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2016 DIGILAW 672 (GUJ)

Rameshbhai Ranchhodbhai Malvi v. State of Gujarat

2016-03-28

J.B.PARDIWALA

body2016
JUDGMENT : J.B. Pardiwala, J. 1. By this writ application under Article 226 of the Constitution of India, the petitioner, serving as a daily wager with the Roads & Buildings Department of the State Government, has prayed for the following reliefs; "(A) quash and set aside the impugned decision dated 5.8.2015 and communication dated 20.8.2015, Annexure-A and Annexure-B respectively to the petition, and (B) further be pleased to direct the respondent authorities to finalize the pension case of petitioner and make payment of retirement dues such as gratuity, leave encashment, provident fund, group insurance, communication of pension etc. to petitioner forthwith and also to make payment of arrears thereof with interest at the rate which the Honourable Court may consider as just and proper in the facts and circumstances of the case, and (C) award the exemplary cost of the petition, and (D) pending admission and final disposal of this petition, the Honourable Court may be direct the respondent authorities to make payment of gratuity, leave encashment and provident fund amount at the credit of petitioner, and (E) pending admission and final disposal of this petition, the Honourable Court may be pleased to direct the respondent authorities to finalize the pension case of the petitioner, and/or (F) grant any other relief or pass any other order which the Honourable Court may consider as just and proper in the facts and circumstances of the case." 2. The facts of this case may be summarized as under; 2.1 The petitioner joined the service of the State Government as a daily wager in 1981 in the Sub-Division of the Roads & Buildings Department at Amreli. 2.2 It is his case that he worked there till 1985, completing more than 240 days in each year. In the year 1985, his services came to be terminated. 2.3 In 1986-87, he took training in the very same department as an Apprentice Electrician for one year. 2.4 On 1.7.1989, a proposal was sent by the Superintending Engineer to the respondent No. 1 to give approval to the appointment of the petitioner as a daily wager wireman. The State Government granted the approval on a condition that the earlier service rendered by the petitioner would not be counted for any purpose. 2.5 In 1994, after completion of five years of service, he was granted the benefit of the fix pay and the other allowances. The State Government granted the approval on a condition that the earlier service rendered by the petitioner would not be counted for any purpose. 2.5 In 1994, after completion of five years of service, he was granted the benefit of the fix pay and the other allowances. 2.6 On 1.4.1999, the petitioner came to be appointed on the work charged establishment with effect from 1.2.1999. 2.7 On 12.11.2011, the pay of the petitioner was revised and fixed in the pay scale of Rs. 3050-4590. 2.8 On 20th June, 2012, the petitioner was asked by the authorities to provide certain details as regards the pension as he was to attain the age of superannuation in May, 2013. The petitioner provided all the necessary details with the supporting documents. 2.9 On 31.5.2013, he attained the age of superannuation. 2.10 In 2014, his pension case was forwarded to the Director of Pension & Provident Fund, but the papers were returned back with certain queries. 2.11 The respondent No. 3 raised an objection about the right of the petitioner to receive the pension in view of his appointment in the year 1989 as a daily wager. The respondent No. 1 took the decision that the petitioner is not entitled to receive the pension in view of the Government Resolution dated 17.10.1988. To put it in other words, it is the case of the respondents that as the petitioner was appointed after 17.10.1988, he is not entitled to the benefit of the Government Resolution. Hence, this petition. 3. Ms. Pandya, the learned counsel appearing for the petitioner submitted that the respondents are not justified in denying the pension to her client on the premise that he was appointed after 1988. Ms. Pandya submitted that the Government Resolution dated 24.3.2006 provides that the service rendered as a daily wager and the work charged is to be clubbed for the purpose of pension and gratuity. 4. She submitted that the pension is not a bounty, but it is the right of a person who has served the State Government for years together. 5. On the other hand, this writ application has been opposed by Mr. Sharma, the learned AGP appearing for the respondents. He submitted that the petitioner is not entitled to receive the pension as the Government Resolution of the State Government dated 17.10.1988 would not be applicable. 5. On the other hand, this writ application has been opposed by Mr. Sharma, the learned AGP appearing for the respondents. He submitted that the petitioner is not entitled to receive the pension as the Government Resolution of the State Government dated 17.10.1988 would not be applicable. He has relied on the affidavit-in-reply filed on behalf of the respondent No. 5, duly affirmed by the Deputy Executive Engineer, wherein it has been stated as under; "2. It is submitted that challenge in the captioned petition is to the order dated 05.08.2015 and order dated 20.08.2015. It is submitted that by way of the said orders, the petitioner has been denied pensionary benefits on the ground that the petitioner was appointed as Daily Wager after 01.01.1988 which was impermissible under the prescriptions of Government Resolution dated 17.10.1988. It is submitted that as such the aforesaid orders have been passed while taking into consideration the undisputed position that the petitioner was appointed on daily wage basis initially in the year 1981, however, in 1985, the petitioner came to be terminated. It is submitted that thereafter vide order dated 01.07.1989 the petitioner was appointed afresh as a Daily Wager on the conditions mentioned therein. (Refer ANNEXURE-C). It would be apparent from the said order that the appointment of the petitioner as a Daily Wager was a fresh appointment. Under the circumstances, findings of the order impugned cannot be faulted with for the simple reason that the petitioner indeed was appointed afresh as a Daily Wager only on 01.07.1989 and therefore as such against the prescriptions of the Government Resolution dated 17.10.1988 (Reference Clause II at Page 40). Thus while it cannot be disputed that the petitioner has served the answering respondent and has also retired from active service vide order dated 31.05.2013, fact however would remain that his appointment was an irregular appointment and more against particularly the prescriptions of Government Resolution dated 17.10.1988. It is submitted that thus, the orders impugned would be based on the position of facts and records, thence prayed to be not interfered with." 6. Thus, it appears from the stance of the Government that as the petitioner was appointed afresh as a daily wager only on 1.7.1989, he would not be entitled to the benefits of the Government Resolution dated 17.10.1988. 7. Thus, it appears from the stance of the Government that as the petitioner was appointed afresh as a daily wager only on 1.7.1989, he would not be entitled to the benefits of the Government Resolution dated 17.10.1988. 7. Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether the petitioner is entitled to receive the pension. 8. This issue, in my view, is no longer res integra. The learned Single Judge of this Court, in a bunch of writ applications being Special Civil Application No. 1563 of 1992 and allied matters, decided on 31.1.2013, held as under; "8. Having heard learned counsel for the respective parties and having gone through the record, this Court finds that Government Resolution dated 17.10.1988 inter alia provided that no appointment as daily wager shall be made by any office thereafter. Said Government Resolution dated 17.10.1988 was adopted as a policy by the respondent Board vide circular dated 08.06.1989. The said circular dated 08.06.1989 is on record along with affidavit in rejoinder. As per the said policy of the Government, no appointment was to be made as daily wager, thereafter. It needs to be observed that this policy of the Government has remained only on paper, and considering the nature of work of different Governmental organizations performing public duties, like the respondent Board which is assigned with the public duty of water supply and sewerage, the said policy is observed more in breach than in compliance. In this background, daily wagers continued to be appointed even in the respondent Board, even after circular of the Board dated 08.03.1989, and therefore the respondent Board again issued a circular dated 30.11.1994, reiterating that no more daily wagers be now appointed. Learned advocate Mr. Munshaw was specifically asked to confirm that atleast after 30.11.1994, no daily wager is appointed in the respondent Board. To this, learned advocate Mr. Munshaw, after taking instructions from the authorities of the respondent Board, had stated that even after 30.11.1994, hundreds of daily wagers are appointed in the different offices of the respondent Board. Statement giving details in this regard is also placed on record. To this, learned advocate Mr. Munshaw, after taking instructions from the authorities of the respondent Board, had stated that even after 30.11.1994, hundreds of daily wagers are appointed in the different offices of the respondent Board. Statement giving details in this regard is also placed on record. The present petitioners are denied benefits of Government Resolution dated 17.10.1988 only on the ground that they are appointed after circular of the respondent Board dated 30.11.1994, and the said circular provided that no more daily wagers would now be appointed. In this regard it needs to be recorded that, no daily wager was to be appointed after 1988/1989 by the respondent Board as per its own policy, then also such appointments were made and they are given benefit also flowing from Government Resolution dated 17.10.1988. Respondent Board reiterated such policy on 30.11.1994 and no daily wager was to be appointed thereafter but still the respondent Board appointed hundreds of such persons, like the petitioners. Further it would be wrong to call such appointments as an illegality by the respondent Board, since the same was for its genuine needs, to discharge its obligation of public service. When it comes to grant of benefit of Government Resolution dated 17.10.1988 to these daily wagers, it is the management of the respondent Board which terms its action of appointing these daily wagers as an illegality, which is not only not acceptable in law but needs to be rejected and deprecated. Reference in this regard can be made to the decision of Hon'ble the Supreme Court of India in the case of Bharatiya Seva Samaj Trust versus Yogeshbhai Ambalal Patel and Another reported in (2012) 9 SCC 310 , wherein, the Supreme Court has held to the effect that an employer can not agitate that he had committed some illegality at some point of time and therefore, the concerned employee is not entitled to some benefit. In view of this judgment, the argument of learned counsel for the respondent Board that daily wagers appointed by them after 30.11.1994, were illegal appointees and therefore they are not entitled to any relief, is rejected. 9. In view of this judgment, the argument of learned counsel for the respondent Board that daily wagers appointed by them after 30.11.1994, were illegal appointees and therefore they are not entitled to any relief, is rejected. 9. So far reliance placed by the learned counsel for the respondent Board on the decision of this Court in Special Civil Application No. 26790 of 2007 and cognate matters dated 01.07.2009 is concerned, I find that the circular of the respondent Board dated 08.06.1989 was not put to the notice of the Court and the effect of its subsequent circular dated 30.11.1994 was also not point at issue. Further, after upholding the said order dated 01.07.2009 by the Division Bench on 11.10.2010 in Letters Patent Appeal No. 2117 of 2010, there is subsequent decision of Division Bench of this Court dated 18.03.2011 and even an Special Leave Petition against the said judgment is dismissed as noted above. Further, the said, subsequent decision of the Division Bench of this Court dated 18.03.2011 is exactly on the point which is under consideration in this group of petitions. Under these circumstances, I am bound by this subsequent decision of Division Bench of this Court, which is followed to record this judgment and order, in this group of petitions. Learned advocate for the respondent Board has relied on the judgment of the Supreme Court in the case of Raghavendra Rao and Others versus State of Karnataka and Others reported in (2009) 4 SCC 635 , to contend that when the appointments were not made legally, the appointees can not claim benefits. However, as recorded above, the view expressed by Hon'ble the Supreme Court of India in the case of Baratiya Seva Samaj Trust (supra) is not only subsequent and will have binding force, but on facts, is squarely applicable in this group of petitions, which this Court has followed. 10. Considering the totality of the facts and law as discussed above, I find that the grouping of daily wagers sought to be made by the respondent Board on the basis of the cut off date of 30.11.1994, to deny benefits of Government Resolution dated 17.10.1988, is illegal and arbitrary and the same is rejected. 10. Considering the totality of the facts and law as discussed above, I find that the grouping of daily wagers sought to be made by the respondent Board on the basis of the cut off date of 30.11.1994, to deny benefits of Government Resolution dated 17.10.1988, is illegal and arbitrary and the same is rejected. It is held that even those daily wagers who are appointed after 30.11.1994 shall also be extended the benefits of Government Resolution dated 17.10.1988 and thus, they will stand at par with the petitioners of Special Civil Application No. 1563 of 1992 and shall also be entitled to the benefits, which are claimed by and are directed to be paid to the petitioners of Special Civil Application No. 1563 of 1992. 11. It is indicated by Learned advocates for the respondent Board that, during pendency of these petitions, some of the petitioners, either have abandoned their job and one was terminated for misconduct, by the respondent Board. In this regard therefore it is clarified that, while giving effect to the directions contained in this judgment and order, such persons shall be entitled to benefits only till they were in service and the judgment in this petitions ipso facto would not result in their reinstatement in any manner. 12. For the reasons recorded above, all these petitions are allowed. Respondents are directed to grant benefits of Government Resolution dated 17.10.1988 to these petitioners, as directed and clarified by this Court in the judgment and order dated 18.03.2011 recorded in Letters Patent Appeal No. 958 of 2011 and cognate matters. The calculation regarding the benefits flowing from these directions shall be made within a period of four months from today and actual payment thereof shall be made to the petitioners within a period of eight months from today." 9. The judgment of the learned Single Judge referred to above was carried in appeal by the Board. A Division Bench of this Court in Letters Patent Appeal No. 325 of 2013 decided on 16th July, 2014, affirmed the judgment of the learned Single Judge by observing as under; "12. Now, we may proceed to examine the case of the daily wagers appointed after 30.11.1994. It is the contention of the appellants that the Board had taken a policy decision on 30.11.1994 that no new daily wagers be appointed. Now, we may proceed to examine the case of the daily wagers appointed after 30.11.1994. It is the contention of the appellants that the Board had taken a policy decision on 30.11.1994 that no new daily wagers be appointed. Still, they were appointed without prior permission or even intimation to the higher authorities, for which penalties are imposed on number of officers for breach of administrative instructions issued on 30.11.1994. The appointment as daily wagers at the grass root level are without following any regular procedure laid down for regular recruitment and therefore they do not have any right of regularization or the benefits flowing from the Government Resolution dated 17.10.1988. 13. It is an admitted position that the appellant Board adopted the Government Resolution dated 17.10.1988 as a policy vide its circular dated 08.06.1989. The said Resolution, inter-alia, provides that no appointment as daily wager shall be made by any office thereafter. Still, daily wagers continued to be appointed by the Board and they were given benefits flowing from the aforesaid Government Resolution. Thereafter the appellant Board reiterated its policy vide another Circular dated 30.11.1994 that no daily wager shall be appointed but still hundreds of daily wagers came to be appointed after 30.11.1994 and now the Board denies to extend the benefits flowing from the Government Resolution dated 17.10.1988 to such daily wagers appointed after 30.11.1994 terming their appointment as illegal, which cannot be accepted as it is arbitrary and bad in law. On one hand, the Board issues circular that no daily wagers shall be appointed from 30.11.1994 and still the very Board appoint hundreds of daily wagers in gross violation of their own policy and after passage of more than 15 years terming the action of appointing these daily wagers as illegal cannot be accepted and needs to be rejected. The Board cannot punish others for their own wrongdoings. It is a settled legal proposition that a person alleging his own infamy cannot be heard at any forum. If a person has committed a wrong, he cannot be permitted to take the benefit of his own wrong," 10. In view of the settled position of law, I hold that the petitioner is entitled to pension and the other benefits in accordance with the Government Resolution dated 17.10.1988. 11. In the result, this application succeeds and is hereby allowed. If a person has committed a wrong, he cannot be permitted to take the benefit of his own wrong," 10. In view of the settled position of law, I hold that the petitioner is entitled to pension and the other benefits in accordance with the Government Resolution dated 17.10.1988. 11. In the result, this application succeeds and is hereby allowed. The impugned decision dated 5.8.2015 and the communication dated 20th August, 2015 are ordered to be quashed. The State Government shall process the pension case of the petitioner and see to it that appropriate pension in accordance with the rules and the regulations is fixed and paid to the petitioner within a period of two months from today with arrears. The other retiral benefits shall also be worked out and paid to the petitioner accordingly. Rule is made absolute to the aforesaid extent. Direct service is permitted.