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Gujarat High Court · body

2001 DIGILAW 205 (GUJ)

Himanshu S. Mehta v. Superintending Engineer

2001-03-17

P.B.MAJMUDAR

body2001
P. B. MAJMUDAR, J. ( 1 ) BY way of this Special Civil Application, the petitioner has sought for necessary writs/orders and directions against the respondents to permit him to go back to his original post i. e. , to the post of Work Charged Stores Clerk. ( 2 ) THE facts leading to the present petition are as under : the petitioner was initially appointed on the post of Stores Clerk with effect from 10. 1. 1979 or from the date when he resumes duties. An order to that effect was issued on 20th January, 1979, which is at Annexure-A, at page 17. Thereafter, by an another order dated 16. 10. 1981, the petitioner along with other 18 employees was transferred on the post of Junior Clerk in the Circle Office in view of the fact that in the newly established circle Office, Junior Clerks were not available. The said temporary transfer order was passed transferring certain employees on the said post of Junior clerk and accordingly, the petitioner and such other Work Charged Stores Clerk were transferred from the said post of work Charged Stores Clerk to the post of Junior Clerk in the Circle Office. The aforesaid order is produced at Annexure-B, page 19, and as per the contents of the said order, it is purely of temporary nature. It seems that even though the said order is of temporary tenure, the petitioner and some other employees were continued as Junior clerks in the Circle Office or other Divisional Offices and they were not repatriated back to the parent post, i. e. Work Charged Stores Clerks/stores Clerks. It is the say of the petitioner that since he was asked to go only for a temporary period as a Junior Clerk, he has shown his willingness to go and he had never given up his right to be reabsorbed back on the original post of Work Charged Stores Clerk. Even the order at Annexure-B, clearly shows that it was merely a stop gap arrangement. It is the say of the petitioner that as per the Government Resolution dated 4. 8. 1990, a works Charged Stores Clerk, who has completed 10 years of service, is given training of works Assistant and thereafter, immediately on completion of 10 years, normally, he is promoted to the post of Works Assistant in Stores Department in the higher pay scale. 8. 1990, a works Charged Stores Clerk, who has completed 10 years of service, is given training of works Assistant and thereafter, immediately on completion of 10 years, normally, he is promoted to the post of Works Assistant in Stores Department in the higher pay scale. The petitioner has also annexed some representations as Annexure-C requesting the department to repatriated him on his original post. The petitioner has also given example of certain Juniors who were given promotional benefit in the parent cadre. The said example is given at page 8 of the petition. By a letter dated 29th May, 1990, the Superintending Engineer, Ahmedabad City, informed the Executive Engineer (Road and Building) that those Junior Clerks, who were transferred from the post of Work Charged Stores Clerk on temporary basis and who were willing to go back, may send their applications to the Department within 3 days so that necessary procedure can be followed. It seems that the petitioner has made such representations from time to time to the Department requesting the Department to repatriate him on his original post. One of such request letters has been produced at page-24, which was addressed to the concerned Minister of the Department, wherein he has given reference of his earlier application, and copy of the said letter was sent to the secretary of the Department, Deputy Executive Engineer and Superintending Engineer. Ultimately, since the petitioner was not repatriated back on his original post of Work charged Stores Clerk, he challenged the said action by way of filing the present Special civil Application. ( 3 ) THE petition was admitted by this Court on 4th December, 1990. By an interim order, the petitioner was permitted to go for training on giving an undertaking to this court to the effect that, ultimately, if the petition is dismissed, he will not ask for any equity or right in his favour on the basis of completing such training. The interim order passed by this Court dated 20th December, 1990 is placed on record. Similar type of interim orders were also passed in two other petitions. The aforesaid training was regarding the post of Works Assistant, as, on completion of such training, an employee can be considered for the post of Works Assistant in the Department. The said post is in the parent cadre of the petitioner. Similar type of interim orders were also passed in two other petitions. The aforesaid training was regarding the post of Works Assistant, as, on completion of such training, an employee can be considered for the post of Works Assistant in the Department. The said post is in the parent cadre of the petitioner. The petitioner, therefore, has challenged the said action of the respondents for not repatriating him to his original post of Work Charged Stores clerk and to protect his seniority accordingly. ( 4 ) THE Department has filed Affidavit in Reply which is at page 36 to the petition. It has been pointed out in para-8 of the Reply that the petitioner is in the cadre of Junior clerk and a Junior Clerk can get promotion in the clerical channel of different posts as senior Clerk, Deputy Accountant, Assistant Office Superintendent, Assistant superintendent and Office Superintendent. It is also pointed out that the petitioner was not eligible to get promotion to the post of Works Assistant for the reason that the petitioner has not worked for 10 years in the cadre of Ministry or Work Charged Stores Clerk or karkoon. It is also pointed out in the Reply that the petitioner will not become eligible to be appointed to the post of Works Assistant simply by undergoing the requisite training as he has not worked for 10 years in the cadre of Work Charged Stores Clerk. However, it is also stated in the Reply in para-10 that since the petitioner has passed pre-service training examination under CRS, it can be said that he has impliedly given consent for continuing in the said cadre of Clerk and in view of the said implied consent, there was no question of sending him back on his original post of Work Charged Stores Clerk. This petition is only resisted by the aforesaid Reply. ( 5 ) ON behalf of the petitioner, the learned Advocate, Mr. Nizar Desai, argued that when the original appointment of the petitioner was only on the Clerical post for a limited period, in fairness, he should have been sent back to his original post as a Work Charged stores Clerk in the Stores Department. ( 5 ) ON behalf of the petitioner, the learned Advocate, Mr. Nizar Desai, argued that when the original appointment of the petitioner was only on the Clerical post for a limited period, in fairness, he should have been sent back to his original post as a Work Charged stores Clerk in the Stores Department. He further argued that simply because he has appeared in the pre-service training examination which is meant for clerical side, it cannot be presumed that he has given his consent to be absorbed permanently in the clerical side. At this stage, it is required to be noted that along with the present petitioner, two other similarly situated employees had also filed Special Civil Application Nos. 8369 of 1990 and 8371 of 1990, wherein directions were issued to reabsorb them on their original posts. ( 6 ) THE present petitioner has also filed Additional Affidavit which is at page-42 of the compilation. The said Additional Affidavit is filed on 28th November, 2000. It has been pointed out in the Additional Affidavit that as per the earlier interim order of this Court dated 20th December, 1990 (Coram : C. K. Thakker, J.), the petitioner has already completed the training successfully as Works Assistant and some other employees, who have completed such training, are junior to the petitioner and they have been put in higher pay scale as Works Assistant. The said order is annexed with the Additional Affidavit as annexure- F. The petitioner has also further stated in the Additional Affidavit that though the petitioner had made request to repatriate him to the post of Work Charged Stores clerk way back in the year 1999 (it seems that it is a typographical mistake, it should be 1990), the respondent did not consider the said request, instead in the year 1998, other two persons, who were similarly situated like the petitioner, viz. , Mr. P. R. Dave and Mr. Waghela, were repatriated back to the post of Work Charged Stores Clerk and the petitioner was not given the said benefit. The petitioner has also pointed out that in the seniority list of the Junior Clerks published by the Department showing the seniority position as on 31. 12. 1995, his name was shown at Serial No. 1485. Waghela, were repatriated back to the post of Work Charged Stores Clerk and the petitioner was not given the said benefit. The petitioner has also pointed out that in the seniority list of the Junior Clerks published by the Department showing the seniority position as on 31. 12. 1995, his name was shown at Serial No. 1485. It is also pointed out that in the year 1998, the post of Work Charged Stores Clerk was abolished and all those persons, who were serving on the said posts, were promoted to the post of Work Charged work Assistant in the scale of Rs. 12,00/- to Rs. 1800/ -. It is also pointed out that since the petitioner has also passed training which is required for getting promotion to the post of Work Charged Works Assistant and all other persons, who were similarly situated with the petitioner, and have passed the said training, have been promoted, the petitioner should also be given the said benefit. ( 7 ) THERE is no denial to the Additional Affidavit filed by the petitioner from the side of the Department. It is also pointed out with reference to two employees, viz. , Shri P. R. Dave and Shri Waghela, that along with the petitioner they had also filed Special Civil application Nos. 8369 of 1990 and 8371 of 1990. The aforesaid two Special Civil applications were disposed of by order of the learned the Chief Justice on 12th January, 2001. In the aforesaid two petitions, Additional Affidavit was filed on behalf of those petitioners by which it was stated that they have been restored to their status as Work charged Stores Clerk and they have also undergone the requisite training successfully. Since the petition was pending, they were continued to be designated as Stores Clerk keeping in view that they have completed the training successfully. The learned additional Government Pleader made a statement in both the above petitions that the department is willing to absorb the said petitioners as well as other such Clerks on the post of ad hoc Works Assistant without change in their service conditions and their seniority shall be protected on the basis of length of their service. Ultimately, on the basis of the statement, both the petitions were disposed of. Ultimately, on the basis of the statement, both the petitions were disposed of. The aforesaid order has been placed on the record of this Special Civil Application by the learned Advocates for both the parties. ( 8 ) SO far as the present petition is concerned, it seems that the said benefit is not given by the Department because according to the Department, the petitioner was confirmed on the post of Clerk while the aforesaid two employees were not confirmed as they had not passed the pre-service training examination for Junior Clerk which was prescribed for the Junior Clerk. It seems that both the aforesaid employees, even though, had appeared in the said examination, have failed and therefore, they were not given status of permanency in the clerical cadre and to the misfortune of the petitioner, he passed the examination and was considered as confirmed Clerk, his name appeared in the seniority list of the Clerks. Ultimately, the aforesaid two employees were sent back somewhere in the year 1998 on their original posts and the present petitioner was not sent only on the ground that he, having passed the examination, has been absorbed in the post of clerical channel. ( 9 ) IT is not in dispute that the only difference between the case of the petitioner and the aforesaid other two employees is that the petitioner has passed the Pre-service training Examination and those two employees have failed in the said examination, with the result that the petitioner, ultimately got the benefit of confirmation in the clerical cadre. It is the say of the learned AGP that if the petitioner was not confirmed in the post of Clerk, naturally, he would also have been repatriated along with the aforesaid other two employees to his parent post in the year 1998 itself. But, in my view, the case of the petitioner for being repatriated to his original post was already pending since long and at no point of time, he has given up such right. No doubt, he could have requested the department to confirm him without prejudice to his rights and contentions which are the subject matter of this Special Civil Application. ( 10 ) IT was argued by Mr. No doubt, he could have requested the department to confirm him without prejudice to his rights and contentions which are the subject matter of this Special Civil Application. ( 10 ) IT was argued by Mr. Desai, for the petitioner, that simply because the petitioner has passed the examination which was prescribed for the Clerical cadre, and simply because other employees have failed to clear the said examination, there is noreason why the benefit which was given to them should not be given to the present petitioner, and the petitioner also should have been meted out similar treatment. It is argued by Mr. Desai that since 1989, the petitioner is requesting the Department to send him back to his original post and, therefore, he has never given up his claim for going back to his original post in the Parent Department. He has also argued that if the petitioner is sent back to the parent Department, he will not claim any right in the Clerical cadre in any manner. It was, therefore, argued that similar benefit also may be given to the petitioner as has been given to the aforesaid other two employees. ( 11 ) CONSIDERING the facts and circumstances of the case, I am of the opinion that it would not be just and proper to deny the petitioner his claim for being repatriated. It is no doubt true that he, having passed the Pre-Service Training Examination, ultimately, got the benefit of confirmation in the Clerical cadre. But, by sending him back to his Parent department, no prejudice is likely to be caused to any one, as, ultimately, he is required to be given the same benefit which is given to his other two colleagues. Simply because the petitioner has passed the Pre-Service Training Examination and other two employees have failed to clear the said examination, only on that ground, it would not be proper to deny him the benefit of repatriation. Under these circumstances, it would be just and proper to direct the Department to consider the case of the petitioner for his repatarition to the post of Work Charged Stores Clerk. In my view, it would be unjust to take away his right for repatriation simply because he was confirmed in the Clerical cadre on his passing the pre-Service Training Examination. In my view, it would be unjust to take away his right for repatriation simply because he was confirmed in the Clerical cadre on his passing the pre-Service Training Examination. In any case, the aforesaid fact happened subsequently after filing of the petition and, all throughout, the petitioner was requesting the Department to send him back to his original post of Work Charged stores Clerk. The petitioner has also successfully completed the training which was meant for the post of Works Assistant. It, therefore, cannot be said that the petitioner has given up his claim for going back to his original cadre. In my view, therefore, the petitioner should not be denied the benefit which is given to the petitioners of Special civil Application Nos. 8369 of 1990 and 8371 of 1990. It is, however, clarified that the petitioner will have no right whatsoever in the clerical cadre in any manner after his repatriation from the said post. ( 12 ) IN view of what is stated above, the petition is allowed. The Department is directed to give similar benefit to the petitioner which is given to the petitioners of Special civil Application Nos. 8369 of 1990 and 8371 of 1990. The Department is directed to designate the petitioner as ad hoc works Assistant and fix his seniority inter se with other employees working on the same post. It is clarified that the petitioner will have no right in any manner whatsoever on any of the posts on the clerical cadre. Necessary consequential order in this connection may be passed by the Department latest by 30th June, 2001. The petition is accordingly allowed. Rule is made absolute, with no order as to costs.