Purshottambhai Ghughabhai ... vs State Of Gujarat
2023 Latest Caselaw 8032 Guj

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       C/SCA/8016/2023                               ORDER DATED: 02/11/2023

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              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 8016 of 2023

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               PURSHOTTAMBHAI GHUGHABHAI GHAGHRETYA
                               Versus
                         STATE OF GUJARAT
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Appearance:
MR. VISHAL P THAKKER(7079) for the Petitioner(s) No. 1
NOTICE SERVED for the Respondent(s) No. 1,2,3,4
MR SAHIL TRIVEDI, AGP for the respondent-State.
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     CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL

                              Date : 02/11/2023
                               ORAL ORDER

1. Heard learned Advocate Mr.Vishal Thakkar on behalf of the petitioner and learned Assistant Government Pleader Mr. Sahil Trivedi for the respondent-State.

2. Rule returnable forthwith. Learned Assistant Government Pleader waives service of notice of Rule on behalf of the respondent - State.

3. By way of this petition, the petitioner seeks for benefit of 300 days leave encashment as well as benefit of Seventh Pay Commission with arrears, and hence, the present petition is entertained only with regard to said benefits. The prayers in relation to other benefits, if any, referred in this petition, are not pressed by the learned Advocate for the petitioner at this stage.

4. Learned Advocate for the petitioner would submit that the issue involved in the present petition, more particularly with regard to grant of benefit of encashment of 300 days unavailed leave, is no more res

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C/SCA/8016/2023 ORDER DATED: 02/11/2023

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integra, more particularly in view of the decision of the Hon'ble Apex Court dated 01.09.2022, in Special Leave Petition (C) No. 7229 of 2022. Learned Advocate for the petitioner would also submit that present petitioner was working with the concerned respondent department for approximately more than 3 decades and he had retired upon attaining the age of superannuation and therefore considering his continuous service he is entitled for the benefit of leave encashment.

5. In relation to leave encashment vide Government Resolution dated 21.10.2022, issued by Irrigation Department, Government has also taken a policy decision which reads as under: -

"According to the judgment of the Hon'ble Supreme Court referred in No. (1) above, since the Resolution of the Roads and Buildings Department dated 17-10-1988 also provides that the retirement benefits granted to daily workers include the benefit of "encashment of leave" also, as per the clause (5) of the State Litigation Policy of the State Government, daily wages workers are entitled to the benefit of conversion of leave into cash, the instructions in this regard regarding the payment of leave encashment to the daily wages worker petitioner under this section, instructions are hereby circulated as per the approval received vide informal note dated 17/10/2022 of the Finance Department on the equal numbered files as follows.

With reference to various claims filed before the Hon'ble Court, the petitioner daily wagers shall be paid the encashment of accrued leave (within the maximum limit of 300 leave accumulated) in cash as is being paid for regular services as per the policy of the Government, by calculating leave as per the rules on the basis of the service record of the daily workers.

(1) Payment in case of retired petitioners who have completed 70 years of age as on 01/10/2022, shall be made by 31/10/2022, (2)

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Payment to the remaining retired petitioner daily workers will be within three months i.e. by 31/12/2022."

6. Insofar as the prayer with regard to extension of benefit of 7th Pay Commission is concerned, learned Advocate for the petitioner would draw the attention to this Court to Government Resolutions dated 16.8.2016, 12.9.2017 and 13.5.2022, whereby the respondent State had resolved to pay its employees the benefits of the recommendations of 7th Pay Commission. It also appears that the last Resolution dated 13.5.2022 is specifically with regard to employees of the nature of the present petitioner.

7. The above factual position could not be controverted by learned Assistant Government Pleader for the respondent - State.

8. Considering the same, it would appear that the State Government already having taken a policy decision with regard to paying benefits of revision of pay as per recommendation of 7th Pay Commission, there was no reason to deny the benefits to the present petitioner. It also requires to be mentioned that by now it is well settled position of law, more particularly as per the law propounded by the Hon'ble Apex Court that upon completion of requisite number of years, a person who has entered service as daily-rated employee would attain the status of regular employee and upon attaining the status of regular employee, he would be entitled to all the benefits as are available to a regular employee.

9. In view of the above said position, insofar as the benefit of leave encashment of 300 days leave is concerned, this Court deems it appropriate to direct the respondents to undertake scrutiny of case of the

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C/SCA/8016/2023 ORDER DATED: 02/11/2023

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petitioner herein, and upon such scrutiny, if the petitioner is found eligible, then a proposal for considering the case of the petitioner for payment of 300 days leave encashment shall be forwarded to the State Authorities in this regard and thereafter, the State Authority shall consider proposal of the petitioner herein in consonance with the State policy.

10. Insofar as the benefit of 7th Pay Commission is concerned, it is directed that the respondents shall pay to the petitioner the arrears of revision of pay as per the recommendation of 7 th Pay Commission from 1.1.2016 as per the policy of the State Government.

11. The above exercise shall be completed within a period of twelve weeks from the date of receipt of this order.

12. With the above observations and directions, the present petition stand disposed of. Rule is made absolute to the aforesaid extent. Direct service is permitted.

(NIKHIL S. KARIEL,J) BDSONGARA