Gujarat High Court
Late Maganbhai Babubhai Thakarda ... vs State Of Gujarat on 10 January, 2024
Author: Nikhil S. Kariel
Bench: Nikhil S. Kariel
NEUTRAL CITATION
C/SCA/341/2024 ORDER DATED: 10/01/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 341 of 2024
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LATE MAGANBHAI BABUBHAI THAKARDA THROUGH BUDHIBEN MAGANBHAI THAKARADA
Versus
STATE OF GUJARAT
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Appearance:
MR VK JOSHI(2329) for the Petitioner(s) No. 1
for the Respondent(s) No. 2,3
ADVANCE COPY SERVED TO GOVERNMENT PLEADER/PP for the Respondent(s) No. 1
MS NIRALI SHARDA, AGP for the Respondent(s) No.1
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CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
Date : 10/01/2024
ORAL ORDER
1. Rule returnable forthwith. Learned Assistant Government
Pleader 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: -
"(A) Your Lordships may be pleased to admit and allow
this petition;
(B) Your Lordships may be pleased to issue the writ of
mandamus or any other appropriate writ, order or
directions, directing the Respondent authorities to pay the
gratuity and Leave Encashment of 300 days as per the
Government Resolution issued by R & b Department dtd.
24.01.2023 and the Resolution dtd.07/10/2022 in the
interest of justice.
(C) Pending admission, hearing and final disposal of this
petition, this Hon'ble Court may be please to direct the
respondents to take immediate steps for payment of
gratuity and leave encashment amount.
(D) Your Lordships may be pleased to grant such other
and further relief that may be deemed fit and proper in
the facts and circumstances of the case."
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3. Heard learned Advocate Ms. V.K. Joshi for the petitioner,
learned Assistant Government Pleader Ms. Nirali Sarda for the
respondent - State.
4. Learned Advocate for the petitioner submitted that the
issue in the present petition pertains to grant of benefit of 300
days unavailed earned leave from the initial date of
appointment. The prayers in relation to other benefits, if any,
referred in this petition, is not pressed at this stage.
4.1. Learned Advocate for the petitioner 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 petitioner
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 petitioner submitted that present petitioner was
working with the respondents department for more than 3
decades and had retired upon attaining the age of
superannuation and, therefore, considering continuous service,
the petitioner is entitled for the benefits of leave encashment
as well as pension and gratuity.
4.2. Learned Advocate would submit that by Government
Resolution dated 21.10.2022, Irrigation Department,
NEUTRAL CITATION
C/SCA/341/2024 ORDER DATED: 10/01/2024
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Gandhinagar had issued directives for implementation of the
decision of the Hon'ble Supreme Court in Special Leave
Petition (C) No.7229 of 2022.
5. In relation to leave encashment vide Government
Resolution dated 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;
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C/SCA/341/2024 ORDER DATED: 10/01/2024
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(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 AGP for the respondent - State.
7. It is also not in dispute that for counting entire length of
service for payment of 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.
8. In view of the above said position, this Court deems it
appropriate to direct the respondents to undertake scrutiny of
case of the petitioner herein, and upon such scrutiny, if the
petitioner is found eligible then a proposal for considering the
case of the petitioner 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
petitioner herein expeditiously and in consonance with the
State policy.
9. It is reported that in many of such matters, the
concerned department has already moved a proposal to the
State Government in this regard. However, wherever such
proposal is not moved, the same shall be moved by the
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concerned department within a period of eight weeks from the
date of receipt of copy of writ of this order.
10. The aforesaid exercise shall be completed within a period
of twelve weeks from today.
11. With the aforesaid, the petition stands disposed of. Rule
made absolute to the aforesaid extent. Direct service is
permitted.
(NIKHIL S. KARIEL,J)
Manoj Kumar Rai
