Pravinbhai Dhudabhai Kantaria vs State Of Gujarat
2022 Latest Caselaw 6732 Guj

    C/SCA/19191/2019                            JUDGMENT DATED: 28/07/2022



            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 19191 of 2019
                                  With
              R/SPECIAL CIVIL APPLICATION NO. 19224 of 2019
                                  With
              R/SPECIAL CIVIL APPLICATION NO. 19225 of 2019
                                  With
              R/SPECIAL CIVIL APPLICATION NO. 20698 of 2019
                                  With
              R/SPECIAL CIVIL APPLICATION NO. 20701 of 2019
                                  With
              R/SPECIAL CIVIL APPLICATION NO. 21307 of 2019

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 ?

==========================================================
                       PRAVINBHAI DHUDABHAI KANTARIA
                                   Versus
                             STATE OF GUJARAT
==========================================================
Appearance:
MR VICKY B MEHTA(5422) for the Petitioner(s) No. 1

MR.UTKARSH SHARMA, AGP for the Respondent(s)-STATE in SCA 19191
AND 19224 OF 2019

MR.KURVEN DESAI, AGP for the Respondent(s)-STATE in SCA 19225 AND
20698 OF 2019

MR.SOAHAM JOSHI, AGP for the Respondent(s)-STATE in SCA 20701 AND
21307 OF 2019

MR VIJAY H NANGESH(3981) for the Respondent(s) No. 4
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 C/SCA/19191/2019                              JUDGMENT DATED: 28/07/2022



CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV

                          Date : 28/07/2022

                      COMMON ORAL JUDGMENT

1. RULE returnable forthwith. Learned AGPs

waive service of notice of Rule on behalf of the

respondents-State in the respective petitions.

2. With the consent of learned advocates for the

respective parties, the petition is taken up for

final hearing.

3. By way of these petitions under Article 226 of the

Constitution of India, the petitioners who were

working with the Gariyadhar Nagarpalika, pray

that on they having completed 10 years of

service they, be granted minimum of pay scale

and a direction be issued to consider the case of

the petitioners for regularization looking to their

length of service.

C/SCA/19191/2019 JUDGMENT DATED: 28/07/2022

4. Mr.Vicky Mehta learned advocate for the

petitioners would rely on an order passed by this

Court in Special Civil Application No.3575 of

2008 dated 05.02.2020. The Court relying on the

decision in case of Secretary, State of

Karnataka Vs. Uma Devi, reported in 2006 (4)

SCC 1 and in case of State of Punjab Vs. Jagjit

Singh, reported in 2017 (1) SCC 148 held as

under:

"6. I have heard the learned advocates appearing for the respective parties.

7. The petitioners have asserted that their initial appointments were made as daily wagers in the year 1997 and subsequently, by the Resolution dated 21.12.2002, the status of the daily wagers was converted to contractual basis.

8. This Court has perused the Resolution dated 21.12.2002 passed by the respondent Nagarpalika, wherein it is specifically stated that the daily wagers, who are working on such posts, are appointed on contractual basis for a period of 10 years and such contract was remained in force till 25 years. Thus, the status of the petitioners from daily wagers is converted to the contractual employees and it is not in dispute that the petitioners are working since the year 1997.

C/SCA/19191/2019 JUDGMENT DATED: 28/07/2022

It is also established that the petitioners are doing the work too that of regular employee.

9. At this stage, it would be apposite to refer to the observation made in the judgment of the Constitution Bench of the Supreme Court in the case of Umadevi (Supra), which reads thus:

"53.One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in State of Mysore v. S.V. Narayanappa, R.N. Nanjundappa v. T.Thimmiah and B.N. Nagarajan v. State of Karnataka and referred to in paragraph 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of courts or of tribunals. The question of regularization of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularize as a one time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date.

We also clarify that regularization, if any

C/SCA/19191/2019 JUDGMENT DATED: 28/07/2022

already made, but not sub judice, need not be reopened based on this judgment, but there should be no further by-passing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme. (emphasis in original)"

10. The Supreme Court has directed to confer benefit of regularisation to the irregularly appointed employees who are working on a sanctioned post for more than 10 years of service without the intervention orders of this Court. The petitioner has completed 10 years of service as on 2012.

11. Subsequently, the Apex Court in the case of Jagjit Singh (Supra) after survey of various judgments including the judgment of the constitutional bench rendered in the case of Uma devi (Supra) has held thus:

"58. In our considered view, it is fallacious to determine artificial parameters to deny fruits of labour. An employee engaged for the same work, cannot be paid less than another, who performs the same duties and responsibilities. Certainly not, in a welfare state. Such an action besides being demeaning, strikes at the very foundation of human dignity. Any one, who is compelled to work at a lesser wage, does not do so voluntarily. He does so, to provide food and shelter to his family, at the cost of his self respect and dignity, at the cost of his self worth, and at the cost of his integrity. For he knows, that his dependents would suffer immensely, if he does not accept the lesser wage. Any act, of paying less wages, as compared to

C/SCA/19191/2019 JUDGMENT DATED: 28/07/2022

others similarly situate, constitutes an act of exploitative enslavement, emerging out of a domineering position. Undoubtedly, the action is oppressive, suppressive and coercive, as it compels involuntary subjugation.

59. *** *** ***

60. Having traversed the legal parameters with reference to the application of the principle of 'equal pay for equal work', in relation to temporary employees (daily-

wage employees, ad-hoc appointees, employees appointed on casual basis, contractual employees and the like), the sole factor that requires our determination is, whether the concerned employees (before this Court), were rendering similar duties and responsibilities, as were being discharged by regular employees, holding the same/corresponding posts. This exercise would require the application of the parameters of the principle of 'equal pay for equal work' summarized by us in paragraph 42 above. However, insofar as the instant aspect of the matter is concerned, it is not difficult for us to record the factual position. We say so, because it was fairly acknowledged by the learned counsel representing the State of Punjab, that all the temporary employees in the present bunch of appeals, were appointed against posts which were also available in the regular cadre/establishment. It was also accepted, that during the course of their employment, the concerned temporary employees were being randomly deputed to discharge duties and responsibilities, which at some point in time, were assigned to regular employees. Likewise,

C/SCA/19191/2019 JUDGMENT DATED: 28/07/2022

regular employees holding substantive posts, were also posted to discharge the same work, which was assigned to temporary employees, from time to time. There is, therefore, no room for any doubt, that the duties and responsibilities discharged by the temporary employees in the present set of appeals, were the same as were being discharged by regular employees. It is not the case of the appellants, that the respondent-employees did not possess the qualifications prescribed for appointment on regular basis. Furthermore, it is not the case of the State, that any of the temporary employees would not be entitled to pay parity, on any of the principles summarized by us in paragraph 42 hereinabove. There can be no doubt, that the principle of 'equal pay for equal work' would be applicable to all the concerned temporary employees, so as to vest in them the right to claim wages, at par with the minimum of the pay-scale of regularly engaged Government employees, holding the same post.

12. Thus, the Supreme Court has held that with reference to the application of the principle of 'equal pay for equal work', in relation to temporary employees (daily-wage employees, ad-hoc appointees, employees appointed on casual basis, contractual employees and the like), the sole factor that requires our determination is, whether the concerned employees (before this Court), were rendering similar duties and responsibilities, as were being discharged by regular employees, holding the same/corresponding posts. The Apex Court has held that such employees who are

C/SCA/19191/2019 JUDGMENT DATED: 28/07/2022

engaged as daily wagers, on contractual basis, etc. are entitled to minimum of the pay scale which is conferred to regular employees. Admittedly, the petitioners are engaged as a contractual employee from the year 2002 and they have completed 10 years of service in the year 2012. The respondents have failed to satisfy this Court that they are not taking work similar work from the petitioners, which is being done by the regular employees. Prior to the year 2002, the petitioners were engaged as daily wagers from 1997. The prior service rendered by them as a daily wagers cannot be considered for granting the benefit of regular pay, since they have accepted their appointment on contractual basis as referred in the Resolution dated 21.12.2002. Hence, they have given up their claim for taking any benefit which would have accrued while working as daily wagers. The respondents have appointed them on contractual appointment for a period of 10 years. The life of the contract is for 25 years. It is also not disputed by the Nagarpalika that 74 posts are vacant and hence, the respondent Nagarpalika instead of employing the petitioners as regular employees have in fact appointed them as a contractual employees and are taking regular work from them. Hence, the respondents are directed to confer the petitioner the benefit of minimum of the pay-scale of regularly engaged employees. Such benefit shall be granted on completion of ten years of service, i.e, from 2012. Appropriate orders in this regard shall be passed within a period of two months from the date of writ of the order of this Court."

C/SCA/19191/2019 JUDGMENT DATED: 28/07/2022

5. Considering the decision of the coordinate bench

of this Court, the respondents are directed to

confer to the petitioners the benefit of the

minimum of the pay scale of regularly engaged

employees. Such benefits shall be granted to the

petitioners on their completion of 10 years of

service from their respective dates of

appointments.

6. It is clarified that the benefit of minimum of pay

scale shall be given from the date the respective

petitioners complete 10 years of service. The

petitioners shall not be entitled to any arrears for

the period from their completion of ten years'

service till date of filing of the petitions.

7. With the aforesaid observations, all these

petitions are partly allowed. Rule is made

absolute to the aforesaid extent.

(BIREN VAISHNAV, J) ANKIT SHAH