Bhikhabhai Mohanbhai Makwana vs State Of Gujarat
2023 Latest Caselaw 6244 Guj

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     C/SCA/14567/2023                                       JUDGMENT DATED: 25/08/2023

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              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
                R/SPECIAL CIVIL APPLICATION NO. 14567 of 2023

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
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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 ?

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                        BHIKHABHAI MOHANBHAI MAKWANA
                                     Versus
                               STATE OF GUJARAT
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Appearance:
MR DHARMESH V SHAH(1050) for the Petitioner(s) No. 1,2,3,4
MS DRASHTI D SHAH(11443) for the Petitioner(s) No. 1,2,3,4
for the Respondent(s) No. 2
MS NIRALI SARDA ASSISTANT GOVERNMENT PLEADER/PP for the
Respondent(s) No. 1
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     CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
                         Date : 25/08/2023

                                  ORAL JUDGMENT

1. Heard learned Advocate Mr. Dharmesh Shah for the petitioner and learned Assistant Government Pleader Ms. Nirali Sarda for the respondent

- State.

2. Rule returnable forthwith. Learned Assistant Government Pleader waives service of notice of Rule on behalf of the respondent - State.

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3. By way of this petition, the petitioners have sought for the following prayers :

"8 (A) Your Lordships may be pleased to admit and allow this petition.

(B) 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 with reasonable rate of interest and other consequential benefits in the interest of justice.

(C) Pending admission and final disposal of this petition, Your Lordships be pleased to direct the respondents to immediately pay the benefits of counting the service of the petitioners.

(D) Your Lordships be pleased to pass such other and further orders in the interest of justice as may be deemed fit, just and proper in the peculiar facts and circumstances of this case."

4. Learned Advocate for the petitioner 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.

5. Learned Advocates for the parties would submit that the issue involved in the present petition, more particularly with regard to grant of benefit of encashment of 300 days unavailed leave, is no more res integra, more particularly in view of the decision of the Hon'ble Apex Court dated 01.09.2022, in Special Leave Petition (C) No. 7229 of 2022. It would appear

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that the petitioners had worked for approximately 10 years with the respondent-Department and whereas the petitioners in view of the Government Resolution dated 17.10.1988 would be entitled for leave encashment.

5.1. At this stage, learned AGP has brought to the notice of this Court to a circular dated 07.10.2022, whereby the State Government has taken a policy decision with regard to the present issue. Relevant portion of the said Circular is quoted hereinbelow for benefit.

"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 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 :

(1) The petitioners - daily wager who have retired and completed 70 years as on 01.10.2022 shall be paid latest by 31.10.2022.

(2) Rest of the petitioners - daily wagers shall be paid within a period of three months, i.e. on or before 31.12.2022."

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

7. Considering the above position, more particularly since it appears that the issue has been decided by this Court and even by the Hon'ble Apex Court and whereas since the State has also issued guidelines, as to how the

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said benefit has to be computed, in the considered opinion of this Court, the present petition could be disposed of with the following directions, which would meet the ends of justice.

(A) The respondent no.2 shall undertake a scrutiny of the case of the petitioners, more particularly for grant of benefit of 300 days leave encashment and whereas if the petitioners are found eligible, then the State Government shall consider the proposal by the respondent No.2 and pass appropriate orders within a stipulated time frame.

(B) The respondent No.2 shall conduct the above referred scrutiny within a period of 04 weeks from the date of receipt of this order and whereas appropriate proposal for grant of benefit of 300 days leave encashment shall be moved to the State Government within such time.

(C) Upon such proposal being received by the concerned Department, the same shall be considered and a final decision including payment shall be taken by the State within a period of 08 weeks from the date of receipt of such proposal.

8. With the above observations and directions, the present petition stand disposed of. Rule is made absolute to the aforesaid extent. Direct service is permitted.

(NIKHIL S. KARIEL,J) NIRU