Gujarat High Court
Ramanbhai Becharbhai Vaghela vs State Of Gujarat on 11 August, 2021
Author: Bhargav D. Karia
Bench: Bhargav D. Karia
C/SCA/16082/2020 JUDGMENT DATED: 11/08/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 16082 of 2020
With
CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2021
In R/SPECIAL CIVIL APPLICATION NO. 16082 of 2020
With
CIVIL APPLICATION (FOR BRINGING HEIRS) NO. 2 of 2021
In R/SPECIAL CIVIL APPLICATION NO. 16082 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BHARGAV D. KARIA
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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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RAMANBHAI BECHARBHAI VAGHELA
Versus
STATE OF GUJARAT
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Appearance:
MR HARDIK C RAWAL(719) for the Petitioner(s) No.
1,10,11,12,13,14,15,16,17,18,19,2,20,21,22,23,24,25,26,27,28,29,3,30,31,32,
33,34,35,36,37,38,39,4,40,41,42,43,44,5,6,7,8,9
MRS MH RAWAL(2851) for the Petitioner(s) No.
1,10,11,12,13,14,15,16,17,18,19,2,20,21,22,23,24,25,26,27,28,29,3,30,31,32,
33,34,35,36,37,38,39,4,40,41,42,43,44,5,6,7,8,9
MR KURVEN DESAI, AGP for the Respondent(s) No. 1
MR HS MUNSHAW(495) for the Respondent(s) No. 2
NOTICE SERVED(4) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA
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Date : 11/08/2021
ORAL JUDGMENT
1. Heard learned advocate Mr. Hardik C. Rawal for the petitioners, learned advocate Mr. H.S. Munshaw for respondent no.2 and learned Assistant Government Pleader Mr. Kurven Desai for the respondent-State through video conference.
2. Rule returnable forthwith. Learned Assistant Government Pleader Mr. Kurven Desai waives service of notice of rule on behalf of respondent-State and learned advocate Mr. H.S. Munshaw waives service of notice of rule on behalf of respondent no.2
3. Learned advocate Mr. Hardik C. Rawal tendered the draft amendment on 6.8.2021 which was granted. However, inadvertently, order is not transcribed and therefore, the draft amendment is not carried out.
4. In view of this fact, the draft amendment tendered by the learned advocate Mr. Raval on 6.8.2021 is allowed in terms of the draft. To be carried out forthwith.
5. Learned advocate Mr. Rawal submitted that in view of the draft amendment being granted, Civil Application No.1/2021 is not pressed. Civil Page 2 of 36 Downloaded on : Sun Jan 16 07:47:46 IST 2022 C/SCA/16082/2020 JUDGMENT DATED: 11/08/2021 Application no.1/2021 is disposed of as not pressed.
6. Learned advocate Mr. Rawal further submitted that Civil Application No.2/2021 is by the legal heirs of original petitioner no.5 who expired on 12.12.2020 after the filing of the petition. It was therefore, prayed that the legal heirs of original petitioner no.5 be permitted to be joined as petitioner nos. 5.1 to 5.3 in the main petition.
7. Considering the above submissions, Civil Application No.2/2021 is allowed. The applicants of Civil Application No.2/2021 are permitted to be joined as petitioner no.5/1 to 5/3 as legal heirs of late Baldevbhai Becharbhai Vaghela who expired on 12.12.2020 after filing of this petition. Civil Application No.2/2021 stands disposed of accordingly.
8. Learned advocate Mr. Rawal further submitted that petitioner no.24 Chandrakant Dahyabhai Makwana has addressed a letter dated 9.8.2021 with a prayer to withdraw the petition qua him. Learned advocate Mr. Rawal therefore, submitted that petitioner no.24 be permitted to withdraw the petition.
9. Permission is granted. Petition stands disposed of as withdrawn qua petitioner no.24 and Page 3 of 36 Downloaded on : Sun Jan 16 07:47:46 IST 2022 C/SCA/16082/2020 JUDGMENT DATED: 11/08/2021 accordingly, his name is deleted from the cause title.
10. By this petition under Article 226 of the Constitution of India, the petitioners has prayed for the following reliefs :
"8. The petitioners therefore pray that this Hon'ble Court may;
A. Be pleased to allow this petition B. Be pleased to issue a writ of mandamus or any other appropriate writ,order or direction by directing the respondents herein (I) to continue the service of the petitioners as Safai Kamdars on the same terms and condition on which they are working with the respective Gram Panchayats by treating them as employees of Gandhinagar Municipal Corporation,(II) to continue paying the salaries after clearing the unpaid salaries to the petitioners, (III) not to replace the petitioners services by another set of daily wage, temporary, outsourced employees through private contractors by resorting to oral/ written termination of the petitioners services,(IV) give the benefits of minimum pay scale of class IV post to the petitioners as confirmed and directed by the oral oral dated 09-
05-2019 by the Division Bench of this Hon'ble Court in Letters Patents Appeal no. 1155 of 2019 at Annexure-I, and (V) to follow the Judicial Pronouncements of this Hon'ble Court in letter and spirit which are annexed at Annexure-
F,G and H.
C. Pending admission and final
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disposal of the present Special Civil Application be pleased to direct the respondents herein (I) to continue the services of the petitioners as Safai Kamdars on the same terms and conditions on which they are working with the respective Gram Panchayats by treating them as employees of Gandhinagar Municipal Corporation, (II) to continue paying the salaries after clearing the unpaid salaries to the petitioners,(III) not to replace the petitioners services by another set of daily wage, temporary, outsourced employees through private contractors by resorting to oral/ written termination of the petitioners services.
D. Be pleased to pass such other and further orders may be deemed and proper looking to the facts and circumstances of the case and in the interest of the justice.
8(B-i) Be pleased to direct the respondent no.2 herein to forthwith comply with the directions issued by the respondent no.1 (State Government) by order dated 27-10-2020 annexed at Annexure- J to this application in letter and spirit and release the payment to unpaid salaries to the petitioners from 01-06-2020 and keep paying the same till the final disposal of the main petition, i.e Special Civil Application No. 16082 of 2020."
11. The petitioners are Safai Kamdars of different villages as stated in Annexure-A to the petition. The petitioners are the daily wagers who are carrying out sanitisation work in Page 5 of 36 Downloaded on : Sun Jan 16 07:47:46 IST 2022 C/SCA/16082/2020 JUDGMENT DATED: 11/08/2021 different villages around Gandhinagar city.
12. The State of Gujarat respondent no.1 through its Urban Development and Urban Housing department issued a notification dated 18.6.2020 by which areas of one municipality and 25 Gram Panchayats were merged into respondent no.2- Gandhinagar Municipal Corporation by exercising powers conferred under clause(2) of Article 243Q of the Constitution of India whereby local limits of the Gandhinagar Municipal Corporation was extended to include the areas specified in Schedule-1, 2 and 3 of the Municipality and 25 Gram Panchayats surrounding Gandhinagar city. The petitioners are belonging to such Gram Panchayats which are merged into Gandhinagar Municipal Corporation.
13. It is the case of the petitioners that they are appointed as Safai Kamdars by the respective Gram Panchayats as daily wagers on meagre monthly salary ranging from Rs.1000/- to Rs.1500/- which was directly credited in the bank accounts of the respective petitioners by the Gram Panchayats in which they were employed on daily wage by passing the resolution.
14. On merger of the Gram Panchayats in which the petitioners were discharging their duties as Safai Kamdars with effect from 18.06.2020 in respondent no.2 Gandhingar Municipal Page 6 of 36 Downloaded on : Sun Jan 16 07:47:46 IST 2022 C/SCA/16082/2020 JUDGMENT DATED: 11/08/2021 Corporation, no salary or wages was paid to the petitioners either by the Gram Panchayats or by respondent no.2-Corporation for about two months.
15. It appears that no order was passed by respondent no.1 Urban Development and Urban Housing department of the State of Gujarat under sub-section (3) of section 3A read with sub- section (1) of section 3A of the Gujarat Provincial Municipal Corporations Act, 1949 with regard to transfer of assets, liabilities and the employees of the areas which have merged pursuant to notification dated 18.6.2020 and therefore, there was a confusion with regard to the status of the petitioners and there was no authority to take care of the petitioners who are coming from the lower strata of the society and more particularly, when most of the petitioners are illiterate persons.
16. It appears that after about four months on 27.10.2020, respondent no.1 Urban Development an Urban Housing department of State of Gujarat passed the order which reads as under :
"NOW, THEREFORE, in exercise of the powers conferred by sub-section (3) of section 3A read with sub-section (1)of said section 3A of the Gujarat Provincial Municipal Corporation Act,1949 (Bom.LIX of 1949), the Government of Gujarat, with effect on and from the 18th June, 2020, hereby;-
Page 7 of 36 Downloaded on : Sun Jan 16 07:47:46 IST 2022 C/SCA/16082/2020 JUDGMENT DATED: 11/08/2021 (a) Transfer all the assets and liabilities including pending bills of the specified local authorities and the rights and liabilities under any contract made by any of the said specified
local authorities to the Municipal Corporation of the city of Gandhinagar( hereinafter referred to as "the said Municipal Corporation");
(b) Substitutes the said Municipal
Corporation for the specified
local authorities or, as the case may be, adds the said Municipal Corporation, as a party to any legal proceeding to which the said specified local authorities are a party and transfers all proceedings pending before the specified local authorities or any authorities or officers subordinate to such specified local authorities to the said Municipal Corporation;
(c) Transfers all such employees of the specified local authorities who were in the employment of the specified local authorities on and immediately before the 18th June,2020 and continued to be so employed, to the said Municipal Corporation on the same terms and conditions which governed them on the 17th June, 2020;
(d) Continues within the area of the specified local authorities, so included, all budget estimates, assessments, assessment list or as the case may be, assessment book, valuation, measurements or divisions made or authenticated by, or in respect of the specified local authorities and in force Page 8 of 36 Downloaded on : Sun Jan 16 07:47:46 IST 2022 C/SCA/16082/2020 JUDGMENT DATED: 11/08/2021 within the area of the specified local authorities immediately th before the 18 June, 2020 until they are superseded or modified."
17. The petitioners have placed the aforesaid order on record by way of an amendment with a prayer to direct the respondents to implement the said order in letter and spirit by transferring the petitioners who were the employees of the Gram Panchayats which were merged by notification dated 18.6.2020 on the same terms and conditions which governed them on 17.6.2020.
18. It is also the case of the petitioners that respondent no.2-Corporation has refused to consider the petitioners as employees of the respondent-Corporation and the petitioners were pressurised to work with the outsourcing agencies employed by the respondent-Corporation. It is also averred in the petition that the petitioners are threatened not to give any work by the respondent-Corporation and the outsourcing agencies employed by the respondent- Corporation were also issuing letters to the petitioners to join such agencies and become the employee of such agencies instead of being employee of the respondent-Corporation.
19. In view of above facts, the petitioners have approached this Court by filing this petition with the aforesaid prayers.
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20. Learned advocate Mr. Rawal submitted that the respondent Corporation has also not disputed that the majority of the petitioners were being paid regular salary by the respective Gram Panchayats in their bank accounts. Learned advocate Mr. Rawal also invited the attention of the Court to the details provided by the respondent Corporation along with the affidavit at Annexure-C (page 227 of the petition) to show that the majority of the petitioners were appointed by the Gram Panchayat in the year 2016-2017. It was pointed out that petitioner nos. 1 to 24 were appointed by Khoraj Gram Panchayat in the year 2017 and petitioner nos.27 to 29 were appointed by Jundal Gram Panchayat in the year 2008 and also made permanent. With regard to petitioner nos. 30 to 32 were also appointed by Jundal Gram Panchayat. In case of some of the petitioners, no resolution was passed and they were employed on temporary basis. However, it is emphasized by learned advocate Mr. Rawal that most of the petitioners were paid regular salary by the respective Gram Panchayats.
21. Learned advocate Mr. Rawal candidly submitted that the petitioners are not pitching their case for payment of salary in the pay scale which is paid to the regular employee of the Corporation but it was submitted that as per Page 10 of 36 Downloaded on : Sun Jan 16 07:47:46 IST 2022 C/SCA/16082/2020 JUDGMENT DATED: 11/08/2021 order passed by respondent no.1 dated 27.10.2020, the petitioners are required to be transferred to the respondent no.2 Corporation on the same terms and conditions which were governing the petitioners as on 17.06.2020.
22. Learned advocate Mr. Rawal pointed out that reliance placed by the respondent-Corporation on the Government Resolution dated 30.11.2006 is misplaced inasmuch as such Government Resolution was issued by the General Administrative Department for cleaning/house keeping work of the Government Secretariat by Class-IV employees by outsourcing.
23. Learned advocate Mr. Rawal referred to the decision of the Division Bench of this Court [Coram : Hon'ble Mr. Justice K.M. Thaker and Hon'ble Mr. Justice V.P. Patel (As Their Lordships were then)] in case of Pooja Construction Company v. Jetpur Navagadh Nagarpalika and others rendered in Special Civil Application No.8616/2018 on 1.8.2019 wherein the Division Bench held that the Government Resolution dated 30.11.2006 cannot be applied to the Municipal Corporation, more particularly, in view of affidavit filed on behalf of respondent no.1 that the policy of the State Government is not to promote outsourcing for the basic and primary duties to be performed by the Municipalities, at the cost of sanctioned Page 11 of 36 Downloaded on : Sun Jan 16 07:47:46 IST 2022 C/SCA/16082/2020 JUDGMENT DATED: 11/08/2021 strength. It was also submitted that the Division Bench has held in the said case that Municipality and the State are trying to pass the buck by shifting the blame to the other side and amidst such irresponsible and inconsiderate conduct, the State Government has forgotten to overlook that the State Government is also responsible and accountable for all lapses and breachs in case of outsourcing the duties and functions of municipality. It was pointed out that the Court thereafter quashed and set aside the contract of outsourcing issued by the respective Municipalities. It was therefore, submitted that reliance placed by the respondent-Corporation on the Government Resolution dated 30.11.2006 cannot be applied qua the petitioners who are required to be transferred as employee of the respondent- Corporation in view of order dated 27.10.2020 passed by respondent no.1 to implement the notification dated 18.6.2020.
24. Learned advocate Mr. Rawal further submitted that respondent no.2 Corporation has placed on record details along with affidavit with regard to payment of salary which the petitioners were getting prior to 18.6.2020 and such salary was paid through outsourcing agencies which does not mean that the petitioners have become employees of the outsourcing agencies. It was submitted that the petitioners had no choice or option but Page 12 of 36 Downloaded on : Sun Jan 16 07:47:46 IST 2022 C/SCA/16082/2020 JUDGMENT DATED: 11/08/2021 to receive the payment to remain alive during the pandemic situation and whatever is paid by respondent no.2 through outsourcing agencies was accepted by the petitioners. It was pointed out that the respondent-Corporation paid the same amount which was being paid to the petitioners prior to June 2020 by the respective Gram Panchayats.
25. It was further submitted by learned advocate Mr. Rawal that in facts of the case as the petitioners are the employees as daily wagers of the respective Gram Panchayats, they ought to have been transferred by respondent no.1 Municipal Corporation and absorbed as daily wagers in the respondent Municipal Corporation on the same terms and conditions which were prevailing qua each of the petitioners on 17.6.2020 as per the order dated 27.10.2020 passed by respondent no.1.
26. On the other hand, learned advocate Mr. H.S. Munshaw appearing for respondent no.2 Corporation vehemently opposed this petition and submitted that the order dated 27.10.2020 is not applicable to the petitioners as the petitioners were not regularly employed on a sanctioned post and therefore, they cannot be considered as employees of the Gram Panchayats which were merged by notification dated 18.6.2020. Learned advocate Mr. H.S. Munshaw in support of his Page 13 of 36 Downloaded on : Sun Jan 16 07:47:46 IST 2022 C/SCA/16082/2020 JUDGMENT DATED: 11/08/2021 submissions relied upon the following averments made in the affidavit in reply filed on behalf of respondent no.2 Corporation :
"2.The respondent No.2 submits that, Gandhinagar Municipal Corporation is constituted w.e.f. 01.05.2010 under the provisions of the Gujarat Provincial Municipal Corporation Act, 1949 and accordingly is a statutory body. It is submitted that Gandhinagar Municipal corporation is providing civic amenities to the public at large from its own resources.
3.It is most respectfully stated that,the Government of Gujarat though its general Administrative Department has issued a Resolution dated 30.11.2006 instructing to avail the services of men-power though outsourcing agencies as and when require for class 4 posts and copy of the Resolution dated 30.11.2006 is annexed as ANNEXURE-A. It is stated that, accordingly,on constitution of Gandhinagar Municipal Corporation, it has availed men power from outsourcing agencies duly selected and appointed by it after following due procedure. It is reiterated that, the said outsourcing agency duly appointed from time to time are providing men power for different class 4 cadres including Safai Kamdar.
The respondent No.2 craves leave to state that the outsourcing agencies are paid services charges as per the pre- determined rates for the required men power provided by it from its own resources and no grant is released by the Government of Gujarat for such administrative expenses.
4. The respondent No.2 most respectfully submits that, Gandhinagar Municipal Corporation has not at all made any recruitment qua the cadre of Safai Kamdar Page 14 of 36 Downloaded on : Sun Jan 16 07:47:46 IST 2022 C/SCA/16082/2020 JUDGMENT DATED: 11/08/2021 and other class 4 cadres since 01.05.2010. It is respectfully stated that, the daily wage Safai Kamadars appointed by Gandhinagar notified area are regularized in the employment in Gandhinagar Municipal Corporation as class 4 employees considering their long services with notified area and thereafter, with Gandhinagar Municipal Corporation. It is stated that, number of beneficiaries of such daily wage Safai Kamdars is 107. It is reiterated that, it is a consistent policy of Gandhinagar Municipal Corporation to avail the men power from outsourcing agencies as per Government Resolution dated 30.11.2006 as referred to above.
5. The respondent No 2 submitted that, at present, in all 3 outsourcing agencies namely (i) Green Globe Solution (ii) AB Enterprise and (iii) DB Enterprise duly selected as outsourcing agencies by Gandhinagar Municipal Corporation are providing services of approximately in all 1130 Safai Kamdars. It is submitted that, the said agencies are directly paying the remuneration to their respective employees as per the contracts executed with the Gandhinagar Municipal Corporation.
6. The respondent No 2 most respectively submits that the Government of Gujarat issued a Notification dated 18.06.2020 through which in all 18 villages and 1 Nagarpalika/ Municipality are brought within the territorial jurisdiction of Gandhinagar Municipal Corporation. A copy of the Notification is annexed as ANNEXURE-B.
7.The respondent No 2 craves leave to deny the averments and allegations made by the petitioners that, they are supposed to be employed by Gandhinagar Municipal Corporation and paid their salary by it and in due course be regularized in Gandhinagar Municipal Corporation. It is submitted that Gandhinagar Municipal Corporation is a Page 15 of 36 Downloaded on : Sun Jan 16 07:47:46 IST 2022 C/SCA/16082/2020 JUDGMENT DATED: 11/08/2021 statutory body and it has its own policies qua its administration including recruitment and therefore, the petitioners who claim to be the employees of different Gram Panchayats cannot insist for employment by Gandhinagar Municipal Corporation.
8.The respondent No 2 craves leave to add that, the petitioner herein were not employed by the respective Gram Panchayats as per the available information on any permanent and sanctioned posts duly sanctioned by the competent authorities like Government of Gujarat or Development Commissioner or District Development Officer, Gandhinagar District Panchayat. It is submitted that, the concerned petitioners have failed to justify their claim by way of submitting any documentary evidence to show that they were employee on regular permanent posts after following due procedure of recruitment. It is submitted that as per the available record of the Gram Panchayats in all 28 petitioners belonging to different Gram Panchayats were engaged as part time daily wagers and were being paid wages by such panchayats. It is submitted that, in all 13 petitioners were rendering Services to different Gram Panchayats without any resolution or order passed in their favour while no details are available with regard to 2 daily wagers. A copy of the statements qua in all 41 petitioners is annexed as ANNEXURE-C. It is clarified that, a name of one of the petitioners is repeated.
9. The respondent No 2 submits that, an order dated 28.08.2020 was passed by Municipal Commissioner, Gandhinagar, Municipal Corporation to see that, the concerned employees of 18 Gram Panchayats and Pethapur Municipality are provided work by outsourcing agency providing men power to the municipal corporation and paid their remuneration and a copy of the order dated 28.08.2020. The standing Committee of Gandhinagar Municipal Corporation has passed Page 16 of 36 Downloaded on : Sun Jan 16 07:47:46 IST 2022 C/SCA/16082/2020 JUDGMENT DATED: 11/08/2021 the Resolution No. 637 on dated 28-09-2020 For the Said Proposal by Municipal Commissioner the Copy of the Order and The Resolution is attached herewith is annexed as ANNEXURE-D.
10.The respondent No. 2 humbly submits that, at present in all 14 petitioners are employed by Green Globe Solution and outsourcing agency and their services are provided to Gandhinagar Municipal Corporation and copy of the statement providing such details is annexed as ANNEXURE-E. It is stated that they are paid their remuneration by the said agency as its employees. It is submitted that the rest of the petitioners have not shown their willingness to join the said outsourcing agency which is providing men power for the newly merged areas. It is submitted that, even Green Globe Solution has also addressed letters to some of the petitioners to join the said agency and copies of some of such letters are annexed as ANNEXURE-F (colly).
It is submitted that, some of the petitioners have shown adamant approach and not accepted such offers.
11. The respondent No.2 submits that number of other part timers or daily wagers rendering services to the Gram Panchayats or Pethapur Municipality have joined the outsourcing agencies and are being paid their remuneration by such agencies."
27. Referring to the aforesaid averments, it was submitted by learned advocate Mr. Munshaw that petitioners no. 25 to 44 have already joined the outsourcing agencies and only petitioners no. 1 to 24, who belong to village Khoraj are creating obstacles by not working in the said village and complaints have also been received by the respondent-Corporation from the villagers of Page 17 of 36 Downloaded on : Sun Jan 16 07:47:46 IST 2022 C/SCA/16082/2020 JUDGMENT DATED: 11/08/2021 village Khoraj. Learned advocate Mr. Munshaw also relied upon further affidavit filed on behalf of respondent no.2 Gandhinagar Municipal Corporation to submit that the order dated 27.10.2020 passed by respondent no.1-State Government applied only to transfer of regular and permanent employees of such Gram Panchayat and Municipality to the administration of Municipal Corporation. Mr. Munshaw referred to the following averments made in the further affidavit which reads as under :
"1. The respnt. No.2 most respectfully submits that the petitioners herein are emphasizing on the notification dated 18.6.20 and order dated 27.10.20 by the respnt. No.1 through which 18 Gram Panchayats and one Municipality are merged with Gandhinagar Municipal Corporation on certain conditions and copies thereof are annexed respectively as ANNXXED-A & B. It is most respectfully stated that present petitioners were not selected and posted after following due procedure of recruitment on permanent and sanctioned posts of the respective Gram Panchayats and therefore they cannot seek transfer of their service to Gandhinagar Municipal Corporation. It is as such directed by the respnt.no.1 are for transfer of regular and permanent employees of such Gram Panchayat and Municipality to the administration of Municipal Corporation. It is submitted that most of them were as such irregularly employed part timers with their respective Gram Panchayats and were paid their remuneration by the Gram Panchayat from their "own funds" and it would be so clear form the statement indicating remuneration being paid to them by way of crediting their respective bank account. The respnt. no.2 craves leave to Page 18 of 36 Downloaded on : Sun Jan 16 07:47:46 IST 2022 C/SCA/16082/2020 JUDGMENT DATED: 11/08/2021 annex herewith statement annexed by the petitioners indicating details of their remuneration as ANNEXURE-C. The respnt. no.2 submits that as admitted by the petitioner no. 25 to 44 have joined outsourcing agency and are accordingly paid their remuneration. It is humbly stated their employment with outsourcing agency is voluntary and as per their willingness and are being paid as per the contract entered into between Gandhinagar Municipal Corporation and the agency and a copy of statement indicating remuneration being paid to petitioners No. 25 to 44 by the outsourcing agency is annexed as ANNEXURE-D. The respnt. no.2 submits that at no time petitioner no. 1 to 24 were ever forced or compelled to join outsourcing agency either by the respnt. No.2 or by outsourcing agency which was having contracts with Gandhinagar Municipal Corporation from time to time. It is humbly stated that the petitioners who are making all sorts of allegations got their employment in Gandhinagar Municipal Corporation have not joined any of such outsourcing agencies as party respondent in the present Special Civil Application. It is further stated that the Petitioners have also failed to point out a single complaint addressed to the respnt. no.2 or any other govt. authority including Police Dept. about a compulsion or undue force by such agencies for joining their agencies. The respnt. no.2 submits that the petitioner no. 1 to 24 are perhaps the residents of village Khoraj and were irregularly employed by Khoraj Gram Panchayat and are not holding any permanent sanctioned post. It is submitted that their employment is on the basis of some resolution passed by the Gram Panchayat or on oral instruction. It is submitted that most of them are appointed in the year 2017 by the Gram Panchayat pursuant to a resolution No. 21 dated 24.1.17 and year 2016 resolution No.12 dated 27.6.2016 purely Page 19 of 36 Downloaded on : Sun Jan 16 07:47:46 IST 2022 C/SCA/16082/2020 JUDGMENT DATED: 11/08/2021 on temporary and adhoc basis as daily wager Safai Kamdar and a copy of the statement giving details of the 44 petitioners is annexed as ANNEXURE-E. It is stated that even the statement provides the details about petitioners No.25 to 44 also. In other words more particularly the averments and allegations made by the petitioners No. 1 to 44 about their long employment with Khoraj Gram Panchayat are thoroughly baseless.
2. It is submitted that the impugned issue and problem is with regard to petitioner no. to 24 who are not allowing the employees of outsourcing agency to sweep and clean the entire area of village Khoraj. It is submitted that the petitioner No. 1 to 24 are obstructing and manhandling the employees of outsourcing agency and complaints in this regard by the agency as well as residents of village Khoraj are collectively annexed as ANNEXURE-F. It is submitted that as such petitioners are entering in the conflicts with the employees of outsourcing agency as per the time to time complaints received by the administration. It is submitted that the petitioners have no right to obstruct the administration and its agency in performing duties.
3. The rspnt. No.2 craves leave to submit that the petitioner no.1 to 24 initially worked with D.G. Nakrani, outsourcing agency with whom Gandhinagar Municipal corporation had executed a contract for providing man power in the months of June, July and August, 2020 and even they were paid their remuneration by such outsourcing agency as per the remuneration paid by Khoraj Gram Panchayat and copies of statement indicating details are collectively annexed as ANNEXURE-G. It is submitted that petitioner no.1 to 24 thereafter entered in to disputes with the outsourcing agencies and are not rendering service and have preferred present Special Civil Application for various Page 20 of 36 Downloaded on : Sun Jan 16 07:47:46 IST 2022 C/SCA/16082/2020 JUDGMENT DATED: 11/08/2021 reliefs though it is not provided in notification as well as order referred to herein above by the respnt. no.1
4. The respnt. no.2 craves leave to annex herewith a statement giving complete details qua other 14 petitioners who have joined the service of outsourcing agency and performing full time daily work and getting remuneration as per the provisions of The Payment of Minimum Wages Act as ANNEXURE-H. Presently there are 14 employees working as the outsourcing employees with benefits of E.P.F. and E.S.I. Previously Gram Panchayat were not paying remuneration according to minimum wages Whereas respnt, no.2 pays minimum wages to employees as per the notification by the government issued every six month. Currently, 14 Safai Kamdar are working through an outsourcing agency. They are availing benefits of EPF, ESI etc. Gram Panchayat offices were not paying salaries as per the minimum wages act to them. On the other hand, an outsourcing agency on behalf of Gandhinagar Municipal Corporation is currently paying salaries as per the Minimum Wages Act. Additionally, they are enjoying the benefit of increment in minimum wages declared by the government on a half-yearly basis.
5. In view of the above mentioned facts and circumstances it is crystal clear that the petitioners are misreading and misinterpreting the provisions of notification dated 18.6.20 and the order dated 27.10.20 issued by the respnt. no. 1. It is submitted that under no circumstances petitioners and more particularly petitioners No. 1 and 24 intend to join the service of Gandhinagar Municipal Corporation."
28. In view of above averments and submissions, learned advocate Mr. H.S. Munshaw prayed that Page 21 of 36 Downloaded on : Sun Jan 16 07:47:46 IST 2022 C/SCA/16082/2020 JUDGMENT DATED: 11/08/2021 the petition deserves to be dismissed as the petitioners are not entitled to be transferred to respondent no.2 Municipal Corporation as per clause(c) of the order dated 27.10.2020 passed by the State Government. Learned advocate Mr. Munshaw also referred to the complaints received from the villagers with regard to the inaction on part of the petitioners to clean the villages. It was also pointed out that the Corporation has taken care of all the petitioners and have paid the amount of salary which they were getting through outsourcing agencies. It was also submitted that since inception respondent no.2 Corporation has employed outsourcing agencies to provide man power for Safai work.
29. Learned advocate Mr. H.S. Munshaw also referred to the details of the salary paid to each of the petitioners and submitted that those petitioners who have joined the outsourcing agencies are getting minimum wages prescribed by the Government and accordingly, such employees of the erstwhile Gram Panchayats are getting wages of more than Rs.9000/- per month at the rate of Rs.353.60 per day. Learned advocate Mr. Munshaw referred to Annexure-C at page 252 filed along with further affidavit in support of his submission. It was therefore, submitted that the petitioners must join the outsourcing agencies so that they can get more pay on the basis of Page 22 of 36 Downloaded on : Sun Jan 16 07:47:46 IST 2022 C/SCA/16082/2020 JUDGMENT DATED: 11/08/2021 minimum wages to be paid by the outsourcing agencies as per the terms of contract entered into by the respondent-Corporation with such agencies. It was therefore, submitted that it is in the interest of all the petitioners to join the outsourcing agencies without raising disputes and insisting upon to be transferred as employees of respondent Corporation.
30. Having heard the learned advocates for the respective parties and having gone through the materials on record, more particularly, notification dated 18.6.2020 read with order dated 27.10.2020, following undisputed facts emerge from the record :
1) The petitioners were employed as daily wagers by the respective Gram Panchayats as Safai Kamdars.
2) The petitioners were getting fixed pay from the respective Gram Panchayats and the majority of the petitioners received such salary directly in their bank accounts from the respective Gram Panchayats.
3) The petitioners did not get any salary from June 2020 in view of merger of respective Gram Panchayats in which they were working as Safai Kamdars into Gandhinagar Municipal Corporation.Page 23 of 36 Downloaded on : Sun Jan 16 07:47:46 IST 2022
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4) Gandhinagar Municipal Corporation thereafter, considering the fact that the petitioners were not getting the salary after the merger took decision to pay the amount which the petitioners were getting through their outsourcing agencies as Gandhinagar Municipal Corporation has awarded the contract of providing man-power for Safai Kamdars to outsourcing agencies in view of Government Resolution dated 30.11.2006.
5) It is also not in dispute that as per clause
(c) of the order dated 27.10.2020, the State Government has directed to transfer all the employees of the local bodies to the Gandhinagar Municipal Corporation on the same terms and conditions which governed them on 17.6.2020. It is further provided in the said order that such transfer would take place on and immediately with effect from 18.6.2020.
6) The respondent no.2 Municipal Corporation has also placed on record the details as to how each of the petitioner is employed by the respective Gram Panchayats and it appears that majority of the petitioners were employed in the year 2016-2017 and they were getting fixed salary of Rs. 1200 to Rs. 1500/- as per the resolution passed by the respective Gram Panchayats.
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7) It also emerges from the record that the petitioners who have chosen to become the employees of the outsourcing agencies are paid minimum wage of Rs.353.60 and are getting monthly emoluments of Rs. 8000/- to Rs. 9000/- as compared to the petitioners who have refused to join as employee of such outsourcing agencies.
31. In view of the aforesaid facts, it is clear that the respondent no.2-Corporation has failed to comply with the order dated 27.10.2020 in its letter and spirit. Clause (c) of the order dated 27.10.2020 stipulates to transfer all such employees of the specified local authorities who were in the employment of the specified local authorities on and immediately before 18th June, 2020 and it further provides to continue such employees on the same terms and conditions which governed them on the 17th June, 2020.
32. Admittedly, the petitioners were daily wagers with respective Gram Panchayats working as Safai Kamdars getting fixed salary as on 17.6.2020. Therefore, it was incumbent upon respondent no.2 Corporation to transfer all such Safai Kamdars who were in employment of the respective Gram Panchayats on or before 18.6.2020 to the respondent no.2 Municipal Corporation as Safai Kamdars. It is pertinent to note that in the affidavit in reply filed on Page 25 of 36 Downloaded on : Sun Jan 16 07:47:46 IST 2022 C/SCA/16082/2020 JUDGMENT DATED: 11/08/2021 behalf of the respondent no.2 -Corporation in similar situation, 107 employees of Gandhinagar notified area were absorbed and transferred by the respondent no.2-Corporation which is averred in paragraph no.4 of the affidavit in reply filed by one Mr. Pritesh C. Dave, Deputy Municipal Commissioner, Gandhinagar Municipal Corporation, Gandhinagar affirmed on 5.8.2021.
33. Thus the respondent no.2-Municipal Corporation has adopted discriminatory approach while treating the employees of Gandhinagar notified area and the petitioners who are similarly situated. Moreover, respondent no.2- Corporation has also discriminated between the petitioners by not paying the minimum wages to the petitioners who have refused to join the outsourcing agencies. Respondent no.2 Corporation ought to have paid the minimum wages right from the month of June 2020 to all the petitioners as per the policy of the respondent no.2-Corporation, irrespective of whether the petitioners agreed to join the outsourcing agencies or not.
34. With regard to the contention raised on behalf of the respondent no.2 Corporation that as per Government Resolution dated 30.11.2006 the respondent no.2- Corporation, since inception has adopted the policy of outsourcing to provide man-power for Safai Kamdars is Page 26 of 36 Downloaded on : Sun Jan 16 07:47:46 IST 2022 C/SCA/16082/2020 JUDGMENT DATED: 11/08/2021 concerned, such resolution is dealt with by the Division Bench in judgement in case of Pooja Construction Company (supra), wherein it is categorically held that basic functions of the Municipality with regard to the cleanliness cannot be outsourced and it is contrary to the provisions of the Bombay Provincial Municipal Corporation Act, 1949. Relevant observations of the Division Bench are as under :
"22.2 Certain other salient and interesting features which emerge from the affidavits filed by municipality are that:
(a) At the relevant time, the respondent municipality had 305 posts on sanctioned establishment;
(b) Almost 162 regular / permanent posts on sanctioned establishment were vacant at the relevant time;
(c) According to the municipality, the Commissioner, Municipal Administration had instructed that 'if necessary municipality shall take service through outsourcing';
(d) The State Government claims that the circulars issued by Government do not permit outsourcing primary functions and statutory duties of municipality;
(e) After municipality issued contract to respondent No.3, during first phase of 5 months the respondent No.3 raised bills for about Rs.75.75 lakh (total for 5 months) and municipality paid such large amount for deploying, on an average, about 200 to 230 persons p.m., against 162 vacancy.
22.3 From the said details it comes out that the municipality outsourced the work and Page 27 of 36 Downloaded on : Sun Jan 16 07:47:46 IST 2022 C/SCA/16082/2020 JUDGMENT DATED: 11/08/2021 functions of sweepers, cleaners, water supply department, sanitation department, etc. and paid large amounts towards the bills raised by the agency xxx 22.5 Respondent No.5 has, in the said affidavit, asserted that 'the respondent No.1 made incorrect statement by making with the statements that the instructions were issued by the State Government to appoint personnel of sanctioned posts by way of outsourcing...'.
xxx
25. It is pertinent that on one hand the respondent Nos.4 and 5 plead such stand before the Court whereas the municipality, on the other hand, tried to justify or rationalise its action (viz. outsourcing manpower) on the ground that said respondent Nos.4 and 5 and the State have issued such instruction and approval to appoint persons on sanctioned posts are not granted by the authority.
26. It appears that the municipality and the said respondents are trying to pass the buck and they are trying to shift the blame to the other side. Amidst such irresponsible and inconsiderate conduct, the respondent Nos.4 and 5 forget and overlook that they are equally responsible and accountable for all lapse and breach (in case of outsourcing the duties and functions of municipality) including violation of relevant provisions under the Act.
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29. Having regard to (a) the facts of the case and (b) the stand taken by respondent Page 28 of 36 Downloaded on : Sun Jan 16 07:47:46 IST 2022 C/SCA/16082/2020 JUDGMENT DATED: 11/08/2021 Nos.4 and 5 as well as respondent No.3 the action of the respondent municipality (viz. to invite bids for awarding work order to supply manpower for getting executed some of the primary and statutory and basic duties, functions and obligations of municipality) and so as to address above mentioned pertinent issue and to take decision with regard to second part of the relief prayed for by the petitioner it is necessary to turn to relevant provision under the Gujarat Municipalities Act, 1963. The aspects involved in present case and those which arise for consideration lead the Court to study and appreciate scope and effect of Sections 47, 50, 80, 271 and Sections 356, 257, 258, 260, 262 and proviso (a) of Section 271.
xxx 29.1 Section 87 of the Act prescribes the duties and functions of municipality. Under the said provisions, the duties and functions are placed under 5 categories:
(i) in the sphere of public works;
(ii) in the sphere of education;
(iii) in the sphere of public health and sanitation;
(iv) in the sphere of development;
(v) in the sphere of administration.
29.2 The duties and functions enumerated under first 3 categories to some extent in fifth category are of public interest, public welfare and importance. They form or constitute basic, essential and primary civil duties and functions of municipalities.
29.3 Section 91 enumerates discretionary functions of the municipality and it also Page 29 of 36 Downloaded on : Sun Jan 16 07:47:46 IST 2022 C/SCA/16082/2020 JUDGMENT DATED: 11/08/2021 brings out the distinction between primary and basic duties and essential function of the municipality vis-a-vis discretionary functions. This section emphasises the position that the duties and functions under Section 87 are basic and statutory duties and essential functions.
30. Such activities and functions i.e. primary and basic duties and essential functions - including those covered within the purview of (included under Section 87) cannot be outsourced.
31. In this context it is relevant to take into account provisions under Section 47, Section 50 and Section 271 of the Act.
31.1 Section 47 makes provision for appointment of Chief Officer and other officers for administration of the municipality and so as to enforce implementation and execution of the duties and functions of the municipality.
31.2 Section 50 of the Act makes provision for creation of such posts of officers and servants [other than those specified sub- sections (1) and (2) of Section 47] as may be necessary 'for the purpose of carrying out the duties under the Act'. Thus, the provisions under said two section of the Act postulate and mandate that the duties and functions of the municipality must be implemented and carried out by the officers and servants appointed on the posts created under the Act.
31.3 Sub-section (2) of Section 50 provides that such officers and servants should be recruited and their conditions of service should be such as are determined in accordance with the rules framed under Section 271 of the Act. Section 271(d) provides that Rules can be framed for determining the staff of officers and servants to be employed for the municipality Page 30 of 36 Downloaded on : Sun Jan 16 07:47:46 IST 2022 C/SCA/16082/2020 JUDGMENT DATED: 11/08/2021 and the powers and duties of such officers and servants.
31.4 Section 271(g) provides for framing rules with regard to mode of appointment, conditions of appointment, for disciplinary action, termination of service of officers and servants. The section mandates that Rules prescribing mode of appointment and conditions of appointment of officers and employees (staff) including Rules for disciplinary action and for all aspects related to service of the employees should be framed by the municipality. Section 271(h)(i), (j) and (k) provide for framing rules in respect of service conditions for the officers and employees of the municipality.
31.5 In light of the said provision it becomes clear that the officers and servants of the municipality should be selected and recruited / appointed by the municipality and the conditions of their service must be determined by municipality that too in accordance with the Rules framed under Section 271 of the Act and not by any person or agency or body other than the municipality and the service conditions of such employees cannot be determined by any agency or body or person other than municipality.
31.6 The said provision project and highlight the position that said employees must be under supervision and control of the officer(s) of the nagarpalika / municipality and accountable to the municipality.
32. A conjoint reading of the said provision viz. Sections 47, 50, 87 and Section 271 make it clear that the Act does not provide any room to the municipality and does not permit the municipality to outsource its duties and functions, more particularly the duties specified under Section 87 of the Act. The said provision do not postulate Page 31 of 36 Downloaded on : Sun Jan 16 07:47:46 IST 2022 C/SCA/16082/2020 JUDGMENT DATED: 11/08/2021 that the duties and functions of the municipality can be performed and executed by persons who are not its employees or that the municipality can get its duties and functions carried out and executed by persons (officers, employees and staff) who are not its employees (i.e. who are not selected, recruited and appointed as employees (or officers) of the municipality after following the procedure and in the mode prescribed under the Act and Rules) but are outsiders / non-employees. The Act rather mandates that the municipality must, itself, carry out the basic and primary duties and essential functions of municipality particularly those which fall under the purview of Section 87 through its own officers and employees recruited and appointed by the municipality on the posts created under and in accordance with the provisions of the Act and the Rules framed for said purpose and in exercise of power conferred by the Act. Further, the said employees should be under direct control and supervision of the officer appointed under Section 47 and they should be bound by the Rules framed under the Act, particularly under Section 271 of the Act.
32.1 The duties and functions which form basic, primary and essential duties and functions of municipality e.g. water supply, safety, public health, fire-tenders / fire- brigade, sanitation, fire, primary schools - education etc. cannot be placed in the hands of outside agency and/or in the hands of the persons who are not officers and employees of (i.e. selected and appointed by) the municipality.
32.2 The said provision also envisage that the employees entrusted with the duties and functions of the municipality should be accountable to the municipality for their acts of omission and/or commission and that they should be bound by and they should be subject to the Discipline and Regulations of Page 32 of 36 Downloaded on : Sun Jan 16 07:47:46 IST 2022 C/SCA/16082/2020 JUDGMENT DATED: 11/08/2021 the municipality so that appropriate action against erring employees can be taken in the cases where the duties and functions are not performed (in the manner it should be discharged) under and in accordance with the Regulations.
32.3 Needless to mention that when the activities are outsourced and a third party / outside agency is engaged to deploy persons to perform the duties, then the municipality (and the officers appointed under Section 47 of the Act) will not have any role and/or any say in the matter of selection and appointment of employees and/or any authority or control and power of supervision over the said persons engaged and deployed on outsourcing basis.
32.4 Thus, engaging persons or entrusting duties and functions of municipality to persons who are not selected and recruited
(i) by the municipality; (ii) in accordance with the procedure prescribed by the Act and the Rules and the action of getting duties and functions of municipality executed by such non-employees, amount to breach of statute's mandate and violation of above mentioned provision. It would also tantamount to acting against basic tenets of public employment.
xxx
38. It, therefore, follows that the municipalities are not permitted to outsource the works, activities and functions which are prescribed by the said statute and the action of outsourcing such activities and/or the action of engaging persons on outsourcing basis (to execute the said works, duties and functions) amount to flouting the mandate under the Act. It also amounts to violation of statutory provision and abandoning statutory obligation as well as shirking the responsibility and acting in defiance of or in breach of provision under Page 33 of 36 Downloaded on : Sun Jan 16 07:47:46 IST 2022 C/SCA/16082/2020 JUDGMENT DATED: 11/08/2021 Section 87.
39. The municipalities, which indulge in and adopt such ill-practice or method of outsourcing its functions and duties actually commit violation of provisions under the Gujarat Municipalities Act and the Rules framed thereunder. Further by its such action the municipality not only violates the duty cast on the municipality but they also circumvent the public duty, abuse the fundamental character and basic or primary element of public employment and such municipality also deprive opportunity of public employment to the persons who possess and fulfill prescribed eligibility criteria i.e. qualification, experience, etc. prescribed by the Rules framed under the Act.
40. Such action viz. indulging in and adopting the practice and method of outsourcing, violates the salutary principles the soul of Articles 14 and 16 of the Constitution and it also give rise to or pave wave for nepotism and engaging persons who do not fulfill prescribed eligibility criteria, they also undermine sanctity of recruitment process in domain of public employment.
41. In light of the foregoing discussion and for the reasons mentioned above, the relief prayed for by the petitioner in second part of paragraph No.9(B) viz. that the respondent be directed to issue or grant the work order to the petitioner for the works / functions of the municipality does not deserve to be and cannot be granted."
35. In view of above dictum of law, the practise adopted by the respondent no.2-Corporation is highly deprecated by this Court in the aforesaid decision. Irrespective of the procedure and Page 34 of 36 Downloaded on : Sun Jan 16 07:47:46 IST 2022 C/SCA/16082/2020 JUDGMENT DATED: 11/08/2021 practice adopted by respondent no.2-Corporation, there is a clear violation of the order dated 27.10.2020 passed by the State Government and such violation is a continuous violation by not transferring the employees of the Gram Panchayats which were merged by notification dated 18.6.2020 who were working as on 18.6.2020 on the same terms and conditions which governed them on 17.6.2020. Meaning thereby that the petitioners who were the daily wagers working in the respective Gram Panchayats which is admitted by the respondent no.2-Corporation in the statements produced along with the affidavit in reply ought to have been transferred as an employee of the respondent no.2-Corporation on the same terms and conditions which were governing them on 17.06.2020
36. In view of the foregoing reasons, the petition succeeds and is accordingly allowed. Respondent no.2 Corporation is hereby directed to transfer all the petitioners as per clause(c) of the order dated 27.10.2020 with effect from 18.6.2020 on the same terms and conditions which governed them on 17.6.2020. Respondent no.2- Corporation is further directed to pay the minimum wages to the writ petitioners as such wages is being paid to the petitioners who have opted to be employees of the outsourcing agencies.
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37. Rule is made absolute to the aforesaid extent.
Direct service is permitted.
(BHARGAV D. KARIA, J) RAGHUNATH R NAIR Page 36 of 36 Downloaded on : Sun Jan 16 07:47:46 IST 2022