Research › Search › Judgment

Gujarat High Court · body

2024 DIGILAW 1098 (GUJ)

Kutchh District Panchayat v. Charan Ram Momaya

2024-05-02

BIREN VAISHNAV, PRANAV TRIVEDI

body2024
JUDGMENT : (Biren Vaishnav, J.) 1. Letters Patent Appeal No.979 of 2017 has been filed by the Kutch District Panchayat and the Chief District Health Officer challenging the oral judgement dated 06.10.2016 passed in Special Civil Application No.8245 of 2008 by which the learned Single Judge allowed the petition holding that the petitioners therein were entitled to permanent appointment as Multipurpose Health Workers (male) in the regular pay scale of Rs.3050-4590/-. 2. Letters Patent Appeal No.526 of 2022 is filed by the original petitioner challenging the judgement of even date i.e. 06.10.2016 passed in Special Civil Application No.3660 of 2010 by the same learned Single Judge dismissing the original petitioner’s petition which, according to the appellant-original petitioner was on same facts on which the petition of the appellants of Letters Patent Appeal No.979 of 2017 was allowed. 3. Therefore, we have heard Letters Patent Appeal No.979 of 2017 filed by the Kutch District Panchayat as the lead matter. The appellants shall be referred to as ‘original respondents’ and the respondent in the appeal as ‘original petitioners’. 4. Facts in brief are that the original petitioners pursuant to a public advertisement dated 05.07.2001 issued by the Kutch District Panchayat inviting applications for 1 year training for the purpose of appointment as Multipurpose Health-workers (male) applied for the same. On 06.08.2002, they completed their training and on 29.01.2004 the original petitioners were given appointments on fixed pay providing for a break after 11 months. Having found that their colleagues had succeeded in Special Civil Application No.21508 of 2007, they preferred a petition which was disposed on the ground of preferring representations. By a communication dated 05.01.2008, the Kutch District Panchayat rejected their representations for regularization on the ground that their appointments were on fixed pay basis and their appointments were not in accordance with the recruitment rules. 5. The learned Single Judge by the order under challenge allowed the petitions. Hence, the appeal. 6. Mr.H.S.Munshaw learned counsel for the appellant-Panchayat would submit that the post of Multipurpose Health Workers is a district cadre post. He would submit that the District Panchayat sought permission to fill 31 posts in accordance with the recruitment rules notified by a notification dated 03.10.2006. Hence, the appeal. 6. Mr.H.S.Munshaw learned counsel for the appellant-Panchayat would submit that the post of Multipurpose Health Workers is a district cadre post. He would submit that the District Panchayat sought permission to fill 31 posts in accordance with the recruitment rules notified by a notification dated 03.10.2006. He would read the advertisement dated 05.07.2001 and submit that the advertisement in fact was not for appointment but for selection as trainees for a period of one year to be sent for training for multipurpose training course. The advertisement categorically mentioned that candidates who were successfully completing their training will subsequently have to undergo the recruitment procedure to be held by the District Panchayat Service Selection Committee and only on successful completion of training they would be eligible for appointment. 6.1 He would submit that the original respondents who were the petitioners were appointed as multipurpose health-workers on contractual basis for a period of 11 months on a fixed remuneration. Their appointment was contractual and purely ad-hoc and therefore it cannot be said that the appointments were in accordance with law. That they had not undergone regular selection procedure and the judgement and order of the learned Single Judge directing the Panchayat to extend the benefits of permanency in the pay scale is contrary to law. 7. Mr.Gautam Joshi learned Senior Advocate appearing with learned advocate Mr.Shivang Shah for the original petitioners would support the order of the learned Single Judge. He would take us through the advertisement and submit that reading of the advertisement would indicate that it was not for the purpose of training, in effect if such an advertisement had to be interpreted for the purpose of training only, there will be no place of mentioning reservation. Similar advertisements were issued in various other districts which were interpreted by various Single Judges of this Court, which in turn confirmed the fact that such appointments were not appointments on training but appointments in accordance with law and therefore the learned Single Judge had granted such benefit of permanency and the appeals by such Panchayats had failed and therefore it was not open for the learned counsel for the appellant panchayat to continue to prosecute this appeal in light of the several appeals having failed in the context of other Panchayats. He would also invite our attention to the recruitment rules which provide that they would be appointed after training. Their appointment orders would specifically stated that their appointments were after having undergone training and therefore there was no reason that such appointments would have been branded as appointments without following the procedure of recruitment. He would rely on a compilation of orders submitted with his brief note of submissions. 8. Mr.Prithvi Jadeja learned counsel appearing in LPA No.526 of 2022 for the appellant would submit that if the learned Single Judge by an order of the same date allowed the Special Civil Application in which the Kutch Panchayat has argued its appeal, there was no reason for the learned Single Judge to have dismissed the petition viz. Special Civil Application No.3660 of 2012 which was identical on facts and it was heard along with the petition of the respondents in Letters Patent Appeal No.979 of 2017. 9. Having considered the submissions made by the learned counsel for the respective parties and having perused the advertisement for appointment of Multipurpose Health Workers, in light of the recruitment rules framed under Section 203 read with Section 323 of the Panchayat Act, reading of the advertisement clearly indicates that the advertisement provided for reservation. The advertisement clearly stipulated that after undergoing the process of training, the trainees would be appointed on the post of Multipurpose Health Worker. The advertisement clearly states that such appointments would be made. Admittedly it is a fact that if the advertisement was only for training, there would have been no reservation prescribed as is done in the advertisement. The appointments placed on record would also indicate that it is after the purposes of training that the appointments have been made. 10. From the compilation placed on record it is obvious that in Special Civil Application No.3680 of 2018 and allied petitions, the learned Single Judge was apprised of a similar advertisement and the petitions were allowed. An appeal being Letters Patent Appeal No.153 of 2023 was filed wherein the Division Bench confirmed the order of the learned Single Judge. It will be in the fitness of things to reproduce the order of the learned Single Judge in Special Civil Application No.3680 of 2018. The relevant paragraphs of the said order read as under: “8. An appeal being Letters Patent Appeal No.153 of 2023 was filed wherein the Division Bench confirmed the order of the learned Single Judge. It will be in the fitness of things to reproduce the order of the learned Single Judge in Special Civil Application No.3680 of 2018. The relevant paragraphs of the said order read as under: “8. At this stage, it would be appropriate to refer to the decision of the Division Bench of this Court in Letters Patent Appeal No.216 of 2021 and allied matters dated 09.02.2021, wherein the Court has recorded the facts that the writ petitioner who was appointed in the early nineties under an appointment order on a regular scale continued to receive all the benefits admissible to him including increments, Dearness Allowances and all other benefits till 2012 when he is said to have passed one examination, whereafter he was given a contractual appointment of 5 years on a fixed pay of Rs.4,500/-. On such facts the learned Single Judge vide judgment dated 05.12.2019 allowed Special Civil Application No.15228 of 2012 and granted him the benefits of past service from the initial date of appointment treating him in continuous service in terms of the judgment dated 10.08.2016 passed in Special Civil Application No.6289 of 2011. 8.1 In the above facts, the Court has held in paras-4 and 5 as under:- “4. We may further note here the submission of Shri Munshaw referring to two judgments of the Division Bench dated 19.07.2016 in Letters Patent Appeal No.507 of 2016 arising out of Special Civil Application No.2344 of 2014 and the judgment dated 20.07.2010 in Letters Patent Appeal No.85 of 2010 arising out of Special Civil Application No.8611 of 2009, based upon which he submits that the Multipurpose Health Workers (Male) were not extended the benefits which have been given to the present petitioners. We have perused both the judgments and we find that they were based on different set of facts and the initial appointment of those Multipurpose Health Workers were contractual in nature unlike the present petitioners who were given regular appointment on fixed term and conditions. 5 Learned counsels for the respondents state that they are entitled to the benefits of regularization from 15.04.1995 and not from any earlier date because they are working continuously from the said date and prior to it in their appointments there were certain breaks. 5 Learned counsels for the respondents state that they are entitled to the benefits of regularization from 15.04.1995 and not from any earlier date because they are working continuously from the said date and prior to it in their appointments there were certain breaks. This honest submission of the learned counsels for the respondents is noted and the appellants would implement the order of the learned Single Judge accordingly.” 8.2 Similarly, this Court in common oral judgment dated 05.12.2019 in Special Civil Application No.889 of 2013 and allied matters has also issued directions as under:- “9. In the present case, the Female Health Workers of Kheda District are discriminated and such discrimination cannot be allowed in wake of the fact that the State authorities have granted the benefits of regularization in Sabarkantha, Junagadh and Rajkot Districts to Multi Purpose Health Workers (Male). It is also noticed that the Coordinate Bench of this Court has also considered the factor of the employees being over-age and some of them had also not passed the examinations. The facts recorded in the judgment reveal that some of the employees had even failed in the recruitment process, which had taken place on 30.03.1996. Despite the aforesaid facts, the Court has directed to regularize the service of the Multi Purpose Health Workers of Junagadh District from the date of initial appointment. 10. It is also not in dispute that the Coordinate Bench of this Court has also held that once the Multi Purpose Health Workers, who are engaged on contractual basis after given breaks, are entitled to regularize in service since they have cleared the recruitment process. It is also noticed that the petitioners have also cleared the examination and once they have participated in the regular selection process, their earlier services cannot be wiped out and they are required to be treated as regular employees by conferring the continuity of service. It is reported that the aforesaid judgment is implemented by the State authorities. 11. Under the circumstances, the present petitioners cannot be discriminated only because they are working as Female Health Workers. The writ petitions succeed in light of the judgment dated 10.08.2016 passed in Special Civil Application No.6289 of 2011. It is reported that the aforesaid judgment is implemented by the State authorities. 11. Under the circumstances, the present petitioners cannot be discriminated only because they are working as Female Health Workers. The writ petitions succeed in light of the judgment dated 10.08.2016 passed in Special Civil Application No.6289 of 2011. The respondents are hereby directed to confer the benefits of past service to the petitioners from the initial date of appointment treating them as continuous in terms of the judgment dated 10.08.2016 passed in Special Civil Application No.6289 of 2011.” 9. In view of the aforesaid, it is directed that the petitioners are entitled to the benefits of past service of the petitioners from the initial date of appointment by treating them as continuous in service. The respondent authorities therefore may pass appropriate orders in this regards as expeditiously as possible. The petitions are allowed. Rule is made absolute. No orders at to costs.” 11. The relevant paragraphs of the order passed by the Division Bench in Letters Patent Appeal No.153 of 2023 read as under: “4. While favourably considering the prayer for counting the earlier services for the purpose of retiral benefits, learned Single Judge did not accept the submission on behalf of the respondent authorities although the petitioners took advantage of participating in the regular selection process and therefore, having taken such advantage, cannot claim benefit for their past service. While so holding, learned Single Judge noticed that at the initial stage itself, the petitioner was placed in the pay-scale. The services continuously obtained of the petitioners indicated that the posts were available and the work was also available to be offered to the petitioners. It was only the selection process, which became instrumental in placing the petitioners as regular in the pay-scale. 4.1 Learned Single Judge has substantiated his reasons by relying on the judgment in Special Civil Application No. 15228 of 2012 as also in Special Civil Application No. 889 of 2013 to come to the conclusion that in the totality of facts, the past services of the petitioners is liable to be considered, treating them as continuous. 5. No unreasonableness is noticed in the findings recorded by the learned Single Judge warranting any interference in the Letters Patent jurisdiction. 6. 5. No unreasonableness is noticed in the findings recorded by the learned Single Judge warranting any interference in the Letters Patent jurisdiction. 6. It was fairly stated and it is observed by this Court as well that the directions of the learned Single Judge while allowing the petition only relates to counting the past services as continuous. It does not have the effect of giving any monetary benefits for the past service except that for the purpose of pension and other retiral benefits, such services may be counted. 7. With above observation and clarification, the appeal is dismissed. Civil Application would not survive and is disposed of in view of the dismissal of the Letters Patent Appeal.” 12. The order of the Division Bench received its affirmation before the Supreme Court. Even in Special Civil Application No.13519 of 2011, when the learned Single Judge in context of the advertisement by a judgement dated 10.12.2019 considering the facts on hand held as under: “8. I have heard the learned advocates for the respective parties. The orders dated 24.10.2017, 17.10.2017, 13.10.2009 and 04.03.1997, which were passed by the State Government reveal that the ad hoc Multi Purpose Health Workers (Male), who are serving in Rajkot, Junagadh, Sabarkantha and Valsad Districts respectively, have been regularized from the initial date of appointment. 9. The aforesaid orders refer to the various judgments of this Court. The State authorities have implemented the aforesaid orders passed by this Court in the aforesaid Districts hence, the employees/petitioners working in the Kheda District cannot be discriminated and they are also liable to be treated equally. 10. As regards the submissions advanced by the learned advocate Mr.Ahuja for respondent No.3 with regard to disentitlement of the petitioners for regularization since they have not cleared the Hindi examination, the same does not merit acceptance since no provision of Rule or Regulation is shown stating that if an employee has not cleared Hindi examination, he cannot be conferred the benefits of regularization or regular pay. In absence of such provision of Rules or Regulations, the petitioners cannot be denied the benefit of regularization. 11. In absence of such provision of Rules or Regulations, the petitioners cannot be denied the benefit of regularization. 11. The Coordinate Bench of this Court in the aforesaid judgment dated 10.08.2016 passed in Special Civil Application No.6289 of 2011, while granting reliefs to the Multi Purpose Health Workers (Male), has distinguished the aforesaid judgment of the Division Bench dated 20.07.2010 passed in Letters Patent Appeal No.85 of 2010 and has issued the directions to the State authorities to confer the benefits of regularization from the initial date of appointment. The aforesaid judgment is implemented by the State authorities and hence, judgment passed by the Division Bench in Letters Patent Appeal No.85 of 2010 will not come to the rescue of the respondents. 12. Under the circumstances, the respondents are directed to confer the similar benefits, which are conferred to the Multi Purpose Health Workers (Male) of Rajkot, Junagadh, Sabarkantha and Valsad Districts, to the petitioners working in Kheda District. Appropriate similar orders may be passed in the case of the present petitioners also. Necessary orders shall be passed within a period of two months from the date of receipt of the order of this Court. 13. Since the main matter is disposed of, Civil Applications would not survive. Hence, disposed of accordingly.” 13. The Division Bench in appeal in Letters Patent Appeal No.217 of 2021 by an order dated 09.02.2021 dismissed the appeal and the order in appeal reads as under: “1. We have heard Shri H.S.Munshaw, learned counsel for the appellants in both the appeals, Shri Gautam Joshi, learned Senior Advocate assisted by Shri Vyom Shah, learned counsel for the Caveators in Letters Patent Appeal No.217 of 2021, Shri Ramnandan Singh, learned counsel for the Caveator in Letters Patent Appeal No.216 of 2021, Shri Dharmesh Devnani, learned Assistant Government Pleader for the State respondents in Letters Patent Appeal No.217 of 2021 and Ms.Shruti Pathak, learned Assistant Government Pleader for the State respondents in Letters Patent Appeal No.216 of 2021. 2. 2. The learned Single Judge after examining the material facts on record came to the conclusion that the writ petitioner who was appointed in the early nineties under an appointment order on a regular scale continued to receive all the benefits admissible to him including increments, Dearness Allowances and all other benefits till 2012 when he is said to have passed one examination, whereafter he was given a contractual appointment of 5 years on a fixed pay of Rs.4,500/-. On such facts the learned Single Judge vide judgment dated 05.12.2019 allowed Special Civil Application No.15228 of 2012 and granted him the benefits of past service from the initial date of appointment treating him in continuous service in terms of the judgment dated 10.08.2016 passed in Special Civil Application No.6289 of 2011. The judgment in the case of Special Civil Application No.6289 of 2011 related to District Junagadh. The said judgment has since been accepted by the Government and duly implemented. 3. Insofar as the other appeal is concerned that is arising out of Special Civil Application No.13519 of 2011, again the learned Single Judge relied upon the judgment dated 10.08.2016 in Special Civil Application No.6289 of 2011 and extended the same benefits to the writ petitioners therein. It is also recorded by the learned Single Judge that the Multupurpose Health Workers (Male) who are working in Rajkot, Junagadh, Sabarkantha and Valsad have already been extended the benefits and their services have been regularized from the initial date of appointment. As such, the present writ petitioners belonging to District Kheda would also be entitled to the same benefits. Apparently we do not find any infirmity in the orders passed by the learned Single Judge. 4. We may further note here the submission of Shri Munshaw referring to two judgments of the Division Bench dated 19.07.2016 in Letters Patent Appeal No.507 of 2016 arising out of Special Civil Application No.2344 of 2014 and the judgment dated 20.07.2010 in Letters Patent Appeal No.85 of 2010 arising out of Special Civil Application No.8611 of 2009, based upon which he submits that the Multipurpose Health Workers (Male) were not extended the benefits which have been given to the present petitioners. We have perused both the judgments and we find that they were based on different set of facts and the initial appointment of those Multipurpose Health Workers were contractual in nature unlike the present petitioners who were given regular appointment on fixed term and conditions. 5. Learned counsels for the respondents state that they are entitled to the benefits of regularization from 15.04.1995 and not from any earlier date because they are working continuously from the said date and prior to it in their appointments there were certain breaks. This honest submission of the learned counsels for the respondents is noted and the appellants would implement the order of the learned Single Judge accordingly. 6. It has also been pointed out by the learned counsels for the respondents that the Division Bench of this Court vide judgment dated 10.08.2017 passed in Letters Patent Appeal No.1263 of 2016 arising out of group of petitions led by Special Civil Application No.11477 of 2015 dismissed the appeal of the State against the judgment of the learned Single Judge extending similar benefits as has been done in the present case. 7. In view of the above, we do not find any merit in these appeals and they are accordingly dismissed. Consequently, the connected Civil Applications stand disposed of.” 14. Obviously therefore, a repeated attempt made by the learned counsel for the Panchayat in seeking to distinguish these advertisements fails in as much as several Division Benches have affirmed the orders in appeal on similar advertisements. 15. In light of this, we dismiss Letters Patent Appeal No.979 of 2017. Obviously the directions of the learned Single Judge in directing the Panchayat to give permanent appointment to the petitioners in the pay scale of Rs.3050-4590/- from the date of initial appointments by the District Panchayat will accordingly operate. 16. For the reasons stated above in LPA No.979 of 2017, the judgement and order of the learned Single Judge dated 06.10.2016 in Special Civil Application No.3660 of 2010 is quashed and set aside. LPA No.526 of 2022 is allowed with directions similar to the ones issued in LPA No.979 of 2017. 17. Orders accordingly.