Gujarat High Court
D.B. Chawada vs State Of Gujarat And Ors. on 2 March, 1989
Equivalent citations: (1990)1GLR5
JUDGMENT R.C. Mankad, J.
1. Important question which arises for consideration in this petition is whether the petitioner, who was appointed as a Clerk on daily wages or as work-charged clerk within the prescribed age limit can claim benefit under Sub-rule (5) of Rule 8 of the Gujarat Civil Services Classification and Recruitment (General) Rules, 1967 ("General Rules" for short) on his regular appointment as clerk on the work-charged establishment, after he had crossed the upper age limit prescribed for the said post.
2. The above question arises in the background of the following undisputed facts:
Petitioner was appointed as Clerk on daily wages for the period from June 21, 1979 to September 30, 1981 under Capital Project (Sub-Division No. 8) at Gandhinagar. On October 1, 1981 the petitioner was appointed as work-charged Clerk for 29 days under order dated October 1, 1981 passed by the Executive Engineer, Roads & Buildings Department, Godhra ("Executive Engineer" for short). On expiry of 29 days petitioner was reappointed as work-charged Clerk again for 29 days. Such appointments for 29 days were made upto May 19, 1982. The Executive Engineer called for names of persons for regular appointments on the work-charged establishment from the office of the Employment Exchange at Godhra. The Office of the Employment Exchange at Godhra sent a list of 32 candidates, which included the name of the petitioner, is response to the requisition made by the Executive Engineer. In this list while giving details of the petitioner two birth dates were mentioned, namely, June 1, 1956 and December 11, 1957. As against the date December 11, 1957 it was stated "as per affidavit". June 1, 1956 is the date mentioned in the School Leaving Certificate of the petitioner. Candidates, whose names were sent by the Employment Exchange were interviewed by a Selection Committee and the petitioner was one of the candidates, who was selected for appointment to the post of work-charged clerk. The petitioner was appointed as Clerk on the work-charged establishment for six months under order dated May 19, 1982. Petitioner was, thereafter, given appointments as Clerk on the work-charged establishment for limited periods from time to time and he continued on this post upto April 14, 1983. From April 15, 1983 to July 30, 1987 petitioner worked as Clerk but he was paid daily wages as skilled labourer. Petitioner was not given any work after July 30, 1987, nor was he paid any salary or wages for any period subsequent to July 30, 1987.
3. The petitioner has alleged that he worked as work-charged clerk continuously from October 1, 1981 to July 30, 1987. However, between October 1, 1981 and May 19, 1982 he was given appointments as Clerk for 29 days under different appointment orders. It is contended by the petitioner that the breaks, which were given in his service, artificial breaks and he had in fact been in continuous service as work-charged Clerk between October 1. 1981 and May 19, 1982. On his selection for appointment as work-charged Clerk by the Selection Committee he was given appointment as work-charged clerk for six months. He however, continued to work-charged Clerk upto July 30, 1987 under appointment orders issued from time to time appointing him for limited periods. Petitioner has not disputed that between April 15, 1983 and July 30, 1987 he was paid daily wages as skilled labourer though according to him he worked as Clerk. According to the petitioner there was no justification to treat him as skilled labourer and pay him daily wages on that basis for the said period when he in fact had worked as Clerk. Petitioner further submitted that no order was issued terminating his services as work-charged Clerk and appointing him as skilled labourer on daily wages. It was stated that the petitioner had no option but to accept daily wages as skilled labourer paid to him beyond the period of April 14, 1983 for otherwise he would have been rendered jobless. It is further submitted by the petitioner that there was no justification in discontinuing him from the post of Clerk after July 30, 1987. The Office of the Executive Engineer at Godhra was closed and transferred to Palanpur. Petitioner has alleged that persons, who were appointed as Clerks subsequent to him and who were junior to him were transferred to Palanpur alongwith the transfer of the Office of the Executive Engineer to Palanpur. The petitioner was thus given discriminatory treatment. According to the petitioner he should have been given the same treatment, which was given to other Clerks, who were junior to him and he should have been transferred to Palanpur on the transfer of the Office of the Executive Engineer to Palanpur. It is, therefore, contended that the action of the Executive Engineer in discontinuing him from service is arbitrary and illegal.
4. The respondents have alleged that the petitioner was not continued as work-charged Clerk beyond April 15, 1983 as the authority concerned came to know that he had secured appointment as Clerk by giving incorrect birth date. It is submitted that the birth date of petitioner is June 1, 1956 and, therefore, he could not have been given appointment as Clerk on May 19, 1982 as he had already completed the age of 25 years. It is submitted that the Recruitment Rules for recruitment of Clerks on regular establishment are applicable to recruitment of Clerks on work-charged establishment and under the said Rules the upper age limit prescribed for Clerk is 25 years. The petitioner having completed the age of 25 years on May 31, 1981 was not eligible for appointment as Clerk on May 19, 1982. It was only because the petitioner gave his birth date to be December 11, 1957, which was not his correct birth date, that he was given appointment as Clerk on May 19, 1982. However, on the authority coming to know that the petitioner had given incorrect birth date and that Ins correct birth date was June 1, 1956 relieved him from the post of Clerk. The petitioner was, however, appointed as skilled labourer on daily wages between April 15, 1983 and July 30, 1987. The office or division under which the petitioner was working was closed down and transferred to Palanpur. According to the respondents as a result of the closure of the division there was no question of continuing the petitioner as skilled labourer on daily wages beyond July 30, 1987. It is submitted that labourers engaged on daily wages are not transferred with the transfer of the Division or office. It was therefore, that the petitioner was not transferred to Palanpur. The respondents have further submitted that since the petitioner was engaged as skilled labourer on daily wages it is not correct to say that discriminator)' treatment was given to the petitioner as the Clerk working in the Divisional Office, which was transferred, were transferred to Palanpur Persons who were transferred could not be said to be junior to the petitioner as the petitioner was no longer working as Clerk. The respondents have denied that the action of the Executive Engineer is arbitrary or illegal.
5. Before dealing with the question whether or not the petitioner could have been appointed as Clerk on regular basis on the work-charged establishment on May 19, 1982 although he had completed the age of 25 years on that date, it is necessary to deal with the respondents' allegation that the petitioner had given incorrect date of birth and it was for that reason that his services as work-charged Clerk came to be discontinued. As stated above, while forwarding the list of 32 candidates office of the Employment Exchange at Godhra had stated two birth dates against the name of the petitioner, namely, June 1, 1956 and December 11, 1957. As against the date December 11, 1957 it was mentioned "as per affidavit". It was submitted on behalf of the petitioner that at the time of registering his name with the Employment Exchange an affidavit of his father was filed wherein it was stated to the effect that the correct birth date of the petitioner was December 11, 1957 and not June 1, 1956, which was stated in the School Leaving Certificate. It was on account of this affidavit of his father that two birth dates were stated against the name of the petitioner. I had called for the record of the selection made by the Selection Committee and from this record it transpired that besides what was stated in the list of 32 candidates forwarded by the Employment Exchange no material or evidence regarding birth date was produced. The selection committee had before it two birth dates. If it had taken the petitioner's birth date to be June 1, 1956 it obviously would have considered the petitioner to be beyond 25 years. If, however, it had taken birth date December 11, 1957 as the correct date it would have considered the petitioner to be below 25 years. It is not clear as to whether the Selection Committee selected the petitioner because it considered the petitioner to be within the prescribed age limit or because he was given the benefit of Rule 8(5) of the General Rules. Be that as it may the fact remains that the petitioner was selected by the Selection Committee and given appointment as Clerk on work-charged establishment on May 19, 1982. The selection and appointment do not appear to have been made on account of incorrect birth date given by the petitioner as alleged by the respondents. As already pointed out above both the dates were mentioned in the list forwarded by Employment Exchange and it was for the Selection Committee to decide whether or not the petitioner was within the prescribed age limit. The Selection Committee either did not consider him to be beyond the prescribed age limit or it considered him to so but gave him benefit of Rule 8(5) of the General Rules. Under the circumstances there appears to be no justification for discontinuing the petitioner as clerk on work-charged establishment on April 15, 1983 on the ground that the petitioner had stated incorrect birth date. No opportunity appears to have been given to the petitioner to show cause as to why he should not be discontinued as Clerk on the work-charged established on account of the incorrect birth date alleged lo have been stated by him. There is no written order on record discontinuing the petitioner from service as Clerk on the work-charged establishment. According to the petitioner he continued to work as clerk even beyond April 15, 1983. According to him he worked as Clerk upto July 30, 1987. He was, however, treated as skilled labourer on daily wages. There is no order is writing appointing the petitioner as skilled labourer on daily wages. Respondents, however, do not dispute that he was paid wages as skilled labourer between April 15, 1983 and July 30, 1987. If the ground given for relieving the petitioner from the post of work-charged clerk is not correct, there was no justification to appoint the petitioner as skilled labourer on daily wages and take the work of Clerk from him.
6. Even assuming for the sake of argument that the petitioner's birth date is June 1, 1956 the question is could he have been refused appointment as Clerk on the work-charged establishment on the ground that he had completed age of 25 years. As discussed earlier the Selection Committee while selecting the petitioner might have given him the benefit of Rule 8(5) of the General Rules, but the question is could he have been given such benefit. If the petitioner is entitled to the benefit of the said Rule 8(5) his appointment as Clerk on the work-charged establishment would be valid and he could not have been relieved from the post of Clerk on the ground that he had given incorrect date of birth. It is, therefore, necessary to examine whether the petitioner is entitled to claim benefit of Rule 8(5) of the General Rules.
7. There are no separate, Recruitment Rules for making appointment to various posts on the work-charged establishment. The Government in Public Works Department, therefore, by a Resolution No. W.C.E. 1270-C/99-G dated January 21, 1971, directed that Recruitment Rules applicable to various posts on regular establishment would apply to similar or corresponding posts on the work-charged establishment. Therefore, though there are no Recruitment Rules Separately framed for various posts on the work-charged establishment. Recruitment Rules for the posts on regular establishment are made applicable to similar or corresponding post on the work-charged establishment. Recruitment to the posts of Clerks on regular establishment is made under the Recruitment Rules for the posts of Karkoons, Computers and Signallers ("Recruitment Rules" for short) framed by Government of Gujarat in Public Works Department under Resolution No. DS. 1358-E(i) dated December 10, 1958. General Recruitment Rules, referred to above, also govern recruitment to the posts of Clerks on the regular establishment. In view of the direction given by the Government under Resolution dated January 21, 1971 both the Recruitment Rules and the General Rules would apply to recruitment to the posts of Clerks on the work-charged establishment. This position is no disputed on behalf of the respondents. New under the Recruitment Rules upper age limit prescribed for appointment to the posts of Clerk is 25 years. In other words, a candidate who has completed 25 years of age is eligible for appointment to the post of Clerk on the work-charged establishment. However, under Rule 8(5) of the General Rules the upper age limit prescribed under the Recruitment Rule is made applicable to a candidate who is already in Government service and who was within the age limit prescribed for the post at the time of his first appointment in Government service. The question, however, is whether this Rule 8(5) is applicable to the post of Clerks on the work-charged establishment.
8. Rule 8(5) of the General Rules reads as follows:
In the case of recruitment to a post, the upper age limit prescribed in the recruitment rules relating to such post, shall, save as otherwise provided in Sub-rule (6), not apply to a candidate who is already in Gujarat Government Service either as permanent Government servant or as a temporary Government servant officiating continuously for six months in a substantive or leave vacancy or in a vacancy caused as a result of deputation of other servants and was within the age limit prescribed for the post at the time of his appointment in Government service.
It would appear from the plain reading of the aforesaid Rule that the bar of upper age limit prescribed in the Recruitment Rules made be lifted if following conditions are satisfied, namely, (1) candidate should be in Gujarat Government service either as a permanent Government servant or as a temporary Government servant, (2) he should be officiating continuously for six months in a substantive or leave vacancy or in a vacanacy caused as a result of deputation of other servants and (3) he was within the age limit prescribed for the post at the time of his first appointment in Government service.
9. Rule 8(5) of the General Rules would apply mutatis mutandis to recruitment to the posts of Clerks on the work-charged establishment. As pointed out above, the Government has made applicable Recruitment Rules applicable to the posts on regular establishment to posts on work charged establishment under directions given by it under Resolution dated January 21, 1971. The Recruitment Rules and the General Recruitment Rules are applicable 10 the recruitment to the posts of Clerk on the regular establishment and, therefore, as directed by the Government both these Rules would apply to the recruitment to the posts of Clerks on the work-charged establishment. Rule 8(5) would therefore, apply mutatis mutandis to recruitment to the posts of Clerks on the work-charged establishment. It would be difficult to apply Rule 8(5) to the recruitment to the posts of Clerks on the work charged establishment without necessary changes. Therefore, in order to apply the Rule to such recruitment it would have to be read down with necessary changes so as to make it applicable and workable so far as recruitment to the posts of Clerks on the work charged establishment is concerned. The expression "in Gujarat Government service" would in the context of recruitment to the posts on work-charged establishment mean and include service rendered to the Government as daily wager or on the work-charged establishment. Similarly the expression "temporary Government servant" would include persons appointed on daily wages as well as on work charged establishment.
10. There cannot be any substantive appointment on daily wages or on work-charged establishment. It may be mentioned here that work-charged establishment is a temporary establishment, which is created for a particular work or project. Paragraph 89 of Gujarat Public Works Department Manual, Vol. I says that work-charged posts are just any posts whose pay is directly debited to the work, and work-charged staff are those employed in such posts without having any position in the regular establishment. In order to make Rule 8(5) workable and applicable to the posts on work-charged establishment, the work "substantive" will have to be read as "vacancy". Rest of the language of Rule 8(5) does not pose any difficulty and no change is required to be made to make it applicable to recruitment to the posts on work-charged establishment. Since the establishment is for a particular work or project, by the very nature of things, there cannot be any substantive appointment on such establishment. Therefore, while reading Rule 8(5) of the General Rules in the context of recruitment to the posts on the work-charged etablishment word "substative" will have to be read as "vacancy". Whenever work-charged establishment it created various posts are created and till such time these posts are filled up they are vacant. In my opinion, in order to make Rule 8(5) workable and applicable to the posts on work-charged establishment, the word "substantive" will have to be read as "vacancy". Rest of the language of Rule 8(5) does not pose any difficulty and no change is required to be made to make it applicable to recruitment to the posts on work-charged establishment.
11. If Rule 8(5) in its application to recruitment to the posts on work-charged establishment is read in the manner stated above, it would be necessary to fulfill following conditions before its benefit can be claimed:
(1) Candidate is already in Gujarat Government service either as a permanent Government servant or as a temporary Government servant or as a Government servant on the work-charged establishment or as a Government servant on daily wages.
(2) He has officiated continuously for six months in ;i vacancy or leave vacancy or in a vacancy caused as a result of deputation of other servant.
(3) He was within the age limit prescribed for the post at the time of his first appointment in Government service.
12. Petitioner was appointed as Clerk on daily wages for the period from June 21, 1979 to September 30, 1981. It would thus appear that the petitioner had worked as Clerk on daily wages for more than six months. It cannot be denied that the petitioner was Government servant working as Clerk on daily wages for more than six months when he was appointed as work-charge clerk on October 1, 1981. The upper age limit prescribed by the Recruitment Rules would, therefore, not apply to him when he was appointed as work-charged clerk on October 1. 1981. It may be recalled that according to the respondents, the petitioner's birth date is June 1, 1956. If this is taken to be the correct birth date petitioner completed 25 years of age on May 31, 1981. However, age bar did not apply to him and, therefore, he was appointed as work-charged clerk on October 1, 1981. If age bar did not apply to the petitioner when he was appointed as work-charged clerk on October 1, 1981, 1 fails to see how it could apply when he was regularly appointed as clerk on the work charged establishment on his selection by the selection committee. The petitioner is entitled to the benefit of Rule 8(5) of the General Rules and if this Rules and if this Rule is made applicable as discussed above, the upper age limit will not apply to the petitioner when he was selected and appointed as clerk on regular basis on work-charged establishment. Therefore, in my opinion mentioning of birth date December 11, 1957 in the list of 32 candidate forwarded by the Employment Exchange is of no consequence so far as the petitioner is concerned. The petitioner had not stated incorrect birth date as alleged by the respondents. Both the dates (1) as per the School Leaving Certificate and (2) as per the affidavit of the petitioner's father were mentioned in he list of candidates forwarded by the Employment Exchange. Petitioner, therefore, could not be said to have made incorrect statement regarding his birth date or misled the authority concerned. In any case since the petitioner was entitled to the benefit of Rule 8(5) of the General Rules, the second birth date December 11, 1957 was of no consequence. Even if the petitioner is taken to have been born on June 1, 1956 and to have completed the age of 25 on May 31, 1981 he could not have been denied the appointment to the post of Clerk as the upper age limit was not applicable in view of Rule 8(5) of the General Rules.
13. Respondents sought to place reliance on Resolution No. D.R.I. 1673-14-G dated July 4, 1973 issued by the Government of Gujarat in Public Works Department and contended that there was no relaxation of upper age limit in case of recruitment to the posts of Clerks. Under the aforesaid Resolution the Government directed that while filling in posts on work-charged establishment preference should be given to those, who were working on daily wages on the conditions mentioned therein. Respondents placed reliance on conditions Nos. 4 and 5 of the said conditions in support of their above contention. Opening part of condition No. 4 states that there are no separate Rules for posts on work-charged established and that as directed in the Resolution Rules applicable to various posts on regular establishment would apply to corresponding or similar posts on the work-charged establishment. It is further stated that while filling in the posts on work-charged establishment it is necessary that daily wager fulfils requirements regarding educational qualification, experience and age limit prescribed in the relevant Recruitment Rules. However, condition No. 4 then says that keeping in view many years of service rendered by the daily wagers and they being over age, it was decided to relax the age limit in their case. In other words, the Government decided to relax the age limit in case of daily wagers while considering them for appointments on the work-charged establishment notwithstanding the age limit prescribed by Recruitment Rules. As held above Rule 8(5) of the General Rules is applicable while considering a candidates for appointment to a posts on work-charged establishment and a daily wager seeking appointment to the post on work-charged establishment can claim benefit of the said Rule provided he was within the prescribed age limits at the time of his first appointment. Condition No. 4, in my opinion, goes beyond Rule 8(5) and further relaxes the provision regarding the age limit. In other words, a daily wager who was not within the prescribed age limits at the time of his first appointment would be eligible for appointment to a post on work-charged establishment under the said condition No. 4 in the Resolution Condition No. 5 on which strong reliance was placed by the respondents lays down that benefit of relaxation made under conditions Nos. 3 and 4 would not be available in case of recruitment to the posts of Telephone Operators, Clerks and other posts for which under the Recruitment Rules, educational qualification prescribed is S.S.C. It is not necessary to refer to condition No. 3 since no reliance was placed on it. Under condition No. 5 benefit of relaxation under condition No. 4 would not be available to recruitment to the posts of clerks as urged on behalf of the respondents. It was, however, urged that in view of condition No. 5 candidate seeking regular appointment on work-charged establishment has to be within the prescribed age limit and he can not claim benefit of Rule 8(5) of the General Rules. There is no substance in this contention. Resolution dated July 4, 1973 does not amend or modify the Recruitment Rules or General Recruitment Rules. The Government Resolution cannot take away any benefit or right conferred by Recruitment Rules or General Recruitment Rules. It, however, appears that the object of issuing the above Resolution was to further relax the provision regarding age etc. in case of daily wagers, who have been working as daily wagers for many years and who have already become age barred. So far as age limit is concerned the relaxation is to the effect that even if the daily wager was not within the age limits on the date of his first appointment he would be eligible for appointment to post other than the posts mentioned in condition No. 5 on work charged establishment. Condition No. 5 has to be read in the context of conditions Nos. 3 and 4 and consistent with Rule 8(5) of the General Recruitment Rules, which has not been modified or amended. If so read it only means that daily wager seeking appointment to a post on work-charged establishment for which the qualification prescribed is S.S.C. would not be entitled to relaxation as provided in Conditions Nos. 3 and 4 1 am, therefore, not inclined to accept the respondent's convention that in view of condition No. 5 the petitioner is not entitled to claim appointment to the post of Clerk on the work-charged establishment after completion of 25 years of age, although he was within the prescribed age limit on his first appointment as Clerk on daily wages.
14. In the light of above discussion it must be held that the action of the Executive Engineer in discontinuing the petitioner from service as clerk on work-charged establishment on April 15, 1983, was discriminatory, arbitrary and illegal. It is not disputed that if the petitioner is treated to be in continuous service as Clerk on the work-charged establishment from May 19, 1982 he was senior to many clerks, who were retained in service and were transferred to Palanpur on the transfer of the Division or office of the Executive Engineer to Palanpur. The Deputy Executive Engineer under whom petitioner was working has given him Certificate Annexure "G" dated July 31, 1987 stating to the effect that the petitioner was hard working and has good moral character. In this Certificate it is stated that the petitioner had worked as work-charged clerk from October 1, 1981 to April 14, 1983 and as skilled labourer from April 15, 1983 to July 30, 1987 and that he had wide experience in the work at site, office work and store management. The Deputy Engineer of Capital Project (Sub-Division No. 8) Gandhinagar under whom the petitioner had worked from June 21, 1979 to September 30, 1981 has also issued Certificate Annexure "A" in favour of the petitioner praising his services. In this certificate it is stated to the effect that the petitioner was sincere and honest in his work. There was therefore absolutely no reason to discontinue the petitioner from service. As held above the action of discontinuing the petitioner from service as clerk and not transferring him to Palanpur is discriminatory, arbitrary and illegal.
15. It was next urged on behalf of the respondents that this petition was liable to be rejected on the ground of delay as the petitioner has approached this Court, on November 10, 1987 more than four years after he was discontinued as clerk and four months after he was discontinued as skilled labourer. I do not find any substance in this contention. As pointed out above no order in writing discontinuing the petitioner from service as Clerk or appointing him as skilled labourer on account of incorrect birth date given by him, has been passed. It is true that petitioner was paid wages as skilled labourer after April 14, 1983, but he continued to work as Clerk on the work-charged establishment as stated by him. There is no reason to disbelieve the petitioner's statement that he continued to work as clerk even when he was paid daily wages as skilled labourer. One can understand his reluctance to approach this Court earlier apprehending that he would lose even what he was getting by offending the authority concerned. There are many educated unemployed persons in the country willing to step into the shoes of the petitioner in whatever capacity. Petitioner's reluctance to take any action till such lime he was getting paid as skilled labourer is understandable. Petitioner, on account of the circumstances in which he was, had to suffer injustice. It was only when he was denied daily wages even as skilled labourer that he had no alternative but to approach this Court. Petitioner no doubt could have approached this Court earlier but that is no reason to reject his petition. However, on account of delay the petitioner may not be paid the backwages prior to the date of the filing of the petition. Even after the petitioner approached this Court no attempt has been made by the respondents to remove injustice and redress the grievance of the petitioner. Therefore, the petitioner is entitled to salary from the date of filing of the petition i.e. November 10, 1987.
16. In the result this petition is allowed. Respondents are directed to reinstate the petitioner as Clerk on the work-charged establishment with effect from April 15, 1983. The petitioner will be related as if he is in continuous service as clerk with effect from May 19, 1982 and he shall be entitled to all the monetary benefits such as annual increments etc. as if he is continuous service as clerk with effect from May 19, 1982. The petitioner shall, however, not be paid backwages or arrears of salary or arrears of difference between the wages paid and the wages or salary which the petitioner is entitled to for the period from April 15, 1983 to November 10, 1987. The respondents are directed to fix the pay of the petitioner in the pay scale of Rs. 950-1500 at the appropriate stage on the basis that he is in continuous service as clerk from May 19, 1982 and pay him the arrears of salary on the basis of such refixed pay for the period from November 10, 1987 to the date he is reinstated in service. Petitioner shall be reinstated in service within 2 weeks and paid the arrears of salary as stated above within 8 weeks from the date of the receipt of the writ of his Court. Petitioner shall be entitled to all the monetary and other benefits as if he were in continuous service with effect from May 19, 1982 and his seniority in the cadre of clerk on the work-charged establishment shall be refixed on that basis. Rule made absolute accordingly with no order as to costs. Writ to be sent down forthwith. Civil Application made in this Special Civil Application does not survive and it shall stand disposed of with no order as to costs.