Gujarat High Court
Somabhai Pratapbhai Maliwad vs State Of Gujarat on 18 July, 2022
Author: Biren Vaishnav
Bench: Biren Vaishnav
C/SCA/19828/2021 JUDGMENT DATED: 18/07/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 19828 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 19829 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 19834 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BIREN VAISHNAV
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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SOMABHAI PRATAPBHAI MALIWAD
Versus
STATE OF GUJARAT
==========================================================
Appearance:
MR HB SINGH(2073) for the Petitioner(s) No.
1,10,11,12,13,14,15,16,17,18,19,2,20,21,22,23,24,25,26,27,28,29,3,30,31,32,
33,34,35,36,37,38,39,4,40,41,42,43,44,45,46,47,48,49,5,50,51,52,53,54,55,5
6,57,58,59,6,60,61,62,63,64,65,7,8,9
MR.KURVEN DESAI, AGP for the Respondent(s) No. 1
NOTICE SERVED for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
Date : 18/07/2022
COMMON ORAL JUDGMENT
1. RULE returnable forthwith. Mr.Kurven Desai learned AGP waives service of notice of Rule on Page 1 of 17 Downloaded on : Wed Jul 20 20:59:35 IST 2022 C/SCA/19828/2021 JUDGMENT DATED: 18/07/2022 behalf of the respondent State.
2. With the consent of learned advocates for the respective parties, the petitions are taken up for final hearing.
3. Since the issue involved in these petitions is the same, Special Civil Application No.19828 of 2021 is taken as a lead matter for the purposes of this judgment.
4. The main prayers in the petition reads as under:
"(b) YOUR LORDSHIPS may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction, directing the respondents to forthwith revise the pension and gratuity by counting their services from the date of joining till date of retirement, in the light of settled law and binding position of law as mentioned herein above; and make the payment of arrears to the petitioners accordingly with interest @ 12% per from;
(c) During the pendency and final disposal of the present petition, YOUR LORDSHIPS may be pleased to direct the respondents to revise the pension and gratuity by counting their services from the date of joining till date of retirement, in the light of settled law and binding position of law as mentioned herein above; and make the Page 2 of 17 Downloaded on : Wed Jul 20 20:59:35 IST 2022 C/SCA/19828/2021 JUDGMENT DATED: 18/07/2022 payment of arrears to the petitioners accordingly with interest @ 12% per from;"
5. The petitioners working under the respondents in the Irrigation Department and having put in service of more than 25 years to 30 years and have retired on superannuation on various dates. Some of the workmen after their retirement have expired and are represented by their legal heirs. It is their case that by virtue of the Government Resolution dated 17.10.1988 the benefits of permanency and completion of 10 years under the respondents accrue in their favour.
6. Having retired from service, representations were made to the respondents for considering their initial 10 years of service rendered as daily wagers for the purposes of calculation of pension.
7. Mr.H.B.Singh learned counsel for the petitioner would rely on the pension payment orders to indicate that their past service rendered as daily Page 3 of 17 Downloaded on : Wed Jul 20 20:59:35 IST 2022 C/SCA/19828/2021 JUDGMENT DATED: 18/07/2022 wagers has not been counted from their initial date of appointment as service reckonable for pension.
8. Reliance is placed on a decision of this Court delivered in case of PWD Employees Union through President Saiyed Ibrahim and Ors. v.
State of Gujarat Through Secretary Narmada Water and Ors. rendered in Special Civil Application No.5530 of 2003.
9. The aforesaid order relying on a decision of this Court in case of State of Gujarat & Anr., Vs. Mahendrakumar Bhagvandas & Anr., [2011 (2) GLR 1290] reads as under:
"In all these petitions, the petitioners while relying upon Government Resolution dated 17/10/1988 which confer a status of permanency on daily rated employees on satisfaction of the criteria prescribed therein, have come out with a grievance that some of the benefits like leave encashment, public holidays, transport allowance, medical allowance, group insurance, counting of service from the date of joining for the purpose of pension, were not granted. Such benefits are therefore being reiterated by the petitioners in these group of petitions with the plea that they all were regularized and therefore must get all the benefits at par with regular employees.Page 4 of 17 Downloaded on : Wed Jul 20 20:59:35 IST 2022
C/SCA/19828/2021 JUDGMENT DATED: 18/07/2022 Having considered the rival contentions, this Court is of the opinion that the issue raised in these petitions is squarely covered by State of Gujarat & Anr., Vs. Mahendrakumar Bhagvandas & Anr., [2011 (2) GLR 1290]. Still, however, the State has preferred to oppose the petitions as if a private litigant. This Court is, therefore, required to address a question as to whether it would be permissible for the State to argue and re-argue the same question of law which was raised earlier in identical cases and was settled either by this Court or the Honble Apex Court of the country?
Having considered the affidavit-in-replies as also written submissions made by the State, it appears that the State is unable to distinguish this case from the facts of Mahendrakumar Bhagvandas (supra). A bare look at Mahendrakumar Bhagvandas (supra) indicates that all the arguments raised by the State in the affidavit-in-
reply as well as the written submissions are specifically addressed and answered by the Division Bench.
In such a scenario, it would be a sheer waste of time, money and energy for this Court to reinvest the said resources to address the issue identical to the one decided by the Division Bench of this Court. In such a context, this Court in V.A. Parekh Vs. State of Gujarat [2009 (5) GLR 3922] made following observations:
(1) It is immaterial that in a previous litigation the particular petitioner before the Court was or was not a party, but if law on a particular point has been laid down by the High Court, it must be followed by all authorities and Tribunals in the State.
(2) The law laid down by the High Court must be followed by all authorities and subordinate Tribunals when it has been declared by the highest Court in Page 5 of 17 Downloaded on : Wed Jul 20 20:59:35 IST 2022 C/SCA/19828/2021 JUDGMENT DATED: 18/07/2022 the State and they cannot ignore it either in initiating proceeding of deciding on the rights involved in such a proceeding.
(3) If in spite of the earlier exposition of law by the High Court having been pointed out and attention being pointedly drawn to that legal position in utter disregard of that position proceedings are initiated, it must be held to be a willful disregard of the law laid down by the High Court and would amount to civil contempt as defined in Section 2 (b) of the Contempt of Courts Act, 1971.
Further, this Court in SCA NO.28470 of 2007 & allied matters, has made following observations in paragraph Nos.6, 8 and 9:
6. In the opinion of this Court, once this Court settles the law, unless subsequently unsettled by the Higher Forum, it binds the State and it is the constitutional duty of the State to confer similar benefits to similarly situated persons without asking, in view of the equality clause contained in Articles 14 and 16 of the Constitution of India. It appears that ignoring the above-referred constitutional position, each individual department of the State sticks to its individual view rather than abiding by law declared by this Court. Such an approach, in the opinion of this Court, is contrary to public interest.
***
8.It is noticed that this Court is flooded with number of identical matters, as noticed in Paragraph-7. Number of decisions are rendered, reiterating the same issue over and over again. Once the High Court concludes a question of law, it has to be acted upon to the benefit of all similarly situated beneficiaries, irrespective of their filing the petition or other legal proceedings for claiming such benefits. If the judgment of the High Court settling the Page 6 of 17 Downloaded on : Wed Jul 20 20:59:35 IST 2022 C/SCA/19828/2021 JUDGMENT DATED: 18/07/2022 legal position is not implemented in the aforementioned manner, identical cases will go on multiplying, resulting into flooding of the litigation in already overburdened Courts. Not only that, considerable public time, money and energy gets involved in the avoidable litigation.
9. At times, it is noticed that different departments of the State would take their individual stand, contrary to the stand taken by the other department on the same or similar matter, perhaps because of lack of coordination between the two or more departments. It would be, thus, appropriate if the State evolves a policy to avoid the avoidable litigation as aforesaid. In fact, the State has already declared its litigation policy and it is desirable that under the said policy, the issue discussed in Paragraphs-8 and 9 is addressed by the State to save public time, money and energy in avoidable litigation.
Thus, in above view of the matter, this Court is not required to specifically address each and every issue that was raised and answered by the Division Bench in Mahendrakumar Bhagvandas (supra). In fact, as per the settled legal position in such a scenario, even the issues not raised before the bench of higher strength would not be permissible for the State to be raised in an identical case before a Single Judge. Only relevant aspect would be whether the Division Bench was concerned with the identical case or not and if the answer is in the affirmative, the Single Judge would not go into the detailed arguments as indicated above in absence of the plea that the decision in Mahendrakumar Bhagvandas (supra) has been overruled by a bench of higher strength or the Supreme Court.
Secretary, State of Karnataka & Ors. Vs. Umadevi & Ors. [AIR 2006 SC 1806] has been heavily relied upon by the learned AGP with the Page 7 of 17 Downloaded on : Wed Jul 20 20:59:35 IST 2022 C/SCA/19828/2021 JUDGMENT DATED: 18/07/2022 submission that illegal entries cannot seek as of right the benefits of regularization. True that, in Umadevi (Supra) the Honble Apex Court heavily came down on the action of the constitutional authorities in allowing a back-door entry in public service by a tool of regularization, but an exception in paragraph No.44 was carved out thus:
....We also clarify that regularization, if any already made, but not sub judice, need not be reopened based on this judgment, but there should be no further by-passing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme.
In the instant case also petitioners were regularized and only issue herein is as regards consequential benefits of such regularization.
Various issues raised in this petition have been addressed by this Court in the context of the identical facts in several decisions mentioned below:
Sr. Benefits Judgments/ orders Relevant No. Para 1 Public (i) CAV Judgment dated Para Holidays 14.10.2004 passed by Nos.28 the Honble Division and 29.
Bench in Letters Patent Appeal No.1037 of 2004.
(ii)Order dated 08.04.2005 passed in Special Leave to Appeal (CC) No.3719 of 2005. The said Special Leave to Appeal was filed against the judgment and order dated 14.10.2004 passed in Letters Patent Appeal No.1037 of 2004. Page 8 of 17 Downloaded on : Wed Jul 20 20:59:35 IST 2022 C/SCA/19828/2021 JUDGMENT DATED: 18/07/2022 Para Nos.5 (iii) State of Gujarat & and 8. Anr., Vs. Mahendrakumar Bhagvandas & Anr., [2011 (2) GLR 1290] 2 Transport State of Gujarat & Anr., Para Allowance Vs. Mahendrakumar Nos.2, 5 Bhagvandas & Anr., and 8. [2011 (2) GLR 1290] 3 Leave State of Gujarat & Anr., Para encashme Vs. Mahendrakumar Nos.2, 5 nt at the Bhagvandas & Anr., and 8. time of [2011 (2) GLR 1290] retirement and death 4 Counting (i) Tribhovanbhai Para Nos.9 of service Jerambhai Vs. Dy. and 11. from the Executive Engineer, Sub- date of Division, R & B Deptt &
joining for Anr., [1998 (2) GLH 1].
the Page
purpose of (ii) Oral order dated Nos.108 to
pension 06.08.1998 passed in 110.
LPA No.1495 of 1997 in
SCA No.7539 of 1997
(Chhaganbhai
Ranchhodbhai Rathod
Vs. Dy. Executive
Engineer).
Para Nos.4
(iii) Oral order dated and 5.
14.12.2005 passed in
SCA No.788 of 2005
(Shyam B Salunkhe Vs.
Dy. Executive Engineer). Para No.7.
(iv) MANU/GJ/0072/2007 (Sultan Ibrahim Mansuri vs. State of Gujarat & Ors) Para Nos.9 Page 9 of 17 Downloaded on : Wed Jul 20 20:59:35 IST 2022 C/SCA/19828/2021 JUDGMENT DATED: 18/07/2022 and 10.
(v) Oral judgment dated 30/01/1996 passed in Para Nos.5 SCA No.3607 of 1982. and 8.
(vi) State of Gujarat &
Anr., Vs.
Mahendrakumar
Bhagvandas & Anr.,
[2011 (2) GLR 1290]
5 Medical State of Gujarat & Anr., Para Nos.5
Allowance Vs. Mahendrakumar and 8.
Bhagvandas & Anr.,
[2011 (2) GLR 1290].
6 Group State of Gujarat & Anr., Para Nos.5
Insurance Vs. Mahendrakumar and 8.
Bhagvandas & Anr.,
[2011 (2) GLR 1290].
Under the circumstances, respondents are required to be directed to follow Mahendrakumar Bhagvandas (supra) in its letter and spirit and confer upon the petitioner all the benefits as indicated in the said judgment as also the judgments in the above table within six months of receipt of the writ of this Court. Accordingly, directed. These petitions accordingly succeed. Rule is made absolute in each of the petitions. No costs."
10. The judgment of the coordinate bench was confirmed in appeal.
11. The issue that for the purposes of fixation of pensionary benefits, the entire length of service from the date of their initial appointments has to be Page 10 of 17 Downloaded on : Wed Jul 20 20:59:35 IST 2022 C/SCA/19828/2021 JUDGMENT DATED: 18/07/2022 considered as decided by this Court in case of EXECUTIVE ENGINEER PANCHAYAT (MAA & M) DEPARTMENT and Another Versus SAMUDABHAI JYOTIBHAI BHEDI & other reported in 2017 (4) GLR 2952.
12. This Court has time and again considered the aforesaid decision and recently disposed of petition being Special Civil Application No.16915 of 2021, which order reads as under:
"1. Rule returnable forthwith. Mr. Meet Thakkar, learned AGP waives service of notice of Rule on behalf of respondent State. With the consent of learned advocates for the parties, matter is taken up for final hearing today.
2. The prayer of the petitioners is to direct the respondents to revise the pension as well as gratuity calculating the same from the date of initial appointment of the petitioners.
3. The facts in brief would indicate that the petitioners were appointed as daily wagers. Pension payment orders have been annexed to the petition which would indicate that for the purposes of counting pension from the date of completion of ten years, the date of regularization has been taken into consideration for the purpose of pension.
4. Mr. Krishnan Ghavariya, learned advocate appearing for the petitioners would submit that Page 11 of 17 Downloaded on : Wed Jul 20 20:59:35 IST 2022 C/SCA/19828/2021 JUDGMENT DATED: 18/07/2022 the issue has now been decided by a Division Bench of this Court in the case of Executive Engineer, Panchayat (Maa & M) Department vs. Samudabhai Jyotibhai Bhedi., reported in 2014(4) GLR 2952. Learned advocate would draw the attention of the Court to an order dated 21.08.2019 rendered in Special Civil Application No. 11086 of 2019 dated 21.08.2021, wherein, the said decision has been considered. Para 5 of the decision reads as under:
"5. In Executive Engineer, Panchayat v. Samudabhai Jyotibhai Phedi [2017 (4) GLR 2952], the Division Bench has laid down, upholding the decision of the learned Single Judge, that the past services of the daily-wagers where they have completed 240 days of continuous service as per Section 25B of the Industrial Disputes Act, would qualify for pension.
5.1 The Division Bench in Samudabhai Jyotibhai Phedi (supra) noticed the provisions of the Resolution dated 17th October, 1988 with reference to the nature of benefits flowing therefrom, in paragraph 6 of the judgment stating 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 Page 12 of 17 Downloaded on : Wed Jul 20 20:59:35 IST 2022 C/SCA/19828/2021 JUDGMENT DATED: 18/07/2022 of regularization would be available to 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."
5.1.1 It was stated that the Government verified and cleared the ambiguity in the Resolution, observing as under.
"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 Page 13 of 17 Downloaded on : Wed Jul 20 20:59:35 IST 2022 C/SCA/19828/2021 JUDGMENT DATED: 18/07/2022 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."
5.1.2 The Court thereafter held, "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 25B of the Industrial Disputes Act, would count 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 Page 14 of 17 Downloaded on : Wed Jul 20 20:59:35 IST 2022 C/SCA/19828/2021 JUDGMENT DATED: 18/07/2022 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 many years he had put in such service and then to compute his pension."
5.2 Thus it is a clear position of law emerging from decision in Samudabhai Jyotibhai Phedi (supra) that entire past services of daily- wager which was continuous is liable to be reckoned for the purpose of pensionary benefits and for the purpose of granting pension. In the facts of the case of the petitioner, the factum is not controverted and it is undisputed that the petitioner has throughout worked since his joining, to make his services continuous. 5.3 The only reason put-forth by the authorities to deny the petitioner the pension is that after he was made permanent, he has not completed 10 years of qualifying service, however if the date of joining of the petitioner which is 12th December, 1986 is considered, the petitioner has evidently completed the qualifying period to be entitled to pension as per the law laid down in Samudabhai (supra)."
5. The Division Bench of this court in Letters Patent Appeal No. 531 of 2019 vide order dated 08.03.2019 has also taken the same view. Accordingly, in view of the decision in the case of Samudabhai Bhedi (supra) for counting the period for purposes of pension, the date of Page 15 of 17 Downloaded on : Wed Jul 20 20:59:35 IST 2022 C/SCA/19828/2021 JUDGMENT DATED: 18/07/2022 initial appointment needs to be taken into consideration and for the purposes of taking initial date of appointment those years in which the petitioners have completed 240 days have to be counted for the purposes of pension. the petition is allowed.
6. Accordingly, it is held that the petitioners are entitled to the pensionary benefits by reckoning the entire length of service from the date of initial joining for the purposes of pension and other terminal benefits. The respondents are therefore directed to fix the pension of the petitioners by counting their services from the date of their initial joining until the date of their retirement and in doing so each year of service preceding the date of regularization in which years the petitioners have completed 240 days shall only be considered for recalculating pension. The retirement benefits, except leave encashment benefit shall be paid to the petitioners within a period of twelve weeks from the date of receipt of certified copy of this order. Petition is accordingly allowed. Rule is made absolute accordingly. Direct service is permitted."
13. In view of the above, all these petitions are allowed.
Accordingly, it is held that the petitioners are entitled to the pensionary benefits by reckoning the entire length of service from the date of initial joining for the purposes of pension and other terminal benefits. The respondents are therefore directed to fix the pension of the petitioners by Page 16 of 17 Downloaded on : Wed Jul 20 20:59:35 IST 2022 C/SCA/19828/2021 JUDGMENT DATED: 18/07/2022 counting their services from the date of their initial joining until the date of their retirement and in doing so each year of service preceding the date of regularization in which years the petitioners have completed 240 days shall only be considered for recalculating pension. The retirement benefits, except leave encashment benefit shall be paid to the petitioners within a period of twelve weeks from the date of receipt of certified copy of this order.
Petition is accordingly allowed. Rule is made absolute accordingly. Direct service is permitted.
(BIREN VAISHNAV, J) ANKIT SHAH Page 17 of 17 Downloaded on : Wed Jul 20 20:59:35 IST 2022