State Of Gujarat v. Manjuben

A.S. Supehia, J. - Rule. Mr.B.J.Trivedi, learned advocate waives service of Rule for the opponents.

2. The present appeal is directed against the judgment and order dated 11.01.2017 passed by the learned Single Judge directing the present appellants State - original respondents to grant compensation to the petitionerspresent respondent in lieu of compassionate appointment.

3. The core issue raised in the present appeal is whether the Government Resolution dated 05.07.2011 conferring the grant of compensation to the legal heirs of a government employee, after his death, can be refused for the reason that his initial appointment was as a Daily Wager.

4. Mr.Utkarsh Sharma, learned AGP for the appellants - State has invited the attention of this Court to the provisions contained in the Government Resolution dated 05.07.2011. He has stressed on Clause2 of the said resolution and submitted that as per the same, the compensation can only be granted to the heirs of ClassIII and IV government employees upon their death, and since the deceased - employee was serving as a Daily Wager, he cannot be termed as a government employee and hence, directions issued by the learned Single Judge are contrary to the provisions of the Resolution dated 05.07.2011. Thus, he has submitted that the learned Single Judge has misconstrued the resolution and the direction issued granting compensation to the heirs of the deceased employee i.e. present opponents is illegal and hence, the same require to be quashed and set aside.

5. Per contra, Mr.B.J.Trivedi, learned advocate for the respondents has submitted that the order passed by the learned Single Judge does not call for any interference of this Court since the status of the deceasedemployee was subsequently changed and he was made permanent and was also given regular payscale.

In this context, he has submitted that, after the deceased employee was granted the benefit of Resolution dated 17.10.1988, his status was changed into regular employee and hence, as per the provisions of the Government Resolution dated 05.07.2011 the heirs of the deceasedemployee i.e. present opponents are entitled for compensation.

6. The controversy involved in present Letters Patent Appeal rests on the interpretation of clauses of the Resolution dated 05.07.2011 which provides grant of compensation instead of compassionate appointment to the legal heirs of the deceased Class - III and ClassIV employees. Clause2 of the resolution signifies that the compensation mentioned in Clause1 shall be granted to those employees, who were appointed through a regular recruitment process, and thereafter, have completed 5 years of service, simultaneously, it also further provides that the heirs of those deceasedemployees, who were serving as ClassIII and ClassIV in a Work Charge establishment would also be entitled to such compensation. Lastly, Clause 2 also clarifies that the daily wagers, casual workers, apprentice, employees of adhoc, contract or reinstated or who are continued on such basis shall not be entitled to the benefits of the present scheme.

7. Indubitably, the heirs of daily wagers are barred from getting the benefits of present Resolution dt.5.7.2011. However, in present case, the undisputed fact remains that the deceasedemployee was initially appointed as Rojamdar Driver, thereafter, he was granted the benefit of Resolution dated 17.10.1988 and was also made permanent. We had called for the service book for ascertaining the true status of the deceasedemployee. We have examined the service book of the concerned employee. A perusal of the service book reveals that the employee was appointed as a Rojamdar Driver on 20.06.1987. The Initial notings made in the service book , indicates that, after completion of 5 years of service, the deceasedemployee was granted the benefit of Resolution dated 17.10.1988 and he was also appointed as Work Charge employee having pay of Rs. 950/ per month. The said benefit was granted to the deceasedemployee from 01.01.1995. On 13.01.1999, he was placed under Work Charge establishment. After considering his continuity of service from 20.06.1987 to 01.04.2006, the deceasedemployee was placed in a regular pay scale of Rs. 30504590/ by an order dated 13.12.2007, and accordingly increments were also fixed and paid. Thereafter, the deceasedemployee was also granted regular revisions of pay. The noting dated 05.09.2012 indicates that from 01.01.2006, his post has been mentioned as a "Driver" and his pay was fixed at Rs. 6510/ with effect from 01.07.2006, his gradepay was increased at Rs. 1900/ and his revised pay band as on 01.07.2006 was of Rs. 5200 - 20,200/. He expired while in service on 02.02.2013.

8. Thereafter, his heirs i.e. present respondents requested to pay compensation in lieu of compassionate appointment as per Resolution dated 05.07.2011. Thus, the notings made in the service book clearly establish the fact that the deceased employee was working as a regular employee in a Work Charge establishment. He was also granted the benefit of revision of pay under the Gujarat Civil Services (Revision of Pay) Rules, 2009 and his pay was accordingly fixed as a regular employee. As per Clause 2, the heirs of ClassIII and IV employees, who are working in the Work Charge establishment are entitled to the benefits of compensation, as envisaged in the said resolution. The contention raised by the learned AGP that the heirs of the deceased - employee are not entitled to the benefits of the said resolution, as directed by the learned Single Judge only on the ground that his initial appointment was a daily wager does not merit acceptance. Though, the Clause 2 refers that the initial appointment of government employee, who has been appointed through regular recruitment process and has completed 5 years of service in ClassIII and ClassIV shall be conferred with benefits as per the said resolution, however, the very clause also speaks of extending the benefit to the heirs of those employees i.e. ClassIII and ClassIV, who were working in the Work Charge establishment. Undisputedly, the deceasedemployee was serving under Work Charge establishment as a ClassIV employee.

Thus, the initial status of the deceased employee as a daily wager gets obliterated, and he has to be treated as a regular and permanent employee. Hence, the respondentheirs cannot be barred from receiving the benefit of compensation as per the Resolution dt.5.07.2011.

9. As observed in the preceding paragraph the service book of the deceased employee, indicates that, after completion of 5 years of service, he was granted the benefit of Resolution dated 17.10.1988 and was appointed as Work Charge employee having pay of Rs. 950/ per month. The said benefit was granted to the deceasedemployee from 01.01.1995. At this juncture, it would be opposite to incorporate the observations made by Division Bench of this Court in the case of State of Gujarat & Anr. Versus Mahendrakumar Bhagvandas & Anr., (2011) 2 GLR 1290. The Division Bench of this Court, after considering the Resolution dated 17.10.1988 and 18.07.1994 on the issue of granting permanent status of Daily Wager, has observed thus:

"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 rebranded 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 rebranded 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"

10. The Division Bench of this Court in the case of Executive Engineer Panchayat (Maa & M) Department vs Samudabhai Jyotibhai Bhedi, (2017) 4 GLR 2952, has observed thus:

"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."

11. Learned AGP has not disputed the fact that the deceasedemployee was granted the benefit of 17.10.1988 and was also made regular and permanent on that basis, however, he has tried to distinguish the aforesaid position of law which is settled by various decisions of this Court. He has submitted that regularization or permanency given to the Daily Wager stands on a different footing in comparison of the regular appointed government servants and only legal heirs of such government servants would be entitled to the benefits of compensation, as envisaged by Resolution dated 05.07.2011.

12. In the opinion of this Court, no such distinguishing feature has been incorporated in the Resolution dated 05.07.2011. The same only refers to the employees of ClassIII and IV working under the State Government. Clause 2 specifically confers benefit of compensation to the heirs of deceasedworkman of ClassIII and IV, who were working on the Work Charge establishment. Though, such benefit has been specifically denied to heirs of the Daily Wagers, casual workers, apprentice, adhoc and employees working on contractual basis, the same cannot be applied to the daily wagers or employees, who have been subsequently regularized and are made permanent and have also been conferred the benefits of regular revision of pay under the statutory pay rules. Thus, such employees, who are working on Work Charge establishment, cannot be compared with the Daily wager or casual etc. Once the State Government grants the benefits of Resolution dated 17.10.1988 and as per the settled proposition of law, such Daily Wagers, after completion of certain number of years, are made permanent and regular and their pay, retirement benefits, etc are also paid as a regular employee, their status of being "permanent and regular" employees cannot be reverted to a "daily wager" after they expire resulting in the denial of the benefit of compensation to their legal heirs. In the considered opinion of this Court, once they have acquired status of regular employees working in Work Charge establishment, their heirs cannot be barred from the ambit of Resolution dated 05.07.2011 envisaging compensation, as provided therein.

13. With the aforenoted reasons and observations, the Letters Patent Appeal fails. Accordingly, the same is hereby dismissed. The order dated 11.01.2017 passed in Special Civil Application No.16674 of 2016 by the learned Single Judge shall be complied within a period of three weeks from the date of receipt of the present order.

14. In view of the order passed in Letters Patent Appeal, Civil Application No.2 of 20147 also does not survive and the same is hereby disposed of, accordingly.