C/SCA/19512/2022 ORDER DATED: 27/02/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 19512 of 2022
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KANTILAL AMBALAL PRAJAPATI
Versus
STATE OF GUJARAT
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Appearance:
MR DIPAK R DAVE(1232) for the Petitioner(s) No. 1
MR KRUTIK PARIKH, AGP GOVERNMENT PLEADER for the Respondent(s)
No. 1,3
MR HS MUNSHAW(495) for the Respondent(s) No. 2
NOTICE SERVED for the Respondent(s) No. 4
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 27/02/2023
ORAL ORDER
1. By way of present petition, the petitioner has prayed for the following prayers:-
8(A) be pleased to issue a writ of mandamus and/or a writ in the nature of mandamus and/or any other appropriate writ, order or direction to
(i) hold and declare that petitioner is entitled to the benefits of Government Resolution dated 17.10.1988 and further be pleased to direct the respondents to treat the petitioner as permanent employee after completion of 10 years of service and he shall be held eligible to get all the benefits of permanent employees Page 1 of 6 Downloaded on : Fri Mar 03 20:35:16 IST 2023 C/SCA/19512/2022 ORDER DATED: 27/02/2023 including regular pay-scale on the date when the petitioner completed 10 years of service i.e. 01.05.1995;
(ii) direct the respondents to extend all the benefits of regular post with regular pay-scale in favour of the petitioner from the date the petitioner has completed 10 years of service i.e. 01.05.1995;
(iii) direct the respondents to pay difference of salary to the petitioner with interest after placing the petitioner in pay-scale after completion of 10 years of service i.e. 01.05.1995;
(B) pending the admission, hearing and final disposal of this petition, be pleased to direct the respondents to immediately place the petitioner in regular pay-scale as per the Government Resolution dated 17.10.1988.
(C) any other and further relief or reliefs to which this Hon'ble Court deemed fit, in the interest of justice, may kindly granted;
2. Heard Mr. Dipak Dave, learned advocate appearing for the petitioner; Mr. H.S. Mundhaw, learned advocate appearing for the respondents no.2, 3 & 4; and Mr. Krutik Parikh, learned advocate appearing for the respondent no.1. Page 2 of 6 Downloaded on : Fri Mar 03 20:35:16 IST 2023
C/SCA/19512/2022 ORDER DATED: 27/02/2023
3. Learned advocate appearing for the petitioner submits that the grievance raised in the present petition is that the respondent authority has not extended the benefits of the Government Resolution dated 17.10.1988 to the petitioner. It is the case of the petitioner that the petitioner has continuously and uninterruptedly worked with the respondent and for more than 10 years and even then, he has not been paid adequate salary and also, kept on exploitative terms and till date kept as a daily wager.
4. Learned advocate appearing for the petitioner submitted that despite repeated resolutions passed by the respondents and also, pronouncements by this Court as well as of the Hon'ble Apex Court, by which, the Court have granted the benefits to the employees like the present present petitioner, the benefit of fix pay, pay-scale and permanency, till date the petitioner has not extended any benefit. He further submits that the petitioner is serving as a peon since 01.05.1985 with respondent no.4. He has further submitted that now the petitioner has completed 37 years continuously and uninterruptedly service with the respondent no.4. He has Page 3 of 6 Downloaded on : Fri Mar 03 20:35:16 IST 2023 C/SCA/19512/2022 ORDER DATED: 27/02/2023 further submitted that the salary bill of the petitioner for the month of February, 2022 which is paid in March 2022. In the present case, the petitioner has paid been paid daily wage of Rs.268/- alongwith Rs.36/- as special allowances under the Minimum Wages Act.
5. He has further submitted that as per the certificate dated 29.09.2021 issued by the authority, where his service has been shown as daily-wager. He has submitted that the State Gujarat through Road & Building Division Department has issued one Government Resolution, in which, it has been mentioned that the employees working for more than five years, shall have to be placed in fixed pay. He relied upon various judgments more particularly, the judgment rendered in the case of State of Gujarat Vs. PWD Employees Union and also the judgment of this Court in the case of Rajubhai Abhesing Bhalia Vs. State of Gujarat; Special Civil Application No.3192 of 2019 dated 07.07.2022 as well as the judgment rendered in Letters Patent Appeal No.734 of 2021 dated 17.09.2021 and submitted that in the identical facts and circumstances, this Court had considered the case of identical Page 4 of 6 Downloaded on : Fri Mar 03 20:35:16 IST 2023 C/SCA/19512/2022 ORDER DATED: 27/02/2023 situated persons and granted the benefit.
6. Per contra, Mr. Munshaw, learned advocate appearing for the respondent has contended that the petitioner can approach the Labour Court and he has having alternative remedy and therefore, the present petition is required to be dismissed as he has approached this Court. He further submitted that the petitioner cannot get the benefits of Government Resolution dated 17.10.1988 and if granting benefits of such resolution, will amount to granting the benefit of regularization to a person, who is appointed by way of backdoor entry. It is also contended by Mr. Munshaw that granted such benefits in favour of the petitioner would aslo result into financial burden on the public exchequer and therefore, prays to dismiss the petition.
7. I have considered the rival submission and also perused the memo of petition as well as annexures annexed with the petition and also considered the judgments cited by the petitioner. It is also clearly transpires from the record that the petitioner is serving with the respondent no.4 since last 37 Page 5 of 6 Downloaded on : Fri Mar 03 20:35:16 IST 2023 C/SCA/19512/2022 ORDER DATED: 27/02/2023 years as a peon continuously and uninterruptedly. In view of the judgment of the Hon'ble Apex Court in the case of State of Gujarat Vs. PWD Employees Union (supra) , the Government Resolution dated 17.10.1988 is applicable to all the Departmens of the State. In fact, those employees, who attained eligibility after issuance of Government Resolution shall also be required to be granted the said benefits in the same manner and considering the judgment of this Court Court rendered in Special Civil Application No.3192 of 2019 and Letters Patent Appeal No.734 of 2021 where identical questions decided and therefore, in my view, the present petition is required to be considered.
8. In view of the above facts and circumstances, the present petition stands allowed with no order as to costs. It is expected that the respondent authority shall consider the case of petitioner within ten weeks from the date of receipt of the writ of the order of this Court. Direct service is permitted.
(SANDEEP N. BHATT,J) A. B. VAGHELA Page 6 of 6 Downloaded on : Fri Mar 03 20:35:16 IST 2023