Gujarat High Court

Late Bhikhaji Chelaji Thakor Through ... vs State Of Gujarat on 15 December, 2023

Author: Nikhil S. Kariel

Bench: Nikhil S. Kariel

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              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 20902 of 2023

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       LATE BHIKHAJI CHELAJI THAKOR THROUGH LHRS RUKHIBEN
                          BHIKHAJI THAKOR
                               Versus
                         STATE OF GUJARAT
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Appearance:
MS VIDHI J BHATT(6155) for the Petitioner(s) No. 1
for the Respondent(s) No. 2,3,4
MR AYAAN PATEL, AGP for the Respondent(s) No. 1
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     CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL

                                Date : 15/12/2023

                                  ORAL ORDER

1. Heard learned Advocate Ms. Vidhi Bhatt for the petitioner and

learned AGP Mr. Ayaan Patel for the respondent-State.

2. By way of this petition, the petitioner has sought for the following

reliefs :

"35 A. Your Lordships may be pleased to issue a writ or certiorari or any other appropriate writ, order or direction declaring the conditions of Government Resolution dated 18.03.2023 (Annexure -H) declaring the effective date of implementation of the revision of pay under 7th Pay Commission as April, 2023 instead of 01.01.2016 and denying the permanent daily-wagers the status of Government servants and the benefits that are available to Government servants as bad in law, arbitrary and discriminatory and thus violative of Articles 14, 16 and 21 of the Constitution of India and quashing and setting aside the same to that extent;






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B. Your Lordships may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction, commanding the respondent authorities to implement the Government Resolution dated 18.03.2023 (Annexure-H) from 01.01.2016 and fix the pay of the petitioner as per 7th Pay Commission with effect from 01.01.2016 and pay the arrears to him, as per the Gujarat Civil Services (Revision of Pay) Rules, 2016 with interest at 12% per annum;

C. Your Lordships may be pleased to issue a writ of certiorari or any other appropriate writ, order or direction declaring the action on the part of the respondent authorities in denying the petitioner all the benefits that are admissible to those employees who are governed by Government Resolution dated 17.10.1988 (Annexure-B) as bad in law, illegal, arbitrary, capricious and violative of petitioner fundamental rights guaranteed under Articles 14, 16 and 21 of the Constitution of India;

D. Your Lordships be pleased to issue a writ of mandamus or any other appropriate writ, order or direction commanding the respondent authorities to grant the petitioner (a) Public Holidays, (b) Transport Allowance, (c) Leave Travel Concession, (d) City Local Allowance or Local Compensatory Allowance, (e) Higher pay scales after completion of the required number of years of service in lieu of promotion as per the prevalent scheme at the relevant time, (i) Leave encashment at the time of retirement and death, (j) Counting of service from the date of joining for the purpose of computing pension, gratuity and other pensionary/retirement benefits, and (k) Lump sum financial assistance to the family of the petitioner, who died in harness, and other ancillary benefits, as admissible to the employees governed by Government Resolution dated 17.10.1988 (Annexure-B), and to revise his pay and pay the arrears with interest at the rate of 12% per annum;

E. Your Lordships may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction commanding the respondents to calculate the service of the petitioner by counting Sundays and public holidays in a year,

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and recalculate the benefits that accrued to him from time to time from the date of his joining up to 28.10.2010 notionally and from 29.10.2010 pay him the monetary benefits fixed as on 28.10.2010 and thus pay him the difference of arrears of pay and allowances from 29.10.2010 with interest at the rate of 12% per annum;

F. Pending admission and final hearing of the present petition, Your Lordships may be pleased to direct the respondent authorities to extend the benefits of the 7th Pay Commission recommendations to the petitioner as per Government Resolution dated 18.03.2023;

G. Pending admission and final hearing of the present petition, Your Lordships may be pleased to direct the respondent authorities to pay the family of the petitioner leave encashment and gratuity by counting service of the petitioner from the date of joining with interest at the rate of 12% per annum;

H. Pending admission and final hearing of the present petition, Your Lordships may be pleased to direct the respondent authorities to extend the benefit of lump sum financial assistance to the family of the petitioner as per the Government Resolution dated 24.09.2022 (Annexure- E);

I. Pending admission and final hearing of the present petition, Your Lordships may be pleased to direct the respondents to calculate the service of the petitioner by counting Sundays and public holidays in a year, for the purpose of granting benefits under the Government Resolutions dated 17.10.1988 (Annexure-B) and 15.09.2014 (Annexure-C);

J. Pending admission and final hearing of the present petition, Your Lordships be pleased to direct the respondent authorities herein to extend the petitioner the following service benefits:-

(a) Public Holidays, and

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(b) City Local Allowance or Local Compensatory Allowance

K. Your Lordships be pleased to pass any other appropriate order, as deemed fit, in the interest of justice."

3. Learned Advocate Ms. Bhatt for the petitioner would submit that

late husband of the petitioner was working with the forest department as a

daily-wager employee since the year 1989 and whereas the late husband

of the petitioner had died in harness on 13.02.2023. Learned Advocate

would submit that even though the late husband of the petitioner had

worked for approximately 34 years, yet the respondents had not counted

the said service in its entirety for grant of benefit of Government

Resolution dated 17.10.1988. Learned Advocate would submit that as

such, the late husband of the petitioner had been granted only some of the

benefits as would be granted to an employee under Government

Resolution dated 17.10.1988, and whereas majority of the benefits as

mentioned in the prayers above, have not been granted more particularly

the respondents have never considered the case of the petitioner for grant

of such benefits.

3.1 Learned Advocate would further submit that as per the law laid

down by this Court as well as the Hon'ble Apex Court, in addition to

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grant of benefit of permanency etc. upon completion of 10 years as per

the Government Resolution dated 17.10.1988, the employee being

entitled to be granted all benefits as a regularly appointed employee, and

whereas on account of unfortunate demise of her late husband, the

petitioner would also be entitled to grant of lump sum compensation as

per the extant policy of the State Government in this regard.

4. Considering the submissions made by learned Advocate Ms. Bhatt,

since it would prima facie appear that the late husband of the petitioner

having worked for approximately 34 years with the respondents as a

daily-wager would be entitled to almost all the benefits as available to an

employee under Government Resolution dated 17.10.1988 and whereas

appropriate directions for directing the respondents to consider the case of

the petitioner for grant of benefits are required to be issued, yet this Court

deems it appropriate to explain the scope and ambit of the Government

Resolution dated 17.10.1988, more particularly as per the law laid down

by this Court as well as the Hon'ble Apex Court. For the benefits of the

respondents, some of the observations of this Court as well as the Hon'ble

Supreme Court, on this issue are reproduced hereinbelow for benefit:

4.1 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

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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. 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

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mentioned in exception (i) above."

4.2 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 of direct selection.

4.3 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. Furthermore, in case of unfortunate demise of an

employee, as per the emanating from the judgment, the legal heirs of the

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employee would also be entitled to grant of lump sum compensation/

compassionate appointment as per the extant policy of the State in that

regard.

4.4 At this stage, this Court seeks to rely upon observations made by

this Court in order dated 15.09.2023 in Special Civil Application No.

14290 of 2022 and allied matter, paragraph Nos. 3, 4 and 5 being relevant

for present purpose, are reproduced hereinbelow for benefit.

"3. By way of these petitions, the petitioners interalia, question of the respondent authorities, whereby the petitioners have been denied the benefit of lump sum compensation as per the GR dated

05.07.2011 as modified vide GR dated 07.04.2016, in lieu of compassionate appointment, more particularly, on the ground that employee concerned was working in daily wages.

4. Considering the submission of learned advocate for the petitioner and whereas while the issue is sought to be contested by learned AGP Ms. Sarda, it would appear that the law on this issue is no more res-integra. More particularly, it would appear that the learned Co-ordinate Bench of this Court vide judgment dated 14.02.2022, in Special Civil Application No.11554 of 2021, have clearly observed that the legal heirs of the employees of the similar nature as of the present petitioner would be entitled to be considered as permanent daily wager, more particularly, in view of law laid down by the Division Bench of this Court in case of Mahendrakumar Bhagwandas Vs.State of Gujarat reported in 2011 (2) GLR 1290 and whereas on such basis the learned Co- ordinate Bench had directed the respondents to consider the case of the respondents therein, for extension of benefits as per GR dated 05.07.2011 and 07.04.2016. It would further appear that Division Bench of this Court in a recent decision dated 24.08.2023, in Letters Patent Appeal No. 934 of 2023 and the allied matters,

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where the Division Bench was concerned with the issue of similar nature has observed at paragraph. 5.1, which is reproduced as under:

"The extension of said policy shall not be denied to the petitioners and their claim shall not be rejected on the ground that the deceased employee was a daily wager."

5. Having regard to the above, more particularly, since the issue is no more res-integra, in the considered opinion of this Court, the petitioners could not have been denied the benefits of the policy of the State Government on the aforementioned ground."

4.5 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.

4.6 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.





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4.7     In case of Workmen of American Express 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.

5. 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; (i) transportation allowances (ii) travelling

allowances (iii) Leave Travel Concession (LTC) (iv) arrears of 5th Pay

Commission to the Daily wagers from 01.01.1996 to 31.12.1997, 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.






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6. Furthermore, it also requires to be noted that vide Government

Resolution dated 18.03.2023, the State Government through Forest

Department has also inter alia in principle decided to extend the benefit of

7th Pay Commission to employees who have been granted the benefit of

permanency under Government Resolution dated 17.10.1988, and

whereas the respondents would also be required to consider the case of

the petitioner in light of the said Resolution.

7 Considering that except the issues as mentioned in the above

paragraphs which are pending consideration of the Hon'ble Supreme

Court, more or less issue with regard to payment of all other benefits and

the method of computing the days put in by the employee, now no more

in dispute, the following directions are required to be passed. Furthermore

it appears that the petitioner's representation may be lacking certain

directions to the petitioner, to submit a fresh representation is also

required to be passed.

8. Hence, the following directions are passed:

8.1 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. Copy of such representation

shall also be forwarded to respondent No.2 herein;

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8.2 The respondent No.3, in consultation with respondent No.2,

shall verify the service records of the late husband of 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 her late

husband. 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;

8.3 Upon proposal being received by respondent No.1, the