Mohanbhai Jesingbhai Parmar vs District Development Officer
2021 Latest Caselaw 4730 Guj

        C/SCA/11754/2017                                         JUDGMENT


           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 11754 of 2017

FOR APPROVAL AND SIGNATURE:

HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
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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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                   MOHANBHAI JESINGBHAI PARMAR
                              Versus
              DISTRICT DEVELOPMENT OFFICER & 2 other(s)
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Appearance:
MR JV JAPEE(358) for the Petitioner(s) No. 1
MR ROHAN SHAH, ASSISTANT GOVERNMENT PLEADER(1) for the
Respondent(s) No. 3
MR HS MUNSHAW(495) for the Respondent(s) No. 1,2
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 CORAM: HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
                   Date : 25/03/2021
                   ORAL JUDGMENT

1. By this petition the petitioner, inter alia, has prayed for direction to the respondents to grant the pay revision, commensurate with the length of his service as provided in Government Resolution dated 17.10.1988 as well as direction for upward revision of pay as per the subsequent Government Resolutions issued by the State Government from time to time, with all consequential benefits.

2. Tersely stated are the facts:

2.1    The     petitioner   had    joined        the   service      under        the




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respondent nos. 1 and 2 on 1.9.1988 as a daily wager driver. The service of the petitioner came to be terminated on 6.8.1989 and being aggrieved, the petitioner raised an industrial dispute before the Labour Court, Bhavnagar, which culminated into Reference (LCB) No.528 of 1989. Vide award dated 15.5.1991, the Labour Court, Bhavnagar, directed the respondents to reinstate the petitioner with continuity of service but without back wages. Accordingly, the District Development Officer, Bhavnagar vide communication dated 10.10.1995, addressed to the Taluka Development Officer, directed to reinstate the petitioner in terms of the Award dated 15.5.1991.

2.2 In the interregnum, vide order dated 18/25.10.1993 passed by the Taluka Development Officer, Shihor, Bhavnagar, the petitioner upon completion of five years of service, was extended the benefits as per the Government Resolution dated 17.10.1988 placing him in the minimum scale of pay of Rs.950/- along with prevailing dearness allowances and medical benefits. However, he was not given the benefits as per the Government Resolution dated 17.10.1988 commensurate with the length of his service.

2.2 The principal grievance raised by the petitioner is that thereafter, the respondents have not taken any steps to extend the benefits of the revised pay scale as per the recommendation of the Pay Commissions introduced and implemented from time to time and therefore, since last 29 years the petitioner is stagnated in the minimum of pay scale and has been subjected to substantial injustice.

3. The respondent no. 2, has filed affidavit-in-reply, inter

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alia, stating that the petitioner was working as a daily wager peon with effect from 9.12.1981 with the Taluka Panchayat and was thereafter working as peon-cum-driver with effect from 24.12.1986. It is stated that engagement of the petitioner was neither done by the District Panchayat Service Selection Committee nor was in accordance with the applicable Recruitment Rules framed by the State Government for the cadre of driver. Also, it was purely on temporary and adhoc basis depending upon the availability of work and fund.

3.1 Narrating the event, which took place during the year 1981 till the year 1995, it is stated that the petitioner was continued in the employment with a fix pay of Rs.950/-. It is submitted that since the vehicle driven by the petitioner was not in a motorable condition, it was condemned and later on auctioned and thereafter, no new vehicle was allotted to the Taluka Panchayat. Even in absence of availability of the vehicle, the petitioner was continued in the employment as a driver and was paid idle wages. It is reiterated that the petitioner was not appointed after following the due process of recruitment by the competent authority; however, was continued with the Taluak Panchayat and is therefore not entitled to the benefits of regular pay scale and the benefits flowing from the Government Resolution dated 17.10.1988 issued by Roads & Buildings Department of the State Government. It is stated that if the prayers, as prayed for by the petitioner, is accepted, the same would amount to back door entry, burdening heavily the public exchequer and setting a wrong precedent. It is therefore urged that petition is meritless and does not deserve to be accepted.

         C/SCA/11754/2017                                          JUDGMENT



4.    Mr.     J.V.Japee,    learned      advocate        appearing         for     the

petitioner, submitted that the petitioner has been appointed in the year 1988 as a daily wager and after completion of five years of his service, was extended the benefits as per the Government Resolution dated 17.10.1988 by placing him in the minimum of pay of Rs.950/- fixed, together with other admissible benefits; however, revised benefits were not extended.

4.1 It is submitted that the service of the petitioner came to be terminated, which led to the raising of the industrial dispute, which got culminated into Reference (LCB) No. 528 of 1989. Vide award dated 15.05.1991 the Labour Court, Bhavnagar, directed the respondents to reinstate the petitioner without back wages but with continuity of service. It is submitted that though the Labour Court, Bhavnagar, had granted the continuity of service, the respondents did not take any action, regularizing the service of the petitioner as per provisions of the Government Resolution dated 17.10.1988 and deprived the petitioner of his legitimate rights flowing therefrom.

4.2 It is next submitted that undisputedly, since the year 1988 till the year 2016, the petitioner had worked as a driver with the respondent and in the year 2016, when the vehicle was not available, the petitioner was assigned the work of peon. Again, in the year 2019 when the vehicle was made available to the respondents, the petitioner had been employed as a driver. In support of such contention reliance is placed on the documents and orders issued by the concerned Taluka Panchayat. It is further submitted that it is an

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undisputed fact that the petitioner is working as a driver since 1988 till the 2019, barring for a brief period when he worked as peon and therefore, the petitioner is legally entitled for the benefits flowing from the Government Resolution dated 17.10.1988.

4.3 While placing reliance on the common order of this Court in the case of Jitendrakumar Jashwantrai Pandya and Ors. vs. District Health Officer and Ors. rendered in Special Civil Application No. 1588 of 2015, it is submitted that in the of case of similarly situated employees, directions were issued to the respondents to take decision for regularizing the service of the daily wagers, petitioners therein, as they were working since year 1984 and on completion of five years, were given the benefits of fix pay of Rs.750/-. Except the posts rest of the facts are identical. It is urged that similar direction be issued to the respondents for granting the benefit of regularization to the petitioner, within stipulated period, as the petitioner is likely to retire soon, upon reaching the age of superannuation.

4.4 It is submitted that it is not that the respondents denied the continuity of service of the petitioner, in fact, it is the respondents, who have issued the order dated 18/25.10.1993 and considered the case of the petitioner in conformity with the Government Resolutions dated 17.10.1988 and 30.05.1989, placing the petitioner in the minimum of fixed pay. It is submitted that the order clearly records that the petitioner is entitled for the benefits of the daily wager, as he has completed five years and 10 years of service as per the Government Resolution dated 30.5.1989. While reiterating it is submitted that the benefits were extended to the petitioner in

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the year 1993; however, subsequently, the respondents did not extend the benefits namely the revision in the pay scale etc. Therefore, once the respondents themselves have extended the benefits of the Government Resolution dated 17.10.1988, now they cannot turn around and deny the benefits flowing therefrom. It is, therefore, submitted that the petitioner is eligible and entitled for the benefits since inception and action of the respondents stagnating the petitioner in the fixed minimum pay is illegal.

4.5 While adverting to the aspect of delay it is submitted that it cannot be said that there is a delay on the part of the petitioner, indeed, there is an inaction on the part of the respondents in not extending the benefits, though the petitioner was otherwise eligible. It is thus urged that the benefits may be extended to the petitioner, as prayed for.

5. On the other hand, Mr. H.S. Munshaw, learned advocate appearing for the respondents, submitted that the petitioner is before this Court praying for regularization of his service. The petitioner was offered work as a daily wager in the year 1981 and thereafter, as a driver in the year 1988; however, the petitioner was employed as a daily wager without following due procedure of law by the competent authority. It is submitted that when the initial appointment was made without following the due procedure of law, allowing the prayers would amount to permitting the back door entry. It is submitted that it is true that petitioner was placed in the fixed minimum pay of Rs.950/-; but the respondents have continued the petitioner in different capacity.

5.1    While referring to the order dated 18/25.10.1993, it is




       C/SCA/11754/2017                                 JUDGMENT

submitted that the said order was passed by the Taluka Development Officer; however, it was conditional, which is clear from last portion of the penultimate paragraph, which provides for approval of higher authority. It is submitted that for all these years the petitioner remained negligent and was not careful about his rights and that there is a delay on the part of the petitioner in approaching this Court and therefore, he should not be extended the prayers as prayed for. Further, in the interregnum, there is not a single application filed by the petitioner seeking regularization and therefore, if this Court were to come to the conclusion that the petitioner deserves the benefits, the same should be notional and limited to three years of filing of the writ petition. It is further urged that the petition lacks merit and deserves to be dismissed.

6. Heard Mr. J.V. Japee, learned advocate for the petitioner and Mr. H.S. Munshaw, learned advocate for the respondent nos. 1 and 2 and Mr. Rohan Shah, learned Assistant Government Pleader for the respondent no. 3.

7. The petitioner was appointed in the year 1981 by the Taluka Panchayat as a daily wager and subsequently, as a peon-cum-driver with effect from 24.12.1986. Thereafter, the petitioner was engaged as a daily wager with effect from 2.10.1988 in place of regular driver, who retired. The service of the petitioner came to be terminated on 6.8.1989. The petitioner, being aggrieved had raised an industrial dispute before the Labour Court, Bhavnagar, which culminated into Reference (LCB) No. 528 of 1989 and it vide award dated 15.5.1991, directed the respondents to reinstate the petitioner without back wages, but with continuity of service.

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8. Thereafter, on petitioner completing five years as on 31.8.1983, the Taluka Development Officer had passed the order dated 18/25.10.1993 extending the benefits to the petitioner in tune with the Government Resolution dated 17.10.1988 read with Government Resolution dated 30.5.1989. Considering the provisions of Government Resolution dated 17.10.1988 so also Government Resolution dated 30.05.1989, the petitioner was put in the fixed minimum pay of Rs.950/- together with the dearness allowance as well as medical benefits. The petitioner, thereafter, continued to work with the respondents and is still working on the post of driver. Para 1 of the order states about the application by the petitioner and records that the service of the petitioner cannot be terminated owing to the passing of the award dated 15.5.1991. Para 2 of the order, while referring to the government resolutions cited in the preamble at item number 1 and 2, states that upon completion of five or 10 years of service the benefits are to be extended and therefore, the petitioner is eligible for the fixed minimum pay of the driver as well as prevailing Dearness allowances and medical allowances. Para 3 further states that the petitioner be put in the minimum pay of Rs. 950 with effect from 1.9.1993 along with other prevalent allowances. The order also records about petitioner filing an undertaking, declaring that if any audit objection is raised, then the petitioner will refund the amount. It lastly records that if the District Panchayat or the State Government, cancels the order, there will be a recovery of the pay and allowances paid to the petitioner.

9. Therefore, as argued by the learned advocate for the

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respondent that the order dated 18/25.10.1993 was subject to the approval of the State Government is incorrect for, in the last paragraph it merely says that if the order is cancelled by the District Panchayat or by the State Government, in such an eventuality, the petitioner would refund the amount paid to him. Therefore, the order was never passed subject to the final approval of either the District Panchayat or the State Government. Once the respondents have extended the benefits and in absence of any strong justification furnished by them, the action of not extending further and consequential benefits to the petitioner, is illegal and without any basis and which deserves to be deprecated. Further, there is nothing available on record to suggest that the said order dated 18/25.10.1993, was either cancelled by the State Government or by the District Panchayat and therefore, the said order is still in currency which renders the petitioner eligible for further benefits flowing from the Government Resolution dated 17.10.1988 as well as 30.5.1989 for, the petitioner has, by now, rendered more than 29 years of service. Also, the petitioner along with his rejoinder, has placed voluminous record in support of his grievance which, in no uncertain terms, suggests that the petitioner has been working as driver since the year 1988 and that too on the sanctioned post which fell vacant due to the retirement of the regular driver. Under the circumstances, there is no valid reason available to the respondents not to extend the consequential benefits of Government Resolution dated 17.10.1988 to the petitioner.

10. The Apex Court in the case of State of Gujarat and Ors vs. PWD Employees Union reported in (2013) 12 SCC 417, has in paragraph 29 observed thus:

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"As per scheme contained in Resolution dated 17th October, 1988 all the daily wage workers were not entitled for regularization or permanency in the services. As per the said Resolution the daily wagers are entitled to the following benefits:

(i) They are entitled to daily wages as per the prevailing Daily Wages. If there is presence of more than 240 days in first year, daily wagers are eligible for paid Sunday, medical allowance and national festival holidays.

(ii) Daily wagers and semi skilled workers who has service of more than five years and less than 10 years are entitled for fixed monthly salary along with dearness allowance as per prevailing standard, for his working days. Such daily wagers will get two optional leave in addition to 14 misc. leave, Sunday leave and national festival holidays. Such daily wagers will also be eligible for getting medical allowance and deduction of provident fund.

(iii) Daily wagers and semi skilled workers who has service of more than ten years but less than 15 years are entitled to get minimum pay scale at par with skilled worker along with dearness allowance as per prevailing standard, for his working days. Moreover, such daily wagers will get two optional leave in addition to 14 misc. leave, Sunday leave and national festival holidays. He/she will be eligible for getting medical allowance and deduction of provident fund.

(iv) Daily wagers and semi skilled workers who has service of more than 15 years will be considered as permanent worker and such semi skilled workers will get current pay scale of skilled worker along with dearness allowance, local city allowance and house rent allowance. They will get benefit as per the prevailing rules of gratuity, retired salary, general provident fund. Moreover, they will get two optional leave in addition to 14 misc. leave, 30 days earned leave, 20 days half pay leave, Sunday leave and national festival holidays. The daily wage workers and semi skilled who have completed more than 15 years of their service will get one increment, two increments for 20 years service and three increments for 25 years in the current pay scale of skilled workers and their salary will be fixed accordingly."

11. Moreover, this Court, while deciding the case of Jiterndrakumar Jashwantrai Pandya (Supra), has placed reliance upon the judgement of the Apex Court in the case of PWD Employees Union (Supra). Accordingly, this court directed the respondent authorities to consider the case of the petitioners therein for regularization. The relevant paragraphs of the

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decision rendered in the case of Jiterndrakumar Jashwantrai Pandya (Supra) are as under:

"10. Resultantly, as per the scheme contained in Government Resolution dated 17.10.1988, the respondent authority is directed to consider the case of the petitioners individually bearing in mind the Government Resolution dated 17.10.1988 in the case of State of Gujarat and others Vs. PWD Employees Union and others (Supra) for the purpose of regularization of their services.

11. Admittedly, the petitioners have worked with the department for more than 5 years. Therefore, benefits flowing from this decision of the Apex Court, more particularly, from paragraph 29, shall have to be regarded. Such decision shall have to be taken within 12 weeks from the date of receipt of the copy of this order. The respondent authority shall communicate to the petitioners the outcome of such decision within two weeks thereafter. The petitioners, if are aggrieved by any adverse decision, shall be at liberty to approach this Court.

12. The consequential benefits arising from grant of regularization shall be made available to the petitioners within four weeks from such order. Petitions are disposed of accordingly."

12. The petitioner is similarly situated to the petitioners, who were before this Court in the writ petition being Special Civil Application No. 1588 of 2015, which aspect has not been disputed by the concerned Panchayat. The petitioner, except the designation, is in all respect similar to the petitioners of the Special Civil Application No. 1588 of 2015. Indeed, the case of the petitioner rest on a stronger footing for, it can be seen from the record that the petitioner has initially joined the service as a daily wager peon in the year 1981 and thereafter, peon-cum- driver with effect from 1986 and in absence of regular driver, the petitioner has worked on the said sanctioned post as driver all throughout. One additional factor, which weighs in favour of the petitioner, is the order dated 18/25.10.1995 extending the

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benefit of Government resolution dated 17.10.1988 as well resolution dated 30.5.1989. Pertinently, no justification has been put forth or any exception has been carved out by the respondents before this Court to take a view different than the view taken by this Court in the aforesaid decision in the case of Jiterndrakumar Jashwantrai Pandya (Supra).

13. Admittedly, the petitioner has completed 5 years of service as daily wager as on 31.8.1993 and has been working with the concerned Panchayat for more than 29 years, by now. Therefore, the petitioner is entitled for the benefits flowing from the decision of the Apex Court in the case of PWD Employees Union (supra) as contained in Paragraph 29 reproduced herein above read with the provisions contained in the government resolution dated 17.10.1988 as well as the resolution dated 30.5.1989.

14. In view of the aforementioned discussion, the respondents are directed to take decision in terms of this judgment within a period of 8 weeks from the date of receipt of this order. The decision shall be communicated to the petitioner within a period of two weeks thereafter. Consequential benefits arising out from the grant of regularization shall be made available to the petitioner within a period of four weeks from the order. The petitioner, in case of difficulty, will be at liberty to approach this Court. Accordingly, petition is partly allowed. Rule is made absolute to the aforesaid extent. No order as to costs.

(SANGEETA K. VISHEN,J) F.S. KAZI