Gujarat High Court
Gujarat Forest Produce Gatherers And ... vs State Of Gujarat on 6 December, 2023
Author: Nikhil S. Kariel
Bench: Nikhil S. Kariel
NEUTRAL CITATION
C/SCA/19864/2023 ORDER DATED: 06/12/2023
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 19864 of 2023
==========================================================
GUJARAT FOREST PRODUCE GATHERERS AND FOREST WORKERS
UNION THROUGH PRAVINBHAI RATIBHAI VYAS
Versus
STATE OF GUJARAT
==========================================================
Appearance:
MRS NASRIN N SHAIKH(2451) for the Petitioner(s) No. 1,2
for the Respondent(s) No. 2,3
MS NIRALI SHARDA, AGP for the Respondent(s) No. 1
==========================================================
CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
Date : 06/12/2023
ORAL ORDER
1. Rule returnable forthwith. Learned Assistant Government
Pleader Ms. Nirali Sharda waives service of notice of rule on
behalf of respondent-State.
2. Heard learned Advocate Mrs. Nasrin Shaikh for the
petitioner and learned Assistant Government Pleader Ms. Nirali
Sharda for the respondent State.
3. At this stage, it would be relevant to mention that this
petition is being contested by two petitioners. Petitioner No.1
being the Union and petitioner No.2 being the employee,
whose cause is being espoused by the Union. Having regard to
such a circumstance, it is clarified that this order is passed
only with regard to petitioner No.2 and for no other employee
NEUTRAL CITATION
C/SCA/19864/2023 ORDER DATED: 06/12/2023
undefined
who is associated with the Union.
4. By way of this petition, the petitioner has raised a
grievance as regards non-payment of benefits as available to
the petitioner under Government Resolution dated 17.10.1988.
5. It is the submissions of the learned Advocate Mrs. Nasrin
Shaikh on behalf of the petitioner that though the petitioner
has served for eleven years with respondents, where he has
put in more than 240 days in each year, yet the petitioner is
required to approach this Court for grant of benefits
concerned. In the considered opinion of this Court, the
grievance of the present petitioner could be assuaged at this
stage, more particularly by directing the respondents to take
an appropriate decision on a representation that would be
preferred by the present petitioner. Before issuing such
directions, it would be apposite to refer to certain decisions of
the Hon'ble Apex Court as well as of this Court, more
particularly whereby the scope and ambit of G.R. dated
17.10.1988 has been explained by the Courts concerned. The
Hon'ble Apex Court, in case of State of Gujarat Vs. PWD
and Forest and Employees' Union, reported in (2019) 15
SCC 248, at paragraph 14, has observed as thus:-
"14. Having regard to the above, we are confining our discussion to
the aforesaid exceptions taken by the appellant. In the first instance, it
is pointed out by the appellant that even if the respondents become
permanent, they would be entitled to be fitted in the job description in
terms of the Rules. What is (arising out of SLP (C) No. 43592 of 2018)
& Anr. emphasised is that even after regularisation, their pay scales
cannot be more than the pay which is given to the employees who are
taken on permanent basis. This appears to be a very sound argument.
NEUTRAL CITATION
C/SCA/19864/2023 ORDER DATED: 06/12/2023
undefined
The only plea was that whatever is given to such employees in other
departments, same benefit be extended to the respondents as well. It
is difficult to countenance this submission which we find to be legally
impermissible. That is hardly any justifiable response to rebut the
same. It is to be kept in mind that members of respondent union were
all engaged on daily wage basis. No doubt, the appellant Government
decided to confer certain benefits upon these daily wage workers
depending upon the number of years of service they put in. Judgment
dated July 09, 2013 proceeds on that basis. Under certain
circumstances, namely, on completion of specified number of years of
service on daily wage basis, these daily wage workers are entitled to
become permanent. On attaining the status of permanency/regular
employees, they become at par with those employees who were
appointed on permanent basis from beginning, after undergoing the
proper selection procedure on proving their merit. These daily wagers
cannot be given the pay scales which are even better than the pay
scales given to regularly appointed employees. The Rules are
statutory in nature (arising out of SLP (C) No. 43592 of 2018) & Anr.
which have been framed in exercise of powers conferred by the
proviso to Article 309 of the Constitution. On becoming permanent,
such daily wagers can, at the most, claim that they be fitted in the job
descriptions in terms of the said pay rules and their pay be fixed
accordingly. The appellant is ready to do that. We, therefore, accept
the plea mentioned in exception (i) above.
6. From the above quoted paragraph, it would clearly
appear that the Hon'ble Apex Court had inter alia clarified that
upon an employee, who had originally been appointed on
daily-wages, completing a specific number of years, more
particularly the same being in consonance with Section 25B of
Industrial Disputes Act, then the employee is entitled to be
granted benefits of permanency. The Hon'ble Apex Court has
also further inter alia observed that upon attaining the status
of permanency the employee, who was born in the department
as daily-wager is entitled to be treated at part with employees,
who have been appointed on regular/permanent basis by way
NEUTRAL CITATION
C/SCA/19864/2023 ORDER DATED: 06/12/2023
undefined
of direct selection.
7. In case of State of Gujarat and Anr. Vs.
Mahendrakumar Bhagvandas & Another, reported in
2011(2) GLR 1290 the Division Bench of this Court had
stated the very position as stated by the Hon'ble Apex Court as
noted herein above and whereas the Division Bench had also
observed that the employees, upon being granted the benefits
of permanency are also entitled to be granted the benefits of
pension, higher pay scale, etc.
8. In case of Executive Engineer Panchayat (MAA & M)
Department and Another Vs. Samudabhai Jyotibhai
Bhedi & Ors., reported in 2017(4) GLR 2952, Division
Bench of this Court had taken the view that upon completion of
a certain number of years, while the employees concerned
would be entitled to claim permanency and whereas the period
of service put in by the employees concerned on the date
when they were treated as permanent employees was to be
treated as continuous service for deciding pension as available
to the petitioners.
9. It would also be pertinent to mention here that in a
proceeding before the Hon'ble Apex Court i.e. in SLP No.7229
of 2022, the State has accepted its liability of paying leave
encashment of 300 days to the employees, who have been
granted permanency under G.R. dated 17.10.1988.
10. In case of Workmen of American Express
NEUTRAL CITATION
C/SCA/19864/2023 ORDER DATED: 06/12/2023
undefined
International Banking Corporation Vs. Management of
American Express International Banking Corporation,
reported in (1985) 4 SCC 71, the Hon'ble Apex Court has
inter alia laid down that while computing the period of service
rendered by an employee under Section 25 of ID Act, Sundays
and Public Holidays also to be added. The said decision though
not expressly as regards the scope and ambit of G. R. dated
17.10.1988, yet the law laid down is to be followed while
computing the number of days having put in by an employee
while considering his case for grant of benefits under the said
Government Resolution.
11. In the opinion of this Court, these are but few landmark
decisions of the Hon'ble Apex Court as well as this Court on the
issue of G.R. dated 17.10.1988 and whereas it would appear,
as of now, that except for four benefits namely ; (a) public
holiday, (b) transport allowance, (c) medical allowance, and (d)
group allowances, which issue is pending consideration of the
Hon'ble Apex Court in SLP No.4827 of 2023, an employee, who
has been made permanent as per the terms of G.R. dated
17.10.1988 would be entitled to all other benefits as would be
entitled to a regularly appointed employee.
12. Having regard to the above observations, the following
directions are passed :-
12.1 The petitioner to prefer a representation before
respondent No.3 for grant of benefits as available to the
petitioner under G. R. dated 17.10.1988 as clarified later on.
NEUTRAL CITATION
C/SCA/19864/2023 ORDER DATED: 06/12/2023
undefined
Copy of such representation shall also be forwarded to
respondent No.2 herein;
12.2. The respondent No.3, in consultation with
respondent No.2, shall verify the service records of the present
petitioner and shall forward a proposal to respondent No.1 as
regards payment of benefits as available to the petitioner as
commensurate to the period of service rendered by the
petitioner. Such exercise shall be done by respondent No.3, in
consultation with respondent No.2, within a period of six weeks
from the date of receipt of the representation;
12.3. Upon proposal being received by respondent No.1,
respondent No.1 shall forthwith take appropriate steps to
ensure payment of benefits is made to the petitioner within a
period of four weeks thereafter;
12.4. In case the petitioner is aggrieved by any decision
taken by respondent No.3 in consultation with respondent No.2
or decision taken by respondent No.1, either wholly or in part,
then it would be open for the petitioner to avail appropriate
remedy as available to the petitioner under the law;
12.5. It is further reiterated that the respondents shall do
well in following the law laid down by the decisions of the
Hon'ble Apex Court as well as this Court as noted herein above
while taking an appropriate decision. It is further observed that
any deliberate deviation from the law laid down by the Hon'ble
Apex Court as well as this Court shall invite appropriate
NEUTRAL CITATION
C/SCA/19864/2023 ORDER DATED: 06/12/2023
undefined
consequences.
13. With the above observations and directions, the present
petition is disposed of as partly allowed.
(NIKHIL S. KARIEL,J)
SALIM/
