Gujarat High Court
Nagjibhai Karsanbhai Desai vs State Of Gujarat on 30 January, 2023
Bench: A.Y. Kogje
C/SCA/26320/2022 JUDGMENT DATED: 30/01/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 26320 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 26924 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 26926 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 26938 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 7 of 2023
With
R/SPECIAL CIVIL APPLICATION NO. 575 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.Y. KOGJE Sd/-
================================================================
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 ?
================================================================
NAGJIBHAI KARSANBHAI DESAI
Versus
STATE OF GUJARAT
================================================================
Appearance:
MR MURALI N DEVNANI(1863) for the Petitioner(s) No. 1,2,3,4,5,6
NOTICE NOT RECD BACK for the Respondent(s) No. 6
MR ADITYA PATHAK, AGP for the Respondent(s) No. 1,2,3,4,5
================================================================
CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE
Page 1 of 6
Downloaded on : Mon Feb 06 20:31:02 IST 2023
C/SCA/26320/2022 JUDGMENT DATED: 30/01/2023
Date : 30/01/2023
COMMON ORAL JUDGMENT
1. RULE returnable forthwith. Learned AGP waives service of
notice of rule for and on behalf of the respondents - State.
2. This group of petitions are filed claiming leave encashment
and certain retiral benefits which have not been granted to the
petitioners.
3. Considering the similarity of facts and identical issues
raised in each of these petitions, all these petitions are taken up
for joint hearing and disposal.
4. The facts are recorded from the lead matter being Special
Civil Application No.26320 of 2022.
5. By way of this petition, the petitioners are 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
directing the respondents to release the benefits of 300 days
unavailed leave encashment in favour of the petitioners with
12% interest per annum.
C/SCA/26320/2022 JUDGMENT DATED: 30/01/2023
(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."
6. Learned advocate for the petitioners submitted that each of
the petitioners were appointed and had been working for
approximately three decades as Daily Wagers with the
respondent departments and considering their continuous
service they claimed entitlement to leave encashment as well as
pension and gratuity.
7. 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.
8. Vide Government Resolution dated 24th January 2023, the
Government has resolved as under :
"At the end of active deliberations, subject to the following
conditions, it is hereby prescribed to pay gratuity to daily
wagers working in offices under various departments of the
State within the maximum limit of 33 (thirty-three) years as
per Resolution dated 21.10.2020 of this Department :
C/SCA/26320/2022 JUDGMENT DATED: 30/01/2023
(1) The concerned Department will have to check the
eligibility of daily wagers as per the Payment of Gratuity
Act, 1972 of the Government of India.
(2) This order of this Department will also apply to cases
of retired/deceased daily wagers/work charge employees
of establishment (expenditure) after issuance of this
resolution dated 24.03.2006
(3) The concerned Department will have to pay gratuity of
services before getting permanent by verifying the eligibility
of daily wagers/work charge employees of establishment
(expenditure) as per resolution dated 21.10.2020 of this
Department. Whereas, the payment of gratuity for
pensionable services after becoming permanent will be
made by the Director, Pension & Provident Fund Office. The
Department will ensure that gratuity is paid within the limit
of 33 years combining both services together & no double
payment is made.
(4) Before the issuance of this order, cases of payment
made to daily wagers/work charge employees of
establishment (expenditure) under Resolution dated
21.10.2020 of this Department will not be revived."
9. 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 :
C/SCA/26320/2022 JUDGMENT DATED: 30/01/2023
"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.
(2) Rest of the petitioners - daily wagers shall be paid
within a period of three months, i.e. on or before
31.12.2022."
10. In view of the aforesaid position, the Court deems it
appropriate to direct the respondents to undertake scrutiny of
individual cases of each of the petitioners herein, and upon such
C/SCA/26320/2022 JUDGMENT DATED: 30/01/2023
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 each of such
petitioners expeditiously and in consonance with the State
policy.
11. 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.
12. The aforesaid exercise shall be completed within a period of
eight weeks from today.
13. With the aforesaid, petitions stand disposed of. Rule made
absolute to the aforesaid extent. Direct service is permitted.
(A.Y. KOGJE, J.)
/MOINUDDIN
