Gujarat High Court
Mahendrasing Vishvanath Rajput vs State Of Gujarat on 9 November, 2023
Bench: Nikhil S. Kariel
NEUTRAL CITATION
C/SCA/10771/2023 ORDER DATED: 09/11/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 10771 of 2023
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MAHENDRASING VISHVANATH RAJPUT
Versus
STATE OF GUJARAT
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Appearance:
MR VK JOSHI(2329) for the Petitioner(s) No. 1,2
MS NIRALI SARDA, AGP for Respondent State
ADVANCE COPY SERVED TO GOVERNMENT PLEADER/PP for the
Respondent(s) No. 1
MR HS MUNSHAW(495) for the Respondent(s) No. 2
NOTICE SERVED BY DS for the Respondent(s) No. 1,3,4
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CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
Date : 09/11/2023
ORAL ORDER
1. Heard learned Advocate Mr.V.K. Joshi for the
petitioners and learned AGP Ms. Nirali Sarda 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 petitioners have sought
for the following prayers: -
"6(A) Your Lordships may be pleased to admit
and allow this petition;
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(B) Your Lordships may be pleased to direct
the Respondents authority to pay the pensionary
benefit from the date of initial appointment,
including gratuity and leave encashment of 300
days.
(C) Pending admission, hearing and final
disposal of this petition, this Hon'ble Court may
be pleased to direct the respondents to
immediately revise the pension of the petitioners
on the basis of their total length of service and
pensionary benefit.
(D) Your Lordships may be pleased to grant
such other and further relief that may be deemed
fit and proper in the facts and circumstances of
the case."
4. Learned Advocate for the petitioners restricts the
prayers in the petition to encashment of leave and to
payment of gratuity and would submit 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 prayer in relation to other
benefits, if any, referred in this petition, is not
pressed by the learned Advocate for the petitioners
at this stage.
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1. Learned Advocate would further submit 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 Special Leave Petition (C) No. 7229
of 2022. Learned Advocate for the petitioners
would also submit that present petitioners were
working with the concerned respondent
department for approximately 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.
5. Learned Advocate would also rely upon the
Government Resolution dated 24.01.2023, of Road
and Building Department, Sachivalaya, Gandhingar,
wherein 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
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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.
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(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."
6. 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.
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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) Payment to the
remaining retired petitioner daily workers will be
within three months i.e. by 31/12/2022."
7. The above factual position could not be controverted
by learned Assistant Government Pleader for the
respondent - State.
8. It is also not in dispute that for counting entire
length of service for payment of gratuity, pension
and leave encashment benefits etc., the decision of
this Court in case of Executive Engineer,
Panchayat (Maa & M) Department vs.
Samudabhai Jyotibhai Bhedi reported in 2017 (4)
GLR 2952 would be applicable.
9. Considering the above position, more particularly
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since it appears that the issue has been decided by
this Court and even by the Hon'ble Apex Court and
whereas since the State has also issued guidelines,
as to how the said benefit has to be computed, in the
considered opinion of this Court, the present petition
could be disposed of with the following directions,
which would meet the ends of justice.
(A) The respondent authorities concerned shall
undertake a scrutiny of the case of the petitioners,
more particularly for payment of gratuity and
pension from the actual date of appointment as well
as for payment of leave encashment and whereas if
the petitioners are found eligible, then the State
Government shall consider the proposal for grant of
pension and gratuity from the actual appointment as
well as for grant of leave encashment and pass
appropriate orders within a stipulated time frame.
(B) The respondent authorities concerned shall
conduct the above referred scrutiny within a period
of 04 weeks from the date of receipt of this order
and whereas appropriate proposal for grant of
gratuity and pension from the actual appointment as
well as for grant of leave encashment shall be moved
to the State Government within such time.
(C) Upon such proposal being received by the
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concerned Department, the same shall be
considered and a final decision of including payment
shall be taken by the State within a period of 08
weeks from the date of receipt of such proposal.
10. 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)
V.V.P. PODUVAL
