LPA/67920/2006 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL No. 679 of 2006 With LETTERS PATENT APPEAL No. 680 of 2006 To LETTERS PATENT APPEAL No. 682 of 2006 With LETTERS PATENT APPEAL No. 779 of 2006 With LETTERS PATENT APPEAL No. 781 of 2006 With CIVIL APPLICATION No. 4773 of 2006 To CIVIL APPLICATION No. 4775 of 2006 With CIVIL APPLICATION No. 4777 of 2006 With CIVIL APPLICATION No. 5818 of 2006 With CIVIL APPLICATION No. 5839 of 2006 With CIVIL APPLICATION No. 10115 of 2008 To CIVIL APPLICATION No. 10118 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE BHAGWATI PRASAD Sd/- HONOURABLE MR.JUSTICE D.H.WAGHELA Sd/- ============================================= = 1 Whether Reporters of Local Papers may be allowed to see the judgment ? NO 2 To be referred to the Reporter or not ? NO 3 Whether their Lordships wish to see the fair copy of the judgment ?NO 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?NO 5 Whether it is to be circulated to the civil judge ?NO ============================================= = VASAVA KANCHANBHAI MAGANBHAI - Appellant(s) Versus LPA/67920/2006 2/7 JUDGMENT STATE OF GUJARAT & 2 - Respondent(s) ============================================= = Appearance : MS SADHANA SAGAR for Appellant(s) MR KP RAWAL AGP, MS ASMITA PATEL AGP and MS HANSA PUNANI AGP for Respondent(s) ============================================= = CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE D.H.WAGHELA Date : 25/09/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE D.H.WAGHELA) 1. By way of these appeals, under Clause 15 of the Letters Patent, the appellants, part-time employees under the State Government, have challenged the common judgment by which their petitions for regularization have been rejected. Not only that no ground was made out for interfering with the finding and reasoning of the learned single Judge, but the issues sought to be raised in the appeals have by now been squarely covered by the Constitution Bench judgment of the Supreme Court in Secretary, State of Karnataka and others v. Umadevi and others [(2006) 4 SCC 1] and the common judgment dated 18.9.2006 of this Court reported in 2007 (1) GLH 88. 2. It was fairly conceded that the final observations made in the latter judgment of this Court were squarely applicable in the facts of the present cases and, therefore, may be adopted as the observations in these appeals. "16.3 Therefore, but for the post- LPA/67920/2006 3/7 JUDGMENT decisional hearing before this Court and the offer of re-employment for some for some time and the offer of notice pay and compensation for the rest, the action of termination could be held to be arbitrary, unjust and unfair. However, again in view of the observations of the Hon'ble Apex Court in Secretary, State of Karnataka v. Umadevi (supra) the petitioners could not necessarily be granted the relief of reinstatement even in such circumstances. Nor is there now the question of their regularization in service or reinstatement or continuation in service, even if they were full-time temporary employees. Nor is it possible to hold, in the facts of the present cases, that the inaction of the respondents in not regularizing their services and the decision to, directly or indirectly, terminate their services were otherwise illegal or mala fide. 16.4 The fact of an employee being employed as a part-time employee does not make any difference insofar as he remains an employee at least in terms of the express or implied contract of service and continues to be entitled to fundamental rights as a citizen. Therefore, if his rights cannot be better than those of a temporary or ad-hoc employee, they cannot be worse either. If a LPA/67920/2006 4/7 JUDGMENT temporary or ad-hoc employee were entitled to notice or notice pay as a part of fair procedure, a part-time employee would as well be entitled to notice unless it is waived or made redundant by way of an express condition of service overriding the rules. In that view of the matter, the question whether the provisions of the GCSR apply to such part- time temporary employees or not, recedes into the background and becomes irrelevant. 17. In the above circumstances, the recent resolution dated 15.7.2006 of the Government is held to be fulfilling the constitutional requirements of fairness and preambular promise of socio-economic justice in action and it is required to be fully and uniformly implemented so as to partly take care of the shock and suffering of the employees whose services have been abruptly terminated, or who are facing termination by virtue of the earlier resolution dated 10.2.2006. 17.1 However, the cases of the petitioners who have been in service for more than ten years against duly sanctioned vacant posts are on a different footing and they are required to be considered on different basis in light of the observations made in paragraph 53 of the judgment of the Secretary, State of Karnataka v. Umadevi LPA/67920/2006 5/7 JUDGMENT (supra). There is already for them the direction of the Supreme Court that the State Governments and their instrumentalities should take steps to regularize, as a one- time measure, the services of such irregularly appointed employees who have worked for ten years or more in duly sanctioned posts, but not under the cover of orders of Courts or Tribunals. Since many of the petitioners employed for more than ten years and for six hours or more per day are stated to have worked against sanctioned posts, the respondents are required to consider such cases on the basis of the facts and circumstances of each case. It may be pertinent to add and observe that the State Government, while prescribing the minimum rates of wages in scheduled employment under the Minimum Wages Act, 1948, usually provide for payment of full wages in case the hours of work exceed five hours per day. Therefore, ideally, a part-time employee working for six or more hours per day since more than ten years should be considered as a full-time employee for the benefit of regularization, if he is otherwise eligible and covered by the exceptional clause and directions contained in paragraph 53, as mentioned hereinabove. Age-bar cannot, in the nature of things, be invoked in consideration of such cases and for effectuating the mandate. Since LPA/67920/2006 6/7 JUDGMENT the averments in particular petitions of the petitioner actually working full time, though treated and branded as a part-timer, are neither substantiated nor specifically traversed, the respondents have to be left to consider such cases in light of actual facts and the above direction of the Hon'ble Apex Court". 3. Accordingly, subject to the above observations and directions to consider the cases of the eligible employees under the direction of the Supreme Court contained in paragraph 53 of the judgment in Secretary, State of Karnataka v. Umadevi [(2006) 4 SCC 1], the prayers for the relief of regularization are denied. As far as the grievance against termination of service and prayers for reinstatement or protection against termination are concerned, they are disposed with the direction to the respondents to comply with the G.R. dated 15.7.2006 and pay to such petitioners who are already discharged and not re-employed or proposed to be discharged, the amounts of notice pay and compensation in terms of the said G.R. Protection or injunction against termination of service is denied with the clarification that it should not be understood to mean that all the petitioners whose services are required and who are presently in service, with or without an interim injunction of the court, have to be necessarily discharged by the respondents. Since raison d'etre and justification for the apprehension of huge future liabilities in respect of such employees are removed by the Constitution Bench judgment of the Supreme Court in Secretary, State of Karnataka v. Umadevi (supra), the respondents may as well LPA/67920/2006 7/7 JUDGMENT consider the issue of redefining the term and conditions of such contracts of service on a just and reasonable basis. 4. The appeals are partly allowed to the aforesaid extent, with no order as to costs. Interim relief, in whichever matters it is operating, stands vacated. The civil applications are disposed as not surviving in view of this judgment. Sd/- ( BHAGWATI PRASAD, J.) Sd/- ( D.H.WAGHELA, J.) (KMG Thilake)