Ajotiben Amrutbhai Parmar Wd/O ... vs State Of Gujarat
2023 Latest Caselaw 2294 Guj

     C/SCA/5982/2022                                      ORDER DATED: 16/03/2023




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 5982 of 2022

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 AJOTIBEN AMRUTBHAI PARMAR WD/O AMRUTBHAI MADAJI PARMAR
                           Versus
                     STATE OF GUJARAT
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Appearance:
MS SHIKHA D PANCHAL(10764) for the Petitioner(s) No. 1
NOTICE NOT RECD BACK for the Respondent(s) No. 4
NOTICE SERVED for the Respondent(s) No. 1,2,3
MS. SUMAN MOTLA, AGP for the respondent - State
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 CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                                  Date : 16/03/2023
                                   ORAL ORDER

1. The present petition is filed by the petitioner for

seeking following prayers:-

"(A) Your Lordships may be pleased to issue a writ of certiorari or any other appropriate writ, order or

direction declaring the inaction on the part of the

respondent authorities in granting and releasing the

lump sum financial assistance of Rs. 8,00,000 to the

petitioner, on the death of her husband in harness as

bad in law, being illegal and arbitrary and

discriminatory and thus violative of Articles 14, 16 and

21 of the Constitution of India;

(B) Your Lordships may be pleased to issue a writ of

C/SCA/5982/2022 ORDER DATED: 16/03/2023

mandamus or any other appropriate writ, order or

direction commanding the respondent authorities to

grant and release the lump sum financial assistance of

Rs. 8,00,000 to the petitioner, in terms of Government

Resolution dated 05.07.2011 read with Government

Resolution dated 07.04.2016 from the General

Administration Department;

(C) Pending admission and final hearing of the

present petition, Your Lordships may be pleased to

direct the respondent authorities to release the lump

sum financial assistance of Rs. 8,00,000 to the

petitioner; and

(D) Your Lordships may be pleased to pass any other

and/or further order, as deemed it, in the interest of

justice."

2.1 It is the case of the petitioner in the present

petition in nutshell that the petitioner is a widow of late

Shri Amrutbhi Madaji Parmar, who was working as

Gaurdsman in Class III (Armed) cadre in the pay band

of Rs.5200-20200 with grade pay of Rs.2000 in Company

'B', No.1 Battalion, Palanpur. While in service, he passed

away on 12.05.2021. A copy of death certificate is also

annexed with the petition, which confirmed the death of

C/SCA/5982/2022 ORDER DATED: 16/03/2023

the employee. It is also further the case of the petitioner

that Shri Amrutbhi Madaji Parmar was initially

appointed as part time Home Guard in Border Wing

Home Guard w.e.f. 17.08.1982.

2.2 Thereafter, Border Wing Home Guards approached

this Court by way of filing writ petitions, being Special

Civil Application No.10862 of 2003 and other cognate

matters for seeking directions to the State to evolve fair,

just and reasonable conditions of service and to grant

service benefits, like fixation of pay, leave, overtime,

medical allowance, travelling allowance, retirement

benefits like provident fund, pension and gratuity and to

declare them as permanent and full time members of the Border Wing Home Guards with all the consequential

benefits.

2.3 The Court has allowed the petition by judgment

dated 09.02.2005, and ordered the State Government to

grant all the benefits admissible to the servants with

effect from 30.07.2003 with a further direction to absorb

them retrospectively from the same date.

C/SCA/5982/2022 ORDER DATED: 16/03/2023

2.4 It is the case of the petitioner that the aforesaid

decision dated 09.02.2005 of the learned Single Judge

was challenged by the State Authorities by way of filing

Letters Patent Appeals, being Letters Patent Appeal No.

712 of 2005 in Special Civil Application No.10862 of

2003 and other cognate appeals, the Hon'ble Division

Bench has decided those LPAs by judgment and order

dated 06.04.2011 and passed certain directions. Pursuant

to the directions in Special Civil Application as well as

in the Letters Patent Appeals and in view of the

Government Resolution dated 19.04.2012 from the Home

Department by officer order date 05.07.2012, the

respondent No.2 Commandant General appointed 106

Home Guards, including the husband of the petitioner, as Naik (Class II Armed) in the pay band of Rs.5200-20200

with grade pay of Rs.2000 with retrospective effect from

30.07.2003.

2.5 It is the case of the petitioner that her husband -

Amrutbhi Madaji Parmar has served for the total period

of 38 years and 9 months and the petitioner has relied

on the Government Resolution dated 05.07.2011 for

providing the lump sum financial assistant to the

C/SCA/5982/2022 ORDER DATED: 16/03/2023

dependent families of Class III and Class IV employees,

which was subsequently amended by Resolution dated

07.04.2016, by which the financial assistance was

replaced by uniform financial assistant of amount of Rs.8

lakhs and other conditions remaining the same in the

Government Resolution dated 05.07.2011.

2.6 Further, it is also averred in the petition that

Battalion Commandant No.1, Palanpur has also

recommended and opined that by communications dated

19.08.2021, the present petitioner - widow of late Shri

Amrutbhi Madaji Parmar is entitled to receive lump sum

compensation as he has considered the affidavit, death

certificate, etc., produced by the petitioner.

2.7 It is also the case of the petitioner that in the case

of similarly situated persons i.e. Shri Gajendrasinh H.

Solanki and Shri Dipsinh J. Solanki, the compensation

was paid.

3. Heard learned advocate Ms. Shikha D. Panchal for

the petitioner and learned Assistant Government Pleader

Ms. Suman Motla for the respondent - State.

C/SCA/5982/2022 ORDER DATED: 16/03/2023

4.1 The main contention of the petitioner is pursuant to

the abovementioned aspect and she has relied on the

effect that when Government Resolution, which is

applicable in the case of similarly situated persons, no

differential treatment can be awarded to the present

petitioner. Moreover, she has also drawn my attention

towards earlier order passed by this Court in Letters

Patent Appeal No.712 of 2005 in Special Civil

Application No.10862 of 2003 and other cognate appeals

and submitted that when the service of the petitioner

was regularized by the order of the authority concerned,

then there is no reason for not granting any benefit to

the present petitioner.

4.2 She has further relied upon the judgment of

Division Bench of this Court in the case of State of

Gujarat Versus Nathabhai Ghemarbhai Parmar rendered in Letters Patent Appeal No.1234 of 2017 in Special

Civil Application No.1795 of 2013 and allied matters dated 04.08.2017, whereby the daily wager is granted benefits by Government Resolution dated 05.07.2011,

which was subsequently amended by Resolution dated

C/SCA/5982/2022 ORDER DATED: 16/03/2023

07.04.2016, and therefore, she has prayed to allowed this

petition by directing the respondent - authority to grant

the lump sum financial assistant of Rs.8 lakhs to the

petitioner within stipulated period of time.

5.1 Per contra, learned AGP Ms. Suman Motla for the respondent - State has drawn my attention towards the

affidavit-in-reply and more particularly paras 8, 10 & 11

is relevant of the said reply, and has submitted that

since the husband of the petitioner was not appointed

through the prescribed recruitment process, therefore, he

is not entitled to get the lump sum financial assistant,

and therefore, it is not sanctioned.

5.2 She has further submitted that as per the case of

the respondent, the petitioner is not eligible for

consideration of lump sum financial assistance, and

therefore, she has prayed that the present petition is

required to be dismissed.

6.1 I have heard learned advocates appearing for the

respective parties. I have considered the rival contentions

made at the Bar. I have perused the record and

C/SCA/5982/2022 ORDER DATED: 16/03/2023

proceedings. I have considered the fact that the services

of the husband of the petitioner and similarly situated

home guards were regularized by order dated 05.07.2012,

which is passed by the Commandant General -

respondent No.2, not only that in the judgment and

order passed in Special Civil Application No.10862 of

2003 and other cognate matters, which is carried in the

Letters Patent Appeal No.712 of 2005, is also dismissed

with some relevant observations and moreover, the

provisions of Government Resolution, which is pursuant

to the benefit of the employee, who is died during

service, is granted, and accordingly, the authority has

considered the case of the two other similarly situated

employees by orders dated 08.01.2021 and of the year 2019, it seems that Shri Gajendrasinh H. Solanki and

Shri Dipsinh J. Solanki, who were also working as Home

Guard Class-III in same Battalion, in whose case,

compensation were granted, and therefore, there is no

reason to discriminate the present petitioner.

6.2 Moreover, considering the judgment in the case of

Nathabhai Ghemarbhai Parmar (supra) , wherein the

Division Bench of this Court has also considered for such

C/SCA/5982/2022 ORDER DATED: 16/03/2023

benefit, I am of the opinion that the case of the

petitioner deserves consideration and the present petition

is allowed accordingly.

6.3 The respondent - Authority is directed to consider

the case of the petitioner and pay the amount of Rs.8

lakhs as per Government Resolution 07.04.2016 to the

present petitioner towards financial assistance, within a

period of 10 weeks from today.

7. With above observation and direction, the present

petition is disposed of.

       Direct service is permitted.              .




                                                        (SANDEEP N. BHATT,J)
DIWAKAR SHUKLA