Narsangbhai Devjibhai Parmar vs State Of Gujarat
2023 Latest Caselaw 2244 Guj

       C/SCA/982/2023                                             ORDER DATED: 14/03/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 982 of 2023

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                        NARSANGBHAI DEVJIBHAI PARMAR
                                   Versus
                             STATE OF GUJARAT
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Appearance:
MR PH PATHAK & MS REENA M KAMANI, ADVOCATES for the Petitioner
MS SUMAN MOTLA, AGP for the Respondents - State
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 CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                                     Date : 14/03/2023

                                      ORAL ORDER

1. The present petition is filed, for getting the

benefits in lieu of compassionate appointment, by the son of

late employee - Shri Devjibhai Kalubhai Parmar, who

rendered 33 years of service and died in service.

2. Heard learned advocates.

3.1 Learned advocate for the petitioner has submitted

that the father of the petitioner Shri Devjibhai Kalubhai

Parmar was working under respondent No.2 authority and

has died on 28.04.2016 while in service. He had worked with

the respondents authorities from 21.03.1983 to 28.04.2016.

3.2 The petitioner has therefore approached

C/SCA/982/2023 ORDER DATED: 14/03/2023

respondents No.2 and 3 by praying for compensation in lieu

of compassionate appointment on the basis of the Government

policy. However, respondents authorities vide impugned

communications dated 15.10.2022 and 04.11.2022 have denied

the compensation to the petitioner on the ground that the

Government Resolution dated 05.07.2011 is not applicable to

the daily wager employee. He has also submitted that father

of the petitioner died on 28.04.2016 while in service.

3.3 He has further submitted that after competing 33

years of service with the respondents authorities, after the

death of his father, his mother was getting family pension

and thereafter, the mother of the petitioner has also passed

away on 08.06.2019 and as the petitioner was not paid

amount of leave encashment, he has filed separate petition

being Special Civil Application No.19629 of 2020 before this

Court, which is pending.

3.4 Leaned advocate for the petitioner has relied upon

the Government Resolutions dated 05.07.2011, 13.10.2015 and

07.04.2016 to show his entitlement for the amount of

compensation in lieu of compassionate appointment. He has

drawn the attention of this Court towards his application

dated 05.10.2022 made before the respondents authorities to

consider his case for compensation. He has further submitted

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that this Court has considered identical issue in Special Civil

Application No.1795 of 2013 dated 07.10.2016 and the

Division Bench of this Court has also considered the case for

permanent daily wager employees in Letters Patent Appeal

No.1234 of 2017 dated 04.08.2017 and earlier also, same

issue has been considered by the Division Bench of this

Court reported in 2011(2) GLR 1290. The relevant

observations made by the Division Bench of this Court in

Letters Patent Appeal No.1234 of 2017 in paragraphs 8 and

9 are relevant and therefore the same are reproduced as

under :

                     " 8.         In      this     case,       it     is     not     in     dispute
                     that     late father         of    the         respondent       herein      was
                     initially appointed               as      a          daily     wager        and
                     thereafter,         his services        were         regularized vide order

dated 28.03.2008. A copy of such order is also placed on record. As per the terms of the said order, it is made clear that late father of the respondent herein would be entitled to the benefits of regular employees including retiral benefits, seniority, etc. There is also specific observation that in the event of a proposal for resignation, notice of resignation also should be issued before tendering the resignation. Further, we have also perused the Government Resolution dated 5.7.2011. While it is true that para 3 clause 2 of the Government Resolution dated 5.7.2011 states that such scheme of paying compensation amount is applicable to the employees, who

C/SCA/982/2023 ORDER DATED: 14/03/2023

are regularly recruited persons, but there is a specific clause which excludes applicability of the scheme to the category of persons namely, daily wager, casual worker, apprentice, adhoc, contract or reemployment. If both the clauses are conjointly read, it is clear that this scheme is to be extended to all the persons, who are on regular services on the date of death of the deceased employee. As the scheme itself is a beneficial scheme for the employees, who die in harness, the respondent herein cannot be denied the same on the ground that late father of the respondent was initially recruited as a daily wager. While it is also true that initially late father of the respondent was appointed as a daily wager in the year 1981, after considering his length of services, his services were regularized with effect from 1.1.1986, extending all the benefits payable to regular employees vide order dated 28.3.2008 passed by the appellant No.2 herein. If the conditions of regularisation order given while appointing the late father of the respondent herein are considered, with reference to various clauses under the scheme of the Government Resolution dated 5.7.2011, we are of the view that the respondent herein is entitled for all the benefits. Moreover, the Division Bench of this Court in the judgment in the case of State of Gujarat & Anr. V. Mahendrakumar Bhagvandas & Anr., reported in 2011(2) GLR 1290 has held in paragraph No.5 as under :

 C/SCA/982/2023                                                 ORDER DATED: 14/03/2023




                 "5.     ...Once     the    employees              concerned            were,

                 in fact,         treated      for          all         purposes           as

                 permanent employees                 in         terms       of          G.R.

                 dated      17.10.1988, any discrimination or denial of

                 benefits for a segment              of           such      employees,

                 who were subsequently                rebranded             as         "daily

wager" (rojamdar) by G.R. dated 18.7.1994, could

not be rationally explained and could not

be countenanced in the face of Articles 14 and 16

of the Constitution. Nor can the State Government

legally take away the rights conferred and

benefits, already accorded to the employees

concerned by or under a subsequent government

resolution, which expressly supersedes earlier

instructions and not earlier G.R. dated 17.10.1988

by which the benefits were accorded to the

employees. It also sounds absurd and baseless that

employee employed on daily wage basis for 15

years would be made permanent under G.R. dated

17.10.1988 but subsequently re-branded and treated

as a daily wager. The submission of learned AGP

that such employees had to continue as daily wage

employee, with limited benefits in terms of

subsequent G.R. dated 18.7.1994 and that they

were at best "permanent daily wage employees", is

contradictory and has no backing of any

legal provision or precedent. Therefore, there is no

reason to interfere with the impugned

common judgment except for the

C/SCA/982/2023 ORDER DATED: 14/03/2023

clarification made hereunder."

9. Learned Assistant Government Pleader has placed reliance on the judgment of the learned Single Judge of this Court in the case of Govindbhai Madhabhai Vaghela Vs. Director, Pension and Provident Fund & Anr.

Reported in 2004(1) G.L.H. page 129 where the learned Single Judge has held that a daily wager cannot be said to be holding the post in the State Government and in view of the statutory rules, service rendered as daily wage employee cannot be treated as pensionable service nor can such service be counted for computation of pension. Having regard to the facts, we are of the view that said judgment relied on by the learned Assistant Government Pleader would not have any assistance in support of his case."

3.5 Learned advocate for the petitioner therefore

submits that the case of the petitioner is squarely covered by

the Government Resolution as well as by the decision of the

Division Bench of this Court. He has submitted that this

petition may be allowed.

4.1 Per contra, Ms.Suman Motla, learned AGP for the State has submitted that the Government cannot grant the

benefit to the petitioner and has drawn attention towards

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Clause 3 of the said Government Resolution dated 05.07.2011

which stipulates that the Rojamdar casual labourer would not

be provided said benefit as per the Government Resolution

dated 05.07.2011 to grant lump-sum compensation in lieu of

compassionate appointment.

4.2 She has further submitted that the petitioner's

father has worked as daily wager with the respondents

authorities and has passed away while he was in service and

therefore, the petitioner would not be entitled to claim lump-

sum compensation under the Government Resolution dated

05.07.2011. She has drawn attention towards the order

passed in Special Lave Appeal No.7229 of 2022 dated

01.09.2022 and has submitted that any daily wager /

employee granted the benefit of the Government Resolution

dated 17.10.1988 would not confer on such employee or daily

wager status of permanent or regular employee.

4.3 The petitioner's father was employed as daily

wager with the respondent authorities and he was granted

benefits under the Government Resolution dated 17.10.1988

and therefore, she has opposed this petition. She has

submitted that the petitioner has not mentioned Government

Resolution dated 13.10.2015 in his representation before the

Authority and therefore, the authority has not taken into

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consideration the said Government Resolution while rejecting

the claim of the petitioner. She has submitted that this

petition may be rejected.

5. Considering the rival submissions of the learned

advocates for the respective parties and also considering the

fact that the father of the petitioner was serving with the

respondents department for more than 33 years. The

department has already granted benefits as per the

Government Resolution dated 17.10.1988 to the father of the

petitioner and considering the decision of the Division Bench

in Letters Patent Appeal No.1234 of 2017, more particularly

paragraphs 8 and 9 thereof, which is squarely applicable to

the present case and therefore, this petition needs to be

allowed.

6. For the reasons recorded above, the following order

is passed.

6.1            This petition is allowed.



6.2            The respondents are directed to pay compensation

to the petitioner in lieu of compassionate compensation as per

Government Resolutions dated 05.07.2011, 13.10.2015 and

07.04.2016, with interest at the rate of 8% p.a., within a

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period of eight weeks from today.

Direct service is permitted.

(SANDEEP N. BHATT,J) M.H. DAVE