Gujarat High Court
Kalaji Becharji Parmar vs State Of Gujarat on 1 February, 2023
Bench: A.Y. Kogje
C/SCA/21633/2022 JUDGMENT DATED: 01/02/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 21633 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.Y. KOGJE Sd/-
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1 Whether Reporters of Local Papers may be allowed NO
to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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KALAJI BECHARJI PARMAR
Versus
STATE OF GUJARAT
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Appearance:
MR MURALI N DEVNANI(1863) for the Petitioner(s) No. 1,2
MR ADITYA PATHAK, AGP for the Respondent(s) No. 1,2,3,4
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CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE
Date : 01/02/2023
ORAL JUDGMENT
1. RULE returnable forthwith. Learned AGP waives service of
notice of rule for and on behalf of the respondents - State.
2. This petition under Article 226 of the Constitution of India
is filed for the following reliefs :
C/SCA/21633/2022 JUDGMENT DATED: 01/02/2023
"(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
directing the respondents to release the benefits of 300 days
unavailed leave encashment in favour of the petitioners with
12% interest per annum.
(C) Your Lordships may be pleased to direct the
respondents to revise the pension as well as gratuity
calculating from the date of initial appointment of the
petitioners release the same along with arrears and 12%
interest."
3. Learned advocate for the petitioners submitted that the
petitioners were appointed and had been working for more than
three decades as Daily Wagers with the respondent department
and considering their continuous service they claimed
entitlement to leave encashment as well as pension and gratuity.
4. Pursuant to the notice issued by this Court, learned AGP
has drawn attention of this Court to a very recent Government
Resolution dated 24th January 2023 and a Circular dated 7 th
October 2022 in connection with the aforesaid issues.
5. Vide Government Resolution dated 24th January 2023 of
the Roads & Buildings Department, Sachivalaya, Gandhinagar,
the State Government has resolved as under :
C/SCA/21633/2022 JUDGMENT DATED: 01/02/2023
"At the end of active deliberations, subject to the following
conditions, it is hereby prescribed to pay gratuity to the
daily wagers working in offices under various departments
of the State within the maximum limit of 33 (thirty-three)
years as per the Resolution dated 21.10.2020 of this
Department :
(1) The concerned Department will have to check the
eligibility of the daily wagers as per the Payment of Gratuity
Act, 1972, of the Government of India.
(2) The order of this Department will also apply to the
cases of retired/deceased daily wagers/work-charge
employees after issuance of the resolution dated 24.03.2006
of this Department.
(3) The concerned Department will have to pay gratuity to
the daily wagers/work-charge employees, for the services
rendered before becoming permanent, upon verifying their
eligibility as per the resolution dated 21.10.2020 of this
Department. Whereas, the payment of gratuity for the
pensionable services after becoming permanent will be
made by the Director, Pension & Provident Fund Office. The
Department will ensure that the gratuity is paid within the
maximum limit of 33 years by counting both the services
together and in any case no double payment is made.
(4) The payments made to the daily wagers/work-charge
employees under the Resolution dated 21.10.2020 of this
C/SCA/21633/2022 JUDGMENT DATED: 01/02/2023
Department before issuance of this order will not be
reopened."
6. In case of leave encashment, vide Circular dated 7 th
October 2022 the Government has also taken a policy decision
which would reflect as under :
"According to the decision of the Supreme Court, since the
retiral benefits given to the daily wagers under the
resolution dated 17.10.1988 also includes the benefit of
leave encashment, therefore the daily wagers are entitled to
the benefit of leave encashment as per Clause (5) of the
State Litigation Policy of the Government. The instructions in
this regard are circulated after consultation and as per the
approval received through the informal note dated
3.10.2022 of the Finance Department.
With regard to the various claims filed before the Hon'ble
Court, after verifying the service record of the petitioners -
daily wagers and after calculating as per rules and the
policy of the Government applicable to the regular services,
the benefit of encashment of earned leaves (within the
maximum limit of 300 earned leaves) shall be paid in the
following terms :
(1) The petitioners - daily wagers who have retired and
completed 70 years as on 1.10.2022 shall be paid latest by
31.10.2022.
C/SCA/21633/2022 JUDGMENT DATED: 01/02/2023
(2) Rest of the petitioners - daily wagers shall be paid
within a period of three months, i.e. on or before
31.12.2022."
7. In view of the aforesaid position, the Court deems it
appropriate to direct the respondents to undertake scrutiny of
the cases of both the petitioners herein, and upon such scrutiny
if they are found to be entitled, then a proposal shall be
forwarded to the State authorities in this regard and thereafter
the State authorities shall consider proposal of both the
petitioners expeditiously and in consonance with the State
policy.
8. It is reported that in many of such matters, the concerned
department has already moved a proposal to the State
Government in this regard. However, wherever such proposal is
not moved, the same shall be moved by the concerned
department within a period of four weeks from the date of receipt
of copy of writ of this order.
9. The aforesaid exercise shall be completed within a period of
eight weeks from today.
10. Rule made absolute to the aforesaid extent. Direct service
is permitted.
(A.Y. KOGJE, J.)
/MOINUDDIN
