Gujarat High Court
Vinodbhai Shivrambhai Rathod vs State Of Gujarat Thro Secretary on 11 December, 2023
Author: N.V.Anjaria
Bench: N.V.Anjaria
NEUTRAL CITATION
C/LPA/569/2021 ORDER DATED: 11/12/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 569 of 2021
In R/SPECIAL CIVIL APPLICATION NO. 7462 of 2012
With
R/LETTERS PATENT APPEAL NO. 997 of 2021
In
R/SPECIAL CIVIL APPLICATION NO. 4669 of 2012
With
R/LETTERS PATENT APPEAL NO. 738 of 2022
In
R/SPECIAL CIVIL APPLICATION NO. 198 of 2010
With
R/LETTERS PATENT APPEAL NO. 725 of 2022
In
R/SPECIAL CIVIL APPLICATION NO. 196 of 2010
With
R/LETTERS PATENT APPEAL NO. 739 of 2022
In
R/SPECIAL CIVIL APPLICATION NO. 197 of 2010
With
R/LETTERS PATENT APPEAL NO. 568 of 2021
In
R/SPECIAL CIVIL APPLICATION NO. 13882 of 2009
With
R/LETTERS PATENT APPEAL NO. 561 of 2021
In
R/SPECIAL CIVIL APPLICATION NO. 13884 of 2009
With
R/LETTERS PATENT APPEAL NO. 562 of 2021
In
R/SPECIAL CIVIL APPLICATION NO. 134 of 2010
With
R/LETTERS PATENT APPEAL NO. 563 of 2021
In
R/SPECIAL CIVIL APPLICATION NO. 16595 of 2007
With
R/LETTERS PATENT APPEAL NO. 564 of 2021
In
R/SPECIAL CIVIL APPLICATION NO. 17106 of 2007
With
R/LETTERS PATENT APPEAL NO. 565 of 2021
In
R/SPECIAL CIVIL APPLICATION NO. 1972 of 2012
With
R/LETTERS PATENT APPEAL NO. 566 of 2021
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NEUTRAL CITATION
C/LPA/569/2021 ORDER DATED: 11/12/2023
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In
R/SPECIAL CIVIL APPLICATION NO. 3427 of 2010
With
R/LETTERS PATENT APPEAL NO. 567 of 2021
In
R/SPECIAL CIVIL APPLICATION NO. 8844 of 2012
With
R/LETTERS PATENT APPEAL NO. 570 of 2021
In
R/SPECIAL CIVIL APPLICATION NO. 1973 of 2012
With
R/LETTERS PATENT APPEAL NO. 571 of 2021
In
R/SPECIAL CIVIL APPLICATION NO. 8845 of 2012
With
R/LETTERS PATENT APPEAL NO. 572 of 2021
In
R/SPECIAL CIVIL APPLICATION NO. 7469 of 2012
With
R/LETTERS PATENT APPEAL NO. 573 of 2021
In
R/SPECIAL CIVIL APPLICATION NO. 9750 of 2012
With
R/LETTERS PATENT APPEAL NO. 574 of 2021
In
R/SPECIAL CIVIL APPLICATION NO. 12787 of 2009
With
R/LETTERS PATENT APPEAL NO. 575 of 2021
In
R/SPECIAL CIVIL APPLICATION NO. 7468 of 2012
With
R/LETTERS PATENT APPEAL NO. 576 of 2021
In
R/SPECIAL CIVIL APPLICATION NO. 12915 of 2004
With
R/LETTERS PATENT APPEAL NO. 577 of 2021
In
R/SPECIAL CIVIL APPLICATION NO. 9759 of 2012
With
R/LETTERS PATENT APPEAL NO. 578 of 2021
In
R/SPECIAL CIVIL APPLICATION NO. 11045 of 2013
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R/LETTERS PATENT APPEAL NO. 579 of 2021
In
R/SPECIAL CIVIL APPLICATION NO. 9240 of 2012
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NEUTRAL CITATION
C/LPA/569/2021 ORDER DATED: 11/12/2023
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With
R/LETTERS PATENT APPEAL NO. 580 of 2021
In
R/SPECIAL CIVIL APPLICATION NO. 11050 of 2013
With
R/LETTERS PATENT APPEAL NO. 581 of 2021
In
R/SPECIAL CIVIL APPLICATION NO. 8245 of 2012
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R/LETTERS PATENT APPEAL NO. 582 of 2021
In
R/SPECIAL CIVIL APPLICATION NO. 7467 of 2012
==========================================================
VINODBHAI SHIVRAMBHAI RATHOD
Versus
STATE OF GUJARAT THRO SECRETARY
==========================================================
Appearance:
MR SHALIN MEHTA, SR. ADVOCATE assisted by MS ADITI S
RAOL(8128) for the Appellant(s) No. 19
MS VIDHI J BHATT(6155) for the Appellant(s) No. 1
10,11,12,13,14,15,16,17,18,2,20,21,22,23,24,25,26,27,28,2
9,3,30,31,32,33,34,35,36,37,38,39,4,40,41,42,43,44,45,46,
47,48,49,5,50,51,52,53,54,55,56,57,58,59,6,60,61,62,63,64
,65,7,8,9
MR SHALIN MEHTA, SR. ADVOCATE assisted by MR MANOJ
SHRIMALI for the Appellants in LPA No. 738/22, 725/22 and
739/22
MS MANISHA L. SHAH, ADDITIONAL ADVOCATE GENERAL assisted
by MS JINAL ACHARYA, AGP for the Respondent(s) No. 1,2,3
==========================================================
CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIA
and
HONOURABLE MR. JUSTICE CHEEKATI MANAVENDRANATH
ROY
Date : 11/12/2023
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE N.V.ANJARIA) All the Letters Patent Appeals filed by the appellants-original petitioners arise out of common judgment and order dated 21.12.2018 of learned Single Judge.
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2. The Letters Patent Appeal No. 569 of 2021 was treated as lead matter and was considered for arguments.
2.1 The respective Special Civil Applications were heard together before learned Single Judge culminating into the common judgment and order.
2.2 Since the facts are similar and issues identical, this Court also treated for hearing and disposal, these batch of appeals.
2.3 As per the impugned judgment and order, learned Single Judge granted the relief to the petitioners in part holding them to be entitled to the wages at the minimum of the pay-scale at the lowest grade in the regular pay-scale, as extended to the regular employees holding the same post.
2.4 It was provided that the petitioners will not be entitled to arrears of salary for the past services and that the minimum of the pay-scale shall be extended from 1st of January, 2019.
3. The appellants-petitioners happened to be the Class-IV part-time employees working for more than 10 years under respondent no.2- Commissioner, Health, Medical Services and Medical Education Department. They were paid fixed wages of Rs.1350/- per month.
Page 4 of 16 Downloaded on : Tue Dec 12 20:41:54 IST 2023NEUTRAL CITATION C/LPA/569/2021 ORDER DATED: 11/12/2023 undefined 3.1 By filing the respective writ petitions, firstly, it was prayed to set aside the Government Resolution dated 25.04.2012 whereby the termination of services of Class-IV part-time employee was sought to be vacated. It was secondly prayed not to terminate the services pursuant to the Government Resolution dated 25.04.2012 and other attendant orders. It was next prayed that the Government Resolution seeking to terminate the services could not operate retrospectively and that it was unreasonable and not in consonance with the tenets of Articles 14 and 16 of the Constitution.
3.2 In clause (F) of paragraph 16, the lead prayer was made, which was to direct the respondents to consider the cases of the petitioners individually for regularisation of their services in light of paragraph 53 of the decision of the Supreme Court in State of Karnataka vs. Uma Devi [(2006) 4 SCC 1].
3.3 It was on various grounds that the prayer for regularisation on the basis of Uma Devi (supra), was canvassed. The petitioners challenged the Government Resolution dated 10.02.2006 whereby the powers from all the departments to appoint the part-time employees were withdrawn and the said measure was to entail termination of services. It was the case that the petitioners have been serving Page 5 of 16 Downloaded on : Tue Dec 12 20:41:54 IST 2023 NEUTRAL CITATION C/LPA/569/2021 ORDER DATED: 11/12/2023 undefined since long for more than one decade and that displacing them from service was contrary to the principle that adhoc employees could not be replaced by the set of other adhoc persons.
3.4 As stated above, learned Single Judge allowed the petitions partially by directing to grant minimum of the regular pay-scale to the petitioners. The grievance with which these Letters Patent Appeals are filed by the appellants- petitioners is that the relief of regularisation was declined by learned Single Judge.
4. Number of grounds were raised by learned senior advocate Mr. Shalin Mehta assisted by learned advocate Ms. Aditi Raol for the appellants including applicability of the ratio of Uma Devi (supra), in particular, observations in paragraph 53 of the said decision.
4.1 On the other hand, learned Additional Advocate General Ms. Manisha L. Shah assisted by learned Assistant Government Pleader Ms. Jinal Acharya submitted that the relief of regularisation sought for by the petitioners could be said to have been already declined by the Court.
4.1.1 Furthering the submission that the regularisation could not have been claimed by the Page 6 of 16 Downloaded on : Tue Dec 12 20:41:54 IST 2023 NEUTRAL CITATION C/LPA/569/2021 ORDER DATED: 11/12/2023 undefined petitioners, it was submitted by learned Additional Advocate General that against the very judgment and order impugned in this appeals, State had preferred Letters Patent appeal No. 1155 of 2019 and other allied appeals by contending that even the relief of giving the minimum of pay-scale was not required to be granted for the petitioners.
4.1.2 It was submitted that while the aforementioned Letters Patent Appeals came to be dismissed by judgment and order dated 09.05.2019, from the said decision already on record, it was pointed out by learned Additional Advocate General, in particular from paragraph 13 of the judgment, that the Division Bench observed that the "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".
4.1.3 On the basis of the said observations, it was sought to be contended that the grant of relief to the extent granted to the petitioners was justified and no relief beyond what is granted, namely, the according of minimum of the regular pay-scale, could have been considered in law.
Page 7 of 16 Downloaded on : Tue Dec 12 20:41:54 IST 2023NEUTRAL CITATION C/LPA/569/2021 ORDER DATED: 11/12/2023 undefined 4.1.4 It was also submitted from what is recorded in paragraphs 6 as well as from the order dated 04.02.2010 passed at the interim stage of the proceedings by the Court that it was the only relief about the minimum pay-scale which was pressed and the relief of regularisation was not finally advanced.
4.2 The above submissions were responded to, to be refuted by learned senior advocate for the appellants, by submitting that whatever observations were made by the Letters Patent Bench in Letters Patent Appeal No. 1155 of 2019 and allied appeals, were in the context of challenge by the State in respect of relief grated to the petitioners for payment of minimum pay-scales and that such observations would remain confined to such challenge and limited to the context of the controversy raised by the State.
4.2.1 As regards the pressing of the relief, it was submitted that the petitioners had never given up the relief of regularisation and that what was recorded by the Court was only in the interim order, which could not affect the final claim of the petitioners to assert the rights and relief prayed for in the petitions.
4.3 As this Court proceeds to look at the Page 8 of 16 Downloaded on : Tue Dec 12 20:41:54 IST 2023 NEUTRAL CITATION C/LPA/569/2021 ORDER DATED: 11/12/2023 undefined impugned judgment and order of learned Single Judge and to analyise the same in the context of the relief now sought to be asserted by the appellants- petitioners for regularisation in service, certain material aspects stand figured out.
4.3.1 In paragraph 15 of the decision, learned Single Judge has observed that the work for which the petitioners have been engaged is of perennial nature. The grievance of the petitioners to seek relief has arisen in view that the authorities adverted to the method of outsourcing the employees, replacing the petitioners. In that regard, it was observed by learned Single Judge that outsourcing the work being done by the petitioners is an unfair labour practice, besides being an unsound and unreasonable policy.
4.3.2 It was therefore found that in that light, the policy resolutions of the government dated 10.02.2006 and 25.04.2012 to outsource the employees with consequential termination of the services of the petitioners was needed to be considered seriously.
4.4 Viewing the controversy with such preface and further considering the long period of service the petitioners have put in, learned Single Judge in paragraph 20, referred to paragraph 53 of the Page 9 of 16 Downloaded on : Tue Dec 12 20:41:54 IST 2023 NEUTRAL CITATION C/LPA/569/2021 ORDER DATED: 11/12/2023 undefined judgment of the Supreme Court in Uma Devi (supra), to observe thus, "In the present case, the petitioners were fulfilling the requisite conditions as stated in para-53 of the aforementioned decision for being regularized or absorbed in service. All the petitioners, in this group of petitions, who have put in ten or more years of service, whether in the Sale Tax Department or the Health and Family Welfare Department, are entitled to One-time Regularization, in terms of para 53 of Uma Devi (supra). It appears that rather than implementing the decision of the Hon'ble Apex Court, the respondents have adopted this method of get rid of employees by passing the impugned resolution."
4.4.1 It could be contended on behalf of the petitioners on the basis of the aforesaid observations that learned Single Judge was inclined to apply the principles in Uma Devi (supra) to the facts of the case of the petitioners.
4.5 In the subsequent discussion, learned Single Judge referred to the decision of the Supreme Court in Nihal Singh and others vs. State of Punjab [(2013) 14 SCC 65], to observe that even if the sanctioned posts were not available and the employees were continued for unbearably long on the same status of daily-rated or part-timers, every sovereign government has within its own jurisdiction right and power to create whatever public offices it may regard as necessary for the Page 10 of 16 Downloaded on : Tue Dec 12 20:41:54 IST 2023 NEUTRAL CITATION C/LPA/569/2021 ORDER DATED: 11/12/2023 undefined proper functioning of the administration.
4.5.1 It was came to be observed by learned Single Judge on the basis of the said principle that "if the State Government fails to create posts, the employees working for years on such posts without sanctioning cannot be made to suffer for the inaction of the Government." Sanction would have to be presumed in such cases so that the employees do not suffer for the wrong of the Government. It was further observed that "the State Government cannot be allowed to argue that there was no sanction at all for the part-timers who are working in the various departments of the Government for ten or more years".
4.6 It was asserted by learned senior advocate that learned Single Judge recorded thus, "the petitioners in this group of petitions are eligible for One-time regularization under Uma Devi (supra)."
4.7 The reasoning of learned Single Judge thereafter proceeded, wherein the directions of the Court in Letters Patent Appeal No. 107 of 2007, came to be quoted, "25. It could be seen that this Court vide order dated 16.12.2009, while granting mandatory reinstatement, by way of interim relief, in favour of the petitioners, who were Page 11 of 16 Downloaded on : Tue Dec 12 20:41:54 IST 2023 NEUTRAL CITATION C/LPA/569/2021 ORDER DATED: 11/12/2023 undefined terminated because of outsourcing, observed that it is a settled law that employer cannot replace an ad hoc employee by another ad hoc employee, as laid down by the Hon'ble Supreme Court in the case of Uma Devi (supra)."
4.8 The principle that the adhoc employees cannot be replaced by another set of adhoc employees was highlighted in paragraph 26, "26. Hon'ble Supreme Court in the case of Uma Devi (supra) and in a catena of decisions rendered prior to Uma Devi (supra) has consistently held that ad hoc employees cannot be replaced by another set of ad hoc employees. The scheme of the State Government while outsourcing the job of the petitioners through contractors is nothing but replacement of the petitioners by another set of ad hoc employees which cannot be permitted."
4.8.1 Learned Single Judge thereafter applied the principle of equal pay for equal work on the basis of decision of the Supreme Court in State of Punjab vs. Jagjit Singh [(2017) 1 SCC 148]. It was observed by highlighting the principles to apply the doctrine of equal pay for equal work that the contention of learned Government Pleader about grant of minimum pay-scale, though disputed, was not meritorious.
4.9 In the facts of the case thereafter, learned Single Judge held that the petitioners approached the Court in the year 2012, that they had put in Page 12 of 16 Downloaded on : Tue Dec 12 20:41:54 IST 2023 NEUTRAL CITATION C/LPA/569/2021 ORDER DATED: 11/12/2023 undefined long years of service and that the law laid down by the Apex Court in the judgements referred to about relief for grant of minimum pay-scale was the relief liable to be considered for the petitioners.
5. The reasons are the soul of any judicial pronouncement. The reasons show the aspects and elements that have gone into in the decision making process. The reasons reflect the mind of the adjudicator. They represent the application of mind by a judge. The reasons show the element of rationale underlying the final decision. It is always that the reasons go to the root for the justification for conclusion reached by the Court.
5.1 While throughout the judgment, learned Single Judge proceeded that the reasons and reasoning highlighted as above, in second unnumbered paragraph of para 30 of the decision, following reason was supplied by learned Single Judge, "Even otherwise, the arguments raised by the learned Government Pleader cannot be stretched further as it is always the discretion of the Court to mold the relief depending upon the facts and circumstances of the case. The reliefs claimed in clause (F) seeking regularization is nothing but parity with regularly selected IV employees. As this Court is convinced with the judgment given by the Apex Court in the case of State of Punjab vs. Jagjit Singh (supra), the relief prayed for by the petitioners can be modified accordingly."
Page 13 of 16 Downloaded on : Tue Dec 12 20:41:54 IST 2023NEUTRAL CITATION C/LPA/569/2021 ORDER DATED: 11/12/2023 undefined 5.2 At this juncture, while examining the merits of the decision of learned Single Judge as well as the merits of the rival contentions, the Court is willing not to go into any part of the submissions of the either side except the above reasoning, which has weighed with learned Single Judge in limiting the relief of grant of minimum pay-scale to the appellants-petitioners.
6. Admittedly, the prayer was for regularisation of the petitioners by pressing the principles laid down by the Supreme Court in Uma Devi (supra). It was a relief claimed for in clause (F) of the relief paragraph in the petition. While declining the said relief, learned Single Judge, as quoted above, viewed that "the reliefs claimed in clause (F) seeking regularization is nothing but parity with regularly selected Class IV employees".
6.1 This Court is not accepting the above proposition of law inasmuch as the relief of regularisation on one hand and the relief of payment of minimum pay-scale to any employee are two distinct reliefs. It could not be said that the relief of regularisation is nothing but parity with regularly selected Class IV employees. Relief of regularisation is a higher relief.
6.2 The petitioners have claimed the relief, Page 14 of 16 Downloaded on : Tue Dec 12 20:41:54 IST 2023 NEUTRAL CITATION C/LPA/569/2021 ORDER DATED: 11/12/2023 undefined which resulted into grant of lesser relief by learned Single Judge of payment of minimum of wages. It is this grievance, which has brought the petitioners before this Court by way of this group of Letters Patent Appeals.
6.3 Therefore, as would be noticed, it is the above reasoning, which has resulted into denial of relief of regularisation to the petitioners.
6.4 As the said reasoning, to be stated at the cost of repetition that learned Single Judge perceived the relief of regularisation to be at par with the relief of grant of minimum pay-scale, would not hold good. It is held that the aforesaid reasoning is not correct and shall be reexamined by learned Single Judge by rendering the decision afresh.
6.5 In order to enable learned Single Judge to decide afresh, on the limited ground as above, the judgment of learned Single Judge deserves to be set aside. It is accordingly set aside and learned Single Judge is directed to decide the aspect of said relief afresh and render decision thereon as expeditiously as possible.
6.6 It is clarified that this Court has not gone into any other aspect except the above limited reasoning to hereby direct to remit the case to Page 15 of 16 Downloaded on : Tue Dec 12 20:41:54 IST 2023 NEUTRAL CITATION C/LPA/569/2021 ORDER DATED: 11/12/2023 undefined learned Single Judge for decision afresh.
6.7 All the contentions for both the sides including those raised herein, including the acquiescence and refutation thereof, are kept open to raised to be decided in accordance with law.
7. The appeals are allowed to the aforesaid extent.
(N.V.ANJARIA, J) (CHEEKATI MANAVENDRANATH ROY, J) BIJOY B. PILLAI Page 16 of 16 Downloaded on : Tue Dec 12 20:41:54 IST 2023