Research › Search › Judgment

Gujarat High Court · body

2019 DIGILAW 929 (GUJ)

Ahmed Yusuf Sumara v. State of Gujarat

2019-10-16

A.S.SUPEHIA

body2019
JUDGMENT : A.S. Supehia, J. 1. At the outset learned advocate Mr. Sejpal for the petitioner has submitted that the issue involved in the present petition is squarely covered by the judgment of the Division Bench dated 29.06.2018 passed in Letters Patent Appeal No. 380 of 2016 and allied matters. 2. The undisputed facts are that the petitioner joined the respondent No. 2 in the year 1973 as a daily wager and after working as a daily wager till the year 1984; on 01.02.1984, the petitioner was appointed as a work charged clerk. 3. After putting nearly 20 years of service, the petitioner retired on 31.03.2005 and accordingly, he filed his pension papers before the authorities, however, the petitioner has not been granted the same till today. 4. The petitioner also approached this Court by way of approaching the Alternative Disputes Resolution Mechanism Permanent Lok Adalat on 09.10.2013, but the respondent authorities have not responded positively to the authority. 5. Learned advocate Mr. Sejpal appearing for the petitioner has submitted that the petitioner is denied pension only because he was working as work charged clerk. He has submitted that the entire issue involved in the petition of fixation of pension and pay was considered, by the Division Bench of this Court in the aforenoted Letters Patent Appeals. The Division Bench directed the respondent authorities to confer the benefits of the pay-scale as well as pension and retiral benefits to the employees working as work charge. 6. Per contra, learned advocate Mrs. Falguni Patel appearing respondent No. 2 has submitted that the petitioner cannot be paid any retiral benefits since he remained as work charged employee and was never regularized in the service. She has further submitted that as the petitioner was also working in such capacity in the Taluka Panchayat and was put in service on contingency ground, he is not entitled for pension and retiral benefits. 7. In the present case, the undisputed fact remains that the petitioner was absorbed as work charged employee on 01.02.1984. He remained as such till he retired on 31.03.2005. 7. In the present case, the undisputed fact remains that the petitioner was absorbed as work charged employee on 01.02.1984. He remained as such till he retired on 31.03.2005. The Division Bench in the judgment dated 29.06.2018 passed in Letters Patent Appeal No. 380 of 2016 and allied matters, after examining the issue of daily wagers, who are converted as work charged employee and have been working on work charged establishment, has held thus: "[19.5] Even considering the G.R. dated 16.08.1973 on which the reliance has been placed by the work charged employees and which has been relied upon and considered by the learned Single Judge while issuing the impugned directions, it appears that the decision was taken by the State Government that various posts of work charged establishment in respect of only maintenance and repairs of any works or irrigation management which are either required permanently or a very long term basis be converted into temporary posts and work charged posts to that extent should be abolished. Assuming that the said resolutions shall be applicable to all the Departments and not in respect of any only maintenance and repairs of any works, in that case also, as observed by the Division Bench of this Court in the case of K.N. Thanaki and Ors. (Supra), there shall not be any automatic absorption of work charged employees into temporary establishment on mere completion of their 5 years of service as work charged. Same shall be subject to availability of posts in the temporary establishment and subject to their seniority etc. As observed by the Division Bench of this Court in the aforesaid decision in the case of K.N. Thanaki and Ors. (Supra), all those work charged employees in the work charged establishment who have worked for more than 5 years shall be eligible to consider their case for absorption into temporary establishment, but there shall not be any automatic absorption in the temporary establishment. (Supra), all those work charged employees in the work charged establishment who have worked for more than 5 years shall be eligible to consider their case for absorption into temporary establishment, but there shall not be any automatic absorption in the temporary establishment. Therefore, assuming that the subsequent G.R. of 2014 by which the earlier G.R. dated 16.08.1973 is revoked/cancelled shall not be applicable retrospectively and may be applicable prospectively, in that case also, the direction which could have been issued by the learned Single Judge would have been to direct the State Government to consider the case of all those work charged employees who have worked for more than 5 years on work charged establishment as per the G.R. dated 16.08.1973, which was applicable prior to the G.R. of 2014. Therefore, the impugned direction of the learned Single Judge so far as the work charged employees are concerned that all the work charged employees who have worked for more than 5 years shall be converted into temporary establishment on completion of their 5 years of service as work charge cannot be sustained and the same deserves to be quashed and set aside. [19.6] Now, so far as the submission on behalf of the State that in view of the subsequent circular dated 03.02.1987 and in view of the prohibition on the new recruitment on work charged establishment the appointments of work charged employees can be said to be illegal is concerned, at the outset it is required to be noted that merely because all those persons are continued as work charged even after the ban/bar, their appointment cannot be said to be per se illegal. It is the State Government who continued them as work charged despite the resolution/circular declaring the prohibition on new recruitment on work charged establishment. The State cannot be permitted to take the benefit of its own wrong. All those seem to have been continued as work charged looking to the need of the work and the requirement. Therefore, the submission on behalf of the State that in view of the circular dated 03.02.1987 declaring the prohibition on new recruitment on work charged establishment, the continuation of the concerned work charged employees is illegal, cannot be accepted. All those seem to have been continued as work charged looking to the need of the work and the requirement. Therefore, the submission on behalf of the State that in view of the circular dated 03.02.1987 declaring the prohibition on new recruitment on work charged establishment, the continuation of the concerned work charged employees is illegal, cannot be accepted. [19.7] Now, so far as the submission on behalf of the petitioners - work charged employees that in between so many other work charged employees including some of the petitioners are absorbed in the temporary establishment is concerned, it is true that some of the departments have granted the benefit of absorption and the G.R. dated 16.08.1973 and made some of the work charged employees working on work charged establishment into the temporary establishment on completion of their 5 years' service as work charged. However, as observed by the Hon'ble Supreme Court in the case of Kartick Chandra Mondal (Supra), the guarantee of equality before law enshrined in Article 14 of the Constitution is a positive concept and it cannot be enforced by a citizen or Court in a negative manner. It is further observed and held that even assuming that similarly placed persons were ordered to be absorbed, the same if done erroneously cannot become the foundation for perpetuating further illegality. In the said decision the Hon'ble Supreme Court has taken into consideration the observations made in para 67 of the earlier decision in the case of State of Bihar v. Upendra Narayan Singh and others reported in (2009) 5 SCC 65 . Therefore, merely because earlier some similarly placed persons/work charged employees including some of the petitioners are granted the benefit of absorption in the temporary establishment on completion of 5 years' service as work charged, the petitioners cannot claim the same claiming violation of Article 14 of the Constitution of India. As observed herein above and even as per the decision of the Division Bench of this Court in the case of K.N. Thanaki and Ors. (Supra), there is no automatic absorption in temporary establishment after 5 years of service as work charged. The cases are required to be considered for absorption in a temporary establishment after completion of 5 years as work charged subject to availability of posts in the temporary establishment and as per the seniority etc. (Supra), there is no automatic absorption in temporary establishment after 5 years of service as work charged. The cases are required to be considered for absorption in a temporary establishment after completion of 5 years as work charged subject to availability of posts in the temporary establishment and as per the seniority etc. [19.8] From the impugned common judgment and order passed by the learned Single Judge it appears that before the learned Single Judge and even before this Court the learned Counsel appearing on behalf of the original petitioners heavily relied upon the decision of the learned Single Judge of this Court in the case of Rashmikaben Trikamlal and Ors. (Supra) by which the learned Single Judge directed the State to grant the benefit of higher pay scale under the scheme of 9-18-27 years of service to those employees working on work charged establishment, on the date on which they completed 5 years of service is concerned, at the outset it is required to be noted that in the said decision all those work charged were converted to temporary establishment and the learned Single Judge directed to grant the benefit of higher pay scale. It is true that in the said decision the learned Single Judge observed that on completion of 5 years of service they are deemed to have been converted from work charged establishment to temporary establishment and therefore, they shall be entitled to the benefit of higher pay scale under the scheme of 9-18-27 years on completion of 9 years of service from the date on which they deemed to have been converted from work charged establishment to temporary establishment. However, it is required to be noted that the said decision was challenged before the Division Bench by way of Letters Patent Appeal No. 1360/2011 and the Division Bench dismissed the said appeal and confirmed the order passed by the learned Single Judge, however the Division Bench specifically made it clear that order of dismissal of appeal may not be treated as a precedent. Therefore, once the Division Bench specifically observed and made it clear that the dismissal of appeal confirming the order passed by the learned Single Judge in Special Civil Application No. 7464/1996 may not be treated as a precedent, normally the same cannot be relied upon as the same is to be treated and/or confined to those petitioners also and the same cannot be treated as a precedent. While considering the aforesaid decision the learned Single Judge has not at all considered the observations made by the Division Bench in Letters Patent Appeal No. 1360/2011 that the said order may not be treated as a precedent. The learned Single Judge seems to have proceeded on the premise that the decision of the learned Single Judge in Special Civil Application No. 7464/1996 has been confirmed by the Division Bench without any further observation (in the present case the observation that the same may not be treated as a precedent). [19.9] It is true that in many of the cases the concerned petitioners are continued as work charged employees in the work charged establishment since many years and therefore, there shall be a presumption that the nature of work is permanent. However, the same is required to be considered while applying the G.R. dated 16.08.1973 and while considering their cases for absorption in the temporary establishment. From the impugned judgment and order passed by the learned Single Judge, there is no factual data available before the learned Single Judge with respect to the number of persons working in the work charged establishment; on which posts they are working as work charged; in which department they are working; since how many years they are working; how many posts in the temporary establishment were available. The learned Single Judge has passed the impugned judgment and order mainly on the ground that all those petitioners-work charged employees working in the work charged establishment are working since many years and that they shall be entitled to benefit of absorption as per the G.R. of the year 1973 and that subsequent G.R. of 2014 canceling/withdrawing the earlier G.R. of 1973 shall not be made available retrospectively. The learned Single Judge is right in observing that the subsequent G.R. of 2014 withdrawing/revoking the earlier G.R. of 1973 cannot be made applicable retrospectively but at the same time the finding recorded by the learned Single Judge that on completion of 5 years of service as work charged in the work charged establishment automatically they shall be entitled to be absorbed in the temporary establishment cannot be sustained. Number of circumstances/conditions are required to be considered while converting the work charged establishment into the temporary establishment even as per the G.R. dated 16.08.1973 which was applicable prior to the G.R. of 2014 and therefore, the State Government/concerned Departments of the State Government in which the respective petitioners are serving as work charged employees in the work charged establishment are to be directed to consider the case of all those petitioners - work charged employees who are not absorbed in the temporary establishment to absorb them in the temporary establishment as per the G.R. dated 16.08.1973. [20.0] Therefore, in light of the above finding and the observations, under normal circumstances, the matters are required to be remanded/sent back to the Government to undertake the exercise viz. when the posts in temporary establishment had fallen vacant; how many posts had fallen vacant; whether there was a requirement and/or work or not? However, considering the fact that in most of the cases the work charged employees have worked for more than three decades, considering the object and purpose of the G.R. dated 16.08.1973 and for the reasons stated hereinbelow, we do not propose to send back the matters to the State Government after number of years. [20.1] It is required to be noted that the concerned work charged employees have worked and are working since last three decades. Therefore, it can safely be presumed and it cannot be disputed that there was/is work and their services were required and they have continuously worked for approximately three decades. Even as per the G.R. dated 16.08.1973 which shall be applicable pre-G.R. Of 2014, various posts of work charged establishment in respect of maintenance and repairs of any works or irrigation management which are either required permanently or very long term basis be converted to permanent posts and work charge posts to that extent should be abolished. Even as per the G.R. dated 16.08.1973 which shall be applicable pre-G.R. Of 2014, various posts of work charged establishment in respect of maintenance and repairs of any works or irrigation management which are either required permanently or very long term basis be converted to permanent posts and work charge posts to that extent should be abolished. The G.R. dated 16.08.1973 reads as under: Conversion of work-charged posts Maintenance repairs and Irrigation management under P.W.D. into temporary establishment. Government of Gujarat, Public Works Department, Resolution ECWCE1272(2)G, Dated: the 16th August, 1973. Read: Govt. Resolution P.W.D. No. WCE1270G90/(8)/G dated 29.12.1971. RESOLUTION:- Under Govt. Resolution, Public Works Deptt. No. WCE1270G99(8)G dated 29th December, 1971 referred to above, it was decided that conversion of work charged posts into temporary posts should not be considered in view of the improvement in service conditions of the persons working on work charged establishment. The question of conversion of work charged posts has been reconsidered by Govt. After reconsideration Govt. has accepted in principle that the various posts on work charged establishment in either required permanently or a very long term basis be converted into temporary posts and work charged posts to that extent should be abolished. 2. The Heads of department under P.W.D. are therefore requested to please ensure that work charged posts in respect of maintenance and repairs of any works or irrigation management which are proposed for conversion to temporary establishment should have been continuously in existence for a minimum period of five years and are required either permanently or on very long term basis say 10 to 15 years. 3. Separate proposals should be submitted for each division in the enclosed performa giving justification for conversion of each individual post and indicating the existing norms or standard for such posts or the norms which could be fixed. The number of temporary/permanent posts already existing may also be mentioned in the Performa and taken into account while submitting the proposals. 4. All previous proposals pending at govt. level should be treated as disposed off and fresh proposals should be submitted in accordance with the instructions contained in this resolution. 5. The number of temporary/permanent posts already existing may also be mentioned in the Performa and taken into account while submitting the proposals. 4. All previous proposals pending at govt. level should be treated as disposed off and fresh proposals should be submitted in accordance with the instructions contained in this resolution. 5. This issues with the concurrence of Finance Department vide its not, dated 10.7.73 on this Department's file of even number." [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. 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. 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. 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 non-suited 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. 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 workcharged 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. [21.1] So far as the impugned direction/s in respect of workcharged employees namely all those workcharged 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 - workcharged employees who have worked for more than 20 years as workcharged 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 workcharged 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. 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 workcharged 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." 8. The Division Bench, after threadbare examination of various government resolutions has set aside the observation made in the judgments passed by the Coordinate Bench to the effect that on completion of five years of service as work charge employees they shall be entitled to the benefits which are available to the employee working on temporary establishment. After examining various resolutions and circulars, the Division Bench has held that the work charged employees, who are absorbed/converted to temporary establishment after completion of 20 years of service shall be paid the consequential benefits. It is further observed that all the work charged employees, who have worked for more than 20 years as work charged employees shall be entitled to the conversion to temporary establishment as per the Government Resolution 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 the higher pay-scale/grade if at all the same is being paid to the employees working on 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. 9. Accordingly, the Division Bench has also directed the respondent authorities to pay the retiral benefits after carrying out such exercise. 10. 9. Accordingly, the Division Bench has also directed the respondent authorities to pay the retiral benefits after carrying out such exercise. 10. In this view of the matter, the respondents are hereby directed to grant retiral benefits to the petitioner in terms of the directions issued by the Division Bench of this Court since the petitioner has completed almost 21 years of service as work charged employee. Necessary benefits in terms of the judgment and order of the Division Bench dated 29.06.2018 passed in Letters Patent Appeal No. 380 of 2016 and allied matters shall be paid to the petitioner within a period of two months from the date of receipt of the writ of this order. 11. The present writ petition succeeds. Rule is made absolute. Direct service is permitted.