Kalubhai Bhudarbhai Vaghela vs State Of Gujarat
2022 Latest Caselaw 701 Guj

    C/SCA/16937/2021                                           ORDER DATED: 20/01/2022



           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

            R/SPECIAL CIVIL APPLICATION NO. 16937 of 2021

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                        KALUBHAI BHUDARBHAI VAGHELA
                                   Versus
                             STATE OF GUJARAT
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Appearance:
MR DIPAK R DAVE(1232) for the Petitioner(s) No.
1,10,11,12,13,14,15,16,17,18,19,2,20,21,22,23,24,3,4,5,6,7,8,9
MS.SURBHI BHATI, AGP (1) for the Respondent(s) No. 1,2,3,4
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 CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV

                                 Date : 20/01/2022

                                  ORAL ORDER

1. Heard learned advocate Mr.Dipak Dave for the petitioners, learned Assistant Government Pleader Ms. Surbhi Bhati, for the respondents.

2. Rule, returnable forthwith. Learned Assistant Government Pleader Ms. Surbhi Bhati, waives service of notice of rule on behalf of the respondents.

3. Having regard to the controversy in narrow compass, with the consent of the learned advocates for the respective parties, the petition is taken up for final hearing today.

4. The petitioners have prayed for the following reliefs:

(A) This Hon'ble Court may be pleased to issue a writ of mandamus and/or a writ

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in the nature of mandamus and/or any other appropriate writ, order or direction 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. 1 to 21 and Petitioner no.24 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 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;

5. Since the grievances of the all the petitioners are similar in nature, the respective dates of joining, retirement / death and total length of service of the petitioners are mentioned hereunder so as to indicate their entitlement from the respective dates :

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Sr. Name of the Date of Date of Total No. Petition Appointment Retireme Length nt/ Expiry Of Service

1. Kalubhai 15.08.1976 30.06.20 24 Years

Vaghela

2. Manjuben 02.04.1978 31.12.20 30 Years

3. Kantuben wd/o 21.12.1983 31.07.20 31 Years

4. Rajuben Wd/o 10.03.1974 31.07.20 36 Years

5. Mathurbhai 21.08.1981 30.06.20 39 Years

6 Chikubhai 21.09.1983 18.12.20 35 Years

Gauriben Chikubhai

7. Savitaben Wd/o 21.08.1983 30.06.20 25Years

Ambaliya

8. Jesingbhai 22.04.1976 31.07.20 39 Years

9. Vahanbhai 21.07.1981 30.06.20 34 Years

10. Lakhabhai 10.11.1982 30.06.20 36 Y Narubhai Sarola 19 ears

11. Natvarbhai 16.05.1982 30.11.20 32 Years

Makwana

12. Shanabhai 15.05.1976 31.01.20 36 Years

13. Valabhai Dudhabhai 21.08.1975 31.03.20 40 Years

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14. Ramabhai 12.10.1976 31.05.20 38 Years

15. Hiraben Wd/o. 07.10.1977 20.03.20 26 Years

16. Bhimabhai Hirabhai 16.05.1978 31.12.20 36 years

17. Savitaben 24.11.1973 31.03.20 38 Years

18. Bhupatbhai 09.01.1974 31.05.20 39 Years

19. Kanjibhai Popatbhai 01.01.1982 30.06.20 28 Years

20. Shamalbhai 14.03.1976 31.03.20 36 Years

21. Mandabhai 01.01.1978 31.07.20 40 Years

22. Bhikhabhai 21.03.1981 31.03.20 35 Years

23. Chunilal Dahyabhai 21.01.1983 31.03.20 30 Years

24. Kantuben 14.07.1978 18.01.20 30 Years

Dhandhukiya

6. 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.

7. Learned advocate Mr. Dipak Dave appearing on behalf of the petitioners has vehemently contended that the issue is almost covered by several decisions

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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 coordinate bench attached to the petition compilation dated 21.08.2019 passed in Special Civil Application No. 11086 of 2019 at page 102, in which, after drawing attention to paragraph 5.1, has specifically contended that in such set of circumstances, the directions have been issued in favour of the petitioner of that petition and therefore, the petitioners of this petition 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 for taking strict view in the matter. Learned advocate Mr. Dave has also drawn the attention of this Court on Notices dated 14.09.2021 and 29.09.2021 attached to the petition compilation on page 113 and thereby, has submitted that these petitioners are entitled to all the legitimate benefits as claimed and therefore, the

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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 coordinate bench of this Court has taken specific note of the stand of the authority in the earlier order dated 21.08.2019 and hence, keeping those observations in mind, the present petition deserves to be allowed and after drawing attention to the relevant circumstances, a request is reiterated to grant relief as prayed for.

8. As against this, learned AGP Ms. Surbhi Bhati appearing for respondents has candidly submitted that no doubt, the issue raised in the petition 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.

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9. Having heard the learned advocates for the respective parties, the prayers made in this petition are required to be granted in view of the Judgment and Order of the Division 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 and 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 judgement of the learned Single Judge extending five benefits to the employees covered by the Government Resolution dated 17.10.1988;

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Group IV:- With regard to the employees who have not been extended the five benefits by the learned Single Judge.

10. So far as this petition is 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, 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):

11. 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.

12. We first examine the reasoning given by the

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learned Single Judge based upon the facts, grounds and arguments advanced before the learned Single Judge.

13. 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 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.

14. The judgment in the case of Atul C. Soni (supra)

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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 of. .................

13. ........

5. "Having considered the submissions, what falls for our consideration is the

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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 01.10.198 who have been extended the benefit with effect from 01.01.2006 of the 6th 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 unlessit was arbitrary. The Government Resolution dated 17.10.1988 had been brought in, in order to extend the benefit to the employees who were working on 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

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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 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,

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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 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 daily- rated 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.

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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 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.

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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

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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

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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.

7.4There 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 herein above. 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 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).

8.1It 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

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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 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.

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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 above-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)

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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 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

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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 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".

15. 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

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portion from the said decision as it is not disputed by either side. Paragraphs 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.

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

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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,

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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

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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 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

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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 herein above, shall be paid to the petitioner within a period of six weeks from the date of receipt of this order.

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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."

16. 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

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group of appeals being LPA NO. 884 of 2021 and allied appeals by order dated 12.10.2021. Para. 6 of the said common oral order reads thus "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"

17. 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

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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 petitioners

- the employees concerned have completed 240 days of service.

18. It is further provided and directed that if the same is not paid within the stipulated period of eight weeks, it shall carry interest at the rate of 6% from the date of filing of this petition. The respondents are further directed to continue to pay the pension to the petitioners duly calculated as above.

19. With the above observations and directions, the petition stands allowed. Rule is made absolute.

(BIREN VAISHNAV, J) ANKIT SHAH