STATE OF GUJARAT v. JOSHI GAJENDRAPRASAD JAYANTILAL
2019-07-01
ANANT S.DAVE, BIREN VAISHNAV
body2019
DigiLaw.ai
ORDER : BIREN VAISHNAV, J. 1. This appeal arises out of a common CAV judgement and order dated 04.02.2016 passed by the learned Single Judge in Special Civil Application No. 12117 of 2013 and allied matters. 2. The learned Single Judge by way of the impugned judgement and order directed the State Government – present appellants to absorb the original petitioners – present respondents on the temporary establishment in terms of the policy contained in the Government Resolution dated 16.08.1973 issued by the Public Works Department and to further extend the benefits viz. higher pay scales on completion of 9, 18 and 27 years of service from the date of their appointment, which are available to the employees working on the temporary establishment. The learned Single Judge further directed the State Government to absorb the daily wagers as well on the work charged establishment from the date they were otherwise eligible as well as the benefits of higher pay scales on completion of 9, 18 and 27 years of service from the date of their absorption in work charged establishment. 3. Aggrieved by the CAV judgement dated 04.02.2016 which is impugned in the present appeal, the appellants had filed Letters Patent Appeal No. 380 of 2016 and allied appeals, having similar set of facts. The controversy involved in the present appeal has already been decided by this Court vide CAV judgement and order dated 29.06.2018 in Letters Patent Appeal No. 380 of 2016 and allied matters. The present appeal, therefore, shall also be governed by the same order dated 29.06.2018, operative portion of which is as under: ““20.2 Therefore, on fair reading of the G.R. dated 16.08.1973 the object and purpose of the G.R. dated 16.08.1973 seems to be to convert various posts of work charged establishment which are either required permanently or very long term basis be converted into temporary posts provided that such work charged posts should have been continuously in existence for a minimum period of 5 years and are required either permanently or on very long term basis say 10 to 15 years. In the present case all the work charged employees have worked for very long term basis i.e. for three decades.
In the present case all the work charged employees have worked for very long term basis i.e. for three decades. Therefore, as such the concerned work charged employees are required to be absorbed in temporary establishment and on conversion and/or absorption into temporary establishment, they shall be entitled to all the benefits which may be available to the employees working in the temporary establishment. At this stage it is required to be noted that as such many departments have already granted such benefits to some of the employees and some work charged employees are converted into temporary establishment as per the G.R. dated 16.08.1973. Therefore, it is held that all those respective petitioners – work charged employees were/are required to be converted to temporary establishment, but as observed herein above, not automatically on completion of their 5 years of service as work charged employees. Consequently, they shall be entitled to all the benefits which may be available to the employees working on temporary establishment. 20.3 However, next question which is posed for consideration of this Court is from which date such benefit should be granted to the concerned respective petitioners. At this stage it is required to be noted that as such some of the original petitioners – employees are already granted the benefit of G.R. dated 16.08.1973 before many years and they are converted to temporary establishment long back. However, they are claiming that they ought to have been converted to temporary establishment immediately on completion of 5 years of service as work charged. Some of the work charged employees who are converted to temporary establishment are already granted the benefit flowing from their conversion to temporary establishment. However, according to some of the petitioners they are granted the benefit belatedly and they shall be entitled to the benefits immediately on completion of 5 years of service as work charged as according to them they ought to have been converted to temporary establishment immediately on completion their 5 years of service as work charged. In case of some of the petitioners though they are converted from work charged to temporary establishment, they are not granted the benefit/s on their conversion to temporary establishment more particularly the benefit of higher pay scale on completion of either 9, 18 and 27 years of service on such temporary establishment.
In case of some of the petitioners though they are converted from work charged to temporary establishment, they are not granted the benefit/s on their conversion to temporary establishment more particularly the benefit of higher pay scale on completion of either 9, 18 and 27 years of service on such temporary establishment. It is the case on behalf of the State that as all of them have approached this Court belatedly, on the ground of delay and laches the learned Single Judge ought not to have entertained the petitions. However, the same cannot be accepted. At the most, as observed by the Hon’ble Supreme Court in the case of Shiv Dass (Supra), the reliefs and/or actual monetary benefits can be restricted to three years preceding filing of the petitions. If such a course is adopted, in that case, the concerned petitioners shall get the benefit of the G.R. dated 16.08.1973 and the benefits which may be available to the temporary establishment employees and they are nonsuited on the ground of delay and laches and at the same time the State also may not have to bear the heavy financial burden as it is reported that the financial burden upon the State would be approximately Rs.400 Crores to Rs.500 Crores. Therefore, the relief sought is required to be moulded to strike balance and therefore, we are of the opinion that if the actual monetary benefits are restricted to 3 years preceding the filing of the petition/s, it shall meet the ends of justice. 21.0 In view of the above and for the reasons stated above, all these Letters Patent Appeals are partly allowed to the extent quashing and setting aside the impugned directions in case of daily wagers and the direction that on completion of their 5 years’ service they shall be absorbed in the work charged establishment and they shall be paid all consequential benefits, is hereby quashed and set aside. However, all those daily wagers shall be entitled to the benefits flowing from the G.R. dated 17.10.1988 and if not paid, they shall be paid such benefits accordingly.
However, all those daily wagers shall be entitled to the benefits flowing from the G.R. dated 17.10.1988 and if not paid, they shall be paid such benefits accordingly. 21.1 So far as the impugned direction/s in respect of work charged employees namely all those work charged employees to be absorbed / converted to temporary establishment on their completion of 5 years’ service and they shall be paid the consequential benefits accordingly is hereby quashed and set aside and is modified to the extent and it is held that all those petitioners – work charged employees who have worked for more than 20 years as work charged employees shall be entitled to conversion to temporary establishment as per the G.R. dated 16.08.1973 from the date on which they complete 20 years of service as work charged and they shall be entitled to all the benefits which may be available to the employees working in the temporary establishment, including the benefit of higher pay scale/grade if at all the same is being paid to the employees working in the temporary establishment, however they shall be paid the arrears on such conversion to temporary establishment for the period preceding 3 years of filing of the respective petitions. The arrears shall be calculated and paid within a period of 4 months from today, failing which it shall carry interest at the rate of 9% per annum. It is also directed that in case any of the work charged employee has retired, he shall be paid the retirement benefits as if he was converted to temporary establishment provided such employee has worked for not less than 20 years as work charged employee and retirement benefits be calculated and paid accordingly, however they shall be paid the arrears for 3 years only. Such exercise also shall be completed within period of four months from today. Present appeals are partly allowed to the aforesaid extent. In the facts and circumstances of the case, there shall be no order as to costs.” 4. Accordingly, this Letters Patent Appeal is also disposed of with a direction that the observations and the findings as discussed by Division Bench in judgment dated 29.6.2018 in Letters Patent Appeal No.380 of 2016 and allied matters shall govern the present appeal also.
In the facts and circumstances of the case, there shall be no order as to costs.” 4. Accordingly, this Letters Patent Appeal is also disposed of with a direction that the observations and the findings as discussed by Division Bench in judgment dated 29.6.2018 in Letters Patent Appeal No.380 of 2016 and allied matters shall govern the present appeal also. Needless to say that in the event the parties to the aforesaid appeal decide to take recourse to challenge the Division Bench judgment dated 29.6.2018 before the higher forum, it will be open for the parties in the present appeal to take recourse to such remedy. Civil Application for stay also stands disposed of accordingly.