Gujarat High Court
Late Nareshbhai Tulsibhai Chavda ... vs State Of Gujarat on 15 December, 2023
Author: Nikhil S. Kariel
Bench: Nikhil S. Kariel
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C/SCA/20971/2023 ORDER DATED: 15/12/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 20971 of 2023
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LATE NARESHBHAI TULSIBHAI CHAVDA THROUGH HIS LH WIFE
MANJULABEN NARESHBHAI CHAVDA
Versus
STATE OF GUJARAT
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Appearance:
MR VK JOSHI(2329) for the Petitioner(s) No. 1
for the Respondent(s) No. 2
MR ADITYA PATHAK, ASST.GOVERNMENT PLEADER/PP 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 Mr.V.K.Joshi on behalf of the
petitioner and learned Assistant Government Pleader
Mr.Aditya Pathak on behalf of the respondent - State.
2. By way of this petition, the petitioner inter alia seeks
grant of benefit of Government Resolution dated 17.10.1988
as regards the services rendered by the late husband of the
petitioner with the respondent - Department.
3. It is the case of the petitioner that the late husband of
the petitioner had joined the services of the respondent no.2
as a daily wager employee in the month of January, 1995 and
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continued to work as such till the date of his demise i.e. on
19.05.2023.
3.1. Learned advocate would submit that the late husband of
the petitioner having worked for almost 28 years, has not
been given any benefit as per the Government Resolution
dated 17.10.1988. Learned advocate Mr.Joshi would further
submit that as such, the petitioner has submitted a
representation to the respondent authorities for grant of the
benefits and whereas, if the same is directed to be decided,
then possibly the grievance of the petitioner could be
assuaged at this stage.
4. Learned AGP Mr.Aditya Pathak would not have any
objection to such a direction being issued by this Court.
5. Considering the same, while this Court is of the opinion
that direction could be issued to the respondents to consider
the case of the petitioner for grant of benefit under GR dated
17.10.1988, yet, this Court also deems it appropriate to quote
certain judgments of this Court as well as of the Hon'ble Apex
Court whereby, the scope and ambit of the GR dated
17.10.1988 has been explained.
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5.1. 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 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
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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."
5.2 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 par with employees,
who have been appointed on regular/permanent basis by way
of direct selection.
5.3 In case of State of Gujarat and Anr. Vs.
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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 emanating
from the judgment, the legal heirs of the employee would also
be entitled to grant of lump sum compensation/
compassionate appointment as per the extant policy of the
State in that regard.
5.4 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
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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, 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."
5.5 In case of Executive Engineer Panchayat (MAA & M)
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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.
5.6 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.
5.7 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
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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.
6. 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.
7. 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
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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.
8. Having regard to the observations of this Court as well
as of the Hon'ble Apex Court as referred to hereinabove, the
respondents are required to be directed to consider the case
of the petitioner in line of the law laid down by this Court as
well as the Hon'ble Apex Court. Hence, the following
directions are passed:-
(i) The petitioner to prefer an elaborate representation to
the respondent no.2 within a period of two weeks from the
date of receipt of copy of this order.
(ii) Upon the respondent no.2 receiving such representation,
he shall decide the same more particularly in accordance with
law and in accordance with the observations of this Court as
well as the Hon'ble Apex Court quoted hereinabove.
(iii) Such a decision shall be taken by the respondent no.2
within a period of six weeks from the date of receipt of the
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representation.
(iv) In case the respondent no.2 holds that the petitioner is
entitled for benefits of GR dated 17.10.1988 flowing from the
services rendered by her late husband, then appropriate
disbursement including payment of pension shall be made
within a period of four week thereafter.
8.1. In case the petitioner is aggrieved by the decision which
would be taken by the respondent no.2, then it would be open
for the petitioner to take appropriate action in accordance
with law.
8.2. Needless to state that this Court has not given any
opinion on the merits of the matter and whereas, the
judgments quoted hereinabove are just to explain the position
of law to the respondent authorities.
9. With these observations and directions, the present
petition stands disposed of. Direct service is permitted.
(NIKHIL S. KARIEL,J)
Bhoomi
