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2022 DIGILAW 149 (GUJ)

Bhagvanbhai Ravatbhai Dhranga v. State of Gujarat

2022-01-27

BIREN VAISHNAV

body2022
JUDGMENT : BIREN VAISHNAV, J. 1. RULE returnable forthwith. Mr. Meet Thakkar learned AGP waives service of notice of Rule for the respondent State. 2. With consent of learned advocates for the respective parties, the petitions are taken up for final hearing in view of the fact that the benefits sought for in the prayers made in these petitions appeared to be covered by the decisions of this Court. 3. Of course, Mr. Meet Thakkar learned AGP would submit that in the decisions relied upon by Mr. Rathod in Special Civil Application Nos. 2113 of 2019 and 2116 of 2019, there was a denial to the petitioners for the benefits so granted which was set aside whereas in the present petitions, there is no negative decision to deny the benefits. 4. For the purposes of brevity, facts of Special Civil Application No. 21994 of 2019 are taken on record. 5. The case of the petitioner is that he is working as a Labourer with the respondent nos. 3 and 4 and was appointed as a daily wager. That he had worked for seven years continuously with the respondents without any break in service. On his termination with effect from 01.01.1994, the petitioner raised an industrial dispute being Reference (LCR) No. 2 of 1996 before the Labour Court, Rajkot, by an award dated 07.09.2006, the petitioner was directed to be reinstated with continuity of service. The petitioner was reinstated on 18.06.2007. The continuity of service of the petitioner was counted from 09.01.1993 by an order of 19.03.2008. The benefit of the resolution dated 17.10.1988 was granted by an office order and the petitioner was put in the running pay scale of Rs. 2550-3200/- and all other benefits were also extended including that of the 5th Pay Commission. The present petitions are therefore for extension of benefits of 6th Pay commission. 6. The case of the petitioner is that he was granted regular increments and also was therefore entitled to the benefits of the 6th pay commission. 7. Having heard learned counsel for the respective parties, it is apt to refer to the decision of this Court dated 21.06.2019 in case of Mansukhbhai Nathabhai Kotadia v. Executive Engineer rendered in Special Civil Application No. 2113 of 2019. Relevant paragraphs of the said order read as under: "6. 7. Having heard learned counsel for the respective parties, it is apt to refer to the decision of this Court dated 21.06.2019 in case of Mansukhbhai Nathabhai Kotadia v. Executive Engineer rendered in Special Civil Application No. 2113 of 2019. Relevant paragraphs of the said order read as under: "6. The identical issue arose in case of Kalubhai Nathubhai Sonegara v. State of Gujarat being Special Civil Application No. 2700 of 2016 decided on 30th November, 2017 by this Court. What is discussed, observed and held in paragraphs 5.1 to paragraph 6 in decision in Kalubhai Nathubhai Sonegara (supra) directly applies to the present case. They are as under. "5.1 In Patel Tarunkumar Shankarlal v. State of Gujarat being Special Civil Application No. 12527 of 2013 with cognate petition, the petitioners were the employees of Gujarat Maritime Board who were workcharge employees appointed after 31st March, 1989. Their grievance was similar to one involved in the present petition and that they were not given benefits of 6th Pay Commission, although all the work-charge employees appointed prior to 31st March, 1989 were granted the benefits. While contesting the said petition, respondents relied on Circular dated 31st March, 1989 of the Road & Building Department adopted by it, which was in connection with the State Government Resolution dated 17th October, 1988 and according to the said Circular, conversion from daily wagers to work-charge was restricted after 31st March, 1989 and appointment of daily-wagers was prohibited. Raising the said cut-of date, those petitioners were denied the benefits of 6th Pay Commission that they were appointed after the said date. The direction was prayed before the Court for grant of 6th Pay Commission benefits. The said petition came to be allowed by judgment dated 06th August, 2015. Learned Single Judge observed that it was incomprehensible that after having extending the benefits of 5th Pay Commission recommendations with effect from 1998 for the petitioners, 6th Pay Commission benefits were denied and it was further observed that there was no rationale or basis for placing reliance on Circular dated 31st March, 1989. the decision in Patel Tarunkumar Shankarlal (supra) came to be confirmed in Letters Patent Appeal No. 1230 of 2015, decided on 23rd September, 2015 wherein the Court emphasise the equal treatment to be accorded to the homogeneous class of persons and disapproved the prescription of cut-of date. Special Leave Petition Nos. the decision in Patel Tarunkumar Shankarlal (supra) came to be confirmed in Letters Patent Appeal No. 1230 of 2015, decided on 23rd September, 2015 wherein the Court emphasise the equal treatment to be accorded to the homogeneous class of persons and disapproved the prescription of cut-of date. Special Leave Petition Nos. 34352-34353 of 2015 came to be dismissed by the Apex Court on 04th January, 2016. The principle in the aforesaid decision directly applies to the case of the present petitioner. 5.2 Exactly similar was the case of Mansukh Arjanbhai Bhakhotara v. State of Gujarat being Special Civil Application No. 2723 of 2016 decided on 23rd March, 2016. Those petitioners were identically placed with the present petitioners, who were daily-wagers of the Irrigation Department as the present petitioner is, and claimed benefit of 6th Pay Commission as per the State Government Resolutions dated 27th February, 2009 and 15th March, 2010. The said petition was allowed by negativing same defence raised and the respondents were directed to calculate and pay the necessary benefits as per the 6th Pay Commission recommendations. 5.3 Decision in Mansukh Arjanbhai Bhakhotara (supra) was carried in Letters Patent Appeal No. 768 of 2016 which was decided and dismissed as per order dated 07th July, 2017. While dismissing the Letters Patent Appeal, the Court relied on Patel Tarunkumar Shankarlal (supra). 6. In view of the above settled legal position, there is no gainsaying that the petitioner herein belongs to the similar class of person to be treated equally with Patel Tarunkumar Shankarlal (supra) and Mansukh Arjanbhai Bhakhotara (supra), to be extended the benefits of 6th Pay Commission recommendations. Denial of benefits to the petitioner is violation of fundamental rights of the petitioner under Articles 14 and 16 of the Constitution." 7. In view of above, the petition deserves to be allowed. Denial to the petitioner the benefits of 6th Pay Commission on the ground of cut-of date cannot stand valid in eye of law. Such decision of the respondents is illegal and arbitrary. The State Government is directed to consider for grant of 6th Pay Commission benefit to the petitioner as well as consequential benefits arising therefrom. The respondent-State and its authorities are directed to take such decision and pay to the petitioner within 10 weeks from the date of receipt of this order the amount payable under the 6th Pay Commission pay-scale. The State Government is directed to consider for grant of 6th Pay Commission benefit to the petitioner as well as consequential benefits arising therefrom. The respondent-State and its authorities are directed to take such decision and pay to the petitioner within 10 weeks from the date of receipt of this order the amount payable under the 6th Pay Commission pay-scale. It is further provided that if the benefits are not paid to the petitioner as above within the period stipulated above, it shall carry interest at the rate of 6% from the date of fling of the present petition, that is 01st February, 2019. The petition is allowed in the aforesaid terms." 8. Apparently therefore the petitioner being employee of the same department and the only distinction being that the petitioner has not been denied the benefit, the fact remain that he has not been extended similar benefits akin to the petitioners of Special Civil Application No. 2113 and 2115 of 2019. 9. In view of the above, the respondents are directed to consider and extend the benefits of 6th Pay Commission to the petitioners in case if they are found to be similarly situated. 10. In view of above, the petitions deserve to be allowed. Denial to the petitioners the benefits of 6th Pay Commission on the ground of cut-of date cannot stand valid in eye of law. Such decision of the respondents is illegal and arbitrary. The State Government is directed to consider for grant of 6th Pay Commission benefit to the petitioners as well as consequential benefits arising therefrom in case if they are found to be similarly situated. The respondent-State and its authorities are directed to take such decision and pay to the petitioner within 10 weeks from the date of receipt of this order the amount payable under the 6th Pay Commission pay-scale. It is further provided that if the benefits are not paid to the petitioner as above within the period stipulated above, it shall carry interest at the rate of 6% from the date of fling of the respective petitions, that is December, 2019. 11. Rule is made absolute to the aforesaid extent.