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2013 DIGILAW 392 (GUJ)

PANKAJ SURESH LALWANI v. KANDLA PORT TRUST

2013-07-09

PARESH UPADHYAY

body2013
JUDGMENT : PARESH UPADHYAY, J. 1. The petitioners are in the employment of the respondent Kandla Port Trust. They had initially joined as daily wager Khalasi (Class-IV post) in the year 2004. Subsequently, with effect from 07.09.2005, they were appointed as Maistry (Class-III post) at the minimum of the pay-scale, on sanctioned vacant posts, in accordance with the Recruitment Rules, with the approval of the competent authority. These petitioners were again sought to be treated as daily wager that too on the lower post of Khalasi vide Note dated 08.03.2010, which had given rise to this petition. During pendency of this petition, interim protection was granted by this Court, which respondent obeyed after much reluctance. The question for consideration before this Court is, as to whether there was any justification for the respondent to again treat these petitioners as daily wagers, that too in the lower post. 2. Heard Mr.T.R.Mishra, learned advocate for the petitioners and Mr.Dhaval D. Vyas, learned advocate for the respondent Management. 3. The relevant facts, in brief, as emerging from record are as under. 3.1 In the respondent organisation, the appointment on the post in question i.e. Maistry is regulated by the Recruitment Rules as approved by the Board under Resolution No.239 dated 24.01.2002, which is on record as Annexure –R to the petition. As per the said Recruitment Rules, the post of Maistry is Class-III post. The pay-scale at the relevant time was Rs.430012052601308120. The educational qualification prescribed was H.S.C. or equivalent. The method of recruitment provided is – Absorption from compassionate ground daily rated appointees fulfilling the educational qualification criteria. 3.2 All the petitioners were initially appointed as daily wager Khalasis (ClassIV) on compassionate ground in the year 2004, with the approval of the competent authority. The petitioner Nos.1 and 2 were offered appointment on 14.01.2004 and petitioner No.3 was offered appointment on 26.05.2004. All the three orders are on record at AnnexureA, B and C to the petition. 3.3 In view of the Recruitment Rules, as referred to above, the petitioners were entitled to be considered for appointment as Maistry on regular establishment. For this purpose, competent authority had under taken the process, which included consideration of position of vacant posts vis-a-vis sanctioned posts, necessity to fill it, financial implication if the same are filled in, etc. 3.3 In view of the Recruitment Rules, as referred to above, the petitioners were entitled to be considered for appointment as Maistry on regular establishment. For this purpose, competent authority had under taken the process, which included consideration of position of vacant posts vis-a-vis sanctioned posts, necessity to fill it, financial implication if the same are filled in, etc. The proposal of the Engineering Department, signed by the Superintending Engineer on 27.06.2005, containing all these details are on record at page 52 and 53, as part of affidavit in rejoinder. 3.4 The above document also records that there were 19 sanctioned posts of Maistry of which 09 were filled in, and 10 were vacant. Thus, there were 10 sanctioned vacant posts, on which the petitioners could have been considered for appointment. It is not in dispute that all the petitioners meet with the criteria prescribed in the Recruitment Rules. 3.5 Competent authority of the respondent Kandla Port Trust had, after due scrutiny and procedure, accorded approval for the appointment of all the three petitioners on the said post of Maistry. The consequential offer of appointment given to all the three petitioners dated 01.09.2005 is on record as Annexure D, E and F to the petition. 3.6 Pursuant to the above referred offer of appointment from the competent authority dated 01.09.2005, each petitioner had given willingness to join the service on the very next day and they were taken on duty as Maistry, by the Chief Engineer of Kandla Port Trust on 07.09.2005. A written note of the Chief Engineer in this regard dated 07.09.2005 is on record at page 49. The said note further records that the said appointment was on the vacant post of Maistry. 3.7 In view of above, formal appointment order was issued on 03.10.2005 qua all the three petitioners, which is on record as Annexure-G to the petition. The said appointment was effective from 07.09.2005, since the Chief Engineer had already taken the petitioners on duty on 07.09.2005 as recorded above. The above referred appointment order further records that it was not on daily wage basis but was at the minimum of the pay-scale at Rs.4800/. The said appointment order however stipulated that it was on adhoc basis for a period of two years, with one break in service on completion of every three months. The above referred appointment order further records that it was not on daily wage basis but was at the minimum of the pay-scale at Rs.4800/. The said appointment order however stipulated that it was on adhoc basis for a period of two years, with one break in service on completion of every three months. The reading of this condition shows that, in effect, it was regular appointment as per Recruitment Rules, but with artificial break, which was provided for, for the convenience of the Management, which is now sought to be pressed into service. 3.8 Since artificial break was given on completion of every three months, number of orders are on record, all in substance on the same lines, taking care of artificial break of one day every three months. 3.9 This continued for years together. Suddenly in the year 2010, by the Note dated 08.03.2010, it was ordered that the petitioners be continued as daily rated Khalsis (Class-IV) pending further orders of extension. The said Note is on record as Annexure-W to the petition at page36. It is under these circumstances that the petitioners approached this Court. 4. The prayer clause of the petition reads as under. “(A) Your Lordships may be pleased to issue a writ of certiorari/ mandamus or a writ in nature of certiorari / mandamus or any other appropriate writ, order or direction by quashing and setting aside the impugned order dated 8th March 2010 – Annexure 'W' herein, being illegal, arbitrary, discriminatory and violative of Articles 14 and 16 of the Constitution of India and also against the violative of Settlement signed under Section 12(3) of the Industrial Disputes Act, 1947. (B) Your Lordships may be pleased to declare and hold that the Petitioners are the permanent employees as per the recruitment rules on the post of Maistry in the pay scale of Rs.43001205601308120. (C) Pending admission, hearing and final disposal of this petition, Your Lordships may be pleased to issue an order restraining the Respondent, its agents and its servants from reverting the Petitioners from the post of Maistry Class-III to the post of daily rated Khalasi Class-IV forthwith. 5. Learned advocate for the petitioners has contended that ample material is placed on record to show that the petitioners were appointed on sanctioned vacant posts of Maistry, in accordance with the recruitment rules. 5. Learned advocate for the petitioners has contended that ample material is placed on record to show that the petitioners were appointed on sanctioned vacant posts of Maistry, in accordance with the recruitment rules. It is further contended that the petitioners are in the lower cadres of the establishment and by keeping them on adhoc basis for years together, even after regular appointment, itself would show the exploitative approach of the higher authorities. It is contended that, true it is that the petitioners had not challenged the condition of artificial break of one day every three months, but that itself would not make it legal. It is contended that, in effect the authorities want to justify their illegal action of reverting the petitioners from class-III post to class-IV post, that too from regular pay to daily wager, by taking support from other illegalities only, which is impermissible and therefore the same be interfered with. It is further contended that since the petitioners were being treated ad hoc, though they were appointed in the pay-scale at the minimum, no yearly increments were given to them and therefore it is also prayed that from the date of their appointment they be treated as regular in the pay-scale and the respondent be directed to give consequential benefits. Learned advocate for the petitioner also contended that exemplary cost be also imposed. Attention of this Court is also drawn to the fact that even after the appointment of the petitioners on the post of Maistry, many persons have retired from the said cadre. It is also pointed out that since the petitioners were being treated adhoc, from time to time, even the Union had requested the Management to treat these persons as regular and sometime Management had even given assurance to consider their case favourably, however, now when the respondent has taken the extreme stand against the petitioners, the petition needs to be decided on the basis of the material available on record. Learned advocate for the petitioner has also pointed out that during pendency of this petition, the petitioner No.2 has been appointed on some other post, by other mode and therefore qua him this petition is not pressed and the same is also reflected in the order dated 08.03.2013 and therefore now the present petition, remains to be adjudicated qua petitioner Nos.1 and 3 only. 6. 6. On the other hand, Mr.Dhaval Vyas, learned advocate for the respondent has contended that the petitioners were never appointed on regular basis. The authorities do not have vacant live posts on which the petitioners can be accommodated. Attention of the Court is invited to the affidavit in replies filed on behalf of respondent dated 08.04.2010 and dated 07.06.2013. It is also contended that the petitioners had accepted the condition of being on adhoc basis, and further that, at no point of time they have completed three months continuous service. It is contended that petitioners are not entitled to any relief and therefore the petition be dismissed. It is also requested that no cost be imposed. 7. Having heard learned advocates for both the parties and having gone through the material on record, this Court finds that the appointment in the respondent organisation, on the post of Maistry is regulated by the Recruitment Rules. As per the said Recruitment Rules, the post of Maistry is Class-III post, the payscale of which, at the relevant time was Rs.430012052601308120. The educational qualification prescribed is H.S.C. or equivalent. The method of recruitment provided is – Absorption from compassionate ground daily rated appointees fulfilling the educational qualification criteria. All the petitioners were initially appointed as daily wager Khalasis on compassionate ground in the year 2004. All the petitioners meet with the criteria prescribed in the Recruitment Rules. In view of the Recruitment Rules, the petitioners were entitled to be considered for appointment as Maistry on regular establishment on vacant posts. There is material on record to show that there were 19 sanctioned posts of Maistry of which 09 were filled in, and 10 were vacant at the relevant time, which were considered necessary to be filled in. Under these circumstances, competent authority of the respondent Kandla Port Trust, after due scrutiny and procedure, accorded approval for appointment of all the three petitioners on the said post of Maistry. The petitioners were already working as daily wager Khalasis and the Chief Engineer, Kandla Port Trust took the petitioners on duty on regular basis against sanctioned vacant posts of Maistry on 07.09.2005. The petitioners continued in service. The respondent had provided for artificial break of one day, every three months and thus, inspite of the above stated facts, the petitioners were treated to be adhoc in service. The petitioners continued in service. The respondent had provided for artificial break of one day, every three months and thus, inspite of the above stated facts, the petitioners were treated to be adhoc in service. Since according to respondent, the petitioners were adhoc, by the Note dated 08.03.2010, it was ordered that now the petitioners be treated as daily wagers, that too in the lower post of Khalasi. In the factual background which is recorded above, in my view, there was no occasion for the respondent to revert the petitioners on the lower post, that too as daily wagers. Not only that, there is ample material on record to hold that the petitioners were appointed and working on sanctioned vacant posts of Maistry, in accordance with Recruitment Rules, with the approval of the competent authority. The illegality of restoring the status of the petitioners as daily wagers, that too in the lower post, is sought to be justified by pointing out one more illegality, in the affidavit in reply. Para:7 of the affidavit in reply dated 08.04.2010 reads thus: “7. It is respectfully submitted that the ad hoc temporary engagement was extended from time to time, however on completion of last extension from 02.09.2009, the engagement limited upto 30.11.2009 was consciously not extended further.” No explanation is coming forward, as to why this was done at all. The power of the employer is not so absolute, that it does not owe any explanation for any illegality or arbitrariness. Further, taking such a stand to defend its illegality, in my view, amounts to adding an insult to the injury already caused, which may warrant imposition of cost as well. If this is probed further, it is clear that the artificial break of one day, on completion of three months service, is not only being resorted to, but the same is being projected as the foundation for other consequential illegalities as well, by none else than the Government Authority. The respondent can not claim immunity from the scrutiny of this Court regarding unfair labour practice, being practised, and further, being projected as an answer to other illegalities. The respondent can not claim immunity from the scrutiny of this Court regarding unfair labour practice, being practised, and further, being projected as an answer to other illegalities. In my view, not only the petitioners are entitled to claim reliefs, as prayed for in this petition on the basis of the undisputed facts, which are recorded above, but the respondent needs to be saddled with cost, for taking up its other illegalities as a defence to justify an illegality which is the subject matter of this petition. For this purpose, reference can be made to the judgment of Honourable the Supreme Court of India in case of Salem Advocate Bar Association vs. Union of India reported in (2005) 6 SCC 368. Specific reference can be made to para:37 of the said judgment. It is recorded that, during course of hearing of this petition, learned advocate for the respondent was specifically put to notice that the Court is inclined to impose cost and he may address the Court accordingly. It is also recorded that imposition of cost, in my view, has become necessary also considering the fact that, one of the objection raised by the respondent is non-availability of live posts. It is contended that since the petitioners were treated adhoc, the posts on which they were working were treated to be not filled in, and as per the policy of the Government, the posts which remain unfilled for a certain period, stand abolished. This Court thus finds that, at each stage, the respondent has committed illegality and has acted arbitrarily. If one of them is questioned, the other one is pressed into service to justify the first. No party, much less Government authorities, can be permitted to raise such a frivolous defence. Accepting such a contention would amount to, giving premium to an illegality and rejection simplicitor of such a contention, in the facts of this case, would be too lenient a view, which I am not inclined to take. One more aspect in this regard needs to be taken note of is the stand of the authorities in Civil Application No.2797 of 2011 in this petition. The affidavitinreply filed in the said Civil Application dated 04.05.2011 dealt with the interim protection granted by this Court to the petitioners. Para:7 of the said affidavitinrely floated altogether new theory of the petitioners not technically equipped. The affidavitinreply filed in the said Civil Application dated 04.05.2011 dealt with the interim protection granted by this Court to the petitioners. Para:7 of the said affidavitinrely floated altogether new theory of the petitioners not technically equipped. Even on the face of such a stand, ultimately, reluctantly, the respondent complied with interim order of this Court which is reflected in the order dated 30.08.2011 and therefore that aspect need not be gone into further but the same is referred only in continuation of the finding recorded by this Court about the respondent taking frivolous defences in this matter. As referred above, it is the mandate of Honourable the Supreme Court of India to reject such defences by imposing costs, and not nominal costs. 8. 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 payscale of Rs.430012052601308120. (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. Rule made absolute with costs as ordered above. (DRD) (Rule made absolute with costs)