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Gujarat High Court

Malek Gulammohamed Absamiya vs Managing Director, Gujarat State Land ... on 24 March, 2022

Author: Biren Vaishnav

Bench: Biren Vaishnav

       C/SCA/9493/2021                               ORDER DATED: 24/03/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 9493 of 2021

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                MALEK GULAMMOHAMED ABSAMIYA
                            Versus
      MANAGING DIRECTOR, GUJARAT STATE LAND DEVELOPMENT
                       CORPORATION LTD
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Appearance:
MS NANDINI JOSHI(1210) for the Petitioner(s) No. 1
DS AFF.NOT FILED (N) for the Respondent(s) No. 2
MR HS MUNSHAW(495) for the Respondent(s) No. 1
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     CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV

                              Date : 24/03/2022

                                ORAL ORDER

1. Heard learned advocates for the parties.

2. The prayer in the petition is that the respondents be directed to give the benefit of judgement passed by this Court in Special Civil Application No. 6268 of 2004 and extend the benefits of the resolution dated 24.06.2020 issued by the Finance Department, State of Gujarat.

3. The facts in brief would indicate that the petitioner was working as Auto Electrician with the respondent Gujarat Sate Land Development Corporation since 1988. It was his case that neither was he regularized in service nor was he granted minimum of pay-scale and therefore he approached this court by filing Special Civil Application No. 6268 of 2004 wherein the statement of the petitioner was that though he was designated as auto electrician and carrying out the nature of duties those of similarly selected employees he was neither regularized nor given minimum of pay-scale. The stand of the Corporation before the co-

C/SCA/9493/2021 ORDER DATED: 24/03/2022 ordinate bench was that his appointment was irregular. Considering the decisions of the Apex Court in the case of State of Karnataka vs. Umadevi and Others [(2006) 4 SCC 1] and State of Punjab vs. Surjit Singh and Others [(2009) 9 SCC 514 and also State of Punjab vs. Jagjit Singh [(2017) 1 SCC 148], the co-ordinate bench of this court observed as under:

"15. In the present case, the petitioner is serving since 1988 continuously on daily wages basis. He is also discharging the same work, which is assigned to other employees form time to time. The Apex Court has thereafter, directed that such employees would be entitled to draw wages at the minimum payscale (at the last grade in the regular payscale) extended to regular employees holding the same post.

16. Thus, in view of the law enunciated by the Apex Court in the case of Umadevi (supra) and Jagjit Singh (supra), the respondents are hereby directed to place the petitioner in the minimum of the pay scale(at the last grade in the regular payscale), which is to be granted to regular employees holding the same post. It is clarified that such benefits shall be given to the petitioner after completion of ten (10) years of the service. The petitioner was appointed in 1988 and hence, after completion often (10) years, he shall be placed in the minimum of the payscale at the last grade in the regular payscale, which has been extended to the regular employees holding the same post. Necessary arrears shall also be paid to the petitioner. Necessary orders shall be passed within a period of two (2) months from the date of receipt of the writ of this order. Rule is made absolute to the aforesaid extent."

4. Ms. Nandini Joshi, learned advocate for the petitioner would submit that since the order was not complied with the petitioner was constrained to file a petition under the Contempt of Courts Act which the Division Bench of this court disposed of on 06.01.2022 holding that the Page 2 of 4 Downloaded on : Mon Mar 28 21:10:26 IST 2022 C/SCA/9493/2021 ORDER DATED: 24/03/2022 amount though not in consonance with the directions was paid. Relying on the order of the Corporation dated December 2020 in context of the resolution of the government dated 24.06.2020, the case of the petitioner is that since two posts of drivers are vacant and the establishment of the Corporation at Gandhinagar is still functional, the petitioner be engaged as a driver as a daily wager. The benefit of the resolution dated 24.06.2020 therefore deserves to be granted to the petitioner and the petitioner be absorbed.

5. Mr. H.S. Munshaw, learned advocate for the Corporation would rely on the reply filed and submit that by virtue of the resolution dated 24.06.2020 what was considered was absorption/deputation of surplus employees working on the regular establishment of the Corporation. The scheme was for sending on deputation employees of the Corporation who were on the regular establishment. He would submit that after the policy decision was taken to wind up the Corporation, the offices of the Corporation have been transferred along with the assets, vehicles and equipments to other departments as per the directions of the Government of Gujarat and therefore the benefit of the absorption/deputation to part- timers or daily wagers cannot be granted.

6. Considering the submissions made by the learned counsel for the respective parties and having perused the petition and reply thereto what is evident is that the submission of learned counsel for the petitioner that pursuant to the order dated 12.12.2019, the petitioner ceases to be a daily- wager is misconceived. When the order of the co-ordinate bench of this court in Special Civil Application No. 6268 of 2004 is read what is observed therein is that the petitioner in light of the judgements of the Apex Court in the case of Jagjit Singh (supra) was entitled to the benefits Page 3 of 4 Downloaded on : Mon Mar 28 21:10:26 IST 2022 C/SCA/9493/2021 ORDER DATED: 24/03/2022 of minimum pay-scale which was granted to a regular employee. That itself did not make the petitioner an employee on the regular establishment of the Corporation. Reading the order especially paras 15 and 16 reproduced herienabove would indicate that the status of the petitioner was not of a regular employee with the Corporation.

6.1 Based on the directions issued by the co-ordinate bench as observed in the order dated 06.01.2022 benefits that the petitioner was entitled to based on the minimum of pay-scale that the court had awarded was paid. The resolution of the government dated 24.06.2020 when read together with the order of December 2020 placed along with the petition would indicate that once the Corporation was wound up, all the assets, vehicles etc were transferred to the Government of Gujarat. It is in light of these facts that certain posts were put at the disposal of the government. The petitioner cannot claim absorption/deputation of the two posts of drivers which in the perception of the petitioner are still in the hands of the Corporation at Gandhinagar. In view of the fact that the Corporation having been wound up and the assets having been transferred and the petitioner being a daily-wager, the benefit of the resolution and absorption/deputation to the Corporation cannot be granted.

7. In view of the above, petition is dismissed. Notice is discharged.

(BIREN VAISHNAV, J) DIVYA Page 4 of 4 Downloaded on : Mon Mar 28 21:10:26 IST 2022