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2023 DIGILAW 1134 (GUJ)

SITABEN JIVANJI THAKOR v. STATE OF GUJARAT

2023-11-08

NIKHIL S.KARIEL

body2023
JUDGMENT : NIKHIL S. KARIEL, J. 1. Heard learned Advocate Ms. Ashlesha Patel on behalf of the petitioners, learned Assistant Government Pleader Mr. Sahil Trivedi on behalf of the respondent-State and learned Advocate Mr. H.S. Munshaw on behalf of the respondent-Board. 2. Rule. Learned AGP Mr. Trivedi and learned Advocate Mr. Munshaw waives service of notice of rule on behalf of the respective respondents. 3. By way of these petitions, the petitioners inter alia challenge decision of the concerned respondents of rejecting the application of the petitioners for grant of lumpsum compensation pursuant to demise of the husband of petitioners concerned. 4. It is the case of the petitioners that the employee concerned, had been working with the respondent-Board and whereas pursuant to Government Resolution dated 17.10.1988, the employee concerned upon completion of 10 years of services had been granted the benefit of permanency more particularly petitioner of Special Civil Application No. 17257 of 2023 getting benefit of permanency from 22.04.2004 and the husband of petitioner of Special Civil Application No. 17737 of 2023 getting benefit with effect from 01.06.1996. 5. Learned Advocate would submit that the late employees having expired in harness, the petitioners had requested the respondents to grant benefit of lumpsum compensation in lieu of compassionate appointment as per Government Resolution dated 05.07.2011 as modified vide Government Resolution dated 07.04.2016 in SCA Nos. 17257/2023, 17737/2023, 18041/2023, 18046/2023 and 18923/2023 and vide Government Resolutions dated 24.09.2022 in SCA Nos. 17937/2023 and 18486/2023. It appears that the request of the petitioners have been rejected more particularly by holding that the employee concerned was a daily wager and the benefit of lumpsum compensation is not available to a person of such status. 6. Being aggrieved by the same, the present petitions are preferred. 7. Learned Advocate Ms. 17937/2023 and 18486/2023. It appears that the request of the petitioners have been rejected more particularly by holding that the employee concerned was a daily wager and the benefit of lumpsum compensation is not available to a person of such status. 6. Being aggrieved by the same, the present petitions are preferred. 7. Learned Advocate Ms. Patel on behalf of the petitioners would submit that the issue in question is not more res integra more particularly according to learned Advocate, the position has been laid down by this Court in catena of decisions starting from decision of Division Bench of this Court in case of State of Gujarat and Another vs. Mahendrakumar Bhagvandas and Another, 2011 (2) GLR 1290 that the employee, upon being granted the status of permanency on completion of 10 years as per Government Resolution dated 17.10.1988 cannot be re-branded as a permanent daily wager and whereas the employee concerned acquires the status of a regular employee. Learned Advocate would submit that since upon grant of permanency the employee is to be treated as a regular employee then all benefits as are available to regular employee ought to have been given to the late husband of the petitioners and whereas upon their unfortunate demise, the benefit of lumpsum compensation were required to be passed on to the present petitioners. Learned Advocate would therefore request this Court to be pleased to allow the present petitions. 8. These petitions are vehemently opposed by learned Advocate Mr. H.S. Munshaw for the respondent-Board. Learned Advocate Mr. Munshaw would submit that while Government Resolution dated 17.10.1988 has been adopted by the Board and whereas since the said resolution does not provide for grant of compassionate appointment or lumpsum compensation as the case may be, therefore, the benefit of lumpsum compensation could not be paid to an employee who has been regularized under Government Resolution dated 17.10.1988 and whereas according to learned Advocate, the benefit of lumpsum compensation is only available to employees who are regularly appointed with the respondent- Board. Learned Advocate would further submit that this Court may provide an opportunity to the Board to file a reply more particularly since according to the respondent, the issue as regards whether the Government Resolution dated 17.10.1988, provides for compassionate appointment, has not been considered in earlier petitions. 9. The request made by learned Advocate Mr. Learned Advocate would further submit that this Court may provide an opportunity to the Board to file a reply more particularly since according to the respondent, the issue as regards whether the Government Resolution dated 17.10.1988, provides for compassionate appointment, has not been considered in earlier petitions. 9. The request made by learned Advocate Mr. Munshaw has been vehemently opposed by learned Advocate Ms. Ashlesha Patel on behalf of the petitioners. Learned Advocate Ms. Patel would submit that as such, it is too late in the day for the respondent Board to come out with such an objection more particularly, there are numerous orders passed against the Board, where the Board has been directed to consider the case of the petitioners therein for grant of lumpsum compensation upon demise of the employee concerned more particularly such employees, having been granted the benefit of permanency under Government Resolution dated 17.10.1988. Learned Advocate would rely upon decision of learned Co-ordinate Bench in Special Civil Application No. 11554 of 2021 dated 14.02.2022 where such a decision had been taken. Learned Advocate would further submit that while the decision had been appealed by the respondent Board yet the fact remains that the Division Bench of this Court, had while granting interim relief directed depositing the amount of lumpsum compensation and whereas the interest is being paid to the concerned petitioners. Learned Advocate would thereafter rely upon another set of petitions being Special Civil Application No. 2972 of 2022 and allied matters which had been decided by learned Co-ordinate Bench vide order dated 28.04.2022 and would submit that the said petition had been decided exactly on the same lines as had been decided by learned Co-ordinate Bench in Special Civil Application No. 11554 of 2021. Learned Advocate would submit that the said decision had not been interfered with by Division Bench of this Court vide order dated 24.08.2023 in Letters Patent Appeal No. 934 of 2023 and allied matters. Learned Advocate would specifically draw the attention of this Court to observation of the Hon’ble Division Bench where the Division Bench states that the extension of the policy could not be denied to the petitioners on the ground that the petitioners had been appointed as a daily wager. Learned Advocate Ms. Learned Advocate would specifically draw the attention of this Court to observation of the Hon’ble Division Bench where the Division Bench states that the extension of the policy could not be denied to the petitioners on the ground that the petitioners had been appointed as a daily wager. Learned Advocate Ms. Patel would also draw the attention of this Court to an order dated 20.10.2020 in a group of petitions with regard to the very respondent Board and whereas it is submitted by learned Advocate that even this Court, had decided the said group of matters relying upon the law laid down by Division Bench of this Court in case of Mahendrakumar Bhagvandas (supra) and whereas it is now not open for the Board to take a stand contrary to the one taken in all the petitions i.e. the Government Resolution dated 17.10.1988 not envisaging the benefit of grant of compassionate appointment. 10. Heard learned Advocates for the respective parties. At the outset, it requires to be noted that the issue of whether legal heirs of the employees who had been granted permanency under Government Resolution dated 17.10.1988 would be entitled to claim benefit of compassionate appointment/lumpsum compensation is no more res integra. The law on the subject, had been stated firstly by a Division Bench of this Court in Mahendrakumar Bhagvandas (supra), where the Division Bench had inter alia observed that an employee who had joined the State service, the service of the Board here, as a daily rated employee, upon completion of certain number of years, is entitled to be granted the benefit of permanency and whereas upon grant of such benefit, the employees entitled to all the benefits as a permanent employee would be entitled to and whereas Division Bench had criticized the branding of such employee, as a permanent daily wager. It requires to be stated here thath the Government Resolution dated 17.10.1988, does not expressly state as regards grant of certain benefits. What it certainly states is the fact that upon completion of certain number of years the employee would be entitled to certain benefits and whereas said resolution inter alia states that upon completion of 10 years, in each year the employee concerned having put in 240 days as per Section 25B of the Industrial Disputes Act then the employee would be entitled to be granted permanency. It does not require any elaboration that upon being granted the status of the permanent employee, the original tag of the emplyee as a daily rated employee does not remain in force anymore and whereas for all purposes, the employee is to be treated as permanent employee. This position has been explained by the Hon’ble Supreme Court in case State of Gujarat vs. PWD and Forest Employees Union and Others, (2019) 15 SCC 248 more particularly at paragraph no. 14 whereby the Hon’ble Supreme Court has inter alia held that upon being granted the benefit of permanency, an employee who had originally joined the services as a daily rated employee, is entitled to be treated at par with employees who have been appointed on regular basis through open selection. 11. In this view of the matter, in the considered opinion of this Court it would not be open for the respondent Board to state that since Government Resolution dated 17.10.1988 does not expressly confer the benefit of compassionate appointment/ lumpsum compensation, therefore, the legal heirs of the employee concerned would not be entitled to such benefits. 12. At this stage it also requires to be mentioned that even in State service, compassionate appointment had been granted to legal heirs of the employees concerned by way of policies of the State Government which had been issued through Government Resolutions and whereas it requires to be noted that vide Government Resolution dated 05.07.2011 and 24.09.2022 the Government has shifted its policy from grant of compassionate appointment to grant of lumpsum compensation in lieu of compassionate appointment. The policies of the State Government laid down terms where government employees would be entitled to the above benefits and whereas under such circumstances, it could not be held that merely because Government Resolution dated 17.10.1988 did not specifically spell out benefit of compassionate appointment being granted to an employee who had been granted permanency under such resolution, therefore, the employees or legal heirs of employees who had been expired in harness would not be entitled to seek benefit of compassionate appointment/lumpsum compensation in lieu of compassionate appointment. What is required to be seen is the status of the deceased employee. What is required to be seen is the status of the deceased employee. In the present context it would be held that an employee who is granted the benefit of permanency as per Government Resolution dated 17.10.1988 is entitled to all benefits which would accrue to a regularly appointed employee and whereas under such circumstances, in case of unfortunate demise of such employee then the legal heirs of such employee would be entitled to all such benefits that would accrue in favour of the legal heirs of a regularly appointed employee who died in harness. 13. Furthermore it requires to be noted here that in large number of cases, the respondent- Board had appeared and had accepted the legal position about the legal heirs of employees who had attained the status of permanency getting the benefit of lumpsum compensation. No reasonable basis appears to be pointed out by learned Advocate more particularly the issue being an issue of law as to why the respondent-Board now intends to take a view diverse from the view which had been taken by it earlier more particularly the said view being in consonance with the law laid down by this Court. 14. In view of the above discussion in the considered opinion of this Court, the request made by learned Advocate Mr. Munshaw cannot be countenanced and is hereby rejected. 15. Furthermore, it requires to be declared that the petitioners who have been granted benefit of permanency upon completion of 10 years as per Government Resolution dated 17.10.1988 would be entitled to all benefits as a regular employee appointed with the Board and consequently, upon the unfortunate demise of the employees concerned, the legal heirs of the employees i.e. the petitioners herein would be entitled to grant of benefit of lumpsum compensation. 16. Hence the respondent-Board is directed to grant benefit of lumpsum compensation as per Government Resolution dated 05.07.2011 as modified vide Government Resolution dated 07.04.2016 and 24.09.2022 to the present petitioners within a period of six weeks from the date receipt of this judgment. In case such benefit is not paid within the said time period, it would be open for the petitioners to claim interest @ 6% upon the said amount from the date of filing of the petitions. 17. With the above observations and directions the petitions stand disposed of. Rule is made absolute to the aforesaid extent.