Holding

The Court held that the petitioner fulfilled all conditions of the 1 May 2007 Government Resolution and is entitled to be treated as a permanent employee with the specified benefits, quashing the impugned orders.

Summary

The petitioner, a part‑time sweeper appointed in 1991, claimed that he satisfied the criteria of the Government Resolution dated 1 May 2007 for conversion to a permanent employee, having worked more than six hours a day since 1994‑95. The State had dismissed him in March 2007 and rejected his claim, relying on his original three‑hour appointment letter. The High Court examined the subsequent office orders that increased his working hours and held that the petitioner indeed met all four conditions of the resolution, and that the State’s modification order of 16 May 2008 applied to his case. Consequently, the Court quashed the impugned orders of 5 March 2007 and 25 September 2007 as violative of Articles 14 and 16 of the Constitution. The petition was partly allowed, directing the respondents to treat the petitioner as a permanent employee from 1 July 2007, pay 50% back wages, leave encashment and gratuity, but no pension benefits, and to settle the amount by 30 April 2026.

Issues considered

The petitioner satisfied the criteria of the Government Resolution dated 1 May 2007 for permanent appointment.
Whether the impugned orders of 5 March 2007 and 25 September 2007 violate Articles 14 and 16 of the Constitution.
The effect of the subsequent modification order dated 16 May 2008 on the petitioner’s claim.
The quantum of benefits (back wages, leave encashment, gratuity) to which the petitioner is entitled.
The maintainability of the petition under Article 226 of the Constitution.

Subjects

Article 226Writ of MandamusPart‑time employeePermanent appointmentGovernment ResolutionArticles 14 and 16Back wagesRetirement benefitsGujarat High Court

Judgment

C/SCA/7437/2010 JUDGMENT DATED: 13/01/2026

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/SPECIAL CIVIL APPLICATION NO. 7437 of 2010

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE MAULIK J.SHELAT

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Approved for Reporting Yes No
✓
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SOLANKI DEVSIBHAI HAMIRBHAI
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR HARDIK C RAWAL(719) for the Petitioner(s) No. 1
MR. SIDDHARTH RAMI, ASSISTANT GOVERNMENT PLEADER for the
Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 2
==========================================================

CORAM:HONOURABLE MR. JUSTICE MAULIK J. SHELAT

Date : 13/01/2026

ORAL JUDGMENT

1. Heard Mr. Hardik C. Rawal, learned Advocate for the

petitioner and Mr. Siddharth Rami, learned Assistant

Government Pleader for the respondent No.1-State, at length.

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2. The present petition is filed under Article 226 of the

Constitution of India, seeking the following reliefs:

“(a) be pleased to admit and this Special Civil Application.

(b) be pleased to issue a writ of mandamus or any other
appropriate writ, order or direction by quashing and setting aside
the impugned orders dated 25.9.2007 and 5.3.2007 at Annexure -
B and C and further be pleased to direct the respondents to grant
benefits to the petitioner of full time employee (Class-IV) from the
date on which the petitioner completed three years service and/or
further be pleased to direct the respondents herein to given
identical treatment to the petitioner which is given to other 7
employees by order dated 16.11.2005 and/or further be pleased to
direct the respondents herein to continue the petitioner in service
till the petitioner in converted into a full time post and till the
petitioner is granted the benefit of full time employee.

(c) pending admission, hearing and final disposal of this petition, be
pleased to stay the operation, implementation, execution and
enforcement of the impugned orders dated 25.9.2007 and 5.3.2007
at Annexure B and C and further be pleased to direct the
respondents herein to give identical treatment to the petitioner
which is given to other 7 employees by order dated 16.11.2005
and/or further be pleased to direct the respondents herein to
continue the petitioner in service till the petitioner post is converted
into a full time post and till the employee is granted the benefit of
full time employee.

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(d) be pleased to pass such other and further orders may be
deemed just and proper looking to the facts and circumstances of
the case and in the interest of the justice.”

SUBMISSIONS FOR THE PETITIONER:

3. Mr. Rawal, learned Advocate appearing for the petitioner, has

submitted as under:

3.1. The petitioner was wrongly denied the benefit of the

Government Resolution dated 1st May 2007, whereby, he was

not granted the benefit of permanency though the petitioner

fulfilled all four criteria as set out in the aforesaid Government

Resolution. The respondent No.1 erroneously observed in its

impugned order dated 25th September 2007 that the petitioner

did work for three hours a day for ten years as a part-time

employee and his appointment was not against a vacant

sanctioned permanent post.

3.2. The respondent No. 1 failed to consider two office orders dated

5th January, 1994 and 26th September, 1995, issued by

respondent No. 2, whereby, it was confirmed that the petitioner

did work for more than six hours a day since the last more than

ten years before his termination affected vide the impugned

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order dated 5th March, 2007. The respondent No. 1 also failed

to take note of the Government Resolution dated 12th June,

1991, whereby, the appointment of the petitioner on the post of

Peon, though as part-timer, was against sanctioned post. It is

also stated that vide the Government Resolution dated 16th

May, 2008, the State has modified sub-clause 4 of Clause No. 1

of the aforesaid Circular No. 15/2007, whereby, any part-timer

who was appointed against vacant ad-hoc post can also be

granted the benefit of this aforesaid Government Resolution.

3.3. When all the conditions were fulfilled by the petitioner of the

aforesaid Government Resolution, the petitioner could not

have been deprived of the benefit flowing from the aforesaid

Government Resolution dated 1st May, 2007. The impugned

decisions dated 25th September, 2007 and 5th March, 2007, are

erroneous, perverse and violative of Articles 14 and 16 of the

Constitution of India, which may be quashed and set aside and

petitioner may be granted all benefits flowing from the

aforesaid Government Resolution including retirement

benefits.

3.4. Making the above submissions, Mr. Rawal, learned Advocate,

would request this Court to allow the present petition.

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SUBMISSIONS OF THE RESPONDENT NO.1:

4. Per contra, Mr. Rami, learned Assistant Government Pleader,

has opposed this petition on following counts:

4.1. The petitioner was appointed as part-time employee and his

initial appointment letter would indicate that he was appointed

only for three hours a day. The fixed wages applicable to such

part-timer who worked for three hours a day was paid to the

petitioner. It is submitted that when the petitioner had been

paid wages for three hours a day, he cannot be allowed to claim

the benefit of aforesaid Government Resolution dated 1st May,

2007.

4.2. The respondent No. 1 has examined the case of the petitioner as

per the direction issued by this Court vide its order dated 30th

April, 2007 passed in Special Civil Application No. 11455 of

2007 and on examination, it found that the petitioner not

fulfilling all four conditions, as he has not fulfilled the criteria

set out in the sub-clause Nos. 1 and 4 of Clause-1 the aforesaid

Government Resolution dated 1st May, 2007, then the

respondent No.1 has not appointed the petitioner as a regular

employee.

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4.3. The petitioner is wrongly banking upon two office orders

passed by respondent No. 2. It cannot be believed as contended

that he worked for more than six hours a day, since he was not

paid wages for more than three hours a day by the respondents.

4.4. The sub-clause No. 4 of Clause-1, prevailing at the time of

taking the impugned decision would only suggest that the

appointment of part-timer should be against a vacant

sanctioned permanent post, which was later in point of time in

the year 2008 modified by the State on 16th May, 2008 and

thereby, no benefit could have been given to the petitioner as

his case was already rejected by the respondent – the competent

authority prior to aforesaid Government Resolution dated 16th

May, 2008 came into force.

4.5. Making the above submissions, Mr. Rami, learned AGP,

would request this Court to reject the present petition.

5. No other and further submissions being made by the learned

advocates for the parties.

6. Having heard learned advocates appearing for the respective

parties and after going through their pleadings and supporting

documents produced on record, following would emerge:

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6.1. The petitioner was appointed as a part-time sweeper on fixed

pay of Rs. 300/- on 5th December, 1991 in the respondent No.

2-Institute. Later on, vide office order dated 5th January, 1994

of the respondent No. 2-Institute, his working hours were fixed

from 10:00 AM to 4:00 PM. It further appears that, vide office

order dated 26th September, 1995, the competent authority of

the respondent No. 2 had increased the working hours of the

petitioner and fixed the same from 9:30 AM to 6:15 PM. The

said order also suggests that on the 3rd and 4th working

Saturdays, due to weekly off of the watchmen, an additional

night duty was also assigned to the petitioner. It has been

clearly stated in the said office order dated 26th September,

1995 that the petitioner would have to work for 6 hours a day

in the respondent No. 2 - Institute.

6.2. The petitioner was dismissed from the services by the

respondent No. 2 vide its order dated 5th March, 2007. The

petitioner appears to have challenged the aforesaid decision

before this Court by way of Special Civil Application No.

11455 of 2007, wherein, this Court vide its order dated 30th

April, 2007, directed the respondents to consider the case of

petitioner in view of the Government Resolution as referred in

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the said order.

6.3. Thereafter, respondent No. 1 appears to have considered the

case of the petitioner, but having found that petitioner was not

satisfying the criteria set out in the sub-clause 1 and 4 of Clause

No.1 of aforesaid Government Resolution dated 1st May,

2007, turned down his claim to be appointed as a permanent

employee.

6.4. While passing the impugned decision, the respondent No. 1

appears to have considered only the petitioner’s initial

appointment order, dated 5th December, 1991, which limited

his part-time appointment to three hours a day. The respondent

No. 1 failed to note the office orders dated 5th January, 1994,

and 26th September, 1995, issued by respondent No. 2, which

confirm that the Petitioner’s working hours were from 9:30 AM

to 6:15 PM. A plain reading of these office orders further

clarifies that the petitioner is also required to serve as a

watchman at the respondent No. 2 - Institute on the 2nd and

4th Saturdays.

6.5. Furthermore, the post of peon/sweeper was duly sanctioned by

the State for respondent No. 2-Institute vide its Government

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Resolution dated 12th June, 1991 and thereafter, on 5th

December, 1991, the petitioner was first time appointed as

Class-IV, albeit as part-timer. The Government Resolution

dated 16th May, 2008, though it came later in point of time,

would suggest that the State itself modified the criteria of the

sub-clause 4 of Clause No. 1 of the aforesaid Government

Resolution dated 1st May, 2007, whereby, if the appointment

of part-timer against ad-hoc vacant post would also include. It

is not stated in the said resolution that the modification would

apply from the date of the resolution.

7. To appreciate the aforesaid facts, emerge from the record and

adverting to the issue, I would like to refer the sub-clause 1 to 4

of the Clause No. 1 of Government Resolution dated 1st May,

2007. Its fair translation reads thus:

“(1) The part-timer must have completed 10 years of service
with 6 hours of daily work as of 10/02/2006; provided,
however, that such 10 years of service should not have been
continued by virtue of any interim order or judgment of the
Hon'ble Court or Tribunal.

(2) The appointment of the part-timers who have completed the
aforementioned 10 years of service must have been made by
following the recruitment process prevailing at the relevant

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time. That is to say, their recruitment must have been conducted
through the Employment Exchange, the O,ce of the Social
Welfare O,cer, or such other agencies prescribed by the
Government for recruitment.

(3) Such part-timers must possess the requisite quali2cations as
prescribed under the recruitment rules for the respective cadre
at the time of their recruitment.

(4) The appointment of such part-timers must have been made
against a permanent vacancy sanctioned by the competent
authority of the concerned o,ce.”

8. The facts which are observed hereinabove emerges from the

record would clearly indicate that petitioner did work for more

than 6 hours a day at least from the year 1994-95 till 5th

March, 2007, i.e., date of his dismissal. It is true that he was

paid the wages for three hours a day and not for six hours or

more by respondent.

9. The petitioner might not have objected his exploitation by the

respondent, having been paid less salary/wages though he

worked for more than 3 hours a day. Nonetheless, having not

objected to the aforesaid unfair act of the respondents would

not be counterproductive to the petitioner’s claim, inasmuch as,

the said sub-clause-1 of the Clause No. 1 of the aforesaid

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Government Resolution dated 1st May, 2007, would not

remotely suggest that part-time employee must receive wages

for six hours a day.

10. A plain reading of the aforesaid sub-clause-1 of the Clause

No.1 of the said Government Resolution would only state that

part-timer must have completed 10 years of service as on 10th

February, 2006 and worked 6 hours a day and such service

should not be protected by order of a Court or Tribunal as the

case may be.

11. There is no dispute raised by the respondents that the aforesaid

office orders dated 5th January, 1994 and 26th September,

1995, issued by the respondent No. 2, are got-up ones; thus, the

respondent cannot be allowed to object the claim of petitioner

only on the ground that he was paid less than actual work;

rather, when it has come on record before this Court that there

were lesser wages paid by the respondents being State to its

part-time employees (the petitioner) who hail from lower strata

of society, such an objection raised by the respondent is not

only to be condemned but merits outright rejection. According

to my view, petitioner has fulfilled the conditions as stipulated

in the sub-clause 1 of the Clause No. 1 of the aforesaid

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Government Resolution dated 1st May, 2007.

12. Likewise, there is no dispute that the petitioner was appointed

as a part-timer against a sanctioned post. Even assuming for

the timing being that it was ad-hoc post, then also in view of

the subsequent modification in the aforesaid Government

Resolution dated 1st May, 2007 by the State, vide its aforesaid

resolution dated 16th May, 2008, the claim of the petitioner

cannot be discarded on the ground that said modification came

in later in point of time. The said resolution would not remotely

indicate that it would not be applicable to the cases which were

already decided/rejected/closed; rather, considering the main

object of the said resolution dated 1st May, 2007, whereby the

State decided to offer permanent employment to its part-timer

employees, albeit as One-Time Measure, thus, the arguments of

the learned AGP run counter to said laudable object merits

rejection.

13. Thus, in view of the aforesaid observation, discussion and

reasons, it is very much clear that the respondent No.1, without

appreciating the aforesaid aspect and ignoring the aforesaid

office orders issued by respondent No. 2, erroneously rejected

the claim of the petitioner.

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14. Having found that the impugned decisions of respondents are

erroneous as contrary to the record, whereby the petitioner was

deprived of the benefit of aforesaid Government Resolution

dated 1st May, 2007; thus, the impugned decisions dated 5th

March, 2007 and 25th September, 2007 respectively, are hereby

quashed and set aside as it is violative of Articles 14 and 16 of

the Constitution of India. It is held that the petitioner satisfied

all four criteria set out in Clause 1 of the aforesaid Government

Resolution dated 1st May, 2007, and is thereby, entitled to be

appointed as permanent employee. Consequently, the

petitioner is entitled to be granted benefit of aforesaid

Government Resolution dated 1st May, 2007 by the

respondents.

15. At this stage, it requires to be noted that when this petition was

filed in the year 2010, it appears that petitioner was aged about

45 years as stated in supporting affidavit of the petition; thus,

by now, petitioner must have attained the age of

superannuation. In that view of the matter, there is no purpose

of directing the respondent to reinstate the petitioner to the

post of Class-IV in the respondent No. 2.

16. Yet, considering totality of the aforesaid facts and

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circumstances of the present case, pendency of this litigation for

quite long time for about 15 years, at the relevant point of time

the petitioner was not paid adequate wages, balancing equity

between the parties and when the petitioner has not actually

rendered services in respondent No. 2-Institute for these many

years, instead of granting full back wages and all retirement

benefits, I would like to direct the respondents to grant the

following benefits to the petitioner:

16.1. The respondents are directed to pass an appropriate order to

treat the petitioner appointed as permanent employee w.e.f. 1st

July, 2007 till he attained the age of superannuation.

16.2. The petitioner is entitled to receive 50% of back wages for the

aforesaid period. The petitioner is also entitled to receive 50%

of the benefit of leave encashment and gratuity. Nonetheless,

the petitioner is not entitled to receive any pensionary benefits

as per New Pension Scheme, as he could not be part of New

Pension Scheme which commenced w.e.f. 1st May 2005.

16.3. The respondent is hereby directed to calculate the aforesaid

service and retirement benefits, i.e., 50% of back wages and

retirement benefits as aforesaid, on or before 31st March, 2026.

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Consequently, the respondents are directed to pay the aforesaid

amount to the petitioner on or before 30th April, 2026, failing

which petitioner will entitle to receive the aforesaid amount

with interest at the rate of 6% from 1st May, 2026, till its

realization.

17. Before parting, it is hereby observed that while to calculate the

aforesaid amount, any assistance of the petitioner is required,

i.e., to get proof of his actual date of birth by the respondents,

the same shall be procured from the petitioner and petitioner

shall have to provide the proof of his date of birth, if so,

demanded by the respondents.

18. In view of the foregoing reasons and conclusions, the present

petition is partly allowed. Rule made absolute, to the aforesaid

extent. No order as to costs.

(MAULIK J.SHELAT,J)
NILESH
Original copy of this order has been signed by the Hon'ble Judge.
Digitally signed by: PARMAR NILESHKUMAR R(HCD0068), ENGLISH STENOGRAPHER GRADE TWO CLASS TWO, at High Court of Gujarat on 13/01/2026 11:52:22

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