Thakor Prabhatsinh Hirabhai vs State Of Gujarat
2021 Latest Caselaw 7047 Guj

     C/SCA/9679/2020                                  JUDGMENT DATED: 28/06/2021




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 9679 of 2020


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE A.Y. KOGJE                 Sd/­

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1     Whether Reporters of Local Papers may be allowed to see              NO
      the judgment ?

2     To be referred to the Reporter or not ?                              NO

3     Whether their Lordships wish to see the fair copy of the             NO
      judgment ?

4     Whether this case involves a substantial question of law as          NO
      to the interpretation of the Constitution of India or any
      order made thereunder ?

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                  THAKOR PRABHATSINH HIRABHAI & 2 other(s)
                                  Versus
                       STATE OF GUJARAT & 5 other(s)
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Appearance:
MR. GAUTAM JOSHI with VYOM H SHAH(9387) for the Petitioner(s) No.
1,2,3
MR. AYAAN PATEL, AGP for the Respondent(s) No. 1,2
MR BHAVESH J PATEL(6801) for the Respondent(s) No. 4,5,6
MR UM SHASTRI(830) for the Respondent(s) No. 3
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    CORAM: HONOURABLE MR. JUSTICE A.Y. KOGJE

                               Date : 28/06/2021

                               ORAL JUDGMENT

1. RULE. Learned Assistant Government Pleader waives service of rule on behalf of the respondent­state, learned Advocate, Mr. Bhavesh Patel

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waives service of rule on behalf of the respondent Nos.4, 5 and 6 and learned Advocate, Mr. U.M. Shastri waives service of rule on behalf of the respondent No.3.

2. This petition under Article­226 of the Constitution of India is filed seeking direction to the respondent­ Authorities to issue promotion orders to the post of Multi­Purpose Health Supervisor and to release the benefits as are available to the petitioners, which were given to the similarly situated co­employees either of the same District or to the Workers of other Districts.

3. Learned Advocate for the petitioners has placed strong reliance on the oral order dated 10­12­2019 passed in Special Civil Application No.13519 of 2011 by this Court in group of petitions, where the petitioners themselves were also before the Court and therefore, the directions issued, were clearly applicable to the petitioners. Despite this, for the reasons that during the pendancy of this petition, there was bifurcation of the Districts where the District of Mahisagar was carved out of District Kheda and subsequently, the petitioners had opted to work under the District of Mahisagar, the benefit of the order was not given.

4. The respondent­ District Panchayat did not take up the responsibility to comply with the decision of this Court merely on the ground of bifurcation of Districts. It is submitted that it is an admitted position that the petitioners were recruited after following due process of recruitment and were working under Kheda District Panchayat at the time, when the petition came to be filed.

5. It is submitted that merely because the petitioners have opted to work under bifurcated the District, will not make the petitioners ineligible to the rights which otherwise are available to the petitioners from the decision of this Court. It is submitted that respondent­ District Panchayat therein namely Kheda District Panchayat had preferred an appeal being Letters Patent Appeal No.216 of 2021 and Letters Patent

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Appeal No.217 of 2021. The petitioners were also the respondents and such Letters Patent Appeal, came to be rejected by order dated 09­02­ 2021.

6. Therefore, now it is imperative for the respondents to take the responsibility of the petitioners and consider them to be their Employees and all the benefits which are available to the petitioners as the original employee of Kheda District Panchayat, should be made available to the petitioners.

7. Learned Advocate for the respondents draws attention of this Court to the Affidavit in reply on behalf of the respondent No.3­ District Development Officer, Mahisagar by submitted that the petitioner No.1 and 2 could not pass their examination during the prescribed period and therefore, there is no regularization of their service. With regard to the petitioner No.3, it is submitted that the petitioner No.3 was selected earlier by the Vadodara District Panchayat, later on by Kheda District Panchayat, but did not resume his duty at Kheda District Panchayat, as he did not want to serve and hence, his services were also not regularized.

8. In rejoinder, it is submitted that the issue of not regularizing the services of the petitioner Nos.1, 2 and 3, the question does not arose as the same is already covered in the decision of this Court in the previous round of litigation.

9. Having considered the rival submissions of the parties and having perused the documents on record, it appears that the petitioners who were appointed as Multi­Purpose Health Workers after due selection process by the Kheda District Panchayat pursuant to the Advertisement in the year 1989, under the recruitment process of 1989. The petitioner Nos.1 and 2 were appointed in the year 1991. However, on account of non­clearing of requisite examination, their services were terminated. However, by the decision taken by the State, the petitioners were reinstated with additional chance to clear the examination and then

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working since 1995. Since then, the petitioners are discharging their duties as Multi­Purpose Health Workers with Kheda District Panchayat, cause of action which arose on account of creation of State cadre from the District cadre. The petitioners wanted to claim the benefits which were given to the similarly selected Multi­Purpose Health Workers of other Districts and accordingly, Special Civil Application No.13519 of 2011 was filed. This Court in its oral order dated 10­12­2019, considering the claim of the petitioners in detail allowed the petition. Relevant paras, which are reproduced as under:

"9. The aforesaid orders refer to the various judgments of this Court. The State authorities have implemented the aforesaid orders passed by this Court in the aforesaid Districts hence, the employees / petitioners working in the Kheda District cannot be discriminated and they are also liable to be treated equally.

12. Under the circumstances, the respondents are directed to confer the similar benefits, which are conferred to the Multi Purpose Health Workers (Male) of Rjakot, Junagadh, Sabarkantha and Valsad Districts, to the petitioners working in Kheda District. Appropriate similar orders may be passed in the case of the present petitioners also. Necessary orders shall be passed within a period of two months from the date of receipt of the order of this Court."

10. It is pertinent to note that when the petition came to be disposed of in favour of the petitioners. The Mahisagar District was carved out from the Kheda District and by necessary procedure, the petitioners were thereafter working as Multi Purpose Health Workers at Mahisagar. Then, this aspect then brought to the notice of the Court. However, the Court had already pronounced upon the entitlement of the petitioners regardless of District Panchayat under which the petitioners were working at the time, when the order was pronounced.

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11. In the opinion of the Court, as the petitioners were parties before this Court and the District Panchayat was contesting, was the employer merely by creation of new District from Kheda District itself and the petitioners opting to work by due process under Mahisagar District Panchayat, will not affect the Rights of petitioners as available under the oral Order. Artificial District of change in the employer, will not be applicable in the case of the petitioners more so when Kheda District Panchayat has preferred the Letters Patent Appeal and has not succeeded and the petitioners were the party. It will be necessary to reproduce the relevant portion of the decision of the Letters Patent Appeal No.216 of 2021 and Letters Patent Appeal No.217 of 2021 dated 09­02­2021, which are as under:

"3. Insofar as the other appeal is concerned that is arising out of Special Civil Application No.13519 of 2011, again the learned Single Judge relied upon the judgment dated 10.08.2016 in Special Civil Application No.6289 of 2011 and extended the same benefits to the writ petitioners therein. It is also recorded by the learned Single Judge that the Multupurpose Health Workers (Male) who are working in Rajkot, Junagadh, Sabarkantha and Valsad have already been extended the benefits and their services have been regularized from the initial date of appointment. As such, the present writ petitioners belonging to District Kheda would also be entitled to the same benefits. Apparently we do not find any infirmity in the orders passed by the learned Single Judge.

4. We may further note here the submission of Shri Munshaw referring to two judgments of the Division Bench dated 19.07.2016 in Letters Patent Appeal No.507 of 2016 arising out of Special Civil Application No.2344 of 2014 and the judgment dated 20.07.2010 in Letters Patent Appeal No.85 of 2010 arising out of Special Civil Application No.8611 of 2009, based upon which he submits that the Multipurpose Health Workers (Male) were not extended the benefits which have been given to the

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present petitioners. We have perused both the judgments and we find that they were based on different set of facts and the initial appointment of those Multipurpose Health Workers were contractual in nature unlike the present petitioners who were given regular appointment on fixed term and conditions.

5. Learned counsels for the respondents state that they are entitled to the benefits of regularization from 15.04.1995 and not from any earlier date because they are working continuously from the said date and prior to it in their appointments there were certain breaks. This honest submission of the learned counsels for the respondents is noted and the appellants would implement the order of the learned Single Judge accordingly."

12. The contention raised by the respondents in individual case of the petitioner No.1, 2 and 3 will also be of no consequence, when there is nothing to suggest that the petitioners have not actually served since date of their appointment as Multi Purpose Health Workers. It is also relevant to observe as stated in the Affidavit in reply in Para­8 that 17 posts of Multi Purpose Health Supervisor is still vacant and to be filled up by way of promotion.

13. The Court is of the view that no other individual will be put to any disadvantages, if the benefit that is available under the decision of this Court in earlier order dated 10­12­2019, is made available to the petitioners.

14. In view of the aforesaid, the petition is therefore, allowed. The petitioners are held to be entitled to promotion to the post of Multi Purpose Health Supervisor as directed by this Court in order dated 10­ 12­2019, in view of the pendancy of this petition, the directions contained in Para­12 of the earlier order dated 10­12­2019 including grant of deemed date as per law and procedure adopted in other similar employees of Respondent - Panchayat. It would be appropriate to direct

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the respondent - Authorities to conclude the exercise and grant the petitioners the promotion orders and consequential benefits as available. Such exercise to be conducted and concluded within the period of three months from the date of receipt of this judgment of this Court. Rule is made absolute with no order as to costs.

15. In case the aforesaid exercise is not concluded in period of 3 months, the petitioners will be entitled to claim simple interest at the rate of 6% per annum which the Respondent­ Panchayat can recover from erring officers responsible for such delay.

Direct service is permitted.

Sd/­ (A.Y. KOGJE, J) PARESH SOMPURA