Gujarat High Court
Hasmukhbhai Kanhaiyalal Jayswal vs State Of Gujarat on 22 October, 2021
Bench: Nikhil S. Kariel
C/SCA/10890/2021 ORDER DATED: 22/10/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 10890 of 2021
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HASMUKHBHAI KANHAIYALAL JAYSWAL
Versus
STATE OF GUJARAT
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Appearance:
MR GAURAV K MEHTA(5227) for the Petitioner(s) No. 1
MS VRUNDA C SHAH, AGP for the Respondent(s) No. 1
NOTICE SERVED(4) for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
Date : 22/10/2021
ORAL ORDER
1. Heard learned Advocate Mr. Gaurav K. Mehta for the petitioner and
learned AGP Ms. Vrunda C. Shah for the respondent-State.
2. Rule returnable forthwith. Learned AGP waives service of Rule for
the respondent-State.
3. By way of this petition, the petitioner inter alia seeks grant of benefit
of payment of salary minimum of pay scale.
4. Learned Advocate for the petitioner would submit that Co-ordinate
Bench of this Court (Coram : Mohinder Pal, J) vide judgment dated
21.12.2018 in Special Civil Application No. 7462 of 2012 and allied cases
had been pleased to inter alia hold that part time employees, ad-hoc
employees, casual labourers etc. would be entitled to draw wages at the
minimum of the pay scale i.e. at the lowest grade in the regular pay scale
extended to the regular employees holding the same post. Learned Advocate
C/SCA/10890/2021 ORDER DATED: 22/10/2021
would submit that the said decision of the Co-ordinate Bench has been
confirmed by the Hon'ble Division Bench of this Court (Coram : Anant
Dave, ACJ and Biren Vaishnav, J) vide judgment dated 19.05.2019 in Letters
Patent Appeal No.1155 of 2019 and allied matters. Learned Advocate would
further submit that based upon the decisions of this Court referred to
hereinabove, the State Government has came out with a policy decision vide
Circular dated 16.07.2019 of giving salary in minimum of pay scale to
temporary employees. Learned Advocate would further submit that as per
the Circular dated 16.07.2019, the benefit of payment of salary in minimum
of pay scale would be available to the part time employees with effect from
01.01.2019, if the concerned employee was in service on 01.01.2019.
5. As against the same, learned AGP could not point out about the
decision of the Co-ordinate Bench confirmed by the Hon'ble Division
Bench being interfered with by the Hon'ble Apex Court. Learned AGP also
could not contradict the fact of Circular dated 16.07.2019 is in force as on
date. Learned AGP would submit that whether the benefit of decisions of
this Court as well as policy of the State Government being applicable to the
petitioner or not may be left to the respondent authorities to decide.
6. Having regard to the submissions made by learned Advocates for the
parties, this Court proposes to dispose of the present petition with the
following directions :
(A) The respondent- Superintendent, Community Health Centre,
Taluka Wav, District Banaskantha, where the petitioner is working
at present shall within a period of three weeks from the date of
receipt of this order forward a proposal to the parent department
i.e. Health and Family Welfare Department, State of Gujarat. The
C/SCA/10890/2021 ORDER DATED: 22/10/2021
proposal would be recommending the case of the petitioner for
being paid salary in minimum of pay scale if the petitioner is
entitled to the same after appropriate examination by the
department. In case the office/department where the petitioner is
working is of the opinion that the petitioner is not entitled for
benefit of Circular dated 16.07.2019, then the petitioner shall be
informed accordingly in writing.
(B) The parent department being Health and Family Welfare
Department, State of Gujarat, shall examine the proposal sent to it,
more particularly as regards the entitlement of the present
petitioner to the benefit of Circular dated 16.07.2019 and whereas
if the petitioner is found entitled to the same, then the said
proposal shall be forwarded to the Finance Department, State of
Gujarat, within a period of two weeks from the date of receipt of
the proposal. In case the parent department is of the opinion that
the petitioner is not entitled to the said benefit, the same shall be
informed to the petitioner in writing.
(C) The Finance Department, State of Gujarat upon receipt of the
proposal shall examine the same as regards the entitlement of the
petitioner to the benefit of Circular dated 16.07.2019 and shall pass
appropriate orders for payment of arrears and payment of salary
regularly in minimum of pay scale.
7. The respondent authorities shall do well to appreciate that as such
having taken a policy decision vide Circular dated 16.07.2019, it was
incumbent upon the State Government and its concerned departments to
C/SCA/10890/2021 ORDER DATED: 22/10/2021
have suo-motu done the exercise of identifying persons who are entitled to
the benefit of Circular dated 16.07.2019 and to make appropriate payments
in their favour. Having not done so and the petitioner being required to
approach this Court for redressal of his grievance, therefore it is clarified
that the time set out by this Court as stipulated hereinabove is the outer
most time limit and whereas each of the departments shall strictly abide by
the time limit and whereas the proposals or final order, as the case may be,
shall be forwarded or passed within the period stipulated hereinabove
without fail.
8. It is clarified that this Court has not gone into the aspect of whether
the petitioner is entitled to the benefit of Circular dated 16.07.2019 and
whereas the concerned respondents shall take appropriate decision in
accordance with law. It is further clarified that in case the petitioner were to
be aggrieved with the decision of any of the concerned respondents, then it
would be open for the petitioner to avail appropriate remedy as available to
him under the law.
9. With the above limited observations and directions, the present
petition is disposed of as allowed. Rule is made absolute to the aforesaid
extent.
Direct service is permitted.
(NIKHIL S. KARIEL,J)
BDSONGARA
