Gujarat High Court
State Of Gujarat vs Prajapati Hitesh Mohanlal on 24 April, 2018
Author: Anant S. Dave
Bench: Anant S. Dave, Biren Vaishnav
C/LPA/983/2017 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 983 of 2017
In
SPECIAL CIVIL APPLICATION NO. 13621 of 2014
With
CIVIL APPLICATION NO. 2 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE ANANT S. DAVE
and
HONOURABLE MR.JUSTICE BIREN VAISHNAV
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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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STATE OF GUJARAT
Versus
PRAJAPATI HITESH MOHANLAL
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Appearance:
MR DHAWAN JAYSWAL ASST. GOVERNMENT PLEADER(1) for the
PETITIONER(s) No. 1,2,3
MS VIDHI J BHATT(6155) for the RESPONDENT(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE ANANT S. DAVE
and
HONOURABLE MR.JUSTICE BIREN VAISHNAV
Page 1 of 9
C/LPA/983/2017 JUDGMENT
Date : 24/04/2018
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE ANANT S. DAVE)
1. In this appeal under Clause 15 of Letters Patent, the challenge is to the CAV Common Judgement dated 1.7.2016 rendered in Special Civil Application No. 13621 of 2014 and allied matters by learned Single Judge, in which, main prayer of the writ petitioners was challenge to the Government Resolution dated 23.12.2013 and 14.8.2014 to the extend that it requires the petitioners to undergo the recruitment drill as per the advertisement dated 28.8.2014 for the posts of Technical Assistant. Analogues prayers were also made as reflected in prayer clause 26 of the writ petition.
2. Learned Single Judge having taken note of factual scenario emerging on the record in the context of such prayers and rival submissions made by learned advocate appearing for the writ petitioners and learned Advocate General for the State of Gujarat and considering provisions of the Mahatma Gandhi National Rural Employment Guarantee Act, 2005 (in short "Act 2005") various executive instructions issued thereunder and 4 level of establishment namely State, District, Taluka and Village which prescribe various posts, pay-scale and educational qualifications for such posts as per erstwhile G.R.dated 23.12.2013 and 15.9.2010 on 4 level, learned Single Judge also considered various decisions relied on by both the sides including Secretary, State of Karnataka & Ors. vs. Umadevi & Ors. (2006) 4 SCC 1 and other such decisions finally concluded as under:
Page 2 of 9C/LPA/983/2017 JUDGMENT "52. For the foregoing reasons, the present group of petitions are partly allowed.
52.1. The prayer of the petitioners to regularise their contractual services and make them permanent on the establishment is rejected. Limited immunity that is made available to the petitioners is by allowing them to continue on their contractual employment and not to be replaced by other set of contractual employees on ad-hocism. The petitioners shall be continued in the existing cadre as long as the said Scheme continues, but purely on contractual basis and such employment shall be co-terminus with the scheme, subject to evaluation of their performance, service and disciplinary rules as may be made applicable to them. The respondent-State shall insist on periodical upgradation of knowledge, improvisation of technical skill and overall preparedness on the subject, so also on computerisation.
52.2. The challenge to the Government Resolutions dated December 23, 2013 and August 28, 2014 and the consequential process of recruitment undertaken in the year 2014 pursuant to the public advertisement dated August 28, 2014, succeeds qua the petitioners only. Those petitioner who have qualified in the last examination of the year 2014 shall be continued on contractual employment without insistence on their fresh appointment by the respondent-State.
Page 3 of 9C/LPA/983/2017 JUDGMENT The respondent-authorities shall renew the petitioners' contract of service on the same terms and conditions as continued so far 52.3. Those petitioners who have cleared the examination and not qualified in the process of recruitment of the year 2014, shall not be discontinued, if already on contractual service pursuant to their selection through legally permissible mode in the years 2009 and 2011.
52.4. Those of the petitioners who have approached this Court after their termination on account of non- extension of their contractual employment, but otherwise given appointment after selection under the Rules/ on following public advertisement, shall be restored to continue on their original posts. This shall be considered as their contractual employment without any break.
52.5. It is being clarified that those appointments which have been made freshly pursuant to the aforementioned resolutions and process of selection under challenge in the year 2014, in no manner, shall be affected by this judgment.
52.6. It is being clarified that in absence of any policy of the State to grant permanency in any of the cadres at the District, Taluka or Gram Panchayat levels, the issue of the length of service of the petitioners deserves no adjudication. However, if any such policy Page 4 of 9 C/LPA/983/2017 JUDGMENT in future is made by the State, the petitioners shall be at liberty to raise the contention of continuation and shall be entitled to raise the issue of the length of service from the date of their initial appointment. This Court has not concluded the said issue in the present group of petitions and has left the same for the petitioners to contend at an appropriate time in the future, if the occasion so arises.
52.7. As a parting note, it is being observed that this Court would fail in its duty if it does not act as a catalyst in the words of the Apex Court and draws the attention of the State Government that if may need to take a policy decision in respect of creating permanent establishment where contractual appointments have continued for more than a decade and its continuation is still felt by gearing up at all levels. Since it entails large financial implication, a marathon exercise is begging the attention of the State."
3. Based on the above, when prayer of the writ petitioners to regularize their contractual services and grant of permanency on the establishment came to be rejected while hearing this appeal, we made a request to learned AGP to deliberate upon order and direction in para 52 of impugned judgement and limited relief granted to writ petitioners so that without replacement of other set of contractual employees they can be permitted to continue as such on contractual employment.
4. In this appeal various contentions are taken including Page 5 of 9 C/LPA/983/2017 JUDGMENT nature of the scheme which provides employment to unemployed persons especially in rural area for minimum 100 days in a year and necessity to create new cadres in view of special I.T. Skills and work experience requirement, the resolution was issued by the State authority. Based on the above and burden of funding under Chapter III namely Employment Guarantee Scheme and Unemployment Allowance Clause 22, by which, Central Government is to provide funding and meet with the cost towards payment of wages for un-skilled manual work under the scheme and upto 3/4th of the material cost of the scheme which also include payment of wages to skilled and semi-skilled workers subject to the provisions of Schedule II and further percentage of the total cost of the scheme as may be determined by the Central Government towards the administrative expenses which may also include the salary and allowances of the administrative staff and the State Government has to meet with cost of unemployment allowance payable under the scheme and 1/4th of the material cost of the scheme including payment of wages to skilled and semi-skilled workers subject to provisions of Schedule II and further the administrative expenses of the State Council etc. it is submitted that continuing the writ petitioners/respondents herein so directed by learned Single Judge even on contractual basis as per para 52.1. is also difficult and will create administrative burden and will deprive the state benefits of service of qualified personnel. At the same time, certain conditions of service and discipline of the contractual employees had put levels under the MGNREGA scheme is also as per various Government Resolutions and in order to effective and transparent Page 6 of 9 C/LPA/983/2017 JUDGMENT employment of the scheme training is to be imparted to contractual employees so as to enhance the technical efficiency under the MGNREGA scheme was imperative.
4.1. Accordingly it is submitted that appeal deserves to be admitted by staying the order of learned Single Judge as prayed for.
5. As against, learned advocate appearing for the respondents would contend that all the above aspects are considered by learned Single Judge in a detailed CAV Common Judgement in the context of Act 2005, various executive instructions contained therein and the decisions of the Apex Court in the cases of State of Haryana and Ors. vs. Piara Singh and Ors., Secretary, State of Karnataka and Ors. vs. Umadevi and other such decisions by referring to 4 levels namely State, District, Taluka and Village containing various posts and the qualification of individual writ petitioners with their work experience has given limited relief which do not require any interference and appeal deserves to be dismissed.
6. Having heard learned Asst. Government Pleader for the appellant-State and learned advocate for the respondents for the sake of convenience, we reproduced herein above the directions contained in para 52 of the order impugned, which also formed part of our oral order dated 19.2.2018 passed in this appeal.
7. Since the prayer to regularise the contractual service of the writ petitioners and to make them permanent on the Page 7 of 9 C/LPA/983/2017 JUDGMENT establishment is rejected by learned Single Judge, limited benefit made available to them was also direction to the authority to continue the contractual employment and that they are not to be replaced by other set of contractual employees on ad-hoc basis. Further while passing such order learned Single Judge has taken care of existing educational qualifications and work experience of each of the employees and readiness on their part to undergo any kind of training so as to improvisation of technical skill and overall preparedness on the subject, so also on computerisation.
8. The directions of above in nature issued by learned Single Judge in exercise of powers under Article 226 of the Constitution of India are in consonance with law laid down by the Apex Court, to which, reference is made in the decisions and it is trite that nature of employment namely contractual on which employee is serving is not to be replaced by another set of employees with same terms and conditions.
9. Considering the object of the Act, 2005 namely to provide employment in rural area by the Central Government and substantial cost to be incurred for and administrative side namely payment of wages and salary is to be borne by the Central Government under Rule 22 and State Government is fastened with the liability with the cost of unemployed allowances payable under the scheme and only 1/4th of the material cost of the scheme including payment of wages to skilled and semi-skilled workers subject to provisions of Schedule II, we find no substance in Page 8 of 9 C/LPA/983/2017 JUDGMENT the challenge to the order impugned passed by learned Single Judge in this appeal filed by the State of Gujarat and in absence of merit it is dismissed.
10. In view of the above, Civil Application also stands disposed of.
(ANANT S. DAVE, J) (BIREN VAISHNAV, J) NAIR SMITA V. Page 9 of 9