Gujarat High Court
State Of Gujarat vs Vinodbhai Shivrambhai Rathod on 9 May, 2019
Author: Anant S. Dave
Bench: Anant S. Dave, Biren Vaishnav
C/LPA/1155/2019 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 1155 of 2019
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===============================================
STATE OF GUJARAT & 2 other(s)
Versus
VINODBHAI SHIVRAMBHAI RATHOD & 64 other(s)
===============================================
Appearance:
GOVERNMENT PLEADER(1) for the Appellant(s) No. 1,2,3
MS VIDHI J BHATT(6155) for the Respondent(s) No.
1,10,11,12,13,14,15,16,17,18,19,2,20,21,22,23,24,25,26,27,28,29,3,30,3
1,32,33,34,35,36,37,38,39,4,40,41,42,43,44,45,46,47,48,49,5,50,51,52,5
3,54,55,56,57,58,59,6,60,61,62,63,64,65,7,8,9
===============================================
CORAM: HONOURABLE THE ACTING CHIEF JUSTICE ANANT S.
DAVE
and
HONOURABLE MR.JUSTICE BIREN VAISHNAV
Date : 09/05/2019
ORAL ORDER
(PER : HONOURABLE THE ACTING CHIEF JUSTICE ANANT S. DAVE)
1. Upon condoning delay in each of the applications, in all these appeals of State of Gujarat we are appraised of hearing of these appeals on merit in view of limited directions given by learned Single Judge in exercise of powers under Article 226 of the Constitution of India to grant all the employees/original petitioners wages at the minimum of the pay-scale i.e. at the lowest grade-pay in the regular pay-scale as extended to the regular employees holding the same Page 7 of 26 Downloaded on : Mon Jul 01 00:15:24 IST 2019 C/LPA/1155/2019 ORDER post, after a careful scrutiny of facts about individual employees serving with the department after undergoing regular selection procedure upon summoning their names from employment exchange and serving for more than 11 to 16 years in the respective community health centres of department of health of State of Gujarat in the tribal areas, we have decided to hear the appeals at the stage of admission with consent of learned Government Pleader for the State of Gujarat and learned counsel for respondents/petitioners..
2. Certain facts as emerge on record about petitioners who are class-IV part employees working with community health centres in different districts under the Commissioner of Health, Medical Services and Medical Education of the State of Gujarat on the post of sweepers, watchman, peon, ward boy serving continuously for more than 10 years after undergoing valid selection procedure as stated in earlier paragraph by calling their names from the employment exchange and holding the interview of the selected candidates, issued appointment letters that all the employees were selected as part- time employees in Class-IV category initially for 29 days on a fixed pay-scale of Rs.1350/- depending on number of hours for which such employees would perform their duties and to be paid from contingency fund with a rider that no claim for permanency or any other right for regularization will be entertained in future nor even request could be granted to sanction the post in future.
3. All the petitioners are rendering their services with respondents without there being any complaint about discharge of their duties at community health centres. Such duties include a sweeper is supposed to assist at the time of inspection and postmortem to be carried out of dead bodies and cleaning wash room and other facilities at such community health centres. Likewise, all other employees serving as a Page 8 of 26 Downloaded on : Mon Jul 01 00:15:24 IST 2019 C/LPA/1155/2019 ORDER peon, watchman, ward-boy and midwife were supposed to perform their duties in addition to what were prescribed in their appointment letters so suggested by superior officer. According to the petitioner, part time is simply a nomenclature but they were supposed to work as full time employee, since, nature of duty was such that their services extended beyond 8 to 10 hours. Their substantial grievance was against continuous exploitation by a modern and welfare State in restricting their wages and benefits towards equal pay for equal work. Accepting the reality about raising any grievance towards permanency and regularization would result to rendering them jobless and therefore against apprehended termination, they had taken recourse to this Court by filing writ petition under Article 226 of the Constitution of India by taking manifold contentions. Even they have ventilated their grievances for minimum wages i.e. to be paid to petitioners were also not paid and against entitlement on at least Rs.8000/- p.m. they were paid meager sum of Rs.1350/- p.m. and attempts were made to employee agencies by outsourcing their work and thus, replacing the petitioners with another set of employees from outside agencies so as to deprive them of bare minimum livelihood is guaranteed under Article 21 of the Constitution of India by State authorities. Some of the petitioners challenged their termination after rendering years of service without any break as arbitrary, unreasonable and violative of Article 14 of the Constitution of India.
4. Learned Single Judge upon adverting to facts in the contention of prayers made in the writ petition and relying on decision of the Apex Court in the case of State of Punjab vs. Jagjit Singh reported in (2017) 1 SCC 148 and other such decisions applied, Government Resolutions qua entitlement of fixed salary by the petitioners and payment to be made as part-timers from the contingency fund of Rs.1350/- p.m. and admitted fact remained that none of the Page 9 of 26 Downloaded on : Mon Jul 01 00:15:24 IST 2019 C/LPA/1155/2019 ORDER petitioners discharged duties for less than 6 hours. Further, it was noticed that all the names were called from employment exchange and upon undergoing valid selection procedure they were selected and appointed by imposing certain conditions which was atrocious and continuation of such condition for more than 10 to 16 years in cases of almost all employees and such action from the respondents was found contrary to articles 14 and 21 of the Constitution of India and by negativing the claim of the petitioners-employees towards regularization and absorption directed respondent authorities to pay minimum of pay-scale in the lowest pay grade which was extended to regular employees holding the same post and further directions were given with similarly situated employees like the petitioners be also given such benefits though they had not approached the Court invoking powers under Article 226 of the Constitution of India and further petitioners were held to be not entitled to the arrears of salary for the post service but such minimum pay-scale was to be paid to the petitioner w.e.f. 1.1.2019 and those employees whose services were directed to be taken back on the same post for the same duties.
5. Learned AGP appearing for the appellant-State would vehemently contend that such directions issued by learned Single Judge were contrary to law and part-timers could not have claimed any permanency or regularization and absorption in the job and even parity in pay-scale on par with regular employees. It is submitted that the letter of appointment issued to each of the petitioners was more than specific that such an appointment was a part-time for a limited period of 29 days of getting fixed pay-scale of Rs.1350/- p.m. without entailing any right for claiming permanency or regularization or seeking any direction to confer the post as part of sanctioned establishment. Further such service was to be terminated by the appointing authority depending on administrative exigency when it Page 10 of 26 Downloaded on : Mon Jul 01 00:15:24 IST 2019 C/LPA/1155/2019 ORDER was not required. It is further submitted that by issuing directions qua impugned order, learned Single Judge held to the extent that no material qua individual workmen about service rendered by such workmen meaning thereby nature of duties discharged as such number of hours, for which, such an employee was employed, facts about individual employee whether warranted and justification for awarding minimum service etc. was available but still directions were issued which deserves to be interfered with. At the most, authority could have been directed to examine and consider individual case based on the service record available and applicability of relevant rule entailing such an employee or receiving minimum of pay-scale in a lowest grade pay on par with regular employee. Further, by drawing our attention to prayers of the writ petition it is submitted that nowhere such claim or demand was made by the employee towards regularization or parity of pay-scale but challenge was made to Government Resolution dated 25.4.2012 and at the most prayer was not to terminate the services of the petitioners as part-timers. Learned AGP would also contend that even some of the employees who had approached this Court by filing Special Civil Application No.1388 of 2009 wherein interim order dated 4.2.2010 was passed wherein it was made clear that such petitioners shall not claim any equity under the guise of interim order. Considering the facts, viz. number of hours, for which, each of the petitioners discharge the duty they were entitled to fix wages of Rs.1350/- and resolution was passed as early as on 10.2.2006 wherein powers of appointment and wages to the part time workers across the State was withdrawn but at the same time considering exigencies in a case part-time employees were allowed to perform their duties strictly in accordance with conditions incorporated in the order of appointment. Learned AGP has further contended that under no circumstances part-time employees could have been equated with regular employees and thus Page 11 of 26 Downloaded on : Mon Jul 01 00:15:24 IST 2019 C/LPA/1155/2019 ORDER awarding minimum pay-scale in the lowest pay grade was not justified in view of decision of the Apex Court in the case of State of Tamil Nadu through Secretary to Government, Commercial Taxes and Registration Department, Secretariat and another vs. A.Singamuthu reported in (2017) 4 SCC 113 wherein the Apex Court reiterated that part-time or casual employment is meant to serve exigencies of administration and continuance in such service for long period confers no right to regularization especially when scheme of regularization is missing from rule-book and regularization casts huge financial implications on public exchequer. The Apex Court relied on earlier decision including the case of State of Karnataka vs. Uma Devi (2006) 4 SCC 1, State of Rajasthan vs. Daya Lal (2001) 2 SCC 429 and in para 12 of the above judgement wherein factors I to V are governing scope of powers under Article 226 of the Constitution of India, wherein prayer is for seeking regularization and permanency with equal pay and equal work with regular employees and part-time or casual employees, who are not working against any sanctioned post no direction can be given for absorption, regularization or permanency of part-time employees and also parity in pay-scale with regular employees of the Government to part-time employees in Government run institutions cannot be given.
5.1. It is therefore submitted that order impugned deserves to be quashed and set aside.
6. As against above, Mr. Shalin Mehta, learned senior counsel appearing with Ms. Vidhi Bhatt, learned advocate appearing on behalf of respondents and original writ petitioners would contend that prayer of the writ petitioners is strictly and only to the extent of grant of minimum of pay-scale in the lowest pay-grade which is payable to regular employees and no other benefits. Even such benefits are Page 12 of 26 Downloaded on : Mon Jul 01 00:15:24 IST 2019 C/LPA/1155/2019 ORDER extended only w.e.f. 1.1.2019 taking away arrears of salary and other back-wages qua those employees whose services came to be terminated and ordered to be reinstated. By taking us about merit of the case it is emphatically reiterated about mode of recruitment of calling names of the petitioners from employment exchange and after holding interviews, the candidates were selected and appointments were given. It is submitted that all the employees continuously and uninterruptedly discharged their duties with utmost sincerity and performed all those tasks in community health centres in remote tribal areas, either as sweepers, watchmen, peon, ward boys and midwife for more than six hours and by paying meager payment of Rs.1350/- p.m. which was less than even minimum wages and minimum of pay-scale and, therefore, the challenge was made to Government Resolution dated 25.4.2012 wherein services of the part- time was sought to be dis-continued by replacing them with ad-hoc employees by out-sourcing through agency selected by the State of Gujarat. Initially period of 29 days later on extended for six months and continuity from time to time resulting into breach of constitutional rights of the petitioners under Article 14 of the Constitution of India in arbitrary and unreasonable manner depriving them of basic and bare minimum wages resulting into approaching this Court under Article 226 of the Constitution of India where limited relief is granted to them which is in consonance with law laid down by the Apex court in the case of State of Punjab vs. Jagjit Singh (supra) and no prayer is granted as submitted for permanency or regularization though rendered services for more than 10 to 16 years respectively.
7. Our attention is also drawn to two decisions of this Court rendered by Division Bench wherein similar such cases of fixed salary to part-timers who continued in service for years together and Page 13 of 26 Downloaded on : Mon Jul 01 00:15:24 IST 2019 C/LPA/1155/2019 ORDER deprived them of even minimum of pay-scale/wages such practice were held in Letters Patent Appeal No.107 of 2009 and Writ Petition (PIL) No.244 of 2014.
8. In Writ Petition (PIL) No.244 of 2014 Division Bench addressed with a plight of part-timers and fixed term and salaried employees who received fixed amount of Rs.1350/- for performing duties for six hours and continued as such for about 15 long years and addressing to revision of pay Rules 2009 vis-a-vis Article 21 of the Constitution of India and duties cast upon State authorities in Chapter IV part IV of Constitution of India under the head of Directive Principles of State Policy were Article 43 provides the State to make all endevours to secure all suitable legislation that all workers received atleast a living wage and just conditions of working. Further in the judgement reliance was placed on decision of Hindustan Lever Limited v. B.N.Dongre and Ors. reported in AIR 1995 SC 817 wherein Apex Court explained the importance of wages in the life of the working class against price rise of basic requirements of food, clothing and shelter apart from educational and medical expenses to be borne out for children and family members.
8.1. It is accordingly submitted that reasons assigned by learned Single Judge for awarding minimum of pay-scale in lowest pay-scale do not deserve any interference at the end of this Court.
9. Having regard to the facts and circumstances and further submissions made by learned AGP and learned Senior counsel for the respondents-original petitioners vis-a-vis record of this appeal which contains original record of writ petitions with pleadings and the impugned order passed by learned Single Judge in the context of contention raised by learned AGP about absence of material before Page 14 of 26 Downloaded on : Mon Jul 01 00:15:24 IST 2019 C/LPA/1155/2019 ORDER learned Single Judge about individual service record of the petitioners for a ready reference we may produce relevant extracts of service history of each of the petitioners in a tabular form which would reveal nature of duties and number of years, for which, each of the petitioners rendered the service and received the salary through out such period.
Sr. Name Place of work Date of Date of Desig. Year of Hrs Salary
No birth Joining Service of
. Work
1 Vinodbhai Community 13.5.1972 05/09/01 sweeper 11 yrs 6 hrs 1350
Shivrambhai Health Centre, fix
Rathod Thol, Taluka
Kadi,
Dist.Mehsana
2 Vinubhai Community 22.4.1968 13.9.1996 Sweeper 15 yrs 6 hrs 1350
Dahyabhai Health Centre, fix
Bhangi Choriwad
Taluka Vadali,
Dist.S.K.
3 Bhangi Community 03/10/77 08/05/02 Sweeper 10yrs 6 hrs 1350
Kanubhai Health Centre, fix
Ranchhodbh Langanaj, Taluka
ai Dist. Mehsana
4 Solanki Community 07/07/72 07/07/00 Watchman 12 yrs 6 hrs 1350
Rameshbhai Health Centre, fix
Pataji Vijaynagar, Tal.
Vijaynagar,
DistL S.K.
5 Pateliya Community 15.6.1972 07/07/00 Watchman 12 yrs 6 hrs 1350
Babubhai Health Centre, fix
Tejabhai Vijaynagar,
Tal.Vijaynagar,
Dist.S.K.
6 Parmar Community 01/02/72 04/02/97 Sweeper 15 yrs 6 hrs 1350
Madhuben Health Centre, fix
Ranchhodbh Vav Tal. Van,
ai Dist. B.K.
7 Bhutediya Community 15.8.1969 04/02/97 Sweeper 15 yrs 6 hrs 1350
Maganbhai Health Centre, fix
Ishwarbhai Vav, Tal. Vav,
Dist. B.K.
8 Sureshkumar Community 01/06/74 04/02/97 Watchman 15 yrs 6 hrs 1350
Ishwarji Health Centre, fix
Pandya Vav, Tal. Vav,
Dist. B.K.
9 Navabhai Community 01/06/72 26.3.1996 Sweeper 16 yrs 6 hrs 1350
Kantibhai Health Centre,, 4 fix
Bhangi Vijapur, Tal. months
Vijapur, Dist.
Mehsana
10 Solanki Community 01/06/70 19.5.1999 Sweeper 14 yrs 6 hrs 1350
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Kanubhai Health fix
Sanabhai Centre,Kolavada,
Taluka Vijapur,
Dist.Mehsana
11 Shrimali Community 01/06/72 04/09/01 Watchman 11 yrs 6 hrs 1350
Mahendrabha Health Centre, fix
i Ramjibhai Thol, Tal. Kadi
Dist. Mehsana
12 Bhangi Community 01/06/73 03/10/97 Sweeper 15 yrs 6 hrs 1350
Jesangbhai Health fix
Mafabhai Centre,Kahoda,
Ta:Unjha,
Dist.Mehsana
13 Parmar Community 01/06/64 07/10/97 Watchman 15 yrs 6 hrs 1350
Bhagabhai Health fix
Jethabhai Centre,Kahoda,
Tal. Unjha,
Dist.Mehsana
14 Bhangi Community 01/06/76 05/04/97 Sweeper 15 yrs 6 hrs 1350
Khemabhai Health fix
Abhubhai Centre,Sander,
Ta:Patan
Dist.Patan
15 Shambhubhai Community 27.3.1967 07/10/97 Watchman 15 yrs 6 hrs 1350
B.Pandya Health Centre, fix
Kahoda, Taluka
Unjha,
Dist.Mehsana
16 Dashrathbhai Community 01/06/69 19.5.1999 Sweeper 13 yrs 6 hrs 1350
Mohanbhai Health Centre, fix
Bhangi Kheralu,
Ta:Kheralu, Dist.
Mehsana
17 Chenva Community 01/06/67 13.9.1996 Watchman 15 yrs 6 hrs 1350
Raghabhai Health Centre, fix
Ramabhai Choriwad
Taluka Vadali
Dist. S.K.
18 Madhuben Community 29.1.1970 13.9.1996 Sweeper 15 yrs 6 hrs 1350
Ramabhai Health Centre, fix
Solanki Tal. Vadali Dist.
(Bhangi) S.K.
19 Parmar Community 01/06/66 07/03/97 Watchman 15 yrs 6 hrs 1350
Sureshbhai Health Centre, 2 fix
Hirabhai Tal. Kheralu, months
Dist. Mehsana
20 Chandrakant Community 13.5.2002 Watchman 10 yrs 6 hrs 1350
bhai Health Centre, fix
Kantibhai Udalpur, Ta:
Parmar Visnagar,
Dist.Mehsana
21 Rajendrakum Community 07/01/80 11/05/02 Peon 10 yrs 8 hrs 1350
ar Premjibhai Health Centre, fix
Parmar Satlasana
Ta:Satlasana,
Dist.Mehsana
22 Pandya Community 23.11.1973 26.3.1996 Watchman 15 yrs 6 hrs 1350
Dhirajbhai Health fix
Bhavanishan Centre,Dhansura
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kar , Ta:Dhansura,
Dist: S.K.
23 Narendrabhai Community 28.2.1970 21.3.1996 Watchman 15 yrs 6 hrs 1350
Poonambhai Health Centre, fix
Solanki Dhansura, Ta:
Dhansura,
Dist.S.K.
24 Taraben Community 01/06/67 22.3.1996 Sweeper 15 yrs 6 hrs 1350
Punabhai Health Centre, fix
Bhangi Dhansura,
Tal.Dhansura,
Dist.S.K.
25 Bhangi Community 04/04/75 26.3.1995 Sweeper 15 yrs 6 hrs 1350
Bharatkumar Health Centre, fix
Girishbhai Dhansura, Tal.
Dhanshura,
Dit.S.K.
26 Nitaben Community 01/06/72 31.5.1999 Sweeper 13 yrs 6 hrs 1350
Kalidas Health Centre, fix
Makwana Kolvada,
(Gerita),
Tal.Vijapur,
Dist.Mehsana
27 Minaxiben Community 28.9.1960 09/11/00 Sweeper 12 yrs 6 hrs 1350
Danjibhai Health Centre, fix
Rathod Dholaka, Dist.
Ahmedabad
28 Vinubhai Community 02/05/72 29.5.1999 Sweeper 13 yrs 6 hrs 1350
Kacharbhai Health Centre, fix
Solanki Gabhoi,
Tal.Himmatnaga
r Dist. S.K.
29 Magansinh Community 09/03/72 29.5.1999 Watchman 13 yrs 6 hrs 1350
Kubersinh Health Centre, fix
Makwana Gabhoi,
Tal:Himmatnaga
r, Dist.S.K.
30 Jayrambhai N Community 01/06/69 10/07/97 Watchman 15 yrs 6 hrs 1350
Desai Health Centre, fix
Harji, Dist. Patan
31 Purohit Community 01/06/78 13.5.2002 Watchman 10 yrs 6 hrs 1350
Prakashkuma Health Centre, fix
r Mohanlal Jafarabad,
Tal.Jafarabad,
Dit. Amreli
32 Laljibhai Community 05/06/75 13.5.2002 Sweeper 10 yrs 6 hrs 1350
Lakhabhai Health Centre, fix
Garaniya Jafarabad,
Tal.Jafarabad,
Dist. Amreli
33 Devayatbhai Community 08/01/76 05/09/02 Watchman 10 yrs 6 hrs 1350
Jagabhai Health Centre, fix
Bambhaniya Jafrabad,
Tal.Jafarabad,
Dist. Amreli
34 Manojbhai Community 05/01/74 13.5.2002 Sweeper 10 yrs 6 hrs 1350
Dhudabhai Health Centre, fix
Chauhan Jafarabad, Tal.
Jafarabad, Dist.
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Amreli
35 Ranjanben Community 17.8.1972 27.10.199 Sweeper 15 yrs 6 hrs 1350
Hirabhai Health Centre, 7 fix
Jethwa Bagasara
Tal.Bagasara,
Dist. Amreli
36 Jayaben Community 01/06/72 28.10.199 Sweeper 15 yrs 6 hrs 1350
Valjibhai Health Centre, 7 fix
Dumreliya Bagsara, Tal.
Bagasara, Dist.
Amreli
37 Ibrahimbhai Community 30.11.1971 18.10.199 Watchman 15 yrs 6 hrs 1350
Bahadurkha Health Centre, 6 fix
Agalani Babra, Tal.
Babra, Dist.
Amreli
38 Karsanbhai Community 13.2.1970 18.10.199 Sweeper 16 yrs 6 hrs 1350
Bachubhai Health Centre, 6 fix
Parmar Babra, Tal.Babra,
Dist.Amreli
39 Hasmukhraj Community 03/12/74 18.10.199 Watchman 16 yrs 6 hrs 1350
Pravinbhai Health Centre, 6 fix
Kariya Babra, Tal.Babra,
Dist.Amreli
40 Suru Community 08/03/72 25.3.1996 Watchman 16 yrs 6 hrs 1350
Nareshdan Health Centre, fix
Balubhai Bhesan,
Tal.Bhesan,
Dist.Junagadh
41 Shardaben Community 07/02/72 03/11/98 Sweeper 15 yrs 6 hrs 1350
Valjibhai Health fix
Vaghela Centre,Bhesan,
Tal.Bhesan,
Dist.Junagadh
42 Gorhil Community 01/06/75 12/08/96 Watchman 16 yrs 6 hrs 1350
Bhadreshbhai Health fix
Hamirbhai Centre,Taluka
Khambha,
Dist.Amreli
43 Nagjibhai Community 26.9.1971 22.3.1996 Watchman 16 yrs 6 hrs 1350
Narsinhbhai Health Centre, fix
Virani Bhesan, Dist.
Junagadh
44 Divyakant Community 04/07/72 13.7.2000 Watchman 11 yrs 6 hrs 1350
Jethalal Health Centre, 10 fix
Dhudhai Vichchiya, months
Tal.Jasdan,
Dist.Rajkot
45 Rameshbhai Community 01/05/75 15.7.2000 Watchman 11 yrs 6 hrs 1350
Manjibhai Health Centre, 10 fix
Makwana Vichchiya, months
Tal.Jasdan
Dist.Rajkot
46 Bharatbhai Community 14.7.1974 18.7.2000 Sweeper 11 yrs, 6 hrs 1350
Harjibhai Health Centre, 10 fix
Gadhadara Vichchiya, months
Tal.Jasdan, Dist.
Rajkot
47 Sukhabhai Community 08/07/72 17.7.2000 Sweeper 11 yrs 6 hrs 1350
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Godadbhai Health Centre, 10 fix
Chavda Vichchiya, months
Tal.Jasdan, Dist.
Rajkot
48 Poonamben Community 19.4.1981 19.1.2004 Aaya 8 yrs 6 hrs 1350
Revabhai Health Centre, fix
Rathod Thol. Tal.Kadi,
Dist.Mehsana
49 Kamlaben Community 28.3.1977 15.1.2004 Sweeper 8 yrs 6 hrs 1350
Bachubhai Health Centre, fix
Pandya Thol, Tal.Kadi,
Dist.Mehsana
50 Makwana Community 02/09/82 26.6.2002 Watchman 10 yrs 6 hrs 1350
Girishbhai Health Centre, fix
Nathabhai Kolithad, Tal.
Gondal,
Dist.Rajkot
51 Kantilal Community 18.11.1969 09/10/96 Watchman 16 yrs 6 hrs 1350
Ambabhai Health Centre, fix
Dafda Kotda Sanghani,
tal. Kotda
Sanghnai,
Dist.Rajkot
52 Pravinbhai Community 30.11.1970 16.6.2000 Watchman 16 yrs 6 hrs 1350
Rughnath Health Centre, fix
Devmurari Dwarka,
Tal.Dwarka,
Dist.Jamnagar
53 Somjibhai Community 13.9.1970 27.3.1996 Watchman 16 yrs 6 hrs 1350
Pehtabhai Health Centre, fix
Parmar Dwarka,
Tal.Dwarka,
Dist.Jamnagar
54 Razakbhai Community 20.9.1976 08/04/96 Watchman 16 yrs 6 hrs 1350
Allarakhabha Health Centre, fix
Chotiyara Una, Tal.Una,
Dist.Junagadh
55 Smt.Ramilabe Community 29.8.1967 11/05/98 Sweeper 15 yrs 6 hrs 1350
n Govindbhai Health Centre, fix
Chauhan Una, Tal.Una,
Dist.Junagadh
56 Dipakbhai Community 01/06/77 03/08/01 Watchman 11 yrs 6 hrs 1350
Kalabhai Health Centre, fix
Makwana Una, Tal.Una,
Dist.Junagadh
57 Vaja Community 11/01/77 01/04/02 Wardboy 10 yrs 8 hrs 1350
Premjibhai Health Centre, fix
Devshibhai Girgadhada,
Tal.Una,
Dist.Junagadh
58 Gohel Community 10/02/80 02/04/02 Sweeper 10 yrs 8 hrs 1350
Rajubhai Health Centre, fix
Bachubhai Girgadhada,
Tal.Una, Dist.
Junagadh
59 Sakhat Community 01/05/78 03/04/02 Wardboy 10 yrs 8hrs 1350
Dhirubhai Health Centre, fix
Hamirbhai Girgadhada, Tal.
Una,
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Dist.Junagadh
60 Kotadiya Community 31.8.1978 15.7.2001 Watchman 11 yrs 6 hrs 1350
Prakashbhai Health Centre, fix
Hamirbhai Girgadhada, Tal.
Una,
Dist.Junagadh
61 Gohel Community 05/04/79 14.7.2001 Watchman 11 yrs 6 hrs 1350
Jitubhai Health Centre, fix
Bhagwanbhai Girgadhada,
Tal.Una,
Dist.Junagadh
62 Parmar Community 11/04/81 13.7.2001 Sweeper 11 yrs 6 hrs 1350
Devshibhai Health Centre, fix
Dahyabhai Girgadhada,
Tal.Una,
Dist.Junagadh
63 Parmar Community 20.5.1973 16.7.2001 Sweeper 11 yrs 6 hrs 1350
Samuben Health fix
Karsanbhai Centre,Girgadha
da, Tal.Una,
Dist.Junagadh
64 Bhangi Community 01/06/71 01/07/97 Sweeper 14 yrs, 6 hrs 1350
Jasiben Health Centre, 11 fix
Gabhabhai Harji, Tal.Harji, months
Dist.Patan
65 Parmar Community 11/07/74 20.6.1997 Watchman 14 yrs 6 hrs 1350
Rajkumar Health Centre, 11 fix
Balabhai Harji, Tal.Harji, months
Dist.Patan
10. The above tabular of service details of service of each of the workmen remained undisputed by respondents, the appellant-State herein and the record further reveal that each of the employees had undergone valid selection procedure undertaken by selection committee upon holding interview and the name of individual was called from employment exchange for the post of Class-IV in the fixed pay-scale of Rs.1350/- that service rendered by the employees are not less than 10 to 11 years and extending upto 15 to 16 years continuously and incorporation of condition No.2 in the appointment letter issued to each of the petitioners of dis-entailing employee of not claiming any future benefits in the form of permanency or regularization or parity in pay-scale with regular employees is nothing but a contract between lion and land and as addressed by Division Bench of this Court in the Writ Petition (PIL) 244 of 2014 in the case of Page 20 of 26 Downloaded on : Mon Jul 01 00:15:24 IST 2019 C/LPA/1155/2019 ORDER Gujarat Rajya Anshkalin Karmachari Mandal vs. State of Gujarat & Ors. that their voice of part timers and casual labourers is too feeble and their future is also too un-certain for want of any protection of Article 311 of Constitution of India and long service tenure as semi- skilled or un-skilled workers or employees either as sweepers/cleaners/water servers/gardener/watchman etc. and appointment is mostly contingency based and work charged with little permanency attached result into social exploitation and when such oral order dated 21.8.2014 was rendered statistics reveal that more than 10,000 to 15000 such workers were deprived of even minimum of pay-scale after long years of more than 15 years of service. In para 8 of the above decision the State of Gujarat especially Finance Department was directed that all part-time workers were to be considered and paid at the same rate of remuneration prescribed per day for the employment of sweeping and cleaning work under the said notification dated 5.8.2013 and wages are to be revised accordingly and further order was passed that the State Government shall present affidavit suggesting periodic revisions that may be adopted for remuneration of such persons from time to time after 1998.
11. In the case of State of Punjab vs. Jagjit Singh, the Apex Court threadbare considered all ad-hoc and temporary workers and in similar such circumstances addressed to the issue about right of such employees who claimed wages on par with minimum of the pay scale of regularly engaged government employees holding the same post to which even learned Single Judge also referred to and we would like to refer to paragraphs 54, 55, 56, 57 and 58, which reads as under:
"54. There is no room for any doubt, that the principle of 'equal pay for equal work' has emerged from an interpretation of different provisions of the Constitution. The principle has been expounded through a large number of Page 21 of 26 Downloaded on : Mon Jul 01 00:15:24 IST 2019 C/LPA/1155/2019 ORDER judgments rendered by this Court, and constitutes law declared by this Court. The same is binding on all the courts in India, under Article 141 of the Constitution of India. The parameters of the principle, have been summarized by us in paragraph 42 hereinabove. The principle of 'equal pay for equal work' has also been extended to temporary employees (differently described as workcharge, daily-wage, casual, ad hoc, contractual, and the like). The legal position, relating to temporary employees, has been summarized by us, in paragraph 44 hereinabove. The above legal position which has been repeatedly declared, is being reiterated by us, yet again.
55. In our considered view, it is fallacious to determine artificial parameters to deny fruits of labour. An employee engaged for the same work, cannot be paid less than another,who performs the same duties and responsibilities. Certainly not, in a welfare State. Such an action besides being demeaning, strikes at the very foundation of human dignity. Any one, who is compelled to work at a lesser wage, does not do so voluntarily. He does so, to provide food and shelter to his family, at the cost of his self respect and dignity, at the cost of his self worth, and at the cost of his integrity. For he knows, that his dependents would suffer immensely, if he does not accept the lesser wage. Any act, of paying less wages, as compared to others similarly situate, constitutes an act of exploitative enslavement, emerging out of a domineering position. Undoubtedly, the action is oppressive, suppressive and coercive, as it compels involuntary subjugation.
57. Having traversed the legal parameters with reference to the application of the principle of 'equal pay for equal work',in relation to temporary employees (daily-wage employees, ad-hoc appointees, employees appointed on casual basis, contractual employees and the like), the sole factor that requires our determination is, whether the concerned employees (before this Court), were rendering similar duties and responsibilities, as were being discharged by regular employees, holding the same/corresponding posts. This exercise would Page 22 of 26 Downloaded on : Mon Jul 01 00:15:24 IST 2019 C/LPA/1155/2019 ORDER require the application of the parameters of the principle of 'equal pay for equal work' summarized by us in paragraph 42 above.
However, insofar as the instant aspect of the matter is concerned, it is not difficult for us to record the factual position. We say so, because it was fairly acknowledged by the learned counsel representing the State of Punjab, that all the temporary employees in the present bunch of appeals, were appointed against posts which were also available in the regular cadre/ establishment. It was also accepted, that during the course of their employment, the concerned temporary employees were being randomly deputed to discharge duties and responsibilities, which at some point in time, were assigned to regular employees. Likewise, regular employees holding substantive posts, were also posted to discharge the same work, which was assigned to temporary employees, from time to time. There is, therefore, no room for any doubt, that the duties and responsibilities discharged by the temporary employees in the present set of appeals, were the same as were being discharged by regular employees. It is not the case of the appellants, that the respondent-employees did not possess the qualifications prescribed for appointment on regular basis. Furthermore, it is not the case of the State, that any of the temporary employees would not be entitled to pay parity, on any of the principles summarized by us in paragraph 42 hereinabove. There can be no doubt, that the principle of 'equal pay for equal work' would be applicable to all the concerned temporary employees, so as to vest in them the right to claim wages, at par with the minimum of the pay-scale of regularly engaged Government employees, holding the same post. 58. In view of the position expressed by us in the foregoing paragraph, we have no hesitation in holding, that all the concerned temporary employees, in the present bunch of cases, would be entitled to draw wages at the minimum of the pay-scale (-
at the lowest grade, in the regular pay-scale), extended to regular employees, holding the same post."
Page 23 of 26 Downloaded on : Mon Jul 01 00:15:24 IST 2019 C/LPA/1155/2019 ORDER12. The law laid down by the Apex Court as above is squarely applicable in the facts of this case and we are not inclined to accept the arguments canvassed by learned AGP that the decision laid down in the case of State of Punjab vs. Jagjit Singh is not applicable inasmuch as, employees in all these appeals not only rendered valuable service in community health centre at remote and tribal areas of State of Gujarat for more than six months but continued to receive instructions from superior to perform such duties beyond prescribed hours for about 11 to 16 years as the case may be, therefore, in our view ratio and law laid down in the case of State of Punjab vs. Jagjit Singh will apply in the facts of this case with equal force.
13. In addition to above, learned Single Judge has considered other decisions of the Apex Court including that of Uma Devi (supra) which also covered an exception for those who are working with authority or establishment of State within meaning of Article 12 of the Constitution of India for more than 10 years by holding that four conditions laid down in the case of Uma Devi (supra) are fulfilled in the facts of the case namely, initial appointment of the employee was legal meaning thereby in the manner contingency and completely with scheme as contained under Article 14 and 16 of the Constitution of India and that employee has put in 10 years of service or more than and continued in service when taking shelter of any courts' order and that there existed sanctioned post. Learned Judge accordingly noticed that the State Government had passed Government Resolution dated 1.5.2007 as amended by resolution dated 16.5.2008 providing for one time regularization of all part-time/ad hoc/temporary employees who had put in 10 years or more services and the fact about and we are of the view that since establishment was in existence for years together formality of declaring the same as sanctioned would not come in the way of petitioners receiving atleast minimum of pay-scale in lowest Page 24 of 26 Downloaded on : Mon Jul 01 00:15:24 IST 2019 C/LPA/1155/2019 ORDER grade-pay when their claim towards permanency and regularization is rejected by learned Single Judge. Even benefits of arrears of salary is also not granted and held to be entitled w.e.f to receive their salary namely, minimum of salary in the lowest grade-pay with that all regular employees on the same post w.e.f. 1.1.2019 and thus, rights of the employees to be permanent employees by seeking regularization is not accepted by learned Single Judge. Thus, reasoning of learned Single Judge and limited acceptance of prayer, in a writ petition under Article 226 of the Constitution of India cannot be termed as contrary to law.
14. That submission made by learned AGP based on decision rendered in the case of State of Tamil Nadu (supra) had no substance as such inasmuch as, in the above case the Apex Court in para 16 of the decision referred to the case of State of Rajasthan v. Daya Lal (supra) wherein principle of equal pay for equal work qua Government employees vis-a-vis part-time and casual employees of Government run institutions was the background in which such law was laid down and it is held that part-time employees is not entitled to seek regularization as they are not working against sanctioned post or there cannot be a direction for absorption, regularization or permanent continuance of part-time temporary employees. No such direction is given in these cases by learned Single Judge and the only direction is about payment of minimum wages in the lowest pay-grade available to the regular employees on the same post. If the law laid down in the case of State of Punjab vs. Jagjit Singh (supra) is considered to which , we have already made a reference, it is held that ad hoc and temporary employees have right to receive minimum of wages in the lowest pay-grade and the facts and circumstances of these appeals which emerge on record that duties discharged by the employees-original writ petitioners is akin to temporary and ad hoc Page 25 of 26 Downloaded on : Mon Jul 01 00:15:24 IST 2019 C/LPA/1155/2019 ORDER employees and nomenclature is about part-time employees but discharge of their duties with utmost sincerity and no complaint from the employer for years together deserve consideration for limited relief of grant of minimum of pay scale without benefits of permanency or regularization. We are in agreement with law laid down by this Court while dealing with Letters Patent Appeal No.107 of 2009 and Writ Petition (PIL) No.244 of 2014 in similar such facts and circumstances and Hindustan Lever (supra).
15 Having regard to the totality of facts and circumstances, we are of the considered view that no interference is called for. Appeals are merit-less and deserve to be dismissed. Accordingly, appeals stand dismissed. No costs.
16. In view of the above, Civil Applications (For Stay) also stands dismissed.
(ANANT S. DAVE, ACJ) (BIREN VAISHNAV, J) NAIR SMITA V. Page 26 of 26 Downloaded on : Mon Jul 01 00:15:24 IST 2019