NEUTRAL CITATION
C/SCA/4292/2021 ORDER DATED: 20/09/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 4292 of 2021
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MANEKKUMAR RAGHUBHAI DHANKECHA
Versus
STATE OF GUJARAT
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Appearance:
ADITI S RAOL(8128) for the Petitioner(s) No. 1
MS TRUSHA K PATEL(2434) for the Respondent(s) No. 3,4
MR HARDIK SONI, AGP for the Respondent(s) No. 1,2
NOTICE SERVED for the Respondent(s) No. 5
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CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
Date : 20/09/2023
ORAL ORDER
1. Heard learned advocate Ms.Aditi Raol on behalf of the petitioner, learned advocate Ms.Trusha Patel on behalf of respondent nos.3 and 4 and learned Assistant Government Pleader Mr.Hardik Soni on behalf of respondent - State. None appears on behalf of respondent no.5.
2. By way of this petition, the petitioner has sought for the following prayers:-
"(A) Your Lordships may be pleased to issue a writ of certiorari or any other appropriate writ, order or direction declaring impugned letter dated 21.08.2019 from the respondent no.3 rejecting the claim of the petitioner to the benefit of fixed pay of Rs.14,800 in terms of the Finance Department circular dated 16.07.2019 as discriminatory and arbitrary and thus Page 1 of 9 Downloaded on : Mon Sep 25 20:35:27 IST 2023 NEUTRAL CITATION C/SCA/4292/2021 ORDER DATED: 20/09/2023 undefined violative of Articles 14, 16 and 21 of the Constitution of India;
(AA) Your Lordships may be pleased to issue a writ of certiorari or any other appropriate writ, order or direction to quash and set aside communication dated 19.03.2022 issued by Section Officer, Legal Department, State of Gujarat (Annexure-N) by which petitioner's case has been rejected for grant of benefits as per resolution dated 16.07.2019 issued by the Finance Department, Government of Gujarat;
(B) 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 taking the petitioner back in service through an outsourcing agency instead of reinstating him in service in the post from which he was terminated earlier as bad in law, illegal, arbitrary and thus violative of Articles 14, 16 and 21 of the Constitution of India;
(C) Your Lordships may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction commanding the respondent authorities to take the petitioner back in service in the post from which he was terminated earlier and treat his service as a continuous one from the date of his initial appointment in 2008;
(D) Your Lordships may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction commanding the respondent authorities to extend the petitioner the benefits contained in Finance Department circular dated 16.07.2019 by granting him the fixed pay of Rs.14,800 with effect from 01.01.2019;
(E) Pending admission and final hearing of the petition, Your Lordships may be pleased to direct the respondent authorities to pay the petitioner the fixed pay of Rs.14,800 with immediate effect;Page 2 of 9 Downloaded on : Mon Sep 25 20:35:27 IST 2023
NEUTRAL CITATION C/SCA/4292/2021 ORDER DATED: 20/09/2023 undefined (F) Pending admission and final hearing of the matter, Your Lordships may be pleased to restrain the respondent authorities from taking any coercive action against the petitioner or from terminating his services otherwise than in accordance with law; and (G) Your Lordships may be pleased to pass any other and/or further order, as deemed fit, in the interest of justice."
3. It would appear that the petitioner had been originally appointed on part time basis as a peon with the establishment of the Principal Civil Judge, Jamjodhpur vide an order dated 13.06.2008 and whereas, such appointment was on a fixed salary of Rs.1350/- per month. It would appear that from time to time, the amount of salary had been revised and whereas, lastly vide an order dated 15.09.2012, the salary of the petitioner had been revised to Rs.4500/- per month. 3.1. It would further appear that vide an order dated 27.06.2013, the District and Sessions Judge, Jamnagar had done away with the services of the petitioner and such similarly appointed persons w.e.f. 30.06.2013. It also appears that later on vide order dated 09.02.2018, the petitioner came to be appointed as a peon in the very same establishment referred to herein above albeit through outsourcing. 3.2. It would appear that the petitioner while working as Page 3 of 9 Downloaded on : Mon Sep 25 20:35:27 IST 2023 NEUTRAL CITATION C/SCA/4292/2021 ORDER DATED: 20/09/2023 undefined such i.e. through outsourcing agency, has preferred this petition inter alia seeking benefit of the policy of the Government vide resolution dated 16.07.2019. It would appear that the petitioner had initially preferred writ petition being Special Civil Application No.4292/2021 and whereas vide an order dated 06.08.2021, a learned Coordinate Bench of this Court had directed the respondents to consider the case of the present petitioner as well as of the petitioners of allied matters, more particularly, as per the explanation as provided in the very same decision. It was also kept open for the petitioners to challenge the decision more particularly if the decision was adverse to the petitioners. 3.3. It would appear that vide a communication dated 19.03.2022 addressed to the Principal District and Sessions Judge, Jamnagar, the legal department had rejected the request of the petitioner to be paid the benefit as per the policy dated 16.07.2019 more particularly, as it appears from the order, on the ground that the petitioner had been appointed through an outsourcing agency.
4. It would appear that the issue with regard to payment of salary on the minimum of scale even to persons appointed on Page 4 of 9 Downloaded on : Mon Sep 25 20:35:27 IST 2023 NEUTRAL CITATION C/SCA/4292/2021 ORDER DATED: 20/09/2023 undefined outsourcing basis is no more res-integra more particularly a learned Coordinate Bench vide judgment in Special Civil Application No.6852/2020 and allied matters dated 19.07.2022 had been considering the scope and extant of circular dated 16.07.2019 referred to herein above and whereas, it would appear that learned Coordinate Bench had carved out eight different categories as could be made out from the government circular more particularly the categories carved out for the purpose of adjudication and interpretation of the circular. It would appear that category no.4 in the categories stated would be corelatable to the case of the present petitioner namely "Rejection on the ground that the persons working on outsourcing by virtue of the GRs dated 10.02.2006, 01.04.2010 and 25.04.2012 cannot get the benefit of the circular dated 16.07.2019. This included a category of persons engaged on project work."
4.1. It appears that after elaborately discussing the law on this subject, learned Coordinate Bench at paragraph no.21.5 has inter alia observed that in case of persons engaged on outsourcing, the stand of the State being that persons working on outsourcing basis would not be entitled to the Page 5 of 9 Downloaded on : Mon Sep 25 20:35:27 IST 2023 NEUTRAL CITATION C/SCA/4292/2021 ORDER DATED: 20/09/2023 undefined benefit flowing from the circular dated 16.07.2019 which would set at naught the very purpose for which the circular has brought forth.
4.2. It also appears that the said decision had been challenged before the Hon'ble Division Bench of this Court in Letters Patent Appeal No.724/2023 and allied matters and whereas, the Hon'ble Division Bench of this Court (Coram: Mrs.Sunita Agarwal, Hon'ble the Chief Justice and Mr.N.V.Anjaria, J.) vide judgment dated 11.08.2023 had declined to interfere with the said decision except for the decision of the learned Coordinate Bench insofar as relatable to category no.1.
4.3. Thus, it would appear that even persons appointed on outsourcing basis would be entitled to salary in minimum of pay scale as stated vide Government Resolution dated 16.07.2019 and whereas such benefit is required to be granted to the present petitioner as well.
5. At this stage, it is required to be mentioned that learned Assistant Government Pleader Mr.Hardik Soni as well as learned advocate Ms.Trusha Patel have inter alia tried to Page 6 of 9 Downloaded on : Mon Sep 25 20:35:27 IST 2023 NEUTRAL CITATION C/SCA/4292/2021 ORDER DATED: 20/09/2023 undefined submit that the case of the petitioner would be different than the case of the petitioners as had been considered by the learned Coordinate Bench, more particularly, according to learned advocates, the petitioner had been originally appointed in the year 2008 and had continued as such till the year 2013 whereas, the services of the petitioner were brought to an end on 27.06.2013 and later on vide an order of the year 2018, the petitioner had been appointed through an outsourcing agency.
5.1. According to learned advocates, the benefit of minimum of pay scale to persons working on outsourcing basis would only be available if the person had been originally appointed directly in the establishment and whereafter the conditions of his appointment had been modified and the said employee had been appointed through an outsourcing agency.
6. In the considered opinion of this Court, upon perusal of the decision of the learned Coordinate Bench as well as the decision of the Hon'ble Division Bench, this Court fails to find any such explanation as regards category no.4 as referred to herein above. In the considered opinion of this Court, the decision of the learned Coordinate Bench as affirmed by the Page 7 of 9 Downloaded on : Mon Sep 25 20:35:27 IST 2023 NEUTRAL CITATION C/SCA/4292/2021 ORDER DATED: 20/09/2023 undefined Hon'ble Division Bench can only be meant to read insofar as it relates to the present issue, to mean that any person who is appointed through an outsourcing agency who works on a regular establishment of the State, be it a State entity or even an establishment under the High Court, would be entitled to be paid salary in the minimum of pay scale, no other interpretation could be possible.
7. In this view of the matter, in the considered opinion of this Court, the petition requires to be allowed and the same is hereby allowed.
7.1. The respondents are directed to grant to the petitioner, the benefit of payment of salary in the minimum of pay scale as per the circular dated 16.07.2019 w.e.f. 01.01.2019. Henceforth, the petitioner shall be paid salary in the minimum of pay scale as directed above and whereas, arrears shall be paid to the petitioner within a period of three months from the date of receipt of this order.
7.2. As far as remaining prayers are concerned, at the request of learned advocate Ms.Raol, it is observed that the same are not pressed more particularly with a liberty to Page 8 of 9 Downloaded on : Mon Sep 25 20:35:27 IST 2023 NEUTRAL CITATION C/SCA/4292/2021 ORDER DATED: 20/09/2023 undefined approach this Court after the appeal preferred against the decision of learned Coordinate Bench being Letters Patent Appeal No.569/2021, more particularly, where the issue of regularization of such employees is concerned, is finally decided.
(NIKHIL S. KARIEL,J) Bhoomi Page 9 of 9 Downloaded on : Mon Sep 25 20:35:27 IST 2023