Ruprambhai Harsengbhai Bhata vs State Of Gujarat
2023 Latest Caselaw 8192 Guj

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    C/SCA/11496/2023                                   ORDER DATED: 09/11/2023

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           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

            R/SPECIAL CIVIL APPLICATION NO. 11496 of 2023
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                       RUPRAMBHAI HARSENGBHAI BHATA
                                   Versus
                             STATE OF GUJARAT
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Appearance:
MR. MUKESH T MISHRA(5900) for the Petitioner(s) No. 1,1.1,1.2,1.3
MS MEGHA CHITALIA, AGP for the Respondent(s) No. 1
MR HS MUNSHAW(495) for the Respondent(s) No. 2,4
NOTICE SERVED BY DS for the Respondent(s) No. 3
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 CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA

                              Date : 09/11/2023
                               ORAL ORDER

1. Heard learned Advocate Mr.Mukesh T. Mishra

for the petitioners, learned Assistant

Government Pleader Ms.Megha Chitalia for the

respondent-State and learned Advocate

Mr.H.S.Munshaw for the respondent Nos.2 and 4.

2. By way of this petition, the petitioners,

legal heirs of the deceased employee, have

sought for two-fold reliefs namely; (i) for

being granted the benefit of leave encashment

of 300 days and (ii) for being granted the

benefit of lump sum compensation in lieu of

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compassionate appointment as per the Policy of

the Government vide G. R. dated 5.7.2011 and

7.4.2016.

2.1.Learned Advocate Mr.Mishra would submit

that this Court had an occasion to consider

and decide the case of a similarly situated

person in Special Civil Application No.15361

of 2022 vide order dated 20.10.2023 and would

request this Court that similar directions may

be passed in the present petition also.

3. Learned advocate for the petitioner has

submitted that the petitioner-late Ruprambhai

Harsengbhai Bhata was working under respondent

authority and has died while in service. He

had worked with the respondent authorities

from the year 1985 till his death.

3.1. The petitioners have, therefore,

approached respondents by praying for

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compensation in lieu of compassionate

appointment on the basis of the Government

policy.

3.2. Leaned advocate for the petitioners have

relied upon the Government Resolutions dated

05.07.2011 and 07.04.2016 to show their

entitlement for the amount of compensation in

lieu of compassionate appointment. Learned

Advocate would drawn the attention of this

Court towards the representation of the

petitioners dated 27.02.2023 to respondents

authorities to consider their case for

compensation, however, the Executive Engineer

vide letter dated 04.03.2023 denied and

rejected the claim of the petitioners on the

ground that the petitioners are not entitled

for compensation in lieu of the compassionate

appointment. Learned Advocate has further

submitted that this Court has considered

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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

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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 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

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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 :

"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

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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 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

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assistance in support of his case."

3.4. Learned advocate for the petitioners,

therefore, submits that the case of the

petitioners 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. Per contra, learned Assistant Government

Pleader Ms.Megha Chitalia for the respondent-

State has submitted that the Government cannot

grant the benefit to the petitioners and has

drawn attention towards 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

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compassionate appointment.

4.1. Learned AGP has further submitted that

the deceased employee had worked as daily

wager with the respondents authorities and has

passed away while he was in service and

therefore, the petitioners would not be

entitled to claim lump sum compensation under

the Government Resolution dated 05.07.2011.

Learned AGP 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.

4.2. The deceased petitioner was employed as

daily wager with the respondent authorities

and the petitioners have not mentioned

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Government Resolution dated 13.10.2015 in

their representation before the Authority and

therefore, the authority has not taken into

consideration the said Government Resolution

while rejecting the claim of the petitioners.

Learned AGP 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 the department

has already granted benefits as per the

Government Resolution dated 17.10.1988 to 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.

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6. For the reasons recorded above, the

following order is passed:-

6.1. This petition is allowed.

6.2. The respondents are directed to

extend the benefits of 300 days

privileged leave to the petitioners in

lieu of compassionate compensation as

per Government Resolutions dated

05.07.2011 and 07.04.2016, with interest

at the rate of 6% per annum. The

benefits that accrue to the petitioners

in terms of privileged leave of 300 days

with the arrears shall be paid to the

petitioners preferably within a period

of twelve weeks from the date of receipt

of copy of this order. Direct service is

permitted.

(BHARGAV D. KARIA, J) PALAK