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2020 DIGILAW 414 (GUJ)

P. v. Gondalia VS Jesar Nagar Panchayat

2020-03-05

A.G.URAIZEE

body2020
JUDGMENT : 1. In this petition, the petitioner has made following substantive prayers: (A) Issue appropriate Writ, direction and / or order directing the respondents to give benefits of higher pay scale from the effective date of 01.06.1987; (A-1) quash and set aside the order passed on 12.10.04 by the respondent No.1 institution and direct the respondents to give benefits to the petitioner of higher pay scale with retrospective effect by implementing the order dated 18.1.2004 passed by respondent No.1 institution; (B) direct the respondents to pay effective rise in pay scale and salary along with consequential arrears of pay and allowances with retrospective effect; (C) direct the respondents not to roll back the benefits given to the petitioner by order dated 18.01.2004; (D) pending admission and final disposal be pleased to direct the respondents to maintain status-quo and not to roll back benefits given by order dated 18.01.2004; (E) interim and / or ad-interim relief ex parte in terms of para (D) here in above; 2. The facts move in narrow compass as could be gathered from the memo of petition and the connected material: 2.1 The petitioner was appointed by respondent No.1 on the post of Clerk (Recovery Clerk) somewhere in 1972 on temporary basis. Thereafter, the respondent No.1 by Resolution dated 27.04.1982 and consequent order dated 15.11.1983 regularized the appointment of the petitioner and the service of the petitioner were treated as continuous from 01.08.1972. The financial benefits were made available to the petitioner from 01.04.1982. 2.2 The petitioner thereafter, made several representations to the respondent No.1 for financial benefits consequent upon his regularization in the service. Though pursuant to his representation, he was extended the financial benefits such as increments and dearness allowance etc., he was not given the benefits of higher pay-scale as per the Government Resolution dated 14.08.1994. Even the financial benefits given to the petitioner were withdrawn by respondent No.1 vide Resolution dated 12.10.2004. The petitioner has therefore, urged in this petition that he be granted financial benefits consequent upon his regularization including the benefits of higher pay-scale. 3. I have heard Mr. Hari Patel, learned advocate for Mr. Atul G. Barot for the petitioner and Mr. Rajesh M. Chauhan, learned advocate Mr. Munshaw for respondent Nos.1 and 3. There is no representation on behalf of respondent No.2 despite service of notice. 4. 3. I have heard Mr. Hari Patel, learned advocate for Mr. Atul G. Barot for the petitioner and Mr. Rajesh M. Chauhan, learned advocate Mr. Munshaw for respondent Nos.1 and 3. There is no representation on behalf of respondent No.2 despite service of notice. 4. Learned advocate for the petitioner has submitted gist of his argument in Civil Application No.1 of 2019, which is produced in verbatim as under: “(1) Most respectfully say that, the petitioner filed abovementioned petition before this Hon'ble Court for the direction against the respondent to give benefits of higher pay scale from the effective date of 1/06/1987 and also made request for direct the concerned respondent to pay effective rise in pay scale and salary along with consequential arrears allowances with retrospective effect and thereby made further request that no to roll back the benefits given to the petitioner by order dated 18/01/2004, it is further submitted that the above-mentioned petition pending for final hearing and final disposal before this Hon'ble Court. (2) The petitioner submit that in the above referred petition only respondent no. 1 has filed affidavit in reply against the present petition, after that the present petitioner filed his affidavit in rejoinder, it is further submitted that in the above referred petition respondent no. 2 and 3 had not filed any reply. (3) The petitioner submit that the petitioner was appointed on the post of clerk in the year 1972 on temporary basis and thereafter petitioner appointment was regularized by the passing a resolution no. 9 by the respondent no.1 on 27/04/1982 which is specifically stated in affidavit in rejoinder filed by the petitioner on 18/03/2005 and the same was sent to the Taluka Development Officer, Savarkundla vide letter dated 27/09/1982. (4) The petitioner submit that again vide letter dated 30/04/1983 it was requested to the Taluka Development Officer, Savarkundla to sanction the appointment of the petitioner on the post of clerk. (5) Petitioner submit that by the letter dated 11/08/1983 it was informed by the District Development Officer to the Taluka Development Officer to act as per Clause 28th made in the saction 102 in the year 1978 of the Gujarat Panchayat Act, 1961 (Old Act) as per the letter received from the TDO being letter no. TP.pancha.vashi.321-83-84 dated 18/07/1983 which was in regard to the appointment of the permanent clerk in respondent no.1. TP.pancha.vashi.321-83-84 dated 18/07/1983 which was in regard to the appointment of the permanent clerk in respondent no.1. (6) The petitioner submits that in turn to letter dated 30/04/1983 of the respondent no.1 the TDO informed the respondent no.1 that according to the clause 28th made in the section 102 in the year 1978 of the Gujarat Panchayat Act, 1961 (Old Act) there remains nothing to be done from the end of the office of the TDO and directed respondent no.1 to act according to the rules of the recruitment. (7) The petitioner submits that office order was passed by the respondent no. 1 on 18/11/1983 regularizing the service of the petitioner on the post of clerk and his service will continued with effect from 1/8/1972, but beneficiary benefits were to be given with effect from 1/4/1982 and pay scale was to be fixed as per the Sarla-Desai Commission and monetary benefits were to be paid from 1/4/1982 and was given the pay scale as per the government rules Rs.260/400 and was also granted all other benefits available to the permanent clerk and was also decided to pay all the arrears with immediate effect. (8) Thereafter the respondent no. 1 passed on resolution no. 51 on 3/12/1983 conforming the resolution no. 9. (9) The petitioner submits that a communication came to be issued by the Deputy Secretary, Department of Panchayat and Rural Housing Development addressed to the all District Development officers and according to the condition no. 1 of the said communication it was decided by the government that before the issuance of the directions by the government if the concerned gram panchayat has appointed more persons than the set up then the concerned gram panchayat has to sent proposal for the same to the Department of Panchayat and Rural Housing Development through the District Development Officer and Development Commissioner and also according to the condition no. 2 of the said coomunication the concerned gram or nagar panchayat has between 1/4/1963 to 9/7/1976 without the prior approval of the competent officer has created the post, the proposal for the same has to be sent to the Department of Panchayat and Rural Housing Development through District Development Officer and Development Commissioner for the approval from the date of creation of the post. Also the condition no of the said communication is applicable to the case of the petitioner which states that the appointment made on the post created before 10/7/1978 between 10/7/1978 to 5/6/1984 will be considered as valid appointment. (10) Thereafter the proposal for the appointment of the petitioner on the post of the clerk was rejected by the Department of Panchayat and Rural Housing Development vide letter dated 4/1/2003 on the ground that the appointment of the petitioner is not on the sanctioned setup and also the appointment of the petitioner has not been done in accordance with the provision of section 203 of the Gujarat Panchayat Act, 1993 section 227 but unfortunately said letter was not communicated to the petitioner at any point of time and also while passing the abovementioned order concerned DDO has not considered the communication of the Department of Panchyat and Rural Housing Development dated 9/9/1992, according to which the appointment was valid and also as per the section 102 of the Gujarat Panchayat Act, 1961 the gram panchayat had the power to fix their set up and make appointment according. (11) The petitioner submits that in a same way and giving the same reasons the TDO addressed the letter to the respondent no. 1 on 5/5/2003 rejecting the proposal and this letter was also not communicated to the petitioner at any point of time. The said order is also bad for the reasons stated in the para no. 12 of these written arguments. (12) The petitioner submits that vide letter dated 12/9/2003 addressed to the respondent no. 1 the petitioner requested the respondent no. 1 to remove the discrepancy of the pay scale and to pay increments and DA which were stopped from 1983-84. (13) The petitioner submits that order dated 18/1/2004 was passed by the Sarpanch Jesar gram panchayat directing to pay scale as well as increments with effect from December 2003 on the basis of the resolution no.2(2) dated 17/1/2004 passed by the respondent no. 1 as per the application of the present petitioner dated 12/9/2003. (14) The petitioner states that the said benefits given by order dated 18/1/2004 by the respondent no. 1 was withdrawn by the respondent no. 1 by way of passing the resolution no. 19(1) dated 12/10/2004. 1 as per the application of the present petitioner dated 12/9/2003. (14) The petitioner states that the said benefits given by order dated 18/1/2004 by the respondent no. 1 was withdrawn by the respondent no. 1 by way of passing the resolution no. 19(1) dated 12/10/2004. (15) The petitioner submits that the government passed on resolution dated 16/08/1994 to give higher benefits of higher pay scale and it is also applicable to all the gram panchayat and nagarpanchayat, the said resolution is also applicable the present petitioner for getting benefits of higher pay scale after completion of service of 9, 18 and 27 years. The petitioner has completed service of 34 years. (16) The petitioner submit that even also according to the judgment passed by the Hon'ble Apex Court in the case of State of Karnataka & ors. v/s Uma devi it has been stated that the person who has put up the continuous service of more than 10 years is liable to be regularized as a onetime measurement and herein the petitioner has put up the service of more than 34 years and at such belated stage i.e. after working for 20 years his continuously his appointment cannot be declared as invalid, that also when there is specific direction from the government regarding the regularization of the employees like petitioner. (17) The petitioner further place reliance on the 206 (0) AIJEL-Special Civil Application No.58749 and also on 2016 (0) AIJEL-HC236392. (18) The petitioner further submits that according to the law laid down by the Hon'ble Apex Court in the case of State of Gujarat v/s R.K. Soni [1984 AIR (Special Civil Application No.)161] the employees of the State Government and the government has to be a model employer but in this case the petitioner has met with injustice and the case regularization of the petitioner and higher pay scale has been rejected in an arbitrartory manner without affording any opportunity to the petitioner with is against the principles of nature justice. (19) The petitioner further submits that the petitioner has been terminated from the service orally on 28/11/2006. The petitioner further submits that the respondent no has started deducting the CPF from the salary of the petitioner from the year 1985-96 and has been continously deducted till his termination. (19) The petitioner further submits that the petitioner has been terminated from the service orally on 28/11/2006. The petitioner further submits that the respondent no has started deducting the CPF from the salary of the petitioner from the year 1985-96 and has been continously deducted till his termination. Till date the CPF amount has been paid to the petitioner for the period 1985-86 to 1996-97 and after that nothing has been paid and that CPF amount from year 1998-99 to 2006-07 is still due and also the amount of gratuity had also not been paid. Therefore it is requested to the Hon'ble Court to direct the respondent 1 to 3 to pay all the remaining arrears including CPF and Gratuity with 12% interest in the interest of justice and also direct to pay the difference in pay which petitioner was deprived of because of the arbitratory action of the respondent authorities with 8% interest.” 5. In support of his arguments, he placed reliance on the unreported decision in the case of Jaysukhlal Makanji Granch Vs. District Development Officer and the decision of Hon'ble Supreme Court in the case of Harijan Paniben Dudabhai Vs. State of Gujarat reported in AIR 2016 SC 3066 . 6. Mr. Chauhan, learned advocate for the respondent Nos.1 and 3 submitted that the appointment of the petitioner was made on purely temporary and ad hoc outside sanctioned post of Clerk (Recovery Clerk). He submits that there was only one sanction post of Clerk on the establishment of Gram Panchayat and one Mr. B.N. Trivedi was working on the sanctioned post of Clerk, when the petitioner was appointed on purely temporary basis in the year 1972. It is submitted that the appointment as well as financial benefits made available to the petitioner were subject to the approval by the Development Commissioner, who has not sanctioned the appointment of the petitioner with retrospective effect vide communication dated 04.01.2003 (Page 36). He also submitted that all throughout the salary was paid to the petitioner from the funds of Gram Panchayat. He, therefore, submits that since the appointment of the petitioner is not approved by the Development Commissioner with retrospective effect, the prayers made in the petition may not be granted. 7. He also submitted that all throughout the salary was paid to the petitioner from the funds of Gram Panchayat. He, therefore, submits that since the appointment of the petitioner is not approved by the Development Commissioner with retrospective effect, the prayers made in the petition may not be granted. 7. It is eminently clear from the submissions made at bar that the appointment of the petitioner in the year 1972 was not on sanctioned post of Clerk and one Mr. B.N. Trivedi was also working on the sole sanctioned post of Clerk. Learned advocate for the petitioner has placed heavy reliance on the communication dated 09.09.1992 of the Panchayat and Rural Housing Department and vehemently contended that the appointments were given by the Panchayat between 01.04.1963 and 10.7.1978 and between 10.07.1978 and 05.06.1984 are directed to be regularized. In my considered view, that the contention is fallacious. Simple and bare reading of Clause 1 and 3 make it abundantly clear that if the appointment is made without following procedure of recruitment of sanctioned post, than only it can be regularized. Moreover, from clause 3, it is clear that the appointment can be regularized only if its is made before 10.07.1998 on a vacancy, which had fallen vacant between 10.07.1998 and 05.06.1984. As noted in the foregoing, undisputedly, the appointment of the petitioner was not on the sanctioned post and hence, in my considered view on the basis of communication dated 09.09.1992, the service of the petitioner cannot be regularized and financial benefits including the benefits of higher pay-scale cannot be extended to him. There is one another facet also. Clause 2 of the communication dated 09.09.1992 also contemplates 3rd contingency under which the appointment can be regularized with the approval of the Government. According to this Clause, if Gram Panchyat has created post in addition to the sanctioned post and appointment of such additional post was made between 01.04.1963 and 09.07.1978, such appointment can be regularized after obtaining approval of the Development Commissioner through the District Development Officer. In the case on hand, there is no material on record that respondent No.1 Gram Panchayat has created additional post of Clerk in addition to already sanctioned post of Clerk. Therefore also, on the basis of said communication, the benefits cannot be extended to the petitioner. 8. In the case on hand, there is no material on record that respondent No.1 Gram Panchayat has created additional post of Clerk in addition to already sanctioned post of Clerk. Therefore also, on the basis of said communication, the benefits cannot be extended to the petitioner. 8. So far the decision of this Court in the case of Jaysukhlal (Supra) is concerned, it is clear that at the time of appointment of the petitioner in the year 1972, the Gram Panchayat Service (Classification and Recruitment) Rules, 1967 were not in force. There were no statutory Rules, Regulations governing the appointments in the Panchayat service at the relevant point of time and, therefore, the petitioner was appointed on sanctioned set up of Safai Kamdar and in that view of the matter, this Court has directed the Authorities to prepare appropriate proposal for the pensionary benefit and other retiral benefits to the petitioner. Considering these facts, the decision is not applicable to the facts of the present case inasmuch as the petitioner was appointed in 1972 after coning into force of the Recruitment Rules and was appointed on an unsanctioned post of Clerk. The Hon'ble Supreme Court's decision in the case of Harijan Paniben Dudabhai (Supra) also of not avail to the petitioner before coming into force of the Recruitment Rules. 9. I am, therefore, of the view that when the appointment of the petitioner was made in the year 1972 outside the sanctioned set up of respondent No.1, his prayer for grant of higher pay-scale and other monetary benefits cannot be accepted. 10. For the foregoing reasons, the petition stands dismissed. Rule is discharged. No costs. If the petitioner makes a representation on or before 23.03.2020 for outstanding dues such as CPF etc., the respondent No.1 is directed to decide the same as expeditiously as possible, but not later than 4 weeks thereafter.