Gujarat High Court

Abdul Salam Ahemadbhai Kureshi vs State Of Gujarat on 23 September, 2024

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                              C/SCA/8780/2024                                    ORDER DATED: 23/09/2024

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                                     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
                                       R/SPECIAL CIVIL APPLICATION NO. 8780 of 2024
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                                                ABDUL SALAM AHEMADBHAI KURESHI
                                                             Versus
                                                    STATE OF GUJARAT & ORS.
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                       Appearance:
                       MR NINAD P SHAH(10911) for the Petitioner(s) No. 1
                       MS NIRALI SARDA, AGP for the Respondent(s) No. 1,2,3
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                          CORAM:HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE

                                                        Date : 23/09/2024
                                                         ORAL ORDER

1. The petitioner being aggrieved by the inaction on the part of the respondent authorities in extending him the benefit of Finance Department's Circular dated 16.07.2019 allowing the minimum of the pay scale even after putting in service for more than 40 years, working for more than 5 hours a day, the petitioner, by way of this petition under Article 226 of the Constitution of India, challenges the same.

2. The petitioner states that he came to be appointed as part-time sweeper cum peon on 01.01.1984 to work in Office of Registrar, Co. Operative Societies, Amreli. Petitioner was initially appointment for 11 months and 27 days. Thereafter his appointment has been extended from time to time for different work and for different durations.

3. On 31.03.2006, petitioner came to be terminated. Petitioner being aggrieved by his termination approached this

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Hon'ble Court by way of writ petition which came to be numbered as Special Civil Application no. 9194 of 2006 challenging his termination.

4. This Hon'ble Court by its oral order dated 26.09.2006 disposed of Special Civil Application no. 9194 of 2006 with a direction that it is open for the petitioner to make a representation for taking him back in service and the respondent authority should decide the representation in accordance with law.

5. Pursuant to oral order dated 26.09.2006 passed by this Hon'ble Court, petitioner made a representation to the respondent no. 3.

6. Petitioner states that in response to his representation, he came to be reappointed on 01.08.2006 on his original post in the office of respondent no. 3.

7. The petitioner states that though he is called part- timer, in actual fact, he has been rendering service for more than 5 hours a day and is being paid Rs. 220/- per day (Rs. 6,600/- per month (Approx)) without any other benefits that are given to the regular employees of the District Registrar, Co- Operative Societies. The wage of the petitioner is not being revised from time to time as per the minimum wages prevalent

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in the state. Thus, the petitioner is being paid less than the minimum wage prescribed by the State Government.

8. Heard learned Advocate Ninad Shah for the petitioner no. 1 and learned Assistant Government Pleaders Ms. Nirali Sarda, for the concerned respondents in the petition.

9. Learned Advocate Mr. Shah, appearing for the petitioner, submits that the issue in the present petition concerns the grant of salary at the minimum of the pay scale to the petitioner, who is employed on a temporary basis for four hours or more with the respondents. He contends that the issue is no longer res integra. Specifically, he refers to a decision dated 19.07.2022 in Special Civil Application No. 8766 of 2021 and allied matters, where a learned Co-ordinate Bench of this Court categorized temporary workmen entitled to the benefit of the minimum of the pay scale in accordance with the Government Resolution dated 16.07.2019 and observed that employees working in those categories would be entitled to the said benefit. The learned Senior Advocate further submits that this decision was challenged by the respondent State through Letters Patent Appeal No. 724 of 2023 and allied matters, which was restricted to one category, namely, the payment of the minimum of the pay scale to workmen employed for a minimum of four hours or more as temporary employees. It is

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submitted that the Division Bench, in its judgment dated 11.08.2023, upheld the decision of the learned Co-ordinate Bench, specifically holding that workmen employed for four hours or more with the concerned respondents as temporary employees are entitled to a salary at the minimum of the pay scale, in accordance with the Government Resolution dated 16.07.2019.

10. Learned Advocate for the petitioner would submit that the issue being settled by Division Bench of this Court, and whereas since all the petitioners of the present petition are working for four hours or more, this Court may direct the respondents to forthwith pay to such petitioner salary in minimum of pay scale, more particularly with effect from 01.01.2019 as per Government Resolution dated 16.07.2019,

11. As against the same learned Assistant Government Pleaders would submit that while the legal proposition as emanating from the decisions of this Court as submitted by learned Senior Advocate may not be disputable, yet, since in the present group, there are various categories of employees including the some, in whose case, there are no specific orders of working for four hours or more, therefore, this Court may inter alia direct the concerned respondents to verify the fact of the number of hours being worked by the petitioner on each

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day and whereas appropriate orders with regard to payment of salary minimum scale may thereafter be passed.

12. Having heard learned Advocate for the petitioner and learned Assistant Government Pleader on behalf of the respondent- State and having perused the documents including judgement of the learned Co- ordinate Bench as well as the Division Bench, insofar as the entitlement of person who is working for four hours or more as temporary employee for minimum of pay scale, the same is undisputable and undeniable. If the petitioner is working for four hours or more, then such petitioner would be entitled to salary in minimum of pay scale as per Government Resolution dated 16.07.2019 with effect from 01.01.2019. The only aspect which requires verification is as regards the number of hours for which the petitioner is working. Again, it requires to be mentioned here that as per learned Senior Advocate and as also coming out from the record, in majority of the cases, there are orders issued by appointing authorities themselves, whereby the petitioner working hours have been fixed for four hours or more. Therefore, while this Court would permit the respondents to undertake a verification the same would be only of limited nature, considering the observations as above, and within a specific period of time frame.

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13. Having regard to the above observations, the following directions are passed:

I. It is the contention that as such the petitioner is working for more than six hours as of now. The appointing authorities in these cases only need to verify whether the original appointment order and or later order/service particulars certified by authorities specify whether the petitioner is appointed for working for six hours or more with the respondents.

II. Such verification shall be completed within a period of two weeks by the concerned appointing authorities. Upon such verification being completed such employee in whose case there is no objection, shall be paid salary in minimum of pay scale with effect from 01.01.2019 within a period of four weeks thereafter.

III. Insofar as the issue of regularization as prayed for by the petitioners is concerned, the said issue is not adjudicated in the present set of petitions leaving it open for the petitioners to have the same adjudicated by way of a fresh petition, if they so desire.