Gujarat High Court
Bharatsinh Kanubha Jadeja & 25 vs State Of Gujarat & 7 on 15 June, 2016
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/10500/2014 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 10500 of 2014
With
SPECIAL CIVIL APPLICATION NO. 3809 of 2012
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
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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 ?
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BHARATSINH KANUBHA JADEJA & 25....Petitioner(s)
Versus
STATE OF GUJARAT & 7....Respondent(s)
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Appearance:
MR JA ADESHRA, ADVOCATE for the Petitioner(s) No. 1 - 26
GOVERNMENT PLEADER for the Respondent(s) No. 1
MR NIRZAR S DESAI, ADVOCATE for the Respondent(s) No. 7
RULE SERVED for the Respondent(s) No. 1 - 6 , 8
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 15/06/2016
ORAL JUDGMENT
1. Since the issues involved in both the captioned writ applications are more or less the same, those were heard analogously and are being disposed of by this common judgment and order.
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2. By these two writ applications under Article 226 of the Constitution of India, the writ applicants, serving as the Work Charged Karkoon, have prayed for the following reliefs;
"(A) This Hon'ble Court be pleased to issue appropriate writ, order or direction by directing the respondents to forthwith grant deemed date of promotion to all the petitioners as per Resolution dtd. 30.6.1998 issued by the State Government and further be pleased to order/direct the respondents to promote the petitioners to the post of W.C Work Assistant with effect from the date on which each of the petitioners have completed 10(ten) years of continuous service as W.C Karkoon (Clerk), together with all consequential benefits.
(B) Pending admission, hearing and final disposal of this petition, this Hon'ble Court be pleased to order / direct the respondents to forthwith grant deemed date of promotino to all the petitioners as per Resolution dtd.
30.6.1998 issued by the State Government and further be pleased to order / direct the respondents to promote the petitioners to the post of W.C. Work Asssitant with effect from the date on which each of the petitioners have completed 10 (ten) years of continuous service as W.C. Karkoon (Clerk), together with all consequential benefits.
(C ) This Hon'ble Court be pleased to grant any such other & further reliefs deemed just and proper in view of the facts and circumstances of this case and in the interest of justice."
3. The issue raised in the writ applications is in a very narrow compass. They are seeking promotion with deemed date in accordance with the resolution of the State Government dated 30th June, 1998.
4. Mr. Adeshra, the learned counsel appearing for the petitioners, invited my attention to the following averments made in para 4.20 of the petition;
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"4.20 That in pursunce to the following orders of the Hon'ble Gujarat High Court, vide different office orders, all the petitioners are appointed as Work Charge Work Assistant with effect from the date of completion of 10 years service as Work Charge Karkoon, after giving effect of the deemed date of promotion granted to them.
Sr. No. SCA No. Date of Order
1 4400 /2010 30.4.2010
2 7323 /2010 25.6.2010
3 5941/2010 11/05/10
4 7635 /2011 23.6.2011
5 7354 /2011 23.8.2011
6 7856/2011 24.6.2011
7 7444/2011 21.6.2011
8 5662/2011 28.4.2011
9 5676/2011 28.4.2011
10 7612/2011 22.6.2011
11 6337/2011 07/07/11
The petitioners beg to refer to any rely upon the copies of the above orders of Hon'ble Gujarat High Court at the time of hearing of this petition."
5. He has also invited my attention to the following averments made in para-4.21 of the petition wherein the details of the office orders have been given. The office orders were passed in favour of identically situated employees, who have been given the promotion with deemed date. The details are as under;
"4.21 That in pursuance to the above referred orders of the Hon'ble Gujarat High Court, vide following office orders, all the petitioners are appointed as Work Charge Work Assistant with effect from the date of completion of 10 years service as Work Charge Karkoon Page 3 of 12 HC-NIC Page 3 of 12 Created On Fri Jun 17 02:51:54 IST 2016 C/SCA/10500/2014 JUDGMENT after giving effect of the deemed date of promotion granted to them;
Sr., Office Order No. Date Passed by
No.
1 269/2008 20.10.2008 SE, Kadana Project Circle,
Divda Colony
2 274/2008 23.10.2008 Do
3 275/2008 23.10.2008 do
4 276/2008 23.10.2008 do
5 277/2008 23.10.2008 do
6 278/2008 23.10.2008 do
7 279/2008 23.10.2008 do
8 280/2008 23.10.2008 do
9 281/2008 23.10.2008 do
10 282/2008 23.10.2008 do
11 283/2008 23.10.2008 do
12 296/2008 10/11/08 do
13 165/2011 18.8.2011 do
14 85/2011 02/04/11 do
15 03 of 2012 11/01/12 SE Irrigation Mechnical Circle-
1, Vadodara
16 197/2011 15.12.2011 SE Irrigation Mechnical Circle-
1, Ahmedabad
17 28/2012 03/02/12 SE Vadodara Irrigation Circle,
Vadodara
18 51/2012 14.3.2012 SE Narmada Project Canal
Circle No.4, Vadodara
19 231/2012 27.6.2012 Joint Director, GERI, Vadodara
20 232/2012 29.8.2012 SE Narmada Project Canal
Circle No.2, Bharuch
21 01 of 2012 25.1.2012 SE Narmada Project Main
Work Circle, Kevadia Colony.
22 Outward 12/09/11 SE Rajkot Irrigation Circle,
No.660/2011 Rajkot
23 Outward 23.1.2012 SE Rajkot Irrigation Circle
No.59/2012 Rajkot.
24 21/2009 02/03/09 SE, Irrigation Mechanical Circle
No.1, Vadodara.
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25 117/2009 01/08/09 SE, Irrigation Mechanical Circle
No.1, Vadodara.
26 82/2011 18.8.2011 SE,Irrigation Mechanical Circle
No.1, Vadodara.
27 382/2011 18.8.2011 SE, Irrigation Mechanical Circle
No.1, Vadodara.
28 169/2012 14.5.2012 SE, Sujlam-Suflam Circle No.2,
Kherva, Tal & Dist:; Mehsana.
6. According to Mr. Adeshra, after giving deemed dates and calculating 10 years service from that particular date, they were all appointed as the Work Charge Work Assistants. According to him, his clients are also entitled to the very same treatment and have been discriminated for no reason.
7. He has invited my attention to the averments made in para 4.23 of the petition which reads as under;
"4.23 That in pursuance to representation dtd. 19.12.2011, Parmar Girdharbhai Khatubhai has been granted deemed date of promotion as work charge karkoon and has been promoted as work charge work assistant on completion of 10 years of continuous service as W.C. Karkoon vide Office Order No.3/2012 dtd. 11.1.2012 passed by Superintending Engineer, Irrigation Mechanical Circle No.1, Vadodara is annexed hereto and marked as Annexure-N. That the respondents have not promoted the petitioners as work charge work assistant on completion of 10 years of continuous service as W.C. Karkoon, though they are similarly situated. Thus, the petitioner have been discriminated from amongst persons who are similarly situated."
8. Lastly, he invited my attention to the judgment and order rendered by the learned Single Judge of this Court dated 25.6.2010 in Special Civil Application No.7323 of 2010, wherein this Court observed as under;
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"Heard learned advocates appearing on behalf of
respective parties.
In this matter, the facts of present petition are that respondents have decided to create new cadre of Work Assistant converting and consolidating post of Clerk, Mistry and Canal Inspector by resolution dated 21st September 1989. On the basis of aforesaid resolution, State Government has made recruitment rules for the post of Work Assistant on 24th January 1990 which came into effect, wherein, it is provided that Clerk, Mistry and Canal Inspector who have worked for more than ten years continuous service as Work Charge Clerk shall be promoted as a Work Charge Work Assistant Class-III on condition to complete training of one year period. Accordingly, on 29th January 1990, it has been decided that from eligible candidates those who are working as Work Charge Clerk, Mistry and Canal Inspector may be appointed on the post of Work Assistant. Similarly benefits have been extended by respondent in favour of certain Work Charge employees those who have completed ten years service in the post of Clerk, Mistry and Canal Inspector. The respondents had given and extended the benefits of Work Charge in the year of 1999 and given deemed date of completion of ten years service to the petitioners - Annexure 'A'. Annexure 'A' is issued by Superintending Engineer, Narmada Project, Main Work Circle, Kevadiya Colony. This statement of 128 employees where their designation, date of birth, educational qualification and date on which they appointed in Work Charge Clerk and completion of ten years period have been specifically made clear that each employees from the list of 128 where name of petitioners are there have completed ten years period continuous service almost in the year of 1998-99, 2001-03, 2004 accordingly. Another list Page 22 for the post of Work Charge Telephone Operator, Technician, Time Keeper, Pump Operator, etc., have been prepared by said Authority and all the details are same and they have also completed ten years continue service and deemed date has been given by respondent authority. Therefore, learned advocate appearing for petitioners submitted that as per Government Circular dated 29th January 1990 read with Notification dated 5th October 2006, now, all the petitioners are eligible to get benefits of Work Page 6 of 12 HC-NIC Page 6 of 12 Created On Fri Jun 17 02:51:54 IST 2016 C/SCA/10500/2014 JUDGMENT Assistant after completion of ten years continuous service and with undergo training as specified in Notification dated 5th October 2006 and they are entitled to get benefits in the post of Work Assistant. Therefore, a detailed representation has been made by some of the petitioners on 29th January 2010 Annexure 'F' Page 33 to Section Officer of Narmada Water Resources, Water Supply and Kalpasar Department. In the said representation, a request was made to the Authority by petitioners that on the basis of aforesaid notification and circular dated 29th January 1990 and 5th October 2006, they all are eligible for the said benefits, therefore, at least that benefit may be extended in their favour. Learned advocate for the petitioners submitted that more than four months have passed, no response and reply is given by respondents, therefore, present petition is filed claiming the benefits as per Circular dated 29th January 1990 and 5th October 2006.
I have heard learned advocates appearing on behalf or respective parties. I have also perused the petition along with all annexures which are annexed to the petition. The relevant portion of the notification dated 24th January 1990 is quoted as under :
No.GJ-1/90/DCS/1089/3/G :- In exercise of the Powers conferred by the proviso to article 309 of the Constitution of India, the Government of Gujarat hereby makes the following rules to provide for regulating recruitment to the post of Work Assistant, Class III, in the subordinate service of the Water Resources Department, namely :-
1. These rules may be called the Work Assistant Recruitment Rules, 1990.
2. Appointment to the post of Work Assistant, Class III in the subordinate service of the Water Resources Department shall be made either -
(a) by Promotion of a person of proved merit and efficiency from amongst the persons working as Karkoon, Mistry and Canal Inspector, who has put in atleast ten years continuous service on the said post in the Water Resources Department, or Page 7 of 12 HC-NIC Page 7 of 12 Created On Fri Jun 17 02:51:54 IST 2016 C/SCA/10500/2014 JUDGMENT
(b) by direct selection.
Similarly, this notification has been amended subsequently by State Government on Page 32 dated 5th October 2006 which requires successful training, thereafter, they are entitled appointment in the post of Work Assistant from the post of Clerk, Mistry and Canal Inspector. This amendment has been made in Para 2(2). I have considered Annexure 'A' where petitioner has completed continuous service of ten years as a Work Charge Clerk, Telephone Operator, Technician, Pump Operator, Meter Reader, etc. Therefore, when the post of Clerk, Mistry and Canal Inspector has been upgraded in the post of Work Assistant and persons those who are working in the subordinate service in the post of Clerk, Mistry and Canal Inspector are entitled promotions in the post of Work Assistant subject to passing of successful training as per amendment made in Notification dated 5th October 2006. Statement Annexure 'A' has been issued by respondents, therefore, there is no dispute from other side about the date of completion of ten years service of each petitioner.
In light of this background, similar benefits have been extended in favour of other subordinate staff those who were working in the post of Clerk, Mistry and Canal Inspector and same post has been converted in the post of Work Charge Work Assistant. That order has been issued by respondent authority on 2nd March 2009 Page 40 Annexure 'H'. In the said order, the employees those who have completed ten years continuous service and after considering merits subject to passing successful training, their posts have been converted to Work Charge Work Assistant in the scale of Rs.4,000/- to R.6,000/-. Therefore, learned advocate for the petitioners submitted that in spite of representation received by other side, no decision is taken and petitioners those who have completed more than ten years continuous service since long remain without benefit of promotion as per Notification dated 24th January 1990.
In light of this background, it is directed to respondents authorities to consider the representation made by petitioners dated 29th January 2010 and extend the benefits of Work Charge Work Assistant in favour of Page 8 of 12 HC-NIC Page 8 of 12 Created On Fri Jun 17 02:51:54 IST 2016 C/SCA/10500/2014 JUDGMENT petitioners as per Notification dated 24th January 1990 and Government Circular dated 29th January 1990 read with amended Circular dated 5th October 2006 within a period of two months from the date of receiving copy of present order and communicate the order of extending benefits in favour of each petitioners as early as possible.
In view of above observation and directions, present petition is accordingly disposed of.
Direct service is permitted."
9. The State Government has filed an affidavit-in-reply in Special Civil Application No.3809 of 2012, duly affirmed by the Executive Engineer, inter alia, stating as udner;
"11 I respectfully say that the petitioners are claiming promotion on the post of work-charge work assistant on the basis of the Government Resolution dated 30.06.1998 to which it is humbly submitted that the petitioners have been appointed only on 22.06.2006 on work-charge establishment and the petitioners are eligible to get deemed date as state in the very order dated 22.6.2006 and they shall be considered to be appointed as work-charge clerk only from 22.06.2006 and reported on 01.07.2006 and therefore the petitioners shall have to completed 10 years of continuous service as work-charge clerk from 01.07.2006 so as to become eligible for promotion to the post of wark-charge work assistant. The petitioners were appointed under the provisions of ID Act. It is further submitted that the petitioners are also required to appear in Departmental Examination as has been clarified by Government Resolution dated 05.10 2006.
12. I respectfully say that before advent of Resolution dated 30.6.1998, under the office of the present deponent, appointments were made on the work-charge establishment in consonance with the Recruitment Rules and after following Recruitment Procedure and eligible candidates were appointed as Clerk, Mistry Canal Inspector in different cadre of work-charge. I say that candidates appointed by aforesaid procedure were given Page 9 of 12 HC-NIC Page 9 of 12 Created On Fri Jun 17 02:51:54 IST 2016 C/SCA/10500/2014 JUDGMENT sufficient training and thereafter appointed as work- charge work assistant pursuant to the Resolution dated 21.09.1989.
I further say that at the relevant time when Resolution dated 21.9.1989 and 29.1.1990 came into effect, there was no cadre in which the present petitioners were belonging and they were Rojamdar and petitioners were trying to redress their grievance before the Industrial Tribunal. Therefore the petitioner would not be entitled to any benefits flowing from GR dated 21.9.1989 and 29.1.1990. Thus, those persons who were appointed after following due procedure and in consonance with the Recruitment Rules would only be eligible for getting benefit of Government Resolution dated 21.09.1989 and not present petitioners who have not been appointed through proper channel and thus no benefits of government resolution dated 21.09.1989 cannot be given to the present petitioners who are neither regular nor legal appointments.
I reiterate that the petitioners are not eligible and entitled to get any benefit from Government Resolution dated 24.1.1990 and 29.1.1990 respectively as the petitioners were not in any cadre and were Rojamdars.
13. In view of what is stated hereinabove the present petitioners are not eligible and entitled to any reliefs as sought for in the petition as per the Government Resolution and only on the ground of suppression of material facts the captioned petition is require to be dismissed. "
10. There is one additional affidavit at page-250, duly affirmed by the Executive Engineer, wherein it has been stated in paragraphs-6 and 7 as under;
"6. I respectfully say that petitioners nos. 6 to 13 were appointed on work charge establishment on 22.10.1999 as work-charge clerk. A copy of the order dated 22.10.1999 is annexed hereto and marked as Annexure R Page 10 of 12 HC-NIC Page 10 of 12 Created On Fri Jun 17 02:51:54 IST 2016 C/SCA/10500/2014 JUDGMENT I. I respectfully say that upon perusing order dated 22.10.1999, more particularly; condition no.9 which clearly stipulates that deemed date shall not be given. I say that the petitioners have with open eyes accepted the said order without any protest or demur and therefore it is now not open for them to ask for deemed date as the petitioners are estopped from doing so. I say that only those persons who have completed 10 years of service on work-charge establishment as on 05.10.2006 shall be entitled to the benefit of the Government Notification dated 24.01.1990 and Government Resolution dated 29.01.1990.
It is pertinent here to note that petitioners have not completed 10 years of service counting from 22.10.1999 as on 05.10.2006 and, therefore, the petitioners would not be entitled to any benefits flowing from aforesaid Resolutions.
7. It is further submitted that as far as the present petitioners are concerned, they would completed 10 years of service on work-charge establishment in the year 2009 and therefore looking to the instructions given by the office of the Narmada Water Resources, Water Supply and Kalpsar Department dated 17.08.2011 written to the office of the present deponent clearly states that for getting promotion to the post of work charge work assistant in work-charge establishment, it is necessary to clear pre-service examination and it is only after clearing the said examination, the case of the petitioner can be considered for the promotion to the post of work-charge work assistant. A copy of the letter dated 17 08.201 1 is annexed hereto and marked as Annexure R II."
11. There is a detailed representation dated 19th December, 2011 addressed by the petitioners through their learned advocate to the Special Secretary, Narmada Irrigation and Water Supply and Kalpsar Dept, which is at page-101, Annexure-O.
12. The respondents are directed to look into the materials Page 11 of 12 HC-NIC Page 11 of 12 Created On Fri Jun 17 02:51:54 IST 2016 C/SCA/10500/2014 JUDGMENT which have been referred to above in this order and take an appropriate decision as regards the claim put forward by the two petitioners herein. Let such decision be taken within a period of one month from the date of the receipt of the writ of the order. The decision shall be in writing with reasons and the decision should also reflect consideration of the materials referred to above including the judgment and order of this Court. The decision shall be communicated to the petitioners. If the petitioners are dissatisfied with the decision in any manner, it shall be open for them to challenge the same before this Court. Rule is made absolute to the aforesaid extent.
Direct service is permitted.
(J.B.PARDIWALA, J.) Vahid Page 12 of 12 HC-NIC Page 12 of 12 Created On Fri Jun 17 02:51:54 IST 2016