1. The petitioners have preferred the petitions for the direction to the respondents to regularise the services of the concerned petitioners w.e.f. 01.02.1983, 18.02.1985 and 21.09.1981 with all consequential benefits. It is also prayed by the petitioners that it may be declared by this Court that the resolution of the Government dated 17.10.1988 is applicable to the petitioners and the petitioners are entitled to the benefit of permanency as per the Resolution dated 17.10.1988.
2. The short facts are that as per the petitioner of Work charged Peon in the year 1985 and petitioner of SCA No.5851/12 as parttime Chowkidar in the year 1981 all for the fixed salary of Rs.150 per month. They continuously worked for about 19 years. It is their case that they worked on full time basis. Whereas, as per the respondents,
regularisation and for consequential benefits. This Court vide order dated 11.07.1994, pending the petition, directed th respondents to pay minimum payscale available to classIV employees. As per the petitioners, the aforesaid position continued till 28.01.1998 pursuant to the interim order passed by this Court. However, subsequently the petitions were disposed of by this Court by directing the petitioners to make representation to the State Government regarding grant of benefits of the Government Resolution dated 17.10.1988. The said representation subsequently is rejected by the State Government and as a result thereof, the petitioners were treated as part timers and they were paid salary of part time employee. Thereafter, since the representation was rejected and the benefits were not granted for regularisation or of the resolution as per Government dated 17.10.1988, the present petitions have been preferred by the petitioners before this Court.
3. I have heard Mr.D.G. Chauhan, learned counsel appearing for the petitioners in all the petitions, Mr.H.K. Patel, learned AGP for the respondent no.1 and Mr. R.M. Chauhan for Mr.Munshaw for respondent no.2.
4. It deserves to be recorded that in the present petitions, initially the Court had issued notice on 27.06.2002 and thereafter, on 07.07.2003 and 08.7.2003, this Court had passed the following order “Heard learned advocate Mr.Chauhan for the petitioner; Mr.R.V.Desai, learned AGP for respondent No.1, learned advocate Mr.H.S.Munshaw for respondents No.2, 3 and 4. The questions involved in this petition would require detailed examination on the basis of the fact that in view of the order of this Court, the petitioner has made representation to the first respondent, which has been rejected by the respondent No.1 by order dated 3rd January, 1998, which is at page 38/57 of both the petitions. Hence, RULE returnable in the first week of August, 2003.
2) I have also heard the learned advocates for the respective parties on interim relief. Learned advocate Mr.Chauhan appearing for the petitioner has placed reliance on the interim order passed by this Court in Special Civil Application No.8861 of 1994 and 8860 of 1994 dated 11th July, 1994, which were the earlier petitions filed by the petitioners claiming the same benefits as claimed in this petition, wherein this Court has passed interim orders on 11th July, 1994 with a direction to the respondent to pay to the petitioner determined or calculated on the minimum of the pay scale applicable to Class IV employees prospectively from the date of the petitions onwards. While passing the said orders, liberty was given to the parties in case of difficulty. It was submitted by learned advocate Mr.Chauhan that in view of this interim order, the petitioners have received Class IV salary in the minimum pay scale with effect from 1994 to 1998 and after the Special Civil Application Nos.8861 of 1994 and 8860 of 1994 were disposed of, the respondents have stopped the payment of such benefits.
parties, similar interim relief is required to be granted in the interest of justice in favour of the petitioner. Therefore, by way of interim relief, it is directed to the respondents to pay to the petitioners wages determined or calculated on the minimum of the pay scale applicable to Class IV employees prospectively from the date of the petition onwards till the final disposal of both the present petitions.
Direct service is permitted.”
5. It is undisputed position that the present interim order is not modified or reversed by any higher forum. As a result thereof, the respondents were bound by the aforesaid interim order for payment of wages to the petitioners determined or calculated on the minimum of the pay scale applicable to Class IV employees prospectively. It is the case of the petitioners that they were thereafter treated as full timers and the minimum payscale of the Class IV employee are being paid since 07.07.2003, i.e., the date after the order passed by this Court. It also appears that the said interim order has continued uptil now and the period of about 9 years has passed. If the continuation of the petitioners is considered as that from 07.07.2003 till today, it can be said that the petitioners have completed about 9 years pending the petition, of course pursuant to the interim order passed by this Court.
6. Mr.Chauhan, learned counsel appearing for the petitioners submitted that keeping in view the facts and circumstances of the present case, as it has resulted by now, till today, if this Court directs the State Government to consider the case of the petitioners for extending the benefit of the Government Resolution dated 17.10.1988, the petitioners would be satisfied and would not be claiming the other benefits though prayed in the petition. It is in light of the facts and circumstances, the matter deserves to be considered to that extent.
7. It does appear that as per the petitioners, though they were paid lumsum wages of a meagre amount, they were working as full timers.
8. Whereas, as per the respondents, their case is that the petitioners were appointed on part time basis as part timers and not full timers. The respondents further contend that if any person is engaged as part timer in any setup of the Government, he would not be entitled to the benefit of the Government Resolution dated 17.10.1988 and the said benefits are available only to any daily wager or work charged employee who has worked as full timer. As per the respondents, it is on account of the engagement of the petitioners not as full timers but as part timers, no benefits are extended to the petitioners of the Government Resolution dated 17.10.1988 and therefore, the decision was taken not to accept the representation. It was also submitted that on 28.01.1998, the petitioners were again placed as part timers and the petitioners themselves have also mentioned the said fact, but they have reiterated that though nomenclature is as that of part timer, they have worked as full timer.
9. In my view, even if the aspect of continuation of the petitioners as part timers or full timers is kept aside, for the period prior to 11.07.1994 and also after 28.01.1998 till 06.07.2003, the fact remains and the said part is not and cannot bee disputed by the respondents that during the period from 11.07.1994 to 28.01.1998, roughly for a period of 3½ years, the petitioners were engaged as full timer and they were paid minimum scale available to Class IV employees. In the same manner, after 07.07.2003, as recorded earlier till today, the petitioners are treated as full timers and paid salary of minimum pay scale available to class IV. It is true that the interim order cannot be read to invest any additional right in favour of the petitioners for continuation on the said post but the factum of actually working by the petitioners as full timer and of having paid the salary of minimum scale available to classIV by the respondents cannot be disputed. If any person has worked as full timer and the wages are also paid may be minimum pay scale of Class IV employee as full timer, such aspect cannot be ignored by the competent authority for extending the benefit of Government Resolution dated 17.10.1988. It is true that the resolution dated 17.10.1988 may be termed as applicable to the employees who were already their in service as daily wager or work charged employee, but it is not the case of the respondent that the policy of conferring the benefit of resolution dated 17.10.1988 has been discontinued or otherwise. Therefore, if the benefits are conferred from time to time, even for the employees who have completed 5 years of service as daily wager, there is no reason why such should not be considered for the petitioners. The aforesaid is coupled with the aspect that as per the petitioners, they were engaged in the years 1983, 1985 and 1981 and have completed 5 years when the resolution dated 17.10.1988 was passed, but of course with the stand that as per the petitioners they were full timers and as per the respondents, they were part timers and therefore, the said period may not be counted.
10. Under these circumstances, it appears that if the petitioners have worked for about last 9 years as full timers and the salary is also paid as full timers and even GPF and other statutory deductions are made on that basis, it would be appropriate for the competent authority of the State Government to consider the aspect as to whether the benefit of the Government Resolution dated 17.10.1988 should be conferred to the petitioners or not or in alternative, keeping in view the continuation of the petitioners for about 9 years, the matter may also be considered for the suitable orders for continuing them as full timers on minimum pay scale of ClassIV employees which was prima facie observed by this Court at the time when the interim order was passed.
11. In view of the aforesaid observations and discussions, following directions would meet with the ends of justice
A) The respondent no.1 shall consider the case of all the petitioners in light of the observations made by this Court and shall take appropriate decision within a period of four months from the receipt of the order of this Court on the aspect of extending the benefit to the petitioners of the Government Resolution dated 17.10.1988, keeping in view the facts and circumstances of the case or to continue the petitioners as full timers on payment of minimum payscale available to Class – IV employees.
B) Until the aforesaid decision is taken and communicated to the petitioners, the interim order passed by this Court shall continue to remain in operation.
12. The petitions are partly allowed in terms of the aforesaid directions. Rule made absolute accordingly. Direct Service.
*bjoy (JAYANT PATEL, J.)