IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 5691 of 2001 For Approval and Signature:
HONOURABLE MR.JUSTICE J.B.PARDIWALA ========================================================= 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, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
========================================================= KANTIKUMAR BALUBHAI KATHARIA - Petitioner(s) Versus STATE OF GUJARAT & 3 - Respondent(s) ========================================================= Appearance :
MS RUJUTA R.OZA for MR RJ OZA for Petitioner(s) : 1, MRS VS PATHAK, AGP for Respondent(s) : 1 - 4.
========================================================= CORAM : HONOURABLE MR.JUSTICE J.B.PARDIWALA Date :11/05/2012 CAV JUDGMENT
1. By way of this petition under Article 226 of the Constitution of India, the petitioner – a Night-Watchman working with the respondent authorities has prayed for the following reliefs :
“13.
(A) Your Lordships may be pleased to admit this petition.
(B) This Hon’ble Court may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction quashing and setting aside the impugned decision of the respondent authorities as contained in letter of the respondent No.4 dated 11.10.200 at Annexure-E to the petition; and further be pleased to direct the respondents, their agents, servants, subordinate officers to give the petitioner regular pay scale of Rs.750-940 with effect from the date of his appointment and revised pay scale of Rs.2550-3200 with effect from 1.1.1996 and further direct the respondents to pay arrears of salary, grade stepping up and other benefits in the service at par with Shri H.K.Purohit.
(C) Pending admission, hearing and final disposal of the petition, this Hon’ble Court may be pleased to stay the operation, implementation and execution of the impugned order dated 11.10.2000 at Annexure-E to the petition;
(D) Pending admission, hearing and final disposal of this petition, this Hon’ble Court may pleased to direct the respondents, their agents, servants, subordinate officers not to terminate the services of the petitioner in any manner whatsoever and further be pleased to direct the respondents to raise the pay bill of the petitioner in the pay scale of Rs.2550-3200 forthwith and pay salary to the petitioner accordingly.
(E) Any other and further reliefs as may be deemed fit and proper in the interest of justice.”
2. The case which has been set-up by the petitioner can be summed up thus :
The petitioner belongs to Scheduled Caste category. The petitioner possesses an educational qualification of VII standard passed and it is his case that he was and is eligible for appointment to the post of Watchman or any Class-IV services under the State Government as per respective Recruitment Rules of the respective posts. The petitioner had enrolled himself with the Employment Exchange, Surat. Respondent no.4 was required to fill-in vacancies of Watchman and for this purpose names were called for from the Employment Exchange, Surat. The Employment Exchange Officer, Surat vide his letter dated 25/8/1992 recommended the name of the petitioner along with other candidates for considering them for appointment to the posts of Night Watchman. In pursuance to the said recommendation, the petitioner was called for selection and he appeared before the Selection Committee wherein the petitioner was found suitable and therefore, respondent no.4 issued an order of appointment dated 29/9/1992 in favour of the petitioner to the post of Night Watchman in the contingency pay scale of Rs.90-2-110.
It is the case of the petitioner that since he was appointed on regular basis and on clear vacancies he was required to obtain fitness certificate from the Civil Surgeon and such fitness certificate has been kept in the Service Book of the petitioner which is being maintained by the respondents. All due and necessary entries required to be made in the service book of the petitioner were also made and authenticated by the competent authority with regard to leave record of the petitioner. The name of the petitioner was also included in the Muster Roll maintained in the respondent office and the petitioner was required to put his signature in the said muster roll regularly.
It is also the case of the petitioner that at the time of his initial appointment he was given posting as a Night Watchman in the Office of the Assistant Commissioner of Sales Tax (Enforcement), Surat as stipulated in his appointment order. Thereafter, upon abolition of the set-up of the Assistant Commissioner of Sales Tax (Enforcement), Surat, services of the petitioner were transferred at the Vechan Vera Bhavan, Surat, vide order dated 15/7/1997 passed by the Assistant Commissioner of Sales Tax (Administration), Surat. It is the case of the petitioner that though the petitioner used to put in service for more than 17 hours a day he was not being paid minimum wages. Not only that, he was not being paid minimum wages but he was also not being paid wages by calculating total hours of work put in by him at the particular rate by applying the Government Resolutions, which have been referred to in the petition, dated 18/6/1991, 5/4/1997 and 23/9/1998 respectively issued by the Finance Department of the Government of Gujarat. The grievance of the petitioner is that though he was treated as a regular selected candidate for all purposes, the regular pay scale of the post was not being offered. The petitioner was, in fact, entitled for pay scale of Rs.750-940 (unrevised) and subsequently Rs.2550-3200 (revised).
It is the case of the petitioner that many representations were preferred, but the respondent authorities turned a blind eye and refused to pay the regular pay scale of Watchman.
3. It is in this background that the petition has been preferred seeking a writ of mandamus on the respondent authorities to pay salary to the petitioner in the pay scale of Rs.750-940 with effect from the date of his appointment and revised pay scale of 2550-3200 with effect from 1/1/1996 and has also prayed for a writ of mandamus upon the respondents to pay arrears of salary, grade stepping up and other benefits of the services at par with co-employee named Shri H.K. Purohit.
4. The petition has been opposed by the respondents by filing an affidavit-in-reply and the defence of the respondents to the petition can be summarized as under :
It is the case of the respondents that the petitioner was appointed as a contingency Night Watchman vide order dated 29/9/1992 and the same was accepted by the petitioner. According to the respondents, the petitioner was never appointed as a Government Servant by following the recruitment rules and procedure and therefore, the question of granting him leave, bonus or LTC etc. available to a regularly appointed government employee does not arise in the present case.
According to the respondents the petitioner was appointed on contingency payment basis and it was clearly mentioned in the order that his services can be terminated at any time and his appointment was purely on temporary basis. According to the respondents, the petitioner was being paid wages and no salary was ever paid to the petitioner as is paid to a regular employee. It is also the case of the respondents that the petitioner had moved this Court earlier by way of Special Civil Application No.5192/1998 on the apprehension of termination of service when his name was deleted from the Muster Roll of regular Government servants of the office and was placed in the Muster Roll of contingency paid part-time staff. This Court passed an order in Special Civil Application No.5192/1998 directing the respondent authorities to consider the petitioner’s explanation regarding his absence sympathetically and also considered the representation of the petitioner with regard to absorbing him in Class- IV service in accordance with law. It is the case of the respondents that in due reference to the order passed by this Court, the petitioner was permitted to resume his duty without imposing any penalty for his unauthorized absence from duty. So far as the representation for absorption in Class-IV services is concerned, the same being barred by resolution of the Finance Department dated 21/8/1995, the request was rejected. It is the case of the respondents that the said position was explained to the petitioner vide letter dated 10/11/2010.
It is also the case of the respondents that the case of Mr.H.K.Purohit cannot be compared with the petitioner’s case. Mr.H.K.Purohit, according to the respondents, was appointed on regular basis as a Class-IV employee and his selection was made as per the specified procedure of recruitment. The respondents, therefore, prayed that there is no merit in this petition and the same deserves to be rejected.
5. It appears that by way of affidavit-in-rejoinder an important fact has been brought to the notice of this Court. The fact is that the petitioner had also preferred a writ petition being Special Civil Application No.1325/2001. Record reveals that Special Civil Application No.1325/2001 had to be preferred as the petitioner was served with an order of termination dated 31/1/2001 and the order dated 1/2/2001 passed by the Sales-Tax Officer relieving the petitioner from the services. This petition was adjudicated by Division Bench of this High Court (Coram: R.M.Doshit and K.M.Thacker, JJ.) and came to be disposed of vide judgment and order dated 20/11/2008. It appears that the challenge to the order of termination of petitioner’s service was on two grounds: first, the impugned order was passed in violation of provisions contained in Rule-33 of the Bombay Civil Service Rules, 1959, and secondly, the petitioner had been needed discriminatory treatment inasmuch as another Watchman Shri H.K.Purohit, junior to the petitioner, was continued in service. The contention in the Special Civil Application No.1325/2001 was that Rule-33 of the Rules permit the State Government to terminate service of a temporary employee by giving a notice in writing or by paying pay and allowances in lieu of Notice. The Division Bench allowed the petition observing as under :
“In the present case, indisputably, neither the petitioner was given notice of termination, nor was he paid pay and allowances in lieu thereof. We are, therefore, of the opinion that, as held in the above referred judgments, the failure to pay to the petitioner the pay and allowances along with the order of termination of service has vitiated the order of termination. We, therefore, hold that the termination of service of the petitioner by order dated 31st January, 2001 is illegal, null and void. The petitioner is entitled to reinstatement in service i.e. as contingency paid night watchman. We also hold that on his reinstatement in service as contingency paid night watchman, the petitioner will be entitled to the pay and allowances in the pay scale approve for the post of night watchman. As to the period from the date of termination of his service i.e. 1st February, 2001 till he is reinstated in service in accordance with this direction, we invoke the principle of “No Work No Pay.” We direct that the said period shall be treated as extraordinary leave without pay. We, further, direct that the petitioner shall be reinstated in service as contingency paid night watchman as early as possible but not later than 1st January, 2009. In the event, the respondents fail to reinstate the petitioner in service latest by 1st January, 2009, the petitioner will be entitled to the pay and allowances in the regular pay scale with effect from 1st January, 2009.
Rule is made absolute in the above terms with cost. Registry will send the writ forthwith.”
6. Having heard the learned counsel for the respective parties and having perused the material on record, I am of the view that the relief which has been prayed for in this petition virtually stood granted by the Division Bench while deciding Special Civil Application No.1325/2001 dated 20/11/2008. The following observations of the Division Bench in Special Civil Application No.1325/2001 are important :-
“We also hold that on his reinstatement in service as contingency paid night watchman, the petitioner will be entitled to the pay and allowances in the pay scale approve for the post of night watchman. As to the period from the date of termination of his service i.e. 1st February, 2001 till he is reinstated in service in accordance with this direction, we invoke the principle of “No Work No Pay.” We direct that the said period shall be treated as extraordinary leave without pay. We, further, direct that the petitioner shall be reinstated in service as contingency paid night watchman as early as possible but not later than 1st January, 2009. In the event, the respondents fail to reinstate the petitioner in service latest by 1st January, 2009, the petitioner will be entitled to the pay and allowances in the regular pay scale with effect from 1st January, 2009.”
I find that the Division Bench, while quashing the order of termination of service of the petitioner and ordering reinstatement in service, held that the petitioner was entitled to the pay and allowances in the pay scale approved for the post of Night Watchman and accordingly directed the respondents to reinstate the petitioner in service latest by 1/1/2009 clarifying that the petitioner will be entitled to pay and allowances in the regular pay scale w.e.f. 1/1/2009.
7. In the aforesaid view of the matter the relief which has been prayed for by the petitioner in this petition in so far as directing the respondents to give the petitioner regular pay scale of the post of Night Watchman stood granted by the Division Bench while allowing the Special Civil Application No.1325/2001.
8. What has been brought to my notice by way of affidavit-in- rejoinder filed by the petitioner is something very shocking. It is the case of the petitioner that after the Division Bench judgment dated 20/11/2008 passed in Special Civil Application No.1325/2001 he resumed duty but was not paid salary in the regular pay scale of Night Watchman as directed by the Division Bench in its judgment and order dated 20/11/2008. Ms.Rutuja Oza, learned advocate submitted that various representations were made to the respondent-authorities pointing-out the petitioner’s entitlement for the salary in the regular pay scale of Night Watchman as per direction of the Hon’ble High Court. According to Ms.Oza no replies to the said representations have been received by the petitioner. One legal notice dated 24/8/2009 was served upon the respondent authorities calling upon them to comply with the direction of the Hon’ble High Court issued in Special Civil Application No.1325/2001 and in reply the respondent authorities have once again taken a stand that the contingency night watchmen are paid salary as per the working hours and is purely a temporary post not liable for any allowance as per the policy of the State Government in its Finance Department.
9. As a matter of fact there is no explanation worth the name at the end of the respondent authorities as to why, despite clear directions issued by the Division Bench while allowing Special Civil Application No.1325/2001 vide judgment and order dated 20/11/2008, the petitioner is not being paid the regular pay scale attached to the post of Night Watchman. It has not been brought to my notice that the judgment of the Division Bench was carried before the Supreme Court and that the Supreme Court has stated the operation of the judgment or has quashed the judgment and order passed by the Division Bench. Nothing has been shown to me to suggest that any application for review or clarification was preferred by the respondent authorities before the Division Bench who disposed of Special Civil Application No.1325/2001 In this view of the matter even I am bound by what has been observed by the Division Bench in its order dated 20/11/2008.
10. I am of the view that controversy in the present case is as to whether the appointment of the petitioner to the post of Night Watchman can be termed as a regular appointment and if that be so then whether the petitioner is entitled to the regular pay scale attached to the post of Night Watchman. There cannot be any dispute to the proposition that if the appointment of the petitioner is termed as a regular appointment i.e. after following the due process of recruitment in accordance with the rules, then for sure the petitioner would be entitled to the regular pay scale which is attached to the post. I find that the Division Bench has not touched this issue as to whether the petitioner was given permanent employment i.e. to say whether he can be said to be a regularly appointed Night Watchman in accordance with the rules of recruitments. What I find from the judgment of the Division Bench is that the Division Bench took the view that the State Government failed to come forth with any case why the petitioner was appointed as contingency paid Night Watchman. The Division Bench also observed that whether the petitioner has been paid salary in the regular pay scale, if not, why he has not been paid the salary in the regular pay scale and mainly the Division Bench also observed that in absence of a denial or any other material on record, they shall have to accept the averments made by the petitioner. It is in this background that the Division Bench took the view relying on Rule-33(1) of Bombay Civil Services Rules, 1959 that the services of the petitioner could not have been terminated without notice and without paying pay and allowances in lieu of notice. However, I also cannot ignore the fact that the Division Bench has also held that the petitioner is entitled to reinstatement in service i.e. has contingency paid Night Watchman and even while holding that the petitioner is entitled to reinstatement as a contingency paid Night Watchman directed the respondent authorities to provide salary in the pay scale approved for the post of Night Watchman.
11. I cannot even overlook the fact that the petitioner is serving with the respondent authorities past almost 20 years by paying him not even the minimum of pay scale which has been approved for the post of Night Watchman. In the aforesaid view of the matter I am of the opinion that the respondent authorities are duty bound and obliged to pay the regular pay scale approved for the post of Night Watchman as directed by the Division Bench. I am not inclined to direct the respondent authorities to pay the regular pay scale from the date of appointment, but surely the respondent authorities are obliged and duty bound to pay regular pay scale from 1/1/2009 as directed by the Division Bench.
12. The petition is accordingly partly allowed. The respondent authorities are directed to pay salary to the petitioner on the basis of regular pay scale attached and approved for the post of Night Watchman. The respondent authorities are directed to calculate the arrears of salary as per the regular pay scale w.e.f. 1/1/2009 and pay the requisite amount to the petitioner with 9% interest within a period of 3 months from today failing which the respondent authorities shall pay the amount towards the arrears @ 12% interest till the date of realization. The respondent authorities shall continue to pay salary to the petitioner as per regular pay scale approved for the post of Night Watchman till the petitioner attains the age of superannuation.
13. The respondent authorities shall take note of the fact that they are otherwise also in contempt. They have failed to comply with the order passed by the Division Bench dated 20/11/2008 in Special Civil Application No.1325/2001. There is no explanation worth the name in this regard by the respondent authorities. Therefore, the respondent authorities shall ensure that the order passed by this Court today is complied with in its true letter and spirit failing which strict action shall be taken against each of the respondents responsible in this regard. Rule is made absolute.
(J.B.Pardiwala, J.) /moin