Kabindra Satyanarayan Singh vs State Of Gujarat Thru The Addl. ...
2022 Latest Caselaw 2597 Guj

     C/SCA/5289/2019                               CAV JUDGMENT DATED: 08/03/2022




               IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                 R/SPECIAL CIVIL APPLICATION NO. 5289 of 2019
                                     With
               CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2021
                In R/SPECIAL CIVIL APPLICATION NO. 5289 of 2019
                                     With
                 R/SPECIAL CIVIL APPLICATION NO. 19578 of 2021

FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE BIREN VAISHNAV                     sd/-

==========================================================

1 Whether Reporters of Local Papers may be allowed NO to see the judgment ?

2       To be referred to the Reporter or not ?                     NO

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

4       Whether this case involves a substantial question NO

of law as to the interpretation of the Constitution of India or any order made thereunder ?

========================================================== KABINDRA SATYANARAYAN SINGH Versus STATE OF GUJARAT THRU THE ADDL. CHIEF SECRETARY ========================================================== Appearance:

MR VAIBHAV A VYAS(2896) for the Petitioners MR KURVEN DESAI, ASST GOVERNMENT PLEADER IN SCA NO. 5289 OF 2019 WITH CIVIL APPLICATION NO. 1 OF 2021 AND MS SURBHI BHATI, AGP IN SCA NO. 19578 OF 2021 for the Respondent(s) No. ==========================================================

CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV

Date : 08/03/2022

CAV JUDGMENT

1. Heard Mr. Vaibhav Vyas, learned advocate for petitioners of

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Special Civil Application No. 5289 of 2019 and Mr. Nabil Bloch, learned

advocate for the petitioner of Special Civil Application No.19578 of

2021.

2. In both these petitions, under Article 226 of the Constitution of

India, the petitioners working on a contractual basis as crew members of

the boats procured for the purpose of coastal security of Gujarat are

claiming the benefits of regularization and praying for consequential

benefits including pay-scale and allowances.

3. Facts as indicated in Special Civil Application No.5289 of 2019

shall be discussed.

3.1 The case of the petitioners is that the petitioners had been

appointed initially on a contractual basis for a period of eleven months as

crew members of the boats operating on the coastal zone of the State of

Gujarat. Their appointments are either as Master, Syrang or Engine

Driver and Oilmen-cum-cleaner as the case may be.

3.2 Mr. Vaibhav Vyas, learned counsel for the petitioners would

submit that their contractual appointments have been renewed from time

to time at regular intervals. He would submit that the petitioners have

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joined the service of the respondent authorities after a specific training

that they have undertaken and after having undergone a regular selection

process. The petitioners are employed as crew members of the

interceptor boats. They are working round the clock even at odd hours

and contributing their best by protecting the State from the potent threat

that a coastal zone shall face.

3.3 Mr.Vyas, learned advocate would submit that the State of Gujarat

with approximately 1640 km of coastline has 12 major ports and 41

minor ports on the coastline. Taking into consideration such huge

strategic importance and vastness of coastline of the State, coastal

security assumes the most important aspect. In promoting the Coastal

Security Scheme, in the first phase the State was given 30 interceptor

boats to patrol coastal areas of the State and to man these boats which

require one Master, one Syrang one Engine Driver and one Oil Man,

persons with professional license were to be engaged. The State had

recruited Ex-Navy/ Ex-Coast Guard Personnel plus those persons who

possess the requisite technical qualification and working in the private

sector. He submitted that when they were recruited, a promise was held

out that when the regular recruitment would take place they will be

absorbed and appointed as regular employees. For the present, the

petitioners as contractual employees are engaged on meager salaries

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whereas the actual salaries of these incumbents is much higher. In support

of this, the salary slip of such similarly situated employees of the Gujarat

Maritime Board is produced which would indicate that such co-

employees, namely, a designated Oilman/Cleaner is getting a net basic

salary of Rs.45,000/-.

3.4 Mr. Vyas, learned advocate would further submit that their regular

recruitment process was undertaken after a detailed advertisement. A high

level committee comprising of the representatives of the Home

Department were present, namely, the Additional Secretary Law and

Order, Director of Sainik Welfare Board, a representative each of the

Indian Navy, the Coast Guard and the Police, which Committee selected

the petitioners after verifying their qualifications and antecedents. The

Coastal Security Scheme, according to the learned advocate is not a

temporary project and therefore the petitioners should be given the

benefit of regularization and regular pay scale. After the petition was

filed, an amendment was moved which was granted, by which the

Government Resolution dated 17.06.2016 was challenged inasmuch as, a

decision was taken to fill up the posts for operating interceptor boats from

armed police constabulary working in the State Reserved Police Force.

3.5 Mr.Vyas would submit that the appointments of the petitioners

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were made pursuant to an advertisement widely published after following

the prescribed selection procedure. Admittedly, the State Government

has not finalized the recruitment rules and hence the tenure of the crew

members is renewed from time to time. The petitioners have been in

service for more than 11 years. Their services ought to be regularized. A

resolution dated 04.09.2008 was issued by the State wherein it was

resolved that the crew members will be appointed in a regular pay-scale.

That resolution Mr. Vyas has annexed to the rejoinder at Annexure R2

which indicates that the regular pay-scale that the crew members engaged

in such activity would be as under:

              Name of Post                        Pay-scale
                    Master                     5500-175-9000
                    Syrang                     4000-100-6000
              Engine Driver                    4000-100-6000
                    Oilman                      3200-85-4900




3.6    Mr. Vyas would rely on the decision of the Apex Court in the case

of State of Haryana vs. Piara Singh [(1994) 4 SCC 118] and submit

that it is observed by the Apex Court therein that if for any reason, an

adhoc or temporary employee is continued for a fairly long spell, the

authorities must consider his case for regularisation provided he is

eligible and qualified according to rules and his service record is

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satisfactory and his appointment does not run counter to the reservation

policy of the State.

4. Learned AGPs in the respective petitions would submit that the

Coastal Security Scheme was extended to the State in 2011 in an

extended manner which was initially envisaged in the year 2005. In

March 2014, the Inspector General of Police, Coastal Security had

organized an interview. The petitioners had applied knowing with open

eyes that their appointments were contractual. An undertaking to that

effect has been given by the petitioners. These appointments were fixed

pay appointments. The recruitment rules for the crew members such as

posts of Master, Syrang, Engine Driver and Oilmen were framed and

published in the Government Gazette on 04.07.2008. During the course

of selection, it was found that the candidates according to the

qualification were not available and it was therefore decided to relax the

qualifications specified in the rules. Learned AGPs submitted that the

administrative procedure to relax the specifications made in the

recruitment rules is under consideration and therefore the tenure of the

petitioners - crew members is being renewed from time to time. The

petitioners, in the perception of the respondents, are not entitled to a

regular pay-scale as on a contractual basis by virtue of a resolution dated

20.11.2008, fixed pay of Rs.13000/- to a Master, Rs.9500/- to a Syrang,

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Rs.9500/- to an Engine Driver and Rs.7500/- to an Oilman/Cleaner are

being paid. Learned AGPs would submit that thereafter from 01.01.2020

for the categories above the fixed pay has been enhanced to Rs.25,000/-

to a Master; Rs.18,000/- to a Syrang; Rs.18000/- to an Engine Driver and

Rs.10000/- to an Oilman/Cleaner.

4.1 Relying on the affidavit a submission is made that the nature of the

services are not permanent, depending on weather conditions such as in

monsoon for approximately four months no services are required of the

petitioners and therefore it is not open for the petitioners to claim

regularization.

5. Having considered the submissions made by the learned counsels

for the respective parties, what is evident from the pleadings on record

and the resolution dated 04.07.2008 is that under the Coastal Security

Plan 140 vacancies on an honorary basis were sanctioned. The

government amended the resolution so made on 05.09.2006 by a

resolution dated 04.09.2008. Reading the translated copy of the

resolution which is reproduced hereunder would become evident as

under:

"To set up new posts under the

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Coastal Security Plan

Government of Gujarat Home Department Amendment Sachivalaya Gandhinagar 04.09.2008

Ref :

Government Resolution Home Department No. 1005/5766 dated 05.09.2006.

Amendment :

By a resolution dated 05.09.2006, under the Coastal Security Scheme posts of Tandel, Driver, Khalasi and Assistant Driver, each having 35 posts, in all 140 posts were created on the basis of granting them appointments on an honorarium basis.

After due consideration and re-consideration the government is of the opinion that they should be given a designation on a pay-scale basis as under:

                       Sr. No.     Name of Post        Number          Pay-scale

                           1          Master             35         5500-175-9000
                           2          Syrang             35         4000-100-6000
                           3       Engine Driver         35         4000-100-6000
                           4          Oilman             35         3200-85-4900

                           .....
                           .....
                                                                   sd/-
                                                              Deputy Secretary
                                                              Home Department"

6. Apparently, therefore, on reading the resolution dated 04.09.2008

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would indicate that the appointees who are otherwise on an honorarium

basis a conversion was made by designating them as posts with a

corresponding pay-scale. This resolution is of the year 2008. The

affidavit-in-reply indicates that the recruitment rules were in existence in

the year 2008 and no appointments were made pursuant to the rules even

after relaxation of qualifications. Though the averments of the affidavit

indicate of the publication of the rules by way of a government gazette on

04.07.2008, the recruitment rules are not on record. The stand of the

government is that even after relaxation of qualification since regular

appointees were not available, the administrative procedure for relaxation

of specification in the recruitment rules is under consideration by the

Government of Gujarat. Affidavit's paras 7.4 and 7.5 read as under:

"7.4 That, the Recruitment Rules (RR) for the various posts of Crew-members viz. Master Serang, Engine Driver and Oilman (Cleaner) were framed and published in the Government Gazette on 04/07/2008 During the course of selection process, it is found that candidates according to the qualifications finalized in the Recruitment Rules (RR) were not available and accordingly it was decided to relax the qualification specified in the Recruitment Rules (RR). Since the administrative procedure to relax the specifications made in the Recruitment Rules (RR) has been under consideration by the Government of Gujarat, the tenure of Crew-members has been renewed from time to time.

7.5 That, the resolution of Recruitment Rules was published for Crew members of Interceptor Boats on 4/7/2008, by Home Department of Gujarat. In the selection process, the qualified candidates mentioned in the

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Recruitment Rules were not available and accordingly it was decided to relax the qualification specified in the Recruitment Rules. Recruitment Rules has been under consideration by the Government of Gujarat. The crew members on the appointed contract have been re-appointed from time to time."

6.1 Reading the affidavit indicates that since in the selection process

qualified candidates mentioned in the recruitment rules were not

available relaxation of qualification is under consideration of the

Government of Gujarat.

7. Even the minutes of the meeting placed on record with the

rejoinder and the circular of 20.11.2008 would indicate that the

petitioners have been recruited, albeit, on a contractual basis, after a

public advertisement and a duly constituted selection committee

consisting of the Additional Secretary, Law & Order, Director of Sainik

Welfare Board, a representative each of the police, navy and coats guard

respectively and a Jilla Sainik Kalyan Officer. The qualifications have

been set out in the resolution of 20.11.2008. In absence of any denial and

on the materials of the recruitment rules being produced of 2008, it can be

safely presumed that the petitioners who have been working over a period

of time have not only with the passage of time but with the initial

appointments made in accordance with the procedures of the selection

committee are deemed to be qualified for being appointed on a regular

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basis at the hands of the government, which as the affidavit indicates, is

considering relaxation of the qualifications under the Recruitment Rules,

2008 (which are not on record though). The 04.09.2008 circular also

which is reproduced hereunder indicates awarding of regular pay-scale to

the categories of Master, Syrang or Engine Driver and Oilmen-cum-

cleaner.

8. Considering these admitted facts, the respondents are directed to

consider the case of the petitioners for appointments on a regular basis

and for they being awarded a regular pay-scale which has been revised

from time to time post the resolution of 04.09.2008. The regularization

be considered from either their initial date of appointment or the date of

the recruitment rules of 04.07.2008 having come into force and in

accordance with the relaxations that the State Government, according to

the deponent, are pending consideration. The petitioners' case shall be

considered for regular pay-scale and allowances as primafacie their

selection is in accordance with the prescribed manner which cannot be

said to be an illegal appointment, which may at best, be irregular.

9. With the aforesaid observations, with a direction to consider the

case of the petitioners for regularization of their services from their dates

of appointments and/or the dates of recruitment rules being 04.07.2008,

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the petitioners' case be considered and regularized in service by relaxing

the qualifications and requirements, as admittedly, the same is under

consideration of the respondent department. Pending this exercise, the

petitioner shall be entitled to being paid the benefits as per the resolution

dated 04.09.2008 on the pay-scales revised from time to time from

01.01.2019, the petitioner having approached this court in February

2019.

10. The case of the petitioners of Special Civil Application No. 19578

of 2021 is concerned, adding to the submissions of Mr. Vyas, Mr. Bloch

would submit that pending the petition, services of petitioners no. 2 to 7

have been terminated. In view of the observations made by this court in

the aforesaid order, recommending regularization in context of the

recruitment rules, the respondent shall consider the case of the petitioners

no. 2 to 7 who have been terminated on the same lines and also extend the

benefits, if thought fit and reinstate them in service and extend the same

benefits to the petitioners who are in service. The petitions are partly

allowed on the aforesaid terms. Civil Application is disposed of. Rule is

made absolute accordingly.

sd/-

(BIREN VAISHNAV, J) DIVYA