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2022 DIGILAW 627 (GUJ)

Sheth Kirankumar Krushnadas v. State Of Gujarat

2022-05-02

BIREN VAISHNAV

body2022
JUDGMENT : 1. Rule returnable forthwith. Mr.Krutik Parikh, learned AGP, waives service of rule on behalf of respondents Nos. 1 and 2. With consent of the learned advocates appearing for the respective parties, the matter is taken up for final hearing today. Heard Mr.K.B.Pujara, learned advocate for the petitioner Mr.Krutik Parikh, learned AGP for respondents Nos. 1 and 2 and Mr.H.S.Munshaw, learned advocate for respondents Nos. 3 and 4. 2. By way of this petition, the petitoner has prayed for a direction to forthwith pay the pension and other retirement benefits to the petitioner, as per G.R.dated 21.08.2015 read with G.R. dated 17.10.1988 read with G.R dated 17.09.2004. It is the case of the petitioner that exactly similarly situated co-employee, work charge Clerks, namely, Mrs. Premilaben C Patel, Chandrakant H. Shah and Lalabhai Parmar in whose favour such benefits have been granted. 3. Facts in brief would indicate that workcharge employees who were working along with the petitioner namely Premilaben C. Patel and others whose name appeared in the State Governments order dated 21.08.2015 was constrained to file Special Civil Application No. 22907 of 2017 for pensionary benefits. That petition was allowed vide judgement and order dated 30.01.2019. The Co-ordinate Bench of this Court after referring to the facts held as under: “In the facts and circumstances of the case and with request and consent of parties appearing through their respective learned advocates, the petition was taken up for final consideration today. 1.1 Rule, returnable forthwith. Learned Assistant Government Pleader Mr.K.M. Antani waives service of notice of Rule on behalf of respondent No.1 – State and its authorities Nos.2 to 5. Learned advocate Mr.U.M. Shastri waives service of notice of Rule on behalf of respondent No.6. 1.2 Heard learned advocate Mr.Krishnan Ghavaria for learned advocate Mr.Murli Devnani for the petitioner and learned Assistant Government Pleader for respondent Nos.1 to 5 as well as learned advocate for respondent No.6. 2. The petitioner herein seeks direction against respondent authorities to release pensionary benefits as well as gratuity by calculating the entire period of service from her initial date of appointment, that is from 04th February, 1985. 3. The petitioner she came to be appointed as daily-rated Clerk on 04th February, 1985. Services of the petitioner was discontinued on 27th May, 1988. The petitioner herein seeks direction against respondent authorities to release pensionary benefits as well as gratuity by calculating the entire period of service from her initial date of appointment, that is from 04th February, 1985. 3. The petitioner she came to be appointed as daily-rated Clerk on 04th February, 1985. Services of the petitioner was discontinued on 27th May, 1988. The petitioner approached the Labour Court, however the respondent authorities showed willingness to take the petitioner back in service if petitioner withdrew the proceedings before the Labour Court. The petitioner withdrew the proceedings, whereafter she came to be taken back in service on 02nd April, 1991. The petitioner was at that time treated as daily-wager and the benefit of higher pay-scale granted to him was also cancelled. The petitioner retired on 30th April, 2014. The benefits flowing from the State Government Resolution dated 17th October, 1988 were given to the petitioner restoring the said benefit to her on 19th April, 2016. 4. The grievance voiced in this petition by the petitioner is that though she joined the services from 04th February, 1985, her joining date has been shown as 02nd April, 1991 and she came to be granted the benefit of permanency from 02nd April, 2001. It was a grievance that while fixing the pension, her initial date date was taken as 02nd April, 1991 instead of 04th February, 1985. Gratuity was paid also on such basis. It is the case of the petitioner that she was illegally kept out of service from 28th May, 1988 to 01st April, 1991. Therefore, for all the purpose including for pension, her initial date of entry in service ought to have been adopted as 04th February, 1985, states the petitioner. 5. Now, figures on record communication dated 27th March, 2017 from the Director, District Gram Development Agency, Panchmahal, to the Assistant Taluka Development Officer, Godhra, in which it is clarified that petitioner was not in actual service between 28th May, 1988 and 01st April, 1991 and since the petitioner was a daily-rated workman, there was no provision in the Gujarat Civil Services (Leave) Rules, 2002 to regularise the long period of absence. It was mentioned in the said communication that appointment of the petitioner with effect from 02nd April, 1991 was a fresh appointment. It was mentioned in the said communication that appointment of the petitioner with effect from 02nd April, 1991 was a fresh appointment. In the statement showing calculation of gratuity, service details of the petitioner were set out in which the date of entry in service was shown as 02nd April, 1991 and the permanency benefit was shown to have been accrued with effect from 02nd April, 2001 upon completion of 10 years of service. 5.1 The aforesaid facts show that though the petitioner was initially taken in service in the year 1985, there was a gap in her service between 28th May, 1988 and 02nd April, 1991. When the petitioner was taken back in service on 02nd April, 1991, it was an appointment afresh of the petitioner as Rojamdar. In this view, the fact that the petitioner was taken afresh with effect from 02nd April, 1991 is clearly borne out from the record. 5.2 In the aforesaid view, the Court could partly accept the contention of the petitioner. The services of the petitioner for the purpose of pension and gratuity is liable to be counted with effect from 02nd April, 1991 taking the said date as date of entry in service and not the date of 02nd April, 2001 when she was given permanency benefit. 5.3 In Executive Engineer, Panchayat (Road & Building) Department v. Samudabhai Jyotibhai Bhedi [ 2017 (4) GLR 2952 ], the Division Bench of this Court laid down principle that the dailyrated workman is entitled to pension by counting the service from the date of initial appointment. Learned advocate for the petitioner relied on the decision in Samudabhai Jyotibhai Bhedi (supra). The respondent could not dispute the position of law emanating therefrom. 5.4 In Samudabhai Jyotibhai Bhedi (supra), the Division Bench held that for the purpose of conferring the benefit of pension to the daily wagers, their services as continuous from the date of their initial appointments is liable to be counted, as observed in paragraphs 6 to 12 of the judgment. The decision in Samudabhai Jyotibhai Bhedi (supra) was further followed by another Division Bench in State of Gujarat v. Govindbhai Ukabhai Parmar being Letters Patent Appeal No.174 of 2017. Still another decision of Division Bench in State of Gujarat v. Ranabhai Ajmalbhai Harijan, since deced. The decision in Samudabhai Jyotibhai Bhedi (supra) was further followed by another Division Bench in State of Gujarat v. Govindbhai Ukabhai Parmar being Letters Patent Appeal No.174 of 2017. Still another decision of Division Bench in State of Gujarat v. Ranabhai Ajmalbhai Harijan, since deced. through legal heirs being Letters Patent Appeal NO.1518 of 2017 decided on 10th April, 2018 reinforced the position of law. 5.5 The Division Bench in Ranabhai Ajmalbhai Harijan (supra) finally held as under. “9. … … … it leaves no manner of doubt that after repeated reiteration of position of law as rendered by this Court in the judgment referred to herein above, the 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 the purpose of extending pensionary benefits. The stand of the Government, therefore that the respondent herein had not completed the stipulated period of qualifying service is, undisputedly a stand, which is contrary to the settled position of law, in view of the judgments referred to.” 6. In view of the above position of law, the petitioner is entitled to relief to the extent that pension and gratuity of the petitioner is liable to be counted from 02nd April, 1991 taking the said date as initial date of joining. It was stated that the petitioner has not been getting pension at all. Therefore, it is directed that the said date of 02nd April, 1991 shall be applied for counting the gratuity and pension of the petitioner. Pension shall be calculated by the respondents on such basis and the respondents shall start paying pension to the petitioner immediately. The arrears which may be payable shall be paid to the petitioner within a period of eight weeks from the date of receipt of writ of this order. If the arrears is not paid within the time stipulated above, it is provided that the amount due shall carry interest at the rate of 6% from the date of filing of the petition, that is 19th December, 2017. 7. The petition stands allowed as per the aforesaid directions. Rule is made absolute in the said terms. Direct service is permitted. 4. 7. The petition stands allowed as per the aforesaid directions. Rule is made absolute in the said terms. Direct service is permitted. 4. The Letters Patent Appeal filed by the District Rural Development Agency was also dismissed by the Division Bench on 23.07.2019. 5. Based on the decision of the case in Premilaben (supra), even one Chandrakant Shah who approached this Court succeeded as his petition was allowed on 23.09.2020. The order dated 23.09.2020 in Special Civil Application No. 23304 of 2017 reads as under: “1. Learned advocate for the petitioner seeks permission to delete prayer in terms of para- 9(D) as the petitioner has approached Controlling authority for his grievance. Permission is granted. Registry to carry out amendment accordingly. 2. Heard learned advocate Mr. Murali Devnani for the petitioner, learned AGP Ms. Nidhi Vyas for respondent nos.1 and 2 and learned advocate Mr. U.M.Shastri for respondent nos.3 and 4 and with the consent of learned advocates for the parties, the matter is taken up for final decision today. 3. Rule returnable forthwith. Learned AGP Ms. Nidhi Vyas waives service of rule for respondent nos.1 and 2 and learned advocate Mr. U.M.Shastri waives service of rule for respondent nos.3 and 4. 4. At the outset, it is required to be noted that present petition is covered by decision of the Co-ordinate Bench in Special Civil Application No.22907 of 2017 rendered on 30.01.2019 and further confirmed with modification in Letters Patent Appeal No.1448 of 2019 as per order dated 23.07.2019. 5. Briefly stated, the petitioner herein seeks direction against the respondent authorities i.e. respondent nos.3 and 4 to release pensionary benefits by calculating entire period from initial date of appointment i.e. 20.02.1985. The petitioner joined service with respondent authority from 20.02.1985. According to the petitioner, he worked upto 03.07.2016 continuously and as per Government Resolution dated 17.10.1988, he is eligible and entitled for grant of pensionary benefits. According to the petitioner, the respondent authority has not granted pensionary benefits on account of non consideration of his service from 20.02.1985 to 19.02.1995 and thus, held that as the petitioner is getting benefit of CPF, he is not entitled to pensionary benefits. 6. According to the petitioner, the respondent authority has not granted pensionary benefits on account of non consideration of his service from 20.02.1985 to 19.02.1995 and thus, held that as the petitioner is getting benefit of CPF, he is not entitled to pensionary benefits. 6. An identical issue was cropped up in the decision rendered by the Co-ordinate Bench in case of Premilaben Chandravadan Patel v/s. State of Gujarat as aforesaid (Special Civil Application No.22907 of 2017) and in the said case, the Co-ordinate Bench directed to take in account initial date of joining for counting gratuity and pension of the petitioner. The respondent authority carried the matter before the Division Bench, wherein, the decision rendered by the Co-ordinate Bench was upheld on condition to refund the amount of CPF that the petitioner has earned / received. 7. In view of facts of the case and the decision rendered by the Coordinate Bench in Special Civil Application and Letters Patent Appeal, the petitioner is entitled to the relief to the extent that pension of the petitioner is liable to be counted from 20.02.1985 taking the said date as initial date of joining. Accordingly, the respondent authority shall calculate the pension of the petitioner and start paying pension to the petitioner immediately and on further condition that the petitioner shall refund the amount of CPF earned / received by him to the respondent authority within two weeks from today. The arrears which may be payable shall be paid to the petitioner within a period of eight weeks from the date of receipt of this order. If the arrears is not paid within the time stipulated above, it is provided that the amount due shall carry interest at the rate of 7% from the date of filing of the petition i.e. 24.12.2017. 8. The petition stands allowed with aforesaid directions. Rule is made absolute to the aforesaid extent. Direct service is permitted.” 6. Both the petitioners were extended the benefits of pension. 7. Mr.H.S.Munshaw, learned counsel for the respondents Nos. 8. The petition stands allowed with aforesaid directions. Rule is made absolute to the aforesaid extent. Direct service is permitted.” 6. Both the petitioners were extended the benefits of pension. 7. Mr.H.S.Munshaw, learned counsel for the respondents Nos. 3 and 4, would rely on the affidavit filed by the Director, DRDA, and submit that pursuant to the order passed by this Court on 29.10.2021, which reads as under, has sent a proposal to the Additional Commissioner (Establishment), Rural Development Department, Gujarat State requesting for appropriate decision on the issue of payment of retiral benefits as well as pension to the petitioners and after a query received from the office, a response has been forwarded on 08.12.2021. The order dated 29.10.2021 read as under: “Heard learned Advocate Shri K.B. Pujara with learned Advocate Shri Pareshkumar Trivedi on behalf of the petitioner, learned Assistant Government Pleader Shri Uttkarsh Sharma on behalf of respondent no.1- State and learned Advocate Shri H.S. Munshaw on behalf of respondents no. 3 and 4. Learned Advocate Shri Pujara raises a grievance about case of the petitioner not being considered for pension and other retiral benefits whereas case of similarly situated person who had approached this Court had been considered and all other retiral benefits had been paid to him. In this view of the matter respondents no. 3 and 4 if required in consultation with respondents no. 1 and 2 are directed to consider the case of the petitioner for payment of pension and other retiral dues in light of decision of this Court in Special Civil Application No. 22907 of 2017 dated 30.01.2019 confirmed by order of Hon’ble Division Bench of this Court in Letters Patent Appeal No. 1448 of 2019 vide order dated 23.07.2019. Such consideration shall be done by the respondents within a period of four weeks from date of receipt of the order of this Court. Let this matter be listed for consideration on 13.12.2021 by which date the concerned respondents shall place on record appropriate decision. Direct service is permitted.” 8. Considering the fact that the petitioner also was a workcharge employee whose name figured like that of Premilaben and Chandrakant Shah in the order dated 21.08.2015, he is entitled to the same benefit of retiral benefits and pension as granted to the petitioner of Special Civil Application No. 22907 of 2017. 9. Accordingly, the petition is allowed. Considering the fact that the petitioner also was a workcharge employee whose name figured like that of Premilaben and Chandrakant Shah in the order dated 21.08.2015, he is entitled to the same benefit of retiral benefits and pension as granted to the petitioner of Special Civil Application No. 22907 of 2017. 9. Accordingly, the petition is allowed. The petitioner is entitled to the relief to the extent that pension and gratuity of the petitioner is to be counted on the same basis as was granted to the aforesaid petitioner Premilaben Patel. He would also be entitled to the benefits of higher payscales in accordance with the G.R dated 26.10.2015, 17.10.1988 and 17.09.2004. All monitory benefits shall be paid to the petitioner with interest @ 6% from the date of his retirement i.e. 30.04.2021. Pension shall be paid from the date of his initial appointment and so also arrears within a period of ten weeks from the date of receipt of copy of this order. Rule is made absolute to the above extent. Direct service is permitted.