Prakshbhai Parshottambhai ... vs State Of Gujarat
2022 Latest Caselaw 39 Guj

       C/SCA/1241/2016                                      ORDER DATED: 03/01/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 1241 of 2016

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                  PRAKSHBHAI PARSHOTTAMBHAI RATNOTAR
                                 Versus
                       STATE OF GUJARAT & 1 other(s)
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Appearance:
MR RAMNANDAN SINGH(1126) for the Petitioner(s) No. 1
MR VICKY B MEHTA(5422) for the Petitioner(s) No. 1
MR HARDIK MEHTA, AGP (1) for the Respondent(s) No. 1,2
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     CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA

                                  Date : 03/01/2022
                                   ORAL ORDER

1. The present writ petition has been filed seeking the following prayers:-

"19 (B) Your Lordships may be pleased to issue appropriate writ, order or direction, declaring the impugned decision of respondent no.2 terminating the services of the petitioner, replacing existing employee by outsourcing, as illegal, unjust, arbitrary and violative of Articles 14 and 16 of the Constitution of India, and be pleased to quash and set aside the same and direct the respondent no.2 to treat the petitioner as in continuous service for all purposes and grant all the consequential benefit as if there was no termination of services of the petitioner;

(C) Your Lordships may be pleased to issue appropriate writ, order or direction top declare the decision of the respondent no.2 to deprive the petitioner of the wages and benefits as per the provisions of Minimum Wages Act and to pay the petitioner monthly salary on the basis of Minimum Wages Act or direct the respondent no.2 to grant minimum of time scale of pay with permissible allowances and arrears thereon with interest thereon, to the petitioner."

2. At the outset, learned advocate Mr.Ramnandan Singh appearing for the petitioner has submitted that in view of the interim order granted by this Court directing the respondent to maintain status quo, the petitioner is not terminated from service and he is working continously in the

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respondent no.2-Hospital. He has submitted that the petitioner has been working as a Case Writer since 02.02.2009, however, no appointment order was issued to him. He has submitted that the respondent no.2 has issued a certificate stating that the petitioner has worked from 02.02.2009 to 27.02.2009. He has submitted that the petitioner has been working since 7 years in the respondent-Hospital, however, the respondents have since initiated process for outsourcing the service of the present petitioner and he has filed the writ petition on the apprehension that his service will be terminated. It is submitted by him that the petitioner is only paid Rs.5,000/- per months as fixed salary, which is less than minimum wages given to the Class-III employees.

3. Learned AGP Mr.Hardik Mehta has submitted that in the year 2012, the respondent, vide order dated 30.07.2011 outsourced the functions of the Hospital Waste Management to one M/s. M.J.Solanki for the period from 01.07.2011 to 30.06.2012 and accordingly, pursuant to such outsourcing, the post of Case Writer, which the petitioner was holding, was also outsourced. It is submitted that the petitioner worked under the said contractor and after completion of the tenure of the said contractor M/s.M.J.Solanki, the petitioner was temporary employed by the respondent authority under the Rogi Kalyan Scheme. While placing reliance on the affidavit, it is submitted that the petitioner worked under the temporary employed with the respondent-Hospital until 2015 when again the work was outsourced to a contractor under the order of the State Government. It is submitted that all throughout the service of the petitioner has remained as temporary when his service was outsourced through different contractors. Lastly, vide appointment order dated 15.01.2016, the petitioner was appointed for a period of 11 months to undertake the functions of Case Writer. Thus, he has submitted that the

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present writ petition may not be entertained.

4. By the judgment dated 21.12.2018, the Coordinate Bench of this Court has set aside the termination order and also conferred the minimum pay-scale to such employees. The Coordinate Bench after considering the judgment in the case of State of Punjab vs. Jagjit Singh, (2017) 1 SCC 148 rendered by the Supreme Court on the equal pay for equal work, had directed the State Authorities to confer such benefits of Class-IV employees, who were terminated and outsourced to private agency. The Coordinate Bench has observed thus:-

"15. Thus, the work for which the petitioners have been engaged, being work for perennial nature, outsourcing the same is judicially established to be an unfair labour practice, besides being an unsound and unreasonable policy and hence, the decision of the Government as contained in Government Resolutions dated 10.2.2006 and 25.4.2012 to outsource the same with the consequential termination of the service of the petitioners, requires to be considered seriously.

29. While disputing the proposition of equal pay for equal work, learned Government Pleader has laid emphasis on the point that the relief granted in the aforementioned decision in the case of State of Punjab vs. Jagjit Singh (supra), is not prayed for in the present petitions preferred by the petitioners.

30. It could be seen that the petitioners have approached this Court in the year 2012. The law for the casual labourers, ad hoc employees, part time employees and outsourcing class IV post has developed with the passage of time. Finally, the Apex Court has put to rest the grievance of the aforementioned class of employees. The Apex Court seems to have taken into consideration the law laid down by various courts, and finally reached to a conclusion that all the concerned temporary employees would be entitled to draw wages at the minimum of the pay-scale (at the lowest grade, in the regular pay-scale), extended to regular employees, holding the same post. As this judgment has been delivered in the year 2016, while the petitioners have approached this Court in the year 2012, it was not in their knowledge to have pleaded for the law laid down in the

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aforementioned judgment. This Court is of the considered opinion that the law laid down by the Apex Court in the aforementioned judgment is fully applicable to the facts of the present case as most of the petitioners have come into service through regular selection mode and have put in more than 15/20 years of service.

Even otherwise, the arguments raised by the learned Government Pleader cannot be stretched further as it is always the discretion of the Court to mold the relief depending upon the facts and circumstances of the case. The reliefs claimed in clause (F) seeking regularization is nothing but parity with regularly selected IV employees. As this Court is convinced with the judgment given by the Apex Court in the case of State of Punjab vs. Jagjit Singh (supra), the relief prayed for by the petitioners can be modified accordingly.

31. Otherwise also, mode of recruitment remains meaningless once the petitioners have put in more than 15/20 years of service. What could be qualification and mode of requirement for Class IV post is a debatable point. All the petitioners were performing the job of class IV employees and discharging and performing the same functions which are being performed by regularly recruited class IV employees. Still further, all the petitioners seems to be fulfilling the requisite qualification. Once their method of recruitment is same and are performing the same duties which permanent employees on the same post are performing, the petitioners cannot be discriminated at the time of payment of wages.

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 these resolutions."

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5. During the pendency of this petition, the petitioner has been continued on the aforesaid post because of the interim orders passed by this Court. It is not in dispute that initially the petitioner was appointed under the respondent no.2-Hospital and thereafter, intermittently, he was allotted to the outsourcing agency.

6. As stated hereinabove, the Coordinate Bench in the judgment dated 21.12.2018 has held that the action of the respondent authorities in outsourcing the employees, their termination as illegal.

7. The respondent-State is directed to appoint the petitioner in the respondent-R.R.General Hospital, where he was initially appointed and shall be paid the minimum wages as per the Minimum Wage Act, which are being paid to the employees, who are similarly situated to him. The wages shall be paid from the date of filing of this petition. Appropriate orders shall be passed within a period of two months from the date of receipt of the writ of this order.

8. So far as the claim of the petitioner with regard to payment of minimum time scale of pay with allowances, learned advocate Mr.Ramnandan Singh has submitted that liberty may be granted to make representation to respondent no.1 for grant minimum scale for the post of a clerk. The request is acceded to. It will be open for the petitioner to make representation in this regard. The writ petition is partly allowed. Rule is made absolute to the aforesaid extent.

(A. S. SUPEHIA, J) ABHISHEK