1. All these appeals involve identical questions of law and hence, are heard together and are disposed of by this common order.

2. Feeling aggrieved and dissatisfied by the common order rendered by the learned Single Judge in Special Civil Applications no.5160/15, 5161/15, 5162/15 and 5163/15 dated 8.10.2020, the appellants – original petitioners have preferred these appeals.

3. It is the case of the appellant in Letters Patent Appeal no.842 of 2020 arising out of Special Civil Application no.5162 of 2015 that the respondent no.6 – Vikas Mandal gave a public advertisement for filling up vacant post of Assistant Cook on 18.2.2009 after obtaining due permission and called for the applications. It is further the case of the appellant that the appellant appeared before the Selection Committee and was selected to the post of Assistant Cook after following due process of oral interview. It is the case of the appellant that the appellant came to be appointed to the post of Assistant Cook on 9.6.2009 and since then, the appellant has been in continuous service. Initial appointment of the appellant was for 11 months and the same has been continued. The appellant, relying upon the Government Resolution dated 16.2.2006, contended that the appellant would be entitled to regular pay scale. It was the case of the appellant that a proposal has already been moved by respondent no.6, however, no reply was filed. The appellant has relied upon the judgment of this Court in Letters Patent Appeal no.1315 of 2006 dated 5.12.2012 and contended before the learned Single Judge that as per Government Resolution dated 16.2.2006, the appellant would be entitled to regular pay scale and on such factual matrix and contentions, the appellant filed a Writ Petition under Article 226 of the Constitution of India and interalia, prayed as under:-

“(B) Be pleased to issue a writ of mandamus or a writ of certiorari or any appropriate writ, order or direction to the present resp. no.1 to 5 and directing them to put the petitioner in Regular Pay-Scale as per order passed at Ann. G in case similar situated employee As Well As G.R. dated 16.2.2006 at Ann. A regarding regular pay-scale, with all consequent benefits and increments from time to time, in the interest of justice;

(C) ... ... ...”

4. It is the case of the appellant in Letters Patent Appeal no.843 of 2020 arising out of Special Civil Application no.5163 of 2015 that the respondent no.6 – Vikas Mandal gave a public advertisement for filling up vacant post of Chief Cook on 18.2.2009 after obtaining due permission and called for the applications. It is further the case of the appellant that the appellant appeared before the Selection Committee and was selected to the post of Chief Cook after following due process of oral interview. It is the case of the appellant that the appellant came to be appointed to the post of Chief Cook on 9.6.2009 and since then, the appellant has been in continuous service. Initial appointment of the appellant was for 11 months and the same has been continued. The appellant, relying upon the Government Resolution dated 16.2.2006, contended that the appellant would be entitled to regular pay scale. It was the case of the appellant that a proposal has already been moved by respondent no.6, however, no reply was filed. The appellant has relied upon the judgment of this Court in Letters Patent Appeal no.1315 of 2006 dated 5.12.2012 and contended before the learned Single Judge that as per Government Resolution dated 16.2.2006, the appellant would be entitled to regular pay scale and on such factual matrix and contentions, the appellant filed a Writ Petition under Article 226 of the Constitution of India and interalia, prayed as under:-

“(B) Be pleased to issue a writ of mandamus or a writ of certiorari or any appropriate writ, order or direction to the present resp. no.1 to 5 and directing them to put the petitioner in Regular Pay-Scale as per order passed at Ann. G in case similar situated employee As Well As G.R. dated 16.2.2006 at Ann. A regarding regular pay-scale, with all consequent benefits and increments from time to time, in the interest of justice;

(C) ... ... ...”

5. It is the case of the appellant in Letters Patent Appeal no.816 of 2020 arising out of Special Civil Application no.5161 of 2015 that the respondent no.6 – Vikas Mandal gave a public advertisement for filling up vacant post of Kamathi on 18.2.2009 after obtaining due permission and called for the applications. It is further the case of the appellant that the appellant appeared before the Selection Committee and was selected to the post of Kamathi after following due process of oral interview. It is the case of the appellant that the appellant came to be appointed to the post of Kamathi on 9.6.2009 and since then, the appellant has been in continuous service. Initial appointment of the appellant was for 11 months and the same has been continued. The appellant, relying upon the Government Resolution dated 16.2.2006, contended that the appellant would be entitled to regular pay scale. It was the case of the appellant that a proposal has already been moved by respondent no.6, however, no reply was filed. The appellant has relied upon the judgment of this Court in Letters Patent Appeal no.1315 of 2006 dated 5.12.2012 and contended before the learned Single Judge that as per Government Resolution dated 16.2.2006, the appellant would be entitled to regular pay scale and on such factual matrix and contentions, the appellant filed a Writ Petition under Article 226 of the Constitution of India and inter-alia, prayed as under:-

“(B) Be pleased to issue a writ of mandamus or a writ of certiorari or any appropriate writ, order or direction to the present resp. no.1 to 5 and directing them to put the petitioner in Regular Pay-Scale as per order passed at Ann. G in case similar situated employee As Well As G.R. dated 16.2.2006 at Ann. A regarding regular pay-scale, with all consequent benefits and increments from time to time, in the interest of justice;

(C) ... ... ...”

6. It is the case of the appellant in Letters Patent Appeal no.835 of 2020 arising out of Special Civil Application no.5160 of 2015 that the respondent no.6 – Vikas Mandal gave a public advertisement for filling up vacant post of Peon on 18.2.2009 after obtaining due permission and called for the applications. It is further the case of the appellant that the appellant appeared before the Selection Committee and was selected to the post of Peon after following due process of oral interview. It is the case of the appellant that the appellant came to be appointed to the post of Peon on 9.6.2009 and since then, the appellant has been in continuous service. Initial appointment of the appellant was for 11 months and the same has been continued. The appellant, relying upon the Government Resolution dated 16.2.2006, contended that the appellant would be entitled to regular pay scale. It was the case of the appellant that a proposal has already been moved by respondent no.6, however, no reply was filed. The appellant has relied upon the judgment of this Court in Letters Patent Appeal no.1315 of 2006 dated 5.12.2012 and contended before the learned Single Judge that as per Government Resolution dated 16.2.2006, the appellant would be entitled to regular pay scale and on such factual matrix and contentions, the appellant filed a Writ Petition under Article 226 of the Constitution of India and interalia, prayed as under:-

“(B) Be pleased to issue a writ of mandamus or a writ of certiorari or any appropriate writ, order or direction to the present resp. no.1 to 5 and directing them to put the petitioner in Regular Pay-Scale as per order passed at Ann. G in case similar situated employee As Well As G.R. dated 16.2.2006 at Ann. A regarding regular pay-scale, with all consequent benefits and increments from time to time, in the interest of justice;

(C) ... ... ...”

7. The learned Single Judge, by the impugned common order, came to the conclusion that the prayer of regularization and regular pay scale in accordance with the Government Resolution dated 16.2.2006 is misconceived. The learned Single Judge came to the conclusion that the appellants are employers of Panchmahal Mandal and there is no privity of contract between them and the State Government. The learned Single Judge opined that except for the benefit that such Ashram Shala would get, the thread of such grant would not make the petitioners employee of the State Government or even within the realm of fixed term employees of the State and dismissed the petition. Feeling aggrieved by the said common order, the present appeals are filed.

8. Heard Mr. Mahesh A. Parekh, learned advocate for the appellants and Mr. Tirthraj Pandya and Ms. Megha Chitaliya, learned Assistant Government Pleaders for the respondents no.1 to 4 and 7. Though served, no one appears for other respondents.

9. Mr. M.A. Parekh, learned advocate for the appellants has heavily relied upon the judgment of the Coordinate Bench in the case of Shaileshkumar Lalabhai Rajat Vs. The State of Gujarat, reported in 2021 (2) GLH 670 and contended that the same would squarely apply to the present appeals. According to Mr. Parekh, the same would squarely cover the case of the appellants and therefore, submitted that the appeals may be allowed and appropriate directions may be issued. Mr. Parekh, however, candidly submitted that the appellants have not prayed for regularization of their service, but have prayed only for the limited purpose of regular pay scale during the course of arguments.

9.1 Mr. Parekh contended that the case of the appellants may be considered for regular pay scale. Mr. Parekh reiterated that on similar factual background, the Coordinate Bench has allowed the appeal and accordingly, these appeals may also be allowed on the same contentions and grounds.

10. Per contra, Mr. Tirthraj Pandya and Ms. Megha Chitaliya, learned Assistant Government Pleaders have opposed the appeals and have submitted that the learned Single Judge has rightly rejected the Writ Petitions and the same does not require any interference.

11. No other or further submissions, averments, grounds and/or contentions are made by the learned advocates appearing for the respective parties.

12. Before considering the submissions made, it would be appropriate to note that during the course of hearing of these appeals, Mr. Parekh, learned advocate for the appellants submitted that what is prayed for by the appellants is only for regular pay scale and not regularization. This Court therefore passed the following order on 5.8.2021:-

“1. Heard Mr. Mahesh A. Parekh, learned advocate for the appellants and Mr. Tirthraj Pandya, learned Assistant Government Pleader for the respondent – State in all the appeals.

2. Mr. Parekh has invited attention of this Court to the fact that in a similar case, a Coordinate Bench has already allowed the appeals filed by similarly situated persons. Mr. Parekh states that the issue involved in these appeals is squarely covered by the judgment of the Coordinate Bench in the case of Shaileshkumar Lalabhai Rajat Vs. The State of Gujarat, reported in 2021 (2) GLH 670. We have also gone through the said judgment. However, we find that in the original writ petitions before the learned Single Judge, so also in these intra-Court appeals, the appellants - original petitioners have not prayed for any regularization of service. Mr. Parekh states that the appellants do not claim any regularization and all that is prayed is grant of regular pay scale.

For orders.”

13. It also deserves to be noted that Mr. Parekh is correct in making such submission as what is prayed for in the Writ Petitions is only to put the appellants - original petitioners in regular pay scale and not for regularization at all and therefore, the scope and ambit of the petitions is only limited to regular pay scale. Considering the factual background arising in these appeals, it clearly appears that the Mandal runs grant-in-aid Ashram Shalas and it had applied for sanction of recruitment which was accorded by the competent authority of the State Government on 25.5.2007 and based upon the same, an advertisement was given in public newspaper – Divya Bhaskar in its Vadodara edition dated 18.2.2009. It also appears from the record of the petitions which is also part of the record of these appeals that regular recruitment process was undertaken by the said Mandal, viva voce was taken and after following due process, the appointment orders were given to the appellants and they were thus appointed. The Coordinate Bench in the case of Shaileshkumar Lalabhai Rajat (supra) has considered a similar set of facts and circumstances, wherein after public advertisement, the posts of Chief Cook, Assistant Cook, Kamathi and Peon were filled in by Ashram Shala at Panchmahal Jilla Utkarsh Mandal, situated at Viraniya, Taluka Hadod, District Dahod and the persons were appointed on vacant sanctioned posts as it is done in the present case for 11 months in fixed salary of Rs.1,500/-. The Coordinate Bench considered the binding decisions of the Hon'ble Supreme Court in the case of Secretary, State of Karnataka Vs. Umadevi, reported in (2006) 4 SCC 1 , [LQ/SC/2006/324] State of Karnataka & Ors. Vs. M.L. Kesari & Ors., reported in (2010) 9 SCC 247 , [LQ/SC/2010/772] Narendra Kumar Tiwari Vs. The State of Jharkhand passed by the Hon'ble Apex Court in Civil Appeal Nos.7423-7429 of 2018 dated 1.8.2018 and State of Punjab Vs. Jagjit Singh, reported in (2017) 1 SCC 148 [LQ/SC/2016/1383] and also considered the judgment of the learned Single Judge rendered in Civil Application no.1 of 2019 in Special Civil Application no.11827 of 2019 dated 13.9.2019 and having considered the judgment of the Division Bench in the case of Krupesh C. Patel & Ors., Vs. State of Gujarat passed in Letters Patent Appeal no.1108 of 2012 dated 22.9.2014, has observed thus:-

“7. Having heard the learned counsels for the respective parties, we find that the appointment of the appellants were made in pursuance of the Government Resolution dated 30.03.2007 issued by the Tribal Development Department, Government of Gujarat. By the said Government Resolution, it was resolved to establish Eight new “Uttarbuniyadi Ashram Shalas” during the Financial Year 2006-2007 with a Grant of Rs.163.41 Lacs. Such “Uttarbuniyadi Ashram Shalas” shall be run as Grant-in-Aid Institutions with the object of imparting education to Schedule Tribe children living in areas falling under the Tribal Areas Development Scheme of the State. For the purpose of establishing Eight such “Uttarbuniyadi Ashram Shalas”, it was also resolved to appoint four individuals in each of the Eight such “Uttarbuniyadi Ashram Shalas” to the Posts of Principal, Teaching Assistant, Peon and Cook respectively. In the present appeals, we are concerned with the Posts of Peon and Cook. According to the said Government Resolution, both the Posts of Peon and Cook carried the salary of Rs.1500/- per month and the appointment on both the Posts were to be made through “Outsourcing” in accordance with the Government Resolution dated 30.11.2006 issued by the General Administration Department, Government of Gujarat. The said Government Resolution dated 30.11.2006 issued by the General Administration Department, Government of Gujarat provides for the appointment of persons on ClassIV posts on Contractual Basis through Outsourcing.

8. After the issuance of Government Resolution dated 30.03.2007 of the Tribal Development Development, Government of Gujarat, the Government of Gujarat in the Tribal Development Department issued another Government Resolution dated 25.05.2007, which provided details for the establishment of Eight new “Uttarbuniyadi Ashram Shalas” as proposed in the earlier Government Resolution dated 30.03.2007. According to the Government Resolution dated 25.05.2007, the “Uttarbuniyadi Ashram Shalas” were to be managed by “Voluntary Organizations” and such “Uttarbuniyadi Ashram Shalas” shall have the facilities of lodging and boarding for the students concerned. The names of Eight Institutions were also mentioned in the Government Resolution dated 25.05.2007, which were entrusted with the management of the newly constituted Eight “Uttarbuniyadi Ashram Shalas”. Under the said Government Resolution dated 25.05.2007, the respondent No.6- Ashram Shala came to be established at Viraniya, Taluka : Morva-Hadaf, District : Panchmahals.

9. It appears from the record that after the establishment of respondent No.6-Ashram Shala, by Public Advertisements, applications were invited from candidates for appointment to different posts on fixed salary of Rs.1500/- per month for 11 months' contract. In pursuance of said advertisements, the respondent-authority undertook the recruitment process and thereafter, appointed the appellants-petitioners on the Posts of Head Cook and Peon vide appointment orders dated 10.08.2009 and 25.08.2011 respectively.

10. Before we proceed further, it would be beneficial to refer to the exalted position of the rule of law in matters relating to public employment, which was emphasized by the Apex Court in its judgment rendered in the case of Secretary, State of Karnataka V. Uma Devi (supra). The observations made in paragraph-44 reads thus:-

“44. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. NARAYANAPPA (supra), R.N. NANJUNDAPPA (supra), and B.N. NAGARAJAN (supra), and referred to in paragraph 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 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 above referred 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 one time 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 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 process must be set in motion within six months from this date. We also clarify that regularization, if any already made, but not subjudice, need not be reopened based on this judgment, but there should be no further bypassing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme.”

11. Similar view was taken in a subsequent decision of the Apex Court in the case of State of Karnataka and others v. M. L. Kesari and others (supra) wherein, the Court has made the following observations:-

“5. It is evident from the above that there is an exception to the general principles against `regularization' enunciated in Umadevi, if the following conditions are fulfilled:

(i) The employee concerned should have worked for 10 years or more in duly sanctioned post without the benefit or protection of the interim order of any court or tribunal. In other words, the State Government or its instrumentality should have employed the employee and continued him in service voluntarily and continuously for more than ten years.

(ii) The appointment of such employee should not be illegal, even if irregular. Where the appointments are not made or continued against sanctioned posts or where the persons appointed do not possess the prescribed minimum qualifications, the appointments will be considered to be illegal. But where the person employed possessed the prescribed qualifications and was working against sanctioned posts, but had been selected without undergoing the process of open competitive selection, such appointments are considered to be irregular.

Umadevi casts a duty upon the concerned Government or instrumentality, to take steps to regularize the services of those irregularly appointed employees who had served for more than ten years without the benefit or protection of any interim orders of courts or tribunals, as a one-time measure. Umadevi, directed that such one-time measure must be set in motion within six months from the date of its decision (rendered on 10.4.2006).”

12. In Narendra Kumar Tiwari and others V. The State of Jharkhand and others (supra), the Apex Court has made the following observations:-

“8. The purpose and intent of the decision in Umadevi (3) was therefore two-fold, namely, to prevent irregular or illegal appointments in the future and secondly, to confer a benefit on those who had been irregularly appointed in the past. The fact that the State of Jharkhand continued with the irregular appointments for almost a decade after the decision in Umadevi (3) is a clear indication that it believes that it was all right to continue with irregular appointments, and whenever required, terminate the services of the irregularly appointed employees on the ground that they were irregularly appointed. This is nothing but a form of exploitation of the employees by not giving them the benefits of regularisation and by placing the sword of Damocles over their head. This is precisely what Umadevi (3) and Kesari sought to avoid.”

13. In the case of State of Punjab V. Jagjit Singh, 2017 (1) SCC 148 , [LQ/SC/2016/1383] the Apex Court referred to the observations made by a Five-Judge Bench of its Court in the judgment delivered in the case of D.S. Nakara v. Union of India, (1983) 1 SCC 305 [LQ/SC/1982/209] and made the following observations:-

“8. D.S. Nakara v. Union of India, (1983) 1 SCC 305 , [LQ/SC/1982/209] decided by a fiveJudge Constitution Bench: It is not necessary for us to narrate the factual controversy adjudicated upon in this case. In fact, the main issue which arose for consideration pertained to pension, and not to wages. Be that as it may, it is of utmost importance to highlight the following observations recorded in the above judgment:-

“32. Having succinctly focused our attention on the conspectus of elements and incidents of pension the main question may now be tackled. But, the approach of court while considering such measure is of paramount importance. Since the advent of the Constitution, the State action must be directed towards attaining the goals set out in Part IV of the Constitution which, when achieved, would permit us to claim that we have set up a welfare State. Article 38(1) enjoins the State to strive to promote welfare of the people by securing and protecting as effective as it may a social order in which justice - social, economic and political shall inform all institutions of the national life. In particular, the State shall strive to minimise the inequalities in income and endeavour to eliminate inequalities in status, facilities and opportunities. Art. 39 enjoins a duty to see that there is equal pay for equal work for both men and women and this directive should be understood and interpreted in the light of the judgment of this Court in Randhir Singh v. Union of India & Ors., (1982) 1 SCC 618 [LQ/SC/1982/54] .”

14. It is the say of respondent – Commissioner of Tribal Development that the appointment of the appellants is governed by the Government Resolution dated 30.03.2007 and that as per the said Government Resolution, the appointment of the appellants was for 11 months' contract on fixed salary of Rs.1500/- per month. The said appointments were made through “Outsourcing”, as provided in the Government Resolution dated 30.11.2006 of the General Administration Department, Government of Gujarat. It is to be noted that along with the Memo of petitions, the appellantspetitioners have produced on record the Rojkam as also the Select Lists of successful candidates. As per the Select Lists, both the appellantspetitioners were placed at Serial No.1 in the respective lists and accordingly, they were issued the orders of appointment. In the said orders of appointment, it is clearly mentioned that the appellantspetitioners were appointed on fixed salary of Rs.1500/- per month for 11 months' contract . Thus, it is evident from the above documents that the appellants were appointed on the Posts in question after following due process of law and that their appointment was on fixed salary of Rs.1500/- per month for 11 months' contract. It is not even the case of the respondents that the appointment of the appellants was irregular or for that matter, they were back-door entrants. Thus, the appellantspetitioners were appointed after following due process of law and it cannot be said that their appointment was improper or illegal.

15. At this stage, it would be pertinent to note that the respondents have not produced any document on record to show the details of the “Outsourcing Agency”, through which the recruitment process is said to have been undertaken. The expression “Outsourcing” used in the Government Resolution dated 30.11.2006 has been misused by the respondentauthorities by using it as a veil to cover the rights of the person who is appointed. From the documents on record, particularly, the Rojkam and the Select Lists, it appears that the appellants-petitioners had undergone the recruitment process initiated by the respondent No.6- Ashram Shala and they both were found to be more meritorious as compared to other candidates, as they were placed at Serial No.1 in the respective Select Lists. Though the respondent No.6-Ashram Shala was aware of the fact that the recruitment process was to be undertaken by the “Outsourcing Agency”, it initiated the recruitment process by itself and also issued the orders of appointments to the appellantpetitioners at the end of such recruitment process. Thereafter, the appellants joined the services and since then, have been rendering continuous service on extension of their contractual period from time to time. It is pitiable that though the appellants had rendered continuous service for about 10 and 12 years respectively, the respondent No.6-Ashram Shala never cared to espouse the cause of the appellants-petitioners for regularization of their service or for granting them the benefit of regular pay-scale, as provided in the Government Resolutions dated 16.02.2006 and 18.01.2017, both of the Finance Department, Government of Gujarat. In fact, it is shocking and disturbing that the Office of respondent No.4-Commissioner of Tribal Development, which is entrusted with the work of improving the standard of living of people belonging to the backward communities and living in the tribal areas, has ignored the socioeconomic status of the employees working in the respondent-Ashram Shalas established for imparting education to children belonging to Schedule Tribe community living in the tribal areas.”

14. Following the judgment of the Coordinate Bench in identical set of facts and circumstances, we are of the opinion that the learned Single Judge has committed an error and hence, the common order dated 8.10.2020 deserves to be quashed and set aside and is hereby quashed and set aside. The respondent authorities are directed to consider the case of the appellants - original petitioners for grant of regular pay scale as held by this Court in the case of Shaileshkumar Lalabhai Rajat (supra) taking into consideration the provisions of Government Resolutions dated 16.2.2006 and 18.1.2017 of the Finance Department of the Government of Gujarat. The respondents shall undertake such process within a period of (03) three months from the date of receipt of this order.

15. The appeals are allowed accordingly to the aforesaid extent. Connected Civil Applications stand disposed of. However, there shall be no order as to costs.