Gujarat High Court
Shamjibhai Naranbhai Khungala vs State Of Gujarat on 3 October, 2023
Bench: Nikhil S. Kariel
NEUTRAL CITATION
C/SCA/15705/2023 ORDER DATED: 03/10/2023
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 15705 of 2023
========================================================
SHAMJIBHAI NARANBHAI KHUNGALA
Versus
STATE OF GUJARAT
========================================================
Appearance:
MS ASHLESHA M PATEL(6127) for the Petitioner(s) No. 1,2
MR ADITYA PATHAK AGP for the Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 2
========================================================
CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
Date : 03/10/2023
ORAL ORDER
1. Heard learned Advocate Ms. Ashlesha Patel on behalf of the
petitioners and learned Assistant Government Pleader Mr. Aditya Pathak on
behalf of the the respondent no.1 -State. Learned Advocate Mr. Vishrut
Jani is permitted to file his Vakalatnama on behalf of respondent no. 2 till
06.10.2023.
2. Rule returnable forthwith. Learned Assistant Government Pleader
Mr. Pathak waives service of notice of Rule on behalf of the respondent
no.1 - State and learned Advocate Mr. Jani waives service of notice of Rule
on behalf of respondent no.2.
3. By way of this petition, the petitioners have sought for the following
prayers :
"6(A) Your Lordships be pleased to issue an order, writ in the
nature of mandamus and/or Certiorari or any other
appropriate writ /order of direction declaring the impugned
action of respondents in not granting the benefits of leave
NEUTRAL CITATION
C/SCA/15705/2023 ORDER DATED: 03/10/2023
undefined
encashment to petitioners as such benefits have been given to
similarly situated employees vide G.R. dated 21.10.2022
which is discriminatory, illegal, unjust, arbitrary and violation
of Article 14 and 16 of the Constitution of India.
(B) Your Lordship be pleased to direct respondents to
release the amount of Leave Encashment (unavailed privilege
leave) to the extent of 300 days with 12% interest thereon as
per order dated 01.09.2022 passed passed by Hon'ble Apex
Court.
(C) Your Lordships be pleased to pass any other further
order as may be deemed fit, just and proper in facts and
circumstances of the case and in the interest of justice."
4. Learned Advocate for the petitioner submitted that the petitioners
have rendered services with the respondent department for more than three
decades and they have retired from service on reaching the age of
superannuation. Considering their continuous service, the claimed
entitlement to leave encashment.
5. Pursuant to the notice issued by this Court, learned AGP has drawn
attention of this Court to a Circular dated 21.10.2022 in connection with the
aforesaid issue.
6. In case of leave encashment, vide Circular No.SUT/1022/2898/A
dated 21.10.2022 of the Department of Narmada, Water Resources, Water
Supply and Kalpsar, Gandhinagar, the State Government has also taken a
policy decision which would reflect as under :
"According to the judgment of the Supreme Court dated 1.9.2022 in
SLP (C) No.7229 of 2022 and since the resolution of the Roads and
NEUTRAL CITATION
C/SCA/15705/2023 ORDER DATED: 03/10/2023
undefined
Buildings Department dated 17.10.1988 also provides that the
retirement benefits granted to the daily wagers include the benefit of
'encashment of leave', as per Clause (5) of the State Litigation Policy
of the State Government, the daily wagers are entitled to the benefit
of leave encashment. The instructions in this regard are circulated
after consultation and approval received through the informal note
dated 17.10.2022 of even number file of the Finance Department.
With regard to the various claims filed before the Hon'ble Court, the
petitioners - daily wagers shall be paid leave encashment (within the
maximum limit of 300 leave) for the regular services as per the policy
of the Government by calculating leave as per the rules and after
verifying their service record, in the following terms :
(1) Payment in case of retired petitioners - daily wagers who have
completed 70 years as on 1.10.2022 shall be made latest by
31.10.2022.
(2) Payment to rest of the retired petitioners - daily wagers shall be
made within a period of three months, i.e. latest by 31.12.2022."
7. Furthermore it would appear that the State of Gujarat through
Finance Department has issued Government Resolution dated 28.08.2023
whereby all the Departments as well as Board/Corporation have been
directed to grant the benefit of leave encashment of 300 days to daily wagers
more particularly as per orders passed by this Court as well as the Hon'ble
Supreme Court.
8. Considering such a situation, the respondent shall consider the case
of the present petitioners for grant of leave encashment for 300 days within
NEUTRAL CITATION
C/SCA/15705/2023 ORDER DATED: 03/10/2023
undefined
a period of six weeks from today and whereas the said time period would
include the time during which respondent no. 2 would forward proposal to
respondent no.1 as well as to the Finance Department. Upon the proposal
being allowed more particularly after verification of entitlement of the
appropriate payment shall be issued to the petitioners within a period of 4
weeks thereafter.
9. The aforesaid exercise shall be completed within a period of ten
weeks from today.
10. With the above observation and directions, the present petition
stands disposed of. Rule made absolute to the aforesaid extent. Direct
service is permitted.
(NIKHIL S. KARIEL,J)
NIRU
