Disposed

Kiritkumar Rajnikant Thakar v. a M C

Gujarat HC7 Dec 2018SCA/12123/2001

Case brief

AI extract

What is this about?

This writ petition sought regularization and continuous wages for a petitioner appointed on stop-gap as Supervisor. The High Court noted the lack of regularization policy, late filing, and payment of retirement benefits, refusing to exercise extraordinary writ jurisdiction and disposing of the petition.

What did the court decide?

Petition disposed of; rule discharged; interim relief vacated.

Kiritkumar Rajnikant Thakar Vs a M C — Pension and Retirement Benefits | Gujarat HC (2018)

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C/SCA/12123/2001 JUDGMENT

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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R/SPECIAL CIVIL APPLICATION NO. 12123 of 2001

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FOR APPROVAL AND SIGNATURE:

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HONOURABLE MR.JUSTICE A.J. SHASTRI

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

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2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ?

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

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KIRITKUMAR RAJNIKANT THAKAR

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Versus A M C

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Appearance:

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MR ISHAAN JOSHI FOR GM JOSHI(370) for the PETITIONER(s) No. 1 MR RAJESH CHAUHAN WITH HS MUNSHAW(495) for the RESPONDENT(s) No. 1,2

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CORAM: HONOURABLE MR.JUSTICE A.J. SHASTRI

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Date : 07/12/2018

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ORAL JUDGMENT

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The present petition under Article 226 of the

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Constitution of India is filed for the purpose of seeking

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Page 1 of 17

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C/SCA/12123/2001 JUDGMENT

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following reliefs:

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“[A] This Hon'ble Court be pleased to issue a writ of Mandamus or a writ in the nature of Mandamus or any other appropriate, Writ, Direction or Order directing the respondent Corporation to give permanent appointment to the petitioner, on the post of Supervisor with effect from the date on which he was appointed as a supervisor i.e. 22.09.1992 and to pay him the wages for the Sundays w.e.f. 22.09.1992 to till date.

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[B] Be pleased to pass such other and further orders as may deem just and proper in the facts and circumstances of the case.

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[C] Be pleased to award the costs of this petition.

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[D] During the admission, pendency and final disposal of this petition, be pleased to restrain the respondent-Corporation, its officers, agents, servants, representative or anybody authorised through them from altering the service conditions of the petitioner and disturbing the petitioner in the performance of his duties as a Supervisor under the Respondent No:2, and further be pleased to direct the respondent Corporation to make the payment of wages w.e.f 16.04.2001 and to pay him regularly the wages and allowances on the post of Supervisor.”

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It is the case of the petitioner that the petitioner is aged about 49 years in 2001 and was rendering his service continuously as a Supervisor since the last 26 years right from 1992. Initially, the petitioner was appointed as a daily rated employee on 17.3.1975 and the petitioner was confirmed as a permanent labourer with effect from 1.4.1980. The petitioner was then promoted to the post of Supervisor with effect from 22.9.1992 vide office

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C/SCA/12123/2001 JUDGMENT

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order dated 19.9.1992 and the petitioner was placed in the grade of Rs.750-940 drawing a basic pay of Rs.940/by placing in the grade of Rs.950-1500 on a condition that he was appointed for three moths or till waiting list for Supervisor is prepared. The petitioner was sincerely working throughout and till the date of filing of the petition, the petitioner has continuously discharged services. He has completed more than 2500 days as a Supervisor during 9 years. He was initially posted at Jamalpur Central Store from 1992 where he worked till 22.11.2001 and thereafter he was transferred to North Zone office.

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It is the case of the petitioner that he was given various intermittent orders that too with retrospective effect but fact remains that the petitioner has continuously worked without any artificial break. The petitioner was also given casual leave, privilege leave and sick leave as is being given to other permanent employees so much so that bonus has also been paid to him as is being paid to other regular employees. According to the petitioner, just on paper, the petitioner was shown as working as such but has actually functioned as a permanent

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employee. The only distinction which has been made is that he was not being paid wage on Sundays. The petitioner was posted on a clear permanent vacant post vide office order dated 30.4.1994 which post fell vacant on account of death of one Mr.Hiren B. Shah, a Supervisor in Water Department. As a result of this, on a stop-gap arrangement, the petitioner was placed on the said post. Subsequently, respondent No.2 has addressed a letter on 5.1.2002 to the Corporation recommending the case of the petitioner to the effect that the petitioner has been working as Supervisor right from 22.9.1992 and has completed more than 900 days of service in five years and as per the rules of the Corporation, he may be given the benefit of permanency. The detailed working chart of the petitioner for the period from 1992 to 2000 indicates that as many as 21 appointment orders were intermittently issued during this passage of time and the petitioner has actually worked much more than 900 days and in the aforesaid capacity, for 2414 days. Since last 9 years, the petitioner has been working as a Supervisor and was being paid as well. However, despite the aforesaid tenure, not only the petitioner is not being paid regular salary and payment attached to the post on

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C/SCA/12123/2001 JUDGMENT

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the basis of “equal pay for equal work” but he is not being paid the salary on Sundays. On this background of tenure of service, the petitioner in the absence of any efficacious remedy has approached this Court by way of this petition under Article 226 of the Constitution of India for seeking the reliefs as stated above.

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This petition has been admitted by the Court way back in the year 2002 and by order 20.3.2002, a direction was given to pay salary to the petitioner within a period of two months from the said date. The said order reads as

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under:

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“Heard the learned advocate Mr. Joshi for the petitioner. The learned advocate Mr. Amit M. Panchal appearing for the respondent Corporation is not present on call. There being no contest, Rule. Pending this petition, it is directed that so long as the petitioner continues as a daily wage Supervisor he shall be paid wages accordingly. If any wage has remained unpaid, the same shall be paid within two months from today.”

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Thereafter, the matter was listed from time to time and with this background, it has come up for final consideration before this Hon'ble Court in which Mr.Ishant Joshi, learned advocate has represented Mr. Gautam M.Joshi, learned advocate for the petitioner and

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C/SCA/12123/2001 JUDGMENT

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learned advocate, Mr. Rajesh Chauhan has appeared for Mr. H.S.Munshaw, learned advocate for the contesting respondents.

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Mr. Joshi, learned advocate has vehemently contended that despite the fact that the petitioner has continued to discharge his sincere services for a pretty long period and has even worked as if the duties of a permanent employment is being discharged and on the basis of sincere services of several years, the authority has not even recommended for making the petitioner as permanent and by efflux of time made the petitioner to continue to work as a daily rated employee, which is nothing but an exploitative pattern being adopted by the authority and such artificial break which was given intermittently over the period of long lapse service is nothing but contrary to the proposition of law laid down by catena of decisions. He has contended that 29 days' employment has been deprecated by series of judgment and, therefore, non-consideration of the case of the petitioner by the authority is not only unjust and arbitrary but tinted with mala fide. It has further been contended that there is a policy of the respondent

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authority that those who are working for a pretty long period of more than 9 years and has completed the particular days of tenure in the services, upon the vacancy being arisen, the case is to be considered by filling up the same by extending the benefit of permanency. It has also been submitted that the petitioner was posted on a clear vacant post which had arisen on account of death of one Mr.Hiren B. Shah, who was working as a Supervisor, by a specific office order dated 30.4.1994 and looking to the entire length of service of the petitioner right from 1992 on the post of Supervisor, the learned advocate has requested to grant the relief as prayed for in the petition. It has further been submitted that the petitioner has continued to discharge his duty but in past for the period from 23.9.1993 to 28.4.1994, the petitioner was compelled to work without any order, which was the practice at that time but said practice is contrary to the labour welfare legislation. In the Corporation, according to Mr. Joshi, there is no other Supervisor, who is working as a daily rated employee and who has completed nearly 2500 days services continuously right from 1992 and this is the classic example of exploitative pattern being adopted

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by the authorities. As a result of this, looking to the proposition of law laid down by catena of decisions more particularly in view of para 53 of Uma Devi's case, the petitioner's case deserves to be considered. It has been submitted that the petitioner is not aware about the fact whether waiting list of Supervisor is prepared or not but it is an undisputed position that irrespective of that, right from September, 1992, the petitioner is continued to discharge his sincere services. Even till filing of the petition, the petitioner has discharged his services without any cause or grievance and, therefore, looking to this long length of services, the respondent authority ought not to have adopted such pattern by not regularizing the work and taking work of a permanent employee from the petitioner. It has been submitted that the petitioner, on account of age, has retired from the services. He has also been paid the amounts of gratuity, leave encashment and GIS totaling around Rs.4,93,786/on 27^th October, 2012 and it has been credited in the account of the petitioner. The petitioner has also been paid an amount of Rs.3,74,221/- towards Provident Fund on 18.2.2013. However, the amount has not been calculated by treating the tenure of the petitioner as

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regularized and has not been paid appropriate pay scale which is amenable to a permanent employee. A further contention has been raised that in the Corporation, there was no other Supervisor working and by keeping such exploitative pattern alive, on ad-hoc basis only, work of a regular Supervisor was taken from the petitioner. Hence, the petitioner, in the background of this fact, deserves the relief which has been prayed for.

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To meet with the stand taken by the learned advocate for the petitioner, Mr. Rajesh Chauhan, learned advocate appearing with Mr. H.S.Munshaw, learned advocate on behalf of the Corporation has vehemently contended that simply because the petitioner has worked on ad-hoc basis to the substantive post of Supervisor, that tenure of service cannot be taken as a liver to seek permanency over the post. According to him, the respondent authority being a statutory authority is expected to fill up the substantive post through the process of advertisement, recommendation of Staff Selection Committee and in consonance with the recruitment rules and, therefore, this entire process of recruitment cannot be by-passed or given a go-by by the petitioner while

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C/SCA/12123/2001 JUDGMENT

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claiming the relief. It has further been contended that the very office order is indicating about his ad-hoc arrangement to which, the petitioner cannot forget. It was clearly mentioned that the period of arrangement is till the waiting list is prepared and appointed out of it to the post of Supervisor for three months, whichever is earlier and, therefore, it cannot be said that any promise of regularization is given by the authority and, therefore, there is no legitimate exploitation of the petitioner to claim such relief even on that basis. The entire case of the petitioner appears to be based upon the relevant policy whereby a decision was taken that those who are daily rated employee who have completed the period of five years and more or 900 days, appropriate process to be undertaken for making them permanent. However, no such policy is produced on record to substantive his claim and, therefore, in the absence of any material to the same, the relief prayed for may not be granted. It has further been contended that regularization is not a fundamental right. On the contrary, the petitioner was a permanent laburer and as a stop-gap arrangement was given the posting and, therefore, all these issues including the issue as to

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whether policy is applicable to the case of the petitioner or not is not possible to be agitated in the writ proceedings. These disputed questions of fact cannot be decided just on the basis of affidavit by respective parties. As a result of this, a contention is raised that the petition may not be entertained. Yet another contention which has been raised by the learned advocate is that even by efflux of time, the petitioner was stopped giving work as a daily rated Supervisor with effect from 8.5.2002 vide office order dated 24.6.2002 as there was no work of a daily rated employee to the post of Supervisor available and the petitioner was working then as a permanent majoor since 7.5.2002 and is paid accordingly all the due benefits. A categorical stand taken in the affidavit is brought to the notice of the Court more particularly paragraph Nos.4.5 and 4.6 and then contended that the petitioner is not entitled to be regularized. The relevant paragraph Nos.4.5 and 4.6 read as under:

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“4.5 The petitioner Employee is working as permanent majoor in Water Department and he is also paid the wages, allowances and other benefits as permanent majoor. The petitioner Employee is not working as Supervisor at present and he is not entitled for the said post and other benefits available to the permanent supervisor.

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C/SCA/12123/2001 JUDGMENT

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4.6 I say that the respondent Corporation is making the appointment for the post of Supervisor in accordance with the rules and regulations framed in this behalf. I say that the appointment of Supervisor is made after issuing advertisement by the Staff Selection Committee. The Supervisors in the Respondent Corporation are holding responsible position and only qualified and experienced candidates are appointed after following proper selection procedure. The respondent Corporation had issued advertisement for preparing waiting list of 100 Supervisors and the Staff Selection Committee consisting of four senior officers of the respondent Corporation prepared the list of the selected supervisors after conducting the written examination, oral interview etc. The Staff Selection Committee had passed Resolution No.2 on 17/5/1995 wherein the details about the members of Staff Selection Committee, date of meeting, applications received, weightage of marks etc. are given. Annexed hereto and marked as ANNEXURE-”II” is the copy of the resolution passed by the Staff Selection Committee on17/5/1995.”

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A further contention is drawn to the specific averments made in para 11 that simply because a recommendation is made by Additional City Engineer, the same would not create legitimate right in favour of the petitioner and, therefore, by referring to averments made in paras 11 and 12, it has been contended that the petitioner is merely working as a permanent labourer with effect from 8.5.2002 and is getting due benefits.

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The learned advocate, Mr. Chauhan has further invited

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the attention from the very averments made in further affidavit, which is filed by the petitioner indicating the receipt of the payments of leave encashment, Group Insurance Scheme, gratuity as well as other due benefits by the petitioner and, therefore, now at this stage of the proceedings, it is not open for the petitioner to precipitate any action further. Hence, a request is made to dismiss the petition as having no merit.

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10.Having heard the learned advocates appearing for the parties and having gone through the material on record, it appears that the policy has not been placed on record before the Court about regularization of an employee, who has worked for more than 5 years or 900 days, as the case may be, and as such, the Court is not called upon nor assisted in that direction to consider the effect of the policy. As a result of this, the Court is unable to express any opinion about such contention which has been tried to be raised.

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11.Further fact is also reflecting that the appointment of the petitioner was merely on a daily rated employment initially for a period of 3 months or any appointment

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taking place from the waiting list to the post of Supervisor and as such, right from 1992, the petitioner was well aware about such position being continued in the office but, the petitioner has not chosen to agitate this issue and has merely made an application on 5.11.2001 i.e. almost after a period of serving about 9 years and more.

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12.As against this, a specific stand has been taken by the respondent Corporation that Supervisor's post is to be filled in by way of issuing advertisement, screening by Staff Selection Committee and after observing recruitment rules and, therefore, in the public employment, for regularizing the services in the manner the petitioner is expecting, the recruitment process and recruitment rules cannot be given a go-by and this is more so in view of the fact that there is a clear assertion that an advertisement is issued for preparing the waiting list for as many as 100 Supervisors and Staff Selection committee is also constituted consisting of 4 Senior Officers of the Corporation and the resolution is also passed to that effect. A further fact also cannot be lost sight of is that the petitioner is not working as a

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Supervisor right from 8.5.2002, pursuant to office order dated 24.6.2002 as there was no work of daily wager Supervisor and the petitioner is working with all attached benefits to the post of permanent labourer with effect from 8.5.2002 and, therefore, it appears that even at the relevant point of time, the process of recruitment was in contemplation and as such, no right is created in favour of the petitioner. It is further visible from the further affidavit-in-reply filed on behalf of the authority that the petitioner was also given the due benefit of increment and with that benefit, he was continued to discharge his function as a daily rated Supervisor. So much so that benefit of 5^th Pay Commission has also been extended and, therefore, it is not even a case that the petitioner was being exploited in any form. On the contrary, after almost a period of 9 years from joining as a daily rated Supervisor, the petitioner has thought it fit to raise the claim at a belated stage.

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13.Yet another circumstance for exercising equitable jurisdiction which cannot be lost sight of is that the following amounts have been even paid to the petitioner, which is not disputed since the affidavit is filed by the

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petitioner himself:

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	Rs.
i) Gratuity	3,19,161/-
ii) Earned leave	1,67,718/-
iii)GIS	6,907/-
Total	4,93,786/- ======

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Aforesaid amounts were paid on 27.10.2012. A further amount of Rs.3,74,221/- is also paid by way of Provident Fund which was also credited in the bank account of the petitioner on 18.2.2013.

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14.The aforesaid circumstance is indicating that whatever amount due to the petitioner was paid according to his status in employment and, therefore, at this stage of proceedings, the Court would not like to exercise extraordinary jurisdiction and as such, in the considered opinion of this Court, such equitable jurisdiction is unable to be exercised.

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15.However, while parting with, the Court is leaving it

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open for the petitioner, if so desired, to make an appropriate representation to raise the grievance, if any,

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survives and it would be open for the respondent authority to consider the same in accordance with law after granting appropriate opportunity to the petitioner to explain and the said decision shall be taken expeditiously since the petitioner appears to have been retired from the services. With these observations, the Court is not inclined to exercise extra-ordinary jurisdiction in the aforesaid peculiar set of circumstances. The petition accordingly stands disposed of. Rule is discharged. Interim relief, if any, stands vacated.

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(A.J. SHASTRI, J)

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RADHAKRISHNAN K.V.

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Page 17 of 17

Kiritkumar Rajnikant Thakar v. a M C

Case brief

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Kiritkumar Rajnikant Thakar v. a M C

Case brief

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