Gujarat High Court
Sureshbhai Bachubhai Jasani vs District Development Officer & 2 on 7 May, 2014
Author: C.L.Soni
Bench: C.L. Soni
C/SCA/12309/2005 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 12309 of 2005
With
SPECIAL CIVIL APPLICATION NO. 12315 of 2005
With
SPECIAL CIVIL APPLICATION NO. 12316 of 2005
With
SPECIAL CIVIL APPLICATION NO. 12336 of 2005
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE C.L. SONI Sd/-
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1 Whether Reporters of Local Papers may be allowed to see No
the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law as No
to the interpretation of the Constitution of India, 1950 or any
order made thereunder ?
5 Whether it is to be circulated to the civil judge ? No
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SURESHBHAI BACHUBHAI JASANI....Petitioner(s)
Versus
DISTRICT DEVELOPMENT OFFICER & 2....Respondent(s)
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Appearance:
MR JV JAPEE, ADVOCATE for the Petitioner(s) No. 1
DS AFF.NOT FILED (R) for the Respondent(s) No. 1 - 2
Mr. Ronak Raval, AGP for the Respondent(s) No. 3
MR HS MUNSHAW, ADVOCATE for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE C.L. SONI
Page 1 of 7
C/SCA/12309/2005 JUDGMENT
Date : 07/05/2014
ORAL JUDGMENT
1. The petitioners have challenged order dated 6.6.2005 passed by the respondent No. 2 - the Deputy Director of Animal Husbandry in each of the petitions whereby the benefits given to the petitioners as per Government Resolution dated 17.10.1988 came to be withdrawn on the ground that as per the audit objection, the resolution dated 17.10.1988 was not applicable to the department where the petitioners are working as daily wagers.
2. The case of the petitioners in each of the petitions is that the petitioners have been continuously serving as daily wagers for the last more than fifteen years. They were given the benefits under the Government Resolution dated 17.10.1988 on completion of five years' service as daily wager. However, subsequently, by order dated 25.11.1997, such benefits were withdrawn without hearing the petitioners which was challenged by the petitioners by filing the writ petition before this Court and the respondents were directed to pass fresh orders after giving opportunity of hearing to the petitioners. The petitioners then represented their case that they were rightly given benefits under the Government Resolution dated 17.10.1988. However, by the impugned order, such benefits were withdrawn on the ground that the resolution dated 17.10.1988 could be made applicable only to the daily wagers working in the Roads and Buildings Department and not to the department where the petitioners were serving. The petitioners have contended that the resolution dated 17.10.1988 is applicable to the daily wagers working in all the Departments in the State of Gujarat and on wrong construction of the resolution dated 17.10.1988, the benefits granted to the petitioners came to be withdrawn.
Page 2 of 7C/SCA/12309/2005 JUDGMENT
3. The petitions are opposed by affidavit in reply stating that the petitioners were serving as part timer and the resolution dated 17.10.1988 was applicable only to the Roads and Buildings Department of the Government and the petitioners were wrongly given such benefits and, therefore, such benefits were cancelled by earlier order dated 25.11.1997 but thereafter, the petitioners were given opportunity to represent their case as per the order made by this Court and after giving full opportunity to the petitioners to represent their case, impugned order came to be passed.
4. I have heard the learned Advocates for the parties.
5. Learned Advocate Mr. J.V. Japee appearing for the petitioners has drawn attention of the Court to the xerox copy of the register maintained by the District Development Officer, copy whereof is placed on record with affidavit in Special Civil Application No.14770 of 2004 which was part of this group of petitions to submit that as per the details given in the said register, the petitioners were appointed as daily wagers right from the very beginning and they were granted benefits under the resolution dated 17.10.1988 as daily wagers. Mr. Japee submitted that the averments made in the affidavit in reply that the petitioners were appointed as part timers are contrary to the record maintained by the respondent authority. Mr. Japee submitted that the petitioners have placed on record order dated 31.5.1991 passed by the Deputy Director of Animal Husbandry wherein it is clearly stated that the petitioners are serving as daily wagers. Mr. Japee submitted that even in the impugned order, the petitioners are referred as daily wagers.
Page 3 of 7C/SCA/12309/2005 JUDGMENT Mr. Japee, therefore, submitted that the affidavit cannot alter the status of the petitioners from daily wagers to part timers as nowhere in the earlier orders, the petitioners were ever referred as part timers. Mr. Japee submitted that even otherwise, the impugned orders are passed simply on the basis that the Government Resolution dated 17.10.1988 was applicable only to the daily wagers working in the Roads and Buildings Department and not to the department where the petitioners were serving as daily wagers. Mr. Japee submitted that as per the decision of Hon'ble the Supreme Court in State of Gujarat and Ors. Vs. PWD Employees Union and Ors. reported in 2013(8) SCALE 579, the resolution dated 17.10.1988 applies to the daily wagers of all the Departments in the State of Gujarat. Mr. Japee therefore submitted that the impugned orders cannot stand scrutiny of law as now it is declared that the resolution dated 17.10.1988 applies to the daily wagers of all the Departments in the State. Mr. Japee thus urged to allow the petitions.
6. Learned Advocate Mr. Munshaw submitted that the clear stand is taken on behalf of respondent No.2 in the affidavit in reply that the petitioners were serving as part timers and, therefore, the petitioners could not have been made entitled to any benefits under the Government resolution dated 17.10.1988. Mr. Munshaw submitted that if by mistake the petitioners were referred as daily wagers in the earlier orders for grant of benefits under the Resolution dated 17.10.1988 or in the impugned order, that would not be of any help to the petitioners as the record of the department clearly reveals that the petitioners were serving as part timers. Mr. Munshaw therefore submitted that even if the impugned orders were Page 4 of 7 C/SCA/12309/2005 JUDGMENT passed on the ground that the resolution dated 17.10.1988 was not applicable to the department where the petitioners were working, now, since it is stated in the affidavit in reply that the petitioners were serving as part timers, the impugned order is not required to be quashed and set aside.
7. As regards copy of extract of register relied on by learned advocate Mr. Japee to point out that the petitioners have been shown as daily wagers from the initial stage, Mr. Munshaw submitted that it is for the department to examine and decide the case of the petitioners individually to find out whether, what is stated in the extract of register is correct or not and if it is found on examination of the record that the petitioners were in fact working as daily wagers, then, they will be given the benefits under Resolution dated 17.10.1988. Mr. Munshaw thus urged to dismiss the petitions.
8. Learned A.G.P. Mr. Raval appearing for respondent State Authority while adopting the arguments of learned advocate Mr. Munshaw, submitted that since the petitioners are stated to have been working as part timers, they cannot be made entitled to the benefits under resolution dated 17.10.1988 and, therefore, even though the impugned orders are passed on the ground that the resolution dated 17.10.1988 was not applicable to the department where the petitioners are working, it may not be disturbed. Mr. Raval thus urged to dismiss the petitions.
9. Having heard the learned advocates for the parties, it appears that there is no dispute about the fact that the petitioners were already given benefits of resolution dated 17.10.1988 by treating them as daily wagers. In the orders issued in the year Page 5 of 7 C/SCA/12309/2005 JUDGMENT 1991 placed with the petition as well as in the impugned orders, the petitioners are, in fact, referred as daily wagers. However, the stand taken by the respondents in the affidavit in reply is that the petitioners were serving as part timers. But then, the impugned orders are not passed on the ground that the since petitioners were serving as part timers, they were not entitled to the benefits under the Government Resolution dated 17.10.1988. The impugned orders are passed simply on the ground that as per the audit objection, the resolution dated 17.10.1988 was applicable only to the Roads and Buildings Department and not to the department where the petitioners have been serving. As held by Hon'ble the Supreme Court in the case of PWD Employees Union (supra), the resolution dated 17.10.1988 is applicable to the daily wagers of all the departments in the State of Gujarat.
10. In above such view of the matter, the impugned order cannot stand scrutiny of law and is required to be quashed and set aside. However, since it is stated in the affidavit in reply that the petitioners were part timers,, whereas in the orders of the year 1991, in the impugned orders, and as pointed out by Mr. Japee that the petitioners are referred as daily wager in the register maintained by the respondent no.1, the respondents will be required to examine the cases of each of the petitioners individually to find out whether the petitioners were employed as daily wagers from the beginning. Therefore, while quashing and setting aside the impugned orders, appropriate directions need to be issued.
11. For the reasons stated above, the impugned orders dated 6.6.2005 are quashed and set aside. However, the Page 6 of 7 C/SCA/12309/2005 JUDGMENT respondents are directed to examine the case of each petitioner individually on the basis of the record available with them to find out whether the petitioners have been working as daily wagers and to take decision as regards grant of benefits under the Government Resolution dated 17.10.1988. The respondents shall complete such exercise and pass necessary orders for the purpose of grant of benefits under the Government Resolution dated 17.10.1988 within three months from the date of receipt of this order. Rule is made absolute accordingly in each of the petition. Direct Service is Permitted.
Sd/-
(C.L.SONI, J.) anvyas Page 7 of 7