Manekkumar Raghubhai Dhankecha vs State Of Gujarat
2023 Latest Caselaw 6923 Guj

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     C/SCA/4292/2021                           ORDER DATED: 20/09/2023

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           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 4292 of 2021

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                  MANEKKUMAR RAGHUBHAI DHANKECHA
                               Versus
                         STATE OF GUJARAT
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Appearance:
ADITI S RAOL(8128) for the Petitioner(s) No. 1
MS TRUSHA K PATEL(2434) for the Respondent(s) No. 3,4
MR HARDIK SONI, AGP for the Respondent(s) No. 1,2
NOTICE SERVED for the Respondent(s) No. 5
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 CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL

                           Date : 20/09/2023

                            ORAL ORDER

1. Heard learned advocate Ms.Aditi Raol on behalf of the

petitioner, learned advocate Ms.Trusha Patel on behalf of

respondent nos.3 and 4 and learned Assistant Government

Pleader Mr.Hardik Soni on behalf of respondent - State. None

appears on behalf of respondent no.5.

2. By way of this petition, the petitioner has sought for the

following prayers:-

"(A) Your Lordships may be pleased to issue a writ of certiorari or any other appropriate writ, order or direction declaring impugned letter dated 21.08.2019 from the respondent no.3 rejecting the claim of the petitioner to the benefit of fixed pay of Rs.14,800 in terms of the Finance Department circular dated 16.07.2019 as discriminatory and arbitrary and thus

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violative of Articles 14, 16 and 21 of the Constitution of India;

(AA) Your Lordships may be pleased to issue a writ of certiorari or any other appropriate writ, order or direction to quash and set aside communication dated 19.03.2022 issued by Section Officer, Legal Department, State of Gujarat (Annexure-N) by which petitioner's case has been rejected for grant of benefits as per resolution dated 16.07.2019 issued by the Finance Department, Government of Gujarat;

(B) Your Lordships may be pleased to issue a writ of certiorari or any other appropriate writ, order or direction declaring the action on the part of the respondent authorities in taking the petitioner back in service through an outsourcing agency instead of reinstating him in service in the post from which he was terminated earlier as bad in law, illegal, arbitrary and thus violative of Articles 14, 16 and 21 of the Constitution of India;

(C) Your Lordships may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction commanding the respondent authorities to take the petitioner back in service in the post from which he was terminated earlier and treat his service as a continuous one from the date of his initial appointment in 2008;

(D) Your Lordships may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction commanding the respondent authorities to extend the petitioner the benefits contained in Finance Department circular dated 16.07.2019 by granting him the fixed pay of Rs.14,800 with effect from 01.01.2019;

(E) Pending admission and final hearing of the petition, Your Lordships may be pleased to direct the respondent authorities to pay the petitioner the fixed pay of Rs.14,800 with immediate effect;

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(F) Pending admission and final hearing of the matter, Your Lordships may be pleased to restrain the respondent authorities from taking any coercive action against the petitioner or from terminating his services otherwise than in accordance with law; and

(G) Your Lordships may be pleased to pass any other and/or further order, as deemed fit, in the interest of justice."

3. It would appear that the petitioner had been originally

appointed on part time basis as a peon with the establishment

of the Principal Civil Judge, Jamjodhpur vide an order dated

13.06.2008 and whereas, such appointment was on a fixed

salary of Rs.1350/- per month. It would appear that from time

to time, the amount of salary had been revised and whereas,

lastly vide an order dated 15.09.2012, the salary of the

petitioner had been revised to Rs.4500/- per month.

3.1. It would further appear that vide an order dated

27.06.2013, the District and Sessions Judge, Jamnagar had

done away with the services of the petitioner and such

similarly appointed persons w.e.f. 30.06.2013. It also appears

that later on vide order dated 09.02.2018, the petitioner came

to be appointed as a peon in the very same establishment

referred to herein above albeit through outsourcing.

3.2. It would appear that the petitioner while working as

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such i.e. through outsourcing agency, has preferred this

petition inter alia seeking benefit of the policy of the

Government vide resolution dated 16.07.2019. It would

appear that the petitioner had initially preferred writ petition

being Special Civil Application No.4292/2021 and whereas

vide an order dated 06.08.2021, a learned Coordinate Bench

of this Court had directed the respondents to consider the

case of the present petitioner as well as of the petitioners of

allied matters, more particularly, as per the explanation as

provided in the very same decision. It was also kept open for

the petitioners to challenge the decision more particularly if

the decision was adverse to the petitioners.

3.3. It would appear that vide a communication dated

19.03.2022 addressed to the Principal District and Sessions

Judge, Jamnagar, the legal department had rejected the

request of the petitioner to be paid the benefit as per the

policy dated 16.07.2019 more particularly, as it appears from

the order, on the ground that the petitioner had been

appointed through an outsourcing agency.

4. It would appear that the issue with regard to payment of

salary on the minimum of scale even to persons appointed on

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outsourcing basis is no more res-integra more particularly a

learned Coordinate Bench vide judgment in Special Civil

Application No.6852/2020 and allied matters dated

19.07.2022 had been considering the scope and extant of

circular dated 16.07.2019 referred to herein above and

whereas, it would appear that learned Coordinate Bench had

carved out eight different categories as could be made out

from the government circular more particularly the categories

carved out for the purpose of adjudication and interpretation

of the circular. It would appear that category no.4 in the

categories stated would be corelatable to the case of the

present petitioner namely "Rejection on the ground that the

persons working on outsourcing by virtue of the GRs dated

10.02.2006, 01.04.2010 and 25.04.2012 cannot get the benefit

of the circular dated 16.07.2019. This included a category of

persons engaged on project work."

4.1. It appears that after elaborately discussing the law on

this subject, learned Coordinate Bench at paragraph no.21.5

has inter alia observed that in case of persons engaged on

outsourcing, the stand of the State being that persons

working on outsourcing basis would not be entitled to the

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benefit flowing from the circular dated 16.07.2019 which

would set at naught the very purpose for which the circular

has brought forth.

4.2. It also appears that the said decision had been

challenged before the Hon'ble Division Bench of this Court in

Letters Patent Appeal No.724/2023 and allied matters and

whereas, the Hon'ble Division Bench of this Court (Coram:

Mrs.Sunita Agarwal, Hon'ble the Chief Justice and

Mr.N.V.Anjaria, J.) vide judgment dated 11.08.2023 had

declined to interfere with the said decision except for the

decision of the learned Coordinate Bench insofar as relatable

to category no.1.

4.3. Thus, it would appear that even persons appointed on

outsourcing basis would be entitled to salary in minimum of

pay scale as stated vide Government Resolution dated

16.07.2019 and whereas such benefit is required to be

granted to the present petitioner as well.

5. At this stage, it is required to be mentioned that learned

Assistant Government Pleader Mr.Hardik Soni as well as

learned advocate Ms.Trusha Patel have inter alia tried to

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submit that the case of the petitioner would be different than

the case of the petitioners as had been considered by the

learned Coordinate Bench, more particularly, according to

learned advocates, the petitioner had been originally

appointed in the year 2008 and had continued as such till the

year 2013 whereas, the services of the petitioner were

brought to an end on 27.06.2013 and later on vide an order of

the year 2018, the petitioner had been appointed through an

outsourcing agency.

5.1. According to learned advocates, the benefit of minimum

of pay scale to persons working on outsourcing basis would

only be available if the person had been originally appointed

directly in the establishment and whereafter the conditions of

his appointment had been modified and the said employee had

been appointed through an outsourcing agency.

6. In the considered opinion of this Court, upon perusal of

the decision of the learned Coordinate Bench as well as the

decision of the Hon'ble Division Bench, this Court fails to find

any such explanation as regards category no.4 as referred to

herein above. In the considered opinion of this Court, the

decision of the learned Coordinate Bench as affirmed by the

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Hon'ble Division Bench can only be meant to read insofar as it

relates to the present issue, to mean that any person who is

appointed through an outsourcing agency who works on a

regular establishment of the State, be it a State entity or even

an establishment under the High Court, would be entitled to

be paid salary in the minimum of pay scale, no other

interpretation could be possible.

7. In this view of the matter, in the considered opinion of

this Court, the petition requires to be allowed and the same is

hereby allowed.

7.1. The respondents are directed to grant to the petitioner,

the benefit of payment of salary in the minimum of pay scale

as per the circular dated 16.07.2019 w.e.f. 01.01.2019.

Henceforth, the petitioner shall be paid salary in the minimum

of pay scale as directed above and whereas, arrears shall be

paid to the petitioner within a period of three months from the

date of receipt of this order.

7.2. As far as remaining prayers are concerned, at the

request of learned advocate Ms.Raol, it is observed that the

same are not pressed more particularly with a liberty to

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approach this Court after the appeal preferred against the

decision of learned Coordinate Bench being Letters Patent

Appeal No.569/2021, more particularly, where the issue of

regularization of such employees is concerned, is finally

decided.

(NIKHIL S. KARIEL,J) Bhoomi