending the five benefits to the
petitioners therein. The observations of the Hon'ble Division
Bench are quoted hereinbelow for better appreciation :
"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
C/SCA/17092/2017 JUDGMENT DATED: 01/02/2022
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.
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
C/SCA/17092/2017 JUDGMENT DATED: 01/02/2022
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,
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.
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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
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
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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 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 dailywager 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
C/SCA/17092/2017 JUDGMENT DATED: 01/02/2022
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 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,
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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."
14. Having regard to the decisions of this Court referred to
hereinabove, in the considered opinion of this Court, the
petitioner is entitled to the benefits as sought for by him.
Hence, following directions are issued.
(i) The respondent authorities, more particularly the
respondentBoard is directed to pay to the petitioner the
benefit of 50% merger of Dearness Allowance with the basic
salary of the petitioner with effect from 01.04.2004 and to pay
to the petitioner all consequential benefits arising from the
said merger from the said date. The petitioner is directed to
be paid appropriate arrears of salary as per the revision of
pay under the 6th Pay Commission, as paid to the similarly
situated employees and whereas the petitioner shall be paid
all consequential benefits arising from such revision including
the retiral benefits at the time of retirement.
(ii) The petitioner shall be paid benefit of Leave Encashment
for 300 days at the time of his retirement.
(iii) The respondent-Board is directed to extend the five
consequential benefits namely (1) Transport Allowance; (2)
Travelling Allowance; (3) Transfer Travelling Allowance; (4)
Leave Encashment and (5) Leave Travel Concession, to the
petitioner, which have been extended to the similarly situated
employees and whereas necessary consequential orders for
extending such benefits shall be passed by the respondent-
Board.
(iv) The above exercise shall be done by the respondents
within a period of eight weeks from the date of receipt of this
order.
(v) It is further directed that in case, the respondents do not
process the case of the petitioner herein for payment of the
above benefits within the period of eight weeks as stipulated
hereinabove, then the payment of benefits shall be
accompanied with 6% interest from the date of filing of the
petitions till actual payment.
15. With the above directions and observations, this petition is
allowed. Rule is made absolute."
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4 Accordingly, the petition is allowed. The respondent Board is
directed to extend the benefits of the 6 th Pay Commission to the
petitioner with effect from 14.11.2014, preferably within a period of
eight weeks from the date of receipt of copy of this order.
In view of the order passed in the main petition, civil
application for stay does not survive and stand disposed of,
accordingly.
(BIREN VAISHNAV, J)
Bimal
