Gujarat High Court
Isubbhai Khokhar vs State Of Gujarat on 11 July, 2018
Author: B.N. Karia
Bench: B.N. Karia
C/SCA/376/2010 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 376 of 2010
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE B.N. KARIA Sd/-
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1 Whether Reporters of Local Papers may be allowed to No
see 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 No
as to the interpretation of the Constitution of India or any
order made thereunder ?
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ISUBBHAI KHOKHAR
Versus
STATE OF GUJARAT
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Appearance:
MR SAMIR B GOHIL(5718) for the PETITIONER(s) No. 1
MS SNUSHA JOSHI, AGP (1) for the RESPONDENT(s) No. 1,4
RULE SERVED(64) for the RESPONDENT(s) No. 1,2,3,4
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CORAM: HONOURABLE MR.JUSTICE B.N. KARIA
Date : 11/07/2018
ORAL JUDGMENT
1. By filing this petition under Articles 14 and 16 of the Constitution of India, the petitioner has prayed to quash and set aside order dated 21.11.2009 and direct the respondent to grant the petitioner temporary status of Wireman with effect from 1.12.1990 and treat him as Temporary Wireman from the Page 1 of 10 C/SCA/376/2010 JUDGMENT aforesaid date and to pay him all consequential benefits available with 10% interest and cost.
2. Short facts giving rise to this case may be referred as under:-
2.1 The petitioner was working as a Work-charge Wireman in the office of the Deputy Executive Engineer (R&B), Sub-
division-1, Surendranagar, and was appointed by an order dated 18.6.1981. Thereafter, he worked in the same category. In the first round of litigation, he had preferred Special Civil Application No.11887 of 2006 praying to direct the respondent to treat him in a temporary status from 18.12.1990, which was disposed of by an order dated 12.10.2006 directing respondent no.1 to pass appropriate reasoned order on the representation made by the petitioner. Thereafter, on 3.10.2007, respondent no.1 wrote a letter to respondent no.3 conveying that the recommendation of the R&B Department was not accepted by the Finance Department and, therefore, the petitioner cannot be made Temporary Wireman from the Work-charge Wireman. The above said decision was challenged by the petitioner by filing Special Civil Application No.3008 of 2007, which was disposed of on 27.2.2008 by giving final opportunity to the State Government to pass a reasoned order. On 6.10.2008, request of the petitioner was rejected by respondent no.3 and, hence, again the petitioner approached this Court by filing Special Civil Application No.2768 of 2009. This Court on 22.7.2009 directed the State Government to take appropriate decision without being influenced by order dated 6.10.2008. Respondent no.1 passed an order dated 21.11.2009 and rejected the request of the petitioner. In the present petition, Page 2 of 10 C/SCA/376/2010 JUDGMENT the petitioner has challenged the order passed by respondent no.1 dated 21.11.2009 stating that it is illegal, arbitrary, unreasonable and in violation of Articles 14 and 16 of the Constitution of India. It is further case of the petitioner that by a resolution dated 7.11.1990, State Government had converted 101 posts of work-charge employees into temporary status. That while sending information for conversion of the posts of work-charge into temporary, respondent, through oversight, did not send the information in respect of the petitioner. That petitioner was working since last 29 years and impugned order was covering 380 employees, who were declared as surplus by respondent no.1. That all those employees, who had cleared SSC examination working as Rojmadar, as per order dated 18.3.2008 passed by the Finance Department, were declared surplus and were to be appointed on deputation in other departments. That in the impugned order, out of 2083 employees, 1318 employees were given temporary status. The petitioner was claiming temporary status from 1.1.1990 when it was given to other similarly situated persons, and was eligible for the same on that date. That by letter dated 20.9.2001 issued by respondent no.3, recommendation was made to respondent no.2 to convert status of Temporary from Work-charge since one post of Temporary Wireman was already vacant. That by another letter dated 20.10.2005 issued by respondent no.1, recommendation was made to respondent no.1 to convert the post of the petitioner into temporary status. That no additional financial burden would be on the State Government if the Temporary status would be given to the petitioner. Thereafter, on 18.6.2008, respondent no.2 informed respondent no.1 that conversion of post from Work-charge to Temporary was to be Page 3 of 10 C/SCA/376/2010 JUDGMENT done as per resolution dated 16.8.1973 and 50% of the posts were to be converted. As per this resolution, an employee on work charge was eligible for temporary status after putting in five years as the petitioner was appointed on 18.6.1981 and was eligible for temporary status in the year 1986. If he was entitled to the status from 1.12.1990 when similarly situated persons were given this Temporary Status by an order dated 18.12.1990, then no approval for conversion of the post of the petitioner was required from respondent no.4 i.e. the Finance Department as resolution dated 16.8.1973 does not contemplate such approval. That in short, mistake committed by the Executive Engineer by not sending information regarding the petitioner, his name was not considered for conversion in the Temporary Status from Work-charge. In fact, as per resolution dated 16.8.1973 he was entitled to claim for conversion after 5 years of his service in Work-charge category as he has rendered his service for more than five years as on 1.12.1990. That he is qualified and was appointed through proper procedure. Therefore, it was requested by him to quash and set aside the order dated 21.11.2009 and direct the respondents to grant Temporary Status of Wireman with effect from 1.12.1990 and to pay all consequential benefits with 10% interest and cost.
3. In the Affidavit-in-reply submitted by respondent no.3, it is contended that (i) 62 posts of Karkoon/ mistries/ sub- overseers/ work assistance cadre, (ii) 17 posts of Driver cadre and (iii) 22 posts of Roller Driver, total 101 posts of Work- charge cadre has been converted in the temporary establishment as per resolution dated 7.11.1990. That Work- charge Wireman was not included in the conversion of total Page 4 of 10 C/SCA/376/2010 JUDGMENT 101 Temporary posts. That Finance Department has refused the prayer of the petitioner and respondent no.3 has passed a reasoned order on 6.10.2008 and, thereafter, government has refused the same prayer by reasoned order dated 21.11.2009. The petitioner is not entitled to the benefit as prayed for by him and the Government has considered all relevant aspects while passing order on 6.10.2008. That there was no proposal for Work-charge Wireman and, therefore, it was not included by mistake. That order dated 6.10.2008 was just and proper and, therefore, she requested to dismiss the petition.
4. Heard learned advocate Mr.Samir Gohil for the petitioner and learned AGP, Ms.Snusha Joshi for the respondent.
5. It is submitted by learned advocate for the petitioner that since 1981 the petitioner is working in the cadre of Work- charge employee. That as per resolution dated 16.8.1973, after completing five years service on Work-charge cadre, he is eligible for temporary status. In fact, he was entitled to claim Temporary status in the year 1986, however, in the year 1990 similar persons were benefited by converting their status in Temporary cadre by the respondent and, therefore, he is claiming Temporary Status from 1.12.1990. He has further invited the attention of this Court towards letter issued by Executive Engineer, R&B Department, Surendranagar, addressed to the higher office at Rajkot dated 27.9.2005 and argued that it is clearly shown in the letter that, by mistake, while submitting the information of the Work-charge employees, information of Wireman for converting their status in the Temporary cadre was not supplied for sanction. It is further stated in the letter that the petitioner was a senior Page 5 of 10 C/SCA/376/2010 JUDGMENT employee, however, he is not benefited with higher pay scale, as he was not converted in the temporary status. It was requested to convert the status of the petitioner from Work- charge to Temporary. Though recommendation was made by the competent authority, no benefit was given to the petitioner. Hence, it was requested to allow this petition, as prayed for.
6. On the other side, learned AGP for the respondent has strongly opposed the submissions made by learned advocate for the petitioner and submitted that only 101 posts including post of Driver, Roller Driver as well as Karkoon/ mistries/ sub- overseers/ work assistance were converted into Temporary establishment as per Government Resolution dated 7.11.1990. That post of Work-charge Wireman was never included in the conversion of total 101 Temporary Posts. That on the representation made by the petitioner, reasoned order was passed on 6.10.2008 and, thereafter, on 21.11.2009 rejecting the request of the petitioner. There was no mistake on the part of any authority by not forwarding information of the petitioner for requesting to convert his status from Work-charge to Temporary. There is no substance in the petition and it was requested by her to dismiss the petition.
7. Having considered the facts, submissions made by learned advocate for the petitioner as well as learned AGP for the respondent, it is not in dispute that the petitioner was serving as a Work-charge Wireman in the office of the Deputy Executive Engineer (R&B), Sub-division no.1, at Surendranagar, from 18.6.1981. In the first round of litigation, he had approached this Court by filing Special Civil Application Page 6 of 10 C/SCA/376/2010 JUDGMENT No.11887 of 2006 with a prayer to direct the respondent to grant Temporary Status from 18.12.1990. This Court was pleased to pass an order directing respondent no.1 to pass reasoned appropriate order on the pending representation of the petitioner. Thereafter, on 3.10.2007, it was conveyed that recommendations of R&B Department was not accepted by the Finance Department and, therefore, the petitioner cannot be made Temporary Wireman from Work-charge Wireman. This letter dated 3.10.2007 was again challenged by the petitioner by filing Special Civil Application No.3008 of 2007, wherein final opportunity was given to the State Government to pass a reasoned order on 27.2.2008. Thereafter, as per the order passed by this Court, respondent no.3 passed an order dated 6.10.2008 rejecting the request of the petitioner. The petitioner challenged order dated 6.10.2008 by filing Special Civil Application No.2768 of 2009. This Court again directed the State Government to take appropriate decision. Respondent no.1 again on 21.11.2009 rejected the request of the present petitioner. If we refer to Resolution No.1272 (2)-G issued by the Government of Gujarat, Public Works Department, on 16.8.1973, previous Government Resolution dated 29.12.1971 was reconsidered by the Government and necessary direction was issued to the heads of the department under Public Works Department to ensure that Work-charge posts in respect of maintenance and repairs of any works or irrigation management, which are proposed for conversion to temporary establishment should have been continuously in existence for a minimum period of five years and are required either permanently or on very long term basis i.e. 10 to 15 years. It was further decided to make separate proposals for each division in the prescribed form giving justification for Page 7 of 10 C/SCA/376/2010 JUDGMENT conversion of each individual post and indicating existing norms and standard for such posts or the norms which may be fixed. As per this Resolution, fresh proposal should be submitted as per the instructions contained in the resolution. From the letter produced on record dated 27.9.2005 issued by the office of the Executive Engineer, Surendranagar, request was made to respondent no.2 to grant status of Temporary Wireman to the petitioner. It was also stated in the letter that post of Temporary Wireman was vacant. It appears from this letter dated 27.9.2005 that while submitting information of the Work-charge Employees, by mistake, information in respect of Work-charge Wireman were not supplied and, therefore, no sanction was granted to convert the post of Work-charge Wireman into Temporary status. It was further stated that the petitioner was quite senior than the employees working with him, who were given temporary status from Work-charge employees. However, by not converting the petitioner into the Temporary cadre, he was refrained from claiming higher pay scale. Joining of service, working since 1981, three different Special Civil Applications filed by the petitioner before this Court, representation made by the petitioner from time to time, rejection of representation of the petitioner by the respondent are undisputed facts as well as letter dated 27.9.2005 recommending respondent no.2 to grant Temporary Status to the petitioner is also not in dispute as he was senior in comparison to other Work-charge employees working with him. These facts are not only undisputed but are admitted by the respondent too. If these are the facts that, by mistake, government has failed to supply information in the case of the petitioner to convert his status from Work-charge to Temporary and other similar employees were converted to the Page 8 of 10 C/SCA/376/2010 JUDGMENT Temporary status in the year 1990, the petitioner would naturally be entitled to claim for the same status as granted to other similar employees, who were working with him. In similar facts, a decision is taken by this Court in the case of Rashmikaben and 53 others v. State of Gujarat in Special Civil Application No.7464 of 1996 as well as in the case of State of Gujarat v. Gujarat Mazdoor Sabha in Letters Patent Appeal No.380 of 2016 and connected matter. This issue is covered by the decision of the Division Bench of this Court in Letters Patent Appeal No.380 of 2016 and connected matters, in which the petitioners had served the department for more than 20 years in the cadre of Work-charge employee and, therefore, they were held to be entitled for conversion to Temporary establishment as per Government Resolution dated 16.8.1973.
8. Since the issue involved in this petition is covered by decision of this Court in Letters Patent Appeal No.380 of 2016, it is held that from the date when the petitioner has completed 20 years as Work-charge Wireman, he shall be entitled to all the benefits which may be available to the employees working in the temporary establishment including the benefit of higher pay-scale/grade, if at all the same is paid to the employees working in the temporary establishment, however, the petitioner shall be paid arrears of such conversion to temporary establishment for the period preceding three years of filing of the petition. The arrears shall be calculated and paid within a period of four months from today failing which it shall carry interest at the rate of 9% p.a. It is submitted by learned advocate for the petitioner that the petitioner has already retired. Therefore, the petitioner shall be paid retirement Page 9 of 10 C/SCA/376/2010 JUDGMENT benefits as if he was converted to temporary establishment. Retirement benefits shall be calculated and paid accordingly. However, arrears shall be paid only for three years. Such exercise shall be completed within a period of four months from today.
9. Accordingly, this petition is partly allowed. Rule is made absolute to above extent. No order as to costs. Direct service is permitted.
Sd/-
(B.N. KARIA, J) R.S. MALEK Page 10 of 10