Mukeshbhai Rasiklal Jayswal ... vs State Of Gujarat
2023 Latest Caselaw 7906 Guj

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    C/SCA/3127/2022                                    ORDER DATED: 26/10/2023

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          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 3127 of 2022

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   MUKESHBHAI RASIKLAL JAYSWAL THROUGH HIS LEGAL HEIRS
                          Versus
                    STATE OF GUJARAT
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Appearance:
MR. MUKESH T MISHRA(5900) for the Petitioner(s) No. 1,1.1,1.2
MS NIRALI SARDA, AGP for Respondent State
ADVANCE COPY SERVED TO GOVERNMENT PLEADER/PP for the
Respondent(s) No. 1
MR KH BAXI(150) for the Respondent(s) No. 2
NOTICE SERVED BY DS for the Respondent(s) No. 3,4
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 CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL

                              Date : 26/10/2023

                               ORAL ORDER

1. Heard learned Advocate Mr.Mukesh T. Mishra for the petitioners, learned AGP Ms.Sarda for the respondent State and learned Advocate Mr.Baxi for respondent No.2.

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 and (ii) for being granted the benefit of lump sum compensation in lieu of compassionate appointment as per the Policy of the Government vide G. R. dated 5.7.2011, 7.4.2016 and 27.7.2020.

2.1. Insofar as the issue of leave encashment is concerned, learned Advocate Mr.Mishra for the petitioners would submit that the said benefit having been conferred upon the petitioners, the present petitioners would not press for the said relief. Insofar as the relief of grant of benefit of lump sum compensation is concerned, learned

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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 petitioners has submitted that Shri Mukeshbhai Rasiklal Jayswal, husband of petitioner No.1, was working under respondent authority and has died on 24.4.2021 while in service. He had worked with the respondent authorities from 21.1.1986 to 24.4.2021.

3.1. The petitioners have, therefore, approached respondents No.2 and 3 by praying for compensation in lieu of compassionate appointment on the basis of the Government policy. However, respondents authorities vide impugned communication 14.9.2021 have denied the compensation to the petitioner on the ground that the Government Resolution dated 7.4.2016 is not applicable to the daily wager employee.

3.2. Learned Advocate for the petitioners has further submitted that after competing 35 years of service with the respondents authorities, after the death of the employee (husband & father of the petitioners), the petitioner was getting family pension.

3.3. Leaned advocate for the petitioner has relied upon the Government Resolutions dated 05.07.2011, 07.04.2016, and 27.7.2020 to show her entitlement for the amount of compensation in lieu of compassionate appointment. Learned Advocate would drawn the attention of this Court towards the applications of the petitioners dated 29.11.2021, 3.12.2021 and 31.12.2021 made before the respondents authorities to consider their case for compensation.

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C/SCA/3127/2022                                      ORDER DATED: 26/10/2023

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Learned Advocate has further submitted that this Court has considered 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 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 the appellant No.2 herein. If the

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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 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

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learned Assistant Government Pleader would not have any 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 AGP Mr.Trivedi for the 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 compassionate appointment.

4.1. Learned AGP has further submitted that the petitioner No.1's husband 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 petitioner No.1's husband was employed as daily wager with the respondent authorities and he was granted benefits under the Government Resolution dated 17.10.1988 and therefore, learned AGP has opposed this petition. Mr.Trivedi has submitted that the

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petitioner has not mentioned Government Resolution dated 13.10.2015 in his representation before the Authority and therefore, the authority has not taken into consideration the said Government Resolution while rejecting the claim of the petitioner. 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 that the husband of the petitioner was serving with the respondents department for more than 35 years, 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.

6. For the reasons recorded above, the following order is passed:-

6.1. This petition is allowed.

6.2. The respondents are directed to pay compensation to the petitioners in lieu of compassionate compensation as per Government Resolutions dated 05.07.2011, 13.10.2015 and 07.04.2016, with interest at the rate of 8% p.a., within a period of eight weeks from today. Direct service is permitted.

(NIKHIL S. KARIEL,J) V.V.P. PODUVAL