Gujarat High Court

Harjibhai Amarabhai Parmar vs State Of Gujarat on 4 July, 2023

Bench: Mauna M. Bhatt

     C/SCA/11039/2023                             JUDGMENT DATED: 04/07/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 11039 of 2023


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

                              Date : 04/07/2023

                             ORAL JUDGMENT

1. Rule returnable forthwith. Learned Assistant Government

Pleader waives service of notice of Rule on behalf of the respondent

- State.

C/SCA/11039/2023 JUDGMENT DATED: 04/07/2023

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) 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 payment of 300 days 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.

(D) 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

C/SCA/11039/2023 JUDGMENT DATED: 04/07/2023

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 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 is 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:

C/SCA/11039/2023 JUDGMENT DATED: 04/07/2023

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

5. In relation to leave encashment vide circular dated

C/SCA/11039/2023 JUDGMENT DATED: 04/07/2023

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 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 :