Allowed

Havjibhai Varsingbhai Barjod v. State of Gujarat

Gujarat HC11 Feb 2022SCA/4329/2021

Case brief

AI extract

What is this about?

The High Court held that daily-wagers granted permanency benefits under GR dated 17.10.1988 are entitled to pension calculated on total continuous service. Respondents directed to grant benefits counted only for years with 240 days service.

What did the court decide?

Respondents directed to fix pension and grant all retirement benefits (gratuity, leave encashment, etc.) calculated on total service, where applicable.

Havjibhai Varsingbhai Barjod Vs State of… — Pension and Retirement Benefits | Gujarat HC (2022)

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C/SCA/4329/2021 JUDGMENT DATED: 11/02/2022

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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R/SPECIAL CIVIL APPLICATION NO. 4329 of 2021

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With

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R/SPECIAL CIVIL APPLICATION NO. 15141 of 2020

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FOR APPROVAL AND SIGNATURE:

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HONOURABLE MR. JUSTICE NIKHIL S. KARIEL

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Sd/-

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1	Whether Reporters of Local Papers may be allowed to see the judgment ?	NO
2	To be referred to the Reporter or not ?	NO
3	Whether their Lordships wish to see the fair copy of the judgment ?	NO
4	Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ?	NO

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HAVJIBHAI VARSINGBHAI BARJOD

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Versus

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STATE OF GUJARAT

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Appearance:

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DECEASED LITIGANT for the Petitioner(s) No. 19,2,20 MR DIPAK R DAVE(1232) for the Petitioner(s) No.

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1,10,11,12,13,14,15,16,17,18,19.1,20.1,21,2.1,22,2.2,23,2.3,24,2.4,25,26,27, 28,29,3,30,31,32,33,34,4,5,6,7,8,9

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MR UTKARSH SHARMA, AGP for Respondent State MR HS MUNSHAW(495) for the Respondent(s) No. 2,3 NOTICE SERVED for the Respondent(s) No. 1,4

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CORAM: HONOURABLE MR. JUSTICE NIKHIL S. KARIEL

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Date : 11/02/2022

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ORAL JUDGMENT

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Heard learned Advocate Mr.Dipak Dave on behalf of

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C/SCA/4329/2021 JUDGMENT DATED: 11/02/2022

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the petitioners, learned AGP Mr.Utkarsh Sharma on behalf of the respondent State and learned Advocate Mr.H. S. Munshaw on behalf of the respondent Nos.2 and 3.

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Issue Rule returnable forthwith. Learned AGP appearing for the respondent State and learned Advocate Mr.Munshaw appearing for the respondent Nos.2 and 3 waive service of notice of Rule.

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At the outset, learned Advocate Mr.Dave appearing for the petitioners in Special Civil Application No.4329 of 2021 submits that he does not press the said petition qua petitioner No.19, deceased Makhabhai Didor, No.20 deceased Valabhai Sangada, No.25 Champaben Devda, and No.30 deceased Kamlaben Devda with liberty to file afresh for the said petitioners.

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Permission as sought for is granted. Special Civil Application No.4329 of 2021 stands disposed of as not pressed for, qua petitioner No.19, deceased Makhabhai Didor, No.20 deceased Valabhai Sangada, No.25 Champaben Devda, and No.30 deceased Kamlaben Devda, with liberty as prayed for. Rule

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C/SCA/4329/2021 JUDGMENT DATED: 11/02/2022

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is discharged in SCA No.4329 of 2021 qua the said petitioners.

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As both the petitions involve similar questions of facts and law, they are taken up, with the consent of the learned Advocates for the parties, for final hearing today and are decided by this common judgement and order. Facts of Special Civil Application No.4329 of 2021 are mainly considered and referred to for deciding both the petitions, for the sake of convenience.

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5.1. By way of these petitions, the present petitioners challenge the action of the respondent Authorities in not making payment of pensionary benefits and other consequential benefits as may be available to them by counting their entire length of service from the date of joining the service till the date of retirement or death, as the case may be. The petitioners mainly pray for the following reliefs :-

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(A) This Hon’ble Court may be pleased to issue a writ of mandamus and/or a writ in the nature of mandamus and/or any other appropriate

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writ, order or direction –

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i. To hold and declare that action on

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part of the respondents in not making payment of pensionary benefits to the petitioners by counting their entire length of service from date of joining till date of retirement or death, as the case may be, as illegal, unjustified, arbitrary and further be pleased to direct the respondents

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to fix the pension of the petitioners by counting their service from date of joining until the date of retirement or the death, as the case may be, and fix the pension accordingly;

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ii. To hold and declare that the petitioners shall be paid all other benefits like Public Holidays, Transport Allowance, Medical Allowance, Group Insurance at par

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with the permanent employees;

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iii. To hold and declare that petitioners

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are entitled to all other retiral benefits including benefit of leave encashment and be pleased to further direct the respondents to pay amount of leave encashment of leave standing in the account of the petitioners;

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iv. To direct the respondents to pay difference of pensionary benefits, gratuity amount, leave encashment and other benefits with 18% interest from the date when it fell due;

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(B) Pending the admission, hearing and final disposal of this petition, this Hon’ble Court may be pleased to direct the respondents to immediately fix the pension of the petitioners on the basis of their total length of service."

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The brief facts leading to the present petitions

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are that the petitioners of SCA No.4329 of 2021 (deceased petitioner Nos.2, 28, 29 and 31 to 34 - through their legal heirs) and petitioner of SCA No.15141 of 2020 were serving as Rojamdars in the office of respondent No.2 for several years (joined on different dates mentioned in the petition/table produced at Annexure-A to the petition). According to the petitioners, they had been serving the respondent No.2 continuously and uninterruptedly till the age of superannuation and on account of their uninterrupted and continuous service of 240 days in a year, they were extended benefit of Government Resolution dated 17.10.1988 and they were placed in the regular pay-scale. The petitioners further submit that the respondent authorities had deducted the initial 10 years of service of the petitioners while calculating the pentionary and other consequential benefits. Being aggrieved by the said action of the respondent authorities, the petitioners made several representations to the respondent authorities, which are pending till date. Left with no other option, the present petitions are filed.

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Learned Advocate Mr.Dave appearing on behalf of the petitioners would submit that the issue is almost covered by several decisions of this Court. Mr.Dave has drawn the attention of this Court to the decision of the learned Coordinate Bench of this Court passed in Special Civil Application No.13585 of 2019 dated 6.12.2019 , whereby the Coordinate Bench had issued directions in favour the petitioner therein, and contended that the present petitioners are identically situated, and therefore, the respondent authorities ought to have extended the benefits to the present petitioners too. Learned Advocate Mr.Dave would further submit that the petitioners had made representations on 7.1.2021 / 27.8.2020, copies of which have been annexed to the petitions (Annexure-E & D respectively), for the legitimate benefits, but the same is yet to be considered and decided by the respondent authorities. Mr.Dave would lastly submit that the action of the respondent authorities in not granting the legitimate benefits flowing from the Government Resolution dated 17.10.1988 to the petitioners is not only arbitrary, but also violative of Article

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14 and 16 of the Constitution of India, and therefore, he prays this Court that necessary directions may be issued to the respondent authorities to grant the reliefs as prayed for in the present petition.

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As against the contentions raised by the learned Advocate Mr.Dave for the petitioners, learned AGP Mr.Utkarsh Sharma for the respondent State would submit that the issue raised in the present petition is more or less covered by various decisions, more particularly by the decision on which Mr.Dave relied upon, however, according to him, there are cases where the petitioneremployees had not completed the required 240 days in a year to be eligible for the benefits in question, and therefore, in such cases, the respondent authorities may be permitted to exclude such year/period while calculating the benefits and the petitioners should not be permitted to claim such benefits which otherwise are not available. Learned AGP for the respondent State would submit that he would have no objection, if the Hon’ble Court issues directions to the

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respondent authorities for calculating and paying the benefits to the petitioners according to their eligibility on having worked 240 days a year and liberty may be granted to the respondent authorities to exclude the year(s) in which the petitioner-employees had not completed 240 days.

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For deciding the issues involved in the present petition, it would be beneficial to appreciate and refer to relevant portions of the judgement of the Hon’ble Division Bench (Coram: VIKRAM NATH, C.J. and ASHUTOSH J. SHASTRI, J.) in case of ARJANBHAI VIRABHAI BAMBHANIA Versus STATE OF GUJARAT in Civil Application 3910 of 2019 in F/LETTERS PATENT APPEAL NO. 3512 of 2019 and allied matters dated 27.8.2021.

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The groups of appeals before the Hon’ble Division Bench were mainly relating to the interpretation, implementation and the benefits flowing from the Government Resolution dated 17.10.1988. Hon’ble Division Bench had classified the said groups into four categories:-

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(a) first category relates to grant of

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leave encashment of 300 days to those employees covered by the Government Resolution dated 17.10.1988;

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(b) second category relates to claiming benefits of the 6th Pay Commission with effect from 01.01.2006 instead of 14.11.2014 as has been extended by the learned Single Judge;

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(c) third category of appeals has been filed by the Gujarat Water and Sewerage Board, challenging the judgment of the learned Single Judge extending five benefits to the employees covered by the aforesaid Government Resolution dated 17.10.1988; and

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(d) fourth category is by the employees who have not been extended five benefits by the learned Single Judge.

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The first group of appeals was filed either by the State of Gujarat or its Departments or the Sewerage Board assailing the judgment and order of

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the learned Single Judge whereby the benefit of Leave Encashment of 300 days was extended to the employees – petitioners. The above issue, apart from being raised in earlier rounds, was also the subject-matter of consideration before a Division Bench of this Court in Letters Patent Appeal No.1614 of 2019 arising out of Special Civil Application No.8498 of 2019 and was disposed of by order dated 13.09.2019. The only ground raised before the Division Bench was that the learned Single Judge while extending the benefit of leave encashment of 300 days had issued a mandamus to extend the said benefit without giving liberty to the department to verify as to whether sufficient length of service had been rendered by the employees – petitioners so as to accumulate 300 days of earned leave in their account. To that limited extent, the judgment and order of the learned Single Judge was modified to the effect that the State would verify about the admissibility of 300 days for conversion into leave encashment considering the total length of service of the writ petitioners. The relevant portion of the said order dated 13.09.2019 is

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reproduced below:-

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“5. Normally, we would have issued notice to the respondents in the appeal, but considering the nature of relief pressed, which appears to be innocuous and even otherwise it is fair and reasonable that the State authorities (employers) may verify from the record regarding entitlement. We are not issuing notice to the respondents as apparently no prejudice would be caused to them by the modification sought.

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Thus without disturbing the entitlement allowed by the learned Single Judge, we dispose of this appeal with the limited modification that before making the payment, the appellants would verify about the admissibility of 300 days for conversion into leave encashment as per the direction given by the learned Single Judge considering the total length of the service of the writ petitioners (respondents 1 and 2).

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In case, the respondents 1 and 2 feel aggrieved by this order, they would be free to apply for recall of this order.

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With the above modification, the appeal is disposed of. Consequently, connected civil application for stay is disposed of.”

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12.This judgment and order dated 13.09.2019 passed in Letters Patent Appeal No.1614 of 2019 was carried by the State of Gujarat to the Hon’ble Supreme Court by way of Special Leave Petition (Civil) Diary No.20010 of 2020. The Special Leave Petition

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was dismissed both on the ground of limitation as also on merits vide order dated 13.01.2021. The order of the Supreme Court is reproduced herein below:-

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“We find no ground to condone the delay and we have dismissed a number of petitions of the very State Government with costs today. The factum of a young counsel before us is the only reason we restrain ourselves from imposing costs once again. We may also notice that insofar as the merits of the case are concerned, the only issue which was raised was whether the respondent had accumulated sufficient leaves for grant of payment of 300 days’ leave and it is stated in the arguments of the Assistant Government Pleader that “there is no issue” other than that. The appeal was thus, disposed of giving liberty to the petitioner to verify about the admissibility of 300 days for conversion into leave encashment. That being the position, we fail to appreciate why this SLP has been preferred. The reason which now appears is that the petitioner wants to raise other grounds which had never been pressed before the Division Bench. In view of the aforesaid the matter is dismissed both on limitation and on merits. Pending application stands disposed of.”

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Therefore, for the reasons recorded by the learned Single Judge in the order impugned in the appeal, and subsequently by the Hon’ble Division Bench vide judgment dated 13-09-2019 in Letters Patent

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Appeal No.1614 of 2019, by which the State employer was given liberty to verify the admissibility of 300 days leave encashment, and the same having been affirmed by the Supreme Court, apparently no merit could be found in the said set of appeals, save and except for the liberty as granted by the Court. Accordingly, the said group of appeals were disposed of as per the directions of this Court vide judgment dated 13.09.2019 duly affirmed by the Supreme Court.

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So far as the prayer with regard to the leave encashment, as sought for in the present petition, is concerned, as the Hon’ble Division Bench has already given liberty to the respondent Authorities to verify the admissibility of 300 days leave encashment in the above referred decision, and the same having been affirmed by the Supreme Court, this Court is bound to follow the same principle.

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The second group of petitions was filed by the original writ petitioners, claiming benefits of the 6th Pay Commission with effect from

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01.01.2006 instead of 14.11.2014 as has been extended by the learned Single Judge. To this extent, they have prayed for modification of the judgment and order of the learned Single Judge. There were three sets of petitioners before the Hon’ble Division Bench; (i) petitioners who had been appointed before 01.10.1988; petitioners had been appointed after 30.11.1994; and (iii) petitioners who had been appointed after 01.10.1988 but before 30.11.1994. The first group of petitioners, since they were engaged before 01.10.1988, they were extended the benefits of the 6^th Pay Commission w.e.f. 1.1.2006 and the other two groups of petitioners, who were engaged after 1.11.1988, they were extended the benefits of 6^th Pay Commission w.e.f. 14.11.2014 as per the Policy of the State Government and the Hon’ble Division Bench has observed that the Court could not interfere with the policy decision, which was based upon a rationale and there was as such no error in the judgement of the learned Single Judge for granting the benefits of 6^th Pay Commission w.e.f. 14.11.2014 as was granted by this Court in the judgement dated 18.10.2016 in case of Anand

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Bhausaheb Pawar Vs. Gujarat Water Supply and Sewerage Board, Special Civil Application No.11239 of 2016 and other connected matters , wherein benefit of 6^th Pay Commission was awarded prospectively.

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The third group of petitions were filed by the Board, challenging grant of benefits covered by Government Resolution dated 17.10.1988.

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After considering the submissions made by the learned Advocates for the appellants, Hon’ble Division Bench had observed that reopening the whole i ss ue would result into severe discrimination and would be very unjust to the present group of employees who were engaged prior to the employees in the case of Atul C. Soni (supra) which was ca rr ied up to the Hon’ble Supreme Court. It has been further observed that the learned Single Judge had examined this aspect of the ma tt er in great detail and had refe rr ed to the relevant judgments which had resulted into grant of the benefits on the grounds of equality and parity, rather the present

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employees were holding be tt er case than the case of the employees in case of Atul C. Soni (supra). The Division Bench also noted that in the case of Mahendrakumar Bhagvandas (supra), the i ss ue regarding permanency and regularization was considered and the judgment went up to the Supreme Court which came to be a ff irmed not once but twice and Paragraph 7 and its sub-paragraphs, 8, 9 and 10 of the judgment of the learned Single Judge contain detailed discu ss ion on this aspect. The same are reproduced hereunder:

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“7. This takes to the relief for extension of benefits of (i) Transport Allowance; (ii) Trave ll ing A l owance; ( ii i) Transfer Trave ll ing A ll owance; (iv) Leave Encashment and (v) Leave Travel Conce ss ion on the basis of Resolution dated 17th October, 19 88 . It is the case of the petitioners that though the said benefits are not expre ss ly mentioned in the Resolution dated 17th October,1988 they are part of the permanency benefits which are available under the resolution and when these benefits are available to homogeneous class of permanent employees, the petitioners should also be granted the same.

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7.1 This issue cannot be said to be res integra in view of decision in

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Mahendrakumar Bhagvandas (supra). Those were the petitioners who were dailyrated employees, regularize in service under the Resolution dated 17th October, 1988 and all benefits as regular government servants were extended to them except the leave encashment, leave travel concession, etc. They had approached this Court with grievance that by not extending the said benefits, the authorities had discriminated them, as though they were accorded permanency benefits, it was minus of the aforesaid benefits of encashment of leave, travelling allowance, etc., even as these benefits were part and parcels of permanency status.

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7.1.1 In Mahendrakumar Bhagvandas (supra), the Division Bench confirmed the judgment of the learned Single Judge, noted the submissions on behalf of the State authorities thus,

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“2. Learned AGP reiterated the argument that even as workmen concerned were entitled to, and were in fact granted most of the benefits at par with regular employees of the State, in terms of Government Resolution dated 17.10.1988, some of the benefits such as encashment of leave, leave travel assistance, travelling alllowance, uniform allowance etc. were denied to them on the basis that they were not fullfledged duly recruited government servants. Learned AGP relied upon subsequent government resolution dated 18.7.1994, whereby it was sought to be clarified that the word 'permanent' in G.R. dated 17.10.1988

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was meant to convey job security but it was not meant to be understood to make daily rated employees regular employees on the set up and establishment of respective departments. It was fairly conceded that entitlement of the employees concerned was wholly dependent upon reading and interpretation of G.R. dated 17.10.1988.”

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7.1.2 The Division Bench thereafter considered the object, applicability and scope of Government Circular dated 17th October, 1988 and further noted the clauses in the subsequent Resolution dated 18th July, 1994. It was thereafter observed in paragraph 5 to hold as under.

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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

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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. ...”

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7.2 On behalf of respondent No.1 – State, affidavit-in- reply was filed through the Under Secretary, Narmada Water Resource, Water Supply and Kalpsar Department in which it was accepted that Special Leave Petition Nos.29108-29114 of 2014 was disposed of by the Apex Court and the question of granting benefits to the daily- wagers of respondent No.2 Board attained finality and that the entitlement of the petitioners for grant of benefits concerned is within the purview of respondent No.2 – Gujarat Water Supply and Sewerage Board. However, respondent No.1 expressed objection to the grant of the prayer in respect of extending the benefit of various allowances such as Transport Allowance, Leave Encashment, Leave Travel Concession, etc., by submitting that the issue with regard to grant of these benefits to daily-wagers is pending in Letters Patent Appeal (Stamp) Nos.1134 of 2017 and 1271 of 2017. Dealing with the said aspect of pendency of said Letters Patent Appeals, no orders are passed in the said Letters Patent Appeals.

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7.3 Not only that and in any view, the employees involved in the said Letters Patent Appeals are the employees of the Departments of the Government whereas the present petitioners are the employees of respondent No.2 – Board. They are identically placed with other similarly situated employees of the same Board who are granted the benefits claimed in the petition. Therefore, since the petitioners belonged to the homogeneous class, they are entitled to the same benefit and same treatment. As far as the entitlement of this class of employees working under the respondent No.2 – Board, the issue can be said to have already been considered and decided.

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7.4 There is yet another reason as to why the petitioners herein could not be denied the equal treatment in respect of payment of the allowances of transport allowance, travelling allowance, etc. Subsequent to the orders of the Supreme Court in Special Leave to Appeal (Civil) Nos.29108-29114 of 2014 mentioned above, similarly placed batch of employees were granted the benefits by the respondent – Board by passing Office Order No.59 of 2016 dated 02nd September, 2016 in which, along with granting of benefits of 6th Pay Commission, the Board also accorded benefits of the allowances mentioned hereinabove. A reference is made to this office order in paragraph 5.4 in Anand Bhausaheb Pawar (supra). Therefore, as far as the Board's employees are concerned and all those other similarly situated, these benefits to be extended to them as flowing from the status of permanency which they may acquire by getting benefit of Resolution dated 17th October, 1988.

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8. The issues in the controversy and claims of and relief prayed for by the petitioners operate interactively. The decision in Atul C. Soni (supra) was also based on the Division Bench decision in Mahendrakumar Bhagvandas (supra).

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8.1 It is to be further noticed that the decision in Mahendrakumar Bhagvandas (supra) was challenged before the Supreme Court by filing Special Leave Petition (Civil) Nos.19970-19975 of 2012 which came to be dismissed by order dated 09th November, 2012. Thereafter the review applications came to be filed by the State being Nos.35043-35048 of 2012 and the said review applications were also dismissed on 14th May, 2015. Therefore, the decision in Mahendrakumar Bhagvandas (supra) having attained finality upto the stage of the Apex Court, stands to operate to apply to the present petitioners and all other similarly situated employees for the purpose of their claim to be granted the allowances in question as part of permanency benefits.

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9.In the above view, class of the dailywagers to which the petitioners herein belonged, have to be held entitled to the relief prayed in paragraph 33(C) and the benefits of (i) Transport Allowance; (ii) Travelling Allowance; (iii) Transfer Travelling Allowance; (iv) Leave Encashment and (v) Leave Travel Concession are required to be extended to them in the same lines as they are extended to the permanent employees since these petitioners are also treated as permanent on the basis of

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Resolution dated 17th October, 1988.

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9.1 The view taken as above stand solidified by subsequent decisions on the aspect. In Vallabhbhai Chhotabhai Chauhan v. State of Gujarat being Special Civil Application No.1945 of 2014, the petitioner therein was a retired daily-wager who prayed that he was entitled for encashment of privilege leave. The petitioner was appointed as daily-wager and was granted benefit of permanency under Resolution dated 17th October, 1988. Learned Single Judge relied on Mahendrakumar Bhagvandas (supra) and allowed the petition holding that the petitioner was entitled to the encashment of privilege leave to the extent of 300 days. This decision in Vallabhbhai Chhotabhai Chauhan (supra) was confirmed by the Division Bench in Letters Patent Appeal No.1310 of 2015 decided on 30th October, 2015.

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9.2 Referring to the decision of Division Bench in State of Gujarat v. Mahendrakumar Bhagvandas (supra), it was observed in the aforementioned judgment dated 30th October, 2015 as under.

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“6. When the decision of the Division Bench of this Court, which has been relied upon by the learned Single Judge is not interfered with by the Apex Court in the afore referred proceedings of SLP and the review is also dismissed, in our view, it cannot be said that the learned Single Judge had committed any error in exercise of the power, which may

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call for interference in the present appeal. Further, when the SLP is also dismissed against the above referred decision of the Division Bench of this Court in the case of State of Gujarat (supra) and the review application is also subsequently dismissed, such would be a further more ground not to interfere with the order of the learned Single Judge.”

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9.3 The same question came to be dealt with by another Division Bench of this Court in Gujarat Water Supply and Sewerage Board v. Jorubhai Jijibhai Dabhi being Letters Patent Appeal No.457 of 2016 wherein also the original petitioner had claimed benefit of leave encashment upon his retirement. Learned Single Judge allowed the petition, against which Letters Patent Appeal No.457 of 2016 was preferred. The Division Bench relied on Mahendrakumar Bhagvandas (supra) and confirmed the decision of the learned Single Judge by dismissing the appeal.

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10. The aforesaid facts and the principles of law highlighted, render the inaction on part of the respondent authorities (a) in not extending the benefits of 6th Pay Commission to the petitioners; (b) in not merging 50% Dearness Allowance in the basic salary with effect from 01st April, 2004 and (c) in not granting the benefits of allowances (i) Transport Allowance; (ii) Travelling Allowance; (iii) Transfer Travelling Allowance; (iv) Leave Encashment and (v) Leave Travel Concession as part of permanency benefits though the benefit of permanency is granted to the petitioners under Resolution dated 17th October, 1988,

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as violative of petitioners' rights under Article 14 read with Article 16 of the Constitution. This discrimination has to be finally smothered by granting the relief.“

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The Division Bench had opined that the other argument of Shri Trivedi placing reliance upon the judgment in the case of Karshanbhai K. Rabari (supra) would also not be available in view of the subsequent developments that had taken place in between as narrated above in the judgment of the learned Single Judge.

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Hon’ble Division Bench had observed that the other argument of Shri Trivedi regarding difference between ‘permanency’ and ‘regularization’ would also not be available insofar as the present appeals are concerned inasmuch as the benefits extended by the learned Single Judge have already been extended by the Sewerage Board and the State of Gujarat for the employees of the Sewerage Board vide subsequent circulars after the judgment in the case of Atul C. Soni (supra) attained finality before the Supreme Court.

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Hon’ble Division Bench has further observed that

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it would also be worthwhile to mention that the judgment in the case of Mahendrakumar Bhagwandas (supra) having been upheld up to the Supreme Court and all the issues having been raised and having been discussed and dealt with, it would be unreasonable and unfair to the original petitioners from denying the benefit extended to the other daily wagers covered by the Government Resolution dated 17.10.1988.

¶151

In view of the above, Hon’ble Division Bench has dismissed the group of appeals filed by the Sewerage Board and the State against the judgment of the learned Single Judge extending the five benefits.

¶152

The fourth group of appeals has been preferred by the employees who have not been extended five benefits by the learned Single Judge despite the same having been claimed as relief in the petitions, however, the leave encashment benefit has been extended. Hon’ble Division Bench, for the reasons recorded above, has held that the five benefits to these appellants not being extended

¶153

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¶155

could not be sustained and as such, the appellants of these appeals would also be entitled to the same benefits as the other similarly situated set of employees regarding the five benefits. Accordingly, all the aforesaid appeals are allowed to the above extent.

¶156

During the hearing of the present petitions, learned Advocates appearing for the respective parties have drawn the attention of the Court to the decision of the Coordinate Bench dated 05.09.2018 passed in Special Civil Application No. 14504 of 2016, which is also based upon several other decisions and therefore, the Court deems it appropriate to reproduce relevant portion of the said decision, as it is not disputed by either side. Paragraphs 4.1 to 8 are reproduced herein below:-

¶157

“4.1 Learned advocate for the petitioner could also successfully rely on decision of this Court in Balvantbhai Sardarbhai Pagi v. Deputy Engineer being Special Civil Application No.12350 of 2016 and allied petitions decided on 22nd May, 2016 taking the similar view.

¶158

5.In Executive Engineer, Panchayat v. Samudabhai Jyotibhai Phedi [2017(4) GLR 2952], the Division

¶159

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Bench has laid down, upholding the decision of the learned Single Judge, that the past services of the dailywagers where they have completed 240 days of continuous service as per Section 25B of the Industrial Disputes Act, would qualify for pension.

¶162

5.1 The Division Bench in Samudabhai JyotibhaiPhedi (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.

¶163

“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 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.”

¶164

5.1.1 It was stated that the Government verified and cleared the ambiguity in the Resolution, observing as under.

¶165

“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

¶166

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¶168

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.”

¶169

5.1.2 The Court thereafter held,

¶170

“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 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.”

¶171

5.2 Thus it is a clear position of law emerging

¶172

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¶174

from decision in Samudabhai Jyotibhai Phedi (supra) that entire past services of dailywager which was continuous is liable to be reckoned for the purpose of pensionary benefits and for the purpose of granting pension.

¶175

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.

¶176

6. The only reason putforth 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).

¶177

6.1 The decision on part of the authorities reflected in communication dated 18th July, 2016 that the petitioner had not completed 10 years of service since the date of becoming regular from 01st December,1999 cannot stand in eye of law to deny the pensionary benefits to the petitioner. The entire service period right from the date of joining till the petitioner retired on 30th September, 2012, is liable to be counted and the pension is required to be paid accordingly. The present petition has to succeed.

¶178

7. For the foregoing reasons and discussion, it is hereby declared that the action on part of the respondents in not making payment of pensionary benefits to the petitioner and in not counting the entire length of services of the petitioner from 12thDecember, 1986 till 30th April, 2012 is arbitrary and illegal. The respondents are directed to fix the pension of the petitioner counting his entire service period from 12th December, 1986 till the date of retirement. The

¶179

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¶181

petitioner is also held entitled to all other retirement benefits including leave encashment and difference of gratuity, as may be payable. The total amount payable towards pension to be calculated as above, the arrears arising there by and the other retirement benefits including those mentioned hereinabove, shall be paid to the petitioner within a period of six weeks from the date of receipt of this order.

¶182

8. It is provided and directed that if the amount is not paid within stipulated period of six weeks, it shall carry interest at the rate of 6.5% from the date of filing of this petition. The respondents are further directed to continue to pay the pension to the petitioner duly calculated as above.”

¶183

From the aforesaid observations which are made by the coordinate bench relying upon the various decisions, there is no reason for this Court to deviate from the aforesaid preposition of law. The past services rendered by the petitioners where they have completed 240 days of service as per Section 25B of the ID Act would qualify for pension as laid down by the Division Bench in case of Executive Engineer, Panchayat V. Samudabhai Jyotibhai phedi (2017 (4) GLR 2952) . Hence, keeping in view the said proposition of law laid down by the Hon’ble Division Bench, in the considered opinion of this Court, a case is made out by the petitioners. Even, recently, this Court relying upon the same, has also dealt with yet

¶184

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¶186

another petition being Special Civil Application No. 19374 of 2018 and other allied matters decided on 17.12.2020. The said decision has been confirmed by the Division bench in LPA No. 470 of 2021 and other allied group of appeals by order dated 22.06.2021. In yet another recent decision passed in SCA No. 15110 of 2020 and other allied matters decided on 03.09.2021, the similar preposition has been laid down. The said decision has been confirmed with modification in group of appeals being LPA NO. 884 of 2021 and allied appeals by order dated 12.10.2021. Paragraph 6 of the said common order reads thus:-

¶187

“6 In the above view, all the present Letters Patent Appeals are disposed of by modifying the directions of learned single Judge in the impugned judgment and order, in particular contained in paragraph 10, by clarifying that the benefits accorded and directed to be paid to the petitioners of retirement dues and others allowances such as Transport Allowance, Traveling Allowance, Transfer Traveling Allowance, Leave Encashment and Leave Travel Concession shall be counted and paid in respect of those years only in which the petitioners – the employees concerned have completed 240 days of service. The directions of learned single Judge in all cases shall operate accordingly and with such qualification”

¶188

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¶190

In view of foregoing reasons and discussion, it is declared that the action on part of the respondent authority in not making payment of pensionary benefits and other allowances and benefits as aforesaid to the petitioners and in not counting the entire length of service from their initial dates of employment reflecting from table (Annexure-A) till their retirement/death is arbitrary, illegal and not sustainable in the eye of law. The respondents are as such directed to fix the pension of each of the petitioners by counting their entire service from their respective dates of joining till the date of retirement/death as provided in the table which is referred to herein above and the petitioners are also entitled to all other retirement benefits including leave encashment and difference of gratuity as may be permissible with the clarification that the benefits accorded and directed to be paid to the petitioners of retirement dues and others allowances such as Transport Allowance, Traveling Allowance, Transfer Traveling Allowance, Leave Encashment and Leave Travel Concession shall be counted and paid in

¶191

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respect of those years only in which the petitioners – the employees concerned have completed 240 days of service.

¶194

It is further directed that if the same

¶195

is not paid within the stipulated period of eight weeks from the date of receipt of this order, it shall carry interest at the rate of 6% p.a. from the date of filing of respective petition till the date of actual payment. The respondents are further directed to continue to pay the pension to the petitioners duly calculated as above.

¶196

With the above observations and

¶197

directions, present petitions stand allowed. Rule is made absolute.

¶198

Sd/- (NIKHIL S. KARIEL,J)

¶199

V.V.P. PODUVAL

¶200

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Havjibhai Varsingbhai Barjod v. State of Gujarat

Case brief

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Havjibhai Varsingbhai Barjod v. State of Gujarat

Case brief

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What did the court decide?

What the court decided

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