Gujarat High Court
Kantaben Nanabhai Bhangi (Valmiki) vs State Of Gujarat & 4 on 27 July, 2015
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/5205/2014 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 5205 of 2014
With
SPECIAL CIVIL APPLICATION NO. 5209 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA Sd/-
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1 Whether Reporters of Local Papers may be allowed to see the No
judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law as to No
the interpretation of the Constitution of India or any order
made thereunder ?
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KANTABEN NANABHAI BHANGI (VALMIKI)....Petitioner(s)
Versus
STATE OF GUJARAT & 4....Respondent(s)
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Appearance:
HCLS COMMITTEE, ADVOCATE for the Petitioner(s) No. 1
MR KRUNAL D PANDYA, ADVOCATE for the Petitioner(s) No. 1
MR.RUTVIJ OZA, AGP for the Respondent(s) No. 1 - 2
MR HS MUNSHAW, ADVOCATE for the Respondent(s) No. 3 - 4
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 27/07/2015
ORAL JUDGMENT
1. Since the issues involved in both the captioned writ applications are the same, those were heard analogously and are being disposed of by this common judgment and order.
2. Rule returnable forthwith. Mr.H.S.Munshaw, the learned counsel waives service of notice of Rule for and on behalf of the respondent Nos.3, 4 and 5, and Mr.Rutvij Oza, the learned AGP Page 1 of 14 C/SCA/5205/2014 JUDGMENT waives service of notice of Rule for and on behalf of the respondent Nos.1 and 2.
3. The petitioners before me are the husband and wife. They both are serving in a Community Health Center at Rakhiyal. It appears from the materials on record that the Community Health Center was earlier a Primary Health Center and was under the control of the Gujarat District Panchayat. From 06.01.2011 it is now under the administrative control and supervision of the Superintendent, Class-I Officer.
4. A fervent appeal made by the petitioners is that the State- respondent be directed to regularize their services. The wife is serving as a Sweeper, Class-IV, whereas the husband is serving as a Ward Boy, Class-IV. The wife, as on today, after putting in more than 25 years of service, is drawing Rs.2,000/- per month and the husband is drawing salary of Rs.2,400/- per month. The husband has also put in more than 25 years of service.
5. It is not in dispute that they were not appointed by a regular recruitment process. They were appointed as Part Timers. Keeping this in mind, I need to consider their prayer for the regularization in service.
6. The question of regularization in any service including any Government service may arise in two contingencies. First, if on any available clear vacancies which are of a long duration appointments are made on ad hoc basis or daily wage basis by a competent authority and are continued from time to time and if it is found that the concerned incumbents have continued to be employed for a long period of time with or without any artificial breaks, and their services Page 2 of 14 C/SCA/5205/2014 JUDGMENT are otherwise required by the institution which employs them, a time may come in the service career of such employees who are continued on ad hoc basis for a given substantial length of time to regularize them so that the concerned employees can give their best by being assured security of tenure. But this would require one pre-condition that the initial entry of such an employees must be made against an available sanctioned vacancy by following the rules and regulations governing such entry. The second type of situation in which the question of regularization may arise would be when the initial entry of the employee against an available vacancy is found to have suffered from some flow in the procedural exercise though the person appointing is competent to effect such initial recruitment and has otherwise followed due procedure for such recruitment. A need may then arise in the light of the exigency of administrative requirement for waiving such irregularity in the initial appointment by competent authority and the irregular initial appointment may be regularized and security of tenure may be made available to the concerned incumbent. But even in such a case the initial entry must not be found to be totally illegal or in blatant disregard of all the established rules and regulations governing such recruitment. In any case back door entries for filling up such vacancies have got to be strictly avoided. However, there would never arise any occasion for regularizing the appointment of an employee whose initial entry itself is tainted and is in total breach of the requisite procedure of recruitment and especially when there is no vacancy on which such an initial entry of the candidate could ever be effected. Such an entry of an employee would remain tainted from the very beginning and no question of regularizing such an illegal entrant would ever survive for consideration, however competent the recruiting agency may be.
7. The two petitioners before me fall in this latter clause of the Page 3 of 14 C/SCA/5205/2014 JUDGMENT cases.
8. The Supreme Court in the case of the Secretary to Government, School Education Department, Chennai versus R.Govindaswamy and others, (2014) 4 SCC 769 while considering the claim of the respondents for regularizing their services made the following observations:-
"5. The issue involved here remains restricted as to whether the services of the part time sweepers could have been directed by the High Court to be regularized. The issue is no more res integra.
In State of Karnataka & Ors. v. Umadevi & Ors., AIR 2006 SC 1806, this Court held as under:
"There is no fundamental right in those who have been employed on daily wages or temporarily or on contractual basis, to claim that they have a right to be absorbed in service. As has been held by this Court, they cannot be said to be holders of a post, since, a regular appointment could be made only by making appointments consistent with the requirements of Articles 14 and 16 of the Constitution. The right to be treated equally with the other employees employed on daily wages, cannot be extended to a claim for equal treatment with those who were regularly employed. That would be treating unequals as equals. It cannot also be relied on to claim a right to be absorbed in service even though they have never been selected in terms of the relevant recruitment rules."
6. In Union of India & Ors. v. A.S. Pillai & Ors., (2010) 13 SCC 448, this Court dealt with the issue of regularisation of part-time employees and the court refused the relief on the ground that part timers are free to get themselves engaged elsewhere and they are not restrained from working elsewhere when they are not working for the authority/employer. Being the part-time employees, they are not subject to service rules or other regulations which govern and control the regularly appointed staff of the department. Therefore, the question of giving them equal pay for equal work or considering their case for regularisation would not arise.
7. This Court in State of Rajasthan & Ors. v. Daya Lal & Ors., AIR 2011 SC 1193, has considered the scope of regularisation of irregular or part-time appointments in all possible eventualities and laid down well-settled principles relating to regularisation and Page 4 of 14 C/SCA/5205/2014 JUDGMENT parity in pay relevant in the context of the issues involved therein. The same are as under:
"8(i) The High Courts, in exercising power under Article 226 of the Constitution will not issue directions for regularisation, absorption or permanent continuance, unless the employees claiming regularisation had been appointed in pursuance of a regular recruitment in accordance with relevant rules in an open competitive process, against sanctioned vacant posts. The equality clause contained in Articles 14 and 16 should be scrupulously followed and Courts should not issue a direction for regularisation of services of an employee which would be violative of the constitutional scheme. While something that is irregular for want of compliance with one of the elements in the process of selection which does not go to the root of the process, can be regularised, back door entries, appointments contrary to the constitutional scheme and/or appointment of ineligible candidates cannot be regularised.
(ii) Mere continuation of service by a temporary or ad hoc or daily-wage employee, under cover of some interim orders of the court, would not confer upon him any right to be absorbed into service, as such service would be "litigious employment". Even temporary, ad hoc or daily-wage service for a long number of years, let alone service for one or two years, will not entitle such employee to claim regularisation, if he is not working against a sanctioned post. Sympathy and sentiment cannot be grounds for passing any order of regularisation in the absence of a legal right.
(iii) Even where a scheme is formulated for regularisation with a cut-off date (that is a scheme providing that persons who had put in a specified number of years of service and continuing in employment as on the cut-off date), it is not possible to others who were appointed subsequent to the cut-off date, to claim or contend that the scheme should be applied to them by extending the cut-off date or seek a direction for framing of fresh schemes providing for successive cut-off dates.
(iv) Part-time employees are not entitled to seek regularisation as they are not working against any sanctioned posts. There cannot be a direction for absorption, regularisation or permanent continuance of part-time temporary employees.
(v) Part-time temporary employees in government-Page 5 of 14
C/SCA/5205/2014 JUDGMENT run institutions cannot claim parity in salary with regular employees of the Government on the principle of equal pay for equal work. Nor can employees in private employment, even if serving full time, seek parity in salary with government employees. The right to claim a particular salary against the State must arise under a contract or under a statute." (Emphasis added)
8. The present appeals are squarely covered by clauses (ii),
(iv) and (v) of the aforesaid judgment. Therefore, the appeals are allowed. However, in light of the facts and circumstances of the case as Shri P.P. Rao, learned senior counsel has submitted that the appellant has already implemented the impugned judgments and does not want to disturb the services of the respondents, the services of the respondents which stood regularised should not be affected.
With the aforesaid observations, the appeals stand disposed of accordingly. No order as to costs."
9. In the case of Nand Kumar versus State of Bihar and others, (2014) 5 SCC 300, the Supreme Court made the following observations:-
"15. The appellant further submitted that the appellants are squarely coming within the purview of Umadevi (supra) and drew our attention to para 53 which reads as follows:
"53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in State of Mysore v. S.V. Narayanappa 1967 (1) SCR 128, R.N.Nanjundappa v. T.Thimmiah 1972 (1) SCC 409 and B.N.Nagarajan v. State of Karnataka 1979 (4) SCC 507 and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the courts or of tribunals. The question of regularisation of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases abovereferred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularise as a one-time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant Page 6 of 14 C/SCA/5205/2014 JUDGMENT sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularisation, if any already made, but not sub judice, need not be reopened based on this judgment, but there should be no further bypassing of the constitutional requirement and regularising or making permanent, those not duly appointed as per the constitutional scheme." (emphasis in original)
16. Per contra, it was submitted by counsel appearing on behalf of the State that the words "absorption, retirement, compulsory retirement or voluntary retirement" used in Section 6 of the Repeal Act, 2006 have been used with reference to only the permanent employees of the Board. That absorption in the present case does not mean regularisation. It is further submitted that all the appellants worked on daily wage basis and had not been regularised till the date of repeal of the said Act. It is further submitted that with undoing of the establishment, there is no regulation of the market and as such there is no procurement of revenue. In these circumstances, there cannot be any scope for regularisation. He further pointed out that the daily wagers are engaged in view of work exigencies prevailing in the establishment but in the event of dissolution of the establishment, there cannot be any work exigency.
17. The learned counsel further submitted that regularisation is not a matter of course, it has to follow the mode of recruitment. The Committee constituted under Section 6 of the Repeal Act duly examined the cases of daily wagers and clause 3.1 of the Resolution prepared by the Market Committee clearly states that any appointment without recommendation or proper authority will be considered as illegal and irregular. It is pointed out that engagement of the appellants was without following any norms and in violation of the rules of recruitment and principles of equality. Accordingly, he submitted that Section 6 of the Repeal Act, 2006 has a provision for protection of permanent employees and not daily wage employees, and such a provision is in violation of Article 14 of the Constitution. The daily wagers constitute a class within themselves and all the daily wagers have been retrenched and not even a single one has been retained in these cases.
20. Therefore, considering the facts of the present case, it appears to us that the appellants were never appointed through a proper procedure. It is not in dispute that they all served as daily wagers. Therefore, it was within their knowledge all the consequences of appointment being temporary, they cannot have even a right to invoke the theory of legitimate expectation for being confirmed in the post. Accordingly, we cannot accept the contention of the appellants in the matter.
25. We have consciously noted the aforesaid decisions of this Page 7 of 14 C/SCA/5205/2014 JUDGMENT Court. The principle as has been laid down in Umadevi (supra) has also been applied in relation to the persons who were working on daily wages. According to us, the daily wagers are not appointees in the strict sense of the term 'appointment'. They do not hold a post. The scheme of alternative appointment framed for regular employees of abolished organisation cannot, therefore, confer a similar entitlement on the daily wagers of abolished organisation to such alternative employment. [See Avas Vikas Sansthan v. Avas Vikas Sansthan Engineers Association (2006 (4) SCC 132)]. Their relevance in the context of appointment arose by reason of the concept of regularisation as a source of appointment. After Umadevi (supra), their position continued to be that of daily wagers. Appointment on daily wage basis is not an appointment to a post according to the rules. Usually, the projects in which the daily wagers were engaged, having come to an end, their appointment is necessarily terminated for want of work. Therefore, the status and rights of daily wagers of a Government concern are not equivalent to that of a Government servant and his claim to permanency has to be adjudged differently."
10. Taking into consideration the settled position of law and the nature of the appointment of the two petitioners before me, it is very difficult for me to issue a writ of mandamus to the State-respondents to regularize their services. I am conscious of the fact that both the husband and wife are working past 25 years. They are treated as Part Timers/Daily Wagers. However, it appears from the materials on record that they are working practically for the whole days that is evident from the letter of the Superintendent, Class-I, Community Health Center, dated 08.11.2013. In the letter, it has been very specifically stated and it is very distressing to note that there are 30 beds in the Community Health Center and most of the time the beds are full. There are 8 sanctioned posts of Class-IV on the establishment, out of which three persons are working round the clock. These three persons include the two persons before me. The Superintendent also made himself very clear that it is very much necessary now to fill up the vacant sanctioned posts of the Class-IV employees having regard to the pressure of the work. More importantly he sought the necessary clarification and guidance from the Deputy Health Director of the State Government regarding the Page 8 of 14 C/SCA/5205/2014 JUDGMENT remuneration to be paid to the three Class-IV employees working for 24 hours. But, for the contents of this letter, I would not have believed that the petitioners are working round the clock. There is no denial so far as this factual aspect is concerned. Mr.Munshaw, the learned counsel tried to clarify the position by submitting that since the Primary Health Center has now been converted into a Community Health Center the respondent is in no manner responsible.
11. It appears that the two petitioners before me are not even paid the minimum wages even if it is believed that they are working as Part Timers and this appears to be only on papers, whereas the hard reality is that they are not Part Timers and are working for the full day.
12. In such circumstances referred to above, although the prayer for the regularization is declined, yet I direct the respondent Nos.1 and 2. to pay the minimum wages to the petitioners in accordance with the Government Resolution of the State Government.
13. A Division Bench of this Court (to which I was a party) in the case of Gujarat Rajya Anshkalin Karmachari Mandal versus State of Gujarat and others, Writ Petition (PIL)No.244 of 2014, had the occasion to consider the plight of helpless Class-IV employees like the petitioners being exploited in all respects. By order dated 21.08.2014, the State Government was directed to pay all its Part Time workers at the same rate of remuneration as prescribed per day for the employment of sweeping and cleaning work. I may quote the order dated 21.08.2014 as under:-
"1. The Constitution of India was framed soon after the independence of the nation with a solemn resolve to achieve Page 9 of 14 C/SCA/5205/2014 JUDGMENT social, political and economic justice for all the citizens of the country. Articles 14 and 16 talk of lofty ideas of equality. Article 21 guarantees to every person right to life and liberty. More than 65 years later, a small group of Government workers have been deprived of such rights and privileges. Their voice is too feeble. Their future too uncertain for want of any protection of Article 311 of the Constitution. Their number too small. They are almost a forgotten lot. It is at this stage, the Court in the arena of public interest litigation, comes into picture.
2. The State Government for the purpose of carrying out complex functions and duties need to employ a large number of people. Howsoever, one may wish and desire, it is not possible over a period of time to completely regulate such employment in terms of Articles 14 or 16 of the Constitution. By the very nature of things, the Government, its Corporations, its different wings, need the workers in different fields and trades carrying out different duties possessing specified skills and qualifications. A small portion of such workers come in the nature of part time workers. They are engaged in small numbers almost in every office, establishment or unit of the Government. Whether they are called water server, sometimes cleaner, sometimes gardener and other times watchman, their employment is mostly contingency based and work charged with little permanency attached. They are so called part time, because atleast on paper their engagement is for a period ranging from one hour to six hours a day though in some cases, either in broken spells or otherwise, they may be for all practical purposes, available through out the office time and in some cases, such as watchman, even beyond that.
3. For the present case, we are not going into the intricacies of such employment, need of the Government and reality behind actual number of hours per day they may be discharging their duties. For the present we need to tackle a grim situation which has arisen on account of the Government totally forgetting their plight for over 15 years. We are informed by the counsel for the petitioner who represents the association of such workers that currently there are 10,000 to 15,000 such workers employed by the Government across the State. It may be, as pointed out by the learned Advocate General, that many of these workers are protected against their termination by Court orders. However, it is impossible to believe that all these 10,000 to 15,000 unfortunate workers enjoy the court protection and the Government of its own simply does not employ a single person after 2012 when we are informed according to the circular dated 25.4.2012, the Government decided to discontinue such system. The rate of remuneration these workers received were revised from time to time and last revision was made under a GR dated 23.9.1998. The revised structure as per this circular is as follows :
Hours of work per day Monthly consolidated
remuneration
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C/SCA/5205/2014 JUDGMENT
Upto 1 Hour Rs.225/Upto
2 Hours Rs.450/Upto
3 Hours Rs.675/Upto
4 Hours Rs.900/Upto
5 Hours Rs.1125/Upto
6 Hours Rs.1350/4.
4. Shocking as it may sound to the reader of this order, since then, there has been no rate revision of the remuneration for such part time employees. In other words since September 1998 till date, for more than 15 long years, such workers have been receiving remuneration month after month, year after year, at a rate which froze in the year 1998. In the meantime, many things happened. The purchasing power of rupee considerably eroded. The Government employees, Central as well as State, were the beneficiaries of one pay revision with effect from 1.1.2006. This would be in addition to periodic DA increases released every six months. One can take judicial notice of the fact that the State as well as the Central Government employees have received consecutive three double digit DA increases in their salaries. In the meantime, the scale of pay of Rs.2250/which was the minimum prescribed under the Revision of Pay Rules, 1998 implemented with effect from 1.1.1996 was revised to Rs.4440/under the Revision of Pay Rules , 2009 implemented with effect from 1.1.2006. This basic pay currently carries 100% DA. In fact, the Central Government has also announced the pay panel for making recommendations for the next pay revision.
5. On one hand, thus with high inflation, the cost of living mounted, on the other hand, a small group of citizens continued to draw remuneration at the same level which they were receiving more than 15 years back. All the economic development and prosperity achieved during this period which the rest of the regular employees of the Government shared simply bypassed such unfortunate class of citizens. Today these workers are receiving remuneration at the rate of approximately Rs. 40/to Rs.50/per day as against the minimum wage prescribed by the Government agency itself to be Rs.220/plus special allowance in the area specified as 'A' category in the State of Gujarat, at Rs.218/plus special allowance in 'B' category and Rs.216/plus special allowance in category 'C'. Explanation (2) to the notification dated 5.8.2013 prescribing such rates, reads as under :
"(2) The employees employed on part time basis shall be paid fifty percent of the minimum rates of wages plus special allowance if he works up to four hours and if he works more than four hours, he shall be paid full minimum rates of wages plus special allowance."
6. The State Government implements the legislative policy of minimum wages to be paid by private employers. The Legislature has fixed such minimum wages to ensure that there is no exploitation of workers. In the country like India, where due to Page 11 of 14 C/SCA/5205/2014 JUDGMENT high rate of unemployment, many people may be prepared to work for remuneration which may be extremely low amounting to exploitation. The law however, does not permit such exploitation even at the hands of private employer. Can the State Government which is wedded to Constitutional philosophy of implementing the Directive Principles of the State Policy which under Article 43 provides that the State shall endeavour to secure by suitable legislation or economic organisation or in any other way to all workers, a living wage and just conditions of working, ignore all such principles when it comes to remunerating its own workers? The answer has to be in the negative. We are conscious that ipso-facto, minimum wage prescribed for the private employers would not govern the Government employees. Nevertheless, for the purpose of immediate relief to such persons and to take a reasonable yardstick for revising their remuneration, pending further directions and consideration by the Government, we are of the opinion that such rates may be accepted for the purpose of remunerating such workers by way of interim measure, subject to further orders.
7. Reference could be made to the decision of the Supreme Court in the case of Hindustan Lever Limited Vs. B.N. Dongre and others, reported in AIR 1995 SC 817, wherein the Supreme Court explained the importance of the wages in life of the working classes. In the said judgment, the Supreme Court held that wages are among the major factors in the economic and social life of the working classes and the workers and their families depend almost entirely on wages to provide themselves with the three basic requirements of food, clothing and shelter. The other necessities of life like children's education, medical expenses, etc., must also come out of the emoluments earned by the breadwinner. Workers are therefore concerned with the purchasing power of the pay packet he receives for his toil. If the rise in the pay packet does not keep place with the rise in prices of essentials the purchasing power of the pay packet fails reducing the real wages leaving the workers and their families worse off. Therefore, if on account of inflation prices rise while the pay packet remains frozen, real wages will fall sharply. This is what happens in periods of inflation. In order to prevent such a fall in real wages different methods are adopted to provide for the rise in prices. In the cost- of-living sliding scale systems the basic wages are automatically adjusted to price changes shown by the cost-of-living index. In this way the purchasing power of worker's wages is maintained to the extent possible and necessary. However, leap-frogging must be avoided. If the prices of food, clothing and other necessities of life which even the lowest wage earner purchases month after month rise and the basic wage remains constant, real wage actually falls creating a problem for survival for the lowest wage earner and it is a common knowledge that this frequently happens during the period of inflation.
8. Under the circumstances, following directions are issued :
1) The State Government shall pay to all its part time workers Page 12 of 14 C/SCA/5205/2014 JUDGMENT at the same rate of remuneration prescribed per day for the employment of sweeping and cleaning work under the said notification dated 5.8.2013 along with daily special allowance as payable subject to modification permissible under explanation (2) noted above with effect from 1.8.2014. In other words, for the salaries to be paid to all such workers across the State at the end of month of August 2014, such revised rates will be applied.
2) The Secretary to the Finance Department shall issue necessary circular to all the wings of the Government to implement such directions forthwith.
3) There shall be no change in the duty hours of any of these workers as long as such workers are in Government employment.
The State Government shall present affidavit suggesting periodic revisions that may be adopted for remuneration of such persons from time to time after 1998.
S.O. to 4.9.2014."
14. It appears that after the order referred above was passed, the Government of Gujarat issued a resolution dated 06.09.2014, specifying the minimum wages to be paid to its employees according to the duration of their working hours.
15. Prima facie, it appears that the two petitioners have not been given the benefits of the Government Resolution dated 06.09.2014. Even as on today they continue to draw Rs.2,000/- and Rs.2,400/- respectively per month, which is apparently less then the minimum wages. To the misfortune of the two petitioners, the State Government is armed with plethora of judgments taking the view that the High Court under Article 226 of the Constitution should not issue a writ for regularization, but at least the Court under Article 226 of the Constitution is duty bound to see that the State Government pays the minimum wages.
16. In the result, these applications are allowed in part. The respondent Nos.1 and 2 are directed to see that both the petitioners are paid the minimum wages as prescribed by the Government Page 13 of 14 C/SCA/5205/2014 JUDGMENT Resolution dated 06.09.2014. From the next month onwards, both the petitioners shall be entitled to receive the remuneration strictly in accordance with the resolution dated 06.09.2014. Any lapse or dereliction in this regard will be viewed very strictly.
17. Rule is made absolute to the aforesaid extent. Direct service is permitted.
18. It shall be open for the petitioners to avail of any other appropriate legal remedy before the appropriate forum in accordance with law so far as their grievance are concerned.
Sd/-
(J.B.PARDIWALA, J.) dharmendra Page 14 of 14