Gujarat High Court

Ashok Sava Koli Through Lhs ... vs State Of Gujarat on 7 September, 2022

Bench: Biren Vaishnav

     C/SCA/7957/2022                                  JUDGMENT DATED: 07/09/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 7957 of 2022


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE BIREN VAISHNAV

==========================================================

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 ?

==========================================================
        ASHOK SAVA KOLI THROUGH LHS ZAVERBEN ASHOK KOLI
                              Versus
                        STATE OF GUJARAT
==========================================================
Appearance:
MR. MUKESH T MISHRA(5900) for the Petitioner(s) No. 1
 for the Respondent(s) No. 1
MS. NIYATI CHAUHAN, ADVOCATE FOR MR RITURAJ M MEENA(3224) for
the Respondent(s) No. 2,3
MR. UTKARSH SHARMA, AGP, for the Respondent(s) No. 1
==========================================================

    CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV

                                Date : 07/09/2022

                            ORAL JUDGMENT

1 Rule returnable forthwith. Mr.Utkarsh Sharma,

learned Assistant Government Pleader waives service of

C/SCA/7957/2022 JUDGMENT DATED: 07/09/2022

notice of rule on behalf of the respondent - State.

2 In this petition under Article 226 of the Constitution

of India, the petitioner has prayed for the following

reliefs:

"11(A) That Your Lordships be pleased to issue an order, direction and/or writ in the nature of mandamus and/or any other appropriate writ, order or direction, directing the respondents to immediately extend the benefit of G.R. dated 5-7- 2011, 7-4-2016 and 27-7-2020;

(B) That Your Lordships be pleased to issue an order, direction and / or writ in the nature of mandamus and /or any other appropriate writ, order or direction, directing the respondents to extend the benefit of 300 days Leave Encashment which is already extended to other similarly situated employees as per order of this Hon'ble Court."

3 Ms.Niyati Chauhan, learned advocate appearing for

Mr.Rituraj Meena, learned advocate for the respondent,

would rely on an affidavit-in-reply filed and submit that in

light of the Government Resolution dated 05.07.2011,

which is not applicable to the case of daily wagers, the

petitioner is not entitled to the relief of compensation in

lieu of compassionate appointment.

C/SCA/7957/2022 JUDGMENT DATED: 07/09/2022

4 Mr.M.T.Mishra, learned counsel for the petitioner,

relies on a decision passed by this Court in Special Civil

Application No. 15577 of 2021 dated 05.04.2022, relevant

paras of which read as under:

" 2 This petition has been filed by the deponents 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 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

C/SCA/7957/2022 JUDGMENT DATED: 07/09/2022

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 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."

C/SCA/7957/2022 JUDGMENT DATED: 07/09/2022

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 daily- wager 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 daily-wager 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

C/SCA/7957/2022 JUDGMENT DATED: 07/09/2022

be binding, inasmuch as, both these decisions were rendered without considering the decision in the case of 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

C/SCA/7957/2022 JUDGMENT DATED: 07/09/2022

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 work- charged 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

C/SCA/7957/2022 JUDGMENT DATED: 07/09/2022

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 In view of the aforesaid decision, the petition is

allowed. The petitioner is entitled to be extended the

benefits of the Resolution dated 05.07.2011 and

07.04.2016.

The respondents are directed to consider the case of

the petitioners for grant of lumpsum compensation on the

basis of the pro rata services rendered by the deceased

employee under the Government Resolution dated

C/SCA/7957/2022 JUDGMENT DATED: 07/09/2022

05.07.2011 and 07.04.2016.

The benefits shall be extended to the petitioner

within a period of three months from the date of receipt