Gujarat High Court
Jayesh Shamji Devariya vs Kandla Port Trust on 23 June, 2015
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/9030/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 9030 of 2015
With
SPECIAL CIVIL APPLICATION NO. 9032 of 2015
With
SPECIAL CIVIL APPLICATION NO. 9033 of 2015
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JAYESH SHAMJI DEVARIYA....Petitioner(s)
Versus
KANDLA PORT TRUST....Respondent(s)
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Appearance:
MR TR MISHRA, ADVOCATE for the Petitioner(s) No. 1
MR YOGI K.GADHIA, for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 23/06/2015
COMMON ORAL ORDER
Since the issue for my consideration in all the three writ- applications is common, those were heard analogously and are being disposed of by this common judgment and order.
RULE returnable forthwith. Mr.Yogi K.Gadhia, the learned advocate waives service of notice of rule for and on behalf of the Kandla Port Trust. The registry shall accept the Vakalatnama of Mr.Gadhia, who has appeared on behalf of the Kandla Port Trust.
By this writ-applications under Article 226 of the Constitution of Page 1 of 5 C/SCA/9030/2015 ORDER India, the petitioners, working as Junior Clerks with the Kandla Port Trust, have prayed for the following reliefs :
"(A) That Your Lordships be pleased to issue and order, direction and/or writ in the nature of mandamus and/or any other appropriate writ, order or direction, directing the respondent to treat the petitioner as permanent employee after completion of two years of adhoc service as has been done in all the cases by the respondent and be further pleased to direct the respondent to grant all other fringe benefits including Incremental Benefits, Leave Accumulation, L.T.C., Medical Claim and various types of Advances admissible to the regular and permanent employees of the Port Trust;
(B)Be pleased to direct the respondent to pay the arrears with 12% interest thereon;
(C)Pending admission and final disposal of this petition, Your Lordships be pleased to direct the respondent to immediately consider the case of the petitioner on the basis of the averments and submissions made in this petition;
(D)Any other and such further relief as the Hon'ble court deems fit and proper in the interest of justice;"
The case of the petitioners may be summarised as under :
In the year 2005, the petitioners were appointed in the services of the respondent as Junior Clerks on compassionate ground. In July 2005, an approval was granted for the appointment of the petitioners on adhoc basis on the clear vacant post of Junior Clerks effective from 5th July 2005. At an interval of three months, after one day break, fresh orders were being issued to the petitioners for a period of 90 days in the scale of Rs.4300=00, which was the basic pay of Junior Clerk.
It is the case of the petitioner that according to the rules with Page 2 of 5 C/SCA/9030/2015 ORDER regard to appointment on compassionate ground, the petitioners ought to have been appointed on permanent basis and not on 90 days basis with one day artificial break. By adopting such practice, the petitioners were denied the incremental benefits in the time-scale of pay though they are working since 2005. As on today, they are being paid the basic salary which was applicable at the relevant point of time, i.e. Rs.4300=00 plus D.A. The petitioners are also denied all types of service benefits which are applicable to the permanent employees of the Kandla Port Trust. The petitioners are also not granted leave accumulation, LTC, etc. It is the case of the petitioners that all other employees who worked for more than 2 years on the basis of artificial breaks have been regularized in the service of the respondent. The petitioners preferred representations dated 21st January 2012 and 7th February 2015 respectively in that regard.
Mr.T.R.Mishra, the learned counsel appearing for the petitioners, has invited my attention to a judgment and order passed by a learned Single Judge dated 9th July 2013 in Special Civil Application No.3257 of 2010. The writ-application referred to above was filed by the identically situated persons like the present petitioners working with the Kandla Port Trust. The petition was adjudicated, and after a detailed discussion, the learned Single Judge allowed the petition by issuing the following directions :
"For the reasons recorded above, this Court arrives at the judgment and passes the order, as under:
(A) Petition is allowed.
(B) It is declared and held that the petitioners are legally and validly appointed on the sanctioned vacant post of Maistry, in accordance with Recruitment Rules, with effect from 07.09.2005, in the pay-scale of Rs.4300-120-5260-130-8120.Page 3 of 5 C/SCA/9030/2015 ORDER
(C) In view of (B) above, the action of the respondent of treating the petitioners as daily wager Khalasis vide Note dated 08.03.2010, Annexure-W to the petition, is quashed and set aside.
(D) The consequential benefits and arrears flowing from (B) above, shall be paid to the petitioners no.1 and 3 within a period of two months from today.
(E) The respondent shall pay Rs.10,000/- as cost to each of the petitioners i.e. petitioners No.1 and 3. This amount of cost, shall be paid within a period of one month from today. "
It appears that the judgment and order of the learned Single Judge was challenged by the Kandla Port Trust by filing a Letters Patent Appeal No.1164 of 2013. The Letters Patent Appeal also was ordered to be dismissed vide order dated 23rd June 2014.
Mr.Mishra has also placed reliance on the decision of the Supreme Court in the case of Vishwanath Pandey v. State of Bihar and others, (2013)10 SCC 545. The Supreme Court made the following observations in para 8 of the judgment :
"8. We have heard the learned counsel for the parties and scrutinized th records. It is not in dispute that even though the District Compassionate Committee had made recommendations on 29-11-2005 that the appellant may be appointed on a Class III post, he was not given appointment because of the ban imposed by the State Government. It is also not in dispute that after lifting of the ban, the District Compassionate Committee recommended the appellant's appointment as teacher on compassionate ground and he was appointed against the vacant post by the District Superintendent of Education, Buxar. That order was neither rescinded nor modified by the competent authority on the premise that after coming into force of the 2006 Rules, the appellant could have been appointed only by the Panchayat Samiti on the post of Prakhand Teacher. Therefore, the Division Bench of the High Court was not at all justified in recording a finding that the appellant could have been appointed only as a Prakhand Teacher by the Panchayat Samiti on fixed pay. Unfortunately, the Division Bench overlooked the fact that the appellant had been appointed as per the policy of Page 4 of 5 C/SCA/9030/2015 ORDER compassionate appointment framed by the State Government and that policy does not envisage the appointment of the dependent of a deceased employee on fixed pay."
What is discernible from the decision of the Supreme Court as well as the decision rendered by the learned Single Judge of this Court is, that having once appointed the petitioners on compassionate grounds with prior approval and that too on clear vacant posts, they should have been treated as regular employees.
Mr.Gadhia, the learned counsel appearing for the Kandla Port Trust has opposed this application.
In view of the decision of the Supreme Court as well as of the learned Single Judge of this Court, no further adjudication is required. The petitioners shall be treated as permanent employees on completion of 2 years of their adhoc service. The necessary benefits including the incremental benefits, leave accumulation, LTC, medical allowance and other types of advances admissible to the regular employees shall be worked out within a period of eight weeks from the date of receipt of the writ of this order. The necessary payments shall be made within a period of four weeks thereafter.
In view of the above, all these three writ-applications succeed and are hereby allowed. Rule is made absolute. Direct service is permitted.
(J.B.PARDIWALA, J.) MOIN Page 5 of 5