Gujarat High Court
Kaliben Wd/O Bachuji Thakor (Rathod) vs State Of Gujarat on 31 January, 2024
Author: Nikhil S. Kariel
Bench: Nikhil S. Kariel
NEUTRAL CITATION
C/SCA/287/2024 ORDER DATED: 31/01/2024
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 287 of 2024
========================================================
KALIBEN WD/O BACHUJI THAKOR (RATHOD)
Versus
STATE OF GUJARAT
========================================================
Appearance:
MR NILESH M SHAH(780) for the Petitioner(s) No. 1
for the Respondent(s) No. 2,3,4,5,6
MR SAHIL TRIVEDI ASSISTANT GOVERNMENT PLEADER/PP for the
Respondent(s) No. 1
========================================================
CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
Date : 31/01/2024
ORAL ORDER
1. Heard learned Advocate Mr. Nilesh Shah on behalf of the petitioner
and learned Assistant Government Pleader Mr. Sahil Trivedi on behalf of
the respondent - State.
2. By way of this petition the petitioner seeks for grant for benefits
under Government Resolution dated 17.10.1988 on account of the service
rendered by the late husband of the petitioner with the respondent-
Department.
3. Considering the submissions made by learned Advocate Mr. Shah it
would appear that late husband of the petitioner was employed with
respondent no. 5 as daily rated employee from 01.04.1983 and whereas the
late husband of the petitioner had sought for permanency by preferring
reference (LCD) No. 36 of 1993 during pendency of which the late husband
of the petitioner had been removed from service and whereas since prior
permission of the Court had not been taken, the said issue had been agitated
by preferring Complaint (ID) No. 2 of 1994. It would appear that the
NEUTRAL CITATION
C/SCA/287/2024 ORDER DATED: 31/01/2024
undefined
learned Labour Court, Surendranagar vide award dated 19.04.2010 had
partly allowed Complaint (ID) No. 2 of 1994 directing the respondents to
reinstate the late husbnad of the petitioner without backwages and whereas
ultimately the late husband of the petitioner had been reinstated on
13.05.2014. It appears that late husband of the petitioner had worked for
quite some time and since wages had not been paid, again late husband of
the petitioner had been requried to prefer Recovery Application No. 26 of
2014, claiming in total payment of wages of Rs. 1,91,234.80/- and whereas
since the said application had been partly allowed, the respondent had
preferred writ petition before this Court being Special Civil Application No.
2854 of 2018 which has been rejected by a learned Co-ordinate Bench vide
order dated 05.12.2018.
4. It is submitted that while the late husband of the petitioner had
worked with the respondents for approximately 33 years, the respondents
having not conferred the benefits of Government Resolution dated
17.10.1988, the late husband of the petitioner had preferred another
Recovery Application and whereas during pendency of the same, the late
husband of the petitioner expired on 07.03.2021 and whereas the recovery
application also subsequently came to be dismissed and whereas against
which late husband of the petitioner preferred writ petition being Special
Civil Application No. 1948 of 2022 and whereas this Court disposed of the
said writ petition vide an order dated 01.11. 2023 reserving liberty in favour
of late husband of the petitioner to prefer petition before this Court. It is
under such circumstances, present petition has been preferred.
5. Further considering the submissions it would appear that upon the
late husband of the petitioner having worked for 10 years with the
respondent where he had completed 240 days in each year he would be
entitled for the benefit of permanency and whereas he would be entitled for
NEUTRAL CITATION
C/SCA/287/2024 ORDER DATED: 31/01/2024
undefined
other consequential benefits also.
6. It further appears that since the respondents have not decided as
regards the entitlement of the late husband of the petitioner for grant of
benefits under Government Resolution dated 17.10.1988 at this stage it
would be expedient and in the interest of justice to direct the respondents to
decide the case of the present petitioner and whereas before passing of such
an order which would be apposite to reiterate the law laid down by this
Court as well as the Hon'ble Supreme Court on the scope and ambit of
Government Resolution dated 17.10.1988.
7. 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
NEUTRAL CITATION
C/SCA/287/2024 ORDER DATED: 31/01/2024
undefined
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.
8. From the above quoted paragraph, it would clearly appear that the
Hon'ble Supreme 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.
9. 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 Supreme 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.
10. In case of Executive Engineer Panchayat (MAA & M) Department
and Another Vs. Samudabhai Jyotibhai Bhedi & Ors., reported in 2017(4)
NEUTRAL CITATION
C/SCA/287/2024 ORDER DATED: 31/01/2024
undefined
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.
11. 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.
12. 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.
13. 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
Supreme Court shall be kept in mind by the respondents while deciding the
representation which the petitioners would prefer.
NEUTRAL CITATION
C/SCA/287/2024 ORDER DATED: 31/01/2024
undefined
14. Considering the above observations, the following directions are
passed.
(i) The petitioner to prefer detailed representation to the
respondent no. 5 with a copy to respondent no. 4 and respondent no. 3
for grant of benefit under G.R. dated 17.10.1988 for the services
rendered by late husband of the petitioner with the respondent within a
period of three weeks from today.
(ii) Upon receipt of such representation, the respondents concerned
shall consider and decide the same within a period of six weeks from
the date of receipt thereof.
(iii) Appropriate consequential benefits including pensionary
benefits, if any, shall be paid to the petitioner within a period of four
weeks thereafter.
(iv) In case the petitioner is aggrieved by any decision, which would
be taken by the respondents, as a whole or in part, then it would be
open for the petitioner to challenge the same before appropriate forum
in accordance with law.
(v) It is clarified that this Court has not gone into the merits of the
matter and whereas the respondents shall take appropriate decision
strictly in accordance with law and taking into consideration the law
laid down by the Hon'ble Supreme Court as well as this Court as
referred to hereinabove. At the same time, it requires to be observed
that the law as far as Government Resolution dated 17.10.1988 having
NEUTRAL CITATION
C/SCA/287/2024 ORDER DATED: 31/01/2024
undefined
been settled, except for the issue pending before the Hon'ble Supreme
Court, the respondents shall do well in applying the law laid down by
this Court and Hon'ble Supreme Court in this regard in its true
perspective.
15. With the above observations and directions, the present petition stands
disposed of. Direct service is permitted.
(NIKHIL S. KARIEL,J)
NIRU
