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SCA/15183/2011 6/ 6 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 15183 of 2011
With
SPECIAL
CIVIL APPLICATION No. 15567 of 2011
To
SPECIAL
CIVIL APPLICATION No. 15644 of 2011
=========================================
BHOGILAL
R DAMOR & 78 - Petitioner(s)
Versus
SECRETARY
& 3 - Respondent(s)
=========================================
Appearance
:
SPECIAL CIVIL APPLICATION NO. 15183 OF 2011
MR ND BUCH for DJ TIWARI for Petitioners
MR NIRAG PATHAK ASST. GOVERNMENT PLEADER for Respondents SPECIAL CIVIL APPLICATION NO. 15210 TO 15237 OF 2011 MR
ND BUCH for GAURAVKUMAR DARJI for Petitioners. MS MEGHA CHITALIYA
ASST. GOVERNMENT PLEADER for Respondents SPECIAL CIVIL APPLICATION NO. 15210 TO 15237 OF 2011 MR
ND BUCH for GAURAVKUMAR DARJI for Petitioners. MS JIRGA JHAVERI
ASST. GOVERNMENT PLEADER for Respondents
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE ANANT S. DAVE
Date
: 17/10/2011
ORAL
ORDER
1. Rule.
Respective learned Asst. Government Pleaders waive service of rule in each of the petitions.
2. The
petitioners in all these writ petitions filed under Article 226 of the Constitution of India, seeking benefits of a scheme for regularization of daily rated labourers of the Gujarat Agricultural University which came to be partly modified and approved as per the judgment dated 18th
January, 2001 in Civil Appeal No.692 of 2001 in the case of Gujarat Agricultural University vs. Rathod Labhu Bechar and Ors. on the ground that the
petitioners are daily rated workmen who fulfill all eligible criteria for being regularized as per the scheme and also part of 5,100 daily rated labourers as referred to in the affidavit of Mr. G.A. Shah, Dy. Secretary to the Government, Agricultural Department, Govt. of Gujarat in the aforementioned judgment.
3. Mr.
Nirad Buch, learned advocate for the petitioners submit that upon bifurcation of Gujarat Agricultural University to four different Universities the petitioners are now serving under respondent Nos. 2, 3 and 4 who have upon a request and claim made by the petitioners recommended their case to the State of Gujarat but somehow no decision is taken and earlier communication was dated 2nd February, 2009 addressed by the Department of Agricultural and Cooperation to Vice Chancellor of respondent University. The claim of the petitioners was not accepted on the basis of the decision of the Apex Court in the case of Secretary, State of Karnataka and Ors. vs. Umadevi [(2006) 4 SCC 1] but later on University issued a notification on 3.9.2010, by which, a decision was taken with regard to certain posts sanctioned by the State Government as per scheme 1 and employees under scheme 2 to be placed in scheme 1 as and when such posts are fallen vacant and further by communication dated 3rd February, 2011 by Registrar of the University to the Department of Agricultural and Cooperation, the respondent University had clarified that about 890 vacancies which were sanctioned earlier and such vacancies have fallen vacant due to retirement/death/resignation of employees no employees were regularized but 323 employees under scheme 2 were made permanent by fixing monthly salary and the petitioners have also approached Government Labour Officer of District:Banaskantha with regard to their claim on par with benefits conferred to daily rated workmen of the University under the scheme approved by the Apex Court in the case of Gujarat Agricultural University (supra).
4. In
the above backdrop of factual aspect, Mr. Nirad Buch, learned advocate appearing for the petitioners have placed reliance on the decision of Secretary,
State of Karnataka and Ors. vs. Umadevi [(2006) 4 SCC 1] and further decision in the case of State of Karnataka and Ors. v. M.L. Kesari [(2010) 9 SCC 247] and submitted that in the case of the petitioners no one time measure either directed under para 3 of Secretary, State of Karnataka and Ors. vs. Umadevi or even as per the scheme is taken. It is further submitted that State of Karnataka and Ors. vs. M.L. Kesari and Ors. in
paragraphs 9, 10 and 11, the Apex Court held as under:
"9. The
term "one-time measure" has to be understood in its proper perspective. This would normally means that after the decision in Umadevi, each department or each instrumentality should undertake a one-time exercise and prepare a list of all casual, daily-wage or ad hoc employees who have been working for more than ten years without the intervention of courts and tribunals and subject them to a process verification as to whether they are working against vacant posts and possess the requisite qualification for the post and if so, regularise their services.
10. At
the end of six months from the date of decision in Umadevi, cases of several daily-wage/ad hoc/casual employees were still pending before courts. Consequently, several departments and instrumentalities did not commence the one-time regularization process. On the other hand, some government departments or instrumentalities undertook the one-time exercise excluding several employees from consideration either on the ground that their cases were pending in courts or due to sheer oversight. In such circumstances, the employees who were entitled to be considered in terms of para 53 of the decision in Umadevi, will not lose their right to be considered for regularization, merely because the one-time exercise was completed without considering their cases, or because the six-month period mentioned in para 53 of Umadevi has expired. The one-time exercise should consider all daily-wage/ad hoc/casual employees who had put in 10 years of continuous service as on 10.4.2006 without availing the protection of any interim orders of courts or tribunals. If any employer had held the one-time exercise in terms of para 53 of Umadevi, but did not consider the cases of some employees who were entitled to the benefit of para 53 of Umadevi, the employer concerned should consider their cases also, as a continuation of the one-time exercise. The one-time exercise will be concluded only when all the employees who are entitled to be considered in terms of para 53 of Umadevi, are so considered.
11. The
object behind the said direction in para 53 of Umadevi is twofold. First is to ensure that those who have put in more than ten years of continuous service without the protection of any interim orders of courts or tribunals, before the date of decision in Umadevi was rendered, are considered for regularisation in view of their long service. Second is to ensure that the departments/instrumentalities do not perpetuate the practice of employing persons on daily-wage/ad hoc/casual basis for long periods and then periodically regularise them on the ground that they have served for more than ten years, thereby defeating the constitutional or statutory provisions relating to recruitment and appointment. The true effect of the direction is that all persons who have worked for more than ten years as on 10.4.2006 [the date of decision in Umadevi ] without the protection of any interim order of any court or tribunal, in vacant posts, possessing the requisite qualification, are entitled to be considered for regularization. The fact that the employer has not undertaken such exercise of regularization within six months of the decision in Umadevi or that such exercise was undertaken only in regard to a limited few, will not disentitle such employees, the right to be considered for regularization in terms of the above directions in Umadevi as a one-time measure."
5. In
view of the above, it is submitted that all the petitioners who have completed herein more than 10 years and 240 days in each of the calender year and also qualified as per scheme approved by the Apex Court in the case of Gujarat Agricultural University (supra) even as per one time mearsure desire to be considered for regularization may be in a face manner since number of posts which have fallen vacant against which the petitioners can be considered and at the same time the respondent No.1 State of Gujarat and/or alternatively, the Government Labour Officer, Banaskantha may expedite the process and confer similar benefits in accordance with law.
6. Leaned
AGP appearing in respective petitions submit that decision in accordance with law will be taken as early as possible.
7. However,
on perusal of the decisions as above, Gujarat Agricultural University, Secy., State of Karnataka v. Umadevi and State of Karnataka and Ors. v. M.L. Kesari those daily rated workmen who have completed 10 years of service and also completed 240 days in each calender year atleast deserves as a part of one time measure to be considered for regularization and the respective authorities are duty bound to consider such measure so that what is explained in the case of State of Karnataka and Ors. v. M.L. Kesari in paragraphs 9, 10 and 11 that long service rendered by the workmen may not be deprived benefits of regularization. In the case on hand the petitioners are entitled to get benefit of one time measure as contained in para 53 in the case of Secy., State of Karnataka v. Umadevi. In the above circumstances, the respondent authorities have to examine case of each of the petitioners vis-a-vis the post on which the petitioner-workmen is working, qualification contained therein, nature of duty discharged by such workmen, in light of the scheme approved by the Apex Court in Gujarat Agricultural University and also process under taken by the petitioner-workmen before Government Labour Officer, Banaskantha, be expedited and preferably within six weeks as far as possible and necessary information sought for by such officer be furnished for the authorities as early as possible so that decision in accordance with law can be taken by such officer.
8. With
the aforesaid, at this stage the petitions stand disposed of. Rule is made absolute to the above extent.
[ANANT
S. DAVE, J.]
//smita//
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