Devabhai Alabhai Gojiya vs Deputy Executive Engineer
2023 Latest Caselaw 555 Guj

    C/SCA/10346/2019                                  JUDGMENT DATED: 18/01/2023




               IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 10346 of 2019


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE A.Y. KOGJE                               Sd/-

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1    Whether Reporters of Local Papers may be allowed to see                NO
     the judgment ?

2    To be referred to the Reporter or not ?                                NO

3    Whether their Lordships wish to see the fair copy of the               NO
     judgment ?

4    Whether this case involves a substantial question of law as            NO
     to the interpretation of the Constitution of India or any
     order made thereunder ?

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                         DEVABHAI ALABHAI GOJIYA
                                  Versus
                        DEPUTY EXECUTIVE ENGINEER
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Appearance:
JEET Y RAJYAGURU(8039) for the Petitioner(s) No. 1
MR. ADITYA PATHAK, AGP for the Respondent(s) No. 1,2
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    CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE

                               Date : 18/01/2023

                               ORAL JUDGMENT

1. RULE. Learned Assistant Government Pleader waives service of rule on behalf of the respondent-state.

2. This petition under Article-226 of the Constitution of India is filed with

C/SCA/10346/2019 JUDGMENT DATED: 18/01/2023

following prayers:

"(A) YOUR LORDSHIPS be pleased to issue appropriate writ, order or direction, directing the respondent no.2 to forthwith grant the benefits admissible under the Government Circular dated 17.10.1988 to the petitioner, without any further delay, in the interest of justice;

(B) YOUR LORDSHIPS be pleased to direct the respondent no.2 to produce before this Hon'ble Court the calculation of amount which the petitioner is entitled as per Government Circular dated 17.10.1988, pending the admission, hearing and final disposal of this petition;

(C) YOUR LORDSHIPS be pleased to grant such other and further reliefs as may be deemed fit and proper by this Hon'ble Court in the interest of justice;"

3. Learned Advocate for the petitioner has submitted that case of the petitioner is clearly covered under the Government Resolution dated 17-10-1988 and though the petitioner has been engaged since 1992 and has worked till date of his retirement upon attaining the age of superannuation on 28-02-2017, the petitioner has not been given benefits as is admissible under the aforesaid Government Resolution.

4. Learned Advocate for the petitioner has taken this Court to the evidence laid before the Tribunal, when the Tribunal has decided reference in favour of the petitioner and thereafter, the petitioner being reinstated with continuity in service. Therefore, the petitioner is entitled to the benefits of the Government Resolution as periodically available upon his completion of 5 years, 10 years and 15 years of service.

5. Learned Advocate for the petitioner has submitted that several decisions have been taken by this Court in identical set of facts and benefits have been granted. He has drawn attention of this Court to the decision in group of petitions in case of Atul C. Soni and others v/s. Gujarat Water Supply & Sewerage Board passed in Special Civil Application No.1563

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of 1992 and allied matters , wherein considering even the fact that the appointment of the petitioner was subsequent to the cut-off date prescribed under the Resolution/Policy, appointments have been made, still benefit under the Government Resolution dated 17-10-1988 was given to such petitioners. It is submitted that decision of the Single Judge was also confirmed by the Letters Patent Bench in Letters Patent Appeal No.325 of 2013 and allied matters.

6. Learned Advocate for the petitioner has also referred to and relied upon the decision in case of Mahesh Tulsidas Agarwat v/s. State of Gujarat passed in Special Civil Application No.7629 of 2020 and allied matters , wherein also, very Department as in the present petition, has been directed to give benefits of the Government Resolution dated 17-10- 1988 to Daily Wagers, who have appointed like the petitioner.

7. As against this, learned AGP has drawn attention of this Court to the Affidavit in reply and has also drawn attention of this Court to the Communication dated 29-12-2018, wherein it is indicated that case of the petitioner was considered for the purpose of pension in light of the Government Resolution dated 17-10-1988. However, treating the petitioner's appointment to be after 01-10-1988, benefit was held to be not admissible.

8. In rejoinder, learned Advocate for the petitioner has drawn attention of this Court once again to the group of petitions disposed of by order dated 07-10-2020 in case of the very respondent-Department, wherein it is indicated that the petitioners therein were also appointed subsequent to the Government Resolution dated 17-10-1988 and hence, by drawing parity with the aforesaid decision, benefits are claimed.

9. Having considered the rival submissions of the parties and having perused the documents on record, it is apparent that the petitioner was engaged as a Driver in the year 1992. Thereafter, on the basis of the petitioner being terminated, raised Industrial Dispute vide Reference

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(LCJ) No.331 of 1996, which came to be awarded in favour of the petitioner vide award dated 21-05-2004. This award was the subject matter of challenge in Special Civil Application before this Court, which also came to be rejected by order dated 27-08-2004 and ultimately, the petitioner came to be reinstated on 20-06-2005. From the record, it appears that the petitioner has now retired upon attaining the age of superannuation on 28-02-2017 and thereafter, the present petition is filed in the year 2019.

10. Considering the award in favour of the petitioner and facts identical to Special Civil Application No.7629 of 2020 and allied matters, wherein this Court has proceeded to grant benefits by issuing directions in Para- 11 of the aforesaid decision and the facts being quite similar to the aforesaid, the Court is also inclined to issue directions to the effect that the petitioner is entitled to the benefits under the Government Resolution dated 17-10-1988, despite fact that the petitioner was an appointee after the date prescribed in the said Resolution for his appointment being in the year 1992. The Court also observes that in Clause-2 of the Government Resolution dated 17-10-1988, following is provided:

"(2) Now complete ban is imposed on the recruitment of new daily wagers. If any new daily wager is recruited by any officer, such officer shall be responsibility for it and the wage paid to such daily wager shall be recovered from the salary of such officer."

11. It is found that in the decision referred to and relied upon by the petitioner in case of Atul C. Soni and others (supra) , this Court has clearly observed the action initiated against the various Officers in connection with their non-compliance with the Resolution and making appointment subsequent to dates, which prohibited the appointment of

C/SCA/10346/2019 JUDGMENT DATED: 18/01/2023

Daily Wagers thereafter. There is nothing on record to indicate as to whether any similar action has been initiated in accordance with the provision of the Government Resolution produced herein above.

12. In view of the aforesaid, the Court further issues directions that the respondent-Department is obliged to initiate action as provided for in the Clause-2 of the Government Resolution dated 17-10-1988.

13. In view of the aforesaid, the petition stands allowed. Rule is made absolute to the aforesaid extent with no order as to costs. Direct service is permitted.

Sd/-

(A.Y. KOGJE, J) PARESH SOMPURA