Gujarat High Court
Gujarat vs State on 15 July, 2011
Author: H.K.Rathod
Bench: H.K.Rathod
Gujarat High Court Case Information System
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SCA/8609/2011 14/ 14 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 8609 of 2011
=========================================================
GUJARAT
FOREST PRODUCE GATHERERS AND FOREST WORKERS UNION & 116 -
Petitioner(s)
Versus
STATE
OF GUJARAT & 2 - Respondent(s)
=========================================================
Appearance
:
MSVIDHIJBHATT
for
Petitioner(s) : 1 - 117.
MR AL SHARMA, AGP for Respondent(s) :
1,
None for Respondent(s) : 2 -
3.
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CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 15/07/2011
ORAL
ORDER
Heard learned advocate Mr. Shalin Mehta with learned advocate Ms. Vidhi J. Bhatt appearing on behalf of petitioners and learned AGP Mr. A. L. Sharma appearing for respondent state authority.
Learned advocate Mr. Shalin Mehta brought to the notice of this Court one order which has been passed by this Court (Coram:R.R. Tripathi, J.) on 29/10/2010 in group of Special Civil Application Nos.8647 of 2008 and others. Learned advocate Mr. Shalin Mehta relied upon same order which has been passed by this Court as same is relating to almost same grievance which has been voiced in present petition. In that petition it relating to PWD employees union but facts and circumstances are almost similar. Therefore, just in deciding grievance of present petitioners at least respondent may also keep in mind relevant observations made by this Court in aforesaid decision. Relevant observation of decision dated 29/10/2010 has been quoted as under:
"1. These petitions are filed by the respective Unions on behalf of daily wagers working in Forest Department. Amongst other prayers, the petitioners pray that order dated 03.05.2008 passed by the Principal Secretary, Forest & Environment Department, State of Gujarat rejecting the petitioners' representation for one time regularization, be quashed and the State Government be directed to formulate and prepare a scheme for the purpose of giving 'permanent' or 'quasi permanent' status to the 'daily wagers' of the Forest Department in light of the length of service rendered on 'daily wage' basis in the Forest Department.
2. Initially, in the year 2006, Special Civil Application Nos. 6913/06 and 7088/06 were filed by the petitioners claiming following benefits:
Permanent absorption in service on a fair scheme for regularization of service Regular pay scale Increments Weekly off Group Insurance Causal leave, earned leave and medical leave Public holidays Provident Fund Pension Gratuity Bonus Fixed norms of misconduct These two petitions came to be disposed of by this Court by oral order dated 12.10.2006 with a direction to the petitioners to make a representation to the respondents which was directed to be decided by the respondents within two months thereof. Much to the disappointment of the petitioners, the Deputy Conservator of Forest, Rajpipla, West Division rejected the petitioners' representation vide order dated 30.10.2006. This officer did not have an authority to decide the petitioners' representation and besides, the representation was not addressed to him. This made the petitioners to file Misc. Civil Application No.119/08 to 291/08 seeking direction that the Secretary, Forest & Environment Department, State of Gujarat shall decide the petitioners' representation dated 30.06.2006. By order dated 31.01.2008 passed in Misc. Civil Applications No.119/08 to 291/08, this Court directed the Secretary, Forest & Environment Department, State of Gujarat to decide the petitioners' representation dated 30.06.2006. The representation was to be decided on or before 09.04.2008. This date lapsed, which forced the petitioners to file Misc. Civil Application No.1400/08 for initiation of contempt proceedings against the concerned respondent for not deciding the petitioners' representation dated 30.06.2006 on or before 09.04.2008. Notice in the contempt petition was served upon the concerned respondent on
02.05.2008. On 03.05.2008, the order impugned in the present petitions was passed by the Secretary, Forest & Environment Department, State of Gujarat rejecting the petitioners' representation dated 30.06.2006. This order is found to be a carbon copy of the order dated 17.11.2007 that was passed by the Deputy Conservator of Forest, Rajpipla, West Division which had been quashed in Misc. Civil Applications No.119/08 to 291/08.
3. In these petitions, the impugned order dated 03.05.2008 passed by the Secretary, Forest & Environment Department, State of Gujarat is challenged on the following grounds:
The order smacks of total non-application of mind.
The order, being a carbon copy of order dated 19.11.2007 issued earlier, that was quashed by this Hon'ble High Court, the same is violative of the principles of natural justice.
The order is tainted by the bias of the deciding authority (the present respondent No.1) was overeager to reject the legitimate claims of the petitioners.
The order is a mere eye-wash as the decision to reject the petitioners' representation dated 30.06.2006 was already taken earlier.
The order makes a mockery of the exercise undertaken by this Hon'ble Court directing the petitioners to make a detailed representation, which was directed to be examined b the deciding authority.
The order is even otherwise violative of Articles 14, 16, 21 and 39 of the Constitution of India.
4. The affidavit-in-reply filed on behalf of the respondents and affidavit-in-rejoinder of the petitioners are also perused.
5. These petitions are required to be allowed on a short ground that the deciding authority, Secretary, Forest & Environment Department, State of Gujarat should not have passed the same order on the petitioners' representation as was passed by the Deputy Conservator of Forest, Rajpipla, West Division on 17.11.2007 which had been quashed by this Court in Misc. Civil Application No.119/08 to 291/08. Hence, directions are required to be issued in the present matters in light of the following undisputed facts:
The deciding authority, Secretary, Forest & Environment Department, State of Gujarat has himself come to the conclusion in the impugned order dated 03.05.2008 that the petitioners, daily wagers, are neither illegal nor irregular appointees. These are the words used
-
"the initial nature of the daily wagers in question does not suffer from any illegality or irregularity but is in consonance with the provisions of Minimum Wages Act. Therefore, the question of regularization by removing the procedural difficulties does not arise."
The impugned order also depicts nature of work performed by the petitioners as under:
Sr.No. Nature of work No. of Workers in Division TOTAL VYARA RAJPIPLA(E) 1 Forest Protection 127 11 138 2 Forest Chowki 2
-2
3.
Wireless Operator 13 1 13
4. Rest House 3
-
35. Timber Depot 4
-
4 6Driver 2
-
2 7Motor Boat 2
-
2 8Cleaner 1
-
1 9Office Work 3
-
3 10Safai Kamdar 1
-
1 11Nursery 2
-
2Total 160 12 172 Thus, this is the State Government's own showing of the petitioners', daily wagers', engagement.
Looking to the nature of the work described in the impugned order that the petitioners, daily wagers, are engaged in, the work which is perennial in nature.
The daily wagers of other Government Departments like Roads & Buildings Department, Narmada Water Resources, Water Supply and Kalpasar Department, etc., are made permanent in Class-IV by Government Resolution dated 17.10.1988. There is a specific reference in the Government Resolution to the daily wagers of the Forest Department as well. However, the said Government Resolution dated 17.10.1988 is not made applicable to the daily wagers of the Forest Department for no apparent reasons forthcoming from the affidavit filed by the State Government.
The Department of Agriculture and Cooperation, State of Gujarat had issued a Resolution on 20.12.2005 to regularize or make permanent the daily wagers of the Fisheries Department. This Government Resolution is analogous to Government Resolution dated 17.10.1988. This resolution also refers to the Forest Department.
The petitioners have placed on record the scheme framed by the Maharashtra State, Revenue and Forest Department for daily wagers of their Forest Department. This scheme is of the year 1996. A bare look at the scheme would reveal that the same is quite analogous to the Government Resolution dated 17.10.1988.
There is a communication dated 18.10.2005 issued by the Additional Chief Conservator of Forest to the Principal Chief Conservator of Forest stating that in compliance of the award passed by the Labour Court in Reference (IT) No.386/88, daily wagers entrusted with Forest Protection Work, who have completed 5 years and 900 days, are required to be absorbed in Class-IV.
6. In light of the above facts, the State of Gujarat, cannot continue the petitioners on daily wages perennially which amounts to depriving them of all the benefits of permanency. 'Once a daily wager' is not 'always a daily wager'. Just as there is a scheme for giving 'quasi permanency status' to the daily wagers of other Government Departments like Roads & Buildings Department, Narmada Water Resources, Water Supply and Kalpasar Department, and Fisheries Department, there has to be a scheme for Forest Department daily wagers as well. The daily wagers of other Government departments and the Forest Department are otherwise similar in all respects. Most of the petitioners herein have put in more than 15 years of service. Quite a few have put in more than 20 to 30 years of service. Hence, such a scheme is required for the petitioners-daily wagers of the Forest Department. The Court therefore deems it proper to direct the authority to take the following factors into consideration while deciding the representation afresh.
The work of the petitioners is of perennial nature.
The work that the petitioners do is full time.
Most of the petitioners have 24-hour duty round the clock.
The petitioners have by now put in service of 5 to 30 years on daily wages in the Forest Department.
All the petitioners, on account of their age, are ineligible for employment elsewhere.
Most of the petitioners are tribals/adivasis.
The petitioners have put in service of more than 240 days in every year for all these years.
7. In the interest of justice, the following directions are issued which will meet with the ends of justice:
The impugned order dated 03.05.2008 passed by the Secretary, Forest & Environment Department, State of Gujarat is quashed and set aside.
The Secretary, Forest & Environment Department, State of Gujarat, is directed to consider the case of the petitioners for regularization /conferring permanent status, afresh in light of the facts of each individual case keeping in mind the observations made hereinabove and also to consider the scope of framing a scheme for giving quasi permanent status to the petitioners-daily wagers at par with the scheme for daily wagers in other Government Departments like Roads & Buildings Department, Narmada Water Resources, Water Supply and Kalpasar Department, etc., contained in Government Resolution dated 17.10.1988. In case, the authority is of the view that the benefits as prayed for cannot be granted then a reasoned order be passed supported by detailed reasons.
The aforesaid exercise be undertaken within a period of two months from today.
Liberty to revive the petitions in case of difficulty by filing required application/s.
8. Rule is made absolute to the aforesaid extent. No costs."
Learned advocate Mr. Shalin Mehta brought on record of this Court another point that similar petitioner has approached this Court along with other 124 employees in Special Civil Application No1171 to 1176 of 2011 wherein this Court (Coram:Abhilasha Kumari, J.) has passed order on 22/4/2011. Said order is quoted as under:
"These petitions, under Article 226 of the Constitution of India, involve similar issues. For the sake of convenience, the prayers made in Special Civil Application No.1171 of 2011 are reproduced hereinbelow:
"(A) Your Lordships be pleased to issue a writ of mandamus or any other appropriate writ, order or direction, commanding the respondents herein to formulate and prepare a permanent scheme for the purpose of according permanent or quasi permanent status to the daily wagers of the Forest Department in light of their long service rendered on daily wages in the Forest Department;
(B) Your Lordships be pleased to permanently restrain the respondents herein from terminating or discontinuing in any other manner the service of the petitioners No.2 to 125;
(C) Your Lordships be pleased to issue a writ of mandamus or any other appropriate writ, order or direction, commanding the respondents herein to grant the following benefits to the petitioners No.2 to 125 herein:
(a) Permanent absorption in service or a fair scheme for regularization of service.
(b) Regular pay scale.
(c) Increments.
(d) Weekly off.
(e) Group Insurance.
(f) Casual leave, earned leave and medical leave.
(g) Public holidays.
(h) Provident Fund.
(i) Pension.
(j) Gratuity.
(k) Bonus.
(l) Fixed norms of misconduct.
(D) Your Lordships be pleased to issue a writ of mandamus or any other appropriate writ, order or direction, commanding the respondents herein to apply Government Resolution dated 17.10.1988 to the petitioners No.2 to 125 herein and to grant all benefits admissible under the said Government Resolution dated 17.10.1988 to the petitioners No.2 to 125 herein depending on the length of each employee;
(E) Your Lordships be pleased to issue a writ of mandamus or any other appropriate writ, order or direction, commanding the respondents herein to grant workcharged benefits payable under the final judgment dated 30.1.1996 passed by this Hon'ble High Court in Special Civil Applications No.3607/82, 422/83 and 423/83 to the petitioners No.2 to 125 herein just as such benefits have been paid to 746 daily wagers of the Narmada Water Resources, Water Supply and Kalpasar Department and 288 daily wagers of the Roads and Buildings Department;
(F) Pending admission and final hearing of the present petition, Your Lordships be pleased to restrain the respondents herein from terminating the service of the petitioners No.2 to 125 herein;
(G) Pending admission and final hearing of the present petition, Your Lordships be pleased to direct the present respondents to grant to the petitioners benefits similar in nature to those made available to the daily wagers of the Roads & Buildings Department and the Narmada Water Resources, Water Supply and Kalpasar Department vide Government Resolution dated 17.10.1988 depending to their length of service;
(H) Your Lordships be pleased to pass any other appropriate order, as deemed fit in the interest of justice."
It is the case of the petitioners that certain Departments of the State Government such as Roads and Building Department, Narmada, Water Resources, Water Supply and Kalpasar Department and Fisheries Department have formulated Schemes for grant of permanent status to daily wagers working in the said Departments, after they complete a stipulated period of service. According to the petitioners, the Forest Department under which the petitioners who are members of the petitioner No.1 - Union are working, ought to frame a Scheme for daily wagers on similar lines, as the work that they perform is perennial in nature, and is a full-time employment. Most of the members of the petitioner No.1 - Union have to perform 24 hours' duty round the clock and most have, by now, put in service of 5 to 30 years as daily wagers in the Forest Department. It is further the case of the petitioners that looking to the age factor of its members, they are now not eligible for employment elsewhere. Most of them are Tribals / Adivasis and may not qualify to perform any other work. Several petitions came to be filed by similarly situated persons, being Special Civil Application No.8647 of 2008 and cognate matters, wherein this Court, by order dated 29.10.2010 issued certain directions. The said directions are reproduced below:-
"7. In the interest of justice, the following directions are issued which will meet with the ends of justice:
The impugned order dated 03.05.2008 passed by the Secretary, Forest & Environment Department, State of Gujarat is quashed and set aside.
The Secretary, Forest & Environment Department, State of Gujarat, is directed to consider the case of the petitioners for regularization /conferring permanent status, afresh in light of the facts of each individual case keeping in mind the observations made hereinabove and also to consider the scope of framing a scheme for giving quasi permanent status to the petitioners-daily wagers at par with the scheme for daily wagers in other Government Departments like Roads & Buildings Department, Narmada Water Resources, Water Supply and Kalpasar Department, etc., contained in Government Resolution dated 17.10.1988. In case, the authority is of the view that the benefits as prayed for cannot be granted then a reasoned order be passed supported by detailed reasons.
The aforesaid exercise be undertaken within a period of two months from today.
Liberty to revive the petitions in case of difficulty by filing required application/s."
According to the petitioners, for the purposes of these petitions, the directions at Paragraph-7B and C are relevant. As is seen from the order reproduced hereinabove, one of the directions was to the Secretary, Forest and Environment Department, Government of Gujarat, to consider the cases of the petitioners therein for regularization / conferring permanent status, keeping in view the facts of each individual case and to consider framing a scheme for giving quasi-permanent status to the daily wagers at par with the Scheme for daily wagers in other Government Departments. It is the case of the petitioners that the above directions would also be applicable to them, hence, the State Government ought to consider their cases along similar lines.
Today, when the matters are taken up for hearing, Mr.Maulik G.Nanavati, learned Assistant Government Pleader, states upon the basis of the communication dated 07.04.2011 of the Principal Conservator of Forests, which is taken on the record of the case, and upon oral instructions received from Shri S.K.Nanda, Principal Secretary, Forests and Environment Department that:
"The individual cases of the petitioners for regularization / conferring permanent status shall be considered in light of the observations made by this Court in Paragraph-7B of order dated 29.10.2010 passed in Special Civil Application No.8647 of 2008 and cognate matters, within a period of six months from today."
In view of the above statement made by the learned Assistant Government Pleader, Mr.Shalin N.Mehta, learned advocate for the petitioners, states that he may be permitted to withdraw the petitions, with liberty to approach this Court in case of difficulty.
Permission to withdraw the petitions with liberty to approach the Court in case of difficulty is granted.
The petitions are disposed of as withdrawn. Notice is discharged in each of the petitions."
Learned advocate Mr. Shalin Mehta has submitted that similar order as of order dated 22/4/2011 may be passed in present case also because petitioners of that petition and present petition are same and similar and prayers made in that group petitions and present petition are also same and similar.
Therefore, considering order passed by this Court dated 22/4/2011, following order is passed in present case:
In view of observations made by this Court in aforesaid two cases as referred above having identical facts and circumstances of present case to the effect that in case order dated 22/4/2011 a specific statement made by learned AGP Mr.Maulik Nanavati having communication letter dated 7/4/2011 from Principles Conservator of Forest which was taken on record in that case and also having oral instructions received by learned AGP Mr. Maulik Nanavati from Shri S. K. Nanda, Principal Secretary, Forest and Environment Department that individual case of petitioners for regularization/conferring permanent status shall be considered in light of observations made by this Court in para-7(B) of order dated 29/10/2010 passed in Special Civil Application No.8647 of 2008 and cognate matters within a period of six months from today.
In view of aforesaid statement made by learned advocate Mr. Maulik Nanavati in aforesaid decision in group of petitions dated 22/4/2011, same is squarely made applicable to facts of this case also.
Therefore, let respondents may consider individual case of each petitioners for regularization/conferring permanent status shall be considered in light of observations made by this Court in para-7(B) of order dated 29/10/2010 passed in Special Civil Application No.8647 of 2008 and cognate matters within a period of six months from today.
In view of aforesaid direction, learned advocate Mr.Shalin Mehta appearing for petitioners states that he may be permitted to withdraw present petition with a liberty to approach this Court in case of difficulty. Accordingly permission to withdraw present petition is granted with a liberty to approach this Court in case of difficulty.
Hence, present petition is disposed of as withdrawn.
(H.K.RATHOD, J.) (ila) Top