Gujarat High Court
Manojkumar Kanubhai Patel & 3 vs Gujarat Maritime Board & on 9 March, 2016
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/18491/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 18491 of 2015
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MANOJKUMAR KANUBHAI PATEL & 3....Petitioner(s)
Versus
GUJARAT MARITIME BOARD & 1....Respondent(s)
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Appearance:
MR DIPAK R DAVE, ADVOCATE for the Petitioner(s) No. 1 - 4
MS DHARMISHTA RAVAL, ADVOCATE for the Respondent(s) No. 1
MR K. ANTANI, AGP - NOTICE SERVED for the Respondent(s) No. 2
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 09/03/2016
ORAL ORDER
By this writ-application under Article 226 of the Constitution of India, the petitioners - work charged employees of the Gujarat Maritime Board have prayed for the following reliefs:-
A) (i) To hold and declare that decision on part of the respondents in not considering the case of the petitioner4s for absorbing them in regular set-up of the Board as illegal, unjust and violative of the fundamental right of the petitioners;
(ii) To hold and declare that action on the part of the respondents in not extending higher grade pay-scale to the petitioners is illegal, unjust and violative of fundamental right of the petitioners and further may be pleased to direct the respondent Board to extend benefits of higher grade pay-scale to the petitioners;
(iii) To direct the respondents to absorb the petitioners as permanent employees on the post of Additional Assistant Engineer (Civil) and grant them benefit of permanency on the said post from the date of initial appointment and further directing the respondents to pay all incidental and consequential benefits both pecuniary and non pecuniary arising and entailing thereby;
(iv) To direct the respondents to make payment of higher grade pay-scale after petitioners completion of nine years of service on the post of Additional Page 1 of 5 HC-NIC Page 1 of 5 Created On Thu Mar 10 02:08:21 IST 2016 C/SCA/18491/2015 ORDER Assistant Engineer (Civil) and thereafter to extend benefits of second higher grade pay-scale;
(v) To direct the respondents to calculate arrears in pursuance to the fixation of higher grade pay-scale and to make payment of the said arrears along with interest at the rate of 12%;
In the earlier round of litigation, this Court vide order dated 8.7.2015, passed in SCA No. 17313/13, observed as under:-
"Date : 08/07/2015 ORAL ORDER
1. The petitioner is permitted to add the State of Gujarat, Port and Transport Department as party respondent No.5. The cause title be amended accordingly.
2. Rule returnable forthwith. Ms.Dharmishta Raval, the learned advocate waives service of notice of rule for and on behalf of the respondent Nos.1,2,3 & 4 and Mr.Rohan Yagnik, the learned AGP waives service of notice of rule for and on behalf of the respondent no.5.
3. By this writ application under Article 226 of the Constitution of India, the petitioner, working as an Additional Assistant Engineer (Civil), Class-III under the respondent No.2 has prayed for the following reliefs:-
6.(A) This Hon'ble Court may be pleased to issue a writ of mandamus and / or a writ in the nature of mandamus and/or any other appropriate writ, order or direction to be issued
(i) to hold and declare that action on the part of the respondents in not extending higher grade pay-scale to the petitioner is illegal, unjust and violative of fundamental right of the petitioner and further may be pleased to direct the respondent-Board to extend benefits of higher grade pay-scale to the petitioner;
(ii) to direct the respondents to absorb the petitioner as permanent employee on the post of Additional Assistant Engineer (Civil) and grant him benefit of permanency on the said post from the date of initial appointment and further directing the respondents to pay all incidental and consequential benefits both pecuniary and non pecuniary arising and entailing thereby;
iii. To direct the respondents to make payment of higher grade pay-
scale after petitioner's completion of nine years of service on the post of Additional Assistant Engineer (Civil) and thereafter to extend benefits of second higher grade pay-scale;
Page 2 of 5HC-NIC Page 2 of 5 Created On Thu Mar 10 02:08:21 IST 2016 C/SCA/18491/2015 ORDER iv. To direct the respondents to calculate arrears in pursuance to the fixation of higher grade pay-scale and to made payment of the said arrears along with interest at the rate of 12%;
(B) Pending the admission, hearing and final disposal of the petition, this Hon'ble Court may be pleased to direct the respondents to extend benefit of higher grade pay-scale to the petitioner;
(C) Any other and further relief or reliefs to which this Hon'ble Court deemed fit, in the interest of justice, may kindly be granted;
4. The facts giving rise to this application may be summarized as under:
4.1. The petitioner is working since 1991 as a Work -Charge on the post of the Additional Assistant Engineer (Civil), Class-III under the respondent No.2. It is his case that he is serving continuously for the past 22 years with the respondent No.2. It is his case that the post on which he is working is a sanctioned post on the set-up of the respondent-Board. The grievance of the petitioner is that even after putting in 22 years of continuous service, he is not being regularized by the Board and he continues to work as a Work-Charge. It is his case that although he is drawing regular scale of pay and also getting the increments, yet the necessary incidence of service such as promotion, higher pay scale etc. is being denied.
5. On notice being issued to the respondents they have appeared and have filed affidavit-in-reply. In para 24 of the reply the Board has made the following averments:
24. It is submitted that the respondent on receiving the order passed by this Hon'ble High Court considered the case of petitioner. Thereafter the respondent on realizing that the approval of state Govt. will be required wrote a letter dated 25.09.2012 seeking the approval of the State Government to make appointment of the petitioner and three other similarly situated persons. Annexed herewith and marked as Annexure R-III are copies of letter dated 9.5.2011, and 25.9.2012. The Respondent has not received approval from State Government and is awaiting answer from the State Government.
6. Ms.Raval, the learned advocate appearing for the respondent-Board pointed out that her client had forwarded a proposal dated 25.09.2012 addressed to the Deputy Secretary, Port and Transport Department of the State Government to regularise the services of four of its employees, which includes the petitioner herein. However, according to her till this date the Board has not received any reply at the end of the State Government.
7. Having heard the learned counsel appearing for the parties and having gone through the material on record, the only question that falls for my consideration is whether the petitioner is entitled to the relief prayed for in this writ Page 3 of 5 HC-NIC Page 3 of 5 Created On Thu Mar 10 02:08:21 IST 2016 C/SCA/18491/2015 ORDER application.
8. It seems that although the respondent-Board forwarded a proposal dated 25.09.2012 to the State Government for regularization of the service of the petitioner herein and three other employees yet no decision has been taken by the State Government on such proposal. It is very unfortunate that three years have passed yet the Government has not bothered pass any appropriate order on the proposal. Here is a petitioner working past 22 years with the Board and knocking the doors of the Court for regularization. It seems, the Government has no time to consider proposals for regularization of Work-
Charged employees working past 22 years without any promotion and higher pay scale. It appears that the Board has also not bothered to pursue the matter with to the State Government.
9. One last chance is given to the State Government to pass an appropriate order on the proposal of the respondent-Board dated 25.09.2012 Annexure R-1 to this petition at page 108. The State Government is directed to consider the proposal of the respondent-Board referred to above and pass necessary orders on the same in accordance with law within a period of four weeks from the date of receipt of the writ of the order. Any lapse on the part of the concerned Department will be viewed very strictly in the facts of this case.
10. Mr.Dave, the learned advocate appearing for the petitioner pointed out that the employees junior to his clients have been regularized in service. If that be so, it is really very unfortunate and this aspect should also be kept in mind by the State Government while considering the proposal of the respondent- Board. The petition is allowed to the aforesaid extent. Rule is made absolute.
11. A copy of this order be provided to Mr.Yagnik, the learned AGP for its onward communication. Mr.Dave, the learned advocate appearing for the petitioner shall supply a complete set of the paper book to Mr.Yagnik, the learned AGP by the end of the day.
Apropos to the directions issued as contained in paragraph 9 referred to above, the Government took a decision as reflected from the communication dated 22nd Sept. 2015 (Annexure "S" at page 96), that the proposal of the Gujarat Maritime Board for regularization of service of the petitioners has been rejected.
No reasons have been assigned by the State Government as to why the proposal came to be rejected. There is nothing before this Court as to what was considered by the Government. The petitioners are in service past more than 20 years.
Page 4 of 5HC-NIC Page 4 of 5 Created On Thu Mar 10 02:08:21 IST 2016 C/SCA/18491/2015 ORDER In view of the above, the decision of the State Government to reject the proposal of the Gujarat Maritime Board is hereby ordered to be quashed. The matter is remitted to the State Government for a fresh decision. The State Government shall consider the recent pronouncement of this Court dated 4.2.2016, passed in SCA No. 10829/03 and allied matters and take a fresh decision. The State Government shall also keep in mind that the Juniors of the petitioners have already been regularized and have been put in the temporary establishment. This Court expects the authority concerned to pass a speaking order, so that ultimately, if it is challenged, the Court would be able to know what was considered by the Government.
Let this entire exercise be undertaken at the earliest and be completed within a period of two months from the date of receipt of this order. Direct service permitted.
(J.B.PARDIWALA, J.) Mohandas Page 5 of 5 HC-NIC Page 5 of 5 Created On Thu Mar 10 02:08:21 IST 2016