ORDER : 1. In the facts and circumstances of the case and having regard to the request and consent of parties appearing through their respective learned advocates, the petition was taken up for final consideration. 1.1 Rule, returnable forthwith. Learned Assistant Government Pleader Mr. Ishaan Joshi waives service of notice of Rule on behalf of the respondent-State. 2. By filing this petition under Article 226 of the Constitution, the following prayers are made: (i) to hold and declare that action on the part of the respondents in not making full payment of pensionary benefits to the petitioners by counting their entire length of service from the date of joining till date of retirement as illegal, unjustified, arbitrary and further be pleased to direct the respondents to fix the pension of the petitioners by counting his service from date of joining until the date of retirement and fix the pension accordingly. (ii) to hold and declare that the petitioners 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. (iii) to direct the respondents to pay difference of pensionary benefits, gratuity amount and leave encashment with 18% interest from the date when it fell due. 3. The fact stated in brief, on the basis of which the prayers are made, are inter-alia that the four petitioners herein worked as daily wagers under the office of respondent Road and Building Department of the State Government and retired having put in more than 40 years of service. It is their case that their service was continuous as contemplated in Section 25B of the Industrial Disputes Act. It is not in dispute that the petitioners have been extended the benefits of State Government Resolution dated 17th October, 1988 upon completion of 10 years service. 3.1 The petitioners have produced their Pension Payment Orders from which documents, their service details are available, summarized for relevant as under: (a) Petitioner No. 1 Bhailalbhai Munjalbhai Rathodia joined the services with effect from 21st January, 1968 and retired with effect from 30th June, 2011. The total services put in by him is 42 years-08 months-11 days but the pensionable service is not counted from the date of initial entry. The total services put in by him is 42 years-08 months-11 days but the pensionable service is not counted from the date of initial entry. (b) Petitioner No. 2 Shanabhai Mathurbhai Tadvi joined the services with effect from 21st May, 1978 and retired with effect from 31st July, 2018. The total services put in by him is 40 years-02 months-11 days but the pensionable service is not counted from the date of initial entry. (c) Petitioner No. 3 Bhanabhai Mangabhai Tadvi joined the services with effect from 21st November, 1972 and died on 30th November, 2001. The total services put in by him is 29 years but the pensionable service is not counted from the date of initial entry. (d) Petitioner No. 4 Karshanbhai Atiyabhai Vasava joined the services with effect from 21st October, 1968 and retired with effect from 23rd September, 1994. The total services put in by him is 25 years-09 months-02 days but the pensionable service is not counted from the date of initial entry. 3.2 The grievance voiced is that while counting the pensionary benefit, the services of the petitioners came to be counted from the date when they were treated as permanent at the end of 10 years service under the aforementioned Government Resolution dated 17th October, 1988. The gratuity was paid also on such reckoning. The case of the petitioners is that for the purpose of fixation of their pension, the entire service from the date of their initial appointment is required to be counted and the past service before they were made permanent under the Resolution could not have been excluded. 3.3 It is also the prayer that as rojamdar employees the petitioners are entitled to get the benefit of leave encashment for 300 days in addition to the pensionary benefits and gratuity as above on the basis of total length of service. 4. Learned advocate for the petitioners relied on decision of the Division Bench of this Court in The Executive Engineer, Panchayat vs. Samudabhai Jyotibhai Bhedi, 2017 (4) GLR 2952 , in order to press the prayer to calculate the pension and other retirement benefits by reckoning the entire service from the date of initial entry in service. 4. Learned advocate for the petitioners relied on decision of the Division Bench of this Court in The Executive Engineer, Panchayat vs. Samudabhai Jyotibhai Bhedi, 2017 (4) GLR 2952 , in order to press the prayer to calculate the pension and other retirement benefits by reckoning the entire service from the date of initial entry in service. In respect of the prayer for grant of leave encashment, decision in Babarbhai Ambalalbhai Patel vs. State of Gujarat being Special Civil Application No. 6396 of 2018 decided on 17th January, 2019 was pressed into service. 4.1 When confronted with the aforesaid two decisions, learned Assistant Government Pleader was entirely at his receiving end and could not dispute that the decision in Samudabhai Jyotibhai Bhedi (supra) would cover the prayer regarding counting and paying the pensionary benefits from the date of joining by the petitioner, whereas the decision in Babarbhai Ambalalbhai Patel (supra) would answer the case of the petitioners in favour of the petitioners about the entitlement of leave encashment benefit. 5. In Samudabhai Jyotibhai Bhedi (supra), 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 Bhedi (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 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. 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 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 right to receive pension upon superannuation. 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.” 5.2 Thus it is a clear position of law emerging from decision in Samudabhai Jyotibhai Bhedi (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 It may be stated that the decision in Samudabhai Jyotibhai Bhedi (supra) was followed in Iqbalbhai Allarakha Khalifa vs. State of Gujarat being Special Civil Application No. 11086 of 2019 decided on 21st August, 2019 which involved the same issue. 6. As far as the prayer in respect of leave encashment is concerned, the decision in Babarbhai Ambalalbhai Patel (supra) would stand in stead for the petitioners. In Babarbhai Ambalalbhai Patel (supra), this court relied on Chimansingh Nathusingh Solanki vs. State of Gujarat being Special Civil Application No. 21473 of 2016 decided on 27th December, 2017. In Chimansingh Nathusingh Solanki (supra), the following was observed which forms the reasoning of this order: “5. As far as the first prayer is concerned, learned advocate could successfully rely on decision of this Court in Special Civil Application No. 9484 of 2013 dated 21st August, 2015 in Jorubhai Jijibhai Dabhi vs. State of Gujarat wherein the petitioner was retired employee whose grievance was about non-payment of leave encashment upon his retirement. This Court relied on decision in State of Gujarat vs. Mahendrakumar Bhagvandas, 2011 (2) GLR 190, which was confirmed upto the Apex Court, and held in favour of the petitioner that the petitioner was entitled to leave enashment which benefit would held to be flowing from the State Government Resolution dated 17th October, 1988. 6.1 In Jorubhai Jijibhai Dabhi (supra) it was held as under: “9. Learned advocate Mr. 6.1 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 vs. 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 denial of the remaining few benefits. 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 be made permanent under G.R. dated 17.10.1988 but subsequently re-branded 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. Therefore, there is no reason to interfere with the impugned common judgment except for the clarification made hereunder. 6. Letters Patent Appeal Nos. 960, 961, 964 and 965 of 2001 are preferred from common oral judgment dated 6.4.2000 of learned Single Judge of this Court, inter-alia, in Special Civil Application Nos.28, 64, 67 and 68 of 1988 whereby original petitioners, working under the appellants herein, were directed to be given benefits in following terms: 11.....In terms of the order passed in earlier case on 23.10.1999, the respondents are directed to extend all the benefits of regular employees to the petitioner, who have been made permanent employees in regular scale of pay for more than 10 years of service. They should not be discriminated with other employees. With the aforesaid observations and direction all the petitions are allowed and accordingly disposed of......... 11. Resultantly, the petition is allowed. Leave encashment benefits shall be paid to the petitioners within six weeks from the date of receipt of copy of this judgment. If not paid, interest at the rate of 6% shall be calculated on the amount granted. Petition is allowed to the above extent. Rule is made absolute accordingly.” 6.2 The aforesaid decision was confirmed in Letters Patent Appeal No. 457 of 2016 decided on 26th July, 2016. The Division Bench also referred to observations in paragraph Nos. 5, 6 and 8 of Mahendrakumar Bhagvandas (supra) and observed as under: “7. The issue before the Division Bench of this Court in the case of Mahendrakumar Bhagvandas (supra) was similar. The Division Bench also referred to observations in paragraph Nos. 5, 6 and 8 of Mahendrakumar Bhagvandas (supra) and observed as under: “7. The issue before the Division Bench of this Court in the case of Mahendrakumar Bhagvandas (supra) was similar. There also there was no controversy about the fact that the concerned petitioners who entered services as daily rated employees have been regularized in their service under the Government Resolution dated 17.10.1988 and most of the benefits under the said Government Resolution available to the regular government servants were extended to the concerned petitioners. However, the said petitions were resisted on the ground that the said petitioners were daily rated employees and the benefits accorded to the permanent employee of the government could not be extended to them. In the said case, learned Single Judge, after considering the Government Resolutions, opined that the said petitioners were regular permanent employees of the respondent and were entitled to all the benefits of permanent employees of the concerned respondents. The petitions were allowed by the learned Single Judge with a direction that all the workmen concerned be treated as permanent employees at par with other regular employees and they were to be granted all the benefits as such.” 6.3 The Division Bench in the said Letters Patent Appeal No. 457 of 2016 also referred to another Division Bench judgment dated 30th October, 2015 delivered in Letters Patent Appeal No. 1310 of 2015 and held to confirm the Jorubhai Jijibhai Dabhi (supra) and finally stated as under: “10. Thus, we are of the opinion that the present case is also squarely covered by the aforesaid two decisions rendered by this Court. Learned Single Judge has, therefore, not committed any error while placing reliance upon the Division Bench decision rendered in the case of Mahendrakumar Bhagvandas (supra). We are also in agreement with the reasons recorded by learned Single Judge.” 6.4 It may be stated that the decision in Babarbhai Ambalalbhai Patel (supra) was followed in Kallubhai Bhemabhai Machhi vs. State of Gujarat being Special Civil Application No. 12846 of 2019 decided on 07th August, 2019 which involved the same issue about leave encashment. 7. In view of the above position of law, the prayers of the petitioners on both the counts deserve to be granted. 7. In view of the above position of law, the prayers of the petitioners on both the counts deserve to be granted. All the four petitioners are entitled to be paid pension and other retirement benefits including gratuity by reckoning their services from the respective date of their initial entry and joining in the service till the date of their retirement. The petitioners are also held to be entitled to payment of leave encashment upon their retirement as may be admissible to them. The respondent authorities are directed to confer such benefits on each of the petitioners by passing appropriate formal order in that regard and pay the differential amount which may become payable thereby, within a period of eight weeks from the date of receipt of the present order. 8. It is provided that if the benefits resulting out of the present order and the direction of this Court are not paid within the aforesaid stipulated time, the amount payable shall carry interest at the rate of 6% from the date of filing of the petition, that is from 13th October, 2020 till actual payment. 9. The petition stands allowed in the aforesaid terms. Rule is made absolute. Direct service is permitted.