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2024 DIGILAW 748 (GUJ)

Ramabhai Rachhodbhai Baria v. State of Gujarat

2024-04-03

HEMANT M.PRACHCHHAK

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JUDGMENT : Hemant M. Prachchhak, J. 1. Present petition is filed by the petitioner under Article 226 of the Constitution of India with the following reliefs:- "(A) May be pleased to Admit and Allow this Writ petition. (B) Be pleased to issue a Writ of mandamus or any other appropriate Writ, Order or direction directing the respondents to forthwith release the following monetary benefits with 18% interest, after holding the action of the respondents in not releasing the same as arbitrary and illegal:- (I) Arrears of pay of Workcharge Work Assistant from 1- 3-99 to 31-10-2007 after notionally promoting the petitioner as Workcharge Work Assistant w.e.f. March 1999 on completion of 10 years of service as workcharge employee and as it done in the case of junior employees to the petitioner. (II) Revision in pension and it's arrears with revision in retirement benefits after calculation and payments as per above mentioned 22(B)(I) prayer. (C) be pleased to issue appropriate Writ, direction or Order quashing and setting aside the communication dated 20-9-12 passed by respondent no.3 pursuant to representation dated 17-8-12 preferred by the petitioner. (D) Pending admission hearing and final disposal of this Writ Petition, be pleased to grant ad interim relief in terms of para 22(B) of the petition. (E) Be pleased to pass such other/further orders deemed fit in the facts and circumstances of the case. (F) Be pleased to award the costs of the present Writ Petition from the respondents." 2. Facts of the present case are in nutshell as under:- 2.1 It is the case of the petitioner that he joined the services as Security Guard w.e.f. 21.05.1075 and he had completed ten years of continuous service on 01.10.1988. The petitioner passed the S.S.C. Examination in 1989 and he had given administrative work w.e.f. 01.09.1991 because he had cleared S.S.C. Examination. The Narmada Water Resources and Water Supply Department, State of Gujarat issued Government Resolution on 30.06.1988 and on the basis of the Government Resolution, Office Order No. 279 of 1998 was issued by respondent No. 4. 2.2 It is the case of the petitioner that the Executive Engineer, Panam Yojna Vibhag, Godhra passed Office Order No. 603 of 1998 on 02.11.1998 in favour of the petitioner on the basis of the resolution dated 30.06.1988 and Office Order No. 279 of 1998 issued by respondent No. 4. 2.2 It is the case of the petitioner that the Executive Engineer, Panam Yojna Vibhag, Godhra passed Office Order No. 603 of 1998 on 02.11.1998 in favour of the petitioner on the basis of the resolution dated 30.06.1988 and Office Order No. 279 of 1998 issued by respondent No. 4. That as per the Office Order No. 603 of 1998, the petitioner resumed the duty as Workcharge w.e.f. 05.11.1998 and necessary entry was posted in the service book of the petitioner by respondent No. 3 and entry was posted to the effect that the date of appointment as Class III, Workcharge was 01.03.1989. 2.3 It is also the case of the petitioner that as per the resolution dated 30.06.1998, the scheme was to be implemented from 01.10.1988 and the arrears of pay came to be paid to the concerned employees who were made workcharge from the date of their passing of S.S.C. Examination and paid arrears considering the retrospective effect of the scheme. At the time of passing order of appointment of the petitioner as workcharge from permanent rojamdar, on 02.11.1998, no post of workcharge was specified and subsequently, he and other employees were designated as workcharge karkoon. The respondent No. 2 passed an Office Order No. 116 of 2007 directing the concerned to enter the cadre of the workcharge class III employees as workcharge karkoon in their service books. The respondent No. 1 issued resolution in the year 2006 stipulating that the workcharge employees who completed 10 years of continuous service were to be promoted as Workcharge Work Assistant. The petitioner retired on 31.10.2007 on attaining the age of superannuation. The respondent No. 3 forwarded the names of the workcharge employees including the petitioner for consideration of his case for promotion as Workcharge Work Assistant. The respondent No. 2 passed Office Order No. 275 of 2008 directing appointment of workcharge employees as Workcharge Work Assistant from the date of completion of ten years continuous service as Workcharge employees and, therefore, the employees were entitled for the benefit of promotion to the post of Workcharge work Assistant on completion of ten years of service on workcharge establishment. 2.4 It is the case of the petitioner that he had made representation before respondent No. 1 for grant of the benefit of Workcharge Work Assistant as per the Government Resolution and he has also made a similar request to Executive Engineer. 2.4 It is the case of the petitioner that he had made representation before respondent No. 1 for grant of the benefit of Workcharge Work Assistant as per the Government Resolution and he has also made a similar request to Executive Engineer. Though no action has been taken by the respondents on the representations, the petitioner had lodged the complaint being Pre. Lit. No. 125 of 2011 before the High Court Permanent Lok Adalat, which came to be disposed with an observation that since the respondents had not filed any reply, it is not possible to pass any order or record the settlement. The petitioner preferred representation before respondent No. 3 praying to release the benefits admissible to him at the earliest. 2.5 It is further the case of the petitioner that respondent No. 3 informed the petitioner that all admissible benefits were already paid to him and respondent No. 3 gave a evasive reply to him with incorrect facts and without looking the relevant service record and without appreciating the resolutions. 3. Being aggrieved and dissatisfied by the inaction on the part of the respondents, the petitioner has preferred the present petition. 4. Heard Mr. Mehul Mehta, learned counsel appearing for the petitioner and Ms.Megha Chitaliya, learned Assistant Government Pleader appearing for the respondents - State Authorities. Perused the materials on record. 5. Mr. Mehul Mehta, learned counsel appearing for the petitioner has submitted the same facts which are narrated in the memo of petition and has submitted that the petitioner was appointed as daily wager w.e.f. 21.05.1975 and in 1989, he has cleared S.S.C. Examination and, therefore, he was appointed as Workcharge employee in Class III. He has submitted that as per the resolution dated 30.06.1998, the scheme was required to be considered w.e.f. 01.10.1998 and thus, the employees who have cleared S.S.C Examination prior to 31.12.1990 are entitled to get the benefits under the said circular. He has submitted that since the petitioner has cleared S.S.C Examination in 1989, therefore, he was cover under clause 11 of the said circular and from 1990, he is entitled to get the permanent benefits in the cadre of class III of Workcharge employee. He has submitted that since the petitioner has cleared S.S.C Examination in 1989, therefore, he was cover under clause 11 of the said circular and from 1990, he is entitled to get the permanent benefits in the cadre of class III of Workcharge employee. He has submitted that the respondents have considered the fact that the petitioner was unskilled labourer initially appointed as security guard and he has not completed the period of ten years and, therefore, the case of the petitioner was not considered. While referring to the Office Order No. 603 of 1998, he has submitted that in the office order it is clearly mentioned that the persons who have cleared S.S.C. Examination after 01.10.1988 and prior to 31.12.1990, they are entitled to get the benefits on the basis of the said circular and, therefore, the case of the petitioner is fallen under the said circular. He has submitted that the petitioner has prayed the benefits under the said circular which was extended to the other employees and the petitioner was deprived of and not extended the same in favour of the petitioner. He has submitted that the petitioner has made representation, however, the respondents have not considered the same and, hence, the impugned action on the part of the respondents deserves to be quashed and set aside and the petition deserves to be allowed. 6. Per contra, Ms.Megha Chitaliya, learned Assistant Government Pleader appearing for the respondents has objected the present petition. She has referred to and relied upon the affidavit-in-reply more particularly paragraphs no.6, 7, 8 and 9 and submitted that as per the Office Order No. 275 of 2008, the appointment of workcharge employee as workcharge work assistant from the date of completion of ten years regular service as workcharge employee. However, in the case of unskilled daily wager, the service of ten years is on fixed pay cannot be calculated for pensionable service as the unskilled daily wager becomes permanent after ten years of service as per the resolution dated 24.03.2006 of the Road and Building Department, State of Gujarat. She has submitted that the petitioner was joined as unskilled labourer in the cadre of daily wager and thereafter he cleared S.S.C Examination in 1989 and as per the circular dated 30.06.1998, the petitioner is not entitled to get any benefits. She has submitted that the petitioner was joined as unskilled labourer in the cadre of daily wager and thereafter he cleared S.S.C Examination in 1989 and as per the circular dated 30.06.1998, the petitioner is not entitled to get any benefits. She has submitted that as the petitioner was allotted administration work from 01.09.1991 on passing of S.S.C Examination and, therefore, the Office Order No. 279 of 1998 and on the basis of the resolution dated 30.06.1998, the petitioner was appointed as Workcharge Class III dated 11.08.1998 and not appointed as Workcharge Work Assistant and, therefore, he cannot claim relying upon the said circular for Workcharge Work Assistant and difference in salary and based upon the same consequential benefits after retiral dues. She has submitted that the petition being meritless deserves to be dismissed. 7. Considering the facts and circumstances case and material available on record, it appears that the petitioner initially joined as security guard unskilled labourer and, thereafter, he has cleared the S.S.C Examination in 1989 and as per the resolution dated 30.06.1998, the case of the petitioner fall under clause 2 and is required to be considered for the purpose of regularization and for all purposes from 01.10.1988 meaning there by that the petitioner has completed ten years prior to the date of his retirement in the cadre of Workcharge Class III and completed ten years prior thereto then he is required to be considered for the post of Workcharge Work Assistant from the date of completion of ten years of service. In view of the above, I am of the opinion that the stand taken by the respondents is absolutely unjust, incorrect and arbitrary. The petitioner is entitled to get the benefits in light of the resolution issued by the State Government dated 30.06.1998 office order No. 279 of 1998 and the petitioner has cleared the S.S.C Examination before cut off date i.e. 31.12.1990 and, therefore, as per the say of the respondents that the petitioner is only considered for workcharge employee from 1998 and before completion of ten years i.e. in the year 2008, the petitioner was retired from the service in 2007 which fact is unjust, illegal and arbitrary and, therefore, the present petition deserves to be allowed. 8. In view of the above and what is stated hereinabove, the present petition is allowed. 8. In view of the above and what is stated hereinabove, the present petition is allowed. The respondents are directed to pay all consequential benefits to the petitioner as Workcharge Work Assistant and to recalculate all emolument which is entitled to all consequential benefits and re-fix the pension on the basis of the same and pay all the benefits to the petitioner within a period of three months from the date of receipt of the writ of this order. Rule is made absolute. Direct service is permitted.