Arvindbhai Ranchodbhai Shah vs State Of Gujarat
2022 Latest Caselaw 9158 Guj

     C/SCA/8077/2010                                     JUDGMENT DATED: 17/10/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 8077 of 2010


FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE BHARGAV D. KARIA
==========================================================

1     Whether Reporters of Local Papers may be allowed
      to see the judgment ?

2     To be referred to the Reporter or not ?

3     Whether their Lordships wish to see the fair copy
      of the judgment ?

4     Whether this case involves a substantial question
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

==========================================================
                       ARVINDBHAI RANCHODBHAI SHAH
                                   Versus
                        STATE OF GUJARAT & 3 other(s)
==========================================================
Appearance:
MR P P MAJMUDAR(5284) for the Petitioner(s) No. 1
MR SHAKTI S JADEJA(5491) for the Petitioner(s) No. 1
MR KRUTIK PARIKH AGP for the Respondent(s) No. 1
MR HS MUNSHAW(495) for the Respondent(s) No. 2,3,4
RULE SERVED for the Respondent(s) No. 1,2,3,4
==========================================================
    CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA

                              Date : 17/10/2022

                              ORAL 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

C/SCA/8077/2010 JUDGMENT DATED: 17/10/2022

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

C/SCA/8077/2010 JUDGMENT DATED: 17/10/2022

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

C/SCA/8077/2010 JUDGMENT DATED: 17/10/2022

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.

The pay-scale for Work Assistant was also fixed

at Rs.1200-1800.

C/SCA/8077/2010 JUDGMENT DATED: 17/10/2022

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

C/SCA/8077/2010 JUDGMENT DATED: 17/10/2022

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

C/SCA/8077/2010 JUDGMENT DATED: 17/10/2022

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.

4.1) 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.

C/SCA/8077/2010 JUDGMENT DATED: 17/10/2022

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 re-

designated 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

C/SCA/8077/2010 JUDGMENT DATED: 17/10/2022

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. Heard the learned advocates appearing on behalf of the respective parties. It is not in dispute that the petitioner is serving as Work Assistant

C/SCA/8077/2010 JUDGMENT DATED: 17/10/2022

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 pay- scale 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

C/SCA/8077/2010 JUDGMENT DATED: 17/10/2022

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

C/SCA/8077/2010 JUDGMENT DATED: 17/10/2022

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.

(BHARGAV D. KARIA, J)

Radhika