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2022 Supreme(Guj) 670

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
BIREN VAISHNAV, J.
Hasmukhbhai Chimanlal Tapodhan – Appellant
Versus
State Of Gujarat – Respondent
R/SPECIAL CIVIL APPLICATION NO. 6852 of 2020, 753 of 2022, 1976 of 2022, 2421 of 2021, 2418 of 2021, 3520 of 2021, 3523 of 2021, 8259 of 2021, 10662 of 2020, 6605 of 2021, 6948 of 2020, 7488 of 2021, 8367 of 2021, 8458 of 2021, 8537 of 2021, 8679 of 2020, 8629 of 2021, 9057 of 2021, 8766 of 2021, 9056 of 2021, 8985 of 2020, 9032 of 2020, 9127 of 2020, 9147 of 2020, 9344 of 2020, 10142 of 2021, 9770 of 2020, 9864 of 2021, 11899 of 2021, 12608 of 2021, 9739 of 2021, 10111 of 2021, 10191 of 2020, 10659 of 2020, 10180 of 2020, 10512 of 2020, 10298 of 2021, 10514 of 2020, 11763 of 2020, 14106 of 2020, 11634 of 2021, 11889 of 2021, 12061 of 2020, 12071 of 2020, 12695 of 2020, 12246 of 2020, 12761 of 2021, 12551 of 2020, 14144 of 2020, 12865 of 2021, 12800 of 2021, 13978 of 2020, 13582 of 2020, 15600 of 2020, 15602 of 2020, 15100 of 2020, 15686 of 2021, 15846 of 2020, 15867 of 2021, 15734 of 2020 CIVIL APPLICATION (FIXING DATE OF EARLY HEARING) NO. 1 of 2021 In , 15734 of 2020, 16828 of 2021, 16149 of 2020, 16235 of 2020, 16226 of 2020, 16773 of 2020, 17713 of 2021, 777 of 2021, 88 of 2021, 17420 of 2021, 277 of 2020, 1328 of 2020, 1511 of 2022, 4514 of 2021, 8421 of 2020, 12678 of 2021, 18154 of 2021, 1 of 2021, 19004 of 2021, 19250 of 2021, 19262 of 2021, 19547 of 2021, 19278 of 2021, 19544 of 2021, 459 of 2022
Decided On : 19/07/2022

Advocates:
Advocate Appeared:
FOR THE APPELLANT : MR SHALIN MEHTA, SR. COUNSEL assisted by MS SHIKHA D. PANCHAL & MS ADITI S. RAOL, MR RUSHANG D MEHTA, MR DIPAK R DAVE, MS ASHLESHA PATEL, MR DEEPAK N KHANCHANDANI, MR N D SONGARA, MS VIDHI J BHATT, MR GAURAV K. MEHTA
FOR THE RESPONDENT: MR PRANAV V SHAH, MR UTKARSH SHARMA, MR KURVEN DESAI, MR. SOAHAM JOSHI

Point of Law: An employee engaged in same work cannot be paid less than another who performs the same duties and responsibilities such an action is demeaning, strikes at the very foundation of human dignity.

Headnote:
Constitution of India, 1950 - Article 226 - Bombay Contingency Expenditure Rules, 1959 - Rule 9 (72) - Principle of 'equal pay for equal work' - Interpretation of Circular - Denial of benefit of Circular - In this group of petitions, petitioners, most of whom are serving from years, ranging between 4 years to 30 years and most of whom are being paid an amount around Rs.1350 per month, as contingent expense of the Government, are sought to be terminated by their respective offices, under written instructions of the Government of Gujarat, Finance Department, with effect from today i.e. 31st May, 2012 after office hours. Whether petitioners are entitled to any adinterim protection from this Court or not - The stand of State therefore that in case of belated challenge, or working for less than four hours, working for 29 days, or on a project, persons engaged on outsourcing, persons whose engagement is without an appointment orders, or not working on sanctioned posts or working in Panchayats is again a stand of State setting at naught very purpose for which Circular was brought forth. The rejection of cases on such grounds akin thereto is bad and deserves to be set aside. (Para 21)
Finding of the court: 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 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 application of the parameters of the principle of ‘equal pay for equal work’ summarized by us in paragraph 42 above. However, insofar as instant aspect of the matter is concerned, it is not difficult for us to record the factual position - 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 pay-scale of regularly engaged Government employees, holding the same post - Petitioners are held to be entitled to the benefit of Circular dated 16.7.2019 and, therefore, all these petitions are allowed and the rejections if any, on these grounds as mentioned hereinabove are quashed and set aside.
Result: Civil Application disposed of

JUDGMENT :

1. Rule, returnable forthwith. Respective AGPs waive service of Rule on behalf of the respondent-State in respective petitions.

2. With the consent of the learned advocates appearing for the respective parties, all these petitions were taken up for its final disposal.

3. In all these petitions, under Article 226 of the Constitution of India, the issue for consideration before this Court is the interpretation of the Circular dated 16.7.2019 issued by the Finance Department, State of Gujarat. This circular was issued in light of the decision of the Division Bench in a group of Letters Patent Appeals No. namely; LPA No.1155 of 2019 and allied appeals in SCA Nos.7462 of 2012 dated 9.5.2019.

4. Based on the submissions made by the learned advocates for the respective petitioners and the learned AGPs on behalf of the State of Gujarat, 8 categories were carved out for adjudication and interpretation of the circular. Following are the categories:

(1) Challenge to the entitlement of the benefit of the circular because of the rejection of cases those persons who are appointed for less than four hours.

(2) Rejection on the ground that the petitioners have approached the Court belatedly after termination.

(3) Rejection on the ground that such persons who are appointed on fixed pay basis and for 29 days in a month with one day’s artificial break are not entitled to the benefit of the Circular dated 16.7.2019.

(4) Rejection on the ground that the persons working on outsourcing by virtue of the GRs dated 10.2.2006, 1.4.2010 and 25.4.2012 cannot get the benefit of the Circular dated 16.7.2019. This included a category of persons engaged on project work.

(5) Denial of the benefit of the Circular dated 16.7.2019 on the ground that there are no orders of appointments issued to the petitioners.

(6) Denial of the benefit of the Circular dated 16.7.2019 on the ground that the petitioners are part time employees who were appointed after 31.5.2012 and are therefore, not entitled to get the benefit of the circular dated 16.7.2019 as there was a complete ban on engaging part time employees as per the GR dated 25.4.2012.

(7) Denial of the benefit to such Class-IV employee on the ground that they are not working on sanctioned posts.

(8) Persons whose cases are rejected on the ground that they are working with the Panchayat.

5. Factual background leading to the issuance of the circular dated 16.7.2019 is as under:

5.1 As per sub Rule (72) of Rule 9 of the Bombay Contingency Expenditure Rules, 1959, the administrative heads of the offices, districts / departments were given powers to appoint part time employees for doing cleaning work and serving water in the offices in which they were engaged. This was a practice prevalent in the offices at the relevant time before the issuance of the circular of the Government dated 10.2.2006.

5.2. The Government through the Finance Department issued a circular dated 10.2.2006 which circular provided that a decision has been taken that the practice of engaging such part time employees ought to be discontinued with immediate effect. The powers to make such appointments given to the administrative heads was withdrawn. The circular further provided that on and after this GR, where these offices need the services of cleaning and serving of water etc., such services should be obtained by outsourcing. Only in exceptional cases should the department engage and appoint part time employees. Such appointments should be made only after prior approval of the Finance Department. The GR was made applicable to the State Government, Panchayats, Boards and Corporations and those institutions getting grant from the Government.

5.3. This apparently was with the purpose of reducing financial burden on the State by avoiding regularizing such part time employees in service. After this Government Resolution, the part time employees who were so engaged started facing the action of their services being terminated without following the procedure of

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2022 Supreme(Guj) 670

Point of Law: An employee engaged in same work cannot be paid less than another who performs the same duties and responsibilities such an action is demeaning, strikes at the very foundation of human dignity.

Cases Referred (7)