Solanki Shobanaben Govindbhai vs Deputy Administrative Officer
2023 Latest Caselaw 3554 Guj

    C/LPA/304/2022                                      CAV JUDGMENT DATED: 28/04/2023




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                     R/LETTERS PATENT APPEAL NO. 304 of 2022

              In R/SPECIAL CIVIL APPLICATION NO. 14740 of 2019


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE N.V.ANJARIA

and
HONOURABLE MR. JUSTICE NIRAL R. MEHTA

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

1 Whether Reporters of Local Papers may be allowed to see the Yes judgment ?

2 To be referred to the Reporter or not ? Yes

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

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

========================================================== SOLANKI SHOBANABEN GOVINDBHAI Versus DEPUTY ADMINISTRATIVE OFFICER ========================================================== Appearance:

MR GAURAV K MEHTA(5227) for the Appellant(s) No. 1,10,11,12,13,14,2,3,4,5,6,7,8,9 MR KRUTIK PARIKH, AGP for the Respondent(s) No. 3 NOTICE SERVED for the Respondent(s) No. 1,2,4,5,6 ==========================================================

CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIA and HONOURABLE MR. JUSTICE NIRAL R. MEHTA

Date :28/04/2023

C/LPA/304/2022 CAV JUDGMENT DATED: 28/04/2023

CAV JUDGMENT (PER : HONOURABLE MR. JUSTICE N.V.ANJARIA)

Heard learned advocate Mr.Gaurav Mehta for the appellants and learned Assistant Government Pleader Mr.Krutik Parikh for the respondent.

2. This appeal under Clause 15 of the Letters Patent is directed against judgment and order dated 7.2.2022, whereby, learned single Judge dismissed the Special Civil Application of the petitioner.

2.1 The Special Civil Application was filed by thirty petitioners in which they prayed to set aside communication dated 5.8.2019 issued by the Joint Commissioner of Police, Ahmedabad city. The further prayer was to direct the respondent authorities to take back forthwith the petitioners in service and grant them all benefits given to the petitioners of Special Civil Application No.7462 of 2012 and allied cases, confirmed in Letters Patent Appeal No.1155 of 2019 by judgment and order dated 9.5.2019. It was also prayed to give benefits to the petitioners by taking into account the guidelines of the Government Resolution dated 16.7.2019.

3. The case of the petitioners was inter alia that they were the Class-IV part-time employees working since more than ten years under the respondent police department in the office of the Police Commissioner, Ahmedabad city. They were employed for minimum six hours and were paid fixed monthly wages. It was stated that in different Government offices, similar type of

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appointments were made for fixed hours and that such class of employees had been urging for regularization of their services in the department on the ground that the nature of work was permanent.

3.1 It was stated that the Finance Department passed Resolution dated 10.2.2006 withdrawing all the powers of all the departments of appointments to the part-time employees. In view of the said Resolution, services of the Class-IV employees in different department came to be terminated time to time. It was the case that all such employees required to be regularized. It was submitted that the Resolution dated 25.4.2012 came to be passed to finally issue the instructions that the services of the part-time employees would be terminated.

3.2 It was stated by the petitioners that similarly situated persons had approached this court by filing Special Civil Application No.7462 of 2012 which culminated into filing of Letters Patent Appeal No.1155 of 2019. Those petitioners succeeded and it was stated by virtue of the orders passed by the Letters Patent Appeal Bench that they were reinstated and benefits under Resolution dated 16.7.2019 were paid. Amomgst the petitioners herein, the services of the petitioner Nos.1, 4 to 8, 10, 11, 13 to 21 were already terminated in the year 2010 by order dated 1.4.2010. The services of the other petitioners were terminated on 23.2.2012.

4. In other words, the case of the petitioners was that since the petitioners of Special Civil Application No.7462 of 2012 which culminated into Letters Patent Appeal No.1155 of 2019,

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came to be granted the relief who agitated their right of regularization and grant of minimum pay scale, the petitioners were also entitled to the same.

5. Learned single Judge observed and held thus in the judgment.

"7. As far as the petitioners whose services were terminated in the year 2010 and 2012 as referred to in paragraphs 5 and 6 of the affidavit therefore do not deserve consideration.

8. As far as remaining petitioners are concerned, it is State's stand that the issue is pending consideration before the Adjudicating Authority.

9. Only all those petitioners whose number according to the reply is 12 and whose cases are pending consideration as per the affidavit be considered in accordance with law. For the remaining petitioners as stated in the affidavit in paras 4 and 5, the petition stands dismissed as admittedly, the cases of the petitioners whose services are terminated in the years 2010 and 2012 are fence-sitters as held by the decision of the case of Supreme Court in case of State of U.P. v. Arvind Kumar Srivastava reported in 2015 (1) SCC 347. "

(para 22, 23)

5.1 The decision of the Supreme Court in Arvind Kumar Srivastava (supra) relied on by learned single Judge dealt with the issue as to in which circumstances the relief on the basis of parity may be granted. The Supreme Court highlighted the fact of delay, latches and acquiescence on part of the party in claiming entitlement of the benefit of judgment which may be applied to all similarly situated persons irrespective of whether they had approached the court or not.

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5.1.1 The Supreme Court in Arvind Kumar Srivastava (supra) held thus,

"The legal principles which emerge from the reading of the aforesaid judgments, cited both by the appellants as well as the respondents, can be summed up as under:

(1) Normal rule is that when a particular set of employees is given relief by the Court, all other identically situated persons need to be treated alike by extending that benefit. Not doing so would amount to discrimination and would be violative of Article 14 of the Constitution of India. This principle needs to be applied in service matters more emphatically as the service jurisprudence evolved by this Court from time to time postulates that all similarly situated persons should be treated similarly. Therefore, the normal rule would be that merely because other similarly situated persons did not approach the Court earlier, they are not to be treated differently.

(2) However, this principle is subject to well recognized exceptions in the form of laches and delays as well as acquiescence. Those persons who did not challenge the wrongful action in their cases and acquiesced into the same and woke up after long delay only because of the reason that their counterparts who had approached the Court earlier in time succeeded in their efforts, then such employees cannot claim that the benefit of the judgment rendered in the case of similarly situated persons be extended to them. They would be treated as fence-sitters and laches and delays, and/or the acquiescence, would be a valid ground to dismiss their claim.

(3) However, this exception may not apply in those cases where the judgment pronounced by the Court was judgment in rem with intention to

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give benefit to all similarly situated persons, whether they approached the Court or not. With such a pronouncement the obligation is cast upon the authorities to itself extend the benefit thereof to all similarly situated person. Such a situation can occur when the subject matter of the decision touches upon the policy matters, like scheme of regularisation and the like (see K.C.Sharma and Others Vs. Union of India (supra). On the other hand, if the judgment of the Court was in personam holding that benefit of the said judgment shall accrue to the parties before the Court and such an intention is stated expressly in the judgment or it can be impliedly found out from the tenor and language of the judgment, those who want to get the benefit of the said judgment extended to them shall have to satisfy that their petition does not suffer from either laches and delays or acquiescence. "

5.2 The petitioners' services were terminated in the year 2010 and 2012, as stated above, while they were never in service since 2010 and 2012. When Special Civil Application and Letters Patent Appeal of the others came to be decided in the year 2019, they filed the present petition. The conspicuous aspect to be noticed is that the petition was barred by delay of almost nine years. It was only because the decision in Special Civil Application No.7462 of 2012 became known to them, they choose to take recourse of filing the writ petition. They awakened from their long slumber and indolence.

5.3 As held by the Supreme Court in Arvind Kumar Srivastava (supra), it is recognized exception that all similarly situated persons should be treated equally in terms of the judgment, that the persons who did not raise their grievance and do not challenge the alleged wrongful case and acquiescence into the same, to wake up after long delay only because of the

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reason that their counter-parts approached the court and succeeded, then such persons cannot claim benefits of the judgment rendered in the case of similarly situated persons. They have to be treated as fence-sitters.

5.4 The services of the petitioners herein were terminated in the year 2010 and 2012 which is an admitted fact. The fact that the petitioners herein were not in service stand in sharp contrast to the case of the petitioners of Special Civil Application No.7462 of 2012, who were in service.

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

6. Not only that the condition for extending the benefit of judgment to similarly situated persons who may be not before

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the court is that the such judgment has to be a judgment in rem. The decision in Special Civil Application No.7462 of 2012 was not in rem, when observation in para 5.7 of the judgment of learned single Judge is noticed.

6.1 The two Resolutions of State Government dated 25.4.2012 and 31.5.2012 were the basis of giving benefit to the petitioners of the said Special Civil Application No.7462 of 2012 of which the present petitioners want benefits. It was clearly stipulated in the said Resolutions that the persons who were in service on the said date would be entitled to the benefit of the said Resolution. The Resolutions was applied only to those who were in service. Admittedly, the petitioners herein were not in service as their services was terminated in the year 2010 and 2012.

6.2 It was then clearly provided that the relief granted by the court in the said judgment was to be extended to all employees who are affected by the Resolution wherein the condition was that the employee must be in service. The petitioners who are not in service cannot be said to have been affected by the Resolution. In other words, the present petitioners could not be treated at par with the petitioners of the said petition.

6.3 The decision in Special Civil Application No.7462 of 2012 made basis by the petitioners herein to seek relief and apply it to them was not the judgment in rem but its ratio was confined to those petitioner only. Those petitioners got relief because they were in service. Continuity in service was the condition to be fulfilled under the said two Resolutions dated 25.4.2012 and 31.5.2021. The employee has to be in service on that date to

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seek the benefit thereunder. The present petitioners were admittedly not in service since the year 2010 and 2012. The present petitioners constituted a different class not entitled to the benefit or to seek parity of treatment.

6.4 In any view, the petitioners herein filed petition seeking relief on the above ground after nine years. After the decision in Special Civil Application No.7462 of 2012, they suddenly awakened. They were the fence-sitters.

6.5 Learned single Judge rightly denied the relief. This court is in complete agreement of the impugned judgment and order of learned single Judge. No interference is called for.

7. The present Letters Patent Appeal is dismissed.

(N.V.ANJARIA, J)

(NIRAL R. MEHTA,J) Manshi