Gujarat High Court Case Information System
Print
LPA/2530/2010 13/ 13 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS
PATENT APPEAL No. 2530 of 2010
In
MISC.CIVIL APPLICATION No. 1607 of 2008
To
LETTERS
PATENT APPEAL No. 2568 of 2010
In
MISC.CIVIL APPLICATION No. 1645 of 2008
For
Approval and Signature:
HONOURABLE
MR.JUSTICE JAYANT PATEL
HONOURABLE
MR.JUSTICE J.C.UPADHYAYA
=========================================================
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 ?
=========================================================
STATE
OF GUJARAT - Appellant(s)
Versus
RANCHHODBHAI
RAMJIBHAI NAKUM - Respondent(s)
=========================================================
Appearance
:
MR
NJ SHAH AND MR NIRAG PATHAK, AGPs for the Appellant.
MR SHALIN
MEHTA WITH MS VIDHI J BHATT for the
Respondent.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE JAYANT PATEL
and
HONOURABLE
MR.JUSTICE J.C.UPADHYAYA
Date
: 08/02/2011
COMMON
ORAL JUDGMENT
(Per
: HONOURABLE MR.JUSTICE JAYANT PATEL)
All
the Appeals are admitted. Ms.Vidhi Bhatt waives service of notice of
admission on behalf of the concerned workmen – original
petitioners.
With
the consent of the learned advocates appearing for both the sides,
the matters are finally heard.
As
in all these matters, common order and common question arise for
consideration, they are being considered by this common judgment.
The
present Appeals arise against the order dated 22nd October
2007 passed by the learned Single Judge of this Court in Civil
Application No.13755/2007 in Special Civil Application No.22301/2007
as well as the order dated 16th May 2008 passed by the
learned Single Judge in Misc. Civil Application No.1607/2008 in
Special Civil Application No.22301/2007 to Misc. Civil Application
No.1645/2008 in Special Civil Application No.22339/2007.
The
relevant facts are that the petitioners who were working as
Work-charge Technical Assistant preferred Special Civil Applications
before this Court for the relief, inter alia, as under :-
“(a)
the Hon’ble Court may be pleased to issue a writ of mandamus or any
other appropriate order or direction directing the respondent to
consider the case of Temporary Technical Assistant in view of the
Circular dated 16th August 1973;
(b)
the Hon’ble Court may be pleased to issue a writ, order or direction
directing the respondent to consider the case of the petitioners for
the post of Temporary Technical Assistant with effect from completion
of five years from the date of joining of each petitioners;
(c)
pending admission, hearing and final disposal of this petition, the
Hon’ble Court may be pleased to restrain the respondent from changing
the service conditions of the present petitioners;
(d)
such other and further relief/s as the Hon’ble Court may deem just
and proper in the facts and circumstances of the case may please be
granted to the petitioners.”
The
basis of the petition was that the benefit as per the Government
Resolution upon completion of period of five years could have been
given to the petitioners by converting the post of Work-charge
Technical Assistant to Temporary Technical Assistant since all the
petitioners as per them have completed period of more than five years
but as the posts were not created so as to give them the benefit,
therefore, the petitions were preferred.
It
appears that initially one petition was filed being Special Civil
Application No.22301/2007, which came to be considered by the learned
Single Judge and in the said petition Civil Application for interim
direction being Civil Application No.13755/2007 was preferred. The
learned Single Judge passed the following order, the relevant part of
which is at paragraphs 6, 7 and 8 :-
“6.
Therefore, just to remove the doubt and clear the apprehension of the
petitioners, it is directed to the
respondents to pass appropriate orders by concerned Zonal Office
extending the benefit of Government Resolution dated 16th
August 1973 in favour of petitioners while considering the date of
joining of each petitioners and after completion of five years as a
work charge technical assistant, the benefit of ‘Hangami’ work charge
assistant is to be extended in their favour on the date on which they
have completed five years period and accordingly, further benefit is
to be extended as per Government Resolution dated 16th
August 1973.
7. Therefore,
in view of aforesaid clarification, no further order is required to
be passed by this Court. However, any error if it is made by
petitioner in cause title of the main petition, the same may be
carried out the amendment as per the prayer made in Para 9(b) and
that prayer 9(b) is granted.
8. The
aforesaid clarification is made by this Court today which is also
subject to final outcome of the main petition.”
Further,
at paragraph 11, the learned Single Judge observed thus :-
“11. The
present order is passed by this Court in present Civil Application
No.13755 of 2007. The separate petitions were filed for each
petitioners, but, Civil Application is filed for only one applicant –
petitioner. Therefore, applicants shall have to file separate one
page civil applications for each petitioners. The registry are
directed to accept it and signatures of the applicants, affidavits,
list of events, index, vakalatnama are dispensed with, but, court
fees shall have to pay by applicants in respect to one page civil
applications. This one page Civil Applications are to be filed on or
before 29th October 2007 and the same are to be served to
learned AGPs.”
It
appears that it is on account of the aforesaid observation at
paragraph 11 of the order, separate Special Civil Applications came
to be filed being Special Civil Application Nos.22302/2007 to
22339/2007.
As
per the aforesaid direction at paragraph 6 of the order, the learned
Single Judge directed the respondent to pass appropriate orders as
per Government Resolution dated 16th August 1973 in favour
of the petitioners from the date on which they completed five years
of service and to extend the benefit accordingly. The pertinent
aspect is that the prayers were also permitted to be amended
accordingly as per aforesaid paragraph 7 of the order. Thereafter,
further applications for clarification were preferred being Misc.
Civil Application No.1607/2008 in Special Civil Application
No.22301/2007 to Misc. Civil Application No.1645/2008 in Special
Civil Application No.22339/2007. In the said Misc. Civil Applications
the learned Single Judge, considering the earlier order dated 22nd
October 2007 made in Civil Application No.13755/2007, issued the
following direction at paragraph 8 :-
“8.
The aforesaid clarification is made by this Court today which is also
subject to final outcome of the main petition.”
Therefore,
in light of the aforesaid background, the original respondent –
appellant herein is directed to implement the order passed by the
learned Single Judge in Civil Application No.13755/2007 in Special
Civil Application No.22301/2007 dated 22nd October 2007 as
early as possible and it was further directed to grant the benefit
accordingly to the petitioners. It is on account of the aforesaid
fact situation, the present Appeals before us.
We
have heard Mr.Shah, learned AGP for the appellant and Mr.Shalin Mehta
with Ms.Bhatt for the respondent – original petitioners.
Two
aspects are mainly required to be taken into consideration: (1)
whether the interim direction could be granted by the learned Single
Judge, which practically results into allowing the petition; and (2)
whether the benefit could be conferred by interim direction from the
period at which there was no existence of any post of Temporary
Technical Assistant.
On
the first point, no further discussion would be required since it is
by now well-settled that in normal situation no interim order can be
passed, which results into allowing the petition. If the main prayers
of the petitions are considered they are for issuance of appropriate
writ, order or direction to the respondent to consider the case of
the present petitioners for the post of Temporary Technical Assistant
in view of the Circular dated 16th August 1973 and the
another prayer is to issue appropriate writ, order or direction to
the respondent to consider the case of the petitioners for the post
of Temporary Technical Assistant with effect from the date of
completion of five years in service of each petitioners. The interim
prayer as prayed for in the petition was to restrain the respondents
from changing the service condition of the petitioners.
As
such, if the matter is to be considered in compass of the interim
prayer made, it can be said that the learned Single Judge considered
the matter which was not even prayed in the petition. Further, even
if it is considered that by virtue of the amended prayer vide order
dated 22nd October 2007 then also grant of interim prayer,
which practically resulted into allowing the petition could not be
countenanced.
Another
aspect is that in the present Letters Patent Appeal, it has already
been stated at paragraph 3.4 in the grounds of the Letters Patent
Appeal that the department has already converted total 55 posts of
Work-charge Technical Assistant into Temporary Technical Assistant as
per the direction of this Court. Moreover, the aspect mentioned in
the memo of the appeal at paragraph 3.5 is that in the meeting with
the Union held on 31st December 1997, the benefit was
claimed only from the date on which the posts of Work-charge
Technical Assistant were converted into Temporary Technical Assistant
and not retrospectively.
Mr.Mehta,
learned counsel appearing for the original petitioners did contend
that the original petitioners who were not party to the said meeting
and, therefore, it would not bind the original petitioners. But, in
our view, in normal circumstances no benefit would flow even as that
of Temporary Technical Assistant unless and until the posts are so
created for such purpose. Therefore, if the posts are created of
Temporary Technical Assistant, one might claim the benefit but such
situation would arise after the creation of posts for the prospective
period and it cannot relate back with retrospective effect touching
to the period at which there were no existence of the posts.
We
may say that even if the resolution of the Government is considered
for forwarding the proposal for creation of posts of Temporary
Technical Assistant if the posts of Work-charge Technical Assistant
have continued for a long time exceeding five years, it cannot be
said that there will be automatic creation of posts upon the expiry
of the period of five years and the benefit would flow therefrom.
We
make it clear that the aforesaid are the prima facie observations for
the purpose of examining the legality and validity of the impugned
orders. But, ultimately, what will be the real effect of the
resolution of the Government and whether the Court can exercise the
power by way of mandatory direction to the Government to create posts
or not, are the aspects which may be required to be examined in the
main Special Civil Application at the time of final hearing. Suffice
it to say that at the time of passing interim order if there was no
existence of post, the benefit could not be ordered as observed and
directed in the impugned orders.
In
view of the aforesaid observations and discussion, we find that the
orders passed by the learned Single Judge in so far as giving
directions to extend the benefit to all the original petitioners –
respondents herein upon completion of five years of their service as
Work-charge Technical Assistant cannot be sustained. However, as the
posts have already been created as recorded hereinabove, the benefit
so conferred after creation of the posts may continue until final
disposal of the main Special Civil Application and also subject to
the final decision which may be taken in the main Special Civil
Application. Hence, the impugned orders passed in the main Special
Civil Application by the learned Single Judge deserve to be modified
and shall stand modified to the aforesaid extent.
Letters
Patent Appeals are partly allowed to the aforesaid extent. No order
as to cost.
(Jayant
Patel, J.)
(J.C.Upadhyaya,
J.)
/moin
Top