Gujarat High Court

Bipinbhai Babarbhai Patel vs State Of Gujarat on 13 February, 2024

Author: Nikhil S. Kariel

Bench: Nikhil S. Kariel

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       C/SCA/2577/2021                               ORDER DATED: 13/02/2024

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 2577 of 2021

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                         BIPINBHAI BABARBHAI PATEL
                                    Versus
                              STATE OF GUJARAT
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Appearance:
DECEASED LITIGANT for the Petitioner(s) No. 1
MR SAMIR B GOHIL(5718) for the Petitioner(s) No. 1.1
MR SAHIL TRIVEDI, AGP for the Respondent-State
GOVERNMENT PLEADER for the Respondent(s) No. 1,2,3,4,5
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     CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL

                              Date : 13/02/2024
                               ORAL ORDER

1. Heard learned Advocate Mr. Samir Gohil for the petitioner and

learned AGP Mr. Sahil Trivedi for the respondent-State.

2. By way of this petition, the petitioner raises a grievance as regards

non-consideration of the case of the original petitioner-late employee for

grant of benefit under Government Resolution dated 17.10.1988 inspite

of the fact that the original employee had worked from the year 1984 till

the year 2016 with the respondents.

3. Considering the submissions made by learned Advocate Mr. Gohil,

more particularly considering the Chart which is annexed at Page No.9-

10 of the present petition, it would clearly appear that while the late

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employee appears to have worked for approximately 34 years, it would

also appear that the late employee had worked for more than 10 years,

more particularly the employee completing 240 days in each year prior to

31.03.2005, and thereby, entitling the late employee/his family members

to claim grant of pension/family pension as per the policy framed under

the Government Resolution dated 17.10.1988.

4. Furthermore, it also appears that the Chart at Page No. 9-10 has

been prepared by the Executive Engineer, Damanganga Canal Section,

Balitha-Vapi, therefore at this stage, in the considered opinion of this

Court, the grievance of the petitioner could be assuaged if the respondents

are directed to decide the case of the petitioner for grant of benefits under

the Government Resolution dated 17.10.1988, more particularly as per

the period of employment as mentioned in the attendance chart at Page

No. 9-10 of the petition. At this stage, before directing the respondents,

this Court deems it appropriate to reiterate certain judgments of the

Hon'ble Apex Court as well as this Court, whereby the scope and ambit

of the Government Resolution dated 17.10.1988 has been explained. For

the benefit of the respondents, some of the observations of this Court as

well as the Hon'ble Supreme Court, on this issue are reproduced

hereinbelow :

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4.1 The Hon'ble Apex Court, in case of State of Gujarat Vs. PWD

and Forest and Employees' Union, reported in (2019) 15 SCC 248, at

paragraph 14, has observed as thus:-

"14.Having regard to the above, we are confining our discussion to the aforesaid exceptions taken by the appellant. In the first instance, it is pointed out by the appellant that even if the respondents become permanent, they would be entitled to be fitted in the job description in terms of the Rules. What is (arising out of SLP (C) No. 43592 of 2018) & Anr. emphasised is that even after regularisation, their pay scales cannot be more than the pay which is given to the employees who are taken on permanent basis. This appears to be a very sound argument. The only plea was that whatever is given to such employees in other departments, same benefit be extended to the respondents as well. It is difficult to countenance this submission which we find to be legally impermissible. That is hardly any justifiable response to rebut the same. It is to be kept in mind that members of respondent union were all engaged on daily wage basis. No doubt, the appellant Government decided to confer certain benefits upon these daily wage workers depending upon the number of years of service they put in. Judgment dated July 09, 2013 proceeds on that basis. Under certain circumstances, namely, on completion of specified number of years of service on daily wage basis, these daily wage workers are entitled to become permanent. On attaining the status of permanency/regular employees, they become at par with those employees who were appointed on permanent basis from beginning, after undergoing the proper selection procedure on proving their merit. These daily wagers cannot be given the pay scales which are even better than the pay scales given to regularly appointed employees. The Rules are statutory in nature (arising out of SLP (C) No. 43592 of 2018) & Anr. which have been framed in exercise of powers conferred by the proviso to Article 309 of the

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Constitution. On becoming permanent, such daily wagers can, at the most, claim that they be fitted in the job descriptions in terms of the said pay rules and their pay be fixed accordingly. The appellant is ready to do that. We, therefore, accept the plea mentioned in exception (i) above."

4.2 From the above quoted paragraph, it would clearly appear that the

Hon'ble Apex Court had inter alia clarified that upon an employee, who

had originally been appointed on daily-wages, completing a specific

number of years, more particularly the same being in consonance with

Section 25B of Industrial Disputes Act, then the employee is entitled to

be granted benefits of permanency. The Hon'ble Apex Court has also

further inter alia observed that upon attaining the status of permanency

the employee, who was born in the department as daily-wager is entitled

to be treated at part with employees, who have been appointed on regular/

permanent basis by way of direct selection.

4.3 In case of State of Gujarat and Anr. Vs. Mahendrakumar

Bhagvandas & Another, reported in 2011(2) GLR 1290 the Division

Bench of this Court had stated the very position as stated by the Hon'ble

Apex Court as noted herein above and whereas the Division Bench had

also observed that the employees, upon being granted the benefits of

permanency are also entitled to be granted the benefits of pension, higher

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pay scale, etc. Furthermore, in case of unfortunate demise of an

employee, as per the emanating from the judgment, the legal heirs of the

employee would also be entitled to grant of lump sum compensation/

compassionate appointment as per the extant policy of the State in that

regard.

4.4 At this stage, this Court seeks to rely upon observations made by

this Court in order dated 15.09.2023 in Special Civil Application No.

14290 of 2022 and allied matter, paragraph Nos. 3, 4 and 5 being relevant

for present purpose, are reproduced hereinbelow for benefit.

"3. By way of these petitions, the petitioners interalia, question of the respondent authorities, whereby the petitioners have been denied the benefit of lump sum compensation as per the GR dated

05.07.2011 as modified vide GR dated 07.04.2016, in lieu of compassionate appointment, more particularly, on the ground that employee concerned was working in daily wages.

4. Considering the submission of learned advocate for the petitioner and whereas while the issue is sought to be contested by learned AGP Ms. Sarda, it would appear that the law on this issue is no more res-integra. More particularly, it would appear that the learned Co-ordinate Bench of this Court vide judgment dated 14.02.2022, in Special Civil Application No.11554 of 2021, have clearly observed that the legal heirs of the employees of the similar nature as of the present petitioner would be entitled to be considered as permanent daily wager, more particularly, in view of law laid down by the Division Bench of this Court in case of Mahendrakumar Bhagwandas Vs.State of Gujarat reported in 2011 (2) GLR 1290 and whereas on such basis the learned Co- ordinate Bench had directed the respondents to consider the case of the respondents therein, for extension of benefits as per GR dated

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05.07.2011 and 07.04.2016. It would further appear that Division Bench of this Court in a recent decision dated 24.08.2023, in Letters Patent Appeal No. 934 of 2023 and the allied matters, where the Division Bench was concerned with the issue of similar nature has observed at paragraph. 5.1, which is reproduced as under:

"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."

5. Having regard to the above, more particularly, since the issue is no more res-integra, in the considered opinion of this Court, the petitioners could not have been denied the benefits of the policy of the State Government on the aforementioned ground."

4.5 In case of Executive Engineer Panchayat (MAA & M)

Department and Another Vs. Samudabhai Jyotibhai Bhedi & Ors.,

reported in 2017(4) GLR 2952, Division Bench of this Court had taken

the view that upon completion of a certain number of years, while the

employees concerned would be entitled to claim permanency and

whereas the period of service put in by the employees concerned on the

date when they were treated as permanent employees was to be treated as

continuous service for deciding pension as available to the petitioners.

4.6 It would also be pertinent to mention here that in a proceeding

before the Hon'ble Apex Court i.e. in SLP No.7229 of 2022, the State has

accepted its liability of paying leave encashment of 300 days to the

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employees, who have been granted permanency under G.R. dated

17.10.1988.

4.7 In case of Workmen of American Express International

Banking Corporation Vs. Management of American Express

International Banking Corporation, reported in (1985) 4 SCC 71, the

Hon'ble Apex Court has inter alia laid down that while computing the

period of service rendered by an employee under Section 25 of ID Act,

Sundays and Public Holidays also to be added. The said decision though

not expressly as regards the scope and ambit of G. R. dated 17.10.1988,

yet the law laid down is to be followed while computing the number of

days having put in by an employee while considering his case for grant of

benefits under the said Government Resolution.

5. In the opinion of this Court, these are but few landmark decisions

of the Hon'ble Apex Court as well as this Court on the issue of G.R.

dated 17.10.1988 and whereas it would appear, as of now, that except for

four benefits namely; (i) transportation allowances (ii) travelling

allowances (iii) Leave Travel Concession (LTC) (iv) arrears of 5th Pay

Commission to the Daily wagers from 01.01.1996 to 31.12.1997, which

issue is pending consideration of the Hon'ble Apex Court in SLP

No.4827 of 2023, an employee, who has been made permanent as per the

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terms of G.R. dated 17.10.1988 would be entitled to all other benefits as

would be entitled to a regularly appointed employee.

6. Considering that except the issues as mentioned in the above

paragraphs which are pending consideration of the Hon'ble Supreme

Court, more or less issue with regard to payment of all other benefits and

the method of computing the days put in by the employee, now no more

in dispute, hence the following directions are passed :

(i) The respondent No.3 in consultation with the respondent

No.2 shall consider the case of the petitioner for grant of benefit

under the Government Resolution dated 17.10.1988, more

particularly considering the attendance sheet/chart showing the

attendance of the late employee from the year 1984 till the year

2016 which is annexed with the present petition.

(ii) The exercise contemplated shall be done by the concerned

respondents within a period of eight weeks from the date of receipt

of this order.

(iii) The respondents shall also give benefit of adding Sundays

and public holidays to the number of days actually worked by the

late employee, more particularly as per the law laid down by the

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Hon'ble Apex Court in case of American Express International

Banking Corporation Vs. Management of American Express

International Banking Corporation, reported in (1985) 4 SCC