The petitioner has taken out present petition seeking below mentioned relief/direction:- “8(B) YOUR LORDSHIP be pleased to quashed and set aside the order dtd 8/3/2009 passed by the Res. No.1 and directing the Res. no.1 to 3 to consider the case of the petitioner under the policy dtd 29/6/1988 and issue Concession rate plot in favour of the petitioner at Gandhinagar immediately.”
2. In support of the aforesaid prayer, the petitioner has narrated below mentioned facts:-
2.1 It is claimed that in August-1976, the petitioner was appointed as daily wage clerk in the Road & Building Department, i.e. respondent No.1.
2.2 It is further claimed that subsequently, w.e.f. August-1982, his service was converted into work charge clerk vide order dated 3.3.1999 and then w.e.f. 2.2.2001, the service of the petitioner was designated as temporary swagat clerk.
2.3 The petitioner has claimed that somewhere in June-1988, the Government had introduced a scheme for allotment of plots to the employees at concessional rate. According to Clause 2.3(d) of the said GR under which the scheme came to be introduced, a person, who had completed service of 5 years' as Government employee on date of application and who is not allotted any plot in his name or in the name of his spouse or dependents was considered eligible for allotment of plot under the said scheme.
2.4 The petitioner himself has admitted that he had not applied for allotment of plot within the time limit for making application. At the relevant time, he did not apply because his service was not regularized when the scheme was introduced and was in operation. The petitioner also admitted that he made the application for allotment of plot for the first time vide his application dated 4.3.1999 i.e. after his service was regularized vide order dated 3.3.1999.
2.5 The petitioner, however, claimed that since the effect of regularization was granted from 21.8.1982, he was entitled for allotment of plot at concessional rate, in light of the GR dated 29.6.1988. The petitioner's application was considered by the competent authority and vide communication/order dated 7.12.2009, the application came to be rejected. The petitioner did not challenge the said order (and until now the said order is not challenged).
The petitioner appears to have again made request vide letter dated 5.2.2010 claiming that since the said GR dated 29.6.1988 is still in existence, his application may be considered sympathetically, however, his request was again rejected by the respondent authorities vide order dated 8.3.2010.
3. Learned advocate for the petitioner has submitted that if the petitioner's service had been regularized earlier, then, the petitioner would have been entitled for allotment of plot at relevant time, however, only because of delay in regularizing the service of the petitioner, the petitioner was not able to make application for allotment of plot and that therefore, now, after regularization of his service, when he made application for allotment of plot, the same ought not have been rejected.
Learned advocate for the petitioner, in support of his said submission, has relied on the judgment of the Division Bench dated 6.7.2011 in Letters Patent Appeal No.1066 of 2010.
Except the aforesaid contention, any other contention has not been raised.
4. The respondents have resisted the petition and contended that the petitioner is not entitled for allotment of plot. In the reply affidavit dated 20.8.2011, the respondents have stated that:-
“5. I say and submit that, at the outset the petition is required to be dismissed only on the ground of “delay and laches”. The petitioner has prayed to consider his case for allotment to plot at concession rate as per Policy dated “29.06.1988”, in the year 2011. The present petition is bared by delay.
6. I say and submit that, the petitioner was appointed as “Rojamdar” in the year 1977, with his date of joining as 20.08.1977, with the respondent No.2 office. It is pertinent to note that, petitioner was granted the benefit of Government Resolution dated 17.10.1988 of R & B department w.e.f. 01.10.1988.
7. I say and submit that, since the petitioner has completed 10 years of service as “Rojamdar” on 01.10.1988, the petitioner was granted pay of Rs.750 from 01.10.1988 as per Government Resolution dated 17.10.1988.
8. I say and submit that, petitioner was granted pay of Rs.750/-, from 01.10.1988 as “Rojamdar-Telephone Receptionist”. It is pertinent to note that, the pay of petitioner was then increased to Rs.950/- as “Telephone Receptionist”.
9. I say and submit that, petitioner was granted benefit of Government Resolution dated 01.08.1986 and he was shifted from “Rojamdar” to “Work Charge Establishment”. It is pertinent to note that, petitioner was appointed as “Work Charge” Swagat clerk vide office order dated 24.02.1999.
10. I say and submit that, as the post of “Temporary Swagat Clerk” was created in the office of respondent No.2 and the post of “Work Charge Swagat Clerk” was merged into it. The petitioner was appointed as “Temporary Swagat Clerk” vide office order dated 08.02.2001.
11. I say and submit that, as far as pay of the petitioner is concerned, he was granted increase in pay from the date he completed 5 years in service i.e. from 21.08.1982. It is sufficient to say that, these would not mean that petitioner was appointed as “Temporary Swagat Clerk” from 21.08.1982.
12. I say and submit that, thus the petitioner was appointed as “Temporary Swagat Clerk” from 08.02.2001. A copy of his service book is annexed herewith and marked as ANNEXURE-R-I to this Affidavit in Reply.
13. I say and submit that, as per the Resolution dated 29.06.1988 is concerned, it was applicable only to those “regular” employee who has completed 5 years of service. It is pertinent to note that, the petitioner was “Rojamdar” as on date of Resolution i.e. 29.06.1988 and thus he was not entitled.
14. I say and submit that, the petitioner has raised a contention that he was applied for allotment of plot on 04.03.1999 which was never decided. It is pertinent to note that, the petitioner had not raised these grievance before any authority till filing of the present petition, thus he can not raise these grievance after almost 11 years.
15. I say and submit that, petitioner had made an application on 18.11.2009, before the respondent authorities for allotment of plot as per the Resolution dated 29.06.1988. It is pertinent to note that, the application of the petitioner was rejected by an order dated 07.12.2009. The aforesaid order is never challenged before any Appellate Authority or any Court till today, not even in this petition also. Copies of the Application dated 18.11.2009 and order passed therein dated 07.12.2009 are annexed herewith and marked as ANNEXURE-R-II (COLLY.) to this Affidavit in Reply.
16. I say and submit that, petitioner made an Application dated 05.02.2010 to reconsider his case, since the earlier application was already rejected, the State authority has rejected his application for reconsider, vide an order dated 08.03.2010.A copy of the order dated 08.03.2010 is annexed herewith and marked as ANNEXURE- R-III to this Affidavit in Reply.
It is pertinent to note that, the application is rejected on the ground of delay and on the ground that the policy by Resolution dated 29.06.1988 as not in existence.”
5. It is pertinent to note that the respondent authorities have contended that the petitioner's earlier application could not be considered because of delay and laches and also for the reason that the policy which was introduced vide GR dated 29.6.1988, was not in existence. According to the respondent's affidavit, at the time when the petitioner submitted his application, the policy was not in existence and that therefore, the request could not be accepted by the competent authority.
The policy was introduced in June 1988 while the petitioner submitted application for the first time in March 1999 i.e. after delay of almost 11 years. Thus, the inordinate delay defeated (and it still defeats) the petitioner's claim and application.
6. Furthermore, not only in 1988 when the policy/scheme was introduced, but even in 1999, the petitioner was a “Work Charge” employee and not a permanent/regular Government employee. Whereas according to the said GR, the eligibility condition/requirement was atleast 5 years' service as permanent/regular Government servant. Thus, only permanent/regular employee and that too those permanent employees who had completed service for 5 years as permanent employee were eligible and entitled to apply. As against the said condition/requirement, the petitioner was not even born on the date of policy in the cadre of regular/permanent Government employee. Not only this, but even on the date on which the petitioner tendered the application in March, 1999 he was merely a “work charge” employee and not a regular/permanent Government employee.
Thus, even on the date of application, the petitioner did not fulfill the requisite condition. According to the said provision also, the petitioner, as per the respondent, was not eligible for allotment or to even submit his application. He did not fulfill the prescribed eligibility criterion. This is second reason in view of which no fault can be found with the decision.
6.1 It is not in dispute that vide letter dated 7.12.2009, the petitioner was informed the reason for not entertaining and granting the request.
It is also not in dispute that the petitioner never challenged the said order dated 7.12.2009 and accepted the said decision. This is third reason in view of which it is not possible to accept the petition.
Therefore, now, after 1 ½ years, the petitioner cannot reopen the said issue and challenge the decision on the pretext of the reply dated 8.3.2010.
6.2 The said reply dated 8.3.2010 merely reiterates the decision dated 7.12.2009, however, the petitioner has now preferred the petition on the basis of the letter dated 8.3.2010 as if it is a fresh - “first-time-decision” - decision taken on his application. A petition which, in effect and in substance, challenges decision dated 7.12.2009, does not deserve to be entertained.
6.3 Thus, in view of the aforesaid two vital factual aspects, which are raised by the respondent, the decision dated 7.12.2009 – which came to be reiterated on 8.3.2010 – cannot be said to be arbitrary or unreasonable and therefore, it cannot be faulted.
7. The facts of the petitioner in the matter on which reliance is placed by present petitioner, i.e. of the petitioner in the Letters Patent Appeal No.1066 of 2010 between Ms. Shiela Lilian Benjamin v. State of Gujarat & Ors. decided on 6.7.2011, is different than the facts of present case. Thus, the said decision would not help the petitioner.
8. In view of the facts and circumstances discussed above, it is not possible for this Court to direct the respondent authorities to consider the petitioner's application and to allow him plot as per the erstwhile policy. On the said limited ground, present petition cannot succeed. The petition fails and therefore, it is rejected. Notice is discharged. No costs.
(K.M.Thaker, J.) kdc