Gujarat High Court
Chayaben Vinodray Parmar vs State Of Gujarat on 27 June, 2024
Author: Vaibhavi D. Nanavati
Bench: Vaibhavi D. Nanavati
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C/SCA/4866/2020 ORDER DATED: 27/06/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 4866 of 2020
With
CIVIL APPLICATION (FOR AMENDMENT) NO. 1 of 2024
In R/SPECIAL CIVIL APPLICATION NO. 4866 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 10727 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 12623 of 2020
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CHAYABEN VINODRAY PARMAR & ORS.
Versus
STATE OF GUJARAT & ORS.
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Appearance:
for the Petitioner(s) No. 17.1,17.2,17.3,17.4,17.5
DECEASED LITIGANT for the Petitioner(s) No. 17
MR MAHESH BHAVSAR(1781) for the Petitioner(s) No.
1,10,11,12,13,14,15,16,18,19,2,20,21,22,23,24,25,26,27,3,4,5,6,7,8,9
MRS HM BHAVSAR(5340) for the Petitioner(s) No.
1,10,11,12,13,14,15,16,18,19,2,20,21,22,23,24,25,26,27,3,4,5,6,7,8,9
MS NIDHI VYAS AGP for the Respondent(s) No. 1
MR DEEPAK P SANCHELA(2696) for the Respondent(s) No. 4
NOTICE SERVED for the Respondent(s) No. 1,2,3
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CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 27/06/2024
ORAL ORDER
1. The present petitions are taken up for hearing together in
view of the fact that the facts of all the petitions are analogues to
each other and the petitioners of the respective petitions are
serving as daily wagers under the respondent no.4 - Nagarpalika on
regular sanction set-up for more than 20 years on different posts in
different departments without any break of service.
2. By way of the present petitions, the petitioners made a
demand for regularization of their service and absorption in regular
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pay-scale through the union. The details of the petitioners are duly
annexed at Annexure-A in Special Civil Application No.4866 of 2020.
3. Heard Mr.Mahesh Bhavsar, learned advocate appearing for
the petitioners in Special Civil Application No.4866 of 2020,
Ms.Harshal Pandya, learned advocate appearing for the petitioners
in Special Civil Application No.10727 of 2020, Mr.Samir Gohil,
learned advocate appearing for the petitioners in Special Civil
Application No.12623 of 2020, Mr.Deepak Sanchela, learned
advocate appearing for the respondent - Nagarpalika and Ms.Nidhi
Vyas, learned A.G.P. appearing for the respondent - State.
4. Mr.Bhavsar, learned advocate submitted that the case of the
petitioners herein is analogues and squarely covered by the order
passed by this Court in Special Civil Application No.3575 of 2008 on
05.02.2020 whereby, the respondents were directed to pay
minimum of the pay scale of regularly engaged employees from the
date, they completed 10 years of total service. It is submitted that
the aforesaid decision was arrived at by this Court, placing reliance
on the ratio laid down by the Apex Court in the case of Secretary,
State of Karnataka Vs. Uma Devi reported in (2006) 4 SCC 1.
4.1. It is submitted that an identical issue was also considered by
this Court in the case of Gujarat Mazdoor Sabha and another vs.
Valsad Nagar Palika rendered in Special Civil Application No.3062 of
2015 and the same was the subject matter of Letters Patent Appeal
No.1056 of 2019, which is pending adjudication.
4.2. In light of the aforesaid, it is submitted that the dispute herein
is in a very narrow compass wherein, the petitioners herein are daily
wagers serving with the respondent - Nagarpalika for more than 20
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years and that, the petitioners be granted minimum pay-scale as
granted to the regular employees of the respondent - Nagarpalika.
5. Mr.Deepak Sanchela, learned advocate appearing for the
respondent - Nagarpalika submitted that the prayer with respect to
the regularization may not be granted in view of the fact that the
proposal, which was forwarded for regularization to the State
Government, has been declined by the respondent - State as the
same was not in consonance with the instructions issued by the
State Government from time to time. It is submitted that, therefore,
such direction may not be issued.
6. Ms.Nidhi Vyas, learned A.G.P. appearing for the respondent -
State submitted that the respondent - authority has declined the
proposal of the respondent no.4 for filling up the posts on regular
set-up by observing as under:-
"As the statements of establishment expenditure
of the municipality, which are enclosed with the
proposal, are old, it was informed vide letter under
Reference No. 4, to submit statements of last
three year's establishment expenditure
percentage and the statements of proposed
establishment expenditure percentage to be made
if the above employees are absorbed. On perusal
of the statements submitted in this regard vide
letter under Reference - 5, it is found that the
establishment expenditure percentage of Veraval -
Patan Common Municipality was 64.028% in the
year 2017-18 and it was 56.867% in the year
2018-19 and the establishment expenditure
percentage of the current year is 64.275%. It is
further stated that if the employees mentioned in
the proposal are included in the establishment,
the financial expenditure of the municipality would
be Rs.1,77,97,680/-. Accordingly, the proposed
establishment expenditure percentage would be
75.49%.
Thus, considering the above details, as the
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proposal of the Veraval-Patan Municipality is not as
per the standing instructions of the Government,
the same is filed. Moreover, as the establishment
expenditure percentage of the Municipality is more
than 48%, at the present recruitment - promotion
cannot be approved. When the establishment
expenditure percentage is arrived at in future at
par with the rules and regulations of the
Government, proposal may be submitted to make
appointment by recruitment - promotion as per
the established system."
7. Having heard the learned advocates appearing for the
respective parties, it emerges that the dispute in the present
petitions is in a very narrow compass wherein, undisputedly, the
petitioners herein are the daily wagers imparting their services for
more than 20 years with the respondent - Nagarpalika. The said
issue is no longer res-integra and in view thereof, this Court deems
it fit to refer to the order dated 05.02.2020 passed by this Court in
Special Civil Application Nos.3575 of 2008 and 3576 of 2008.
Paragraphs 7,8,9,10, 11 and 12 of the said order, read as under:-
"7. The petitioners have asserted that their initial
appointments were made as daily wagers in the year
1997 and subsequently, by the Resolution dated
21.12.2002, the status of the daily wagers was
converted to contractual basis.
8. This Court has perused the Resolution dated
21.12.2002 passed by the respondent Nagarpalika,
wherein it is specifically stated that the daily wagers,
who are working on such posts, are appointed on
contractual basis for a period of 10 years and such
contract was remained in force till 25 years. Thus, the
status of the petitioners from daily wagers is converted
to the contractual employees and it is not in dispute
that the petitioners are working since the year 1997. It
is also established that the petitioners are doing the
work too that of regular employee.
9. At this stage, it would be apposite to refer to the
observation made in the judgment of the Constitution
Bench of the Supreme Court in the case of Umadevi
(Supra), which reads thus:
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"53.One aspect needs to be clarified. There
may be cases where irregular appointments
(not illegal appointments) as explained in
State of Mysore v. S.V. Narayanappa, R.N.
Nanjundappa v. T.Thimmiah and B.N.
Nagarajan v. State of Karnataka 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 sub judice, need not
be reopened based on this judgment, but
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.
(emphasis in original)"
10. The Supreme Court has directed to confer benefit of
regularisation to the irregularly appointed employees
who are working on a sanctioned post for more than 10
years of service without the intervention orders of this
Court. The petitioner has completed 10 years of service
as on 2012.
11. Subsequently, the Apex Court in the case of Jagjit
Singh (Supra) after survey of various judgments
including the judgment of the constitutional bench
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rendered in the case of Uma devi (Supra) has held thus:
"58. In our considered view, it is fallacious to
determine artificial parameters to deny fruits
of labour. An employee engaged for the
same work, cannot be paid less than another,
who performs the same duties and
responsibilities. Certainly not, in a welfare
state. Such an action besides being
demeaning, strikes at the very foundation of
human dignity. Any one, who is compelled to
work at a lesser wage, does not do so
voluntarily. He does so, to provide food and
shelter to his family, at the cost of his self
respect and dignity, at the cost of his self
worth, and at the cost of his integrity. For he
knows, that his dependents would suffer
immensely, if he does not accept the lesser
wage. Any act, of paying less wages, as
compared to others similarly situate,
constitutes an act of exploitative
enslavement, emerging out of a domineering
position. Undoubtedly, the action is
oppressive, suppressive and coercive, as it
compels involuntary subjugation.
59. *** *** ***
60. Having traversed the legal parameters
with reference to the application of the
principle of 'equal pay for equal work', in
relation to temporary employees (daily-wage
employees, ad-hoc appointees, employees
appointed on casual basis, contractual
employees and the like), the sole factor that
requires our determination is, whether the
concerned employees (before this Court),
were rendering similar duties and
responsibilities, as were being discharged by
regular employees, holding the
same/corresponding posts. This exercise
would require the application of the
parameters of the principle of 'equal pay for
equal work' summarized by us in paragraph
42 above. However, insofar as the instant
aspect of the matter is concerned, it is not
difficult for us to record the factual position.
We say so, because it was fairly
acknowledged by the learned counsel
representing the State of Punjab, that all the
temporary employees in the present bunch
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of appeals, were appointed against posts
which were also available in the regular
cadre/establishment. It was also accepted,
that during the course of their employment,
the concerned temporary employees were
being randomly deputed to discharge duties
and responsibilities, which at some point in
time, were assigned to regular employees.
Likewise, regular employees holding
substantive posts, were also posted to
discharge the same work, which was
assigned to temporary employees, from time
to time. There is, therefore, no room for any
doubt, that the duties and responsibilities
discharged by the temporary employees in
the present set of appeals, were the same as
were being discharged by regular
employees. It is not the case of the
appellants, that the respondent-employees
did not possess the qualifications prescribed
for appointment on regular basis.
Furthermore, it is not the case of the State,
that any of the temporary employees would
not be entitled to pay parity, on any of the
principles summarized by us in paragraph 42
hereinabove. There can be no doubt, that
the principle of 'equal pay for equal work'
would be applicable to all the concerned
temporary employees, so as to vest in them
the right to claim wages, at par with the
minimum of the pay-scale of regularly
engaged Government employees, holding
the same post.
12. Thus, the Supreme Court has held that with
reference to the application of the principle of 'equal
pay for equal work', in relation to temporary employees
(daily-wage employees, ad-hoc appointees, employees
appointed on casual basis, contractual employees and
the like), the sole factor that requires our determination
is, whether the concerned employees (before this
Court), were rendering similar duties and
responsibilities, as were being discharged by regular
employees, holding the same/corresponding posts. The
Apex Court has held that such employees who are
engaged as daily wagers, on contractual basis, etc. are
entitled to minimum of the pay scale which is conferred
to regular employees. Admittedly, the petitioners are
engaged as a contractual employee from the year 2002
and they have completed 10 years of service in the
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year 2012. The respondents have failed to satisfy this
Court that they are not taking work similar work from
the petitioners, which is being done by the regular
employees. Prior to the year 2002, the petitioners were
engaged as daily wagers from 1997. The prior service
rendered by them as a daily wagers cannot be
considered for granting the benefit of regular pay, since
they have accepted their appointment on contractual
basis as referred in the Resolution dated 21.12.2002.
Hence, they have given up their claim for taking any
benefit which would have accrued while working as
daily wagers. The respondents have appointed them on
contractual appointment for a period of 10 years. The
life of the contract is for 25 years. It is also not disputed
by the Nagarpalika that 74 posts are vacant and hence,
the respondent Nagarpalika instead of employing the
petitioners as regular employees have in fact appointed
them as a contractual employees and are taking
regular work from them. Hence, the respondents are
directed to confer the petitioner the benefit of
minimum of the pay-scale of regularly engaged
employees. Such benefit shall be granted on
completion of ten years of service, i.e, from 2012.
Appropriate orders in this regard shall be passed within
a period of two months from the date of writ of the
order of this Court."
8. In light of the aforesaid, in exercise of the extraordinary
jurisdiction under Article 226 of the Constitution of India, the
respondents are directed to confer the petitioners the benefit of
minimum of the pay-scale of regularly engaged employees on due
verification that the petitioners herein have completed 10 years of
service from the date of appointment and pass appropriate order in
accordance with law within a period of 3 months from the date of
receipt of copy of this order. It is open for the respondent no.4 -
Nagarpalika to place a fresh proposal to the respondent - State with
respect to the exercise required to be undertaken for filling up the
regular posts in the establishment of the respondent no.4 in
accordance with law.
9. With the aforesaid direction, the present petitions are allowed
to the aforesaid extent. Direct service is permitted.
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10. Since the main petitions are disposed of, Civil Application No.1
of 2024 does not survive and the same also stands disposed of.
(VAIBHAVI D. NANAVATI,J)
Hitesh
