Gujarat High Court
State Of Gujarat vs Bhavanbhai Keshabhbai Solanki on 13 December, 2023
Author: N.V.Anjaria
Bench: N.V.Anjaria
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C/LPA/1400/2023 ORDER DATED: 13/12/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 1400 of 2023
In R/SPECIAL CIVIL APPLICATION NO. 5447 of 2019
With
CIVIL APPLICATION (FOR STAY) NO. 2 of 2023
In R/LETTERS PATENT APPEAL NO. 1400 of 2023
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STATE OF GUJARAT
Versus
BHAVANBHAI KESHABHBAI SOLANKI
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Appearance:
MS SHRUTI DHRUVE, AGP for the Appellant(s) No. 1,2,3,4
MR JK PARMAR(587) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIA
and
HONOURABLE MR. JUSTICE CHEEKATI
MANAVENDRANATH ROY
Date : 13/12/2023
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE N.V.ANJARIA)
Heard learned Assistant Government Pleader Ms.Shruti
Dhruve for the appellant State and learned advocate
Mr.J.K.Parmar for the respondent- original petitioner.
2. The present Letters Patent Appeal preferred by the State is
directed against judgment and order of learned single Judge
dated 14.7.2022. Thereby the Special Civil Application filed by
the respondent - original petitioner came to be allowed. It was
held by learned single Judge that the case of the petitioner was
similar to the petitioner of Special Civil Application No.13241 of
2004 and that the petitioner was entitled to the benefits of
Resolution dated 16.8.1973, the non-grant of which was the
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grievance raised by him. Learned single Judge directed the
respondent authorities to accord the benefits.
3. The petitioner was a work-charged employee on the post of
Watchman engaged under the respondents. Pursuant to the
order dated 3.7.1986 he worked as work-charged from 4.7.1986.
In the writ petition, the petitioner prayed to grant the benefits
under the Resolution dated 16.8.1973, the benefit of scheme of
9-18-27 years and to pay the arrears arising thereby.
3.1 The Resolution dated 16.8.1973 contemplated for
conversion of work-charged post into the post under the
temporary establishment and to grant the service benefits to the
work-charged employees accordingly. The Resolution provided
that those who had completed services for more than five years
would be entitled to such benefits.
3.2 Another Resolution dated 9.9.2001 was also passed
revising the scheme to provide that those post which were
continued for ten years and more would be converted into
temporary establishment. As far as the case of the petitioner is
concerned, what was claimed was the benefit of Resolution
dated 16.8.1973.
4. Learned Assistant Government Pleader would successfully
rely on the decision of the Division Bench of this court in State
of Gujarat Vs. Gujarat Mazdoor Sabha which was Letters
Patent Appeal No.380 of 2016 and allied appeals, decided on
29.6.2018, in which the court considered the applicability of the
said Resolution dated 16.8.1973, to finally held that only those
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employees who had completed 20 years as work-charged would
be entitled to conversion to the temporary establishment as per
the said Resolution dated 16.8.1973. It could be therefore
submitted that learned single Judge could have granted the
relief to the petitioner only on the lines of the decision of the
Division Bench in Gujarat Mazdoor Sabha (supra). The full
fledgedly as prayed for by the petitioner would not have been
granted. Since the law laid down in the Gujarat Mazdoor
Sabha (supra) holds the field, this court accepts the submission
made by learned Assistant Government Pleader.
4.1 Learned advocate for the respondent however submitted
that the original petitioner was granted the benefit and has now
retired from service with effect from 31.10.2017. Even if the
petitioner has retired, the applicability of law laid down by
Division Bench in Gujarat Mazdoor Sabha (supra), would be
the same.
4.2 What the Division Bench held finally in Gujarat Mazdoor
Sabha (supra) was in para 21.1, thus,
"So far as the impugned direction/s in
respectofworkcharged employees namely all those
workcharged employees to beabsorbed / converted
to temporary establishment on their completion of
5 years' service and they shall be paid
the consequential benefits
accordingly is hereby quashed and set aside and is
modified to the extentand it is held that all those
petitioners - work charged employees who have
worked for more
than 20 years as workcharged employees shall be
entitled to conversion to temporary establishment
as per the G.R. dated16.08.1973 from the date on
which they complete 20 years of service as
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workcharged and they shall be entitled to all the
benefits which may be available to the
employees working in the temporary
establishment, including the benefit of higher pay
scale / grade if at all the same isbeing paid to the
employees working in the temporary
establishment,however they shall be paid the
arrears on such conversion to temporary
establishment for the period preceding 3 years of
filing of the respectivepetitions. The arrears shall
be calculated and paid within a period of 4months
from today, failing which it shall carry interest
at the rate of 9%per annum. It is also directed
that in case any of the work chargedemployee h
as retired, he shall be paid the retirement benefi
ts as if he was
converted to temporary establishment provided
such employee has worked for not less than
20 years as workcharged employee and
retirement benefits be calculated and paid
accordingly, however they
shall be paid the arrears for 3 years only."
4.3 In another decision of the Division Bench in State of
Gujarat Vs. Ishwarbhai Bhikhabhai Parmar which was
Letters Patent Appeal No.1168 of 2023 decided on 8.3.2023
deserve reference where the facts were akin to the present case.
In that case also the employee had retired from service. This
court while applying the decision in Gujarat Mazdoor Sabha
(supra) inter alia observed that since the employee had retired
it would not be fit to set the clock back and permit the
authorities to recover the amount of benefits already paid. These
conditions shall also apply in this case.
5. In view of the above observations and the proposition of
law emerging, it is held that the impugned judgment and order
of learned single Judge dated 14.7.2022 cannot stand in law and
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is hereby set aside in view of the decision in Gujarat Mazdoor
Sabha (supra). The decision in Gujarat Mazdoor Sabha
(supra) shall hold the field. However, since the petitioner is
retired, the recovery of the amount will not be effected.
In view of disposal of the Appeal, the Civil Application will
not survive. Accordingly, it is disposed of.
(N.V.ANJARIA, J)
(CHEEKATI MANAVENDRANATH ROY, J)
Manshi
