Kantilal Ambalal Prajapati vs State Of Gujarat
2023 Latest Caselaw 1915 Guj

     C/SCA/19512/2022                            ORDER DATED: 27/02/2023




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 19512 of 2022

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                        KANTILAL AMBALAL PRAJAPATI
                                   Versus
                            STATE OF GUJARAT
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Appearance:
MR DIPAK R DAVE(1232) for the Petitioner(s) No. 1
MR KRUTIK PARIKH, AGP GOVERNMENT PLEADER for the Respondent(s)
No. 1,3
MR HS MUNSHAW(495) for the Respondent(s) No. 2
NOTICE SERVED for the Respondent(s) No. 4
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                            Date : 27/02/2023

                              ORAL ORDER

1. By way of present petition, the petitioner has prayed for

the following prayers:-

8(A) be pleased to issue a writ of mandamus and/or a writ in the nature of mandamus and/or any other appropriate writ, order or direction to

(i) hold and declare that petitioner is entitled to the benefits of Government Resolution dated 17.10.1988 and further be pleased to direct the respondents to treat the petitioner as permanent employee after completion of 10 years of service and he shall be held eligible to get all the benefits of permanent employees

C/SCA/19512/2022 ORDER DATED: 27/02/2023

including regular pay-scale on the date when the petitioner completed 10 years of service i.e. 01.05.1995;

(ii) direct the respondents to extend all the benefits of regular post with regular pay-scale in favour of the petitioner from the date the petitioner has completed 10 years of service i.e. 01.05.1995;

(iii) direct the respondents to pay difference of salary to the petitioner with interest after placing the petitioner in pay-scale after completion of 10 years of service i.e. 01.05.1995;

(B) pending the admission, hearing and final disposal of this petition, be pleased to direct the respondents to immediately place the petitioner in regular pay-scale as per the Government Resolution dated 17.10.1988.

(C) any other and further relief or reliefs to which this Hon'ble Court deemed fit, in the interest of justice, may kindly granted;

2. Heard Mr. Dipak Dave, learned advocate appearing for

the petitioner; Mr. H.S. Mundhaw, learned advocate

appearing for the respondents no.2, 3 & 4; and Mr. Krutik

Parikh, learned advocate appearing for the respondent no.1.

C/SCA/19512/2022 ORDER DATED: 27/02/2023

3. Learned advocate appearing for the petitioner submits

that the grievance raised in the present petition is that the

respondent authority has not extended the benefits of the

Government Resolution dated 17.10.1988 to the petitioner. It

is the case of the petitioner that the petitioner has

continuously and uninterruptedly worked with the respondent

and for more than 10 years and even then, he has not been

paid adequate salary and also, kept on exploitative terms and

till date kept as a daily wager.

4. Learned advocate appearing for the petitioner submitted

that despite repeated resolutions passed by the respondents

and also, pronouncements by this Court as well as of the

Hon'ble Apex Court, by which, the Court have granted the

benefits to the employees like the present present petitioner,

the benefit of fix pay, pay-scale and permanency, till date the

petitioner has not extended any benefit. He further submits

that the petitioner is serving as a peon since 01.05.1985 with

respondent no.4. He has further submitted that now the

petitioner has completed 37 years continuously and

uninterruptedly service with the respondent no.4. He has

C/SCA/19512/2022 ORDER DATED: 27/02/2023

further submitted that the salary bill of the petitioner for the

month of February, 2022 which is paid in March 2022. In the

present case, the petitioner has paid been paid daily wage of

Rs.268/- alongwith Rs.36/- as special allowances under the

Minimum Wages Act.

5. He has further submitted that as per the certificate

dated 29.09.2021 issued by the authority, where his service

has been shown as daily-wager. He has submitted that the

State Gujarat through Road & Building Division Department

has issued one Government Resolution, in which, it has been

mentioned that the employees working for more than five

years, shall have to be placed in fixed pay. He relied upon

various judgments more particularly, the judgment rendered

in the case of State of Gujarat Vs. PWD Employees Union and

also the judgment of this Court in the case of Rajubhai

Abhesing Bhalia Vs. State of Gujarat; Special Civil Application

No.3192 of 2019 dated 07.07.2022 as well as the judgment

rendered in Letters Patent Appeal No.734 of 2021 dated

17.09.2021 and submitted that in the identical facts and

circumstances, this Court had considered the case of identical

C/SCA/19512/2022 ORDER DATED: 27/02/2023

situated persons and granted the benefit.

6. Per contra, Mr. Munshaw, learned advocate appearing

for the respondent has contended that the petitioner can

approach the Labour Court and he has having alternative

remedy and therefore, the present petition is required to be

dismissed as he has approached this Court. He further

submitted that the petitioner cannot get the benefits of

Government Resolution dated 17.10.1988 and if granting

benefits of such resolution, will amount to granting the benefit

of regularization to a person, who is appointed by way of

backdoor entry. It is also contended by Mr. Munshaw that

granted such benefits in favour of the petitioner would aslo

result into financial burden on the public exchequer and

therefore, prays to dismiss the petition.

7. I have considered the rival submission and also perused

the memo of petition as well as annexures annexed with the

petition and also considered the judgments cited by the

petitioner. It is also clearly transpires from the record that the

petitioner is serving with the respondent no.4 since last 37

C/SCA/19512/2022 ORDER DATED: 27/02/2023

years as a peon continuously and uninterruptedly. In view of

the judgment of the Hon'ble Apex Court in the case of State of

Gujarat Vs. PWD Employees Union (supra) , the Government

Resolution dated 17.10.1988 is applicable to all the

Departmens of the State. In fact, those employees, who

attained eligibility after issuance of Government Resolution

shall also be required to be granted the said benefits in the

same manner and considering the judgment of this Court

Court rendered in Special Civil Application No.3192 of 2019

and Letters Patent Appeal No.734 of 2021 where identical

questions decided and therefore, in my view, the present

petition is required to be considered.

8. In view of the above facts and circumstances, the

present petition stands allowed with no order as to costs. It is

expected that the respondent authority shall consider the case

of petitioner within ten weeks from the date of receipt of the

writ of the order of this Court. Direct service is permitted.

(SANDEEP N. BHATT,J) A. B. VAGHELA