Research › Search › Judgment

Gujarat High Court · body

2024 DIGILAW 1983 (GUJ)

PUSHPABEN PRAKASHBHAI BANKER v. STATE OF GUJARAT

2024-10-24

VAIBHAVI D.NANAVATI

body2024
JUDGMENT : VAIBHAVI D. NANAVATI, J. 1. By way of present petition, the petitioner herein has prayed for the following reliefs: “(A) Your Lordships may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, direction or order directing the respondents to treat the petitioner at par with the group of 335 employees, in all respect, in view of the judgment passed in First Appeal 2527/1994. (B) Be pleased to direct the respondent authorities to regularise the services of the petitioner (at par with group of 335 employees), and to consider her case for appointment in the regular pay scale on the available vacancy, as per her serial number in the list according to the judgment in F.A. No. 2527/94 from the date such vacancy was available, with all consequential benefits such as pay fixation, arrears of salary, seniority and other consequential benefits. (C) Be pleased to allow this petition with costs and be pleased to quatify the costs. (D) Be pleased to grant such other and further reliefs as maybe deemed just and proper by the Hon’ble Court in the facts and circumstances of the case.” 8. Pending admission hearing and final disposal of this petition be pleased to direct the respondents to place before this Hon’ble Court the number of vacancies available and the serial number of the last person appointed in regular pay scale from the said list.” 2. Heard Mr. Vaibhav V. Goswamy, learned advocate for Mr. Vilas G. Goswamy, learned advocate appearing for the petitioner and Ms. Suman Motla, learned AGP appearing for the respondents. 3. The petitioner herein is aggrieved by the action on the part of the respondents in not considering the case of the petitioner at par with the existing group of 335 persons, who were working as Badli workers, after placing the petitioner along with other 41 employees at the end of the list of Badli workers in the list of 1989 as per the direction issued in First Appeal No. 2527 of 1994. Further, under the guise of bringing the petitioner under the scheme for regularization, the salary of the petitioner was reduced from that which she was received as Badli worker. 4. Mr. Vaibhav V. Goswamy, learned advocate for Mr. Further, under the guise of bringing the petitioner under the scheme for regularization, the salary of the petitioner was reduced from that which she was received as Badli worker. 4. Mr. Vaibhav V. Goswamy, learned advocate for Mr. Vilas G. Goswamy, learned advocate appearing for the petitioner, submitted that the petitioner herein is constrained to approach this Court in view of the fact that the respondent authority was required to comply with the directions issued in First Appeal No. 2527 of 1994 and appoint the petitioner in terms of the said order in accordance with the Government Resolution dated 21.07.1989 whereby, 163 Badli workers having completed 365 days were to be adjusted on regular posts as per rules and no Badli worker was to be appointed after 01.04.1984 and the Badli workers were to be appointed on the vacant posts in the list dated 01.04.1984 as per rules. 4.1 Placing reliance on the Government Resolution dated 21.07.1989, it is submitted that the petitioner herein was in the list of those employees and the services of the petitioner were required to be regularized upon completion of 365 days however, in absence of the aforesaid exercise undertaken by the respondent authorities, the petitioner herein has approached this Court for the reliefs as referred above. It is submitted that the petitioner herein came to be appointed as Badli worker on 21.05.2005 duly produced at page 79 however, the petitioner was within the ambit of Government Resolution dated 21.07.1989 and the services of the petitioner were required to be regularized along with the other employees. However, the others are appointed, the petitioner is not considered for the appointment. In light of the aforesaid, it is submitted that the prayers, as prayed for, be allowed. 5. Ms. Suman Motla, learned AGP appearing for the respondent-State, at the outset, submitted that the petitioner herein came to be appointed as a Badli worker on 21.05.2005 w.e.f. 02.08.2003 duly produced at page 79. It is submitted that upon completion of 10 years, the services of the petitioner came to be regularized by Resolution dated 13.05.2015 regularizing services of the petitioner and other employees giving effect from 2013 because the petitioner completed 10 years of service considering 02.08.2003 as initial date of appointment. The petitioner’s name figures at serial No. 21 in the said list. The petitioner’s name figures at serial No. 21 in the said list. Reliance is placed on an Office Order dated 12.08.2015 which is placed on record wherein, it is considered that the petitioner was appointed as Badli worker from 02.08.2003 having rendered the service as Class-IV employee in the pay scale of 4440-7440 and grade pay of 1300. The services were regularized w.e.f. 02.08.2013. It is submitted that the respondent authority has acted in accordance with law and no interference is called for and the prayers, as prayed for, may not be granted. 5.1 To substantiate the submissions, Ms. Motla, learned AGP placed reliance on the order passed in First Appeal No. 2527 of 1994, dated 12.10.2000 more particularly, paragraphs 4, 5, 6, 7 and 8. Placing reliance on the directions issued in First Appeal No. 2527 of 1994, it is submitted that the respondent authorities came up with a Notification being Government Resolution dated 25.07.2002 duly produced at page 22, Annexure-B to the petition wherein, the Government Resolution dated 21.07.1989 and the order passed in First Appeal No. 2527 of 1994 dated 12.10.2000 were considered and the present petitioner’s name was included in the list duly produced at page 29 wherein, the petitioner’s name figured at serial No. 29 in the said list. It is submitted that the respondent authorities thereafter, issued an Office Order on 03.08.2002 which is duly produced at page 53, Annexure-D to the petition, taking into consideration judgment dated 12.10.2000 delivered in the First Appeal No. 2527 of 1994 wherein, it was held to append the names of 42 applicants in the Resolution dated 21.07.1989 of Health and Family Welfare. 5.2 Further, reliance is placed on the Government Resolution dated 16.05.2005 more particularly, clause-4 of the said resolution. Pursuant thereto, an office order came to be issued on 21.05.2005 qua the petitioner herein giving effect from 02.08.2003. Placing reliance on the aforesaid, it is submitted that upon completion of 10 years, the petitioner was regularized in service and the petitioner superannuated on 30.06.2024. It is submitted that between 2015 to 2024, all the benefits that are accrued in the interregnum period, are granted to the petitioner and in view thereof, the grievance raised in the present petition as such would not survive and the petition be dismissed. 6. Mr. It is submitted that between 2015 to 2024, all the benefits that are accrued in the interregnum period, are granted to the petitioner and in view thereof, the grievance raised in the present petition as such would not survive and the petition be dismissed. 6. Mr. Goswamy, learned advocate appearing for the petitioner, reiterated the contentions raised earlier and substantiated that the services of the petitioner were required to be regularized upon completion of 365 days in accordance with the Government Resolution dated 21.07.1989. In view thereof, as such the respondent authority has failed to comply with the order passed in First Appeal No. 2527 of 1994, dated 12.10.2000. 7. Having heard the learned advocates appearing for the respective parties, it emerges that the petitioner herein is seeking compliance of the order passed in First Appeal No. 2527 of 1994, dated 12.10.2000; the petitioner herein being included at the bottom of the list of 335 persons whose services were directed to be regularized and who are the Badli workers in the list of 1989 which was operated for such placement and the group of 42 persons were directed to be treated at par with the existing 335 persons on certain conditions. 8. To arrive at a final conclusion, it is apposite to refer to paragraphs 4, 5, 6, 7 and 8 of the order passed in First Appeal No. 2527 of 1994, dated 12.10.2000: “4. It is pertinent to note that the list of 1989 is a list of Badli workers, the primary utility of which is to offer work of a casual or a temporary nature to daily wagers according to the exigencies of the situation, and such offer of work is to be made to those persons who find a place on this list, according to the serial number of that person on the list. When the 42 appellants are placed at the end of the list (at present there are 335 names on the list), the first of the appellants would have a right to be offered work of casual nature as a daily wager, only if the 335 persons above him are not available to accept such work on any given day. When the 42 appellants are placed at the end of the list (at present there are 335 names on the list), the first of the appellants would have a right to be offered work of casual nature as a daily wager, only if the 335 persons above him are not available to accept such work on any given day. Merely offering work of this nature to a person placed on the list, provided the offer is made as per the serial number on the list, cannot possibly work to the prejudice of the establishment or administration. 5. The only other utility of this list is for filling in the vacancies of regular employees in class IV, as and when such vacancies occur (apart from the prescribed mode of direct recruitment). For this purpose offers would be made to persons placed on the list as per the serial number on the list. However, regular appointment would only be given and confirmed subject to other applicable criteria being met. Thus, a person on the list has no absolute right of being appointed to a regular vacancy, but only a right to be considered. Even in this situation if the 42 appellants are placed below the 335 names presently on the list, cannot possibly work to the prejudice of respondent nos. 1 and 2, or even respondent no. 3. 6. For the reasons aforesaid, I am satisfied that this approach would put an end to the entire controversy at hand and would moreover avoid further litigation. 7. It is, therefore, directed that the 42 appellants be placed at the end of the list of Badli workers in the list of 1989 presently being operated, and that after such placement, this group (of 42 persons) shall be treated at par with the existing group (of 335 persons) and shall be subject to the same rights and obligations. 8. This appeal is accordingly disposed of with no order as to costs. Decree accordingly.” 9. While passing the aforesaid order, as referred above, it was stated that only utility of the this list is for filling the vacancies of regular employees in Class-IV, as and when such vacancies occur (apart from the prescribed mode of direct recruitment). For the aforesaid purpose, offers would be made to the persons placed on the list as per the serial number on the list. For the aforesaid purpose, offers would be made to the persons placed on the list as per the serial number on the list. However, the regular appointment would only be given and confirmed subject to other applicable criteria being met. Thus, the person on the list has no absolute right of being appointed to a regular vacancy but, only a right to be considered. Even in this situation, if the 42 appellants are placed below the 335 names, cannot possibly work to the prejudice of the respondent Nos. 1, 2 or 3. 10. In light of the aforesaid, the respondent authority issued the Government Resolution dated 25.07.2002. It is apposite to refer to the said Government Resolution dated 25.07.2002, which reads thus: (true translation) “A transfer list of the employees dated 01/04/1984 was published vide the resolution dated 21/07/1989 of the department referred above at S. No. (1). Tulsiben Parsottamdas and others filed First Appeal No. 2527/1994 in the High Court of Gujarat seeking inclusion of their names in the said list. The High Court, in its oral Judgment dated 12/10/2000, passed an order to append the names of the 42 applicants in the transfer list published vide the resolution dated 21/07/1989 of the department. Mrs. Maniben Mooljibhai Maheria filed SCA No. 12523/2000 in the High Court seeking injunction against the said Judgment. During hearing of the case, the High Court, vide its order dated 07/12/2000, passed an interim order restraining finalisation of the transfer list till 20/12/2000 as per the Judgment dated 12/10/2000 in First Appeal No. 2527/1994. The injunction was extended till 31/08/2001. Thereafter, along with the case of Maniben M. Maheria v. State of Gujarat, Mr. Rajnikant M. Maheria filed SCA No. 7384/2001 in the High Court on 05/09/2001 and obtained an interim order for not including the names of the 42 (forty-two) applicants in the transfer list. The interim order remained in force till 27/12/2001. The Hon’ble High Court vacated the injunctions issued in SCA No. 7384/2001 and First Appeal No. 2527/1994 on 27/12/2001 and 12/10/2000 respectively. Thus, the order dated 12/10/2000 passed in First Appeal No. 2527/1994 by the High Court needs be complied with. After careful consideration in this connection, the Government has resolved to append the names of the 42 applicants in the resolution dated 21/07/1989 of the department referred above at Sr. Thus, the order dated 12/10/2000 passed in First Appeal No. 2527/1994 by the High Court needs be complied with. After careful consideration in this connection, the Government has resolved to append the names of the 42 applicants in the resolution dated 21/07/1989 of the department referred above at Sr. No. (1) as per the judgment dated 12/10/2000 of the High Court in First Appeal No. 2527/1994. The conditions of the said resolution dated 21/07/1989 shall be applicable to the 42 (forty-two) employees. It is resolved that the names of the candidates shown in Appendix-A are included subject to obtaining an undertaking in writing from the candidates that the final Judgment in the LPA filed by the Government challenging the Judgment passed by the High Court in First Appeal No. 2527/1994 on 12/10/2000 shall remain binding upon them.” 11. The aforesaid Government Resolution dated 25.07.2002 includes the name of the petitioner at serial No. 29. Pursuant thereto, the said list was operated and an Office Order came to be passed on 03.08.2002 giving effect to the said Resolution. The Government Resolution came to be issued on 16.05.2005 and the appointment order came to be given on 21.05.2005 giving effect from 02.08.2003. Upon completion of requisite period of 10 years, the services of the petitioner came to be regularized by Resolution dated 13.05.2015 and order came to be passed to the said effect on 12.08.2015 regularizing the services of the petitioner herein giving effect from 02.08.2013 considering the appointment from 02.08.2003. The petitioner herein is also superannuated on 30.06.2024. 12. At this stage, it is apposite to refer to the ratio laid down by the Hon’ble Supreme Court in case of Sarvepalli Ramaiah (Dead) as per Legal Representatives & Ors. vs. District Collector, Chittoor District & Ors. (2019) 4 SCC 500 . Paragraphs 43 and 44 of the said decision read thus: “43. A decision may sometimes be set aside and quashed under Article 226 on the ground of illegality. This is when there is an apparent error of law on the face of the decision, which goes to the root of the decision and/or in other words an apparent error, but for which the decision would have been otherwise. 44. Judicial review under Article 226 is directed, not against the decision, but the decision making process. This is when there is an apparent error of law on the face of the decision, which goes to the root of the decision and/or in other words an apparent error, but for which the decision would have been otherwise. 44. Judicial review under Article 226 is directed, not against the decision, but the decision making process. Of course, a patent illegality and/or error apparent on the face of the decision, which goes to the root of the decision, may vitiate the decision making process. In this case there is no such patent illegality or apparent error. In exercise of power under Article 226, the Court does not sit in appeal over the decision impugned, nor does it adjudicate hotly disputed questions of fact.” 13. In the facts of the present case and the position of law, as referred above, in the opinion of this Court, the respondent authority has acted in accordance with law. However, all benefits that are accrue arising out of the aforesaid orders are directed to be extended to the petitioner. 14. The petitioner herein has failed to the show sufficient cause for the Court to interfere and in view thereof, no case is made out to exercise extra-ordinary jurisdiction under Article 226 of the Constitution of India. The present petition stands dismissed accordingly.