Gujarat High Court

Vipulbhai Mohanbhai Jasani vs State Of Gujarat on 29 April, 2023

Bench: Aniruddha P. Mayee

     C/SCA/14885/2016                                 ORDER DATED: 29/04/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 14885 of 2016
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                        VIPULBHAI MOHANBHAI JASANI
                                   Versus
                        STATE OF GUJARAT & 2 other(s)
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Appearance:
MR. MUKESH T MISHRA(5900) for the Petitioner(s) No. 1
MR.YUVRAJ BRAHMBHATT, AGP for the Respondent(s) No. 1,2,3
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 CORAM:HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE

                                Date : 29/04/2023
                                 ORAL ORDER

1. The present Special Civil Application is filed for the

following prayers:-

"(A) The Hon'ble Court be pleased to issue a writ of mandamus or any other appropriate writ, order or directions, declaring the inaction on the part of the respondents in granting the benefits of continuity of services and fixing the pay of the petitioner by granting the benefits of resolution dated 17.10.1988 as illegal, unjust, arbitrary and violative of Articles 14 and 16 of the Constitution of India and be pleased to quash and set aside the same;

(B) The Hon'ble Court be pleased to direct the respondents to fix the salary of the petitioner treating him in continuous services from the year 1999 and granting him the benefits of Government Resolution dated 17.10.1988. The Hon'ble Court further be pleased to direct the respondents to pay the arrears of amount to the petitioner with 12% interest; (C) The Hon'ble Court be pleased to direct the respondents to grant the benefits of Government Resolution dated

C/SCA/14885/2016 ORDER DATED: 29/04/2023

17.10.1988 to the petitioner considering his services from 1999 and pay the arrears of amount to the petitioner with 12% interest;

(D) Pending admission and final disposal of this petition, Your Lordships be pleased to direct the respondents to extend the benefits of Government Resolution dated 17.10.1988 in favour of the petitioner in light of the judgment of the Hon'ble Supreme Court and start paying salary to the petitioner accordingly;

(E) Any other and such further relief as the Hon'ble Court may deem fit and proper in the interest of justice be granted"

2. It is submitted by learned counsel for the petitioner

that vide order dated 24.11.2015, the petitioner has been

denied the benefits of Government Resolution dated

17.10.1988 only on the ground of his appointment is in the

year 1999 i.e. after issuance of the Government Resolution

dated 17.10.1988 and therefore, he is not entitled under the

said Government Resolution dated 17.10.1988.

2.1 Learned counsel Mr.Mishra submits that the

present issue has now been settled by this Court in catena of

decisions. In support of his contentions, learned counsel

places reliance on the order dated 22.01.2019 passed in

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Special Civil Application No.6420 of 2017, order dated

03.12.2018 passed in Special Civil Application No.2899 of

2016 and order dated 04.12.2018 passed in Special Civil

Application No.495 of 2017.

2.2 It is submitted that in all the said decisions, this

Court has held that the employees who are appointed after

issuance of Government Resolution dated 17.10.1988 are also

entitled to benefits of said Government Resolution.

3. Learned Assistant Government Pleader Mr.Yuvraj

Brahmbhatt could not dispute the said legal position and

submits that this Court has held that even those employees

who are appointed post the Government Resolution dated

17.10.1988 have been granted benefits and they are covered

by the Government Resolution dated 17.10.1988.

4. The Coordinate Bench of this Court in Special Civil

Application No.6420 of 2017 has held thus:-

"5. In Kutch District Panchayat v. Mangalbhai K. Rabari, being Special Civil Application No.15670 of 2005 decided as per judgment dated 08.10.2014, in turn confirmed in

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Letters Patent Appeal No.1381 of 2015 decided on 04.01.2016, it was observed and held in judgment dated 08.10.2014 as under, "7. Shri Pathak, learned counsel for the respondent workmen contended that the decision of the Supreme Court as cited herein above in case of State of Gujarat Vs. PWD Employees Union & Ors (supra) would have straightway applicability to the present case. The so called inapplicability of GR has been answered squarely by the Court as there are subsequent Government Resolutions clarifying such things. Besides this, in the affidavit in reply at page-47 Courts attention was drawn to indicate that G.respondent. Dated 17/10/1988 is clarified and given effect to all those who are subsequently appointed also and that has been accepted as policy governing such employment thereafter.

8. Shri Pathak pointed out that learned counsel for the petitioner is not correct in contending that all were employed after GR dated 17/10/1988. In fact four were employed before that. Shri Munshaw at this stage submitted that he never meant all employees were employed after the GR and statement annexed to the employees list would clarify the situation.

11. The Court is of the considered view that the GR dated 17/10/1988 was no doubt containing reference to the future employment but the subsequent course of action and developments as it indicate that the Government continued employing daily wagers, temporary hands irrespective of those conditions which gave rise to a situation where litigations came up and hence as Shri Pathak has pointed out

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clarificatory GR came to be issued and over all facts & circumstances of the case indicate that the benefits of GR dated 17/10/1988 were to be extended to all, else it would have meant to Government employing unfair labour practice which would have been highly depreciable.

12. The Court is also of the view that the decision cited at the bar in case of State of Gujarat And Others Vs. PWD Employees Union And Others will have applicability to the facts & circumstances of the case and counsel of the petitioners submission qua some of the workmen were employed after GR dated 17/10/1988 would be of no avail as the judgment itself has answered that contention squarely."

5.1 In PWD Employees Union through President v. State of Gujarat, being Special Civil Application No.4662 of 2015, this Court relied on the aforesaid decision in Kutch District Panchayat (supra). PWD Employees Union (supra) had a similar set of facts wherein also the petitioners were denied the benefits of Resolution dated 17.10.1988 on the ground that their appointments were subsequent to the date of Resolution dated 17.10.1988."

5. In view of the above position of law, the petitioner

could not have been denied the benefits of Government

Resolution dated 17.10.1988 on the ground that his

appointment was post 01.10.1988 and the benefits of the

Government Resolution dated 17.10.1988 will have to be

C/SCA/14885/2016 ORDER DATED: 29/04/2023

made available to the petitioner with all incidents thereof.

6. In view of the aforesaid observations, the present

Special Civil Application is allowed. The impugned order dated

24.11.2015 is quashed and set aside. The respondents are

directed to pass necessary orders granting the benefits of the

Government Resolution dated 17.10.1988 and the arrears