Gujarat High Court
Pasabhai Valjibhai Makwana vs State Of Gujarat on 5 May, 2023
Bench: Mauna M. Bhatt
C/SCA/7978/2023 JUDGMENT DATED: 05/05/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 7978 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE MAUNA M. BHATT sd/-
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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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PASABHAI VALJIBHAI MAKWANA
Versus
STATE OF GUJARAT
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Appearance:
MR MURALI N DEVNANI(1863) for the Petitioner(s) No.
1,10,11,12,13,2,3,4,5,6,7,8,9
MR ADITYA PATHAK, AGP for the Respondent - State
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CORAM:HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Date : 05/05/2023
ORAL JUDGMENT
1. Rule returnable forthwith. Learned Assistant
Government Pleader waives service of notice of Rule on
C/SCA/7978/2023 JUDGMENT DATED: 05/05/2023
behalf of the respondent - State.
2. This petition under Article 226 of the Constitution of
India is filed with the following prayers: -
"18. The petitioner, therefore, humbly
pray that:
(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 favor of
the petitioners with 12% interest per
annum.
(C) Your Lordships may be pleased to
direct the respondents to revise the
gratuity of the petitioners by taking into
consideration their entire period of
service from their date of appointment till
their date of retirement in the interest of
justice.
(D) Your Lordships may be pleased to
award any such other and further relief
C/SCA/7978/2023 JUDGMENT DATED: 05/05/2023
as may be deemed just and expedient in
the interest of justice."
3. Heard learned advocate Mr.Murali Devnani for the
petitioners and learned Assistant Government Pleader Mr.
Aditya Pathak for the respondent - State.
4. Learned advocate for the petitioners 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 petitioners 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 He 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 petitioners from the
date of their appointment, is no more res integra in view
of decision of Hon'ble Supreme Court dated 01.09.2022, in
C/SCA/7978/2023 JUDGMENT DATED: 05/05/2023
Special Leave Petition (C) No. 7229 of 2022. Learned
advocate for the petitioners submitted that present
petitioners were working with the respondent No. 3
department with more than 3 decades and they all had
retired upon attaining the age of superannuation and
therefore considering their continuous service they are
entitled for the benefits of leave encashment as well as
pension and gratuity.
4.2 He 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,
C/SCA/7978/2023 JUDGMENT DATED: 05/05/2023
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
07.10.2022 the Government has also taken a policy
decision which reads as under: -
C/SCA/7978/2023 JUDGMENT DATED: 05/05/2023
"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."
C/SCA/7978/2023 JUDGMENT DATED: 05/05/2023
6. The above factual position could not be controverted
by learned Assistant Government Pleader for the
respondent - State.
7. In view of the abovesaid position, this Court deems it
appropriate to direct the respondents to undertake
scrutiny of individual cases of each of the petitioners
herein, and upon such scrutiny, if they are found eligible
then a proposal shall be forwarded to the State Authorities
in this regard and thereafter, the State Authority shall
consider proposal of each of the petitioners herein
expeditiously and in consonance with the State policy.
8. 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 eight weeks
from the date of receipt of copy of writ of this order.
C/SCA/7978/2023 JUDGMENT DATED: 05/05/2023
9. The aforesaid exercise shall be completed within a
period of twelve weeks from today.
10. With the aforesaid, the petition stands disposed of.
Rule made absolute to the aforesaid extent.
Direct service is permitted.
sd/-
(MAUNA M. BHATT,J)
SHRIJIT PILLAI
