Gujarat High Court
Ramesh S Desai & vs Ahmedabad Urban Development Authority ... on 2 May, 2017
Author: P.P.Bhatt
Bench: P.P.Bhatt
C/SCA/11888/2004 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 11888 of 2004
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 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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RAMESH S DESAI & 1....Petitioner(s)
Versus
AHMEDABAD URBAN DEVELOPMENT AUTHORITY & 2....Respondent(s)
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Appearance:
DECEASED LITIGANT, ADVOCATE for the Petitioner(s) No. 2
MR YATIN OZA, LEARNED SENIOR ADVOCATE WITH MR BP GUPTA,
ADVOCATE for the Petitioner(s) No. 1 , 2.1 - 2.2
MS ASMITA PATEL, AGP for the Respondent(s) No. 3
MR HS MUNSHAW, ADVOCATE for the Respondent(s) No. 1 - 2
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CORAM: HONOURABLE MR.JUSTICE P.P.BHATT
Date : 02/05/2017
ORAL JUDGMENT
1. The petitioners, by way of the present petition under Article 226 of Page 1 of 13 HC-NIC Page 1 of 13 Created On Wed Aug 16 14:55:26 IST 2017 C/SCA/11888/2004 JUDGMENT the Constitution of India, have prayed for issuance of an appropriate writ/order directing the respondent no.1 to regularize the services of the petitioners in the statutory sanctioned pay-scale applicable to the Drivers with the respondent no.1. It is further prayed that the respondents may be directed to pay the petitioners all consequential and incidental benefits with effect from the date of their initial appointments.
2. The present petition was filed by the two petitioners out of them, petitioner no.2-Vasudev P. Patel has died during the pendency of this petition and his legal heirs are brought on record.
3. The brief facts giving rise to the present petition are as under:
3.1 As there were vacancies for the post of Drivers with the respondent no.1, the petitioners were called for interview and after taking driving test. etc. the petitioners were selected as Drivers in February-1996 and initially for about two years, the petitioners were given salary of Rs.2,000/- per month on vouchers and thereafter, on 05.08.1998, the petitioners were given appointment letters to work as Drivers on contract basis for a period of six months at a monthly salary of Rs.2,500/- per month. Thereafter, the petitioners were given another appointment letter on 06.01.1999, whereby the petitioners were appointed as Drivers at Rs.2,500/- per Page 2 of 13 HC-NIC Page 2 of 13 Created On Wed Aug 16 14:55:26 IST 2017 C/SCA/11888/2004 JUDGMENT month for the period from 01.01.1999 to 30.06.1999.
Thereafter, by letter dated 21.06.1999, the period of appointment of the petitioners was extended from 01.07.1999 to 31.12.1999. Thereafter, on 12.01.2000, the petitioners were again given appointment letter for a period of six months. Thus, the petitioners have been given extension upto 28.02.2004, but thereafter, the petitioners have not been given any appointment letter. Since the petitioners were having apprehension of termination, the petitioners have approached this Court by filing the present petition.
4. After preliminary hearing of the present writ petition, a notice was issued upon the respondents and in the meantime, the respondents were restrained from terminating the petitioners from the services. Thereafter, the matter came to be admitted vide order dated 28.12.2004 and interim relief granted earlier was ordered to be continued till disposal of the petition.
5. It is the case of the petitioners that they are possessing requisite qualification for the post of Drivers. The petitioner no.1 has passed 12th Standard Examination and the petitioner no.2 has studied upto 10th Standard. The petitioners are having a valid driving licence and fulfilling Page 3 of 13 HC-NIC Page 3 of 13 Created On Wed Aug 16 14:55:26 IST 2017 C/SCA/11888/2004 JUDGMENT all requisite eligibility criteria for being selected to the post of Drivers. It is the case of the petitioners that they have discharged their duties for about 18 to 19 years regularly and the respondent-authorities had given assurance to the petitioners that their services will be regularized, but no steps have been taken by the respondent-authorities to regularize the services of the petitioners. Now the petitioners have become age-barred and they will not get job in any place in the Government or Semi Government Organization.
6. Mr.Yatin Oza, learned Senior Advocate appearing with Mr.B.P. Gupta, learned advocate for the petitioners submits that the petitioners were appointed after following due process of selection and they were called for interview by the Selection Committee, and thereafter, appointed on the post of Drivers as they were satisfying eligibility criteria described for the post of Drivers. It is further submitted that initially the petitioners were given appointment orders for a period of six months, but such orders were given from time to time till February-2004. The petitioners have continuously worked for more than about six years when the petition was filed by them. It is further submitted that the petitioner no.2 has died during the pendency of this petition, and therefore, his legal heirs have been implemented. Mr.Yatin Oza, learned Senior Advocate for the petitioners further submits that so far as the cases of the petitioners Page 4 of 13 HC-NIC Page 4 of 13 Created On Wed Aug 16 14:55:26 IST 2017 C/SCA/11888/2004 JUDGMENT are concerned, the petitioners are eligible and entitled to get the benefits of equal pay for equal work in light of the judgment delivered by the Hon'ble Apex Court recently in the case of State of Punjab and others Vs. Jagjit Singh and others reported in (2017) 1 SCC 148. It is submitted that the Hon'ble Supreme Court has considered all the cases of equal pay for equal work and delivered the landmark judgment. Mr.Oza, learned Senior Advocate for the petitioners further submits that the nature of work, working hours, responsibilities attached to the post, etc. are similar to that of a regular post. The petitioner no.1 is serving as a Driver since last more than about 18 to 19 years, and therefore in light of judgment delivered by the Hon'ble Supreme Court, the petitioners may be given benefits of equal pay for equal work and accordingly, the respondent nos.1 and 2 may be directed to give benefits of equal pay from the date of their initial appointment as Drivers. Mr.Yatina Oza, learned Senior Advocate for the petitioners further submits that additionally the respondent nos.1 and 2 may be directed to regularize the services of the petitioner no.1 by giving him appointment on regular establishment or in the alternative the respondent nos.1 and 2 may be directed to give advertisement in respect of one post of Driver which is vacant on the establishment of the respondent nos.1 and 2 and the petitioner no.1 may be given an opportunity to participate in the selection process by giving age relaxation as by now the petitioner has become Page 5 of 13 HC-NIC Page 5 of 13 Created On Wed Aug 16 14:55:26 IST 2017 C/SCA/11888/2004 JUDGMENT age-barred. Mr.Yatin Oza, learned Senior Advocate for the petitioner further submits that the respondents may also be directed to consider the case of the petitioner during regular selection and appointment by giving weightage to the work experience as Driver and also consider the suitability of a person having work experience with the office of the respondents. Mr.Yatin Oza, learned Senior Advocate for the petitioners further submits that the petitioners are also eligible and entitled to get benefits under the Government Resolution dated 17.10.1988. However, the respondent-authorities have not considered the case of the petitioners uptil now for extending any benefit under the said Government Resolution. Therefore, necessary directions may be given to the respondent-authorities to consider the case of the petitioners for giving benefits under the Government Resolution dated 17.10.1988. Mr.Yatin Oza, learned Senior Advocate, while concluding his submissions, has also clarified that if the Court inclines to exercise any of the above- referred two options then in that case, alternative submission made by him with respect to giving benefits as per the said Government Resolution may not be considered at this stage and the right of the petitioners may be reserved at this stage.
7. Mr.H.S. Munshaw, learned advocate appearing for the respondent nos.1 and 2, while opposing the present petition, has referred to and relied Page 6 of 13 HC-NIC Page 6 of 13 Created On Wed Aug 16 14:55:26 IST 2017 C/SCA/11888/2004 JUDGMENT upon the averments made in the affidavit-in-reply filed by J.G. Pandya, Chief Executive Officer, Ahmedabad Urban Development Authority and another affidavit filed by A.B. Gor, Chief Executive Authority, Ahmedabad Urban Development Authority, Ahmedabad. It is further submitted that originally through the Government Resolution dated 29.04.1999, the Government of Gujarat through its Urban Development and Urban Housing Department had sanctioned five posts qua the cadre of Driver with the provisions that one post be kept in abeyance owing to economic drive. The respondent-State Government sanctioned four posts on the establishment of the respondent nos.1 and 2, but subsequently, the said posts have been reduced to two posts by issuing another Government Resolution dated 29.05.2012. Against the said two posts of Driver, one Mr.J.J. Makwana was appointed and upon attaining the age of superannuation, he has retired from the services on 31.05.2013. Therefore, the said post is vacant as on today. So far as another post of Driver is concerned, one Mr.V.K. More, who was appointed on 01.04.1999, is in service at present. It is also submitted that the petitioner no.2 has abandoned the contractual service with effect from 01.12.2010 and therefore, no relief may be granted in his favour. It is also submitted by Mr.Munshaw, learned advocate for the respondent nos.1 and 2 that the petitioner no.1 is rendering services as Driver on contractual basis right from 01.07.1998 on account of interim order passed by this Court in the Page 7 of 13 HC-NIC Page 7 of 13 Created On Wed Aug 16 14:55:26 IST 2017 C/SCA/11888/2004 JUDGMENT year 2004. It is submitted that the petitioner no.1 is in service as a contractual appointee on time-bound contractual basis, and therefore, he has no legal right whatsoever to claim regularization of services against the post of Driver. It is further submitted that the post, which is vacant and available with the respondent nos.1 and 2, is required to be filled in by following due procedure prescribed under the relevant Rules. The petitioners cannot be given appointment against the said posts without following due procedure. Learned advocate appearing for the respondent nos.1 and 2 further submits that by now, the petitioner no.1 has also crossed the age limit and therefore, he is not eligible for the post in question. Learned advocate appearing for the respondent nos.1 and 2 has also cited two decisions in support of his submissions given in the case of Ukawala Mukeshkumar Hirabhai Vs. State of Gujarat given in Special Civil Application No.4596/2003 with Special Civil Application No.4627/2003 and other allied matters and another judgment given in the case of New Gujarat Mazdoor Manch Vs. Sardar Sarovar Narmada Nigam Limited and others given in Special Civil Application No.2271/2017. It is submitted that in light of the aforesaid two judgments delivered by this Court, the contractual appointee has no right to claim regularization. It is also submitted that the employees, who are appointed on contractual appointments, cannot claim continuity of services and their services can be retrenched on completion of contract of contractual Page 8 of 13 HC-NIC Page 8 of 13 Created On Wed Aug 16 14:55:26 IST 2017 C/SCA/11888/2004 JUDGMENT period.
8. Ms.Asmita Patel, learned Assistant Government Pleader appearing for the respondent-State, while supporting the submissions advanced by the learned advocate appearing for the respondent nos.1 and 2, submits that the respondent-State Government has sanctioned four posts of Drivers initially for the establishment of the respondent nos.1 and 2. Subsequently, on account of economy in expenditure, the respondent- State Government gave sanction for only two posts of Drivers and the said two posts are required to be filled in, in accordance with law after due procedure prescribed under the relevant Rules. It is further submitted that the petitioner was appointed purely on contractual basis and therefore, has no legal right whatsoever to claim regularization or any other benefits as submitted by the learned advocate for the petitioners.
9. Regarding being had to the above submissions and looking to the facts and circumstances of the present case, it appears that the petitioners were appointed as Drivers under the respondent nos.1 and 2 purely on contractual basis. Initial appointment of the petitioners was made for limited period of about six months. The said contractual appointment was extended from time to time till February-2004. The petitioners were having apprehension of termination in the year February-2004, and therefore, they have approached this Court by way of filing the present Page 9 of 13 HC-NIC Page 9 of 13 Created On Wed Aug 16 14:55:26 IST 2017 C/SCA/11888/2004 JUDGMENT petition and prayed for direction against the respondent-authorities for regularization of their services and also prayed for equal pay for equal work. This Court granted ad interim relief in favour of the petitioners at the time of issuance of notice and subsequently, the petition was ordered to be admitted by order dated 28.12.2004 by passing following oral order:
"RULE, returnable in the first week of July 2005. In the meanwhile, AUDA may send a proposal to the State Government for sanctioning the required posts of drivers. If such a proposal is sent to the State, the State shall take appropriate decision in this behalf at the earliest possible. This direction is required to be given in view of the fact that the petitioners are admittedly serving continuously since 1998 as Drivers although their services are taken by way of contract service. This prima facie establishes that there seems to be work of a perineal nature.
Interim relief granted earlier is directed to be continued till disposal of this petition."
10. As on today, when this matter came up for final hearing, learned advocate appearing for the respondent nos.1 and 2 upon the query raised by this Court has confirmed that as per the Government Resolution dated 29.05.2012, two posts were sanctioned by the respondent-State Government out of which one post is occupied by one Mr.V.K. More and another post is fallen vacant on account of retirement of Mr.J.J. Makwana.
11. In that view of the matter, this Court is of the view that respondent Page 10 of 13 HC-NIC Page 10 of 13 Created On Wed Aug 16 14:55:26 IST 2017 C/SCA/11888/2004 JUDGMENT no.1-Ahmedabad Urban Development Authority is required to be directed to advertise the said post for appointment on the post of Drivers in accordance with the Rules and Regulations applicable for such appointment. The petitioner no.1, who is serving since last more than 18 to 19 years as Driver under the respondent no.1, is required to be given an opportunity to compete with other candidates, but for doing so, the petitioner no.1 is required to be given age relaxation by the respondent no.1. The respondent-authorities may consider to give age relaxation in case of the petitioner no.1 considering the fact that post in question is not advertised since long even after observations made in interim order passed by this Court and also considering the period of contractual services rendered by him uptil now on the post of Driver. So far as the prayer with respect to equal pay for equal work is concerned, the petitioners were allowed to continue on contractual appointment on account of interim order passed by this Court on 28.12.2004. The recent decision, which has been referred to and relied upon by the learned Senior Advocate appearing for the petitioners, is dated 26.10.2016. It is an admitted position that the petitioner no.1 is working as full time and discharging duties as a Driver. The nature of work and responsibilities attached to the post is same. Therefore, this Court is of the view that the petitioners can be given benefits of equal pay for equal work from the date of decision rendered by the Hon'ble Apex Court with effect from Page 11 of 13 HC-NIC Page 11 of 13 Created On Wed Aug 16 14:55:26 IST 2017 C/SCA/11888/2004 JUDGMENT 01.11.2016 till the regular selection process is completed and appointment order is issued by the AUDA. Accordingly, the respondent nos.1 and 2 shall undertake the regular selection process by advertising the post of Driver at the earliest. The petitioner no.1 is directed to apply for the post in question of Driver that may be advertised by the respondent nos.1 and 2 by giving age relaxation. Since the petitioner no.2 has abandoned the contractual service with effect from 01.12.2010, the petitioner no.1 be given equal pay for equal work in terms of the directions given by the Hon'ble Supreme Court by giving effect at the lowest of the pay scale of the post of Driver against which he is rendering his services with effect from 01.11.2016 till the regular selection process is completed and appointment order is issued by the AUDA. Differential amount towards equal pay be paid within a period of two months from the date of receipt of the order. The petitioner no.1 is discharging duties as Driver since 1996, therefore, he shall not be discontinued from the contractual service till the regular selection and appointment is made. In the event of non-selection of the petitioner no.1, the respondents may also consider to continue him on contractual basis even after regular selection and appointment if required.
12. With the aforesaid observations and directions, the present petition stands partly allowed. Rule is made absolute accordingly.
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