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Gujarat High Court · body

2022 DIGILAW 1422 (GUJ)

Arvindbhai Ranchodbhai Shah v. State of Gujarat

2022-10-17

BHARGAV D.KARIA

body2022
JUDGMENT : 1. Heard learned advocate Mr. P.P. Majmudar for the petitioner, learned advocate Mr. H.S.Munshaw for the District Panchayat and learned Assistant Government Pleader Mr. Krutik Parikh for the respondent-State. 2. With the consent of learned advocates for the respective parties, the petition is taken up for final hearing today and is disposed of by this judgment. 3. Brief facts of the case are as under : (3.1) The petitioner applied for the post of Mistry (Carpenter) and was called for interview by District Panchayat Service Selection Committee vide communication dated 14.08.1980 and thereafter, was given appointment vide office order dated 01.12.1980 issued by respondent no.2- Rajkot District Panchayat on the regular post of Mistry as work charge. 3.2) It is the case of the petitioner that such appointment was extended from time to time vide various office orders. Thereafter, by order dated 25.04.1985, passed by respondent no.2 Panchayat, it was ordered that the petitioner subject to the conditions mentioned in the said order be continued on duty till further orders. 3.3) Thereafter, vide communication dated 01.05.1992, petitioner was granted higher grade of Rs. 1200-2040. 3.4) The respondent authorities thereafter passed the order dated 20.08.1998 treating the petitioner to be on Temporary (Hangami) Establishment with effect from 01.06.1994. 3.5) It is the case of the petitioner that in the said order dated 20.08.1998 it is stated that the petitioner is a Work-charge Mistry and due to retirement of one Shri Makwana, the Temporary (Hangami) post has fallen vacant due to which the said order is passed, however, the petitioner has become Work Assistant from 09.12.1990 and in any case since the original appointment of the petitioner was against Regular vacant post of Mistry from the date of appointment, the petitioner ought to have been treated on regular set-up by the respondents authorities. 3.6) Being aggrieved by such order passed by the respondent authorities, the petitioner preferred a representation dated 12.10.1999 requesting to consider the petitioner on regular set-up as a Regular (Hangami) Appointee in the establishment of the District Panchayat. 3.7) Vide office order dated 10.03.2000, it was stated that the petitioner has cleared the training examination and has been given benefit of first higher pay-scale and therefore, the service of the petitioner shall be considered as having been rendered on the post of Work Assistant on completion of ten years of service. 3.7) Vide office order dated 10.03.2000, it was stated that the petitioner has cleared the training examination and has been given benefit of first higher pay-scale and therefore, the service of the petitioner shall be considered as having been rendered on the post of Work Assistant on completion of ten years of service. The pay-scale for Work Assistant was also fixed at Rs.1200-1800. 3.8) It is the case of the petitioner that the name of the petitioner appears at Serial No.5 in Schedule-1 of the said order and therefore, from 9.12.1990, the petitioner is considered as having rendering services on the converted post- Work Assistant. 3.9) Thereafter, vide office order dated 23.06.2000, the pay of the petitioner with effect from 04.02.1993 was fixed as Rs. 1200-30-1440-30-1800. 3.10) The petitioner was thereafter given higher pay scale of Rs. 4500-7000 with effect from 10.12.1999 vide office order dated 2.11.2002. 3.11) The petitioner was thereafter vide office order dated 21.09.2004 taken on Regular set-up from 01.06.1994 and after completing 9 years from the said date, i.e. from 01.06.2003, the petitioner was entitled to get the first higher pay scale and recovery was ordered for the period from 10.12.1999 to 31.05.2003 and for the period thereafter. 3.12) It is the case of the petitioner that the petitioner thereafter was supplied with the chart showing the details of amount of recovery and such amount was also paid by him. 3.13) The petitioner made representations dated 19.03.2003 and 31.08.2004 against such recovery being made by the respondents authorities. 3.14) The petitioner retired from service with effect from 31.10.2004. The petitioner thereafter also made representations on 04.05.2005 and 22.12.2005 pursuant to which the petitioner received reply from respondent no.3 on 23.02.2006. Thereafter, the petitioner again made representation on 30.01.2020. Being aggrieved by inaction on part of the respondents authorities to consider the petitioner’s appointment on regular set-up and the recovery being made from the petitioner, the petitioner has preferred the present petition. 4. Learned advocate Mr. Majmudar for the petitioner submitted that in case of similarly situated persons in Special Civil Application Nos. 7591/2009, 7597/2009 and 7602/2009, this Court has set aside the order of recovery and directed the respondents to treat the petitioners therein to be treated as “Hangami Work Assistant” vide order dated 27.08.2009. 4. Learned advocate Mr. Majmudar for the petitioner submitted that in case of similarly situated persons in Special Civil Application Nos. 7591/2009, 7597/2009 and 7602/2009, this Court has set aside the order of recovery and directed the respondents to treat the petitioners therein to be treated as “Hangami Work Assistant” vide order dated 27.08.2009. 4.1) It was submitted that petitioner of Special Civil Application No.7602/2009 one Kantilal Bavariya was appointed with the petitioner vide a common appointment order and the judgment and order dated 27.08.2009 passed in the case of the said petitioner would squarely cover the case of the petitioner also. 4.2) It was further submitted that Letters Patent Appeal No.448/2010 filed by the respondents against the said order dated 27.08.2009 also came to be dismissed. 4.3) It was therefore, prayed to treat the petitioner on the Regular set-up from the date of his appointment i.e. from 1.12.1980 or in the alternative from the date on which his services were redesignated on the post of Work Assistant i.e. from year 1990 and to grant all consequential benefits to the petitioner. 4.4) It was also prayed to quash and set aside the recovery order dated 21.09.2004 and to direct the respondents to refund the amount recovered from the petitioner. 5. On the other hand, learned advocate Mr. Munshaw for the District Panchayat submitted that the petitioner was appointed as Work Charge Mistry for a period of four months vide order dated 1.12.1980 on several terms and conditions and it was not on any permanent or sanctioned post and was only an ad-hoc appointment depending upon the availability of work and fund which was extended from time to time by issuing administrative orders. 5.1) It was submitted that the petitioner who had undergone training and cleared the examination only on 24.12.1999 was rightly granted the benefit of status of Work Assistant. 5.2) It was therefore, submitted that the petitioner was not entitled to be treated on regular set-up from the date of his appointment in the respondent establishment and recovery made was just and proper. 6. Having heard the learned advocates for the respective parties and having gone through the record, it appears that in case of similarly situated employees, this Court (Coram : Hon’ble Mr.Justice M.R. Shah) vide order dated 27.08.2009 in Special Civil Application No.7602/2009 has passed the following order : “8. 6. Having heard the learned advocates for the respective parties and having gone through the record, it appears that in case of similarly situated employees, this Court (Coram : Hon’ble Mr.Justice M.R. Shah) vide order dated 27.08.2009 in Special Civil Application No.7602/2009 has passed the following order : “8. Heard the learned advocates appearing on behalf of the respective parties. It is not in dispute that the petitioner is serving as Work Assistant and in the service record/service book there is an entry to the effect that the petitioner is serving as Work Assistant and, therefore, for all the purpose the petitioner is to be treated as Work Assistant. As stated hereinabove, it is fairly conceded by Shri Premal Joshi, learned advocate appearing on behalf of respondents nos. 2 to 4 that as such the petitioner ought to have been treated as ‘Hangami Work Assistant’. Under the circumstances and in view of the above to treat the petitioner still as Work- Charge Assistant though the petitioner is working as Work Assistant is absolutely illegal, as such the petitioner is required to be treated as ‘Hangami Work Assistant’. It appears that solely on the basis of the audit objection dated 31/05/2007 by the audit department straightway mechanically the concerned respondents have passed the impugned order canceling the higher pay-scale of Work Assistant in the payscale of Rs.4500-125-7000, which was granted to the petitioner. As such on the audit objection being raised, concerned respondents were required to meet with the objections and try to satisfy the objections raised by the audit department and ought to have replied to the department who has raised the objection rather than straightway passing the impugned order. If after meeting with the objection and explaining the concerned department still the audit department is not satisfied and then if the order is passed one can understand. Be that as it may. In view of the aforesaid, the action of the concerned respondents in not treating the petitioner as ‘Hangami Work Assistant’ and treating the petitioner still as Work Charge deserves to be quashed and set aside. 9. In view of the above and for the reasons stated hereinabove, the present Special Civil Application succeeds. Be that as it may. In view of the aforesaid, the action of the concerned respondents in not treating the petitioner as ‘Hangami Work Assistant’ and treating the petitioner still as Work Charge deserves to be quashed and set aside. 9. In view of the above and for the reasons stated hereinabove, the present Special Civil Application succeeds. The impugned order passed by the concerned respondents dated 21/04/2009 treating the petitioner as Work Charge and not treating the petitioner as ‘Hangami Work Assistant’ and subsequently withdrawing the higher grade scale of Work Assistant in the pay-scale of Rs. 4500-125-7000 is hereby quashed and set aside and the consequent order of recovery is also hereby quashed and set aside. If any amount of recovery by the concerned respondents, pursuant to the impugned order is made, the concerned respondents are directed to return the same to the petitioner within a period of six weeks form today. Rule is made absolute to the aforesaid extent.” 7. The judgment passed by the coordinate Bench of this Court would squarely apply to the facts of the present case, more so, when the petitioner therein as well as the petitioner of the present case are appointed vide common appointment order to the post of Work Assistant. 8. The petition accordingly succeeds. The impugned order dated 21.09.2004 treating the petitioner on Temporary (Hangami) Establishment and not treating the petitioner as Work Assistant and subsequently withdrawing the pay scale of Rs. 4500-125-7000 is hereby quashed and set aside and the consequent order of recovery is also hereby quashed and set aside. If any amount of recovery by the concerned respondents, pursuant to the impugned order is made, the concerned respondents are directed to return the same to the petitioner within a period of six weeks form today. Rule is made absolute to the aforesaid extent.