Gujarat High Court
Ratilal Vechatbhai Vaghari Since ... vs State Of Gujarat on 13 September, 2023
Bench: N.V.Anjaria
NEUTRAL CITATION
C/SCA/7895/2023 ORDER DATED: 13/09/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 7895 of 2023
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RATILAL VECHATBHAI VAGHARI SINCE DECD THROU LH SHARDABEN
RATILAL DANTANI
Versus
STATE OF GUJARAT
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Appearance:
MR DIPAK R DAVE(1232) for the Petitioner(s) No. 1
MR. MANAN MEHTA, AGP the Respondent(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIA
Date : 13/09/2023
ORAL ORDER
Having regard to the compass of the controversy involved and with
request and consent of learned advocates appearing for both the sides, the
petition was taken up for final consideration.
1.1 Rule returnable forthwith. Learned Assistant Government Pleader
Mr. Manan Mehta waives service of Rule on behalf of respondent State.
2. Heard learned advocate Ms. Nidhi Trivedi for learned advocate
Mr. Dipak Dave for the petitioner and learned Assistant Government
Pleader.
3. What is prayed in this petition filed under Article 226 of the
Constitution is to set aside order dated 24.11.2022 passed by the
Executive Engineer-respondent No.2 herein. Thereby the claim of the
petitioner for extension of benefits under Resolution dated 5.7.2011 for
payment of lumpsum compassionate compensation came to be rejected.
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3.1 The ground on which the order was rested was that the deceased
Ratilal Vechatbhai Vaghari was engaged as daily rated workman and
since he did not have the status of regular employee, Resolution dated
5.7.2011 could not apply and the benefits thereunder could not be given.
3.2 The petitioner-Shardaben Ratilal Dantani happenes to be the legal
heir of deceased employee-Ratilal Vechatbhai Vaghari, who served as
Rojamdar in the office of respondent No.3 from 20.12.1980. It was the
case that he rendered services continuously and uninterruptedly before his
death on 9.9.2013 while in service. The deceased had to his credit 33
years of service.
3.3 The legal heir is the widow of deceased who prayed for financial
assistance on compassionate basis upon death of the husband employee
as per government Resolution dated 5.7.2011. The ground advanced, as
stated above, by the authorities to deny the benefit is that the deceased
employee was engaged as a Rojamdar. There is no dispute, however, that
he rendered 33 years of continuous service. Thereby the employee
became entitled to permanency benefits under the Government
Resolution dated 17.10.1988 of the State Government having put in more
than three decades of service.
4. The issue whether the kith and kin of daily rated employee could
be extended the benefits of the scheme for payment of lumpsum
compensation on compassionate basis as per the Government Resolution
dated 5.7.2011, came to be dealt with by the Division Bench inter alia in
the recent decision in Gujarat Water Supply and Sewerage Board vs.
Hansaben Pramodbhai Patel, which was Letters Patent Appeal No.
934 of 2023 and other allied appeals decided on 24.8.2023. The
challenge therein was the order of learned single Judge who had granted
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the benefit of Resolution dated 5.7.2011 in respect of case of daily rated
workman. The decision of learned single Judge was affirmed by
elaborate reasoning as per the aforesaid Division Bench judgment.
4.1 The reasoning supplied and law laid down by the Division Bench
in Gujarat Water Supply and Sewerage Board (supra) quoted below,
would apply to the present case where the nature of controversy is
identical.
"3. The issue that arises in all these Letters Patent Appeals is
whether the kith and kin of a daily-rated employee, who is granted
the benefits including permanency benefit under Resolution dated
17.10.1988, could seek entitlement to get the benefit of scheme for
payment of lumpsum compensation as per the government
Resolution dated 5.7.2011 and whether the benefit under the said
scheme in Resolution dated 5.7.2011 could be denied to the
eligible kith and kin of the deceased employee only on the ground
that the deceased employee was a daily-rated employee.
3.1 This question has been dealt with by a recent decision
delivered by the Division Bench of this Court in State of Gujarat
vs. Chhanaji Bhagaji Makwana (Deceased) through Legal Heir
Punjiben Chhanaji Makwana, which was Letters Patent Appeal
No. 1073 of 2023 decided on 10.08.2023.
3.2 The following was observed and held in the decision, which
reasoning would apply and govern the present case also,
"6. Learned Assistant Government Pleader however harped on
the aspect that the benefit of lumpsum compassionate
compensation under the Resolution dated 05.07.2011 would not
be payable to the petitioner's heirs inasmuch as the said policy
would not apply to the daily rated employees, but would be
available to only those employees regularly employed. It was
submitted that even if the deceased employee would draw the
benefit on the basis of the length of services rendered under the
Resolution dated 17.10.1988, the scheme of compassionate
appointment and lumpsum compensation in lieu of appointment
as envisaged in Resolution dated 05.07.2011 could not be applied
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for the simple reason that the employee was a daily rated
employee and despite governed by Resolution dated 17.10.1988,
he would not loose the status of daily rated employee.
6.1 In order to advance the contention that the kith and kin of
daily rated employees, seeking application of scheme of
compassionate appointment, and therefore also the Resolution
dated 05.07.2011 providing for lumpsum compensation, would
not be governed thereunder, learned Assistant Government
Pleader wanted to press into service the decision of this Court in
Javeed A Surangi vs. State of Gujarat, which was Special
Civil Application No. 12270 of 2013, decided on 30.08.2016.
The petitioner therein claimed the benefit of grant of appointment
on compassionate basis upon death of father, who was Class-IV
daily wager Watchman on the ground that the deceased employee
had put in 32 years of service and in view of the provisions of the
Resolution dated 17.10.1988, the services was liable to be
regularised to be treated for permanency benefit.
6.2 The Court in paragraph 5.1 observed,
"A daily wager receiving benefits under the Resolution
dated 17th October, 1988 does not stand on same pedestal
with a permanent employee who is permanent because he
was appointed in regular way upon regular selection
process. Therefore, though the daily wagers would receive
benefits of permanency in form of pay-scales and perks,
they do not form a same class as 'permanent employees' or
'regular employees'. A daily wager though getting benefits
under the Resolution of 17th October, 1988, he is not
regular or permanent employee per se. His original or
inherent character and status remain unchanged, but
benefits of pay, perks, etc., are secured. They stand as
valid classification operating for respective different
purposes."
6.3 According to the view taken, the Resolution dated
17.10.1988 operated to grant benefit of pay-scale and other
service perks and the purpose was limited to conferment of such
benefits and could not have any further import. It was observed
in paragraph 5.2 thus,
"5.2 In any view, even if for such purposes, the daily-rated
employees are deemed to be viewed as 'regular' or given
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'regularisation', the said concept is limited for applying
and operating the Resolution in question. It cannot extend
to seek benefits under the other benefit-oriented schemes
when the scheme of compassionate appointment provides
that the same applies to permanent employees only and not
to ad-hoc or daily-waged employees."
6.4 Similar view was taken in another decision in
Dharmeshgiri Balvantgiri Goswami Vs. State Of Gujarat in
Special Civil Application No. 14126 of 2017 as well as in
Suresh Maganbhai Chavda vs. State of Guajrat passed in
Special Civil Application No. 14834 of 2010, which were also
the decisions of learned Single Judges.
7. The issue whether the compassionate
appointment/lumpsum compensation scheme could be extended
in the cases of daily rated workmen securing benefits under the
Resolution dated 17.10.1988 came up for consideration before
the Court in Fatmabai Abdul Sumra vs. State of Gujarat,
which were Special Civil Application No. 11554 of 2021 and
another decided on 14.02.2022 and again in Gauriben
Hargovinbhai Vaghela vs. Secretary, Narmada and Water
Resources Department in Special Civil Application No. 2884
of 2022, decided on 20.04.2022.
7.1 In those cases, learned Single Judge held otherwise. It
was noticed that the decision in Javeed A Surangi (supra), in
Suresh Maganbhai Chavda (supra) and Dharmeshgiri
Balvantgiri Goswami (supra) taking the view that benefit of
compassionate scheme would not be available to the daily rated
workmen was without noticing the binding observations of the
Division Bench in State of Gujarat v. Mahendrakumar
Bhagvandas [2011 (2) GLR 1290]. The view was taken by the
Division Bench is inter alia that there was no concept such as
permanent daily wager and it was strange in service jurisprudence
to bring out the nomenclature or concept of permanent daily
wager.
7.2 In Mahendrakumar Bhagvandas (supra), the Division
Bench stated thus,
"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
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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 rebranded
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."
7.3 The Division Bench of this Court in State of Gujarat vs.
Nathabhai Ghemarbhai Parmar, which was Letters Patent
Appeal No. 1234 of 2017, decided on 04.08.2017 observed thus
in paragraph 8, in which also, the decision in Mahendrakumar
Bhagvandas (supra) was relied on,
"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.......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,
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apprentice, adhoc, contract or reemployment."
7.3.1 It was further observed and held in same paragraph,
"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."
7.4 Therefore, there stands a binding proposition of law that a
daily rated workman who is extended the benefit of Resolution
dated 17.10.1988 to be considered for permanency benefit on the
basis of length of service would derive all attendant benefits and
benefits including of the scheme of compassionate appointment.
The original status of the daily rated workman would not be an
impediment or debilitating factor for the kith and kin of the
deceased to claim the benefit of the scheme of compassionate
appointment/compassionate lumpsum payment, provided their
case falls within the corners of the scheme.
8. Learned Single Judge in the impugned judgment and order
has rightly taken a view that the petitioner, who was the heir of
the deceased daily rated workman would be entitled to be
considered for the benefit under the Resolution dated 05.07.2011
for compassionate lumpsum payment even if they were the
successor of the deceased daily wager. Learned Single Judge was
justified in relying on the decision in Gauriben Hargovinbhai
Vaghela (supra) to allow the petition.
3.3 The final directions given in Chhanaji Bhagaji Makwana
(supra) were as under,
"8.1 It is therefore directed that the case of the petitioner shall
be examined for the purpose of extending the benefit of
Resolution dated 05.07.2011 and the petitioner shall be
considered for lumpsum compensation under the said scheme
provided the petitioner fulfills the conditions of the scheme to fall
within the bounds of the scheme and that his claim shall not be
rejected on the ground that the deceased employee was a daily
wager."
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4. Learned advocates for the respondents were not in a position
to dispute the position of law emanating from the above decision
holding the field.
5. In the above view, the present appeals are required to be
disposed of in the same lines.
5.1 The extension of said policy shall not be denied to the
petitioners and their claim shall not be rejected on the ground that
the deceased employee was a daily wager.
6. While learned single Judge is right in holding that the
petitioner would be entitled to be governed by the scheme under
Resolution dated 5.7.2011 and 7.4.2016 for the purpose of grant of
lumpsum compensation, learned single Judge could not have
directed to grant such benefits. The benefit of scheme could be
granted provided the person falls within the bounds of the scheme.
6.1 The above directions, which are absolute in nature, are
therefore modified by holding and observing that the petitioners
will be entitled to claim extension of policy for compassionate
lumpsum payment under the Resolution dated 5.7.2011 and other
attendant resolutions to get their cases considered thereunder. It is,
however, open to the respondents to examine the case of the each
of the petitioners as to whether they satisfy other conditions of the
policy and their cases fall within the four corners of the policy."
5. Accordingly, the petitioner succeeds. The impugned decision
dated 24.11.2022 of the Executive Engineer, Capital Project Division-I,
Gandhinagar-respondent No.2 herein rejecting the claim of the petitioner
for grant of benefit of lumpsum compassionate compensation under
Resolution dated 5.7.2011 was declined on the ground that the deceased
employee was Rojamdar, is hereby set aside.
6. It is held that the petitioner will be entitled to be governed by the
Resolution dated 5.7.2011 and his case shall not be discarded only on the
ground that the deceased employee was a daily rated employee, provided
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however that the petitioner otherwise satisfies the conditions and
requirements under Resolution dated 5.7.2011.
7. The petition is allowed accordingly. Rule is made absolute as
above.
Direct service is permitted.
(N.V.ANJARIA, J)
C.M. JOSHI
