Solanki Devsibhai Hamirbhai vs State Of Gujarat & Anr

Maulik J. Shela, J

Heard Mr. Hardik C. Rawal, learned Advocate for the petitioner and Mr. Siddharth Rami, learned Assistant Government Pleader for the respondent No.1-State, at length.

The present petition is filed under Article 226 of the Constitution of India, seeking the following reliefs:

“(a) be pleased to admit and this Special Civil Application.

(b) be pleased to issue a writ of mandamus or any other appropriate writ, order or direction by quashing and setting aside the impugned orders dated 25.9.2007 and 5.3.2007 at Annexure - B and C and further be pleased to direct the respondents to grant benefits to the petitioner of full time employee (Class-IV) from the date on which the petitioner completed three years service and/or further be pleased to direct the respondents herein to given identical treatment to the petitioner which is given to other 7 employees by order dated 16.11.2005 and/or further be pleased to direct the respondents herein to continue the petitioner in service till the petitioner in converted into a full time post and till the petitioner is granted the benefit of full time employee.

(c) pending admission, hearing and final disposal of this petition, be pleased to stay the operation, implementation, execution and enforcement of the impugned orders dated 25.9.2007 and 5.3.2007 at Annexure B and C and further be pleased to direct the respondents herein to give identical treatment to the petitioner which is given to other 7 employees by order dated 16.11.2005 and/or further be pleased to direct the respondents herein to continue the petitioner in service till the petitioner post is converted into a full time post and till the employee is granted the benefit of full time employee.

(d) be pleased to pass such other and further orders may be deemed just and proper looking to the facts and circumstances of the case and in the interest of the justice.”

SUBMISSIONS FOR THE PETITIONER:

Mr. Rawal, learned Advocate appearing for the petitioner, has submitted as under:

3.1. The petitioner was wrongly denied the benefit of the Government Resolution dated 1st May 2007, whereby, he was not granted the benefit of permanency though the petitioner fulfilled all four criteria as set out in the aforesaid Government Resolution. The respondent No.1 erroneously observed in its impugned order dated 25th September 2007 that the petitioner did work for three hours a day for ten years as a part-time employee and his appointment was not against a vacant sanctioned permanent post.

3.2. The respondent No. 1 failed to consider two office orders dated 5th January, 1994 and 26th September, 1995, issued by respondent No. 2, whereby, it was confirmed that the petitioner did work for more than six hours a day since the last more than ten years before his termination affected vide the impugned order dated 5th March, 2007. The respondent No. 1 also failed to take note of the Government Resolution dated 12th June, 1991, whereby, the appointment of the petitioner on the post of Peon, though as part-timer, was against sanctioned post. It is also stated that vide the Government Resolution dated 16th May, 2008, the State has modified sub-clause 4 of Clause No. 1 of the aforesaid Circular No. 15/2007, whereby, any part-timer who was appointed against vacant ad-hoc post can also be granted the benefit of this aforesaid Government Resolution.

3.3. When all the conditions were fulfilled by the petitioner of the aforesaid Government Resolution, the petitioner could not have been deprived of the benefit flowing from the aforesaid Government Resolution dated 1st May, 2007. The impugned decisions dated 25th September, 2007 and 5th March, 2007, are erroneous, perverse and violative of Articles 14 and 16 of the Constitution of India, which may be quashed and set aside and petitioner may be granted all benefits flowing from the aforesaid Government Resolution including retirement benefits.

3.4. Making the above submissions, Mr. Rawal, learned Advocate, would request this Court to allow the present petition.

SUBMISSIONS OF THE RESPONDENT NO.1:

Per contra, Mr. Rami, learned Assistant Government Pleader, has opposed this petition on following counts:

4.1. The petitioner was appointed as part-time employee and his initial appointment letter would indicate that he was appointed only for three hours a day. The fixed wages applicable to such part-timer who worked for three hours a day was paid to the petitioner. It is submitted that when the petitioner had been paid wages for three hours a day, he cannot be allowed to claim the benefit of aforesaid Government Resolution dated 1st May, 2007.

4.2. The respondent No. 1 has examined the case of the petitioner as per the direction issued by this Court vide its order dated 30th April, 2007 passed in Special Civil Application No. 11455 of 2007 and on examination, it found that the petitioner not fulfilling all four conditions, as he has not fulfilled the criteria set out in the sub-clause Nos. 1 and 4 of Clause-1 the aforesaid Government Resolution dated 1st May, 2007, then the respondent No.1 has not appointed the petitioner as a regular employee.

4.3. The petitioner is wrongly banking upon two office orders passed by respondent No. 2. It cannot be believed as contended that he worked for more than six hours a day, since he was not paid wages for more than three hours a day by the respondents.

4.4. The sub-clause No. 4 of Clause-1, prevailing at the time of taking the impugned decision would only suggest that the appointment of part-timer should be against a vacant sanctioned permanent post, which was later in point of time in the year 2008 modified by the State on 16th May, 2008 and thereby, no benefit could have been given to the petitioner as his case was already rejected by the respondent – the competent authority prior to aforesaid Government Resolution dated 16th May, 2008 came into force.

4.5. Making the above submissions, Mr. Rami, learned AGP, would request this Court to reject the present petition.

No other and further submissions being made by the learned advocates for the parties.

Having heard learned advocates appearing for the respective parties and after going through their pleadings and supporting documents produced on record, following would emerge:

6.1. The petitioner was appointed as a part-time sweeper on fixed pay of Rs. 300/- on 5th December, 1991 in the respondent No. 2-Institute. Later on, vide office order dated 5th January, 1994 of the respondent No. 2-Institute, his working hours were fixed from 10:00 AM to 4:00 PM. It further appears that, vide office order dated 26th September, 1995, the competent authority of the respondent No. 2 had increased the working hours of the petitioner and fixed the same from 9:30 AM to 6:15 PM. The said order also suggests that on the 3rd and 4th working Saturdays, due to weekly off of the watchmen, an additional night duty was also assigned to the petitioner. It has been clearly stated in the said office order dated 26th September, 1995 that the petitioner would have to work for 6 hours a day in the respondent No. 2 - Institute.

6.2. The petitioner was dismissed from the services by the respondent No. 2 vide its order dated 5th March, 2007. The petitioner appears to have challenged the aforesaid decision before this Court by way of Special Civil Application No. 11455 of 2007, wherein, this Court vide its order dated 30th April, 2007, directed the respondents to consider the case of petitioner in view of the Government Resolution as referred in the said order.

6.3. Thereafter, respondent No. 1 appears to have considered the case of the petitioner, but having found that petitioner was not satisfying the criteria set out in the sub-clause 1 and 4 of Clause No.1 of aforesaid Government Resolution dated 1st May, 2007, turned down his claim to be appointed as a permanent employee.

6.4. While passing the impugned decision, the respondent No. 1 appears to have considered only the petitioner’s initial appointment order, dated 5th December, 1991, which limited his part-time appointment to three hours a day. The respondent No. 1 failed to note the office orders dated 5th January, 1994, and 26th September, 1995, issued by respondent No. 2, which confirm that the Petitioner’s working hours were from 9:30 AM to 6:15 PM. A plain reading of these office orders further clarifies that the petitioner is also required to serve as a watchman at the respondent No. 2 - Institute on the 2nd and 4th Saturdays.

6.5. Furthermore, the post of peon/sweeper was duly sanctioned by the State for respondent No. 2-Institute vide its Government Resolution dated 12th June, 1991 and thereafter, on 5th December, 1991, the petitioner was first time appointed as Class-IV, albeit as part-timer. The Government Resolution dated 16th May, 2008, though it came later in point of time, would suggest that the State itself modified the criteria of the sub-clause 4 of Clause No. 1 of the aforesaid Government Resolution dated 1st May, 2007, whereby, if the appointment of part-timer against ad-hoc vacant post would also include. It is not stated in the said resolution that the modification would apply from the date of the resolution.

To appreciate the aforesaid facts, emerge from the record and adverting to the issue, I would like to refer the sub-clause 1 to 4 of the Clause No. 1 of Government Resolution dated 1st May, 2007. Its fair translation reads thus:

“(1) The part-timer must have completed 10 years of service with 6 hours of daily work as of 10/02/2006; provided, however, that such 10 years of service should not have been continued by virtue of any interim order or judgment of the Hon'ble Court or Tribunal.

(2) The appointment of the part-timers who have completed the aforementioned 10 years of service must have been made by following the recruitment process prevailing at the relevant time. That is to say, their recruitment must have been conducted through the Employment Exchange, the Office of the Social Welfare Officer, or such other agencies prescribed by the Government for recruitment.

(3) Such part-timers must possess the requisite qualifications as prescribed under the recruitment rules for the respective cadre at the time of their recruitment.

(4) The appointment of such part-timers must have been made against a permanent vacancy sanctioned by the competent authority of the concerned office.”

The facts which are observed hereinabove emerges from the record would clearly indicate that petitioner did work for more than 6 hours a day at least from the year 1994-95 till 5th March, 2007, i.e., date of his dismissal. It is true that he was paid the wages for three hours a day and not for six hours or more by respondent.

The petitioner might not have objected his exploitation by the respondent, having been paid less salary/wages though he worked for more than 3 hours a day. Nonetheless, having not objected to the aforesaid unfair act of the respondents would not be counterproductive to the petitioner’s claim, inasmuch as, the said sub-clause-1 of the Clause No. 1 of the aforesaid Government Resolution dated 1st May, 2007, would not remotely suggest that part-time employee must receive wages for six hours a day.

A plain reading of the aforesaid sub-clause-1 of the Clause No.1 of the said Government Resolution would only state that part-timer must have completed 10 years of service as on 10th February, 2006 and worked 6 hours a day and such service should not be protected by order of a Court or Tribunal as the case may be.

There is no dispute raised by the respondents that the aforesaid office orders dated 5th January, 1994 and 26th September, 1995, issued by the respondent No. 2, are got-up ones; thus, the respondent cannot be allowed to object the claim of petitioner only on the ground that he was paid less than actual work; rather, when it has come on record before this Court that there were lesser wages paid by the respondents being State to its part-time employees (the petitioner) who hail from lower strata of society, such an objection raised by the respondent is not only to be condemned but merits outright rejection. According to my view, petitioner has fulfilled the conditions as stipulated in the sub-clause 1 of the Clause No. 1 of the aforesaid Government Resolution dated 1st May, 2007.

Likewise, there is no dispute that the petitioner was appointed as a part-timer against a sanctioned post. Even assuming for the timing being that it was ad-hoc post, then also in view of the subsequent modification in the aforesaid Government Resolution dated 1st May, 2007 by the State, vide its aforesaid resolution dated 16th May, 2008, the claim of the petitioner cannot be discarded on the ground that said modification came in later in point of time. The said resolution would not remotely indicate that it would not be applicable to the cases which were already decided/rejected/closed; rather, considering the main object of the said resolution dated 1st May, 2007, whereby the State decided to offer permanent employment to its part-timer employees, albeit as One-Time Measure, thus, the arguments of the learned AGP run counter to said laudable object merits rejection.

Thus, in view of the aforesaid observation, discussion and reasons, it is very much clear that the respondent No.1, without appreciating the aforesaid aspect and ignoring the aforesaid office orders issued by respondent No. 2, erroneously rejected the claim of the petitioner.

Having found that the impugned decisions of respondents are erroneous as contrary to the record, whereby the petitioner was deprived of the benefit of aforesaid Government Resolution dated 1st May, 2007; thus, the impugned decisions dated 5th March, 2007 and 25th September, 2007 respectively, are hereby quashed and set aside as it is violative of Articles 14 and 16 of the Constitution of India. It is held that the petitioner satisfied all four criteria set out in Clause 1 of the aforesaid Government Resolution dated 1st May, 2007, and is thereby, entitled to be appointed as permanent employee. Consequently, the petitioner is entitled to be granted benefit of aforesaid Government Resolution dated 1st May, 2007 by the respondents.

At this stage, it requires to be noted that when this petition was filed in the year 2010, it appears that petitioner was aged about 45 years as stated in supporting affidavit of the petition; thus, by now, petitioner must have attained the age of superannuation. In that view of the matter, there is no purpose of directing the respondent to reinstate the petitioner to the post of Class-IV in the respondent No. 2.

Yet, considering totality of the aforesaid facts and circumstances of the present case, pendency of this litigation for quite long time for about 15 years, at the relevant point of time the petitioner was not paid adequate wages, balancing equity between the parties and when the petitioner has not actually rendered services in respondent No. 2-Institute for these many years, instead of granting full back wages and all retirement benefits, I would like to direct the respondents to grant the following benefits to the petitioner:

16.1. The respondents are directed to pass an appropriate order to treat the petitioner appointed as permanent employee w.e.f. 1st July, 2007 till he attained the age of superannuation.

16.2. The petitioner is entitled to receive 50% of back wages for the aforesaid period. The petitioner is also entitled to receive 50% of the benefit of leave encashment and gratuity. Nonetheless, the petitioner is not entitled to receive any pensionary benefits as per New Pension Scheme, as he could not be part of New Pension Scheme which commenced w.e.f. 1st May 2005.

16.3. The respondent is hereby directed to calculate the aforesaid service and retirement benefits, i.e., 50% of back wages and retirement benefits as aforesaid, on or before 31st March, 2026. Consequently, the respondents are directed to pay the aforesaid amount to the petitioner on or before 30th April, 2026, failing which petitioner will entitle to receive the aforesaid amount with interest at the rate of 6% from 1st May, 2026, till its realization.

Before parting, it is hereby observed that while to calculate the aforesaid amount, any assistance of the petitioner is required, i.e., to get proof of his actual date of birth by the respondents, the same shall be procured from the petitioner and petitioner shall have to provide the proof of his date of birth, if so, demanded by the respondents.

In view of the foregoing reasons and conclusions, the present petition is partly allowed. Rule made absolute, to the aforesaid extent. No order as to costs.