Gujarat High Court
Mahesh Dhirajlal Mehta vs State Of Gujarat & 3 on 6 May, 2016
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/4723/2014 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 4723 of 2014
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MAHESH DHIRAJLAL MEHTA....Petitioner(s)
Versus
STATE OF GUJARAT & 3....Respondent(s)
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Appearance:
MR NIRAV R MISHRA, ADVOCATE for the Petitioner(s) No. 1
MR SWAPNESHWAR GAUTAM, AGP for the Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 1 - 4
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 06/05/2016
ORAL ORDER
1 By this writ application under Article 226 of the Constitution of India, the petitioner, serving with the Forensic Science Laboratory, Junagadh, has prayed for the following reliefs:
"31 (A) Your Lordships may be pleased to admit and allow the present petition.
(B) Your Lordships may be pleased to hold and declare that the petitioner is entitled to the benefits as available under the Government Resolution dated 16.2.2006 and according be pleased to direct the respondent authorities to extend the benefits as available to the petitioner of time scale salary as provided under the Government Resolution dated 16.2.2006.
31(BB) Your Lordship may be pleased to hold and declare that the termination of the petitioner from his post of driver to be illegal, arbitrary, vindicative and malafide in nature and contrary to the directions and contrary to the directions issued by this Hon'ble Court vide its order dated 10.08.2012 in Special Civil Application No.8367 of 2012 (at Annexure 'K') in not disturbing the service conditions of the petitioner and therefore Page 1 of 11 HC-NIC Page 1 of 11 Created On Sun May 08 03:26:05 IST 2016 C/SCA/4723/2014 ORDER be further pleased to direct the respondent authorities to reinstate the petitioner to his original post as a driver with all consequential benefits;
(C) Your Lordships may be pleased to direct the respondent authorities to hold and declare that the petitioner has completed five years of services and therefore, he is entitled to be placed in the revised pay scale/Pay Band of Rs.5200 - 20,200/ and be pleased to direct the respondent authorities to place the petitioner in the said time scale grade and further be pleased to direct the respondent authorities to pay arrears of salary in difference to the petitioner.
(D) Your Lordships may kindly be pleased to pass any other further order/s as are deemed fit, just and proper in the facts and circumstances of the case and in the interest of justice."
2 The issue is no longer res integra in the judgment and order passed by this Court dated 21st July 2015 in the Special Civil Application No.12534 of 2013 and allied matters. The judgment reads as under:
"1. Since the issues falling for my consideration in all the captioned writ applications are the same, those were heard analogously and are being disposed of by this common judgment and order.
2. These writapplications are filed by the Drivers serving with the Forensic Science Laboratory Department of the State Government. They have prayed for the following reliefs: 25(A) Your Lordships may be pleased to admit and allow this Special Civil Application;
(B) Your Lordships may be pleased to quash and set aside the order passed by the respondent authorities dated 16.5.2013 and order dated 7.5.2013 passed by the Section Officer, Home Department, by holding the same to be illegal, arbitrary, without any application of mind, perverse, against the settled principles of law enunciated by this Hon'ble Court as well as by the Hon'ble Apex Court and against the benefits for which the petitioner is entitled to under the Government Resolution dated 16.2.2006 qua the part of not extending the benefits available to him under the Government Resolution dated 16.2.2006 by placing the petitioner on completion of five years of services in the time scale salary of Rs.30504590 and not placing him in the revised pay scale, i.e. in the Pay Band of Rs.520020200.
(C) Your Lordships may be pleased to direct the respondent authorities to extend the benefits available to the petitioner under the Government Page 2 of 11 HC-NIC Page 2 of 11 Created On Sun May 08 03:26:05 IST 2016 C/SCA/4723/2014 ORDER Resolution dated 16.2.2006, by placing the petitioner on completion of 5 years his services in the time scale salary of Rs.30504590 and be pleased to correspondingly revise the pay scale in the Pay Band of Rs.520020,200/.
(D) Your Lordships may be pleased to hold and declare the action on the part of the respondent authorities of not extending the benefits as available under the Government Resolution dated 16.2.2006 to the petitioner, is illegal, arbitrary, unconstitutional, discriminatory and therefore, null and void.
(E) Your Lordships may be pleased to hold and declare that the petitioner is entitled to the benefit as available under the Government Resolution dated 16.2.2006 and accordingly be pleased to direct the respondent authorities to place the petitioner in the time scale salary of Rs.30504590 and to pay him the arrears of difference on completion of five years of services.
(F) Your Lordships may kindly be pleased to pass any other further order/s as are deemed fit, just and proper in the facts and circumstances of the case and in the interest of justice.
26. Pending admission, hearing and final disposal of this Special Civil Application: (A) Your Lordships may be pleased to direct the respondent authorities to place the petitioner in the Pay Band of Rs.520020,200/.
(B) Your Lordships may be pleased to restrain the respondent authorities from terminating the services of the petitioner as and by way of victimization as he has approached this Hon'ble Court for his legitimate demand of salaries under the Government Resolution dated 16.2.2006, except in accordance with law.
3. The petitioners were appointed as Drivers some time in the year 2011. They had earlier come before this Court by way of the Special Civil Application No.7528 of 2012 with a prayer that they should be extended the benefit of the Government Resolution dated 16.02.2006. The said writ application was disposed of by this Court vide order dated 30.08.2012. The order reads thus:
1. This petition is directed against the inaction on the part of the respondent authorities in not extending the benefit of placing the petitioners in the time scale salary vide Government Resolution dated 16.02.2006 on the ground that the petitioners are regularly selected drivers with the respondent department.
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2. Mr. J.K. Shah, learned AGP appearing for the respondent no.1 has filed affidavitinreply, para 5 of which reads as under:
I state that as per Resolution No. FSL/10973960/5(A) dated 24.02.1999 issued by Home Department as there was a proposal to start Mobile Forensic Science Laboratories in Kutch Bhuj, Panchmahals, Amreli, Jamnagar, Porbandar, Anand and Banaskhta Districts and thereafter, by resolution no.
FSL/1098/4852(1)/A dated 21.10.1999, Mobile Laboratories at Dang, Surendranagar and Sabarkantha, 3 posts were sanctioned and in all 10 posts were sanctioned. I state that this posts were sanctioned only for temporary fix pay basis on pay scale of RS. 2500/. I state that the proposal was sent by Home Department to upgrade the temporary fixed pay posts into regular posts by letter dated 22.05.2008 but the same was not approved and it was requested by letter dated 22/5/2008 by Home Department to do needful as per the Government Resolution dated 16.02.2006 issued by the Finance Department. I state that considering the same appropriate proposal was sent to the Home Department on 13.05.2011 and the same is pending under the process of Home & Finance department.
Considering the aforesaid, this Court is of the view that it shall be in the interest of justice if the respondent authorities are directed to consider the case of the petitioners at the earliest.
3. In the premises aforesaid, the respondent authorities are directed to consider the case of the petitioners within a period of four months from the date of receipt of the writ of the order of this court. In the meantime, the service conditions of the petitioners shall not be changed and no adverse order shall be passed against the petitioners except for departmental proceedings. Petition stands disposed of accordingly without entering into the merits of the matter. Notice is discharged. Direct service is permitted.
4. It appears that thereafter, the Government took the decision vide order dated 07.05.2013 that considering the Government Resolution, dated 16.02.2006, the petitioners herein should be given Rs.2,000/ out of pocket over and above the fixed salary of Rs.2,500/ which they were drawing from the date of their appointments.
5. Being dissatisfied, the petitioners have come up with these writ applications.
6. Mr. Mishra, the learned advocate appearing for the petitioners submitted that the decision of the State Government could be termed as Page 4 of 11 HC-NIC Page 4 of 11 Created On Sun May 08 03:26:05 IST 2016 C/SCA/4723/2014 ORDER absolutely unreasonable and arbitrary. He pointed out that the identically placed Drivers with the other Departments of the State Government like Prohibition, etc., were also appointed in the fixed salary of Rs.2,500/ and such Drivers had also come before this Court in the past with the same grievance. This Court ordered to extend the benefit of the Government Resolution, dated 16.02.2006. Those drivers are drawing the salary in the payscale of Rs.520020,200/.
7. Mr. Mishra submitted that in the impugned order, the Government has made a reference of its Resolution dated 16.02.2006 but without assigning any cogent reasons for the same thought fit to only give benefit of Rs.2000/ and that too out of pocket. He submitted that bynow almost all petitioners have put in 15 years of service and as on today, they are drawing the fixed salary of Rs.4,500/. He submitted that the Government issued a Resolution, dated 16.02.2006 with a definite object and the object was to consider the cases of the employees like the petitioners herein, who were working on a fixed wages.
8. This writapplication has been vehemently opposed by Mr. Goutam, the learned AGP appearing for the State. He submitted that no error, not to speak of any error of law could be said to have been committed by the State Government in passing the impugned order. Mr. Goutam submitted that the petitioners herein although were appointed on vacant sanctioned posts by a regular recruitment, yet they were appointed in a fixed pay scale. According to him, if that be so, then the petitioners have no right to contend that they are entitled to the benefit of the Government Resolution, dated 16.02.2006. Mr. Goutam has relied on the affidavitinreply filed on behalf of the respondents no.1 and 2. He placed reliance on the following averments made in the reply.
6. I respectfully say and submit that the petitioner seeks quashed and set aside the order passed by the respondent authorities dated 16.05.2013 and order dated 07.05.2013 passed by the Section Officer, Home Department, and further stated that the petitioner is entitled under the government resolution dated 16.02.2006 qua the part of not extending the benefits available to him under government resolution dated 16.02.2006 by placing the petitioner on completion of five years of services in the time scale salary of Rs.30504590 and to pay him the arrears of difference on completion of five years services.
7. I respectfully say and submit that as per the resolution dated 24.02.1999 issued by the Home Department as there was a proposal to start new Mobile Laboratories in KutchBhuj, Amreli and Panchmahal districts were 3 (three) posts sanctioned and tehreafter by government resolution, dated 21.10.1999 to start Mobile Laboratories in Dang, Surendranagar and Sabarkantha districts 7 posts were sanctioned and accordingly total 10(ten) posts were sanctioned. These Page 5 of 11 HC-NIC Page 5 of 11 Created On Sun May 08 03:26:05 IST 2016 C/SCA/4723/2014 ORDER posts were sanctioned only on temporary fix pay basis in pay of Rs.2500/. The proposal was sent to the Home Department to upgrade the temporary fix posts into regular posts. By letter dated 22.05.2008 by Home Department due the proceedings. As per the Government resolution dated 16.02.2006 issued by the Finance Department proposal was sent to the Home Department on 13.05.2011. The Home Department had referred this case to Finance Department.
8. I respectfully say and submit that the petitioner and other drivers had filed Special Civil Application No.7528 of 2013 for regularization after five years as per the Finance Department, Government Resolution dated 16.02.2006. I further submit that the decision for giving the benefit to the petitioners was pending.
9. I respectfully say and submit that by order dated 30.08.2012 the Hon'ble Court had directed to the respondent to give benefits in four months as per the resolution of Finance Department dated 16.02.2006 approval from the Finance Department was taken by the Home Department. The Home Department conciliation with Finance Department stated that as the services of the petitioners are temporary and they cannot given the benefits of permanent employees. It is pertinent to note that on 07.05.2013 a list of temporary drivers were made and Rs.2000/ as additional remuneration was granted to the petitioners who had completed five years service after government resolution dated 16.02.2006. Hence, the prayers, prayed by the petitioners are not tenable and therefore, the prayers of the petitioners cannot be granted in the interest of justice.
9. Mr. Goutam, the learned AGP also placed reliance on the affidavitin rejoinder to the counter further affidavit filed by the petitioners. He placed reliance on the averments made in paragraphs4, 5, 6, 7, 8, 9 and 10, which reads as under:
4. I say that case of the drivers on which the petitioner is relying is the case of drivers who came to be appointed by the Govt. of Gujarat, Home Department vide letter No.FSL/2006/711/A dt.13/12/07 sanctioned 4 (four) post of drivers & thereafter the Govt. of Gujarat, Home Department vide letter No.FSL/102006/1523/A, dt.31/07/2008 sanctioned 6 (six) posts of drivers for 11(eleven) months with the condition of appointment for 11 months with fixed pay by the department for the period of 11 months or till the candidates are available through the Gujarat Subordinate Service Selection Board whichever is earlier. Accordingly, appointment of 10 drivers for 11 months with fixed pay of Rs.2500/ after giving advertisement. The persons who were appointed on the 4 posts of driver were relying after completion of their terms.
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5. It respectfully submitted, that the Govt. of Gujarat, General Administrative Department vide Resolution No.KPA/102008UO/126/G4 dt.17/01/2009 has excluded filling of 108 post of Class3 of Directorate of Forensic Science, Gandhinagar through the Gujarat Subordinate Service Selection Board in which 10 post of drivers were included. As per the Finance Department Resolution dt.16.02.2006 these posts were to be filled as Sahayak for 5 (five) years in respective cadre with fixed pay on adhoc basis. Accordingly advertisement was give at that time in 10(Ten) posts of drivers for 5(five) years in fixed pay Rs.2500/ and later on in the regular pay scale of 30504590 were recruited through an advertisement in daily news paper. Recruitment of 10(Ten) drivers were made through selection board framed by Government of Gujarat, when appointment of petitioner were made on section post by Government on part time and temporary basis with monthly fixed pay of Rs.2500/. Hence, petitioner's appointment made on part time basis do not apply with regular recruitment for 10(Ten) drivers.
6. I respectfully say that the Govt. of Gujarat, Home Department vide Resolution dated 24.02.1999, 7 posts of drivers Class3 were sanctioned for new mobile laboratory for the district of KuchhBhuj, Amreli, Panchmahal, Jamnagar, Porbandar, Anand and Banaskantha and as per the Govt. of Gujarat, Home Department vide resolution dated 21.10.1999, 3 posts of drivers for the mobile laboratory of Dang, Surendranagar and Sabarkantha were sanctioned. These posts were sanctioned as part time in the fixed pay of Rs.2500/. The copy of the aforementioned G.R. Is annexed herewith and marked as ANNEXURERI.
7. I say that the Govt. of Gujarat, Finance Department Resolution dated 16.2.06 for appointment of class3 and class4 is not applicable in case of part time appointment of drivers as these appointments were made prior to issuance of this G.R. dt.16/02/06. However, it is clarified herein that the Home Department has consultation with Finance Department on this issue. As the appointment of these drivers were part time and as per the terms and conditions of the appointment order, they cannot be made permanent. Nonetheless, the Government out of turn has sympathetically considered the case of these drivers and they were given additional Rs.2000/ per month as out of pocket expense after completion of five years vides Memorandum No.FSL/102006/A dt.07/05/2013. The copy of the aforesaid memorandum is annexed herewith and marked as ANNEXURERII.
8. I respectfully say and submit that the petitioner is relying on the Government Resolution dated 16.02.2006 which implemented with the prospective effect as such the petitioners were appointed on 2001 2004. Therefore, the petitioners' case will not be applicable and Page 7 of 11 HC-NIC Page 7 of 11 Created On Sun May 08 03:26:05 IST 2016 C/SCA/4723/2014 ORDER maintainable in the instant case.
9. I respectfully say and submit that the deponent office sought the guidance from the Finance Department providing the benefits to the petitioner of Government Resolution dated 16.02.2006 in response the Finance Department vide the communicated dated 19.02.2015 took a decision in proposal that earlier order of keeping the petitioner on fix pay was remained as its. (The deponent office shall produce original record if required the perusal of this Hon'ble Court.) At this juncture is also clarified that the proposal which was made by the deponent office clearly referred to the benefits, it is given in identical cases in the Prohibition and Excise Department. However, after taking into consideration of all the relevant aspects, the Finance Department refused to consider the petitioner case, consequentially, decided that petitioner cannot be granted because the post are sanctioned for fix term appoint. The copy of the same is annexed herewith and marked as ANNEXURERIII.
10. I say it's crucial to mention that there exists sanctioned post for driver wherein the appointment are to be filled by temporary (part time) basis on fix pay of Rs.2,500/. Therefore, it is suffice to say that the post to which petitioner is appointed respondent office is purely temporary and the same is duly mentioned in above state Government Resolution of 24.02.1999 and 21.10.1999. Moreover, I respectfully say the engagement of petitioners is on temporary basis would not confer any right for permanent appointment to any post.
10. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for my consideration is, whether the Government committed any error in passing the impugned order.
11. Although I have quoted the order which was passed earlier in Special Civil Application No.7528 of 2012, decided on 30.08.2012, yet, I deem it necessary to quote Paragraph5 of the affidavitinreply which was filed in that case by the State Government.
I state that as per Resolution No. FSL/10973960/5(A) dated 24.02.1999 issued by Home Department as there was a proposal to start Mobile Forensic Science Laboratories in KutchBhuj, Panchmahals, Amreli, Jamnagar, Porbandar, Anand and Banaskhta Districts and thereafter, by resolution no. FSL/1098/4852(1)/A dated 21.10.1999, Mobile Laboratories at Dang, Surendranagar and Sabarkantha, 3 posts were sanctioned and in all 10 posts were sanctioned. I state that this posts were sanctioned only for temporary fix pay basis on payscale of RS. 2500/. I state that the proposal was sent by Home Department to upgrade the temporary fixed pay posts Page 8 of 11 HC-NIC Page 8 of 11 Created On Sun May 08 03:26:05 IST 2016 C/SCA/4723/2014 ORDER into regular posts by letter dated 22.05.2008 but the same was not approved and it was requested by letter dated 22/5/2008 by Home Department to do needful as per the Government Resolution dated 16.02.2006 issued by the Finance Department. I state that considering the same appropriate proposal was sent to the Home Department on 13.05.2011 and the same is pending under the process of Home & Finance department.
12. It appears that the stance of the State Government was that the posts were sanctioned only for temporary fix pay basis on the payscale of Rs.2,500/. The proposal was forwarded to the Home Department to upgrade the temporary fixed pay posts into regular posts by a letter dated 22.05.2008 but the same was not approved and it was requested vide letter dated 22.05.2008 by the Home Department to do the needful in accordance with the Government Resolution, dated 16.02.2006 issued by the Finance Department. It also appears that the proposal was sent to the Finance Department by the Home Department and the same was pending at that point of time for the consideration of the Finance Department.
13. In such circumstances referred to above, the learned Single Judge directed the Government to take an appropriate decision in that regard. It is pursuant to the said directions that ultimately the impugned order came to be passed.
14. I am unable to understand the stance of the State Government, when it says that it has decided to pay Rs.2,000/ out of pocket in addition to the fixed salary of Rs.2,500/. There is not a single line in the impugned order explaining as to why the Government Resolution dated 16.02.2006 would not apply in Toto to the case of the petitioners herein. This is very relevant because in the impugned order the very same Government Resolution, 2006 has been relied upon.
15. There is no reply at the end of the State Government as to how the Drivers selected in the Excise and the Prohibition Department, have been given the benefit of the Government Resolution, dated 16.02.2006, by order dated 13.07.2007 of the Home Department. There is no explanation why this discrimination. The only reason which appears to be very apparent is the financial implication. If the Government could reconsider the decision of giving benefit of the Government Resolution, dated 16.02.2006 to the Drivers of the Excise and the Prohibition Department, then there was no good reason for the Government to deny this benefit to the Drivers of the F.S.L. Department. Their duties and functions are the same, other conditions of service are the same; their mode of appointment was the same.
16. For all the foregoing reasons, I am of the view that the impugned order is not sustainable in the eye of law. The petitioners herein who have Page 9 of 11 HC-NIC Page 9 of 11 Created On Sun May 08 03:26:05 IST 2016 C/SCA/4723/2014 ORDER completed five years of services from the initial date of their appointments and who are drawing as on today fixed the salary of Rs.4,500/ are entitled to the benefit of the Government Resolution, dated 16.02.2006.
17. In the result, all these applications are allowed. The respondents are directed to extend the benefit of the Government Resolution, dated 16.02.2006 to the petitioners. This benefit shall enure in their favour from the next month onwards.
Rule is made absolute to the aforesaid extent. Direct service is permitted."
3 My attention is drawn to the fact that against the judgment and order passed by me referred to above, the State of Gujarat preferred a Letters Patent Appeal No.34 of 2016 and allied appeal. All the appeals came to be dismissed by the judgment and order 8th March 2016. Thus, the view taken by this Court has been affirmed.
4 There is no difficulty in giving the benefits of the judgment referred to above so far as the petitioner is concerned, but there is one impediment coming his way i.e. his services came to be terminated in 2012. Surprisingly, the benefits of the Government Resolution dated 16th February 2006 came to be granted in favour of the petitioner in 2013. My attention is also drawn to an order passed by the learned Single Judge dated 30th August 2012 in the Special Application No.8367 of 2012, which reads as under;
1. This petition is directed against the inaction on the part of the respondent authorities in not extending the benefit of placing the petitioner in the time scale salary vide Government Resolution dated 16.02.2006 on the ground that the petitioner is regularly selected driver with the respondent department.
2. Mr. Pranav Dave, learned AGP appearing for the respondent no.1 has filed affidavitinreply, para 5 of which reads as under:
"I state that as per Resolution No. FSL/10973960/5(A) dated 24.02.1999 issued by Home Department as there was a proposal to start Mobile Forensic Science Laboratories in KutchBhuj, Page 10 of 11 HC-NIC Page 10 of 11 Created On Sun May 08 03:26:05 IST 2016 C/SCA/4723/2014 ORDER Panchmahals, Amreli, Jamnagar, Porbandar, Anand and Banaskhta Districts and thereafter, by resolution no. FSL/1098/4852(1)/A dated 21.10.1999, Mobile Laboratories at Dang, Surendranagar and Sabarkantha, 3 posts were sanctioned and in all 10 posts were sanctioned. I state that this posts were sanctioned only for temporary fix pay basis on payscale of RS. 2500/. I state that the proposal was sent by Home Department to upgrade the temporary fixed pay posts into regular posts by letter dated 22.05.2008 but the same was not approved and it was requested by letter dated 22/5/2008 by Home Department to do needful as per the Government Resolution dated 16.02.2006 issued by the Finance Department. I state that considering the same appropriate proposal was sent to the Home Department on 13.05.2011 and the same is pending under the process of Home & Finance department."
Considering the aforesaid, this Court is of the view that it shall be in the interest of justice if the respondent authorities are directed to consider the case of the petitioner at the earliest.
3. In the premises aforesaid, the respondent authorities are directed to consider the case of the petitioner within a period of four months from the date of receipt of the writ of the order of this court. In the meantime, the service conditions of the petitioner shall not be changed and no adverse order shall be passed against the petitioner except for departmental proceedings. Petition stands disposed of accordingly without entering into the merits of the matter. Notice is discharged. Direct service is permitted."
5 In such circumstances referred to above, the respondent No.1 shall consider the case of the petitioner in reinstating in service, and thereafter, extending the benefits of the Government Resolution dated 16th February 2006. Let such decision be taken within a period of two months from the date of receipt of this order and the same shall be communicated to the petitioner.
6 With the above, this application is disposed of. Direct service is permitted.
(J.B.PARDIWALA, J.) chandresh Page 11 of 11 HC-NIC Page 11 of 11 Created On Sun May 08 03:26:05 IST 2016