Gujarat High Court
Amrutben Govindbhai Parmar vs State Of Gujarat on 20 January, 2025
Author: Nirzar S. Desai
Bench: Nirzar S. Desai
NEUTRAL CITATION
C/SCA/18006/2023 JUDGMENT DATED: 20/01/2025
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 18006 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE NIRZAR S. DESAI
=====================================================
Approved for Reporting Yes No
Yes
=====================================================
AMRUTBEN GOVINDBHAI PARMAR
Versus
STATE OF GUJARAT & ORS.
=====================================================
Appearance:
MR NILESH M SHAH(780) for the Petitioner(s) No. 1
MR SANJAY UDHWANI ASSISTANT GOVERNMENT PLEADER for
the Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 2,3,4
SERVED BY RPAD (N) for the Respondent(s) No. 5
=====================================================
CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI
Date : 20/01/2025
ORAL JUDGMENT
1. Heard learned advocate Mr. Nilesh M. Shah
appearing for the petitioner and learned
Assistant Government Pleader Mr. Sanjay Udhwani
appearing for the respondent – State.
Page 1 of 14
Uploaded by PALLAVI PRABHUDAS PANCHAL(HC01403) on Wed Jan 22 2025 Downloaded on : Wed Jan 22 22:39:26 IST 2025
NEUTRAL CITATION
C/SCA/18006/2023 JUDGMENT DATED: 20/01/2025
undefined
2. With the consent of learned advocates appearing
for the respective parties, the matter was taken
up for final hearing. Hence, RULE. Learned
Assistant Government Pleader Mr. Sanjay Udhwani
waives the service of rule on behalf of the
respondent – State.
3. By way of this petition, the petitioner has
prayed for quashing and setting aside the
impugned order dated 2.5.2012 passed by the
respondent No.2 to the extent of not granting
benefits of G.R. dated 17.10.1988 with effect
from 1.10.1988 notionally with revised pay scale
up to 8.1.2007 and has further prayed for a
direction to the respondents to give difference
of salary with revised pay scale from 9.1.2007
to 28.2.2022.
4. The petitioner has further prayed for quashing
and setting aside the order dated 9.10.2023
passed by Executive Engineer, Road and Building
Department, Surendranagar whereby the
petitioners written representation was rejected.
Page 2 of 14
Uploaded by PALLAVI PRABHUDAS PANCHAL(HC01403) on Wed Jan 22 2025 Downloaded on : Wed Jan 22 22:39:26 IST 2025
NEUTRAL CITATION
C/SCA/18006/2023 JUDGMENT DATED: 20/01/2025
undefined
5. Brief facts of the petition as stated by learned
advocate Mr. Shah can be summarized as under :-
5.1 The petitioner was employed by
respondent No.3 as a daily wager labourer since
1979 and according to the petitioner, since
then, she was working continuously. The service
of the petitioner along with a co-employee was
orally terminated by the respondent No.3 from
1.1.1991 which was subject matter of challenge
by way of Reference (LCS) No. 82 of 2001 whereby
the Labour Court, Surendranagar vide award dated
8.1.2007 partly allowed the reference and
directed respondents No.2 and 3 to reinstate the
petitioner and co-employee to the original post
without back wages. Against the aforesaid award
dated 8.1.2007, the respondents No.2 and 3 filed
Special Civil Application No.15685 of 2007 which
was dismissed by this Court vide order dated
3.8.2007. Pursuant thereto ultimately the
petitioner was reinstated on 5.1.2009 vide order
dated 31.12.2008. Thereafter, the petitioner
Page 3 of 14
Uploaded by PALLAVI PRABHUDAS PANCHAL(HC01403) on Wed Jan 22 2025 Downloaded on : Wed Jan 22 22:39:26 IST 2025
NEUTRAL CITATIONC/SCA/18006/2023 JUDGMENT DATED: 20/01/2025
undefined
remained in service and ultimately, retired on
28.2.2022 on account of superannuation. However,
the petitioner was though granted the benefits
of Government Resolution dated 17.10.1988, the
same was granted only with effect from
17.1.2012, considering the petitioner’s date of
appointment as 18.1.2007 and the past services
of the petitioner was not considered by the
respondents for granting him benefits of
Government Resolution dated 17.10.1988 and now,
upon superannuation, for computing retiral
benefits and that is how the petition is
preferred.
6. Upon retirement, the petitioner was handed over
a cheque of Rs.1,90,523/- only, towards gratuity
for 15 years and despite the petitioner’s
correspondence with the respondents except for
an amount of Rs.2,30,480/- paid by the
respondents towards leave encasement, no other
amounts were paid to the petitioner despite the
petitioner’s claiming her entitlement over the
Page 4 of 14
Uploaded by PALLAVI PRABHUDAS PANCHAL(HC01403) on Wed Jan 22 2025 Downloaded on : Wed Jan 22 22:39:26 IST 2025
NEUTRAL CITATION
C/SCA/18006/2023 JUDGMENT DATED: 20/01/2025
undefined
same by counting her service from 1.10.1988 and
as the same was not considered and the same
would wipe out the petitioner’s past service
prior to her reinstatement, the present petition
is preferred.
7. Learned advocate Mr. Nilesh M. Shah appearing
for the petitioner submitted that the
identically situated co-employee viz. Champaben
Ukabhai Parmar preferred a petition being
Special Civil Application No. 10343 of 2020
before this Court claiming similar benefits and
the said petition was allowed by the Co-ordinate
Bench vide order dated 15.9.2022 and therefore,
as the aforesaid order dated 15.9.2022 has
become final in respect of co-employee and the
same has been complied with in respect of co-
employee, the petitioner is also required to be
granted similar benefits.
8. Learned Assistant Government Pleader Mr. Sanjay
Udhwani appearing for the respondent – State
though vehemently opposed the petition could not
Page 5 of 14
Uploaded by PALLAVI PRABHUDAS PANCHAL(HC01403) on Wed Jan 22 2025 Downloaded on : Wed Jan 22 22:39:26 IST 2025
NEUTRAL CITATION
C/SCA/18006/2023 JUDGMENT DATED: 20/01/2025
undefined
point out from the record that the order dated
15.9.2022 has not become final which is passed
in respect of co-employee viz. Champaben Ukabhai
Parmar in Special Civil Application No. 10343 of
2020 or that there is any decision by this Court
or the Hon’ble Apex Court which would support
the case of the respondents that the respondents
action of wiping out petitioner’s past service
before reinstatement has rightly not been taken
into consideration while computing petitioners
retiral benefits.
9. From the record, learned Assistant Government
Pleader Mr. Sanjay Udhwani also could not
dispute the fact that the petitioner’s claim
about pensionery benefits and recognition of
past service is not covered by the decision of
Champaben Upabhai Parmar (Supra) who happens to
be the co-employee of the petitioner. Though
learned Assistant Government Pleader Mr. Sanjay
Udhwani heavily relied on the affidavit-in-reply
filed by the respondents, the same could not
point out anything contrary, which may compel
Page 6 of 14
Uploaded by PALLAVI PRABHUDAS PANCHAL(HC01403) on Wed Jan 22 2025 Downloaded on : Wed Jan 22 22:39:26 IST 2025
NEUTRAL CITATION
C/SCA/18006/2023 JUDGMENT DATED: 20/01/2025
undefined
the Court to take a different view.
10. In the above background I have considered
the submissions made by learned advocates
appearing for the respective parties. On perusal
of decision of co-employee viz. Champaben
Ukabhai Parmar (Supra) dated 15.9.2022, I have
found that in case of co-employee Champaben
Ukabhai Parmar, even a contention of delay also
was raised. However, the Co-ordinate Bench of
this Court by relying upon the decision of this
Court in Special Civil Application No. 389 of
2020 dated 14.2.2022 allowed the petition. In
the above decision, the Co-ordinate Bench of
this Court observed as under from paragraph Nos.
6 and 7 as under :-
“6. Considering the decision of this court
in Special Civil Application No. 389 of
2020 dated 14.02.2022 wherein this court
has held as under, the petition deserves
to be allowed:
“3. In this petition under Article 226
of the Constitution of India, the prayer
of the petitioner is to direct the
respondents to grant the benefits of the
resolution dated 17.10.1988 to the
petitioner from initial date of joining
considering the fact that by virtue ofPage 7 of 14
Uploaded by PALLAVI PRABHUDAS PANCHAL(HC01403) on Wed Jan 22 2025 Downloaded on : Wed Jan 22 22:39:26 IST 2025
NEUTRAL CITATIONC/SCA/18006/2023 JUDGMENT DATED: 20/01/2025
undefined
the award of the Labour Court dated
29.08.2009, reinstatement was granted
with continuity of service, in the award
made though not have specifically
mentioned the word “continuity”.
4. Mr.P.C.Chaudhary learned counsel for
the petitioner would draw the attention
of this court to a decision rendered by
the coordinate bench of this Court in
Special Civil Application Nos.13095 of
2016 and 2192 of 2017, wherein
considering several decisions of this
Court including the decision of the
Supreme Court, the Court in Special
Civil Application Nos.13095 of 2016 held
as under:
“5. In Vasantika R. Dalia Vs. Baroda
Municipal Corporation [1998(2) LLJ
172], this Court was posed to
interpret the judgment and award of
the Labour Court which granted the
relief of reinstatement to the
workmen. The relief of backwages was
denied and the relief of continuity of
service was not denied specifically
and that in the relief of
reinstatement granted, the word
‘continuity’ was not mentioned.
5.1 The Court observed to lay down
that “It may be straightaway observed
that once the relief of reinstatement
is granted, the continuity of service
is a direct consequence rather
inherent in the relief of this
nature”. It was held that when the
relief of reinstatement was granted
and the continuity of service was not
specifically denied, the workman has
to be relegated to the same position
as was held by it at the time of
termination. When the order of
Page 8 of 14
Uploaded by PALLAVI PRABHUDAS PANCHAL(HC01403) on Wed Jan 22 2025 Downloaded on : Wed Jan 22 22:39:26 IST 2025
NEUTRAL CITATION
C/SCA/18006/2023 JUDGMENT DATED: 20/01/2025
undefined
termination was found to be void, the
petitioner, it was held, would be
entitled to hold the relief of
reinstatement with continuity where
there was no mention of specific
denial to such continuity.
5.2 The Supreme Court in Gurpreet
Singh Vs. State of Punjab and others
[2002 (92) FLR 838], held that once
the plaintiff was directed to be
reinstated in service upon setting
aside of the order of termination,
continuity of service could not be
denied. The Court observed that the
case was not of fresh appointment but
it was one of reinstatement and that
being the position, it was observed
that the High Court was in error in
denying the continuity of service.
6. Thus and therefore, even though the
judgment and award of the Labour Court
had not expressly granted the
continuity, at the same time it did
not deny the continuity in any
expressed terms. The grant of
continuity would have to be read with
the order of reinstatement. The
petitioner would be entitled to be
treated continuous in service upon
reinstatement. Resultantly, the
petitioner would be entitled to be
granted the benefits of resolution
dated 17.10.1988 accordingly by
reckoning his services
C/SCA/13095/2016 ORDER the Supreme
Court in Gurpreet Singh (supra), the
concept of continuity could not be
distinguished for the purpose of
granting any other service benefits.
Learned Assistant Government Pleader
made a failed attempt to submit that
the continuity for the purpose of
Page 9 of 14
Uploaded by PALLAVI PRABHUDAS PANCHAL(HC01403) on Wed Jan 22 2025 Downloaded on : Wed Jan 22 22:39:26 IST 2025
NEUTRAL CITATION
C/SCA/18006/2023 JUDGMENT DATED: 20/01/2025
undefined
granting benefits under resolution
dated 17.10.1988 may be treated
differently. Any such distinction
would be artificial distinction. once
the labour court granted the
reinstatement and the continuity was
not expressly denied, the continuity
benefit could be said to be deemed to
have been granted and by deeming
fiction the services of the
petitioners should have to be treated
as continuous upon their
reinstatement.
6.2 Not only that the averments in the
petition remained undisputed that
other similarly situated employees
shri Pravinbhai Madhavbhai, shri
Manubhai Govindbhai and shri Maheboob
Husainbhai in whose favour also there
was judgment and award of the labour
court in similar way, they were shown
to have extended the benefits of
resolution dated 17.10.1988 by passing
order dated 29.5.2009 by the
authorities. The petitioners are
liable to be treated with parity for
the purpose of extension of benefits
in question. 6.3 The petitioners
cannot be treated differently once the
similarly placed employees were
extended the benefits of resolution
dated 17.10.1988 by considering their
services as continuous after the
reinstatement is effected pursuant to
labour court’s judgment and award. In
the above view, the denial of
continuity of service to the
petitioner would stand only for breach
of Article 14 of the Constitution.
7. As a result of the above
discussion, the petition deserves to
be allowed. The respondents are
Page 10 of 14
Uploaded by PALLAVI PRABHUDAS PANCHAL(HC01403) on Wed Jan 22 2025 Downloaded on : Wed Jan 22 22:39:26 IST 2025
NEUTRAL CITATION
C/SCA/18006/2023 JUDGMENT DATED: 20/01/2025
undefined
directed to confer and grant the
benefits to the petitioner under
resolution dated 17.10.1988 of the
State Government by reckoning the
services of the petitioner from the
initial date of his joining and
depending upon the completion of
requisite number of years to confer
the corresponding benefits under the
said resolution. The services of the
petitioner shall be treated as
continuous with effect from the
initiate date of joining till the date
of reinstatement and notional benefits
would be calculated and granted for
the period from the date of
reinstatement onwards. The arrears
which may arise and become payable by
virtue of this order from onwards the
date of reinstatement shall be paid by
the authorities to the petitioner
within a period of ten weeks from the
date of receipt of the present order.”
5. In the latter decision of the
Division Bench of this Court in case of
Secretary v. Rajendrasinh Hamirsinh
Parmar rendered in LPA No.1527 of 2019
relying on the decision of the Supreme
Court in case of Nandkishore Shravan
Ahirrao v. Kosan Industries Private
Limited [2020 LLR 813] confirmed the
decision of the learned Single Judge.
6. Accordingly, the petition is allowed.
The respondents are directed to confer
and grant the benefits to the petitioner
under resolution dated 17.10.1988 of the
State Government by reckoning the
services of the petitioner from the
initial date of his joining and
depending upon the completion of
requisite number of years to confer the
Page 11 of 14
Uploaded by PALLAVI PRABHUDAS PANCHAL(HC01403) on Wed Jan 22 2025 Downloaded on : Wed Jan 22 22:39:26 IST 2025
NEUTRAL CITATION
C/SCA/18006/2023 JUDGMENT DATED: 20/01/2025
undefined
corresponding benefits under the said
resolution. The services of the
petitioner shall be treated as
continuous with effect from the initial
date of joining till the date of
reinstatement and notional benefits
would be calculated and granted for the
period from the date of reinstatement
onwards. The arrears which may arise and
become payable by virtue of this order
from onwards the date of reinstatement
shall be paid by the authorities to the
petitioner within a period of ten weeks
from the date of receipt of the present
order.
7. The petition is allowed in the
aforesaid terms. Rule is made absolute
accordingly.”
7. Accordingly, the petition is allowed.
The respondents are directed to confer and
grant the benefits to the petitioner under
resolution dated 17.10.1988 of the State
Government by reckoning the services of
the petitioner from the initial date of
his joining and depending upon the
completion of requisite number of years to
confer the corresponding benefits under
the said resolution. The services of the
petitioner shall be treated as continuous
with effect from the initial date of
joining till the date of reinstatement and
notional benefits and pensionary benefits
would be calculated and granted for the
period from the date of reinstatement
onwards. The arrears which may arise and
become payable by virtue of this order
from the date of reinstatement shall be
paid by the authorities to the petitioner
within a period of ten weeks from the date
of receipt of the present order”
Page 12 of 14
Uploaded by PALLAVI PRABHUDAS PANCHAL(HC01403) on Wed Jan 22 2025 Downloaded on : Wed Jan 22 22:39:26 IST 2025
NEUTRAL CITATION
C/SCA/18006/2023 JUDGMENT DATED: 20/01/2025
undefined
11. In view of the fact that it could not be
pointed out from the record that the case of the
petitioner is not identical to that of Champaben
Ukabhai Parmar (Supra) or that the aforesaid
decision in case of Champaben Ukabhai Parmar
(Supra) does not cover the issue which the
petitioner has agitated before this Court, I
have no option but to follow the decision in
case of Champaben Ukabhai Parmar (Supra) whereby
in similar facts of the case, the Co-ordinate
Bench of this Court had directed the respondents
to recognize the services of the petitioner from
her initial date of joining and upon completion
of requisite number of years to confer the
corresponding benefits of Government Resolution
dated 17.10.1988. Accordingly, present petition
is allowed. Respondents are directed consider
the petitioners initial date of joining with
effect from 1.10.1988, to confer the benefits to
the petitioner with effect from 1.10.1988 and to
recalculate the petitioner’s entitlement of
salary and accordingly, refix the salary and pay
Page 13 of 14
Uploaded by PALLAVI PRABHUDAS PANCHAL(HC01403) on Wed Jan 22 2025 Downloaded on : Wed Jan 22 22:39:26 IST 2025
NEUTRAL CITATIONC/SCA/18006/2023 JUDGMENT DATED: 20/01/2025
undefined
the retiral benefits to the petitioner and to
revive the consequential benefits as per the
entitlement of the petitioner as early as
possible but in any case not later than twelve
weeks from the date of receipt of the order.
Such benefits would be granted to the petitioner
notionally and in case if, the benefits are not
passed on to the petitioner within a period of
twelve weeks from the receipt of the order, the
same shall incur an interest at the rate of 6%
per annuam.
12. With the aforesaid observations and
direction, petition is allowed. Rule made
absolute. No order as to costs.
(NIRZAR S. DESAI,J)
Pallavi
Page 14 of 14
Uploaded by PALLAVI PRABHUDAS PANCHAL(HC01403) on Wed Jan 22 2025 Downloaded on : Wed Jan 22 22:39:26 IST 2025