Gujarat High Court
Jivandas Vithaldas Gondaliya vs Executive Engineer on 4 October, 2022
Bench: Biren Vaishnav
C/SCA/16814/2021 ORDER DATED: 04/10/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 16814 of 2021
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JIVANDAS VITHALDAS GONDALIYA
Versus
EXECUTIVE ENGINEER
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Appearance:
MR RAJESH P MANKAD(2637) for the Petitioner(s) No. 1
MR HS MUNSHAW(495) for the Respondent(s) No. 1,2
NOTICE SERVED BY DS for the Respondent(s) No. 3
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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
Date : 04/10/2022
ORAL ORDER
1 The petition is for leave encashment, the issue which
is covered in light of the order passed by the Hon'ble
Supreme Court in SLP No. 7229 of 2022 dated
01.09.2022.
2 Learned counsel appearing for the petitioner, places
reliance on an oral order passed by this Court in Special
Civil Application No. 7886 of 2020 dated 13.08.2020,
which read as under:
"1. Heard Mr.Shalin Mehta learned Senior Advocate
with Ms.Shikha Panchal learned advocate for the
C/SCA/16814/2021 ORDER DATED: 04/10/2022
petitioner, Mr.K.M.Antani learned AGP appearing
for respondent Nos.1 and 2 and Mr.Nirzar Desai
learned advocate for respondent nos.3 and 4.
2. Rule returnable forthwith. With the consent of the
learned advocates for the respective parties, the
present petition is taken up for final hearing.
3. The prayer in the petition is that the petitioner be
extended the benefits of leave encashment at the
time of retirement and counting of service from the
date of joining for the purposes of pension and
gratuity.
4. The issue no longer requires extensive
consideration. It is undisputed that the petitioner
joined the services as a daily wager on 12.03.1985
and retired on 30.06.2016 rendering 31 years of
service. It is also undisputed that the petitioner was
also extended the benefits of Government Resolution
dated 17.10.1988 except those for which the petition
is filed i.e. leave encashment and counting of service
from the date of joining for the purposes of pension.
5. The issue has been reiterated and reconsidered
by several decisions of this Court. The Division
Bench of this Court in Letters Patent Appeal
No.1567 of 2018 and allied matters, by a judgment
and order dated 28.12.2018, where the Division
Bench confirmed the order of the learned Single
Judge which considered the relevant decisions in
context of the prayers in this petition. A. Leave
Encashment at the time of retirement and death. -
State of Gujarat and Anr. v. Mahendrakumar
Bhagvandas and Anr. [2011 (2) GLR 1290] [PARAS
2, 5 8] B. Counting of service from the date of
joining for the purposes of pension: Tribhovanbhai
Jerambhai vs. Dy. Executive Engineer, Sub-Division,
R&B Deptt & Anr., reported in 1998 (2) GLH 1.,
C/SCA/16814/2021 ORDER DATED: 04/10/2022
6. The Division Bench has quoted that judgment in
para 6 which reads as under:
"6. Next in line was the judgment in the case of
Tribhovanbhai Jerambhai vs. Dy. Executive
Engineer, Sub-Division, R&B Deptt & Anr.,
reported in 1998 (2) GLH 1., wherein this
Hon'ble Court in paras 9 and 10 observed as
under:
"9. In the resolution dated 17.10.1988, it
has been envisaged that those workman
who as on 01.10.1988 or thereafter
completes ten years of continuous service
to be counted in accordance with
provisions of Section 25B of the Industrial
Disputes Act shall be deemed to be
permanent and amongst other benefits
conferred on being treated as permanent
their age of superannuation was fixed at
60 years and they were made entitled for
pensionary benefit. By yet another
resolution dated 30.05.1989 (Annexure-E)
in which a specific query was raised at
item No.(6) with reference to resolution
dated 17.10.1988 about the calculation of
period of qualifying service for the
purpose of entitlement to pension in
connection with the pensionary benefits
made available to those daily wagers who
are deemed to be permanent on
completion of ten years of service and it
was specifically made clear that within the
meaning of resolution dated 17.10.1988,
the service which is to be counted is that
which can be said as continuous within
the meaning of Section 25B with effect
from the date of entry in the service is
duty counted for the purpose of pension
and pension has to be accordingly
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determined. This does not say that
qualifying service is to be counted with
effect from date of becoming permanent.
This leaves no room of doubt that the
resolution dated 17.10.1988 along with
clarification issued on the various aspects
of it vide resolution dated 30.5.1989 is in
consonance with the provisions of Rule
248 of the Bombay Civil Services Rules,
1959 which provide that Government has
not only power by general or special order
to permit service other than pensionable
service, for performing which a
Government servant is paid from State
revenues or from a local fund, to be
treated as duty counting for pension and
in issuing such an order Government is to
specify the method by which the amount
of duty shall be calculated for the purpose
of pension. Once the Government has
made it clear that those who have
completed ten years of service as daily
rated workman are to be deemed
permanent with effect from and after
17.10.1988 and are entitled to various
benefits on that basis including pension
and thereafter has provided by the
resolution dated 30.5.1989 that the
continuous service for the purposes of
pension, made available to employees
under resolution dated 17.10.1988, is to
be counted with effect from the date of
entry in the service provided it can be
continuous within the meaning of Section
25B of the Industrial Act, thus making it
clear that once a daily rated workman is
treated to be permanent under the
resolution dated 17.10.1988 his entire
continuous service from the date of entry
until he retires including his services
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rendered prior to the date of his
regularisation is taken into consideration
for the purpose of computing pension or
making pension available to such retired
employee.
10. There is yet another aspect of the
matter. Assuming that Bombay Civil
Services Rules do not provide for grant of
pension to those, who are not holding a
permanent post in the service, then it
must be held that daily rated workman
working on daily wages, are ex cadre
employees and not governed by particular
service rules, but are governed by terms
of employment under which they have
been engaged. This further leads to
conclusion that area of employment on
daily wages is not covered by statutory
rules either promulgated under Act 309 or
by other legislature enactment. That is the
area left uncovered by specific law, and
such employment is in exercise of general
executive powers of the State and terms
and conditions of such employment is
governed by terms of order under which
such employment is made and shall be
further governed by orders made by State
in exercise of its executive power from
time to time. The resolution dated
17.10.88 and 30.5.89 shall thus govern the
terms of employment of such employees. If
considered from this view, the conclusion
will be the same."
7. Mr.Nirzar Desai learned advocate for respondent
nos.3 and 4 has taken this Court through the
affidavit in reply filed to point out that the decision
has been taken in accordance with the order passed
by this Court and the representation is rejected by
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the order dated 06.08.2020.
8. Registry to take on record the affidavit in reply.
9. The Division Bench has considered several
decisions of this Court and the issue for which the
petition is filed is covered by a decision in the case
of Mahendrakumar Bhagvandas (supra).
10.Accordingly, having considered the arguments of
learned Senior Advocate Mr.Shalin Mehta, learned
AGP Mr.Antani for the State and Mr.Nirzar Desai for
respondent nos.3 and 4, the order dated 06.08.2020
is quashed and set aside. The petition is allowed.
11.The respondents are directed to give benefits of
leave encashment and recompute the pension and
the pensionary benefits by counting service of the
petitioner from the initial date of his appointment
i.e. 12.03.1985 and revise all the terminal benefits of
the petitioner and pay such amounts within a period
of 8 (eight) weeks from the date of receipt of copy of
this order. Rule is made absolute. Registry to
communicate the order through E-mail."
3 In light of the above referred decision, the petition is
allowed. The respondents are directed to extend the
benefits of leave encashment to the petitioner in light of
the Resolution dated 17.10.1988 within a period of 15
weeks from the date of receipt of copy of this order.
(BIREN VAISHNAV, J)
BIMAL
