Desai Bhavanaben Faljibhai vs State Government
2022 Latest Caselaw 7176 Guj

      C/SCA/14762/2014                             JUDGMENT DATED: 18/08/2022




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                R/SPECIAL CIVIL APPLICATION NO. 14762 of 2014

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE A.Y. KOGJE
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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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                          DESAI BHAVANABEN FALJIBHAI
                                    Versus
                         STATE GOVERNMENT & 2 other(s)
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Appearance:
MR JA ADESHRA(107) for the Petitioner(s) No. 1
MS. SURABHI BHATI, AGP, for the Respondent(s) No. 1
MR DG CHAUHAN(218) for the Respondent(s) No. 2,3
RONAK D CHAUHAN(7709) for the Respondent(s) No. 2,3
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    CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE

                               Date : 18/08/2022
                               ORAL JUDGMENT

[1] This petition under Article 226 of the Constitution of India is filed by the petitioner seeking direction to the respondent- Agricultural University to treat the petitioner as permanent on the post of Agriculture Assistant w.e.f. 01.01.2003 as per the order passed by the Registrar of Sardar Krushinagar Dantiwada Krushi University dated 22.06.2004 and grant her the benefits

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accordingly.

[2] It is the case of the petitioner that pursuant to the decision of the Apex Court in case of Gujarat Agricultural University v/s. Labhu Bechar Rathod, reported in (2001) 3 SCC 574, the petitioner was also entitled to be treated as permanent employee as she was working continuously since 1992. It is submitted that the benefit of the judgment of the Apex Court in case of Labhu Bechar (Supra) was extended to all the other employees similar to the petitioner, but the petitioner was not given such benefit.

[2.1] The cause of action for the petitioner had arisen when the respondent-university issued fresh advertisement in 2013 for filling 27 posts of Agriculture Assistant (backlog) and 9 posts (left out) Agriculture Assistants which were filled up by SC, ST and OBC candidates.

[2.2] However, by an order dated 22.06.2004 by the Registrar, the petitioner was given permanent post of Agriculture Assistant, but without giving the benefit to the petitioner, the respondent had issued aforesaid advertisement and hence, the petitioner had approached Industrial Tribunal by filing complaint I.T.No.319 of 2013 and by an order dated 04.12.2013, the proceedings of the advertisement were stayed however, later on the said application came to be rejected upon the statement that 1 post of Agriculture Assistant will be kept open. This order was subject matter of challenge in Special Civil Application No.713 of 2014 which the petitioner has ultimately withdrawn vide order dated 25.06.2014.

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[3] Learned advocate appearing for the petitioner has sited several examples where other employees like the petitioner were given the benefit and the petitioner has received information from her colleague that one post of Agriculture Assistant is still vacant. The petitioner therefore, has agitated that unfair treatment is meted out to the petitioner and that there is an order by the concerned authority for giving the benefit of permanent employee, the benefit actually is not being given.

[4] Learned advocate appearing for the respondent has opposed the grant petition mainly by submitting that the order of the Apex Court in Labhu Bechar (Supra) is overruled in the case of State of Karnataka v/s. Umadevi, reported in (2006) 4 SCC 1 and therefore, the petitioner cannot seek benefit of the decision in Labhu Bechar (Supra).

[4.1] Learned advocate has contended about suppression of material fact by submitting that the petitioner has not disclosed the relevant aspects of previous litigation being Special Civil Application No.713 of 2014 and the petitioner having filed Civil Application No.1933 of 2014 in Special Civil Application No.713 of 2014, claiming regularization and stay of the interview process, which the petitioner has withdrawn. Learned advocate has denied that any employee like the petitioner has been given the benefit and made permanent with all the benefits on the post of Agriculture Assistant. Learned advocate has also submitted that the petitioner had in response to the advertisement in 2013 made an application for appointment as Agriculture Assistant however, did not remain

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present for examination/interview and therefore, not having cleared the prescribed recovery process, the petitioner cannot be given the benefit of being appointment to the post of Agriculture Assistant.

[5] As against this in rejoinder, learned advocate appearing for the petitioner submitted that the petitioner has not suppressed any material fact as in the very petition, the petitioner has referred to the proceedings before the Industrial Dispute and the outcome therein. Over and above, the prayer before the Industrial Tribunal was against the advertisement and a different issue. It is further submitted that the petitioner has given the illustration where like the petitioner other candidates have been given the benefit of permanent appointment to the post of Agriculture Assistant who were also like the petitioner as daily wagers. Learned advocate submitted that the respondent is incorrect in stating that the case of Labhu Bechar (Supra) is overruled by the decision of Umadevi (Supra) and therefore, benefit cannot be extended whereas in fact, the respondent themselves have pursuant to the decision of Labhu Bechar (Supra), extended the benefits, but are adopting policy of pick and choose to give the benefit.

[6] The Court has heard learned advocates for the parties and perused the documents placed on record. The petitioner has passed Diploma in Khetivadi (Agriculture) and was thereafter, appointed as daily wager with Gujarat Agricultural University on 22.04.1992 as Agriculture Assistant and has continuously worked. Therefore, by now the petitioner has put

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in more than 20 years. From the pleadings, it appears that the petitioner has been working without any complaint against her. The Circulars are issued from the employer in this connection. The office order dated 22.06.2004 at Annexure-D indicates that the the petitioner is given an appointment of Agriculture Assistant and as per the seniority list, the effect of permanency is given from the date 01.01.2003. This order was on the basis of the order of the Supreme Court in Appeal Nos.691 of 2001 to 694 of 2001 i.e. the case of Labhu Bechar (Supra). The order at Annexure-D specifically refers to the order of the Apex Court. In the said order, Clauses-3 and 4 read as under:-

"3. Such daily wagers shall be made permanent in the pay scale of the concerned posts on availability of the post or creation of new posts in the relevant cadre.

4. The Standing Orders shall be issued w.e.f. 01/01/2003 in accordance with decision taken by the Uni. as to which benefits of service shall be given to such daily wagers who are made permanent. However, at present the Date of Birth/Age of the concerned (person) shall be considered. So that, no legal question may arise."

[7] Based on the decision of Labhu Bechar (Supra), several petitions have been filed time and again before this Court. One of them being Special Civil Application No.15183 of 2011 and cognate matters, wherein also the petitioners had claimed the benefit of the scheme for regularization pursuant to the decision of Labhu Bechar (Supra). This Court while passing the order dated 17.10.2011 had taken into consideration the fact of the decision of the Apex Court in Umadevi (Supra) and the decision in case of State of Karnataka and others v/s. M.L.Kesari, reported in (2010)

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9 SCC 247 and held as under:-

"7. However, on perusal of the decisions as above, Gujarat Agricultural University, Secy, State of Karnataka v. Umadevi and State of Karnataka and Ors. v. M.L. Kesari those daily rated workmen who have completed 10 years of service and also completed 240 days in each calendar year atleast deserves as a part of one time measure to be considered for regularization and the respective authorities are duty bound to, consider such measure so that what is explained in the case of State of. Karnataka and Ors. v. M.L. Kesari in paragraphs 9, 10 and 11 that long service rendered by the workmen may not be deprived benefits of regularization. In the case on hand the petitioners are entitled to get benefit of one time measure as contained in para 53 in the case of Secy., State of Karmataka v, Umadevi In the above circumstances, the respondent authorities have to examine case of each of the petitioners vis-a-vis the post on which the petitioner-workmen is working, qualification contained therein, nature of duty discharged by such workmen, in light of the scheme approved by the Apex Court in Gujarat Agricultural University and also process under taken by the petitioner workmen before Government Labour Officer, Banaskantha, be expedited and preferably within six weeks as far as possible and necessary information sought for by such officer be furnished for the authorities as early as possible so that decision in accordance with law can be taken by such officer."

[8] Accordingly, it was directed to examine the case of the petitioners therein in light of the decision.

[9] The submission of learned advocate for the respondents about the case of Umadevi (Supra) overruling the case of Labhu Bechar (Supra) does not appear to be a correct proposition. The Apex Court thereafter, also has extended the benefit of the decision in case of Labhu Bechar (Supra) to the employees of Agricultural University and as late as the decision of the Apex Court in case of Vice Chancellor Anand Agriculture University v/s. Kanubhai Nanubhai Vaghela

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and Another, reported in AIR 2021 SC 3529 has directed the Agricultural University to extend such benefit, wherein in para-11 it is held as under:-

11. We have heard Mr. P.S. Patwalia, learned senior counsel for the university and Mr. Nachiketa Joshi, learned counsel for the respondents. The main contention of the university is that after the judgment of this Court in Secretary, State of Karnataka and ors. vs. Umadevi and ors. 2, the respondents are not entitled for regularization as there are no sanctioned posts available. Another submission made on behalf of the appellant is that the judgment of this Court dated 18.01.2001 in Gujarat Agricultural University (supra) does not survive after the judgment of this Court in Uma Devi. It is no doubt true that in Umadevi's case, it has been held that regularization as a one-time measure can 2 (2006) 4 SCC 1 7 | Page only be in respect of those who were irregularly appointed and have worked for 10 years or more in duly sanctioned posts. However, in the instant case the respondents are covered by the judgment of this Court in Gujarat Agricultural University (supra). This Court approved the proposed scheme of the State of Gujarat and directed regularization of all those daily wagers who were eligible in accordance with the scheme phase-wise. The right to be regularized in accordance with the scheme continues till all the eligible daily-wagers are absorbed. Creation of additional posts for absorption was staggered by this Court permitting the appellant and the State of Gujarat to implement the scheme phase-wise. We are not impressed with the submissions made on behalf of the university that the judgment of this Court in Umadevi's case overruled the judgment in Gujarat Agricultural University (supra). The judgment of this Court in Gujarat Agricultural University (supra) inter partes has become final and is binding on the university. Even according to Para 54 of Uma Devi's case, any judgment which is contrary to the principles settled in Umadevi shall be denuded of status as precedent. This observation at Para 54 in Umadevi's case does not absolve the university of its duty to comply with the directions of this Court in Gujarat Agricultural University (supra)."

[10] This Court in case of Vice Chancellor v/s. Pujabhai Gangajibhai Boriya in Letters Patent Appeal No.1223 of 2018 vide order dated 27.09.2018 has considered the similar

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argument extended on behalf of the Agriculture Assistant and has held as under:-

"...The purpose and intent of the decision in the case of Umadevi (supra) was therefore, two-fold, namely firstly, to prevent irregular or illegal appointment in future and secondly, to confer a benefit on those those who had been irregularly appointed in the past. The fact that the State of Jharkhand continued with the irregular appointment for almost a decade after the decision in the case of Umadevi (supra) is a clear indication that it believes that it was all right to continue with irregular appointment , and whenever terminate the services of the irregularly appointed employees on the ground that they were irregularly appointed. This is nothing but a form of exploitation of the employees by not giving them the benefits of regularization and by placing the sword of Damocles over their head. This is precisely what in the cases of Umadevi (supra) and M.L. Kesari (supra) sought to avoid.

(16) Thus, the appellant - University was under an obligation to regularize all the employees who had completed 10 years of service as on 10.04.2006 as a one-time measure, as directed by the Constitution Bench in the case of Umadevi (supra). Indubitably, the respondent employees have completed more than 10 years of service since they were all appointed between the year 1981 and 1984."

[11] In view of the aforesaid, the Court is of the view that the petitioner is entitled to the benefit of the decision of the Apex Court in case of Labhu Bechar (Supra) and which has also been given to the petitioner by an order at Annexure-D dated 22.06.2004.

[12] The Court may also observe document placed on record which is a office order where the case of one B.H. Patel who is similarly situated as the petitioner is considered and has been given an appointment as Agriculture Assistant on 31.08.2012 alongwith other employees who were given such benefits. The office order of the Vice Chancellor dated 31.08.2012 is placed

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on record.

[13] The petitioner therefore, be given the benefit of the appointment order dated 22.06.2004 in consonance with the clauses of the said appointment order as well as direction of the Apex Court. The aforesaid benefit be made available to the petitioner expeditiously preferably within a period of three months from the date of order of this Court.

[14] With the aforesaid, the petition stands allowed to the aforesaid extent. Rule is made absolute. Direct service is permitted.

(A.Y. KOGJE, J) SIDDHARTH