Gujarat High Court

Purabiya Hiraben Prabhatbhai ... vs State Of Gujarat on 15 March, 2023

Bench: Sandeep N. Bhatt

     C/SCA/7256/2022                             ORDER DATED: 15/03/2023




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 7256 of 2022

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     PURABIYA HIRABEN PRABHATBHAI (MAIDEN NAME HIRABEN
                      BHAVABHAI NAIYA)
                           Versus
                     STATE OF GUJARAT
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Appearance:
MR HARDIK C RAWAL(719) for the Petitioner(s) No. 1
for the Respondent(s) No. 1
MS NIRALI SARDA, AGP for the Respondent(s) No. 1,2
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 CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                           Date : 15/03/2023

                            ORAL ORDER

1. With the consent of learned advocates for the

parties, this petition is heard and disposed of finally.

2. The present petition is filed with the following

prayers:

"8(A) be pleased to allow this petition.

(B) be pleased to issue a writ of mandamus or any other appropriate writ, order or direction by quashing and setting aside the impugned order/communication dated 17-03-2022 passed by the respondent no.2 to the extent it directs non- payment of salary (Annexure-J) and/or further be pleased to direct the respondents to pay the minimum pay scale salary of Rs.14,800 with effect from 01-01-2019 with arrears, 6%

C/SCA/7256/2022 ORDER DATED: 15/03/2023

interest and all consequential and incidental benefits as per the Finance Department circular dated 16-07-2010 (Annexure- I).

(C) Pending admission, hearing and final disposal of this petition, be pleased to direct the respondents to continue the services of the petitioner by making regular payment of salary as per circular dated 16-07-2019 (Annexure-I) issued by the Finance Department of the state government. (D) xxxx"

3. Heard learned advocate Mr.Hardik Rawal for

the petitioner and learned AGP Ms.Sarda for the

respondents.

4. At the outset, learned advocate Mr.Rawal has fairly submitted that the earlier part of the prayer made

in paragraph 8(B) is satisfied during the pendency of

this petition as now he is getting salary of Rs.1760/- and

therefore that part is not required to be dealt with.

5. For the remaining prayer in paragraph 8(B),

learned advocate Mr.Rawal has drawn my attention

towards the facts of the case that the petitioner is

working since 1998 without any interruption and she is

C/SCA/7256/2022 ORDER DATED: 15/03/2023

not getting any benefit of the various Government

Resolutions as well as the decision of this Court in

various proceedings. He has submitted that now the only

prayer pertains for considering her case to pay minimum

pay scale of Rs.14,800/- with effect from 1.1.2019 with

arrears and all consequential and incidental benefits as

per the Finance Department circular dated 16.7.2019. He

has drawn my attention towards the circular of the

Finance Department i.e. Annexure `I' dated 16.7.2019,

more particularly, towards the internal page no.2,

whereby the finance department of the government has

held as that minimum pay scale for class IV employee

should be considered for Rs.14,800/- from 1.1.2019. It is

further clarified that the said Rs.14,800/- should be treated as fixed salary and no other allowance can be

received by such employee. He has further drawn my

attention towards the judgment of various judgments of

this Court and lastly he has relied on the recent

judgment of this Court rendered in Special Civil

Application No.6852 of 2020 and other cognate matters

in the case of Hasmukhbhai Chimanlal Tapodhan V/s

State of Gujarat dated 19.7.2022, more particularly,

towards paragraphs 17, 18 and 22 of the judgment. He

C/SCA/7256/2022 ORDER DATED: 15/03/2023

has also drawn my attention towards the affidavit-in-

rejoinder whereby he has stated that benefit of

Government Resolution dated 16.7.2019 should be

awarded in view of the judgment of Letters Patent

Appeal No.1155 of 2019.

6. Per Contra, learned AGP Ms.Sarda who is

appearing for the respondent no.1 has stated that as

such at present the salary of the petitioner is rightly

paid looking to the nature of work and the objection

raised by the government by filing affidavit-in-reply, more

particularly, qua the averments made in paragraph 8,

whereby she has stated that the petitioner is working for

three hours whereas, as per the direction given in the Letters Patent Appeal No.1155 of 2019, it is applicable

to the persons who had been working for six hours or

more. However, she has fairly submitted that as per her

instruction till today, no Letters Patent Appeal is

preferred against the judgment of learned Single Judge

in Special Civil Application No.6852 of 2020 and cognate

matters dated 19.7.2022. She has submitted that in view

of the above, Court may not consider the prayers prayed

for by the petitioner.

C/SCA/7256/2022 ORDER DATED: 15/03/2023

7. I have considered the rival submissions and

also considered the Government Resolution dated

16.7.2019, more particularly, the specific mention by the

government has directing to pay Rs.14,800/- towards fix

salary with effect from 1.1.2019 for class IV employees

who are working as part time employees. There is also

provision that if the same is not paid to the employee

within stipulated time period, then 6% interest is

required to be paid as per the order of the High Court.

Earlier also, the Division Bench of this Court has taken

view in Letters Patent Appeal No.1155 of 2019 which is

also once again considered by coordinate Bench of this

Court in Special Civil Application No.6852 of 2020 by judgment dated 19.7.2022. Paragraphs 17, 18 and 22 are

relevant and reproduced as under:

"17. Reading the circular dated 16.7.2019, it is very clear the Clause 1 of the circular when read indicates that those who had worked for more than four years were being paid Rs.220/- and those who were working for less than four hours, were being paid Rs.110/-. The Circular, therefore, cannot be read in a restricted manner to suggest that it cannot be made applicable to those who were appointed for

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less than four hours. That submission would even be against the policy of giving a minimum wage to the workmen.

18. In so far as the case of the rival parties as to whether the circular dated 16.7.2019 can be made applicable to those who had belatedly challenged their termination, para 31 of the decision of the Coordinate Bench dated 21.12.2018 clearly indicated that the principles enunciated in the decision shall be applicable to all those even those who do not approach the Court.

22. For all the aforesaid reasons as discussed hereinabove, considering the categories namely 8 in number, the petitioners are held to be entitled to the benefit of Circular dated 16.7.2019 and, therefore, all these petitions are allowed and the rejections if any, on these grounds as mentioned hereinabove are quashed and set aside."

8. The coordinate Bench has observed in the

above order that this will be applicable to all those even

those who do not approach the Court, however, it is

unfortunate that inspite of such observation, the

petitioner has to file the said proceedings before this

Court.

9. Considering the settled legal position and the

C/SCA/7256/2022 ORDER DATED: 15/03/2023

above mentioned decision, this petition deserves to be

allowed and accordingly allowed. The respondents are

directed to comply with the direction issued in circular

dated 16.7.2019 by paying the fix salary to the petitioner