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2022 DIGILAW 131 (GUJ)

Mehulbhai Jayprakash Parmar v. State of Gujarat

2022-01-21

BIREN VAISHNAV

body2022
JUDGMENT : BIREN VAISHNAV, J. 1. In all these petitions under Article 226 of the Constitution of India, the part-time employees working with the lower judiciary, initially claimed the benefit of regularization, having worked for several years on the establishment of the Courts below. SCA NO. 1752 OF 2015 2. This petition is filed by the petitioners who were working as Class-IV part-time sweepers in the various Courts established at Himmatnagar, District: Sabarkantha. It is their prayer that pending the petition, they may not be terminated from their services, that they may be given the benefit of regularization, that the policy of outsourcing be set aside. 3. Today, when the matter is taken up for hearing, Ms. Ashlesha Patel learned counsel for the petitioners would submit that she would be satisfied if a direction is given to the respondents to pay the petitioners the minimum of the pay scale as framed by the Government Resolution dated 16.07.2019. Pursuant to the decisions of this Court, firstly rendered by the learned Single Judge in Special Civil Application No. 7462 of 2012 and so confirmed by the Division Bench in Letters Patent Appeal No. 1155 of 2019. 4. Ms. Parinda Davawala learned counsel appearing for the respondent no. 3 submits that the petitioners are not entitled to the regularization in service and since they were part-timers, instructions had been given that such services be carried out through outsourcing. She would further submit that since they were not appointed through proper procedure, all benefits of regularization need not be extended to them. However, in view of the fact that the prayer today is restricted to that of granting the benefit of minimum of pay scale in pursuance of the decision of this Court referred to herein above and admittedly when the petitioners are in service, the petition is allowed to the extent that the respondent shall extend the benefit of minimum of pay scale to the petitioners in accordance with the Government Resolution dated 16.07.2019. This is particularly when the Division Bench of this Court had specifically opined and relied on the decision of Supreme Court in case of State of Punjab v. Jagjit Singh reported in 2017 (1) SCC 148 . This is particularly when the Division Bench of this Court had specifically opined and relied on the decision of Supreme Court in case of State of Punjab v. Jagjit Singh reported in 2017 (1) SCC 148 . Even on record is an interim order passed by this Court dated 31.05.2012 in Special Civil Application No. 7467 of 2012, by which, the coordinate bench of this Court had opined as under: "10.0 After hearing Learned Counsels for both the 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 employ altogether new persons. If that is to happen, in effect, it would be replacing, if not regular, atleast present ad hoc employees with new ad hoc 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. 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 v. 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. 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 25 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." 5. The Division Bench in Letters Patent Appeal No. 1155 of 2019 has observed as under: "13. Direct Service permitted." 5. The Division Bench in Letters Patent Appeal No. 1155 of 2019 has observed as under: "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 existence for years together formality of declaring the same as sanctioned would not come in the way of petitioners receiving atleast 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. 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 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 v. 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 Hindustan Lever (supra)." 6. In view of this categorical assertion of the learned coordinate bench, the stand of the Government that they are engaging employees through outsourcing therefore needs to be discarded. 7. The petition is therefore allowed to the aforesaid extent. SCA NO. 20147 OF 2015 8. Learned advocate for the petitioners Ms. In view of this categorical assertion of the learned coordinate bench, the stand of the Government that they are engaging employees through outsourcing therefore needs to be discarded. 7. The petition is therefore allowed to the aforesaid extent. SCA NO. 20147 OF 2015 8. Learned advocate for the petitioners Ms. Ashlesha Patel restrict the relief claiming the benefit of minimum scale of pay, however, in the Civil Application filed by the learned counsel for the petitioner, reading the order dated 18.07.2017 in Civil Application No. 1 of 2017 the order dated 18.07.2017 reads as under: "Learned advocate for the petitioner has moved draft amendment as during the pendency of the petition, the services of the petitioners has been terminated. This draft amendment is allowed. The matter to come up on 25.7.2017." 9. Accordingly, since the petitioners have already been terminated from their services, they shall not be entitled to benefit of minimum of pay scale in accordance with the resolution dated 16.07.2019 However, it is clarified that in the event of any of the petitioners are in service, the benefit shall be extended to them in accordance with law. 10. This petition is disposed of in above terms. SCA NO. 7693 OF 2017 11. In the Civil Application filed in this matter which is already disposed of, Mr. Hemang Shah learned advocate appearing for respondent nos. 2 to 4 would draw the attention of this Court to the affidavit-in-reply filed on behalf of the District Court at pages 48 and 49, by which, a proposal was sent to the Government for extending the benefit of minimum pay scale which was refused. 12. For the aforestated reasons, that proposal was misconceived and accordingly the petition is allowed in terms of the order passed by the Division Bench in LPA No. 1155 of 2019 and the petitioners are entitled to the minimum scale of pay in accordance with the resolution dated 16.07.2019. SCA NO. 5924 OF 2020 13. Heard learned advocate for the petitioners Ms. Ashlesha Patel. She would only restrict the prayers so far as petitioners of this petition are concerned to the minimum of pay scale as directed by the Division Bench in LPA No. 1155 of 2019. 14. Ms. SCA NO. 5924 OF 2020 13. Heard learned advocate for the petitioners Ms. Ashlesha Patel. She would only restrict the prayers so far as petitioners of this petition are concerned to the minimum of pay scale as directed by the Division Bench in LPA No. 1155 of 2019. 14. Ms. Trusha Patel learned counsel for the respondent District Court, Sabarkantha, would submit that a proposal was sent to the Government for extending such benefits, however, by way of an additional affidavit so filed by the District Court, a communication dated 17.09.2020 has been placed on record, wherein, the case of the petitioners for extending the benefits of resolution dated 16.07.2019 has been refused on the ground that they were not engaged post 2006 and additional ground which is relied upon by the counsel for the respondent District Court is para 12 of the affidavit-in-reply indicating that the outsourcing agency is selected in this district, due to pendency of this petition, the service of that petitioner as part time sweeper is not discontinued. The appointment of the petitioners is only by virtue of an order and once the outsourcing agency is selected, the petitioners cannot be given the benefit of minimum of scale of part time employees of the District. 15. Considering the law laid down by the Division Bench in LPA No. 1155 of 2019 as referred to herein above, and though Ms. Patel submits that the Division Bench may not consider the legality of the outsourcing agency on the principle of equal pay for equal work and particularly by a detailed order dated 31.05.2012 which has been extensively quoted herein above, the action of the respondents in appointing outsourcing agency cannot be held to be legal and valid. 16. The petition is allowed particularly when it is the case of the petitioner that a similarly situated employees have been given benefit of extension of minimum of pay scale. 17. All these petitions are allowed. The benefits shall be extended as expeditiously as possible preferably within a period of six weeks from the date of receipt of copy of this order. 18. In view of the disposal of all these petitions, connected civil applications also stand disposed of.