Gujarat High Court

Asari Shantilalkavaji vs State Of Gujarat on 16 January, 2024

Author: Nikhil S. Kariel

Bench: Nikhil S. Kariel

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       C/SCA/699/2024                                ORDER DATED: 16/01/2024

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 699 of 2024
                                  With
               R/SPECIAL CIVIL APPLICATION NO. 706 of 2024
                                  With
               R/SPECIAL CIVIL APPLICATION NO. 709 of 2024
                                  With
               R/SPECIAL CIVIL APPLICATION NO. 714 of 2024
                                  With
               R/SPECIAL CIVIL APPLICATION NO. 725 of 2024
                                  With
               R/SPECIAL CIVIL APPLICATION NO. 727 of 2024
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                          ASARI SHANTILALKAVAJI
                                  Versus
                            STATE OF GUJARAT
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 Appearance:
 NIRAV V PARGHI(8032) for the Petitioner(s) No. 1
 for the Respondent(s) No. 2,3,4
 MR SAHIL TRIVEDI, AGP for the Respondent(s) No. 1
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     CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL

                            Date : 16/01/2024
                          COMMON ORAL ORDER

1. Heard learned Advocate Mr. Nirav Parghi for the petitioners and

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

2. By way of these petitions, the petitioners have inter alia raised a

grievance that though they have been working as daily wagers since

numbers of years, the respondents are not according the benefits of

Government Resolution dated 17.10.1988.

3. It is submitted that the petitioners are now being paid salary at a rate

much less than what the petitioners are entitled to, if the respondent

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authorities had granted the benefit of the Government Resolution 17.10.1988

and subsequent Government Resolutions dated 15.09.2014 and 06.04.2016.

It is further submitted that most of the petitioners have completed such time

period by which if their services were considered, as per the Government

Resolution dated 17.10.1988, then the petitioners would have been entitled

for regularization and all consequential benefits arising from the same.

4. Considering the fact that as of now, there does not appear to be any

decision by the respondents where the fact of the petitioners being entitled

for benefits under the Government Resolution dated 17.10.1988, has been

considered by the respondents authorities, in the considered opinion of this

Court, the grievance of the petitioners could be assuaged at this stage if the

respondents are directed to decide a representation which would be preferred

by the petitioners individually. Learned Advocate Mr. Parghi and learned

AGP Mr. Sahil Tivedi would not have any objection to such a course of

action.

5. Before passing an order in the above terms, this Court deems it

appropriate to refer to certain decisions of the Hon'ble Apex Court as well as

this Court, where the scope and ambit of the Government Resolution dated

17.10.1988 has been laid down.








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6. 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 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.







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7. 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.

8. 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 pay scale, etc.

9. 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

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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.

10. 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

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

17.10.1988.

11. 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.







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12. The above are but few of the important decisions on the aspect of the

applicability of the G. R. dated 17.10.1988 and whereas the above law as

well as any further decisions that would have been passed by this Court or

Hon'ble Apex Court shall be kept in mind by the respondents while deciding

the representation which the petitioners would prefer individually.

13. In view of the above observations, the following directions are

passed.

(i) The petitioners i.e. each of the petitioners to prefer an

individual representation before the concerned respondents i.e. the

Range Forest Officer of the Range in which they are working within

a period of three weeks from today, with a copy to the Deputy

Conservator of Forest of the Range concerned.

(ii) The Range Forest Officer concerned, in consultation with the

Deputy Conservator of Forest, and if required, in consultation with

the Principal Chief Conservator of Forest, shall decide the

representation of the petitioners within a period of six weeks from

the date of receipt thereof.