Gujarat High Court
Pareshbhai Manubhai Thakore vs Secretary on 17 January, 2024
Author: Nikhil S. Kariel
Bench: Nikhil S. Kariel
NEUTRAL CITATION
C/SCA/21320/2023 ORDER DATED: 17/01/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 21320 of 2023
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PARESHBHAI MANUBHAI THAKORE
Versus
SECRETARY
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Appearance:
MR UT MISHRA(3605) for the Petitioner(s) No. 1
for the Respondent(s) No. 2
MR ADITYA PATHAK, AGP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
Date : 17/01/2024
ORAL ORDER
1. Heard learned advocate Mr.U.T.Mishra on behalf of the petitioner
and learned Assistant Government Pleader Mr.Aditya Pathak on behalf of
the respondent - State.
2. By way of this petition, the petitioner inter alia seeks for being
granted the benefits of Government Resolution dated 17.10.1988.
3. Considering the submissions made by learned advocate Mr.Mishra, it
would appear that the case of the petitioner has not been considered by the
respondents as yet for grant of the said benefits. It would also appear that
the petitioner has preferred representation dated 02.11.2023 for considering
the case of the petitioner for the benefit under GR dated 17.10.1988.
4. Having regard to such a circumstance, in the considered opinion of
this Court, at this stage, ends of justice would be met if the respondents are
directed to decide the representation preferred by the petitioner within a
specific period of time.
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C/SCA/21320/2023 ORDER DATED: 17/01/2024
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4.1. Learned advocate Mr.Mishra and learned AGP Mr.Pathak would not
have any objection to such a course being taken.
5. This Court also deems it appropriate to quote certain judgments of
this Court as well as of the Hon'ble Apex Court whereby, the scope and
ambit of the GR dated 17.10.1988 has been explained.
5.1. 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)
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C/SCA/21320/2023 ORDER DATED: 17/01/2024
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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."
5.2 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 par with employees,
who have been appointed on regular/permanent basis by way of direct
selection.
5.3 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 pay scale, etc. Furthermore, in
case of unfortunate demise of an employee, as 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.
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5.4 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 resintegra. 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
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."
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C/SCA/21320/2023 ORDER DATED: 17/01/2024
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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."
5.5 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.
5.6 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
employees, who have been granted permanency under G.R. dated
17.10.1988.
5.7 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
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Resolution.
6. 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 terms of G.R. dated
17.10.1988 would be entitled to all other benefits as would be entitled to a
regularly appointed employee.
7. Furthermore, it also requires to be noted that vide Government
Resolution dated 18.03.2023, the State Government through Forest
Department has also inter alia in principle decided to extend the benefit of
7th Pay Commission to employees who have been granted the benefit of
permanency under Government Resolution dated 17.10.1988, and whereas
the respondents would also be required to consider the case of the
petitioner in light of the said Resolution.
8. Considering the above, the respondents are required to be directed to
consider the case of the petitioner in line of the law laid down by this Court
as well as the Hon'ble Apex Court discussed hereinabove and whereas, the
following directions are passed:-
(i) The representation preferred by the petitioner dated
02.11.2023 shall be decided by the respondent no.2 within a period of
six weeks from the date of receipt of this order.
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(ii) In case the petitioner is declared to be entitled for the benefits
of GR dated 17.10.1988 or such GR that may be applicable in case of
the present petitioner, then appropriate benefits including the
payment, placement etc. shall be carried out by the respondents
within a period of four weeks thereafter.
8.1. In case the petitioner is aggrieved by the decision which would be
taken by the respondent no.2, then it would be open for the petitioner to
challenge the same before the appropriate forum in accordance with law.
8.2. Needless to clarify that this Court has not made any observations on
the merits of the matter and it would be open for the respondent authorities
to take a decision in accordance with law and in line of the decisions of this
Court as well as the Hon'ble Apex Court referred to hereinabove.
9. With these observations and directions, the present petition stands
disposed of. Direct service is permitted.
(NIKHIL S. KARIEL,J)
BDSONGARA
