Gujarat High Court
Hasmukhbhai Chimanlal Tapodhan vs State Of Gujarat on 19 July, 2022
Author: Biren Vaishnav
Bench: Biren Vaishnav
C/SCA/6852/2020 CAV JUDGMENT DATED: 19/07/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
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FOR APPROVAL AND SIGNATURE:
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 ?
================================================================ HASMUKHBHAI CHIMANLAL TAPODHAN Versus STATE OF GUJARAT ================================================================ Appearance:
MR SHALIN MEHTA, SR. COUNSEL assisted by MS SHIKHA D. PANCHAL & MS ADITI S. RAOL, (8128) for the Petitioner(s) No. 1 IN ALL THE PETITIONS EXCEPT REST OF PETITIONS MENTIONED BELOW:Page 4 of 71 Downloaded on : Wed Jul 20 21:07:46 IST 2022
C/SCA/6852/2020 CAV JUDGMENT DATED: 19/07/2022 MR RUSHANG D MEHTA for the Petitioner(s) No. 1 IN SCA 6605/2021 MR DIPAK R DAVE, for the Petitioner(s) No. 1 IN SCA 8367 of 2021 AND 8537 of 2021 MS ASHLESHA PATEL, for the Petitioner(s) No. 1 IN SCA 10142/2021 MR DEEPAK N KHANCHANDANI for the Petitioner(s) No. 1 IN SCA No.12761 of 2021 MR N D SONGARA for the Petitioner(s) No. 1 IN SCA Nos.12865 & 12800 of 2021, 15734/2020 WITH CA 1 OF 2021 AND SCA No.17420/2021 MS VIDHI J BHATT for the Petitioner(s) No. 1 IN SCA Nos.15846/2020, 16773/2020, 88/2021, 8421/2020 & 17713/2021 MR GAURAV K. MEHTA for the Petitioner(s) No. 1 IN SCA Nos.1511/2022, 12678/2021 & 18154/2021 MR PRANAV V SHAH(2516) for the Respondent(s) No. 3 MR UTKARSH SHARMA, MR KURVEN DESAI, MR. SOAHAM JOSHI, AGPs for the Respondent(s) No. 1,2 in all the petitions ================================================================ CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV Date : 19/07/2022 COMMON CAV JUDGMENT
1. Rule, returnable forthwith. Respective AGPs waive service of Rule on behalf of the respondent-State in respective petitions.
2. With the consent of the learned advocates appearing for the respective parties, all these petitions were taken up for its final disposal.Page 5 of 71 Downloaded on : Wed Jul 20 21:07:46 IST 2022
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3. In all these petitions, under Article 226 of the Constitution of India, the issue for consideration before this Court is the interpretation of the Circular dated 16.7.2019 issued by the Finance Department, State of Gujarat. This circular was issued in light of the decision of the Division Bench in a group of Letters Patent Appeals No. namely; LPA No.1155 of 2019 and allied appeals in SCA Nos.7462 of 2012 dated 9.5.2019.
4. Based on the submissions made by the learned advocates for the respective petitioners and the learned AGPs on behalf of the State of Gujarat, 8 categories were carved out for adjudication and interpretation of the circular. Following are the categories:
(1) Challenge to the entitlement of the benefit of the circular because of the rejection of cases those persons who are appointed for less than four hours.
(2) Rejection on the ground that the Page 6 of 71 Downloaded on : Wed Jul 20 21:07:46 IST 2022 C/SCA/6852/2020 CAV JUDGMENT DATED: 19/07/2022 petitioners have approached the Court belatedly after termination.
(3) Rejection on the ground that such persons who are appointed on fixed pay basis and for 29 days in a month with one day's artificial break are not entitled to the benefit of the Circular dated 16.7.2019.
(4) Rejection on the ground that the persons working on outsourcing by virtue of the GRs dated 10.2.2006, 1.4.2010 and 25.4.2012 cannot get the benefit of the Circular dated 16.7.2019. This included a category of persons engaged on project work.
(5) Denial of the benefit of the Circular dated 16.7.2019 on the ground that there are no orders of appointments issued to the petitioners.
(6) Denial of the benefit of the Circular Page 7 of 71 Downloaded on : Wed Jul 20 21:07:46 IST 2022 C/SCA/6852/2020 CAV JUDGMENT DATED: 19/07/2022 dated 16.7.2019 on the ground that the petitioners are part time employees who were appointed after 31.5.2012 and are therefore, not entitled to get the benefit of the circular dated 16.7.2019 as there was a complete ban on engaging part time employees as per the GR dated 25.4.2012.
(7) Denial of the benefit to such Class-IV employee on the ground that they are not working on sanctioned posts.
(8) Persons whose cases are rejected on the ground that they are working with the Panchayat.
5. Factual background leading to the issuance of the circular dated 16.7.2019 is as under:
5.1 As per sub Rule (72) of Rule 9 of the Bombay Contingency Expenditure Rules, 1959, the administrative Page 8 of 71 Downloaded on : Wed Jul 20 21:07:46 IST 2022 C/SCA/6852/2020 CAV JUDGMENT DATED: 19/07/2022 heads of the offices, districts / departments were given powers to appoint part time employees for doing cleaning work and serving water in the offices in which they were engaged. This was a practice prevalent in the offices at the relevant time before the issuance of the circular of the Government dated 10.2.2006.
5.2. The Government through the Finance Department issued a circular dated 10.2.2006 which circular provided that a decision has been taken that the practice of engaging such part time employees ought to be discontinued with immediate effect. The powers to make such appointments given to the administrative heads was withdrawn. The circular further provided that on and after this GR, where these offices need the services of cleaning and serving of water etc., such services should be obtained by outsourcing. Only in exceptional cases should the department engage and appoint part time employees. Such appointments should be made only after prior approval of the Finance Department. The GR was made applicable to the State Government, Panchayats, Boards and Page 9 of 71 Downloaded on : Wed Jul 20 21:07:46 IST 2022 C/SCA/6852/2020 CAV JUDGMENT DATED: 19/07/2022 Corporations and those institutions getting grant from the Government.
5.3. This apparently was with the purpose of reducing financial burden on the State by avoiding regularizing such part time employees in service. After this Government Resolution, the part time employees who were so engaged started facing the action of their services being terminated without following the procedure of law which resulted in violation of their rights particularly, Articles 14, 16 and 21 of the Constitution of India.
5.4. Thereafter, the State came forward with a Resolution dated 15.7.2006. By the aforesaid Resolution, referring to the GR dated 10.2.2006 the Finance Department observed that the directions to outsource services of cleaning and water serving etc would take some time and so to avoid hardships in the departments, for a period of six months, the withdrawal of powers of the administrative heads was suspended. In the interregnum, it was provided that such administrative heads could appoint Page 10 of 71 Downloaded on : Wed Jul 20 21:07:46 IST 2022 C/SCA/6852/2020 CAV JUDGMENT DATED: 19/07/2022 part time employees. The Government Resolution provided that such appointments would include appointments as Watchman, Peon cum Driver, Clerk, Computer Operator, Xerox Operator and such other designated posts.
Terminations, if any, should be done strictly in accordance with the provisions of Industrial Disputes Act, 1947. The circular provided that those employees who are continued in service as a result of orders of the High Court, in such cases, no orders of termination be passed.
6. The State again came out with a circular of the Finance Department dated 12.7.2007. This circular further extended the suspension of the outsourcing requirement and continued the practice of part time engagement upto 30.9.2007.
7. By Circulars dated 15.3.2008, 23.9.2008, 7.3.2009, 14.9.2009, 11.3.2010, 18.12.2010, 6.7.2011, 26.9.2011 and 25.4.2012 of the Finance Department, time limits were extended periodically upto 31.5.2012. The last circular of the State dated 25.4.2012 through the Finance Department provided that the policy of outsourcing which was Page 11 of 71 Downloaded on : Wed Jul 20 21:07:46 IST 2022 C/SCA/6852/2020 CAV JUDGMENT DATED: 19/07/2022 formulated by the circular of 10.2.2006 had resulted in certain hardships to the departments and, therefore, the practice of engaging part time employees rather than outsourcing had been extended by various circulars from time to time. The practice of outsourcing such engagements which was formulated by the circular dated 10.2.2006 should be finally implemented and the part time employee should be replaced by outsourcing such engagements and the exercise should be completed by 31.5.2012.
8. By virtue of this GR of 25.4.2012, the government authorities started terminating the services of part time employees who were paid meager amounts. Therefore, certain part time employees apprehending that their services were to be terminated as a result of a final dead-
line of 31.5.2012 approached this Court by filing several petitions. Considering this, a coordinate bench of this Court, in the petitions before it namely; SCA No.7462 of 2012 and allied matters, on 31.5.2012, based on the arguments made by the counsels for the petitioner and the State decided the question of interim protection or otherwise. The Court Page 12 of 71 Downloaded on : Wed Jul 20 21:07:46 IST 2022 C/SCA/6852/2020 CAV JUDGMENT DATED: 19/07/2022 passed the following order.
"Rule. Notice as to interim relief returnable on 11.6.2012.
2.0 In this group of petitions, petitioners, most of whom are serving from years, ranging between 4 years to 30 years and most of whom are being paid an amount around Rs.1350 per month, as contingent expense of the Government, are sought to be terminated by their respective offices, under the written instructions of the Government of Gujarat, Finance Department, with effect from today i.e. 31st May, 2012 after office hours. In these emergent circumstances, present petitions are heard and considered by this Court, at this stage for the limited purpose as to, till this Court considers the question of interim relief, whether the petitioners are entitled to any ad- interim protection from this Court or not.
3.0 Learned advocates for the petitioners Mr. Shalin Mehta, Mr. Mehul S. Shah and Mr. P.H.Pathak have addressed the Court at length, on merits, as well as for grant of interim relief. Mr. Prakash Jani, learned Government Pleader has appeared on behalf of state authorities and contested the petition, at this stage for the limited Page 13 of 71 Downloaded on : Wed Jul 20 21:07:46 IST 2022 C/SCA/6852/2020 CAV JUDGMENT DATED: 19/07/2022 purpose of opposing grant of any interim/ ad- interim protection in favour of the petitioners, and while doing so, he has also addressed the court on merits, as to how and why the petitioners are not entitled to any relief, much less any interim relief.
4.0 Though both the sides have addressed the Court at length, only those facts and arguments, which are relevant for the purpose of deciding the question of grant of interim protection or otherwise, till the question of interim relief is decided by this Court, are briefly recorded in this order.
5.0 Petitioners have challenged the legality and validity of the Government Resolution dated 25th April 2012, issued by Finance Department of the State of Gujarat, on various grounds. The impugned Government Resolution dated 25th April 2012 has two fold effects. One, that the work which is permanent / perennial in nature is sought to be outsourced at all government offices in the State, including at Community Health Centres where the petitioners of SCA 7462 of 2012 are working, and second effect is that, all employees who are paid as contingent expense, from the consolidated fund of the State, may be since years, may be for more than 20 years, will go home this evening i.e. from the evening of 31st Page 14 of 71 Downloaded on : Wed Jul 20 21:07:46 IST 2022 C/SCA/6852/2020 CAV JUDGMENT DATED: 19/07/2022 May 2012.
6.0 Other issues are also involved in the matter such as, whether Government Resolution dated 25th April 2012 can travel beyond what was envisaged by Government Resolution dated 10th February 2006. Whether employees who are appointed prior to 10th February 2006 shall be governed by Government Resolution dated 10th February 2006 at all, and, therefore, whether Government Resolution dated 25th April 2012 or any part thereof, can have any applicability to those employees, who are petitioners before this Court.
7.0 Learned Counsel for the petitioners have submitted that, whether Government can legally be permitted to outsource these services is also a question raised in this petition, but so far the second part of the Government Resolution dated 25th April 2012, whereby it is mandated by Government that all contingent paid employees shall be terminated with effect from 31st May 2012, can not be permitted to stand even for a day. It is because of this second part of the impugned Government Resolution, urgent consideration was required by this Court today.
8.0 Reliance is placed on behalf of the Page 15 of 71 Downloaded on : Wed Jul 20 21:07:46 IST 2022 C/SCA/6852/2020 CAV JUDGMENT DATED: 19/07/2022 petitioners on the judgment of the Hon'ble Supreme Court of India, in the case of Air India Statutory Corporation Limited and Others vs. United Labour Union and others in [(1997) 9 SCC 377, at page 445 Para:70], which reads as under:
"70. Before parting with this judgment, it has to be appreciated that engagement of contract labour has been found to be unjustified by a catena of decisions of this Court. When the work is of perennial nature and instead of engaging regular workmen, the system of contractor labour is resorted to, it would only be for fulfilling the basic purpose of securing monetary advantage to the principal employer by reducing expenditure on work force. It would obviously be an unfair labour practice and is also an economically short-sighted and unsound policy, both from the point of view of the undertaking concerned and the country as a whole. Such a system was tried to be put to an end by the legislature by enacting the Act but when it found there are certain activities of establishment where the work is not of perennial nature then the contract labour may not be abolished but still it would be required to be regulated so Page 16 of 71 Downloaded on : Wed Jul 20 21:07:46 IST 2022 C/SCA/6852/2020 CAV JUDGMENT DATED: 19/07/2022 that the lot of the workmen is not rendered miserable. The real scope and ambit of the Act is to abolish contract labour system as far as possible from every establishment. Consequently, on abolition which is the ultimate goal, the erstwhile regulated contract labour cannot be thrown out of establishment as tried to be submitted on behalf of the management taking resort to the express language of Section 10 of the Act. Such a conclusion reached by the two- member Bench in Dena Nath case, flies in the face of the very scope and ambit of the Act and frustrates the very scheme of abolition of contract labour envisaged by the Act. Such a conclusion, with respect, cannot be countenanced, as it results in a situation where relatives of the patient are told by the operating surgeon that operation is successful but patient has died."
9.0 The impugned action of the Government, prima-facie does not answer the above test and therefore I am prima facie, of the view that the impugned action of the Government, is not likely to stand the test of legality, at least that of reasonableness.
10.0 After hearing Learned Counsels for both the Page 17 of 71 Downloaded on : Wed Jul 20 21:07:46 IST 2022 C/SCA/6852/2020 CAV JUDGMENT DATED: 19/07/2022 sides, this Court finds that the petitioners have strong prima facie case in their favour. Therefore it will have to be ascertained, whether the balance of convenience is in favour of the petitioners or not, and for that purpose, the following factors are taken into consideration.
11.0 It is not that the work is not there and therefore the petitioners are to be terminated. The work is there, and the said work is perennial in nature. That work is not such that, if not carried out on a particular day, can be kept pending and can be done the next day, since many of the petitioners are watchmen, sweepers etc. It is not even the case of the Government that because of no work or less work, the termination is required.
12.0 The intention of the Government as reflected in the impugned Government Resolution is that the work which is done by present petitioners and similarly situated persons, shall be got done through contractor by outsourcing. No details regarding this outsourcing is coming on record, as to whether these persons will be continued with the same work, with an interpolation of the contractor, and if yes, whether the petitioners who are even otherwise paid Rs. 1350/- per month will be made to work even for lesser amount, or whether the contractor will have full free hand to Page 18 of 71 Downloaded on : Wed Jul 20 21:07:46 IST 2022 C/SCA/6852/2020 CAV JUDGMENT DATED: 19/07/2022 employ altogether new persons. If that is to happen, in effect, it would be replacing, if not regular, atleast present adhoc employees with new adhoc employees, the situation which is not only deprecated but is held to be impermissible in law.
13.0 At this juncture, reference may be made to the order passed by this Court in Letters Patent Appeal No: 107 of 2009, on Civil Application No:
1014 of 2009 dated 16.12.2009. By the said order, Division Bench of this Court, while granting mandatory reinstatement order in favour of an employee, who was terminated because of outsourcing, observed that it is a settled law that employer can not replace an ad-hoc employee by another ad-hoc employee, as laid down by the Supreme Court in case of State of Karnataka vs. Umadevi [(2006) 4 SCC 1.] Further, under almost identical circumstances, this Court on 16.11.2011 passed an order on Special Civil Application No. 17050 of 2011 restraining respondent authorities from terminating the service of a person, on the ground that arrangement of outsourcing the work violates Articles 14, 16 and 21 of the Constitution of India. This court while granting protection, observed that the Government has evolved a policy which indirectly compels the petitioner to accept the work at cheaper rate.Page 19 of 71 Downloaded on : Wed Jul 20 21:07:46 IST 2022
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14.0 Considering the totality of the facts and circumstances, some of which are briefly recorded hereinabove, this court finds that the Government would not suffer any loss, much less any irreparable loss, if status quo as of today noon, is ordered to be maintained, on the other hand, if the same is not granted, the petitioners, who are even otherwise meagerly paid, will loose their livelihood, hundreds of families would starve and only few contractors who may be even otherwise rich, will become richer. Considering these aspects, as well as the orders of the Division Bench and learned Single Judge of this Court as referred above, it is ordered that the impugned Government Resolution dated 25th April 2012, issued by Finance Department of the Government of Gujarat, shall not be given effect to, until further orders by this Court and status quo as prevailing today noon, qua all petitioners, shall be maintained until further orders by this court. Direct Service permitted."
9. Perusal of the order indicates that the Court found that the petitioners had a strong prima facie case in their favour.
Observations of the Court would indicate that the services of the petitioners were not being terminated on the ground Page 20 of 71 Downloaded on : Wed Jul 20 21:07:46 IST 2022 C/SCA/6852/2020 CAV JUDGMENT DATED: 19/07/2022 that there was no work. In fact the Court found that there was work which was perennial in nature. The Court further observed that the practice of outsourcing and the consequential termination would amount to replacing ad-hoc employees with new ad-hoc employees. The practice was deprecated. Reference was made to the decision of the Hon'ble Supreme Court in the case of State of Karnataka v. Umadevi reported in 2006(4) SCC 1 and the Court ordered that the GR dated 25.4.2012 issued by the Finance Department of the Gujarat Government shall not be given effect to until further orders and the status-quo as prevailing on 31.5.2012 shall be maintained. At the cost of repetition, para 14 of the order dated 31.5.2012 is reproduced as under:
"14.0 Considering the totality of the facts and circumstances, some of which are briefly recorded hereinabove, this court finds that the Government would not suffer any loss, much less any irreparable loss, if status quo as of today noon, is ordered to be maintained, on the other hand, if the same is not granted, the petitioners, who are even otherwise meagerly paid, will loose their livelihood, hundreds of families would starve and Page 21 of 71 Downloaded on : Wed Jul 20 21:07:46 IST 2022 C/SCA/6852/2020 CAV JUDGMENT DATED: 19/07/2022 only few contractors who may be even otherwise rich, will become richer. Considering these aspects, as well as the orders of the Division Bench and learned Single Judge of this Court as referred above, it is ordered that the impugned Government Resolution dated 25th April 2012, issued by Finance Department of the Government of Gujarat, shall not be given effect to, until further orders by this Court and status quo as prevailing today noon, qua all petitioners, shall be maintained until further orders by this court. Direct Service permitted."
10. Subsequently, the petitions came up for final hearing. These petitions were filed by petitioners working in various departments of the Government, employed on fixed pay / daily wage basis and who are or were to be replaced by contract workers through outsourcing agency. Thereafter by a final CAV Judgment dated 21.12.2018, for the issues framed in the Judgment as referred to herein below in Para 9 and 25 to 32 and after considering various decisions of the Hon'ble Supreme Court, this Court held as under:
"9. In view of the aforementioned grievance raised in these writ petitions, the issue emerging Page 22 of 71 Downloaded on : Wed Jul 20 21:07:46 IST 2022 C/SCA/6852/2020 CAV JUDGMENT DATED: 19/07/2022 for consideration by this Court can be summarized as under:
i) Once temporary appointments continued for long, can services of these employees be terminated and be replaced by other temporary employees by way of outsourcing the job/contract labour to a private agency/contractor in the face of the goal of socio-economic justice as promised in the Preamble of the Constitution read with the Directive Principles of Policy and the Fundamental Rights guaranteed under Articles 14 and 16 of the Constitution of India.
ii) Whether the petitioners can be regularized in view of the guidelines laid down in the case of State of Karnataka vs. Uma Devi ?
iii) Whether the petitioners are entitled to minimum-wages or principle of 'equal pay for equal work' is applicable in their case ?"
25. It could be seen that this Court vide order dated 16.12.2009, while granting mandatory reinstatement, by way of interim relief, in favour of the petitioners, who were terminated because Page 23 of 71 Downloaded on : Wed Jul 20 21:07:46 IST 2022 C/SCA/6852/2020 CAV JUDGMENT DATED: 19/07/2022 of outsourcing, observed that it is a settled law that employer cannot replace an ad hoc employee by another ad hoc employee, as laid down by the Hon'ble Supreme Court in the case of Uma Devi (supra). By Oral Judgment dated 7.7.2017, the Division Bench of this Court disposed of the Letters Patent Appeal No. 107 of 2007 in Special Civil Application No. 5285 of 2008 with following directions:
"8. Looking to the prayer in the present appeal and in view of the fact that the appellants/petitioners have continued in service for sufficiently long period of time after passing of the interim order in the year 2009, interest of justice, it would be served if directions to be issued to the respondent authorities to continue the appellants in service.
9. In view of the fact that the petitioners- appellants have been protected, the respondents are directed to see that if the work in question for which they have employed is continued, such work which the appellants carry out shall not be outsourced nor the appellants will be replaced by any ad hoc employees till the appellants reach the age of superannuation prescribed for Class Page 24 of 71 Downloaded on : Wed Jul 20 21:07:46 IST 2022 C/SCA/6852/2020 CAV JUDGMENT DATED: 19/07/2022 IV employees. The appeal is disposed of accordingly."
26. Hon'ble Supreme Court in the case of Uma Devi (supra) and in a catena of decisions rendered prior to Uma Devi (supra) has consistently held that ad hoc employees cannot be replaced by another set of ad hoc employees. The scheme of the State Government while outsourcing the job of the petitioners through contractors is nothing but replacement of the petitioners by another set of ad hoc employees which cannot be permitted.
27. It could be seen that except few petitioners in couple of petitions, in the group of petitions, majority of the petitioners were in service when they approached this Court by way of filing writ petitions challenging the legality and validity of the Government decision to outsource the job in which they were engaged. The petitioners were continued in service with less than minimum wages and subjected to exploitation for all these years. Further, in defiance of the oral judgment dated 11.12.2014 the authorities are not paying the revised rate of minimum wages to the petitioners. They are still being paid wages at Rs. 220/- per day with special allowance of working for more than 4 hours a day, and at the rate of Rs.110 per day plus special allowance if working for less Page 25 of 71 Downloaded on : Wed Jul 20 21:07:46 IST 2022 C/SCA/6852/2020 CAV JUDGMENT DATED: 19/07/2022 than 4 hours a day.
28. In regard to the application of the principle of "equal pay for equal work" to temporary employees, including daily-wage employees, ad hoc employees, employees appointed on casual basis, contractual employees and the like, the Hon'ble Supreme Court in the case of State of Punjab vs. Jagjit Singh reported in (2017)1 SCC 148, after traversing the legal parameters with reference to the application of the principle of "equal pay for equal work", held that there can be no doubt that the principle of equal pay for equal work would be applicable to all the temporary employees, so as to vest in them the right to claim wages on a par with the minimum of the pay scale of regularly engaged government employees holding the same post. In para -54, 55, 57 and 58, the Hon'ble Supreme Court has held as under:
"54. There is no room for any doubt, that the principle of 'equal pay for equal work' has emerged from an interpretation of different provisions of the Constitution. The principle has been expounded through a large number of judgments rendered by this Court, and constitutes law declared by this Court. The same is binding on all the courts Page 26 of 71 Downloaded on : Wed Jul 20 21:07:46 IST 2022 C/SCA/6852/2020 CAV JUDGMENT DATED: 19/07/2022 in India, under Article 141 of the Constitution of India. The parameters of the principle, have been summarized by us in paragraph 42 hereinabove. The principle of 'equal pay for equal work' has also been extended to temporary employees (differently described as workcharge, daily-wage, casual, ad hoc, contractual, and the like). The legal position, relating to temporary employees, has been summarized by us, in paragraph 44 hereinabove. The above legal position which has been repeatedly declared, is being reiterated by us, yet again.
55. In our considered view, it is fallacious to determine artificial parameters to deny fruits of labour. An employee engaged for the same work, cannot be paid less than another,who performs the same duties and responsibilities. Certainly not, in a welfare State. Such an action besides being demeaning, strikes at the very foundation of human dignity. Any one, who is compelled to work at a lesser wage, does not do so voluntarily. He does so, to provide food and shelter to his family, at the cost of his self respect and dignity, at the cost of his self worth, and at the cost of his integrity. For he knows, that his dependents would suffer Page 27 of 71 Downloaded on : Wed Jul 20 21:07:46 IST 2022 C/SCA/6852/2020 CAV JUDGMENT DATED: 19/07/2022 immensely, if he does not accept the lesser wage. Any act, of paying less wages, as compared to others similarly situate, constitutes an act of exploitative enslavement, emerging out of a domineering position. Undoubtedly, the action is oppressive, suppressive and coercive, as it compels involuntary subjugation.
57. Having traversed the legal parameters with reference to the application of the principle of 'equal pay for equal work', in relation to temporary employees (daily-wage employees, ad-hoc appointees, employees appointed on casual basis, contractual employees and the like), the sole factor that requires our determination is, whether the concerned employees (before this Court), were rendering similar duties and responsibilities, as were being discharged by regular employees, holding the same/corresponding posts. This exercise would require the application of the parameters of the principle of 'equal pay for equal work' summarized by us in paragraph 42 above. However, insofar as the instant aspect of the matter is concerned, it is not difficult for us to record the factual position.
Page 28 of 71 Downloaded on : Wed Jul 20 21:07:46 IST 2022 C/SCA/6852/2020 CAV JUDGMENT DATED: 19/07/2022 We say so, because it was fairly acknowledged by the learned counsel
representing the State of Punjab, that all the temporary employees in the present bunch of appeals, were appointed against posts which were also available in the regular cadre/ establishment. It was also accepted, that during the course of their employment, the concerned temporary employees were being randomly deputed to discharge duties and responsibilities, which at some point in time, were assigned to regular employees. Likewise, regular employees holding substantive posts, were also posted to discharge the same work, which was assigned to temporary employees, from time to time. There is, therefore, no room for any doubt, that the duties and responsibilities discharged by the temporary employees in the present set of appeals, were the same as were being discharged by regular employees. It is not the case of the appellants, that the respondent-employees did not possess the qualifications prescribed for appointment on regular basis.
Furthermore, it is not the case of the State, that any of the temporary employees would not be entitled to pay parity, on any of the Page 29 of 71 Downloaded on : Wed Jul 20 21:07:46 IST 2022 C/SCA/6852/2020 CAV JUDGMENT DATED: 19/07/2022 principles summarized by us in paragraph 42 hereinabove. There can be no doubt, that the principle of 'equal pay for equal work' would be applicable to all the concerned temporary employees, so as to vest in them the right to claim wages, at par with the minimum of the pay-scale of regularly engaged Government employees, holding the same post.
58. In view of the position expressed by us in the foregoing paragraph, we have no hesitation in holding, that all the concerned temporary employees, in the present bunch of cases, would be entitled to draw wages at the minimum of the pay-scale (-at the lowest grade, in the regular pay-scale), extended to regular employees, holding the same post."
29. While disputing the proposition of equal pay for equal work, learned Government Pleader has laid emphasis on the point that the relief granted in the aforementioned decision in the case of State of Punjab vs. Jagjit Singh (supra), is not prayed for in the present petitions preferred by the petitioners.
30. It could be seen that the petitioners have approached this Court in the year 2012. The law Page 30 of 71 Downloaded on : Wed Jul 20 21:07:46 IST 2022 C/SCA/6852/2020 CAV JUDGMENT DATED: 19/07/2022 for the casual labourers, ad hoc employees, part- time employees and outsourcing class IV post has developed with the passage of time. Finally, the Apex Court has put to rest the grievance of the aforementioned class of employees. The Apex Court seems to have taken into consideration the law laid down by various courts, and finally reached to a conclusion that all the concerned temporary employees would be entitled to draw wages at the minimum of the pay-scale (at the lowest grade, in the regular pay-scale), extended to regular employees, holding the same post. As this judgment has been delivered in the year 2016, while the petitioners have approached this Court in the year 2012, it was not in their knowledge to have pleaded for the law laid down in the aforementioned judgment. This Court is of the considered opinion that the law laid down by the Apex Court in the aforementioned judgment is fully applicable to the facts of the present case as most of the petitioners have come into service through regular selection mode and have put in more than 15/20 years of service. Even otherwise, the arguments raised by the learned Government Pleader cannot be stretched further as it is always the discretion of the Court to mold the relief depending upon the facts and circumstances of the case. The reliefs claimed in clause (F) seeking Page 31 of 71 Downloaded on : Wed Jul 20 21:07:46 IST 2022 C/SCA/6852/2020 CAV JUDGMENT DATED: 19/07/2022 regularization is nothing but parity with regularly selected IV employees. As this Court is convinced with the judgment given by the Apex Court in the case of State of Punjab vs. Jagjit Singh (supra), the relief prayed for by the petitioners can be modified accordingly.
31. Otherwise also, mode of recruitment remains meaningless once the petitioners have put in more than 15/20 years of service. What could be qualification and mode of requirement for Class IV post is a debatable point. All the petitioners were performing the job of class IV employees and discharging and performing the same functions which are being performed by regularly recruited class IV employees. Still further, all the petitioners seems to be fulfilling the requisite qualification. Once their method of recruitment is same and are performing the same duties which permanent employees on the same post are performing, the petitioners cannot be discriminated at the time of payment of wages.
32. As mentioned above, some of the petitioners are out of service after coming into force the Resolution of the State Government dated 31.5.2012. These petitioners were working along with their other counter part prior to 31.5.2012. Since number of Class IV employees of the State Page 32 of 71 Downloaded on : Wed Jul 20 21:07:46 IST 2022 C/SCA/6852/2020 CAV JUDGMENT DATED: 19/07/2022 got affected because of the Resolution dated 31.5.2012, all the affected persons could not obtain the stay from the courts against their termination. There is no denning fact that all these petitioners are affected by the Resolutions of the State Government dated 25.4.2012 and 31.5.2012. They are to be treated at par with the employees who were lucky to get the stay against their termination from the courts. Accordingly, the relief granted by this Court in this judgment shall be extended to all the employees who are affected by the Resolutions of the State Government whether they are continued as outsource employees or are terminated in view of these resolutions. In view of foregoing discussions, all these petitions are allowed. The petitioners are held entitled to the wages at the minimum of the pay scale (at the lowest grade, in the regular pay scale) extended to the regular employees holding the same post. However, they shall not be entitled to the arrears of salary for the past service. Petitioners shall get the aforementioned pay-scale from 1st of January, 2019. Those out of service shall be immediately taken back in service and be posted at the same post from where they were terminated. They shall also get the salary from the same date unless they have reached the age of superannuation. Rule made absolute to the Page 33 of 71 Downloaded on : Wed Jul 20 21:07:46 IST 2022 C/SCA/6852/2020 CAV JUDGMENT DATED: 19/07/2022 aforesaid extent in all the petitions.
32. Learned Government Pleader has requested to stay the operation and implementation of this judgment for three weeks. Learned counsel for the petitioners has strongly opposed this request. However, in the facts and circumstances of the case, the operation and implementation of this judgment is stayed till 7.1.2019.
33. In view of the disposal of the main petitions, all these civil applications do not survive and same are disposed of accordingly."
11. The decision of the Coordinate Bench was carried in appeal by the State and the Letters Patent Appeal No.1155 of 2019 and allied matters filed by the State were dismissed by an oral order dated 9.5.2019. The stand of the State in the Division Bench was that under no circumstances part time employees could have been equated with regular employees and the Division Bench in Paragraph No.9 onwards held as under:
"9. Having regard to the facts and circumstances and further submissions made by learned AGP and learned Senior counsel for the respondents-Page 34 of 71 Downloaded on : Wed Jul 20 21:07:46 IST 2022
C/SCA/6852/2020 CAV JUDGMENT DATED: 19/07/2022 original petitioners vis-a-vis record of this appeal which contains original record of writ petitions with pleadings and the impugned order passed by learned Single Judge in the context of contention raised by learned AGP about absence of material before learned Single Judge about individual service record of the petitioners for a ready reference we may produce relevant extracts of service history of each of the petitioners in a tabular form which would reveal nature of duties and number of years, for which, each of the petitioners rendered the service and received the salary through out such period.
"10. The above tabular of service details of service of each of the workmen remained undisputed by respondents, the appellant-State herein and the record further reveal that each of the employees had undergone valid selection procedure undertaken by selection committee upon holding interview and the name of individual was called from employment exchange for the post of Class-IV in the fixed pay-scale of Rs.1350/- that service rendered by the employees are not less than 10 to 11 years and extending upto 15 to 16 years continuously and incorporation of condition No.2 in the appointment letter issued to each of the petitioners of dis-entailing employee of not claiming any future benefits in the form of Page 35 of 71 Downloaded on : Wed Jul 20 21:07:46 IST 2022 C/SCA/6852/2020 CAV JUDGMENT DATED: 19/07/2022 permanency or regularization or parity in pay- scale with regular employees is nothing but a contract between lion and land and as addressed by Division Bench of this Court in the Writ Petition (PIL) 244 of 2014 in the case of Gujarat Rajya Anshkalin Karmachari Mandal vs. State of Gujarat & Ors. that their voice of part timers and casual labourers is too feeble and their future is also too un-certain for want of any protection of Article 311 of Constitution of India and long service tenure as semiskilled or un-skilled workers or employees either as sweepers/cleaners/water servers/gardener/watchman etc. and appointment is mostly contingency based and work charged with little permanency attached result into social exploitation and when such oral order dated 21.8.2014 was rendered statistics reveal that more than 10,000 to 15000 such workers were deprived of even minimum of pay-scale after long years of more than 15 years of service. In para 8 of the above decision the State of Gujarat especially Finance Department was directed that all part-time workers were to be considered and paid at the same rate of remuneration prescribed per day for the employment of sweeping and cleaning work under the said notification dated 5.8.2013 and wages are to be revised accordingly and further order was passed that the State Page 36 of 71 Downloaded on : Wed Jul 20 21:07:46 IST 2022 C/SCA/6852/2020 CAV JUDGMENT DATED: 19/07/2022 Government shall present affidavit suggesting periodic revisions that may be adopted for remuneration of such persons from time to time after 1998.
11. In the case of State of Punjab vs. Jagjit Singh, the Apex Court threadbare considered all ad-hoc and temporary workers and in similar such circumstances addressed to the issue about right of such employees who claimed wages on par with minimum of the pay scale of regularly engaged government employees holding the same post to which even learned Single Judge also referred to and we would like to refer to paragraphs 54, 55, 56, 57 and 58, which reads as under:
"54. There is no room for any doubt, that the principle of 'equal pay for equal work' has emerged from an interpretation of different provisions of the Constitution. The principle has been expounded through a large number of judgments rendered by this Court, and constitutes law declared by this Court. The same is binding on all the courts in India, under Article 141 of the Constitution of India. The parameters of the principle, have been summarized by us in paragraph 42 hereinabove. The principle of Page 37 of 71 Downloaded on : Wed Jul 20 21:07:46 IST 2022 C/SCA/6852/2020 CAV JUDGMENT DATED: 19/07/2022 'equal pay for equal work' has also been extended to temporary employees (differently described as work charge, daily- wage, casual, ad hoc, contractual, and the like). The legal position, relating to temporary employees, has been summarized by us, in paragraph 44 hereinabove. The above legal position which has been repeatedly declared, is being reiterated by us, yet again.
55. In our considered view, it is fallacious to determine artificial parameters to deny fruits of labour. An employee engaged for the same work, cannot be paid less than another,who performs the same duties and responsibilities. Certainly not, in a welfare State. Such an action besides being demeaning, strikes at the very foundation of human dignity. Any one, who is compelled to work at a lesser wage, does not do so voluntarily. He does so, to provide food and shelter to his family, at the cost of his self respect and dignity, at the cost of his self worth, and at the cost of his integrity. For he knows, that his dependents would suffer immensely, if he does not accept the lesser wage. Any act, of paying less wages, as compared to others similarly situate, Page 38 of 71 Downloaded on : Wed Jul 20 21:07:46 IST 2022 C/SCA/6852/2020 CAV JUDGMENT DATED: 19/07/2022 constitutes an act of exploitative enslavement, emerging out of a domineering position. Undoubtedly, the action is oppressive, suppressive and coercive, as it compels involuntary subjugation.
57. Having traversed the legal parameters with reference to the application of the principle of 'equal pay for equal work', in relation to temporary employees (daily- wage employees, ad-hoc appointees, employees appointed on casual basis, contractual employees and the like), the sole factor that requires our determination is, whether the concerned employees (before this Court), were rendering similar duties and responsibilities, as were being discharged by regular employees, holding the same/corresponding posts. This exercise would require the application of the parameters of the principle of 'equal pay for equal work' summarized by us in paragraph 42 above. However, insofar as the instant aspect of the matter is concerned, it is not difficult for us to record the factual position. We say so, because it was fairly acknowledged by the learned counsel representing the State of Punjab, Page 39 of 71 Downloaded on : Wed Jul 20 21:07:46 IST 2022 C/SCA/6852/2020 CAV JUDGMENT DATED: 19/07/2022 that all the temporary employees in the present bunch of appeals, were appointed against posts which were also available in the regular cadre/ establishment. It was also accepted, that during the course of their employment, the concerned temporary employees were being randomly deputed to discharge duties and responsibilities, which at some point in time, were assigned to regular employees. Likewise, regular employees holding substantive posts, were also posted to discharge the same work, which was assigned to temporary employees, from time to time. There is, therefore, no room for any doubt, that the duties and responsibilities discharged by the temporary employees in the present set of appeals, were the same as were being discharged by regular employees. It is not the case of the appellants, that the respondent-employees did not possess the qualifications prescribed for appointment on regular basis. Furthermore, it is not the case of the State, that any of the temporary employees would not be entitled to pay parity, on any of the principles summarized by us in paragraph 42 hereinabove. There can be no doubt, that the principle of 'equal Page 40 of 71 Downloaded on : Wed Jul 20 21:07:46 IST 2022 C/SCA/6852/2020 CAV JUDGMENT DATED: 19/07/2022 pay for equal work' would be applicable to all the concerned temporary employees, so as to vest in them the right to claim wages, at par with the minimum of the pay-scale of regularly engaged Government employees, holding the same post.
58. In view of the position expressed by us in the foregoing paragraph, we have no hesitation in holding, that all the concerned temporary employees, in the present bunch of cases, would be entitled to draw wages at the minimum of the pay-scale (at the lowest grade, in the regular pay-scale), extended to regular employees, holding the same post."
12. The law laid down by the Apex Court as above is squarely applicable in the facts of this case and we are not inclined to accept the arguments canvassed by learned AGP that the decision laid down in the case of State of Punjab vs. Jagjit Singh is not applicable inasmuch as, employees in all these appeals not only rendered valuable service in community health centre at remote and tribal areas of State of Gujarat for more than six months but continued to receive instructions from superior to perform such duties beyond prescribed hours for about 11 to 16 years as the Page 41 of 71 Downloaded on : Wed Jul 20 21:07:46 IST 2022 C/SCA/6852/2020 CAV JUDGMENT DATED: 19/07/2022 case may be, therefore, in our view ratio and law laid down in the case of State of Punjab vs. Jagjit Singh will apply in the facts of this case with equal force.
13. In addition to above, learned Single Judge has considered other decisions of the Apex Court including that of Uma Devi (Supra) which also covered an exception for those who are working with authority or establishment of State within meaning of Article 12 of the Constitution of India for more than 10 years by holding that four conditions laid down in the case of Uma Devi (Supra) are fulfilled in the facts of the case namely, initial appointment of the employee was legal meaning thereby in the manner contingency and completely with scheme as contained under Article 14 and 16 of the Constitution of India and that employee has put in 10 years of service or more than and continued in service when taking shelter of any courts' order and that there existed sanctioned post. Learned Judge accordingly noticed that the State Government had passed Government Resolution dated 1.5.2007 as amended by resolution dated 16.5.2008 providing for one time regularization of all part-time / ad hoc / temporary employees who had put in 10 years or more services and the fact about and we are of the view that since establishment was in Page 42 of 71 Downloaded on : Wed Jul 20 21:07:46 IST 2022 C/SCA/6852/2020 CAV JUDGMENT DATED: 19/07/2022 existence for years together formality of declaring the same as sanctioned would not come in the way of petitioners receiving at least minimum of pay-scale in lowest grade-pay when their claim towards permanency and regularization is rejected by learned Single Judge. Even benefits of arrears of salary is also not granted and held to be entitled w.e.f to receive their salary namely, minimum of salary in the lowest grade-pay with that all regular employees on the same post w.e.f. 1.1.2019 and thus, rights of the employees to be permanent employees by seeking regularization is not accepted by learned Single Judge. Thus, reasoning of learned Single Judge and limited acceptance of prayer, in a writ petition under Article 226 of the Constitution of India cannot be termed as contrary to law.
14. That submission made by learned AGP based on decision rendered in the case of State of Tamil Nadu (supra) had no substance as such inasmuch as, in the above case the Apex Court in para 16 of the decision referred to the case of State of Rajasthan v. Daya Lal (supra) wherein principle of equal pay for equal work qua Government employees vis-a-vis part-time and casual employees of Government run institutions was the background in which such law was laid down and it is held that part-time employees is Page 43 of 71 Downloaded on : Wed Jul 20 21:07:46 IST 2022 C/SCA/6852/2020 CAV JUDGMENT DATED: 19/07/2022 not entitled to seek regularization as they are not working against sanctioned post or there cannot be a direction for absorption, regularization or permanent continuance of part-time temporary employees. No such direction is given in these cases by learned Single Judge and the only direction is about payment of minimum wages in the lowest pay-grade available to the regular employees on the same post. If the law laid down in the case of State of Punjab vs. Jagjit Singh (supra) is considered to which , we have already made a reference, it is held that ad hoc and temporary employees have right to receive minimum of wages in the lowest pay-grade and the facts and circumstances of these appeals which emerge on record that duties discharged by the employees-original writ petitioners is akin to temporary and ad hoc employees and nomenclature is about part-time employees but discharge of their duties with utmost sincerity and no complaint from the employer for years together deserve consideration for limited relief of grant of minimum of pay scale without benefits of permanency or regularization. We are in agreement with law laid down by this Court while dealing with Letters Patent Appeal No.107 of 2009 and Writ Petition (PIL) No.244 of 2014 in similar such facts and circumstances and Page 44 of 71 Downloaded on : Wed Jul 20 21:07:46 IST 2022 C/SCA/6852/2020 CAV JUDGMENT DATED: 19/07/2022 Hindustan Lever (supra).
15. Having regard to the totality of facts and circumstances, we are of the considered view that no interference is called for. Appeals are merit- less and deserve to be dismissed. Accordingly, appeals stand dismissed. No costs.
16. In view of the above, Civil Applications (For Stay) also stands dismissed."
11.1 It is based on this judgment confirmed by the order of the Division Bench that the policy circular of 16.7.2019 was formulated.
12. Mr. Shalin Mehta, learned Senior Counsel assisted by Ms. Shikha Panchal, learned advocate for the petitioners and other learned advocates appearing for their respective petitioners would make the following submissions:
Category 1:
Assailing the orders by which the case of the petitioners who were working for less than four hours was rejected, Page 45 of 71 Downloaded on : Wed Jul 20 21:07:46 IST 2022 C/SCA/6852/2020 CAV JUDGMENT DATED: 19/07/2022 reference was made to the circular dated 16.7.2019 to submit that the circular covered both categories, those working for four hours and those working for less than four hours. He would read clause 1 of the Circular. Mr.Mehta would submit that the argument that a person who was working for less than four hours would not get the benefit of the circular is absurd.
Category 2:
For category 2 where the cases were rejected on the ground that they have challenged their termination belatedly Mr. Shalin Mehta, learned Senior Counsel would draw the attention of the Court to para 32 of the CAV Judgment dated 21.12.2018. He would submit that in view of the paragraph and the observations therein, all employees, who were terminated on account of applicability of Resolutions dated 10.2.2006, 1.4.2010 and 25.4.2012 were not required to approach the High Court.
Such employees who had not approached the High Court were entitled to reinstatement and minimum of pay scale.
Page 46 of 71 Downloaded on : Wed Jul 20 21:07:46 IST 2022C/SCA/6852/2020 CAV JUDGMENT DATED: 19/07/2022 Category 3:
For category No.3 in context of persons appointed on fixed pay basis for 29 days, Mr. Mehta would submit that it is well settled by the decisions of the Hon'ble Supreme Court that appointing persons on 29 days basis with one day artificial break is bad. In support of his submissions, Mr. Mehta would rely on a decision of the Hon'ble Supreme Court in the case of Mohd. Abdul Kadir and another v.
Director General of Police, Assam reported in 2009(6) SCC, 611 and submit that such persons who were working for number of years on a fixed pay basis cannot be denied the benefit of the minimum of the pay scale.
Category 4:
Category No.4 is with regard to the petitioners whose cases were rejected on the ground that they were outsourced.
Mr. Mehta would draw the attention of the court to paragraph No.15 of the CAV Judgment and submit that the fact that outsourcing policy was deprecated, denial of Page 47 of 71 Downloaded on : Wed Jul 20 21:07:46 IST 2022 C/SCA/6852/2020 CAV JUDGMENT DATED: 19/07/2022 minimum of pay scale to such employees was bad. Thus, a category where appointments were made on project work should also get the benefit of Circular dated 16.7.2019.
Category 5:
With regard to category No.5, where the State is of the opinion that no orders of appointment are issued to the petitioners, it is submitted by Mr. Mehta that the fact that the petitioners are working for over a number of years which the State is not in a position to deny, itself suggests that the benefit of the Circular dated 16.7.2019 must be granted.
Category 6:
With regard to category No.6 for the employees who were appointed after 31.5.2012, the stand of the State that there was a complete ban also in Mr. Mehta's submission is misconceived.
Category 7:Page 48 of 71 Downloaded on : Wed Jul 20 21:07:46 IST 2022
C/SCA/6852/2020 CAV JUDGMENT DATED: 19/07/2022 Denial of minimum of pay on the ground that they are not working on sanctioned posts is also bad. Mr. Mehta would rely and refer to para 23 of the decision dated 21.12.2018.
He would submit that the fact that they are continued for more than ten years, they were entitled to the benefits in accordance with the decision of the Hon'ble Supreme Court in the case of Secretary, State of Karnataka v.
Umadevi (3) and others reported in 2006(4) SCC 1.
Category 8:
Rejection of cases on the ground that the persons are working with the Panchayat is also bad. Part timers working under the different departments of the Panchayat are held to be servants of the State in light of the decision of the Hon'ble Supreme Court in the case of State of Gujarat v.
Raman Lal Keshav Lal Soni reported in AIR 1984 SC 161 as per the submission of Mr. Mehta.
13. Written submissions have also been filed by Ms. Vidhi Bhatt, learned advocate for the petitioners which are on the same Page 49 of 71 Downloaded on : Wed Jul 20 21:07:46 IST 2022 C/SCA/6852/2020 CAV JUDGMENT DATED: 19/07/2022 lines as was filed by Mr. Mehta, learned Senior Counsel.
14. It is the stand of the State that:
(1) Those who were appointed for less than four hours, are not entitled to the benefit of the Circular dated 16.7.2019. They only work for an hour in the morning and an hour in the evening. They cannot be equated with the regular employees.
(2) As far as those who have approached belatedly, reliance is placed on a decision in the case of State of Uttar Pradesh v. Arvind Kumar Srivastav reported in 2015(1) SCC 347 who were terminated because of the Resolution dated 25.4.2012 have to be given such benefits.
(3) For the category of appointment made on 29 days basis, the stand of the State is that they are governed by the conditions in their appointment orders. They cannot claim parity with those part time employees whose conditions are not the same. If appointments were on projects which are time bound benefit of circular dated Page 50 of 71 Downloaded on : Wed Jul 20 21:07:46 IST 2022 C/SCA/6852/2020 CAV JUDGMENT DATED: 19/07/2022 16.7.2019 cannot be granted.
(4) Where no appointment orders are issued, the benefit cannot be granted of the minimum of the pay scale because there is not record to show for how many hours or the kind of work that they are doing.
(5) When there are no sanctioned posts on which such employees are appointed and if the appointment is done by the concerned Officer, then, obviously in light of the resolutions passed earlier, such appointment cannot get the benefit.
15. It is in the facts of these submissions that the interpretation of the resolution dated 16.7.2019 has to be made. From the history of the resolutions which were framed by the Finance Department from time to time what is evident is that initially on 10.2.2006, the Government issued the resolution withdrawing the powers of the departments to appoint and pay wages to part timers. This was done with a view to reduce financial burden. Thereafter, the State came out with another Resolution dated 15.7.2006 permitting the part time Page 51 of 71 Downloaded on : Wed Jul 20 21:07:46 IST 2022 C/SCA/6852/2020 CAV JUDGMENT DATED: 19/07/2022 appointments for a period of six months. Such period of continuing to engage part time employment kept on being extended by the resolutions of the Finance Department dated 2.3.2007, 12.7.2007, 21.9.2007, 19.12.2007, 15.3.2008, 23.9.2008, 7.3.2009, 14.9.2009, 11.3.2010, 18.12.2010, 6.7.2011, 26.9.2011 and 31.12.2011. What is therefore evident is that the initial policy sought to be framed by the State to do away with part time employment was itself suspended and the tacit admission of the State indicated that part timers were needed for the work that they were doing in the office.
16. The Government Resolution dated 31.5.2012 was then brought in by which part timers were sought to be replaced by outsourcing agencies. The Court by an interim order suspended the Resolution dated 25.4.2012 which sought to replace part-timers with outsourcing of employees. The question was addressed by the Court in Paragraph No.13 of the Judgment pointing out that in a country like India there is high ratio of unemployment and people are ready to work even at low amount. The law does not permit such Page 52 of 71 Downloaded on : Wed Jul 20 21:07:46 IST 2022 C/SCA/6852/2020 CAV JUDGMENT DATED: 19/07/2022 exploitation even at the hands of private employer. The State is wedded to the constitutional philosophy of implementing the directive principles of the State under Article 43. Various decisions were considered as is evident from the CAV Judgment and the Court held that if the work which was carried out by the petitioners was that of a perennial nature, outsourcing of the same was judicially established unfair labour practice. Referring to the decisions of the Hon'ble Supreme Court in the case of State of Karnataka v. Uma Devi reported in 2006(4) SCC 1, the Court specifically held that the petitioners had continued for long time and, therefore, considering paragraph No.53 of the judgment of Umadevi (Supra), even if the State failed to create posts, the employees working for years on such posts without sanction cannot be made to suffer on the inaction of the Government.
17. Reading the circular dated 16.7.2019, it is very clear that Clause 1 of the circular when read indicates that those who had worked for more than four years were being paid Rs.220/- and those who were working for less than four Page 53 of 71 Downloaded on : Wed Jul 20 21:07:46 IST 2022 C/SCA/6852/2020 CAV JUDGMENT DATED: 19/07/2022 hours, were being paid Rs.110/-. The Circular, therefore, cannot be read in a restricted manner to suggest that it cannot be made applicable to those who were appointed for less than four hours. That submission would even be against the policy of giving a minimum wage to the workmen.
18. In so far as the case of the rival parties as to whether the circular dated 16.7.2019 can be made applicable to those who had belatedly challenged their termination, para 31 of the decision of the Coordinate Bench dated 21.12.2018 clearly indicated that the principles enunciated in the decision shall be applicable to all those even those who do not approach the Court.
19. In the case of Vipulkumar Atmaram Parekh v. State of Gujarat reported in 2009(5) GLR 3914, this Court has held that if a law is declared by a Court, it is conclusive and the State cannot deny the benefits on the ground that the principles laid down therein could apply only to the petitioners. The case of the State, therefore that all those persons who had approached belatedly is a submission which must be rejected. Even, in the case of Inderpal Page 54 of 71 Downloaded on : Wed Jul 20 21:07:46 IST 2022 C/SCA/6852/2020 CAV JUDGMENT DATED: 19/07/2022 Yadav v. Union of India reported in 1985(2) SCC, 648, the Hon'ble Supreme Court has held that casual labour cannot be continued indefinitely.
20. Even in the case of Arvind Kumar Srivastav (Supra), it has been held that the principle that all identically situated persons need to be treated alike needs to be applied in service matters more emphatically and because the other similarly situated employees did not approach the Court, cannot be a ground of denying the benefits. Paragraph No.22 of the decision reads as under:
"22. The legal principles which emerge from the reading of the aforesaid judgments, cited both by the appellants as well as the respondents, can be summed up as under:
22.1 Normal rule is that when a particular set of employees is given relief by the Court, all other identically situated persons need to be treated alike by extending that benefit. Not doing so would amount to discrimination and would be violative of Article 14 of the Constitution of India. This principle needs Page 55 of 71 Downloaded on : Wed Jul 20 21:07:46 IST 2022 C/SCA/6852/2020 CAV JUDGMENT DATED: 19/07/2022 to be applied in service matters more emphatically as the service jurisprudence evolved by this Court from time to time postulates that all similarly situated persons should be treated similarly.
Therefore, the normal rule would be that merely because other similarly situated persons did not approach the Court earlier, they are not to be treated differently.
22.2 However, this principle is subject to well recognized exceptions in the form of laches and delays as well as acquiescence. Those persons who did not challenge the wrongful action in their cases and acquiesced into the same and woke up after long delay only because of the reason that their counterparts who had approached the Court earlier in time succeeded in their efforts, then such employees cannot claim that the benefit of the judgment rendered in the case of similarly situated persons be extended to them. They would be treated as fence-
sitters and laches and delays, and/or the acquiescence, would be a valid ground to dismiss their claim.
Page 56 of 71 Downloaded on : Wed Jul 20 21:07:46 IST 2022C/SCA/6852/2020 CAV JUDGMENT DATED: 19/07/2022 22.3 However, this exception may not apply in those cases where the judgment pronounced by the Court was judgment in rem with intention to give benefit to all similarly situated persons, whether they approached the Court or not. With such a pronouncement the obligation is cast upon the authorities to itself extend the benefit thereof to all similarly situated person. Such a situation can occur when the subject matter of the decision touches upon the policy matters, like scheme of regularization and the like (see K.C. Sharma & Ors. v. Union of India (supra). On the other hand, if the judgment of the Court was in personem holding that benefit of the said judgment shall accrue to the parties before the Court and such an intention is stated expressly in the judgment or it can be impliedly found out from the tenor and language of the judgment, those who want to get the benefit of the said judgment extended to them shall have to satisfy that their petition does not suffer from either laches and delays or acquiescence."
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21. The denial of the benefit of the Circular dated 16.7.2019 for those who were working on 29 days basis or on outsourcing or project workers is also misconceived as held by the Hon'ble Supreme Court in the case of Mohd. Abdul Kadir and another v. Director General of Police reported in 2009(6) SCC 611, paragraph Nos.16 to 18 and 22 read as under:
"16. We may next consider the challenge to the procedure of annual termination and reappointment introduced by the circular dated 17.3.1995. The PIF Scheme and PIF Additional Scheme were introduced by Government of India. The scheme does not contemplate or require such periodical termination and re-appointment. Only ex-servicemen are eligible to be selected under the scheme and that too after undergoing regular selection process under the Scheme. They joined the scheme being under the impression that they will be continued as long as the PIF Additional Scheme was continued. The artificial annual breaks and re-appointments were introduced by the state agency entrusted with the operation of the Scheme. This Court has always frowned upon artificial breaks in service.Page 58 of 71 Downloaded on : Wed Jul 20 21:07:46 IST 2022
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17. When the ad-hoc appointment is under a scheme and is in accordance with the selection process prescribed by the scheme, there is no reason why those appointed under the scheme should not be continued as long as the scheme continues. Ad-hoc appointments under schemes are normally co-terminus with the scheme (subject of course to earlier termination either on medical or disciplinary grounds, or for unsatisfactory service or on attainment of normal age of retirement). Irrespective of the length of their ad hoc service or the scheme, they will not be entitled to regularization nor to the security of tenure and service benefits available to the regular employees. In this background, particularly in view of the continuing Scheme, the ex-serviceman employed after undergoing selection process, need not be subjected to the agony, anxiety, humiliation and vicissitudes of annual termination and re-engagement, merely because their appointment is termed as ad hoc appointments.
17. We are therefore of the view that the learned Single Judge was justified in observing that the process of termination and re- appointment every year should be avoided and the appellants should be continued as long as the Page 59 of 71 Downloaded on : Wed Jul 20 21:07:46 IST 2022 C/SCA/6852/2020 CAV JUDGMENT DATED: 19/07/2022 Scheme continues, but purely on ad hoc and temporary basis, co- terminus with the scheme. The circular dated 17.3.1995 directing artificial breaks by annual terminations followed by fresh appointment, being contrary to the PIF Additional Scheme and contrary to the principles of service jurisprudence, is liable to be is quashed.
22. We are conscious of the fact that the issue is a matter of policy having financial and other implications. But where an issue involving public interest has not engaged the attention of those concerned with policy, or where the failure to take prompt decision on a pending issue is likely to be detrimental to public interest, courts will be failing in their duty if they do not draw attention of the concerned authorities to the issue involved in appropriate cases. While courts cannot be and should not be makers of policy, they can certainly be catalysts, when there is a need for a policy or a change in policy."
21.1. It is worthwhile to reproduce paras 44 and 48 of the decision in the case of Umadevi (Supra) which read as under:
"44. The concept of 'equal pay for Page 60 of 71 Downloaded on : Wed Jul 20 21:07:46 IST 2022 C/SCA/6852/2020 CAV JUDGMENT DATED: 19/07/2022 equal work' is different from the concept of conferring permanency on those who have been appointed on ad hoc basis, temporary basis, or based on no process of selection as envisaged by the Rules. This Court has in various decisions applied the principle of equal pay for equal work and has laid down the parameters for the application of that principle. The decisions are rested on the concept of equality enshrined in our Constitution in the light of the directive principles in that behalf. But the acceptance of that principle cannot lead to a position where the court could direct that appointments made without following the due procedure established by law, be deemed permanent or issue directions to treat them as permanent. Doing so, would be negation of the principle of equality of opportunity. The power to make an order as is necessary for doing complete justice in any cause or matter pending before this Court, would not normally be used for giving the go-by to the procedure established by law in the matter of public employment. Take the situation arising in the cases before us from the State of Karnataka. Therein, after Page 61 of 71 Downloaded on : Wed Jul 20 21:07:46 IST 2022 C/SCA/6852/2020 CAV JUDGMENT DATED: 19/07/2022 the Dharwad decision, the Government had issued repeated directions and mandatory orders that no temporary or ad hoc employment or engagement be given. Some of the authorities and departments had ignored those directions or defied those directions and had continued to give employment, specifically interdicted by the orders issued by the executive. Some of the appointing officers have even been punished for their defiance. It would not be just or proper to pass an order in exercise of jurisdiction under Article 226 or 32 of the Constitution or in exercise of power under Article 142 of the Constitution of India permitting those persons engaged, to be absorbed or to be made permanent, based on their appointments or engagements. Complete justice would be justice according to law and though it would be open to this Court to mould the relief, this Court would not grant a relief which would amount to perpetuating an illegality.
48. It was then contended that the rights of the employees thus appointed, under Articles 14 and 16 of the Page 62 of 71 Downloaded on : Wed Jul 20 21:07:46 IST 2022 C/SCA/6852/2020 CAV JUDGMENT DATED: 19/07/2022 Constitution, are violated. It is stated that the State has treated the employees unfairly by employing them on less than minimum wages and extracting work from them for a pretty long period in comparison with those directly recruited who are getting more wages or salaries for doing similar work. The employees before us were engaged on daily wages in the concerned department on a wage that was made known to them. There is no case that the wage agreed upon was not being paid. Those who are working on daily wages formed a class by themselves, they cannot claim that they are discriminated as against those who have been regularly recruited on the basis of the relevant rules.
No right can be founded on an employment on daily wages to claim that such employee should be treated on a par with a regularly recruited candidate, and made permanent in employment, even assuming that the principle could be invoked for claiming equal wages for equal work. There is no fundamental right in those who have been employed on daily wages or temporarily or on contractual basis, to claim that they have a right to be Page 63 of 71 Downloaded on : Wed Jul 20 21:07:46 IST 2022 C/SCA/6852/2020 CAV JUDGMENT DATED: 19/07/2022 absorbed in service. As has been held by this Court, they cannot be said to be holders of a post, since, a regular appointment could be made only by making appointments consistent with the requirements of Articles 14 and 16 of the Constitution. The right to be treated equally with the other employees employed on daily wages, cannot be extended to a claim for equal treatment with those who were regularly employed. That would be treating unequals as equals. It cannot also be relied on to claim a right to be absorbed in service even though they have never been selected in terms of the relevant recruitment rules. The arguments based on Articles 14 and 16 of the Constitution are therefore overruled."
21.2. Reading the aforesaid paras of the judgment make it clear that a distinction was drawn between claiming regularization and claiming pay parity. It is the concept of "equality" which would bind the State to cure the deficiency by giving minimum of a pay-scale to a Daily Wager as is given to a regularly selected employee.
Page 64 of 71 Downloaded on : Wed Jul 20 21:07:46 IST 2022C/SCA/6852/2020 CAV JUDGMENT DATED: 19/07/2022 21.3. In the case of State of Punjab v. Jagjit Singh and others reported in 2017(1) SCC 148, the Hon'ble Supreme Court while examining the legality of the Full Bench decision of the Punjab High Court, held as under:
"58. In our considered view, it is fallacious to determine artificial parameters to deny fruits of labour. An employee engaged for the same work, cannot be paid less than another, who performs the same duties and responsibilities. Certainly not, in a welfare state. Such an action besides being demeaning, strikes at the very foundation of human dignity. Any one, who is compelled to work at a lesser wage, does not do so voluntarily. He does so, to provide food and shelter to his family, at the cost of his self respect and dignity, at the cost of his self worth, and at the cost of his integrity. For he knows, that his dependents would suffer immensely, if he does not accept the lesser wage. Any act, of paying less wages, as compared to others similarly situate, constitutes an act of exploitative enslavement, emerging out of a domineering position. Undoubtedly, the action is oppressive, suppressive and coercive, as it compels involuntary subjugation.
59. We would also like to extract herein Article 7, of the International Covenant on Economic, Social and Page 65 of 71 Downloaded on : Wed Jul 20 21:07:46 IST 2022 C/SCA/6852/2020 CAV JUDGMENT DATED: 19/07/2022 Cultural Rights, 1966. The same is reproduced below:-
"Article 7 The States Parties to the present Covenant recognize the right of everyone to the enjoyment of just and favourable conditions of work which ensure, in particular:
(a) Remuneration which provides all workers, as a minimum, with:
(i) Fair wages and equal remuneration for work of equal value without distinction of any kind, in particular women being guaranteed conditions of work not inferior to those enjoyed by men, with equal pay for equal work;
(ii) A decent living for themselves and their families in accordance with the provisions of the present Covenant;
(b) Safe and healthy working conditions;
(c) Equal opportunity for everyone to be promoted in his employment to an appropriate higher level, subject to no considerations other than those of seniority and competence;Page 66 of 71 Downloaded on : Wed Jul 20 21:07:46 IST 2022
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(d) Rest, leisure and reasonable limitation of working hours and periodic holidays with pay, as well as remuneration for public holidays." India is a signatory to the above covenant, having ratified the same on 10.4.1979. There is no escape from the above obligation, in view of different provisions of the Constitution referred to above, and in view of the law declared by this Court under Article 141 of the Constitution of India, the principle of 'equal pay for equal work' constitutes a clear and unambiguous right and is vested in every employee - whether engaged on regular or temporary basis.
60. Having traversed the legal parameters with reference to the application of the principle of 'equal pay for equal work', in relation to temporary employees (daily-wage employees, ad-hoc appointees, employees appointed on casual basis, contractual employees and the like), the sole factor that requires our determination is, whether the concerned employees (before this Court), were rendering similar duties and responsibilities, as were being discharged by regular employees, holding the same/corresponding posts. This exercise would require the application of the parameters of the principle of 'equal pay for equal work' summarized by us in paragraph 42 above. However, insofar as the Page 67 of 71 Downloaded on : Wed Jul 20 21:07:46 IST 2022 C/SCA/6852/2020 CAV JUDGMENT DATED: 19/07/2022 instant aspect of the matter is concerned, it is not difficult for us to record the factual position. We say so, because it was fairly acknowledged by the learned counsel representing the State of Punjab, that all the temporary employees in the present bunch of appeals, were appointed against posts which were also available in the regular cadre/establishment. It was also accepted, that during the course of their employment, the concerned temporary employees were being randomly deputed to discharge duties and responsibilities, which at some point in time, were assigned to regular employees. Likewise, regular employees holding substantive posts, were also posted to discharge the same work, which was assigned to temporary employees, from time to time. There is, therefore, no room for any doubt, that the duties and responsibilities discharged by the temporary employees in the present set of appeals, were the same as were being discharged by regular employees. It is not the case of the appellants, that the respondent-employees did not possess the qualifications prescribed for appointment on regular basis. Furthermore, it is not the case of the State, that any of the temporary employees would not be entitled to pay parity, on any of the principles summarized by us in paragraph 42 hereinabove. There can be no doubt, that the principle of 'equal Page 68 of 71 Downloaded on : Wed Jul 20 21:07:46 IST 2022 C/SCA/6852/2020 CAV JUDGMENT DATED: 19/07/2022 pay for equal work' would be applicable to all the concerned temporary employees, so as to vest in them the right to claim wages, at par with the minimum of the pay-scale of regularly engaged Government employees, holding the same post.
61. In view of the position expressed by us in the foregoing paragraph, we have no hesitation in holding, that all the concerned temporary employees, in the present bunch of cases, would be entitled to draw wages at the minimum of the pay-scale (at the lowest grade, in the regular pay- scale), extended to regular employees, holding the same post."
21.4. In no uncertain terms did the Hon'ble Supreme Court observe that an employee engaged in the same work cannot be paid less than another who performs the same duties and responsibilities such an action is demeaning, strikes at the very foundation of human dignity.
21.5. The stand of the State therefore that in case of belated challenge, or working for less than four hours, working for 29 days, or on a project, persons engaged on outsourcing, persons whose engagement is without an appointment orders, or not working on sanctioned posts or Page 69 of 71 Downloaded on : Wed Jul 20 21:07:46 IST 2022 C/SCA/6852/2020 CAV JUDGMENT DATED: 19/07/2022 working in Panchayats is again a stand of the State setting at naught the very purpose for which the Circular was brought forth. The rejection of cases on such grounds akin thereto is bad and deserves to be set aside.
21.6. Therefore, the practice of applying artificial break by itself would tantamount to unfair labour practice and State since being a model employer cannot be said to canvas an argument that short tenure appointment or appointment on 29 days basis is an appointment which would not get the benefit of the Resolution dated 16.7.2019. The continuation of the appointees on these posts itself would indicate that they are in need as the work is of perennial nature. The Hon'ble Supreme Court has always frowned upon artificial break of service and on the principles of parity in pay scales such employees working on a project basis are entitled to the benefits of the Circular dated 16.7.2019. It does not lie in the mouth of the State to deny the benefits of Circular dated 16.7.2019 to Panchayat Employees on the ground that the Resolution does not apply to them. The Resolution would apply to such Panchayat employees as reading the Circular of 16.7.2019 Page 70 of 71 Downloaded on : Wed Jul 20 21:07:46 IST 2022 C/SCA/6852/2020 CAV JUDGMENT DATED: 19/07/2022 specifically indicates that the same would apply to all such agencies and instrumentalities of the State and not doing so would run counter to the decision in the case of of Hon'ble Supreme Court Raman Lal Keshav Lal Soni (Supra).
22. For all the aforesaid reasons as discussed hereinabove considering the categories namely 8 in number, the petitioners are held to be entitled to the benefit of Circular dated 16.7.2019 and, therefore, all these petitions are allowed and the rejections if any, on these grounds as mentioned hereinabove are quashed and set aside.
23. Rule is made absolute to the aforesaid extent. Direct Service is permitted. No order as to costs.
24. In view of allowing of the main matter i.e. SCA No.15734 of 2020, connected Civil Application does not survive, hence, the same stand disposed of accordingly.
[ BIREN VAISHNAV, J. ] VATSAL S. KOTECHA Page 71 of 71 Downloaded on : Wed Jul 20 21:07:46 IST 2022