Vajesinh Udesinh Waghela vs State Of Gujarat
2023 Latest Caselaw 1406 Guj

     C/SCA/14542/2021                            ORDER DATED: 09/02/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD


              R/SPECIAL CIVIL APPLICATION NO. 14542 of 2021


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                        VAJESINH UDESINH WAGHELA
                                  Versus
                            STATE OF GUJARAT
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Appearance:
KRISHNAN M GHAVARIYA(8133) for the Petitioner(s) No. 1
MS NIRALI SARDA, AGP for the Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 2,3,4
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 CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE

                             Date : 09/02/2023

                            ORAL JUDGMENT

1. RULE returnable forthwith. Learned AGP waives service of notice of rule for and on behalf of the respondent - State.

2. The present petition is filed claiming leave encashment which has not been granted to the petitioner.

3. By way of this petition, the petitioner is claiming for the following reliefs :

"(A) Your Lordships may be pleased to admit the petition.

(B) Your Lordships may be pleased to allow the petition by issuing a writ of mandamus or any other appropriate writ, direction and/or order in the nature of mandamus quashing and setting aside the order dated 9/10.1.2021

C/SCA/14542/2021 ORDER DATED: 09/02/2023

and thereby directing the respondents to release the benefits of 300 days unavailed privilege leave in favour of the petitioner as envisaged in the Government Resolution dated 17.10.1988 with 12% interest per annum."

4. Learned advocate for the petitioner submitted that the petitioner was initially appointed as Daily Wager on 1.5.1983 with the respondent department and after rendering services for more than three decades, he retired from service on 30.6.2019. Considering his continuous service, he claimed entitlement to leave encashment.

5. Pursuant to the notice issued by this Court, learned AGP has drawn attention of this Court to a Circular dated 7 th October 2022 in connection with the aforesaid issue.

6. In case of leave encashment, vide Circular dated 7 th October 2022 of the Roads & Buildings Department, Gandhinagar, the State Government has also taken a policy decision which would reflect as under :

"According to the judgment of the Supreme Court dated 1.9.2022 in SLP (C) No.7229 of 2022 and since the resolution of the Roads & Buildings Department dated 17.10.1988 also provides that the retirement benefits granted to the daily wagers include the benefit of 'encashment of leave', as per Clause (5) of the State Litigation Policy of the State Government, the daily wagers

C/SCA/14542/2021 ORDER DATED: 09/02/2023

are entitled to the benefit of leave encashment. The instructions in this regard are circulated after consultation and approval received through the informal note dated 3.10.2022 of even number file of the Finance Department.

With regard to the various claims filed before the Hon'ble Court, the petitioners - daily wagers shall be paid leave encashment (within the maximum limit of 300 leave) for the regular services as per the policy of the Government by calculating leave as per the rules and after verifying their service record, in the following terms :

(1) Payment in case of retired petitioners - daily wagers who have completed 70 years as on 1.10.2022 shall be made latest by 31.10.2022.

(2) Payment to rest of the retired petitioners - daily wagers shall be made within a period of three months, i.e. latest by 31.12.2022."

7. Learned AGP has also placed on record a proposal, in the form of an Office Order No.81 of 2022 dated 28.12.2022, which is already forwarded by the Executive Engineer, Roads & Buildings Department, Ahmedabad, to the Additional Engineer, Roads & Buildings Department, Ahmedabad, along with all the necessary documents. The same is ordered to be taken on record.

8. In view of the aforesaid position, the Court deems it appropriate to direct the respondents to undertake scrutiny of

C/SCA/14542/2021 ORDER DATED: 09/02/2023

the case of the petitioner, and upon such scrutiny if he is found to be entitled, then the State authorities shall consider proposal of the petitioner expeditiously and in consonance with the State policy.

9. In the aforesaid view of the matter, the petition stands disposed of with a direction that the proposal forwarded by the Executive Engineer, Roads & Buildings Department, Ahmedabad, to the Additional Engineer, Roads & Buildings Department, Ahmedabad, be processed in accordance with law expeditiously.

10. The aforesaid exercise shall be completed within a period of eight weeks from today.

11. With the aforesaid, the petition stands disposed of. Rule made absolute to the aforesaid extent. Direct service is permitted.

(A.Y. KOGJE, J.) /MOINUDDIN