Gujarat High Court
Shrimali Manojkumar Manilal vs State Of Gujarat on 19 October, 2022
Author: Biren Vaishnav
Bench: Biren Vaishnav
C/SCA/5040/2022 CAV JUDGMENT DATED: 19/10/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 5040 of 2022
With
CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2022
In R/SPECIAL CIVIL APPLICATION NO. 5040 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 3468 of 2022
With
CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2022
In R/SPECIAL CIVIL APPLICATION NO. 3468 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 5409 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 10807 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 10808 of 2022
With
CIVIL APPLICATION (FOR FIXING DATE OF HEARING) NO. 1 of 2022
In R/SPECIAL CIVIL APPLICATION NO. 10808 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 10994 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 11324 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 12375 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 12377 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 12401 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 12960 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 12986 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 13554 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 13680 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 13404 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 13370 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 13388 of 2022
With
Page 1 of 69
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C/SCA/5040/2022 CAV JUDGMENT DATED: 19/10/2022
R/SPECIAL CIVIL APPLICATION NO. 14868 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 13139 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 13147 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 13151 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 13198 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 14946 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 15536 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 16290 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BIREN VAISHNAV
==========================================================
1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
==========================================================
SHRIMALI MANOJKUMAR MANILAL
Versus
STATE OF GUJARAT
==========================================================
Appearance:
MR. HRIDAY BUCH, ADVOCATE for MR. NISHIT GANDHI,
ADVOCATE for the Petitioner(s) in SCA Nos.5040 of 2022, 3468 of
2022, 13139 of 2022, & CA Nos. 1 of 2022 in SCA 5040 of 2022
and CA 1 of 2022 in SCA 3468 of 2022.
MR. N.K.MAJMUDAR, ADVOCATE for the Petitioner(s) in SCA Nos.
Page 2 of 69
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C/SCA/5040/2022 CAV JUDGMENT DATED: 19/10/2022
5409 of 2022, 10808 of 2022 and 10807 of 2022 & CA No. 1 of 2022 in
SCA No. 10808 of 2022.
MR. DENISHKUMAR B MORAKHIA, ADVOCATE for the Petitioner(s) of
SCA No. 14946 of 2022.
MS. KRUTI M SHAH, ADVOCATE for the Petitioner(s) of SCA Nos.
11324 of 2022, 10994 of 2022 and 12401 of 2022.
MR. VAIBHAV VYAS, ADVOCATE for the Petitioner(s) of SCA No.
15536 of 2022 & SCA No. 16290 of 2022.
MR. DISHANT K THAKKAR, ADVOCATE for the Petitioner(s) of SCA
No. 12960 of 2022, 12986 of 2022, 13554 of 2022, 13680 of 2022,
13404 of 2022, 13370 of 2022, 13388 of 2022, 12375 of 2022, 12377
of 2022, 14868 of 2022, 13147 of 2022, 13151 of 2022, and 13198 of
2022.
MR. H.S.MUNSHAW, ADVOCATE for the Respondent(s) in SCA No.
5040 of 2022, 3468 of 2022, 10994 of 2022, 11324 of 2022, 12375 of
2022, 12377 of 2022 & 12960 of 2022.
MR. UTKARSH SHARMA, ASSISTANT GOVERNMENT PLEADER for
the Respondent (s) No.1.
==========================================================
CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
Date : 19/10/2022
CAV JUDGMENT
Special Civil Application Nos. 14946 of 2022, 5040 of 2022, 3468 of 2022, 13139 of 2022, 12375 of 2022, 12377 of 2022, 12960 of 2022, 12986 of 2022, 13554 of 2022, 13680 of 2022, 13404 of 2022, 13370 of 2022, 13388 of 2022, 14868 of 2022, 13147 of 2022, 13151 of 2022 and 13198 of 2022.
Page 3 of 69 Downloaded on : Wed Oct 19 21:20:27 IST 2022C/SCA/5040/2022 CAV JUDGMENT DATED: 19/10/2022 1 These petitions are filed challenging the order dated 07.01.2022 / 15.01.2022 and 07.05.2022 by which the petitioners' representations seeking reinstatement and regularization on the post of Multi Purpose Health Worker (Male) (Class-III) with the Panchayat Department in accordance with the order passed by this Court on 25.07.2018 have been rejected.
2 Facts in brief are as under:
2.1 The petitioners were working as Multi Purpose Health Workers (Male), Class-III (for short 'MPHW') from their respective dates of appointment. These petitioners were appointed pursuant to an advertisement and an examination and interview.
Their appointments were on a fixed salary on contractual basis.
2.2 These appointments were in different district panchayats and therefore each district panchayat Page 4 of 69 Downloaded on : Wed Oct 19 21:20:27 IST 2022 C/SCA/5040/2022 CAV JUDGMENT DATED: 19/10/2022 treated its employees differently. Petitions were filed before this Court with a prayer that their services be regularized at par with similarly situated employees of Rajkot and Sabarkantha District Panchayats.
2.3 First in point of time, Special Civil Application No. 6289 of 2011 was filed by such MPHWs working under the Junagadh District Panchayat who were appointees of the year 1990. This Court by an order dated 10.08.2016, allowed the petitions with a direction that the petitioners deserve to be granted the benefits of regularization as have been granted by the order dated 13.10.2009 passed by the State Government in case of similarly situated employees of the Sabarkantha District Panchayat.
2.4 The Gujarat State Karmachari Sankalan Samiti filed a writ petition being Special Civil Application No.12537 of 2011 praying for a writ of mandamus to the respondents to regularize their services and to Page 5 of 69 Downloaded on : Wed Oct 19 21:20:27 IST 2022 C/SCA/5040/2022 CAV JUDGMENT DATED: 19/10/2022 treat them at par with persons in other districts.
They also challenged the order of termination dated 06.01.2018 by which during the pendency of the petition, their services have been terminated. By an oral judgement dated 25.07.2018, relying on the decision rendered in Special Civil Application No. 6289 of 2011, the petition was allowed, the termination order dated 06.01.2018 was quashed and set aside and a direction was issued that the petitioners be regularized in the same manner from the same date as mentioned in the order in SCA No. 6289 of 2011.
2.5 The order passed in Special Civil Application No. 12537 of 2011 was carried in appeal by the State. Letters Patent Appeal No. 1237 of 2019 was filed. The Division Bench of this Court, by an order dated 16.10.2019, dismissed the appeal. The Hon'ble Supreme Court on 26.10.2020, confirmed the order of the Division Bench in the SLP filed by the State.
Page 6 of 69 Downloaded on : Wed Oct 19 21:20:27 IST 2022C/SCA/5040/2022 CAV JUDGMENT DATED: 19/10/2022 An interim order was passed on 06.08.2019 in the appeal, wherein, it was directed that the applicants / respondents in the appeal and other similarly situated employees be paid minimum wages.
2.6 Special Civil Application No. 13519 of 2011, which petition was filed by some MPHWs seeking similar reliefs was disposed of by an order dated 10.12.2019 in light of the decision dated 10.08.2016 passed in SCA No. 6289 of 2011 with a direction that similar benefits which are conferred to MPHWs of Rajkot, Junagadh, Sabarkantha and Valsad districts may be extended to the petitioners working in Kheda District. Similar petition was filed being Special Civil Application No. 15228 of 2012 of MPHWs of Rajpipla which too by an order dated 05.12.2019 was allowed in terms of the order dated 10.08.2016 in SCA No. 6289 of 2011.
2.7 Contempt petitions were moved by one of the petitioners of SCA No. 12537 of 2011 where the Page 7 of 69 Downloaded on : Wed Oct 19 21:20:27 IST 2022 C/SCA/5040/2022 CAV JUDGMENT DATED: 19/10/2022 Court observed that the benefits of regularization was to be given even to the non petitioners. That order was passed on 10.01.2020. On 28.02.2020, in the Contempt Petitions, the Division Bench recorded the statement that the applicants would be reinstated. Accordingly, on 19.07.2021, the State passed an order regularizing the services of 322 MPHWs of SCA No. 12537 of 2011.
2.8 Miscellaneous Civil Application No. 12 of 2021 was filed by one of the petitioners who was not the applicant in earlier proceedings in the contempt matters wherein the Court disposed of these applications on 25.08.2021 directing the applicants to make representations to the respondents to consider their case for regularization keeping in mind the orders of this Court and if otherwise found entitled to similar benefits, they shall be paid similar benefits with interest. The petitioners made a representation and by the impugned order their representations Page 8 of 69 Downloaded on : Wed Oct 19 21:20:27 IST 2022 C/SCA/5040/2022 CAV JUDGMENT DATED: 19/10/2022 have been rejected.
3 Mr.Hriday Buch, learned counsel for Mr.Nishit Gandhi, Mr.Dishant Thakkar, learned advocate and Mr.N.K.Majmudar, learned advocate appearing in one of the petitions have made submissions.
3.1 Mr.Buch, learned counsel, leading the submissions submitted that the order rejecting the representation dated 07.01.2022 is bad. He would submit that reading the impugned order would indicate that the authorities were of the opinion that they are not clear whether the benefits had to be given to the petitioners of Special Civil Application No. 12537 of 2011 and hence the representation was rejected. Moreover,he submitted that the authorities were not clear as to whether the name of the petitioners figured in the list of petitioners. The order further stated that the contracts have not been renewed. He would submit that reading the orders in the litigations which are referred to would indicate Page 9 of 69 Downloaded on : Wed Oct 19 21:20:27 IST 2022 C/SCA/5040/2022 CAV JUDGMENT DATED: 19/10/2022 that even non petitioners were to be given the benefits of the decision dated 10.08.2016 in SCA No. 6289 of 2011. A clear observation was made by the Division Bench in the contempt proceedings. The rejection of the representations was therefore prima facie contemptuous.
3.2 Mr.Buch, learned counsel, would further submit that reading the order dated 10.8.2016, in Special Civil Application No. 6289 of 2011, the Court had specifically held that the petitioners who had been working over a period of time deserved regularization. The decision of the Division Bench in Letters Patent Appeal No. 85 of 2010 was distinguished and there is therefore no reason why the petitioners cannot be granted the benefit of reinstatement and regularization.
3.3 Mr.Buch, learned counsel, would submit that some of the petitioners were part of the group in Special Civil Application No. 12537 of 2011. The Page 10 of 69 Downloaded on : Wed Oct 19 21:20:27 IST 2022 C/SCA/5040/2022 CAV JUDGMENT DATED: 19/10/2022 Court in its oral judgement dated 25.07.2018 had quashed and set aside the order of termination dated 06.01.2018 and held that there can be no discrimination by treating contractual appointees and not granting them the benefit of regularization. He would further submit that reading the order in the Letters Patent Appeal on 06.08.2019, it was very clear that all similarly situated MPHWs were entitled to the same benefits. Once the Letters Patent Appeal by the State was dismissed and the order was confirmed by the Hon'ble Supreme Court, there was no reason why the petitioners also should not be reinstated as MPHWs and their services be regularized.
3.4 Mr.Buch, learned counsel, would submit that the foundation of the observations in the impugned order are seriously flawed.
4 Mr.H.S.Munshaw, learned counsel appearing for the Banaskantha District Panchayat in the lead Page 11 of 69 Downloaded on : Wed Oct 19 21:20:27 IST 2022 C/SCA/5040/2022 CAV JUDGMENT DATED: 19/10/2022 matter as far as this impugned order is concerned, would rely on the affidavit-in-reply and submit that the contractual appointments of the petitioners were not renewed considering administrative aspects in the year 2017 and prior thereto. That the petitioners after nearly eight to ten years have preferred the present Special Civil Application for reinstatement in service as well as regularization when in fact, they had put in service of hardly five to seven years on contractual basis. Their appointments were not after due procedure and in accordance with the recruitment rules.
5 Mr.Dishant Thakkar, learned advocate and Mr.N.K.Majmudar, learned advocate would adopt the submissions made by Mr.Buch, learned counsel for the petitioners.
6 Special Civil Application Nos. 16290 of 2022 and allied matters have been filed by MPHWs (Male) & Female Health Workers who were initially Page 12 of 69 Downloaded on : Wed Oct 19 21:20:27 IST 2022 C/SCA/5040/2022 CAV JUDGMENT DATED: 19/10/2022 appointed on an ad-hoc basis for a period of 11 months pursuant to a regular process of selection undertaken by the Gujarat Panchayat Service Selection Board. It may be noted that while Special Civil Application No. 12537 of 2011 was pending, by an interim order, the members of the Samiti were permitted to appear for regular selection. The petitioners herein were therefore such Health Workers who had undergone such selection successfully and were appointed on a fixed pay for a period of five years. After completion of five years, they were granted regular pay-scale. Initially their appointments prior to undergoing such selection was on an ad-hoc basis for a period of 11 months on a fixed pay of Rs.2,500/-. It is the case of the petitioners that the policy of the government as contained in the Government Resolution dated 19.10.1981 indicates that in case of an ad-hoc appointment, which is undertaken without following the regular process of selection, if the appointee is Page 13 of 69 Downloaded on : Wed Oct 19 21:20:27 IST 2022 C/SCA/5040/2022 CAV JUDGMENT DATED: 19/10/2022 subsequently appointed pursuant to the regular process of selection, in that case, the period of service put in by the government employee during ad-hoc appointment shall count for earning normal increment in the prescribed scale. It is their case that pursuant to the orders passed by this Court in Special Civil Application No.12537 of 2011 which was confirmed upto the Hon'ble Supreme Court, the State Government regularized the services of 322 MPHWs (Male) by orders dated 18.09.2021 from the date of their initial appointment.
6.1 Learned counsels Mr.Vaibhav Vyas, Ms.Kruti Shah, Mr.N.K.Majmudar for such petitioners would submit that the present petitioners are on better footing than such MPHWs who were ad-hoc / contractual. The petitioners underwent the regular process of selection whereas other ad-hoc/contractual MPHWs failed. They too, therefore, deserve similar treatment and therefore cannot be deprived of the Page 14 of 69 Downloaded on : Wed Oct 19 21:20:27 IST 2022 C/SCA/5040/2022 CAV JUDGMENT DATED: 19/10/2022 benefits of past services rendered by them on ad-hoc basis merely because they came to be appointed on regular basis after clearing competitive examinations.
These petitioners are therefore not only similarly situated but are better and are therefore entitled to the same benefits of regularization from their initial date of appointment. Several resolutions have been relied upon by the learned counsels for the petitioners. Some of the petitioners as per the respective counsels are in service since 1996 and therefore deserve to be regularized in service on the same terms and conditions as other employees.
7 Mr.Utkarsh Sharma, learned Assistant Government Pleader, would rely on the affidavit-in- reply filed in Special Civil Application No.3468 of 2022. He would submit as under:
7.1 That the petitioners of both batches of petitions i.e. those praying for quashing of the orders by which their representations were rejected and those Page 15 of 69 Downloaded on : Wed Oct 19 21:20:27 IST 2022 C/SCA/5040/2022 CAV JUDGMENT DATED: 19/10/2022 petitioners who claim the benefits of regularization from the initial date of appointment have no fundamental or a legal right.
7.2 Mr.Sharma, learned AGP, would submit that the petitioners whose representation is rejected cannot claim parity with the petitioners of Special Civil Application No. 12537 of 2011. The petitioners were contractual employees whereas the beneficiaries of the orders in Special Civil Application No. 6289 of 2011 and Special Civil Application No. 12537 of 2011 were ad-hoc appointees working over a period of 20 years. He would submit that in absence of any details in the petition of the Gujarat State Karmachari Sankalan Samiti, it was difficult to ascertain as to who should be extended the benefits.
7.3 Mr.Sharma, learned AGP, would submit that the decisions relied upon namely those in SCA No. 6289 of 2011 and 12537 of 2011 were not precedents Page 16 of 69 Downloaded on : Wed Oct 19 21:20:27 IST 2022 C/SCA/5040/2022 CAV JUDGMENT DATED: 19/10/2022 inasmuch as, in Special Civil Application No. 8611 of 2009 and other allied matters, this Court vide order dated 23.09.2009, had held that the petitioners cannot seek regularization bypassing the regular mode of recruitment. In the appeal filed by the unsuccessful petitioners the Division Bench in LPA No. 85 of 2010 and allied appeals, by an order dated 20.07.2010, confirmed the order of the learned Single Judge holding that MPHWs (Male) and Female Health Workers who have been appointed on purely ad-hoc / temporary basis have no right, particularly when their selection is not in accordance with the recruitment. Mr.Sharma, learned AGP, would therefore submit that the decisions which have been extensively relied upon by the petitioners would not apply.
7.4 Mr.Sharma, learned AGP, would further submit that in case of the petitioners of SCA No. 6289 of 2011 they were appointees of the year 1990-1992 Page 17 of 69 Downloaded on : Wed Oct 19 21:20:27 IST 2022 C/SCA/5040/2022 CAV JUDGMENT DATED: 19/10/2022 and since they did not get an opportunity to participate because the examination process was not held and when it was actually held in 1996, the petitioners had become age barred. It was in light of these facts, that the petitioners therein who had worked for two decades on ad-hoc basis unlike the present petitioners who were contractual employees on a short term basis could not be entitled to similar benefits.
7.5 Mr.Sharma, learned AGP, would further submit that in the Letters Patent Appeal and so also in Special Civil Application No. 6289 of 2011, the judgement of the Division Bench in LPA No. 85 of 2010 has not been effectively discussed. There is no whisper of the recruitment rules and / or public participation. Mr.Sharma, learned AGP, would submit that the judgement relied upon by the petitioners are per incuriam. In support of his submission he would rely on a decision of the Hon'ble Supreme Court in Page 18 of 69 Downloaded on : Wed Oct 19 21:20:27 IST 2022 C/SCA/5040/2022 CAV JUDGMENT DATED: 19/10/2022 the case of Secretary to Govt. of Kerala, Irrigation Department & Ors. vs. James Varghese & Ors., reported in 2022 (7) Scale 322.
He would further submit that as held by this Court in the case of Patel Kaushik Kumar Madhavlal vs. State of Gujarat., dated 30.08.2022 in Special Civil Application No. 3921 of 2019 and allied matters where this Court had not entertained the petitions seeking regularization of Laboratory Technicians and Junior Pharmacists who were appointed on ad-hoc basis.
8 Considering the submissions made by the learned counsels for the respective parties, the following petitions are taken up for the purposes of reasonings in the first instance.
8.1 Special Civil Application Nos. 14946 of 2022, 5040 of 2022, 3468 of 2022, 13139 of 2022, 12375 of 2022, 12377 of 2022, 12960 of 2022, 12986 of 2022, 13554 of 2022, 13680 of 2022, 13404 of 2022, Page 19 of 69 Downloaded on : Wed Oct 19 21:20:27 IST 2022 C/SCA/5040/2022 CAV JUDGMENT DATED: 19/10/2022 13370 of 2022, 13388 of 2022, 14868 of 2022, 13147 of 2022, 13151 of 2022 and 13198 of 2022.
8.2 The background of facts indicate that the MPHWs of Rajkot and Sabarkantha District Panchayats were regularized in service by their respective District Panchayats. Their contemporaries working under the District Development Officer, Junagadh, and who were appointed on an ad-hoc basis in the years 1990-1992 approached this Court for being extended similar benefits by filing Special Civil Application No. 6289 of 2011. It was their case that they had been working for over 25 years and were receiving benefits such as LTC, Leave Encashment, Travelling Allowance etc. They also were getting the benefits of the 6th pay Commission and had their GPF Accounts. Their appointment letters were conditional, inasmuch as, it was stipulated therein that they would have to participate in the regular selection process. This Court by its Page 20 of 69 Downloaded on : Wed Oct 19 21:20:27 IST 2022 C/SCA/5040/2022 CAV JUDGMENT DATED: 19/10/2022 judgement and order dated 10.08.2016, noting that the petitioners had crossed the age limit though having undergone that selection process and also noting the decision of the Division Bench in the case of Surekhaben Chamarbhai Patel & Ors vs. State of Gujarat & Ors., held as under in SCA No. 6289 of 2011. Para 16 to 36 read as under:
" 16. Learned Assistant Government Pleader has further submitted that in the case of Multi Purpose Health Workers (Female), the Division Bench of this Court has passed a judgment dated 20.07.1990 in the case of Surekhaben Chamarbhai Patel and others v.State of Gujarat and others Letters Patent Appeal No.85 of 2010 in Special Civil Application No.8611 of 2009 and cognate matters, wherein it is held that the appointments of the appellants therein were made without following the prescribed procedure and therefore, such irregular appointments cannot be directed to be regularized. It is submitted that in the present case as well, the appointments of the petitioners are not regular appointments, therefore, in view of the above judgment of the Division Bench, the petitioners cannot be regularized.
17. Mr.H.S.Munshaw, learned advocate for respondent No.3 has submitted, upon instructions, that the District Panchayat, Junagadh, has sent several proposals to the State Government for the regularization of the services of the petitioners on 24.09.1997, 11.12.2000, 25.09.2001, 18.12.2001 and 05.06.2006. Adverting to the affidavitinreply filed by respondent No.3, he has further submitted that the petitioners were appointed on adhoc basis, Page 21 of 69 Downloaded on : Wed Oct 19 21:20:27 IST 2022 C/SCA/5040/2022 CAV JUDGMENT DATED: 19/10/2022 subject to certain conditions imposed in the appointment orders. As the petitioners are not permanent employees, conosequential benefits such as regularization cannot be granted to them without undergoing the regular selection process. According to Mr.Munshaw, the petitioners have no right to claim such relief and permanent employment in the services of the District Panchayat, Junagadh.
18. Mr.S.I.Nanavati, learned Senior Counsel, has submitted in rejoinder that, the judgment of the Division Bench dated 20.07.1990, passed in Letters Patent Appeal No.85 of 2010, which is being relied upon by the learned Assistant Government Pleader and learned counsel for respondent No.3, would not have any application in the present case, as the case of the appellants before the Division bench is factually different from that of the present petitioners. There are significant differences in both cases which would go to the root of the matter. One such difference is that the period of appointment of Multi Purpose Health Workers (Female), who were appellants before the Division bench, was only for a fixed term of eleven months, whereas, in the present case, no such fixed period of appointment has been given to the petitioners who have continued to work from the dates of their initial appointments upto date and have, by now, completed over twenty five years of service. It is further submitted that the appellants before the Division Bench had challenged the Government Resolution dated 01.10.2007, to the extent that it provided for appointments to be made on contractual basis for eleven months. In the present case, no such Government Resolution is in question as this Government Resolution had not even been issued when the petitioners were appointed and has never been applied in their cases. Distinguishing the said judgment further, learned Senior Counsel submits that the appellants before the Division Bench were given breaks after the completion of eleven months and before being re-Page 22 of 69 Downloaded on : Wed Oct 19 21:20:27 IST 2022
C/SCA/5040/2022 CAV JUDGMENT DATED: 19/10/2022 engaged on contractual basis, whereas the present petitioners have never been given any breaks in service. Hence, the case of Multi Purpose health Workers (Female) is different from the case of the petitioners herein and the judgment of the Division Bench, having been rendered on the facts of that case, cannot be made applicable to the present case.
19. On 08.08.2016, this Court had requested Mr.Niraj Ashar, learned Assistant Government Pleader, to take instructions regarding whether the State Government would be open to considering the aspect of taking a policy decision regarding the regularization of the services of the petitioners, as has been done in the case of similarly situated persons in Sabarkantha District. Today, when the peition is taken up, learned Assistant Government Pleader has addressed a communication dated 25.05.2016 to the District Panchayat, Junagadh, asking for certain details. On a perusal of the said communication, it appears that certain details such as name, educational qualifications, date of birth, date of appointment, and whether MPHW(M) in Junagadh District have passed the examination, ind if so, when, have been sought. However, this communication does not address the query of the Court. It, therefore, appears that the petition would have to be adjudicated on merits, on the basis of the submissions advanced by learned counsel for the respective parties.
20. There is no dispute regarding the fact that the petitioners have been appointed as MPHW(M) on adhoc basis vide various appointment orders of different dates, of the years 199091. One such appointment order dated 29.01.1990, has been annexed as Annexure-C to the petition. The appointment order of all the petitioners are identical and contain the same terms and conditions. Condition No.10 in the appointment order states Page 23 of 69 Downloaded on : Wed Oct 19 21:20:27 IST 2022 C/SCA/5040/2022 CAV JUDGMENT DATED: 19/10/2022 that the candidate would have to participate in the selection process undertaken by the duly constituted Selection Committee as and when such selection is advertised. It was, therefore incumbent upon the petitioners to participate in the regular selection process. It is relevant to note that in the advertisement dated 20.07.1990, pursuant to which the petitioners were appointed, the permissible age limit has been advertised as seventeen to twenty- two years. In the advertisement dated 30.3.1996 for the regular selection process, the maximum age- limit is twenty-five years. There is no dispute regarding the fact that no selection process by the duly appointed Selection Committee took place upto 30.3.1996. The Selection process was to be initiated by the District Panchayat. When the said process was initiated and an advertisement was issued in this regard, the petitioners herein participated as per Condition No.10 in their appointment orders. It may be noticed that the upper-age limit in the advertisement pursuant to which the petitioners were appointed was twenty-two years. By the time the selection process was initiated on 30.3.1996, the petitioners had crossed the permissible age-limit of twenty-five years that had been advertised for the regular selection process in which they were required to participate. It stood to reason and would have been logical, had the Districdt Panchayat held the regular selection process keeping in mind the upper-age limit as per the earlier advertisement. However, it did not do so and took its own sweet time, which has resulted in the petitioners being barred from the selection process on the ground of exceeding the permissible age-limit of twenty-five years. The Court is informed, upon instructions by Mr.Saurabh Mehta, learned advocate for the petitioners, that petitioners Nos. 1 to 7 had participated in the selection process but were declared as 'failed' on the ground of being over-age, whereas the other petitioners were not even Page 24 of 69 Downloaded on : Wed Oct 19 21:20:27 IST 2022 C/SCA/5040/2022 CAV JUDGMENT DATED: 19/10/2022 permitted to participate in the selection process as they had also exceeded the permissible age-limit.
21. It is clear from the initial appointment orders that were issued to the petitioners that the respondent District Panchayat intended that the petitioners would undergo the regular selection process and be regularly appointed against the sanctioned and vacant posts against which they had been appointed. This aspect becomes clear from Condition No.10, itself. The petitioners cannot be blamed for the fact that respondent No.3 did not initiate the recruitment process earlier and waited for five to six years upto 1996 to do so, when the petitioners had crossed the permissible age-limit of twenty-five years.
22. In this regard, it would be relevant to advert to a judgment of the Supreme Court in the case of K.K.Gohil v. State of Gujarat And Others (2015)
9 SCC 652, the relevant extract of which is as below:
"13. However, by circular dated 24.11.2004, the Government of Gujarat modified the earlier Resolution taking note of the High Court's order and directed that in cases where for getting higher pay scales a departmental examination is necessary then in such cases it is equally necessary that the departmental examination should be organised in time.
Further by Government Order dated 22.06.2006, it was specifically brought to the notice of the Department that if the higher departmental examination is not organised during the eligibility period for getting the higher pay scales then in such case the higher pay scale benefit cannot be stalled on such ground. In the instant case, admittedly, the higher pay scale was ordered to be granted to Page 25 of 69 Downloaded on : Wed Oct 19 21:20:27 IST 2022 C/SCA/5040/2022 CAV JUDGMENT DATED: 19/10/2022 the appellant after completion of nine years but the same was withdrawn on the basis of earlier circular of 1994. The High Court has not considered the subsequent circular of 2004 and based on the circular of 1994, the order withdrawing the benefit was upheld. The impugned order passed by the High Court on this account cannot be sustained in law."
23. The petitioners cannot, therefore, be deprived of the fruits of the regularization of their services that would have ensued to them had the regular selection process been initiated within time by respondent No.3. It is not as though respondent No.3 was unaware of the fact that the late initiation of the selection process would render the petitioners over-age, as it was the said respondent that had issued the earlier advertisement fixing the upper age-limit at twenty-two years. After about five or six years, the advertisement for the regular selection process was issued on 30.03.1996. It is a case of simple mathematics to know that after the passage of five or six years, a candidate who was twenty-two years of age in the year 1990 or 1991, would obviously have exceeded the age of twenty-five years in the year 1996. The very purpose of appointing the petitioners, therefore stands frustrated by the casual and inconsiderate attitude of respondent No.3. Consequently, the petitioners have been forced to continue on adhoc basis without receiving the benefits of regularization and higher pay-scale even after twenty-five years of continuous, uninterrupted service.
24 The State Government has issued a Government Resolution dated 02.05.1991, whereby it has been resolved to regularize the services of MPHW(M) in all Districts, who have been appointed on adhoc basis, subject to the condition that the concerned District Panchayat has not made adhoc Page 26 of 69 Downloaded on : Wed Oct 19 21:20:27 IST 2022 C/SCA/5040/2022 CAV JUDGMENT DATED: 19/10/2022 appointments in the past six months. Learned Assistant Government Pleader has submitted that pursuant to the said Government Resolution, it was open to respondent No.3 to have regularized the services of the petitioners. It is on record that the services of similarly situated MPHW(M) in Rajkot District have been regularized by the concerned District Panchayat, pursuant to the Government Resolution dated 02.05.1991. In the case of MPHW(M) of Sabarkantha District, it is the State Government, itself, that has taken the initiative by the decision dated 13.10.2009, of regularizing the services of MPHW(M) with retrospective effect, subject to the condition that they fulfilled all the eligibility criteria on the initial dates of their appointments. The decision of the State Government dated 13.10.2009, has been placed on record. No cogent or justifiable reason has been advanced by either respondent No.3, or the State Government, for not giving similar treatment to the petitioners. Respondent No.3 is trying to pass the buck to the State Government by stating that it has written several communications to it in this regard, whereas the State Government is returning the buck by stating, in the affidavit-in-reply, that it was for the Junagadh District Panchayat to have taken a decision regarding the regularization of the services of the petitioners, pursuant to the Government Resolution dated 02.05.1991. In both the affidavits- in-reply, there is not a single reason that comes even close to justifying the discriminatory treatment that has been meted out to the petitioners, vis-a-vis similarly situated persons in other Districts.
25 It may be true that in the case of District Rajkot, similarly situated MPHW(M) have been regularized by the concerned District Panchayat. However, it is obvious that in the case of Sabarkantha District Panchayat, the services of Page 27 of 69 Downloaded on : Wed Oct 19 21:20:27 IST 2022 C/SCA/5040/2022 CAV JUDGMENT DATED: 19/10/2022 MPHW(M), who are identically situated to the petitioners, have been regularized, with retrospective effect, by the State Government, itself. The State Government has taken a policy decision in this regard, confined only to the MPHW(M) of Sabarkantha District. Why all similarly situated MPHW(M) in other Districts of the State have not been covered under a uniform policy, is certainly baffling. Multi Purpose Health Workers (Male), such as the petitioners, who were appointed on adhoc basis but have been denied the fruits of regular appointment only because the regular selection process was not held until they had crossed the permissible age-limit, form a distinct class of employees. Different categories in a single class cannot be carved out by taking piecemeal decisions benefiting only a section of such employees. This would amount to sub-classification that would not be permissible in law, as there is no rational nexus to the object sought to be achieved by confining the decision only to MPHW(M) of a particular District. The petitioners are identically situated to other MPHW(M) in Rajkot and Sabarkantha Districts. They, therefore, cannot be accorded discriminatory treatment. The respondent authorities are not only trying to take advantage of the situation but are also trying to put the blame on each other which cannot be permitted, to the detriment of the petitioners.
26. It is a settled position of law, that does not require any further elaboration, that equals are required to be treated equally and dissimilar treatment cannot be accorded to the same class of people.
27 The action of the respondent authorities in not regularizing the services of the petitioners, as has been done in the case of other similarly situated MPHW(M) by the concerned District Panchayats and the State Government in Sabarkantha District, is not Page 28 of 69 Downloaded on : Wed Oct 19 21:20:27 IST 2022 C/SCA/5040/2022 CAV JUDGMENT DATED: 19/10/2022 only arbitrary but also discriminatory and unjust and is, therefore, in violation of Article 14 of the Constitution of India. The petitioners are being deprived of the fruits of regularization in spite of having worked continuously for a period of about twenty-five years, or more. As such, the action of the respondents is also in violation of the provision of Articles 16 and 21 of the Constitution of India.
28 The reliance of the respondents on the judgment of the Division Bench in the case of Multi Purpose Health Workers (Female) is also misplaced. In that case, the appellants before the Division Bench had been appointed for a fixed term of eleven months, on contractual basis and were given breaks after every period of eleven months before being re- engaged. The challenge in that petition was also to the Government Resolution dated 01.10.2007, to the extent that it provided for appointment on contractual basis. In the present case, the appointments of the petitioners are not contractual in nature and the above-mentioned Government Resolution has never been applied to them. In fact, it did not even exist when the petitioners were appointed in the year 1990-91. The conclusion of the Division Bench that the appellants in that case were irregularly appointed and, therefore, could not claim to be regularized, is based upon the factual scenario prevailing in that case, which has no parallel to the present case.
29 In Secretary, State of Karnataka And Others v. Umadevi (3) And Others (supra), the Supreme Court has held as below:
"53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa, R.N. Nanjundappa, and B.N. Nagarajan, and referred to in para 15 above, of Page 29 of 69 Downloaded on : Wed Oct 19 21:20:27 IST 2022 C/SCA/5040/2022 CAV JUDGMENT DATED: 19/10/2022 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 courts or of tribunals. The question of regularization 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 above referred 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 regularize 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 courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant 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 regularization, if any already made, but not sub judice, need not be reopened based on this judgment, but there should be no further by-passing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme.
30 In the present case, the adhoc appointments of the petitioners cannot termed as illegal, as they have been appointed pursuant to an advertisement, against sanctioned and vacant posts. The petitioners have worked continuously for much more than ten years, even before the interim order was passed in their favour. As per the above enunciation of law by the Supreme Court, the cases of the petitioners ought to be considered for regularization as they Page 30 of 69 Downloaded on : Wed Oct 19 21:20:27 IST 2022 C/SCA/5040/2022 CAV JUDGMENT DATED: 19/10/2022 have worked for several years. The judgment in the case of Secretary, State of Karnataka And Others v. Umadevi (3) And Others (supra) has been discussed by the Supreme Court in U.P. State Electricity Board v. Pooran Chandra Pandey And Others (supra), in the following terms:
"17. In the present case the writ petitioners (respondents herein) only wish that they should not be discriminated against vis-a-vis the original employees of the Electricity Board since they have been taken over by the Electricity Board in the same manner and position. Thus, the writ petitioners have to be deemed to have been appointed in the service of the Electricity Board from the date of their original appointments in the Society. Since they were all appointed in the society before 4.5.1990 they cannot be denied the benefit of the decision of the Electricity Board dated 28.11.1996 permitting regularization of the employees of the Electricity Board who were working from before 4.5.1990. To take a contrary view would violate Article 14 of the Constitution. We have to read Umadevi (3) case in conformity with Article 14 of the Constitution, and we cannot read it in a manner which will make it in conflict with Article 14. The Constitution is the supreme law of the land, and any judgment, not even of the Supreme Court, can violate the Constitution.
18. We may further point out that a seven- Judge Bench decision of this Court in Maneka Gandhi vs. Union of India has held that reasonableness and non-
arbitrariness is part of Article 14 of the Constitution. It follows that the government must act in a reasonable and non-arbitrary manner otherwise Article 14 Page 31 of 69 Downloaded on : Wed Oct 19 21:20:27 IST 2022 C/SCA/5040/2022 CAV JUDGMENT DATED: 19/10/2022 of the Constitution would be violated. Maneka Gandhi case is a decision of a seven-Judge Bench, whereas Umadevi case (3) is a decision of a five-Judge Bench of this Court. It is well settled that a smaller bench decision cannot override a larger bench decision of the Court. No doubt, Maneka Gandhi case does not specifically deal with the question of regularization of government employees, but the principle of reasonableness in executive action and the law which it has laid down, in our opinion, is of general application.
19. In the present case many of the writ petitioners have been working from 1985 i.e. they have put in about 22 years service and it will surely not be reasonable if their claim for regularization is denied even after such a long period of service. Hence apart from discrimination, Article 14 of the Constitution will also be violated on the ground of arbitrariness and unreasonableness if employees who have put in such a long service are denied the benefit of regularization and are made to face the same selection which fresh recruits have to face.
(emphasis supplied)
31. In the present case as well, the action of the respondents District Panchayat as well as the State Government is required to be tested on the principle of reasonableness in executive action. In the view of this Court, the action of respondent No.3 in not issuing the advertisement for the regular selection procedure expeditiously, especially after imposing a condition in the appointment orders of the petitioners that they have to undergo the regular Page 32 of 69 Downloaded on : Wed Oct 19 21:20:27 IST 2022 C/SCA/5040/2022 CAV JUDGMENT DATED: 19/10/2022 selection process and then not conducting the selection process for years together until the petitioners cross the permissible age-limit, is highly unreasonable. Respondent No.3 bided time for a period of six years before initiating the regular selection process ensuring, by this action that the petitioners become age-barred in the meanwhile. The initiation of the selection process was not in the hands of the petitioners and they cannot be blamed for the plight they find themselves in.
32. In this regard, the observations made by this Court in Pravinsinh Dolatsinh Rana v. State of Gujarat And Ors. (supra), are apposite and are reproduced hereinbelow:
"3. ...The facts as aforesaid are so eloquent to consider that the petitioner has not been treated fairly inasmuch as he could not be deprived of the fruits of the selection at which he was selected and in which he had appeared during the pendency of this Special Civil Application in terms of the order passed by the Court after hearing both the sides. If the candidates at lower position than the petitioner have been appointed, the petitioner could not have been deprived on the ground that while the petition was pending before this Court, he has become overage. Once, the petitioner is given a further chance to appear in the selection in terms of this Courts order dated 25.02.1993 with the expectation that next selection will be held in 1993-94, merely because selections were held in 1996, he cannot be denied the benefit of the selection on the ground that he had now become overage. Aging is a process which no one can stop. The petitioner has done all that was in his control. He had also approached the Court well in time. In the facts and circumstances of this case, this Court finds that the petitioner certainly deserves to be considered for appointment Page 33 of 69 Downloaded on : Wed Oct 19 21:20:27 IST 2022 C/SCA/5040/2022 CAV JUDGMENT DATED: 19/10/2022 on the basis of his being placed at Sr.No.3 in the select list in the year 1996 and his name ought to have been included in the order at Annexure-B dated th 4 October 1996 at appropriate place on the basis of his selection.
(emphasis supplied)
33 As held by this Court in the above judgment, aging is a process which nobody can stop. This aspect ought to have been considered by respondent No.3 while including Condition No.10 in the appointment orders of the petitioners and while issuing the advertisement for regular selection in the year 1996. It was not in the hands of the petitioners to have stopped the clock from running. However, it was very much in the hands of respondent No.3 to have held the selection process well in time, so that persons such as the petitioners, who have been appointed by it subject to the condition that they would have to participate in the regular selection process, would have got a fair chance. The petitioners cannot be made to suffer for the totally unconcerned and casual approach on the part of the District Panchayat.
34 At the same time, the Court cannot overlook the fact that the State Government is supposed to be a model employer. It would have behoved the State Government to have framed a uniform policy for MPHW(M) such as the petitioners, covering the entire State of Gujarat, instead of confining the decision only to those MPHW(M) working in Sabarkantha District, as has been done vide the order dated 13.10.2009. This would have ensured equal treatment to all similarly situated MPHW(M) throughout the State, irrespective of the District in which they are working. The fact that a decision has not been taken for all MPHW(M) but only for those Page 34 of 69 Downloaded on : Wed Oct 19 21:20:27 IST 2022 C/SCA/5040/2022 CAV JUDGMENT DATED: 19/10/2022 working in a particular District, has caused a great deal of anguish and heart-burning to the petitioners, which is quite understandable, considering that they have been discriminated for no fault of their own.
35 As a result of the above discussion and for the aforestated reasons, this Court is of the view that the petitioners deserve to be granted the benefits of regularization with retrospective effect, as have been granted by the order dated 13.10.2009, passed by the State Government in the case of similarly situated persons in Sabarkantha District.
36 Hence, the following order is passed:
The respondents are directed to consider the cases of the petitioners for regularization of their services from the initial dates of their appointments, as has been done in similarly situated cases, with all consequential benefits.
The needful be done by the concerned respondents within a period of three months from the date of the receipt of a copy of this judgment."
8.3 What is to be noted on reading the relevant paragraphs of the judgement which are extensively reproduced hereinabove is that, it was the stand of the State Government that representations were received for regularization and the State was of the opinion that in light of the resolution dated 02.05.1991, such irregular appointments should be regularized on the condition that the concerned Page 35 of 69 Downloaded on : Wed Oct 19 21:20:27 IST 2022 C/SCA/5040/2022 CAV JUDGMENT DATED: 19/10/2022 District Panchayats ought not to have made ad-hoc appointments in the last six months. The decision in the case of Surekhaben (supra) was also considered.
Even in light of this judgement which was distinguished on the fact of such appointees being contractual, the Court considering the decision of the Hon'ble Supreme Court in the case of Secretary, State of karnataka & Ors vs. Uma Devi & Ors., reported in 2006 (4) SCC 1, opined that the petitioners deserved to be regularized because the Court cannot overlook the fact that the State Government is a model employer. It would have behoved the State Government to have framed the uniform policy for MPWHs for the entire State of Gujarat and in light of such observations, a direction was given in para 36 to consider the case of the petitioners for regularization of their services from the initial date of their appointments with all consequential benefits.
Page 36 of 69 Downloaded on : Wed Oct 19 21:20:27 IST 2022C/SCA/5040/2022 CAV JUDGMENT DATED: 19/10/2022 8.4 Special Civil Application No. 12537 of 2011 was filed by the Gujarat Karmachari Sankalan Samiti for a direction that the members of the Samiti be treated at par with similarly situated persons in other districts. Also was under challenge the order of termination dated 06.01.2018 by which, during the pendency of the petition, services of some of the MPHWs were terminated.
8.5 A Civil Application was filed by the Samiti challenging the order of termination wherein this Court (Coram: K.S.Jhaveri, J) on 13.07.2012 in Civil Application No. 7865 of 2012 in SCA No. 12537 of 2011 passed the following order:
"1. This application has been filed, praying to direct the respondent-authorities to give exemption to the members of the applicant from participating in the selection process pursuant to the advertisement published by the respondent authorities on 7.7.2012 for the post of Multi Purpose Health Workers(Male).
2. I have heard learned advocate for the applicant. Considering the facts and circumstances of the case, the petitioners are directed to appear in the examination in question. However, it is clarified Page 37 of 69 Downloaded on : Wed Oct 19 21:20:27 IST 2022 C/SCA/5040/2022 CAV JUDGMENT DATED: 19/10/2022 that the examination in question will be subject to final result of S.C.A No. 12537 of 2011. The respondents are directed not to relieve the petitioners from service without following the due process of law.
3. With the above observations and directions, the present application stands disposed of. Direct service is permitted."
8.6 That petition was finally heard and by a judgement of 25.07.2018, extensively referring to the decision in Special Civil Application No. 6289 of 2011 dated 10.08.2016, in paras 5 to 12 held as under:
"5. It is further the case of the petitioners that the State Government has issued a Government Resolution dated 02.05.1991, whereby, it is resolved to regularize the services of adhoc employees such as the petitioners. In spite of repeated representations to respondent No.3 to regularize their services in light of the above Government Resolution, nothing fruitful has been done so far.
Respondent No.3 has forwarded several
proposals to respondent No.1 State
Government but no reply has been received.
6. The petitioners further contend that similarly situated MPHW(M) who were not permitted to participate in the selection process on the ground of being overage have been granted the benefit of the Government Resolution dated 02.05.1991, by the Rajkot Page 38 of 69 Downloaded on : Wed Oct 19 21:20:27 IST 2022 C/SCA/5040/2022 CAV JUDGMENT DATED: 19/10/2022 District Panchayat. The State Government, itself, has regularized the services of MPHW(M) in District Sabarkantha, with retrospective effect. The petitioners are, therefore, deserving of similar treatment.
As nothing concrete has been done by the respondents in this regard, the petitioners are before this Court.
7. Mr.S.I.Nanavati, learned Senior Advocate with Mr.Saurabh Mehta, learned advocate, has appeared for the petitioners and has made the following submissions:
8. The petitioners have all been appointed against sanctioned and vacant posts by a selection process undertaken pursuant to the advertisement dated 20.07.1990. Though the appointments of the petitioners were initially made on adhoc basis, however, Condition No.10 in their appointment orders clearly stipulates that the petitioners would be required to participate in the regular selection process, as and when it is initiated. Accordingly, the petitioners have participated in the selection process that was undertaken by respondent No.3 on 30.03.1996. It is submitted that it is not the fault of the petitioners that no selection process was undertaken by respondent No.3 from the year 1991 upto 1996. During this period, the petitioners have crossed the permissible agelimit, therefore, they are being deprived of the fruits of regularization that would have been granted to them had the selection process been undertaken earlier, as it should have been.
9. It is further submitted that the petitioners possess the required eligibility criteria, though some of the petitioners were Page 39 of 69 Downloaded on : Wed Oct 19 21:20:27 IST 2022 C/SCA/5040/2022 CAV JUDGMENT DATED: 19/10/2022 declared as `failed' by respondent No.3 in the recruitment process that took place on 30.03.1996, only on the basis of the age-
limit. Some of thepetitioners were not even permitted to participate, on the very same ground.
10. It is further submitted that similarly situated MPHW(M) in District Rajkot have been regularized by the Rajkot District Panchayat. The State Government has passed an order dated 13.10.2009, regularizing the services of MPHW(M) in Sabarkantha District, with retrospective effect. The petitioners are identically situated and the same benefit ought to be granted to them.
11. Learned Senior Counsel has relied upon the judgment in the case of Secretary, State of Karnataka And Others v. Umadevi (3) And Others - (2006)4 SCC 1, and has submitted that the case of the petitioners falls squarely within the ratio of the said judgment as their appointments cannot be considered to be illegal but may be said to be irregular. However, the irregularity of their appointments is on account of the fact that the selection process was not undertaken in time, which factor is not in the control of the petitioners. It is further submitted that the petitioners have put in about twentyfive years of service, by now. The interim order in their favour was passed on 11.05.2011. Even before that date, the petitioners had completed approximately twenty years of service, therefore, the ratio laid down in the case Secretary, State of Karnataka And Others v. Umadevi (3) And Others (supra) would be applicable to them and they ought to be considered for the regularization of their Page 40 of 69 Downloaded on : Wed Oct 19 21:20:27 IST 2022 C/SCA/5040/2022 CAV JUDGMENT DATED: 19/10/2022 services.
12. Another judgment relied upon by learned Senior Counsel is that in the case of U.P. State Electricity Board v. Pooran Chandra Pandey And Others - (2007)11 SCC 92. In that case, the Supreme Court has discussed the judgment of Maneka Gandhi v. Union of India - (1978)1 SCC 248 and the judgment of Secretary, State of Karnataka And Others v. Umadevi (3) And Others (supra), and held that no doubt, Maneka Gandhi case does not specifically deal with the regularization of Government employees but the principle of reasonableness in executive action and the law laid down therein would be of general importance. It is submitted that the action of the respondents in not regularizing the services of the petitioners, especially as the services of other similarly situated employees have been regularized, is unreasonable and unjust."
8.7 What is noted from the above decision is that the termination order dated 06.01.2018 was quashed and set aside and the Court held that the MPHWs who have worked continuously for so many years cannot be discriminated because there is no rationale for treating them differently. Letters Patent Appeal No. 1327 of 2019 was filed by the State. Therein, the Court had passed an interim order on Page 41 of 69 Downloaded on : Wed Oct 19 21:20:27 IST 2022 C/SCA/5040/2022 CAV JUDGMENT DATED: 19/10/2022 06.08.2019, which reads as under:
"3. We are of the considered view that learned advocate appearing for respondent in LPA and applicant in Misc. Civil Application, is absolutely justified in contending that the wages of Rs.2500/- p.m, at which the reinstatement is made, cannot be said to be meeting any criteria of the minimum wages, living wages or admissible wages to the other daily rated employees or daily wager employees in light of recent judgment of Supreme Court.
4. In view thereof, we adjourn the matters to 09.09.2019 and ordered the concerned to see to it that reinstated employees - applicants in Misc. Civil Application and similarly situated, shall be paid either the admissible minimum wages or wages, which are being paid to similarly situated non-regular employees in the fixed wages. This is only on account of the pendency of the Letters Patent Appeal of the State, else the decision impugned in Letters Patent Appeal would warrant higher wages at bar with regular employees. Therefore, this order may not be treated as reflection on merits of the matter. This is only with a view to assuage the plight of the applicants, who are claiming that there is contempt of Court on account of disobedience of Court's order, impugned in the Letters Patent Appeal."
8.8 The interim order specifically observed that even the non petitioners would be extended the benefits of minimum wages.
Page 42 of 69 Downloaded on : Wed Oct 19 21:20:27 IST 2022C/SCA/5040/2022 CAV JUDGMENT DATED: 19/10/2022 8.9 Finally, the appeal of the State was dismissed by an order dated 16.10.2019. The order reads as under:
"1.Heard Shri Chintan Dave, learned Assistant Government Pleader for the State - appellant and Shri Dishant K. Thakkar, learned counsel for the private respondents.
2. This Letters Patent Appeal assails correctness of the judgment and order dated 25.07.2018 passed by the learned Single Judge in Special Civil Application No. 12537 of 2011, whereby the learned Single Judge allowed the petition of the private respondents, relying upon an earlier judgment of this Court dated 10.08.2016 passed in Special Civil Application No. 6289 of 2011. The learned Single Judge extended the same benefits to the present writ petitioners as was extended to the writ petitioners of the aforementioned Special Civil Application. Learned Assistant Government Pleader Shri Dave has not been able to show any distinction between the petitioners of the two petitions, nor has been able to place any material before the Court to show that the earlier judgment of this Court dated 10.08.2016 has been set aside, modified or recalled.
3. In view of the above, and having perused the judgment under challenge, as also the judgment dated 10.08.2016, we do not find any reason to take a different view. The appeal lacks merits. Accordingly, the appeal is dismissed and all the pending civil applications stand disposed of."Page 43 of 69 Downloaded on : Wed Oct 19 21:20:27 IST 2022
C/SCA/5040/2022 CAV JUDGMENT DATED: 19/10/2022 8.10 While dismissing the Appeal, it was clearly observed by the State that the State had failed to point out any distinction between the petitioners of Special Civil Application No. 6289 of 2011 and SCA No. 12537 of 2011.
8.11 The order was upheld in the Hon'ble Supreme Court as the State's appeals were dismissed by the Supreme Court on 26.10.2020. When Contempt proceedings were initiated, the Court on 10.01.2020 passed an order which reads as under:
"Today, when the matter has been called out, Shri J.K. Shah, learned Assistant Government Pleader has prayed for a week's time to file affidavits of the opposite parties in response to the contempt notices which were issued some time in the months of September and October in all these matters.
From the record, we find that in the year 2016, vide judgment dated 10.08.2016, Special Civil Application No. 6289 of 2011 in the case of J.N. Jagani and 28 others v. State of Gujarat and 3 Ors., was allowed and the respondent - State was directed to extend the benefit of regularization with retrospective effect in view of the order of the State Government dated 13.10.2009. The operative potion contained in para 35 and 36 Page 44 of 69 Downloaded on : Wed Oct 19 21:20:27 IST 2022 C/SCA/5040/2022 CAV JUDGMENT DATED: 19/10/2022 are reproduced below :
"35. As a result of the above discussion and for the aforestated reasons, this Court is of the view that the petitioners deserve to be granted the benefits of regularization with retrospective effect, as have been granted by the order dated 13.10.2009, passed by the State Government in the case of similarly situated persons in Sabarkantha District.
36.Hence, the following order is
passed: The respondents are directed
to consider the cases of the
petitioners for regularization of their
services from the initial dates of their appointments, as has been done in similarly situated cases, with all consequential benefits. The needful be done by the concerned respondents within a period of three months from the date of the receipt of a copy of this judgment."
The said judgment dated 10.08.2016 has been consistently followed by this Court in number of matters. It may also be noticed that the State had preferred Letters Patent Appeal, which ultimately came to be dismissed vide judgment dated 16.10.2019. In the meantime, similar matters being filed were allowed by the learned Single Judge from time to time. Thus, we also find from one of the orders passed by this Court that the directions issued by the State authorities to ensure compliance of the said judgment, even to non petitioners and not to insist upon these methods to file petition for Page 45 of 69 Downloaded on : Wed Oct 19 21:20:27 IST 2022 C/SCA/5040/2022 CAV JUDGMENT DATED: 19/10/2022 seeking regularization.
In view of the above, as things stand today, compliance has not been effected. Thus, there is prima facie contempt made out. Let these matters be listed on 14.02.2020. If on the said date, affidavits of the actual and full compliance are not filed by the opposite parties, all the opposite parties to remain present before this Court. We may clarify that the officers posted on the relevant posts, described as opposite parties nos. 1 to 4 to remain present, irrespective of the fact whether they are being presently left or have been transferred in the meanwhile.
A copy of this order be provided to Mr. J.K. Shah, learned Assistant Government Pleader free of costs within five (5) days for necessary compliance.
List on 14.02.2020."
8.12 A specific observation has been made by the Division Bench that "thus we also find from one of the orders passed by this Court that the directions issued by the State authorities to ensure compliance of the said judgement, even to the non petitioners and not to insist upon these methods to file petition for seeking regularization". What is therefore explicitly clear is that MPHWs irrespective of their nature of appointments i.e. ad-hoc or Page 46 of 69 Downloaded on : Wed Oct 19 21:20:27 IST 2022 C/SCA/5040/2022 CAV JUDGMENT DATED: 19/10/2022 contractual were entitled to the benefits of regularization and / or reinstatement. Pursuant to those observations, the proceedings during its progress resulted in the contempt bench passing an order on 28.02.2020, which resulted in the State complying with the order and issuing one such order of 19.07.2021 by which 322 MPHWs of SCA No. 12537 of 2011 were regularized.
9 The chronology of the orders and the relevant paras reproduced hereinabove indicate that repeatedly, Multi Purpose Health Workers have had to approach this Court seeking the benefit of regularization and / or reinstatement. Even subsequent to the orders passed in Special Civil Application No. 6289 of 2011 and 12537 of 2011, a co-ordinate Bench of this Court has passed identical order in SCA No. 13519 of 2011 on 10.12.2019.
Paras 9 to 12 read as under:
"9. The aforesaid orders refer to the various judgments of this Court. The State authorities have Page 47 of 69 Downloaded on : Wed Oct 19 21:20:27 IST 2022 C/SCA/5040/2022 CAV JUDGMENT DATED: 19/10/2022 implemented the aforesaid orders passed by this Court in the aforesaid Districts hence, the employees / petitioners working in the Kheda District cannot be discriminated and they are also liable to be treated equally.
10. As regards the submissions advanced by the learned advocate Mr.Ahuja for respondent No.3 with regard to disentitlement of the petitioners for regularization since they have not cleared the Hindi examination, the same does not merit acceptance since no provision of Rule or Regulation is shown stating that if an employee has not cleared Hindi examination, he cannot be conferred the benefits of regularization or regular pay. In absence of such provision of Rules or Regulations, the petitioners cannot be denied the benefit of regularization.
11. The Coordinate Bench of this Court in the aforesaid judgment dated 10.08.2016 passed in Special Civil Application No.6289 of 2011, while granting reliefs to the Multi Purpose Health Workers (Male), has distinguished the aforesaid judgment of the Division Bench dated 20.07.2010 passed in Letters Patent Appeal No.85 of 2010 and has issued the directions to the State authorities to confer the benefits of regularization from the initial date of appointment. The aforesaid judgment is implemented by the State authorities and hence, judgment passed by the Division Bench in Letters Patent Appeal No.85 of 2010 will not come to the rescue of the respondents.
12. Under the circumstances, the respondents are directed to confer the similar benefits, which are conferred to the Multi Purpose Health Workers (Male) of Rjakot, Junagadh, Sabarkantha and Valsad Districts, to the petitioners working in Kheda District. Appropriate similar orders may be passed in the case of the present petitioners also.Page 48 of 69 Downloaded on : Wed Oct 19 21:20:27 IST 2022
C/SCA/5040/2022 CAV JUDGMENT DATED: 19/10/2022 Necessary orders shall be passed within a period of two months from the date of receipt of the order of this Court."
9.1 In SCA No. 15228 of 2012, dated 05.12.2019, the Court has passed the following order:
"6. I have heard the learned advocates appearing for the respective parties.
7. This Court has perused the judgment dated
10.08.2016 passed by this Court in Special Civil Application No.6289 of 2011. In depth analysis of the judgment reveals that the issue raised in the present petitions is squarely covered. The only difference is that the petitioner in the present writ petition belongs to Kheda District, whereas the petitioners of Special Civil Application No.6289 of 2011 were of Junagadh District.
8. This Court, after threadbare analysis of all the relevant aspects as well as the contentions raised by both the sides in Special Civil Application No.6289 of 2011 has observed thus:
"33. As held by this Court in the above judgment, aging is a process which nobody can stop. This aspect ought to have been considered by respondent No.3 while including Condition No.10 in the appointment orders of the petitioners and while issuing the advertisement for regular selection in the year 1996. It was not in the hands of the petitioners to have stopped the clock from running. However, it was very much in the hands of respondent No.3 to have held the selection process well in time, so that Page 49 of 69 Downloaded on : Wed Oct 19 21:20:27 IST 2022 C/SCA/5040/2022 CAV JUDGMENT DATED: 19/10/2022 persons such as the petitioners, who have been appointed by it subject to the condition that they would have to participate in the regular selection process, would have got a fair chance. The petitioners cannot be made to suffer for the totally unconcerned and casual approach on the part of the District Panchayat.
34. At the same time, the Court cannot overlook the fact that the State Government is supposed to be a model employer. It would have behoved the State Government to have framed a uniform policy for MPHW(M) such as the petitioners, covering the entire State of Gujarat, instead of confining the decision only to those MPHW(M) working in Sabarkantha District, as has been done vide the order dated 13.10.2009. This would have ensured equal treatment to all similarly situated MPHW(M) throughout the State, irrespective of the District in which they are working. The fact that a decision has not been taken for all MPHW(M) but only for those working in a particular District, has caused a great deal of anguish and heartburning to the petitioners, which is quite understandable, considering that they have been discriminated for no fault of their own.
35. As a result of the above discussion and for the aforestated reasons, this Court is of the view that the petitioners deserve to be granted the benefits of regularization with retrospective effect, as have been granted by the order dated 13.10.2009, Page 50 of 69 Downloaded on : Wed Oct 19 21:20:27 IST 2022 C/SCA/5040/2022 CAV JUDGMENT DATED: 19/10/2022 passed by the State Government in the case of similarly situated persons in Sabarkantha District."
This Court had also observed that the Multi-purpose Health Workers working in Sabarkantha District had already been conferred the benefits of regularization vide order dated 13.10.2009 and the employees of Junagadh District cannot be discriminated.
9. In the present case, the employee of Kheda District is discriminated and such discrimination cannot be allowed in wake of the fact that the State authorities have granted the benefits of regularization in Sabarkantha, Junagadh and Rajkot Districts. It is also noticed that the Coordinate Bench of this Court has also considered the factor of the employees being over-age and some of them had also not passed the examination. The facts recorded in the judgment reveal that some of the employees even failed in the recruitment process, which had taken place on 30.03.1996. Despite the aforesaid facts, the Court has directed to regularize the service of the Multi-purpose Health Workers of Junagadh District from the date of initial appointment.
10. It is also not in dispute that the Coordinate Bench of this Court has also held that once the Multi-purpose Health Workers, who are engaged on contractual basis and after even given breaks, they are entitled to regularize in service after they have subsequently cleared the regular recruitment process. The initial appointment order dated 25.03.1991 refers that the petitioner has to clear the selection process as and when the same is held. The petitioner has also cleared the examination and once he has participated in the regular selection process, and is selected then his earlier services cannot be wiped out and he is required to be treated as Page 51 of 69 Downloaded on : Wed Oct 19 21:20:27 IST 2022 C/SCA/5040/2022 CAV JUDGMENT DATED: 19/10/2022 regular employee by conferring him continuity of service. It is reported that the aforesaid judgment is implemented by the State authorities.
11. Under the circumstances, the petitioner cannot be discriminated only because he belongs to Kheda District. The present writ petition succeeds in light of the judgment dated 10.08.2016 passed in Special Civil Application No.6289 of 2011.
12. The respondents are hereby directed to confer the benefits of past service to the petitioner from the initial date of appointment treating him as continue in terms of the judgment dated 10.08.2016 passed in Special Civil Application No.6289 of 2011. Appropriate orders shall be passed within a period of three months from the date of receipt of the writ of this order. Rule is made absolute. Direct service is permitted."
9.2 In the aforesaid order, the Division Bench in LPA No. 216 of 2021 has dismissed the appeal of the District Development Officer. Para 3 to 6 read as under:
"3. Insofar as the other appeal is concerned that is arising out of Special Civil Application No.13519 of 2011, again the learned Single Judge relied upon the judgment dated
10.08.2016 in Special Civil Application No.6289 of 2011 and extended the same benefits to the writ petitioners therein. It is also recorded by the learned Single Judge that the Multupurpose Health Workers (Male) who are working in Rajkot, Junagadh, Sabarkantha and Valsad have already been extended the Page 52 of 69 Downloaded on : Wed Oct 19 21:20:27 IST 2022 C/SCA/5040/2022 CAV JUDGMENT DATED: 19/10/2022 benefits and their services have been regularized from the initial date of appointment. As such, the present writ petitioners belonging to District Kheda would also be entitled to the same benefits. Apparently we do not find any infirmity in the orders passed by the learned Single Judge.
4. We may further note here the submission of Shri Munshaw referring to two judgments of the Division Bench dated 19.07.2016 in Letters Patent Appeal No.507 of 2016 arising out of Special Civil Application No.2344 of 2014 and the judgment dated 20.07.2010 in Letters Patent Appeal No.85 of 2010 arising out of Special Civil Application No.8611 of 2009, based upon which he submits that the Multipurpose Health Workers (Male) were not extended the benefits which have been given to the present petitioners. We have perused both the judgments and we find that they were based on different set of facts and the initial appointment of those Multipurpose Health Workers were contractual in nature unlike the present petitioners who were given regular appointment on fixed term and conditions.
5. Learned counsels for the respondents state that they are entitled to the benefits of regularization from 15.04.1995 and not from any earlier date because they are working continuously from the said date and prior to it in their appointments there were certain breaks. This honest submission of the learned counsels for the respondents is noted and the appellants would implement the order of the learned Single Judge accordingly.
6. It has also been pointed out by the learned counsels for the respondents that the Page 53 of 69 Downloaded on : Wed Oct 19 21:20:27 IST 2022 C/SCA/5040/2022 CAV JUDGMENT DATED: 19/10/2022 Division Bench of this Court vide judgment dated 10.08.2017 passed in Letters Patent Appeal No.1263 of 2016 arising out of group of petitions led by Special Civil Application No.11477 of 2015 dismissed the appeal of the State against the judgment of the learned Single Judge extending similar benefits as has been done in the present case."
10 The litigations from these orders as is evident had their roots in the order at the first point of time passed on 10.08.2016. In SCA No. 12537 of 2011, the Court followed the order in SCA No. 6289 of 2011 dated 10.08.2016. In addition thereto, it set aside the orders of termination dated 06.01.2018.
The petitioners of these batch of petitions accordingly made representations for extending similar benefits to such petitioners which have been rejected on the ground that it is not clear as to whether they were petitioners in SCA No. 12537 of 2011. The stand is misconceived. The learned AGP's submission that the judgements in the aforesaid decision are per incuriam in light of decision in the case of Surekhaben (supra) as in the earlier cases the Page 54 of 69 Downloaded on : Wed Oct 19 21:20:27 IST 2022 C/SCA/5040/2022 CAV JUDGMENT DATED: 19/10/2022 appointees were ad-hoc appointees whereas in the case of Surekhaben contractual appointees were not given similar benefits and the appeals were dismissed at the instance of contractual appointees like the petitioners cannot be accepted. Appointees, ad-hoc or contractual had to be treated similarly as observed by the Co-ordinate Bench of this Court in SCA 6289 of 2011 where the Court specifically observed that "at the same time, the Court cannot overlook the fact that the State Government is supposed to be a model employer. It would have behoved the State Government to have framed a uniform policy for MPHWs. Once in orders passed by this Court, especially which were affirmed by the Division Bench specifically observing that such benefits will also be given to non petitioners, there is no reason why the batch of present petitioners should not be given the benefit of reinstatement and regularization. The next question is as to which of these petitioners would be entitled to such benefits, Page 55 of 69 Downloaded on : Wed Oct 19 21:20:27 IST 2022 C/SCA/5040/2022 CAV JUDGMENT DATED: 19/10/2022 as from the dates of appointments given by the respective counsels for the petitioners indicate that they were appointed on contractual basis ranging from the years 2004-05 to the year 2018-2019. A reasonable cut off date shall then have to be thought of for extending the benefits of regularization to such petitioners. It will be in the fitness of things therefore to consider 10.8.2016 as the relevant date when the first batch of petitions was allowed as the relevant date for exercising discretion in favour of the petitioners who seeks reinstatement and regularization. Accordingly, petitions Nos.14946 of 2022, 5040 of 2022, 3468 of 2022, 13139 of 2022, 12375 of 2022, 12377 of 2022, 12960 of 2022, 12986 of 2022, 13554 of 2022, 13680 of 2022, 13404 of 2022, 13370 of 2022, 13388 of 2022, 14868 of 2022, 13147 of 2022, 13151 of 2022 and 13198 of 2022 in which the petitioners whose appointments were prior to 10.08.2016 are entitled to the benefits of Page 56 of 69 Downloaded on : Wed Oct 19 21:20:27 IST 2022 C/SCA/5040/2022 CAV JUDGMENT DATED: 19/10/2022 reinstatement and regularization from their initial date of appointment as was granted by the State to the 322 beneficiaries of SCA No. 12537 of 2011.
Accordingly, the aforesaid petitions are allowed to the aforesaid extent. The order dated 07.01.2022 and 07.05.2022 are hereby quashed and set aside. The petitioners whose appointments are prior to 10.08.2016 are entitled to the benefits of reinstatement and regularization on the same terms and conditions as granted to the beneficiaries of the order dated 19.07.2021 passed by the State.
Special Civil Application Nos. 10994, 11324 and 12401 of 2022.
11 The petitioners are Multi Purpose Health Workers who have been working under the respective District Panchayats from 1995-1996 on an ad-hoc basis. They have continued even after the expiry of their 11 months period, over a period of time. Their prayer is that their services be regularized on the same terms Page 57 of 69 Downloaded on : Wed Oct 19 21:20:27 IST 2022 C/SCA/5040/2022 CAV JUDGMENT DATED: 19/10/2022 and conditions as done so in the case of the petitioners of SCA No. 6289 of 2011 and 12537 of 2011.
12 As far as SCA Nos. 15536 of 2022, 10807 of2022, 10808 of 2022 and 16290 of 2022 are concerned, they are MPHWs (male) & Female Health Workers, who were working initially on ad-hoc basis, however, have subsequently undergone the regular process of selection undertaken by the Gujarat Panchayat Service Selection Board and have been so appointed on regular post. Their cases are much better than the 322 candidates who are regularized by an order dated 19.07.2021, inasmuch as, these petitioners though were ad-hoc employees like the beneficiaries of the order dated 19.07.2021 they have undergone the selection process and are now regularized in service. Those ad-hoc MPHWs who had failed in the competitive examination have had the benefit of their services being regularized from Page 58 of 69 Downloaded on : Wed Oct 19 21:20:27 IST 2022 C/SCA/5040/2022 CAV JUDGMENT DATED: 19/10/2022 the date of their initial appointments in view of the judgement referred to hereinabove. Therefore the present petitioners in these petitions too cannot be deprived of the benefits of past services rendered by them on ad-hoc basis and the benefits of regularization.
This Court had on 20.07.2022, in Special Civil Application No. 2334 of 2021 and allied matters passed the following order:
13 In SCA No. 6431 of 2022, this Court on 29.06.2022, passed the following order:
"1. Rule returnable forthwith. Mr. Desai, learned AGP waives service of rule on behalf of the respondent-State and Mr. H.S. Munshaw, learned advocate waives service of notice of rule on behalf of respondent no. 2. With consent of the learned advocates appearing for the respective parties, the petition is taken up for final hearing today.
2. Mr. Munshaw, learned advocate has taken the court through the affidavit-in-reply and submitted that since the earlier appointment was on contractual and adhoc basis, the said service cannot be counted for regular service. Mr. Vyas, learned counsel appearing for the petitioners relies on an order passed by this Court in Special Civil Application No. 9089 of 2022 and allied matters dated 06.05.2022. The order reads as under:Page 59 of 69 Downloaded on : Wed Oct 19 21:20:27 IST 2022
C/SCA/5040/2022 CAV JUDGMENT DATED: 19/10/2022 "1. Rule returnable forthwith. Learned AGPs waive service of notice of rule on behalf of respondent State.
2. Heard learned advocates for the parties.
3. It is the case of learned counsel for the petitioners that the case of the petitioners is similarly situated to the petitioners of Special Civil Application No. 12537 of 2011. Learned counsel for the petitioners would submit that the petitioners are entitled to the similar benefits as have been directed by the court in the order dated 23.01.2019 in para 8.1. He would submit that a direction can be given to the respondents to extend similar consequential benefits to the petitioners herein.
4. This court vide order dated 25.07.2018 passed in Special Civil Application No. 12537 of 2011 in case of employees like the petitioners who prayed for a direction to regularize their services and treat them at par with similarly situated persons and grant them regularization from the date of their initial appointments as Multipurpose Health Workers (Male) with consequential and incidental benefits held as under:
7. It is admitted that initially, petitioners were given contractual appointment for 11 months and thereafter, they have been continued for all these years. Some of these petitioners have joined way back in the year 2004 and 2005 and working on fixed remuneration of Rs.2500/-.
The main ground of the respondents in denying the regular appointment to the petitioners and terminating their services is that initial appointment was on contractual basis.
8. This Court is of the considered opinion that such stand of the State Government in Page 60 of 69 Downloaded on : Wed Oct 19 21:20:27 IST 2022 C/SCA/5040/2022 CAV JUDGMENT DATED: 19/10/2022 terminating the services of the petitioners, despite the fact that, petition of similarly situated other petitioners was allowed way back in the year 2011 and 2016. In these proceedings, respondents were party and decision was in the knowledge of the respondents. Case of the petitioners for increasing of remuneration from Rs.2500/- to Rs.9400/- was forwarded by Health and Family Welfare Department for consideration to the Finance Department. Finance Department in place of taking decision in favour of the employees have passed an order vide which the District Panchayats have been directed to terminate the services of the petitioners who have been working for considerable long time.
9. While disposing of Special Civil Application No.6289 of 2011, this Court has held as under.
25. It may be true that in the case of District Rajkot, similarly situated MPHW(M) have been regularized by the concerned District Panchayat. However, it is obvious that in the case of Sabarkantha District Panchayat, the services of MPHW (M), who are identically situated to the petitioners, have been regularized, with restrospective effect, by the State Government, itself. The State Government has taken a policy decision in this regard, confined only to the MPHW (M) of Sabarkantha District. Why all similarly situated MPHW (M) in other Districts of the State have not been covered under a uniform policy, is certainly baffling. Multi Purpose Health Worker (Male) such as petitioners, who were appointed on adhoc basis but have been denied the fruits of regular appointment only because the regular selection process was not fhled until they had crossed the permissible age-limit, Page 61 of 69 Downloaded on : Wed Oct 19 21:20:27 IST 2022 C/SCA/5040/2022 CAV JUDGMENT DATED: 19/10/2022 from a distinct class of employees. Different categories in a single class cannot be carved out by taking piecemeal decisions benefiting only a section of such employees. This would amount to sub-classification that would not be permissible in law, as there is no rational nexus to the object sought to be achieved by confirming the decision only to MPHW (M) in Rajkot and Sabarkantha districts. They, therefore, cannot be accorded discriminatory treatment. The respondent authorities are not only trying to take advantage of the situation but are also trying to put the blame on each other which cannot be permitted, to the detriment of the petitioners.
10. From the aforementioned judgment, it is clear that Multi Purpose Health Worker (Male) who have worked continuously for so many years cannot be discriminated by taking one excuse or the other. There is no rationale in discriminating the present petitioners by treating them as employees on contractual basis when initial contract for which they were appointed is over after 11 months and thereafter, without any break, they are continued for all these years. This is particularly so, when clear cut finding has been recorded by co-ordinate Bench of this Court in Special Civil Application No.6289 of 2011 and respondents were party in these proceedings.
11. As a result of aforementioned discussion, termination order dated 6.1.2018 is quashed and set aside and this petition is allowed in the same terms as Special Civil Application No.6289 of 2011 decided on 10th August, 2016. Petitioners will be regularized in the same manner from the same date as in the aforementioned oral order. Rule is made Page 62 of 69 Downloaded on : Wed Oct 19 21:20:27 IST 2022 C/SCA/5040/2022 CAV JUDGMENT DATED: 19/10/2022 absolute. 5. Further, a co-ordinate bench of this court in Special Civil Application No. 2207 of 2014, relying on the aforesaid decision, considering the submissions of the respective parties held as under vide order dated 23.01.2019:
" 7. Having heard learned advocates appearing for the parties and having gone through the material on record, the Court found that respondents have not been able to point out any dissimilarity or discriminatory feature than what has been decided by coordinate Bench of this Court and, therefore, with limited scope of an issue, the Court found that the case is made out by the petitioner. While arriving at this conclusion, the Court is considering the observations which have been made by a decision in case of Special Civil Application No.6289 of 2011reported in case as referred above [J.N.Jagani vs. State of Gujarat reported in 2016 (0) AIJEL - HC 236643], the relevant paras contained therein are reproduced hereinafter.
"26. It is a settled position of law, that does not require any further elaboration, that equals are required to be treated equally and dissimilar treatment cannot be accorded to the same class of people.
27. The action of the respondent authorities in not regularizing the services of the petitioners, as has been done in the case of other similarly situated MPHW(M) by the concerned District Panchayats and the State Government in Sabarkantha District, is not only Page 63 of 69 Downloaded on : Wed Oct 19 21:20:27 IST 2022 C/SCA/5040/2022 CAV JUDGMENT DATED: 19/10/2022 arbitrary but also discriminatory and unjust and is, therefore, in violation of Article 14 of the Constitution of India. The petitioners are being deprived of the fruits of regularization in spite of having worked continuously for a period of about twentyfive years, or more. As such, the action of the respondents is also in violation of the provision of Articles 16 and 21 of the Constitution of India.
31. In the present case as well, the action of the respondents District Panchayat as well as the State Government is required to be tested on the principle of reasonableness in executive action. In the view of this Court, the action of respondent No.3 in not issuing the advertisement for the regular selection procedure expeditiously, especially after imposing a condition in the appointment orders of the petitioners that they have to undergo the regular selection process and then not conducting the selection process for years together until the petitioners cross the permissible agelimit, is highly unreasonable. Respondent No.3 bided time for a period of six years before initiating the regular selection process ensuring, by this action that the petitioners become agebarred in the meanwhile. The initiation of the selection process was not in the hands of the petitioners and they cannot be blamed for the plight they find themselves in.Page 64 of 69 Downloaded on : Wed Oct 19 21:20:27 IST 2022
C/SCA/5040/2022 CAV JUDGMENT DATED: 19/10/2022
33. As held by this Court in the above judgment, aging is a process which nobody can stop. This aspect ought to have been considered by respondent No.3 while including Condition No.10 in the appointment orders of the petitioners and while issuing the advertisement for regular selection in the year 1996. It was not in the hands of the petitioners to havestopped the clock from running. However, it was very much in the hands of respondent No.3 to have held the selection process well in time, so that persons such as the petitioners, who have been appointed by it subject to the condition that they would have to participate in the regular selection process, would have got a fair chance. The petitioners cannot be made to suffer for the totally unconcerned and casual approach on the part of the District Panchayat.
34. At the same time, the Court cannot overlook the fact that the State Government is supposed to be a model employer. It would have behoved the State Government to have framed a uniform policy for MPHW(M) such as the petitioners, covering the entire State of Gujarat, instead of confining the decision only to those MPHW(M) working in Sabarkantha District, as has been done vide the order dated 13.10.2009. This would have ensured equal treatment to all similarly Page 65 of 69 Downloaded on : Wed Oct 19 21:20:27 IST 2022 C/SCA/5040/2022 CAV JUDGMENT DATED: 19/10/2022 situated MPHW(M) throughout the State, irrespective of the District in which they are working. The fact that a decision has not been taken for all MPHW(M) but only for those working in a particular District, has caused a great deal of anguish and heartburning to the petitioners, which is quite understandable, considering that they have been discriminated for no fault of their own. 35. As a result of the above discussion and for the aforestated reasons, this Court is of the view that the petitioners deserve to be granted the benefits of regularization with retrospective effect, as have been granted by the order dated 13.10.2009, passed by the State Government in the case of similarly situated persons in Sabarkantha District."
8. The Court also found that similar observations have been considered by yet another coordinate Bench in a decision delivered on 25.07.2018 in Special Civil Application No.12537 of 2011. The Court is also taking note of said decision while coming to this conclusion in the present case on hand. From the aforesaid observations and in view of the fact that here also the petitioner is a Multipurpose Health Worker (Male) and the dissimilarity is not reflecting at all, the case is made out by the petitioner for seeking the benefit of regularisation with retrospective effect. Accordingly following order would meet the end of justice while disposing of the petition.
Page 66 of 69 Downloaded on : Wed Oct 19 21:20:27 IST 2022C/SCA/5040/2022 CAV JUDGMENT DATED: 19/10/2022 8.1 The respondents are directed to consider the case of petitioner for regularisation of their services from the initial date of appointment as has been done in similarly situated cases with all consequential benefits and the needful to be done by the concerned authorities within a period of three months from the date of receipt of this Court.
9. With the above observation and direction, petition stands allowed, with no order as to costs."
6. Accordingly, the respondents are directed to consider the case of the petitioners for their entitlement to regular payscale on the post of Multi-purpose Health Workers (Male) from their original date of appointment and consequential benefits which have been paid to the similarly situated employees namely petitioners of Special Civil Applications No. 12537 of 2011 and 2207 of 2014. The petitioners shall be granted such benefits as referred to hereinabove within a period of ten weeks from the date of receipt of the writ of the order of this court. Petitions are accordingly allowed. Rule is made absolute. Direct service is permitted."
3. In view of the above, the respondents are directed to consider the case of the petitioners for their entitlement to regular pay-scale on the post of Multi- purpose Health Worker (Male) from their original date of appointment and consequential benefits which have been paid to the similarly situated employees namely petitioners of Special Civil Application No. 12537 of 2011 and 2207 of 2014. The petitioners shall be granted such benefits as Page 67 of 69 Downloaded on : Wed Oct 19 21:20:27 IST 2022 C/SCA/5040/2022 CAV JUDGMENT DATED: 19/10/2022 referred to hereinabove within a period of fourteen (14) weeks from the date of receipt of the writ of the order of this Court. Petition is allowed accordingly. Rule is made absolute. Direct service is permitted."
14 In light of the above, Special Civil Application Nos.
10807 of 2022, 10808 of 2022, 15536 of 2022, 16290 of 2022 , 10994 of 2022, 11324 of 2022 and 12401 of 2022 are allowed in terms of the orders quoted hereinabove. In view of the above, the respondents are directed to consider the case of the petitioners for their entitlement to regular pay-scale on the post of Multi Purpose Health Worker (Male) / Female Health Workers from their original date of appointment and consequential benefits which have been paid to similarly situated employees namely petitioners of Special Civil Application No. 12537 of 2011 and 2207 of 2014. The petitioners shall be granted such benefits as referred to hereinabove within a period of 14 weeks from the date of receipt of the copy of the order.
15 As far as Special Civil Application No. 5409 of Page 68 of 69 Downloaded on : Wed Oct 19 21:20:27 IST 2022 C/SCA/5040/2022 CAV JUDGMENT DATED: 19/10/2022 2022 is concerned, the orders of termination of such petitioners were passed in the years 2012-2013. Such petitioners cannot get the benefit of the order passed by this Court, inasmuch as, they are fence sitters and have not challenged their terminations even at any earlier point of time. Therefore, they cannot be granted such benefits. Accordingly, SCA No. 5409 of 2022 is dismissed.
Connected civil applications stands disposed of, accordingly.
(BIREN VAISHNAV, J) BIMAL Page 69 of 69 Downloaded on : Wed Oct 19 21:20:27 IST 2022