Gujarat High Court
Bharatbhai Shaluji Baranda vs State Of Gujarat on 11 May, 2018
Author: P.P.Bhatt
Bench: P.P.Bhatt
C/SCA/2834/2015 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 2834 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE P.P.BHATT
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1 Whether Reporters of Local Papers may be allowed to see YES
the judgment?
2 To be referred to the Reporter or not? NO
3 Whether their Lordships wish to see the fair copy of the NO
judgment?
4 Whether this case involves a substantial question of law as NO
to the interpretation of the constitution of India, 1950 or
any order made thereunder?
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BHARATBHAI SHALUJI BARANDA
Versus
STATE OF GUJARAT
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Appearance:
MR KB PUJARA, SR ADVOCATE with MR GAURAV K MEHTA(5227)
for the PETITIONER(s) No. 1
MR JK SHAH, AGP(1) for the RESPONDENT(s) No. 1
RULE SERVED(64) for the RESPONDENT(s) No. 2,3,4
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CORAM: HONOURABLE MR.JUSTICE P.P.BHATT
Date : 11/05/2018
ORAL JUDGMENT
1. By way of this petition under Articles 226 and 227 of the Constitution Page 1 of 8 C/SCA/2834/2015 JUDGMENT of India, the petitioner has prayed for issuance of appropriate writ / direction upon the respondent Nos. 2 and 3 to comply with Government Resolution (GR) dated 17.10.1988, produced at Annexure 'A' to the petition, for the purpose of regularization of the petitioner's services and to extend him the regular pay-scale.
2. Heard, Mr. K. B. Pujara, the learned senior advocate assisted by Mr. Mehta, the learned advocate for the petitioner and Mr. J. K. Shah, the learned Assistant Government Pleader for the respondent - State.
3. It is the case of the petitioner that he was initially engaged by the respondent No. 3 on 03.07.1997 as Clerk cum Typist by inviting tenders from the respective agencies under the scheme meant for Scheduled Castes / Scheduled Tribes Development Project situated at Khedbrahma, District: Sabarkantha. The services of the petitioner, thereafter, continued by employing agency on ad hoc basis though clear vacant post for the post in question was available with the respondent authority. The petitioner, time and again, requested to consider his case for appointment against the clear vacancy; various representations were also made by the petitioner and recommendations were also made by the Project Administrator and Page 2 of 8 C/SCA/2834/2015 JUDGMENT the Deputy Director (Administration), Tribal Development, Gujarat State from time to time, which are also produced on record. It is the case of the petitioner that the remuneration of the petitioner was also enhanced from time to time as per the government policy and presently, the petitioner is receiving Rs.14,800/- per month. The learned advocate for the petitioner, in support of his case, has made available various GRs such as GR of Finance Department dated 16.02.2006 upto the latest GR of the Finance Department dated 31.01.2018 and submitted that in light of the aforesaid GRs, the case of the petitioner deserves consideration for regularization as the petitioner has completed almost 20 years of service by now. It is also submitted that the petitioner is a Tribal, serving with the Tribal Development Department and his services are also very useful looking to the workload as mentioned in various recommendations made by the officers concerned, which are on record. It is submitted that though the Project Administrator, Khedbrahma has recommended the case of the petitioner for regularization and the said request send by the Project Administrator was supported by the head of the department, the State Government has not accorded approval for regularization of the petitioner. The learned advocate for the petitioner, in support of his case, referred to and relied upon a Page 3 of 8 C/SCA/2834/2015 JUDGMENT decision of the Hon'ble Apex Court in the case of Sheo Narain Nagar and Others Vs. State of Uttar Pradesh, reported in AIR 2018 SC 233. While referring para 8, 9 and 10 of the said decision, it is submitted that the case of the petitioner deserves consideration for appointment against the clear vacancy in light of the said decision and accordingly, he urges to allow the present petition and to issue necessary directions upon the concerned respondent authority.
4. As against this, the learned Assistant Government Pleader for the respondent - State submits that the petitioner was engaged as Clerk cum Typist purely on contractual basis and therefore, the petitioner has no legal right for being appointed against the clear vacancy on regular basis. It is submitted that the respondents are required to follow the procedure prescribed under the relevant recruitment rules and since the petitioner was appointed on contractual basis, the remuneration as prescribed by the State Government from time to time is extended to the petitioner and the same is also accepted by the petitioner. Accordingly, he requests the Court to reject the present petition as the appointment of the petitioner is purely on contractual basis for which, fix remuneration is prescribed. Page 4 of 8
C/SCA/2834/2015 JUDGMENT
5. Regard being had to the above submissions and looking to the facts and circumstances of the case on hand, it is a fact that the petitioner is rendering services since last more than 20 years with the concerned department. Though, initially, he was appointed on contractual basis but the material on record suggests that the petitioner has been appointed on fixed pay remuneration from time to time. Not only that the petitioner has been given effect of revised remuneration as fixed by the State Government from time to time. It also reveals from the material on record that the District level authority and the Head of the Department have also recommended the case of the petitioner for regularization considering his satisfactory performance as well as considering the existing workload with the department concerned, however, the State Government has not considered the case of the petitioner for regularization till date. The case law cited by the learned advocate for the petitioner is applicable to the facts and circumstances of the case on hand, relevant of which, is extracted herein below for ready perusal:
"8. When we consider the prevailing scenario, it is painful to note that the decision in Uma Devi (Supra) has not been properly understood and rather wrongly applied by various State Governments. We have called for the data in the instant case to ensure as to how many employees were working on contract basis or ad-hoc basis or daily-wage basis in different Page 5 of 8 C/SCA/2834/2015 JUDGMENT State departments. We can take judicial notice that widely aforesaid practice is being continued. Though this Court has emphasised that incumbents should be appointed on regular basis as per rules but new devise of making appointment on contract basis has been adopted, employment is offered on daily wage basis etc. in exploitative forms. This situation was not envisaged by Uma Devi (supra). The prime intendment of the decision was that the employment process should be by fair means and not by back door entry and in the available pay scale. That spirit of the Uma Devi (supra) has been ignored and conveniently over looked by various State Governments/ authorities. We regretfully make the observation that Uma Devi (supra) has not be implemented in its true spirit and has not been followed in its pith and substance. It is being used only as a tool for not regularizing the services of incumbents. They are being continued in service without payment of due salary for which they are entitled on the basis of Article 14, 16 read with Article 34 (1)(d) of the Constitution of India as if they have no constitutional protection as envisaged in D.S. Nakara v. Union of India, AIR 1983 SC 130 from cradle to grave. In heydays of life they are serving on exploitative terms with no guarantee of livelihood to be continued and in old age they are going to be destituted, there being no provision for pension, retiral benefits etc. There is clear contravention of constitutional provisions and aspiration of down trodden class. They do have equal rights and to make them equals they require protection and cannot be dealt with arbitrarily. The kind of treatment meted out is not only bad but equally unconstitutional and is denial of rights. We have to strike a balance to really implement the ideology of Uma Devi (supra). Thus, the time has come to stop the situation where Uma Devi (supra) can be permitted to be flouted, whereas, this Court has interdicted such employment way back in the year 2006. The employment cannot be on exploitative terms, whereas Uma Devi (supra) laid down that there should not be back door entry and every post should be filled by regular employment, but a new device has been adopted for making appointment on payment of paltry system on contract/adhoc basis or otherwise.
This kind of action is not permissible, when we consider the pith and substance of true spirit in Uma Devi (supra).
9. Coming to the facts of the instant case, there was a Page 6 of 8 C/SCA/2834/2015 JUDGMENT direction issued way back in the year 1999, to consider the regularization of the appellants. However, regularization was not done. The respondents chose to give minimum of the pay scale, which was available to the regular employees, way back in the year 2000 and by passing an order, the appellants were also conferred temporary status in the year 2006, with retrospective effect on 2.10.2002. As the respondents have themselves chosen to confer a temporary status to the employees, as such there was requirement at work and posts were also available at the particular point of time when order was passed. Thus, the submission raised by learned counsel for the respondent that posts were not available, is belied by their own action. Obviously, the order was passed considering the long period of services rendered by the appellants, which were taken on exploitative terms.
10. The High Court dismissed the writ application relying on the decision in Uma Devi (supra). But the appellants were employed basically in the year 1993; they had rendered service for three years, when they were offered the service on contract basis; it was not the case of back door entry; and there were no Rules in place for offering such kind of appointment. Thus, the appointment could not be said to be illegal and in contravention of Rules, as there were no such Rules available at the relevant point of time, when their temporary status was conferred w.e.f. 2.10.2002. The appellants were required to be appointed on regular basis as a one-time measure, as laid down in paragraph 53 of Uma Devi (supra). Since the appellants had completed 10 years of service and temporary status had been given by the respondents with retrospective effect in the 2.10.2002, we direct that the services of the appellants be regularized from the said date i.e. 2.10.2002, consequential benefits and the arrears of pay also to be paid to the appellants within a period of three months from today."
6. In light of the aforesaid factual aspects as well as the legal position, this Court is of the view that necessary directions are required to be issued to the respondent State to consider the case of the petitioner for Page 7 of 8 C/SCA/2834/2015 JUDGMENT regularization against clear vacancy which is in existence since 1995. It also appears that the respondent authority has not taken any steps for regular recruitment against the said vacancy. Since the petitioner is having experience of working with the concerned department of the State and his services are also satisfactory and various recommendations have also been made to regularize the petitioner, the concerned respondent authority is directed to consider the case of the petitioner with objectivity, in light of the ratio laid down in the aforesaid decision of the Hon'ble Apex Court as well as the GRs issued by the State from time to time, at the earliest preferably within a period of two months from the date of receipt of this order. Rule is made absolute accordingly. No costs. Direct service is permitted.
[ P. P. Bhatt, J. ] hiren Page 8 of 8