Rustamkhan Bilalkhan Pathan vs State Of Gujarat
2022 Latest Caselaw 4099 Guj

    C/SCA/15274/2021                            JUDGMENT DATED: 12/04/2022



          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 15274 of 2021
                                  With
              R/SPECIAL CIVIL APPLICATION NO. 15276 of 2021
                                  With
              R/SPECIAL CIVIL APPLICATION NO. 15277 of 2021
                                  With
              R/SPECIAL CIVIL APPLICATION NO. 15278 of 2021
                                  With
              R/SPECIAL CIVIL APPLICATION NO. 15573 of 2021
                                  With
              R/SPECIAL CIVIL APPLICATION NO. 15280 of 2021
                                  With
              R/SPECIAL CIVIL APPLICATION NO. 15282 of 2021
                                  With
              R/SPECIAL CIVIL APPLICATION NO. 15283 of 2021

FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE BIREN VAISHNAV

==========================================================

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 ?

==========================================================
                       RUSTAMKHAN BILALKHAN PATHAN
                                  Versus
                            STATE OF GUJARAT
==========================================================
Appearance:
MR KISHAN M RATHOD(10765) for the Petitioner(s) No. 1
MR MUKESH H RATHOD(2432) for the Petitioner(s) No. 1
MR.KRUTIK PARIKH, AGP in SCA NOS.15274, 15278 and 15282 of 2021 for
the Respondent(s) No. 1
MR.KURVEN DESAI, AGP in SCA NOS.15276, 15276 and 15573 of 2021
 for the Respondent(s) No. 1
MS.SURBHI BHATI, AGP in SCA NOS.15277 and 15280 of 2021


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     C/SCA/15274/2021                                JUDGMENT DATED: 12/04/2022



for the Respondent(s) No. 1
NOTICE SERVED for the Respondent(s) No. 2,3,4
==========================================================

     CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV

                               Date : 12/04/2022

                         COMMON ORAL JUDGMENT

1. RULE returnable forthwith. Learned AGPs waive

service of notice of Rule on behalf of the respondent

State.

2. With the consent of learned advocates for the

respective parties, the petition is taken up for final

hearing.

3. By way of this petition under Article 226 of the

Constitution of India, the prayers in the petition are

that the order dated 27.10.2020 passed by the

Executive Engineer, Irrigation Division, Bhavnagar,

withdrawing the benefits of work-charge establishment

be quashed and set aside. A further direction is issued

that the respondents be directed to restore the office

order dated 20.09.2016 qua granting the benefits of

work-charge establishment as given to the petitioners

pursuant to the directions issued by this Court in the

C/SCA/15274/2021 JUDGMENT DATED: 12/04/2022

oral order dated 09.03.2016 in Special Civil Application

Nos.1897 to 1903 of 2016 with Special Civil Application

Nos.2107 to 2114 of 2016.

4. Facts in brief would indicate that the petitioners are

working as permanent Rojamdar labourers. They were

appointed by the respondents in the year 1989. The

services of the petitioners were illegally terminated

with effect from 25.02.1992 promoting them to raise an

industrial dispute before the Labour Court, Bhavnagar.

The Labour Court, by an award of 27.05.2002 directed

that the respondents be reinstated with continuity of

service and 80% of back-wages. On petitions being

preferred by the employers, a settlement was arrived at

by which the petitioners-workmen had foregone back-

wages and therefore they were reinstated in service.

They were also granted the benefits of the resolution

dated 17.10.1998 by an order of 02.09.2008. The case

of the petitioners was that though the petitioners were

entitled to status of work-charge, they were not being

so granted the benefits in accordance with the

Government Resolution dated 12.12.1989. This was

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because the petitioners if were put in work-charge

establishment, would get additional benefits like leave

encashment, pensionary benefits, benefits of ESI

holidays on festivals, group insurance etc.

5. Despite several requests being made, since the

petitioners were not granted such benefits, the

petitioners approached this Court by filing Special Civil

Application Nos.1897 to 2016 and other allied matters.

This was because similarly situated employees working

with the petitioners were granted the benefit of work-

charge establishment, pursuant to the orders of this

Court in Special Civil Application No.24906 of 2006 and

allied petitions vide an oral order dated 05.12.2006. By

a common oral order dated 09.03.2016 passed in case

of the present petitioners, the petitions were allowed

based on the decision rendered in Special Civil

Application No.24906 of 2006, wherein, the Court

granted them the benefits of the resolution dated

12.12.1989. This was particularly in view of the fact

that the Court opined that since in the earlier petitions

the respondents had accepted the order and

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implemented the same by passing Order No.212 of

2007, based on the order passed on 09.03.2016, the

respondents on 20.09.2016 extended the benefits of the

work-charge establishment to the petitioners and the

same was extended subject to the outcome of the

Letters Patent Appeal filed before the Division Bench.

6. When the appeals were filed before the Division Bench

and they came up for hearing, it was pointed out by

Shri Mukesh Rathod learned counsel for the

respondents that in view of the fact that orders have

already been implemented and the petitioners had been

granted the benefits of resolution of 12.12.2019,

Letters Patent Appeal would not survive. The Division

Bench, therefore, according to Mr.Rathod, disposed of

the appeals and modified the orders of the learned

Single Judge in context of the benefits of the resolution

dated 16.08.1973 and not of the petitioners who were

extended the benefits pursuant to the resolution dated

12.12.1989. In support of his submission, Mr.Rathod

would rely on the pleadings of the petition and

submitted that the order was modified by the Division

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Bench wherein the prayers were to extend the benefits

of the Government Resolution dated 04.07.19736 and

16.11.1973.

7. He would therefore assail the impugned order dated

20.07.2021 on two grounds viz. that the order of

withdrawal was passed without granting opportunity of

hearing to the present petitioners. Secondly, even

otherwise, the benefits that were granted to the

petitioners was in response to the resolution dated

12.12.1989 and not in pursuance of the resolution of

19.07.1973 which was subject matter of challenge

before the Division Bench. In support of his

submission, Mr.Rathod would rely on para 18.2 of the

judgment of the Division Bench where relevant

Government Resolution and circulars were referred.

8. Mr.Krutik Parikh learned AGP vehemently opposed the

petitions and took the Court through the impugned

order and the preface thereto. He would submit that

the order of withdrawing the benefits granted to the

petitioners vide order dated 20.09.2016 was just and

proper. He would submit that the order granting such

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benefit was conditional inasmuch as it was subject to

the outcome of the LPA.

9. He would therefore invite the attention of the Court to

the operative portion of the order of the Division Bench

dated 29.06.2018, passed in Letters Patent Appeal

No.380 of 2016 and allied matters, where, the Court

partly allowed the appeals and the directions of the

learned Single Judge in case of daily wagers and the

direction that on completion of their five years of

service, they shall be absorbed in the work-charge

establishment and they shall be paid all the

consequential benefits was quashed and set aside. He

would also invite the Court's attention to the

observations of the Division Bench, particularly para

21.1 of the order, which read as under:

"[21.1] So far as the impugned direction/s in respect of workcharged employees namely all those workcharged employees to be absorbed / converted to temporary establishment on their completion of 5 years' service and they shall be paid the consequential benefits accordingly is hereby quashed and set aside and is modified to the extent and it is held that all those petitioners -

workcharged employees who have worked for more than 20 years as workcharged employees shall be entitled to conversion to temporary

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establishment as per the G.R. dated 16.08.1973 from the date on which they complete 20 years of service as workcharged and they shall be entitled to all the benefits which may be available to the employees working in the temporary establishment, including the benefit of higher pay scale / grade if at all the same is being paid to the employees working in the temporary establishment, however they shall be paid the arrears on such conversion to temporary establishment for the period preceding 3 years of filing of the respective petitions. The arrears shall be calculated and paid within a period of 4 months from today, failing which it shall carry interest at the rate of 9% per annum. It is also directed that in case any of the work charged employee has retired, he shall be paid the retirement benefits as if he was converted to temporary establishment provided such employee has worked for not less than 20 years as workcharged employee and retirement benefits be calculated and paid accordingly, however they shall be paid the arrears for 3 years only. Such exercise also shall be completed within period of four months from today. Present appeals are partly allowed to the aforesaid extent. In the facts and circumstances of the case, there shall be no order as to costs."

10. From the above quoted para, it can be seen that the

conditions with regard to granting the benefits of such

work-charge employees who have worked for more

than 20 years was also modified. He would therefore

submit that be it the resolution of the year 1973 or that

of 1989, both the resolutions were in context of

extending the benefits of work-charge establishment

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and therefore merely because the petitioners were

extended the benefits of the resolution of 12.12.1989,

could not in any manner make the case of the

petitioners better.

11. Considering the submissions made by the learned

counsel for the respective parties, if the order dated

20.09.2016 is perused, it extended the benefits of the

resolution dated 12.12.1989 to the petitioners.

Pursuant to the orders passed by a coordinate bench of

this Court on 09.03.2016 in Special Civil Application

No.1897 of 2016 and allied matters, this Court

considered the prayers of the petitioners. The prayers

of the petitioners in those petitions as reproduced by

the Court in para 3 thereof read as under:

"3. The writ-applicants before me are serving as daily-wagers with the Irrigation Department of the State Government and after receiving benefits of the Government Resolution dated 17th October 1988, have prayed for the following reliefs:-

"12(A) To admit this petition.

(B) To issue writ of mandamus or any other appropriate writ, order or direction directing the respondent authority to grant the status/post of Work Charge employees in favour of the petitioners on the basis of Circular dated

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12.12.1989.

(C) To issue appropriate writ or order to direct the respondent authority to consider the case of the petitioner for the status/ post of Work Charge employees at par with the other similar situated employees and as per the oral orders passed by this Court in Special Civil Application No.24906 of 2006 with 25112 to 25244 and Special Civil Application No.297 of 2010 forthwith.

(D) Pending admission, hearing and final disposal of this petition, to direct the respondent authority to not to change the service conditions of the petitioner. (E) Such other and further relief/s as the court may deem just and proper in the facts and circumstances of the case may be pleased to grant to the petitioner;"

12. The Court extensively relying on the decision rendered

in Special Civil Application No.24906 of 2016 allowed

the petitions and directed the authorities to consider

the case of the petitioners inasmuch as the petitioners

of the earlier petition had been granted the benefit

based on the order passed in Special Civil Application

No.24906 of 2006. This Court in the order of

09.03.2016, has extensively reproduced the order

fpassed in the earlier round and therefore the order

needs reproduction which reads as under:

"1. Heard learned Advocate Mr.TH Sompura for petitioners, learned AGP Mr. LB Dabhi appearing

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for respondents. Learned Advocate Mr. Sompura submitted that these petitioners are having identical facts and circumstances which have been considered by this Court in earlier order passed in SCA NO. 9852 of 2006 on 28.7.2006.

2. Earlier, aforesaid petition was also filed by learned Advocate Mr. Sompura on behalf of the petitioner union and this Court has passed an order on 28.7.2006. Learned AGP Mr. Dabhi appearing for respondent submitted that facts and circumstances are almost similar to the earlier order, therefore, same order may be passed by this court. Considering the submissions made by both the learned Advocates, following order has been passed.

3. Heard learned Advocate Mr. Sompura for petitioners and Ms.Darshana Pandit, learned AGP for respondents. Facts of this case are to the effect that the members of the petitioner mentioned in AnnexureA to the petition union joined as daily wager with the respondents between 1974 to 1985. Respondents have given status of work charge employee to more than 4000 daily wagers from time to time either in view of the orders of this court or by passing necessary orders at their own. Respondents have passed orders in favour of daily wagers appointed between 1985 to 2005 giving them status of work charged employee. At that time, claim of the members of the petitioner union those who are senior was ignored by the respondent. List of concerned members (workmen) mentioned in Annexure A those who were appointed between 1974 to 1985 are senior most and yet legitimate benefit flowing from the Government Resolution has been denied to them without any justification though such benefits were given to the employees junior to the members of the petitioner union. Though members of the petitioner union is senior to the other group of persons who were recruited in the year 1985 to

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2005, they are enjoying such benefits and such claim of the members of petitioner union has been ignored by the respondent authority. These are the grievances raised by the petitioner union on behalf of its members whose names have been mentioned in Annexure A.

4. In view of the aforesaid facts, learned Advocate Mr.Tushar Sompura submitted that similar benefits may be granted in favour of the members of petitioner union as it was granted in favour of the employees junior to the members of the petitioner union. He submits that such benefits granted to employees junior to the members of petitioner union as per GR dated 12.12.1989 are required to be granted to the members of petitioner union. He also submitted that such claim of the members of petitioner union was ignored by the respondent authority which is violative of Article 14 of the Constitution of India.

5. On the other hand, learned AGP Ms. Pandit submitted that if the members of petitioner union are entitled for such benefit, then, they should have to approach the respondent authority and their claim will be considered by the respondent authority at par with the other employees who have been given such benefit provided they are entitled for such benefits flowing from GR dated 12.12.1989.

6. Considering the submissions made by the learned Advocates for the parties, and perusing the record of the present petition as well as the GR dated 12.12.1989 in particular and considering the fact that the respondent has not filed any affidavit though copy of petition served on Advocate for respondent on 30.11.2006 and not challenged the contentions that the employees junior to the members of petitioner union have been granted such benefit as per GR dated 12.12.1989, members of the petitioner union are

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entitled for such benefits at par with those employees who are granted such benefits as per GR dated 12.12.1989. Therefore, considering all these aspects of the matter, it is directed to the respondents to consider the case of the members of petitioner union whose names have been mentioned at Annexure-A for the benefits of GR dated 12.12.1989 and if they are entitled for such benefits, then to grant all the benefits which are available to them as per GR dated 12.12.1989 within three months from the date of receipt of copy of this order. It is clarified that these directions have been issued by this Court considering the fact that the affidavit has not been filed by the Respondent and also considering the statement made by Mr. Sompura that if their case for benefit as per GR dated 12.12.1989 is considered by the Respondent authority positively, then, none of the members of petitioner union as per Annexure A will claim any difference of salary or arrears of salary for the interim period and same may be granted prospectively means future effect without any past effect. It is also made clear that if the juniors were given continuity of service while considering their case as per GR dated 12.12.1989, then same benefits of continuous service must be given to the members of petitioner union. It is also clarified that the members of petitioner union are not entitled for benefit of any arrears as a consequence of consideration of their case by the respondent but if such benefits were granted by respondent to the employees junior to petitioner union, then, same benefits shall have to be granted to the petitioner union at par with those employees.

7. In view of above observations and directions, without expressing any opinion on merits, present petition is disposed of. Notice is discharged. No costs."

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13. When Letters Patent Appeals were filed including the

one in the case of the present petitioners, reading para

11 of the order of the Division Bench in the group of

Letters Patent Appeals, led by Letters Patent Appeal

No.380 of 2016. Para 11 of the order reads as under:

"[11.0] Shri Mukesh Rathod, learned Advocate appearing on behalf of the respondents herein in LPA Nos.1441/2016 to 1455/2016 arising out of Special Civil Application Nos.1897/2016 to 2114/2016 has vehemently submitted that all the original petitioners were working as Rojamdar since many years, however they were granted the benefit of G.R. dated 17.10.1988 only, however were not granted the benefit of conversion of work charged establishment. It is submitted that order passed by the learned Single Judge in aforesaid Special Civil Applications dated 09.03.2016 has been implemented and the original petitioners are already granted now the benefit of work charged establishment pursuant to the impugned judgment and order passed by the learned Single Judge."

14. Reading the order would indicate that as far as Letters

Patent Appeal No.1455 of 2016 is concerned, since the

petitioners were already granted the benefits, before

the order in appeal, the Division Bench was expected

not to disturb the findings. Even on perusal of para

18.2 of the decision of the Division Bench which reads

as under, the same would indicate that the relevant

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Government Resolutions which were under

consideration were the resolutions except the one

dated 12.12.1989.

"[18.2] While considering the case of the aforesaid class of the petitioners viz. daily wagers and the work charged employees working on work charged establishment, the chronology of dates and events and the relevant G.Rs. are required to be referred to and considered which are as under:

Sr. Date            Particulars
No.

1. 04.07.1973 A Government Resolution came to be issued by the Public Works Department of the State Government with reference to the appointment of Daily Wagers working on the nominal Muster Roll in various Departments of the State Government on work charged establishment subject to various circumstances / conditions amongst the following:

i) Occurrence of vacancy in the existing post on the work charged establishment because of current post falling vacant on the work charged establishment; or

ii) Creation of new posts on the work charged establishment;

iii) Completion of minimum 5 years of service as Daily Wage worker;

iv) Benefit of such an appointment to the post of work charged establishment shall not be available in case of Telephone Operator, Clerk and/

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or any other post for which SSC has been fixed as the educational qualification.

2. 16.11.1978 A Government Resolution came to be issued by the Public Works Department, inter alia, clarifying in the matter of 5 years of service as Daily Wager by providing that in a current year, the Daily Wager to remain in the employment at least for one year, out of which, he should have attended duty at least for 180 days and that for counting 5 years as Daily Wager, there should be average 240 days of presence in the said period of 5 years.

3. 03.02.1987 A circular came to be issued by the Roads & Buildings Department, declaring a prohibition on the new recruitment, interalia, on work charged establishment from Daily Wager.

4. 24.03.1988 A Government Resolution came to be issued, constituting a Committee under the Chairmanship of Shri Dolatbhai Parmar to examine and consider the long pending demand of Daily Wagers working in different departments of the State Government.

5. 11.07.1988 A Government Resolution came to be issued by the Roads & Buildings Department, categorically declaring that no Daily Wager should be recruited on work charged establishment in view of the constitution of the aforesaid Committee for considering various service related issues of Daily Wagers.

6. 17.10.1988 Three Government Resolutions, all of the same date came to be issued by the Roads & Buildings Department of

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the State Government, granting substantial benefits to the Daily Wagers of 3 different categories, viz. unskilled; semiskilled and skilled.

7. 31.03.1989 In view of the issuance of Government Resolutions dated 17.10.1988, referred to above, the State Government issued a Circular / instruction, interalia declaring that in the absence of there being any provision of appointing Daily Wager on work charged establishment in the said Government Resolutions dated 17.10.1988, appointment of Daily Wagers as work charged employees should be totally banned.

8. 30.05.1989 A circular came to be issued by the Roads & Buildings Department, inter- alia, clarifying more particularly with reference to Daily Wage workers in whose benefit the above referred 3 Government Resolutions dated 17.10.1988 were issued.

9. 05.06.1989 A Government Resolution in the Roads & Buildings Department came to be issued, once again reiterating about the ban on the conversion of Daily Wagers to work charged employees, wherein by way of NoteI to Clause (6), it was clarified that in view of the benefits having been granted under the Government Resolution dated 17.10.1988 with reference to Daily Wagers, there is no question of converting Daily Wagers into work charged employees and, therefore, Daily Wagers are not to be taken on work charged establishment.

10. 05.01.1990 A Government Resolution in the Roads & Buildings Department came to be issued, interalia, substituting the earlier Resolutions dated 04.05.1973,

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16.11.1973 and the instructions for converting Daily Wagers on the work charged establishment in the wake of the policy and the Rules announced by the aforesaid 3 Government Resolution dated 17.10.1988, in case of Daily Wagers.

11. 02.07.2007 A Government Resolution came to be issued substituting earlier policy for grant of benefit of higher payscale in lieu of the promotion on completion of 9-18-27 years by a new policy for grant of said benefit on completion of 12-24 years, wherein clause 1(4) clearly provides that said policy will not be applicable to work charged establishment employees.

RELEVANT GOVERNMENT RESOLUTIONS WITH REFERENCE TO CONVERSION OF WORK CHARGED EMPLOYEES INTO THE EMPLOYEES WORKING ON TEMPORARY ESTABLISHMENT

Sr. Date Particulars No.

1. 16.08.1973 A Government Resolution came to be issued for converting workcharged employees working only in maintenance, repairs and irrigation management of any works, into temporary establishment, subject to certain conditions, including the rendition of service of minimum period of 5 years.

2. 03.02.1987 A Circular came to be issued, declaring prohibition on

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the new recruitment on workcharged establishment as well as on daily wage basis.

3. 20.08.2014 A Government Resolution came to be issued for cancelling/revoking the aforesaid Government Resolution dated 16.08.1973 from the date of the issuance thereof.

[18.3] Now, so far as those who are working as daily wagers and claiming absorption in the work charged establishment is concerned, considering the aforesaid G.Rs. with reference to the conversion of the daily wagers / rojamdars to work charged employees, it appears that earlier they were governed by G.R. dated 04.07.1973. G.R. dated 04.07.1973 came to be issued by the Public Works Department of the State Government with reference to the appointment of daily wagers working on the nominal Muster Roll in various Departments of the State Government on work charged establishment, however subject to various circumstances / conditions viz. (i) occurrence of vacancy in the existing post on the work charged establishment because of current post falling vacant on the work charged establishment; (ii) Creation of new posts on the work charged establishment; (iii) completion of minimum 5 years of service as Daily Wage worker; and (iv) benefit of such an appointment to the post of work charged establishment shall not be available in case of Telephone Operator, Clerk and/or any other post for which SSC has been fixed as the educational qualification. The aforesaid G.R. dated 04.07.1973 was further clarified vide G.R. dated 16.11.1978 clarifying that while calculating 5 years of service as Daily Wager, the Daily Wager has to remain in the employment at least for one year, out of which, he should have attended duty at least for 180 days and that for counting 5 years as Daily Wager, there should be average 240 days of presence in

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the said period of 5 years. From the aforesaid chronology of dates and events, it appears that thereafter there was a complete prohibition. It appears that the Government came out with a new policy decision in form of G.R. dated 17.10.1988 issued by the Roads & Building Department of the State Government, granting substantial benefits to the daily wagers of three different categories viz. unskilled; semi-skilled and skilled. On considering the G.R. dated 17.10.1988, it appears that the State Government accepted the recommendations made by the experts / committee and it has been resolved to extend certain benefits to the daily wager employees.

[18.4] G.R. dated 17.10.1988 is a resolution of the Government under which it has been resolved to extend certain benefits to the daily wage employees. Clause (2) of the said resolution provides that as per the provisions of Section 25(B) of the ID Act, daily wage labourers who have put in more than five but less than ten years of service on 01.10.1988, shall be paid monthly wage arrived at by taking into consideration the fixed monthly pay payable as per the prevailing pay- scale in the concerned cadre and the dearness allowance admissible there on as per the prevailing rates, for the number of days present. Besides, 14 casual leaves including two for restricted holidays, leave of Sundays and leave on the days of National Festivals shall be admissible in a year with pay and the benefits of Medical facilities and deduction for General Provident Fund shall also be admissible as per the rules. Clause (3) provides that the skilled daily wage labourers who have put in more than ten years of service on 01.10.1988 shall be considered permanent and such permanent labourers shall be placed in the running scale of the prevailing pay- scale of the concerned cadre and accordingly, pay, dearness allowances, house rent allowance, local compensatory allowances shall be paid to him. It

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is further decided to give such persons the benefits of superannuation, pension, gratuity, General Provident Fund etc. as per the prevailing rules. Further, 14 Casual leaves including two for restricted holidays, 30 earned leaves, 20 half pay leaves shall be admissible to them over and above the weekly leave of Sundays and the leave on the days of National Festivals. The age-limit for superannuation of the permanent labourers shall be 60 years. The period of permanent service shall be treated as qualifying service. It has further been decided that as per the provision of Section 25(B) of the ID Act, the skilled labourers who have completed 15 years of service on 01.10.1988, shall be given one increment and who have completed 20 and more than 25 years of service likewise shall be given two and three increments in the prevailing payscale of the concerned cadre respectively and their pay shall be accordingly fixed on 01.10.1988. Thus, on interpretation of the new policy contained in G.R. dated 17.10.1988, all the daily wagers working in different departments of the State Government shall be entitled to the benefit flowing from the G.R. dated 17.10.1988 only. At this stage it is required to be noted that vide Circular dated 31.03.1989, it was clarified that the appointment of daily wagers as work charged employee is banned in view of the G.Rs. Dated 17.10.1988 and has no provision for appointment of daily wagers on work charged establishment having been made vide aforesaid G.R. Therefore, on and after 17.10.1988 the earlier G.R. / policy shall not be applicable at all more particularly the G.R. dated 04.07.1973.

[18.5] Identical question came to be considered by the learned Single Judge of this Court in the case of Karshanbhai K. Rabari & Ors. vs. State of Gujarat rendered in Special Civil Application No.11071/1993 by which a similar relief was sought by those working as daily wagers and after

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considering the subsequent policy decision in the form of G.Rs. Dated 17.10.1988 and by observing that the petitioners who are appointed as daily wagers have no right whatsoever, the learned Single Judge dismissed the said petition and observed and held that all those daily wagers shall be governed by the G.R. dated 17.10.1988. The decision of the learned Single Judge in Special Civil Application No.11071/1993 has been affirmed by the Division Bench vide order in Letters Patent Appeal No.1134/1997. In another decision in the case of Bhimjibhai Bhanjibhai Gohil vs. State of Gujarat rendered in Special Civil Application Nos.4726/2004 and 12247/2004, the learned Single Judge rejected the prayer of those daily wagers who prayed for a direction to the authorities to consider their case for being granted the benefits of work charged employees and regularization. That in the said decision the learned Single Judge considered the subsequent policy decision vide G.R. dated 17.10.1988. In para 3 the learned Single Judge has observed and held as under:

"3. When the petitioners have been given the benefits of the circular dated 17-10-1988 and when their case for being treated as work charged employees or for regularization is not backed by any government resolution, their case cannot be accepted merely on the ground that the some other employees have received the said benefits irrespective of want of vacancies and financial constraint of the government. It is true that the petitioners are working since long, however, their case for regularization cannot be considered unless they are selected for regular vacancies in accordance with rules. I am sure if in future occasion arise to grant further benefits of work charge, the cases of the petitioners will be considered by the government in accordance with the rules and their seniority. Subject to above observations, the petitions are rejected."

The said decision of the learned Single Judge has

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also been confirmed by the Division Bench vide order in Letters Patent Appeal No.590/2007 in Special Civil Application No.4726/2004. Yet in another decision in the case of Dashrathbhai Naranbhai Tadvi & Ors. vs. State of Gujarat & Anr. Rendered in Special Civil Application No.11393/2000, the learned Single Judge after following the decision of the Hon'ble Supreme Court in the case of Umadevi (3) (Supra) rejected the said petition in which the daily wagers prayed for an appropriate writ, direction and order directing the State to take them on regular establishment on and from their passing the SSC examination with all incidental benefits. Before the learned Single Judge it was the case on behalf of the petitioners that they are daily wagers workmen working under the Department since last more than 15 to 20 years. However, considering the decision of the Hon'ble Supreme Court in the case of Umadevi (3) (Supra) in which it is observed by the Hon'ble Supreme Court that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules. It is not open to the Court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of adhoc employees who by the very nature of their appointment, do not acquire any right. The decision of the learned Single Judge has been confirmed by the Division Bench vide order in Letters Patent Appeal No.2626/2010."

15. The Court extensively considered these resolutions as is

evident from those paragraphs. What was decided by

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the Division Bench is apparent from paragraphs 20.0 to

21.1. When these observations of the Division Bench

are seen in context of the prayer made by the one of

the petitioners in which the resolution of 1973 was

under challenge, the prayer reads as under:

"(A) This Hon'ble Court may be pleased to issue writ of Mandamus or any other appropriate writ, order or direction directing the respondents herein to grant the benefits of the government Resolutions dated 4.7.1973 and 16.11.1973 to the employees listed at Annexure-"A" to this petition and further be pleased to direct the respondents to place them in appropriate pay scales from the date of their first employment and to pay all arrears and all other consequential benefits arising out of their regularization as per the Government Resolutions dated 4.7.1973 and 16.11.1973.

(B) This Hon'ble Court may be pleased to quash and set aside the order passed by the respondents dated 30.6.2003 at Annexure-"H" to this petition and further be pleased to direct the respondents herein to refund back the amount to the concerned employees, if it is recovered as per the order dated 30.6.2003.

(C) This Hon'ble Court may be pleased to direct the respondents herein to give the benefits at par with their juniors employees as well as on completion of 5 years in their service as per Resolution dated 4.7.1973 and 16.11.1973 and be pleased to quash and set aside the letters dated 7.11.2000 and 8.11.2000 at Annexure-"E" to this petition.

(D) Pending admission, hearing and final disposal of this Special Civil Application, this Hon'ble Court may be pleased to stay the implementation, execution and operation of the impugned order dated 30.6.2003 at Annexure-"H" to this petition passed by the

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respondents."

16. Considering all these factual aspects of the matter,

what can reasonably be inferred is that the impugned

order dated 27.10.2020 proceeds on the assumption

that since the Division Bench by its judgment dated

29.06.2018, partly allowed the said LPAs, ipso-facto,

the order of 20.09.2016 granting the benefits of the

resolution dated 12.12.1989 in favour of the petitioners

should be withdrawn. That is the only reason that

seems to forthcoming on reading the impugned order.

17. Apart from the fact that the order does not seem to

reflect consideration of the submissions and the

observations made hereinabove in context of the

distinguishable feature in case of the petitioners

inasmuch as what the petitioners had earned was the

benefit of work-charge establishment pursuant to the

resolution dated 12.12.1989 and not those which were

under consideration before the Division Bench. Nothing

reflects in the order of parity of the orders. The parity

on which the applicability of the Division Bench

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decision should be applied while withdrawing the

benefits of the petitioners.

18. That apart, the order of withdrawal has been passed

unilaterally without hearing the petitioners. Though

Mr.Krutik Parikh learned AGP would submit that no

formal hearing was necessary in view of the fact that

when the orders granting them the benefits were

issued on 20.09.2016, it was conditional subject to the

LPA and the petitioners were therefore aware of such

conditional benefits, that submission of the learned

AGP does not merit consideration in view of the fact

that the order of withdrawal was passed four years

after the same was granted and therefore it was

necessary for the respondents if they thought fit the

same had to be withdrawn to pass such orders after

observing the principles of natural justice.

19. On the two grounds therefore, that the order does not

reflect reasoning as to how and if the case of the

petitioners is distinguishable as the observations of the

Division Bench were in context of the resolutions which

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were not applicable to the petitioners and also on the

ground of absence of hearing, the orders are quashed

and set aside.

20. It is open for the respondents to reconsider the issue

and pass fresh orders after giving an opportunity of

hearing to the petitioners where it will be open for the

petitioners to contend that the benefits that they have

been granted have no correlation to the observations

and the operative portion of the orders of the division

Bench in the Letters Patent Appeal. The entire exercise

of reconsidering the case shall be completed after

explaining an opportunity of hearing to the petitioners

preferably within a period of three months from the

date of receipt of copy of these petitions.

21. The petitions are partly allowed. Rule is made absolute

to the aforesaid extent.

(BIREN VAISHNAV, J) ANKIT SHAH