Damor Shaileshbhai Sardarbhai vs State Of Gujarat
2021 Latest Caselaw 16885 Guj

    C/SCA/16089/2021                                 ORDER DATED: 27/10/2021




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

            R/SPECIAL CIVIL APPLICATION NO. 16089 of 2021

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                       DAMOR SHAILESHBHAI SARDARBHAI
                                   Versus
                             STATE OF GUJARAT
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Appearance:
MS ASHLESHA M PATEL(6127) for the Petitioner(s) No. 1
for the Respondent(s) No. 2,3
MS SURBHI BHATI, ASSISTANT GOVERNMENT PLEADER/(99) for the
Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL

                               Date : 27/10/2021

                                ORAL ORDER

Heard learned Advocate Ms. Ashlesha M. Patel on behalf of the petitioner and learned AGP Ms. Surbhi Bhati for the respondent state. By way of this petition, the petitioner inter alia seeks to be granted benefit of Government Resolution dated 16.07.2019 that is for payment of salary in minimum of pay scale furthermore, the petitioner seeks to be reinstated on original post of the petitioner as an employee though on part-time basis of the respondent and not through an outsourcing agency.

Having regard to the submissions made by learned Advocate Ms. Ashlesha M. Patel would rely upon a decision of Co-ordinate Bench of this Court Coram: A. S. Supehia, J in a Civil Application No. 16342 of 2019 dated 06.08.2021 and whereas it is submitted by learned Advocate that this Court was concerned about similarly situated petitioners in the said group of petitioners and whereas learned Advocate would specifically rely upon paragraph no. 7 of the said order.

Learned Advocate would submit that if appropriate directions are granted to the respondents as directed by this Court by this court in

C/SCA/16089/2021 ORDER DATED: 27/10/2021

paragraph no. 7 the case of the petitioner would be taken care of the grievance of the petitioner could be redressed at this stage.

Having regard to the submissions made by learned Advocate Ms. Patel, learned AGP Ms. Bhati would submit that if appropriate application would be made by the petitioner that would be considered by the respondents in accordance of law. This way of the matter, since the observations and directions of this court in decision dated 06.08.2021 are being relied upon by the petitioner, for better appreciation this quote makes it appropriate to reproduce the same here in below :

"In the considered opinion of this Court, the present group of writ petitions can be disposed of with a direction to the respondent-Finance Department to examine the cases of the present petitioners with regard to extending the benefits of the resolution dated 16.07.2019. The respondent- Finance Department is directed to call for necessary details of all the petitioners from the concerned departments within a period of three weeks from the date of receipt of the present order. The concerned departments are also directed to cooperated and forward the details of the present petitioners to the Finance Department expeditiously within a period of two weeks thereafter. The Finance Department is further directed to examine each case of the petitioners with regard to their service conditions and if they are found eligible as per the judgment dated 21.12.2018 passed in Special Civil Application No. 7462 of 2012 and allied matters and order dated 09.05.2019 passed in Letters Patent Appeal No. 1555 of 2019 and as per the resolution dated 16.07.2019, such benefits shall be extended to them. The Finance Department is directed to pass appropriate orders after receipt of the details of the petitioners within a period of four weeks. It is clarified that the Finance Department, while examining each of the case of the petitioner, shall specifically keep in mind that the entire policy of outsourcing introduced vide Resolutions dated 10.02.2006 and 25.04.2012 has been declared illegal. It is declared by this Court in the aforementioned decisions that all such employees, who are terminated or affected due to the said policy, are to be reinstated and conferred the benefit of minimum pay. Thus, the only factor, which is requires to be examined in the case of the petitioners is that whether the policy of outsourcing is/was detrimental to their service conditions, including their termination or non- conferring of minimum pay."

Having regard to the case before this Court where the petitioner appears to be similarly situated to the petitioner before the Co-ordinate

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Bench of this Court is of the opinion that directions as issued by the Co- ordinate Bench required to be issued in instance case also. Therefore the respondents no. 3 and 2 are directed to submit a proposal to the Finance Department, State of Gujarat through their parent cadre that would be the Revenue Department within a period of three weeks from the date of receipt of this order after grant of benefits of Resolution dated 16.07.2019 the parent department being the Home Department shall consider the said proposal in accordance with law and forward the same to the Finance Department for an appropriate consideration. Such examining and forwarding shall be done by the Revenue Department within a period of three weeks from the date of receipt of proposal from respondent no. 2. Upon such proposal being received by the Finance Department, the said department shall consider the same as per the Resolution dated 16.07.2019 and whereas the Finance Department shall also examine the case of the petitioner with regard to the entitlement of the petitioner even with the deemed date effect.

As per terms of the said Resolution, the Finance Department shall while examining case of the petitioner appreciate the fact that the policy of outsourcing introduced vide Resolution dated 10.02.2006 and 25.04.2012 has been declared to be illegal. Furthermore the petitioner herein upon his case being positively considered by the Finance Department be paid the benefit of Resolution dated 16.07.2019 with arrears if any within a period of six weeks from the date of proposal is received by the Finance Department. In case the respondents nos. 2 and 3 or the Revenue Department or the Finance Department as the case may be is of the opinion that the petitioner is not entitled to the benefits of the Resolution dated 16.07.2019 then the concerned respondent / department shall inform the petitioner about the same in writing with reasons for such rejection.

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Needless to clarify that this Court has not gone into the merits of the matter and whereas the department concerned shall take appropriate decision in accordance with law. It is further clarified that in case the petitioner is aggrieved with the decision of the respondent, it shall be open for the petitioner to avail appropriate remedy as available to the petitioner under law. It is further clarified that the respondent shall also consider the case of the petitioner for being appointed directly as an employee of respondent nos. 2 and 3 though on temporary / ad hoc basis not as an employee of the outsourcing agency more particularly in view of the observations of Co-ordinate Bench of this Court in the paragraph quoted herein above. Direct service is permitted.

(NIKHIL S. KARIEL,J) Mrs. J. J. Kedia