Gujarat High Court
Omprakash Chhaganlal Shrimali vs State Of Gujarat on 4 February, 2022
Bench: Biren Vaishnav
C/SCA/5988/2021 ORDER DATED: 04/02/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 5988 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 15766 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 218 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 851 of 2021
With
CIVIL APPLICATION (FOR BRINGING HEIRS) NO. 1 of 2021
In R/SPECIAL CIVIL APPLICATION NO. 851 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 2031 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 4184 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 4198 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 4203 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 4205 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 4823 of 2021
With
CIVIL APPLICATION (FOR BRINGING HEIRS) NO. 1 of 2021
In R/SPECIAL CIVIL APPLICATION NO. 4823 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 5592 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 12178 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 12199 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 15993 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 1148 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 1159 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 1161 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 1163 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 1194 of 2022
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R/SPECIAL CIVIL APPLICATION NO. 1195 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 1241 of 2022
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C/SCA/5988/2021 ORDER DATED: 04/02/2022
With
R/SPECIAL CIVIL APPLICATION NO. 1255 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 1526 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 1532 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 1579 of 2022
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R/SPECIAL CIVIL APPLICATION NO. 1695 of 2022
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R/SPECIAL CIVIL APPLICATION NO. 1755 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 1841 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 1842 of 2022
==========================================================
OMPRAKASH CHHAGANLAL SHRIMALI
Versus
STATE OF GUJARAT
==========================================================
Appearance:
MR DIPAK R DAVE(1232) for the Petitioner(s) No. 1,2
for the Respondent(s) No. 2,3,4
MR MEET THAKKAR, MS SURBHI BHATI, MR KURVEN DESAI, AGPs for
the Respondent(s) No. 1
MR UM SHASTRI, ADVOCATE for the Respondent(s) No. 2,3,4 in SCA
Nos.4198/2021, 4205/2021, 1151/2022, 1841/2022 and 1842/2022:
==========================================================
CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
Date : 04/02/2022
COMMON ORAL ORDER
ORDER IN SPECIAL CIVIL APPLICATIONS:
. So far as SCA Nos.1695 and 1755 of 2022 are concerned,
Mr.Pradeep J. Patel, learned counsel states that he is appearing for the
respondent - Panchayat. He is permitted to file his appearance in the
Registry.
1. Heard learned advocate Mr.Dipak Dave for the petitioners, learned
C/SCA/5988/2021 ORDER DATED: 04/02/2022
Assistant Government Pleaders for State-respondents as well as
learned advocate Mr. Uday Shahtri and Mr. Pradip J. Patel for the
respective Panchayats in all these petitions.
2. Rule, returnable forthwith. Learned Assistant Government Pleader
as well as learned advocates waives service of notice of rule on
behalf of the respective parties.
3. These petitions are filed on identical issue and therefore the same
were heard analogously.
4. At the outset Mr. Dave learned advocate for the petitioners has
submitted that, In some of the petitions, the heirs have also prayed
for benefit under Government Resolution dated 05.07.2011.
Mr.Dave, has submitted that he would not press the said prayer in
this petition with a view to raise the said grievance in substantive
different petition. The leave as prayed for is granted.
5. Having regard to the controversy in narrow compass, with
the consent of the learned advocates for the respective parties, the
petitions are taken up for final hearing today. For sake of
convenience, Special Civil Application No.15993 of 2021 is treated
as lead case. The facts of the said Special Civil application are as
under:
* The petitioner was serving as Rojamdar labourer in the
office of the respondent No.2 from 20.06.1980. The
petitioner was conferred benefits of government resolution
dated 17.10.1988 and was placed in pay-scale. The petitioner
has worked continuously and uninterruptedly until his date of
superannuation which is 30.04.2017. But for the purpose of
granting pension his services are counted from the date on
which he was made permanent i.e. after deducting 10 years
of initial service. He is also not granted other retirement
benefits Such as leave encashment, gratuity etc. Hence
C/SCA/5988/2021 ORDER DATED: 04/02/2022
aggrieved by this action of respondents the petitioner has
approached this Hon'ble Court. Further the petitioner has
also prayed for grant of other five benefits like group
insurance, transport allowance, medical allowance etc.
6. The petitioner has prayed for the following reliefs :
(A) This Hon'ble Court may be pleased to issue a
writ of mandamus and/or a writ in the nature of
mandamus and/or any other appropriate writ, order
or direction:
(i) to hold and declare that action on part
of the respondents in not making full
payment of pensionary benefits to the
petitioners by counting their entire length of
service from date of joining till date of
retirement/death as illegal, unjustified,
arbitrary and further be pleased to direct the
respondents to re-fix the pension of the
petitioners by counting their service from
date of joining until the date of
retirement/death and fix the pension
accordingly;
(ii) to hold and declare that
the petitioner shall be paid
all other benefits like Public
Holidays, Transport Allowance,
Medical Allowance, Group
Insurance at par with the
permanent employees.
(iii) to hold and declare
that petitioner nos. 3 to 9
are entitled to benefits of
leave encashment at par
with permanent employees
and be pleased to further
direct the respondents to
pay amount of leave
encashment of leave
C/SCA/5988/2021 ORDER DATED: 04/02/2022
standing in the account of
the petitioners;
(iv) to direct the respondents to pay
difference of pensionary benefits, gratuity
amount, other benefits and leave encashment
with 18% interest from the date when it fell
due;
7. Since the grievance of the petitioners in other respective
petitions are also similar in nature, the respective dates of
joining, retirement / death of petitioners in relevant petitions are
mentioned hereunder so as to indicate their entitlement from the
respective dates:
SPECIAL CIVIL APPLICATION NO. 15993 of 2021
Sr. Petitioner Name Date of
Date of
No. joining
retirement/
Death
1 Babubhai Somabhai Parmar 20.06.1980 30.04.2017
SPECIAL CIVIL APPLICATION NO. 15766 of 2020
Sr. Petitioner Name Date of
Date of
No. joining
retirement/
Death
1 Somabhai Virabahi Malivad 17.02.1989 30.06.2020
SCA No. 218 of 2021
Sr. Petitioner Name Date of Date of
No. joining retirement/
Death
1 Bhemabhai Mansukhbhai 21.01.1974 30.06.2010
Baria
SCA No. 851 of 2021
C/SCA/5988/2021 ORDER DATED: 04/02/2022
Sr. Petitioner Name Date of Date of
No. joining retirement/
Death
1 Amarsinh Rayjibhai Pagi 21.06.1986 30.11.2018
Deceased legal heirs
Dariyabrn Amarsinh Pagi
SCA No. 2031 of 2021
Sr. Petitioner Name Date of Date of
No. joining retirement/
Death
1 Rayjibhai Udabhai Parmar 06.09.1982 30.11.2006
SCA No. 4184 of 2021
Sr. Petitioner Name Date of Date of
No. joining retirement/
Death
1 Kalubhai Somabhai 01.04.1977 28.02.2011
Prajapati
SCA No. 4198 of 2021
Sr. Petitioner Name Date of Date of
No. joining retirement/
Death
1 Babarbhai Rumalnhai 21.04.1971 29.02.2008
Pateliya since deceased
through his legal heirs
Gangaben wd/o Babarbhai
Pateliya
SCA No. 4203 of 2021
Sr. Petitioner Name Date of Date of
C/SCA/5988/2021 ORDER DATED: 04/02/2022
No. joining retirement/
Death
1 Yusufmiya Basirmiys Kazi 01.01.1985 31.01.2012
SPECIAL CIVIL APPLICATION NO. 4205 of 2021
Sr. Petitioner Name Date of Date of
No. joining retirement/
Death
1 Laxmanbhai Somabhai 01.01.1977 05.02.2011
Pateliya Since deceased
through his legal heir
Kaliben Wd/o. Laxmanbhai
Pateliya
SPECIAL CIVIL APPLICATION NO. 4823 of 2021
Sr. Petitioner Name Date of Date of
No. joining retirement/
Death
1 Deceased Kabhai Kohyabhai 01.03.1981 30.04.2009
Patel through legal heir
Chanchalben Wd/o Kabhai
Patel
SPECIAL CIVIL APPLICATION NO. 5592 of 2021
Sr. Petitioner Name Date of Date of
No. joining retirement/
Death
1 Ramanbhai Somabhai 21.03.1977 30.04.2018
Parmar
2 Prabhatbhai Jagnubhai 21.01.1980 31.12.2019
Parmar
3 Dalpatbhai Koyabhai 21.05.1977 31.07.2015
Rathod
4 Shanabhai Kabhabhai 21.01.1974 31.03.2015
Rathava
5 Paradhubhai Madhurbhai 21.02.1977 31.03.2018
Baria
6 Dalsukhbhai Andariyabhai 21.03.1975 31.10.2017
C/SCA/5988/2021 ORDER DATED: 04/02/2022
Rathva
7 Surabhai Manabhai Rathva 21.03.1975 30.06.2017
8 Naginbhai Dhulabhai Parekh 21.05.1973 30.06.2008
9 Ambalal Babarbhai Parmar 10.05.1981 30.11.2019
10 Dhanabhai Mavabhai 01.05.1982 30.04.2018
Chamar
11 Late Hirabhai Shanabhai 21.01.1974 22.08.2006
Baria since deceased through
his heirs Doliben Hirabhai
Baria
12 Late Dhulabhai Galsingbhai 21.03.1977 25.01.2009
Rathva since deceased
through his heirs Savitaben
Dhulabhai Baria
13 Late Najarubhai 21.01.1974 30.04.2003
Changanbhai Rathva Since
deceased through his heirs
Chandaliben Najarubhai
Rathva
14 Late Khimjibhai Galsinh 21.01.1974 30.04.2009
rathva Since deceased
through his heirs Bipinbhai
Khimjibhai Rathva
15 Late Veljibhai chamarbhai 21.01.1974 28.09.1998
Rathva since deceased
through his heirs Gajaliben
Veljibhai Rathva
16 Late Bharatbhai Ratanbhai 21.01.1974 21.09.2003
Baria since deceased
throughhis heirs Jamunaben
Bharatbhai Baria
17 Late Aapsing Nanjibhai 21.09.1981 05.02.2007
Rathva Since deceased
through his heirs Goraliben
Aapsing rathva
18 Late Fulsinh Amarsinh 21.05.1986 06.07.2018
C/SCA/5988/2021 ORDER DATED: 04/02/2022
Parmar Since deceased
through his heirs Geetaben
Fulsinh Parmar
19 Late Kalyansinh Babarbhai 21.02.1977 08.07.2005
Patel since deceased through
his heirs Gangaben
Kalyansinh Patel
20 Late Somabhai Rayjibhai 21.02.1977 31.05.2019
Rathva Since deceased
through his heirs Shardaben
Somabhai Rathva
SPECIAL CIVIL APPLICATION NO. 5988 of 2021
Sr. Petitioner Name Date of Date of
No. joining retirement/
Death
1 Omprakash Chhaganlal 21.10.1981 30.06.2020
Shrimali
2 Savitaben Wd/o Ramsinh 21.08.1984 10.07.2008
Chauhan
SCA No. 12178 of 2021
Sr. Petitioner Name Date of Date of
No. joining retirement/
Death
1 Rukhiben Vajabhai Khant 21.06.1986 31.01.2015
Since deceased through her
legal heir Vajabhai
Gulabsinh Pagi
SCA No 12199 of 2021
Sr. Petitioner Name Date of Date of
No. joining retirement/
Death
1 Kalabhai Gorjibhai Bariya 21.03.1977 30.06.2005
since deceased through his
legal heirs Kokilaben Wd/o.
Kalabhai Bariya
SPECIAL CIVIL APPLICATION NO. 1148 of 2022
C/SCA/5988/2021 ORDER DATED: 04/02/2022
Sr. Petitioner Name Date of Date of
No. joining retirement/
Death
1 Fatesinh S Baria Since 21.02.1979 13.01.2007
deceased through his legal
heir Savitaben Wd/o.
Fatesinh Baria
SPECIAL CIVIL APPLICATION NO. 1159 of 2022
Sr. Petitioner Name Date of Date of
No. joining retirement/
Death
1 Ramabhai Becharbhai 22.12.1982 30.06.2015
Mahera
SPECIAL CIVIL APPLICATION NO. 1161 of 2022
Sr. Petitioner Name Date of Date of
No. joining retirement/
Death
1 Kashiben Nagarbhai Patel 12.12.1986 31.07.2020
SPECIAL CIVIL APPLICATION NO. 1163 of 2022
Sr. Petitioner Name Date of Date of
No. joining retirement/
Death
1 Jayantibhai Premchand 21.05.1984 31.07.2019
Makwana
SPECIAL CIVIL APPLICATION NO. 1194 of 2022
Sr. Petitioner Name Date of Date of
No. joining retirement/
Death
1 Prabhatbhai Kabhai Baria 21.01.1970 21.01.2001
Since deceased through his
legal heir Manchhiben
Wd/o. Prabhatbhai Baria
C/SCA/5988/2021 ORDER DATED: 04/02/2022
SPECIAL CIVIL APPLICATION NO. 1195 of 2022
Sr. Petitioner Name Date of Date of
No. joining retirement/
Death
1 Mohanbhai Gulabbhai 21.02.1976 28.02.1984
Suthar
2 Parvatbhai Bhurabhai Pagi 05.01.1977 30.06.2019
3 Motibhai Dolatbhai Parmar 07.08.1977 30.06.2019
SPECIAL CIVIL APPLICATION NO. 1241 of 2022
Sr. Petitioner Name Date of Date of
No. joining retirement/
Death
1 Punjaji Viraji Bitora 21.01.1983 30.06.2009
SPECIAL CIVIL APPLICATION NO. 1255 of 2022
Sr. Petitioner Name Date ofDate of
No. joiningretirement/
Death
1 Bharatbhai Waghabhai Pagi 30.04.1978 30.06.2019
2 Bhemabhai Manabhai Pagi 30.03.1977 31.07.2019
SPECIAL CIVIL APPLICATION NO. 1526 of 2022
Sr. Petitioner Name Date of Date of
No. joining retirement/
Death
1 Arjunbhai Somabhai Baria 21.07.1977 02.12.2004
Since deceased through his
legal heir Vikrambhai
Arjunbhai Baria
SPECIAL CIVIL APPLICATION NO. 1532 of 2022
Sr. Petitioner Name Date of Date of
No. joining retirement/
Death
C/SCA/5988/2021 ORDER DATED: 04/02/2022
1 Udesinh Pratapsinh Solanki 21.04.1973 18.02.2001
Since deceased through his
legal heir Gangaben Wd/o.
Udesinh Solanki
SPECIAL CIVIL APPLICATION NO. 1579 of 2022
Sr. Petitioner Name Date of Date of
No. joining retirement/
Death
1 Ramanbhai Shankarbhai 15.02.1971 30.09.2009
Solanki
SPECIAL CIVIL APPLICATION NO. 1695 of 2022
Sr. Petitioner Name Date of Date of
No. joining retirement/
Death
1 Parvatbhai Narsinh Bariya 21.12.1981 31.01.2013
SPECIAL CIVIL APPLICATION NO. 1755 of 2022
Sr. Petitioner Name Date of Date of
No. joining retirement/
Death
1 Kalubhai Chaturbhai Solanki 21.10.1981 31.10.2012
since deceased through his
legal heirs Savitaben wd/o
Kalubhai Solanki
SPECIAL CIVIL APPLICATION NO. 1841 of 2022
Sr. Petitioner Name Date ofDate of
No. joiningretirement/
Death
1 Motibhai Chhotabhai Damor 21.04.1961 15.01.1996
Since deceased through his
legal heir Manaben Wd/o.
Maotibhai Damor
C/SCA/5988/2021 ORDER DATED: 04/02/2022
SPECIAL CIVIL APPLICATION NO. 1842 of 2022
Sr. Petitioner Name Date of Date of
No. joining retirement/
Death
1 Udabhai Kabhaibhai Baria 21.04.1961 15.01.1996
Since deceased through his
legal heir Dalpatsinh
Udabhai Baria
8. The petitioners were given the benefits of Government Resolution
dated 17.10.1988 and they were made permanent. The petitioners
have retired from service thereafter. The petitioners have either not
been given pension or pension has not been paid on the basis of
entire length of service.
9. Learned advocate Mr. Dipak Dave appearing on behalf of the
petitioners has vehemently contended that the issue is almost
covered by several decisions of this Court, but the authority under
one pretext or other is not granting any due legitimate benefit which
is otherwise bound to be paid. For raising this kind of submission,
learned advocate has drawn the attention of this Court specifically
to the order passed by the division bench of this Hon'ble court dated
28/12/2018 passed in Letters Patent Appeal No.1567 of 2018, in
which, after drawing attention to paragraph 3 and 4, has specifically
contended that in such set of circumstances, the directions have
been issued in favour of the petitioners of that petition and
therefore, the petitioners of this group identically situated and since
the authority is well aware about the settled principle of law, there
is hardly any distinguishable material available with the authority
not to obey the order. In fact, from the beginning, the respondent
authority is well aware about this settled preposition of law laid
down in various decisions, still, in contemptuous manner, is not
inclined to extend the benefit and as such, adverse notice be taken
C/SCA/5988/2021 ORDER DATED: 04/02/2022
for taking strict view in the matter. Learned advocate Mr. Dave has
also drawn the attention of this Court on legal notice dated
20.09.2021 attached to the lead petition compilation on page 24 and
thereby, has submitted that these petitioners are entitled to all the
legitimate benefits as claimed and therefore, the same is not only
discriminatory but also violative of Article 14 and 16 of the
Constitution of India order passed by this Court same be provided
here as there is no legitimate excuse now available to the authority
but to grant relief as prayed for. Learned advocate Mr. Dave has as
such vehemently contended that the Division bench of this Court
has taken specific note of the stand of the authority in the earlier
order dated 28.12.2018 and hence, keeping those observations in
mind, the present group of petitions deserves to be allowed and
after drawing attention to the relevant circumstances, a request is
reiterated to grant relief as prayed for.
10.As against this, learned AGP for State-respondent, learned
advocate Mr. Uday Shahtri and Mr. V. D. Maru, learned advocate
for Mr. Pradip J. Patel, learned counsel for the respective
Panchayats have candidly submitted that no doubt, the issue raised
in the petitions is substantially covered by various decisions
including the decision which is attached to the petition's
compilation, as such, no other submissions are possible, but has
requested the Court that some liberty be provided in the order
itself that the petitioners, if have not completed 240 days in any
year, that year may not be counted for the purpose of calculating
the benefit payable to the petitioners including the pensionary
benefits. So, qua that year, the authority may curtail the
benefit. Having heard the learned advocates for the
respective parties, the prayers made in these petitions are required
to be granted in view of the Judgment and Order of the Division
C/SCA/5988/2021 ORDER DATED: 04/02/2022
Bench of this Court dated 27th August, 2021 rendered in
Civil Application No.3910 of 2019 in F/Letters Patent
Appeal No. 3512 of 2019 and allied matters. The
Division Bench has decided group of Appeals relating to the
interpretation, implementation and benefits flowing from the
Government Resolution dated 17.10.198 which was initially
made applicable to the Roads & 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 Sewage Board challenging
the judgment 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.
12. So far as these petitions are concerned, the same would
be squarely covered by the aforesaid Judgment and
Order of the Division Bench in similar facts of the Appeals
which are part of the Group Nos. (II ), (III) and (IV) wherein, it
is held as under:
"II . Group of matters claiming benefits of 6th Pay
Commission (Letters Patent Appeal Nos.1356 of 2018,
C/SCA/5988/2021 ORDER DATED: 04/02/2022
1731 of 2019, 1735 of 2019, 173 of 2019 to 1734 of 2019,
1736 of 2019, 1765 of 2019 and Letters Patent Appeal
(Filing) Nos.35122 of 2019 and 18672 of 2020):
9. The second group of petitions is by the original
writ petitioners whereby they have claimed the benefits
of the 6th Pay Commission with effect from
01.01.2006 instead of 14.11.2014 as has been
extended by the learned Single Judge. To this extent,
they have prayed for modification of the judgment
and order of the learned Single Judge.
10. We first examine the reasoning given by the learned
Single Judge based upon the facts, grounds and
arguments advanced before the learned Single Judge.
11. The learned Single Judge traced the litigation relating
to the grant of the benefits of 6th Pay Commission by
referring to a judgment of this Court dated 18.10.2016 in
the case of Anand Bhausaheb Pawar Vs. Gujarat
Water Supply and Sewerage Board, Special Civil
Application No.11239 of 2016 and other connected
matters wherein benefit of 6th Pay Commission
was awarded prospectively i.e. October, 2016. In
the said case, the petitioners were similarly situated
as the present original petitioners. They had also
complained of not being extended the benefits of the
6th Pay Commission. This Court had relied upon the
judgment dated 16.07.2014 passed in the case of Atul C.
Soni Vs. Gujarat Water Sup ly and Sewerage Board,
Special Civil Application No.1563 of 1992. The
judgment in the case of Atul C. Soni (supra) was based
C/SCA/5988/2021 ORDER DATED: 04/02/2022
upon the judgment dated 18-03-2011 of the Division
Bench of this Court in the case of State of Gujarat Vs.
Mahendrakumar Bhagvandas rendered in Letters
Patent Appeal No.958 of 2001 reported in 2011(2) GLR
1190.
12. The judgment in the case of Atul C. Soni (supra)
came to be confirmed by the Division Bench vide
judgment dated 16.07.2014 in Letters Patent Appeal
No.325 of 2013 and Letters Patent Appeal No.789 of
2013. This was further carried to the Supreme Court by
way of Special Leave to Appeal (Civil)
Nos.29108-29114 of 2014. The Supreme Court vide
order dated 14.11.2014 passed an interim order to the
extent that the payment of arrears in terms of the
impugned judgment would remain stayed. Further,
benefits held admissible in terms of the said judgment
may be released in favour of the respondents for the
future i.e. from 14.11.2014 onwards. Later on, the
Supreme Court vide order dated 14.08.2015 relied
upon the statement of Shri L.N. Rao, learned Senior
Counsel appearing for the petitioner Board that a
decision in principle had been taken to extend the benefits
admissible to such employees for the future in terms of
the order dated 14.11.2014 within a period of six
weeks. Later on, the Supreme Court vide order dated
25.10.2017 disposed of the Special Leave Petitions
by recording that in view of the statement made on behalf
of the petitioner Board as recorded in the order dated
14.08.2015, pending applications were also disposed
C/SCA/5988/2021 ORDER DATED: 04/02/2022
of.........."
"20. Having considered the submissions, what falls for
our consideration is the question that there were
already two different classes of employees who were
extended the benefits of the 6th Pay Commission from
different dates. One category is of the employees
appointed prior to 01.10.1988 who have been extended
the benefit with effect from 01.01.2006 of the 6 th Pay
Commission and the other category is of the employees
engaged after 30.11.1994 who have been extended the
benefit with effect from 14.11.2014. The appellants in the
present set of appeals were appointed in between the two
dates. They form a third category of employees. The
extension of benefit from a particular date would be a
policy decision and it was for the employer to decide the
same. The present appellants therefore form a different
class of having been engaged after 01.10.1988 but before
30.11.1994. They want parity and equal treatment with
the employees engaged prior to 01.10.1988 . When there is
already a second class created which had been
extended the benefit from 14.11.2014, the appellants if
placed in the said category, it cannot be said that they have
been discriminated, as such a decision would be in the
realm of a policy decision with which this Court would be
loathe to interfere unless it was arbitrary.
21. The Government Resolution dated
17.10.1988 had been brought in, in order to extend
the benefit to the employees who were working on
C/SCA/5988/2021 ORDER DATED: 04/02/2022
daily wage basis and engaged prior to 01.10.1988. By
subsequent Government Resolutions, although benefit
was extended to subsequently engaged daily wagers also
and ultimately vide Government Resolution dated
30.11.1994, the Government had taken a decision not
to make any further appointment on daily wage
basis. The very fact that the appellants form a
different class, is crystal clear. If they had been
extended the benefit with effect from 14.11.2014 of the
6th Pay Commission, no fault can be found with the policy
decision of the Sewerage Board or the State
Government. This Court cannot interfere with the policy
decision which is based upon a rationale. The learned
Single Judge therefore cannot be faulted with the relief
granted to the appellants of being extended the benefit
of the 6th pay Commission with effect from 14.11.2014.
Accordingly, this group of appeals is dismissed.
Consequently, connected Civil Applications stand disposed
of.
III. Group of matters challenging grant of benefits covered
by Government Resolution (Letters Patent Appeal Nos.325
of 2018, 326 of 2018, 413 of 2018, 587 of 2018, 588 of
2018, 289 of 2019, 1238 of 2019, 1737 of 2019, 1764 of
2019, 1766 of 2019 and Letters Patent Appeal (Filing)
Nos.36046 of 2019 and 38202 of 2019):................."
".....................................
34. We have considered the submissions. The argument
advanced by Shri Trivedi today is a day late and a
C/SCA/5988/2021 ORDER DATED: 04/02/2022
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
discus ion on this aspect. The same are reproduced
hereunder:
"7. This takes to the relief for extension of benefits of
(i) Transport Allowance; (ii) Travelling Al owance; (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
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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 benefirs 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, regularize 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
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as encashment of leave, leave travel assistance,
travelling allowance, uniform allowance etc. were
denied to them on the basis that they were not full-
fledged 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
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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. ...
... ..."
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
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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 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
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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.
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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 aborereferred 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
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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 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
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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.
IV. Group of matters not extending five benefits (Letters Patent
Appeal (Filing) Nos.5920 of 2019, 41066 of 2019, 41068 of 2019,
41069 of 2019 and 6241 of 2020)
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
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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.
40. In view of the fact that we have heard all the appeals on
merits, the delay condonation applications in all the appeals,
whether by the employees, Sewerage Board, Unions or the State are
allowed".
13. Additionally, when this Court has taken a note of that
circumstance and as has been pointed out by learned counsel
appearing for the respective parties, the Court has relied upon the
decision delivered by the coordinate bench on 05.09.2018 passed in
Special Civil Application No. 14504 of 2016 which is also based
upon several other decisions and therefore, the Court deems it
appropriate to reproduce relevant portion from the said decision as it
is not disputed by either side. Paragraph Nos.4.1 to 8 deserve to be
quoted hereunder: -
"4.1 Learned advocate for the petitioner could also
successfully rely on decision of this Court in
Balvantbhai Sardarbhai Pagi v. Deputy
Engineer being Special Civil Application
No.12350 of 2016 and allied petitions decided on
22nd May, 2016 taking the similar view.
5. In Executive Engineer, Panchayat v.
Samudabhai Jyotibhai Phedi [2017 (4) GLR
2952], the Division Bench has laid down, upholding
the decision of the learned Single Judge, that the
past services of the dailywagers where they have
completed 240days of continuous service as per
Section 25B of the Industrial Disputes Act, would
qualify for pension.
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5.1 The Division Bench in Samudabhai
JyotibhaiPhedi (supra) noticed the provisions of
the Resolution dated 17th October, 1988 with
reference to the nature of benefits flowing
therefrom, in paragraph No.6 of the judgment
stating as under:
"6.As is well known, under
Government Resolution dated 17.10.1988,
the Government decided to grant benefits of
regularization and permanency to daily
rated workers who had completed more than
10 years of actual service prior to such date,
of course subject to certain conditions. One
of the clauses in the said Government
Resolution was that the benefit of
regularization would be available to those
workmen who had completed more than 10
years of service considering the provisions
of section 25B of the Industrial Disputes Act.
They would get benefits of regular pay scale
and other allowances, pension gratuity,
regular leaves etc. They would retire on
crossing age of 60 years. That the period of
regular service shall be pensionable."
5.1.1 It was stated that the Government verified
and cleared the ambiguity in the
Resolution,observing as under:
"7. This Government Resolution led to
several doubts. The Government itself
therefore came up with a clarificatory
circular dated 30.05.1989, in which, several
queries which were likely to arise were
clarified and answered. Clause6 of this
circular is crucial for our purpose. The
question raised was that an employee who
had put in more than 10 years of service as
on 01.10.1988, would be granted the benefit
of Government Resolution dated
17.10.1988. In that context, the doubt was
whether for the purpose of pension, the past
service of completed years prior to
regularization would be considered or
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whether the pensionable service would be
confined to the service put in by the
employee after he is actually regularized.
The answer to this query was that those
employees who had put in more than 10
years of service as per Government
Resolution dated 17.10.1988 would get the
benefit of pension. For such purpose, those
years during which the employee had
fulfilled the provisions of section 25B of
Industrial Disputes Act,such years would
qualify for pensionary benefit."
5.1.2 The Court thereafter held,
"Two things immediately emerge from this
clarification. First is that the query raised
was precisely what is the dispute before us
and second is that the clarification of the
Government was unambiguous and
provided that every year during which the
employee even prior to his regularization
had put in continuous service by fulfilling
the requirement of having worked for not
less than 240 days as provided under
section 25B of the Industrial Disputes
Act,would count towards qualifying
service for pension. In view of the
clarification by the government itself,there
is no scope for any further debate. The
petitioner was correct in contending that
having put in more than 10 years of
continuous service as a labourer in the
past, he had a right to receive pension
upon superannuation. This is precisely
what the learned Single Judge has
directed, further enabling the employer to
verify as to in how many years he had put
in such service and then to compute his
pension."
5.2 Thus it is a clear position of law emerging
from decision in Samudabhai Jyotibhai Phedi
(supra) that entire past services of daily-wager
which was continuous is liable to be reckoned for
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the purpose of pensionary benefits and for the
purpose of granting pension. In the facts of the case
of the petitioner, the factum is not controverted and
it is undisputed that the petitioner has throughout
worked since his joining, to make his services
continuous.
6. The only reason put-forth by the authorities
to deny the petitioner the pension is that after he was
made permanent, he has not completed 10 years of
qualifying service, however if the date of joining of
the petitioner which is 12th December, 1986 is
considered, the petitioner has evidently completed
the qualifying period to be entitled to pension as per
the law laid down in Samudabhai (supra).
6.1 The decision on part of the authorities
reflected in communication dated 18th July, 2016
that the petitioner had not completed 10 years of
service since the date of becoming regular from 01st
December,1999 cannot stand in eye of law to deny
the pensionary benefits to the petitioner. The entire
service period right from the date of joining till the
petitioner retired on 30th September, 2012, is liable
to be counted and the pension is required to be paid
accordingly. The present petition has to succeed.
7. For the foregoing reasons and discussion, it
is hereby declared that the action on part of the
respondents in not making payment of pensionary
benefits to the petitioner and in not counting the
entire length of services of the petitioner from
12thDecember, 1986 till 30th April, 2012 is
arbitrary and illegal. The respondents are directed
to fix the pension of the petitioner counting his entire
service period from 12th December, 1986 till the
date of retirement. The petitioner is also held
entitled to all other retirement benefits including
leave encashment and difference of gratuity, as
may be payable. The total amount payable towards
pension to be calculated as above, the arrears
arising there by and the other retirement benefits
including those mentioned hereinabove, shall be
paid to the petitioner within a period of six weeks
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from the date of receipt of this order.
8. It is provided and directed that if the
amount is not paid within stipulated period of six
weeks, it shall carry interest at the rate of
6.5%from the date of filing of this petition. The
respondents are further directed to continue to pay
the pension to the petitioner duly calculated as
above."
14. From the aforesaid observations which are made by the
Coordinate Bench relying upon the various decisions, there
is no reason for this Court to deviate from the aforesaid
preposition of law. The past services rendered by the
petitioners where they have completed 240 days of service
as per Section 25B of the ID Act would qualify for pension
as laid down by the Division bench in case of Executive
Engineer, Panchayat V. Samudabhai Jyotibhai phedi
(2017 (4) GLR 2952). Hence, keeping that in mind, a case
is made out by the petitioners. Even, recently, this Court
relying upon the same, has also dealt with yet another
petition being Special Civil Application No.19374 of 2018
and other allied matters decided on 17.12.2020. The said
decision has been confirmed by the Division bench in LPA
No.470 of 2021 and other allied group appeals by order
dated 22.06.2021. In a recent decision passed in SCA
No.15110 of 2020 and other allied matters decided on
03.09.2021, the similar preposition has been laid down. The
said decision has been confirmed with modification in group
of appeals being LPA No.884 of 2021 and allied appeals by
order dated 12.10.2021. Paragraph No.6 of the said
common oral order reads thus:
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"6 In the above view, all the present Letters Patent
Appeals are disposed of by modifying the directions of
learned single Judge in the impugned judgment and
order, in particular contained in para 10, by clarifying
that the benefits accorded and directed to be paid to the
petitioners of retirement dues and others allowances
such as Transport Allowance, Traveling Allowance,
Transfer Traveling Allowance, Leave Encashment and
Leave Travel Concession shall be counted and paid in
respect of those years only in which the petitioners -
the employees concerned have completed 240 days of
service. The directions of learned single Judge in all
cases shall operate accordingly and with such
qualification"
15. In view of foregoing reasons and discussion, it is
declared that the action on part of the respondent authority in
not making payment of pensionary benefits and other
allowances and benefits as aforesaid to the petitioners and in
not counting the entire length of service from their initial
dates of employment reflecting from chart till their
retirement / death is arbitrary, illegal and not sustainable in
the eye of law. The respondents are as such directed to fix
the pension of each of the petitioners by counting their entire
service from their respective dates of joining till the date of
retirement as provided in the chart which is quoted herein
before and the petitioners are also entitled to all other
retirement benefits including leave encashment and
difference of gratuity as may be permissible with the
clarification that the benefits accorded and directed to be
paid to the petitioners of retirement dues and others
allowances such as Transport Allowance, Traveling
Allowance, Transfer Traveling Allowance, Leave
Encashment and Leave Travel Concession shall be counted
and paid in respect of those years only in which the
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petitioners - the employees concerned have completed 240
days of service.
16. It is further provided and directed that if the same is not
paid within the stipulated period of 8 weeks, it shall carry
interest at the rate of 6% from the date of filing of respective
petition. The respondents are further directed to continue to
pay the pension to the petitioners duly calculated as above.
17. With the above observations and
directions, all these petitions stand allowed. Rule is made
absolute.
ORDER in CIVIL APPLICATION No.1 of 2021 in
SPECIAL CIVIL APPLICATION No.851 of 2021 &
CIVIL APPLICATION No.1 of 2021 in SPECIAL CIVIL
APPLICATION No.4823 of 2021:
[1] Heard learned advocates for the respective parties through
Video Conferencing. Perused the record.
[2] Considering the facts and circumstances of the case and in
view of the submissions made by the learned advocates for the respective
parties, both these applications are allowed in terms of paragraph No.5(B).
[3] The Registry is requested to amend the cause-title accordingly
so as to bring the legal heirs of the deceased - petitioners on record of
both the main petitions.
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[ BIREN VAISHNAV, J. ]
VATSAL S. KOTECHA
