Gujarat High Court
Dipakray Jayantilal Vaishnav vs State Of Gujarat on 22 September, 2022
Bench: A.S. Supehia
C/SCA/18234/2021 ORDER DATED: 22/09/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 18234 of 2021
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DIPAKRAY JAYANTILAL VAISHNAV
Versus
STATE OF GUJARAT
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Appearance:
MS ASHLESHA M PATEL(6127) for the Petitioner(s) No. 1
MR HS MUNSHAW(495) for the Respondent(s) No. 2
MS ASMITA PATEL, AGP for the Respondent No.1
NOTICE SERVED for the Respondent(s) No. 1,3
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CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
Date : 22/09/2022
ORAL ORDER
1. Rule. Learned AGP waives service of notice of rule for the
respondent no.1.
2. The present writ petition has been filed seeking the following
reliefs:-
"19. A. Your Lordships be pleased to issue an order, writ in the
nature of mandamus and/or certiorari or any other appropriate
writ/order or direction declaring the impugned action of respondents
in not granting the benefits (i) Transport allowance; (ii) Travelling
Allowance; (iii) Transfer Travelling Allowance; (iv) Leave
Encashment and (v) Leave Travel concession and not granting the
benefit of merger of 50% of Dearness Allowance in basic salary
from 01.01.2004 and not granting benefits of 6th Pay Commission
from 01.01.2006 and also not granting the benefits of 7 th Pay
Commission from 01.01.2016 to the present petition as such benefits
have been extended to the similarly situated employees which is
discriminatory, illegal, unjust, arbitrary and violation of Article-14 &
16 of Constitution of India.
B. Your Lordship be pleased to direct Respondents to extend the
benefits of (i) Transport allowance; (ii) Travelling Allowance; (iii)
Transfer Travelling Allowance; (iv) Leave Encashment and (v)
Leave Travel concession as such benefits have been granted to
similar situtated employees who are appointed after 1994 pursuant to
order dated 14.11.2014 of Hon'ble Apex Court.
C. Your Lordship be pleased to direct respondents to extend the
benefits of merger of 50% of Dearness Allowance in the basic salary
C/SCA/18234/2021 ORDER DATED: 22/09/2022
from 01.04.2004 as per G.R. dated 08.10.2007."
3. At the outset, the learned advocates appearing for the respective
parties have submitted that the dispute only remains with regard to grant
of benefit of 7th Pay Commission from 01.01.2016 and the five benefits as
mentioned in prayer clause B i.e. (i) Transport allowance; (ii) Travelling
Allowance; (iii) Transfer Travelling Allowance; (iv) Leave Encashment;
and (v) Leave Travel concession.
4. At the outset, learned advocate Ms.Patel has submitted that by the
order dated 11.03.2022 passed by this Court in Special Civil Application
No.13538 of 2020 and allied matters, the Court has already issued
directions to the very same Board i.e. Gujarat Water Supply and
Sewerage Board for paying the benefit of 7th Pay Commission w.e.f.
01.01.2016. With regard to five benefits are concerned, she has submitted
that the issue is squarely covered by catena of decision, including the
judgment of the Division Bench passed in Civil Application No.3910 of
2019 and allied matters dated 27.08.2021, wherein the present Board was
also a party respondent. She has submitted that the aforesaid judgment
and order of the Division Bench has been assailed by the State in SLP (c)
No.7229 of 2022 and by the order dated 01.09.2022, the SLPs are
dismissed and hence, the petitioner is entitled to the aforesaid benefits.
5. Learned advocate Mr.Munshaw is unable to controvert the
aforesaid orders passed by the Division Bench, and Coordinate Bench as
well as of the Supreme Court.
6. By the order dated 11.03.2022, the Coordinate Bench of this Court
passed in Special Civil Application No.13538 of 2020 and allied matters
C/SCA/18234/2021 ORDER DATED: 22/09/2022
has observed thus:-
"8. Needless to say that in view the benefits of 7th Pay
Commission together with arrears have been extended to the
category of Daily Wagers pre 17.10.1988 and those to the
category post 30.11.1994, the apprehension of the petitioners
that the present category of 17.10.1988 to 30.11.1994 category,
on the same terms will not be extended by virtue of condition
No.3 of 7.1.2022 Resolution appears to be misconceived.
9. Mr. Munshaw, learned counsel appearing for the Board states
that the Resolution has been passed on 7.1.2022 of which the
learned counsel for the petitioner apprehends will be treated to
single out the petitioners in not extending similar benefits, as
was granted to pre 17.10.1988 and to post 30.11.1994 Daily
Wagers.
10. The State is directed to see that similar benefits namely; the
arrears of 7th pay commission with effect from 1.1.2016 are
extended to the category of 17.10.1988 to 30.11.1994 Daily
Wagers of the Board, as was granted to the post 1994 and pre
1988 beneficiaries."
7. It is not disputed that the aforesaid order is also implemented by
the State Authorities. Thus, the respondents are directed to confer the
benefits of 7th Pay Commission to the petitioner from 01.01.2016. So far
as the prayer with regard to five benefits is concerned, the Supreme Court
by the order dated 01.09.2020 has dismissed all the SLPs challenging the
judgment of the Division Bench dated 27.08.2021 passed in Civil
Application No.3910 of 2019 and allied matters. The Supreme Court has
observed thus:-
"Delay condoned.
In view of the Resolution No. W.C.E.-1588-(5)/(2)/G.2
dated 17-10-1988, the respondent employees are entitled to
retirement benefits, gratuity, provident fund etc. In addition, they
are entitled to two yearly optional leaves in total of 14 casual
leaves, 38 days of earned leave and 26 days half pay leaves, as
well as holiday on Sunday and during the national
holidays/occasions.
C/SCA/18234/2021 ORDER DATED: 22/09/2022
In view of the aforesaid position, we do not find any good
ground and reason to interfere with the directions given by the
High Court to pay leave encashments on the retirement of the
employees, as the same would pertain to encashment of the
unused earned leaves. The payment is also in the nature of
retirement benefits.
However, it is clarified that the aforesaid directions would
not be treated as granting the respondents a status of permanent
or regular employees.
Recording the aforesaid, the special leave petitions are
dismissed.
Pending application(s), if any, stand disposed of."
Thus, the issue with regard to confirmation of five benefits is also
no more res integra and is squarely covered by the judgment of the
Division Bench, as confirmed by the Supreme Court.
8. Under the circumstances, the respondents are directed to confer the
benefits, as mentioned in prayer clause 19(B) and the benefits of 7 th Pay
Commission along with five benefits from 01.01.2016 within a period of
two months from the date of receipt of this order. Rule is made absolute.
Direct service is permitted.
(A. S. SUPEHIA, J)
ABHISHEK
