Gujarat High Court
J A Chauhan- Jagadishbhai Amrsinh ... vs State Of Gujarat & 3 on 19 January, 2017
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/CA/9835/2015 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL APPLICATION (FOR DIRECTION) NO. 9835 of 2015
In SPECIAL CIVIL APPLICATION NO. 6568 of 2006
With
SPECIAL CIVIL APPLICATION NO. 6568 of 2006
With
SPECIAL CIVIL APPLICATION NO. 9853 of 2006
With
SPECIAL CIVIL APPLICATION NO. 1266 of 2011
With
SPECIAL CIVIL APPLICATION NO. 14660 of 2010
With
SPECIAL CIVIL APPLICATION NO. 12518 of 2013
With
CIVIL APPLICATION NO. 12281 of 2012
In
SPECIAL CIVIL APPLICATION NO. 1266 of 2011
With
CIVIL APPLICATION NO. 2901 of 2013
In
SPECIAL CIVIL APPLICATION NO. 1266 of 2011
With
CIVIL APPLICATION NO. 10822 of 2012
In
SPECIAL CIVIL APPLICATION NO. 6568 of 2006
With
CIVIL APPLICATION NO. 10815 of 2012
In
SPECIAL CIVIL APPLICATION NO. 9853 of 2006
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
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HC-NIC Page 1 of 63 Created On Tue Jan 24 00:35:54 IST 2017
C/CA/9835/2015 CAV JUDGMENT
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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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J A CHAUHAN- JAGADISHBHAI AMRSINH CHAUHAN & 272....Applicant(s)
Versus
STATE OF GUJARAT & 3....Respondent(s)
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Appearance:
MS VIDHI J BHATT, ADVOCATE for the Applicant(s) No. 1 - 273
ADVANCE COPY SERVED TO GP/PP for the Respondent(s) No. 1 , 3 - 4
MR GUNVANT R THAKAR, ADVOCATE for the Respondent(s) No. 2
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 19 /01/2017
CAV JUDGMENT
1. Since the issues raised in all the captioned writ applications are the same, those were heard analogously and are being disposed of by this common judgment and order.
2. For the sake of convenience, the Special Civil Application No.6568 of 2006 is treated as the lead matter.
3. By this writ application under Article 226 of the Constitution of India, the writ applicants, serving as the Kendra Page 2 of 63 HC-NIC Page 2 of 63 Created On Tue Jan 24 00:35:54 IST 2017 C/CA/9835/2015 CAV JUDGMENT Sanchalaks and Jilla Sanchalaks respectively with the Gujarat Rural Labour Welfare Board, have prayed for the following reliefs;
"(A) Your Lordships may be pleased to issue a writ of mandamus or any other appropriate writ, direction or order, commanding the respondents herein to permanently absorb the petitioners in service on the posts currently occupied by them;
(B) Your Lordships may be pleased to issue a writ of mandamus or any other appropriate writ, direction or order, commanding the respondents herein to treat the petitioners as State Government servants/employees and to ensure that the petitioners are treated at par in all respects with State Government servants/employees of equal rank by affording the petitioners pay scales, increments, dearness allowances, bonus, house rent allowance, medical allowance, leave travel concession, earned leave, sick leave, and retiral benefits like pension, provident fund, gratuity, etc. with effect from the respective dates of entry into service of the petitioners;
(C ) Your Lordships may be pleased to pass a cease and desist order to permanently restrain the respondents herein from terminating the services of the petitioners from the posts currently occupied by them;
(D) Your Lordships may be pleased to issue a writ or mandamus or any other appropriate writ, direction or order, commanding the respondents herein to apply the doctrine of equal pay for equal work to the petitioners by declaring them to be similar in all respects to the Kendra Sanchalaks of the Gujarat Labour Welfare Board for the City of Ahmedabad and the Kendra Sanchalaks of the Gujarat Social Welfare Board, and be further pleased to direct the respondents to provide to the petitioners salary/wages and other service benefits equal in sum and measure to that of the Kendra Sanchalaks of the Gujarat Labour Welfare Board for the City of Ahmedabad and the Kendra Sanchalaks of the Gujarat Social Welfare Board;
(E) Your Lordships may be pleased to declare the action of the respondents herein of paying wages less Page 3 of 63 HC-NIC Page 3 of 63 Created On Tue Jan 24 00:35:54 IST 2017 C/CA/9835/2015 CAV JUDGMENT than the minimum wage rate to the petitioners since inception as illegal, unconstitutional, violative of Articles 14, 16, 21, 23 and 39 of the Constitution of India.
(F) Your Lordships may be pleased to declare the action of the respondents herein of paying the petitioners a paltry fixed sum of Rs.900/- per month (in case of Kendra Sanchalaks) and Rs.1,300/- per month (in case of Jilla Sanchalaks) as whimsical, capricious, arbitrary, illegal, unconstitutional, smacking o bonded labour, null and void;
(G) Pending admission and final hearing of the present petition, Your Lordships may be pleased to restrain the respondents herein from terminating the services of the petitioners from the pots currently occupied by them;
(H) Pending admission and final hearing of the present petition, Your Lordships may be pleased to direct the respondents herein to pay at least the basic minimum wage prevailing in the State of Gujarat to the petitioners, and be further pleased to pay the arrears of difference of wages calculated on the basis of the minimum wage rate right from the date of entry into service in case of each petitioners;
(I) Your Lordships may be pleased to pass any other appropriate order, as deemed fit, in the interest of justice;
(J) Your Lordships may be pleased to award costs quantified at Rs.25,000/- to the petitioners."
4. The case of the writ applicants may be summarized as under;
4.1 The Gujarat Rural Labour Welfare Board, i.e., the respondent No.2 herein was constituted by the State Government, Labour and Welfare Department vide its resolution dated 15.01.1981.
4.2 The Board has been registered under the Public Trusts Act, 1950 and the Societies Registration Act, 1860.
Page 4 of 63HC-NIC Page 4 of 63 Created On Tue Jan 24 00:35:54 IST 2017 C/CA/9835/2015 CAV JUDGMENT 4.3 The Board has been rendering various social service for the upliftment and welfare of the agricultural labourers and rural workers. The Board receives 100% grant-in-aid from the State Government for running its activities through the various projects. The Board is fully controlled by the State Government, and the Minister of Labour is the Chairman of the Board. The Labour Commissioner (State) (Rural) holds the post of the secretary of the Board.
4.4 The central object behind the constitution of the Gujarat Rural Labour Welfare Board is to uplift the social, economic and educational status of the farm labourers and rural labourers in the State of Gujarat falling in the category of the unorganized class. The Board organizes and co-ordinates various activities aimed at the upliftment of the farm labourers and rural labourers. Through the various programmes, the Board helps in the emancipation of the farm labourers and the rural labourers by creating awareness amongst them and by organizing them. Before the constitution of the Board, such work of upliftment of the social, economic and educational status of the farm labourers and rural labourers was performed by the Mamlatdar of the concerned area. Since 1981, this work has been taken over by the respondent no. 2 Board.
4.5 Kendra Sanchalaks & Jilla Sanchalaks The Board functions through the Kendra Sanchalaks and the Jilla Sanchalaks allotted to a particular district. The petitioners nos. 1 to 261 herein are the Kendra Sanchalaks, whereas the petitioners nos. 262 to 273 herein are the Jilla Sanchalaks. They are employed by the Gujarat Rural Labour Page 5 of 63 HC-NIC Page 5 of 63 Created On Tue Jan 24 00:35:54 IST 2017 C/CA/9835/2015 CAV JUDGMENT Welfare Board as the Kendra Sanchalaks or the Jilla Sanchalks for a period ranging from 3 months to 23 years. They are popularly known as the Gram Sevaks. Most of them belong to the Scheduled Castes or the Scheduled Tribes or Socially and Educationally Backward Classes. Those of the petitioners, who were appointed as the Kendra Sanchalaks, were initially paid a fixed sum of Rs. 900/- per month. The others appointed as the Jilla Sanchalaks were paid a fixed sum of Rs. 1,300/- per month. No other service benefit is admissible to the petitioners.
4.6 Recruitment process The appointment of the petitioners was in accordance with the proper and regular selection procedure as per the constitutional scheme under Articles 14 and 16 of the Constitution of India. Their names were called from the Employment Exchange. Their educational qualifications and experience were scrutinized, and after oral interview, they were selected. All the petitioners have passed the S.S.C examination and some of them also hold a Bachelor's degree. Though there were no recruitment rules in place, yet the procedure adopted for selection and appointment was not only compatible with the requirement of the job of the Kendra Sanchalak and Jilla Sanchalak, but also in consonance with the constitutional scheme under Articles 14 and 16 of the Constitution of India. Besides, they were all recruited against the sanctioned posts as required for the proper and effective functioning of the Board. The Kendra Sanchalaks and Jilla Sanchalaks are the infrastructural support staff for the Board to discharge its duties and functions, and a fortiori they are Page 6 of 63 HC-NIC Page 6 of 63 Created On Tue Jan 24 00:35:54 IST 2017 C/CA/9835/2015 CAV JUDGMENT part and parcel of the permanent establishment of the Board. From this, it is clear that the petitioners' appointment cannot be construed as on contract basis or on ad hoc basis or on daily wage basis. Their appointment was on regular permanent basis like any other permanent employees of the State Government.
It is also certified by the Government Labour Officer (Agriculture), Bhuj-Kutch on 31.3.2005 that the appointment of the Sanchalaks is made in consonance with the rules and regulations determined by the competent authority.
4.7 Nature of Functions and Duties of Sanchalaks The work performed by the petitioners is onerous. First, they work full time from morning to evening. They are not given any break in the service. They are required to work continuously from year to year. A muster roll is maintained for the petitioners. The central work of the petitioners is to help in the emancipation of the farm labourers and rural labourers in the State by engaging them in the various programmes and activities. (Para 7 Page 12 of the Memo of the petition).
4.8 Span of Service Most of the petitioners have a long span of service under their belt. Some of the petitioners have worked as the Kendra Sanchalaks or Jilla Sanchalaks as the case may be for more than two decades with the respondent no. 2 Board. Majority of the petitioners have put in more than 10 years of service. They Page 7 of 63 HC-NIC Page 7 of 63 Created On Tue Jan 24 00:35:54 IST 2017 C/CA/9835/2015 CAV JUDGMENT all are continuing in service to date. It cannot be gainsaid that the nature of the work of the respondent no. 2 is perennial. Thus, without the infrastructural support of these Sanchalaks, the Board cannot function.
4.9 Severe exploitation of the petitioners Despite the fact that the petitioners have been working as the Kendra Sanchalaks and the Jilla Sanchalaks for a long period, they were paid a fixed sum of Rs. 900/- per month and Rs. 1,300/- per month respectively.
It was only in the year 2010 that by an oral order dated 27.10.2010 passed by this Court in the pending proceedings of the present Special Civil Application no. 6568 of 2006 with Special Civil Application no. 9853 of 2006, their fixed pay was raised to Rs.4,500/- and 5,000/- respectively by way of interim relief.
4.10 In the aforesaid scenario, repeated representations made by the petitioners and their Union seeking amelioration of their plight proved to be an exercise in futility. Even the various favourable recommendations from the several authorities and functionaries of the State that the petitioners be paid in commensurate with the arduous nature of their duties and in keeping with the pay and allowances paid to the regular employees in the State fell on the deaf years of the respondent authorities.
4.11 In the year 1991, a special committee consisting of the Member Secretary of the respondent no. 2 Board, the Welfare Commissioner of the Gujarat Labour Welfare Board for the City Page 8 of 63 HC-NIC Page 8 of 63 Created On Tue Jan 24 00:35:54 IST 2017 C/CA/9835/2015 CAV JUDGMENT of Ahmedabad, and the Deputy Secretary of the Labour and Employment Department, Government of Gujarat was constituted by the Board, vide Resolution dated 13.1.1991, for the purpose of improving the pay and service conditions of the petitioners. The committee submitted its report to the Board which was forwarded to the State Government for approval.
The said report made three very important and significant observations/ recommendations. They are:-
I) Kendra Sanchalaks are entitled to be placed in the pay scale of Rs.1350-2200; they were entitled to be paid one increment on completion of 5 years and two increments on completion of 10 years while fixing their pay. At the relevant time, the Kendra Sanchalaks were paid a fixed sum of Rs. 500/-
per month.
ii) The petitioners are entitled to be treated at par with the Kendra Sanchalaks of the Gujarat Labour Welfare Board for the city of Ahmedabad as the nature of their work is similar to that done by the Kendra Sanchalaks of the Gujarat Labour Welfare Board for the city of Ahmedabad. The Kendra Sanchalaks of the said Board for the city of Ahmedabad were paid in the pay scale of Rs. 1350-2200.
iii) There is more or less complete similarity between the petitioners and the Kendra Sanchalaks of the Gujarat Labour Welfare Board for the city of Ahmedabad and the Kendra Sanchalaks of the Gujarat Social Welfare Board. The committee further observed that, in fact, the duties of the petitioners were more taxing and arduous than the duties of their counterparts in the above referred two Boards.
Page 9 of 63HC-NIC Page 9 of 63 Created On Tue Jan 24 00:35:54 IST 2017 C/CA/9835/2015 CAV JUDGMENT Thus, as far back as in the year 1991 an expert committee came to the conclusion that the petitioners were entitled to be treated at par with their counterparts employed in the Gujarat Social Welfare Board and the Gujarat Labour Welfare Board for the city of Ahmedabad. The committee had also come to the conclusion that the nature of the work performed by the petitioners was more taxing and arduous than that performed by their counterparts employed with the two other Boards mentioned above. The committee further opined that the petitioners were entitled to be given the pay scale as given to their counterparts employed with the other two Boards.
5. Hence, this writ application.
6. Submissions on behalf of the writ applicants;
6.1 Regular Recruitment under constitutional scheme;
It is certified by the Government Labour Officer (Agriculture), Bhuj-Kutch on 31.3.2005 that the appointment of the Sanchalaks is made in consonance with the rules and regulations determined by the competent authority. Though there were no specific recruitment rules in place prescribing the mode of selection, the procedure adopted in this case was consistent with the constitutional scheme contained in Articles 14 and 16 of the Constitution of India:
6.2 Perennial nature of work It is submitted that the work performed by the Kendra Sanchalaks or the Jilla Sanchalaks is onerous. They work full Page 10 of 63 HC-NIC Page 10 of 63 Created On Tue Jan 24 00:35:54 IST 2017 C/CA/9835/2015 CAV JUDGMENT time, i.e., from morning to evening. They work continuously and are not given any break in the service. A muster role is maintained. The central work of the Sanchalaks is to help in the emancipation of the farm labourers and rural labourers in the State of Gujarat by engaging them in the various programmes and activities. One of the central duties of the Sanchalaks is to organise the farm labourers and the rural labourers with a view to create situations for their social, economic and educational upliftment. The Sanchalaks are also required to ensure that the Minimum Wages Act, 1948 is enforced vis-a-vis farm labourers and the rural labourers. The petitioners, as the Sanchalaks, are also required to ensure that the unorganised farm labourers and rural labourers are able to derive the benefit of the various schemes and programmes sponsored by the State for their social, economic and educational upliftrnent. The perennial nature of the duties of the Sanchaiaks can be discerned from the booklet which describes the various activities of the Board.
It is relevant to point out here that an argument was advanced by the Board that its activities were only for a limited period and not of a permanent nature. In this context, it may be submitted that the Board has been in existence since the year 1981. In an organisation of this nature which has been in existence for more than 35 years, it is quite natural that some of its activities come to an end and new activities are generated. Merely because some old activities have come to an end, it cannot be said that the board is not of a permanent nature, or its functions are not of perennial nature.
It is also admitted by the Board that its existing work is to run welfare centres for children of agricultural and rural Page 11 of 63 HC-NIC Page 11 of 63 Created On Tue Jan 24 00:35:54 IST 2017 C/CA/9835/2015 CAV JUDGMENT workers and "Shramik Suraksha Yojana' and work of medical aid to below the poverty line workers of the rural areas in serious diseases. Clearly, these activities of the Board are of permanent nature, and to carry out these activities, it needs the services of the Sanchalaks on regular permanent basis.
It needs emphasis here that the group insurance scheme for the landless labour, the group insurance scheme for the forest workers, the group insurance scheme for the salt workers, and the group insurance scheme for the fishermen, are all consolidated into one scheme called "Shramik Suraksha Yojna". Thus, instead of the above four individual schemes, the petitioners are required to work for the implementation of the consolidated scheme called "Shramik Suraksha Yojna". The old wine in a new bottle.
The other activities which the Sanchalaks are required to engage in are -
i.) Balwadi activities.
ii) Janshree Samuh Youth Vima Yojna (Post 1992)
iii) First aid.
iv) Organising games.
v) Organising cultural and social activities.
vi) Preparation of identity cards for rural /agricultura1 labour (Post 1992).
vii) Preparation of identity cards for landless labour (Post 1992).
viii)Creating awareness about libraries.
There are other non-board activities which the Sanchalaks are required to engage in. They are -
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i) Loan subsidy.
ii) Financial assistance to widows senior citizens, etc.
iii) Assistance to pregnant women.
iv) Family planning.
It is required to be noted that with regard to the above four activities, which are not essentially the activities of the Board, the Sanchalaks are required to furnish reports to the Board. Such reports are then forwarded by the Board to the State Government.
Thus, looking to the entire gamut or range of the activities undertaken by the Sanchalaks, it cannot be even remotely suggested that the activities of the Board have lessened or that the duties performed by the Sanchalaks are not onerous or perennial in nature.
6.3 At this stage, it is necessary to take note of the following letters exchanged between the certain authorities, which would show the nature of the work and diverse duties performed by the Sanchalaks.
(a) Resolution dated 16.10.1984 passed by the Agriculture and Rural Development Department, to involve Gram Sevaks of the Board in the Work of organising farm labourers and in the work of providing loans subsidies to the poor farm labourers.
(b) Letter dated 25.03.1991 issued by the Director to the General Secretary of the District Industrial Centres to apprise the field staff of the various centres of the Board to provide information of the schemes of the cottage industries to farm Page 13 of 63 HC-NIC Page 13 of 63 Created On Tue Jan 24 00:35:54 IST 2017 C/CA/9835/2015 CAV JUDGMENT and rural labourers after holding personal meetings with them.
(c ) Office order dated 07.08.1993 issued by the Board transferring the Sanchalaks from one centre to another as per the exigencies and requirements of the administrators of the requisitioning centres.
(d) Office order dated 07.08.1993 issued by the Administrative Officer of the Board for requisitioning the services of the Sanchalaks for work of Salt Labour Welfare Centres.
6.4 Myth of honorary social service As the contention raised by the respondents that the petitioners are appointed on a post which is honorary and the wages which are paid are also honorarium in nature, it is submitted that if the appointment order issued to the petitioners is perused, the same nowhere states that the petitioners are appointed for social service. Even the label of "honorary" given to the petitioners is quite misleading as the petitioners are not rendering the service on a purely voluntary basis. In reality, the petitioners have never been freed by respondent no. 2 Board to engage in other vocations or occupations or business or profession. The petitioners have never been allowed to work elsewhere. The employment of the petitioners is not such where the petitioners have the freedom to appear for work whenever they choose to do so. The petitioners are under an obligation to report to work everyday at 09:00 a.m., failing which they can be subjected to disciplinary action. All these would clearly go to show that the petitioners are not honorary workers or rendering social Page 14 of 63 HC-NIC Page 14 of 63 Created On Tue Jan 24 00:35:54 IST 2017 C/CA/9835/2015 CAV JUDGMENT service. The label of 'honorary' given by the respondents to the petitioners cannot and should not decide the fate of this matter, because the said label is a clear misnomer. The said label is attached to the petitioners by the respondents with a view to deprive the petitioners of permanent absorption in service from the respective dates of their joining the respondent no. 2 Board. (see page: 430 to 432).
6.5 Misconception of non-applicability of the Minimum Wages Act As for the contention raised by the respondents that the Minimum Wages Act, 1948 does not apply to the petitioners, it is submitted that right to a fair wage, which is more than a minimum wage flows from Articles 21 and 23 of the Constitution of India, which cannot be waived by the citizens. Therefore, even if it is assumed, for the sake of argument, without admitting, that the latest notification dated 26.12.2014 issued by the Labour and Employment Department of the State of Gujarat does not refer to the nature of the work and the duties performed by the petitioners, the petitioners have a fundamental right to demand a fair wage for the services rendered by them. On this premise, by oral order dated 27.10.2010 passed by this Hon'ble Court in the pending proceeding of the present Special Civil Application no.6568 of 2006 with Special Civil Application no.9853 of 2006, by way of interim relief, Kendra and Jilla Sanchalaks' fixed pay was raised to Rs.4500/- and 5000/- respectively.
6.6 It is submitted that the Expert Committee of the respondent no.2 Board recommended way back in the year 1992 that the petitioners must be given the regular pay scale Page 15 of 63 HC-NIC Page 15 of 63 Created On Tue Jan 24 00:35:54 IST 2017 C/CA/9835/2015 CAV JUDGMENT at par with the Kendra Sanchalaks of the Gujarat Labour Welfare Board for the City of Ahmedabad.
The principle of 'equal pay for equal work' is not expressly declared by the Constitution to be a fundamental right. But it certainly is a constitutional goal. In other words, it is a constitutional right. Article 39(d) of the Constitution proclaims "equal pay for equal work for both men and women"
as a Directive Principle of State Policy. It is a judicially accepted principle that Directive Principles have to be read into the fundamental rights as a matter of interpretation. Article 14 of the Constitution enjoins the State not to deny any person equality before the law or the equal protection of the laws. As observed by the Supreme Court of India :-
" ...... To vast majority of the people the equality clauses will have some substance if equal work means equal pay. Questions concerning wages and the like, mandane they may be, are yet matters of vital concern to them and it is there, if at all that equality clauses of the Constitution have any significance to them." [(1990) 2 SCC 396].
6.7 Need and justification for regularization It is submitted that the State Government had issued a circular dated 01.05.2007 for one-time regularization of all the Government employees which is in consonance with the directions of the Hon'ble Supreme Court of India in the case of Uma Devi [(2008) 4 SCC 1]. It is submitted that the petitioners fulfill all the conditions required by Uma Devi for one-time regularization and absorption in permanent service.
In State of Karnataka & Ors. Vs. M.L. Kesari & Ors.Page 16 of 63
HC-NIC Page 16 of 63 Created On Tue Jan 24 00:35:54 IST 2017 C/CA/9835/2015 CAV JUDGMENT [2010 (7) SCALE 743], the Hon'ble Supreme Court of India, after referring to the observation made by the Court in paragraph 53 of the State of Karnataka V. Umadevi [(2006) 4 SCC 1], observed as under:
"6 The term 'one-time measure' has to be understood in its proper perspective. This would normally mean that after the decision in Umadevi, each department or each instrumentality should undertake a one-time exercise and prepare a list of all casual, daily- wage or ad hoc employees who have been working for more than ten years without the intervention of courts and tribunals and subject them to a process verification as to whether they are working against vacant posts and possess the requisite qualification for the post and if so, regularise their services.
7. At the end of six months from the date of decision in Umadevi, cases of several daily- wage/ad-hoc/ casual employees were still pending before Courts. Consequently, several departments and instrumentalities did not commence the one-time regularisation process. On the other hand, some Government departments or instrumentalities undertook the one-time exercise excluding several employees from consideration either on the ground that their cases were pending in courts or due to sheer oversight. In such circumstances, the employees who are entitled to be considered in terms of Para 53 of the decision in Umadevi, will not lose their right to be considered for regularisation, merely because the one- time exercise was completed without considering their cases, or because the six month period mentioned in para 53 of Umadevi has expired. The one-time exercise should consider all daily wage/ad hoc/those employees who had put in 10 years of continuous service as on 10.04.2006 without availing the protection of any interim orders of courts or tribunals. If any employer had held the one-time exercise in terms of para 53 of Umadevi, but did not consider the cases of some employees who were entitled to the benefit of para 53 of Umadevi, the employer concerned should consider their cases also, as a continuation of the one-time exercise. The one-time exercise will be concluded only when all the employees who are entitled to be considered in terms of para 53 of Umadevi, are so considered."Page 17 of 63
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7. The sum and substance of the submissions canvassed on behalf of the writ applicants is as under:-
(a) By now, they have put in more than 20 years of service.
(b) Their initial appointments are regular for all purposes, because their names are called from the employment exchange and their appointments are made under the recruitment rules approved by the State Government.
c) Their work is full time.
(d) They are working on sanctioned posts.
(e) They are not rendering the social service, because they are not allowed to come to work as and when they choose to do so. There are fixed timings for work and so the petitioners have never been freed by the respondent no. 2 Board to enable them to take up alternative employment.
(f) The petitioners' appointments are neither backdoor, nor illegal, nor irregular, nor ad-hoc.
(g) The petitioners' work is perennial in nature, because as and when old social welfare schemes have closed, new ones have opened.
(h) The Expert Committee of the respondent no.2 Board recommended way back in the year 1992 that the petitioners must be given a regular pay scale like the Kendra Sanchalaks of the Gujarat Labour Welfare Board for the city of Ahmedabad.
(i) For more than 20 years now, the respondents have exploited the petitioners by paying them less than the minimum wages.Page 18 of 63
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8. Submissions on behalf of the respondents;
8.1 On the other hand, this writ application has been vehemently opposed by Mr. P.K. Jani, the learned Additional Advocate General assisted by Mr. Krutik Parikh and Mr. Swapneshwar Goutam, the learned Assistant Government Pleaders appearing for the State.
8.2. The main contentions raised by the State Government are as under;
8.3. Method of Recruitment - The Kendra Sanchalaks/Jilla Sanchalaks are appointed not through one particular source or means which unlike the recruitment of the regular Government employee. The Kendra Sanchalaks / Jilla Sanchalaks are recruited through the rules framed specifically in the respondent no. 2 Board. Such recruitment rules are different from the recruitment rules governing a regular Government employee.
8.4 Payment of Honorarium and hence honorary social service-
The petitioners are appointed on a post which is honorary and the wages which are paid are also honorarium in nature. Since they are paid honorarium for their service, they are rendering social service.
8.5. Part-time job -The petitioners are not working full time. They are working from 9 am. to 1 p.m. and hence they are part-timers.
Page 19 of 63HC-NIC Page 19 of 63 Created On Tue Jan 24 00:35:54 IST 2017 C/CA/9835/2015 CAV JUDGMENT 8.6. Non-applicability of the minimum wages- The Minimum Wages Act, 1948 is not applicable in the case of the petitioners. The nature of the work and the duties performed by the petitioners are not included in the schedule appended to the Minimum Wages Act. Such has been the scheme right from the enactment of the Act and is still continued till today.
8.7. Reduction in the activities of the Board- The activities of the Board were only for a limited period and not of a permanent nature. Many of the welfare activities done by the Board have been transferred to the respective departments.
8.8. The recommendations of the Committee given in 1991 have lost their relevance today.
9. Mr. Jani, the learned Additional Advocate General also submitted the following:-
9.1 The Gujarat Rural Labour Welfare Board was established in the year 1981 under the Societies Registration Act, 1860.
The said board has its own rules and by-laws to govern itself. However, it is to be appreciated that the rules and the by-laws of the Gujarat Rural Labour Welfare Board are not the statutory rules.
9.2 The Gujarat Rural Labour Welfare Board is established to provide and extend the numerous welfare schemes as initiated by the State Government for the emancipation of the agriculture and rural labourers.
9.3 The board acts as a connecting links or in other words as a medium through which the various welfare Page 20 of 63 HC-NIC Page 20 of 63 Created On Tue Jan 24 00:35:54 IST 2017 C/CA/9835/2015 CAV JUDGMENT schemes of the State Government are extended to the agricultural and rural labourers in the State of Gujarat.
9.4 The Gujarat Rural Labour Welfare Board functions through the Jilla Sanchalak/Kendra Sanchalak respectively in sizable population of approximately 1000-5000 in a village and such Jilla Sanchalak/ Kendra Sanchalak conduct grass root level work, aiding in execution of the various welfare schemes of the State Government that are delegated by the Gujarat Rural Labour Welfare Board. The Jilla Sanchalak acts as an umbrella over the functioning of the Kendra Sanchalak, and in addition such Kendra Sanchalak also aid in executing the various welfare schemes of the State Government that are being further extended by the Gujarat Rural Labour Welfare Board.
9.5 ROLE OF THE JlLLA SANCHALAK/ KENDRA SANCHALAK.
The Jilla Sanchalak/Kendra Sanchalak are the grass root level soldiers working at the primary level in executing the various welfare schemes of the State Government.
Such welfare schemes can be in numerous forms like for example if there is a scheme of State Government to provide monetary compensation to the victims or to provide financial assistance to the agriculture or rural labourers who have no financially means to perform funeral rules of their near ones, in such case the Jilla Sanchalak/Kendra Sanchalak would go about in their respective field area and collect details of such Page 21 of 63 HC-NIC Page 21 of 63 Created On Tue Jan 24 00:35:54 IST 2017 C/CA/9835/2015 CAV JUDGMENT affected persons by collecting their details in forms and subsequently passing such forms to the Gujarat Rural Labour Welfare Board so that the State Government can thereafter provide monetary assistance as per the details collected by the Jilla Sanchalak/ Kendra Sanchalak.
Jilla Sanchalak/Kendra Sanchalak also perform such field works and it is to be appreciated that Jilla Sanchalaks are not functioning as supervisory body over the working of the various Kendra Sanehalak.
It can be said that the Jilla Sanchalaks/Kendra Sanchalaks are the main connecting link between the target group i.e. the agriculture labourers and the rural labourers in various villages in the State of Gujarat, to whom such various welfare schemes of the State Government are to be provided and to the Gujarat Rural Labour Welfare Board who is the primary or rather the nodal agency to carry out the implementation of the various schemes of the State Government.
9.6. EMPLOYER/EMPLOYEE RELATIONSHIP BETWEEN STATE GOVERNMENT AND JILLA SANCHALAK/ KENDRA SANCHALAK.
It is to be appreciated that there is no direct employment/ employee relationship between the State Government and the Jilla Sanchalak/Kendra Sanchalak.
The Jilla Sanchalaks/Kendra Sanchalaks are the employees of the Gujarat Rural Labour Welfare Board and they Page 22 of 63 HC-NIC Page 22 of 63 Created On Tue Jan 24 00:35:54 IST 2017 C/CA/9835/2015 CAV JUDGMENT are recruited by the Gujarat Rural Labour Welfare Board and not by the State Government.
Thus, the rules of recruitment in the terms and conditions of the Jilla Sanchalak/Kendra Sanchalak have been framed by the Gujarat Rural Labour Welfare Board and till date they are being governed by such rules. Further, the Jilla Sanchalaks/ Kendra Sanchalaks do not enjoy the benefits of recruitment and services as enunciated in Articles 309 to 311 of the Constitution of India, as are being enjoyed by a regular State Government employee.
9.7 APPOINTMENT OF THE JILLA SANCHALAK/ KENDRA SANCHALAK.
The appointment of the Jilla Sanchalaks/Kendra Sanchalaks is carried out by collecting their names from various sources mainly from the employment exchange. They are then subjected to the oral interview and other selection criteria before they are appointed on the said post.
The Jilla Sanchalaks/ Kendra Sanchalaks are appointed on an honorary wages i.e. they are paid fixed wages in the form of honorarium. To further clarify it can be said that the wages of the Jilla Sanchalaks/Kendra Sanchalaks are under the control of the Gujarat Rural Labour Welfare Board and are not subjected to pay scales and various perks that are granted to the Regular State Government employee.
It is to be noted that in the appointment letter of the Jilla Page 23 of 63 HC-NIC Page 23 of 63 Created On Tue Jan 24 00:35:54 IST 2017 C/CA/9835/2015 CAV JUDGMENT Sanchalaks/Kendra Sanchalaks itself, it is categorically stated that the Jilla Sanchalaks/Kendra Sanchalaks would not enjoy the benefits that the regular State Government employee would enjoy.
9.8 NATURE OF WORK AND DUTIES OF JILLA SANCHALAK/ KENDRA SANCHALAK.
The work and the duties of the Jilla Sanchalaks/Kendra Sanchalaks is restricted only to the field area whereby the Jilla Sanchalaks/Kendra Sanchalaks have to execute various welfare schemes that are being declared by the State Government.
The work timings of the Jilla Sanchalak/ Kendra Sanchalak are not regular and extremely flexible. It is to be noted that since the work of the Jilla Sanchalak/ Kendra Sanchalak is only limited to collecting the information and making the concerned people aware about the welfare scheme of the Government, the work timings of the Jilla Sanchalak/ Kendra Sanchalak are not regular work timings i.e. from 10:00 am. to 06:00 am. It is because at the given day there can be one or even no regular scheme to be executed and thus during this times the Jilla Sanchalak/Kendra Sanchalak would not have any work or in other words would have little work to do. It has been stated in the petition itself their documentary evidence the work timings of Jilla Sanchalak/ Kendra Sanchalak from 09:00 am. to 01 :00 pm. It is to be appreciated that since such welfare schemes of the State Government are now being taken over by various other agencies like the NGOs etc. the work laid is discussed Page 24 of 63 HC-NIC Page 24 of 63 Created On Tue Jan 24 00:35:54 IST 2017 C/CA/9835/2015 CAV JUDGMENT and at present there are only 5 welfare schemes to be executed in at present for the year 2016.
It should be appreciated that since the workload and the work timings of the Jilla Sanchalak/ Kendra Sanchalak are very flexible and not regular, it is very much possible that the Jilla Sanchalak/Kendra Sanchalak would be undertaking other forms of employment, when they are not engaged in the activities of the Board.
9.9 DIFFERENCE BETWEEN JILLA SANCHALAK/ KENDRA SAN CHALAK OF GUJARAT RURAL LABOUR WELFARE BOARD AND JILLA SANCHALAK! KENDRA SAN CHALAK OF GUJARAT SOCIAL WELFARE BOARD.
Though the Jilla Sanchalak/Kendra Sanchalak of the Gujarat Social Welfare Board also aid in executing the welfare scheme of the State Government, but their roles are limited to the cities only.
The primary difference between the nature of work between the Jilla Sanchalak/ Kendra Sanchalak of the Gujarat Rural Labour Welfare Board and the Jilla Sanchalak/ Kendra Sanchalak of the Gujarat Social Welfare Board is that the former aid in executing numerous welfare scheme amongst the agricultural and rural labourers in the remote villages of the State, while the latter have to aid in execution of the welfare scheme that are initiated under the various labor laws only.
Jilla Sanchalak/Kendra Sanchalak of the Gujarat Social Page 25 of 63 HC-NIC Page 25 of 63 Created On Tue Jan 24 00:35:54 IST 2017 C/CA/9835/2015 CAV JUDGMENT Welfare Board are the regular employees who are recruited during the regular recruitment process and are also given regular pay scales and their pay scales are subjected to recommendations of various pay commission.
It is worth noting that there is vast difference between the nature of the work duties and working conditions between the Jilla Sanchalak/Kendra Sanchalak of the Gujarat Rural Labour Welfare Board and the Jilla Sanchalak/ Kendra Sanchalak of the Gujarat Social Welfare Board as aforesaid, as the funding of the establishment of the Gujarat Social Welfare Board is independent then that of the Gujarat Rural Labour Welfare Board and such has been the State of Affairs since its inception.
The writ applicants therefore cannot claim parity with the Jilla Sanchalak/ Kendra Sanchalak of the Gujarat Social Welfare Board as the work timings, nature of the work and the working conditions are entirely different and there is no legal ground to claim parity and claim their right to be treated at par with the case of the Jilla Sanchalak/ Kendra Sanchalak of the Gujarat Rural Labour Welfare Board.
9.10 NON-APPLICABILITRY OF THE MINIMUM WAGES ACT.
The writ applicants do not enjoy the benefits of the Minimum Wages Act since their nature of work and other conditions are not mentioned in the schedule of the Minimum Wages Act.
Page 26 of 63HC-NIC Page 26 of 63 Created On Tue Jan 24 00:35:54 IST 2017 C/CA/9835/2015 CAV JUDGMENT It is to be appreciated that due to the aforesaid reason, the various Government Resolutions which included the minimum wages of various clause-4 employees are not applicable in the case of the writ applicants.
9.11 NON ABSORBTION AND TREATMENT AT PAR WITH THE STATE GOVERNMENT EMPLOYEES.
The writ applicants cannot be treated at par with the regular State Government employees since their nature of work, their appointment and their recruitment process, their terms and conditions of services are totally different from the State Government employees.
It is submitted that even for the sake of argument, it is expected that the wages that are paid to the Jilla Sanchalak/Kendra Sanchalak are very low, then that by itself they would not entitle the writ applicants to be treated and get absorbed as a State regular employee to enjoy the benefits as a latter.
It is to be appreciated that getting low wages is one thing and getting absorbed as a State Government employee is another and therefore grievance as regards the former would not entitle the writ applicants to get absorbed as a regular State Government employee.
10. Mr. Jani, in support of his submissions, has placed Page 27 of 63 HC-NIC Page 27 of 63 Created On Tue Jan 24 00:35:54 IST 2017 C/CA/9835/2015 CAV JUDGMENT reliance on the following decisions;
1) In the case of State of Rajasthan & ors. vs. Dayalal & Ors., 2011(2) SCC 429;
2) In the case of State of Karnataka & Ors. vs. Ameerbi & Ors. 2007(11) SCC 681;
3) In the case of District Rehabilitation Officer & Ors. vs. Jay Kishore Maity & Ors. 200(12) SCC 380;
4) In the case of Secretary to Government, School Education Department, Chennai vs. R. Govindswamy & Ors. (2014) 4 SCC 769;
11. ANALYSIS 11.1 Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether the writ applicants are entitled to the reliefs as prayed for in the writ application.
11.2. On 27th October, 2010, the following order was passed;
"On a request made by learned advocate for the petitioners, the matters are taken-up for final hearing.
For paucity of time, the matters could not be heard at full length. Taking into consideration the nature of the grievance of the petitioners, as they were appointed in different years starting from 1981-82, but in any case all are working for atleast last ten years, but still they are paid a meager amount of Rs.900=00. This is done by taking the shelter of the term honorary and under the excuse that what is paid to them is honorarium, they are subjected to this injustice for all these years.
In the wake of the present day price-rise, amount of Rs.900=00 is not sufficient to keep 'the body and soul' Page 28 of 63 HC-NIC Page 28 of 63 Created On Tue Jan 24 00:35:54 IST 2017 C/CA/9835/2015 CAV JUDGMENT even of one single person together, much less of a family which can reasonably be taken of at least three members.
The fact that the petitioners are getting such meager amount and the reason aforesaid for which this amount is paid, coupled with the fact that there is a report of respondent no.2 about the actual working of these petitioners, makes this Court to consider the case for passing an order at this stage.
The learned advocate for the petitioner pressed into service an order passed by this Court (Coram: Hon'ble the Chief Justice and Hon'ble Mr.Justice Akil Kureshi) in Special Civil Application No.2492/2009 dated 26th August 2010 wherein the Government placed on record a Government Resolution dated 29th April 2010 whereby the fixed wages are revised after taking into consideration the pay revision of regular employees. The tabular information about the same contained in paragraph 4 of that order is reproduced hereunder:
Sr. Class Pay Scale Present Fix Revised Fix No. (As per 5th Pay Pay Pay Commissio
n) 1 Class - IV 2550-3200 2 2610-3540 1500 3500 3 2650-4000 4 2750-4400 5 Class III 3050-4590 6 4000-6000 2500 4500 7 4500-7000 Page 29 of 63 HC-NIC Page 29 of 63 Created On Tue Jan 24 00:35:54 IST 2017 C/CA/9835/2015 CAV JUDGMENT 8 5000-8000 3500 5000 9 Class III 5500-9000 10 Class III 6500- 4500 6000 10500 The observations made by the Division Bench in paragraph 5 are applicable to the facts of the present case with all force. Paragraph 5 reads as under:
From the aforesaid, it will be evident that the State Government is not guided by the Minimum Wages Act, and fixed the wages on the basis of recommendations of the Revision Committees, and taking into consideration the minimum pay which is received by regular employee, they have revised the fixed wages which is much more than the minimum pay fixed for the regular scale of pay. However, we find that pay has been revised by the Revision Committee on the basis of recommendations of 5th Pay Commission. Now, recommendations of 6th Pay Commission have been implemented with effect from January 2006, therefore, it is desirable for the State Government to determine the fixed wages of Class IV and Class III employees, taking into consideration the minimum wages fixed in pursuance of the recommendations of the 6 th Pay Commission corresponding to Class IV and Class III regular employees. The Government will also consider to do away with the contractual appointments by making the posts regular, if a fix pay post is continued for more than three years. Such decision should be taken within three months and be communicated to all the establishments with a copy to the Registrar General, High Court of Gujarat. The writ petition and the Civil Application both stand disposed of with the aforesaid observations and directions. No costs.
In addition to that, learned advocate for the petitioners relied upon a decision of the Hon'ble the Apex Court in the matter of People's Union for Democratic Rights and others v/s. Union of India and others reported in (1982)3 SCC 235 wherein the Hon'ble the Apex Court observed in paragraph 14 as under:Page 30 of 63
HC-NIC Page 30 of 63 Created On Tue Jan 24 00:35:54 IST 2017 C/CA/9835/2015 CAV JUDGMENT (14) Now the next question that arises for consideration is whether there is any breach of Article 23 when a person provides labour or service to the State or to any other person and is paid less than the minimum wage for it. It is obvious that ordinarily no one would willingly supply labour or service to another for less than the minimum wage, when he knows that under the law he is entitled to get minimum wage for the labour or service provided by him. It may therefore be legitimately presumed that when a person provides labour or service to another against receipt of remuneration which is less than the minimum wage, he is acting under the force of some compulsion which drives him to work though he is paid less than what he is entitled under law to receive.
What Article 23 prohibits is 'forced labour' that is labour or service which a person is forced to provide and 'force' which would make such labour or service 'forced labour' may arise; in several ways. It may be physical force which may compel a person to provide labour or service to another or it may be force exerted through a legal provision such as a provision for imprisonment or fine in case the employee fails to provide labour or service or it may even be compulsion arising from hunger and poverty, want and destitution. Any factor which deprives a person of a choice of alternatives and compels him to adopt one particular course of action may properly be regarded as 'force' and if labour or service is compelled as a result of such 'force', it would be 'forced labour'. Where a person is suffering from hunger or starvation, when he has no resources at all to fight disease or to feed his wife and children or even to hide their nakedness, where utter grinding poverty has broken his back and reduced him to a state of helplessness and despair and where no other employment is available to alleviate the rigour of his poverty, he would have no choice but to accept any work that comes his way, even if the remuneration offered to him is less than the minimum wage. He would be in no position to bargain with the employer; he would have to accept what is offered to him. And in doing so he would be acting not as a free agent with a choice between alternatives but under the compulsion of economic circumstances and the labour or service provided by him would be clearly 'forced labour'. There is no reason why the word 'forced' should be read in a narrow and restricted manner so as Page 31 of 63 HC-NIC Page 31 of 63 Created On Tue Jan 24 00:35:54 IST 2017 C/CA/9835/2015 CAV JUDGMENT to be confined only to physical or legal 'force' particularly when the national charter, its fundamental document has promised to build a new socialist republic where there will be socio-economic justice for all and everyone shall have the right to work, to education and to adequate means of livelihood. The Constitution makers have given us one of the most remarkable documents in history for ushering in a new socio-economic order and the Constitution which they have forged for us has a social purpose and an economic mission and therefore every word or phrase in the Constitution must be interpreted in a manner which would advance the socio-economic objective of the Constitution. It is not unoften that in a capitalist society economic circumstances exert much greater pressure on an individual in driving him to a particular course of action than physical compulsion or force of legislative provision. The word 'force' must therefore be construed to include not only physical or legal force but also force arising from the compulsion of economic circumstances which leaves no choice of alternatives to a person in want and compels him to provide labour or service even though the remuneration received for it is less than the minimum wage. Of course, if a person provides labour or service to another against receipt of the minimum wage it would not be possible to say that the labour or service provided by him is 'forced labour' because he gets what he is entitled under law to receive. No inference can reasonably be drawn in such a case that he is forced to provide labour or service for the simple reason that he would be providing labour or service against receipt of what is lawfully payable to him just like any other person who is not under the force of any compulsion. We are therefore of the view that where a person provides labour or service to another for remuneration which is less than the minimum wage, the labour or service provided by him clearly falls within the scope and ambit of the words "forced labour" under Articel 23. Such a person would be entitled to come to the Court for enforcement of his fundamental right under Article 23 by asking the Court to direct payment of the minimum wage to him so that the labour or service provided by him ceases to be 'forced labour' and the breach of Articel 23 is remedied. It is therefore clear that when the petitioners alleged that minimum wage was not paid to the workmen employed by the contractors, the complaint was really in effect and substance a complaint Page 32 of 63 HC-NIC Page 32 of 63 Created On Tue Jan 24 00:35:54 IST 2017 C/CA/9835/2015 CAV JUDGMENT against violation of the fundamental right of the workmen under Article 23.
Besides, the learned advocate for the petitioner also placed reliance on a recent decision of the Hon'ble the Apex Court in the matter of State of Assam v/s. Union of India and others [2010(10) SCALE 352] wherein the Hon'ble the Apex Court observed in paragraph 26 as under:
Having considered the rival opinions suggested by the learned counsel for the parties to the lis and also keeping in view the interim orders passed by this Court dated 20.04.2009, pursuant to which it is the State of Assam which is paying minimum of pay scale to the private respondents, we are of the view that the private respondents in these appeals require to be paid at least minimum wages payable under The Minimum Wages Act during the pendency of the appeals before the High Court, by the State of Assam, subject to the final orders that may be passed by the High Court.
Taking into consideration all these facts the Court deems it proper to pass the following order:
(i) The State Government is directed to pay to the petitioners who are working as 'Kendra Sanchalak' an amount of Rs.4,500=00 and Rs.5,000=00 to those who work as 'Jilla Sanchalak', starting from the month of October 2010 payable in November 2010.
(ii) The payment shall be made on or before 3rd November 2010. This time limit is prescribed in light of the ensuing Diwali Festival.
(iii) During the pendency of these petitions, the petitioners are directed to make a detailed nd representation on or before 22 November 2010.
(iv) The Principal Secretary, Labour and Employment Department is directed to decide such representation within four weeks from the date of receipt of the same.
(v) The State Government is directed to pay through the same mechanism which is operative at present i.e. by Page 33 of 63 HC-NIC Page 33 of 63 Created On Tue Jan 24 00:35:54 IST 2017 C/CA/9835/2015 CAV JUDGMENT paying to the Board who in turn will pay to the petitioners.
A copy of this order be made available to the learned AGP Mr.Shukla and learned advocate Mr.Thakar for its onward communication.
Direct service today.
Stand over to 23rd December 2010."
11.3 Before adverting to the rival submissions canvassed on either sides, I should look into the rules applicable so far as the writ applicants are concerned. The free English translation of the rules called as the "Gujarat Gram Kamdar Kalyan Board Services Classification and Recruitment (General) Rules, 1981 is as under;
"Approved Vida letter No. GMK/1082/33820/GH-2 dated 5-3-1984 of the Labor and Employment Department of the Gujarat government.
Recruitment Rules (General) of the Employees of Gujarat Gram Kamdar Kalyan Board, Gandhinagar.
1. Short definition, commencement and its Application:-
These Rules may be called as Gujarat Gram Kamdar Kalyan Board Service Classification and Recruitment (General) rules, 1981.
2. They shall come into force with immediate effect.
3. Definition- In these rules, unless the context otherwise requires:-
(a) Board means, the Gujarat Gram Kamdar Kalyan Board.
(b) "Inferior Services" means the Services and posts specified in Sub- Rule 4 of Section 3.
(c) "Post" Means a post under the Board included under such Board.Page 34 of 63
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(d) "Service" means any service which includes such of "High" or "Lower" cedar services which is under Board.
(e) The service under the Board means such service and post which is specified under Sub-Rule-(l) of Rule-4.
(f) "Lower cedar Service" means such service and post which is specified under Sub-Rule-(2) of Rule-4.
Part-II Classification of Services and Posts 3 (1) The Services shall be classified as under as per the Resolution of the Board.
(1) Class-I. (2) Class-II (3) Class-III; and (4) Class-IV.
(2) If a service consists of more than one grade, then different grade may be included in different classes.
4. Any order made by competent authority and in force immediately before the commencement of these rules, relating to classification made by the State/ Board, then it shall be continued to be in force until modified or rescinded by an order of the of these Rules.
5. Any service or post shall unless otherwise directed by the Board by general or Special order made in that behalf be deemed to belonging-
(a) Class-I and Class-II if it is of a gazetted rank; and
(b) to Class--III, in any other case.
6. Subordinate and Inferior Services under the Board-
(a) The services and posts classified as Class-I and Class- II shall be known as High Cedar services.
(b) The services and posts classified as Class-III and Class-IV shall be known as Lower Cedar services under the Board.
Part-III
5. General provisions regarding recruitment to any service or post.
Physical Fitness:- Subject to the provisions of Sections 10, Page 35 of 63 HC-NIC Page 35 of 63 Created On Tue Jan 24 00:35:54 IST 2017 C/CA/9835/2015 CAV JUDGMENT 14 and 15 of the Bombay Civil Services Rules, 1959, no person shall be appointed to any service or post if he does not pass such medical test of physical fitness as may be prescribed by the Board, provided that where an appointment is made by promotion or transfer of a person in service; then. no medical test is normally required.
6. Evidence of good Character: An appoint to any service or post otherwise than by promotion or transfer of a person already in service, then such appointment -
(a) If the appointment is to be made after asking the Staff Selection then the Board ;
Or;
(b) in other case it shall be subjected to the production of evidence of good character.
7. Condition as to Citizenship of India:
Subject to the provision of these rules, no person shall be appointed to a service or post then any person holding Indian Citizenship can be given appointment.
8. Condition as to prescribed qualifications:
Subject to amendments from time to time in the provisions of Mumbai Civil Services Rules, 1957 and further if it is not required to ask the. Staff Selection Committee for the any service or post under these rules, and if no any specific education qualification is prescribed as regard the age then, for such service or post it will be discretion of the Member for recruit of any person as may be deemed fit by them for a period of 30 days or till the rules of recruitments are formed which ever is less.
9. Where in any prescribed qualifications for any service or post includes experience of actual work, and when applications have been invited for such service or post then the time shall be -
(a) Till that date when no any provision is otherwise made in the recruitment Rules.
(b) It should be considered till the last date fixed for acceptance of such application.
10. If in any service or post if there is necessary degree Page 36 of 63 HC-NIC Page 36 of 63 Created On Tue Jan 24 00:35:54 IST 2017 C/CA/9835/2015 CAV JUDGMENT or any local degree of any approved University or equivalent qualification as essential qualification at the time of recruitment rule which is under implementation then also the upper age limit shall be Considered to be twenty eight years for the purpose of recruitment on such service or post.
11. The qualifications have been prescribed for the appointment on the following service or post of the Board.
Pay scale 1 Account Officer 650-1200 I pay ad Account Officer of State Service desiring to come on deputation from the common cedar.
2 Administrative 650-1200 (A) The person who has
Officer worked in Sachivalaya in
Section Officer cedar and
has worked as Government
Labor Officer for three years
in Labor Commissioner office
in administrative Branch
such candidate desiring to
come on deputation
(B) By giving promotion to
the Superintendent having
experience of three years in
Administrative Branch as in
Account Department of the
office of the Labor
Commissioner
3 Superintendent 500-900 (1) First priority to graduate,
Commence or graduate in
law.
(2) experienced of office
work and Administrative
Correspondence.
(3) Good Knowledge of
Gujarati Language is
essential
(4) The post can be filled by
appointing the Head
Clerk/Superintendent of
Labor/Gram Labor
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Commissioner office on
deputation.
4 Senior Clerk 330-560 (1) The person who has been
selected on service as clerk
in the office of Labor
Commissioner and who has
worked as clerk can be taken
on deputation.
(2) Those who is in the list of
Junior Clerk.... illegible
(3) Those who have passed
examination of graduate or
equivalent examination of
approved college by way of
direct recruitment.
(4) Good knowledge of
Gujarati language is
essential.
(5) Age limit- 20 years.
5 Clerk-Typist 260-400 (1) The candidate should be
S.S.C or equivalent
examination by way of direct
recruitment.
(2) Typing knowledge is
essential.
(3) Speed of '20' words per
minute in Gujarati typing.
(4) The age limit shall be 25
years.
6 Clerk 260-400 (a) S.S.C pass and who has
worked for three years in
Class-IV.
Or
(b) For appointment by way
of direct recruitment, the
candidate.
1) he should have passed
S.S.C or its equivalent
examination.
2) Knowledge of Gujarati
Language is essential.
3) The age limit shall be of
25 years.
7 Gujarati Steno- 475-800 (1) S.S.C or equivalent
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Grapher grade- examination.
2 (2) Speed of '75' words per
minute and '25' words per
minute in typing.
(3) Good knowledge of
Gujarati language is
essential.
(4) The age limit between 18
to 40 years.
8 Peon 196-232 (1) The candidate should not
have attained the age of 30
years.
(2) He should have passed
8th standard.
(3) Cycling is essential.
9 Honorary Rs.400- By direct recruitment
Center honorary (1) S.S.C. Or equivalent
Manager wage examination.
(2) Graduate shall be given
priority.
(3) The age limit of the
candidate shall be of 30
years.
10 Bal-Sevika Rs.100/- By direct recruitment.
(Part time) (honorariu (1) Std. 7 pass.
m) (2) Knowledge of Gujarati
Language is essential.
(3) The age limit of
candidate shall be of 28
years.
11 Part time peon Rs.50- By direct recruitment.
honorariu (1) The candidate must not
m have attained the age of 30
years.
(2) Knowledge of writing and
reading.
(3) Cycling is essential.
(4) Physical fitness is
essential.
The appointment on the aforesaid post or for appointment on any other post shall be made by the Selection Committee of the Board from the persons Page 39 of 63 HC-NIC Page 39 of 63 Created On Tue Jan 24 00:35:54 IST 2017 C/CA/9835/2015 CAV JUDGMENT complying with the terms of these rules or the terms prescribed in the rules for recruitment, on the basis of the result of the competitive examination or by direct selection or by giving promotion or by making transfer. (from the office of Labor Commissioner) .
10. Appointment by promotion.
(1) When appointment is to be made on any post by way of promotion then, if any servant shall not be entitled for such promotion on account of seniority. illegible... no such appointment should be made without ascertaining qualification for such promotion.
(2) At the time of making appointment on any post by way of. promotion, if any servant is apparently is not qualified for performing the aforesaid duties and responsibilities and it is likely to effect adversely the work of the said post by his appointment, then the said servant can be superseded.
PART-IV Miscellaneous.
12. The previous consent of employer:
(1) If any candidate is in service of State government or in Local body or in any Corporation of the ownership of State or under its control then, any application made by him for being appointment in any post in State Service or on any post of Lower level (cedar) post, which is given without consent of the respective local body or Corporation as the case may be shall be rejected.
Explanation: In the case of an applicant employed under the Government or under Central government then the consent of such Government shall be presumed if the appointing authority is satisfied from the endorsement of the officer forwarding the application or otherwise that the application has been made in accordance with the rules made by the Government concerned.
(2) Where if any servant employed in service under the Board, desires to make an application for any post or service in any State government or Central Government or for appearing in examination for any post, then, he shall submit his application through his appointing authority which shall be decide, whether or not the Government servant shall be permitted to apply.
Page 40 of 63HC-NIC Page 40 of 63 Created On Tue Jan 24 00:35:54 IST 2017 C/CA/9835/2015 CAV JUDGMENT (3) The application of the person who is in employment of Central Government or in any other State Government shall be accepted without permission of the, Government under which he is employed.
13. Disqualification for bigamous marriage:-
(1) If any person who is male then if more then one wives living and, if female has married a man who has married With a man who has already another wife living, shall not be eligible for appointment in service of Board. But, subject to the provisions of any law for the time being in force the State of Government, may if satisfied that there are special grounds for so doing the Board may Exempt any person from the operation of this rule. (2) At the occasion of the appointment to a service or post of the Board, each applicant whether he or she shall have to declare whether he or she is married and in case of a female applicant whether she is married to a man who has already another wife living.
14. Disqualification for enlisting support:
An endeavour on the part of a candidate for service or for promotion to higher post if direct or indirect. method of enlist support whether directly or indirectly made by the candidate or his/her any relative then, the candidate shall be held disqualified for the appointment or promotion.
15. Passing of examination after appointment:
A person who has been appointed to any service or post shall be require to pass an examination of Hindi and Gujarati and such other departmental examination as may be prescribed by rules made in that behalf.
16 . Where an employee appointed on temporarily to a post selected by the Board, then, the Board may notwithstanding anything contained in the recruitment rules relating to that post in respect of period of probation, while recommending appointment of such employee, to such post, may also recommend reduction in the period to that extent. "
11.4 I also deem fit to look into the report of the Committee appointed for the pay improvement of the employees of the Gram Kalyan Kendra. The free English translation of the report Page 41 of 63 HC-NIC Page 41 of 63 Created On Tue Jan 24 00:35:54 IST 2017 C/CA/9835/2015 CAV JUDGMENT reads as under;
"Preface:-
The establishment of Gujarat Gram Kamdar Kalyan Board has been done since the year 1981 by the Government of Gujarat for taking up various activities of social, economic, educational and cultural of the farm labors and rural workers. No appointment of any .employee at the regional level has been made for performing this field work of this examination. But, the most of the field activities is being done by the following mentioned honorary employees.
1. Central Administrator
2. Balwadi Female teachers. (Kindergarten teacher)
3. Tedagar ladies.
Presently about 163 Centers of this type are being run by the Board. Demands from time to time have been made by these honorary employee of these Centers for increase in wages before the Board and the Government. After forming a Committee consisting the following members vide Resolution No. 13/1/91 passed in the General meeting of the Board held on 1-5- 91, the work of preparing report for pay reform of these employees.
1. . Shri Manharlal Shukla,
2. Shri Nanjibhai Bhalodi.
3. Member secretary.
4. Smt. Ilaben Desai, Welfare Commissioner, Gujarat Workers Welfare Board, Ahmedabad.
5. Deputy Secretary Labor and Employment Department.
The meetings of this Committee had been held on the following dates and the detailed discussion (debate) had been made in regard the work assigned to the Committee.
1. The meeting of the Committee had been held on 28-5-91 at Gandhinagar and, the representations of the Page 42 of 63 HC-NIC Page 42 of 63 Created On Tue Jan 24 00:35:54 IST 2017 C/CA/9835/2015 CAV JUDGMENT representatives of the honorary Employees of the Union had been heard by calling them.
2. The information of the activities being run in these Centers was obtained by taking visit of Gram Kamdar Kalyan Kedra, Ubhel by the member of the Committee on 6-6-91.
3. The meeting of this Committee had been held at Gandhinagar on. 31-12-91 and the Committee had performed the activities of preparation of report for proposed increase in pay/honorarium of the honorary employees of the Board after obtaining the details of the pay/honorarium being received by the employee and by making comparative study.
4. Information about the workings of the Centers and the honorarary Employees.
The farm labors and rural workers of the state are mostly residing in villages and the policy of the State Government and the Board is to set one or two Gram Kamdar Kalyan Kendras keeping in view the total population of the farm labors existing in the Talukas after selecting one area of the more population of farm labors so that they may get various information about the Labor Laws and activities of the Labor Welfare and information of the various schemes of other departments useful to them; and their overall growth may take place. Normally the following workings are being done by these Centers.
1. Management of Balwadi for the children of the farm labors.
2. Adult education activity.
3. Sports activities.
4. Cultural activities.
5. Library activity.
6. Group Insurance Scheme and publicity and guidance of the other schemes useful to the labors.
7. Planning of group meetings for awareness in farm labor.
8. Organized medical camps and awareness camps for farm labors/rural workers.
9. Survey of farm labors Page 43 of 63 HC-NIC Page 43 of 63 Created On Tue Jan 24 00:35:54 IST 2017 C/CA/9835/2015 CAV JUDGMENT
10. Publicity and guidance of schemes useful to the farm labors being run by the various departments of the Government.
For the management of this activity, the following mentioned staff of the honorary employees has been made in each Centers.
1. Center Administrator -1
2. Balwadi Female teachers. (Kindergarten teacher).
3. Tedagar.
The details of the work assigned to these employees are given in Statement-1, Statement-2 and Statement 3 respectively.
At present 163 Centers are doing the work in the State. The District-wise information of such Centers has been given in Statement-4. The details of the working done by these centers since the year 1980-81 to 1991-92 (till November, 1991) are given in Statement--5. 3 The procedure done in regard the Wages of the honorary employees After making discussion, at the appropriate time regarding honorarium of the honorary employees, the improvement therein is to be made. It was decided to give the honorarium in the year 1981 on the following standard to the honorary employees of these centers. (1) Center Administrative ...... Rs.400/-' per month. (2) Balwadi (pre-school) School teacher(female) Rs.100/-- per month.
(3) Tedagar female Rs.50/-- per month.
Thereafter, the issue regarding increase in the honorarium during the year 1984. But, since the reconstruction of the Board was not done, no further consideration could be done in this regard. A committee was formed again by the Board in the year 1987 and discussion was made for increase in honorarium and the Company had recommended the following honorarium on 13-10-88.
(1) Center Administrative ...... Rs.500/-- per month. (2) Balwadi School Female teachers, (Preschools teacher) Rs.200/~ per month.
(3) Tedagar female Rs.100/ per month.
Page 44 of 63HC-NIC Page 44 of 63 Created On Tue Jan 24 00:35:54 IST 2017 C/CA/9835/2015 CAV JUDGMENT After taking into notice the recommendation of this Committee, the Governing Body of the Board had made recommendation for the proposed honorarium suggested. by the Committee and, vide Resolution No. PRCH/S/1088/1704/M-2 dated 3-11-88 of the Labor and Employment Department the increase of the honorarium of these employees as per the recommendation made by the Committee was approved w.e.f. 1-4-88. Thereafter, the representations from time to time were made by the Union of these Employees for increase and alteration in the honorarium and, demand was made to given them pay scales and benefits on the standard of the government employees. But, in the absence of recreation of the Board, the consideration could not. be done at the respective time period. Thereafter on recreation of the Board, in the first meeting of the Board held on 1-5-91, the committee stated above had been formed for discussion of this question. In the meetings of this Committee held. from time to time and, after taking into consideration the duties etc. being performed by these employees, after due discussion, the recommendation have been made unanimously mentioned in the following paragraphs.
4. The comparative study of workings, recruitment system, wages being give by the Gujarat Gram Kamdar Kalyan Board.
The work being done by the honorary employees of the Gram Kamdar Kalyan Kendras managed by the Gujarat Gram Kamdar kalian Board can be compared mainly with the workings of the following organizations.
1) Gujarat Kamdar Kalyan Board, , Ahmedabad.
2) Gujarat State, Social Welfare Advisory Board.
3) Workings of Balwadi (Pre~school) Management being carried out in the area of the Scheduled Caste, Scheduled Tribe and other Backward area (Baxi Panch) by the Social Welfare Department, Gujarat State.
The comparative details of the increase in wages, and recruitment rules of the honorary employees of these three organizations and of the Board is given in Statement-5 annexed herewith. It would appear on Page 45 of 63 HC-NIC Page 45 of 63 Created On Tue Jan 24 00:35:54 IST 2017 C/CA/9835/2015 CAV JUDGMENT looking to the details mentioned in this statement, the workings of the employees of Gujarat Gram Kamdar Kalyan Board and employees of the Gjarat Kamdar Kalyan Board are mostly the similar.
5, Recommendations regarding wages (Pay ):
After making detailed verification by this Committee of the employees being kept for management of such similar types of schemes being run by the various departments and the pays being given to the, this Committee has unanimously recommended for the improvement of pays on the following standards of the employees of Gujarat Gram Kamdar Kalyan Board . (A) Recommendations for Center Administrator:
Normally the appointment of the center administrator of the Kendras is being done from the candidates recommended by the Employment Exchange office and, for giving appointment for this post minimum qualification of S.S.C. pass has been kept. But, mostly graduate candidate are being available for this post. Normally, these Center Administrators have to perform the following works.
1) Supervision on Balwadi (pre-school) Management.
2) To give guidance to the Farm labors and the Rural workers regarding the Labor Laws and activities of Labor Welfare by remaining present at the Center during 8 am to till 12 o'clock in the noon.
3) By taking visit of at least one village out of the.10 to 15 villages situated around the Center during to make publicity regarding minimum Wages/Labor Laws and activities regarding Labor Welfare and schemes useful to the labors in the after noon.
4. Publicity of schemes managed by the Labor Department and guidance for filling up of the application forms.
5. Management of Sports activities, cultural activities and library activities.
6. Adult education and Ashalay education.
7. Planning for group meetings of farm labors, planning of Health camps, planning of awareness camps.
8. Work of survey of farm labor/rural workers.
Page 46 of 63HC-NIC Page 46 of 63 Created On Tue Jan 24 00:35:54 IST 2017 C/CA/9835/2015 CAV JUDGMENT The work of these Center Administrators is similar to the activities of the administrators of Kamdar Kalyan Kendra being managed in by the Gujarat Kamdar Kalyan Board,Ahmedabad. Perhaps the activity of the Gram Kamdar kalyan Kendras is some what hard also, because, these Centre Administrator have to perform in the unorganized area situated in the rural area and, awareness is to be brought by making tour at village to village.
The Center Administrators of the Gujarat Kamdar Kalyan Board, Ahmedabad are being paid wages in the pay scale of 1350-30-1440-40-800-EB-50-2200.
The minimum qualifications of other assistants also who may be useful to these Center administrators such as sports teachers, Welfare Assistant, Shishuvihar female teacher, and other part-time Employees of both these boards are mostly same. Under these circumstances, this Committee has by keeping the wages being received by the Center Administrators of the Gujarat Gram Kamdar Kalyan Board, recommended the following pays.
1. Each Center Administrator should be given pay scale of Rs.1350-3-1440-40-1800-EB-50-2200
2. Those Center administrators who have completed 5 years, should be given on annual increment in this pay scale.
3. Those Center Administrators who have completed. 10 jyears, they should be given two annual increments in this pay scale.
4. These Center Administrators have taken up different activity of labor welfare and, the activities like union is not developed in the unorganized area of rural workers, and so by keeping the same, the work operation area of these administrators should be extended to the extent of whole Taluka.
(B) Balwadi Female teachers (Preschools teacher):-
The female teachers of the Board have performed duty as a part-time employee. Their work is to manage Balwadi (Pre-school) for the children of farm-labors and Rural workers during the period from 8-00 a.m. to 12-00 noon and, at the end of the year, arrangement is to be made to admit children in the nearest Primary School, Page 47 of 63 HC-NIC Page 47 of 63 Created On Tue Jan 24 00:35:54 IST 2017 C/CA/9835/2015 CAV JUDGMENT who are found eligible to be admitted in Primary school. The most of the similar work like Female Teachers of Balwadi (Pre-school) of Board is being taken from the Employees of Balwadi (Pre-school) being run by Social Welfare Board, Gujarat Kamdar Kalyan Board, and Social Welfare Department under the Grant- in--aid scheme. As per the information received by this Committee the remuneration being paid for the female teachers of Balwadi (Pre-school) in these Organizations are as under:
1) The Balsevika of Balwadi (Pre-school) centers of the Boards are being paid wages in the pay scale of Rs.1200-
2040 Gujarat State Social Welfare Advisory Board. 2 . The Female Teachers of Gujarat Kamdar Kalyan Board Shishuvihar are being paid in the pay scale of Rs.950- 1500/-. The part time Nursery School Teachers of this Board are being paid fix pay of Rs 432/-.
3. The Balwadi Female Teachers (Pre-school teacher) being run by Social Welfare for the children of Scheduled Caste, Scheduled Tribe and of Baksi Panch, the grant is being given grant by the Proposed organizations on the following
(a) Trained Female Teacher Rs.750/- per month. (Lump sum)
(b) Untrained female Teacher Rs.650/- per month (Lump sum);
4. The Finance Department of the Gujarat State has resolved to give the following pays w.e.f. 1-5-91 to the part time employees.
Hours. Total monthly remuneration.
Upto 1 hour. Rs.100/-
Upto 2 hour. Rs.200/-
Upto 3 hour. Rs 300/-
Upto 4 hour Rs 400/-
Upto 5 hour Rs 500/-
As Per the information received by this Comm1ttee, and by taking into consideration the work of the Balwadi (Pre- school) Female Teachers of this Center and the minimum qualification for the appointment and the working hours , the Committee has recommended for giving the Page 48 of 63 HC-NIC Page 48 of 63 Created On Tue Jan 24 00:35:54 IST 2017 C/CA/9835/2015 CAV JUDGMENT honorarium on the following standard.
1. Harbarium of Rs . 500/-- per month should be given to the Balwadi (pre- school) Female Teacher.
2. The Balwadi (Pre-school) Female Teachers who has completed 5 years service, she should be given further honorarium of Rs. 30/- per month.
(C) Part time Attendant:--
The main work of Part time attendant or Tedagar is to bring the children to the Center and to teach them cleanings and to give breakfast after preparing the same and the cleaning of the Center and to make arrangement of water. Generally this work takes his/her time of 4 to 5 hours.: As per the information received to this Committee, such type of work is similar to the work of Part-time attendant of similar to the part time attendant. of Balwadi (Pre-school) being run under the charge of Gujarat Kamdar Kalyan Board, Gujarat State Social Welfare Advisory Board, and Social Welfare Department.. The information regarding the pay being received by such Attendant/Tedagar in this Organization is as under:
1) The Tedagar of Balwadi (Pre-school) under the charge of Social Welfare is being fix pay of Rs.300/- per month.
2) The Tedagar of Social Welfare Board is being given fix pay of Rs.250/- per month.
3) The Part time Attendant of Gujarat Kamdar Kalyan Board is being given fix pay of Rs.300/- per month.
At present Rs.100/- fixed pay per month is being paid to the Part time Attendant/Tedagar of Gujarat Gram Kamdar Kalyan Board Center (Gujarat Rural Workers Welfare Board). After taking in to notice the monthly pay being paid by the other Organizations to Tedagar/part time attendants of Center performing the similar work, the time being taken in the work of these employees, increased dearness and the wages (remuneration) decided for the part time employee of Class-4 decided in the Resolution dated 18-6-91 of the Finance Department, this Committee recommends fix pay of Rs.250/- per month to these honorary employees.
(D) Other recommendations;-
(1) Since the demand. of pay of these employees is Page 49 of 63 HC-NIC Page 49 of 63 Created On Tue Jan 24 00:35:54 IST 2017 C/CA/9835/2015 CAV JUDGMENT pending since long period and, since dearness has been increased, the Committee recommends for implementation of the pay increase or wages increase w.e.f. 1.4.91.
(2) At present there is no any scheme of Social Security for the honorary Employees of the Board. Under these circumstances, when their family member expires at that time, this Committee makes such recommendation for implementation of Rs.5000/- Group insurance Scheme from Board so that it may be helpful to them.
1. Sd/-
Shri H.K. Acharya, Member Secretary
2. Sd/- V.M. Chauhan, Deputy Secretaryt
3. Sd./ Dr. Ilaben Desai, Welfare Commissioner, Gujarat Kamdar Kalyan Board, Ahmedabad.
4. Sd/ Shri Manharlal Shukla, Member
5. Sd/ Nanjibhai Administrator Officer, Gandhinagar.
Statement
Social Social Gujarat Kamdar
Welfare Welfare Kalyan Board,
Departme Board Ahmedabad
nt
1 Center No post Rs.1400 to Rs.1350-2200
Administra 2300 (Minimum
tor Government Rs.2335/-)
Play Scale
2 Balwadi 1. 1.Rs.1200- 1.Rs.950 to 1500
Page 50 of 63
HC-NIC Page 50 of 63 Created On Tue Jan 24 00:35:54 IST 2017
C/CA/9835/2015 CAV JUDGMENT
(Pre- Rs.350/- 2040 to those pay scale (if full
school) (Trained who are full time)
Female Bal time.
Teacher Teachers) 2. Rs.500/- 2. Rs.432/- fixed (if
2. (who is on on part time)
Rs.600/- part time)
(Untraine
d Bal
Teacher)
3 Tedagar Rs.300/- Rs.250/- 1. Rs.750-900 pay (if full time)
2. Rs.300/- (part time) Pay of Proposed pay Special remarks.
Kamdar Kalyan Board Rs.500/- 1. Rs.1350-2200 1. The work of administrator of fixed per 2. One Additional Gram Kamdar Kalyan Kendra is month. one increment to hard then other administrators those who have of rural and interior areas. done service for 2. The educational qualification five years. of almost all the administrator..
3. Two additional one increment to 3. The staff of co-workers those having which are with administrator of experience of 10 other Board, the same is not in years. Gujarat Gram Kamdar Kalyan Board.
Rs.200/- 1. Rs.500/- per The duty of Bal Teachers of fixed per month. Gram Kamdar Kalyan Kendra is month 2. Increment of part time(4 hours.) Rs.30/- to those who complete service for 5 years.
Pay Rs.250/- The duty of Tedagar is part
scale time (of 4 hours).
Rs.100/-
fixed per
month.
11.5 I am thoroughly disappointed with the stance of the State Page 51 of 63 HC-NIC Page 51 of 63 Created On Tue Jan 24 00:35:54 IST 2017 C/CA/9835/2015 CAV JUDGMENT Government as regards the remuneration being paid to the writ applicants. The non-applicability of the provisions of the Minimum Wages Act does not give a premium to the State to exploit the writ applicants. The writ applicants were being paid a very meager amount of Rs.900/- per month. It is only after the intervention of this Court and by virtue of the interim order that they are being paid Rs.4500/- and 5000/- respectively. The exploitation in the name of "honorarium" is writ large. The learned Additional Advocate General submitted, while referring to the Black's Law Dictionary that the word "honorarium" has been defined therein as "a voluntary reward for which no remuneration could be collected by law" and it also means "payment of money or anything of value made to a person for services rendered for which fees cannot legally or are not traditionally made." It was also submitted that as the honorarium is just a free gift or gracious payment for services provided by some person, it is a fixed amount and the word "honorarium" in the rules should be read in this context and, therefore, the word "honorarium" mentioned in the rules is a fixed amount and is not required to be revised from time to time. I am not, at all, impressed by such submission canvassed on behalf of the State.
11.6 Having regard to the mode of appointment, the statutory rules governing the working conditions, the nature of the functions the writ applicants are expected to discharge, it cannot be said that they are rendering the honorary services to the State Government. They have been appointed by the State and they should be paid the reasonable wages even if the Minimum Wages Act is not applicable in their case.
Page 52 of 63HC-NIC Page 52 of 63 Created On Tue Jan 24 00:35:54 IST 2017 C/CA/9835/2015 CAV JUDGMENT 11.7 To ask them to work for a meager salary in the name of "honorarium" is nothing but to ask them to starve to death. They are in the service past almost two decades. They cannot be said to be rendering the honorary services past two decades when they are not permitted to take up any other employment of their choice for the purpose of their livelihood. The Constitution of India, inter alia, has solemnly resolved to secure the economic justice to the people of India, and with that end in view has laid down certain directive principles to be observed in the governance of the country. Article 43 of the Constitution of India lays down that "the State shall endevour to secure, by suitable legislation or economic organisation or in any other way, to all the workers, agricultural, industrial or otherwise, a living wage, conditions of work ensuring a decent standard of life and full enjoyment of leisure and social and cultural opportunities...." Although the directive principles of the State policy enshrined in the Constitution are not enforceable by any Court, yet, it is the duty of the State to apply these principles in its governance, which includes making laws also. According to Articles 39, 39(e), 42 and 43 of the Constitution, the State shall direct its policy towards securing, that the citizens have the right to an adequate means of livelihood, that there is equal pay for equal work for both men and women and that the health and strength of the workers are not abused. The preamble of the Constitution coupled with the directive principles constitutes the conscience of the Constitution; in other words, the constitutional policy of the Republic of India.
Page 53 of 63HC-NIC Page 53 of 63 Created On Tue Jan 24 00:35:54 IST 2017 C/CA/9835/2015 CAV JUDGMENT 11.8 Freedom of trade does not mean freedom to exploit. The provisions of the Constitution are not erected as the barriers to progress. They provide a plan for orderly progress towards the social order contemplated by the preamble to the Constitution. They do not permit any kind of slavery, social, economic or political. It is a fallacy to think that under our Constitution there are only rights and no duties. While rights conferred under Part III are fundamental, the directives given under Part IV are fundamental in the governance of the country. I see no conflict on the whole between the provisions contained in Part III and Part IV. They are complementary and supplementary to each other. The provisions of Part IV enable the Legislatures and the Government to impose various duties on the citizens. The provisions therein are deliberately made elastic because the duties to be imposed on the citizens depend on the extent to which the directive principles are implemented. The mandate of the Constitution is to build a welfare society in which justice, social, economic and political shall inform all institutions of our national life. The hopes and aspirations aroused by the Constitution will be belied if the minimum needs of the lowest of our citizens are not met. (see Chandra Bhawan Boarding and Lodging, Banglore vs. State of Mysore, 1970 AIR 2042).
11.9 Even the object of the Minimum Wages Act is to prevent the exploitation of the workers and for that purpose, it aims at fixation of the Minimum Wages which the employers must pay. The legislature, undoubtedly, intended to apply the act to those industries or localities, in which, by reason of causes such as unorganized labour or absence of machinery for Page 54 of 63 HC-NIC Page 54 of 63 Created On Tue Jan 24 00:35:54 IST 2017 C/CA/9835/2015 CAV JUDGMENT regularization of wages, the wages paid to the workers were, in the light of the general level of wages, and subsistence level, inadequate.
11.10 The concept of a fair and reasonable remuneration is somewhat intermediate to a remuneration, which is just sufficient for bare sustenance. The concept of fair and reasonable remuneration includes not only the remuneration sufficient to meet the bare sustenance of an employee and his family, but would also include the expenses necessary for his other primary needs such as medical expenses and education for his children etc. It is a dynamic concept and, therefore, should undergo a change with the growth and development of economy and also with the change in the standard of living. It is not a static concept. Therefore, its concomitants must necessarily increase with the progress of the society.
11.11 The schemes have been floated by the State Government for the upliftment of the farm labourers and rural labourers in the State of Gujarat falling in the category of the unorganized class. For the purpose of implementation of the scheme, manpower is required. The writ applicants have been appointed by the State for effective implementation of the scheme. Onerous work is being taken from the writ applicants. I fail to understand how the writ applicants hailing from a poor and lower strata of the society could be said to be rendering the honorary services for the State. Therefore, this concept of honorarium is nothing but a feeble attempt on the part of the Government to wriggle out from its constitutional duty to protect the interest of the writ applicants hailing from a poor Page 55 of 63 HC-NIC Page 55 of 63 Created On Tue Jan 24 00:35:54 IST 2017 C/CA/9835/2015 CAV JUDGMENT class of the society. The committee appointed for the pay improvement of the writ applicants in its report, although may not be binding to the State Government, yet has taken care of each and every relevant aspect. The rules prescribed would suggest that a candidate should possess the minimum qualifications etc. The committee has also made itself clear that the work of the administrators of the centers is similar to the activities of the administrators of the Kamdar Kalyan Kendra being managed in by the Gujarat Kamdar Kalyan Board,Ahmedabad. According to the Committee, the functions and the duties are more onerous than those of the Kamdar Kalyan Kendra Administrators.
11.12 By any stretch of imagination, it cannot be said that the appointments of the writ applicants were temporary or was for a fix period. They are all in the employment past almost more than two decades and have been appointed after a regular recruitment process in accordance with the rules. If that be so, then they are entitled to be treated at par with the employees of the Kendra Sanchalaks of the Gujarat Labour Welfare Board for the City of Ahmedabad and the Kendra Sanchalaks of the Gujarat Social Welfare Board.
11.13. The doctrine of equal pay for equal work is applicable in the case of the writ applicants. There was no good reason to ignore or brush aside the recommendations of the expert committee. I have no hesitation in stating that the recommendations of the expert committee have been conveniently ignored considering only the financial implications.
Page 56 of 63HC-NIC Page 56 of 63 Created On Tue Jan 24 00:35:54 IST 2017 C/CA/9835/2015 CAV JUDGMENT 11.14. Let me now look into the decisions, on which, reliance has been placed by the State.
11.15. Mr. Jani has placed reliance on four decisions of the Supreme Court. Those are as under;
(I) In the case of State of Rajasthan & ors (supra), the Supreme Court, in paras-11 and 12, held as under;
"11. Two questions therefore arise for consideration in these appeals :
(i) Whether persons appointed as Superintendents in aided non- governmental Hostels are entitled to claim absorption by way of regularization in government service or salary on par with Superintendents in Government Hostels?
(ii) Whether part-time cooks and chowkidars appointed temporarily by Mess Committees of Government Hostels, with two or three years service, are entitled to regularization by framing a special scheme?
12. We may at the outset refer to the following well settled principles relating to regularization and parity in pay, relevant in the context of these appeals:
(i) High Courts, in exercising power under Article 226 of the Constitution will not issue directions for regularization, absorption or permanent continuance, unless the employees claiming regularization had been appointed in pursuance of a regular recruitment in accordance with relevant rules in an open competitive process, against sanctioned vacant posts.
The equality clause contained in Articles 14 and 16 should be scrupulously followed and courts should not issue a direction for regularization of services of an employee which would be violative of constitutional scheme. While something that is irregular for want of compliance with one of the elements in the process of selection which does not go to the root of the process, can be regularized, back door entries, appointments contrary to the constitutional scheme and/or appointment of ineligible candidates cannot be regularized.
Page 57 of 63HC-NIC Page 57 of 63 Created On Tue Jan 24 00:35:54 IST 2017 C/CA/9835/2015 CAV JUDGMENT
(ii) Mere continuation of service by an temporary or ad hoc or daily-wage employee, under cover of some interim orders of the court, would not confer upon him any right to be absorbed into service, as such service would be `litigious employment'. Even temporary, ad hoc or daily- wage service for a long number of years, let alone service for one or two years, will not entitle such employee to claim regularization, if he is not working against a sanctioned post. Sympathy and sentiment 8 cannot be grounds for passing any order of regularization in the absence of a legal right.
(iii) Even where a scheme is formulated for regularization with a cut off date (that is a scheme providing that persons who had put in a specified number of years of service and continuing in employment as on the cut off date), it is not possible to others who were appointed subsequent to the cut off date, to claim or contend that the scheme should be applied to them by extending the cut off date or seek a direction for framing of fresh schemes providing for successive cut off dates.
(iv) Part-time employees are not entitled to seek regularization as they are not working against any sanctioned posts. There cannot be a direction for absorption, regularization or permanent continuance of part time temporary employees.
(v) Part time temporary employees in government run institutions cannot claim parity in salary with regular employees of the government on the principle of equal pay for equal work. Nor can employees in private employment, even if serving full time, seek parity in salary with government employees. The right to claim a particular salary against the State must arise under a contract or under a statute."
In my view, the principle enunciated in the aforesaid decision is of no avail to the State having regard to the facts of the case at hand.
(ii) In the case of State of Karnataka & Ors. (supra), the Supreme Court held in paras-29 and 34 as under;
"29. Appointments made under a scheme and recruitment process being carried out through a committee, in our opinion, would not render the incumbents thereof holders of civil post. Our attention Page 58 of 63 HC-NIC Page 58 of 63 Created On Tue Jan 24 00:35:54 IST 2017 C/CA/9835/2015 CAV JUDGMENT has not been drawn to any rule or regulation governing the mode of their recruitment. Some statements in this behalf have been made by the interveners but for the reasons stated hereinbefore, we cannot enter thereinto. A a distinction must be made about a post created by the Central Government or the State Governments in exercise of their power under Arts. 77 or 162 of the Constitution of India or under a statute vis-a-vis cases of this nature who are sui generis. Terms and conditions of services of an employee may be referable to acts of appropriate legislature. The matter may also come within the purview of Art. 309 of the Constitution of India as proviso appended thereto confers power upon the President or the Governor of a State or other authority, who may be delegated with such power, to make rules during the interregnum.
34 Reference to the provisions of the Minimum Wages Act, in our opinion, is also not apposite. The said Act is applicable to the workmen working in the industries specified therein. It is not the case of the respondents that the ICDS programme would constitute an 'industry' or Anganwadi workers are industrial workmen. There cannot be any doubt whatsoever that it is one thing to say that the State would be liable to pay minimum wages irrespective of its financial constraints but it is another thing to say that as to whether such a claim can be raised in respect of those who are working under a project. It is not a case where the concept Of minimum wage, living wage or fair wage can be brought 1n service. "
I am of the view that having regard to the nature of the duties and functions and the statutory rules governing the appointments of the writ applicants, the ratio of the aforesaid decision is of no avail to the State.
(iii) In the case of District Rehabilitation Officer & Ors. (supra), the Supreme Court held in paras-11 and 12 as under;
Page 59 of 63HC-NIC Page 59 of 63 Created On Tue Jan 24 00:35:54 IST 2017 C/CA/9835/2015 CAV JUDGMENT "11 The Parliament enacted the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. The Act was enacted to give effect to the proclamation on the full participation and equality of people with disabilities on both Central and State Governments. Implementation of its provisions is the primary responsibility of the State Governments. The projects were started at different centres in different States by the Central Governments by way of a Scheme. The funds for the said projects initially came from the Central Government. The purpose of a pilot project has been noticed by us hereinbefore. The control of the Rehabilitation Centres for the benefit of the people for whom the same were started was with the concerned State Governments. 12 The employees do not become the employees of the Central Government only because the project was conceived by it or it used to give directions from time to time. The tests which are determinative for ascertaining the relationship of 'Employer and Employee' are well known Viz. functional test or control test or organisational test etc. For determination of relationship of the employer and the employees, separate tests may have to be applied having regard to the factual matrix involved in each case. The parties did not adduce any oral evidence before the Central Administrative Tribunal. The Central Administrative Tribunal although referred to some of the decisions of this Court, but without applying them, opined that Respondents are the employees of the Central Government. No reason has been assigned therefor. No analysis of the available materials was made."
This decision is of no avail to the State in the peculiar facts of the case at hand.
(iv) In the case of Secretary to Government, School Education Department, Chennai (supra), the Supreme Court held in paras-7, 8 and 9 as under;
"7. In Union of India & Ors. v. A.S. Pillai & Ors., this Court dealt with the issue of regularisation of part-Page 60 of 63
HC-NIC Page 60 of 63 Created On Tue Jan 24 00:35:54 IST 2017 C/CA/9835/2015 CAV JUDGMENT time employees and the court refused the relief on the ground that part-timers are free to get themselves engaged elsewhere and they are not restrained from working elsewhere when they are not working for the authority/employer. Being the part-time employees, they are not subject to service rules or other regulations which govern and control the regularly appointed staff of the department. Therefore, the question of giving them equal pay for equal work or considering their case for regularisation would not arise.
8. This Court in State of Rajasthan & Ors. v. Daya Lal & Ors., has considered the scope of regularisation of irregular or part-time appointments in all possible eventualities and laid down well-settled principles relating to regularisation and parity in pay relevant in the context of the issues involved therein. The same are as under:
"(i) The High Courts, in exercising power under Article 226 of the Constitution will not issue directions for regularisation, absorption or permanent continuance, unless the employees claiming regularisation had been appointed in pursuance of a regular recruitment in accordance with relevant rules in an open competitive process, against sanctioned vacant posts. The equality clause contained in Articles 14 and 16 should be scrupulously followed and Courts should not issue a direction for regularisation of services of an employee which would be violative of the constitutional scheme.
While something that is irregular for want of compliance with one of the elements in the process of selection which does not go to the root of the process, can be regularised, back door entries, appointments contrary to the constitutional scheme and/or appointment of ineligible candidates cannot be regularised.
(ii) Mere continuation of service by a temporary or ad hoc or daily- wage employee, under cover of some interim orders of the court, would not confer upon him any right to be absorbed into service, as such service would be "litigious employment". Even temporary, ad hoc or daily-wage service for a long number of years, let alone service for one or two years, will not entitle such Page 61 of 63 HC-NIC Page 61 of 63 Created On Tue Jan 24 00:35:54 IST 2017 C/CA/9835/2015 CAV JUDGMENT employee to claim regularisation, if he is not working against a sanctioned post. Sympathy and sentiment cannot be grounds for passing any order of regularisation in the absence of a legal right.
(iii) Even where a scheme is formulated for regularisation with a cut- off date (that is a scheme providing that persons who had put in a specified number of years of service and continuing in employment as on the cut-off date), it is not possible to others who were appointed subsequent to the cut-off date, to claim or contend that the scheme should be applied to them by extending the cut-off date or seek a direction for framing of fresh schemes providing for successive cut-off dates.
(iv) Part-time employees are not entitled to seek regularisation as they are not working against any sanctioned posts. There cannot be a direction for absorption, regularisation or permanent continuance of part-time temporary employees.
(v) Part-time temporary employees in governmentrun institutions cannot claim parity in salary with regular employees of the Government on the principle of equal pay for equal work. Nor can employees in private employment, even if serving full time, seek parity in salary with government employees. The right to claim a particular salary against the State must arise under a contract or under a statute." (Emphasis added)
9. The present appeals are squarely covered by clauses
(ii), (iv) and (v) of the aforesaid judgment. Therefore, the appeals are allowed. However, in light of the facts and circumstances of the case as Shri P.P. Rao, learned senior counsel has submitted that the appellant has already implemented the impugned judgments and does not want to disturb the services of the respondents, the services of the respondents which stood regularised should not be affected."
This decision is also of no avail to the State in the peculiar facts of the case at hand.
12. My final conclusion is as under;
12.1 The writ applicants deserve to be absorbed in the service Page 62 of 63 HC-NIC Page 62 of 63 Created On Tue Jan 24 00:35:54 IST 2017 C/CA/9835/2015 CAV JUDGMENT on permanent basis and they should be treated as the employees of the State so as to treat them at par with the other State Government servants.
12.2 The doctrine of equal pay for equal work would apply considering the employees of the Kendra Sanchalaks of the Gujarat Labour Welfare Board for the City of Ahmedabad and the Kendra Sanchalaks of the Gujarat Social Welfare Board.
12.3 The writ applicants should be paid the salary commensurate with the Kendra Sanchalaks of the Gujarat Labour Welfare Board for the City of Ahmedabad and the Kendra Sanchalaks of the Gujarat Social Welfare Board.
13. The State Government is, accordingly, directed to do the needful within a period of eight weeks from the date of the receipt of the order. Rule is made absolute to the aforesaid extent.
Direct service is permitted.
(J.B.PARDIWALA, J.) Vahid Page 63 of 63 HC-NIC Page 63 of 63 Created On Tue Jan 24 00:35:54 IST 2017