Gujarat High Court
Maganbhai Nagarbhai Patel vs State Of Gujarat on 24 September, 2020
Author: Biren Vaishnav
Bench: Biren Vaishnav
C/SCA/11631/2020 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 11631 of 2020
==========================================================
MAGANBHAI NAGARBHAI PATEL
Versus
STATE OF GUJARAT
==========================================================
Appearance:
MR KRISHNAN GHEARIYA, ADVOCATE for MR MURALI N DEVNANI(1863)
for the Petitioner(s) No. 1,2,3,4,5,6,7
for the Respondent(s) No. 2,3,4,5,6
MR IG JOSHI, AGP (99) for the Respondent(s) No. 1
==========================================================
CORAM: HONOURABLE MR. JUSTICE BIREN VAISHNAV
Date : 24/09/2020
ORAL ORDER
1. Rule returnable forthwith. Learned Assistant Government Pleader Mr.Ishan Joshi waives service of notice of rule for the respondent - State.
2. With the consent of the learned advocates appearing for the respective parties, matter is taken up for final hearing today.
3. Heard learned advocates appearing for the respective parties through Video Conferencing.
Page 1 of 8 Downloaded on : Fri Sep 25 02:39:29 IST 2020 C/SCA/11631/2020 ORDER4. The issue raised in this petition in context of the prayers made that the petitioners be given the benefits of 300 days of privilege leave and revised the pension as well as gratuity calculating from the date of an initial appointment is covered by a decision, of which the petitioner has extensively referred to in the petition in the case of Vallabhbhai Chhotubhai Chauhan v.
State of Gujarat in SCA No.1945/2014 dated 8.7.2015, in which, this Court in Paragraph Nos.4 and 5, has held as under:
"4. I need not adjudicate this petition on merits since the issue raised in this writ application is squarely covered by a decision of this Court dated 20.08.2014 in Special Civil Application No.5530 of 2003 and a Division Bench decision of this court in the case of State of Gujarat & Anr. v. Mahendrakumar Bhagvandas & Anr. reported in 2011 (2) GLR 1290. It appears that the learned single judge relied on the Division Bench decision of this Court referred to above. I may quote the relevant observations of the Division Bench as under:-
"3. According to G.R. dated 17.10.1988, a committee under the Chairmanship of Honourable Minister, Shri Daulatbhai Parmar, was constituted to consider conditions of service of daily rated labourers and artisans employed in several departments of the State Government. That committee had submitted its report and it was resolved to accept recommendations of the committee and provide several benefits to the workmen concerned with effect from 1.10.1988. Those benefits included payment of minimum wages, paid weekly holidays, medical facility and national holidays. After completion of five years of continuous service in terms of provisions of Section 25B of the Industrial Disputes Act, 1947 such daily rated employees were to be entitled to fixed monthly salary of Rs.750/with dearness allowance prevalent from time to time and few more benefits of paid holidays and leave wages as well as membership of provident fund. It is stipulated in Clause3 of the G.R. dated 17.10.1988 that daily rated employees, who had completed, as on 1.10.1988, continuous service of ten years in terms of the provisions of Section 25B of the Industrial Disputes Act, 1947, would be treated as permanent and such permanent employees shall be entitled to the pay scale of Page 2 of 8 Downloaded on : Fri Sep 25 02:39:29 IST 2020 C/SCA/11631/2020 ORDER Rs.750940/ and shall also be paid dearness allowance and house rent allowance accordingly. They would also be entitled to pension, gratuity and benefits of provident fund in accordance with prevalent rules. The age of superannuation for such permanent labourer is fixed at 60 years and the period of permanent service is to be counted as pensionable service. It is further stipulated that the employees, who had completed 15 years of service as on 1.10.1988, shall be placed in the pay scale as aforesaid and their age for retirement shall be 60 years. Such workers, who would have completed 15 years of service on 1.10.1988, were to be entitled to one increment, and the employees, who had completed 25 years of service were to be granted three increments, before fixing their wages in the pay scale on 1.10.1988.
Bare reading of above stipulations contained in the G.R. Dated 17.10.1988 makes it crystal clear that upon completion of ten years of service, in terms of the provisions of Section 25B of the Industrial Disputes Act, 1947, on or before 1.10.1988, daily rated employees to whom the G.R. applied were to be treated as permanent employees with concomitant benefits. It is further clarified and resolved in clause (10) of subsequent resolution dated 18.7.1994 that the employees, who were completing 5/10/15 years of continuous service due to which whose categories would change should be immediately accorded benefits of the category in which such employees would fall. Government Resolution dated 18.7.1994 is, according to its own preamble, meant to supersede earlier instructions issued vide government resolution dated 3.11.1990. The instructions are primarily meant to regulate treatment of daily rated employees, who had completed one or more years of service on 1.10.1988, with the stipulation that such employees shall continue to be treated as daily rated employees.
Detailed instructions have been issued in said government resolution for categorizing such daily rated employees and maintaining their seniority lists, as also for regulating their pension and termination of their service by way of retrenchment. At the end, in Clause 15 of the government resolution, it is stipulated that the word 'permanent' as used in G.R. dated 17.10.1988 is intended to provide protection of service but not for treating such employees on regular establishment of the government.
As noted earlier, subsequent G.R. dated 18.7.1994 is expressly superseding the instructions contained in government resolution dated 3.11.1990 but does not supersede original G.R. dated 17.10.1988. It is also an admitted position that most of substantive benefits of permanent service are already accorded to the employees concerned in terms of G.R. dated 17.10.1988. Under such circumstances, it was argued that nomenclature for treating the employees concerned as permanent was clarified by the government, and hence, denial of few benefits was justified and in order. However, no ground or rational basis could be made out for grant of most of the benefits to most of the employees in terms of G.R. dated 17.10.1988 and for denial of the remaining few benefits. Once the employees concerned were, in fact, treated for all purposes as permanent employees in terms of G.R. Dated 17.10.1988, any discrimination or denial of benefits for a segment of such employees, who were subsequently rebranded as "daily wager"
(rojamdar) by G.R. dated 18.7.1994, could not be rationally explained and could not be countenanced in the face of Articles 14 and 16 of the Constitution. Nor can the State Government legally take away the Page 3 of 8 Downloaded on : Fri Sep 25 02:39:29 IST 2020 C/SCA/11631/2020 ORDER rights conferred and benefits, already accorded to the employees concerned by or under a subsequent government resolution, which expressly supersedes earlier instructions and not earlier G.R. dated 17.10.1988 by which the benefits were accorded to the employees. It also sounds absurd and baseless that employee employed on daily wage basis for 15 years would be made permanent under G.R. dated 17.10.1988 but subsequently rebranded and treated as a daily wager. The submission of learned AGP that such employees had to continue as daily wage employee, with limited benefits in terms of subsequent G.R. dated 18.7.1994 and that they were at best "permanent daily wage employees", is contradictory and has no backing of any legal provision or precedent. Therefore, there is no reason to interfere with the impugned common judgment except for the clarification made hereunder.
Letters Patent Appeal Nos.960, 961, 964 and 965 of 2001 are preferred from common oral judgment dated 6.4.2000 of learned Single Judge of this Court, inter alia, in Special Civil Application Nos.28, 64, 67 and 68 of 1988 whereby original petitioners, working under the appellants herein, were directed to be given benefits in following terms:
".................In terms of the order passed in earlier case on 23/10/1999, the respondents are directed to extend all the benefits of regular employees to the petitioner, who have been made permanent employees in regular scale of pay for more than 10 years of service. They should not be discriminated with other employees. With the aforesaid observations and direction all the petitions are allowed and accordingly disposed of "
Apparently the aforesaid resolution dated 18.7.1994 was not pressed into service when the impugned judgment dated 6.4.2000 was delivered. It is observed by learned Single Judge as under:
". It appears that the Government Resolution is very clear that these petitioners who have completed more than 10 years as daily workers will be treated as permanent employees and they will get regular scale of pay. When these employees are treated as permanent employees with regular scale of pay, I do not find any reasons that they will be deprived of the benefits given to other government employees of same category. There cannot be any confusion about the Government Resolution and it is obligatory on the part of the government to extend all the benefits to these petitioners, who have been regularized on regular posts with regular scale of pay" Letters Patent Appeal No.962 of 2001 is preferred from oral judgment dated 23.10.1999 of learned Single Judge in Special Civil Application No.5757 of 1988. In that impugned judgment also, the petition was allowed with the direction to treat all the workmen concerned as permanent employees and to treat them at par with other employees and to grant all the benefits as such. Thus, common issue of interpretation and application of relevant clause of government resolution dated 17.10.1988 is involved in all the appeals and it is decided as aforesaid against the appellant, in the facts and circumstances of each case."
5. In view of the above, it is declared that the petitioner is entitled for the encashment of the Unavailed Privilege Leave to the extent of 300 days ."
Page 4 of 8 Downloaded on : Fri Sep 25 02:39:29 IST 2020 C/SCA/11631/2020 ORDER5. Even reliance is placed by Mr.Ghevariya, learned counsel for the petitioners on a decision rendered on 13.8.2020 in SCA No.7886/2020 wherein this Court relied on a decision in the case of State of Gujarat and Anr. v. Mahendrakumar Bhagvandas and Anr.
[2011 (2) GLR 1290], The order dated 13.8.2020 passed in SCA No.7886/2020 reads as under:
1. Heard Mr.Shalin Mehta learned Senior Advocate with Ms.Shikha Panchal learned advocate for the petitioner, Mr.K.M.Antani learned AGP appearing for respondent Nos.1 and 2 and Mr.Nirzar Desai learned advocate for respondent nos.3 and 4.
2. Rule returnable forthwith. With the consent of the learned advocates for the respective parties, the present petition is taken up for final hearing.
3. The prayer in the petition is that the petitioner be extended the benefits of leave encashment at the time of retirement and counting of service from the date of joining for the purposes of pension and gratuity.
4. The issue no longer requires extensive consideration. It is undisputed that the petitioner joined the services as a daily wager on 12.03.1985 and retired on 30.06.2016 rendering 31 years of service. It is also undisputed that the petitioner was also extended the benefits of Government Resolution dated 17.10.1988 except those for which the petition is filed i.e. leave encashment and counting of service from the date of joining for the purposes of pension.
5. The issue has been reiterated and reconsidered by several decisions of this Court. The Division Bench of this Court in Letters Patent Appeal No.1567 of 2018 and allied matters, by a judgment and order dated 28.12.2018, where the Division Bench confirmed the order of the learned Single Judge which considered the relevant decisions in context of the prayers in this petition.
A. Leave Encashment at the time of retirement and death. -State of Gujarat and Anr. v. Mahendrakumar Bhagvandas and Anr. [2011 (2) GLR 1290] [PARAS 2, 5 8] B. Counting of service from the date of joining for the purposes of pension: Tribhovanbhai Jerambhai vs. Dy. Executive Engineer, Sub-Division, R&B Deptt & Anr., reported in 1998 (2) GLH 1., Page 5 of 8 Downloaded on : Fri Sep 25 02:39:29 IST 2020 C/SCA/11631/2020 ORDER
6. The Division Bench has quoted that judgment in para 6 which reads as under:
"6. Next in line was the judgment in the case of Tribhovanbhai Jerambhai vs. Dy. Executive Engineer, Sub-Division, R&B Deptt & Anr., reported in 1998 (2) GLH 1., wherein this Hon'ble Court in paras 9 and 10 observed as under:
"9. In the resolution dated 17.10.1988, it has been envisaged that those workman who as on 01.10.1988 or thereafter completes ten years of continuous service to be counted in accordance with provisions of Section 25B of the Industrial Disputes Act shall be deemed to be permanent and amongst other benefits conferred on being treated as permanent their age of superannuation was fixed at 60 years and they were made entitled for pensionary benefit. By yet another resolution dated 30.05.1989 (Annexure-E) in which a specific query was raised at item No.(6) with reference to resolution dated 17.10.1988 about the calculation of period of qualifying service for the purpose of entitlement to pension in connection with the pensionary benefits made available to those daily wagers who are deemed to be permanent on completion of ten years of service and it was specifically made clear that within the meaning of resolution dated 17.10.1988, the service which is to be counted is that which can be said as continuous within the meaning of Section 25B with effect from the date of entry in the service is duty counted for the purpose of pension and pension has to be accordingly determined. This does not say that qualifying service is to be counted with effect from date of becoming permanent. This leaves no room of doubt that the resolution dated 17.10.1988 along with clarification issued on the various aspects of it vide resolution dated 30.5.1989 is in consonance with the provisions of Rule 248 of the Bombay Civil Services Rules, 1959 which provide that Government has not only power by general or special order to permit service other than pensionable service, for performing which a Government servant is paid from State revenues or from a local fund, to be treated as duty counting for pension and in issuing such an order Government is to specify the method by which the amount of duty shall be calculated for the purpose of pension. Once the Government has made it clear that those who have completed ten years of service as daily rated workman are to be deemed permanent with effect from and after 17.10.1988 and are entitled to various benefits on that basis including pension and thereafter has provided by the resolution dated 30.5.1989 that the continuous service for the purposes of pension, made available to employees under resolution dated 17.10.1988, is to be counted with effect from the date of entry in the service provided it can be continuous within the meaning of Section 25B of the Industrial Act, thus making it clear that once a daily rated workman is treated to be permanent under the resolution dated 17.10.1988 his entire continuous service from the date of entry until he retires including his services rendered prior to the date of his regularisation is taken into consideration for the purpose of computing pension or making pension available to such retired employee.
10. There is yet another aspect of the matter. Assuming that Bombay Civil Services Rules do not provide for grant of pension to those, who are not holding a permanent post in the service, then it must be held that daily rated workman working on daily wages, Page 6 of 8 Downloaded on : Fri Sep 25 02:39:29 IST 2020 C/SCA/11631/2020 ORDER are ex cadre employees and not governed by particular service rules, but are governed by terms of employment under which they have been engaged. This further leads to conclusion that area of employment on daily wages is not covered by statutory rules either promulgated under Act 309 or by other legislature enactment. That is the area left uncovered by specific law, and such employment is in exercise of general executive powers of the State and terms and conditions of such employment is governed by terms of order under which such employment is made and shall be further governed by orders made by State in exercise of its executive power from time to time. The resolution dated 17.10.88 and 30.5.89 shall thus govern the terms of employment of such employees. If considered from this view, the conclusion will be the same."
7. Mr.Nirzar Desai learned advocate for respondent nos.3 and 4 has taken this Court through the affidavit in reply filed to point out that the decision has been taken in accordance with the order passed by this Court and the representation is rejected by the order dated 06.08.2020.
8. Registry to take on record the affidavit in reply.
9. The Division Bench has considered several decisions of this Court and the issue for which the petition is filed is covered by a decision in the case of Mahendrakumar Bhagvandas (supra).
10. Accordingly, having considered the arguments of learned Senior Advocate Mr.Shalin Mehta, learned AGP Mr.Antani for the State and Mr.Nirzar Desai for respondent nos.3 and 4, the order dated 06.08.2020 is quashed and set aside. The petition is allowed.
11. The respondents are directed to give benefits of leave encashment and recompute the pension and the pensionary benefits by counting service of the petitioner from the initial date of his appointment i.e. 12.03.1985 and revise all the terminal benefits of the petitioner and pay such amounts within a period of 8 (eight) weeks from the date of receipt of copy of this order. Rule is made absolute. Registry to communicate the order through E-mail."
6. Considering the controversy involved in the petition which is now settled in view of the aforesaid decision, the respondents are directed to extend the benefits of 300 days privilege leave to the petitioners and also revised pensionary benefits including the terminal benefits in case of the petitioners and recompute the Page 7 of 8 Downloaded on : Fri Sep 25 02:39:29 IST 2020 C/SCA/11631/2020 ORDER pension and the pensionary benefits by counting the service of the petitioners from the initial date of appointment and the benefits that accrue to the petitioners in terms of privilege leave of 300 days and revised pensionary benefits together with the arrears shall be paid to the petitioners preferably within a period of 8 (eight) weeks from the date of receipt of copy of this order. However, at this stage, Mr.Ghevariya states that the prayer for interest is not pressed.
7. Rule is made absolute with no order as to costs.
8. The Registry to communicate the order through E-
mail.
(BIREN VAISHNAV, J) VATSAL / BIMAL Page 8 of 8 Downloaded on : Fri Sep 25 02:39:29 IST 2020