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Judgment
N.V.Anjaria, J
All these five petitions constitute a group since they involve similar facts and the same prayers, raising identical issues. Therefore, they were heard
together and being treated for disposal simultaneously by this common order.
The petitioners have questioned the State Government Resolution dated 15th September, 2014 as in contravention of the decision of the Supreme
Court in State of Gujarat v. PWD Employees' Union [(2013) 12 SCC 417]. The petitioners have payed for grant of all the benefits under the State
Government Resolution dated 17th October, 1988 as interpreted and applied by the Apex Court in PWD Employees' Union (supra). It is the further
prayer to fix for the petitioner the pay as per the Seventh Pay Commission Recommendations in light of the Resolution dated 16th May, 2017 by which
the Seventh Pay Commission Recommendations came to be adopted by the Road & Building Department.
2.1 Precisely sated, these Forest Department daily-rated workers have made the following prayers.
(i) declaring the Government Resolution dated 15.09.2014 issued by the respondent no. 1 and all consequential actions taken under the Resolutions as
bad in law, illegal, arbitrary, discriminatory, capricious, contravention and defiance of the decision dated 09.07.2013 passed by the Hon'ble Supreme
Court in State of Gujarat & Ors. Vs. PWD Employees' Union & Ors., reported in 2013 (8) Scale 579 and violative of Articles 14, 16 and 21 of the
Constitution;
(ii) declaring the action of the respondent authorities in not granting all the benefits as per the Government Resolution dated 17.10.1988 as bad in law,
illegal, arbitrary, capricious, contravention and defiance of the decision dated 18.03.2011 passed by this Hon'ble Court reported in 2011 (2) GLR 1290
and violative of Articles 14, 16 and 21 of the Constitution;
(iii) commanding the respondents to extend the benefits as contained in Government Resolution dated 17.10.1988, including the following service
benefits to the petitioners under Government Resolution dated 17.10.1988 â€" (a) Leave encashment at the time of retirement and death, (b) Medical
Allowance, (c) Transport Allowance, (d) Leave Travel Concession, (e) Higher scale of pay after completion of 9, 18 and 27 years of service, (f)
Counting service from the date of joining for the purpose of pension and other retirement benefits, (g) Uniform Allowance, (h) House Rent Allowance,
(i) Pension, (j) Pay fixation in the pay scales assigned for skilled, semi-skilled and unskilled daily-wagers,
(iv) commanding the respondents to fix the pay of the petitioners as per the 7th Pay Commission recommendations with effect from 01.01.2016, and
pay the arrears, as is done by the Roads and Buildings Department by Government Resolution dated 16.05.2017.
2.2 In Special Civil Application No.4862 of 2019, petitioner No.1 is PWD and Forest Employees Union whereas petitioner Nos.2 to 7 are the individual
employees whose details of joining of service etc. are given in the statement at Annexure-A to the petition. For instance, the first petitioner â€" Arjun
Rangu Dahwad joined services on 01st October, 1982 whereas remaining petitioner Nos.2 to 7 joined on 01st September, 1982, 01st March, 1986, 01st
October, 1982, 01st April, 1988 and 01st April, 1988. They all were given the benefit under Resolution dated 15th September, 2014 by passing order
dated 06th May, 2015.
2.3 Similarly, in Special Civil Application No.16084 of 2018, there are in all 24 individual petitioners whose details are given in the statement at
Annexure-A. Petitioner No.1 in that petition joined services on 01st June, 2004 and benefit under Resolution dated 15th September, 2004 was given to
him by order dated 20th May, 2015. The details of other petitioners are not repeated so as not to burden this order unnecessarily.
2.4 In Special Civil Application No.16085 of 2018, there are 16 individual petitioners whose details are mentioned in the tabular form at Annexure-A.
The first petitioner â€" Naran Dhanji Rathva joined services on 01st August, 2003 and the benefit under Resolution dated 15th September, 2014 was
given to him by order dated 31st March, 2015. The rest of the details are not repeated as they formed part of the record of the petition.
2.5 The first petitioner is the union whereas petitioner Nos.2 to 8, making seven individual petitioners, have filed Special Civil Application No.16087 of
2018. The details of the petitioners are mentioned at Annexure-A from which it could be seen that petitioner No.2 â€" Bharatsing Holiya Gamit joined
on 01st June, 1995 and got the benefits under Resolution dated 15th September, 2004 as per order dated 08th January, 2015. The details of rest of the
petitioners are also given at Annexure-A which are not repeated.
2.6 In Special Civil Application No.16086 of 2018, the first petitioner is the union whereas petitioner No.2 â€" deceased Rameshbhai Rama Gamit is
through his legal representatives being petitioner Nos.2.1 to 2.4. The said deceased petitioner had joined services under the respondent â€" Forest
Department on 01st April, 1990 and by order dated 30th March, 2015, he was extended the benefit under Resolution dated 15th September, 2014.
It is the case of all the petitioners in all the petitions that Resolution dated 17th October, 1988 issued by the State Government pursuant to the
Dolatbhai Parmar Committee Report which was a Resolution of the Road & Building Department, was not applied to the similarly situated daily-
wagers in the Forest & Environment Department though the Forest & Environment Department found a mention in the preamble of the said
Resolution. The applicability of said Resolution came to be settled by the decision of the Supreme Court in PWD Employees' Union (supra), in which it
was held that the scheme of benefits floated by the said Resolution would apply to all the daily-wagers of all the Departments of the government
including the workers of Forest & Environment Department.
3.1 In PWD Employees' Union (supra), the Supreme Court held as under, extracting the operating part.
“29. As per the scheme contained in the Resolution dated 17.10.1988 all the daily wage workers were not entitled for regularization or permanency
in the services. As per the said Resolution the daily wagers are entitled to the following benefits:
“(i) They are entitled to daily wages as per the prevailing daily wages. If there is presence of more than 240 days in first year, daily wagers are
eligible for paid Sunday, medical allowance and national festival holidays.
(ii) Daily wagers and semiskilled workers who have service of more than fiver years and less than 10 years are entitled for fixed monthly salary along
with dearness allowance as per prevailing standard, for his working days. Such daily wagers will get two optional leaves in addition to 14
miscellaneous leaves, Sunday leave and national festival holidays. Such daily wagers will also be eligible for getting medical allowance and deduction
of provident fund.
(iii) Daily wagers and semiskilled workers who have service of more than ten years but less than 15 years entitled to her minimum pay scale on a par
with skilled workers along with dearness allowance as per prevailing standards for his working days. Moreover, such daily wagers will get two
optional leavers in addition to 14 miscellaneous leaves, Sunday leave and national festival holidays. He/She will be eligible for getting medical
allowance and deduction of provident fund.
(iv) Daily wagers and semiskilled workers who have service of more than 15 years will be considered as permanent worker and such semiskilled
workers will get current pay scale of skilled worker along with dearness allowance, local city allowance and house rent allowance. They will get the
benefit as per the prevailing rules of gratuity, retired (sic retiral) salary, general provident fund. Moreover, they will get two optional leaves in addition
to 14 miscellaneous leaves, 30 days’ earned leave, 20 days’ half-pay leave, Sunday leave and national festival holidays. The daily-wage
workers and semi-skilled workers ho have completed more than 15 years of their service will get one increment, two increments for 20 years service
and three increments for 25 years in the current pay scale of skilled workers and their salary will be fixed accordingly.â€
3.2 It was further held,
 “Considering the facts and circumstances of the case, the finding of the Gujarat High Court dated 29-10- 2010 in PWD Employees Union v.
State of Gujarat [Special Civil Application No.8647 of 2008] and connected matters and the fact that the said judgment is binding between the parties,
we are of the view that the appellants should be directed to grant the benefit of the scheme as contained in the Resolution dated 17-10-1988 to all the
daily-wage workers of the Forest and Environment Department working for more than five years, providing them the benefits as per our finding at
para 29 above. The appellants are directed accordingly. The judgment and order passed by the learned Single Judge dated 29-10-2010 as affirmed by
the Division Bench by its order dated 28- 2-2012 [State of Gujarat v. PWD Employees Union, LPA No.1754 of 2011 in Miscellaneous Civil
Application No.17 of 2011] stands modified to the extent above.
 The benefit should be granted to the eligible daily- wage workers of the Forest and Environment Department working for more than five years
including those who are performing work other than building maintenance and repairing but they will be entitled for the consequential benefits w.e.f.
29-10-2010 or subsequent date from which they are so eligible within four months from the date of receipt/ production of the copy of this order. The
appeals stand disposed of with the aforesaid observation and directions to the appellant State and its authorities. There shall be no separate orders as
to costs.†(Para 30)
3.3 The grievance of the petitioners that they were not treated equally in terms of various benefits flowing from Resolution dated 17th October, 1988,
was addressed and settled by the Apex Court as above. Accordingly, the daily-wagers working in the Forest Department became entitled to get the
benefits contained in Resolution dated 17th October, 1988. The benefits under the said Resolution were available depending upon completion of
number of years in service and the benefits were contemplated to be given notionally as per the case of the petitioners.
3.4 It was stated that in the meantime, Resolution dated 15th September, 2014 came to be passed by the State Government on the lines of the
Resolution dated 17th October, 1988. By the said Resolution dated 15th September, 2014, daily-wagers in the Forest & Environment Department were
shown to have been treated in terms of the benefits under the Resolution dated 17th October, 1988. However, it is the grievance of the petitioners that
in the guise of the implementation of 17th October, 1988 scheme, the State Government charted a different course under Resolution dated 15th
September, 2014 which was not exactly in terms of Resolution dated 17th October, 1988 and in the process, the daily-waged workers of the Forest
Department were discriminated against.
3.5 It was the case of the petitioners that the benefits made available to them under Resolution dated 15th September, 2014 were not the same as
were provided for by the Supreme Court while interpreting and applying Resolution dated 17th October, 1988 in PWD Employees' Union (supra). It is
the case of the petitioners that as per Resolution dated 15th September, 2014, those daily-wagers who completed five years or more in service on or
before 29th October, 2010 were treated eligible for the benefit under Resolution dated 17th October, 1988, thus, creating a different eligibility in
departure of the applicability of Resolution dated 17th October, 1988.
3.6 The petitioners narrated in the petition other aspects of Resolution dated 15th September, 2014 which was in discordance with the application of
Resolution dated 17th October, 1988 and the decision of the Supreme Court in PWD Employees' Union (supra), which benefits included the
applicability of Pension Scheme, 2005 and other service benefits.
3.7 It may be stated that the decision of the Supreme Court in PWD Employees' Union (supra) which was decided on 0t9h July, 2013 was subjected
to review by the State of Gujarat. The review was dismissed. In the meantime, in respect of the said decision in PWD Employees' Union (supra), the
union of daily-rated workers filed a contempt petition before this Court. The Court granted time to comply with the directions in the decision.
3.8 The aforesaid Resolution dated 15th September, 2014 came to be issued as a policy decision pursuant to this Court's order in contempt
proceedings. It appears that another contempt petition was filed complaining that Resolution dated 15th September, 2014 was not issued in terms of
the Resolution dated 17th October, 1988. The High Court in the said contempt petition held that though the case for contempt was not made out,
accepted the contention of the respondent to held that Resolution dated 15th September, 2014 was in deviation from the earlier Resolution dated 17th
October, 1988.
3.9 From the facts stated above, it becomes clear that the grievance of the petitioners and the prayers made in the present batch of petitions centers-
round the Resolution dated 17th October, 1988 as interpreted and applied by the Supreme Court in PWD Employees' Union (supra) as sought to be
implemented by the State Government under Resolution dated 15th September, 2014 which was felt to be in deviation of Resolution dated 17th
October, 1988 and the Supreme Court's decision above mentioned by the petitioners, as well as the proceedings and the orders taken out and passed in
connection with the said implementation.
Heard learned senior advocate Mr.Shalin Mehta assisted by learned advocate Ms.Vidhi Bhatt for the petitioners in each of the petitions and learned
Assistant Government Pleader Mr.Manan Mehta for the respondent â€" State and its authorities in all the petitions.
The order passed in the second contempt petition proceedings mentioned above in which this Court observed about the Resolution dated 15th
September, 2014 to be in discordance and in deviation with Resolution dated 17th October, 1988, to be further allegedly not in consonance with the
decision in PWD Employees' Union (supra), came to be challenged by the State of Gujarat before the Apex Court in State of Gujarat v. PWD and
Forest Employees' Union being Civil Appeal Nos.1684-1686 of 2019. The Supreme Court delivered judgment on 1t5h February, 2019. In the said
decision of PWD and Forest Employees' Union (supra) a contention was raised by the appellant â€" State of Gujarat that Government Resolution
dated 15th September, 2014 was issued to implement the judgment of the Supreme Court in case of PWD Employees' Union (supra) and that the
benefits were extended to all daily-rated workers of the Forest Department and the uniformity was maintained with regard to applicability of
Resolution dated 17th October, 1988.
5.1 Thus, in PWD and Forest Employees' Union (supra) the very question of applicability of Resolution dated October, 1988 vis-Ã -vis Resolution
dated 15th September, 2014 issued for the daily-rated workers of Forest Department fell for consideration. Therefore, what is held and observed by
the Apex Court in PWD and Forest Employees' Union (supra) would govern the entitlement of relief for the present petitioners.
5.2 It could be gathered from the observations in paragraph 9 of decision in PWD and Forest Employees' Union (supra) that during the arguments, the
State of Gujarat submitted its submission to the Supreme Court in response to the reply filed by the union of workers, which narrowed down the
controversy before the Supreme Court considerably. The Supreme Court, as recorded, heard the arguments on those employees were difference
between the parties persisted.
5.3 In PWD and Forest Employees' Union (supra), the petitioners put-forth their points on various aspects for the purpose of applying and
implementing Resolution dated 17th October, 1988 and for conferment of the benefits thereunder in form of a charts. In paragraph 11 of the judgment,
the Supreme Court reproduced the version of the respondent â€" State in tabular form which, according to the respondent, was the proper
interpretation and application of Resolution dated 18th October, 1988 as directed by the Supreme Court in its earlier decision in PWD Employees'
Union (Supra). The said charts are not reproduced in this order as the observations and findings given by the Apex Court in that regard are noticed
and reproduced hereinbelow.
5.4 The State of Gujarat accepted the above position subject to certain exceptions. These exceptions were extracted as under.
“(i) In the category mentioned at Serial Nos. 3, 4, 5 and 6, every worker is not entitled to the pay scale mentioned by them as per GR dated
October 17, 1988 or in the corresponding scale on October 29, 2010 because once they become permanent, they will have to be fitted in the job
description in terms of the Gujarat Civil Services (Revision of Pay) Rules, 2009 (hereinafter referred to as the ‘Rules’) as revised from time to
time and not by Minimum Wages Act. Any anomaly within the same job description between people who have been regularly appointed and these
workers of the respondent union would mean that everybody else will ask for it not only in this department, but other department of Government will
have great difficulty in adhering to it. The pay scale mentioned in Serial Nos. 3, 4, 5 and 6 cannot be applied across the board.
(ii) The old Pension Scheme has been scrapped by the Government and Contributory Pension Fund (CPF) Scheme/New Pension Scheme (NPS) has
been introduced with effect from April 01, 2005. Therefore, CPF Scheme/NPS has been made applicable under the GR dated September 15, 2014,
and the benefits of the same are being granted to the workers of the respondent union.
(iii) Similarly, the old General Provident Fund (GPF) Scheme has been scrapped by the Government and CPF Scheme has been introduced with effect
from April 01, 2005. Therefore, CPF Scheme has been made applicable, and the benefits of the same are being granted to the workers of the
respondent union.
(iv) The worker is given benefit of past services considering the earlier period on which he worked for more than 240 days in a year.
(v) The GR dated October 17, 1988 provides for 14 days of casual leave including 2 days of voluntary leave/optional leave. However, due to
inadvertent translation errors, the judgment passed by this Court directed 14 days of casual leave in addition to 2 days of voluntary leave/optional
leave. Therefore, the GR dated September 15, 2014 has incorporated the two days of voluntary leave/restricted leave and 12 days of casual leave
which is applicable to all Government employees.â€
5.5 The Supreme Court confirmed the said exceptions-cum-suggestions given out by the State of Gujarat, observing and holding as under.
“Having regard to the above, we are confining our discussion to the aforesaid exceptions taken by the appellant. In the first instance, it is pointed
out by the appellant that even if the respondents become permanent, they would be entitled to be fitted in the job description in terms of the Rules.
What is emphasised is that even after regularisation, their pay scales cannot be more than the pay which is given to the employees who are taken on
permanent basis. This appears to be a very sound argument. The only plea was that whatever is given to such employees in other departments, same
benefit be extended to the respondents as well. It is difficult to countenance this submission which we find to be legally impermissible. That is hardly
any justifiable response to rebut the same. It is to be kept in mind that members of respondent union were all engaged on daily wage basis. No doubt,
the appellant Government decided to confer certain benefits upon these daily wage workers depending upon the number of years of service they put
in. Judgment dated July 09, 2013 proceeds on that basis. Under certain circumstances, namely, on completion of specified number of years of service
on daily wage basis, these daily wage workers are entitled to become permanent. On attaining the status of permanency/regular employees, they
become at par with those employees who were appointed on permanent basis from beginning, after undergoing the proper selection procedure on
proving their merit. These daily wagers cannot be given the pay scales which are even better than the pay scales given to regularly appointed
employees. The Rules are statutory in nature which have been framed in exercise of powers conferred by the proviso to Article 309 of the
Constitution. On becoming permanent, such daily wagers can, at the most, claim that they be fitted in the job descriptions in terms of the said pay rules
and their pay be fixed accordingly. The appellant is ready to do that. We, therefore, accept the plea mentioned in exception (i) above.†(Para 13)
“Insofar as plea at paras (ii) and (iii) is concerned, the appellant intends to deny the benefit of GPF on the ground that w.e.f. April 01, 2005, CPF
Scheme/NPS has been introduced. However, on that basis, all such employees cannot be denied the benefit of GPF. The earlier pension scheme
continues to annued to the benefit of those who enter the service before April 01, 2005. Therefore, all those daily wagers who become entitled to get
the status of regular/permanent employees before April 01, 2005 has to be given the benefit of GPF. To put it otherwise, April 01, 2005 would be
treated as cut-off date. All those persons who would be entitled to regularisation/permanent status prior to April 01, 2005 shall be given the benefit of
earlier scheme i.e. GPF. However, those who attain this status after April 01, 2005 shall be governed by CPF Scheme/NPS.†(Para 14)
“Insofar as exception (iv) mentioned by the appellant is concerned, there appears to be some merit therein. For counting the number of years for
giving benefit to the workers in terms of judgment dated July 09, 2013, only those years would be taken into consideration wherein these workers had
worked for 240 days or more in a year i.e. in consonance with the GR dated October 17, 1988. Furthermore, there is no direction in the judgment of
this Court to the effect that the period of service of 240 days in a year should be only in the initial year and not thereafter. In fact, when the learned
senior counsel for the respondents were confronted with the aforesaid position, they conceded to this position.†(Para 15)
“Insofar as exception (v) noted above is concerned, it is not in dispute that regular employees are entitled to 12 days of casual leave in a year i.e.
applicable to all Government employees and the respondents could not dispute this. The respondents workers who have been working on daily wage
basis cannot be given casual leave which is more than the entitlement extended to regular Government employees. We accept the plea of the
appellant that GR dated October 17, 1988 which provides for 14 days casual leave including 2 days of voluntary/optional leave is the result of
`inadvertent transaction error. Even otherwise, as pointed out above, the casual leave for daily wagers cannot be more than the regular Government
employees. We, therefore, hold that the respondents employees shall be entitled to 12 days of casual leave and 2 days of voluntary leave/restricted
leave.†(Para 16)
5.6 The Supreme Court finally directed as under.
“With the aforesaid clarifications, the benefits payable to the members of the respondents union shall now be worked out and the same be paid to
them. Exercise in this behalf shall be completed within a period of two months from the date of this judgment. The impugned judgment of the High
Court is modified and the appeals are allowed to the aforesaid extent.â€
5.7 It may be mentioned that a cluster of petitions in case of Parmar Kubaji Nathaji v. State of Gujarat being Special Civil Application No.9614 of
2016 and others involving similar facts and identical issue came to be dealt with by a co-ordinate Bench of this Court, which disposed of the said group
of petitions by order dated 15t March, 2019. In the hearing of the said petitions, a communication dated 28th February, 2019 was pointed out to the
Court whereby informations were called from, from various departments with regard to service of the daily-wagers. Thus, it appears that the State
authorities have made themselves afoot to collect the information for the conferment of benefits in question to the daily-wagers of the Forest
Department in view of what is directed by the Apex Court in PWD and Forest Employees' Union (supra).
5.8 In Parmar Kubaji Nathaji (supra), responding to the similarly situated grievance, learned Advocate General stated that the said communication
would be withdrawn and Committee was constituted to implement the decision in PWD and Forest Employees' Union (supra). The relevant
observations in paragraph 5 of Parmar Kubaji Nathaji (supra) reads as under.
“5. Learned Advocate General Mr.Kamal Trivedi for respondents has submitted that pursuant to the judgment of the Apex Court in the case of
PWD and Forest Employees Union & Ors.(supra), the committee has already been appointed on 02.03.2019 to look into the issues regarding grant of
various benefits to the daily-wage workers working in the various departments. He has further submitted that the communication dated 28.02.2019 will
be withdrawn.â€
5.9 The Court thereafter in Parmar Kubaji Nathaji (supra) observed as under.
“6. Under the circumstances, in view of the statement made by the learned Advocate General, the petitions stand disposed of. The communication
dated 28.02.2019 shall be withdrawn by the State Government. Further direction is also issued that the committee shall examine the grievances of the
petitioners as per the judgment of the Apex Court in PWD and Forest Employees Union & Ors.(supra) and pass an appropriate order conferring the
benefits as stated therein. The writ petitions are disposed of in terms of the judgment of the Apex Court. Rule is made absolute to the aforesaid
extent.â€
In view of above, since the Supreme Court in PWD and Forest Employees' Union (supra) has interpreted the Resolution dated 15th September,
2014 of the Forest Department and has further laid down the modalities for its implementation reading the same with Resolution dated 17th October,
1988 of the Road & Building Department for the conferment of benefits to the daily-rated workers of the Forest Department, prayer (A) in the
present batch of petitions would not survive for consideration as it is taken care of as all the directions of the Supreme Court given in PWD and Forest
Employees' Union (supra) and reproduced hereinabove would apply to take care thereof.
6.1 By summing up the above observations, so as to dispose of the present batch of petitions in light of above observations and the law laid down by
the Supreme Court, it is provided that the petitioners herein shall be entitled to the benefits under Resolution dated October, 1988 read with
Resolution dated 15th September, 2014 as interpreted and provided for by the Supreme Court in PWD and Forest Employees' Union (supra). In all
procedural and substantive decisions which may be taken by the competent authority of the State Government, the law laid down by the Supreme
Court in PWD and Forest Employees' Union (supra) shall hold the field and the benefits under the Resolutions concerned shall be extended in
accordance therewith.
6.2 It may be mentioned herein that the group of petition which has been disposed of by the present order contained similar facts to group of petitions
in Vasava Manilal Moyalabhai & 25 v. State of Gujarat being Special Civil Application No.18661 of 2017 and allied matters. The present order is in
similar lines, however it was additionally submitted by learned senior advocate for the petitioners that a daily-wager, in this case, forest employees,
getting benefit under Resolution dated 17th October, 1988 and Resolution dated 15th September, 2014 as applied by the Supreme Court as per the
direction in PWD and Forest Employees' Union (supra) would also be entitled to the benefits of Sunday Leave, National Holidays Leave, etc., in
addition to other benefits as contemplated under Section 25B of the Industrial Disputes Act, 1947. This aspect was considered and confirmed by the
Division Bench of this Court in Surendranagar District Panchayat v. Umarkhan Alikhan Malek being Letters Patent Appeal No.2047 of 2004 decided
on 29th March, 2016, in which the Division Bench relied on the decision of the Apex Court in Workmen of American Express International Banking
Corporation v. Management of American Express International Banking Corporation [(1985) 4 SCC 71].
It could be rightly submitted that while counting 240 days in a year, the benefit of provision of Section 25B of the Industrial Disputes Act would be
available to the workmen.
6.3 It is, therefore, directed that while taking decision as per the observations and directions in paragraph 6.1 above, the competent authority shall take
into account the law laid down in Workmen of American Express International Banking Corporation (supra) as well as in Surendranagar District
Panchayat (supra) and give such benefits in accordance with law to the concerned employees.
6.4 The necessary decisions shall be taken by the competent authority before 15th November, 2019 and the benefits shall be conferred.
All the petitions are disposed of in terms of above directions and observations.