Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(Guj) 890

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
BHARGAV D. KARIA, J.
RAMANBHAI BECHARBHAI VAGHELA - Appellant
Versus
STATE OF GUJARAT - Respondent
SPECIAL CIVIL APPLICATION NO. 16082 of 2020
With
CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2021
In SPECIAL CIVIL APPLICATION NO. 16082 of 2020
With
CIVIL APPLICATION (FOR BRINGING HEIRS) NO. 2 of 2021
Decided On : 11-08-2021

Advocates Appeared:
For The Respondent: MR HARDIK C RAWAL, MRS MH RAWAL
For The Respondent: MR KURVEN DESAI, AGP, MR HS MUNSHAW

Point of law: Engaging persons or entrusting duties and functions of municipality to persons who are not selected and recruited (i) by the municipality; (ii) in accordance with the procedure prescribed by the Act and the Rules and the action of getting duties and functions of municipality executed by such non-employees, amount to breach of statute's mandate and violation of above mentioned provision. It would also tantamount to acting against basic tenets of public employment.

Headnote:
Constitution of India,1950 – Article 223 and 243Q - Gujarat Provincial Municipal Corporations Act, 1949 – Section 47,50,87,3A(1) and 271 - Draft amendment – Tender - Legal heirs - Learned advocate tendered draft amendment which was granted - However, inadvertently, order is not transcribed and draft amendment is not carried out - In view of this fact, draft amendment tendered by learned advocate is allowed in terms of draft - To be carried out forthwith - Learned advocate submitted that in view of draft amendment being granted, Civil Application is not pressed - Civil Application is disposed of as not pressed - Learned advocate further submitted that Civil Application is by the legal heirs of original petitioner who expired after filing of the petition - It was prayed that legal heirs of original petitioner be permitted to be joined as petitioner in the main petition- Whether petitioners agreed to join outsourcing agencies or not.
Finding of the court : In view of above dictum of law, practice adopted by respondent no.2-Corporation is highly deprecated by this Court in aforesaid decision - Irrespective of procedure and practice adopted by respondent no.2-Corporation, there is a clear violation of order passed by State Government and such violation is a continuous violation by not transferring employees of Gram Panchayats which were merged by notification who were working as on same terms and conditions which governed them - Meaning thereby that the petitioners who were daily wagers working in respective Gram Panchayats which is admitted by respondent - Corporation in the statements produced along with affidavit in reply ought to have been transferred as an employee of respondent no.2-Corporation on same terms and conditions which were governing them.
Result: Petition allowed.

JUDGMENT :

1. Heard learned advocate Mr. Hardik C. Rawal for the petitioners, learned advocate Mr. H.S. Munshaw for respondent no.2 and learned Assistant Government Pleader Mr. Kurven Desai for the respondent-State through video conference.

2. Rule returnable forthwith. Learned Assistant Government Pleader Mr. Kurven Desai waives service of notice of rule on behalf of respondent-State and learned advocate Mr. H.S. Munshaw waives service of notice of rule on behalf of respondent no.2

3. Learned advocate Mr. Hardik C. Rawal tendered the draft amendment on 6.8.2021 which was granted. However, inadvertently, order is not transcribed and therefore, the draft amendment is not carried out.

4. In view of this fact, the draft amendment tendered by the learned advocate Mr. Raval on 6.8.2021 is allowed in terms of the draft. To be carried out forthwith.

5. Learned advocate Mr. Rawal submitted that in view of the draft amendment being granted, Civil Application No.1/2021 is not pressed. Civil Application no.1/2021 is disposed of as not pressed.

6. Learned advocate Mr. Rawal further submitted that Civil Application No.2/2021 is by the legal heirs of original petitioner no.5 who expired on 12.12.2020 after the filing of the petition. It was therefore, prayed that the legal heirs of original petitioner no.5 be permitted to be joined as petitioner nos. 5.1 to 5.3 in the main petition.

7. Considering the above submissions, Civil Application No.2/2021 is allowed. The applicants of Civil Application No.2/2021 are permitted to be joined as petitioner no.5/1 to 5/3 as legal heirs of late Baldevbhai Becharbhai Vaghela who expired on 12.12.2020 after filing of this petition. Civil Application No.2/2021 stands disposed of accordingly.

8. Learned advocate Mr. Rawal further submitted that petitioner no.24 Chandrakant Dahyabhai Makwana has addressed a letter dated 9.8.2021 with a prayer to withdraw the petition qua him. Learned advocate Mr. Rawal therefore, submitted that petitioner no.24 be permitted to withdraw the petition.

9. Permission is granted. Petition stands disposed of as withdrawn qua petitioner no.24 and accordingly, his name is deleted from the cause title.

10. By this petition under Article 226 of the Constitution of India, the petitioners has prayed for the following reliefs :

“8. The petitioners therefore pray that this Hon’ble Court may;

A. Be pleased to allow this petition

B. Be pleased to issue a writ of mandamus or any other appropriate writ, order or direction by directing the respondents herein (I) to continue the service of the petitioners as Safai Kamdars on the same terms and condition on which they are working with the respective Gram Panchayats by treating them as employees of Gandhinagar Municipal Corporation,(II) to continue paying the salaries after clearing the unpaid salaries to the petitioners, (III) not to replace the petitioners services by another set of daily wage, temporary, outsourced employees through private contractors by resorting to oral/ written termination of the petitioners services,(IV) give the benefits of minimum pay scale of class IV post to the petitioners as confirmed and directed by the oral dated 09-05-2019 by the Division Bench of this Hon’ble Court in Letters Patents Appeal no. 1155 of 2019 at Annexure-I, and (V) to follow the Judicial Pronouncements of this Hon’ble Court in letter and spirit which are annexed at Annexure- F,G and H.

C. Pending admission and final disposal of the present Special Civil Application be pleased to direct the respondents herein (I) to continue the services of the petitioners as Safai Kamdars on the same terms and conditions on which they are working with the respective Gram Panchayats by treating them as employees of Gandhinagar Municipal Corporation, (II) to continue paying the salaries after clearing the unpaid salaries to the petitioners,(III) not to replace the petitioners services by another set of daily wage, temporary, outsourced employees through private contractors by reso

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