Gujarat High Court
Kiritbhai Gangaram Solanki vs Director Of Municipalities on 13 June, 2018
Author: K.M.Thaker
Bench: K.M.Thaker
C/SCA/14206/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 14206 of 2015
KIRITBHAI GANGARAM SOLANKI
Versus
DIRECTOR OF MUNICIPALITIES
Appearance:
MR UT MISHRA(3605) for the PETITIONER(s) No. 1
MR KRUTIK PARIKH AGP (1) for the RESPONDENT(s) No. 1
MR MEHULSHARAD SHAH(773) for the RESPONDENT(s) No. 2
NOTICE SERVED BY DS(5) for the RESPONDENT(s) No. 1,2
CORAM: HONOURABLE MR.JUSTICE K.M.THAKER
Date : 13/06/2018
ORAL ORDER
1. In light of the order passed today in Misc. Civil Application No. 1 of 2018 this petition is listed in today's cause list and accordingly the petition is taken up for hearing and final order today.
2. Heard Mr. U. T. Mishra, learned advocate for the petitioner, Mr. Mehul Sharad Shah, learned advocate for the respondent No. 2 and Mr. Krutik Parikh, learned AGP for the respondent No. 1.
3. In present petition the petitioner has prayed, inter alia, that:-
"7(A) That Your Lordships be pleased to issue an order, direction and / or writ in the nature of mandamus and / or any other appropriate writ, order or direction, directing Page 1 C/SCA/14206/2015 ORDER the respondents to grant the pay - scale of Driver to the petitioner from the date on which the petitioner appeared in the interview and issued the Identity Card to that effect and be further pleased to direct the respondent Nagar Palika to give the difference of wages with 12% interest thereon;
4. So as to support and justify the relief prayed for in the petition the petitioner has averred and stated that:-
"2. The petitioner annexes Pay Slip of one Driver namely; Mehboobbhai M. Malek, who was working as Driver in the respondent Nagar Palika marked Annexure'F' to this petition. The petitioner respectfully submits that the said employee Shri Mehboobbhai M. Malek has retired from the post of Driver and the said post is vacant now. The petitioner respectfully submits that the petitioner is also entitled for the basic salary at Rs.5500/- instead of the basic salary of Rs.3540/- meant for Cleaner.
3. The petitioner is also annexing a Certificate issued by the Nadiad Nagar Palika dated 15-3-1993 wherein the petitioner was called for interview for the post of Fire- brigade Driver and a copy of the said interview letter is annexed marked Annexure'G' to this petition. The petitioner respectfully submits that the petitioner appeared in the interview taken by the Chief Officer of the Nagar Palika and petitioner was selected and the petitioner was issued Identity Card to that effect but somehow the appointment order was not issued by the respondent Nagar Palika and therefore, the petitioner is not being granted the pay-scale of Driver though the petitioner is working as Driver since 1984 continuously and even today.
4. The petitioner respectfully submits that the petitioner is now going to retire on 30-11-2015. The petitioner respectfully submits that the Director of Municipality has sanctioned various posts in the respondent Nagar Palika and a copy of the sanctioned set up of the respondent Nagar palika dated 4-72012 is annexed marked Annexure'H' to this petition. The petitioner respectfully submits that if the Hon'ble court is kind enough to peruse the said set up, there are 10 vacancies fallen vacant in the Nadiad Nagar Palika in the cadre of Driver. The petitioner respectfully submits that there are sanctioned set up in the cadre of Driver in the respondent Nagar Palika. The petitioner was called by the Chief Officer for appointment to the post of Driver in the year 1993. The petitioner appeared and was selected, Identity Card was also issued at relevent point of time. But somehow for the reasons best known, the appointment order was not issued and therefore, the petitioner though performing the duties as Driver, but receiving the salary for the post of Cleaner. The impugned action of the respondent is illegal, violative of Articles 14 & 16 of the Constitution of India. The petitioner respectfully submits that the Director of Municipality has recently in 2012 sanctioned the post of Driver and one permanent driver namely; Shri Mehboobbhai M. Malek has retired in the month of June,2015 and the post is still vacant and the petitioner is already working as Driver since 1984 but the petitioner has not been granted the pay-scale of Driver. The impugned action of the respondent in denying the basic salary of driver to the petitioner is illegal, violative of Articles 14 & 16 of the Constitution of India."
5. Mr. Mishra, learned advocate for the petitioner submitted that since 1984 the petitioner is performing duty of driver however the respondent Nagar Palika has not granted pay scale of driver and instead the petitioner is paid salary in the pay scale of cleaner.
Page 2 C/SCA/14206/2015 ORDER 5.1 Mr. Mishra, learned advocate for the petitioner submitted that since the petitioner is performing duty as driver he is entitled for equal pay i.e. salary / pay scale attached to the post of driver. However, the Nagar Palika has not paid him salary and not granted pay scale of driver. According to the learned advocate for the petitioner since the petitioner is deprived of the pay scale and salary for the post of driver, though he is performing duty of driver the petitioner is constrained to file present petition. So as to support the claim, learned advocate for the petitioner relied on the decision in case between State of Punjab vs. Jagjit Singh (2017) 1 SCC 148.
6. The respondent nagarpalika has opposed the petition. An affidavit dated 26.10.2015 is filed wherein the respondent has averred and stated that:-
"5. I say and submit that the petitioner has filed the present petition inter alia, praying to issue a writ of mandamus directing the respondents to grant the pay-scale of Driver to the petitioner from the date on which the petitioner appeared in the interview and issued the identity card to that effect and be further pleased to direct the respondent Nagarpalika to give the difference of wages along with 12% interest thereon. That as per the allegation of the petitioner, he was called for an interview in the year 1993 and, therefore, he is praying for the relief from 1993. Therefore, present petition is hopelessly time barred. I say and submit that even petitioner is having an alternative remedy to approach the Labour Court for the relief sought for in the petition. I say and submit that, it is an highly disputed question of fact that whether petitioner was given such identity card or not and whether he was appointed as Driver or not. I say that petitioner has to establish his allegation and contention raised in the petition by leading cogent evidence, subject to his cross-examination and, therefore, he has to approach the Labour Court for such relief and the present petition under Article 226 of the Constitution of India is not maintainable.
Page 3 C/SCA/14206/2015 ORDER
6. With reference to paragraph-1 of the petition, I say and submit that what is stated therein is not true and correct and therefore not admitted. What is stated in paragraph-1 is highly disputed question of fact and strongly denied by me. I say and submit that it is not true that petitioner is working as Driver with the Nagarpalika. It is also not true that petitioner, right from 1984, is performing his duties as Driver. I say that the certificate produced by him at Annexure-A dated 31.10.1984 was alleged to have been issued by Auto Engineer and not issued by the Chief Officer. Petitioner has to prove the genuineness of the certificate by leading evidence before the Labour Court.
7. I say and submit that earlier, the petitioner has raised grievance before the District Collector, Kheda against the appointment/ promotion of several employees in the year 1995 and thereafter he has participated in the proceedings before this Hon'ble High Court i.e. Special Civil Application No.10751/ 1996 and Letters Patent Appeal No.1089/ 1999. In the above proceedings he raised grievance that he was not given promotion from the post of Cleaner to the post of Driver. Thereafter, the present petitioner has filed Misc. Civil Application No.2762/2014 under section 12 of the Contempt of Courts Act, alleging breach of directions issued by the Hon'ble Division Bench in Letters Patent Appeal No.1089/1999. I say and submit that he has filed Misc. Civil Application No.2762 / 2014 in a nature of petition praying promotion to the post of Driver. He has filed various replies raising his grievance that he is working as cleaner and there is a post of Driver in the Nagarpalika and therefore, he is entitled to be promoted to the post of Driver. I say and submit that as such, the present petitioner has passed 5th standard examination and is holding Driving License to driver Light Motor Vehicle. I say that he is not holding Driving License to driver Heavy Motor Vehicle and has not passed 8th standard examination and he does not possess the minimum qualification required for the post of Driver. I say and submit that since I have complied with the directions of the Letters Patent Appeal, the contempt petition filed by the present petitioner came to be dismissed by the Hon'ble Division Bench.
8. I respectfully say and submit that the certificate produced at Annexure-B is also doubtful and even issued by Auto Engineer in the year 1993. I say and submit that with effect from 31.03.1993 the Administrator was appointed in the N agarpalika. I say and submit that earlier the petitioner was working as a daily wager and thereafter he was appointed as Cleaner for one year probation as per the Rules and he has been paid the salary for the post of Cleaner. As stated above, the petitioner was never appointed as Driver nor he is eligible for the post of Driver and therefore, he is not entitled for the pay-scale of Driver, as prayed for in the petition. I say that the identity card produced at Annexure-D is also of which year is not clear from the Photostat copy of the Annexure-D. I say that the petitioner never served as Fire Brigade Driver nor even appointed as Driver and even not entitled for the post of Heavy Vehicle Driver as he has passed 5th standard examination only. Therefore, it is a matter of inquiry as to how he has forged such an identity card. I say that petitioner has never worked as Driver as alleged and it is strongly denied that he was working as Driver since 1984
9. With reference to paragraph~2 of the petition, I say that one Mehboobbhai M. Malek was working as Driver and retired from the post of Driver. But, this fact has nothing to do with the controversy involved in the present petition and therefore, I do not offer any comment at this stage.
10. With reference to paragraph-3 of the petition, I say that what is stated therein is not true and correct and therefore, not admitted. I say that he applied for promotion to the post of Driver and therefore, he was called for interview on 24.03.1993. He was never appointed on the post of Driver. I sav and submit that, by office order dated 31.03. 1993 he was promoted from the post of daily wager to the post of Cleaner and appointment order was issued to him. Hereto annexed an marked as ANNEXURE-R1 is copy of the of the order dated 31.03.1993. I say that it is not true that he was selected as Driver and identity card was issued. I say that petitioner must be put to strict proof thereof to prove the fact that he is not appointed] promoted as Cleaner but he was appointed as Driver as alleged by him. I say that petitioner has prove all these facts by leading cogent evidence subject to his cross-examination, which is only possible before the Hon'ble Labour Court.
11. With reference to paragraph-4 of the petition, I say and submit that it is not disputed that petitioner is going to retire on 30.11.2015. It is also not disputed that the Director of Municipalities has sanctioned various posts in the set-up of Page 4 C/SCA/14206/2015 ORDER Nagarpalika. But, it has nothing to do with his initial appointment. I say and submit that at present also the petitioner is working as Cleaner and accordingly. the Nagarpalika is paying the salary to him. It is also evident from his pay-slip of June, 2015 produced by him at Annexure-E to the petition. Therefore, the prayer of the petitioner seeking pay-scale of Driver from the year 1993 is misconceived and not tenable in law and therefore, petition is required to be dismissed at its threshold."
7. Learned advocate for the respondent reiterated the contention and crux of the details mentioned in the reply affidavit and submitted that the petition and the claim raised by the petitioner is unjustified and that even otherwise statutory alternative remedy is available to the petitioner. With the said submission learned advocate for the respondent submitted that the petition may be rejected.
8. The petitioner has filed rejoinder affidavit wherein the petitioner has mentioned details of the promotion given to certain persons and it is alleged that the nagar palika has granted illegal promotion to several persons.
9. For reason more than one the petition does not deserve to be entertained. The petition does not deserve to be entertained, inter alia, because (a) statutory alternative remedy is available (b) disputed issues and questions of fact
- determination of which would necessitate oral and documentary evidence (c) the petitioner does not have existing and substantive right for the pay scale claimed by Page 5 C/SCA/14206/2015 ORDER him (d) the duty allegedly performed by him is not assigned by and under official and formal authorization (e) the substantive and permanent post which he holds is different than the post in respect of which he has raised the claim (f) claim - dispute is raised after gross and inordinate delay (g) claim - dispute is also hit by waiver by conduct and / or acquiescence.
10. At the outside it is relevant and necessary to note that undipsutedly the petitioner is employee of the respondent nagar palika in category of cleaner and the said aspect is borne out from the document produced by the petitioner at annexure-C page 13.
10.1 The petitioner, undisputedly, holds substantive and permanent post of cleaner and he is appointed / employed in that category 10.2 Besides this, in reply to the querry by the Court even learned advocate for the petitioner admitted that the petitioner is a cleaner and is employed as permanent employee in the category of the cleaner and holds said permanent and substantive post.
Page 6 C/SCA/14206/2015 ORDER 10.3 It is also not in dispute that the petitioner draws salary in the pay scale of cleaner.
10.4 The petitioner has taken out present petition on the allegation that since 1984 he is discharging duty as driver. 10.5 It is pertinent and necessary to note that any order issued by the competent authority of nagar palika assigning additional charge or even duty of driver even on adhoc basis is not placed on record.
10.6 It is not even the case of the petitioner that competent authority assigned said duty (of Driver) to the petitioner by formally issuing a written order / instruction. 10.7 Thus, it is undisputed fact that there is no instruction or direction or order by the competent authority requiring the petitioner to discharge the duty of driver. 10.8 In that view of the matter a petition based on unsubstantiated and uncorroborated allegations cannot be entertained. The petitioner must prove allegation with aid of cogent evidence.
Page 7 C/SCA/14206/2015 ORDER 10.9 Of course the petitioner has relied on a document (certificate) dated 31.10.1984 which is placed on record at page 9/A. 10.10 The said certificate, according to the petitioner, gives out that the petitioner was acting as driver from 1981 to 1984 and at other time "he used to work with mechanical job".
10.11 The said certificate is, allegedly, issued by Auto Engineer.
11. So far as the said certificate is concerned the competence of the authority to issue said certificate is not accepted, rather challenged by the nagar palika. 11.1 In paragraph No. 6 of the reply affidavit the respondent nagar palika has mentioned that-
"6. With reference to paragraph-1 of the petition, I say and submit that what is stated therein is not true and correct and therefore not admitted. What is stated in paragraph-1 is highly disputed question of fact and strongly denied by me. I say and submit that it is not true that petitioner is working as Driver with the Nagarpalika. It is also not true that petitioner, right from 1984, is performing his duties as Driver. I say that the certificate produced by him at Annexure-A dated 31.10.1984 was alleged to have been issued by Auto Engineer and not issued by the Chief Officer. Petitioner has to prove the genuineness of the certificate by leading evidence before the Labour Court.
11.2 In his rejoinder the petitioner has conveniently remained silent about details mentioned by the respondent Page 8 C/SCA/14206/2015 ORDER nagar palika in paragraph No. 6 of the affidavit with regard to said certificate.
11.3 Even the petitioner has not claimed that the said Auto Engineer is the competent authority to assign work of driver to an employee, employed by nagar palika as cleaner and / or that said auto engineer is competent authority to assign other duty to an employee holding different post in different department where said auto engineer has any authority -
even administrative authority.
12. Merely because the employee holds driver license it does not mean that any officer or any other employee of the nagar palika can ask such employee to work as driver.
12.1 If such other employee or officer of nagar palika instructs some other employee to perform duty which he is officially not required to do then such instruction would not confer any right on the employee to demand pay scale of such other post.
13. In present case it is not in dispute that any competent officer of the nagar palika, through competent authority had Page 9 C/SCA/14206/2015 ORDER not formally issued any official order or instruction or direction to the petitioner to discharge duty of driver and it is also not in dispute that he was not officially assigned additional charge of the post of driver or even the additional duty to work as driver.
14. Besides this, there is no material on record of this petition to demonstrate that for entire period from 1984 to 2015 as alleged by the petitioner he continuously i.e. every day during 12 months of year and every year from 1984 to 2015 worked as driver and he was regularly and continuously required to perform the duty of driver. 14.1 Even the certificate (genuineness and authenticity of which is disputed by respondent) mentions limited period viz. 1981 to 1984.
14.2 In absence of cogent evidence the allegation by the petitioner that he performed duty as driver from 1984 to 2015 even otherwise cannot be accepted and entertained.
15. Such bald allegation cannot create any right in favour of the petitioner and cannot justify demand made by the Page 10 C/SCA/14206/2015 ORDER petitioner.
15.1 If at all the petitioner performed such duty continuously for such long period, as alleged by him, then the petitioner should prove and establish such factual aspect by leading appropriate evidence.
16. In present case neither such evidence is available nor there is any material on record to demonstrate that the petitioner performed duty of driver and not as cleaner, that too continuously and regularly from 1984 to 2015 which would mean that during said period he did not perform his substantive duty as cleaner. Such factual aspects must be proved with aid of cogent and sufficient evidence, which is absent from record of this petition.
16.1 In absence of any cogent evidence, such claim cannot be accepted and the respondent cannot be directed to grant pay scale of driver to the petitioner.
17. So far as the decision in case of State of Punjab (supra) on which learned advocate for the petitioner has placed reliance is concerned it may be mentioned that in light of Page 11 C/SCA/14206/2015 ORDER the facts of present case the said decision does not render any assistance to the petitioner.
17.1 The facts of present case are materially different from the facts involved in the cited decision.
18. At this stage it is appropriate to take into account factual background involved in the cited decision (which is briefly mentioned in paragraph Nos. 2 to 5 of the decision). The said paragraph Nos. 2 to 5 reads thus:-
"2. A division bench of the Punjab and Haryana High Court, in State of Punjab & Ors. v. Rajinder Singh & Ors. (LPA no. 337 of 2003, decided on 7.1.2009), set aside, in an intra-court appeal, the judgment rendered by a learned single Judge of the High Court, in Rajinder Singh & Ors. v. State of Punjab & Ors. (CWP no. 1536 of 1988, decided on 5.2.2003). In the above judgment, the learned single Judge had directed the State to pay to the writ petitioners (who were daily-wagers working as Pump Operators, Fitters, Helpers, Drivers, Plumbers, Chowkidars etc.), minimum of the pay-scale, revised from time to time, with permissible allowances, as were being paid to similarly placed regular employees; arrears payable, were limited to a period of three years, prior to the date of filing of the writ petition. In sum and substance, the above mentioned division bench held, that temporary employees were not entitled to the minimum of the pay-scale, as was being paid to similarly placed regular employees.
3. Another division bench of the same High Court, in State of Punjab & Ors. v. Rajinder Kumar (LPA no. 1024 of 2009, decided on 30.8.2010), dismissed an intra- Court appeal preferred by the State of Punjab, arising out of the judgment rendered by a learned single Judge in Rajinder Kumar v. State of Punjab & Ors. (CWP no. 14050 of 1999, decided on 20.11.2002), and affirmed the decision of the single Judge, in connected appeals preferred by employees. The letters patent bench held, that the writ petitioners (working as daily-wage Pump Operators, Fitters, Helpers, Drivers, Plumbers, Chowkidars, Ledger Clerks, Ledger Keepers, Petrol Men, Surveyors, Fitter Coolies, Sewermen, and the like), were entitled to minimum of the pay- scale, alongwith permissible allowances (as revised from time to time), which were being given to similarly placed regular employees. Arrears payable to the concerned employees were limited to three years prior to the filing of the writ petition. In sum and substance, the division bench in State of Punjab & Ors. v. Rajinder Kumar (LPA no. 1024 of 2009) affirmed the position adopted by the learned single Judge in Rajinder Singh & Ors. v. State of Punjab & Ors. (CWP no. 1536 of 1988). It is apparent, that the instant division bench, concluded conversely as against the judgment rendered in State of Punjab & Ors. v. Rajinder Singh (LPA no. 337 of 2003), by the earlier division bench.
4. It would be relevant to mention, that the earlier judgment rendered, in State of Punjab & Ors. v. Rajinder Singh & Ors. (LPA no. 337 of 2003) was not noticed by the later division bench - in State of Punjab & Ors. v. Rajinder Kumar (LPA no. 1024 of 2009). Noticing a conflict of views expressed in the judgments rendered by two division benches in the above matters, a learned single Judge of the High Court, Page 12 C/SCA/14206/2015 ORDER referred the matter for adjudication to a larger bench, on 11.5.2011. It is, therefore, that a full bench of the High Court, took up the issue, for resolving the dispute emerging out of the differences of opinion expressed in the above two judgments, in Avtar Singh v. State of Punjab & Ors. (CWP no. 14796 of 2003), alongwith connected writ petitions. The full bench rendered its judgment on 11.11.2011. The present bunch of cases, which we have taken up for collective disposal, comprise of a challenge to the judgment rendered by the division bench of the High Court in State of Punjab & Ors. v. Rajinder Singh & Ors. (LPA no. 337 of 2003, decided on 7.1.2009); a challenge to the judgment, referred to above, in State of Punjab & Ors. v.
Rajinder Kumar (LPA no. 1024 of 2009, decided on 30.8.2010); as also, a challenge to the judgment rendered by the full bench of the High Court in Avtar Singh v. State of Punjab & Ors. (CWP no. 14796 of 2003, decided on 11.11.2011). This bunch of cases, also involves challenges to judgments rendered by the High Court, by relying on the judgments referred to above.
5. The issue which arises for our consideration is, whether temporarily engaged employees (daily-wage employees, ad-hoc appointees, employees appointed on casual basis, contractual employees and the like), are entitled to minimum of the regular pay-scale, alongwith dearness allowance (as revised from time to time) on account of their performing the same duties, which are discharged by those engaged on regular basis, against sanctioned posts."
19. In present case it is necessary to recall that the petitioner, unlike the employees concerned in the cited decision is not daily wager or is not an employee engaged on temporary or adhoc basis for performing duty which are performed by permanent employees holding the same post (i.e. the post to which duties performed by petitioners and permanent employees are attached).
19.1 The petitioners concerned in cited case were not performing duties of the post other than the post where they were engaged but they were performing duties of the very same post where they were engaged on daily wage / temporary / adhoc basis. The employees concerned in cited decision were not holding any permanent and substantive Page 13 C/SCA/14206/2015 ORDER post whereas the petitioner in present case holds a permanent and substantive post but he alleged that he performed duty of some other post.
19.2 The petitioner in present case is actually regular and permanent employee on the post of cleaner and he holds the said substantive and permanent post (i.e. post of cleaner). 19.3 In the cited decision the concerned employees were engaged on daily wage, adhoc and temporary basis for performing duties of various posts and they claimed pay scale of same posts where they were engaged and they discharged duties.
19.4 The employees concerned in the cited decision were not regular and permanent employee for the post other than the post where they worked and for which they claimed the pay scales but they performed the duty of the same post for which they were engaged on temporary / adhoc basis. 19.5 The employees concerned in the cited decision did not hold on regular and permanent basis a substantive post different from the post for which they staked their claim and Page 14 C/SCA/14206/2015 ORDER where they performed duties.
19.6 Whereas in present case the petitioner is appointed on permanent post of cleaner and he holds the said substantive and permanent post on regular and permanent basis. He draws salary for the post of cleaner. 19.7 Whereas he claims pay scale for the post of driver for which he is not engaged.
20. Under the circumstances his claim on the principle of equal pay or parity of wages is not justified. 20.1 This is the position besides the fact that there is no cogent and reliable evidence on record to demonstrate that the petitioner performed the duty during entire period for which he has raised the claim. The said allegation itself is question of highly disputed facts which can be adjudicated and decided by trial court after recording - receiving evidence.
21. For all these reasons the petitioner's attempt to justify his claim on the basis of decision by Hon'ble Apex Court in case of State of Punjab (supra) is unjustified.
Page 15 C/SCA/14206/2015 ORDER
22. Besides this, the petitioner's claim and allegation are also hit by inordinate and gross delay.
22.1 Even if it is assumed that there is some substance in petitioner's claim and allegation viz. that since 1984 the petitioner was discharging duty as driver, then also in absence of any justification for not raising dispute or claim from 1984 until 2015 i.e. for almost 30 years, the petitioner's claim in present petition cannot be entertained and granted. The delay also amounts to or give rise to presumption of waiver and / or acquiescence. 22.2 Further, as mentioned earlier in absence of any official order issued by the competent authority whereby petitioner came to be officially assigned additional duty or additional charge or he came to be engaged for the work of driver, any right to claim pay scale for post of driver would not accrue in favour of the petitioner, more particularly when it is not established that any official instruction by any competent authority was issued and that he performed duty as driver under official instruction issued by competent authority and also in absence of any evidence to establish that during Page 16 C/SCA/14206/2015 ORDER entire period in question the petitioner was performing duty as driver and not as cleaner.
23. The details mentioned by the respondent nagar palika in paragraph No. 6 of the reply affidavit clearly gives out that the petitioner was never assigned additional charge by any competent authority and any competent authority had never instructed the petitioner to perform duty of driver. 23.1 The nagar palika has categorically mentioned that Auto Engineer is not departmental head nor competent authority to issue such instruction and the said Auto Engineer is not also competent to issue such certificate to the petitioner. 23.2 The respondent nagar palika has categorically called upon the petitioner to prove genuineness of the certificate by leading appropriate evidence.
23.3 The petitioner has failed on that count. It is pertinent that in his rejoinder the petitioner has, despite such specific stand by the respondent nagar palika, remained silent about said issue.
24. From the petition it comes out that the petitioner Page 17 C/SCA/14206/2015 ORDER claims that at one stage he had participated in selection process for the post of driver.
24.1 The petitioner has alleged that he participated in the said selection process and he was selected. 24.2 However what is material and relevant is the fact that the petitioner has failed to place on record any order selecting / appointing him as driver.
24.3 There is no material on record to demonstrate that the nagar palika issued appointment order to the petitioner for the post of driver and he came to be appointed / employed in the category of and on the post of driver. 24.4 Mere participation in selection process does not lead to the conclusion - not even inference - that the petitioner was selected and appointed as driver.
24.5 In absence of any appointment order (order appointing the petitioner) to the post of driver such bald and unsubstantiated allegations cannot be accepted.
25. Further, it is also relevant and necessary to note that Page 18 C/SCA/14206/2015 ORDER under rules of nagar palika qualification and eligibility criteria for the post of driver must have been prescribed. 25.1 Since nagar palika has, according to the petitioner, prescribed pay scale for the post of driver it follows that the eligibility criteria for the said post must have been prescribed by the nagar palika.
25.2 The petitioner has not mentioned relevant details and it is pertinent that though the nagar palika claimed that he is not eligible for employment as driver the petitioner has failed to prove that he fulfills requisite qualification and meets with the eligibility criteria prescribed under the rules. 25.3 In this context it is relevant and necessary to take into account the details mentioned by the respondent nagar palika in reply affidavit in paragraph No. 8 which reads thus:-
"8. I respectfully say and submit that the certificate produced at Annexure-B is also doubtful and even issued by Auto Engineer in the year 1993. I say and submit that with effect from 31.03.1993 the Administrator was appointed in the N agarpalika. I say and submit that earlier the petitioner was working as a daily wager and thereafter he was appointed as Cleaner for one year probation as per the Rules and he has been paid the salary for the post of Cleaner. As stated above, the petitioner was never appointed as Driver nor he is eligible for the post of Driver and therefore, he is not entitled for the pay-scale of Driver, as prayed for in the petition. I say that the identity card produced at Annexure-D is also of which year is not clear from the Photostat copy of the Annexure-D. I say that the petitioner never served as Fire Brigade Driver nor even appointed as Driver and even not entitled for the post of Heavy Vehicle Driver as he has passed 5th standard examination only. Therefore, it is a matter of inquiry as to how he has forged such an identity card. I say that petitioner has never worked as Driver as alleged and it is strongly denied that he was working as Driver Page 19 C/SCA/14206/2015 ORDER since 1984"
25.4 So far as petitioner's allegation that he is participated in selection process is concerned the respondent has dealt with the said allegation in the reply affidavit and in that context below mentioned clarification is offered by the respondent nagar palika:-
"10. With reference to paragraph-3 of the petition, I say that what is stated therein is not true and correct and therefore, not admitted. I say that he applied for promotion to the post of Driver and therefore, he was called for interview on 24.03.1993. He was never appointed on the post of Driver. I sav and submit that, by office order dated 31.03.1993 he was promoted from the post of daily wager to the post of Cleaner and appointment order was issued to him. Hereto annexed an marked as ANNEXURE-R1 is copy of the of the order dated 31.03.1993. I say that it is not true that he was selected as Driver and identity card was issued. I say that petitioner must be put to strict proof thereof to prove the fact that he is not appointed] promoted as Cleaner but he was appointed as Driver as alleged by him. I say that petitioner has prove all these facts by leading cogent evidence subject to his cross-examination, which is only possible before the Hon'ble Labour Court."
25.5 In his rejoinder affidavit the petitioner has note denied or disputed the details mentioned by the respondent nagar palika in paragraph Nos. 6 to 11 of reply affidavit. Thus, the said details mentioned by the respondent nagar palika have remained uncontroverted.
26. As mentioned above, the allegations which are raised by the petitioner and the reply by the respondent nagar palika give rise to several disputed questions which cannot be determined in present petition.
26.1 The disputed questions which arise from this petition are such which would necessitate oral and documentary Page 20 C/SCA/14206/2015 ORDER evidence including cross examination. The said process is not feasible in writ proceeding.
27. Even otherwise, there is statutory alternative remedy available to the petitioner.
For reasons mentioned above, relief prayed for by the petitioner does not deserve to be and cannot be granted.
Therefore, the petition is rejected. Notice is discharged.
(K.M.THAKER, J) SURESH SOLANKI Page 21