Philipbhai Laljibhai Mahida vs State Of Gujarat
2024 Latest Caselaw 8801 Guj

Gujarat High Court

Philipbhai Laljibhai Mahida vs State Of Gujarat on 23 September, 2024

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                              C/SCA/7162/2024                                         ORDER DATED: 23/09/2024

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                                     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
                                       R/SPECIAL CIVIL APPLICATION NO. 7162 of 2024
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                                                    PHILIPBHAI LALJIBHAI MAHIDA
                                                               Versus
                                                     STATE OF GUJARAT & ORS.
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                       Appearance:
                       MR NINAD P SHAH(10911) for the Petitioner(s) No. 1
                       GOVERNMENT PLEADER for the Respondent(s) No. 1
                       NOTICE SERVED BY DS for the Respondent(s) No. 2,3,4,5
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                          CORAM:HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE

                                                          Date : 23/09/2024
                                                           ORAL ORDER

1. The petitioner challenges the inaction on part of the respondent authorities is not considering his case for absorption/regularization in the regular establishment despite him rendering service for more than 35 years for more than 6 hours a day and extending him the benefit of Finance Department's Circular dated 16.07.2019 allowing minimum of the pay scale of the post.

2. The petitioner states that he came to be appointed on 01.10.1987 on the post of Water bearer cum sweeper by District Planning officer, Nadiad to work on part- time basis for 4 hours a day on fixed monthly wages. Petitioner was initially appointed on fixed monthly wage of Rs.300/-. He was appointed as a part-time employee against a regular vacant post.

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3. By order dated 12.05.2007 passed by the Manager, Kheda-Nadiad Collector Office Outsourcing Agent and Impression System Pvt. Ltd. Ahmedabad, the petitioner came to be appointed in the same place he has been working for past 16 years for 6 hours a day on 6-month contract basis from 15.05.2007 to 14.11.2007 on fixed monthly salary of Rs.1,500/-.

4. Petitioner states that over the years his contracts with the outsourcing agency have been extended, new outsourcing agencies have come in but the petitioner is still working in the same office where he was initially appointed in the year 1987 and is still carrying out the same work. Petitioner is presently working through SPB Services, the present outsourcing agency. He is working for more than 6 hours a day and is being paid Rs. 11,500/- per month without any other benefit that are given to be regular employees of the District Planning Office.

5. Heard learned Senior Advocate Mr. Shalin Mehta with learned Advocate Mr. Ninad Shah for the petitioner no. 1 and learned Assistant Government Pleaders Ms. Nirali Sarda, for the concerned respondents in the petition.

6. Learned Senior Advocate Mr. Mehta, appearing for the petitioners, submits that the issue in the present petition

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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 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.

7. Learned Senior Advocate for the petitioner would submit

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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,

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

9. Having heard learned Advocates 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

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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.

10. Insofar as the issue with regard to petitioner who is working on outsourced basis, it would appear that the cases of such category have been dealt with by learned Co-ordinate Bench in the decision dated 19.07.2022 in Special Civil Application No. 8766 of 2021 and allied matters, whereby the learned Co-ordinate Bench had inter alia recognized the entitlement of even outsourced employees to receive salary in minimum of pay scale. It would further appear that the said decision while it had been challenged before the Hon'ble

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Division Bench, the respondent-State had sought not to question observation as regards outsourced employees. In this view of the matter, the aspect of outsourced employees being entitled for salary in minimum of pay scale is no more in dispute, those petitioners who are working on outsourced basis would also be entitled to salary in minimum of pay scale.

11. 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.

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III. It is further clarified that benefit of grant of minimum of pay scale would be available even to employee who had been appointed on outsourced basis, provided he is working for four hours or more and there shall not be any rejection on the count the petitioner being outsourced employee

IV. 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.

12. The writ petition is accordingly, disposed of. No order as to costs. Direct Service is permitted.

(ANIRUDDHA P. MAYEE, J.)

Manoj Kumar Rai