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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
Biren Vaishnav, J.
Jadavji Bhimjibhai Rathod – Appellant
Vs.
State of Gujarat – Respondent
Special Civil Application No. 6209 of 2021
Decided On : 07-02-2022
Constitution of India, 1950 - Articles 14 and 16 - Industrial Disputes Act, 1947 - Section 25B - Bombay Civil Services Rules, 1959 - Rule 248 - Pension Rules - Rule 80 (3) - Service - Employee - Gratuity and Encashment - Benefits of Pension - Prayer made in this petition is to issue a writ of mandamus directing respondents to quash and set aside order by which petitioner's request for counting past services from initial date of appointment for purposes of gratuity and encashment of 300 days leave was rejected - Whether for purpose of pension, past service of completed years prior to regularization would be considered - Whether pensionable service would be confined to service put in by employee after he is actually regularized – Held, Learned Single Judge applying formula of section 25B of Industrial Disputes Act held that employee had put in continuous service for more than 10 years as a daily wager - He was entitled to benefit of Government Resolution including benefits of pension - Administration had merely contended that workman had not put in actual 10 years of service after regularization before he can seek pensionary benefits - Having therefore considered issue at hand, it leaves no manner of doubt that after repeated reiteration of position of law as rendered by this Court in judgment referred to herein above, directions are given by learned Single Judge that entire period of service rendered by him, including those years of service as 'Rojmadar' where he has rendered continuous service of 240 days a year has to be considered for purpose of extending pensionary benefits - Stand of Government, therefore that respondent herein had not completed stipulated period of qualifying service is, undisputedly a stand, which is contrary to settled position of law, in view of judgments referred to - Petition allowed.
JUDGMENT :
1. Rule returnable forthwith. With the consent of the learned advocates appearing for the respective parties, taken up for final hearing. Mr.Kurven Desai, learned Assistant Government Pleader, waives service of rule on behalf of the respondent - State.
2. Heard Mr.Mukesh H. Rathod, learned advocate for the petitioner and Mr.Kurven Desai, learned AGP, for the respondent - State. The prayer made in this petition is to issue a writ of mandamus directing the respondents to quash and set aside the order dated 29.01.2020 by which the petitioner's request for counting past services from the initial date of appointment for the purposes of gratuity and encashment of 300 days leave was rejected.
3. Having heard the learned counsels appearing for the respective parties, as far as the issue of leave encashment of 300 days is no longer res integra.
4. Mr.Mukesh Rathod, learned counsel for the petitioner, places reliance on a decision of a Co-ordinate Bench of this Court rendered in Special Civil Application No. 8498 of 2019 in context of his prayer for leave encashment. Paragraphs 5 and 6 of the decision read as under:
5.1 In Jorubhai Jijibhai Dabhi (supra) it was held as under,
9. Learned advocate Mr. Munshaw for respondent No.1 does not dispute that the case of State of Gujarat and another v. Mahendrakumar Bhagvandas and another (supra) has reached to the conclusion at the hands of the Apex Court, whereas the decision of the Letters Patent Appeal NO.325 of 2013 is bagging attention, as the same has been challenged before the Apex Court. He has urged, therefore, not to decide the matter on merits.
10. On thus having heard learned advocates for both the sides and having also considered the list of events so also the Government Resolution dated 17.10.1988 and the decisions of the Apex Court and that of Letters Patent Appeal Bench, this Court is of the opinion that the petitioners are entitled to the leave encashment benefit for being the permanent employees of the respondent authorities. This Court has interpreted the entitlement of permanent employees, who have become permanent by virtue of the said Government Resolution dated 17.10.1988. Leave encashment benefits in the decision sought to be relied upon by the petitioner is granted in the following manner:-
5. As noted earlier, subsequent G.R. dated 18.7.1994 is expressly superseding the instructions contained in government resolution dated 3.11.1990 but does not supersede original G.R. dated 17.10.1988. It is also an admitted position that most of substantive benefits of permanent service are already accorded to the employees concerned in terms of G.R. dated 17.10.1988. Under such circumstances, it was argued that nomenclature for treating the employees concerned as permanent was clarified by the government, and hence, denial of few benefits was justified and in order. However, no ground or rational basis could be made out for grant of most of the benefits to most of the employees in terms of G.R. dated 17.10.1988 and for d
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