1. By way of these petitions, the petitioners have prayed for following reliefs:
[A] That Your Lordships be pleased to issue an order, direction and/or with the nature of mandamus and/or any other appropriate writ , order or direction, directing the respondent authority to grant the minimum timescale of pay to the petitioners involved in this petition, which is revised as per fifth pay Commission recommendation and now revised as per the Sixth Pay Commission recommendation;
[B] Pending admission and final disposal of this petition, Your Lordships may be pleased to direct the respondent, their aghent and srvants not to change the service condition of the present petitioners in the interesto of justice.
[C] xxx
[D] xxx”
2. The short facts leading to filing of this petitions are that the petitioners herein, are working as Sweeper with the respondentNagar Palika for last 20 to 25 years. They had been made permanent in the year 2001. It is the case of the petitioners that despite issuing letter of permanency, the respondents have not extended the benefits of fifth and sixth Pay Commission in their favour.
2.1. Being aggrieved by the action of the respondents, the petitioners filed S.C.A. No. 10729 of 2010, which came to be disposed of on 23.6.2011 with a liberty to the petitioners to make representation to the respondents, which was to be decided expeditiously. In pursuance of the said order, the petitioners made representations to the respondent Nagar Palika for granting the benefits of Fifth Pay Commission. However, the respondent No.1 rejected the said representations. Hence, these petitions.
3. Mr. Mishra, learned counsel for the petitioners submitted that the petitioners possess requisite qualification for the post of Sweeper. However, the respondents have not extended the benefits of Fifth and Sixth Pay Commissions to the petitioners, though other employees, who do not possess the requisite qualification have been continued in service and have been granted th said benefits.
3.1. He further submitted that the respondentMunicipality has fixed 45% of funds as establishment expenditure for the purpose of payment of salaries and other funds to the employees. However, in the present case the establishment expenditure is only 19.96% and therefore, no financial difficulty or crisis shall be faced by the Municipality if the present petitioners are extending the benefit of Fifth Pay Commission.
3.2. In support of this contentions, he relied upon the decision of the Apex Court in the case of Secretary, State of Karnataka and Ors Vs. Umadevi (3) and Ors, reported in 2006(4) SCC 1, more particularly paragraph 53, which reads as under: “53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa, R.N. Nanjundappa and B.N. Nagarajan and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the courts or of tribunals. The question of regularization of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases abovereferred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularize as a onetime measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The procss must be sent in motion within six months from this date. We also clarify that regularization, if any already made, but not sub judice, need not be reopened based on this judgement, but there should be no further by passing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme.”
3.3. He further relied upon the unreported decision of this Court passed in S.C.A. No. 15183 of 2011 and other allied matters, on 17.10.2011, more particularly paragraph Nos. 4, which reads as under
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 “onetime 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 onetime exercise and prepare a list of all casual, dailywage 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 dailywage/ad hoc/casual employees were still pending before courts. Consequently, several departments and instrumentalities did not commence the onetime regularization process. On the other hand, some government departments or instrumentalities undertook the onetime 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 onetime exercise was completed without considering their cases, or because the sixmonth period mentioned in para 53 of Umadevi has expired. The onetime 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 onetime 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 onetime exercise. The onetime 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. Secondis to ensure that the departments/instrumentalities do not perpetuate the practice of employing persons on dailywage/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 onetime measure.”
3.4. Apart from the above two decisions, Mr. Mishra, has also relied upon the following decisions:
(i) In the case of U.P. State Electricity Board Vs. Pooran Chandra Pandey and Ors, reported in 2007(7) Supreme Court 374,
(ii) In the case of Workmen of Bhurkunda Colliery of Central Coalfields Ltd. & Anr. Vs. Management of Bhurkunda Colliery Ltd. & Anr, reported in 2006 1 CLR 635.
(iii) In the case of Harjinder Singh Vs. Punjab State Werehousing Corporation, reported in 2010 1 CLR 884.
(iv) In the case of Krishan Singh Vs. Executive Engineer, Haryana State Agricultural Marketing Board, Rohtak (Haryana), reported in 2010 1 CLR 920.
3.5. He has also drawn the attention of this Court to the order dated 23.11.20111 passed by the respondent No.1, whereby the respondent No.1 has sanctioned 34 posts of Sweeper in the department. He submitted that since the petitioner are 23 in numbers and they have been working in the department since 1990, the respondents ought to have regularized their service.
4. Mr. J.K. Shah, learned AGP appearing for the respondent No.1 submitted that pursuant to the proposal dated 8.11.2011 of respondentMunicipality, the respondent No.1 sanctioned different posts in the Karamsad Nagarpalika including 34 posts of sweeper. So far as the aspect of grant of monetary benefit is concerned, it is the prerogative of the respondentMunicipality to decide th same.
5. Mr. Sanchanwala, learned advocate for the respondent No.2 submitted that President of the Municipality has no power to make appointment and since the petitioners were appointed for the said post by the President and not by proper procedure, the services of the petitioners cannot be regularized.
5.1. In support of his contentions, he relied upon the decision of this Court, in the case of Dineshkumar G. Chavda and Ors, Vs. State of Gujarat and Ors, reported in 2007(3) GLR 1911, in the case of Manoj Nagardas Panchhiwal Vs. State of Gujarat and Ors, reported 2004(1) GLR 846.
6. I have heard Mr. Mishra, learned counsel for the petitioners, Mr.
J.K. Shah, learned AGP for respondent No.1 and Mr. Deepk Sanchelal, learned counsel for the respondent No.2 and perused the material on record as well as the decisions relied upon by learned counsel appearing for the respective parties.
7. It emerges from the record that the petitioners have been continuously working with the respondentMunicipality for the last about 22 to 25 years and their services have been made permanent in pursuance of the order dated 10.1.2001, passed by the President of the respondentMunicipality on the basis of General Body Meeting, held on 8.1.2001, vide Resolution No. 277. In the case of Umadevi (supra), the Apex Court has issued direction to regularize the services of such irregularly appointed employees, who have worked for a minimum period of ten years or more on duly sanctioned posts. It is not in dispute that the petitioners have been working continuously with the respondentMunicipality since last more than 10 years and that to on sanctioned posts. Therefore, in my opinion, they are entitled for regularization in view of the decision of the Apex Court in Umadevi's (supra) case .
8. Keeping in mind the facts of the present case and the principle laid down in the case of Umadevi and M.L. Kesari (Supra), this Court is of the view that since 34 posts of Sweeper are sanctioned by the State Government vide communication dated 23.11.2011 and the petitioners are 23 in number, their services are required to be regularized. It appears from the record that the respondent Municipality is maintaining 45% funds as establishment expenditure for the purpose of granting benefits of higher pay to the employees. When the percentage of establishment expenditure of the respondent Municipality is 19.96%, this Court is of the view that if the petitioner are granting the benefits as prayed for by them, no financial burden would be on the respondentMunicipality.
9. In view of the above, the present petitions are allowed. The respondentsMunicipality is directed to grant the benefit of minimum time scale of the post of Sweeper to the petitioners, which has been revised as per the Fifth Pay Commission and subsequently, revised on the basis of 6th Pay Commission within a period of six months from the date of receipt of this order. Rule absolute in each matter.
pawan (K.S.JHAVERI,J.)