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2004 DIGILAW 478 (GUJ)

K. B. Raval v. State of Gujarat

2004-07-27

J.N.BHATT

body2004
JUDGMENT : J.N. Bhatt, J. 1. By this petition, under Article 226 of the Constitution of India, the petitioner has sought directions and orders against the respondent-authorities by quashing and setting aside the decision of the respondent authorities, whereby, the petitioner was asked to appear in the examination for being regularised as Steno Typist and to declare that he is regularly appointed Steno Typist with effect from 01.4.67, and further direction to grant the benefits of higher grade scales with all consequential benefits to the petitioner. 2. Even, upon a casual look on the factual profile of this petition highlighted the unreasonable, unsupportable and discriminatory treatment meted out to the petitioner, who came to be appointed as Steno Typist, which is treated as equivalent to Steno Grade III in the pay scale of Rs.91-3-130-EB-4-170 by the Employment Officer (P.H.), Ahmedabad in charge of Employment Exchange for Physically Handicapped, Ahmedabad Office of Government and who has, upon successfully completion of 35 years long service, retired on superannuation, has to seek redressal from the writ Court, by invocation of the provisions of Article 226 of the Constitution of India, as the respondent authorities have denied certain benefits, mainly on the premise that the initial appointment, which came to be made on 13.4.1967 as Steno Typist in the Special Employment Exchange for Physically Handicapped, Ahmedabad Office, is not regular appointment and, as ordinarily, one would aspire to be in the temple of God, has to run to the temple of Justice. "What a travesty of justice and gross indifference-ness". 3. Be as it may, with a view to appreciate the merits of the petition and challenge against it, let there be, at the initial stage a skeleton projection of the factual profile, which would contribute in reaching efficacious judicial adjudication of the dispute focused in this petition. 4. The petitioner came to be appointed as Steno Typist as early as on 13.4.1967 by the Employment Officer of Special Employment Exchange for Physically Handicapped, Ahmedabad office, on the terms and conditions incorporated in the office order placed at Annexure A. It is undisputed that the appointment came to be made after the selection from amongst the other eligible candidates, whose names had been called for from the Employment Exchange, of course incidentally, even in the Employment Exchange office, situated at Ahmedabad. The service inning, which was started probably with many hopes and aspirations on 13.4.1967, continued till March 2002 upon attainment of the age of superannuation and also upon completion of 35 years of long service. 5. The respondent authorities have mainly defended the petition on the premise that the initial appointment, which came to be made on 13.4.67 was not regular. As a result of which, the proposal was made by the office of the Director of Employment and Training, for regularisation of service of the petitioner. Upon such proposal having been made and notwithstanding, the delayed and detailed exchange of correspondence of the authorities from time to time, the dispute remains without any determination, which led to the petitioner to approach this Court, by filing a writ petition under Article 226 of the Constitution of India, being Special Civil Application No. NO.8377/98 and which came to be disposed of with the directions to the respondent authorities to take up appropriate decision with regard to the grievance of the petitioner. 6. Pursuant to the said order and directions of this Court, the respondent authority found and they strongly pleaded that even at that stage, the petitioner was required to pass the departmental examination- retention examination. As a result of which, the petitioner was left with no alternative but had also to appear in the departmental-retention examination, twice but unsuccessfully. Let it be also mentioned that third attempt was also offered, which was not availed by the petitioner. 7. This Court has given dispassionate hearing to the learned advocates appearing for the parties, and during the course of hearing, the Court was also taken through the relevant documentary evidence and the facts and correspondence. The only question now emerges for consideration and determination in this petition, is as to whether the appointment of the petitioner, as a Steno Typist, which is equivalent to Steno Grade III, which came to be made, as early as, on 13.4.67 in the pay scale of Rs.91-3-130-EB-4-170 by the Employment Officer in the Office of the Special Employment Exchange for Physically Handicapped, at Ahmedabad, is regular appointment or not? And if yes, what resultant benefit the petitioner would be entitled to? 8. And if yes, what resultant benefit the petitioner would be entitled to? 8. The contention of the petitioner from the inception that he has been appointed as a regular appointee by the competent authority, whereas, on behalf of the respondent authority, it has been contended that the appointment was illegal and it was required to be regularised in the light of the Resolutions of the Government and also passing of departmental- retention examination. It has been seriously contended that the appointment of the petitioner made by the Employment Officer, Special Employment Exchange for Physically Handicapped, Ahmedabad by virtue of the letter dated 13.4.1967, as at Annexure A, giving effect from 01.4.67 was not authorised and without competent person to make an appointment as the concerned Collector office was competent office and the collector was authorised person to make such appointment. 9. The opposition and objection, which has been advanced on behalf of the respondent authority, questioning the validity and the legality of the initial appointment, which came to be made on 13.4.67 is solely founded upon the plea that such an appointment was irregular, as respondent no.3- Director of Employment and Training, has no power to make appointment to the post of Steno Typist and the appointment made by the respondent no.3, is unauthorised in law and as such, the Special Secretary Revenue (SD) has powers to recruit and grant appointment after following the due procedure of law prescribed under the Recruitment Rules. 10. It is in this context, it will be very interesting to highlight that after having been not found any supporting material from the record, upon repeated requests to the Assistant Government Pleader of the respondent authority to indicate or to show, as to what was the prevalent proposition on the date, from which petitioner came to be appointed on 13.4.67, and which Recruitment Rules were applicable and who was the appointing authority. Nothing has been, not only placed on record but has also not been answered properly or explained. 11. Nothing has been, not only placed on record but has also not been answered properly or explained. 11. When the validity and the legality of the appointment of a government employee, who has put in more than 35 years service is questioned by the authority, and more so, when by the State, it is incumbent upon such authorities to justify such an objection either by placing the relevant Recruitment Rules or Government Resolutions or the relevant material, which indisputably, has not been placed on record. 12. It appears that the reliance is placed by the respondent authority on the Centralised Recruitment Scheme for Recruitment to the posts of Stenographers in the District Office of, 29.3.1978, where-under, the recruitment process and powers were conferred on the Collector of the respective district. It is also contended that by the Government Resolution, dated, 29.3.1978, all the Collectors came to be directed to regulate the recruitment of the Stenographers for district office according to the Rules, known as The Stenographers (Direct Recruitment Procedure) Rules, 1978, henceforth. The General Administration Department, by the Notification dated 29.3.1978 stipulated in exercise of the powers conferred by the provisions of the Article 309 of the Constitution of India, Rules for regulating the procedure of recruitment to the post of English/Gujarati Stenographers Grade III, which is relevant for the purpose of determining the dispute involved in this petition (in the district office, these Rules are called The Stenographers (Direct Recruitment Procedure) Rules, 1978. It is not understood as to how the reliance on such Rules will, in any way, affect the merits of the case of the petitioner. It is also undisputed fact that the said Rules had not been even remotely indicate and that too even impliedly that the persons appointed prior to the date of this Notification, would any way be adversely affected or the appointment made prior to that date of Rules, would be required to be regularised in the terms and conditions of the said Rules. 13. Even a plain or bare look at the Rules, would undoubtedly show that it has not been made applicable to the persons who have been appointed prior to the date of 29.3.1978. 13. Even a plain or bare look at the Rules, would undoubtedly show that it has not been made applicable to the persons who have been appointed prior to the date of 29.3.1978. Simply because the employee opted to appear for examination departmental - retention examination and on third occasion refusal to appear, pursuant to the said Rules and in connection with the alleged process of regularisation, the illegal appointment would not in any way affect the merits of the appointment of the petitioner. It is, therefore, apparent from the record and the submissions advanced before this court that the respondent authorities have not been able to succeed even in creating any doubt in the minds of the Court that the initial appointment of the petitioner, which came to be made, as early as, 13.4.67 for the post of Steno Typist after undergoing the regular process of inviting the applications by the concerned competent officer of Employment Officer (P.H.) Ahmedabad, is not regular or illegal, and denying the holder of the said post the benefits claimed in this petition. 14. No doubt in a public employment in the face of the Constitutional provisions of Articles 14 and 16 any illegal or unauthorised appointment cannot be supported but has to be countenanced. However, it has to be shown that 35 years long service of a petitioner, which was made on 13.4.67 for the post of Steno Typist and apparently by a competent authorised person and thereafter, the said appointment, not only approved by the respondent no.3, but on being desired and having been written to the concerned Collector office at the instance of the Department of the Government concerned, an unequivocally receives the reply from the Collector office that pursuant to the amended Centralised Recruitment Scheme henceforth, the competent authority to make the appointment of the Stenographers will be the district collector and the regularisation process also has to be done by the concerned district collector. Accordingly, the Director by his letter dated, 04.11.81, was directed by the Government in General Administration Department to take up the matter of the petitioner to follow the procedure pursuant to the revised Centralised Recruitment Scheme and the reply was pursuant to the letter of the Director- respondent no.3, dated 4.11.81. Accordingly, the Director by his letter dated, 04.11.81, was directed by the Government in General Administration Department to take up the matter of the petitioner to follow the procedure pursuant to the revised Centralised Recruitment Scheme and the reply was pursuant to the letter of the Director- respondent no.3, dated 4.11.81. As a result of which, the respondent no.3- Director of Employment and Training, instructed the Employment Officer concerned by writing a letter dated 21.12.81 instructing his office to follow the procedure for regularisation as stated in the letter of the respondent authority no.1. 15. No doubt, pursuant to that, the petitioner offered and appeared twice in the examination of the Stenographers but could not succeed. He was, as stated earlier, also offered third chance, which was not availed. It cannot be contended on behalf of the respondent authority that pursuant to the scheme of the Government for regularisation of Steno Typist- Stenographer, upon passing of departmental- retention examination, the case of the petitioner has not been regularised, as he could not succeed, is a point which takes the respondent authority, nowhere as such in the opinion of this Court and in the factual profile of this petition. Simply because the petitioner responded to the desire of the authority to appear twice for the departmental retention examination, unsuccessfully and refusal on the third chance, would not, in any way, constitute any impediment or hurdle in his right of raising the contention that he was not irregularly appointed Steno Typist, which is equivalent to Steno Grade III. 16. After having taken into consideration the peculiar factual profile emerging from the record of this writ petition and the rival submissions coupled with the relevant proposition of service jurisprudence, this Court has no hesitation in finding that the petitioner is unnecessarily denied, without any reasonable cause, the legitimate dues, he is entitled to and he is entitled to the dues claimed in the petition, as his appointment was regular and by no stretch of imagination, it would be stated to be illegal or unauthorised. Unfortunately, the post or the cadre of Stenographer, undoubtedly, is one in the mechanism of the employment and elevation for promotion, where promotional avenues or ladders are virtually nil and that is the reason why the Stenographers, in such a situation has been given prominence and highlighted in several Pay Commission reports, as otherwise also, a person who enters into the employment and at the end of superannuation exists from the employment in the same post and cadre, who has no obviously, higher and better promotional chances and more so, when there is acute dearth of such technical posts and hands, unfortunately the petitioner instead of being sympathetically considered or being helped by the management or the respondent authority has received a great harm in not getting legitimate dues for a long spell of time. It is also a justifying factor for awarding the compensatory costs, while allowing this petition. 17. Incidentally, it may be mentioned that the attention of the Court has been drawn during the course of the submissions that in a similar situational reality in Special Civil Application No. NO.6914 of 1992, a copy of the judgment is produced at Annexure N, on this petition dated 07.7.1999, rendered by this Court. Similarly situated petitioner in that petition, succeeded and this petition was allowed with a direction to the respondent authority, as early as, 07.7.99, in a 1992 petition has become final, as jointly stated at the Bar and it has been not questioned further by the respondent authority. Obviously, it would also relevant material in reinforcement of the merits of the petitioner's petition and the views taken by this Court in this petition. 18. Apart from, the very strange, unreasonable and unjustified opposition raised by the respondent authority against the rightful claim of the petitioner, who served the Department for a long spell of 3.5 decades has not yet been either to get his dues resolved much-less, received thereof. 18. Apart from, the very strange, unreasonable and unjustified opposition raised by the respondent authority against the rightful claim of the petitioner, who served the Department for a long spell of 3.5 decades has not yet been either to get his dues resolved much-less, received thereof. It is in this context, after having taken into consideration the entire factual profile coupled with the relevant material, legal settings emerging from the service jurisprudence relevant to the dispute involved in this petition, this Court has no slightest hesitation in finding that the petitioner is entitled and succeeded and that defence raised or proposition advanced against the rightful claim of the petitioner by the respondent authority has not only unreasonable but very much unjustified and, therefore, while allowing this petition and rejecting the unreasonable and unjustified contentions of the respondent authorities, there is fit and appropriate case for the grant of exemplary costs with following directions. 19. It is hereby declared that the orders and directions contained in the letter dated 29.5.2001, placed at Annexure L is quashed and set aside, as appointment of the petitioner is regular and his posting as Steno Typist equivalent to Steno Grade III with effect from 01.4.67, is regular, legal and valid and the respondents are further directed to accord and give the petitioner benefits of higher grade scale, as well as, all other resultant consequential benefits, treating and considering his appointment in service as a Steno Typist with effect from 01.4.67 has been legal, valid and regular. As a necessary corollary, the respondents are directed to fix the petitioner's pay accordingly and pay him arrears of difference of salary and allowances on the said basis till the date of superannuation of the petitioner on 31.3.2002, and also to fix the petitioner's pension and gratuity and retirement benefits on that basis. The respondents are further directed to pay the arrears of salary within a period of 4 months from the date of receipt of writ of this Court or a certified copy of this oral judgment, whichever occurs first, with special costs of RS.2500/- 20. The petition is accordingly allowed. Rule made absolute. Petition allowed.