Gujarat High Court
Jayantibhai Khusalbhai Rohit vs Superintendent- Engineer on 8 September, 2022
Author: A.Y. Kogje
Bench: A.Y. Kogje
C/SCA/3929/2014 JUDGMENT DATED: 08/09/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 3929 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.Y. KOGJE
==========================================================
1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
==========================================================
JAYANTIBHAI KHUSALBHAI ROHIT & 1 other(s)
Versus
SUPERINTENDENT- ENGINEER & 2 other(s)
==========================================================
Appearance:
MR VIRAL M PANDYA(5257) for the Petitioner(s) No. 1,2
MR SURBHI BHATI, AGP for the Respondent(s) No. 1,2,3
==========================================================
CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE
Date : 08/09/2022
ORAL JUDGMENT
1. This petition under Article 226 of the Constitution of India is filed with following prayer(s):-
"8(A) Quash and set aside the Office Order passed by the respondent-authority i.e. common office order no.44 of 2013 dated 06.02.2013 (Annexure-'L') by which petitioners were not Page 1 of 8 Downloaded on : Thu Sep 15 20:14:36 IST 2022 C/SCA/3929/2014 JUDGMENT DATED: 08/09/2022 treated as 'Hangami Tracers' from their respective dates of appointment and accordingly, the due seniority and promotion kindly due seniority and promotion kindly be ordered to be given to the petitioners from the date of their respective appointments in the interest of justice;
(B) ...;
(C) ..."
2. The claim of the petitioners is for being treated as Hangami Tracers from the date of their initial appointments in the Department and their initial appointment in the Department was as Work Charge Tracers.
3. Learned advocate for the petitioners submitted that on the representation made by the petitioner for treating this period as Work Charge Tracers prior to their appointments as Hangami Tracers may also be treated as Hangami Tracers so that, the petitioners get the benefits, as is available to the other similarly situated candidates and accordingly, the Department had obliged and considered the appointment of the petitioners as Hangami Tracers from the date of their initial appointment in the Year-1979.
4. It is submitted that all of a sudden, subsequently, the decision taken for considering the appointment with effect from 1979 was reversed and that too without any notice upon the petitioners, and therefore, the same was the subject matter of challenge before this Court in Special Civil Application No.15140 of 2004 with Special Civil Application No.15154 of 2004. This Court, vide order dated 30.07.2012, was pleased to set-aside the action of the respondent-authority, as the same was taken without following the principles of natural justice.
Page 2 of 8 Downloaded on : Thu Sep 15 20:14:36 IST 2022C/SCA/3929/2014 JUDGMENT DATED: 08/09/2022
5. Learned advocate for the petitioners submitted that after the order of this Court though the action was taken to restore the position of the petitioners, and therefore, on 04.02.2013, the petitioners addressed a notice through their advocate for complying the order of this Court. Instead the respondents passed the impugned order, according to the learned advocate for the petitioner, the respondent-authorities were to only examine the case of the petitioner to the extent of whether their appointment should be treated from the date on which they were given appointment as Hangami Tracers, which was in the Year- 1982 or should be given the appointment of Hangami Tracers from the date of their initial appointment in the Year-1979 as Work Charge Tracers. However, the respondent-department has expanded the scope and by relying upon the notifications issued for the subsequent order i.e. to say in the Year 1980 and 1984 held that the petitioners are not holding the qualification for the post of Hangami Tracers. It is submitted that the application of the subsequent notifications regarding the recruitment rules is absolutely illegal, as the petitioners were originally appointed as a Work Charge Tracers based on their educational qualification.
6. It is submitted that along with the petitioners there were other 38 employees, who were identically situated and were having similar educational qualification qua them the Department have not cited the subsequent notification regarding the educational qualification and were given the benefits by treating them as Hangami Tracers from the date of their appointment as such.
Page 3 of 8 Downloaded on : Thu Sep 15 20:14:36 IST 2022C/SCA/3929/2014 JUDGMENT DATED: 08/09/2022
7. It is submitted that the impugned order, which is passed though refers to the hearing afforded to the petitioners, but, in fact, the petitioners have not been afforded any hearing and again unilaterally the order is passed, which will give an effect that the petitioners were not qualified for being appointed as a Hangami Tracers.
8. As against this, learned AGP drawing attention of this Court to the notifications, which are referred to in the impugned order and submitted that it was provided for in the very notifications that those employees, who were already in existence as Work Charge Tracers were required to have the qualification, as specified therein. The Department has passed the impugned order based on requirement as per the notification. It is submitted that such notification is not under challenge.
9. Learned AGP has responded to the contention raised by the petitioners that the other co-employees have been given the benefits since 1979 by treating them as a Hangami Tracers which learned AGP, under the instructions of Mr. M.I.Shah, Executive Engineer (I/C), City (R & B) Division, City (R & B) Circle, Ahmedabad states that none of the co-employees identically situated have been given the benefits with effect from their initial date of appointment i.e. to say in the Year-1979, but they have been treated as Hangami Tracers with effect from 1982 i.e. the date of their appointments as such.
10. In rejoinder, learned advocate for the petitioner submits that the effect of the impugned order is that the petitioner is not getting the pension fixed by considering him as a Hangami Tracers with effect from the Year-1982 also.
Page 4 of 8 Downloaded on : Thu Sep 15 20:14:36 IST 2022C/SCA/3929/2014 JUDGMENT DATED: 08/09/2022
11. Having considered the rival submissions of the parties and having perused the documents on record though the prayers made before this Court are elaborate to include seniority, promotion etc., however, as now the petitioner has attained the age of superannuation, the issue would be narrowed down to the entitlement of the petitioner which is available to the petitioners in accordance with law.
12. From the record, it appears that the petitioners were given an appointment as Work Charge Tracers on 04.08.1979, where the petitioners were having the requisite qualification of S.S.C. Certificate, Intermediate Drawing Pass Certificate, and therefore, the petitioners were eligible for appointment as Work Charge Tracers. Subsequently, the petitioner was given an appointment of Hangami Tracers on 23.02.1982 by an office order on a condition of sanctioned for the such appointment in the establishment from the State Government. It appears that the petitioners continued to work as Hangami Tracers and in between the petitioners made representation before their Department for being considered as Hangami Tracers from the date of their absorption in the Department i.e. in the Year-1979. The said request of the petitioners was considered and the order came to be passed on 09.11.1988 to the effect that the appointment of the petitioners on 06.08.1979 be treated to be that of as a Hangami Tracerss. This decision was revived by the respondent-authorities by an order dated 30.09.2004 being Office Order No.582 of 2002 & 583 of 2002 (Annexure-I). These orders were examined by this Court in Special Civil Application No.15140 of 2004 with Special Civil Application No.15154 of 2004 filed by the present petitioners and this Court, vide order Page 5 of 8 Downloaded on : Thu Sep 15 20:14:36 IST 2022 C/SCA/3929/2014 JUDGMENT DATED: 08/09/2022 dated 30.07.2012 set-aside the order on the ground of violation of principles of natural justice. In paragraph Nos.3 & 4, the Court has held as under:-
"3. I have heard the learned counsel for the petitioners and carefully perused the record. From the perusal of the impugned orders, it is very clear that before cancelling the earlier orders 509/1998 and 655/2002 at annexure-I of the petitions, the petitioners were not heard in any manner which is a violation of principles of natural justice and the impugned orders are liable to be quashed and set aside. The respondents are required to follow due procedure of law before cancelling the earlier order.
4. Accordingly the impugned order dated 30.09.2004 is hereby set aside and quashed with no order as to costs. It is made clear that the this order has been quashed only on the ground of violation of principles of natural justice because the petitioners were not heard at the time of passing such order."
13. The grievance raised by the petitioners is that while passing the impugned order though the reference is made to a hearing, which took place on 23.01.2013, it is submitted that, if that be so, then there was no cause for the petitioners to address a legal notice to the respondent-department for complying the order of this Court dated 30.07.2012. It is submitted that there was actually no hearing, which has taken place. Not only that, but apparently the respondent-authorities have expanded the scope of whether to consider the appointment of the petitioners as Hangami Tracers from the date of their initial appointment in the Year-1979 as Work Charge Tracers and instead has proceeded to hold that the petitioners are not having requisite qualification to be appointed as Hangami Tracers.
14. It appears that such a finding is given based on 2 notifications, which were referred to in the impugned order dated Page 6 of 8 Downloaded on : Thu Sep 15 20:14:36 IST 2022 C/SCA/3929/2014 JUDGMENT DATED: 08/09/2022 26.06.1980 and 08.02.1984, which are quite identical and are therefore, the clauses of notification of 1984 are reproduced herewith:-
"1...
2. Appointment to the post of Tracer in the Offices under the Road and Building Department shall be made either -
(a) by transfer of a person of proved merits and efficiency from amongst the persons working as Work Charge Tracer, who are recruited through the employment exchange, and who were within the prescribed age limit at the time of initial recruitment and possess the qualifications mentioned in Clause (a), (b) and (c) of rule 3, or
(b) by direct selection.
3. To be eligible for appointment by direct selection to the post mentioned in rule-2, a candidate shall -
(a) not be more than 25 years of age;
(b) have passed the Secondary School Certificate Examination or an equivalent examination recognized by the Government.
(c) possess a certificate of Civil Draftmanship and Estimating awarded by the Department of Technical Education, Government of Gujarat or by the Institution, recognized by the Government or have successfully undergone training course in Civil Draftmanship in an Industrial Training Institution recognized by the Government;
(d) have adequate knowledge of Gujarati or Hindi or both;
provided that preference may be given to a candidate, who possesses a Diploma in Civil Engineering..."
15. In the opinion of the Court, the respondents have expanded the scope of examining the case whether to treat the petitioners as Hangami Tracers from the Year-1979 and Page 7 of 8 Downloaded on : Thu Sep 15 20:14:36 IST 2022 C/SCA/3929/2014 JUDGMENT DATED: 08/09/2022 proceeded to hold the eligibility of the petitioners to hold the post of Hangami Tracers based on the educational qualification prescribed in the notifications, which were subsequent to the date of their initial appointment. The Court has also examined the submissions made by the learned advocates with regard to other 38 co-employees, who were also identically situated, but qua them, no such order, as is impugned before this Court is passed and in fact, they have been treated to be eligible for the post of Hangami Tracers. It is apparent that, as the petitioners have approached this Court by way of the petition, this treatment has been meted out to the petitioners.
16. In view of aforesaid, the impugned Common Office Order No. 44 of 2013 dated 06.02.2013 is ordered to be quashed and set-aside. It is held that the petitioners would be entitled to the pension and pensionary benefits by treating them to be appointed as Hangami Tracers with effect from the date on which they were actually given appointment as Hangami Tracers. The effect of this order be given as expeditiously as possible and preferably within a period of 6(six) months.
With the aforesaid directions, the present petition stands allowed to the aforesaid extent.
(A.Y. KOGJE, J) GIRISH Page 8 of 8 Downloaded on : Thu Sep 15 20:14:36 IST 2022