Mariyamben Kalabhai Sarvaiya vs Amreli District Panchayat
2024 Latest Caselaw 3912 Guj

Gujarat High Court

Mariyamben Kalabhai Sarvaiya vs Amreli District Panchayat on 1 May, 2024

Author: Nikhil S. Kariel

Bench: Nikhil S. Kariel

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            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 14198 of 2020

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                  MARIYAMBEN KALABHAI SARVAIYA & ORS.
                                 Versus
                   AMRELI DISTRICT PANCHAYAT & ORS.
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Appearance:
DECEASED LITIGANT for the Petitioner(s) No. 1
MR. VISHAL P THAKKER(7079) for the Petitioner(s) No. 1.1,1.2
MR C P CHANIYARA(6836) for the Respondent(s) No. 1,2
MR. DINESH N TRIVEDI(6256) for the Respondent(s) No. 1,2
NOTICE SERVED for the Respondent(s) No. 3
MR SAHIL TRIVEDI, AGP for the Respondent No.4
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 CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL

                               Date : 01/05/2024

                                ORAL ORDER

1. Heard learned advocate Mr.Vishal Thakkar on behalf of

the petitioners.

1.1. At the outset, learned advocate Mr.Vishal Thakkar seeks

permission to join Panchayat, Rural Housing and Rural

Development Department as respondent no.4 herein.

Permission is granted. The amendment be carried out

forthwith and a copy of the petition be supplied to the learned

Assistant Government Pleader Mr.Sahil Trivedi right away.

2. By way of this petition, the petitioners have sought for

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the following reliefs:-

"(A) Your Lordships be pleased to issue a writ of mandamus, or a writ in the nature of mandamus, or any other appropriate writ, order or direction, to the respondents to grant the benefits of Govt. Resolution dtd. 17.10.1988 to the petitioner, following the length of service of the petitioner and also as per the law laid down by the Hon'ble Apex Court of India;

(B) Your Lordships be pleased to issue a writ of mandamus, or a writ in the nature of mandamus, or any other appropriate writ, order or direction, to the respondents to grant the benefits of Govt. Resolution dtd. 17.10.1988 to the petitioner, following the length of service of the petitioner and also as per the law laid down by the Hon'ble Apex Court, pending the admission, hearing and final disposal of this petition;

(C) Your Lordships be pleased to direct the respondent authority to pay the difference of salary as per the prevailing pay commission from dt.

04.04.1991, as the services of the petitioner are eligible for benefit of Govt. resolution dtd. 17.10.1988, on completing 10 years of continuous service, along with interest in the interest of justice;

(D) Your Lordships be pleased to direct the respondent authority to pay the difference of salary as per the prevailing pay commission from dt. 04.04.1991, as the services of the petitioner are eligible for benefit of Govt. resolution dtd. 17.10.1988, on completing 10 years of continuous service, along with interest in the interest of justice, pending the admission, hearing and final disposal of this petition;

(E) Your Lordships be pleased to issue an order, writ in the nature of mandamus and / or certiorari or any other appropriate writ / order or direction to the respondent authorities to grant the petitioner the benefits of the prevailing Pay Commission from respective effective dates;

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(F) Your Lordships be pleased to direct the respondent to pay the amount of leave encashment to the extent of 300 days (unavailed privilege leave) to the petitioner;

(G) Your Lordships be pleased to direct the respondent authorities to extend the petitioner, the following benefits as contained in Government Resolution dated 17.10.1988 - (i) Transport Allowance, (ii) Travelling Allowance, (iii) Transfer Travelling Allowance, (iv) Leave Encashment, and (v) Leave Travel Concession;

(H) Your Lordships be pleased to declare the inaction of the respondent authorities in merging 50% of Dearness Allowance in the basic salary of the petitioner from 10.04.2004, as has been done in the case of the other daily-wagers working with the respondent by Government Resolution dated 08.10.2007 and pay them consequential arrears with interest at the rate of 12% per annum, as being bad in law, illegal, discriminatory, arbitrary;

(I) Pending admission, hearing and final disposal of the present petition, Your Lordships be pleased to direct the respondents to extend the benefits of prevailing subsequent Pay Commissions and merger of 50% of Dearness Allowance in the basic salary in light of order of this Hon'ble Court in LPA No. 326 of 2018;

(J) Your Lordships be pleased to grant such other and further reliefs as deemed fit in the interest of justice."

2.1. It is the case of the late employee that the respondent -

Municipality while computing the benefit as would be

available to the late employee under Government Resolution

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dated 17.10.1988 has relied upon a cut off date of 29.10.2010

till when the late employee would be entitled to the benefits

and whereas, it is submitted by learned advocate that such cut

off date would be applicable only in case of the Forest

Department and not in case of other departments.

2.2. Learned advocate Mr.Thakkar would rely upon decision

of the Hon'ble Division Bench of this Court in Letters Patent

Appeal No.1381/2015 and whereas it is submitted that the

Hon'ble Division Bench in the said decision has inter alia

observed that the cut off date would be applicable only with

respect to the daily wage workers of the Forest and

Environment Department.

2.3. Learned advocate would submit that under such

circumstances, the respondents may be directed to reconsider

the case of the late employee without any reference to the cut

off date.

3. Learned advocate Mr.Chaniyara on behalf of the

respondent - Municipality while attempting to justify order

dated 21.09.2020, could not show any law whereby the cut off

date of 29.10.2010 has been made applicable to daily waged

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workers of the departments other than the daily wage workers

of the Forest and Environment Department.

4. Learned AGP Mr.Trivedi would, having regard to the law

laid down by the Hon'ble Division Bench in Letters Patent

Appeal No.1381/2015, not be able to dispute the proposition

as regards the applicability of the cut off date of 29.10.2010.

5. Having regard to such a position, observations of the

Hon'ble Division Bench in decision dated 04.01.2016 in

Letters Patent Appeal No.1381/2015 more particularly at

paragraph nos.4 and 5 being relevant, are reproduced

hereinbelow for benefit:-

"4. If the facts of the present case are considered, the Labour Court has passed the award by directing to grant the benefits available to the respective workmen as per the Govt. Resolution dated 17.10.1988. The learned single Judge, in view of the above-referred decision of the Apex Court in the case of State of Gujarat & others (supra) did not find the case for interference. Mr. Munshaw is not right in submitting that the effect for permanency benefits etc. is to be given from 29.10.2010 as per the above-referred decision of the Apex Court in the case of State of Gujarat & others (supra). On the contrary, in paragraph-29 of the said decision, the Apex Court has observed, inter alia, that, "considering the facts and circumstances of the case, the finding of the Gujarat High Court dated 29.10.2010 in PWD Employees Union v. State of Gujarat and connected matters and the fact that the said judgment is binding between the parties, we are

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of the view that the appellants should be directed to grant the benefit of the scheme as contained in the Resolution dated 17.10.1988 to all the daily-wage workers of the Forest and Environment Department working for more than five years, providing them the benefits as per our finding at para 29 above. The appellants are directed accordingly." Entire paragraph-29 of the abovereferred decision of the Apex Court reads as under:

"29. As per the scheme contained in the Resolution dated 17-10-1988 all the daily-wage workers were not entitled for regularization or permanency in the services. As per the said Resolution the daily wagers are entitled to the following benefits:

"(i) They are entitled to daily wages as per the prevailing daily wages. If there is presence of more than 240 days in first year, daily wagers are eligible for paid Sunday, medical allowance and national festival holidays.

(ii) Daily wagers and semi-skilled workers who have service of more than five years and less than 10 years are entitled for fixed monthly salary along with dearness allowance as per prevailing standard, for his working days. Such daily wagers will get two optional leaves in addition to 14 miscellaneous leaves, Sunday leave and national festival holidays. Such daily wagers will also be eligible for getting medical allowance and deduction of provident fund.

(iii) Daily wagers and semi-skilled workers who have service of more than ten years but less than 15 years are entitled to get minimum pay scale on a par with skilled workers along with dearness allowance as per prevailing standard, for his working days. Moreover, such daily wagers will get two optional leaves in addition to 14 miscellaneous leaves, Sunday leave and national festival holidays. He/She will be eligible

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for getting medical allowance and deduction of provident fund.

(iv) Daily wagers and semi-skilled workers who have service of more than 15 years will be considered as permanent worker and such semi-

skilled workers will get current pay scale of skilled worker along with dearness allowance, local city allowance and house rent allowance. They will get benefit as per the prevailing rules of gratuity, retired (sic retiral) salary, general provident fund. Moreover, they will get two optional leaves in addition to 14 miscellaneous leaves, 30 days' earned leave, 20 days' half pay leave, Sunday leave and national festival holidays. The daily-wage workers and semiskilled workers who have completed more than 15 years of their service will get one increment, two increments for 20 years service and three increments for 25 years in the current pay scale of skilled workers and their salary will be fixed accordingly."

Hence, what is ordered by the Apex Court is grant of benefits as per the Govt. Resolution dated 17.10.1988 and not from the date as sought to be canvassed by the learned counsel for the appellant so as to deprive the benefits, if any, of the Govt. Resolution dated 17.10.1988.

5. Be it recorded that so far as the present case is concerned, the respondent no.1 is the workman in District Panchayat and in respect of the Panchayat employees, the policy of the government applies automatically which means that they are at par with the government employees. The status of the employees of Gujarat Water Supply & Sewege Board of whose matter reference is made by Mr. Munshaw cannot be said to be at par with the Panchayat employees. We leave it at that because the matter is pending before the Apex Court in the above-referred proceedings of Special Leave Petitions."

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6. Considering the observations made by the Hon'ble

Division Bench more particularly whereby the Hon'ble

Division Bench has confirmed the decision of the learned

Single Judge more particularly with regard to conferment of

benefits under Government Resolution dated 17.10.1988

without any reference to the cut off date of 29.10.2010, in the

considered opinion of this Court, the petition is required to be

allowed. Hence, the following directions are passed:-

(i) The respondents are directed to reconsider the case of

the late employee for grant of benefit under Government

Resolution dated 17.10.1988 without any reference to the cut

off date of 29.10.2010.

(ii) Such reconsideration would be done by the respondents

within a period of ten weeks from the date of receipt of this

order.

(iii) After such reconsideration, the respondents shall

forward an appropriate proposal to the newly joined

respondent no.4 for grant of all benefits as the late employee

may be entitled to and whereas the respondent no.4 shall

ensure that the benefits are paid to the petitioners within a

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period of six weeks from the date of receipt of such proposal.

7. With the above directions, the present petition stands

disposed of as allowed.

(NIKHIL S. KARIEL,J) Bhoomi