Gujarat High Court

Laljibhai Budhabhai Solanki vs Secretary, State Of Gujarat on 15 December, 2023

Author: Nikhil S. Kariel

Bench: Nikhil S. Kariel

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     C/SCA/21010/2023                              ORDER DATED: 15/12/2023

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            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 21010 of 2023

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                         LALJIBHAI BUDHABHAI SOLANKI
                                     Versus
                        SECRETARY, STATE OF GUJARAT
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Appearance:
MR UT MISHRA(3605) for the Petitioner(s) No. 1
for the Respondent(s) No. 2
MR AYAAN PATEL, 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.M.T.Mishra for learned

advocate Mr.U.T.Mishra 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 for

being granted the benefits of Government Resolution dated

17.10.1988.

3. Considering the submissions made by learned advocate

Mr.Mishra, it would appear that the case of the petitioner has

not been considered by the respondents as yet for grant of the

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said benefits. It would also appear that the petitioner has

preferred representation dated 02.11.2023 for considering the

case of the petitioner for the benefit under GR dated

17.10.1988.

4. Having regard to such a circumstance, in the considered

opinion of this Court, at this stage, ends of justice would be

met if the respondents are directed to decide the

representation preferred by the petitioner within a specific

period of time.

4.1. Learned advocate Mr.Mishra and learned AGP

Mr.Pathak would not have any objection to such a course

being taken.

5. 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.

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:-

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"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

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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.

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

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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 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

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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)

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

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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

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

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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

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

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Resolution.

8. Considering the above, 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

discussed hereinabove and whereas, the following directions

are passed:-

(i) The representations preferred by the petitioner dated

02.11.2023 shall be decided by the respondent no.2 within a

period of six weeks from the date of receipt of this order.

(ii) In case the petitioner is declared to be entitled for the

benefits of GR dated 17.10.1988 or such GR that may be

applicable in case of the present petitioner, then appropriate

benefits including the payment, placement etc. shall be

carried out by the respondents within a period of four weeks

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 challenge the same before the

appropriate forum in accordance with law.

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