Gujarat High Court
Jitsingh Udesingh Vaghela vs State Of Gujarat on 28 February, 2020
Author: Biren Vaishnav
Bench: Biren Vaishnav
C/SCA/13755/2018 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 13755 of 2018
==========================================================
JITSINGH UDESINGH VAGHELA & 4 other(s)
Versus
STATE OF GUJARAT & 4 other(s)
==========================================================
Appearance:
MR MURALI N DEVNANI(1863) for the Petitioner(s) No. 1,2,3,4,5
MR ISHAN JOSHI, ASST GOVERNMENT PLEADER(1) for the
Respondent(s) No. 1,2,4,5
NOTICE SERVED(4) for the Respondent(s) No. 3
==========================================================
CORAM: HONOURABLE MR.JUSTICE BIREN VAISHNAV
Date : 28/02/2020
ORAL ORDER
1. The case of the petitioners is that they are entitled to the benefits of the Government Resolution dated 17.10.1988. The service details of the petitioners as evident from the tabular form at Annexure 'A' (page 21 of the paper book) indicates that they were appointed in the year 1983 and retired in the years ranging from 2013 to 2017. The tabular details are as under:
Sr. Name of Date of Date of Date of
No. Employee birth Appointment retirement
1) Jitsingh Udesingh 01/06/53 22/9/83 30/06/2013
Vaghela
2) Mohibhussain 01/06/54 06/07/83 30/06/2014
Amirmiya Bukhari
3) Kishorchandra 21/07/56 01/01/83 31/07/2016
Ratilal Soni
4) Yashwantrao 21/11/57 21/06/83 31/07/2017
Page 1 of 11
Downloaded on : Mon Jun 15 17:32:26 IST 2020
C/SCA/13755/2018 ORDER
Anantrao
Bhalekar
5) Jayendrabhai 25/10/55 20/10/83 31/07/2015
Ravjibhai Amin
2. It is the case of the petitioners that their cases are covered by the decision of this Court in State of Gujarat vs. Mahendrakumar Bhagvandas reported in 2011(2) GLR 1290 and Tribhovanbhai Jerambhai vs. Dy. Executive Engineer, Sub-Division, R & B Dept. & Another reported in 1998(2) GLH 1. Relevant paragraphs of the decisions read as under:
Mahendrakumar Bhagvandas (supra) 1.1 There is no controversy about the fact that all the petitioners, who entered service as daily rated employees, have by now been regularized in their service under the aforesaid Government resolution dated 17.10.1988 and most of the benefits under the Government resolution, available to regular government servants, were extended to the original petitioners. The petitions were, however, resisted on the ground that original petitioners were daily rated employees and the benefits accorded to the permanent employees of the government could not be extended to them. Learned Single Judge, after adverting to the background of resolution dated 1.10.1988 and 17.10.1988, has opined that the workman concerned enlisted in Annexure-A to each petition were regular permanent employees of the respondent and were entitled to all the benefits as permanent employees of the appellants herein.
Therefore, allowing the petitions, it is directed that all the workmen concerned be treated as permanent employees at par with other regular employees and that they shall be granted all the benefits as such.
5. As noted earlier, subsequent G.R. dated 18.7.1994 is expressly superseding the instructions Page 2 of 11 Downloaded on : Mon Jun 15 17:32:26 IST 2020 C/SCA/13755/2018 ORDER 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 re-branded 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 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 re-branded 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.
7. Apparently the aforesaid resolution dated Page 3 of 11 Downloaded on : Mon Jun 15 17:32:26 IST 2020 C/SCA/13755/2018 ORDER
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..................."
Tribhovanbhai Jerambhai (supra) "9. In the resolution dated 17.10.1988, it has been envisaged that those workman who as on 1.10.1988 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 30.5.1989 (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 Page 4 of 11 Downloaded on : Mon Jun 15 17:32:26 IST 2020 C/SCA/13755/2018 ORDER 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."
Page 5 of 11 Downloaded on : Mon Jun 15 17:32:26 IST 2020 C/SCA/13755/2018 ORDER2.1 It is submitted that in spite of their cases being covered by the aforesaid decisions, their cases have not been considered and their entire service prior to the granting of Government Resolution dated 17.10.1988 have not been considered for the purposes of pension.
3. This Court vide order dated 05.02.2020 passed in Special Civil Application No. 3100 of 2020 relied on a decision of the Division Bench rendered in the case of Executive Engineer, Panchayat (Road and Building) department vs. Samudabhai Jyotibhai Bhedi [2017(4) GLR 2952] and in the case of State of Gujarat vs. Suketu Amratlal Desai reported in 2019 JX (Guj) 490 and passed the following order:
"3 Prima facie, perusal of the pension orders indicate that the services rendered by the petitioners prior to their date of regularization appears to have been missed in calculating the pensionary benefits. Relying on a decision of this Court in the case of Executive Engineer Panchayat (Maa and M) Department vs. Samudabhai Jyotibhai Bhedi., reported in 2017 (4) GLR 2952, Mr.Ghevariya, learned counsel submits that by a decision rendered in this case, this Court has specifically held that for the purposes of computing the number of years of service, provisions of Section 25-B of the Industrial Disputes Act need to be taken into account. Relevant paragraph of the decision read as under:
"6 As is well known, under Government Resolution dated 17.10.1988, the Government decided to grant benefits of regularization and permanency to daily rated workers who had completed more than 10 years of actual service prior to such date, of course subject to certain conditions. One of the clauses in the said Government Resolution was that the benefit of regularization would be available to Page 6 of 11 Downloaded on : Mon Jun 15 17:32:26 IST 2020 C/SCA/13755/2018 ORDER those workmen who had completed more than 10 years of service considering the provisions of section 25B of the Industrial Disputes Act. They would get benefits of regular pay scale and other allowances, pension, gratuity, regular leaves etc. They would retire on crossing age of 60 years. That the period of regular service shall be pensionable.
7 This Government Resolution led to several doubts. The Government itself therefore came up with a clarificatory circular dated 30.05.1989, in which, several queries which were likely to arise were clarified and answered. Clause-6 of this circular is crucial for our purpose. The question raised was that an employee who had put in more than 10 years of service as on 01.10.1988, would be granted the benefit of Government Resolution dated 17.10.1988. In that context, the doubt was whether for the purpose of pension, the past service of completed years prior to regularization would be considered or whether the pensionable service would be confined to the service put in by the employee after he is actually regularized. The answer to this query was that those employees who had put in more than 10 years of service as per Government resolution dated 17.10.1988 would get the benefit of pension. For such purpose, those years during which the employee had fulfilled the provisions of section 25B of Industrial Disputes Act, such years would qualify for pensionary benefit.
8 two things immediately emerge from this clarification. First is that the query raised was precisely what is the dispute before us and second is that the clarification of the Government was unambiguous and provided that every year during which the employee even prior to his regularization had put in continuous service by fulfilling the requirement of having worked for not less than 240 days as provided under Section 25 B of the Industrial Disputes Act, would count Page 7 of 11 Downloaded on : Mon Jun 15 17:32:26 IST 2020 C/SCA/13755/2018 ORDER towards qualifying service for pension. In view of the clarification by the government itself, there is no scope for any further debate. The petitioner was correct in contending that having put in more than 10 years of continuous service as a labourer in the past, he had a right to receive pension upon superannuation. This is precisely what the learned Single Judge has directed, further enabling the employer to verify as to in how may years he had put in such service and then to compute his pension.
9 Learned counsel Shri Munshaw for the Panchayat however drew our attention to some other clauses of the said clarificatory circular dated 30.05.1989. None of these clauses have a direct bearing on the controversy at hand. These clauses merely refer to from which point of time such benefits may be available. It may be that benefits of regular services such as regular pay scale, leave, gratuity and pensionary benefits may be available only after regularization of an employee. However, this does not mean that his past continuous service would be wiped out for the purpose of of pensionary benefits. The stand of the authorities that only that service which the employee had put in after actual order of regularization would count for pension is thus in conflict with the Government circulars itself.
10 The issue can be looked from slightly different angle. As it likely to happen in many cases and appears to have happened in the present case, actual order of regularization may not be passed immediately upon an employee having put in 10 years of service for variety of reasons such as inaction on the part of the employee to press for such benefits, verification needed at the hands of the administration and sometimes, sheer inertia may delay actual regularization. Would that mean, the benefit of pension would be denied Page 8 of 11 Downloaded on : Mon Jun 15 17:32:26 IST 2020 C/SCA/13755/2018 ORDER to an employee because after the belated regularization he did not have sufficient time to render 10 years of qualifying service? The answer has to be in negative."
4 In a subsequent decision, in the case of State of Gujarat vs. Suketu Amratlal Desai., this court relying on the decision of Bhedi(supra), reported in 2019 JX(Guj) 490 and various decisions held as under:
"10 Having considered the submissions made by the learned counsels for the respective parties what appears on record is that the Government Resolution dated 17.10.1988 granted the benefits of regularization to Rojamdars on completion of ten years of service with effect from 01.10.1988. Question of interpretation and clarification arose as a result of which, the government brought in a resolution dated 30.05.1989. Clause 6 of the resolution dated 30.05.1989 unequivocally answers the question of date of calculation in the affirmative i.e. that for the purposes of calculating pensionable service, past service rendered prior to the regularization has to be taken into consideration for the purpose of pension. This, therefore, unequivocally demolishes the contention of the government that for the purposes of the payment of gratuity only the services rendered post 01.10.1988 needs to be accounted for.
11 Further the language of the resolution dated 24.03.2006 leaves no manner of doubt to sustain the finding of the learned Single Judge that the resolution is prospective and not retrospective. The learned Single Judge has considered the judgment in the case of Samudabhai Jyotibhai Bhedi (supra). Reading of the judgment in the case of Samudabhai Jyotibhai Bhedi (supra), unequivocally suggests that to a query that was specifically raised by virtue of the resolution dated Page 9 of 11 Downloaded on : Mon Jun 15 17:32:26 IST 2020 C/SCA/13755/2018 ORDER 30.05.1989, the government clarification was unambiguous and provided that every year during which the employee even prior to his regularization had put in continuous service by fulfilling the requirement of having worked for not less than 240 days as provided under Section 25B of the Industrial Disputes Act, 1947, would count towards qualifying services for pension. The Court held that in view of the clarification by the government itself, there was no scope for any further debate. The learned Division Bench held that it was correct for the petitioners therein to contend that having put in more than ten years of continuous service as a labourer in the past the petitioner therein had a right to receive pension upon superannuation.
11.1 Considering the law laid down in the case of Samudabhai Jyotibhai Bhedi (supra), we cannot but take a view similar to one taken in the judgment of Samudabhai Jyotibhai Bhedi (supra). Accordingly, we find no reason to find fault with the judgment of the learned Single Judge wherein the learned Single judge observed that for the purposes of calculating the benefits of gratuity, services rendered prior to the date of regularization i.e. 01.10.1988 needs to be considered."
5 Accordingly, in view of the position of law enunciated in the above two judgments, with the copy of this order, the petitioners shall submit a copy of this petition to the respondents within two weeks from today. On such petition being furnished, the respondent shall look into and reconsider whether the petitioners are entitled to the benefits of the decision rendered in by this court in the case of Executive Engineer Panchayat (Maa and M) Department vs. Samudabhai Jyotibhai Bhedi. (supra) and Suketu Desai (supra). This is particularly in view of the fact that prima facie, the Court feels that past period of service rendered by such petitioners prior to their regularization appears to have been missed while computing the Page 10 of 11 Downloaded on : Mon Jun 15 17:32:26 IST 2020 C/SCA/13755/2018 ORDER pension. The respondents shall take decision in accordance with law keeping in mind the aforesaid decision within a period of six weeks from the date of receipt of the representation. In the event, the decision is adverse to the petitioners, it will be open for the petitioners to apply afresh. The petition is accordingly disposed of accordingly. Direct service is permitted."
4. Apparently the present case is covered by the decision and the view taken by this Court in the abovementioned decisions and does not need any reiteration of facts and law.
5. Accordingly, the petition is allowed. The respondents are directed to consider the case of the petitioners for granting them continuity of service from the date of their initial appointment in accordance with the law laid down by this Court in Samudabhai Bhedi (supra) and the pensionary benefits and leave encashment of the petitioners to be fixed accordingly. Such benefits shall be revised and calculated from the date of their initial appointment. Direct service is permitted.
(BIREN VAISHNAV, J) DIVYA Page 11 of 11 Downloaded on : Mon Jun 15 17:32:26 IST 2020