Garaniya Kanjibhai Bachubhai vs State Of Gujarat
2022 Latest Caselaw 9996 Guj

    C/SCA/10767/2020                               JUDGMENT DATED: 13/12/2022




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 10767 of 2020

FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.S. SUPEHIA                  Sd/-
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1     Whether Reporters of Local Papers may be allowed
      to see the judgment ?                                             NO

2     To be referred to the Reporter or not ?
                                                                        NO
3     Whether their Lordships wish to see the fair copy
      of the judgment ?                                                 NO

4     Whether this case involves a substantial question
      of law as to the interpretation of the Constitution               NO
      of India or any order made thereunder ?

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                       GARANIYA KANJIBHAI BACHUBHAI
                                  Versus
                            STATE OF GUJARAT
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Appearance:
DHWANI P LAKHANI(8222) for the Petitioner(s) No.
1,10,11,12,13,14,15,16,17,18,19,2,20,21,22,23,24,3,4,5,6,7,8,9
MILAN R MARUTI(7338) for the Petitioner(s) No.
1,10,11,12,13,14,15,16,17,18,19,2,20,21,22,23,24,3,4,5,6,7,8,9
MR NEEL P LAKHANI(10679) for the Petitioner(s) No.
1,10,11,12,13,14,15,16,17,18,19,2,20,21,22,23,24,3,4,5,6,7,8,9
MR PM LAKHANI(1326) for the Petitioner(s) No.
1,10,11,12,13,14,15,16,17,18,19,2,20,21,22,23,24,3,4,5,6,7,8,9
MRS R P LAKHANI(3811) for the Petitioner(s) No.
1,10,11,12,13,14,15,16,17,18,19,2,20,21,22,23,24,3,4,5,6,7,8,9
MR RONAK RAVAL, AGP for the Respondent(s) No. 1-2
MR KV GADHIA(319) for the Respondent(s) No. 3
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    CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
                     Date : 13/12/2022
                     ORAL JUDGMENT

(1) RULE. Mr.Ronak Raval, learned Assistant

and Mr.K.V. Gadhia, learned advocate for

C/SCA/10767/2020 JUDGMENT DATED: 13/12/2022

respondent No.3, appear and waive service of notice of rule on behalf of the respective respondents.

(2) In the present petition, the petitioner's who are working on contractual basis are seeking regularization and also minimum wages.

(3) The brief facts of the case are as under:

3.1) The petitioners are appointed on contractual basis for a fixed period on contractual basis. The respondent No.3-Corporation has divided various Safai Karmcharies (sweepers) in different groups. They also given name to each and every group as different "Mitra Mandal." It is the case of the petitioner that previous contractors have been appointed as Chief Persons (Key Persons) of each Mitra Mandal and the respondent No.3-Corporation is entered into employment contract with the concerned Mitra Mandal itself. As mentioned in the memo of writ petition, the petitioners are the members of their respective Mitra Mandal.

3.2) The petitioners and other similarly situated Safari Karmcharies have already made several representations to the respondent No.3 and other higher authorities for regularization of their services.

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3.3) In the year 2004, the petitioners and other Safari Karmcharies made a detailed representation to the concerned authorities under the name of "Safai Kamdar Jagruti Mandal" and respondent No.3-Corporation responded to the same by way of a reply dated 30.09.2004.

(4) Learned advocate Mr.P.M.Lakhani appearing on behalf of the petitioners has submitted that since the petitioners are serving since long on contractual basis, their services are required to be regularized and the respondent may also be directed to give them minimum wages.

(5) Per contra Mr.Gadhia, learned advocate appearing on behalf of respondent No.3- Corporation has submitted that the contention of the petitioners is that the Corporation has adopted unfair labour practice etc. It is submitted that there is machinery available under the Labour Laws viz. the Industrial Disputes Act, the Minimum Wages Act, etc. for such grievances. It is submitted that such contentions have to withstand evidences - oral and documentary, the same can be done only by a fact findings authority.

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5.1) Learned advocate further submitted that Safai Kamdar Jagruti Mandal has already filed a reference case before the Industrial Tribunal being Reference (I.T.) No.67 of 2018, whereby the Tribunal is to decide the following terms of reference:

"Whether permanent safai kamdars should be appointed in Rajkot Mahanagarpalika or not ? And whether the sanctioned setup be enhanced in the present scenario or not ?"

It is submitted that the grievances raised by the petitioners are covered under the said reference, as can be seen from the said terms of reference.

5.2) Learned advocate further submitted that the petitioners have no locus to file the present petition. It is submitted that the respondent No.3-Corporation undertook the exercise to check the status of each petitioners and glaring facts have come to surface, which are as under:

As per the available records, five of the

and 16 are working with the contractor viz. M/s.Vandna Sanitary Mart Mandli and they are

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being paid minimum wages, they are also given the benefits of P.F., E.S.I., etc. Similarly, fourteen of the petitioners being petitioner Nos.1, 2, 3, 10, 11, 12, 13, 18, 17, 19, 21, 22 and 23 are not working or providing services in any manner to the present respondent, as per the available records. It is submitted that therefore, the question of injustice caused to them does not arise. It is submitted that petitioner No.16-Ms.Parmar Prabhaben Govindbhai seems to have affirmed the present petition, who is already being paid all the benefits by her employer - respective contractor. The said contractor is also not joined in the present petition.

5.3) Learned advocate has further submitted that in the rejoinder the petitioners have stated at Paragraph No.5 that they are not concerned with Reference (I.T.) No.67 of 2018 being espoused by the Union-Safai Kamdar Jagruti Mandal, while in the petition, they have stated at Paragraph No.4.10 that they had made a detailed representation under the same name i.e. Safai Kamdar Jagruti Mandal.

5.4) In support of his submissions, reliance is placed by the learned advocate on the decision

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rendered by the Apex Court in the case of State of Gujarat & Ors. vs. R.J. Pathan & Ors., 2022 (II) C.L.R. 542 as well as on the decision rendered by this Court dated 15.11.2022 in Special Civil Application No.11827 of 2019 (in the case of Vishvnath Prahladbhai Pandya vs. State of Gujarat).

(6) So far as the claim of the petitioner for regularization is concerned, the same cannot be accepted, as the petitioner having accepted all the terms and conditions of his appointment order and cannot claim regularization merely on the basis that they have rendered so many years of service.

(7) At his stage, it would be apposite to refer to the decision of the Supreme Court in the case of the Secretary to the Government School Education Department Chennai Vs. R.Govindaswamy and others, 2014 (4) S.S.C. 769, wherein the Supreme Court has held thus:

"8. This Court in State of Rajasthan & Ors. v. Daya Lal & Ors., AIR 2011 SC 1193, has considered the scope of regularisation of irregular or part- time appointments in all possible eventualities and laid down well-settled principles relating to regularisation and parity in pay relevant in the context of the issues involved therein. The same are as under:

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"8(i) The High Courts, in exercising power under Article 226 of the Constitution will not issue directions for regularisation, absorption or permanent continuance, unless the employees claiming regularisation had been appointed in pursuance of a regular recruitment in accordance with relevant rules in an open competitive process, against sanctioned vacant posts. The equality clause contained in Articles 14 and 16 should be scrupulously followed and Courts should not issue a direction for regularisation of services of an employee which would be violative of the constitutional scheme. While something that is irregular for want of compliance with one of the elements in the process of selection which does not go to the root of the process, can be regularised, back door entries, appointments contrary to the constitutional scheme and/or appointment of ineligible candidates cannot be regularised.

(ii) Mere continuation of service by a temporary or ad hoc or daily-wage employee, under cover of some interim orders of the court, would not confer upon him any right to be absorbed into service, as such service would be "litigious employment". Even temporary, ad hoc or daily-wage service for a long number of years, let alone service for one or two years, will not entitle such employee to claim regularisation, if he is not working against a sanctioned post. Sympathy and sentiment cannot be grounds for passing any order of regularisation in the absence of a legal right.

(iii) Even where a scheme is formulated for regularisation with a cut-off date (that is a scheme providing that persons who had put in a specified number of years of service and continuing in employment as on the cut-off date), it is not possible to others who were appointed subsequent to the cut-off date, to claim or contend that the scheme should be applied to them by extending the cut-off date or seek a direction for framing of fresh schemes providing for successive cut-off dates.

(iv) Part-time employees are not entitled to seek regularisation as they are not working against any sanctioned posts. There cannot be a

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direction for absorption, regularisation or permanent continuance of part-time temporary employees.

(v) Part-time temporary employees in government-run institutions cannot claim parity in salary with regular employees of the Government on the principle of equal pay for equal work. Nor can employees in private employment, even if serving full time, seek parity in salary with government employees. The right to claim a particular salary against the State must arise under a contract or under a statute." (Emphasis added)

9. The present appeals are squarely covered by clauses (ii), (iv) and (v) of the aforesaid judgment. Therefore, the appeals are allowed. However, in light of the facts and circumstances of the case as Shri P.P. Rao, learned senior counsel has submitted that the appellant has already implemented the impugned judgments and does not want to disturb the services of the respondents, the services of the respondents which stood regularised should not be affected.

(8) The Supreme Court has held that even the part-

time employees and ad hoc employees are not entitled to seek regularization as they are not working against any sanctioned posts. In the present case, the petitioners are working on contract basis, hence there cannot be a direction for absorption, regularization or permanent continuance of part-time temporary employees. It is also held that even temporary, ad hoc or daily-wage service for a long number of years, let alone service for one or two years, will not entitle such employee to claim regularization, if he is not

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working against a sanctioned post. Sympathy and sentiment cannot be grounds for passing any order of regularization in the absence of a legal right. The Supreme Court has considered the judgment of the Constitution Bench in the case of State of Karnataka & Ors. vs. Umadevi & Ors., (2006) 4 S.C.C. 1.

(9) It would also be apposite to refer to the recent decision of the Supreme Court in the case of the Union of India vs. Elmo Devi and Anr., (2021) SCC Online SC 899], wherein the Supreme Court has reiterated the proposition of law thus :

"8.6 Applying the law laid down by this court in the aforesaid decisions, the directions issued by the High Court in the impugned judgment and order, more particularly, directions in paragraphs 22 and 23 are unsustainable and beyond the power of the judicial review of the High Court in exercise of the power under Article 226 of the Constitution. Even otherwise, it is required to be noted that in the present case, the Union of India/Department subsequently came out with a regularization policy dated 30.06.2014, which is absolutely in consonance with the law laid down by this Court in the case of Umadevi (supra), which does not apply to the part- time workers who do not work on the sanctioned post. As per the settled preposition of law, the regularization can be only as per the regularization policy declared by the State/Government and nobody can claim the regularization as a matter of right dehors the regularization policy. Therefore, in absence of any sanctioned post and considering the fact that the respondents were serving as a contingent paid part-time Safai Karamcharies, even otherwise, they were not entitled for the benefit of regularization under the regularization policy dated 30.06.2014.

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8.7 Though, we are of the opinion that even the direction contained in paragraph 23 for granting minimum basic pay of Group 'D' posts from a particular date to those, who have completed 20 years of part-time daily wage service also is unsustainable as the part-time wagers, who are working for four to five hours a day and cannot claim the parity with other Group 'D' posts. However, in view of the order passed by this Court dated 22.07.2016 while issuing notice in the present appeals, we are not quashing and setting aside the directions contained in paragraph 23 in the impugned judgment and order so far as the respondents' employees are concerned."

(10) In the case of Raj Balram Prasad vs. State of Bihar, (2018) 12 S.C.C. 50, wherein the Supreme Court has held thus:

"20. One cannot dispute that the State has the power to appoint persons for a temporary period under the Act and Rules framed thereunder and once such power was exercised by the State, the status of such appointee continued to be that of temporary employee notwithstanding grant of some extensions to them for some more period.

21. In other words, the grant of extension to work for some more period to the writ petitioners could never result in conferring on them the status of a permanent employee or/and nor could enable them to seek regularization in the services unless some Rule had recognized any such right in their favour."

(11) Recently, the Division Bench of this Court in case of Babasaheb Ambedkar Open University Versus Dipesh Yashwantbhai Jani, in the judgment dated 25.07.2022 rendered in Letters Patent Appeal No.1092 of 2021 has held thus:

"14. The decisions of the Hon'ble Supreme Court in the case of Secretary, State of Karnataka and others

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v. Umadevi and another and in the case of State of Karnataka and others v. M. L. Kesari and others (Supra), would not be applicable to the facts of the present case. Therefore, we are of the opinion that the appellant University had committed no error in terminating the services of the original petitioner in terms of the contract of appointment and, therefore, we also hereby held that the employee who is appointed on a particular post for a fixed period with fixed salary cannot claim regularization of his services on the ground that he continued on the said post for long duration as after the original petitioner was terminated from service, respondent No.4 who was appointed in his place was also appointed on fixed period of five years with fixed salary and upon completion of five years period, respondent No.4 has been appointed on regular basis. Therefore, it cannot be said that the Government Resolutions dated 15.5.2012 and 28.2.2013 are arbitrary and therefore the same cannot be quashed and set aside by directing University to reinstate the original petitioner and directing the University to take appropriate action for appointing the original petitioner on regular basis, as was done by learned Single Judge, contrary to the ratio laid down by the Hon'ble Supreme Court in the aforesaid decisions."

(12) Hence, the writ petition with regard to claim of regularization is rejected. However, it is clarified that the observations made by this Court may not be construed adverse to other employees or the petitioners in the pending reference proceedings before the Labour Court. In case, the employees establish on evidence and the sanctioned posts are available, the Labour Court can always pass appropriate order.

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(13) So far the prayer made for paying the minimum wages, though it can also be examined by the Labour Court, however, the respondent- Corporation may still examine the same and if the petitioners are entitled to such minimum wages, the same may be paid to them.

(14) Accordingly, the present petition stands dismissed. RULE is discharged.

                                                    Sd/-      .
                                               [A.S.SUPEHIA, J]
                                  ***
Bhavesh-[pps]*