Gitaben Kiritkumar Joshi Widow ... vs State Of Gujarat
2022 Latest Caselaw 9257 Guj

    C/SCA/12832/2022                             JUDGMENT DATED: 19/10/2022




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 12832 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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GITABEN KIRITKUMAR JOSHI WIDOW AND LHS OF DCED. KIRITKUMAR
                   PARSHOTAMBHAI JOSHI
                           Versus
                     STATE OF GUJARAT
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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. 2
NOTICE SERVED BY DS for the Respondent(s) No. 1
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    CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV

                             Date : 19/10/2022

                            ORAL JUDGMENT

1. RULE returnable forthwith. Mr.Utkarsh Sharma

learned AGP waives service of notice of Rule on

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behalf of the respondent State and

Mr.H.S.Munshaw learned advocate waives

service of notice of Rule on behalf of the

respondent No.2.

2. With the consent of learned advocates for the

respective parties, the petition is taken up for

final hearing.

3. By way of this petition under Article 226 of the

Constitution of India, the prayer made in the

petition is for releasing the amount of leave

encashment of 300 days leaves in balance in

account of petitioner's husband on his death, to

which he was entitled to while he was in service.

4. The second prayer is for a direction to consider

the case of the petitioner for lump-sum

compensation in lieu of compassionate

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appointment in light of the circular dated

05.07.2011.

5. As far as the prayer regarding 300 days' leave

encashment is concerned, Mr.Rajesh Mankad

learned advocate relies on the order dated

01.09.2022 passed in Special Leave Petition

No.7299 of 2022, the amount of leave

encashment due to the petitioner's husband be

directed to be paid within 15 weeks from the

date of receipt of copy of this order.

6. As far as entitlement of compensation in lieu of

compassionate appointment is concerned, in

light of the decision in case of Divyarajsinh

Dilubha Vala v. State of Gujarat rendered in

Special Civil Application No.5195 of 2020 dated

27.02.2020, wherein, this Court has considered

the decision rendered in several other cases.

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The relevant paragraphs of the said decision

read as under:

"7. This Court in a decision rendered in Special Civil Application No.1795/2013 dated 7.10.2016 has held that there cannot be any distinction between a Daily Wager and a Casual Worker. Learned counsel relied upon a decision of State of Gujarat & Anr Vs. Mahendrakumar Bhagvandas @ Anr., reported in 2011(2) G.L.R. page 1290 and submitted that distinction as made out in the impugned order in the present petition is misconceived.

8. Such order dated 7.10.2016 passed in Special Civil Application No.1795 of 2013 was confirmed in Letters Patent Appeal No.1234 of 2017 dated 4.8.2017. For the sake of convenience, such order dated 4.8.2017 is reproduced hereunder:

"1. This Letters Patent Appeal is filed under Clause 15 of the Letters Patent by the present respondent original petitioner in Special Civil Application No.1795 of 2013, aggrieved by the order dated 07.10.2016 passed by the learned Single Judge.

2. Special Civil Application was filed by the present respondent original petitioner with the prayers, which read as under:

"(A) This Honourable Court may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or

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direction to quash and set aside the order dated 26.06.2012 passed by the Respondents(Annexure:A). Also be pleased to direct the respondents to give the benefit of the government resolution dtd.05/07/2011(Annexure:E) by holding that deceased was regular employee.

(B) Pending Hearing and final disposal of this petition, this Hon'ble court may be pleased to stay the order dated 26/06/2012 passed by the Respondents and direct the respondents to deposit the compensation before this Hon'ble court.

(C) Be pleased to pass such other and further relief that is just, fit and expedient in the facts and circumstances of the case;"

3. The learned Single Judge vide order dated 07.10.2016 allowed the petition by quashing the order dated 26.06.2012 passed by the appellant No.2, Executive Engineer, City (R&B) Division, Rajkot and issued directions to the appellants herein to consider the case of the respondent herein for grant of lumpsum compensation as per the Government Resolution dated 5.7.2011, in accordance with law, within a period of two months form the date of receipt of copy of the judgment.

4. Necessary facts, in nutshell, for the purpose of this appeal are as under:

4.1 Father of the respondent herein was

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working with the appellant No.1 department at Rajkot ever since 1981, as a daily wager. By an order dated 20.3.2008, passed by the appellant No.2, father of the respondent herein was made permanent with effect from 1.1.1986. Unfortunately, he died in harness on 11.7.2011. There is a policy in the State Government which is ordered by way of Government Resolution dated 5.7.2011 for payment of compensation to the family of the deceased government employees, who die in harness.

4.2 The present respondent original petitioner made an application in the month of September, 2011, for grant of lumpsum compensation. He has claimed that he is the only son and dependent on his father, as such, he is entitled for compensation as per the Government Resolution dated 5.7.2011. The claim of the present respondent original petitioner was rejected by the appellant No.2 vide order dated 26.6.2012 on the sole ground that the respondent is not entitled for lumpsum compensation as per Government Resolution dated 5.7.2011 as his father was a daily wager and the scheme is not applicable to daily wagers. Thereafter also, several representations were made by the original petitioner. However, ultimately, when such representations were not considered, he approached this Court.

4.3 In the Special Civil Application preferred before the learned Single Judge, the appellants have filed reply affidavit. Mainly the claim of the original petitioner was opposed on the ground that as per

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clause 2 of Government Resolution dated 5.7.2011, the present respondent is not entitled for lumpsum compensation. It is the case of the appellants that the respondent is not regularly recruited person by following the procedure and, as such, he is not entitled for compensation as per Government Resolution dated 5.7.2011. The learned Single Judge, mainly relying on the judgment of the Division Bench of this Court in the case of State of Gujarat & Anr Vs. Mahendrakumar Bhagvandas @ Anr., reported in 2011(2) G.L.R. page 1290, has allowed the petition by giving directions to consider the claim of respondent by setting aside the order dated 26.06.2012 passed by the appellant No.2 herein.

5. Even in this appeal, it is contended by learned Assistant Government Pleader appearing for the appellants that daily wage employees, whose services are regularized, cannot be equated to the employees, who are regularly appointed. It is submitted that as much as deceased father of the present respondent was not regularly appointed by following the procedure prescribed for recruitment, he is not entitled for compensation as per Government Resolution dated 5.7.2011. Learned counsel has also placed reliance on the judgment of the learned Single Judge of this Court in support of his case in the case of Govindbhai Madhabhai Vaghela Vs. Director, Pension and Provident Fund & Anr., reported in 2004(1) G.L.H. Page 129.

6. On the other hand, it is submitted by the

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learned counsel appearing for the respondent that with regard to regularization, the matter went upto the Hon'ble Supreme Court and thereafter, orders were passed for regularizing the services of the late father of the respondent herein and once he is appointed and regularized in service, there cannot be any discrimination between the employees, who are regularly appointed and who are initially appointed on daily wages and later regularized. It is further submitted that as the learned Single Judge has placed reliance on the judgment of the Division Bench of this Court in the case of State of Gujarat and Anr. Vs. Mahendrakumar Bhagvandas & Anr. reported in 2011(2) G.L.R. Page 1290, there is no error committed by the learned Single Judge warranting interference in this appeal filed under clause 15 of the Letters Patent.

7. Having heard the learned counsel appearing for the parties, we have perused the material on record and the order passed by the learned Single Judge. 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

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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 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

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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 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

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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 Assistant Government Pleader has placed reliance on the judgment of the learned Single Judge of this Court in the case of Govindbhai Madhabhai Vaghela Vs. Director, Pension and Provident Fund & Anr. reported in 2004(1) G.L.H. page 129, where the learned Single Judge has held that a daily wager cannot be said to be holding the post in the State Government and in view of the statutory rules, service rendered as daily wage employee cannot be treated as pensionable service nor can such service be counted for computation of pension. Having regard to the facts, we are of the view that said judgment relied on by the learned Assistant Government Pleader would not have any assistance in support of his case.

10. For the aforesaid reasons, we do not find any reason to interfere with the findings recorded by the learned Single Judge in this appeal. The appeal being devoid of any merits is dismissed with no order as to costs. Consequently, Civil Application stands disposed of."

9. Under the circumstances, the impugned communication dated 16.12.2019 by the respondent No.2 is hereby quashed and set aside. Thereby, the respondents are

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directed to consider the case of the petitioner in accordance with the Scheme by virtue of the Government Resolution dated 5.7.2011 on the basis of his being eligible as if the communication dated 16.12.2019 is non-existent preferably within a period of Six Weeks from the date of receipt of writ of this order.

10. With the aforesaid directions and observations, the petition stands disposed of with no order as to costs. Rule is made absolute to the aforesaid extent. Direct Service is permitted."

7. The case of the petitioner be considered in light

of the aforesaid decision for compensation in lieu

of compassionate appointment within 10 weeks

from the date of receipt of copy of this order.

8. The petition is allowed accordingly. Rule is made

absolute accordingly. Direct service is

permitted.

(BIREN VAISHNAV, J) ANKIT SHAH