Gujarat High Court

Bhaiya Binalben Naranbhai vs State Of Gujarat on 8 February, 2022

Bench: Biren Vaishnav

     C/SCA/19190/2021                                       JUDGMENT DATED: 08/02/2022




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 19190 of 2021
                                   With
                R/SPECIAL CIVIL APPLICATION NO. 4429 of 2020
                                   With
               R/SPECIAL CIVIL APPLICATION NO. 11661 of 2021

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE BIREN VAISHNAV                         Sd/-
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1     Whether Reporters of Local Papers may be allowed to see the                No
      judgment ?

2     To be referred to the Reporter or not ?                                    No

3     Whether their Lordships wish to see the fair copy of the                   No
      judgment ?

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

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                         BHAIYA BINALBEN NARANBHAI
                                    Versus
                              STATE OF GUJARAT
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Appearance:
MR RASHESH A RINDANI(5380) for the Petitioner(s) No. 1
MR SHIRISH H GOHIL(3253) for the Petitioner(s) No. 1
for the Respondent(s) No. 2,3
MR KURVEN DESAI, AGP for the Respondent(s) No. 1 in SCA
No.19190/2021
MR MEET THAKKAR, AGP for the Respondent(s) No. 1 in SCA
Nos.4429/2020 and 11661/2021
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     CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
                       Date : 08/02/2022
                  COMMON ORAL JUDGMENT

1. Rule returnable forthwith. Mr. Kurven Desai as well

as Mr. Meet Thakkar, learned Assistant Government

Pleaders waives service of notice of Rule for the

C/SCA/19190/2021 JUDGMENT DATED: 08/02/2022

respondent-State.

2. With the consent of the learned advocates for the

respective parties, the petition is taken up for final

hearing today.

3. In these petitions, under Article 226 of the

Constitution of India, the prayer of the petitioners is

to extend the benefits of the minimum of pay in the

pay scale, in accordance with the decision dated

21.12.2018 passed in SCA No.7462 of 2012 and

allied matters, which was so confirmed by the

Division Bench in LPA Nos.1155/2019 and allied

matters on 9.5.2019.

4. As far as SCA Nos.19190/2021 and 11661/2021, the

prayer also is to quash and set aside the

communication dated 13.5.2021, by which, the case

of the petitioners for extending the benefits of the

GR dated 16.7.2019 have been rejected. In SCA

No.4429/2020, no decision is taken but the prayer is

C/SCA/19190/2021 JUDGMENT DATED: 08/02/2022

that the benefits be extended of the GR dated

16.7.2019.

5. The facts in SCA No.19190/2021 shall be referred to.

5.1. The petitioners were engaged as part

timers with the respondent - department. It is their

case that they were working for more than six hours.

It is their case that they were engaged in the years

2008 and 2012 respectively.

5.2. It appears that large number of part

timers approached this Court by filing SCA No.7462

of 2012 and allied petitions claiming that the GR

dated 25.4.2012 directing the Government Officers

of terminating the services of Class IV part time

from 31.5.2012 be set aside. The action of seeking to

terminate their services be declared as unfair and

unjust.

5.3. While entertaining these petitions, a

C/SCA/19190/2021 JUDGMENT DATED: 08/02/2022

Coordinate Bench of this Court, in case of those

employees who had faced termination pending the

petitions were directed to be reinstated or those who

were outsourced were directed to be held entitled to

the wages at the minimum of the Pay Scale (at the

lowest grade in the Regular Pay Scale) extended to

the regular employees holding the same post. The

LPA filed by the State was dismissed on 9.5.2019, in

principal, therefore, the judgment of the learned

Single Judge was upheld.

6. Accordingly, the State through Finance Department

issued a Circular dated 16.7.2019 extending the

benefits in accordance with the decisions referred to

herein-above. On a representation being made by

the petitioners, that they be extended such benefits,

it appears that the Department under which they

were engaged, on 3.10.2019 and on 24.12.2019,

forwarded proposals to the Head of the Department

furnishing the details of the services of the

petitioners recommending that appropriate decision

C/SCA/19190/2021 JUDGMENT DATED: 08/02/2022

be taken. Since no further action was taken

pursuant to the recommendations made by their

respective department, the petitioners approached

this Court by filing SCA No.2368/2021, wherein the

Court directed the respondent No.2 - authority to

examine the pending representations and proposals

of the petitioners and pass a reasoned order as

expeditiously as possible, preferably, within a period

of eight weeks from the date of receipt of copy of the

order.

7. It appears that pursuant thereto, the same

recommending authority, by a communication dated

10.5.2021 addressed a letter to the Director, Ayush,

Gandhinagar opining that that the petitioners were

terminated from their services w.e.f. 31.5.2012.

Secondly, at the relevant point of time, the

petitioners had not approached the Court and,

therefore, the benefits of the GR of 16.7.2019, which

was made applicable to the petitioners of the

respective petitions, could not be made applicable in

C/SCA/19190/2021 JUDGMENT DATED: 08/02/2022

case of the present petitioners. The 3 rd reason given

by the authority was that the petitioners have been

engaged through outsourcing from the year 2012

and their pay / salary / wages is being paid by the

outsourcing agency. Accordingly, their case cannot

be considered. Based on this recommendation, by

the impugned order dated 13.5.2021, the authority

held that since the petitioners had already been

terminated from their services with effect from

31.5.2012, that they were not parties to the petitions

filed earlier and that, since they were outsourced

and were working with outsourcing agency, they

were not entitled to the benefits of GR dated

16.7.2019. In short, the impugned order reiterating

the opinion of the Head of the Department which

was voiced by the department in its communication

dated 10.5.2021.

8. Mr. R.A. Rindani, learned counsel for the petitioner

would submit that the grounds on which the

petitioners are being deprived off the benefits of the

C/SCA/19190/2021 JUDGMENT DATED: 08/02/2022

GR dated 16.7.2019 and the judgment of the

Coordinate Bench dated 21.12.2018 in SCA

No.7462/2012 and allied matters on all three counts

namely; [1] that they had been terminated with

effect from 31.5.2012, [2] that they were not the

petitioners in those petitions and [3] that they were

outsourced with effect from 31.5.2012 and their pay

was being paid by the outsourcing agencies are

grounds which apparently are without reasons.

9. Reliance by Mr. Rindani was placed on paragraph

No.32 of the order dated 21.12.2018 in SCA

No.7462 of 2012 and allied matters. He would,

therefore submit that once in those matters, the

order of termination of 31.5.2012 was set aside and

the petitioners were directed to be reinstated, the

ground of they not being in service was without

reasons. Moreover, apparently, it is an admitted

position that like the petitioners of those petitions,

the petitioners were not terminated but their

services were outsourced and they were still

C/SCA/19190/2021 JUDGMENT DATED: 08/02/2022

continuing, albeit, through an outsourcing agency

and, therefore, they were on a better footing than

the petitioners of SCA No.7642 of 2012 and allied

matters.

10. Mr. Meet M. Thakkar, learned Assistant Government

Pleader for the respondent - State would submit that

condition No.4 of the impugned order clearly

indicated that if prior to the Resolution of 25.4.2012,

part time employees have been terminated, then

such benefits will not be available to the petitioners.

11. An affidavit-in-reply in SCA No.11661 of 2012 is

relied upon by Mr. Thakkar, learned AGP. Para No.6

of the affidavit would indicate, Mr. Thakkar's

submission that the petitioners were serving from

1.12.2008 to 31.5.2012 as part time employees.

Thereafter, their services were not availed by the

Department and they were being availed by an

outsourcing agency. Therefore, any grievance which

may arise with reference to payment and other

C/SCA/19190/2021 JUDGMENT DATED: 08/02/2022

service related issue, has to be raised before the

said agency. The petitioners have been serving with

the outsourcing agency now for over a period of ten

years and, therefore, no relief of the nature that is

prayed for, can be granted.

12. Having considered the submissions made by the

learned advocates for the respective parties, the test

of considering the impugned orders dated

31.5.2012, would be to appreciate them in context of

the directions issued by this Court in SCA No.7462

of 2012 and allied matters.

13. Referring to the decision dated 21.12.2018 rendered

by the Coordinate Bench of this Court (Coram:

Mohinder Pal - J.) passed in 7462 of 2012 and allied

matters had set out the prayers made in those

petitions. Reading of those prayers would indicate

that the prayer therein was to quash and set aside

the Resolution of the State Government dated

25.4.2012 and directing the Government Officers not

C/SCA/19190/2021 JUDGMENT DATED: 08/02/2022

to terminate the services with effect from 31.5.2012.

In other words, the prayer was to set aside the

Resolution and the consequential impending

termination from 31.5.2012. It is in the background

of these prayers that, the Court in the decision in

Paragraph No.32 thereof held as under:

"32. As mentioned above, some of the petitioners are out of service after coming into force the Resolution of the State Government dated 31.5.2012. These petitioners were working along with their other counter part prior to 31.5.2012. Since number of Class IV employees of the State got affected because of the Resolution dated 31.5.2012, all the affected persons could not obtain the stay from the courts against their termination. There is no denning fact that all these petitioners are affected by the Resolutions of the State Government dated 25.4.2012 and 31.5.2012. They are to be treated at par with the employees who were lucky to get the stay against their termination from the courts. Accordingly, the relief granted by this Court in this judgment shall be extended to all the employees who are affected by the Resolutions of the State Government whether they are continued as outsource employees or are terminated in view of

C/SCA/19190/2021 JUDGMENT DATED: 08/02/2022

these resolutions.

14. It is important to notice the directions made in the

Paragraph referred to hereinabove. The Court was

responsible to the fact that after coming into the

force of Resolution of the State Government, some of

the petitioners had faced termination of their

services, as they could not obtain the stay from the

Court. The Court categorically observed as under:

"Accordingly, the relief granted by this Court in this judgment shall be extended to all the employees, who are affected by the Resolutions of the State Government whether they are continued as outsource employees or are terminated in view of these Resolutions."

15. This observation of the Court, therefore, would take

care of objections with regard to the State that the

petitioners are no longer in service having faced

termination with effect from 31.5.2012, and even

otherwise that they are outsourced employees. The

Court in no uncertain terms has extended the

C/SCA/19190/2021 JUDGMENT DATED: 08/02/2022

benefits to both categories of the employees and on

this count on 13.5.2021 should fail the test of being

in consonance with law.

16. With regard to the alternative ground of the

petitioners in those petitions, a ground which cannot