Somabhai Pratapbhai Maliwad vs State Of Gujarat

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(Guj) 711

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
BIREN VAISHNAV, J.
Somabhai Pratapbhai Maliwad – Appellant
Versus
State Of Gujarat – Respondent
Special Civil Application No. 19828, 19829, 19834 of 2021
Decided on : 18-07-2022

Advocates appeared:
H.B.Singh, Kurven Desai, Advocates

Headnote:
Constitution of India, 1950 - Articles 14, 16 - Contempt of Courts Act, 1971 - Section 2 (b) - Industrial Disputes Act, 1947 - Section 25B - Equality before law The State shall not deny to any person equality before the law or the equal protection - It provided for equality of opportunity in all government employment - Limit the powers of certain courts in punishing contempts of court - Prohibition of financial aid to illegal strikes and lock-outs - Whether Division Bench was concerned with identical case or not and if answer is in affirmative, Single Judge would not go into detailed arguments as indicated above in absence of plea that decision has been overruled by a bench of higher strength or Supreme Court –Held, This court in Letters Patent vide order has also taken same view - Accordingly, in view of decision in case for counting period for purposes of pension, date of initial appointment needs to be taken into consideration and for purposes of taking initial date of appointment those years in which petitioners have completed 240 days have to be counted for purposes of pension - Petitioners are entitled to pensionary benefits by reckoning entire length of service from date of initial joining for purposes of pension and other terminal benefits - Respondents are therefore directed to fix pension of petitioners by counting their services from date of their initial joining until date of their retirement and in doing so each year of service preceding date of regularization in which years petitioners have completed 240 days shall only be considered for recalculating pension - Petitions allowed.

JUDGMENT :

(1.) RULE returnable forthwith. Mr.Kurven Desai learned AGP waives service of notice of Rule on 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 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 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.

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 Hon’ble Apex Court of the