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2005 DIGILAW 369 (GUJ)

Hamidkha Dilawarkha Khokhar v. STATE OF GUJARAT

2005-05-09

RAVI R.TRIPATHI

body2005
RAVI R. TRIPATHI, J. ( 1 ) ONE, Hamidkha Dilayarkha Khokhar with gujarat Rajya Sarkari Rojamdar kamdar Karmschari -Mandal approached this Court for a direction to the respondents to consider the petitioner-employees whose names are set out at Annexure a, 13 in number including petitioner No. 1, as regular class IV employees from the initial date of appointment in the respective cadres. It was also prayed that the respondents be directed to extend benefits on the principle of equal pay for equal work from the date of appointment. The petitioners had also prayed for a direction to the respondents to pay arrears of wages and other benefits including bonus to the petitioner-employees (whose names appear at Annexure a) with 18%. interest. The petitioners have also prayed by way of interim relief that the respondents be restrained from terminating the services of the petitioners and direct the respondents to extend benefits of government Resolution dated 17. 10. 1988 to them. Though it is 1998 petition and is being heard in 2005, when it is called out learned advocate for the petitioners is not present. Mr. Pancholi, learned Assistant government Pleader submitted that the question of applicability of Government resolution dated 17. 10. 1988 to the workmen like the present petitioners was considered by Full Bench of this Court in the matter of gujarat FOREST PRODUCE, gatherers and FOREST, WORKERS union V/s. STATS OF GUJARAT, reported IN 2004 (2) GLR 1488. The learned Assistant Government Pleader invited attention of the Court to paras 30, 30. 4, 30. 5 and 30. 6 of the said Judgment. For ready perusal said paras are reproduced hereunder:"30. It was strongly contended relying upon the decision of the Supreme court in Daily Rated Casual Labour employed under Pandt Department through bhartiya Dak Tar Mazdoor Manch V/s. Union of India reported in AIR 1987 SC 2342 by the learned counsel for the petitioners in Special Civil application nos. 8259 of 1996 and 2566 of 1997 that the employees who have been working for more than a decade ought not to be kept on casual basis for an unreasonably long time. The daily wages in the Forest and Environment department who were working for more than 10 to 15 years are not given the benefits of the Government Resolution dated 17. 10. The daily wages in the Forest and Environment department who were working for more than 10 to 15 years are not given the benefits of the Government Resolution dated 17. 10. 1988 though they are entitled to be treated on equal footing with those to whom the benefits of the resolution were being given. Reference was made to the daily wagers of Bachuchraji temple administered by the Government having been given the benefits for contending that the benefits ought to be extended also to the daily wagers of the Forest Department. It was contended that the denial of the benefits of the said resolution to the daily wagers working in the Forest and environment Department was per se discriminatory, unjust and contravened their fundamental right to equality. ""30. 4 The daily wagers engaged in the work of maintenance and repairs of constructions are treated as a separate class for extending the benefits under the resolution dated 17. 10. 1988 and all those who fall in such class are treated similarly. Such a classification on the basis of the nature of work done by the employees cannot be said to be irrational or discriminatory. The Committee had examined the matter and considered the demands of the Unions and recommended the benefits for those who were engaged in the maintenance and repairs of constructions in the Government departments. Extending such benefits to a particular class by the Government has budgetary implications and if the government has on the basis of the nature of work extended the benefits only to those engaged in such work which is on the face of it distinguishable from other work, others who are not similarly situated cannot claim such benefits as a matter of right. There is a reasonable nexus between the type of work done by the daily wages and the benefits of such work extended to them under the. resolution. Extension of similar benefits to the workmen engaged in other type of works would be a matter of policy depending upon the nature of the functions of the concerned department and the type of work taken from the workmen engaged therein. ""30. 5 The work of maintenance and repairs of constructions is by and large continuous and of permanent nature unlike the work of those daily wagers who are seasonally engaged in the nurseries for preparing seedlings, digging pits, milching, weeding, thrashing of plants etc. ""30. 5 The work of maintenance and repairs of constructions is by and large continuous and of permanent nature unlike the work of those daily wagers who are seasonally engaged in the nurseries for preparing seedlings, digging pits, milching, weeding, thrashing of plants etc. Such seasonal daily wagers engaged in this type of work by the nurseries in the Forest department cannot be equated with those who are engaged in the work of maintenance and repairs of constructions. The stand of the Government not to extend the benefits of the Government Resolution dated 17. 10. 1988, which applies only to the daily wagers engaged for maintenance and repairs of constructions, to the daily wagers of nurseries of the Forest Department, keeping in view the nature and duration of their work, cannot therefore, be said to be unjust or arbitrary. It may also be mentioned that the Supreme Court has in Delhi development Horticulture Employees Union (supra) deprecated back door entry in service by the process of so called regularisation. For regularising, there must be a regular and permanent post or it must be established that although the work of regular and permanent nature is available, the device of keeping the workman on ad hoc or temporary basis has been resorted to, with a view to deny them the legitimate benefits of permanent employees. Furthermore, the service conditions of the employees of the forest Department are governed by the recruitment rules framed under Art. 309 such as Watchman (Forest Department) recruitment Rules, 1975, Khalasi (Gujarat forest Inferior Service) Recruitment Rules, 1977, Guards (Subordinate Service) recruitment Rules, 1969 etc. The rules framed under Art. 309 cannot be nullified by recognising the modes of regularisation that are in conflict with the recruitment rules which provided for regular modes of recruitment. ""30. 6 The Government Resolution dated 17. 10. 1988 makes it clear that it is applicable only to the daily wagers who are working for maintenance and repairs of construction in various departments of the government including the Forests and environment Department. We are therefore of the view that the Government Resolution dated 17. 10. 1988 is applicable to the daily wagers of the Forest and Environment department engaged in the work of maintenance and repairs of constructions in that department and not to the daily wagers engaged in other types of work in that department. We are therefore of the view that the Government Resolution dated 17. 10. 1988 is applicable to the daily wagers of the Forest and Environment department engaged in the work of maintenance and repairs of constructions in that department and not to the daily wagers engaged in other types of work in that department. The question No. 3 referred in special Civil Application Nos. 8289 of 1976 and 2566 of 1997 will stand answered accordingly. ""whether the petitioners or similarly situated employees of the Forest Department are entitled to the benefit of Government resolution dated 17. 10. 1988?""the Government Resolution dated 17th October 1988 is applicable to the daily wagers of the Forest and Environment department engaged in the work of maintenance and repairs of constructions in that department, and not to the daily wagers engaged in other types of work in that department. "mr. Pancholi submitted that no relief can be granted to the petitioners. ( 2 ) LOOKING to the facts of the case and taking into consideration the fact that the petitioners have claimed to have been working with the Department for quite long, it is deemed fit that the respondents be directed to consider the case of the petitioners in light of the facts of each individual workman and decide the same by a speaking order. The respondents are directed to consider-the case of the workmen whose names appear at Annexure a to this petition and decide their grievance by a speaking order individually within three months from the date of receipt of this judgement. With the aforesaid directions the petition is dismissed with no order as to costs. Rule is discharged. .