Gujarat High Court
Dhankiben Jabrubhai Rathva vs Executive Engineer on 11 January, 2022
Bench: A.S. Supehia
C/SCA/11667/2018 ORDER DATED: 11/01/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 11667 of 2018
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DHANKIBEN JABRUBHAI RATHVA
Versus
EXECUTIVE ENGINEER
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Appearance:
MR P C CHAUDHARI(5770) for the Petitioner(s) No. 1
MR PRADIP J PATEL(5896) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
Date : 11/01/2022
ORAL ORDER
1. Rule. Learned advocate Mr.Pradip Patel waives service of notice
of rule for the respondent no.1.
2. By this writ petition, the petitioner is praying for a direction
directing the respondent to pay the family pension to her.
3. The facts, which are not in dispute, are that the petitioner, who is
the wife of the deceased Jabrubhai Alsingbhai Rathva, who was working
with the respondent since 20 years passed away on 14.02.2003, is not
being paid the family pension after his demise.
4. The petitioner also approached the Controlling Authority for
payment of gratuity and the aforesaid amount was paid to her after the
order was passed by the Controlling Authority in the year 2004.
5. Learned advocate Mr.P.C.Chaudhari appearing for the petitioner
has submitted that the husband of the petitioner was made permanent and
was also granted the benefit of the Government Resolution dated
17.10.1988 with effect from 01.04.1991 as per the order dated
26.10.1992. He has submitted that as per the catena of judgments of this
Court, if an employee is granted the benefit of the Government
Resolution dated 17.10.1988, he would be entitled to pension and on his
C/SCA/11667/2018 ORDER DATED: 11/01/2022
demise, his legal heir would get the family pension. In support of his
submissions, he has placed reliance on the order dated 05.09.2018 passed
in Special Civil Application No.14504 of 2016.
6. From the writ petition, it appears that no reply has been filed by the
respondent.
7. Learned advocate Mr.Pradip Patel appearing for the respondent is
unable to point out any provision of law, which dis-entitles the petitioner
from being paid the family pension.
8. It is well settled proposition of law that an employee is granted the
benefit of the Government Resolution dated 17.10.1988 and is being
made regular, such employee/daily wager is entitled to the pension as
well as the family pension.
9. The Coordinate Bench of this Court in the order dated 05.09.2018
passed in Special Civil Application No.14504 of 2016, after array of
various judgments of this Court, has held thus:-
"5.1 The Division Bench in Samudabhai Jyotibhai Phedi (supra)
noticed the provisions of the Resolution dated 17th October, 1988
with reference to the nature of benefits flowing therefrom, in
paragraph 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."
C/SCA/11667/2018 ORDER DATED: 11/01/2022
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. Clause-6 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 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."
C/SCA/11667/2018 ORDER DATED: 11/01/2022
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 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).
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 12th December,
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 thereby and
the other retirement benefits including those mentioned
hereinabove, shall be paid to the petitioner within a period of six
weeks from the date of receipt of this order."
10. Thus, the deceased husband of the petitioner, who was paid the
benefit of the Government Resolution dated 17.10.1988 and also made
regular vide order dated 26.10.1992, is entitled to the family pension. The
respondent is hereby directed to fix the family pension of the petitioner
and pay the same. Appropriate orders in terms of the directions of this
Court shall be passed within a period of two months from the date of
receipt of the writ of this order.
11. The present petition is allowed. Rule is made absolute.
(A. S. SUPEHIA, J)
ABHISHEK/19
