Gujarat High Court
Sendhaji Shivaji Thakor vs State Of Gujarat on 24 April, 2023
Bench: Mauna M. Bhatt
C/SCA/19729/2022 JUDGMENT DATED: 24/04/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 19729 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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SENDHAJI SHIVAJI THAKOR
Versus
STATE OF GUJARAT
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Appearance:
MS VILAS A PURANI(9038) for the Petitioner(s) No. 1,2
MR SAHIL TRIVEDI, LD.AGP for the Respondent(s) No. 1,2,3,4
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CORAM:HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Date : 24/04/2023
ORAL JUDGMENT
1. Rule. Learned Assistant Government Pleader Mr.Sahil
Trivedi waives service of Rule on behalf of the respondents.
2. This petition is filed by the petitioners, with following
prayers :
C/SCA/19729/2022 JUDGMENT DATED: 24/04/2023
"15(A) Your Lordships be pleased to issue an order, writ in
the nature of mandamus and/or Certiorari or other
appropriate writ, order or direction declaring the
action of the respondents thereby not paying the
amount of leave encashment to the petitioners as
illegal, unjust, arbitrary, non-application of mind,
violative of article 14, 16 and 21 of the Constitution
of India and be pleased to direct the respondents to
pay the amount of leave encashment to the
petitioners with 12% interest.
(B) Your Lordships may be pleased to declare that the
action of the respondents not considering initial date
of joining for the purpose of pension calculation and
other retiral dues as per the ratio laid down in the
case of Executive Engineer, Panchayat vs
Samudabhai Jyotubhai Bhedi reported in 2017(4)
GLR 2952, as illegal unjust arbitrary, violative of
article 14, 16 and 21 of the Constitution of India
and be pleased to pay the arrears of pension and
other admissible arrears as per the initial date of
joining of services, to the petitioners forthwith along
with 12% interest on delayed payment of the same.
(C) Pending admission and final hearing of the petition,
C/SCA/19729/2022 JUDGMENT DATED: 24/04/2023
the Hon'ble Court be pleased to direct the
respondents to pay the amount of leave encashment
and available all admissible arrears of pension and
other retiral dues by considering the initial date of
joining of services to the petitioners with 12%
interest.
(D) Any other relief which this Hon'ble Court deems fit
and proper in interest of justice."
3. Heard Learned advocate Ms.Vilas Purani for the
petitioners. She submitted that petitioners were appointed as
Daily Wagers in the Forests and Environment Department of
the State w.e.f. 21.04.1981 and 01.09.1981 respectively and
upon attaining the age of superannuation, retired from services
on 31.08.2020 and 31.01.2021 respectively. They have put in
38 years of services as daily wagers. It is the case of the
petitioners that pursuant to the decision of the Hon'ble
Supreme Court in the case of State of Gujarat and others vs.
P.W.D. Employees' Union and others reported in (2013)12 SCC
417 and (2019)15 SCC 248, the petitioners have been granted
the benefits of Government Resolution dated 17.10.1988 and
15.09.2914. Therefore, they are entitled for the benefits of 300
days leave encashment for their unavailed leave. She submitted
that respondent- Forest Department has also issued Government
C/SCA/19729/2022 JUDGMENT DATED: 24/04/2023
Resolution dated 13.12.2022 granting benefits of leave
encashment to the retired daily wagers, who have been
granted the benefits of Government Resolution dated
17.10.1988.
She submitted that in view of the decision of this Court
in the case of Executive Engineer, Panchayat v. Samudabhai
Jyotibhai Bhedi reported in 2017(4) GLR 2952, the petitioners
would be entitled for continuity of their services from the
initial date of their appointments for the purpose of pension.
She fairly submitted that so far as 240 days are concerned,
those years are to be counted where the petitioners have
completed 240 days in each calendar year.
4. On the other hand, learned Assistant Government Pleader
Mr.Sahil Trivedi for the respondents could not controvert the
aforesaid facts and decisions relied hereinabove. He could not
dispute the fact that in the similarly situated employees in
Special Civil Application No.14504 of 2016, this Court has
considered the issue, as under:
"5.2 Thus it is a clear position of law emerging
from decision in Samudabhai Jyotibhai Bhedi
(supra) that entire past services of daily-wager
which was continuous is liable to be reckoned for
the purpose of pensionary benefits and for the
C/SCA/19729/2022 JUDGMENT DATED: 24/04/2023
purpose of granting pension. In the facts of the case
of the petitioner, the factum is not controverted and
it is undisputed that the petitioner has throughout
worked since his joining, to make his services
continuous.
6. The only reason put-forth by the authorities to
deny the petitioner the pension is that after he was
made permanent, he has not completed 10 years of
qualifying service, however if the date of joining of
the petitioner which is 12th December, 1986 is
considered, the petitioner has evidently completed
the qualifying period to be entitled to pension as
per the law laid down in Samudabhai (supra).
6.1 The decision on part of the authorities
reflected in communication dated 18th July, 2016
that the petitioner had not completed 10 years of
service since the date of becoming regular from 01st
December, 1999 cannot stand in eye of law to deny
the pensionary benefits to the petitioner. The entire
service period right from the date of joining till the
petitioner retired on 30th September, 2012, is liable
to be counted and the pension is required to be
paid accordingly. The present petition has to
succeed.
C/SCA/19729/2022 JUDGMENT DATED: 24/04/2023
7. For the foregoing reasons and discussion, it is
hereby declared that the action on part of the
respondents in not making payment of pensionary
benefits to the petitioner and in not counting the
entire length of services of the petitioner from 12th
December, 1986 till 30th April, 2012 is arbitrary
and illegal. The respondents are directed to fix the
pension of the petitioner counting his entire service
period from 12th December, 1986 till the date of
retirement. The petitioner is also held entitled to all
other retirement benefits including leave encashment
and difference of gratuity, as may be payable. The
total amount payable towards pension to be
calculated as above, the arrears arising thereby and
the other retirement benefits including those
mentioned hereinabove, shall be paid to the
petitioner within a period of six weeks from the
date of receipt of this order.
8. It is provided and directed that if the amount
is not paid within stipulated period of six weeks, it
shall carry interest at the rate of 6.5% from the
date of filing of this petition. The respondents are
further directed to continue to pay the pension to
C/SCA/19729/2022 JUDGMENT DATED: 24/04/2023
the petitioner duly calculated as above.
9. The petition stands allowed as above."
5. In view of the above factual position, respondent No.4 is
directed to consider the case of the petitioners in consonance
with the Government Resolution dated 17.10.1988 and fix
pension of the petitioners, even otherwise, found eligible by
counting their entire service period from date of joining till
date of retirement. The petitioners are also entitled for Leave
Encashment, as held by Hon'ble Supreme Court under order
dated 01.09.2022 in Special Leave Petition (C) No.7229 of
2022. Above benefits shall be paid to the petitioners within a
period of eight weeks from the date of receipt of this order. If
the amount is not paid within eight weeks, then it shall carry
interest at the rate of 6% p.a. from the date of filing of this
petition till date of actual realisation. The petitioners are at
liberty to take appropriate action in accordance with law, if
need arises. Rule is made absolute accordingly. No order as to
costs.
(MAUNA M. BHATT,J)
DIPTI PATEL
