Gujarat High Court

Jashbhai Fatesinh Solanki vs State Of Gujarat on 24 April, 2023

Bench: Mauna M. Bhatt

     C/SCA/22246/2022                                JUDGMENT DATED: 24/04/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 22246 of 2022


FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE MAUNA M. BHATT                         sd/-

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1     Whether Reporters of Local Papers may be allowed                     No
      to see the judgment ?

2     To be referred to the Reporter or not ?                              No

3     Whether their Lordships wish to see the fair copy                    No
      of the judgment ?

4     Whether this case involves a substantial question                    No
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

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                            JASHBHAI FATESINH SOLANKI
                                      Versus
                                STATE OF GUJARAT
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Appearance:
MR VK JOSHI(2329) for the Petitioner(s) No. 1,10,11,12,13,14,2,3,4,5,6,7,8,9
MR SAHIL TRIVEDI, LD.ASSTT. GOVERNMENT PLEADER for the
Respondent(s) No. 1
MR HS MUNSHAW(495) for the Respondent(s) No. 2
NOTICE NOT RECD BACK for the Respondent(s) No. 4
NOTICE SERVED for the Respondent(s) No. 3
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    CORAM:HONOURABLE MRS. JUSTICE MAUNA M. BHATT

                                 Date : 24/04/2023

                                 ORAL JUDGMENT

1. Rule returnable forthwith. Learned Assistant

Government Pleader waives service of notice of Rule on

behalf of the respondent - State and learned advocate

C/SCA/22246/2022 JUDGMENT DATED: 24/04/2023

Mr.H.S.Munshaw waives service of notice of Rule on behalf

of respondent No.2.

2. This petition under Article 226 of the Constitution of

India is filed with the following prayers: -

(A) Your Lordships may be pleased to admit and allow this petition;

(B) Your Lordships may be pleased to issue a writ of mandamus and/or any other appropriate writ, order or direction;

(i) to hold and declare that action on the part of the respondents in not making full payment of pensionary benefits to the petitioners by counting their entire length of service from the date of joining till date of retirement as ilegal, unjustified, arbitrary and futher be pleased to direct the respondents to fix the pension of the petitioners by counting his service from date of joining until the date of retirement and fix the pension accordingly;

(ii) to hold and declare that the petitioners are entitled to all other retiral benefits including benefit of leave encashment and be pleased to further direct the respondents to pay amount of

C/SCA/22246/2022 JUDGMENT DATED: 24/04/2023

leave encashment of leave standing in the account of the petitioners.

(iii) to direct the respondents to pay difference of pensionary benefits, gratuity amount and leave encashment with 18% interest from the date when it fell due.

(C) Pending admission, hearing and final disposal of this petition, this Hon'ble Court may be pleased to direct the respondents to immeciately revise the pension of the petitioners on the basis of their total length of service.

(D) Your Lordships may be pleased to grant such other and further relief that may be deemed fit and proper in the facts and circumstances of the case."

3. Heard learned advocate Mr.V.K.Joshi for the

petitioner and learned Assistant Government Pleader for

the respondent - State and learned advocate

Mr.H.S.Munshaw for the respondent No.2.

4. Learned advocate for the petitioners submitted that

the issue in the present petition pertains to grant of

benefit of 300 days unavailed earned leave and not

calculating the retirement benefits of the petitioners from

C/SCA/22246/2022 JUDGMENT DATED: 24/04/2023

the date of appointment. The prayers in relation to other

benefits, if any, referred in this petition, is not pressed at

this stage.

4.1 He further pointed out that the issue involved in the

present petition which is in relation to payment of leave

encashment for 300 days leave as also counting the

retirement benefits available to the petitioners from the

date of their appointments, is no more res integra in view

of decision of Hon'ble Supreme Court dated 01.09.2022, in

Special Leave Petition (C) No. 7229 of 2022. Learned

advocate for the petitioners submitted that present

petitioners were working with the respondent for more

than 3 decades and they all had retired upon attaining the

age of superannuation and therefore considering their

continuous service, they are entitled for the benefits of

leave encashment as well as pension and gratuity.

He further submitted that in light of the deicision in

the case of Executive Engineer Panchayat (MAA & M)

Department and another v. Samudabhai Jyotibhai

C/SCA/22246/2022 JUDGMENT DATED: 24/04/2023

Bhedi and others reported in 2017(4) GLR 2952, even

initial service prior to the benefit of regularisation has to

be counted for the purposes of pension.

4.2 He pointed out that in the Government Resolution

dated 24.01.2023, of Road and Building Department,

Sachivalaya, Gandhingar the State Government has

resolved as under:

"At the end of active deliberations, subject to the following conditions, it is hereby prescribed to pay gratuity to the daily wagers working in offices under various departments of the State within the maximum limit of 33 (thirty-three) years as per the Resolution dated 21.10.2020 of this Department:

(1) The concerned Department will have to check the eligibility of the daily wagers as per the Payment of Gratuity Act, 1972, of the Government of India.

(2) The order of this Department will also apply to the cases of retired/deceased daily wagers/work-charge employees after issuance of the resolution dated 24.03.2006 of this Department.

(3) The concerned Department will have

C/SCA/22246/2022 JUDGMENT DATED: 24/04/2023

to pay gratuity to the daily wagers/work- charge employees, for the services rendered before becoming permanent, upon verifying their eligibility as per the resolution dated 21.10.2020 of this Department. Whereas, the payment of gratuity for the pensionable services after becoming permanent will be made by the Director, Pension & Provident Fund Office. The Department will ensure that the gratuity is paid within the maximum limit of 33 years by counting both the services together and in any case no double payment is made.

(4) The payments made to the daily wagers/work-charge employees under the Resolution dated 21.10.2020 of this Department before issuance of this order will not be reopened."

5. In relation to leave encashment vide circular dated

07.10.2022 the Government has also taken a policy

decision which reads as under: -

"According to the decision of the Supreme Court, since the retiral benefits given to the daily wagers under the resolution dated 17.10.1988 also includes the benefit of leave encashment, therefore the daily wagers are entitled to

C/SCA/22246/2022 JUDGMENT DATED: 24/04/2023

the benefit of leave encashment as per Clause (5) of the State Litigation Policy of the Government. The instructions in this regard are circulated after consultation and as per the approval received through the informal note dated 3.10.2022 of the Finance Department.

With regard to the various claims filed before the Hon'ble Court, after verifying the service record of the petitioners - daily wagers and after calculating as per rules and the policy of the Government applicable to the regular services, the benefit of encashment of earned leaves (within the maximum limit of 300 earned leaves) shall be paid in the following terms :