Rajahusain Abdulsha Mursad vs State Of Gujarat
2021 Latest Caselaw 13055 Guj

    C/SCA/13835/2020                                  JUDGMENT DATED: 01/09/2021




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD


              R/SPECIAL CIVIL APPLICATION NO. 13835 of 2020
                                  With
              R/SPECIAL CIVIL APPLICATION NO. 10697 of 2021


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE BHARGAV D. KARIA
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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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                       RAJAHUSAIN ABDULSHA MURSAD
                                  Versus
                            STATE OF GUJARAT
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Appearance:
MR ND SONGARA(2198) for the Petitioner(s) No. 1
MR HS MUNSHAW(495) for the Respondent(s) No. 5
NOTICE SERVED BY DS(5) for the Respondent(s) No. 1,2,3,4,6
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    CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA

                             Date : 01/09/2021
                             ORAL JUDGMENT

1. Heard learned advocate Mr. N.D.Sonagara for the petitioner learned Assistant Government Pleader Mr. Dhawan Jayswal for the respondent-State and learned advocate Mr. H.S.Munshaw for the respondent No.5.

C/SCA/13835/2020 JUDGMENT DATED: 01/09/2021

2. Rule returnable forthwith. Learned AGP Mr. Jayswal waives service of notice of rule on behalf of the respondent-State and learned advocate Mr. Munshaw waives service of notice of rule on behalf of respondent No.5.

3. By these petitions under Article 226 of the Constitution of India, the petitioners have prayed for the following reliefs:

"A. Your Lordships may kindly be pleased to admit and allow this petition.

B. Your Lordships may kindly be pleased to issue a Writ of Mandamus and/or any other appropriate writ, order or direction to direct the respondent authorities to extent the benefits of Government Resolution dated 16.07.2019 to the petitioners from 01.01.2019.

C. Pending hearing and final disposal of this petition, Your Lordships may kindly be pleased to restrain the respondent authorities not to terminate the services of the petitioners.

D. Pending hearing and final disposal of this petition, Your Lordships may kindly be pleased to direct the respondent authorities to extend the benefits of Government Resolution dated 16.07.2019 and pay the arrears of wages from 01.01.2019 to the petitioners with prevailing interest.

E. Any other and further relief may kindly be granted as Your Lordships deemed fit, just and proper in the interest of justice.

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4. In the present group of writ petitions, the petitioners are praying for extending the benefits of Government Resolution dated 16.07.2019 to the petitioners from 01.01.2019.

5. Brief facts of the case are that the petitioner was appointed as Peon with the Primary Veterinary Hospital at Village-Meta vide order dated 16.03.1991. It is the case of the petitioner that on 01.12.1993, the service of the petitioner was terminated.

5.1 The petitioner thereafter approached the Labour Court, Palanpur by filing Reference (LCP) No. 806 of 1996 The Labour Court vide award dated 04.07.2007 directed the Live Stock Inspector Primary Veterinary Center, Meta to reinstate the petitioner on his original post without any back wages.

5.2 Against the said award, Banaskantha District Panchayat filed Special Civil Application No. 26309 of 2007 before this Hon'ble Court. This Court vide order dated 03.12.2007 dismissed the petition.

5.3 The Panchayat thereafter preferred Letters Patent Appeal No. 491 of 2008 which was also dismissed by Division Bench of this Court. As such the award dated 04.07.2007 attained finality therefore by letter dated 17.04.2009, the petitioner was reinstated in with continuity of service.

5.4 It is the case of the petitioner that similarly situated part- time employees working with several Government

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Departments had preferred Special Civil Application No. 7462 of 2012 and allied matters wherein this Court vide order dated 21.12.2018 granted the benefit of minimum of pay scale (at the lowest grade in regular pay scale) paid to the regular employees holding the same posts.

5.5 Against the said judgement and order dated 21.12.2018 the respondent-authorities preferred Letters Patent Appeal No. 1155 of 2019 and allied matters and the Division Bench dismissed the LPA confirming the order passed by the learned Single Judge.

5.6 Thereafter, respondent No.3 Finance Department-State of Gujarat issued a Government Resolution dated 16.07.2019 whereby the benefits of regularization as per the directions of this Court has been granted to similarly situated part time employees.

5.7 Similarly another group of petitioners preferred Special Civil Application 277 of 2020 wherein vide interim order dated 08.01.2020 the respondent authorities are directed to consider the case of the petitioners therein for being granted the benefits of GR dated 16.07.2019. The respondent authorities therefore issued a communication dated 22.07.2020 whereby similarly situated part time employees have been granted the benefits of GR dated 16.07.2019.

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5.8 Being aggrieved by inaction on part of the respondent authorities, the petitioners made a representation dated 19.09.2020. Thereafter, since no reply has been received from the respondent-authorities, the petitioners preferred these petitions.

6. Learned advocate Mr. N.D.Sonagra appearing for the petitioner has submitted that the issue is squarely covered by the decision of this Court dated 06.08.2021 in case of Manishkumar Prafulchandra Rathod (Modi) vs State of Gujarat [Special Civil Application No. 15708 of 2020 with allied matter] which reads as under:

"1. In the present group of writ petitions, the petitioners are praying for extending the benefits from 01.01.2019 of the circular dated 16.07.2019 issued by the Finance Department. 2. It is the case of the petitioners that they are in fact rendering services of full time employees, though they were appointed as part timers on a fixed monthly salary. 3. Learned advocate Mr.N.D.Songara appearing for the petitioners has submitted that the issue is squarely covered by the decision of the Supreme Court in the case of State of Punjab and Others vs. Jagjit Singh and Others, (2017) 1 SCC 248. He has further submitted that after considering the aforesaid judgment of the Apex Court, the Coordinate Bench of this Court vide judgment dated 21.12.2018 rendered in Special Civil Application No.7462 of 2012 and allied matters, while considering the policy of outsourcing promulgated vide resolutions dated 10.02.2006 and 25.04.2012, has directed the State Government to consider the cases for payment of minimum wages in the last pay grade as enunciated by the Supreme Court in the case of Jagjit Singh and Others

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(supra). The aforesaid judgment was subject matter of challenge before the Division Bench and the Division Bench vide common order dated 09.05.2019 passed in Letters Patent Appeal No.1155 of 2019 and allied matters confirmed the view of the Coordinate Bench. He has further submitted that thereafter the State Government issued a resolution dated 16.07.2019, extending the benefits of the judgments of this Court to such part time employees/temporary ad hoc employees. It was promulgated that such employees would be granted the fixed pay of Rs.14,800/- in the minimum pay scale of Class-IV employees. It is the case of the present petitioners that though their cases are squarely covered by the said resolution, however, they are not extended such benefits.

4. Learned AGP has submitted that for extending the aforesaid benefits, the service of the petitioners are required to be verified by the concerned department and a proposal has to be sent to the respondent-Finance Department, as per the scheme of the resolution and accordingly, if it is found that the petitioners are entitled, such benefits will be extended.

5. The Coordinate Bench of this Court has specifically observed that in fact the entire policy of outsourcing, which was introduced with resolutions dated 10.02.2006 and 25.04.2012, was held to be illegal. Thus, after the judgments rendered by this Court, it is not open for the State Authorities to engage any employees by way of outsourcing and even if they are engaged, they would be entitled for the wages, as provided under the resolution dated 16.07.2019.

7. 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

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departments within a period of three weeks from the date of receipt of the present order. The concerned departments are also directed to cooperate 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 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.

8. It is clarified that if any adverse decision is taken against the present petitioners, it shall be communicated to them and it would be open for the petitioners to revive the present writ petitions by filing a simple note before the Registry."

7. In view of such facts, the petitions deserve to be allowed and is accordingly allowed. The respondent-authorities are directed to extend the benefit of Government Resolution dated

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16.07.2019 to the petitioners from 01.01.2019. Rule is made absolute to the aforesaid extent.

8. Office is directed to accept the affidavit-in-reply that may be filed by learned Advocate, Mr. H. S. Munshaw, appearing for Respondent No.5 even in the disposed of matter.

(BHARGAV D. KARIA, J) JYOTI V. JANI