Dalpatbhai Mansukhbhai Patel vs State Of Gujarat
2023 Latest Caselaw 5685 Guj

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    C/SCA/13329/2023                              ORDER DATED: 04/08/2023

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           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

            R/SPECIAL CIVIL APPLICATION NO. 13329 of 2023

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                       DALPATBHAI MANSUKHBHAI PATEL
                                   Versus
                             STATE OF GUJARAT
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Appearance:
MR HB SINGH(2073) for the Petitioner(s) No.
1,10,11,12,13,14,15,16,17,18,19,2,20,21,22,23,24,25,26,27,28,29,3,30,31,3
2,33,4,5,6,7,8,9
MR MAHESHKUMAR R YADAV(11944) for the Petitioner(s) No.
1,10,11,12,13,14,15,16,17,18,19,2,20,21,22,23,24,25,26,27,28,29,3,30,31,3
2,33,4,5,6,7,8,9
MS POOJA ASHAR, AGP for the Respondent - State
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  CORAM:HONOURABLE MRS. JUSTICE MAUNA M. BHATT

                              Date : 04/08/2023

                                ORAL ORDER

1. Rule returnable forthwith. Learned Assistant Government Pleader Ms.Pooja Ashar waives service of notice of Rule on behalf of the respondent - State.

2. This petition under Article 226 of the Constitution of India is filed with the following prayers:-

"(a) To admit and allow this petition;

(b) YOUR LORDSHIPS may be pleased to issue writ of mandamus or any other

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appropriate writ, order or direction, to declare and hold that the petitioners are entitled for encashment of leave to the extent of 300 days at par with other permanent employee of the respondent as recorded in the service book of the petitioners; and direct the respondents to forthwith pay the same to the petitioners, preferably within a stipulated period as may be deemed fit by this Hon'ble Court;

(c) During the pendency and final disposal of the present petition, YOUR LORDSHIPS may be pleased to direct the respondents to pay the leave encashment to the petitioners;

(d) Pass any such other and/or further orders that may be thought just and proper, in the facts and circumstances of the present case."

3. Heard learned advocate for the petitioners and learned Assistant Government Pleader Ms.Pooja Ashar for the respondent - State.

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. The prayers in relation to other benefits, if any, referred in this petition, is not pressed at this stage.

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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- department with more than 25 years and had retired upon attaining the age of superannuation and therefore considering continuous service, the petitioners are entitled for the benefits of leave encashment.

4.2. He pointed that by Government Resolution dated 21.10.2022, of Irrigation Department, Gandhinagar had issued directives for implementation of the decision of the Hon'ble Supreme Court in Special Leave Petition (C) No.7229 of 2022.

5. In relation to leave encashment vide Government Resolution dated 21.10.2022, issued by Irrigation Department, Government has also taken a policy decision which reads as under: -

"According to the judgment of the Hon'ble Supreme Court referred in No. (1) above,

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since the Resolution of the Roads and Buildings Department dated 17-10-1988 also provides that the retirement benefits granted to daily workers include the benefit of "encashment of leave" also, as per the clause (5) of the State Litigation Policy of the State Government, daily wages workers are entitled to the benefit of conversion of leave into cash, the instructions in this regard regarding the payment of leave encashment to the daily wages worker petitioner under this section, instructions are hereby circulated as per the approval received vide informal note dated 17/10/2022 of the Finance Department on the equal numbered files as follows.

With reference to various claims filed before the Hon'ble Court, the petitioner daily wagers shall be paid the encashment of accrued leave (within the maximum limit of 300 leave accumulated) in cash as is being paid for regular services as per the policy of the Government, by calculating leave as per the rules on the basis of the service record

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of the daily workers.

(1) Payment in case of retired petitioners who have completed 70 years of age as on 01/10/2022, shall be made by 31/10/2022,

(2) Payment to the remaining retired petitioner daily workers will be within three months i.e. by 31/12/2022."

6. The above factual position could not be controverted by learned Assistant Government Pleader for the respondent - State.

7. In view of the above said position, this Court deems it appropriate to direct the respondents to undertake scrutiny of case of the petitioners herein, and upon such scrutiny, if the petitioner is found eligible then a proposal shall be forwarded to the State Authorities in this regard and thereafter, the State Authority shall consider proposal of the petitioners herein expeditiously and in consonance with the State policy.

8. It is reported that in many of such matters, the concerned department has already moved a proposal to the State Government in this regard. However, wherever such proposal

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is not moved, the same shall be moved by the concerned department within a period of eight weeks from the date of receipt of copy of writ of this order.

9. The aforesaid exercise shall be completed within a period of twelve weeks from today.

10. With the aforesaid, the petition stands disposed of. Rule made absolute to the aforesaid extent.

Direct service is permitted.

(MAUNA M. BHATT,J) SHRIJIT PILLAI