Tihabhai Bhojabhai Chosla vs State Of Gujarat
2022 Latest Caselaw 1422 Guj

      C/SCA/15822/2021                              ORDER DATED: 08/02/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 15822 of 2021

                                  With
              R/SPECIAL CIVIL APPLICATION NO. 15870 of 2021
                                  With
              R/SPECIAL CIVIL APPLICATION NO. 16353 of 2021
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                         TIHABHAI BHOJABHAI CHOSLA
                                    Versus
                             STATE OF GUJARAT
==========================================================
Appearance:
MR KISHAN M RATHOD(10765) for the Petitioner(s) No. 1
MR MUKESH H RATHOD(2432) for the Petitioner(s) No. 1
MR KURVEN DESAI, ASST GOVERNMENT PLEADER for the
Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 2,3,4
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     CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV

                              Date : 08/02/2022

                               ORAL ORDER

1. Rule returnable forthwith. Mr.Kurven Desai, learned Assistant

Government Pleader, waives service of rule on behalf of the respondent -

State. With the consent of the learned advocates appearing for the

respective parties, matters have been taken up for final hearing.

2. The prayer made in these petitions is to issue a writ of mandamus

directing the respondents to extend the benefits of encashment of 300

days' leave.

C/SCA/15822/2021 ORDER DATED: 08/02/2022

3. Having heard the learned counsels appearing for the respective

parties, as far as the issue of leave encashment of 300 days is no longer

res integra.

4. Mr. Mukesh Rathod, learned counsel for the petitioners, places

reliance on a decision of a Co-ordinate Bench of this Court rendered in

Special Civil Application No. 8498 of 2019 in context of his prayer for

leave encashment. Paragraphs 5 and 6 of the decision read as under:

"5. In Babarbhai Ambalalbhai Patel (supra), this court relied on Chimansingh Nathusingh Solanki vs. State of Gujarat being Special Civil Application No. 21473 of 2016 decided on 27.12.2017. In Chimansingh Nathusingh Solanki (supra), the following was observed which forms the reasoning of this order, "5. As far as the first prayer is concerned, learned advocate could successfully rely on decision of this Court in Special Civil Application No.9484 of 2013 dated 21st August, 2015 in Jorubhai Jijibhai Dabhi v. State of Gujarat wherein the petitioner was retired employee whose grievance was about non-payment of leave encashment upon his retirement. This Court relied on decision in State of Gujarat v. Mahendrakumar Bhagvandas [2011 (2) GLR 190] which was confirmed upto the Apex Court, and held in favour of the petitioner that the petitioner was entitled to leave enashment which benefit would held to be flowing from the State Government Resolution dated 17th October, 1988.

5.1 In Jorubhai Jijibhai Dabhi (supra) it was 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

C/SCA/15822/2021 ORDER DATED: 08/02/2022

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:-

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

C/SCA/15822/2021 ORDER DATED: 08/02/2022

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 Civil Application 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 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.

5.2 The aforesaid decision was confirmed in Letters Patent Appeal No.457 of 2016 decided on 26th July, 2016. The Division Bench also referred to observations in paragraphs 5, 6 and 8 of Mahendrakumar Bhagvandas (supra) and observed as under.

7. The issue before the Division Bench of this Court in the case of Mahendrakumar Bhagvandas(supra) was similar. There also there was no controversy about the fact that the

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concerned petitioners who entered services as daily rated employees have been regularized in their service under the Government Resolution dated 17.10.1988 and most of the benefits under the said Government Resolution available to the regular government servants were extended to the concerned petitioners. However, the said petitions were resisted on the ground that the said petitioners were daily rated employees and the benefits accorded to the permanent employee of the government could not be extended to them. In the said case, learned Single Judge, after considering the Government Resolutions, opined that the said petitioners were regular permanent employees of the respondent and were entitled to all the benefits of permanent employees of the concerned respondents. The petitions were allowed by the learned Single Judge with a direction that all the workmen concerned be treated as permanent employees at par with other regular employees and they were to be granted all the benefits as such.

5.3 The Division Bench in the said Letters Patent Appeal No.457 of 2016 also referred to another Division Bench judgment dated 30th October, 2015 delivered in Letters Patent Appeal No.1310 of 2015 and held to confirm the Jorubhai Jijibhai Dabhi (supra) and finally stated as under.

10. Thus, we are of the opinion that the present case is also squarely covered by the aforesaid two decisions rendered by this Court. Learned Single Judge has, therefore, not committed any error while placing reliance upon the Division Bench decision rendered in the case of Mahendrakumar Bhagvandas(supra). We are also in agreement with the reasons recorded by learned Single Judge."

6. In view of the above position of facts and law, the present petition deserves to be allowed. The respondents are directed to extend the benefits of payment of leave encashment of 300 days to the petitioners on their retirement, as the denial of this benefit is held to be illegal. The leave encashment for 300 days to the petitioners shall be paid considering the total length of the services of the petitioners within a period of eight weeks from the date of receipt of writ of this order."

         C/SCA/15822/2021                            ORDER DATED: 08/02/2022



4.1       The said decision was challenged by way of a Letters Patent

Appeal before the Division Bench of this Court being Letters Patent

Appeal No. 1614 of 2019 and the same was confirmed. Even the Special

Leave Petition before the Hon'ble Supreme Court being SLP No. 20010

of 2020 was also dismissed. Therefore, apparently, the question of leave

encashment of 300 days is an issue which has to be held in favour of the

petitioner.

5. The petitions are allowed. The respondents are directed to extend

the benefits of payment of leave encashment of 300 days to the

petitioners as the denial is illegal. The same shall be paid to the

petitioners considering the total length of service of the petitioners in

accordance with the decision rendered in the case of Samudabhai

Jyotibhai Bhedi (supra). The entire exercise shall be completed within

a period of eight weeks from the date of receipt of certified copy of this

order. Rule is made absolute to the above extent.

(BIREN VAISHNAV, J) DIVYA