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2024 DIGILAW 509 (GUJ)

Sirajbhai Abdulbhai Bhatti v. State Of Gujarat

2024-03-12

HEMANT M.PRACHCHHAK

body2024
JUDGMENT : 1. Present petition is filed by the petitioner under Article 226 of the Constitution of India for the following reliefs. (A) Your Lordships may be pleased to issue a writ of certiorari or any other appropriate writ, order or direction declaring inaction on the part of the respondent authorities in regularizing the service of the petitioner and extending him the benefits under the Government Resolution dated 17.10.1988 as bad in law, illegal, arbitrary, capricious opposed to the mandate of the Directive Principles contained in Articles 38, 39, 41, 42, 43 and 47 of the Constitution, as also violative of Articles 14, 16 and 17 of the Constitution of India; (B) Your Lordships may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction commanding the respondent authorities to regularize the service of the petitioner and grant him the benefits as contained in Government Resolution dated 17.10.1988 from the date he became eligible for the benefit under the Resolution on completion of 5/10/15 years of service as the case may be; (C) Your Lordships may be pleased to issue a writ of certiorari or any other appropriate writ, order or direction declaring the action on the part of the respondent authorities in not paying minimum wages to the petitioner as illegal, discriminatory, arbitrary, contrary to the principles of equal pay for equal work under Article 39(d) and is, thus, violative of his fundamental rights guaranteed under Articles 24, 26, 21 and 23 of the Constitution; (D) Your Lordships may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction directing the respondents to pay the petitioner minimum wages right from the date of his joining the service at the rate prevalent in the State from time to time; (E) Pending final hearing of the present petition, Your Lordships may be pleased to direct the respondent authorities to pay the petitioner the minimum wages prevalent in the State with immediate effect; (F) Pending final hearing of the present petition, Your Lordships may be pleased to restrain the respondent authorities from terminating the services of the petitioner otherwise than in accordance with law or taking any coercive action against him; and (G) Your Lordships may be pleased to pass any other and/or further order, as deemed fit, in the interest of justice. 2. 2. The facts of the present petition are that the petitioner was appointed as a daily wage driver on 16.09.2003 at Primary Health Centre, Lambadiya and getting his monthly wages calculated on the basis of daily wage. That by notification dated 26.12.2014, the Labour and Employment Department, Government of Gujarat revised the minimum wages payable to the employees working in the Panchayats and from 2015 the respondent – authorities started paying Rs.2500/- per month to the petitioner. It is the case of the petitioner that besides submitting to the respondent authorities time and again that he may be absorbed in the permanent establishment with regular pay scale and other allowances and benefits that a regular employee gets, he made a representation to the Chief District Health Officer, Sabarkantha District Panchayat. It is also the case of the petitioner that no positive response has been given by the respondent – authorities and thus being aggrieved by inaction in not absorbing the petitioner in permanent establishment, granting the benefits of Government Resolution dated 17.10.1988 and granting the minimum wages prevalent in the State, he has preferred the present petition. 3. Heard Mr.Shalin Mehta, learned senior counsel with Ms.Aditi Raol, learned counsel appearing for the petitioner, Mr.Jay Trivedi, learned Assistant Government Pleader appearing for respondent No.1 and Mr.Manish Patel, learned counsel appearing for respondents No.2 to 5. 4. Mr.Shalin Mehta, learned senior counsel has submitted that the petitioner was appointed on 16.09.2003 as a daily wage driver at Primary Health Centre, Lambadiya and he is continuously serving with the District Panchayat, Sabarkantha at Himmatnagar. He has submitted that the petitioner is originally appointed by the District Panchayat and he has completed the service for more than 20 years as a driver and, therefore, it is subsequent policy of the State Government which is referred to and relied upon by the respondents, the case of the petitioner cannot be denied. Mr.Mehta, learned senior counsel has, while referring and relying upon the decisions of the Hon’ble Court as well as this Court in the case of State of Gujarat and others Vs. PWD Employees’ Union and others reported in 2013 (8) Scale 579 and in the case of Kutchh District Panchayat Vs. Mr.Mehta, learned senior counsel has, while referring and relying upon the decisions of the Hon’ble Court as well as this Court in the case of State of Gujarat and others Vs. PWD Employees’ Union and others reported in 2013 (8) Scale 579 and in the case of Kutchh District Panchayat Vs. Mangalbhai K. Ramari and another rendered in Letters Patent Appeal No.1381 of 2015 dated 04.01.2016 and the oral order dated 15.03.2016 passed by this Court (Coram: Hon’ble Mr.justice J. B. Pardiwala) in Ranjit Mansingh Kharvada and others Vs. Ahmedabad District Panchayat and others in Special Civil Application No.6861 of 2014, has submitted that the petitioner is entitled to the benefits flow from the Government Resolution dated 17.10.1988 and such benefits requires to be extended in favour of the petitioner. He has submitted that the present petition deserves to be allowed. 5. Mr.Jay Trivedi, learned Assistant Government Pleader appearing for respondent – State has opposed the petition and submitted that the Court may pass appropriate order. 6. Mr.Manish Patel, learned counsel appearing for the respondents has opposed the petition on the ground that the petitioner was appointed initially by the District Panchayat, but thereafter the salary was paid by Rogi Kalyan Samittee of the village and the grant of which is directly given from the Central Government and it is managed by the said committee. He has referred to and relied upon the affidavit-in-reply and submitted that the appointment of the petitioner is not permanent but an adhoc and has been made by Rogi Kalyan Samittee and no approval has been taken from the Chief District Health Officer. He has submitted that the petitioner may not be compelled to file undertaking to work under the out source agency, except otherwise they have to challenged the policy of the State Government. He has submitted that the petition being meritless deserves to be dismissed. 7. In the case of PWD Employees Union and others (supra), the Hon’ble Supreme Court has observed that the Government Resolution dated 17.10.1988 is applicable to dailywagers working in all the departments of the State of Gujarat. It is also observed that the benefit of Government Resolution dated 17.10.1988 is to be extended to the daily-wagers working in each and every department of the State. The resolution of the State Government dated 17.10.1988 is not limited to any particular department, but it applies to all the departments. 8. It is also observed that the benefit of Government Resolution dated 17.10.1988 is to be extended to the daily-wagers working in each and every department of the State. The resolution of the State Government dated 17.10.1988 is not limited to any particular department, but it applies to all the departments. 8. In the case of Kutchh District Panchayat Vs. Mangalbhai K. Ramari (supra), the Division Bench of this Court has held and observed in para – 6 as under:- “6. The Labour Court has directed for conferment of benefits by the impugned award as per the Government Resolution dated 17.10.1988. We do not find that the learned Single Judge has committed any error in not interfering with the said award. Under the circumstances, no case is made out for interference. Hence, the appeal is dismissed.” 9. In the case of Ranjit Mansingh Kharvada (supra), this Court has held and observed in para-10 as under:- “10. It is true that the benefits flowing from the Government Resolution dated 17.10.1988 are not automatic. An employee will have to fulfill the necessary conditions and on fulfillment of those conditions, he would be ultimately conferred with such benefits. In such circumstances, I except the authorities to undertake an exercise by proper verification of the record of each of the petitioners whether the necessary requirements are fulfilled or not. Let such exercise be undertaken at the earliest and completed within a period of 3 months from the date of receipt of a writ of this order, and necessary orders in writing shall be passed about the applicability of the Government Resolution and each of the petitioner shall be informed about the same in writing.” 10. This Court has considered the submissions canvassed by the learned counsel appearing on behalf of both the sides and considered the affidavit-in-reply and facts of the case and the decisions cited at the Bar and perused the material on record. It is admitted in the affidavit-in-reply that initially the appointment of the petitioner was made by the District Panchayat in 2003 and such policy is come in force in 2010 and, therefore, the petitioner is regular employee of the District Panchayat and he has given subsequent scale and, therefore, he is not entitled for the benefits flow from the Government Resolution dated 17.10.1988. In fact, it appears from the affidavit-in-reply that there is no force in such contention raised on behalf of the respondents as it is an admitted fact that the petitioner was appointed on 16.10.2003 by the District Health Officer as driver. The policy which is referred to and relied upon by the respondents is come into force in 2010, so the same cannot run retrospectively, the petitioner cannot be termed as employee of that particular scheme appointed by the committee. Considering the grounds raised in the petition as well as facts and circumstance of the case and the decisions of the Hon’ble Supreme Court as well as this Court, the petition deserves to be allowed. 11. For the foregoing reasons, the present petition is allowed. The petitioner is entitled to get the benefits flowing from the Government Resolution dated 17.10.1988 as per the order passed by the Division Bench of this Court in Kutchh District Panchayat Vs. Mangalbhai K. Ramari (supra). The respondents are directed to pay all consequential benefits on the basis of the calculation as per the Government Resolution dated 17.10.1988 within a period of six months from the date of receipt of a writ of this order, and necessary orders in writing shall be passed about the applicability of the Government Resolution and the petitioner shall be informed about the same in writing. Rule is made absolute. Direct service is permitted. There shall be no order as to costs.