Gujarat High Court
State Of Gujarat vs Raysingbhai Andrabhai Baria ... on 16 January, 2023
Bench: Niral R. Mehta
C/LPA/35/2023 ORDER DATED: 16/01/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 35 of 2023
In R/SPECIAL CIVIL APPLICATION NO. 16885 of 2020
With
CIVIL APPLICATION (FOR STAY) NO. 2 of 2022
In R/LETTERS PATENT APPEAL NO. 35 of 2023
==========================================================
STATE OF GUJARAT
Versus
RAYSINGBHAI ANDRABHAI BARIA SINCE DECD. THROUGH LEGAL HEIR
GANGABEN W/O RAYSINGBHAI BARIA
==========================================================
Appearance:
MR. MANAN MEHTA, ASSISTANT GOVERNMENT PLEADER for the
Appellant(s) No. 1,2,3,4
MR. DIPAK DAVE for the Respondent(s) No. 1
==========================================================
CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIA
and
HONOURABLE MR. JUSTICE NIRAL R. MEHTA
Date : 16/01/2023
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE N.V.ANJARIA)
Heard learned Assistant Government Pleader Mr. Manan Mehta for
the applicants and learned advocate Ms. Nidhi Trivedi on behalf of
learned advocate Mr. Dipak Dave for the respondent.
2. The challenge in this Letters Patent Appeal under Clause 15 of the
Letters Patent is addressed to judgment and order dated 18.2.2022 of
learned single Judge, whereby the Special Civil Application filed by the
respondent-original petitioner came to be allowed.
2.1 The entire service period of husband the petitioner from 24.3.1981
to 31.01.2008 was held to be qualified for the purpose of grant of
pensionary benefits. It was directed that counting such period, the
C/LPA/35/2023 ORDER DATED: 16/01/2023
benefits should be given to the deceased husband of the petitioner as they
flow from the Resolution dated 17.10.1988. Also directed was the
fixation of pension and passing of consequential orders.
3. Noticing the prayer in the Special Civil Application, what was
prayed was to declare that the petitioner was entitled to pensionary
benefits from the date of initial appointment and action of the respondents
in not reckoning the period from initial date was unjust and illegal.
3.1 The petitioner served as Rojamdar in the office of respondent-
Executive Engineer, Irrigation Department. He joined service on
24.3.1981. According to the case of the petitioner, her husband served on
the post continuously and became entitled to the benefits under
Resolution dated 17.10.1988. It appears that at one point of time,
alongwith other employees, the services of the husband of the petitioner
came to be terminated. Whereafter, in the proceedings filed before this
court, being Special Civil Application No. 4691 of 1999, this court set
aside the termination order and the husband of the petitioner was
reinstated in the service with continuity benefit but without back wages.
The Letters Patent Appeal filed thereagainst came to be dismissed.
3.2 Th petitioner requested the authorities to grant the benefits of
continuity of service including fixation of pension to her husband from
initial date in light of above order and service tenure. As nothing was
yielded, the petitioner approached this court.
4. Learned single Judge while granting reliefs to the petitioner relied
on the decision of the Division Bench of this court in Executive
Engineer, Panchayat vs. Samudabhai Jyotibhai Bhedi & Others
[ 2017 (4) GLR, 2952]. Learned single Judge quoted from Samudabhai
C/LPA/35/2023 ORDER DATED: 16/01/2023
Jyotibhai Bhedi (supra) to observe,
"10. ...As it likely to happen in many cases and appears to have
happened in the present case, actual order of regularization may not be
passed immediately upon an employee having put in 10 years of
continuous service for variety of reasons such as inaction on the part of
the employee to press for such benefits, verification needed at the hands
of the administration and sometimes, sheer inertia may delay actual
regularization. Would that mean, the benefit of pension would be denied
to an employee because after the belated regularization he did not have
sufficient time to render 10 years of qualifying service? The answer has
to be in the negative."
4.1 Learned single Judge noticed that the law was settled by more than
one decision of this court,
"11. In the past, same or similar issues have traveled to the Division
Benches in Letters Patent Appeals. Learned Single Judge in case of
Tribhovanbhai Jerambhai v. Dy. Executive Engineer, Sub-Division, R &
B Deptt. & Anr. reported in 1998 (2) GLH 1, held that once a daily rated
workman is treated to be permanent in terms of resolution dated 17.10.1988,
his entire continuous service from the date of entry till retirement including his
services rendered prior to the date of his regularization has to be taken into
consideration for the purpose of computing pension or for making pension
available to the employee. This decision was carried in appeal by the employer
before the Division Bench. The Division Bench by order dated 04.04.2003
noted that the appeal had become time barred. Even on merits, the Division
Bench was not inclined to take a different view.
12. In case of Surendranagar Dist. Panchayat and Anr. v. Umarkhan Alikhan
Malek and ors., Division Bench of this Court in its judgment dated 29.03.2016
rendered in Letters Patent Appeal No.2047 of 2004, considered the issue
where the employee had sought pensionary benefits having worked from the
years 1978 to 1991. The learned Single Judge applying the formula of section
25B of the Industrial Disputes Act held that the employee had put in
continuous service for more than 10 years as a daily wager. He was entitled to
benefit of Government Resolution dated 17.10.1988 including the benefits of
pension. The administration had merely contended that the workman had not
put in actual 10 years of service after regularization before he can seek
pensionary benefits.
13. Yet again, the Division Bench of this Court in case of Chhaganbhai
Ranchhodbhai Rathod v. Dy Executive Engineer, vide judgment dated
C/LPA/35/2023 ORDER DATED: 16/01/2023
06.08.1998 rendered in Letters Patent Appeal No.1495 of 1997, took up the
issue of pensionary benefits of a daily wager in terms of Government
Resolution dated 17.10.1988. The controversy was whether the employee had
put in 10 years of service during which he had worked for not less than 240
days in every year. Learned Single Judge having rejected the petition, the
employee had filed the said Letters Patent Appeal. The Division Bench
applying the provisions of Section 25B of the Industrial Disputes Act, held
that the workman had put in such service of a minimum 10 years and
consequently granted the benefits of pension in terms of Government
Resolution dated 17.10.1988. Here also the authorities had not raised a
contention which is sought to be raised before us."
5. From the record of the case, it could be rightly observed by learned
single Judge that it was not open for the authorities even to raise the
issue of non-completion of 240 days in the year since the department
itself had in the year 2006 unequivocally found that husband of the
petitioner had completed stipulated number of days to earn the benefit of
continuity from the date of appointment, that is 24.3.1981.
6. This court is entirely in agreement with the reasons supplied and
the view taken by learned single Judge.
7. The Letters Patent Appeal does not book any merit in calling in
question the order of learned single Judge. The Appeal is summarily
dismissed.
In view of dismissal of Letters Patent Appeal, no orders are
required to be passed in the Civil Application. It stands disposed of
accordingly.
(N.V.ANJARIA, J)
(NIRAL R. MEHTA,J)
C.M. JOSHI
