Gujarat High Court
Budhaji Ataji Vaghela & vs State Of Gujarat & 2 on 30 March, 2016
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/14297/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 14297 of 2015
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BUDHAJI ATAJI VAGHELA & 10....Petitioner(s)
Versus
STATE OF GUJARAT & 2....Respondent(s)
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Appearance:
HCLS COMMITTEE, ADVOCATE for the Petitioner(s) No. 1 - 11
MRS KRISHNA G RAWAL, ADVOCATE for the Petitioner(s) No. 1 - 11
ADVANCE COPY SERVED TO GP/PP for the Respondent(s) No. 1
Mr KM ANTANI, ASS. GOVERNMENT PLEADER for the Respondent(s) No.1
NOTICE SERVED BY DS for the Respondent(s) No. 2 - 3
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 30/03/2016
ORAL ORDER
1. By this writapplication under Article 226 of the Constitution of India, the petitioners serving as the Gardeners at the Judges Bungalows, Ahmedabad, have prayed for the following reliefs: 11(A) to issue a writ of mandamus or any other writ order or direction directing the respondent authorities to extend all the benefits available to other class IV permanent employees to the petitioners from the date of their respective regularization.
(B) be pleased to direct the respondents to extend the benefits of higher pay scale and to fix the pay after fixation of the higher pay scale.
(C) be pleased to direct the respondent authorities to pay the arrears of pay and other consequential benefits with interest.
(D) any other relief/s looking to the facts and circumstances of the case may kindly be granted in the interest of justice.
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2. The facts of the case may be summarized as under: 2.1 The petitioners are serving under the respondent no.3. The petitioners nos.4 and 5 have already retired. The grievance voiced in this petition is that although the authorities have thought fit to confer the benefits of the Government Resolution dated 17.10.1988, yet some of the benefits like Compensatory Allowance, Leave Encashment, LTC. Advances, Residential Quarters, etc. are not being provided.
2.2 It is their case that they are not being given the benefits of Festival Advances, FoodGrain Advances, Uniform, Travel Allowance, Vehicle Allowance, Leave Encashment etc.
3. This application has been vehemently opposed by Mr. Antani, the learned AGP appearing for the respondents.
4. An affidavitinreply has been filed on behalf of the respondent no.3 interalia stating as under:
5. I say that, initially the petitioners herein were working as daily wagers at the Judges Bunglows, Bodakdev, Ahmedabad and they were called for work as and when it was required by the authorities. However, their services has been regularized pursuant to the policy dated 17.10.1988 and they have been extended all the benefits available to the beneficiary of Government Resolution dated 17.10.1988. I say that, they have been given benefits of Salary, Dearness Allowances, H.R.A., C.L.A., etc. However, the benefits sought to be claimed by the petitioners by way of the present petition viz. Festival Advances, FoodGrain Advances, Uniform, Travelling Allowance, Vehicle Allowance and the Leave Encashment, which are available to other ClassIV employees cannot be extended to the petitioners as at no point of time, they were regularly appointed by the State Government.
6. I say that, the State Government has passed Government Resolution dated 12.08.1991, which is a clarification to the Page 2 of 9 HC-NIC Page 2 of 9 Created On Sat Apr 02 01:25:00 IST 2016 C/SCA/14297/2015 ORDER Government Resolution dated 17.10.1988, whereby it is clarified that as to what benefits can be given to a daily wager pursuant to the Government Resolution dated 17.10.1988. Annexed herewith and marked as ANNEXURERI is a copy of Resolution dated 12.08.1991. I say that, it is undisputed that petitioners were appointed as daily wagers and as a daily wagers they have no right whatsoever to claim the benefits available to a regular employee. However, considering the fact that they are working for many years together, certain benefits have been extended to them. At the same time the petitioners cannot be put at par with the permanent employee in the regular establishment. In other words, they are not entitled to all those benefits which are being given to the employees who are appointed in permanent establishment. It is undisputed fact that the petitioners were taken as purely temporary employees on daily wages and they have been given work on the date on which the work was available. I say that, since the Government has conferred certain benefits to the class of employees appointed as dailywagers on the recommendations of the Committee and the same is formulated by virtue of Resolution dated 17.10.1988. I say that, it is an admitted fact that the petitioners are not appointed by regular selection and whatever benefits which have been given to the Class of persons to which the petitioners belong are already given to the petitioners under the Resolution dated 17.10.1988. However, the demand of the petitioners for Festival Advances, FoodGrain Advances, Uniform, Travelling Allowances, Vehilce Allowance and the Leave Encashment etc., are unjustified. The Resolution dated 12.08.1991 has been issued to clarify the position that those Class of employees persons are only entitled to the benefits as has been conferred under Government Resolution dated 17.10.1988. It is pertinent to note that Resolution dated 17.10.1988 nowhere provides for giving these benefits to those class of persons. In other words, the benefits which are to be given to them are specifically provided in the said Resolution. I say that it has also been clarified vide Resolution dated 12.08.1991 that dailywagers are entitled to get only limited facilities as referred in the Resolution dated 17.10.1988 and to avoid any confusion or any doubt, it has been clarified that they shall not entitle for Festival Advances, FoodGrain Advances, Uniform, Travelling Allowance, Vehicle Allowance and the Leave Encashment etc.
7. It is further stated and submitted that in the case of State of Himachal Pradesh Vs. Sureshi Kumar Verma reported in JT 1996 (2) SC 344, where in the Apex Court has held that the state is bound to follow the rules and recruitment to various services under the State or to a class of posts under the State, and to have the selection of the candidates made as per recruitment rules and appointments shall be made accordingly. It has further been held that the appointment only daily wage basis is not an appointment to a post according to the Page 3 of 9 HC-NIC Page 3 of 9 Created On Sat Apr 02 01:25:00 IST 2016 C/SCA/14297/2015 ORDER rules. It is not the case of the petitioners that there are not rules for making the recruitment to the post. Even if it is a case where there are no recruitment rules, then the recruitment to the post can only be made, may be on work charged establishment, in accordance with the articles 14 and 16 of the Constitution by giving opportunity to all the eligible persons in public employment. The employment on daily wages cannot be conduit a pie or a regular appointment which would be a back door entry, detrimental to the efficiency of service and would breed seeds of nepotism and corruption.
8. It is further stated and submitted that in Union of India and another Vs. Kartik Chandra Mondal and another, (2010) to SCC 422, the Supreme Court has held that an engagement or appointment on daily wages or casual basis, comes to on and at the end when it is discontinued and "merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular services or made permanent merely on strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules". It was further observed that while directing that appointments, temporary or casual, be regularized or made permanent, the courts are swayed by the facts that the person concerned has worked for some time and in some cases for a considerable length of time. Even assuming that the similarly placed persons were ordered to be absorbed, the same if done erroneously cannot become the foundation for perpetuating further illegality. If an appointment is made illegally or irregularly, the same cannot be the basis of further appointment. An erroneous decision cannot be permitted to perpetuate further error to the detriment of the general welfare of the public or a considerable section.
9. Considering the ratio laid down by the Hon'ble Supreme Court in case of Umadevi, and in case of M.L. Kesari Scheme dated 17/10/1988 and G.R. issued by the Government of Gujarat in pursuance of the said scheme framed facts are emerged that regularization of appointment may be made if a person is employed illegally, his appointment cannot be regularized. If person is employed not on sanction post his appointment cannot be regularized.
10. In view of the above, the petitioners being a separate class of persons, who are the dailywagers are not entitled for parity with the employees in regular establishment and who are appointed in accordance with Recruitment Rules. In fact, the petitioners are seeking something more than what has been provided under the Resolution dated 17.10.1988."
5. Ms. Rawal, the learned counsel appearing for the petitioners has Page 4 of 9 HC-NIC Page 4 of 9 Created On Sat Apr 02 01:25:00 IST 2016 C/SCA/14297/2015 ORDER placed strong reliance on the judgment and order passed by the learned Single Judge of this Court dated 22.12.2006 in the Special Civil Applications Nos.26705 TO 26731 of 2006. A learned Single Judge of this Court while considering an identical claim, observed as under: "4. Considering the submissions made by the learned Advocates for the parties as well as the apex court decision referred to above, it is directed to the Respondent NO.1 Secretary, R & B Department, New Sachivalaya as well as respondent NO.2 Director, Park and Garden Office,Nirman Bhavan, Gandhinagar to examine service sheet of the petitioners, length of service of the petitioner, continuous work of the petitioners as full time employee under GR dated 17.10.1988 and consider the fact whether these petitioners are entitled to the benefits flowing from the GR dated 17.10.1988 or not or any other Government Resolutions are applicable to them or not and thereafter consider the question of regularization of each of the petitioners those who are continuously working with the respondents for more than 25 to 30 years as full time gardeners / labourers in view of the decision of the apex court in MINERAL EXPLORATION CORPORATION EMPLOYEES' UNION VERSUS MINERAL EXPLORATION CORPRATION LTD. AND ANOTHER reported in (2006) 6 SCC 310 while keeping in view that the post is available, work which is perennial in nature is available which would justify itself on the basis of the fact that for these many years, petitioners are continuously working witohut any break, so, if there is availability of permanent nature of work and if they are considered suitable employees as no adverse incident has been noted by the respondents, then to consider the case of the petitioners for regularization of their services on the basis of the GR dated 17.10.1988 and in light of the apex court decision referred to hereinabove and to pass appropriate reasoned order in accordance with law within two months from the date of receipt of copy of this order and to communicate the same to the petitioners immediately thereafter. Meanwhile, respondents are directed not to terminate services of the petitioners."
6. Many orders of similar in nature have been passed by this Court time to time and affirmed in Appeal. I may give a reference of those orders as under:
(i) Special Civil Application No.8281 of 2014 with Special Civil Application No.8289 of 2014, decided on 14.07.2015.
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(ii) The order passed in the above referred writapplication came to be affirmed in the Letters Patent Appeal No.126 of 2016, decided on 24.02.2016.
7. The order passed by the Division Bench reads as under: The challenge in this Letters Patent Appeal under clause 15 of the Letters Patent is order dated 14.07.2015 passed in Special Civil Application No.8281 of 2014 with Special Civil Application No.8289 of 2014 by which the learned Judge relying on decision dated 08.07.2015 in Special Civil Application No.1945 of 2014, the writ petition was allowed and para 6 of the order under challenge dated 14.07.2015 reads as under:
In view of the aforesaid, this petition is allowed. The respondent is directed to calculate the amount towards the encashment of the unavailed privilege leave within a period of eight weeks from the date of the receipt of the order, and make the necessary payment to the petitioners while calculating the same the decision of the learned Single Judge referred to above in the case of Tribhuvanbahi Jairambhai shall be kept in mind. Rule is made absolute to the aforesaid extent. Direct service is permitted.
This Letters Patent Appeal is preferred against the above order dated 14.07.2015 passed by the learned Single Judge.
2. The learned Assistant Government Pleader would contend that the subject matter and decision is no more res integra inasmuch as earlier Letters Patent Appeal No.1310 of 2015 in Special Civil Application No.1945 of 2014 preferred by the State of Gujarat came to be rejected and decision in the case of State of Gujarat and another Vs. Mahendrakumar Bhagvandas and another, reported in 2011 (2) GLR 1290 was relied on.
2.1 The case on hand is identical to the above subject appeal. Hence it squarely covers and answers the questions raised herein. We are benefited by oral order dated 30.102015 and in agreement with the reasoning given and findings arrived at and accordingly we find no substance in this present appeal and order passed by the learned Single Judge suffers from no illegality. The Letters Patent Appeal is rejected.Page 6 of 9
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3. Consequently, no order on Civil Application No.1749 of 2016. The Civil Application is disposed of accordingly.
8. I may also quote the decision of the Division Bench rendered in Letters Patent Appeal No.1310 of 2015, decided on 30.10.2015. The said Appeal was filed against the judgment and order of this very Court in Special Civil Application No.1945 of 2014, decided on 08.07.2015.
9. The order of the Division Bench reads as under:
1. The present appeal is directed against the order dated 8.7.2015 passed by the learned Single Judge of this Court in Special Civil Application No.1945 of 2014, whereby the learned Single Judge, for the reasons recorded in the order, has allowed the petition.
2. We have heard Mr.Rakesh Patel, learned Assistant Government Pleader for the appellant and Mr.Mishra, learned Counsel for the respondent.
3. The contention raised on behalf of the appellant is that based on the decision of the Division Bench of this Court in the case of State of Gujarat and Anr. Vs. Mahendrakumar Bhagvandas & Anr., reported in 2011 (2) GLR 1290, another learned Single Judge of this Court had decided Special Civil Application No.5530 of 2003 on 20.8.2014, against which State has gone in appeal before the Apex Court and the order of the learned Single Judge in the said petition has been stayed. He, therefore, submitted that when the issue is at large pending before the Apex Court, the learned Single Judge has committed error in concluding that the issue is already concluded by the Division Bench of this Court in the case of State of Gujarat (Supra) and, therefore, this Court may consider in the appeal.
4. Whereas, Mr.Mishra, learned Counsel appearing for the respondent submitted that the aforesaid decision of the Division Bench of this Court in the case of State of Gujarat (supra) was carried by the State before the Apex Court in SLP (C) Nos.1997019975 of 2012 and the same has been dismissed vide order dated 9.11.2012. Not only that, but thereafter the review application was filed by the State being No.3504335048 of 2012 and the said review application has also been dismissed vide order dated 14.5.2015. Under these circumstances, it cannot be said that the learned Single Judge has committed error in relying upon the decision of the Division Bench of this Court in the case of State of Gujarat (supra). He submitted that merely because Page 7 of 9 HC-NIC Page 7 of 9 Created On Sat Apr 02 01:25:00 IST 2016 C/SCA/14297/2015 ORDER subsequent decision of another learned Single Judge in Special Civil Application No.5536 of 2003 is carried before the Apex Court and the stay is granted may not be a valid ground to admit the present appeal. It was in his submission that it is possible that the attention of the Apex Court might not have been drawn to the fact that the SLP against the decision of the Division Bench of this Court in the case of State of Gujarat (supra) was dismissed and the review is also dismissed. He, therefore, submitted that the appeal may not be entertained.
5. The perusal of the impugned order of the learned Single Judge shows that at paragraph 4, the learned Single Judge has extracted the observations made by the Division Bench of this Court in the case of State of Gujarat (supra) and thereafter the learned Single Judge has recorded that the case of the petitioner is identically situated and, therefore, the petitioner would be entitled to encash unavailed privilege leave.
6. When the decision of the Division Bench of this Court, which has been relied upon by the learned Single Judge is not interfered with by the Apex Court in the afore referred proceedings of SLP and the review is also dismissed, in our view, it cannot be said that the learned Single Judge had committed any error in exercise of the power, which may call for interference in the present appeal. Further, when the SLP is also dismissed against the above referred decision of the Division Bench of this Court in the case of State of Gujarat (supra) and the review application is also subsequently dismissed, such would be a further more ground not to interfere with the order of the learned Single Judge.
7. In view of the above, no case is made out for interference. Hence, the present appeal is dismissed.
10. In all the judgments referred to above, there is a reference of the decision of this Court in the case of 'State of Gujarat and Anr. Vs. Mahendrakumar Bhagvandas & Anr.' reported in 2011 (2) GLR 1290.
11. It appears that the decision in the case of 'State of Gujarat and Anr. Vs. Mahendrakumar Bhagvandas & Anr.' was carried to the Supreme Court and the same has been affirmed. However, in one of the identical matters, the State of Gujarat has challenged the judgment rendered by this Court before the Supreme Court and the Supreme Court Page 8 of 9 HC-NIC Page 8 of 9 Created On Sat Apr 02 01:25:00 IST 2016 C/SCA/14297/2015 ORDER for the time being has stayed the operation of the impugned order while issuing notice.
12. As on today, the law appears to be wellsettled. Once the employee concerned is treated for all purposes as a permanent employee in terms of the Government Resolution dated 17.10.1988, then any discrimination and/or denial of benefits for a segment of such employees, could not be rationally explained and could not be countenanced in the face of Articles 14 and 16 of the Constitution.
13. In view of the above, this application is allowed. The respondents are directed to extend the benefits to the petitioners which are available to ClassIV permanent employees. The necessary benefits which have been stated in Para3 of the petition may be worked out and extended to the petitioners within a period of two months from the date of the receipt of the writ of the order.
I take notice of the fact that the identically situated employees like the petitioners serving with the very same Department, have been granted all the benefits by an order dated 07.01.2015 passed by the Deputy Director of the Horticulture Department. The very same benefits be extended to the petitioners.
Direct service is permitted.
(J.B.PARDIWALA, J.) aruna Page 9 of 9 HC-NIC Page 9 of 9 Created On Sat Apr 02 01:25:00 IST 2016