Gujarat High Court
Pashim Gujarat Vij Comp.Ltd vs Vasantben Ramjibhai Makwana on 24 June, 2024
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C/SA/44/2000 CAV JUDGMENT DATED: 24/06/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 44 of 2000
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J. C. DOSHI
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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PASHIM GUJARAT VIJ COMP.LTD.
Versus
VASANTBEN RAMJIBHAI MAKWANA
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Appearance:
MR SP HASURKAR(345) for the Appellant(s) No. 1
MR RC KAKKAD(389) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 24/06/2024
CAV JUDGMENT
1. By way of this second appeal filed u/s 100 of the CPC, the
appellant has challenged the judgment and decree dated
24.4.1999 passed by the learned 3 rd Joint Civil Judge (JD) in
Regular Civil Suit No.925 of 1994 confirmed vide order dated
8.9.1999 passed by the learned Joint District Judge, Jamnagar
in Civil Regular Appeal No.64 of 1999, whereby the learned trial
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Court has partly allowed the suit filed by the present respondent
passing declaration to regularize the respondent plaintiff in the
category of Class IV employee and to grant salary and other
allowable remunerations. The appellant, who was the defendant
in the suit and was directed to follow the circular at Exh.58
dated 26.12.1980 and to give appointment to the plaintiff.
2. In the body of this judgment, the parties to the proceedings
are referred to as per their original status before the learned
Courts below.
3. Brief facts of the case are as under:-
3.1 The present Respondent was working as Class IV Part-time
Sweeper in the Appellants Circle Office at Jamnagar. It was
contended that before the learned Civil Judge, Jr. Division that
the Plaintiff is a Part-time temporary employee and there is no
permanent post of Safai Kamdar. She is appointed for a fixed
period of three months and after the fixed time, that
appointment used to come to an end.
3.2 The Learned Civil Judge after appreciating the evidence,
allowed the suit and declared that the Plaintiff is entitled for
appointment as Class IV Safai Kamdar with all pay and
allowances admissible for the post on permanent basis from the
date of the suit. It was also held and declared that the Appellant
should carry out the proceedings for regularisation of Plaintiff's
services in accordance with Government Resolution dated
26.12.80, Exh.58 (this mandatory relief was also granted).
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3.3 Further, a prohibitory injunction was granted against the
Appellant that the Appellant its agents and servants may not
restrain or obstruct the regular discharge of duties of the
Plaintiff.
3.4 This judgment was further challenged before the District
Court, Jamnagar by preferring Regular Civil Appeal No.64/99
which came to be dismissed and hence this Second Appeal.
4. For the following substantial question of law, this second
appeal was admitted.
"Whether on the facts and in the circumstances of the
case, both the courts below were justified in giving
directions to the appellant to regularize the service of
the respondent - daily wager in view of the judgment
reported in 1997(4) SCC 88?
5. Heard learned advocate Mr. SP Hasurkar for the appellant-
defendant and learned advocate Mr. RC Kakkad for the
respondent - plaintiff.
6. Learned advocate Mr. Hasurkar would submit that the
learned trial Court has committed serious error in directing the
defendant to regularize the services of the plaintiff, who was a
part timer. He would further submit that the issue of
jurisdiction of civil Court to issue such direction for regularizing
services of the employer goes to the root of the case. He would
further submit that the learned trial Court decided the entire
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dispute between the parties on the basis of GR dated
26.12.1980. He would further submit that however, this GR has
been subsequently cancelled and therefore, now there is no
question to regularize the services of the part timers or to admit
them to the service equal to that of the regular employee and to
grant regularization and other benefit of regular employee. He
would further submit that the effect of the GR dated 26.12.1980
and cancellation thereof has been the subject matter before the
Division Bench of this Court in case of State of Gujarat Vs. Patel
Narottambhai Dahyabhai reported in 2014 JX (Guj) 622,
whereby the Division Bench of this Court elaborately discussed
the issue and held that even learned Single Judge of this Court
cannot issue any direction or order to appoint any part timers on
regular basis, hence, civil Court cannot assume jurisdiction and
to issue direction to regularize the services of part time
employee. He would further submit that the judgment of the
Division Bench would cover the entire dispute between the
parties and therefore, he prays to allow this appeal and to quash
and set aside the impugned judgment and decree.
6.1 Two more judgments were referred to by learned advocate
Mr. Hasurkar. Firstly, he has relied upon the judgment in case
of State of UP and others Vs. Ajay Kumar reported in (1997) 4
SCC 88; judgment based on which the above substantial
question of law has been framed while admitting this appeal.
Referring to this judgment, he would submit that even the High
Court cannot pass order to regularize any employee as and when
vacancy arose and to continue him till then and therefore, he
would submit that in view of the law laid down by the Hon'ble
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Apex Court, no reason arose for the learned trial Court being
civil Court to pass any judgment and decree in favour of the
plaintiff to regularize his services from part time to full time. He
would further submit that the learned appellate Court has also
committed serious error in upholding the judgment and decree,
which is erroneous right from the inception.
6.2 Secondly, learned advocate Mr. Hasurkar has relied upon
the judgment in case of Secretary to Govt. Commercial Taxes
And Registration Department Vs. A Singamuthu reported in
2017(4) SCC 113 to contend that benefit of regularization cannot
be extended to part time employee.
6.3 On above submission, learned advocate Mr. Hasurkar
would submit that since the judgment and decree passed by the
learned trial Court and confirmed by the learned appellate Court
revolves around the GR dated 26.12.1980, which was later on
rescinded, the judgment and decree passed by both the learned
Courts below are illegal and against the settled principles of law
and therefore, needs to set aside by allowing this second appeal.
7. On the other hand, learned advocate Mr. RC Kakkad,
referring to the judgment of the Hon'ble Apex Court in case of
Vice Chancellor Anand Agriculture University Vs. Kanubhai
Nanubhai Vaghela and another rendered in Civil Appeal No.4443
of 2021, would submit that the Hon'ble Apex Court held that the
daily wagers are entitled for regularization of their services and
therefore, substantial question of law framed by this Court at the
time of admitting this appeal is squarely answered by this
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judgment. Referring to the back side of the Exh.58 i.e. circular
dated 26.2.1992, he would further submit that by this circular,
it was decided to regularize the services of the part timers on the
basis of principles of seniority-cum-merit and they are to be
appointed once the regular post becomes vacant. He would
further submit that therefore, in view of the circular dated
26.12.1992 issued by the defendant, the plaintiff, who was
working as a part timer since 6.11.1984, his services was
required to be regularized. Thus, he would further submit that
both the learned Courts below have rightly believed and
interpreted this circular in favour of the plaintiff. He would
further submit that the plaintiff has retired as a part timer after
attaining the age of superannuation and therefore, the Court
may also take linient view in favour of the plaintiff, as she has
worked with the defendant throughout her life as a part time
sweeper in Class IV.
7.1 Upon such submission, learned advocate Mr. RC Kakkad
urges to dismiss this second appeal.
8. The second appeal is admitted on the basis of the
judgment delivered by the Hon'ble Apex Court in case of Ajay
Kumar (supra). Para 3 of the said judgment, is relevant, which
reads as under:-
"The admitted position is that the respondent came to
be appointed on daily-wage basis on 14-2-1985 as
Class IV employee, Nursing Orderly, in f the Medical
College by the Medical Superintendent. When the
respondent filed a writ petition in the High Court for his
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regularisation, the learned Single Judge pointed out
that the respondent has not brought to the notice of the
Court, any statutory rule under which the respondent
could be regularised, on the basis of the service
rendered by him as a daily-wage earner. Even the
method of recruitment adopted by the Superintendent
was g not proper inasmuch as he did not call for
applications. The Division Bench reversed the decision
of the learned Single Judge and had given directions. It
is now settled legal position that there should exist a
post and either administrative instructions or statutory
rules must be in operation to appoint a person to the
post. Daily-wage appointment will obviously be in
relation to contingent establishment in which there
cannot exist any post and it continues so long as the
work exists. Under these circumstances, the Division
Bench was clearly in error in directing the appellant to
regularise the service of the respondent to the post as
and when the vacancy arises and to continue him until
then. The direction in the backdrop of the above facts
is, obviously, illegal."
9. The Hon'ble Apex Court was clear that even the High Court
could not regularize the service of part time employee as no
statutory rule was displayed, which permit the Court to
regularize the services of the part timers.
10. As argued before this Court, in circular at Exh.58, back
side of such circulation and the entire judgment of the learned
trial Court and the learned appellate Court revolves around the
said circular. The relevant portion is in vernacular language and
the same is translated into English, which reads as under:-
"CIRCULAR
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The Heads of Department are requested to examine the
need for continuing the existing arrangements for part
time employment with consolidated pay as per Finance
Department Government Resolution No. PCR-2576-73-
M Dated 24th March 1976 and make proposals, giving
full justification for conversion of pay of such posts into
regular posts.
2. Whenever part time employment has continued for 3
years the Head of the Department should make efforts
as per prescribed recruitment Rules and Procedure for
filling in the posts to absorb such incumbent in regular
posts that may be available under his control and to
replace the incumbent by a fresh part time employee.
By order and in the name of the Governor of Gujarat
T.N.BHINDE
Under Secretary to the Government
of Gujarat, Finance Deptt"
11. The above circular implies that if any person, who is part
time employee and continued for three years, the Head of the
Department should make efforts (Emphasis supplied) as per
prescribed recruitment Rules and Procedure for filling in the
posts to absorb such incumbent in regular posts that may be
available under his control and to replace the incumbent by a
fresh part time employee. So, there is recruitment rules and
procedure which was required to be followed to regularize the
services of the part timers, even as per circular dated
26.12.1980. Another circular dated 26.2.1992 relied upon by
learned advocate Mr. RC Kakkad indicates that a person, who is
working on a fixed pay is a part timer and his/her services could
be regularized as and when set up post is available on the
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principle of seniority-cum-merit. The circular dated 26.2.1992
reads as under:-
12. Learned trial Court in its judgment has categorically held
that set up of regular of Safai Kamdar, Class IV was never exist.
This finding is also upheld by the learned appellate Court
without being diluted. So, issue that no set up for regular post
of Safai Kamdar was existed is no more res integra.
"No.EP/1/PP/53
Gujarat Electricity Board
Vidyut Bhavan,
Racecourse,
Vadodara.
Date: 26.02.1992
|CIRCULAR|
Subject: To appoint part-time workers on
regular basis.
Ref.: Circular No. PTE/1080/288/CH
dated 26/12/1980 of the Finance
Department of Government of
Gujarat
Pursuant to the Circular
No.PTE/1080/288/CH dated 26/12/1980 issued in
context with Resolution No. PCR/2576/73/M dated
24/03/1976 of the Finance Department of
Government of Gujarat, it has been held that
whenever, part-time employment has continued for
three years, the Head of the Department should make
efforts as per prescribed recruitment Rules and
Procedure for filling in the posts, to absorb such
incumbents in regular posts that may be available
under his control and to replace the incumbent by a
fresh part-time employee.
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The matter to absorb the part-time workers
working in the office of the board against the posts of
full-time workers had been under consideration since
long. At the end of careful consideration, it has been
held that the posts of full-time workers available from
the part-time workers with consolidated pay in the
offices of the Board shall be filled in on the basis of
Seniority-cum-Merit. If such part-time workers hold
prescribed qualifications for other posts of Class-IV
also, they shall be appointed on the basis of
Seniority-cum-Merit as per rules of the Board.
Available posts of full-time workers under the circle
are to be filled on the basis of seniority-cum-merit
from the part-time workers working in all the offices
under the circle.
It is directed to follow the aforesaid instructions
scrupulously."
13. Another circular was issued by the State of Gujarat,
Finance Department on 21.8.1995. This circular has kept in
abeyance circular dated 26.12.1980, which reads as under:-
"To fix the pay-scale of the part-time employees
considering them as regular.
-------------------------------------------------
Government of Gujarat
Finance Department
Circular No.PTE/1080/288/477(95)/CH
Secretariat, Gandhinagar
Date: 21/08/1995
Read:|1| Circular No.PTE/1080/288/CH
dated 26/12/1980 of the Finance
Department
|2| Resolution No.
Kharach/1091/1337/Z-1 dated
28/10/1991 of the Finance
Department
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CIRCULAR:-
The Heads of Departments are requested
vide circular referred above that whenever, part-time
employment has continued for three years, the Head
of the Department should make efforts as per
prescribed recruitment Rules and Procedure for
filling in the posts, to absorb such incumbents in
regular posts that may be available under his control
and to replace the incumbent by a fresh part-time
employee.
Considering the prevailing orders of
economy policy in the government expenditure,
instructions of circular dated 26/12/1980 referred
above, are kept in abeyance.
By the Order and in the name of the Governor of
Gujarat
Smt. R.M. Mehta
Under Secretary
Finance Department"
14. In context of above circular, the issue was come up for
consideration before the Division Bench of this Court in case of
Narottambhai (supra), wherein this Court in para 7 to 10 held as
under:-
"7. Precisely on going through the material on the
record, it is clearly revealing that the employee was
employed in pursuance of the Government Resolution
authorizing for engaging Part-time employees in Class-
IV on hourly basis, wherein the resolution has provided
different monthly consolidated remuneration on hourly
basis. The minimum hour is prescribed for one hour
and the maximum a person can be appointed for six
hours in a day. If a person is employed for one hour,
then he will be paid a monthly consolidated
remuneration of Rs.225/- and if he is appointed for six
hours, he will be paid monthly consolidated
remuneration of Rs.1350/-. It has come to our notice
that vide Government Resolution dated 26.12.1980, it
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was directed that whenever part time employment has
continued for 3 years, the Head of Department should
make efforts as per prescribed recruitment rules and
procedure for filling in the posts to absorb such
incumbents in regular posts that may be available and
to replace the incumbent by a fresh part time employee.
However, the aforesaid Government Resolution was
kept in abeyance vide Government Resolution dated
21.8.1995 and thereafter vide Government Resolution
dated 7.1.2006, the above mentioned Government
Resolutions dated 26.12.1980 and 21.8.1995 were
withdrawn. Thereafter, vide Government Resolution
dated 10.2.2006, financial power vested with the Head
of Department to appoint part time employees was
withdrawn.
8. In that view of the matter, now in the State of
Gujarat, no person can be appointed as a part timer on
hourly basis and no such person, even if he has been
so appointed, can be continued in view of the
revocation of the aforesaid resolutions, which were
authorizing for such appointments. Indisputably, the
case of the employee itself clearly states that he was
appointed as a part timer on hourly basis and he was
being paid Rs.1350/- per month considering his work
of six hours per day. Indisputably, while appointing the
employee, no regular procedure for appointment was
carried out. Indisputably, his service was casual and he
was appointed as a part timer.
9. In similar case, the Hon'ble Supreme Court in
"Secretary To Government, School Education
Department, Chennai v. R. Govindaswamy and others,
reported in (2014) 4 SCC 769" held as under:
"5. The issue involved here remains restricted as to
whether the services of the part-time sweepers could
have been directed by the High Court to be regularized.
The issue is no more res integra.
6. In State of Karnataka & Ors. v. Umadevi &
Ors., AIR 2006 SC 1806, this Court held as
under:
"There is no fundamental right in those who have
been employed on daily wages or temporarily or
on contractual basis, to claim that they have a
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right to be absorbed in service. As has been held
by this Court, they cannot be said to be holders of
a post, since, a regular appointment could be
made only by making appointments consistent
with the requirements of Articles 14 and 16 of the
Constitution. The right to be treated equally with
the other employees employed on daily wages,
cannot be extended to a claim for equal treatment
with those who were regularly employed. That
would be treating unequals as equals. It cannot
also be relied on to claim a right to be absorbed in
service even though they have never been selected
in terms of the relevant recruitment rules."
7. In Union of India & Ors. v. A.S. Pillai & Ors.,
(2010) 13 SCC 448, this Court dealt with the
issue of regularisation of part-time employees and
the court refused the relief on the ground that
parttimers are free to get themselves engaged
elsewhere and they are not restrained from
working elsewhere when they are not working for
the authority/employer. Being the part-time
employees, they are not subject to service rules or
other regulations which govern and control the
regularly appointed staff of the department.
Therefore, the question of giving them equal pay
for equal work or considering their case for
regularisation would not arise.
8. This Court in State of Rajasthan & Ors. v. Daya
Lal & Ors., AIR 2011 SC 1193, has considered the
scope of regularisation of irregular or part-time
appointments in all possible eventualities and laid
down well-settled principles relating to
regularisation and parity in pay relevant in the
context of the issues involved therein. The same
are as under:
"8(i) The High Courts, in exercising power under
Article 226 of the Constitution will not issue
directions for regularisation, absorption or
permanent continuance, unless the employees
claiming regularisation had been appointed in
pursuance of a regular recruitment in accordance
with relevant rules in an open competitive
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process, against sanctioned vacant posts. The
equality clause contained in Articles 14 and 16
should be scrupulously followed and Courts
should not issue a direction for regularisation of
services of an employee which would be violative
of the constitutional scheme. While something
that is irregular for want of compliance with one
of the elements in the process of selection which
does not go to the root of the process, can be
regularised, back door entries, appointments
contrary to the constitutional scheme and/or
appointment of ineligible candidates cannot be
regularised.
(ii) Mere continuation of service by a temporary or
ad hoc or daily-wage employee, under cover of
some interim orders of the court, would not confer
upon him any right to be absorbed into service, as
such service would be "litigious employment".
Even temporary, ad hoc or daily- wage service for
a long number of years, let alone service for one or
two years, will not entitle such employee to claim
regularisation, if he is not working against a
sanctioned post. Sympathy and sentiment cannot
be grounds for passing any order of regularisation
in the absence of a legal right.
(iii) Even where a scheme is formulated for
regularisation with a cut-off date (that is a scheme
providing that persons who had put in a specified
number of years of service and continuing in
employment as on the cut-off date), it is not
possible to others who were appointed subsequent
to the cut-off date, to claim or contend that the
scheme should be applied to them by extending
the cut-off date or seek a direction for framing of
fresh schemes providing for successive cut-off
dates.
(iv) Part-time employees are not entitled to seek
regularisation as they are not working against any
sanctioned posts. There cannot be a direction for
absorption, regularisation or permanent
continuance of part-time temporary employees.
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(v) Part-time temporary employees in government
run institutions cannot claim parity in salary with
regular employees of the Government on the
principle of equal pay for equal work. Nor can
employees in private employment, even if serving
full time, seek parity in salary with government
employees. The right to claim a particular salary
against the State must arise under a contract or
under a statute."
10. As narrated above, the facts emerging out in the
present case as well as the facts which were considered
by the Hon'ble Supreme Court in the aforesaid case are
similar. In both the cases, the employees were part
timers. Aforesaid decision squarely applies to the facts
of the instant case, therefore, in view of the aforesaid
decision, we find that the learned Single Judge could
not have issued such direction for consideration of
appointment as well as appointing him on permanent
post in Class- IV. For the reasons given above, the order
of the learned Single Judge cannot be maintained."
15. The issue before this Court is squarely covered by the
Division Bench judgment of this Court. The entire issue has
been thoroughly examined by the Division Bench of this Court in
background of resolution dated 26.2.1980, further resolution
dated 21.8.1995 and subsequent resolution dated 10.2.2006.
The GR dated 26.12.1980 was the centre, upon which the entire
judgment of the learned trial Court as well as learned appellate
Court circles. It has been discussed by the Division Bench and
believed that part timers cannot be regularized and no direction
can be issued to regularize the appointment or appointing them
on permanent basis in class IV.
16. As far as judgment of Vice Chancellor Anand Agriculture
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University (supra) relied upon by learned advocate Mr. Kakkad is
concerned, it will not applicable to the facts of the case. In that
case, the Agriculture University had scheme to regularize the
employee and on that fact, judgment was delivered to regularize
the employee.
17. In view of above, the judgment and decree delivered by the
learned trial Court and confirmed by the learned appellate Court
suffers from serious infirmity and require to be quashed and set
aside.
18. Resultantly, the substantial question of law framed herein
above at the time of admission of this appeal is answered
accordingly. The appeal succeeds. The judgment and decree
dated 24.4.1999 passed by the learned 3 rd Joint Civil Judge (JD)
in Regular Civil Suit No.925 of 1994 confirmed vide order dated
8.9.1999 passed by the learned Joint District Judge, Jamnagar
in Civil Regular Appeal No.64 of 1999 are hereby quashed and
set aside. The suit of the plaintiff stands dismissed. Decree to
be drawn accordingly. No order as to costs.
19. Consequently connected civil application, if any, also
stands disposed of.
20. R & P is to be sent back to the concerned Court
immediately.
(J. C. DOSHI,J)
SHEKHAR P. BARVE
