Gujarat High Court
Late Rameshbhai Bhikhabhai ... vs State Of Gujarat on 17 October, 2022
Bench: Biren Vaishnav
C/SCA/14390/2022 JUDGMENT DATED: 17/10/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 14390 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BIREN VAISHNAV
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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LATE RAMESHBHAI BHIKHABHAI PARMAR SINCE DECD. THROUGH
LHRS LAXMIBEN RAMESHBHAI PARMAR
Versus
STATE OF GUJARAT
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Appearance:
MS VIDHI J BHATT(6155) for the Petitioner(s) No. 1
for the Respondent(s) No. 1
MR. UTKARSH SHARMA, AGP, for the Respondent(s) No. 1,2,3,4,5
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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
Date : 17/10/2022
ORAL JUDGMENT
1 Rule returnable forthwith. Mr.Utkarsh Sharma,
learned AGP, waives service of notice of rule on behalf of
C/SCA/14390/2022 JUDGMENT DATED: 17/10/2022
the State respondents.
2 The prayer in the petition is for the five benefits that
the petitioner is entitled to in addition to the benefits of
the Resolution dated 17.10.1988 which are otherwise
provided. Prayer 33(A) reads as under:
"33(A) Your Lordships be pleased to issue a writ of
certiorari or any other appropriate writ, order or
direction declaring the action on the part of the
respondent authorities in not extending the petitioner the
benefits of (a) Transport Allowance; (b) Leave
Encashment at the time of retirement and death; (c)
Arrears of pay as per the 5th Pay Commission
Recommendations from 01.01.1996 to 31.12.1997; (d)
Difference of arrears of pay as per the 7 th Pay Commission
Recommendations from 01.01.2016; (e) Higher pay scales
after completion of required number of years of service in
lieu of promotion as per the then prevalent scheme; (f)
Lump sum financial assistance as per the Government
Resolution dated 07.04.2016 to the family of the
C/SCA/14390/2022 JUDGMENT DATED: 17/10/2022
petitioner as he died in harness; and (g) Counting of
service from the date of joining for the purpose of
computing pension and other pensionary / retirement
benefits, and other ancillary benefits, as admissible to
those covered by Government Resolutions dated
17.10.1988 as contrary to and in defiance of the
directions issued by the Hon'ble Division Bench in its
decision dated 18.03.2011 passed in State of Gujarat &
Another vs. Mahendrakumar Bhagvandas & Another
reported in 2011 (2) GLR 1290 and thus illegal and bad in
law and thus violative of Articles 14, 16 and 21 of the
Constitution;"
3 Ms.Vidhi Bhatt, learned counsel for the petitioner,
places reliance on an oral order passed by this Court in
Special Civil Application No. 2767 of 2022 and allied
matters. Relevant paragraphs of the decision read as
under:
"3. As far as the issue of the 5 th Pay Commission
ancillary benefits such as transport allowance, leave
encashment, group insurance etc. prayed for in all these
three petitions, the issue is covered by a decision of the
C/SCA/14390/2022 JUDGMENT DATED: 17/10/2022
co-ordinate bench of this court rendered in Special Civil
Application No. 5530 of 2003 on 20.08.2014 wherein this
court set out each of the benefits and the orders by which
the petitioners therein were covered. Relevant portion of
the order reads as under:
"Having considered the affidavit-in-replies as also
written submissions made by the State, it appears that the
State is unable to distinguish this case from the facts
of Mahendrakumar Bhagvandas (supra). A bare look
at Mahendrakumar Bhagvandas (supra) indicates that all
the arguments raised by the State in the affidavit-in-reply as
well as the written submissions are specifically addressed
and answered by the Division Bench.
In such a scenario, it would be a sheer waste of time,
money and energy for this Court to reinvest the said
resources to address the issue identical to the one decided by
the Division Bench of this Court. In such a context, this Court
in V.A. Parekh Vs. State of Gujarat [2009 (5) GLR
3922] made following observations:
(1) It is immaterial that in a previous litigation the
particular petitioner before the Court was or was not a
party, but if law on a particular point has been laid
down by the High Court, it must be followed by all
authorities and Tribunals in the State.
(2) The law laid down by the High Court must be
followed by all authorities and subordinate Tribunals
when it has been declared by the highest Court in the
State and they cannot ignore it either in initiating
proceeding of deciding on the rights involved in such a
proceeding.
(3) If in spite of the earlier exposition of law by the
High Court having been pointed out and attention
being pointedly drawn to that legal position in utter
disregard of that position proceedings are initiated, it
must be held to be a willful disregard of the law laid
down by the High Court and would amount to civil
contempt as defined in Section 2 (b) of the Contempt of
Courts Act, 1971.
Further, this Court in SCA NO.28470 of 2007 & allied
matters, has made following observations in paragraph
Nos.6, 8 and 9:
C/SCA/14390/2022 JUDGMENT DATED: 17/10/2022
6. In the opinion of this Court, once this Court settles
the law, unless subsequently unsettled by the Higher
Forum, it binds the State and it is the constitutional
duty of the State to confer similar benefits to similarly
situated persons without asking, in view of the equality
clause contained in Articles 14 and 16 of the
Constitution of India. It appears that ignoring the
above-referred constitutional position, each individual
department of the State sticks to its individual view
rather than abiding by law declared by this Court. Such
an approach, in the opinion of this Court, is contrary to
public interest.
***
8.It is noticed that this Court is flooded with number of
identical matters, as noticed in Paragraph-7. Number of
decisions are rendered, reiterating the same issue over and
over again. Once the High Court concludes a question of law,
it has to be acted upon to the benefit of all similarly situated
beneficiaries, irrespective of their filing the petition or other
legal proceedings for claiming such benefits. If the judgment
of the High Court settling the legal position is not
implemented in the aforementioned manner, identical cases
will go on multiplying, resulting into flooding of the litigation
in already overburdened Courts. Not only that, considerable
public time, money and energy gets involved in the avoidable
litigation.
9. At times, it is noticed that different departments of the
State would take their individual stand, contrary to the stand
taken by the other department on the same or similar matter,
perhaps because of lack of coordination between the two or
more departments. It would be, thus, appropriate if the State
evolves a policy to avoid the avoidable litigation as aforesaid.
In fact, the State has already declared its litigation policy and
it is desirable that under the said policy, the issue discussed
in Paragraphs-8 and 9 is addressed by the State to save
public time, money and energy in avoidable litigation.
Thus, in above view of the matter, this Court is not
required to specifically address each and every issue that
was raised and answered by the Division Bench
in Mahendrakumar Bhagvandas (supra). In fact, as per
the settled legal position in such a scenario, even the issues
not raised before the bench of higher strength would not be
permissible for the State to be raised in an identical case
C/SCA/14390/2022 JUDGMENT DATED: 17/10/2022
before a Single Judge. Only relevant aspect would be whether
the Division Bench was concerned with the identical case or
not and if the answer is in the affirmative, the Single Judge
would not go into the detailed arguments as indicated above
in absence of the plea that the decision in Mahendrakumar
Bhagvandas (supra) has been overruled by a bench of
higher strength or the Supreme Court.
Secretary, State of Karnataka & Ors. Vs. Umadevi
& Ors. [AIR 2006 SC 1806] has been heavily relied upon by
the learned AGP with the submission that illegal entries
cannot seek as of right the benefits of regularization. True
that, in Umadevi (Supra) the Honble Apex Court heavily
came down on the action of the constitutional authorities in
allowing a back-door entry in public service by a tool of
regularization, but an exception in paragraph No.44 was
carved out thus:
....We also clarify that regularization, if any already
made, but not sub judice, need not be reopened based
on this judgment, but there should be no further by-
passing of the constitutional requirement and
regularizing or making permanent, those not duly
appointed as per the constitutional scheme.
In the instant case also petitioners were regularized
and only issue herein is as regards consequential benefits of
such regularization.
Various issues raised in this petition have been addressed by
this Court in the context of the identical facts in several
decisions mentioned below:
Sr. Benefits Judgments/ orders Relevant
No. Para
1 Public (i) CAV Judgment dated Para
Holidays 14.10.2004 passed by Nos.28
the Honble Division and 29.
Bench in Letters Patent
Appeal No.1037 of 2004.
(ii)Order dated
08.04.2005 passed in
Special Leave to Appeal
(CC) No.3719 of 2005.
The said Special Leave
to Appeal was filed
against the judgment
C/SCA/14390/2022 JUDGMENT DATED: 17/10/2022
and order dated
14.10.2004 passed in
Letters Patent Appeal
No.1037 of 2004.
(iii) State of Gujarat &
Anr., Vs.
Mahendrakumar
Bhagvandas & Anr.,
[2011 (2) GLR 1290]
Para
Nos.5
and 8.
2 Transport State of Gujarat & Anr., Para
Bhagvandas & Anr., and 8.
[2011 (2) GLR 1290]
3 Leave State of Gujarat & Anr., Para
at the time Bhagvandas & Anr., and 8.
of [2011 (2) GLR 1290]
retirement
and death
4 Counting of (i) Tribhovanbhai Para
service Jerambhai Vs. Dy. Nos.9
from the Executive Engineer, and 11.
date of Sub-Division, R & B
joining for Deptt & Anr., [1998 (2)
the purpose GLH 1].
of pension
(ii) Oral order dated
06.08.1998 passed in
LPA No.1495 of 1997 in Page
SCA No.7539 of 1997 Nos.108
(Chhaganbhai to 110.
Ranchhodbhai Rathod
Vs. Dy. Executive
Engineer).
(iii) Oral order dated
14.12.2005 passed in
SCA No.788 of 2005
(Shyam B Salunkhe Vs.
Dy. Executive Engineer).
C/SCA/14390/2022 JUDGMENT DATED: 17/10/2022
Para
(iv) MANU/GJ/0072/2007 Nos.4
(Sultan Ibrahim Mansuri and 5.
vs. State of Gujarat &
Ors)
(v) Oral judgment dated
30/01/1996 passed in
SCA No.3607 of 1982.
Para
(vi) State of Gujarat & No.7.
Anr., Vs.
Mahendrakumar Bhagva
ndas & Anr., [2011 (2)
GLR 1290]
Para
Nos.9
and 10.
Para
Nos.5
and 8.
5 Medical State of Gujarat & Anr., Para
Allowance Vs. Mahendrakumar Nos.5
Bhagvandas & Anr., and 8.
[2011 (2) GLR 1290].
6 Group State of Gujarat & Anr., Para
Insurance Vs. Mahendrakumar Nos.5
Bhagvandas & Anr., and 8.
[2011 (2) GLR 1290].
Under the circumstances, respondents are required to
be directed to follow Mahendrakumar Bhagvandas
(supra) in its letter and spirit and confer upon the petitioner
all the benefits as indicated in the said judgment as also the
judgments in the above table within six months of receipt of
the writ of this Court. Accordingly, directed. These petitions
C/SCA/14390/2022 JUDGMENT DATED: 17/10/2022
accordingly succeed. Rule is made absolute in each of the
petitions. No costs."
3.1 This order of the co-ordinate bench was confirmed
in appeal by way of decision dated 28.12.2018 passed in
Letters Patent Appeal No. 1567 of 2018.
3.2 Therefore as far as the five ancillary benefits are
concerned, the petitions are allowed in terms of the order
passed by this court in Special Civil Application No. 5530
of 2003. The respondents are directed to pay the benefits
of the 5th Pay Commission to the petitioners of Special
Civil Application No. 3212 and 3381 of 2022 within a
period of ten weeks from the date of receipt of the writ of
the order of this court.
4. The petitioners of Special Civil Application No.
2767 of 2022 have prayed for counting the services of the
petitioners from their initial date of appointment for the
purposes of gratuity, pension and other terminal benefits.
The said issue is covered by the decision of this Court
rendered in Executive Engineer Panchayat (MAA &
M.) Department & Another vs. Samudabhai
Jyotibhai Bhedi [2017(4) GLR 2952] by which it is
specifically observed and held that all those years in
which the concerned workman has worked for more than
240 days as a daily wager is required to be considered
while counting / considering the pensionable services of
the daily wager. Under the circumstances, as such the
issue involved in the present petitions is now not res-
integra in view of the aforesaid decision of the Division
Bench of this Court, the petitioners are required to be
granted the benefit of counting their services from their
initial date of appointment for the purposes of gratuity,
pension and other terminal benefits.
4.1 Accordingly, the pensionary benefits shall be revised
and arrears of pension and other terminal benefits shall
be paid within a period of ten weeks from the date of
receipt of the writ of the order of this court.
C/SCA/14390/2022 JUDGMENT DATED: 17/10/2022
5. As far as Special Civil Application No. 3381 of 2022
is concerned, since the petitioners are dependents of the
employees who died in harness, in light of the decision of
this court rendered in Special Civil Application No. 2884
of 2022 dated 20.04.2022, the case of these petitioners
need to be considered and the benefits of the
Government Resolutions dated 05.07.2011 and
07.04.2016 is required to be extended to the petitioners.
Para 4 of the decision reads as under:
"4. By decision rendered by this Court on 14.02.2022 in
Special Civil Application Nos.11554 and 12746 of 2021, the
Court had considered extensively the decisions rendered by
this Court on the earlier occasions and thereafter the Court
held as under:
"6 Having considered the submissions made by the learned
counsels for the respective parties, it will be apt to consider
the first decision in line rendered by this Court (Coram :
Hon'ble Ms.Justice Abhilasha Kumari,J.) in Special Civil
Application No. 1795 of 2013. Therein too, the claim of the
petitioner for financial benefits in lieu of compensation were
denied. After extensively hearing the parties, the Court
opined that it was strange for the respondents to contend
that the services of the petitioner were regularized and were
converted into "permanent daily wager". There is no concept
of permanent daily wager. Extensively relying on the decision
in the case of State of Gujarat and ors vs. Mahendarakumar
Bhagwandas, which was reproduced in para 9 of the
decision, the Court in no uncertain terms held that there was
no concept of permanent daily wager. The relevant paras 8 to
11 of the decision reads as under:
"8. A strange ground is taken in Paragraph7 of the
affidavit-in-reply filed by respondent No.2, wherein it is
stated that the "service of the petitioner was
regularised and his service was converted as
permanent daily-wager". There is no concept of a
"permanent daily-wager" in service jurisprudence.
What the term "permanent daily-wager" means can
only be explained by the second respondent. Mr.Niraj
Ashar, learned Assistant Government Pleader, has
remained unsuccessful in satisfying this query of the
Court. In the order dated 28.03.2008, whereby the
services of the petitioner's father were made
permanent, respondent No.2 has used the word
C/SCA/14390/2022 JUDGMENT DATED: 17/10/2022
"permanent" and not "permanent daily-wager". The
term "permanent daily-wager", therefore, appears to
have been coined by respondent No.2, presumably with
a view to taking the case of the petitioner out of the
scope and ambit of the Government Resolution dated
05.07.2011.
9. The nomenclature of "permanent daily-wage employee"
came up for discussion before the Division Bench of this
Court in the case of State of Gujarat & Anr V.
Mahendrakumar Bhagvandas & Anr., reported in 2011(2)
GLR 1290. This is what the Division Bench held:
"5. ...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 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."
10. The contention in the affidavit-in-reply that the father of
the petitioner was a "permanent daily-wager" and, therefore,
could not be given the benefit of the Government Resolution
dated 05.07.2011 is, therefore, contrary to the principles of
law laid down by the Division Bench in the above judgment
and also to their own order dated 28.03.2008 by which the
petitioner's father was made permanent.
11. A submission has been advanced by Mr.Niraj Ashar,
learned Assistant Government Pleader, that the services of
the petitioner's father were regularised under the Industrial
C/SCA/14390/2022 JUDGMENT DATED: 17/10/2022
Disputes Act and not under the Gujarat Civil Services Rules,
therefore, he cannot be said to be a permanent employee.
Another submission advanced is that as the petitioner's
father was not appointed under the Gujarat Civil Services
Rules, he cannot get benefit of the Government Resolution
dated 05.07.2011. Both these submissions deserve outright
rejection. It is a matter of record that the petitioner's father
was initially appointed as a daily-wager with effect from
01.01.1981 and his services came to be made permanent
with effect from 01.01.1986, by the order dated 28.03.2008.
It is the permanent nature of the appointment of the
petitioner's father at the time of his death that is to be
considered for the benefit under the Government Resolution
dated 05.07.2011 and not whether he was initially appointed
as a dailywager. The submission that the petitioner's father
was appointed under the Industrial Disputes Act, is factually
and legally incorrect. Having been engaged as a daily-wager
in the year 1981 and thereafter, being accorded permanent
status with effect from 01.01.1986, there is no question of
appointment under the Gujarat Civil Services Rules. The
contention raised by learned Assistant Government Pleader is
totally irrelevant and out of context."
6.1 The same was confirmed by the Division Bench of this
Court in Letters Patent Appeal No. 1234 of 2017. Para 8 of
the Division Bench judgment reads as under:
"8. In this case, it is not in dispute that late father of
the respondent herein was initially appointed as a daily
wager and thereafter, his services were regularized
vide order dated 28.03.2008. A copy of such order is
also placed on record. As per the terms of the said
order, it is made clear that late father of the
respondent herein would be entitled to the benefits of
regular employees including retiral benefits, seniority,
etc. There is also specific observation that in the event
of a proposal for resignation, notice of resignation also
should be issued before tendering the resignation.
Further, we have also perused the Government
Resolution dated 5.7.2011. While it is true that para 3
clause 2 of the Government Resolution dated 5.7.2011
states that such scheme of paying compensation
amount is applicable to the employees, who are
regularly recruited persons, but there is a specific
clause which excludes applicability of the scheme to
the category of persons namely, daily wager, casual
worker, apprentice, adhoc, contract or reemployment.
If both the clauses are conjointly read, it is clear that
this scheme is to be extended to all the persons, who
C/SCA/14390/2022 JUDGMENT DATED: 17/10/2022
are on regular services on the date of death of the
deceased employee. As the scheme itself is a beneficial
scheme for the employees, who die in harness, the
respondent herein cannot be denied the same on the
ground that late father of the respondent was initially
recruited as a daily wager. While it is also true that
initially late father of the respondent was appointed as
a daily wager in the year 1981, after considering his
length of services, his services were regularized with
effect from 1.1.1986, extending all the benefits payable
to regular employees vide order dated 28.3.2008
passed by the appellant No.2 herein. If the conditions
of regularisation order given while appointing the late
father of the respondent herein are considered, with
reference to various clauses under the scheme of the
Government Resolution dated 5.7.2011, we are of the
view that the respondent herein is entitled for all the
benefits. Moreover, the Division Bench of this Court in
the judgment in the case of State of Gujarat & Anr. V.
Mahendrakumar Bhagvandas & Anr., reported in
2011(2) GLR 1290 has held in paragraph No.5 as
under:
"5. ...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
subsequent G.R. dated 18.7.1994 and that they
were at best "permanent daily wage employees",
C/SCA/14390/2022 JUDGMENT DATED: 17/10/2022
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."
6.2 The decision of this Court rendered by a Co-
ordinate Bench (Coram : Hon'ble Mr.Justice
N.V.Anjaria,J.) in Special Civil Application No. 14126 of
2017 and the relevant paras which considered the
decision of the Division Bench in Letters Patent Appeal
No. 1951 of 2017 read as under:
"5.2 In Manjuben wd/o.Deceased Merambhai
Kalabhai Sondarava (supra), the similar question
arose. The controversy with regard to
interpretation of the clauses of Resolution dated
05th July, 2011 which provided for compensation
instead of compassionate appointment. Clause 2
of the Resolution signified that the benefit under
the scheme would be available to the regular
employees and that the heirs of the daily-wagers
were barred from the benefit of Resolution dated
05th July, 2011. In that case, however, the
employee was granted benefit of Resolution dated
17th October, 1988 and was made permanent.
5.3 The Division Bench observed thus,
"7. However, in present case, the undisputed fact
remains that the deceased employee was initially
appointed as Rojamdar Driver, thereafter, he was
granted the benefit of Resolution dated
17.10.1988 and was also made permanent. We
had called for the service book for ascertaining
the true status of the deceased employee. We
have examined the service book of the concerned
employee. A perusal of the service book reveals
that the employee was appointed as a Rojamdar
Driver on 20.06.1987. The Initial notings made in
the service book , indicates that, after completion
of 5 years of service, the deceased employee was
granted the benefit of Resolution dated
17.10.1988 and he was also appointed as Work
Charge employee having pay of Rs.950/per
month. The said benefit was granted to the
deceased employee from 01.01.1995. On
13.01.1999, he was placed under Work Charge
establishment. After considering his continuity of
service from 20.06.1987 to 01.04.2006, the
deceased employee was placed in a regular pay
C/SCA/14390/2022 JUDGMENT DATED: 17/10/2022
scale of Rs.3050 - 4590/- by an order dated
13.12.2007, and accordingly increments were
also fixed and paid. Thereafter, the deceased
employee was also granted regular revisions of
pay. The noting dated 05.09.2012 indicates that
from 01.01.2006, his post has been mentioned as
a "Driver" and his pay was fixed at Rs.6510/- with
effect from 01.07.2006, his grade pay was
increased at Rs.1900/- and his revised pay band
as on 01.07.2006 was of Rs.5200 - 20,200/-. He
expired while in service on 02.02.2013."
5.4 It was thereafter held by the Division Bench that
the distinction as sought to be made out was not
tenable in law. While learned advocate for the
respondent Board tried to harp that even if the benefit
of Resolution dated 05th July, 2011 could be extended,
the Division Bench held it to be extendable since
employee was on the workcharge. This contention find
emphatic answer from the following observations of the
Division Bench in Manjuben wd/o. Deceased
Merambhai Kalabhai Sondarava (supra),
"12. In the opinion of this Court, no such
distinguishing feature has been incorporated in
the Resolution dated 05.07.2011. The same only
refers to the employees of Class III and IV
working under the State Government. Clause 2
specifically confers benefit of compensation to
the heirs of deceased workman of Class III and
IV, who were working on the Work Charge
establishment. Though, such benefit has been
specifically denied to heirs of the Daily Wagers,
casual workers, apprentice, ad hoc and
employees working on contractual basis, the
same cannot be applied to the daily wagers or
employees, who have been subsequently
regularized and are made permanent and have
also been conferred the benefits of regular
revision of pay under the statutory pay rules.
Thus, such employees, who are working on Work
Charge establishment, cannot be compared with
the Daily wager or casual etc. Once the State
Government grants the benefits of Resolution
dated 17.10.1988 and as per the settled
proposition of law, such Daily Wagers, after
completion of certain number of years, are made
permanent and regular and their pay, retirement
C/SCA/14390/2022 JUDGMENT DATED: 17/10/2022
benefits, etc are also paid as a regular employee,
their status of being "permanent and regular"
employees cannot be reverted to a "daily wager"
after they expire resulting in the denial of the
benefit of compensation to their legal heirs. In
the considered opinion of this Court, once they
have acquired status of regular employees
working in Work Charge establishment, their
heirs cannot be barred from the ambit of
Resolution dated 05.07.2011 envisaging
compensation, as provided therein."
5.5 The position of law emerges from the aforesaid
decision is that even where the employee is granted
benefit of Resolution dated 17th October, 1988 and
therein he is made permanent and the permanency
status is accorded to him by extending various benefits,
the employee will become full-fledged permanent
employee for the purpose of receiving all the benefits
which a permanently employed employee may receive.
Once the permanent status is accorded to the
dailywager employee in the scheme of Resolution dated
17th October, 1988, he cannot be discriminated against
by denying certain benefits which are otherwise
available to the permanent employee on the ground of
permanency acquired by the employee was not by way
of regular appointment, but under the scheme of the
said Resolution. The permanency benefits which stand
vested in the employee in the Resolution dated 17th
October, 1988 shall be deemed to pervade for all the
benefits available to the permanent or regular
employee. It cannot be that for certain benefits father
of the petitioner is to be treated as temporary or
dailywager and for certain benefits, he would be
treated as regular employee."
6.3 In Special Civil Application No. 14126 of 2017, the author
of the judgement (Hon'ble Mr.Justice N.V.Anjaria, J.) took the
view pursuant to the decision in the case of State of Gujarat
& Anr vs. Mahendrakumar Bhagvandas (supra) and that of
the Division Bench rendered in Letters Patent Appeal No.
1951 of 2017 in the case of Manjuben (supra). Therefore, the
reliance placed by Shri Meet Thakkar, learned AGP for the
State, on a decision of Special Civil Application No. 14834 of
2010 (Coram : Hon'ble Mr.Justice R.M.Chhaya, J.) and that in
Special Civil Application No. 12270 of 2013 (Coram: Hon'ble
Mr.N.V.Anjaria, J.) dated 30.08.2016, cannot be said to be
binding, inasmuch as, both these decisions were rendered
without considering the decision in the case of
C/SCA/14390/2022 JUDGMENT DATED: 17/10/2022
Mahendrakumar Bhagvandas (supra). Moreover, in the case
of S.C.A No.14834 of 2010 Suresh Maganbhai Chavda
(supra), there is nothing on record to show that the deceased
employee was granted the benefit of the Resolution dated
17.10.1988.
6.4 As far as the decision of the Hon'ble Supreme Court in
the case of State of Madhya Pradesh & Ors., vs. Amit Shrivas,
reported in (2020) 10 SCC 496, is concerned two glaring
distinct facts stare at the face of the Court and make it
completely distinguishable from the facts on hand and the
policy. Before the Hon'ble Supreme Court, Amit Shrivaas,
claimed entitlement to compassionate appointment on
account of demise of his father Shri Ranglal Shrivas. The
nature of employment of his late father was that of
Workcharge Employee, though he was made permanent and
was even given promotion from time to time and also pension
was paid to him, the request for compassionate appointment
was rejected by the State relying on the policy dated
18.08.2008. The Policy provided that when a government
servant dies while in service, if such an employee is earning
salary from the workcharge contingency fund at the time of
his / her demise, then there was no provision for grant of
appointment. Clause 12.1 of the Policy provided for
compassionate grant of Rs.1 lakh to the nominated
dependant of such an employee, which was sanctioned to the
wife of the deceased.
7 Therefore, on facts, firstly what the request of the
respondent before the Hon'ble Supreme Court was to
grant him compassionate appointment despite there
being a clear clause providing for compassionate grant
of Rs.1 lakh. In the facts of the present case, the Policy
of 05.07.2011 clearly denies even the lump-sum
compensation which is under challenge before this
Court. Admittedly, in the case before the Hon'ble
Supreme Court, the employee's successor was granted
that compensation, however, he claimed appointment
on compassionate grounds. The Court, drew distinction
between the workcharge employee and permanent
employee and considering the case on hand opined as
under:
"17 In our view, the aforesaid plea misses the point of
distinction between a workcharge employee, a
permanent employee and a regular employee. The late
father of the respondent was undoubtedly a
C/SCA/14390/2022 JUDGMENT DATED: 17/10/2022
workcharged employee and it is nobody's case that he
has not been paid out of work-charged / contingency
fund. He attained the status of a permanent employee
on account of having completed 15 years of service,
which entitled him to certain benefits including pension
and krammonati. This will, however, not ipso facto give
him the status of a regular employee.
18 In the aforesaid behalf, an analogy can be drawn with the
Madhya Pradesh Industrial Employment (Standing Orders)
Rules, 1963, under which employees can be classified as
permanent, permanent seasonal, probationers, badlis,
apprentices, temporary and fixed term employment
employees. A work-charged contingency employee can also
be classified under any of the aforementioned categories and
under the said Standing Orders, the classification as
permanent can be granted even on the completion of 6
months' service in a clear vacancy."
7.1 In para 20 of the decision, the conclusion of the Hon'ble
Supreme Court was that on attaining the status of a
permanent employee, the employee was then entitled to a
minimum of the pay-scale without any increments. That is not
the case on hand. If the Policy of the Resolution dated
17.10.1988 is perused in light of the decision in the case of
Mahendrakumar Bhagvandas (supra), it is very clear that
what is granted is not the minimum of the pay-scale but the
pay-scale itself that of Rs.750-940/-, and therefore, as opined
by the Court in the case of Mahendrakumar (supra), there
can be no distinction between permanent daily wager and a
daily wager. Even on this count, the judgement of the
Hon'ble Supreme Court on facts is clearly distinguishable.
8 Accordingly, based on the submissions made by the learned
counsels for the respective parties, both these petitions are
allowed. The petitioners are entitled to be extended the
benefits of the Government Resolution dated 05.07.2011 and
07.04.2016 and the respondents are directed to consider the
case of the petitioners for grant of lump-sum compensation
on the basis of the pro rata services rendered by the
deceased employees whom the petitioners represent under
the Government Resolution dated 05.07.2011 and
07.04.2016. The benefits shall be extended to the petitioners
within a period of two months from the date of receipt of a
copy of this judgement. Rule is made absolute to the above
extent with no orders as to costs."
5. Accordingly, the petition is allowed. Communication dated
C/SCA/14390/2022 JUDGMENT DATED: 17/10/2022
23.05.2021 is quashed and set aside. The petitioner is held entitled
to be extended the benefits of the Government Resolutions dated
05.07.2011 as well as 07.04.2016. The respondents are further
directed to consider the case of the petitioner for grant of lump-
sum compensation on the basis of the pro-rata services rendered
by the deceased employees whom the petitioners represent under
the Government Resolutions dated 05.07.2011 and 07.04.2016. The
benefits shall be extended to the petitioners within a period of two
months from the date of receipt of a copy of this judgement. Rule is
made absolute to the above extent with no orders as to costs."
5.1 In view of the above, the petitioners of Special Civil
Application No. 3381 of 2022 shall be extended the
benefits of the Government Resolutions dated 05.07.2011
and 07.04.2016 on the basis of the services rendered by
the deceased employees whom the petitioners represent
within a period of ten weeks from the date of receipt of
the writ of the order of this court.
6. Since in all these petitions the additional claim is for
payment of higher pay-scales, Ms. Vidhi Bhatt, learned
advocate for the petitioners has relied on the decision of
this court in the case of State of Gujarat & Anr., vs.
Mahendrakumar Bhagwandas & Anr., reported in
2011 (2) GLR 1290, wherein this court has held as
under:
"8. This Court has considered the submissions made by both the
sides. The basic dispute pertains to the status of the petitioners.
Respondents have denied the benefit of grade pay of Rs.2400/- to
the petitioners on the ground that they are daily rated employees
and are not regular employees or permanent employees. This
controversy seems to have been put to rest in the judgment relied
upon by counsel for the petitioners in the case of State of Gujarat
& Another V/s. Mahendrakumar Bhagvandas and Another reported
in 2011 (2) GLR 1290. Relevant Para No.5 of the judgment is
reproduced as under:
"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
C/SCA/14390/2022 JUDGMENT DATED: 17/10/2022
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 rebranded 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
rebranded 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".
9. Learned AGP has opposed the grant of grade pay of Rs.2400/-
to the petitioners on the ground that petitioners are continuing as
daily wage employees and as such, are entitled to limited benefits.
10. There is no force in the contentions raised by the learned
counsel for the respondents. It could be seen that some of the
petitioners have put-in about 31 years of service. Once the
petitioners are covered as per Government Resolution dated
17.10.1988 and are held entitled to other benefits, the benefit of
grade pay of Rs.2400/- cannot be denied to the petitioners and the
petitioners cannot be differentiated by awarding them grade pay of
Rs.1900/-."
6.1 The appeal filed before the Apex Court against the
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above order was dismissed and the aforesaid order was
confirmed on 09.11.2012. In a contempt petition that
arose out of the decision rendered by this court in the
case of Mahendrakumar Bhagwandas & Anr. (supra),
being Misc. Civil Application No. 1815 of 2013, a
statement was made by the representative of the
government that all the benefits inclusive of higher pay-
scale shall be calculated and paid to the petitioners. Para
3 reads as under:
"3. Thereafter, on 24.6.2014, it was reported that all
employees have been paid the amount, except six persons'
cases were to be further examined by the Treasury and the
amounts were to be released. Hence, the matter was kept on
25.6.2014. Yesterday, it was reported that those cases of six
persons were also finalized on 24.6.2014 only and the
amounts were paid. Shri Rajkumar, Principal Secretary,
Agricultural Department had remained personally present on
25.6.2014, but yesterday because of the Court time was over,
the matter could not be taken up.
4. Today, when the matter is taken up, Mr.Jayswal, learned
AGP states that even in respect of the employees, who had
already retired, their pension will have to be re-fixed and
accordingly, the difference will have to be calculated for
monetary benefits also and such process may take some time.
He states, under the instructions of Mr.Mahesh Dave, Dy.
Director, Animal Husbandry that such process shall be
completed and actual payment shall be made within a period
of three months from today.
5. Hence, we direct the respondents to abide by the
declarations made before this Court."
7. Ms. Vidhi Bhatt, learned advocate for the petitioner
would submit that the petitioners are entitled to the
benefit of higher pay-scale which has infact been granted
to the employees of the agricultural department in light
of the circular dated 06.01.2014 which expressly stated
that not only will such daily wagers be entitled to the
benefits of the resolution dated 17.10.1988 but also such
other benefits as a regularly employed class-IV employees
shall be paid to them.
C/SCA/14390/2022 JUDGMENT DATED: 17/10/2022
8. In light of these observations referred to
hereinabove, the case of the petitioners in all these
petitions shall be considered for extending them the
benefits of higher pay-scale in accordance with law
within a period of ten weeks from the date of receipt of
the writ of the order of this court.
9. All the petitions are accordingly allowed. Rule is
made absolute accordingly. Direct service is permitted."
4 Ms.Vidhi Bhatt, learned counsel for the petitioner,
would submit that the petitioner is entitled to the benefit
of higher pay-scale which has infact been granted to the
employees of the agricultural department in light of the
circular dated 06.01.2014 which expressly stated that not
only will such daily wagers be entitled to the benefits of
the resolution dated 17.10.1988 but also such other
benefits as a regularly employed class-IV employees shall
be paid to them.
5 In light of these observations referred to
hereinabove, the case of the petitioner shall be
considered for extending him the benefits of higher pay-
scale in accordance with law within a period of ten weeks
from the date of receipt of the writ of the order of this
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court.
6 As far as the five ancillary benefits are concerned,
the petition is allowed in terms of the order passed by
this Court in Special Civil Application No. 5530 of 2003.
The pensionary benefits shall be revised and arrears of
pension shall be paid within a period of ten weeks from
the date of receipt of the writ of the order of this Court.
The petitioners' case for payment of the benefits of the 7 th
Pay Commission be considered in light of the Government
Resolution dated 17.03.2022.The petition is allowed,
accordingly. Rule is made absolute to the above extent.
Direct service is permitted.
(BIREN VAISHNAV, J)
BIMAL
