State Of Gujarat vs Ishwarbhai Bhikhabhai Parmar
2023 Latest Caselaw 6599 Guj

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     C/LPA/1168/2023                              ORDER DATED: 08/09/2023

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           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/LETTERS PATENT APPEAL NO. 1168 of 2023
           In R/SPECIAL CIVIL APPLICATION NO. 19677 of 2019
                                 With
              CIVIL APPLICATION (FOR STAY) NO. 2 of 2023
             In R/LETTERS PATENT APPEAL NO. 1168 of 2023
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                             STATE OF GUJARAT
                                   Versus
                       ISHWARBHAI BHIKHABHAI PARMAR
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Appearance:
MR MANAN MEHTA, AGP for the Appellant(s) No. 1,2,3
MR VIJAY N RAVAL(2025) 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.Manan Mehta for the appellant State and its authorities and learned advocate Mr.Vijay Raval for the respondent.

2. Preferred by the State, this Letters Patent Appeal under Clause 15 of the Letters Patent is directed against judgment and order dated 1.8.2022 of learned single Judge, whereby it was directed to consider the case of the respondent- original petitioner for granting benefit of Resolution dated 4.7.1973 in light of the observations made in Special Civil Application No.1681 of 2002.

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3. The said Resolution dated 4.7.1973 of the Public Works Department provided for bringing the daily rated workmen on the work-charged establishment who had completed minimum five years of service as daily rated. Learned single Judge relied on the decision of this court in Gujarat Rajya Jaher Bandhkam Majoor Mandal Vs. State of Gujarat being Special Civil Application No.1681 of 2002, whereby on the basis of services of five years length, the benefit of Resolution to treat the employees on the work-charged establishment was extended.

4. Learned Assistant Government Pleader submitted that while learned single Judge granted the benefit of Resolution dated 4.7.1973 in accordance with the decision in Gujarat Rajya Jaher Bandhkam Majoor Mandal (supra), in the subsequent decision of the Division Bench in State of Gujarat Vs. Gujarat Mazdoor Sabha being Letters Patent Appeal No.380 of 2016 and allied Appeals, decided on 29.6.2018, the court directed that only those employees who completed twenty years as work-charged will be entitled to conversion to the temporary establishment as per the said Government Resolution dated 16.8.1973.

4.1 While Resolution dated 4.7.1973 pertained to treating the daily-rated workmen to be considered on work-charged establishment, Resolution dated 16.8.1973 dealt with by the Division Bench in Letters Patent Appeal No.380 of 2016 related to treating the work-charged employees on regular establishment.

4.2 Noticeably, in Gujarat Mazdoor Sabha (supra), the Division

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Bench referred to and considered Resolution dated 4.7.1973 in para 8.3, extracting the same,

"Learned Advocate Generalappearing on behalf of the appellants that in any case even thereafter in view of the subsequent G.R. dated 17.10.1988, policy of converting daily wagers into the status of work charged employees announced by G.R. dated 04.07.1973 should be deemed to have been substituted more particularly when the State Government came out with the issuance of 3G.Rs. of 17.10.1988, conferring benefits in different categories of daily wagers having been put in the service of 5 years or more, though vide circular dated 03.02.1987 new recruitment of work chargedestablishment from daily wagers was already prohibited. It is submittedthat therefore since the conversion from daily wagers to work charged employees had already came to be prohibited vide circular dated 03.02.1987 which were repeated time and again, subsequent appointment of the daily wagers as work charged employees after03.02.1987 and thereafter would be treated as illegal appointments. It issubmitted that there fore the learned Single Judge has materially erred in directing the State to absorb all work charged employees in the temporary establishment as per the G.R. dated 16.08.1973 on completion of either 5 years as work charge and consequently thelearned Single Judge has materially erred in granting them the benefit ofhigher pay scale on completion of 9 years from the date on which they are absorbed in the temporary establishment on completion of 5 years as work charge. It is submitted that the directions issued by the learned Single Judge would amount to an en block regularization, which is impermissible in view of the decision of the Hon'ble Supreme Court inthe case of Umadevi (3) (Supra)."

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4.3 In para 18.3, it was observed thus,

"Now, so far as those who are working as daily wagers and claiming absorption in the work charged establishment is concerned,considering the aforesaid G.Rs. with reference to the conversion of thedaily wagers / rojamdars to work charged employees, it appears that earlier they were governed by G.R. dated 04.07.1973. G.R. dated 04.07.1973 came to be issued by the Public Works Department of theState Governme nt with reference to the appointment of daily wagersworking on the nominal Muster Roll in various Departments of the StateGovernment on work charged establishment, however subject to variouscircumstances / conditions viz.

(i) occurrence of vacancy in the existing post on the work charged establishment because of current post falling vacant on the work charged establishment; (ii) Creation of new posts on the work charged establishment;

(iii) completion of minimum 5 years ofservice as Daily Wage worker; and (iv) benefit of such an appointment to the post of work charged establishment shall not be available in case of Telephone Operator, Clerk and/or any other post for which SSC has been fixed as the educational qualification. The aforesaid G.R. dated04.07.1973 was further clarified vide G.R. dated 16.11.1978 clarifyingthat while calculating 5 years of service as Daily Wager, the Daily Wagerhas to remain in the employment at least for one year, out of which, heshould have attend ed duty at least for 180 days and that for counting 5years as Daily Wager, there should be average 240 days of presence in the said period of 5 years. From the aforesaid chronology of date s andevents, it appears that thereafter there was a complete prohibition. It appears that the Government came out with a new policy decision in form of G.R. dated 17.10.1988 issued

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by the Roads & Building Department of the State Government, granting substantial benefits to the daily wagers of three different categories viz. unskilled; semiskilled and skilled. On considering the G.R. dated 17.10. 1988, it appears that the State Government accepted the recommendations made by theexperts / committee and it has been resolved to extend certain benefits to the daily wager employees."

4.4 Analogically, it could be submitted that both the Resolutions had same import for the purpose of application of their provisions.

4.5 What the Division Bench held finally in Gujarat Mazdoor Sabha (supra) was in para 21.1, thus,

"So far as the impugned direction/s in respectofworkcharged employees namely all those workcharged employees to beabsorbed / converted to temporary establishment on their completion of 5 years' service and they shall be paid the consequential benefits accordingly is hereby quashed and set aside and is modified to the extentand it is held that all those petitioners - work charged employees who have worked for more than 20 years as workcharged employees shall be entitled to conversion to temporary establishment as per the G.R. dated16.08.1973 from the date on which they complete 20 years of service as workcharged and they shall be entitled to all the benefits which may be available to the employees working in the temporary establishment, including the benefit of higher pay scale / grade if at all the same isbeing paid to the employees working in the temporary establishment,however they shall be paid the arrears on such conversion to temporary establishment for the period preceding 3 years of filing of the respectivepetitions. The arrears shall

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be calculated and paid within a period of 4months from today, failing which it shall carry interest at the rate of 9% per annum. It is also directed that in case any of the work chargedemployee has retired, he shall be paid the retirement benefits as if he was converted to temporary establishment provided such employee has worked for not less than 20 years as workcharged employee and retirement benefits be calculated and paid accordingly, however they shall be paid the arrears for 3 years only."

5. There is no gainsaying that the Division Bench has granted benefits to those employees who had worked for more than twenty years, same will have to be applied in the present case. The submission of learned Assistant Government Pleader could not be countenanced in this regard.

5.1 However, learned advocate for the original petitioner submitted that pursuant to the impugned judgment and order of learned single Judge, the petitioner had filed contempt proceedings in the nature of Miscellaneous Civil Application No.8 of 2023. It was stated that pursuant to the directions and observations in the said proceedings passed in order dated 12.4.2023, the directions of learned single Judge had been complied with and the monetary benefits have been paid to the petitioners.

5.2 While there is no escape from the fact and legal position that the petitioner could be entitled to be treated on the work- charged establishment as per the Resolution dated 4.7.1973 only upon completion of twenty years as interpreted by the Division Bench of this court in Letters Patent Appeal No.380 of 2016, at

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the same time, when the benefits are already paid pursuant to the order in contempt proceedings, this court deems it fit not to set the clock back and provide for recovery. This was more particularly in view that as was stated by learned Assistant Government Pleader that the compliance of learned single Judge, direction pursuant to order in contempt proceedings has not entailed any heavy financial implications.

6. At the same time, it is however, clarified and declared that the impugned judgment and order of learned single Judge dated 1.8.2022 cannot stand in view of decision in Gujarat Mazdoor Sabha (supra) of the Division Bench in Letters Patent Appeal No.380 of 2016, to be applied in on such similar cases. What shall hold the field is the decision of the Division Bench in Gujarat Mazdoor Sabha (supra) for all future cases and purposes.

7. The Letters Patent Appeal stands disposed of accordingly.

In view of dismissal of appeal, the Civil Application will not survive. Accordingly, it is disposed of.

(N.V.ANJARIA, J)

(D. M. DESAI,J) Manshi