Gujarat High Court
Khemabhai Saburbhai Pargi vs State Of Gujarat on 9 October, 2023
Bench: Nikhil S. Kariel
NEUTRAL CITATION
C/SCA/5519/2023 ORDER DATED: 09/10/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 5519 of 2023
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KHEMABHAI SABURBHAI PARGI
Versus
STATE OF GUJARAT
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Appearance:
MR HB SINGH(2073) for the Petitioner(s) No.
1,10,11,12,13,14,2,3,4,5,6,7,8,9
DS AFF.NOT FILED (N) for the Respondent(s) No. 2
MS NIRALI SARDA, AGP for the Respondent(s) No. 1
NOTICE SERVED for the Respondent(s) No. 3,4
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CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
Date : 09/10/2023
ORAL ORDER
1. Rule returnable forthwith. Learned Assistant Government Pleader
Ms. Nirali Sarda waives service of notice of Rule on behalf of the
respondent - State.
2. This petition under Article 226 of the Constitution of India is filed
with the following prayers: -
"21 (a) To admit and allow this petition;
(b) YOUR LORDSHIPS may be pleased to issue a writ of
mandamus or any other appropriate writ, order or direction,
directing the respondents to forthwith extend the benefits of
leave encashment and count their services from the date of
joining till the date of retirement for the purpose of pensionary
benefits, till the time of retirement or death,
(c) During the pendency and final disposal of the present
petition, YOUR LORDSHIPS may be pleased to passed an
order directing the respondents to forthwith extend the
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C/SCA/5519/2023 ORDER DATED: 09/10/2023
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benefits of leave encashment and count their services from the
date of joining till date of retirement for the purpose of
gratuity and pensionary benefits, at the time of retirement or
death,
(d) Pass any such other and/or further orders that may be
thought just and proper, in the facts and circumstances of the
present case."
3. Heard learned Advocate Mr. H.B. Singh for the petitioners and
learned Assistant Government Pleader Ms. Nirali Sarda 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 prayer in relation to other benefits, if any, referred
in this petition, is not pressed by the learned Advocates for the petitioners 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 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 submitted that present
petitioners were working with the respondent department for more than 3
decades and had retired upon attaining the age of superannuation and
therefore considering continuous service, the petitioners are entitled for the
benefits of leave encashment as well as pension and gratuity.
4.2 He pointed that by Government Resolution dated 21.10.2022, of
NEUTRAL CITATION
C/SCA/5519/2023 ORDER DATED: 09/10/2023
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Irrigation Department, Gandhinagar had issued directives for
implementation of the decision of the Hon'ble Supreme Court in Special
Leave Petition (C) No.7229 of 2022.
4.3 He pointed out that in the Government Resolution dated 24.01.2023,
of Road and Building Department, Sachivalaya, Gandhingar which has been
adopted by the Irrigation Department, wherein it 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, 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 Government Resolution dated
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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)
Payment to the remaining retired petitioner daily workers will be
within three months i.e. by 31/12/2022."
6. The above factual position could not be controverted by learned
Assistant Government Pleader for the respondent - State.
7. It is also not in dispute that for counting entire length of service for
payment of gratuity and leave encashment benefits, 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.
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8. In view of the above said position, this Court deems it appropriate to
direct the respondents to undertake scrutiny of case of the petitioners
herein, and upon such scrutiny, if the petitioners are found eligible then a
proposal for considering the case of the petitioners for payment of gratuity
and pension from the actual appointment as well as for payment of leave
encashment shall be forwarded to the State Authorities in this regard and
thereafter, the State Authority shall consider proposal of the petitioners
herein expeditiously and in consonance with the State policy.
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.
(NIKHIL S. KARIEL,J)
BDSONGARA
