JUDGMENT : Heard learned advocate Mr.Rajesh Mankad for the petitioner and learned advocate Mr.H.S.Munshaw for the respondent. 1. By this petition under Articles 226 and 227 of the Constitution of India, the petitioner has prayed for the following reliefs : “(A) The Hon'ble Court will be pleased to allow the present petition and further be pleased to issue appropriate writ order and directions, holding and declaring that respondent Corporation has by not granting permanent status to the husband of the petitioner with effect from 22nd June, 2002 acted arbitrarily, unjustly, improperly, discriminately and in colorable exercise of power and further be pleased to declare that husband of the petitioner is entitied to the permanency status and appropriate pay scale and benefits accordingly with effect from 22nd June, 2002 and the Hon'ble court be further pleased to direct the respondent Corporation to fix the salary of the husband of the petitioner in the pay sale of permanent Cleaner with effect from 22nd June, 2002 and considering consequential revision and or promotion and make payment of difference of amount to the petitioner-legal heir for the period June-2002 till the date of death of petitioner's husband, i.e.18-7-2014 after adjusting the subsistence allowance, salary paid till the date of death and deducting one increment without future effect within time bound schedule with interest at the commercial rate. (B) Hon'ble Court be pleased to hold and declare that as legal heir of the deceased husband of the petitioner, petitioner is entitled to all the terminal benefit such as Leave Encashment, Gratuity, PF, Pension etc. and further be pleased to direct the respondent Corporation to calculate such benefits payable to the petitioner as legal heir of the deceased employee Bharatbhai Ramshankar Jani as payable on the basis of salary payable on the date of death i.e. 18-7-2014 and pay the same within time bound schedule with interest at commercial rates or an appropriate rate of interest that this Hon'ble Court may decide. (C) The Hon'ble Court be pleased to hold and declare that petitioner as legal heir of employee Shri Bharatkumar Ramshankar Jani is entitled to financial assistance of Rs.5 lakhs as per prevalent policy dated 5th July 2011 as accepted and adopted by respondent corporation in lieu of compassionate appointment on the date of death and accordingly be pleased to direct the respondent Corporation to make payment of Rs.5 lakhs by an Account Payee cheque within time bound schedule with interest at commercial rates or an appropriate rate of interest that this Hon'ble Court may decide. (D) The Hon'ble Court be pleased to hold and declare that respondent Corporation and its officials have miserably failed in discharging their statutory duties of granting status of permanency and making payment of proper pay scale accordingly to the husband of the petitioner and in denying the terminal benefits and financial assistance, acted in arbitrary manner and they are liable for payment of interest of all these amounts to the petitioner and accordingly be pleased to direct the respondent Corporation and - or its responsible officer to make payment of interest at commercial rate, or the rate of interest that the Hon'ble Court may decide in the facts and circumstances of the case and make payment of the same to the petitioner within time bound schedule. (E) During the admission, pendency and final hearing of the present petition, by way of ad-interim and or interim relief Hon'ble Court will be pleased to direct the respondent Corporation to..... (E1) fix the salary of the husband of the petitioner in the pay scale of permanent Cleaner with effect from 22nd June, 2002 and considering consequential revision and promotion and calculate amount payable accordingly and make payment of difference of amount to the petitioner-legal heir for the period June-2002 till the date of death of petitioner's husband, i.e.18-7-2014 as per their own calculation subject to result of the petition within time bound schedule and place compliance report on the record of the present petition. (E2) Hon'ble Court be pleased to direct the respondent Corporation to calculate the terminal benefit such as Leave Encashment, Gratuity, PF, Pension etc. (E2) Hon'ble Court be pleased to direct the respondent Corporation to calculate the terminal benefit such as Leave Encashment, Gratuity, PF, Pension etc. as payable to the deceased employee Bharatbhai Ramshankar Jani on the basis of salary payable on the date of death i.e. 18-7-2014 and further be pleased to direct the respondent corporation to make payment accordingly to the petitioner as legal heir of the deceased employee Bharatbhai Ramshankar Jani and place compliance report on the record of the present petition within time bound schedule. (E3) Hon'ble Court be pleased to direct the respondent Corporation to make ad-hoc payment of Rs.5 lakhs towards financial assistance by an Account Payee cheque within time bound schedule. (F) Any other and further orders which the Hon'ble Court deems just and proper to meet the ends of justice may kindly be granted.” 2. The brief facts of the case are as under : 2.1. The husband of the petitioner Shri Bharatbhai Ramshankar Jani was employed by the Respondent Corporation through contractor M/s. Airtank as Cleaner-cum Operator on Jetting Machine since 1987. The husband of the petitioner had continuously rendered his actual effective service for about 5 years in the similar position and at the relevant point of time, Respondent Corporation wanted to engage Rojamdars for the very work, and considering the experience and effective service of the petitioner's husband, respondent Corporation had appointed husband of the petitioner in the Drainage Department of the Corporation as Rojamdar Cleaner with effect from 22nd June 1992. The date of order of such appointment was of 30th June 1992. 2.2. There was a prevailing practice usage and customs and in fact, Respondent Corporation had resolved to give temporary status to all those Rojamdars, who completed 5 years of service and those temporary workers, upon completion of further 5 years were made eligible and entitled to get permanent post. For this purpose order dated 18-3-1996 on note came to be passed. Respondent Corporation, on the basis of this order followed this practice all throughout. 2.3. In light of the above stated policy, husband of the petitioner having completed 5 years on the post of Rojamdar Cleaner, had applied for grant of temporary status with benefits on 11.06.1997. 2.4. For this purpose order dated 18-3-1996 on note came to be passed. Respondent Corporation, on the basis of this order followed this practice all throughout. 2.3. In light of the above stated policy, husband of the petitioner having completed 5 years on the post of Rojamdar Cleaner, had applied for grant of temporary status with benefits on 11.06.1997. 2.4. As indicated hereinabove, though the petitioner’s husband was granted temporary status on 21.06.1997, and though as per ‘policy, practice and customs, petitioner's husband was entitled to permanent status and appropriate pay scale accordingly with effect from 21.06.2002, the same was not granted to the husband of the petitioner and therefore petitioner's husband was pursuing the same. 2.5. In the meantime vide order dated 20th September 2002, petitioner's husband was suspended pending show cause and charge sheet on the allegation of misbehavior with officer. However, the petitioner's husband was served with the show cause notice on 3rd December, 2002. The petitioner's husband had responded to the said show cause notice immediately denying the allegation. Thereafter, the petitioner's husband was served charge sheet dated 17.04.2003. The petitioner's husband was thereafter, taken on duty with effect from 3rd May, 2003 pending the disciplinary proceedings. 2.6. The husband of the petitioner had since then rendered his service and at the same time fully co-operated with the disciplinary proceedings and petitioner's husband continued to pursue the authorities to drop the charges and grant all consequential benefits. For the very charge, a criminal case being no 5598 of 2002 was also filed and at the same time a departmental inquiry was also proceeded with. On conclusion of the departmental inquiry, the Inquiry Officer submitted the inquiry report on 15.11.2010 and petitioner's husband was served with the second show cause notice dated 29.12.2010. The husband of the petitioner had responded to the second show cause notice by reply dated 3rd January 2011 and made submissions against the final report and proposed punishment. The husband of the petitioner had also pointed out that in the criminal case on the same charges, he was honorably acquitted and therefore there should not be any action and or punishment against him. 2.7. The husband of the petitioner had also pointed out that in the criminal case on the same charges, he was honorably acquitted and therefore there should not be any action and or punishment against him. 2.7. Considering the overall situation, Respondent Corporation passed an order of punishment dated 2nd August 2011 punishing petitioner’s husband with stoppage of one increment without future effect It is the case of the petitioner that it would clearly mean that the husband of the petitioner was entitled to get all the benefits of permanency with effect from 21st June 2002 and accordingly after fixing him in proper pay scale, Respondent Corporation was required to make payment of difference of pay after adjusting subsistence allowance paid and deducting one increment without future effect. 2.8. It is the case of the petitioner that since husband of the petitioner was in continuous service, he was hoping that once when the disciplinary proceeding was concluded and the punishment of one increment without future effect imposed on him was accepted by him to avoid delay in release of benefits, respondent Corporation which is statutory body and public employer would do needful and release the consequential benefits but in vain. 2.9. It is the case of the petitioner that suddenly while on duty petitioner's husband expired on 18th July 2014 at the age of 48 years. Because of the sudden death of her husband and due to certain family circumstances petitioner could not pursue the matter immediately. However subsequently petitioner requested respondent Corporation for releasing all consequential monetary benefit till the date of death and terminal benefit such as Leave Encashment, Gratuity, PF, Pension as per rules and on the Last Drawn Pay basis on the date of death and also applied for financial assistance as per prevalent policy on the date of death of the husband of the petitioner as per Circular dated 05.07.2011 of the Gujarat Government and respondent corporation's resolution dated 30.08.2011, by which respondent corporation decided to cancel the scheme of compassionate appointment in lieu of granting financial assistance in such cases. 2.10. 2.10. It is the case of the petitioner that at the same time petitioner had also requested to release all terminal benefit as per rules such as encashment of leave, gratuity, PF, Pension etc., in fact respondent corporation has granted financial assistance in about 20 cases pursuance to above referred scheme and their own circular while in the present case despite knowledge of death of husband of the petitioner no positive response was given. 2.11. Despite receipt of aforementioned communications and though sufficient time has elapsed, Respondent Corporation did not responded to the communication nor settled the dues payable to the deceased husband of the petitioner and paid it to the petitioner as legal heir, petitioner by communication requested Respondent Corporation for releasing the above benefits. It is the case of the petitioner that orally petitioner came to be informed that since petitioner’s husband was not permanent workman she is not entitled to any of the benefits as legal heir and therefore, petitioner through advocate issued notice dated 15th May, 2015 which has been received by the respondent Corporation on 19-5-2015. 2.12. It is the case of the petitioner that surprisingly petitioner received a communication dated 20.05.2015 in response to RTI application filed informing that since the petitioner's husband was not permanent workman he is not entitled to the benefit of Gratuity and or Pension and proposal for financial assistance is pending with the respondent Corporation/Commissioner. It is the case of the petitioner that the respondent corporation purposefully kept quiet on the issue of Encashment of Earned Leave, PF and difference of pay on account of entitlement of permanency from June 2002. 2.13. It is the case of the petitioner that the petitioner has immediately responded to the said communication on 25.05.2015 while providing certain documentary evidence as asked for and also clarified the position as to how the petitioner as legal heir is entitled to all the benefits as claimed. 2.14. It is the case of the petitioner that there is no response from the respondent Corporation even on financial assistance aspect and petitioner also number of time personally met respondent commissioner but nothing has materialized and no decision is taken and therefore the petitioner has filed this petition under Article 226 of the Constitution of India for redressal of her grievances. 3.1. 3.1. Learned advocate Mr.Rajesh Mankad submitted that the husband of the petitioner was legally entitled to the benefit of permanent employee from June 2002 as per the scheme declared by the respondent-Corporation. It was submitted that in the disciplinary proceedings only punishment imposed upon the husband of the petitioner was stoppage of one increment without future effect and therefore all other benefits which otherwise available to the husband of the petitioner after deducting one increment without future effect for one year would be payable by the respondent- Corporation. It was submitted that on account of the death of the husband of the petitioner, the petitioner was entitled to get all the terminal benefits as per the applicable Rules and Regulations including Earned Leave, Provident Fund, Pension, Gratuity etc. 3.2. It was submitted by learned advocate Mr.Mankad that the respondent-Corporation has failed to pay the amount of terminal benefits to the petitioner without any basis, more particularly, when the husband of the petitioner was permanent workman with effect from 22nd June, 2002 and as the husband of the petitioner expired on 18th July, 2014, the petitioner is entitled to the financial assistance available in lieu of compassionate appointment as per the Government Circular dated 05.07.2011. Reference was also made to payment made to legal heirs of similarly situated persons. 3.3. It was submitted that the husband of the petitioner completed five years service as temporary workman on 22nd June, 2002, he was required to be considered as permanent employee as per policy, practice and customs of the respondent-Corporation. It was also pointed out that after long drawn battle of ten years resulted into final punishment of stoppage of one increment without future effect and under such circumstances it was obligatory on the part of the respondent-Corporation to grant all consequential benefits treating the husband of the petitioner as permanent with effect from 22nd June, 2002 after adjusting the subsistence allowance, salary and after deducting one increment without future effect as per the final punishment and the respondent-Corporation ought to have released the terminal benefits to the petitioner accordingly. It was submitted that the husband of the petitioner was taken on duty with effect from 3rd May, 2003 after suspension and since then till the date of death in 2014, he has tendered actual effective service with the respondent-Corporation without any untoward incident. 4.1. It was submitted that the husband of the petitioner was taken on duty with effect from 3rd May, 2003 after suspension and since then till the date of death in 2014, he has tendered actual effective service with the respondent-Corporation without any untoward incident. 4.1. On the other hand, learned advocate Mr.Munshaw has relied upon the following averments made in the affidavit-in-reply filed on behalf of the respondent : “2. The respondent most respectfully submits that Mr. Bharat R. Jani was appointed tnrough an oraer dated 30.6.1992 in a Drainage Department at Bhavnagar Municipal Corporation as a cleaner on a daily wage of Rs.34.29/- with effect from 22.6.1992 in response to his application dated 16.5.1992 and the copy of the order is annexed as Annexure-A. 3. The respondent submits that the said appointment was purely on temporary, adhoc and time bound basis as it was only for 29 days on several terms and conuitions. 4. The respondent craves leave to state that Mr. Bharat R. Jani was continued in employment on the same terms and conditions as daily wager was offered work depending upon work and funds. The respondent submits that the Bhavnagar Municipal Corporation took a policy decision to regularize the hangami employees in employment of Bhavnagar Municipal Corporation, who have served for more than 5 years as on 30.4.1996. It is stated that accordingly the concerned daily wagers who were eligible as per the policy decision, were given the benefits through an order dated 2.4.1996 and a copy of the order dated 2.4.1996 is already annexed as Annexure-C to the memo of petition filed by the petitioner and on kind perusal thereof the policy aspect wouid be crystal clear. 5. The respondent submits that Mr.Bharat R. Jani, who was offered work as a daily wager on time bound basis was continued in service considering the availability of work and was issued orders from time to time and his term was expired by 30.9.1997. It is submitted that Mr. Jani addressed an application on dated 11.6.1997 for making him hangami in service. It is stated that however considering the facts that Mr. Jani was involved in a case of gross misconduct, indiscipline, disobedience and it was thought fit to place him under suspension on 20.9.2002 and the copy of the suspension order is annexed as Annexure-B. It is stated that later on the suspensicn was revoke on 3.5.2003. 6. It is stated that however considering the facts that Mr. Jani was involved in a case of gross misconduct, indiscipline, disobedience and it was thought fit to place him under suspension on 20.9.2002 and the copy of the suspension order is annexed as Annexure-B. It is stated that later on the suspensicn was revoke on 3.5.2003. 6. The respondent submits that Mr. Jani was also issued an show Cause notice on 3.12.2002 and, thereafter, as his reply was not found satisfactory, it was thought fit to held a departmental inquiry through an order dated 17.4.2003 and the copy of the charge sheet is annexed as Annexure-C. 7. It is stated that an inquiry report dated 15.11.2010 submitted by the inquiry officer revealed that the charges level against Mr. Jani were proved and the copy of the inquiry report is annexed as Annexure-D. 8. It is submitted that Mr. Jani was issued a second show cause notice on the issue of quanturn of penalty on 29.12.2010 and it was replied on 3.1.2011. Petitioner has also annexed a copy of the judgment of competent Tribunal Court in criminal proceeding delivered on 1.11.2010 through which he was acquitted in the subject matter. 9. The respondent submits that Mr. Jani was imposed penalty of stoppage of one increment without future effect through order dated 2.8.2011 and the copy thereof is annexed as Anneuxre-E. 10. The respondent submits that later on Mr. Bharat R. Jani passed away on 18.7.2014 and, thereafter, present petitioner, as a widow, preferred present Special Civil Application for various reliefs including making service of late Mr. Jani permanent in employment with effect from 22.6.2002 along with all consequential benefits. The petitioner has also prayed for various retiral benefits life leave encashment, gratuity, provident fund etc. as if Mr. Jani was a regular and permanent employee of Bhavnagar Municipai Corporation. 11. The respondent most respectfully submits that considering the facts and material referred to hereinabove, it is crystal clear that late Mr. Bharat R. Jani was not a regular and permanent employee of Bhavnagar Municipal Corporation at the time of his death. It is pertinent to note that after his death the petitioner herein has preferred present Special Civil Application for the regularization of service of her husband late Mr. Bharat R. Jam and the consequential benefits and thereupon payment of consequential benefits life regular pension, gratuity etc. It is pertinent to note that after his death the petitioner herein has preferred present Special Civil Application for the regularization of service of her husband late Mr. Bharat R. Jam and the consequential benefits and thereupon payment of consequential benefits life regular pension, gratuity etc. available to a regular and permanent employee. 12. The respondent submits that late Mr. Jani was never a permanent and regular employee of the Bhavnagar Municipal Corporation till his death, so petitioner herein is not entitled to various reliefs prayed for by her. It is submitted that during the life time Mr. Jani was never made regular and permanent in service and hence, the present Special Civil Application preferred after his death for consequential benefits with effect from 2002 is not entertainable.” 4.2. Referring to the aforesaid averments, it was submitted that the husband of the petitioner was never a permanent and regular employee at the time of his death and after the death of the husband, the petitioner has preferred this petition for the regularization of service of her husband and thereupon, payment of consequential benefits. It was submitted that during the life time, the husband of the petitioner was never made regular and permanent in service, hence, no benefit can be given to the petitioner. 5. Having heard the learned advocates for the respective parties and having gone through the material on record, it is not in dispute that the husband of the petitioner made temporary (hangami) as per the order dated 21.07.1997 along with one Kalubhai Ghelabhai Khesti. It is also not in dispute that thereafter, Kalubhai Ghelabhai Khesti was made permanent by order dated 03.01.2003 with effect from 21.07.2002 on completion of five years. Therefore the respondent also ought to have made the petitioner permanent on completion of five years but it appears that as the petitioner was suspended from service in the month of September, 2002, there is no question of making him permanent thereafter till the petitioner was reinstated in service in the year 2003 after suspension. The petitioner was also punished with stoppage of one increment without future effect by order dated 02.08.2011 under Section 56(2)(b) of Gujarat Provincial Municipal Corporation Act, 1949. The petitioner was also punished with stoppage of one increment without future effect by order dated 02.08.2011 under Section 56(2)(b) of Gujarat Provincial Municipal Corporation Act, 1949. Thus, the petitioner ought to have been made permanent as per the policy of the respondent-Corporation with effect from 21.07.2002 on completion of five years after petitioner was made temporary (hangami) in the year 1997. In such circumstances, the contention raised on behalf of the respondent-Corporation that the petitioner was not made permanent during his life time cannot be accepted because it was the duty of the respondent-Corporation to give the benefit of permanent employee to the petitioner with effect from 21.07.2002 subject to the final punishment which was awarded by order dated 02.08.2011 for stoppage of one increment without future effect. 6. In view of the above undisputed facts, the petition is allowed. The respondent-Corporation is directed to consider the husband of the petitioner as permanent employee with effect from 22nd July, 2002 and pay all the consequential benefits including fixation of salary of the husband of the petitioner in the pay scale of permanent cleaner with effect from 22nd July, 2002 after giving effect to the order of final punishment dated 02.08.2011 and calculate the arrears accordingly and thereafter to pay all the terminal benefits which are payable to the petitioner on account of the death of the husband of the petitioner on 18.07.2014 after adjusting subsistence allowances, salary paid till date of death and deducting one increment without future effect. Such exercise shall be completed within eight weeks from the date of receipt of this order. Rule is made absolute to the aforesaid extent. No order as to costs.