Gujarat High Court
State Of Gujarat vs Devendrakumar C Solanki on 8 September, 2023
Bench: Devan M. Desai
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 1359 of 2015
In R/SPECIAL CIVIL APPLICATION NO. 11919 of 2000
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STATE OF GUJARAT & 2 other(s)
Versus
DEVENDRAKUMAR C SOLANKI
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Appearance:
MR. SANJAY UDHWANI, ASSISTANT GOVERNMENT PLEADER for the
Appellant(s) No. 1,2,3
MR. G. M. JOSHI, SR. ADV. WITH VYOM H SHAH(9387) for the
Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIA
and
HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 08/09/2023
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE N.V.ANJARIA)
Heard learned Assistant Government Pleader Mr. Sanjay Udhwani
for the appellant State and learned senior advocate Mr. Gautam Joshi
assisted by learned advocate Mr. Vyom Shah for the respondent.
2. The challenge in this Letters Patent Appeal is directed against
judgment and order of learned single Judge dated 16.7.2015. Thereby,
learned single Judge allowed the petition of the respondent
herein-original petitioner.
2.1 The operative directions issued by learned single Judge in para 11
inter alia provide to direct the respondents to treat the services of the
petitioner as a permanent employee and pay him the regular pay scale as
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per the revised pay scale fixed to the post of permanent sweepers.
3. In the writ petition, it was the case of the petitioner that he was
appointed as a part time sweeper since 1.8.1983 in the office of Industries
Commissioner, Bhavnagar and had been discharging duties since 17
years since then. It was the case that Resolution dated 11.12.1984 was
passed by the state authorities providing that such part time Sweepers,
who have rendered 10 years of service, are to be regularised. It was the
grievance that despite several representations to absorb the petitioner,
nothing had yielded.
3.1 The petitioner had requested the authorities to absorb him in
service on any post which may fall vacant. It was also the case that on
the basis of the aforesaid circular dated 11.12.1984, one Kasiben
Devjibhai Lathiya holding the post of part time sweeper came to be
regularised in the regular pay scale by order dated 16.11.1990. The said
order figures on record of the Appeal.
3.2 Learned single Judge considered the rival case including the stand
of the authorities in the reply affidavit. Furthermore, the principles laid
down in Secretary, State of Karnataka and Others vs. Umadevi (3)
and Others [(2006) 4 SCC 1] and other decisions were followed and the
relief as above came to be granted to the petitioner. It is to be noted that
in Umadevi (3) (supra), the Supreme Court considered the issue of
engaging workmen for long period on daily wage basis in respect of work
of permanent nature and not giving permanency to them despite
availability of sanctioned posts.
4. Learned Assistant Government Pleader vehemently assailed the
judgment and order of learned single Judge, by firstly submitting that
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Resolution dated 11.12.1984 would not apply to the case of the petitioner.
It was sought to be pointed out that the same was confined for its
applicability to the hospitals and municipalities, whereas the petitioner
was in the office of Industries Commissioner. With regard to the case of
the petitioner that a similarly situated employee Kasiben Devjibhai
Lathiya was regularised to be placed in the pay scale to grant of
permanency benefits as per order dated 16.11.1990, it was submitted that
the said aspect would be of no avail to the petitioner, inasmuch as the
petitioner cannot claim a negative parity to seek application of Article 14,
when he was not entitled to be considered.
4.1 For the proposition that Article 14 has no negative facet, learned
Assistant Government Pleader relied on the decision of the Supreme
Court in State of Bihar vs. Upendra Narayan Singh and Others
[(2009) 5 SCC 65]. It was the third submission of learned Assistant
Government Pleader that there was no sanctioned post available,
therefore also the relief was wrongly granted to the petitioner. In this
regard, learned Assistant Government Pleader relied on Secretary to
Government, School Education Department, Chennai vs. R.
Govindaswamy and Others [(2014) 4 SCC 769], in particular para 14
of the decision.
4.2 When learned senior advocate submitted that the petitioner is
entitled in any case to the benefit of decision of the supreme court in
Umadevi (3) (supra), learned Assistant Government Pleader proceeded
to submit that the petitioner continued in service by virtue of the interim
orders of the court. Therefore, according to learned Assistant Government
Pleader, this being the position, the observations in Umadevi (3) (supra)
would on the contrary, operate against the petitioner.
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5. Dealing with the first submission on behalf of the State in respect
of applicability of the resolution dated 11.12.1984, it is entirely erroneous
to suggest that the resolution was confined to particular departments or
hospitals. It clearly mentions that it will apply to all such categories of
Safaikamdars in the departments for the benefit of absorption upon
completion of 10 years of service. The submission about the negative
equity, falls flat when the order dated 16.11.1990 passed by office of the
Industries Commissioner absorbing the services of Kasiben Devjibhai
Lathiya and placing her in the regular scale, is closely seen.
5.1 The said Kasiben Devjibhai Lathiya was serving on the said post in
the very office of Industries Commissioner and upon her rendering of 10
years of service as part timer, she was extended the benefit of circular
dated 11.12.1984. The case of the petitioner-respondent herein stands at
the same pedestal to the facts of the said employee. It is to be observed
that not treating the petitioner at part with the said Kasiben Devjibhai
Lathiya would rather amount to discriminating the petitioner and deny the
right to equity under Articles 16 and 14 of the Constitution.
5.2 It takes to the court to the contention that there was no sanctioned
posts. It is not in dispute that the petitioner had have been in service
since 1983. Four decades have passed at the time when this appeal is
being considered. The petitioner approached the court in the year 2000.
Except a bare submission that sanctioned post is not available, nothing is
available to substantiate and to stand in fortification about the submission
of non-availability of sanctioned post. It is not possible to believe that
post of sweeper was not available for all these long years. The work of
sweeper is of permanent nature.
5.3 Not only that the petitioner filed affidavit in the proceedings of this
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Letters Patent Appeal on 10th July, 2018 (page 65 of the compilation) in
which it was pointed out that there posts were available upon transfer or
retirement of the employee concerned in the same office. The details
were mentioned that one Anilbhai H. Prakhtani was transferred to
Gandhinagar on 13.09.2007, one Kashiben D. Lathiya, the abovenamed
employee, retired on 31.7.2015 and one Parvatiben G. Sohara was also
retired on 30.09.2017. Be as it may. The fact remains that the petitioner
has been kept in continuous service by the appellant itself since 1983.
5.4 In Umadevi (3) (supra), the Supreme Court while considering the
issue of absorption, regularisation or continuing the temporary,
contractual, casual , daily-rated or other ad hoc employees in public
employment, kept for long in service, laid down the propositions of law.
5.5 The observations in the judgment read as under,
"One aspect needs to be clarified. There may be cases where irregular
appointments (not illegal appointments) as explained in S.V.
Narayanappa (supra), R.N. Nanjundappa (supra), and B.N. Nagarajan
(supra), and referred to in paragraph 15 above, of 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 subjudice, need not be reopened based on this judgment, but
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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." (para 53)
5.6 It was sought to be submitted on behalf of the appellant that even
the directions of the supreme court in Umadevi (3) (Supra) for giving
permanency as one time measure to the petitioner, would not arise,
inasmuch as the petitioner was continued in service by virtue of interim
orders of the court in the present proceedings. This submission, to say
least, is misconceived inasmuch as the petitioner joined the service in
1983 and till he approached the court with the above prayer in the year
2000, he had rendered 17 years of uninterpreted continuous service. It has
to be concluded that the petitioner would be entitled to benefit of
observations and directions in above para 35 of Umadevi (3) (supra).
5.7 Law is also to be noticed that keeping daily-rated or temporary
employees in the same status for long years without extending them the
benefit of permanency is treated as unfair labour practice. The decision
of Umadevi (3) (supra) was further considered in State of Karnataka
vs. M.L.Kesari [(2010) 9 SCC 247] and also in Siraj Ahmad vs. State
of Uttar Pradesh and Another [(2020) 19 SCC 480], in which the
Supreme Court explained the ratio of Umadevi (3) (supra) by drawing
distinction between regularly appointed, temporary employees and
illegally appointed employees.
6. The post in this case is of sweeper. The submission of learned
senior advocate for the respondent that the work of sweeper was
perennial in nature and that the post of sweeper does not require any
educational qualification as such. The continuance of the petitioner on
the post of sweeper could hardly be treated as continuing illegally
appointed employee. At the best it could be submitted that engagement
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of the petitioner was irregular. The petitioner would be entitled to the
benefit of observations of the Supreme Court in Umadevi (3) (supra),
particularly those contained in para 53 quoted above.
7. For the foregoing reasons, while not entertaining the present appeal
of the State, the direction of learned single Judge are partially modified
by directing that the appellant-State shall consider the case of the
respondent petitioner for absorption in service counting the service of the
petitioner from the date of joining in view of observations of the Supreme
Court in Umadevi (3) (supra) and in M.L.Kesari (supra) in light of and
by applying the findings recorded hereinabove. The necessary orders
shall be passed regarding conferment of the benefit within four weeks
from the date of receipt of this order.
Direct service is permitted.
(N.V.ANJARIA, J)
(D. M. DESAI,J)
C.M. JOSHI
