Devrajbhai Lakhabhai Parmar @ ... vs State Of Gujarat
2021 Latest Caselaw 7301 Guj

     C/SCA/15299/2020                                   JUDGMENT DATED: 30/06/2021



             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 15299 of 2020


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE A.Y. KOGJE

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1     Whether Reporters of Local Papers may be allowed
      to see the judgment ?

2     To be referred to the Reporter or not ?

3     Whether their Lordships wish to see the fair copy
      of the judgment ?

4     Whether this case involves a substantial question
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

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                  DEVRAJBHAI LAKHABHAI PARMAR @ SENMA
                                 Versus
                       STATE OF GUJARAT & 2 other(s)
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Appearance:
MR. R.D.KINARIWALA(6146) for the Petitioner(s) No. 1
MR ROHAN SHAH, AGP (99) for the Respondent(s) No. 1
NOTICE SERVED(4) for the Respondent(s) No. 1,2,3
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    CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE

                                  Date : 30/06/2021

                                  ORAL JUDGMENT

1. This petition under Article 226 of the Constitution of India is filed seeking direction to the authorities to regularize the services of the petitioner as a Class-IV employee and claims parity with the co-employees similarly situated, who have been regularized as per the various Government Resolutions and norms applicable.

C/SCA/15299/2020 JUDGMENT DATED: 30/06/2021

2. Learned advocate for the petitioner has submitted that the petitioner was appointed as a part-time "Safai Kamdar" in the Office of the Commissioner of respondent no.3, and thereafter, the petitioner has continued in fixed pay. The petitioner claims to be regularized in his service on the basis of Government Resolution dated 26.12.1980. It is submitted that despite the petitioner complying with the requirements, the petitioner is still continued as a part-timer.

3. Learned advocate for the petitioner has submitted that the petitioner had also filed petition being Special Civil Application No.7604 of 2006 which came to be disposed of vide order dated 09.09.2006, wherein the directions were given to consider the case of the petitioner more particularly, by referring to the various directions, which were given in the said order. Still, there was no decision in favour of the petitioner and hence, another petition came to be filed being Special Civil Application No.10415 of 2007, which came to be disposed of vide order dated 27.04.2007.

4. Learned advocate for the petitioner has taken this Court through proposal sent by the respondent no.3-Office, wherein it is indicated that the petitioner is fulfilling the criteria for being regularized as prescribed under Government Resolution dated 01.05.2007. It is submitted that despite this factual position of Head of the Department where the petitioner was employed, subsequent communication dated 01.10.2012 indicates in the conclusion that the petitioner is not complying with the requirements of Government Resolution dated 01.05.2007, which was not only contrary, but also factually incorrect. Learned advocate has, thereafter, drawn attention of this Court

C/SCA/15299/2020 JUDGMENT DATED: 30/06/2021

to the Government Resolution dated 18.06.2009 and indicate that under the said resolution, any of the persons, who are identically situated as part-timers have been regularized as Class-IV employees.

5. Learned advocate for the petitioner has also submitted that even in the affidavit in reply the stand is taken, which is contradictory to the record contending that the petitioner has not completed10 years of service with 5 hours work every day.

6. Learned AGP relying upon the affidavit of the respondent no.2 submitted that the petitioner was appointed on 30.11.1993 by the District Education office, Nadiad, Kheda as a contingency Safai Kadmar with the condition to work for 5 hours a day and should be given Rs.100/- per hour. Further, the petitioner herein had served as part-time Safai Kamdar from 30.11.1993 till 04.03.2006. Thereafter, from 04.03.2006, the petitioner was relieved from the duty and hence, the petitioner has preferred Special Civil Application No.7604 of 2006 before this Court, wherein vide order dated 29.09.2006, this Court has passed an oral order to consider the case of the petitioner however, the said order cannot be implemented and hence, the petitioner had preferred another Special Civil Application No.10415 of 2007, wherein this Court, vide order dated 27.04.2007 has pased an oral order again to reconsider the case of the petitioner.

7. It is submitted that thereafter, considering the Government Resolution dated 01.05.2007, the District Education Office, Nadiad has made communication dated 12.09.2012 to the Commissioner of Schools, Gandhinagar to regularize the petitioner, wherein vide communication dated 01.10.2012 the

C/SCA/15299/2020 JUDGMENT DATED: 30/06/2021

Commissioner of Schools, Gandhinagar has stated that the petitioner has not completed the regular service of 10 years and 6 hours per day as on 10.02.2006, hence the petitioner herein is not fulfilling the condition no.1 of the Government Resolution dated 01.05.2007 and hence, the service of the petitioner cannot be regularized.

8. Having considered the rival submissions made by learned advocates for the parties and having perused the documents on record, the petitioner appears to have been appointed as part- time employee (Daily Wager) vide order dated 30.11.1993, which was in place of one Hareshbhai Solanki whose post had fallen vacant. The petitioner was to be paid Rs.100/-for working for 5 hours. The communication dated 20.09.2009 is proposal by the Office of District Education Officer, Nadiad proposing the benefits of the Government Resolution dated 01.05.2007 indicating in the communication that the petitioner has completed 12 years of service on 10.02.2006 and since 30.11.2013, he is working for 6 hours as a part-timer. It is indicated that the post of part-timer was sanctioned post in the establishment and that the petitioner is having necessary qualification of 10th Pass. The resolution on which the reliance is placed i.e. Government Resolution dated 01.05.2007 provides for granting of an appointment in cases where the employee has completed 10 years of service on or before 10.02.2006 with service of 6 hours on daily basis. According to the State, as the appointment order indicates the period of 5 hours on daily wage basis, the petitioner is not fulfilling this condition. The appointment of the petitioner way back in the year 1993 was against the post that has fallen vacant, and therefore, conditions, which were applicable to the persons were

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transmitted into the orders of appointment of the petitioner, however, when the head of Department in his proposal has given categorical finding that the petitioner has worked for more than 6 hours, in opinion of this Court, the petitioner fulfills the requirement of work for the period of 6 hours daily and for requisite period as per the Government Resolution.

9. The Court has also taken into consideration the Government Resolution dated 18.06.2009, wherein the part-timer, who are identically situated as the petitioner have been regularized. The resolution indicates that 12 persons, who were employed ranging from 1995 to 1998 as part-timer in a government institute of Education Department have been given the benefit of regularization as Class-IV employee.

10. In view of the aforesaid, the Court is of the view that the petition deserves to be allowed. The case of the petitioner is required to be considered and the petitioner is entitled to the benefit of Government Resolution dated 01.05.2007. The petitioner shall be entitled to the benefit of Government Resolution dated 01.05.2007 from the date of his regularization under the order of this Court, however, the petitioner is entitled to the notional benefits from the year-2009 and actual benefits from the date of this order. The petitioner will be entitled to other benefits by treating the petitioner's service as a Class-Iv employee from the year 2009.

With the aforesaid, the present petition stands allowed to the aforesaid extent. Direct service is permitted.

(A.Y. KOGJE, J) GIRISH