Gujarat High Court

Khetabhai Karnabhai Bharvad vs State Of Gujarat on 1 July, 2023

Bench: Mauna M. Bhatt

     C/SCA/25059/2022                             JUDGMENT DATED: 01/07/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 25059 of 2022


FOR APPROVAL AND SIGNATURE:


HONOURABLE MRS. JUSTICE MAUNA M. BHATT
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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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                        KHETABHAI KARNABHAI BHARVAD
                                   Versus
                             STATE OF GUJARAT
==========================================================
Appearance:
MS. ARCHITA M PRAJAPATI(8241) for the Petitioner(s) No. 1
MS. NIRALI SARDA, ASST. GOVERNMENT PLEADER for the
Respondent(s) No. 1
NOTICE SERVED for the Respondent(s) No. 2
=========================================================
    CORAM:HONOURABLE MRS. JUSTICE MAUNA M. BHATT

                              Date : 01/07/2023
                              ORAL JUDGMENT

1. Rule returnable forthwith. Learned Assistant Government

Pleader waives service of notice of Rule on behalf of the

respondent - State.

C/SCA/25059/2022 JUDGMENT DATED: 01/07/2023

2. This petition under Article 226 of the Constitution of India is

filed with the following prayers: -

"(A) That this Hon'ble Court be pleased to hold and declare that the Petitioner is entitled for leave encashment of 300 days at par with other Employees of the Respondents and accordingly be pleased to direct the Respondents to pay the amount towards leave encashment to the Petitioner considering the initial date of appointment of the Petitioner as mentioned in the Pension Payment Order;

(B) That this Hon'ble Court may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction, directing to calculate and re-fix the pension and Gratuity and further be pleased to direct to pay the arrears of pension and Gratuity by considering the total length of service of the Petitioner;

(C) That this Hon'ble Court may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction, directing the Respondents to hold and declare that the Petitioner shall be paid all benefits like Transport Allowance, Travelling Allowances, Transfer Travelling Allowance, Leave Travel Concession and other benefits at par with the Permanent Employees;

(D) Pending hearing and final disposal of the present petition, Your Lordships may be pleased to direct the Respondent Authorities to forthwith consider the case of the Petitioner for extending Transport Allowance, Travelling Allowance, Transfer Travelling Allowance, Leave Travel Concession, payment of 300 days

C/SCA/25059/2022 JUDGMENT DATED: 01/07/2023

leave encashment and for the payment of arrears of Pension and Gratuity for initial years of service period considering the total length of service rendered by the Petitioner and pay the same in light of the law laid down by this Hon'ble Court and confirmed by the Hon'ble Apex Court.

(E) Any other relief which may deem fit and proper in the facts and circumstances of the case may please be granted."

3. Heard learned advocate Ms. A.M. Prajapati for the petitioner

and learned Assistant Government Pleader Ms. Nirali Sarda for

the respondent - State.

4. Learned advocate for the petitioner submitted that the

issue in the present petition pertains to grant of benefit of 300

days unavailed earned leave and not calculating the retirement

benefits of the petitioner from the date of appointment. The

prayers in relation to other benefits, if any, referred in this

petition, is not pressed at this stage.

4.1 She further pointed out that the issue involved in the

present petition which is in relation to payment of leave

encashment for 300 days leave as also counting the retirement

benefits available to the petitioner from the date of appointment,

is no more res-integra in view of decision of Hon'ble Supreme

C/SCA/25059/2022 JUDGMENT DATED: 01/07/2023

Court dated 01.09.2022, in Special Leave Petition (C) No. 7229 of

2022. Learned advocate for the petitioner submitted that present

petitioner was working with the respondent No. 2 department

with more than 3 decades and had retired upon attaining the age

of superannuation and therefore considering continuous service,

the petitioner was entitled for the benefits of leave encashment

as well as pension and gratuity.

4.2 She pointed out that in the Government Resolution dated

24.01.2023, of Road and Building Department, Sachivalaya,

Gandhingar the State Government has resolved as under:

"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

C/SCA/25059/2022 JUDGMENT DATED: 01/07/2023

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 Department before issuance of this order will not be reopened."

5. In relation to leave encashment vide circular dated

07.10.2022 the Government has also taken a policy decision

which reads 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

C/SCA/25059/2022 JUDGMENT DATED: 01/07/2023

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 :