Gujarat High Court
Kanuji Sambhuji Thakor vs State Of Gujarat & 2 on 2 March, 2016
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/12151/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 12151 of 2015
==========================================================
KANUJI SAMBHUJI THAKOR....Petitioner(s)
Versus
STATE OF GUJARAT & 2....Respondent(s)
==========================================================
Appearance:
MR. YOGENDRA THAKORE, ADVOCATE for the Petitioner(s) No. 1
MR. UTKARSH SHARMA, ASSTT.ADVANCE COPY SERVED TO GP/PP for the Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 1 - 3
==========================================================
CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 02/03/2016
ORAL ORDER
By this writ-application under Article 226 of the Constitution of India, the petitioner has prayed for the following reliefs:-
"12(A) Be pleased to allow this Special Civil Application.
(B) Be pleased to issue writ of mandamus or any other appropriate writ, order or direction by quashing and setting aside the order passed by respondent No.3 dated 1/7/2015 and be further pleased to direct the respondents to give benefits of the Government Resolution dated 17/10/1988 and to pay all the consequential benefits including salary, arrears and regularize the service of the petitioner pursuance to the aforesaid resolution along with interest of 18%.
(C) Pending hearing and final disposal of the present petition, be pleased to direct the respondents to forthwith start making payment of adhoc salary of permanent employee to the petitioner.
(D) Such other and further reliefs as and deemed fit in the facts and circumstances of this case may kindly be granted."
The petitioner was serving with the Forest Department as a daily wager between 28.9.2004 and 27.9.2012. It is his case that since he worked continuously for Page 1 of 4 HC-NIC Page 1 of 4 Created On Fri Mar 04 02:05:50 IST 2016 C/SCA/12151/2015 ORDER a period of five years or 240 days, he is entitled to the benefit of the Government Resolution dated 17.10.1988.
It appears that in the first round of litigation, an order was passed by this Court dated 3.3.2015 in SCA No. 3115/14, which is at page 31 (Annexure "D" to this petition), directing the respondents to look into the claim of the petitioner and take an appropriate decision in that regard.
Pursuant to the order passed by this Court referred to above, the Deputy Conservator of Forest, Gandhinagar passed an order dated 1.7.2015, which is impugned before me (Annexure "E" to this petition), holding that the petitioner is not entitled to the benefit of Government Resolution dated 17.10.1988, for the reasons stated in the said order. On behalf of the respondent No.3, the Deputy Conservator of Forest has filed an affidavit-in-reply, which reads as under:-
"5. The petitioner herein has preferred present petition to quash and set aside the order dated 1.7.2015 passed by the respondent authority and further direct the respondents to give benefits of the government resolution dated 17.10.1988 to pay all the consequential benefits including salary, arrears and regularization of the service of the petitioner.
6. The petitioner herein was a daily wager and he was called for work as and when it was required. The petitioner started coming as a daily wager from 28.9.2004 in the Wild Life Training Range, Forest Department and he was called for work as and when it was required. It is pertinent to note that the petitioner was neither appointed after following due procedure of law nor his appointment was pursuant to any recruitment process as a driver by the State Government. The petitioner was coming as a daily wager and at no point of time his services were regularized either by the Department or State Government.
7. The petitioner voluntarily stopped coming from 28.9.2012 and thereafter he was not bothered to turn up before the authorities. I say and submit that thereafter on 4.6.2014, the petitioner came before the authorities first time and submitted a report for resuming the duty. It is submitted that the petitioner has suppressed material fact that after 27.9.2012, he has joined as a driver on daily wager basis from 1.4.2014 on fixed pay of Rs. 2,500/- per month with State Central Library. It is submitted that the petitioner continued to work till 18.12.2014. It is submitted that the suppression of the said aspect clearly reflects the intention of the petitioner.
8. So far as the contention raised by the petitioner to grant him the benefit contained in Government Resolution dated 15.9.2014 pursuant to the Page 2 of 4 HC-NIC Page 2 of 4 Created On Fri Mar 04 02:05:50 IST 2016 C/SCA/12151/2015 ORDER direction of the Apex Court is concerned, the same would not be applicable to the case of the petitioner. In other words the petitioner will not be eligible getting the benefits as contained in Government Resolution dated 15.9.2014.
9. The Apex Court in PWD Employee Union and ors. had directed the authorities to grant the benefits as contained in Government Resolution dated 15.9.2014 to all the eligible daily wager. I say and submit that pursuant to the directions issued by the Apex Court, the State Government passed Resolution dated 15.9.2014 whereby it was clearly stipulated that the benefits of the G.R will be extended to those working daily wage laborer whose service as on 29.10.2010 would be taken in to consideration for granting the benefits of the said Resolution.
10. For the purpose of computing the eligibility for availing the benefits as per Government Resolution dated 15.9.2014, the number of years wherein the daily wager has worked for more than 240 days in respective years shall be taken into consideration. I say and submit that in the instant case though the petitioner started coming from 28.9.2004 and worked till 27.9.2012, he has actually not completed more than 5 years (240 days each in a year) and therefore, the petitioner not entitled for availing the benefits pursuant to the government resolution dated 15.9.2014. The petitioner has failed to produce any evidence to show that his appointment was made after following due procedure of law and he has completed 240 days in each of the year and therefore the petitioner is not entitled for regularization of service as per Government Resolution dated 15.9.2014."
There are two-fold submissions canvassed by Mr. Thakore, the learned advocate appearing for the petitioner.
(i) That although the petitioner wanted to resume his service, the authorities did not permit him to do so and he has been orally terminated.
(ii) Assumsing for the moment that he has taken up employment with another Department, still he is entitled to the benefit of the G.R dated 17.10.88.
I am of the view that once he has taken up another employment, whatever may be the nature of the same, with any other Department, he is not entitled to the benefit of the G.R dated 17.10.1988. If it is the case of the petitioner that he has been wrongly terminated, then he has to raise a dispute under the I.D Act by making a Page 3 of 4 HC-NIC Page 3 of 4 Created On Fri Mar 04 02:05:50 IST 2016 C/SCA/12151/2015 ORDER Reference before the Labour Court.
Having considered the matter threadbare and having gone through the impugned order, I see no reason to entertain this writ-application. The same is accordingly rejected. It will be open for the petitioner to challenge his termination by availing of appropriate legal remedy before the appropriate forum, in accordance with law.
With the above, this application is disposed of. Direct service permitted.
(J.B.PARDIWALA, J.) Mohandas Page 4 of 4 HC-NIC Page 4 of 4 Created On Fri Mar 04 02:05:50 IST 2016