Gujarat High Court
Shaileshkumar Lalabhai Rajat vs The State Of Gujarat on 31 March, 2021
Author: Sonia Gokani
Bench: Sonia Gokani, Gita Gopi
C/LPA/1787/2019 CAVJUDGMENT
IN THEHIGHCOURTOF GUJARATAT AHMEDABAD
R/LETTERSPATENTAPPEALNO. 1787of 2019
In
R/SPECIALCIVILAPPLICATIONNO. 17767of 2019
With
CIVILAPPLICATION(FORSTAY) NO. 1 of 2019
In
R/LETTERSPATENTAPPEALNO. 1787of 2019
With
R/LETTERSPATENTAPPEALNO. 1788of 2019
In
SPECIALCIVILAPPLICATIONNO. 17766of 2019
With
CIVILAPPLICATION(FORSTAY) NO. 1 of 2019
In
R/LETTERSPATENTAPPEALNO. 1788of 2019
In
SPECIALCIVILAPPLICATIONNO. 17766of 2019
FORAPPROVALANDSIGNATURE:
HONOURABLEMS. JUSTICESONIAGOKANI
and
HONOURABLEMS. JUSTICEGITAGOPI
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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 ?
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C/LPA/1787/2019 CAVJUDGMENT
SHAILESHKUMAR LALABHAI RAJAT
Versus
THE STATE OF GUJARAT
==============================================================================
Appearance:
MR M.A. PAREKH(1088)for the Appellant(s)No. 1
MS VRUNDA SHAH, ASST. GOVERNMENTPLEADER(1)for the Respondent(s)No.
1,2,3,4
NOTICESERVEDBY DS(5)for the Respondent(s)No. 5,6
==============================================================================
CORAM: HONOURABLE MS. JUSTICE SONIA GOKANI
and
HONOURABLE MS. JUSTICE GITA GOPI
Date: 31/03/2021
CAVJUDGMENT
( PER : HONOURABLE MS. JUSTICE GITA GOPI)
1. Both these appeals involve identical questions on law and facts and hence, they are decided by this common judgment.
2. The appellants herein, original petitioners, seek to challenge the orders passed by the learned Single Judge of even date in Special Civil Application Nos.17767 of 2019 and 17766 of 2019 dated 14.10.2019, whereby the relief claimed by the appellants-writ petitioners to grant them benefit of regular pay-scale came to be rejected. The petitioners have prayed to direct the respondent Nos.1 to 5 to place the appellants- petitioners in the regular pay-scale, as provided in the Government Resolutions dated 16.02.2006 and 18.01.2007, with all consequential benefits. However, while rejecting both the writ petitions, the learned Single Judge observed that the appellants-petitioners had been rendering their services through an Outsourcing Agency and the long passage of time has rendered the petitions merit-less for the grant of reliefs as prayed for. In fact, the learned Single Judge observed that the very filing of the Page 2 of 17 Downloaded on : Fri Apr 02 01:03:26 IST 2021 C/LPA/1787/2019 CAVJUDGMENT writ petitions was an abuse of the process of law and has thereby, rejected both the writ petitions by way of the impugned orders.
3. The facts in a nutshell are as under;
The appellant in Letters Patent Appeal No.1788 of 2019 (Original petitioner in Special Civil Application No.17766 of 2019) is presently serving as Head Cook whereas, the appellant in Letters Patent Appeal No.1787 of 2019 (Original petitioner in Special Civil Application No.17767 of 2019) is presently serving Peon with respondent No.6, Bhuvar Uttarbuniyadi Ashram Shala, Panchmahal Jilla Utkarsh Mandal, Viraniya, Taluka : Morva-Hadaf, District : Dahod. The respondent No.6 had earlier issued Public Advertisement in local news-paper on 06.07.2009 for filling-up the Post of Head Cook along with other Posts and thereafter, on 28.07.2011 for filling-up the Post of Peon. In pursuance of the said public advertisements, the appellants-petitioners and others submitted their applications in the prescribed form. After following due process of law, the appellants-petitioners came to be appointed as Head Cook and Peon against vacant sanctioned posts vide orders dated 10.08.2009 and 25.08.2011 respectively for 11 months' contract on fixed salary of Rs.1500/- per month. After the issuance of the said orders of appointment by respondent No.6, Bhuvar Uttarbuniyadi Ashram Shala, Panchmahal Jill Utkarsh Mandal, Viraniya, Taluka : Morva-Hadaf, District : Dahod, the same were forwarded to Respondent No.5, Ashram Shala Adhikari, for necessary approval.
3.1 It is the case of the appellants-petitioners that as per the conditions laid down in the public advertisement, the initial appointment of the appellants-petitioners was made for 11 months' contract. Considering the satisfactory work, their services came to be extended from time to time.
Page 3 of 17 Downloaded on : Fri Apr 02 01:03:26 IST 2021C/LPA/1787/2019 CAVJUDGMENT Thus, instead of regularizing their services by granting them regular pay- scale and other benefits, the appellants-petitioners have been continued in service on fixed salary since the date of their appointment though the respondent - Ashram Shala works under the direct control and supervision of the respondent - State. It is the further case of the appellants-petitioners that one Ms. Saraswatiben Vishnubhai Patel, who was also similarly situated, was granted appointment on the regular pay- scale on completion of five years' continuous service on the said Post, by order dated 29.06.2010. However, the appellants-petitioners were not extended the said benefit though their terms of appointment was similar to that of said Ms. Saraswatiben Vishnubhai Patel and no departmental inquiry had been initiated or was pending against the appellants- petitioners. The appellants-petitioners have, thus, claimed regularization with consequential benefits on the ground of parity and discriminatory treatment; and also on the ground that the respondent - Ashram Shala is working under the direct control and supervision of the respondent- Department, being an instrumentality of the State and therefore, the appellants-petitioners could not be deprived of their right of regularization of their services with consequential benefits.
4. The Office of the respondent No.4-Commissioner of Tribal Development has filed Affidavit-in-reply wherein, it has been averred that the appellants-petitioners were appointed to the Posts of Head Cook and Peon by the respondent No.6 after following due process of recruitment. In the public advertisements itself, it was made clear that the appointments of the appellants-petitioners were to be made through "Outsourcing" basis for temporary period. It is the say of respondent No.4 that respondent No.6-Bhuvar Uttarbuniyadi Ashram Shala, Panchmahal Jilla Utkarsh Mandal, is a "Non-Government Organization"
Page 4 of 17 Downloaded on : Fri Apr 02 01:03:26 IST 2021C/LPA/1787/2019 CAVJUDGMENT funded by the State Government and that the said Ashram Shala is essentially engaged in the activity of imparting education to tribal children. According to the respondent No.4, the appellants-petitioners participated in the selection process in pursuance of the public advertisements and on being selected, they accepted the terms and conditions of employment as provided in the public advertisements, by counter-signing the offer of appointment, which culminated into the letters of appointment. It is the say of respondent No.4 that appointments on Class-IV posts in Government service in the State of Gujarat is governed by the Government Resolution dated 30.03.2007 and that as per the said Resolution, appointments to the Posts of Peon, Cook, etc. were on fixed salary of Rs.1500/- per month on outsourcing basis in accordance with the Government Resolution dated 30.11.2006. It has also been averred that respondent No.6 - Ashram Shala was established vide Government Resolution dated 25.05.2007 with due sanction of the State Government and that such sanction was accorded keeping in mind the larger object of development and educational upliftment of the tribal children. It is further averred that the appointment of the appellants- petitioners was for 11 months' contract made through outsourcing basis and therefore, they are not entitled for the reliefs prayed for by them.
5. Learned advocate for the appellants Mr. M.A. Parekh submitted that the learned Single Judge has erred in law and on facts in appreciating the status of the "outsourcing agency", which are entrusted with the work of providing manpower to different Departments on demand. In this case, the public advertisements in question were issued by respondent No.6 - Ashram Shala, which is a 100% Grant-in-Aid Institution. The respondent No.4 had issued No Objection Certificate in favour of respondent No.6 for undertaking the recruitment in pursuance of which appointments were Page 5 of 17 Downloaded on : Fri Apr 02 01:03:26 IST 2021 C/LPA/1787/2019 CAVJUDGMENT made by respondent No.6. Thus, the appointments were made after obtaining due sanction from the authority concerned. In this case, the respondent No.6 - Ashram Shala is a Grant-in-Aid Institution working under the control and supervision of respondent No.4. Therefore, it was submitted that the appellants-petitioners are the employees working under the Office of respondent No.4 and hence, are entitled for regularization of their services along with other benefits.
5.1 In support of his arguments, learned advocate Mr. Parekh placed reliance upon the following judgments:-
(I) Secretary, State of Karnataka V. Umadevi, 2006 (4) SCC
1.
(II) State of Karnataka & Ors. V. M.L. Kesari & Ors., 2010 (9) SCC 247.
(III) Narendra Kumar Tiwari V. The State of Jharkhand passed by the Apex Court in Civil Appeal Nos.7423-7429 of 2018 dated 01.08.2018.
(IV) State of Punjab V. Jagjit Singh reported in 2017 (1) SCC
148. 5.2 It was submitted that the learned Single Judge lost sight of the fact that the appellants-petitioners were appointed against sanctioned posts, after following due process of law. It is not even the case of the respondents that the appellants-petitioners were back door entrants or that they have been subjected to any departmental inquiry. Hence, the Page 6 of 17 Downloaded on : Fri Apr 02 01:03:26 IST 2021 C/LPA/1787/2019 CAVJUDGMENT respondents ought to have regularized the services of the appellants and granted them benefits as are being given to regular Government employees.
5.3 Learned advocate Mr. Parekh drew attention of the Court to the order passed by the learned Single Judge in Civil Application No.1 of 2019 in Special Civil Application No.11827 of 2019 dated 13.09.2019 where the term - "outsourcing agency" has been discussed and more particularly, on the observations made in paragraph-5, which reads thus:-
"5. Papers of the main petition were placed along with the Civil Application, therefore the record of the petition was perused. The attempt on part of the respondent authority to disown the services of the applicants who have been working under respondent - Governmental authority, by resorting to the method of outsourcing, could be said to be prima facie impermissible. Outsourcing the employees is conceptually and constitutionally incongruent with the concept of public employment. It amounts to abdication of duty by the State as an employer. Such a recourse prima facie stands in violation of principles and tenets of Articles 16 and 14 of the Constitution."
5.4 It was, accordingly, prayed that the impugned order passed by the learned Single Judge may be quashed and set aside and the respondents may be directed to regularize the services of the appellants-petitioners and to grant them regular pay-scale from the date when they had completed five years of regular service on the Post in question.
6. Learned AGP Ms. Vrunda Shah placed reliance upon an unreported decision rendered by the Coordinate Bench of this Court in the case of Krupesh C. Patel & others V. State of Gujarat passed in Letters Patent Appeal No.1108 of 2012 dated 22.09.2014 to point out that Page 7 of 17 Downloaded on : Fri Apr 02 01:03:26 IST 2021 C/LPA/1787/2019 CAVJUDGMENT no regularization or permanency in service could be asked for, contrary to any statutory provisions or guidelines, by allowing the services of employee/s working on temporary, ad-hoc or contractual basis to be regularized against sanctioned posts and the Court while taking into consideration such plea has also to keep in view the financial capacity of the local body and the additional burden which it would have to bear in case any regularization is granted.
7. Having heard the learned counsels for the respective parties, we find that the appointment of the appellants were made in pursuance of the Government Resolution dated 30.03.2007 issued by the Tribal Development Department, Government of Gujarat. By the said Government Resolution, it was resolved to establish Eight new "Uttarbuniyadi Ashram Shalas" during the Financial Year 2006-2007 with a Grant of Rs.163.41 Lacs. Such "Uttarbuniyadi Ashram Shalas"
shall be run as Grant-in-Aid Institutions with the object of imparting education to Schedule Tribe children living in areas falling under the Tribal Areas Development Scheme of the State. For the purpose of establishing Eight such "Uttarbuniyadi Ashram Shalas", it was also resolved to appoint four individuals in each of the Eight such "Uttarbuniyadi Ashram Shalas" to the Posts of Principal, Teaching Assistant, Peon and Cook respectively. In the present appeals, we are concerned with the Posts of Peon and Cook. According to the said Government Resolution, both the Posts of Peon and Cook carried the salary of Rs.1500/- per month and the appointment on both the Posts were to be made through "Outsourcing" in accordance with the Government Resolution dated 30.11.2006 issued by the General Administration Department, Government of Gujarat. The said Government Resolution dated 30.11.2006 issued by the General Page 8 of 17 Downloaded on : Fri Apr 02 01:03:26 IST 2021 C/LPA/1787/2019 CAVJUDGMENT Administration Department, Government of Gujarat provides for the appointment of persons on Class-IV posts on Contractual Basis through Outsourcing.
8. After the issuance of Government Resolution dated 30.03.2007 of the Tribal Development Development, Government of Gujarat, the Government of Gujarat in the Tribal Development Department issued another Government Resolution dated 25.05.2007, which provided details for the establishment of Eight new "Uttarbuniyadi Ashram Shalas" as proposed in the earlier Government Resolution dated 30.03.2007. According to the Government Resolution dated 25.05.2007, the "Uttarbuniyadi Ashram Shalas" were to be managed by "Voluntary Organizations" and such "Uttarbuniyadi Ashram Shalas" shall have the facilities of lodging and boarding for the students concerned. The names of Eight Institutions were also mentioned in the Government Resolution dated 25.05.2007, which were entrusted with the management of the newly constituted Eight "Uttarbuniyadi Ashram Shalas". Under the said Government Resolution dated 25.05.2007, the respondent No.6-Ashram Shala came to be established at Viraniya, Taluka : Morva-Hadaf, District : Panchmahals.
9. It appears from the record that after the establishment of respondent No.6-Ashram Shala, by Public Advertisements, applications were invited from candidates for appointment to different posts on fixed salary of Rs.1500/- per month for 11 months' contract. In pursuance of said advertisements, the respondent-authority undertook the recruitment process and thereafter, appointed the appellants-petitioners on the Posts of Head Cook and Peon vide appointment orders dated 10.08.2009 and 25.08.2011 respectively.
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10. Before we proceed further, it would be beneficial to refer to the exalted position of the rule of law in matters relating to public employment, which was emphasized by the Apex Court in its judgment rendered in the case of Secretary, State of Karnataka V. Uma Devi (supra). The observations made in paragraph-44 reads thus :-
"44. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. NARAYANAPPA (supra), R.N. NANJUNDAPPA (supra), and B.N. NAGARAJAN (supra), and referred to in paragraph 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of 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 subjudice, 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."
11. Similar view was taken in a subsequent decision of the Apex Court in the case of State of Karnataka and others v. M. L. Kesari and others (supra) wherein, the Court has made the following observations:-
"5. It is evident from the above that there is an exception to the Page 10 of 17 Downloaded on : Fri Apr 02 01:03:26 IST 2021 C/LPA/1787/2019 CAVJUDGMENT general principles against `regularization' enunciated in Umadevi, if the following conditions are fulfilled :
(i) The employee concerned should have worked for 10 years or more in duly sanctioned post without the benefit or protection of the interim order of any court or tribunal. In other words, the State Government or its instrumentality should have employed the employee and continued him in service voluntarily and continuously for more than ten years.
(ii) The appointment of such employee should not be illegal, even if irregular. Where the appointments are not made or continued against sanctioned posts or where the persons appointed do not possess the prescribed minimum qualifications, the appointments will be considered to be illegal. But where the person employed possessed the prescribed qualifications and was working against sanctioned posts, but had been selected without undergoing the process of open competitive selection, such appointments are considered to be irregular.
Umadevi casts a duty upon the concerned Government or instrumentality, to take steps to regularize the services of those irregularly appointed employees who had served for more than ten years without the benefit or protection of any interim orders of courts or tribunals, as a one-time measure. Umadevi, directed that such one-time measure must be set in motion within six months from the date of its decision (rendered on 10.4.2006)."
12. In Narendra Kumar Tiwari and others V. The State of Jharkhand and others (supra), the Apex Court has made the following observations:-
"8. The purpose and intent of the decision in Umadevi (3) was therefore two-fold, namely, to prevent irregular or illegal appointments in the future and secondly, to confer a benefit on those who had been irregularly appointed in the past. The fact that the State of Jharkhand continued with the irregular appointments for almost a decade after the decision in Umadevi (3) is a clear indication that it believes that it was all right to continue with irregular appointments, and whenever required, terminate the Page 11 of 17 Downloaded on : Fri Apr 02 01:03:26 IST 2021 C/LPA/1787/2019 CAVJUDGMENT services of the irregularly appointed employees on the ground that they were irregularly appointed. This is nothing but a form of exploitation of the employees by not giving them the benefits of regularisation and by placing the sword of Damocles over their head. This is precisely what Umadevi (3) and Kesari sought to avoid."
13. In the case of State of Punjab V. Jagjit Singh, 2017 (1) SCC 148, the Apex Court referred to the observations made by a Five-Judge Bench of its Court in the judgment delivered in the case of D.S. Nakara v. Union of India, (1983) 1 SCC 305 and made the following observations:-
"8. D.S. Nakara v. Union of India, (1983) 1 SCC 305, decided by a five-Judge Constitution Bench: It is not necessary for us to narrate the factual controversy adjudicated upon in this case. In fact, the main issue which arose for consideration pertained to pension, and not to wages. Be that as it may, it is of utmost importance to highlight the following observations recorded in the above judgment:-
"32. Having succinctly focused our attention on the conspectus of elements and incidents of pension the main question may now be tackled. But, the approach of court while considering such measure is of paramount importance. Since the advent of the Constitution, the State action must be directed towards attaining the goals set out in Part IV of the Constitution which, when achieved, would permit us to claim that we have set up a welfare State. Article 38(1) enjoins the State to strive to promote welfare of the people by securing and protecting as effective as it may a social order in which justice - social, economic and political shall inform all institutions of the national life. In particular, the State shall strive to minimise the inequalities in income and endeavour to eliminate inequalities in status, facilities and opportunities. Art. 39 enjoins a duty to see that there is equal pay for equal work for both men and women and this directive should be understood and interpreted in the light of the judgment of this Court in Randhir Singh v. Union of India & Ors., (1982) 1 SCC 618."Page 12 of 17 Downloaded on : Fri Apr 02 01:03:26 IST 2021
C/LPA/1787/2019 CAVJUDGMENT
14. It is the say of respondent - Commissioner of Tribal Development that the appointment of the appellants is governed by the Government Resolution dated 30.03.2007 and that as per the said Government Resolution, the appointment of the appellants was for 11 months' contract on fixed salary of Rs.1500/- per month. The said appointments were made through "Outsourcing", as provided in the Government Resolution dated 30.11.2006 of the General Administration Department, Government of Gujarat. It is to be noted that along with the Memo of petitions, the appellants-petitioners have produced on record the Rojkam as also the Select Lists of successful candidates. As per the Select Lists, both the appellants-petitioners were placed at Serial No.1 in the respective lists and accordingly, they were issued the orders of appointment. In the said orders of appointment, it is clearly mentioned that the appellants- petitioners were appointed on fixed salary of Rs.1500/- per month for 11 months' contract . Thus, it is evident from the above documents that the appellants were appointed on the Posts in question after following due process of law and that their appointment was on fixed salary of Rs.1500/- per month for 11 months' contract. It is not even the case of the respondents that the appointment of the appellants was irregular or for that matter, they were back-door entrants. Thus, the appellants-petitioners were appointed after following due process of law and it cannot be said that their appointment was improper or illegal.
15. At this stage, it would be pertinent to note that the respondents have not produced any document on record to show the details of the "Outsourcing Agency", through which the recruitment process is said to have been undertaken. The expression "Outsourcing" used in the Government Resolution dated 30.11.2006 has been misused by the Page 13 of 17 Downloaded on : Fri Apr 02 01:03:26 IST 2021 C/LPA/1787/2019 CAVJUDGMENT respondent-authorities by using it as a veil to cover the rights of the person who is appointed. From the documents on record, particularly, the Rojkam and the Select Lists, it appears that the appellants-petitioners had undergone the recruitment process initiated by the respondent No.6- Ashram Shala and they both were found to be more meritorious as compared to other candidates, as they were placed at Serial No.1 in the respective Select Lists. Though the respondent No.6-Ashram Shala was aware of the fact that the recruitment process was to be undertaken by the "Outsourcing Agency", it initiated the recruitment process by itself and also issued the orders of appointments to the appellant-petitioners at the end of such recruitment process. Thereafter, the appellants joined the services and since then, have been rendering continuous service on extension of their contractual period from time to time. It is pitiable that though the appellants had rendered continuous service for about 10 and 12 years respectively, the respondent No.6-Ashram Shala never cared to espouse the cause of the appellants-petitioners for regularization of their service or for granting them the benefit of regular pay-scale, as provided in the Government Resolutions dated 16.02.2006 and 18.01.2017, both of the Finance Department, Government of Gujarat. In fact, it is shocking and disturbing that the Office of respondent No.4-Commissioner of Tribal Development, which is entrusted with the work of improving the standard of living of people belonging to the backward communities and living in the tribal areas, has ignored the socio-economic status of the employees working in the respondent-Ashram Shalas established for imparting education to children belonging to Schedule Tribe community living in the tribal areas.
16. The appellants-petitioners have categorically pleaded that they have been serving as temporary employees of respondent No.6-Ashram Page 14 of 17 Downloaded on : Fri Apr 02 01:03:26 IST 2021 C/LPA/1787/2019 CAVJUDGMENT Shala since last several years on fixed monthly salary of Rs.1500/- on contractual basis. To fortify their claim regarding receipt of salary, the appellants have produced on record the Receipts issued by the respondent No.6, which have not been denied by the other side. It is an admitted position that though the initial appointment of the appellants-petitioners was for 11 months' contract, the same was extended from time to time and we are informed that the appellants-petitioners are continued in service even as on date.
17. The appellants-petitioners have claimed benefits under the Government Resolution dated 16.02.2006 on the ground that one similarly situated employee, named Ms. Saraswatiben Vishnubhai Patel, who is serving as Kitchen Assistant, has been given benefit of Government Resolution dated 16.02.2006 under which the employee concerned was granted benefit of regular pay-scale after rendering five years' of service on the initial post of appointment on fixed salary basis. The appellants have produced on record a copy of the order dated 29.06.2010 issued in the name of said employee - Ms. Saraswatiben Vishnubhai Patel, which shows that the concerned employee was appointed as Kitchen Assistant in "Aadivasi Ashram Shala" at Danta, District : Banaskantha on fixed salary of Rs.1500/- per month and that a proposal dated 28.06.2010 had been forwarded by the Ashram Shala Adhikari, Gandhinagar to the competent authority for the grant of regular pay-scale to the said employee. The order dated 29.06.2010 further states that the employee concerned was appointed on 13.06.2005 and had rendered five years' of service as on 12.06.2010 and therefore, sanction is granted to award the regular pay-scale of Rs.2550-55-2660-60-Rs.3200 to the said employee. The appellants have claimed that though they are similarly situated, they have been meted out a discriminatory treatment Page 15 of 17 Downloaded on : Fri Apr 02 01:03:26 IST 2021 C/LPA/1787/2019 CAVJUDGMENT by not extending the benefit of regular pay-scale to them, as provided under the Government Resolution dated 16.02.2006. It is to be noted that the respondents have conveniently chosen not to file any Affidavit-in- reply in these matters denying the above facts.
18. Considering the facts of the case in the backdrop of the principle laid down in the above decisions, it cannot be said that the appointment of the appellants-petitioners was illegal or for that matter, irregular. As discussed in the foregoing paragraphs, the appellants-petitioners were appointed in pursuance of a public advertisement and after following due process of recruitment. Moreover, it is not even the case of the respondent-authority that the appointments of the appellants-petitioners was illegal or irregular. The appellants were appointed on fixed salary for eleven months' period, which was extended from time to time and both the appellants were continued in employment much beyond their original term of appointment. Further, the appellants have been meted out a discriminatory treatment at the hands of the respondents inasmuch as their services have not been regularized, even though they satisfy the criteria laid down by the Apex Court in the case of State of Karnataka V. Umadevi's (supra) nor they have been granted benefit of regular pay-scale on completion of five years' service, as provided in the Government Resolution dated 16.02.2006, which benefit has already been extended to other similarly situated employee. Considering the principle laid down by the Apex Court in the above decisions and the facts of the case, we are of the opinion that the case of the appellant-petitioners deserves consideration for regularization.
19. For the foregoing reasons, both the Letters Patent Appeals are partly allowed. The impugned order of even date passed by the learned Page 16 of 17 Downloaded on : Fri Apr 02 01:03:26 IST 2021 C/LPA/1787/2019 CAVJUDGMENT Single Judge in Special Civil Application Nos.17767 of 2019 and 17766 of 2019 dated 14.10.2019 are quashed and set aside. The respondent- authorities are directed to consider the case of both the appellants- petitioners for the grant of Regular Pay-scale in light of the principle laid down by the Apex Court in the above decisions and the Government Resolutions dated 16.02.2006 and 18.01.2017 of the Finance Department, Government of Gujarat. The respondents shall undertake the process of regularization and shall complete the same within a period of Three Months from today. Consequently, the Civil Applications stand disposed of.
( SONIA GOKANI,J ) ( GITA GOPI, J ) FURTHER ORDER After the order was pronounced, the learned AGP requested for stay of this order for a period of four weeks. However, since the respondents have been granted Three Months' time for implementing the directions issued in this judgment, we do not deem it necessary to stay the operation and implementation of this judgment, as prayed by the learned AGP. Hence, the request is rejected.
( SONIA GOKANI,J ) ( GITA GOPI, J ) PRAVIN KARUNAN Page 17 of 17 Downloaded on : Fri Apr 02 01:03:26 IST 2021