Point of Law: Service Matter – Benefits of Pension - 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.

JUDGMENT :

1. RULE. Mr.Rohan Shah, learned AGP waives service of rule for the respondent-State and Mr.Pradip Patel, learned advocate waives service of rule for the respondent nos.2 & 3.

2. Both the aforesaid petitions are raising same issues and arising out of identical facts and against the same respondents.

3. At the request of learned advocates for both the parties, both the matters are taken up for final disposal.

4. At the outset, learned advocate for the respondent is permitted to file his formal reply in Special Civil Application No.14936 of 2020, however, considering the common questions and issues raised in the affidavit-in-reply filed in Special Civil Application No.870 of 2021 which covers all the issues and answers to the petition is considered to be reply in both the petitions.

5. Since the issues involved in both these petitions are same, Special Civil Application No.870 of 2021 is treated as the lead matter, facts of which are as under:-

5.1 The petitioner was serving as “Rojamdar” in the office of respondent no.3 with effect from 21.12.1983. The petitioner has served the respondents continuously and uninterruptedly.

5.2 It is submitted that though the petitioner entered into service of respondent nos.2 & 3 on 21.12.1983, he has been conferred benefits pursuant to Government Resolution dated 17.10.1988 only on 01.01.2003. In fact, the petitioner is entitled for the said benefits from the year 1990. It appears that the reason for extending said benefits on 01.01.2003 seems to be on the ground that petitioner has not completed 240 days in earlier five years.

5.3 The petitioner thereafter reached to the age of superannuation on 31.07.2010 and he was made to retire from the service. The petitioner being less literate and having no knowledge of the fact that the petitioner is entitled to pensionary benefits and also full amount of gratuity, could not take up his case before the respondents immediately. In fact, it is the duty of the respondents to make payment of pensionary benefits and gratuity dues at the doorstep of the petitioner.

5.4 With the help of Union, the petitioner represented his case to the respondent nos.1 to 3 by representation dated 27.10.2020. Though the respondents have received the said representation, till date, nothing has been done by the respondents to mitigate the hardship of the petitioner.

5.5 Though the petitioner has been placed in pay-scale in pursuant to the Government Resolution dated 17.10.1988, the petitioner has been discriminated while extending other benefits like regular employees of the State Government. It is submitted that though at the time of retirement leaves have been standing in the account of the petitioner, neither the petitioner has been informed to avail the said leaves nor at the time of retirement petitioner was paid leave encashment. It is submitted that in case of other similarly situated employees, the respondents to extend the benefits of leave encashmen.

5.6 In fact, in several cases where under Government Resolution dated 19.10.1988, employees have been placed in pay-scale, such employee would be allowed to encash the leave and would be paid leave encashment benefit whereas in several cases, the State Government denies the said benefits. Thus, the State Government is adopting pick and choose policy.

5.7 In this case, though the petitioner has been placed in payscale and though leaves standing credit in the account of the petitioner at the time of his retirement, he has not been paid the said benefits of leave encashment. Even in similar cases, this Court held that while employee is placed in pay-scale in pursuance to Government Resolution dated 19.10.1988, several other benefits which are available to the regular employees shall have to be extended to such employees including benefit of leave encashment. Though there is settled law on this behalf, in each case, the State Government adopts pick and choose policy and in the present case, the petitioner has been discriminate