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2017 DIGILAW 1075 (GUJ)

SANGEETABEN N. NINAMA v. GOVERNMENT OF GUJARAT

2017-06-12

K.M.THAKER

body2017
JUDGMENT : 1. Heard Mr. Mishra, learned advocate for the petitioners No.1 and 2 and Ms. Vyas, learned advocate for petitioner No.3 and Mr. Goutam, learned AGP for the respondents. 2. In present petition, the petitioners have prayed, inter alia, that: “12A. Your Lordships may be pleased to direct the respondent authorities to regularize the services of the petitioners right from their initial date of appointment and to pay them the arrears to salary in difference by placing the petitioners in the time scale salary as per the prevailing Government Rules and Regulations, as may be applicable to Class-IV employees.” 3. So as to support the relief prayed for by the petitioner, the petitioner has averred and stated that: “3. It is submitted that the petitioner no.1 – Smt. Sangeetaben N. Ninama is 10th pass and came to be appointed on 1.8.1992 as a peon in the respondent school cum hostel which is for the students hailing from the socially and educationally backward class. It is submitted that the petitioner no.1 has to discharge her duties by reaching at 10.00 o’clock and going home after 6.00 o’clock in the evening. Her duties are all the 30 days in a month and all the 265 days in the year. As she is in the girl’s hostel of the SEBC wherein she has to do the work as a peon in the respondent school and take care of the young students, who are residing and staying there. It is further submitted that the petitioner no.1 had rendered to her credit more than 10 years of services without even a single day break. As submitted hereinabove, she has to discharge her duties and responsibilities on all the days irrespective of Saturday, Sunday or any other holiday but, the respondent authorities have not regularized her services and at times, her candidature for regularization for services came to be seen by the principal of the respondent school but, nothing came out and the fact that the petitioner is not paid the salary as per the Government Rules and Regulations and she has continuously rendered the services without any break and with expectation in the life that she will get the rightful remuneration and there will by happy days in the life with the services to place and post of class-IV peon where she is rendering her services. 4. 4. The case of petitioner no.2 is that she came to be appointed on 1.9.1992 as swepperess. At presently, she too being paid the salary at the rate of Rs.1305/and treated as a daily rated employee despite the fact that she has also put up the services beyond 10 years to her credit. It is submitted that the she had to start cleaning the premises outer side at 6.00 o’clock in the morning and after cleaning the outer premises, she starts cleaning the toilets of the girls students who are resident in the respondent school and then, she starts cleaning the classes and other part of the building of the school and comes back the cleaning the hostel premises. She had also to clean the bathrooms and the kitchen, dinning hall. That except the outer premises and the classes, remaining cleanness she has to do twice i.e. dining hall, kitchen and the hostel where the students sleep and after the dinner in the evening is served to students, he has to clean the dining hall, kitchen etc. and after 6.00 o’clock in the evening, she goes back to home. Likewise, everyday petitioner no.2 without any day of holiday, starts the duty at 6.00 o’clock in the morning and remains as such in the duty upto 6.00 o’clock in the evening, irrespective to Saturday, Sunday and Holidays, National Holidays, Festivals, the petitioner has to remain on duty all the days in a week and the 265 days in a year. It is submitted that she is not given the wages as daily rated which is to be paid at least as a minimum wages till her services are regularized which too is not given. Therefore, it is a highest of exploitation at the hands of respondent, Government of Gujarat and also violative of Articles 14 and 16 of the Constitution of India. 5. The case of petitioner no.3 is that her duty is of 24 hours as she is working as she is working as watchman in the hostel of the respondent. That round the clock she has to take care of the girls students and night duty around the clock she has to stay in order to take care of the girl students, who are minor and to keep them feel that they are safe and secure. Therefore, she came to be appointed as watchman on 18.6.1995. That round the clock she has to take care of the girls students and night duty around the clock she has to stay in order to take care of the girl students, who are minor and to keep them feel that they are safe and secure. Therefore, she came to be appointed as watchman on 18.6.1995. She has put up to her credit long years of services and the post is perennial in the nature but, she has not been made permanent and in all, she is paid the salary for the entire month Rs.1305/-. It is submitted that the certificates which came to be issued and relevant are annexed hereto and marked as Annexure-A collectively.” 4. In the backdrop of the said facts, the petitioners have prayed that they are eligible and entitled for the benefit of Government Resolution dated 17.10.1988. 5. The petition is opposed by the respondents. 6. Social Welfare Officer has filed affidavit, wherein it is asserted by the answering respondent that: “8. I say & submit that this data makes it clear that in none of the year petitioners has completed 240 days of the work which they have performed is quite less in number and therefore it cannot be said that the petitioners have continuously worked in the said post as stated by the petitioners in this present petition and hence the petitioners are not entitled to get any relief as prayed in the present petition by the petitioners & the present petition is not maintainable in law and the same deserves to be dismissed. 12. With reference to para 2 of the petition is concerned, I say that the statement and averment made therein are not true, I deny the same. I say that the petitioners were given the work on the daily wager basis with a view to see girls students who are belonging to Socially & Educational Backward Class Community & hence with a view to meet the contingency of the work for limited purpose the petitioners were given the work of the Kitchen Helper from the year 1994, 1995 and as stated herein above the petitioners have not continuously worked for 10 years as stated by the petitioners. In the present paragraph not only that she was given the work as per availability if the work and for which she was and for which she was being given the remuneration as per G.R. Dated 23.09.1998. 14. With reference to para 3 of the petition is concerned, I say that the petitioner has stated that so far as the petitioner no.1 is concerned she was discharging her duty not from 30.07.1992 but she was discharging her duty from 25.09.1994 and therefore the contention raised by the petitioners that she was contended as peon in the year 1997 in the school, hostel is hereby denied. I further say that it is also denied that the petitioner have worked for 365 days, it is also denied that the petitioners were performing the duty from 10 o’clock to 6 o’clock but as per the chart which is annexed herewith & marked as Annexure RI to this reply. The petitioners were performing the duty of the daily wager which is as per the days which are shown in the chart and the said chart is prepared in which it is mentioned that how many days the petitioners have not worked and hence the prayer claimed by the petitioners cannot be granted in the present paragraph in the interest of the justice. 15. With reference to para 4 of the petition are concerned, I state that contention in the present petition raised by the petitioners that so far as the petitioner no.2 is concerned she was attending the duty of swepperess in the year 1992, I say that it is true that she performed the duty of swepperess from September, 1992 but the list which is annexed herewith & marked as Annexure-RI not only shows actual how many days the petitioners have performed the duty for the respective years and respective months and the said duty makes it clear that the petitioner no.2 was not continuous work as in the contention of the petitioners of the present paragraph and hence the said contention of the petition is not true, I hereby deny the same. 17. 17. With reference to para 6 is concerned I do not admit any of the allegations, averments and contentions raised in the petition and I say that the Adarsh Nivashi Kanya Shaala is not a profit earning industry but she has done with a view to give the contention to the girls who belong to the backward class and hence the person who were working their were given the minimum wages which was prescribed as per Finance Department G.R. Dated 23.09.1998 and therefore the contention raised by the petitioner that she is not being paid the minimum wages is hereby denied. I further say that as stated herein with regard to applicable G.R. Dated 17.10.1988 is concerned all these petitioners have joined admittedly and after 01.10.1998 as a Rojamdar and hence G.R. would not be applicable to the petition and therefore the petitioner cannot get any benefit under G.R. dated 17.10.1988 and hence the contention raised by the petitioner that they are entitled to get the benefit is hereby denied.” 7. Neither learned advocate for the petitioners nor learned AGP is clear and certain as to whether the said petitioners are still in service or they have been relieved. 8. Besides this, from the reply affidavit filed by the Social Welfare Officer, it comes out that the respondent is disputing applicability of the Government Resolution dated 17.10.1988 to the establishment where the petitioners worked or have been engaged. 9. It further appears that before demanding the benefit of Government Resolution dated 17.10.1988 and without inviting any order, either granting the claim or refusing the claim, the petitioners directly approached this Court by way of present petition. There is no order on record of this petition refusing the claim of the petitioners, much less any decision with reasons for not accepting their claim and for not granting said benefit to the claimants. 10. In this view of the matter, learned advocate for the petitioners submitted that the respondents should consider present petition as representation by the petitioners and should pass appropriate order with regard to the claim of the petitioners. 11. 10. In this view of the matter, learned advocate for the petitioners submitted that the respondents should consider present petition as representation by the petitioners and should pass appropriate order with regard to the claim of the petitioners. 11. From the reply affidavit by the Social Welfare Officer, it appears that there is dispute with regard to the date on which the petitioners joined the services and there is dispute with regard to the relevant facts, i.e. as to whether the concerned persons have worked for 240 days or not and whether they have worked continuously for 5 years as per the requirement of Government Resolution dated 17.10.1988. 12. Under the circumstances, it is not possible for this Court to decide the petitioners’ entitlement for the benefit flowing from Government Resolution dated 17.10.1988. 13. Therefore, it appears that proper course of action in respect of this petition would be to direct the respondents to decide the petitioners’ claim and pass appropriate reasoned and speaking order. 14. Under the circumstances, present petition is disposed of with following order: (a) It is clarified that this order is passed on the premise that the petitioners are still in service (since neither learned advocate for the petitioners nor learned AGP has clarified this aspect). (b) In the event the petitioners are not in service, then below mentioned direction would not apply, however it would be open to the petitioners to take appropriate action in accordance with law, subject to objection on ground of limitation, against the action of termination from service. (c) With the aforesaid clarification and while disposing the petition, it is directed that the competent authority of the establishment where the petitioners were employed, will decide eligibility and entitlement of the petitioners in present petition for the benefits flowing from Government Resolution dated 17.10.1988. (d) It is further clarified that if the petitioners want to submit further details in addition to the details mentioned in the petition and to provide any other or documents in support of their claim, then the petitioners may do so within three weeks from the receipt of the certified copy of this order. (e) After waiting for three weeks (during that time, the petitioners may file additional material, if they so desire before the authority), the competent authority will consider the claim and demand by the petitioners for the benefit flowing from Government Resolution dated 17.10.1988. (e) After waiting for three weeks (during that time, the petitioners may file additional material, if they so desire before the authority), the competent authority will consider the claim and demand by the petitioners for the benefit flowing from Government Resolution dated 17.10.1988. (f) After taking into account the applicability of the Government Resolution dated 17.10.1988 to the establishment where the petitioners are employed and also after taking into account the date of joining of the petitioners and other relevant facts and details attached to their service with the respondent department, the authority shall pass reasoned and speaking order/s with reasons in support of the decision. (g) If the petitioners are found to be eligible for the said benefit, then the concerned authority shall pass necessary orders including the direction for payment of salary and other benefits in accordance with the Government Resolution dated 17.10.1988. (h) In other circumstance i.e. if the authority holds otherwise, then the authority shall pass appropriate reasoned and speaking order recording reasons in support of its decision. 15. It is clarified that if the petitioners feels aggrieved by the decision by the competent authority, it will be open to the petitioners to take out appropriate proceedings and this decision will not stand in their way. With the aforesaid clarifications and directions, this petition is disposed of. Rule is discharged.