Gujarat High Court
Shrimali Manojkumar Manilal vs State Of Gujarat on 19 October, 2022
Bench: Biren Vaishnav
C/SCA/5040/2022 CAV JUDGMENT DATED: 19/10/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 5040 of 2022
With
CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2022
In R/SPECIAL CIVIL APPLICATION NO. 5040 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 3468 of 2022
With
CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2022
In R/SPECIAL CIVIL APPLICATION NO. 3468 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 5409 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 10807 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 10808 of 2022
With
CIVIL APPLICATION (FOR FIXING DATE OF HEARING) NO. 1 of 2022
In R/SPECIAL CIVIL APPLICATION NO. 10808 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 10994 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 11324 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 12375 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 12377 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 12401 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 12960 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 12986 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 13554 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 13680 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 13404 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 13370 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 13388 of 2022
With
Page 1 of 69
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C/SCA/5040/2022 CAV JUDGMENT DATED: 19/10/2022
R/SPECIAL CIVIL APPLICATION NO. 14868 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 13139 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 13147 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 13151 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 13198 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 14946 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 15536 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 16290 of 2022
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 ?
==========================================================
SHRIMALI MANOJKUMAR MANILAL
Versus
STATE OF GUJARAT
==========================================================
Appearance:
MR. HRIDAY BUCH, ADVOCATE for MR. NISHIT GANDHI,
ADVOCATE for the Petitioner(s) in SCA Nos.5040 of 2022, 3468 of
2022, 13139 of 2022, & CA Nos. 1 of 2022 in SCA 5040 of 2022
and CA 1 of 2022 in SCA 3468 of 2022.
MR. N.K.MAJMUDAR, ADVOCATE for the Petitioner(s) in SCA Nos.
C/SCA/5040/2022 CAV JUDGMENT DATED: 19/10/2022
5409 of 2022, 10808 of 2022 and 10807 of 2022 & CA No. 1 of 2022 in
SCA No. 10808 of 2022.
MR. DENISHKUMAR B MORAKHIA, ADVOCATE for the Petitioner(s) of
SCA No. 14946 of 2022.
MS. KRUTI M SHAH, ADVOCATE for the Petitioner(s) of SCA Nos.
11324 of 2022, 10994 of 2022 and 12401 of 2022.
MR. VAIBHAV VYAS, ADVOCATE for the Petitioner(s) of SCA No.
15536 of 2022 & SCA No. 16290 of 2022.
MR. DISHANT K THAKKAR, ADVOCATE for the Petitioner(s) of SCA
No. 12960 of 2022, 12986 of 2022, 13554 of 2022, 13680 of 2022,
13404 of 2022, 13370 of 2022, 13388 of 2022, 12375 of 2022, 12377
of 2022, 14868 of 2022, 13147 of 2022, 13151 of 2022, and 13198 of
2022.
MR. H.S.MUNSHAW, ADVOCATE for the Respondent(s) in SCA No.
5040 of 2022, 3468 of 2022, 10994 of 2022, 11324 of 2022, 12375 of
2022, 12377 of 2022 & 12960 of 2022.
MR. UTKARSH SHARMA, ASSISTANT GOVERNMENT PLEADER for
the Respondent (s) No.1.
==========================================================
CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
Date : 19/10/2022
CAV JUDGMENT
Special Civil Application Nos. 14946 of 2022, 5040
of 2022, 3468 of 2022, 13139 of 2022, 12375 of
2022, 12377 of 2022, 12960 of 2022, 12986 of 2022,
13554 of 2022, 13680 of 2022, 13404 of 2022,
13370 of 2022, 13388 of 2022, 14868 of 2022,
13147 of 2022, 13151 of 2022 and 13198 of 2022.
C/SCA/5040/2022 CAV JUDGMENT DATED: 19/10/2022
1 These petitions are filed challenging the order
dated 07.01.2022 / 15.01.2022 and 07.05.2022 by
which the petitioners' representations seeking
reinstatement and regularization on the post of Multi
Purpose Health Worker (Male) (Class-III) with the
Panchayat Department in accordance with the order
passed by this Court on 25.07.2018 have been
rejected.
2 Facts in brief are as under:
2.1 The petitioners were working as Multi Purpose
Health Workers (Male), Class-III (for short 'MPHW')
from their respective dates of appointment. These
petitioners were appointed pursuant to an
advertisement and an examination and interview.
Their appointments were on a fixed salary on
contractual basis.
2.2 These appointments were in different district
panchayats and therefore each district panchayat
C/SCA/5040/2022 CAV JUDGMENT DATED: 19/10/2022
treated its employees differently. Petitions were filed
before this Court with a prayer that their services
be regularized at par with similarly situated
employees of Rajkot and Sabarkantha District
Panchayats.
2.3 First in point of time, Special Civil Application
No. 6289 of 2011 was filed by such MPHWs working
under the Junagadh District Panchayat who were
appointees of the year 1990. This Court by an order
dated 10.08.2016, allowed the petitions with a
direction that the petitioners deserve to be granted
the benefits of regularization as have been granted
by the order dated 13.10.2009 passed by the State
Government in case of similarly situated employees
of the Sabarkantha District Panchayat.
2.4 The Gujarat State Karmachari Sankalan Samiti
filed a writ petition being Special Civil Application
No.12537 of 2011 praying for a writ of mandamus
to the respondents to regularize their services and to
C/SCA/5040/2022 CAV JUDGMENT DATED: 19/10/2022
treat them at par with persons in other districts.
They also challenged the order of termination dated
06.01.2018 by which during the pendency of the
petition, their services have been terminated. By an
oral judgement dated 25.07.2018, relying on the
decision rendered in Special Civil Application No.
6289 of 2011, the petition was allowed, the
termination order dated 06.01.2018 was quashed and
set aside and a direction was issued that the
petitioners be regularized in the same manner from
the same date as mentioned in the order in SCA
No. 6289 of 2011.
2.5 The order passed in Special Civil Application
No. 12537 of 2011 was carried in appeal by the
State. Letters Patent Appeal No. 1237 of 2019 was
filed. The Division Bench of this Court, by an order
dated 16.10.2019, dismissed the appeal. The Hon'ble
Supreme Court on 26.10.2020, confirmed the order
of the Division Bench in the SLP filed by the State.
C/SCA/5040/2022 CAV JUDGMENT DATED: 19/10/2022
An interim order was passed on 06.08.2019 in the
appeal, wherein, it was directed that the applicants /
respondents in the appeal and other similarly
situated employees be paid minimum wages.
2.6 Special Civil Application No. 13519 of 2011,
which petition was filed by some MPHWs seeking
similar reliefs was disposed of by an order dated
10.12.2019 in light of the decision dated 10.08.2016
passed in SCA No. 6289 of 2011 with a direction
that similar benefits which are conferred to MPHWs
of Rajkot, Junagadh, Sabarkantha and Valsad districts
may be extended to the petitioners working in Kheda
District. Similar petition was filed being Special Civil
Application No. 15228 of 2012 of MPHWs of Rajpipla
which too by an order dated 05.12.2019 was allowed
in terms of the order dated 10.08.2016 in SCA No.
6289 of 2011.
2.7 Contempt petitions were moved by one of the
petitioners of SCA No. 12537 of 2011 where the
C/SCA/5040/2022 CAV JUDGMENT DATED: 19/10/2022
Court observed that the benefits of regularization
was to be given even to the non petitioners. That
order was passed on 10.01.2020. On 28.02.2020, in
the Contempt Petitions, the Division Bench recorded
the statement that the applicants would be
reinstated. Accordingly, on 19.07.2021, the State
passed an order regularizing the services of 322
MPHWs of SCA No. 12537 of 2011.
2.8 Miscellaneous Civil Application No. 12 of 2021
was filed by one of the petitioners who was not the
applicant in earlier proceedings in the contempt
matters wherein the Court disposed of these
applications on 25.08.2021 directing the applicants to
make representations to the respondents to consider
their case for regularization keeping in mind the
orders of this Court and if otherwise found entitled
to similar benefits, they shall be paid similar benefits
with interest. The petitioners made a representation
and by the impugned order their representations
C/SCA/5040/2022 CAV JUDGMENT DATED: 19/10/2022
have been rejected.
3 Mr.Hriday Buch, learned counsel for Mr.Nishit
Gandhi, Mr.Dishant Thakkar, learned advocate and
Mr.N.K.Majmudar, learned advocate appearing in one
of the petitions have made submissions.
3.1 Mr.Buch, learned counsel, leading the
submissions submitted that the order rejecting the
representation dated 07.01.2022 is bad. He would
submit that reading the impugned order would
indicate that the authorities were of the opinion that
they are not clear whether the benefits had to be
given to the petitioners of Special Civil Application
No. 12537 of 2011 and hence the representation was
rejected. Moreover,he submitted that the authorities
were not clear as to whether the name of the
petitioners figured in the list of petitioners. The
order further stated that the contracts have not been
renewed. He would submit that reading the orders in
the litigations which are referred to would indicate
C/SCA/5040/2022 CAV JUDGMENT DATED: 19/10/2022
that even non petitioners were to be given the
benefits of the decision dated 10.08.2016 in SCA No.
6289 of 2011. A clear observation was made by the
Division Bench in the contempt proceedings. The
rejection of the representations was therefore prima
facie contemptuous.
3.2 Mr.Buch, learned counsel, would further submit
that reading the order dated 10.8.2016, in Special
Civil Application No. 6289 of 2011, the Court had
specifically held that the petitioners who had been
working over a period of time deserved
regularization. The decision of the Division Bench in
Letters Patent Appeal No. 85 of 2010 was
distinguished and there is therefore no reason why
the petitioners cannot be granted the benefit of
reinstatement and regularization.
3.3 Mr.Buch, learned counsel, would submit that
some of the petitioners were part of the group in
Special Civil Application No. 12537 of 2011. The
C/SCA/5040/2022 CAV JUDGMENT DATED: 19/10/2022
Court in its oral judgement dated 25.07.2018 had
quashed and set aside the order of termination dated
06.01.2018 and held that there can be no
discrimination by treating contractual appointees and
not granting them the benefit of regularization. He
would further submit that reading the order in the
Letters Patent Appeal on 06.08.2019, it was very
clear that all similarly situated MPHWs were entitled
to the same benefits. Once the Letters Patent Appeal
by the State was dismissed and the order was
confirmed by the Hon'ble Supreme Court, there was
no reason why the petitioners also should not be
reinstated as MPHWs and their services be
regularized.
3.4 Mr.Buch, learned counsel, would submit that the
foundation of the observations in the impugned order
are seriously flawed.
4 Mr.H.S.Munshaw, learned counsel appearing for
the Banaskantha District Panchayat in the lead
C/SCA/5040/2022 CAV JUDGMENT DATED: 19/10/2022
matter as far as this impugned order is concerned,
would rely on the affidavit-in-reply and submit that
the contractual appointments of the petitioners were
not renewed considering administrative aspects in the
year 2017 and prior thereto. That the petitioners
after nearly eight to ten years have preferred the
present Special Civil Application for reinstatement in
service as well as regularization when in fact, they
had put in service of hardly five to seven years on
contractual basis. Their appointments were not after
due procedure and in accordance with the
recruitment rules.
5 Mr.Dishant Thakkar, learned advocate and
Mr.N.K.Majmudar, learned advocate would adopt the
submissions made by Mr.Buch, learned counsel for
the petitioners.
6 Special Civil Application Nos. 16290 of 2022
and allied matters have been filed by MPHWs (Male)
& Female Health Workers who were initially
C/SCA/5040/2022 CAV JUDGMENT DATED: 19/10/2022
appointed on an ad-hoc basis for a period of 11
months pursuant to a regular process of selection
undertaken by the Gujarat Panchayat Service
Selection Board. It may be noted that while Special
Civil Application No. 12537 of 2011 was pending, by
an interim order, the members of the Samiti were
permitted to appear for regular selection. The
petitioners herein were therefore such Health
Workers who had undergone such selection
successfully and were appointed on a fixed pay for a
period of five years. After completion of five years,
they were granted regular pay-scale. Initially their
appointments prior to undergoing such selection was
on an ad-hoc basis for a period of 11 months on a
fixed pay of Rs.2,500/-. It is the case of the
petitioners that the policy of the government as
contained in the Government Resolution dated
19.10.1981 indicates that in case of an ad-hoc
appointment, which is undertaken without following
the regular process of selection, if the appointee is
C/SCA/5040/2022 CAV JUDGMENT DATED: 19/10/2022
subsequently appointed pursuant to the regular
process of selection, in that case, the period of
service put in by the government employee during
ad-hoc appointment shall count for earning normal
increment in the prescribed scale. It is their case
that pursuant to the orders passed by this Court in
Special Civil Application No.12537 of 2011 which
was confirmed upto the Hon'ble Supreme Court, the
State Government regularized the services of 322
MPHWs (Male) by orders dated 18.09.2021 from the
date of their initial appointment.
6.1 Learned counsels Mr.Vaibhav Vyas, Ms.Kruti
Shah, Mr.N.K.Majmudar for such petitioners would
submit that the present petitioners are on better
footing than such MPHWs who were ad-hoc /
contractual. The petitioners underwent the regular
process of selection whereas other ad-hoc/contractual
MPHWs failed. They too, therefore, deserve similar
treatment and therefore cannot be deprived of the
C/SCA/5040/2022 CAV JUDGMENT DATED: 19/10/2022
benefits of past services rendered by them on ad-hoc
basis merely because they came to be appointed on
regular basis after clearing competitive examinations.
These petitioners are therefore not only similarly
situated but are better and are therefore entitled to
the same benefits of regularization from their initial
date of appointment. Several resolutions have been
relied upon by the learned counsels for the
petitioners. Some of the petitioners as per the
respective counsels are in service since 1996 and
therefore deserve to be regularized in service on the
same terms and conditions as other employees.
7 Mr.Utkarsh Sharma, learned Assistant
Government Pleader, would rely on the affidavit-in-
reply filed in Special Civil Application No.3468 of
2022. He would submit as under:
7.1 That the petitioners of both batches of petitions
i.e. those praying for quashing of the orders by
which their representations were rejected and those
C/SCA/5040/2022 CAV JUDGMENT DATED: 19/10/2022
petitioners who claim the benefits of regularization
from the initial date of appointment have no
fundamental or a legal right.
7.2 Mr.Sharma, learned AGP, would submit that the
petitioners whose representation is rejected cannot
claim parity with the petitioners of Special Civil
Application No. 12537 of 2011. The petitioners were
contractual employees whereas the beneficiaries of
the orders in Special Civil Application No. 6289 of
2011 and Special Civil Application No. 12537 of
2011 were ad-hoc appointees working over a period
of 20 years. He would submit that in absence of any
details in the petition of the Gujarat State
Karmachari Sankalan Samiti, it was difficult to
ascertain as to who should be extended the benefits.
7.3 Mr.Sharma, learned AGP, would submit that the
decisions relied upon namely those in SCA No. 6289
of 2011 and 12537 of 2011 were not precedents
C/SCA/5040/2022 CAV JUDGMENT DATED: 19/10/2022
inasmuch as, in Special Civil Application No. 8611 of
2009 and other allied matters, this Court vide order
dated 23.09.2009, had held that the petitioners
cannot seek regularization bypassing the regular
mode of recruitment. In the appeal filed by the
unsuccessful petitioners the Division Bench in LPA
No. 85 of 2010 and allied appeals, by an order
dated 20.07.2010, confirmed the order of the learned
Single Judge holding that MPHWs (Male) and Female
Health Workers who have been appointed on purely
ad-hoc / temporary basis have no right, particularly
when their selection is not in accordance with the
recruitment. Mr.Sharma, learned AGP, would
therefore submit that the decisions which have been
extensively relied upon by the petitioners would not
apply.
7.4 Mr.Sharma, learned AGP, would further submit
that in case of the petitioners of SCA No. 6289 of
2011 they were appointees of the year 1990-1992
C/SCA/5040/2022 CAV JUDGMENT DATED: 19/10/2022
and since they did not get an opportunity to
participate because the examination process was not
held and when it was actually held in 1996, the
petitioners had become age barred. It was in light of
these facts, that the petitioners therein who had
worked for two decades on ad-hoc basis unlike the
present petitioners who were contractual employees
on a short term basis could not be entitled to
similar benefits.
7.5 Mr.Sharma, learned AGP, would further submit
that in the Letters Patent Appeal and so also in
Special Civil Application No. 6289 of 2011, the
judgement of the Division Bench in LPA No. 85 of
2010 has not been effectively discussed. There is no
whisper of the recruitment rules and / or public
participation. Mr.Sharma, learned AGP, would submit
that the judgement relied upon by the petitioners are
per incuriam. In support of his submission he would
rely on a decision of the Hon'ble Supreme Court in
C/SCA/5040/2022 CAV JUDGMENT DATED: 19/10/2022
the case of Secretary to Govt. of Kerala,
Irrigation Department & Ors. vs. James
Varghese & Ors., reported in 2022 (7) Scale 322.
He would further submit that as held by this Court
in the case of Patel Kaushik Kumar Madhavlal
vs. State of Gujarat., dated 30.08.2022 in Special
Civil Application No. 3921 of 2019 and allied matters
where this Court had not entertained the petitions
seeking regularization of Laboratory Technicians and
Junior Pharmacists who were appointed on ad-hoc
basis.
8 Considering the submissions made by the
learned counsels for the respective parties, the
following petitions are taken up for the purposes of
reasonings in the first instance.
8.1 Special Civil Application Nos. 14946 of 2022,
5040 of 2022, 3468 of 2022, 13139 of 2022, 12375
of 2022, 12377 of 2022, 12960 of 2022, 12986 of
2022, 13554 of 2022, 13680 of 2022, 13404 of 2022,
C/SCA/5040/2022 CAV JUDGMENT DATED: 19/10/2022
13370 of 2022, 13388 of 2022, 14868 of 2022,
13147 of 2022, 13151 of 2022 and 13198 of 2022.
8.2 The background of facts indicate that the
MPHWs of Rajkot and Sabarkantha District
Panchayats were regularized in service by their
respective District Panchayats. Their contemporaries
working under the District Development Officer,
Junagadh, and who were appointed on an ad-hoc
basis in the years 1990-1992 approached this Court
for being extended similar benefits by filing Special
Civil Application No. 6289 of 2011. It was their case
that they had been working for over 25 years and
were receiving benefits such as LTC, Leave
Encashment, Travelling Allowance etc. They also were
getting the benefits of the 6th pay Commission and
had their GPF Accounts. Their appointment letters
were conditional, inasmuch as, it was stipulated
therein that they would have to participate in the
regular selection process. This Court by its
C/SCA/5040/2022 CAV JUDGMENT DATED: 19/10/2022
judgement and order dated 10.08.2016, noting that
the petitioners had crossed the age limit though
having undergone that selection process and also
noting the decision of the Division Bench in the case
of Surekhaben Chamarbhai Patel & Ors vs. State
of Gujarat & Ors., held as under in SCA No.
6289 of 2011. Para 16 to 36 read as under:
" 16. Learned Assistant Government Pleader has
further submitted that in the case of Multi Purpose
Health Workers (Female), the Division Bench of this
Court has passed a judgment dated 20.07.1990 in
the case of Surekhaben Chamarbhai Patel and
others v.State of Gujarat and others Letters Patent
Appeal No.85 of 2010 in Special Civil Application
No.8611 of 2009 and cognate matters, wherein it is
held that the appointments of the appellants therein
were made without following the prescribed
procedure and therefore, such irregular
appointments cannot be directed to be regularized.
It is submitted that in the present case as well, the
appointments of the petitioners are not regular
appointments, therefore, in view of the above
judgment of the Division Bench, the petitioners
cannot be regularized.
17. Mr.H.S.Munshaw, learned advocate for
respondent No.3 has submitted, upon instructions,
that the District Panchayat, Junagadh, has sent
several proposals to the State Government for the
regularization of the services of the petitioners on
24.09.1997, 11.12.2000, 25.09.2001, 18.12.2001
and 05.06.2006. Adverting to the affidavitinreply
filed by respondent No.3, he has further submitted
that the petitioners were appointed on adhoc basis,
C/SCA/5040/2022 CAV JUDGMENT DATED: 19/10/2022
subject to certain conditions imposed in the
appointment orders. As the petitioners are not
permanent employees, conosequential benefits such
as regularization cannot be granted to them without
undergoing the regular selection process. According
to Mr.Munshaw, the petitioners have no right to
claim such relief and permanent employment in the
services of the District Panchayat, Junagadh.
18. Mr.S.I.Nanavati, learned Senior Counsel, has
submitted in rejoinder that, the judgment of the
Division Bench dated 20.07.1990, passed in Letters
Patent Appeal No.85 of 2010, which is being relied
upon by the learned Assistant Government Pleader
and learned counsel for respondent No.3, would not
have any application in the present case, as the case
of the appellants before the Division bench is
factually different from that of the present
petitioners. There are significant differences in both
cases which would go to the root of the matter. One
such difference is that the period of appointment of
Multi Purpose Health Workers (Female), who were
appellants before the Division bench, was only for a
fixed term of eleven months, whereas, in the present
case, no such fixed period of appointment has been
given to the petitioners who have continued to work
from the dates of their initial appointments upto
date and have, by now, completed over twenty five
years of service. It is further submitted that the
appellants before the Division Bench had challenged
the Government Resolution dated 01.10.2007, to the
extent that it provided for appointments to be made
on contractual basis for eleven months. In the
present case, no such Government Resolution is in
question as this Government Resolution had not
even been issued when the petitioners were
appointed and has never been applied in their cases.
Distinguishing the said judgment further, learned
Senior Counsel submits that the appellants before
the Division Bench were given breaks after the
completion of eleven months and before being re-
C/SCA/5040/2022 CAV JUDGMENT DATED: 19/10/2022
engaged on contractual basis, whereas the present
petitioners have never been given any breaks in
service. Hence, the case of Multi Purpose health
Workers (Female) is different from the case of the
petitioners herein and the judgment of the Division
Bench, having been rendered on the facts of that
case, cannot be made applicable to the present case.
19. On 08.08.2016, this Court had requested
Mr.Niraj Ashar, learned Assistant Government
Pleader, to take instructions regarding whether the
State Government would be open to considering the
aspect of taking a policy decision regarding the
regularization of the services of the petitioners, as
has been done in the case of similarly situated
persons in Sabarkantha District. Today, when the
peition is taken up, learned Assistant Government
Pleader has addressed a communication dated
25.05.2016 to the District Panchayat, Junagadh,
asking for certain details. On a perusal of the said
communication, it appears that certain details such
as name, educational qualifications, date of birth,
date of appointment, and whether MPHW(M) in
Junagadh District have passed the examination, ind
if so, when, have been sought. However, this
communication does not address the query of the
Court. It, therefore, appears that the petition would
have to be adjudicated on merits, on the basis of the
submissions advanced by learned counsel for the
respective parties.
20. There is no dispute regarding the fact that the
petitioners have been appointed as MPHW(M) on
adhoc basis vide various appointment orders of
different dates, of the years 199091. One such
appointment order dated 29.01.1990, has been
annexed as Annexure-C to the petition. The
appointment order of all the petitioners are identical
and contain the same terms and conditions.
Condition No.10 in the appointment order states
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that the candidate would have to participate in the
selection process undertaken by the duly constituted
Selection Committee as and when such selection is
advertised. It was, therefore incumbent upon the
petitioners to participate in the regular selection
process. It is relevant to note that in the
advertisement dated 20.07.1990, pursuant to which
the petitioners were appointed, the permissible age
limit has been advertised as seventeen to twenty-
two years. In the advertisement dated 30.3.1996 for
the regular selection process, the maximum age-
limit is twenty-five years. There is no dispute
regarding the fact that no selection process by the
duly appointed Selection Committee took place upto
30.3.1996. The Selection process was to be initiated
by the District Panchayat. When the said process
was initiated and an advertisement was issued in
this regard, the petitioners herein participated as
per Condition No.10 in their appointment orders. It
may be noticed that the upper-age limit in the
advertisement pursuant to which the petitioners
were appointed was twenty-two years. By the time
the selection process was initiated on 30.3.1996, the
petitioners had crossed the permissible age-limit of
twenty-five years that had been advertised for the
regular selection process in which they were
required to participate. It stood to reason and would
have been logical, had the Districdt Panchayat held
the regular selection process keeping in mind the
upper-age limit as per the earlier advertisement.
However, it did not do so and took its own sweet
time, which has resulted in the petitioners being
barred from the selection process on the ground of
exceeding the permissible age-limit of twenty-five
years. The Court is informed, upon instructions by
Mr.Saurabh Mehta, learned advocate for the
petitioners, that petitioners Nos. 1 to 7 had
participated in the selection process but were
declared as 'failed' on the ground of being over-age,
whereas the other petitioners were not even
C/SCA/5040/2022 CAV JUDGMENT DATED: 19/10/2022
permitted to participate in the selection process as
they had also exceeded the permissible age-limit.
21. It is clear from the initial appointment orders
that were issued to the petitioners that the
respondent District Panchayat intended that the
petitioners would undergo the regular selection
process and be regularly appointed against the
sanctioned and vacant posts against which they had
been appointed. This aspect becomes clear from
Condition No.10, itself. The petitioners cannot be
blamed for the fact that respondent No.3 did not
initiate the recruitment process earlier and waited
for five to six years upto 1996 to do so, when the
petitioners had crossed the permissible age-limit of
twenty-five years.
22. In this regard, it would be relevant to advert to
a judgment of the Supreme Court in the case of
K.K.Gohil v. State of Gujarat And Others (2015)
9 SCC 652, the relevant extract of which is as
below:
"13. However, by circular dated 24.11.2004,
the Government of Gujarat modified the earlier
Resolution taking note of the High Court's
order and directed that in cases where for
getting higher pay scales a departmental
examination is necessary then in such cases it
is equally necessary that the departmental
examination should be organised in time.
Further by Government Order dated
22.06.2006, it was specifically brought to the
notice of the Department that if the higher
departmental examination is not organised
during the eligibility period for getting the
higher pay scales then in such case the higher
pay scale benefit cannot be stalled on such
ground. In the instant case, admittedly, the
higher pay scale was ordered to be granted to
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the appellant after completion of nine years but
the same was withdrawn on the basis of earlier
circular of 1994. The High Court has not
considered the subsequent circular of 2004 and
based on the circular of 1994, the order
withdrawing the benefit was upheld. The
impugned order passed by the High Court on
this account cannot be sustained in law."
23. The petitioners cannot, therefore, be deprived
of the fruits of the regularization of their services
that would have ensued to them had the regular
selection process been initiated within time by
respondent No.3. It is not as though respondent
No.3 was unaware of the fact that the late initiation
of the selection process would render the petitioners
over-age, as it was the said respondent that had
issued the earlier advertisement fixing the upper
age-limit at twenty-two years. After about five or six
years, the advertisement for the regular selection
process was issued on 30.03.1996. It is a case of
simple mathematics to know that after the passage
of five or six years, a candidate who was twenty-two
years of age in the year 1990 or 1991, would
obviously have exceeded the age of twenty-five years
in the year 1996. The very purpose of appointing the
petitioners, therefore stands frustrated by the casual
and inconsiderate attitude of respondent No.3.
Consequently, the petitioners have been forced to
continue on adhoc basis without receiving the
benefits of regularization and higher pay-scale even
after twenty-five years of continuous, uninterrupted
service.
24 The State Government has issued a
Government Resolution dated 02.05.1991, whereby
it has been resolved to regularize the services of
MPHW(M) in all Districts, who have been appointed
on adhoc basis, subject to the condition that the
concerned District Panchayat has not made adhoc
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appointments in the past six months. Learned
Assistant Government Pleader has submitted that
pursuant to the said Government Resolution, it was
open to respondent No.3 to have regularized the
services of the petitioners. It is on record that the
services of similarly situated MPHW(M) in Rajkot
District have been regularized by the concerned
District Panchayat, pursuant to the Government
Resolution dated 02.05.1991. In the case of
MPHW(M) of Sabarkantha District, it is the State
Government, itself, that has taken the initiative by
the decision dated 13.10.2009, of regularizing the
services of MPHW(M) with retrospective effect,
subject to the condition that they fulfilled all the
eligibility criteria on the initial dates of their
appointments. The decision of the State Government
dated 13.10.2009, has been placed on record. No
cogent or justifiable reason has been advanced by
either respondent No.3, or the State Government,
for not giving similar treatment to the petitioners.
Respondent No.3 is trying to pass the buck to the
State Government by stating that it has written
several communications to it in this regard, whereas
the State Government is returning the buck by
stating, in the affidavit-in-reply, that it was for the
Junagadh District Panchayat to have taken a
decision regarding the regularization of the services
of the petitioners, pursuant to the Government
Resolution dated 02.05.1991. In both the affidavits-
in-reply, there is not a single reason that comes even
close to justifying the discriminatory treatment that
has been meted out to the petitioners, vis-a-vis
similarly situated persons in other Districts.
25 It may be true that in the case of District
Rajkot, similarly situated MPHW(M) have been
regularized by the concerned District Panchayat.
However, it is obvious that in the case of
Sabarkantha District Panchayat, the services of
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MPHW(M), who are identically situated to the
petitioners, have been regularized, with
retrospective effect, by the State Government, itself.
The State Government has taken a policy decision in
this regard, confined only to the MPHW(M) of
Sabarkantha District. Why all similarly situated
MPHW(M) in other Districts of the State have not
been covered under a uniform policy, is certainly
baffling. Multi Purpose Health Workers (Male), such
as the petitioners, who were appointed on adhoc
basis but have been denied the fruits of regular
appointment only because the regular selection
process was not held until they had crossed the
permissible age-limit, form a distinct class of
employees. Different categories in a single class
cannot be carved out by taking piecemeal decisions
benefiting only a section of such employees. This
would amount to sub-classification that would not be
permissible in law, as there is no rational nexus to
the object sought to be achieved by confining the
decision only to MPHW(M) of a particular District.
The petitioners are identically situated to other
MPHW(M) in Rajkot and Sabarkantha Districts.
They, therefore, cannot be accorded discriminatory
treatment. The respondent authorities are not only
trying to take advantage of the situation but are also
trying to put the blame on each other which cannot
be permitted, to the detriment of the petitioners.
26. It is a settled position of law, that does not
require any further elaboration, that equals are
required to be treated equally and dissimilar
treatment cannot be accorded to the same class of
people.
27 The action of the respondent authorities in not
regularizing the services of the petitioners, as has
been done in the case of other similarly situated
MPHW(M) by the concerned District Panchayats and
the State Government in Sabarkantha District, is not
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only arbitrary but also discriminatory and unjust and
is, therefore, in violation of Article 14 of the
Constitution of India. The petitioners are being
deprived of the fruits of regularization in spite of
having worked continuously for a period of about
twenty-five years, or more. As such, the action of the
respondents is also in violation of the provision of
Articles 16 and 21 of the Constitution of India.
28 The reliance of the respondents on the
judgment of the Division Bench in the case of Multi
Purpose Health Workers (Female) is also misplaced.
In that case, the appellants before the Division
Bench had been appointed for a fixed term of eleven
months, on contractual basis and were given breaks
after every period of eleven months before being re-
engaged. The challenge in that petition was also to
the Government Resolution dated 01.10.2007, to the
extent that it provided for appointment on
contractual basis. In the present case, the
appointments of the petitioners are not contractual
in nature and the above-mentioned Government
Resolution has never been applied to them. In fact, it
did not even exist when the petitioners were
appointed in the year 1990-91. The conclusion of the
Division Bench that the appellants in that case were
irregularly appointed and, therefore, could not claim
to be regularized, is based upon the factual scenario
prevailing in that case, which has no parallel to the
present case.
29 In Secretary, State of Karnataka And
Others v. Umadevi (3) And Others (supra), the
Supreme Court has held as below:
"53. One aspect needs to be clarified. There
may be cases where irregular appointments
(not illegal appointments) as explained in S.V.
Narayanappa, R.N. Nanjundappa, and B.N.
Nagarajan, and referred to in para 15 above, of
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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 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.
30 In the present case, the adhoc appointments
of the petitioners cannot termed as illegal, as they
have been appointed pursuant to an advertisement,
against sanctioned and vacant posts. The petitioners
have worked continuously for much more than ten
years, even before the interim order was passed in
their favour. As per the above enunciation of law by
the Supreme Court, the cases of the petitioners
ought to be considered for regularization as they
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have worked for several years. The judgment in the
case of Secretary, State of Karnataka And
Others v. Umadevi (3) And Others (supra) has
been discussed by the Supreme Court in U.P. State
Electricity Board v. Pooran Chandra Pandey
And Others (supra), in the following terms:
"17. In the present case the writ petitioners
(respondents herein) only wish that they should
not be discriminated against vis-a-vis the
original employees of the Electricity Board
since they have been taken over by the
Electricity Board in the same manner and
position. Thus, the writ petitioners have to be
deemed to have been appointed in the service
of the Electricity Board from the date of their
original appointments in the Society. Since they
were all appointed in the society before
4.5.1990 they cannot be denied the benefit of
the decision of the Electricity Board dated
28.11.1996 permitting regularization of the
employees of the Electricity Board who were
working from before 4.5.1990. To take a
contrary view would violate Article 14 of the
Constitution. We have to read Umadevi (3) case
in conformity with Article 14 of the
Constitution, and we cannot read it in a manner
which will make it in conflict with Article 14.
The Constitution is the supreme law of the land,
and any judgment, not even of the Supreme
Court, can violate the Constitution.
18. We may further point out that a seven-
Judge Bench decision of this Court
in Maneka Gandhi vs. Union of India has
held that reasonableness and non-
arbitrariness is part of Article 14 of the
Constitution. It follows that the
government must act in a reasonable and
non-arbitrary manner otherwise Article 14
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of the Constitution would be violated.
Maneka Gandhi case is a decision of a
seven-Judge Bench, whereas Umadevi case
(3) is a decision of a five-Judge Bench of
this Court. It is well settled that a smaller
bench decision cannot override a larger
bench decision of the Court. No doubt,
Maneka Gandhi case does not specifically
deal with the question of regularization of
government employees, but the principle of
reasonableness in executive action and the
law which it has laid down, in our opinion,
is of general application.
19. In the present case many of the writ
petitioners have been working from 1985
i.e. they have put in about 22 years service
and it will surely not be reasonable if their
claim for regularization is denied even
after such a long period of service. Hence
apart from discrimination, Article 14 of the
Constitution will also be violated on the
ground of arbitrariness and
unreasonableness if employees who have
put in such a long service are denied the
benefit of regularization and are made to
face the same selection which fresh
recruits have to face.
(emphasis supplied)
31. In the present case as well, the action of the
respondents District Panchayat as well as the State
Government is required to be tested on the principle
of reasonableness in executive action. In the view of
this Court, the action of respondent No.3 in not
issuing the advertisement for the regular selection
procedure expeditiously, especially after imposing a
condition in the appointment orders of the
petitioners that they have to undergo the regular
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selection process and then not conducting the
selection process for years together until the
petitioners cross the permissible age-limit, is highly
unreasonable. Respondent No.3 bided time for a
period of six years before initiating the regular
selection process ensuring, by this action that the
petitioners become age-barred in the meanwhile.
The initiation of the selection process was not in the
hands of the petitioners and they cannot be blamed
for the plight they find themselves in.
32. In this regard, the observations made by this
Court in Pravinsinh Dolatsinh Rana v. State of
Gujarat And Ors. (supra), are apposite and are
reproduced hereinbelow:
"3. ...The facts as aforesaid are so eloquent to
consider that the petitioner has not been treated
fairly inasmuch as he could not be deprived of the
fruits of the selection at which he was selected and
in which he had appeared during the pendency of
this Special Civil Application in terms of the order
passed by the Court after hearing both the sides. If
the candidates at lower position than the petitioner
have been appointed, the petitioner could not have
been deprived on the ground that while the petition
was pending before this Court, he has become
overage. Once, the petitioner is given a further
chance to appear in the selection in terms of
this Courts order dated 25.02.1993 with the
expectation that next selection will be held in
1993-94, merely because selections were held
in 1996, he cannot be denied the benefit of the
selection on the ground that he had now
become overage. Aging is a process which no
one can stop. The petitioner has done all that
was in his control. He had also approached the
Court well in time. In the facts and circumstances of
this case, this Court finds that the petitioner
certainly deserves to be considered for appointment
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on the basis of his being placed at Sr.No.3 in the
select list in the year 1996 and his name ought to
have been included in the order at Annexure-B dated
th
4 October 1996 at appropriate place on the basis
of his selection.
(emphasis supplied)
33 As held by this Court in the above judgment,
aging is a process which nobody can stop. This
aspect ought to have been considered by respondent
No.3 while including Condition No.10 in the
appointment orders of the petitioners and while
issuing the advertisement for regular selection in
the year 1996. It was not in the hands of the
petitioners to have stopped the clock from running.
However, it was very much in the hands of
respondent No.3 to have held the selection process
well in time, so that persons such as the petitioners,
who have been appointed by it subject to the
condition that they would have to participate in the
regular selection process, would have got a fair
chance. The petitioners cannot be made to suffer for
the totally unconcerned and casual approach on the
part of the District Panchayat.
34 At the same time, the Court cannot overlook
the fact that the State Government is supposed to be
a model employer. It would have behoved the State
Government to have framed a uniform policy for
MPHW(M) such as the petitioners, covering the
entire State of Gujarat, instead of confining the
decision only to those MPHW(M) working in
Sabarkantha District, as has been done vide the
order dated 13.10.2009. This would have ensured
equal treatment to all similarly situated MPHW(M)
throughout the State, irrespective of the District in
which they are working. The fact that a decision has
not been taken for all MPHW(M) but only for those
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working in a particular District, has caused a great
deal of anguish and heart-burning to the petitioners,
which is quite understandable, considering that they
have been discriminated for no fault of their own.
35 As a result of the above discussion and for the
aforestated reasons, this Court is of the view that
the petitioners deserve to be granted the benefits of
regularization with retrospective effect, as have
been granted by the order dated 13.10.2009, passed
by the State Government in the case of similarly
situated persons in Sabarkantha District.
36 Hence, the following order is passed:
The respondents are directed to consider the cases
of the petitioners for regularization of their services
from the initial dates of their appointments, as has
been done in similarly situated cases, with all
consequential benefits.
The needful be done by the concerned respondents
within a period of three months from the date of the
receipt of a copy of this judgment."
8.3 What is to be noted on reading the relevant
paragraphs of the judgement which are extensively
reproduced hereinabove is that, it was the stand of
the State Government that representations were
received for regularization and the State was of the
opinion that in light of the resolution dated
02.05.1991, such irregular appointments should be
regularized on the condition that the concerned
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District Panchayats ought not to have made ad-hoc
appointments in the last six months. The decision in
the case of Surekhaben (supra) was also considered.
Even in light of this judgement which was
distinguished on the fact of such appointees being
contractual, the Court considering the decision of the
Hon'ble Supreme Court in the case of Secretary,
State of karnataka & Ors vs. Uma Devi & Ors.,
reported in 2006 (4) SCC 1, opined that the
petitioners deserved to be regularized because the
Court cannot overlook the fact that the State
Government is a model employer. It would have
behoved the State Government to have framed the
uniform policy for MPWHs for the entire State of
Gujarat and in light of such observations, a direction
was given in para 36 to consider the case of the
petitioners for regularization of their services from
the initial date of their appointments with all
consequential benefits.
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8.4 Special Civil Application No. 12537 of 2011 was
filed by the Gujarat Karmachari Sankalan Samiti for
a direction that the members of the Samiti be
treated at par with similarly situated persons in
other districts. Also was under challenge the order
of termination dated 06.01.2018 by which, during the
pendency of the petition, services of some of the
MPHWs were terminated.
8.5 A Civil Application was filed by the Samiti
challenging the order of termination wherein this
Court (Coram: K.S.Jhaveri, J) on 13.07.2012 in Civil
Application No. 7865 of 2012 in SCA No. 12537 of
2011 passed the following order:
"1. This application has been filed, praying to
direct the respondent-authorities to give exemption
to the members of the applicant from participating
in the selection process pursuant to the
advertisement published by the respondent
authorities on 7.7.2012 for the post of Multi Purpose
Health Workers(Male).
2. I have heard learned advocate for the
applicant. Considering the facts and circumstances
of the case, the petitioners are directed to appear in
the examination in question. However, it is clarified
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that the examination in question will be subject to
final result of S.C.A No. 12537 of 2011. The
respondents are directed not to relieve the
petitioners from service without following the due
process of law.
3. With the above observations and directions, the
present application stands disposed of. Direct
service is permitted."
8.6 That petition was finally heard and by a
judgement of 25.07.2018, extensively referring to the
decision in Special Civil Application No. 6289 of
2011 dated 10.08.2016, in paras 5 to 12 held as
under:
"5. It is further the case of the petitioners that
the State Government has issued a
Government Resolution dated 02.05.1991,
whereby, it is resolved to regularize the
services of adhoc employees such as the
petitioners. In spite of repeated representations
to respondent No.3 to regularize their services
in light of the above Government Resolution,
nothing fruitful has been done so far.
Respondent No.3 has forwarded several
proposals to respondent No.1 State
Government but no reply has been received.
6. The petitioners further contend that similarly
situated MPHW(M) who were not
permitted to participate in the selection
process on the ground of being overage have
been granted the benefit of the Government
Resolution dated 02.05.1991, by the Rajkot
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District Panchayat. The State Government,
itself, has regularized the services of
MPHW(M) in District Sabarkantha, with
retrospective effect. The petitioners are,
therefore, deserving of similar treatment.
As nothing concrete has been done by
the respondents in this regard, the petitioners
are before this Court.
7. Mr.S.I.Nanavati, learned Senior Advocate
with Mr.Saurabh Mehta, learned advocate, has
appeared for the petitioners and has made the
following submissions:
8. The petitioners have all been appointed
against sanctioned and vacant posts by a
selection process undertaken pursuant to the
advertisement dated 20.07.1990. Though the
appointments of the petitioners were initially
made on adhoc basis, however, Condition
No.10 in their appointment orders clearly
stipulates that the petitioners would be required
to participate in the regular selection process, as
and when it is initiated. Accordingly, the
petitioners have participated in the selection
process that was undertaken by respondent No.3
on 30.03.1996. It is submitted that it is not the
fault of the petitioners that no selection
process was undertaken by respondent No.3
from the year 1991 upto 1996. During this
period, the petitioners have crossed the
permissible agelimit, therefore, they are being
deprived of the fruits of regularization that
would have been granted to them had
the selection process been undertaken earlier, as
it should have been.
9. It is further submitted that the
petitioners possess the required eligibility
criteria, though some of the petitioners were
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declared as `failed' by respondent No.3 in the
recruitment process that took place on
30.03.1996, only on the basis of the age-
limit. Some of thepetitioners were not
even permitted to participate, on the very
same ground.
10. It is further submitted that similarly situated
MPHW(M) in District Rajkot have been
regularized by the Rajkot District Panchayat.
The State Government has passed an order
dated 13.10.2009, regularizing the services of
MPHW(M) in Sabarkantha District, with
retrospective effect. The petitioners are
identically situated and the same benefit ought
to be granted to them.
11. Learned Senior Counsel has relied
upon the judgment in the case of
Secretary, State of Karnataka And Others v.
Umadevi (3) And Others - (2006)4 SCC 1,
and has submitted that the case of the
petitioners falls squarely within the ratio of
the said judgment as their appointments
cannot be considered to be illegal but may be
said to be irregular. However, the irregularity of
their appointments is on account of the fact that
the selection process was not undertaken in
time, which factor is not in the control of the
petitioners. It is further submitted that the
petitioners have put in about twentyfive years
of service, by now. The interim order in
their favour was passed on 11.05.2011.
Even before that date, the petitioners had
completed approximately twenty years of
service, therefore, the ratio laid down in the
case Secretary, State of Karnataka And Others
v. Umadevi (3) And Others (supra) would be
applicable to them and they ought to be
considered for the regularization of their
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services.
12. Another judgment relied upon by learned
Senior Counsel is that in the case of
U.P. State Electricity Board v. Pooran Chandra
Pandey And Others - (2007)11 SCC 92. In
that case, the Supreme Court has discussed
the judgment of Maneka Gandhi v. Union of
India - (1978)1 SCC 248 and the judgment
of Secretary, State of Karnataka And Others
v. Umadevi (3) And Others (supra), and held
that no doubt, Maneka Gandhi case does not
specifically deal with the regularization of
Government employees but the principle of
reasonableness in executive action and the law
laid down therein would be of general
importance. It is submitted that the action
of the respondents in not regularizing the
services of the petitioners, especially as the
services of other similarly situated
employees have been regularized, is
unreasonable and unjust."
8.7 What is noted from the above decision is that
the termination order dated 06.01.2018 was quashed
and set aside and the Court held that the MPHWs
who have worked continuously for so many years
cannot be discriminated because there is no rationale
for treating them differently. Letters Patent Appeal
No. 1327 of 2019 was filed by the State. Therein,
the Court had passed an interim order on
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06.08.2019, which reads as under:
"3. We are of the considered view that learned
advocate appearing for respondent in LPA and
applicant in Misc. Civil Application, is absolutely
justified in contending that the wages of
Rs.2500/- p.m, at which the reinstatement is
made, cannot be said to be meeting any criteria
of the minimum wages, living wages or
admissible wages to the other daily rated
employees or daily wager employees in light of
recent judgment of Supreme Court.
4. In view thereof, we adjourn the matters to
09.09.2019 and ordered the concerned to see to
it that reinstated employees - applicants in
Misc. Civil Application and similarly situated,
shall be paid either the admissible minimum
wages or wages, which are being paid to
similarly situated non-regular employees in the
fixed wages. This is only on account of the
pendency of the Letters Patent Appeal of the
State, else the decision impugned in Letters
Patent Appeal would warrant higher wages at
bar with regular employees. Therefore, this
order may not be treated as reflection on
merits of the matter. This is only with a view
to assuage the plight of the applicants, who are
claiming that there is contempt of Court on
account of disobedience of Court's order,
impugned in the Letters Patent Appeal."
8.8 The interim order specifically observed that even
the non petitioners would be extended the benefits
of minimum wages.
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8.9 Finally, the appeal of the State was dismissed
by an order dated 16.10.2019. The order reads as
under:
"1.Heard Shri Chintan Dave, learned Assistant
Government Pleader for the State - appellant
and Shri Dishant K. Thakkar, learned counsel
for the private respondents.
2. This Letters Patent Appeal assails
correctness of the judgment and order
dated 25.07.2018 passed by the learned Single
Judge in Special Civil Application No. 12537 of
2011, whereby the learned Single Judge allowed
the petition of the private respondents, relying
upon an earlier judgment of this Court dated
10.08.2016 passed in Special Civil Application
No. 6289 of 2011. The learned
Single Judge extended the same
benefits to the present writ petitioners as was
extended to the writ petitioners of the
aforementioned Special Civil Application. Learned
Assistant Government Pleader Shri Dave has not
been able to show any distinction between the
petitioners of the two petitions, nor has been
able to place any material before the Court to
show that the earlier judgment of this Court
dated 10.08.2016 has been set aside, modified
or recalled.
3. In view of the above, and having perused the
judgment under challenge, as also the judgment
dated 10.08.2016, we do not find any reason to
take a different view. The appeal lacks merits.
Accordingly, the appeal is dismissed and all the
pending civil applications stand disposed of."
C/SCA/5040/2022 CAV JUDGMENT DATED: 19/10/2022
8.10 While dismissing the Appeal, it was clearly
observed by the State that the State had failed to
point out any distinction between the petitioners of
Special Civil Application No. 6289 of 2011 and SCA
No. 12537 of 2011.
8.11 The order was upheld in the Hon'ble Supreme
Court as the State's appeals were dismissed by the
Supreme Court on 26.10.2020. When Contempt
proceedings were initiated, the Court on 10.01.2020
passed an order which reads as under:
"Today, when the matter has been called out,
Shri J.K. Shah, learned Assistant Government
Pleader has prayed for a week's time to file
affidavits of the opposite parties in response to
the contempt notices which were issued
some time in the months of September and
October in all these matters.
From the record, we find that in the
year 2016, vide judgment dated 10.08.2016,
Special Civil Application No. 6289 of 2011 in the
case of J.N. Jagani and 28 others v. State of
Gujarat and 3 Ors., was allowed and the
respondent - State was directed to extend
the benefit of regularization with
retrospective effect in view of the order of the
State Government dated 13.10.2009. The
operative potion contained in para 35 and 36
C/SCA/5040/2022 CAV JUDGMENT DATED: 19/10/2022
are reproduced below :
"35. As a result of the above
discussion and for the aforestated
reasons, this Court is of the
view that the petitioners deserve
to be granted the benefits of
regularization with retrospective
effect, as have been granted by
the order dated 13.10.2009,
passed by the State Government in
the case of similarly situated persons in
Sabarkantha District.
36.Hence, the following order is
passed: The respondents are directed
to consider the cases of the
petitioners for regularization of their
services from the initial dates of their
appointments, as has been done in
similarly situated cases, with all
consequential benefits. The needful be
done by the concerned respondents
within a period of three months from
the date of the receipt of a copy of
this judgment."
The said judgment dated 10.08.2016 has
been consistently followed by this Court in
number of matters. It may also be noticed that
the State had preferred Letters Patent Appeal,
which ultimately came to be dismissed vide
judgment dated 16.10.2019. In the meantime,
similar matters being filed were allowed by the
learned Single Judge from time to time. Thus,
we also find from one of the orders passed by
this Court that the directions issued by the
State authorities to ensure compliance of the
said judgment, even to non petitioners and not
to insist upon these methods to file petition for
C/SCA/5040/2022 CAV JUDGMENT DATED: 19/10/2022
seeking regularization.
In view of the above, as things stand
today, compliance has not been effected. Thus,
there is prima facie contempt made out. Let
these matters be listed on 14.02.2020. If on the
said date, affidavits of the actual and full
compliance are not filed by the opposite parties,
all the opposite parties to remain present before
this Court. We may clarify that the
officers posted on the relevant posts,
described as opposite parties nos. 1 to
4 to remain present, irrespective of the fact
whether they are being presently left or have
been transferred in the meanwhile.
A copy of this order be provided to Mr.
J.K. Shah, learned Assistant Government Pleader
free of costs within five (5) days for necessary
compliance.
List on 14.02.2020."
8.12 A specific observation has been made by the
Division Bench that "thus we also find from one of
the orders passed by this Court that the directions
issued by the State authorities to ensure compliance
of the said judgement, even to the non petitioners
and not to insist upon these methods to file
petition for seeking regularization". What is
therefore explicitly clear is that MPHWs irrespective
of their nature of appointments i.e. ad-hoc or
C/SCA/5040/2022 CAV JUDGMENT DATED: 19/10/2022
contractual were entitled to the benefits of
regularization and / or reinstatement. Pursuant to
those observations, the proceedings during its
progress resulted in the contempt bench passing an
order on 28.02.2020, which resulted in the State
complying with the order and issuing one such order
of 19.07.2021 by which 322 MPHWs of SCA No.
12537 of 2011 were regularized.
9 The chronology of the orders and the relevant
paras reproduced hereinabove indicate that
repeatedly, Multi Purpose Health Workers have had
to approach this Court seeking the benefit of
regularization and / or reinstatement. Even
subsequent to the orders passed in Special Civil
Application No. 6289 of 2011 and 12537 of 2011, a
co-ordinate Bench of this Court has passed identical
order in SCA No. 13519 of 2011 on 10.12.2019.
Paras 9 to 12 read as under:
"9. The aforesaid orders refer to the various
judgments of this Court. The State authorities have
C/SCA/5040/2022 CAV JUDGMENT DATED: 19/10/2022
implemented the aforesaid orders passed by this
Court in the aforesaid Districts hence, the
employees / petitioners working in the Kheda
District cannot be discriminated and they are also
liable to be treated equally.
10. As regards the submissions advanced by the
learned advocate Mr.Ahuja for respondent No.3 with
regard to disentitlement of the petitioners for
regularization since they have not cleared the Hindi
examination, the same does not merit acceptance
since no provision of Rule or Regulation is shown
stating that if an employee has not cleared Hindi
examination, he cannot be conferred the benefits of
regularization or regular pay. In absence of such
provision of Rules or Regulations, the petitioners
cannot be denied the benefit of regularization.
11. The Coordinate Bench of this Court in the
aforesaid judgment dated 10.08.2016 passed in
Special Civil Application No.6289 of 2011, while
granting reliefs to the Multi Purpose Health Workers
(Male), has distinguished the aforesaid judgment of
the Division Bench dated 20.07.2010 passed in
Letters Patent Appeal No.85 of 2010 and has issued
the directions to the State authorities to confer the
benefits of regularization from the initial date of
appointment. The aforesaid judgment is
implemented by the State authorities and hence,
judgment passed by the Division Bench in Letters
Patent Appeal No.85 of 2010 will not come to the
rescue of the respondents.
12. Under the circumstances, the respondents are
directed to confer the similar benefits, which are
conferred to the Multi Purpose Health Workers
(Male) of Rjakot, Junagadh, Sabarkantha and Valsad
Districts, to the petitioners working in Kheda
District. Appropriate similar orders may be passed
in the case of the present petitioners also.
C/SCA/5040/2022 CAV JUDGMENT DATED: 19/10/2022
Necessary orders shall be passed within a period of
two months from the date of receipt of the order of
this Court."
9.1 In SCA No. 15228 of 2012, dated 05.12.2019,
the Court has passed the following order:
"6. I have heard the learned advocates appearing for
the respective parties.
7. This Court has perused the judgment dated
10.08.2016 passed by this Court in Special Civil
Application No.6289 of 2011. In depth analysis of
the judgment reveals that the issue raised in the
present petitions is squarely covered. The only
difference is that the petitioner in the present writ
petition belongs to Kheda District, whereas the
petitioners of Special Civil Application No.6289 of
2011 were of Junagadh District.
8. This Court, after threadbare analysis of all the
relevant aspects as well as the contentions raised by
both the sides in Special Civil Application No.6289
of 2011 has observed thus:
"33. As held by this Court in the
above judgment, aging is a process which
nobody can stop. This aspect ought to
have been considered by respondent
No.3 while including Condition No.10 in
the appointment orders of the
petitioners and while issuing the
advertisement for regular selection in the
year 1996. It was not in the hands of the
petitioners to have stopped the clock from
running. However, it was very much in the
hands of respondent No.3 to have held the
selection process well in time, so that
C/SCA/5040/2022 CAV JUDGMENT DATED: 19/10/2022
persons such as the petitioners, who
have been appointed by it subject to
the condition that they would have
to participate in the regular selection
process, would have got a fair chance.
The petitioners cannot be made to suffer
for the totally unconcerned and casual
approach on the part of the District
Panchayat.
34. At the same time, the Court cannot
overlook the fact that the State
Government is supposed to be a model
employer. It would have behoved the
State Government to have framed a
uniform policy for MPHW(M) such as the
petitioners, covering the entire State of
Gujarat, instead of confining the decision
only to those MPHW(M) working in
Sabarkantha District, as has been done
vide the order dated 13.10.2009. This
would have ensured equal treatment to
all similarly situated MPHW(M)
throughout the State, irrespective of the
District in which they are working. The fact
that a decision has not been taken for all
MPHW(M) but only for those working
in a particular District, has caused a
great deal of anguish and heartburning
to the petitioners, which is quite
understandable, considering that they
have been discriminated for no fault of their
own.
35. As a result of the above discussion and
for the aforestated reasons, this Court is of
the view that the petitioners deserve to be
granted the benefits of regularization with
retrospective effect, as have been
granted by the order dated 13.10.2009,
C/SCA/5040/2022 CAV JUDGMENT DATED: 19/10/2022
passed by the State Government in the
case of similarly situated persons in
Sabarkantha District."
This Court had also observed that the Multi-purpose
Health Workers working in Sabarkantha District had
already been conferred the benefits of regularization
vide order dated 13.10.2009 and the employees of
Junagadh District cannot be discriminated.
9. In the present case, the employee of Kheda
District is discriminated and such discrimination
cannot be allowed in wake of the fact that the State
authorities have granted the benefits of
regularization in Sabarkantha, Junagadh and Rajkot
Districts. It is also noticed that the Coordinate
Bench of this Court has also considered the factor of
the employees being over-age and some of them had
also not passed the examination. The facts recorded
in the judgment reveal that some of the employees
even failed in the recruitment process, which had
taken place on 30.03.1996. Despite the aforesaid
facts, the Court has directed to regularize the
service of the Multi-purpose Health Workers of
Junagadh District from the date of initial
appointment.
10. It is also not in dispute that the Coordinate
Bench of this Court has also held that once the
Multi-purpose Health Workers, who are engaged on
contractual basis and after even given breaks, they
are entitled to regularize in service after they have
subsequently cleared the regular recruitment
process. The initial appointment order dated
25.03.1991 refers that the petitioner has to clear the
selection process as and when the same is held. The
petitioner has also cleared the examination and once
he has participated in the regular selection process,
and is selected then his earlier services cannot be
wiped out and he is required to be treated as
C/SCA/5040/2022 CAV JUDGMENT DATED: 19/10/2022
regular employee by conferring him continuity of
service. It is reported that the aforesaid judgment is
implemented by the State authorities.
11. Under the circumstances, the petitioner cannot
be discriminated only because he belongs to Kheda
District. The present writ petition succeeds in light
of the judgment dated 10.08.2016 passed in Special
Civil Application No.6289 of 2011.
12. The respondents are hereby directed to confer
the benefits of past service to the petitioner from the
initial date of appointment treating him as continue
in terms of the judgment dated 10.08.2016 passed in
Special Civil Application No.6289 of 2011.
Appropriate orders shall be passed within a period
of three months from the date of receipt of the writ
of this order. Rule is made absolute. Direct service is
permitted."
9.2 In the aforesaid order, the Division Bench in
LPA No. 216 of 2021 has dismissed the appeal of
the District Development Officer. Para 3 to 6 read
as under:
"3. Insofar as the other appeal is concerned that
is arising out of Special Civil Application
No.13519 of 2011, again the learned Single
Judge relied upon the judgment dated
10.08.2016 in Special Civil Application
No.6289 of 2011 and extended the same
benefits to the writ petitioners therein. It is also
recorded by the learned Single Judge that
the Multupurpose Health Workers (Male) who
are working in Rajkot, Junagadh, Sabarkantha
and Valsad have already been extended the
C/SCA/5040/2022 CAV JUDGMENT DATED: 19/10/2022
benefits and their services have been
regularized from the initial date of
appointment. As such, the present writ
petitioners belonging to District Kheda would
also be entitled to the same benefits.
Apparently we do not find any infirmity in
the orders passed by the learned Single Judge.
4. We may further note here the submission of
Shri Munshaw referring to two judgments
of the Division Bench dated 19.07.2016 in
Letters Patent Appeal No.507 of 2016
arising out of Special Civil Application
No.2344 of 2014 and the judgment dated
20.07.2010 in Letters Patent Appeal No.85
of 2010 arising out of Special Civil Application
No.8611 of 2009, based upon which he
submits that the Multipurpose Health Workers
(Male) were not extended the benefits which
have been given to the present petitioners.
We have perused both the judgments and we
find that they were based on different
set of facts and the initial appointment of
those Multipurpose Health Workers were
contractual in nature unlike the present
petitioners who were given regular appointment
on fixed term and conditions.
5. Learned counsels for the respondents state
that they are entitled to the benefits of
regularization from 15.04.1995 and not from any
earlier date because they are working
continuously from the said date and prior to it
in their appointments there were certain breaks.
This honest submission of the learned
counsels for the respondents is noted and
the appellants would implement the order of the
learned Single Judge accordingly.
6. It has also been pointed out by the
learned counsels for the respondents that the
C/SCA/5040/2022 CAV JUDGMENT DATED: 19/10/2022
Division Bench of this Court vide judgment dated
10.08.2017 passed in Letters Patent Appeal
No.1263 of 2016 arising out of group of
petitions led by Special Civil Application
No.11477 of 2015 dismissed the appeal of the
State against the judgment of the learned Single
Judge extending similar benefits as has been
done in the present case."
10 The litigations from these orders as is evident
had their roots in the order at the first point of
time passed on 10.08.2016. In SCA No. 12537 of
2011, the Court followed the order in SCA No. 6289
of 2011 dated 10.08.2016. In addition thereto, it set
aside the orders of termination dated 06.01.2018.
The petitioners of these batch of petitions accordingly
made representations for extending similar benefits to
such petitioners which have been rejected on the
ground that it is not clear as to whether they were
petitioners in SCA No. 12537 of 2011. The stand is
misconceived. The learned AGP's submission that the
judgements in the aforesaid decision are per
incuriam in light of decision in the case of
Surekhaben (supra) as in the earlier cases the
C/SCA/5040/2022 CAV JUDGMENT DATED: 19/10/2022
appointees were ad-hoc appointees whereas in the
case of Surekhaben contractual appointees were not
given similar benefits and the appeals were
dismissed at the instance of contractual appointees
like the petitioners cannot be accepted. Appointees,
ad-hoc or contractual had to be treated similarly as
observed by the Co-ordinate Bench of this Court in
SCA 6289 of 2011 where the Court specifically
observed that "at the same time, the Court cannot
overlook the fact that the State Government is
supposed to be a model employer. It would have
behoved the State Government to have framed a
uniform policy for MPHWs. Once in orders passed
by this Court, especially which were affirmed by the
Division Bench specifically observing that such
benefits will also be given to non petitioners, there
is no reason why the batch of present petitioners
should not be given the benefit of reinstatement and
regularization. The next question is as to which of
these petitioners would be entitled to such benefits,
C/SCA/5040/2022 CAV JUDGMENT DATED: 19/10/2022
as from the dates of appointments given by the
respective counsels for the petitioners indicate that
they were appointed on contractual basis ranging
from the years 2004-05 to the year 2018-2019. A
reasonable cut off date shall then have to be
thought of for extending the benefits of
regularization to such petitioners. It will be in the
fitness of things therefore to consider 10.8.2016 as
the relevant date when the first batch of petitions
was allowed as the relevant date for exercising
discretion in favour of the petitioners who seeks
reinstatement and regularization. Accordingly,
petitions Nos.14946 of 2022, 5040 of 2022, 3468 of
2022, 13139 of 2022, 12375 of 2022, 12377 of 2022,
12960 of 2022, 12986 of 2022, 13554 of 2022,
13680 of 2022, 13404 of 2022, 13370 of 2022,
13388 of 2022, 14868 of 2022, 13147 of 2022,
13151 of 2022 and 13198 of 2022 in which the
petitioners whose appointments were prior to
10.08.2016 are entitled to the benefits of
C/SCA/5040/2022 CAV JUDGMENT DATED: 19/10/2022
reinstatement and regularization from their initial
date of appointment as was granted by the State to
the 322 beneficiaries of SCA No. 12537 of 2011.
Accordingly, the aforesaid petitions are allowed to the
aforesaid extent. The order dated 07.01.2022 and
07.05.2022 are hereby quashed and set aside. The
petitioners whose appointments are prior to
10.08.2016 are entitled to the benefits of
reinstatement and regularization on the same terms
and conditions as granted to the beneficiaries of the
order dated 19.07.2021 passed by the State.
Special Civil Application Nos. 10994, 11324 and
12401 of 2022.
11 The petitioners are Multi Purpose Health Workers
who have been working under the respective District
Panchayats from 1995-1996 on an ad-hoc basis. They
have continued even after the expiry of their 11
months period, over a period of time. Their prayer is
that their services be regularized on the same terms
C/SCA/5040/2022 CAV JUDGMENT DATED: 19/10/2022
and conditions as done so in the case of the
petitioners of SCA No. 6289 of 2011 and 12537 of
2011.
2022, 10808 of 2022 and 16290 of 2022 are
concerned, they are MPHWs (male) & Female Health
Workers, who were working initially on ad-hoc basis,
however, have subsequently undergone the regular
process of selection undertaken by the Gujarat
Panchayat Service Selection Board and have been so
appointed on regular post. Their cases are much
better than the 322 candidates who are regularized
by an order dated 19.07.2021, inasmuch as, these
petitioners though were ad-hoc employees like the
beneficiaries of the order dated 19.07.2021 they have
undergone the selection process and are now
regularized in service. Those ad-hoc MPHWs who
had failed in the competitive examination have had
the benefit of their services being regularized from
C/SCA/5040/2022 CAV JUDGMENT DATED: 19/10/2022
the date of their initial appointments in view of the
judgement referred to hereinabove. Therefore the
present petitioners in these petitions too cannot be
deprived of the benefits of past services rendered by
them on ad-hoc basis and the benefits of regularization.
This Court had on 20.07.2022, in Special Civil Application
No. 2334 of 2021 and allied matters passed the following
order:
13 In SCA No. 6431 of 2022, this Court on 29.06.2022,
passed the following order:
"1. Rule returnable forthwith. Mr. Desai, learned
AGP waives service of rule on behalf of the
respondent-State and Mr. H.S. Munshaw, learned
advocate waives service of notice of rule on behalf of
respondent no. 2. With consent of the learned
advocates appearing for the respective parties, the
petition is taken up for final hearing today.
2. Mr. Munshaw, learned advocate has taken the
court through the affidavit-in-reply and submitted
that since the earlier appointment was on
contractual and adhoc basis, the said service cannot
be counted for regular service. Mr. Vyas, learned
counsel appearing for the petitioners relies on an
order passed by this Court in Special Civil
Application No. 9089 of 2022 and allied matters
dated 06.05.2022. The order reads as under:
C/SCA/5040/2022 CAV JUDGMENT DATED: 19/10/2022
"1. Rule returnable forthwith. Learned AGPs waive
service of notice of rule on behalf of respondent
State.
2. Heard learned advocates for the parties.
3. It is the case of learned counsel for the petitioners
that the case of the petitioners is similarly situated
to the petitioners of Special Civil Application No.
12537 of 2011. Learned counsel for the petitioners
would submit that the petitioners are entitled to the
similar benefits as have been directed by the court
in the order dated 23.01.2019 in para 8.1. He would
submit that a direction can be given to the
respondents to extend similar consequential benefits
to the petitioners herein.
4. This court vide order dated 25.07.2018 passed in
Special Civil Application No. 12537 of 2011 in case
of employees like the petitioners who prayed for a
direction to regularize their services and treat them
at par with similarly situated persons and grant
them regularization from the date of their initial
appointments as Multipurpose Health Workers
(Male) with consequential and incidental benefits
held as under:
7. It is admitted that initially, petitioners were
given contractual appointment for 11 months
and thereafter, they have been continued for all
these years. Some of these petitioners have
joined way back in the year 2004 and 2005 and
working on fixed remuneration of Rs.2500/-.
The main ground of the respondents in denying
the regular appointment to the petitioners and
terminating their services is that initial
appointment was on contractual basis.
8. This Court is of the considered opinion that
such stand of the State Government in
C/SCA/5040/2022 CAV JUDGMENT DATED: 19/10/2022
terminating the services of the petitioners,
despite the fact that, petition of similarly
situated other petitioners was allowed way
back in the year 2011 and 2016. In these
proceedings, respondents were party and
decision was in the knowledge of the
respondents. Case of the petitioners for
increasing of remuneration from Rs.2500/- to
Rs.9400/- was forwarded by Health and Family
Welfare Department for consideration to the
Finance Department. Finance Department in
place of taking decision in favour of the
employees have passed an order vide which the
District Panchayats have been directed to
terminate the services of the petitioners who
have been working for considerable long time.
9. While disposing of Special Civil Application
No.6289 of 2011, this Court has held as under.
25. It may be true that in the case of District
Rajkot, similarly situated MPHW(M) have been
regularized by the concerned District
Panchayat. However, it is obvious that in the
case of Sabarkantha District Panchayat, the
services of MPHW (M), who are identically
situated to the petitioners, have been
regularized, with restrospective effect, by the
State Government, itself. The State
Government has taken a policy decision in this
regard, confined only to the MPHW (M) of
Sabarkantha District. Why all similarly situated
MPHW (M) in other Districts of the State have
not been covered under a uniform policy, is
certainly baffling. Multi Purpose Health Worker
(Male) such as petitioners, who were appointed
on adhoc basis but have been denied the fruits
of regular appointment only because the
regular selection process was not fhled until
they had crossed the permissible age-limit,
C/SCA/5040/2022 CAV JUDGMENT DATED: 19/10/2022
from a distinct class of employees. Different
categories in a single class cannot be carved
out by taking piecemeal decisions benefiting
only a section of such employees. This would
amount to sub-classification that would not be
permissible in law, as there is no rational nexus
to the object sought to be achieved by
confirming the decision only to MPHW (M) in
Rajkot and Sabarkantha districts. They,
therefore, cannot be accorded discriminatory
treatment. The respondent authorities are not
only trying to take advantage of the situation
but are also trying to put the blame on each
other which cannot be permitted, to the
detriment of the petitioners.
10. From the aforementioned judgment, it is
clear that Multi Purpose Health Worker (Male)
who have worked continuously for so many
years cannot be discriminated by taking one
excuse or the other. There is no rationale in
discriminating the present petitioners by
treating them as employees on contractual
basis when initial contract for which they were
appointed is over after 11 months and
thereafter, without any break, they are
continued for all these years. This is
particularly so, when clear cut finding has been
recorded by co-ordinate Bench of this Court in
Special Civil Application No.6289 of 2011 and
respondents were party in these proceedings.
11. As a result of aforementioned discussion,
termination order dated 6.1.2018 is quashed
and set aside and this petition is allowed in the
same terms as Special Civil Application
No.6289 of 2011 decided on 10th August, 2016.
Petitioners will be regularized in the same
manner from the same date as in the
aforementioned oral order. Rule is made
C/SCA/5040/2022 CAV JUDGMENT DATED: 19/10/2022
absolute. 5. Further, a co-ordinate bench of this
court in Special Civil Application No. 2207 of
2014, relying on the aforesaid decision,
considering the submissions of the respective
parties held as under vide order dated
23.01.2019:
" 7. Having heard learned advocates appearing
for the parties and having gone through the
material on record, the Court found that
respondents have not been able to point out
any dissimilarity or discriminatory feature than
what has been decided by coordinate Bench of
this Court and, therefore, with limited scope of
an issue, the Court found that the case is made
out by the petitioner. While arriving at this
conclusion, the Court is considering the
observations which have been made by a
decision in case of Special Civil Application
No.6289 of 2011reported in case as referred
above [J.N.Jagani vs. State of Gujarat reported
in 2016 (0) AIJEL - HC 236643], the relevant
paras contained therein are reproduced
hereinafter.
"26. It is a settled position of law,
that does not require any further
elaboration, that equals are required
to be treated equally and dissimilar
treatment cannot be accorded to the
same class of people.
27. The action of the respondent
authorities in not regularizing the
services of the petitioners, as has
been done in the case of other
similarly situated MPHW(M) by the
concerned District Panchayats and
the State Government in
Sabarkantha District, is not only
C/SCA/5040/2022 CAV JUDGMENT DATED: 19/10/2022
arbitrary but also discriminatory and
unjust and is, therefore, in violation
of Article 14 of the Constitution of
India. The petitioners are being
deprived of the fruits of
regularization in spite of having
worked continuously for a period of
about twentyfive years, or more. As
such, the action of the respondents is
also in violation of the provision of
Articles 16 and 21 of the Constitution
of India.
31. In the present case as well, the
action of the respondents District
Panchayat as well as the State
Government is required to be tested
on the principle of reasonableness in
executive action. In the view of this
Court, the action of respondent No.3
in not issuing the advertisement for
the regular selection procedure
expeditiously, especially after
imposing a condition in the
appointment orders of the petitioners
that they have to undergo the regular
selection process and then not
conducting the selection process for
years together until the petitioners
cross the permissible agelimit, is
highly unreasonable. Respondent
No.3 bided time for a period of six
years before initiating the regular
selection process ensuring, by this
action that the petitioners become
agebarred in the meanwhile. The
initiation of the selection process was
not in the hands of the petitioners
and they cannot be blamed for the
plight they find themselves in.
C/SCA/5040/2022 CAV JUDGMENT DATED: 19/10/2022
33. As held by this Court in the above
judgment, aging is a process which
nobody can stop. This aspect ought to
have been considered by respondent
No.3 while including Condition No.10
in the appointment orders of the
petitioners and while issuing the
advertisement for regular selection in
the year 1996. It was not in the
hands of the petitioners to
havestopped the clock from running.
However, it was very much in the
hands of respondent No.3 to have
held the selection process well in
time, so that persons such as the
petitioners, who have been appointed
by it subject to the condition that
they would have to participate in the
regular selection process, would have
got a fair chance. The petitioners
cannot be made to suffer for the
totally unconcerned and casual
approach on the part of the District
Panchayat.
34. At the same time, the Court
cannot overlook the fact that the
State Government is supposed to be
a model employer. It would have
behoved the State Government to
have framed a uniform policy for
MPHW(M) such as the petitioners,
covering the entire State of Gujarat,
instead of confining the decision only
to those MPHW(M) working in
Sabarkantha District, as has been
done vide the order dated
13.10.2009. This would have ensured
equal treatment to all similarly
C/SCA/5040/2022 CAV JUDGMENT DATED: 19/10/2022
situated MPHW(M) throughout the
State, irrespective of the District in
which they are working. The fact that
a decision has not been taken for all
MPHW(M) but only for those working
in a particular District, has caused a
great deal of anguish and
heartburning to the petitioners,
which is quite understandable,
considering that they have been
discriminated for no fault of their
own. 35. As a result of the above
discussion and for the aforestated
reasons, this Court is of the view that
the petitioners deserve to be granted
the benefits of regularization with
retrospective effect, as have been
granted by the order dated
13.10.2009, passed by the State
Government in the case of similarly
situated persons in Sabarkantha
District."
8. The Court also found that similar
observations have been considered by yet
another coordinate Bench in a decision
delivered on 25.07.2018 in Special Civil
Application No.12537 of 2011. The Court
is also taking note of said decision while
coming to this conclusion in the present
case on hand. From the aforesaid
observations and in view of the fact that
here also the petitioner is a Multipurpose
Health Worker (Male) and the
dissimilarity is not reflecting at all, the
case is made out by the petitioner for
seeking the benefit of regularisation with
retrospective effect. Accordingly following
order would meet the end of justice while
disposing of the petition.
C/SCA/5040/2022 CAV JUDGMENT DATED: 19/10/2022
8.1 The respondents are directed to
consider the case of petitioner for
regularisation of their services from the
initial date of appointment as has been
done in similarly situated cases with all
consequential benefits and the needful to
be done by the concerned authorities
within a period of three months from the
date of receipt of this Court.
9. With the above observation and
direction, petition stands allowed, with no
order as to costs."
6. Accordingly, the respondents are directed to
consider the case of the petitioners for their
entitlement to regular payscale on the post of
Multi-purpose Health Workers (Male) from
their original date of appointment and
consequential benefits which have been paid to
the similarly situated employees namely
petitioners of Special Civil Applications No.
12537 of 2011 and 2207 of 2014. The
petitioners shall be granted such benefits as
referred to hereinabove within a period of ten
weeks from the date of receipt of the writ of
the order of this court. Petitions are
accordingly allowed. Rule is made absolute.
Direct service is permitted."
3. In view of the above, the respondents are directed
to consider the case of the petitioners for their
entitlement to regular pay-scale on the post of Multi-
purpose Health Worker (Male) from their original
date of appointment and consequential benefits
which have been paid to the similarly situated
employees namely petitioners of Special Civil
Application No. 12537 of 2011 and 2207 of 2014.
The petitioners shall be granted such benefits as
C/SCA/5040/2022 CAV JUDGMENT DATED: 19/10/2022
referred to hereinabove within a period of fourteen
(14) weeks from the date of receipt of the writ of the
order of this Court. Petition is allowed accordingly.
Rule is made absolute. Direct service is permitted."
14 In light of the above, Special Civil Application Nos.
10807 of 2022, 10808 of 2022, 15536 of 2022, 16290 of
2022 , 10994 of 2022, 11324 of 2022 and 12401 of 2022
are allowed in terms of the orders quoted hereinabove. In
view of the above, the respondents are directed to
consider the case of the petitioners for their entitlement
to regular pay-scale on the post of Multi Purpose Health
Worker (Male) / Female Health Workers from their
original date of appointment and consequential benefits
which have been paid to similarly situated employees
namely petitioners of Special Civil Application No. 12537
of 2011 and 2207 of 2014. The petitioners shall be
granted such benefits as referred to hereinabove within a
period of 14 weeks from the date of receipt of the copy of
the order.
15 As far as Special Civil Application No. 5409 of
C/SCA/5040/2022 CAV JUDGMENT DATED: 19/10/2022
2022 is concerned, the orders of termination of such
petitioners were passed in the years 2012-2013. Such
petitioners cannot get the benefit of the order
passed by this Court, inasmuch as, they are fence
sitters and have not challenged their terminations
even at any earlier point of time. Therefore, they
cannot be granted such benefits. Accordingly, SCA
No. 5409 of 2022 is dismissed.
Connected civil applications stands disposed of,
accordingly.
(BIREN VAISHNAV, J)
BIMAL
