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LPA/2978/2010 18/ 18 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS
PATENT APPEAL No. 2978 of 2010
In
SPECIAL
CIVIL APPLICATION No. 4381 of 2010
With
CIVIL
APPLICATION No. 15789 of 2010
In
LETTERS PATENT APPEAL No. 2978 of 2010
For
Approval and Signature:
HONOURABLE
MR.JUSTICE V. M. SAHAI
Sd/-
HONOURABLE
MR.JUSTICE G. B. SHAH
Sd/-
=========================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
Yes
2
To
be referred to the Reporter or not ?
Yes
3
Whether
their Lordships wish to see the fair copy of the judgment ?
NO
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 ?
NO
5
Whether
it is to be circulated to the civil judge ?
NO
=================================================
STATE
OF GUJARAT & 2 - Appellant(s)
Versus
KESHUBHAI
B RAVAL & 10 - Respondent(s)
=================================================
Appearance
:
Mr N J Shah, Asstt.Government
Pleader for Appellant(s) : 1 - 3.
MR TH SOMPURA for Respondent(s)
: 1 - 11.
=================================================
CORAM
:
HONOURABLE
MR.JUSTICE V. M. SAHAI
and
HONOURABLE
MR.JUSTICE G.B.SHAH
Date : 20/07/2011
CAV
JUDGMENT
(Per
: HONOURABLE MR.JUSTICE G.B.SHAH)
1. This
intra court Letters Patent Appeal has been preferred by the
appellant, State of Gujarat challenging the order dated 11.5.2010
passed by the learned Single Judge in Special Civil Application
No.4381 of 2010.
2. Heard
Mr N.J. Shah, learned AGP for the appellant and Mr T H Sompura,
learned counsel for the respondents. The facts of the case in brief
are as under:
The respondents – original
petitioners have joined the services as daily wagers with the
respondent No.2. They have passed SSC Examination. Different
Associations and Unions of Daily Wager workmen raised several demands
before the Government pursuant to which a one man Committee under the
Chairmanship of Shri Dolatbhai Parmar, the then Minister of Roads and
Buildings Department came to be appointed by the State Government.
In the year 1988, pursuant to the report submitted by the aforesaid
Committee a bi-partite agreement came to be entered into between the
Government and the various associations. By Resolution dated
17.10.1988 of the Government, a scheme for regularization of the
daily wagers according to their service came to be framed by the
Government and the daily wagers
were granted benefit of the said and were placed in the minimum pay
scale of Rs.750-940. Moreover, one of the demands of the daily
wagers and their Associations was to give pay scale of Class III
posts to those daily wagers who have passed SSC examination and were
working for a considerable long time. By another Resolution dated
1.5.1991, the Government reiterated that on completion of seven years
of service by the daily wagers who have passed SSC Examination, they
should be given clerical work on class III posts in the pay scale of
Rs.950-1500. By communications dated 7.1.1994 and 27.6.1994 it was
made clear that those who have completed seven years of service after
1.5.1991 and have passed SSC Examination should be paid pay scale of
Rs.950-1500. On 5.2.2001 representations were made by the respondents
with regard to fixations of their salary. Thereafter the respondents
filed Special Civil Application No.8302 of 2007 with 8303 of 2007 to
8314 of 2007 before the learned Single Judge. The learned Single
Judge, by order dated 29.3.2007 directed the appellant to consider
the case of the respondents as per Government Resolutions dated
1.5.1991, 7.1.1994 and 27.6.1994. It was also made clear by the
learned Single Judge that if the respondents were entitled to the
benefit as per the Government Resolutions, pay scale of Rs.950-1500
may be extended to them. It was also made clear in the order that
case of the similarly
situated 5000 permanent daily wagers where benefits were extended as
they had completed more than 7 years and had passed SSC also should
be considered. The appellants accepted and complied with the order of
the learned Single Judge and fixed the pay scale of the respondents
in the pay scale of Rs.950-1500 which is of class III employees as
per Government Order No.AHS/1107/SCA-8/p2 dated 24.8.2009 and
calculated the same from the date of the order i.e. 29.3.2007 without
paying arrears. The respondents being dissatisfied with the action
of the Government,
approached this court with a prayer to fix the respondents in the pay
scale of Rs.950-1500 corresponding pay scale of Rs.3050-4590 as per
5th Pay Commission and Rs.5200-20200 as per 6th Pay Commission
Recommendation to the respondents from the date of completion of
seven years of their service as daily wagers and to pay all
consequential benefits including arrears. The learned Single Judge
again directed the appellants to fix the pay scale of the
respondents-original petitioners in pay scale of Rs.950-1500
corresponding to pay scale of the 5th and 6th Pay Commission from the
date of completion of seven years of their service as per the
letters/instructions dated 7.1.1994 and 27.6.1994 and to pay all
consequential benefits including arrears within a period of two
months. The said order of the learned Single Judge is challenged in
this Letters Patent Appeal.
3. Learned
A.G.P, Mr N J Shah has submitted that the Government Resolution dated
1.5.1991 has been issued by the Roads and Buildings department for
their employees and it is not clear from the said Government
Resolution dated 1.5.1991 that whether it is applicable or not
applicable to the Agriculture and Cooperative Department. In fact,
no scheme has been framed by the department in connection with the
said Government Resolution. Likewise, the letters dated 7.1.1994 and
27.6.1994 are not instructions but it was written by the Roads and
Building department
which are internal correspondence and it is nothing but an opinion
only. He has then submitted that after the order dated 29.3.2007
passed by the learned Single Judge in Special Civil Application
No.8302 of 2007 with 8303 to 8314 of 2007 and in compliance of the
same, a Government Order No. AHS/1107/SCA-8/P2 dated 24.8.2009 was
passed and the department had followed the same and passed an order
No. Prasa/Rojamdar/2007/1(21)/14859-88/2009 dated 19.9.2009. On
perusal of Government Resolution dated 1.5.1991, it is clear that the
daily wagers are entitled to the pay scale from the date of allotment
of the work of Class III cadre and as the work has been allotted to
the respondents from the date of the order of payment thereof,
prior to the appointment is contrary to the Resolution dated 1.5.1991
itself and as such the respondents are not entitled to the pay scale
for which they have not worked at all. He has finally submitted that
the appellants have complied with the earlier directions given by the
learned Single Judge and fixed the respondents in the pay scale of
Rs.950-1500 and calculated the same with effect from 29.3.2007 which
is the date of order and hence the question of paying the arrears for
the period the respondents have not worked does not arise and
accordingly this appeal deserves to be allowed.
3.1. The relevant portion
of order dated 29.3.2007 passed by the learned Single Judge in
Special Civil Applications No. 8302 of 2007 with 8303 of 2007 to 8314
of 2007 reads as under:
“In
view of the aforesaid facts, it is directed to the respondent to
consider the case of the petitioners whether they are entitled for
the benefit of Government Resolution dated 1/5/1991 as clarified on
7/1/1994 and 27/6/1994 or not, and whether similar situated other
employees those who are working as Daily wager completed more then 7
years and SCC pass where extend the benefit of pay scale of Rs. 950 –
1500 or not and then to examine the grievance of the petitioners
accordingly and pass appropriate reasoned order in accordance with
law within a period of three months from the date of receiving the
copy of this order and communicate
the decision immediately to the petitioners.
However, it
is made cleared that if the grievance of the petitioners found to be
genuine and according to the respondent, petitioners are entitled for
the benefit of pay scale of Rs. 950 – 1500, then same may be
extended in their favour.
However, it
is also made cleared that in case if respondent State Government has
found on record that similarly situated other 5000 Daily wager, where
benefits were extended by the respondent, those who are working as
Daily wager and completed more than 7 years and SCC pass then the
case of the petitioners to be considered and found to be genuine then
State Government may extended the benefit accordingly in their
favour.
In view of
the above observations and directions, present petitions are disposed
of without expressing any opinion on merits.
However, in
case if ultimate decision is adverse to the petitioners, it is open
for the petitioners to challenge the same before appropriate forum in
accordance with law.”
4. Learned counsel Mr T H
Sompura appearing for the respondents submitted that as per
Government Resolution dated 17.10.1988
the scheme for regularization of the daily wagers according to their
period of service came to be framed and the respondents were placed
in the pay scale of Rs.750-940. As per the Government Resolution
dated 1.5.1991 and the subsequent communications dated 7.1.1994 and
27.6.1994, on completion of seven years the daily wagers who have
passed SSC examination were entitled to clerical work on post of
class III and should be given pay scale of Rs.950-1500. He has
submitted that it is amply clear from the said Government Resolutions
that the Government has categorically decided to grant the pay scale
of Rs.950-1500 to those permanent daily wagers who have passed SSC
examination irrespective of whether they are given appointment on
Class III posts or not and accordingly more than 5000 daily wagers of
the above category
are entitled to the said pay scale. The learned counsel has further
submitted that the Government accepted the order of the learned
Single Judge by fixing pay scales of the respondents with effect from
29.3.2007 which is the date of the order without paying arrears. As
arrears have not been paid by the department from the date on which
the daily wagers have completed seven years of their service, they
have again approached the learned Single Judge and the learned Single
Judge has specifically given direction that the respondents have to
be paid all consequential and incidental benefits including arrears
within a period of two months from the date of receiving copy of the
order. He has vehemently argued that the order passed by the learned
Single Judge has not been complied with by the appellants in its true
spirit and that the respondents are entitled to arrears from the date
they completed seven years of service as daily wagers.
5. The
Government had issued Government Resolution dated 17.10.1988 wherein
the claim for regularization of the daily wagers according to their
period of service came to be framed. As per the say of the
respondents, they were granted benefit of Government Resolution dated
17.10.1988 and were placed in the minimum pay scale of Rs. 750-990.
At that point of time it was also the demand of the daily wagers and
their Associations to give pay scale of Class III posts to those
daily wagers who have passed SSC Examination and were working for
considerably a long time. The said demand was also accepted by the
Government. The learned counsel for the respondents has submitted
that merely by placing reliance on the Government Resolution dated
17.10.1988 and the scheme for regularization of the daily wagers
according to their period of service referred to above this Appeal
can be straightaway dismissed as nothing further is required to be
considered.
6. Learned
AGP has drawn our attention to para 19 (A) and (B) of Special Civil
Application No.4381 of 2010 and submitted that no prayer has been
made by the respondents/original petitioners to the said effect. The
said prayer made in para 19 (A) and (B) reads as under:
“19. …(A) Be
pleased to issue a writ of mandamus or a writ in the nature of
mandamus or any other appropriate writ, order or direction, directing
the respondents to fix the pay scale of Rs.950-1500 (corresponding
pay scale of Rs.3050-4590 in 5th Pay Commission and Rs.5200-20200 in
6th Pay Commission) to the petitioners from the date of completion of
seven years of their service and to pay all the consequential and
incidental benefits flowing therefrom including the arrears,
forthwith.
(B) Pending hearing,
admission and final disposal of this petition, be pleased to direct
the respondents to fix the pay scale of Rs.950-1500 (corresponding
pay scale of Rs.3050-4590 in 5th Pay Commission and Rs.5200-20200 in
the 6th Pay Commission) to the petitioners from the date of
completion of seven years of their service.”
7. On the above issue,
learned counsel for the respondents has drawn our attention to a
decision of the Full Bench in Roshanara Begum v. Union of
India and Others (AIR 1996 Delhi 206) in
which the Full Bench had followed the ratio
laid down in Ram Chand v. Union of India (1993 AIR SCW
3479) which reads as under:
“…The Supreme
Court itself has in the case of Ram Chand (1993 AIR SCW 3479) laid
down that instead of quashing the acquisition proceedings which have
been pending since long on the ground of inordinate delay which has
not been explained, the relief could be moulded by taking resort to
Article 32 of the Constitution and the Supreme Court also laid down
that High Court has the power under Article 226 of the Constitution
also to mould the relief in the similar manner. Thus, there is no
legal bar in this Court also moulding the relief in the similar
manner by taking resort to Article 226 of the Constitution as has
been done by the Supreme Court by taking resort to Article 32 of the
Constitution.”
Learned counsel for the
respondents has also relied upon a decision in U.P. State
Brassware Corporation Ltd. and Anr. v. Udai Narain Pandey AIR 2006
SC 586 (1) wherein it is held that moulding of relief is a
discretionary jurisdiction and it need not be conferred always by a
statute.
8. We have gone through the
above referred decisions and we find ourselves in complete agreement
with the ratio laid down in it as referred above. We find that the
same is not applicable to the case on hand because in the Special
Civil Application, though averments relating to to the scheme has
been made, no submission has been made by the learned counsel for the
respondents/original petitioners on that issue before the learned
Single Judge who had passed order dated 11.5.2010 in Special Civil
Application No. 4381 of 2010 as well as Special Civil Application
No.8302 of 2007 with 8303 of 2007 to 8314 of 2007 and accordingly the
learned Single has not touched that aspect. Moreover, it is
submitted by the learned AGP that no relief to that effect has been
sought for. Thus since the learned Single Judge has not touched that
issue, the question of moulding relief in this appeal, at this
stage, does not arise at all. He also submitted that the learned
counsel for the respondents has relied on Government Resolution dated
1.5.1991 and two communications dated 7.1.1994 and 27.6.1994 before
the learned Single Judge and accordingly the learned Single Judge has
considered the same. Hence we find no substance in the submissions
made by the learned counsel for the respondents that on placing
reliance only on the Government Resolution dated 17.10.1988 and the
scheme for regularization of the daily wagers according to their
service , straightaway this appeal should be dismissed.
9. The respondents/original
petitioners have approached this Court by way of Special Civil
Applications No.8302 of 2007 with Special Civil Application No.8303
to 8314 of 2007. The learned Single Judge, after hearing the
petitions, passed judgement dated 29.3.2007 and directed the
appellant/original respondents to consider the respondents’ case as
per Government Resolutions dated 1.5.1991 as clarified vide
communications dated 07.1.1994 and 27.6.1994 within three months from
the date of the said order. As such, the Government Resolution dated
1.5.1991 had been issued by the Roads and Building Department for
their employees and on referring the same, it is clear that the same
is not applicable to any other department as well as the Agriculture
and Cooperative Department. In compliance of the order dated
29.3.2007 passed by the learned Single Judge in the above referred
Special Civil Applications Nos.8302 of 2007 with 8303 of 2007 to 8314
of 2007, the appellants had issued a Government Order No.
AHS/1107/SCA-8/P2 dated 24.8.2009 and the department had followed the
same and had passed an order No.Prasa/Rojamdar/2007/1(21)/14859-88/09
dated 19.9.2009. The English translation of para 2 of the above
referred order dated 24.8.2009 which is in vernacular is as under:
“(2) As the above
mentioned orders are required to be passed pursuant to the judgment
dated 29.3.2007 of the Hon’ble High Court, its benefit shall be
admissible from the date of the judgment meaning thereby, orders
shall be issued to assign the duty to these 13 daily wagers from the
said date. No amount of arrears shall be required to be paid to them
towards this.”
9.1. The above referred
Government Order had been followed by the Department vide order dated
19.9.2009. The relevant portion of the said order which is also in
Vernacular, the English translation of the same reads as under:
“Pursuant to the
order of the Hon’ble Gujarat High Court, Ahmedabad of Preamble-I and
in connection with the letters as referred at sr.nos. 3 and 5 of the
Preamble of the Agriculture and Cooperation Department, Sachivalaya,
Gandhinagar, it has been stated that orders are required to be issued
to take the work of Clerks by granting pay scale of Rs.950-1500 to
total 13 permanent daily wagers who approached the Hon’ble Gujarat
High Court and who have passed SSC Examination and completed seven
years of service as per the Government Resolution No.
DRE-2191/12491/(43)/G (2) dated 1.5.1991 of the Roads and Building
Department, Sachivalaya, Gandhinagar. Therefore, the following total
12 permanent daily wagers of this department who have passed SSC
Examination and completed seven years of service, may be given the
pay scale of Rs.950-1500 with the effect from the judgment dated
29.3.2007 of the Hon’ble Gujarat High Court and they are assigned the
administrative work of clerical cadre of Class III. They shall also
have to perform the work as may be assigned by the Head of Office.
No amount of arrears shall be paid to them towards this.”
10. Thus it is clear that
while passing order, the appellants had mainly considered the order
dated 29.3.2007 passed by the learned Single Judge in Special Civil
Applications No.8302 of 2007 with 8303 of 2007 to 8314 of 2007 and as
per the said directions, the appellants had considered the Government
Resolution dated 1.5.1991. As per the Government Resolution dated
1.5.1991, benefit of the pay scale of Rs.950-1500 was to be granted
to the daily wagers who have completed seven years of service under
section 25-B of the Industrial Disputes Act and who have passed SSC
examination. Moreover, out of the said two criteria referred above,
the third criterion was entitlement of pay scale from the date on
which the daily wagers fulfilling the said two criteria are assigned
administrative work of Class III post. The type of administrative
work is narrated in the first para of the said Resolution dated
1.5.1991.
10.1. It is submitted by
the learned AGP that if the respondents are expecting and claiming
the benefits falling from the Government Resolution dated 1.5.1991,
then it is applicable to the respondents in its entirety. In the
case on hand, as the work has been allotted to the
respondents/original petitioners from the date of the order, payment
thereof prior to that appointment is contrary to the Government
Resolution itself and as such the respondents are not entitled to the
pay scale and any other benefits for which they have not worked at
all. The learned AGP has further submitted that in fact as per the
Government Resolution dated 1.5.1991, the respondents are entitled to
the benefit of pay scale from the date on which they are assigned the
administrative work as narrated in the Resolution. As discussed
above, it is clear that showing full respect to the order passed by
the High Court, benefit of the pay scale has been extended to the
respondents/original petitioners from 29.3.2007 which is the date of
the order which is just and proper.
11. Learned counsel for the
respondents has vehemently argued that there are more than 5000 daily
wagers who have passed SSC examination who have been granted pay
scale of Rs.950-1500 by different departments of the Government and
that aspect also should be considered as has been considered by the
learned Single Judge. It is important to note that though the
respondents have stated that more than 5000 daily wagers who have
passed SSC examination are there in the department, not a single
comparable incident is cited. Even if we presume that the said
averments are correct then also we are not inclined to consider the
same in light of the ratio laid down by the Apex Court in Fuljit
Kaur v State of Punjab (2010) 11 SCC 455 in para 11 which
reads as under:
“11. The
respondent cannot claim parity with D.S. Laungia in
view of the settled legal proposition that Article 14
of the Constitution of India does not envisage negative
equality. Article 14 is not meant to perpetuate illegality or fraud.
Article 14 of the Constitution has a positive concept. Equality is a
trite, which cannot be claimed in illegality and therefore, cannot be
enforced by a citizen or court in a negative manner. If an illegality
and irregularity has been committed in favour of an individual or a
group of individuals or a wrong order has been passed by a judicial
forum, others cannot invoke the jurisdiction of the higher or
superior court for repeating or multiplying the same irregularity or
illegality or for passing a wrong order. A wrong order/decision in
favour of any particular party does not entitle any other party to
claim the benefits on the basis of the wrong decision. Even otherwise
Article 14 cannot be stretched too far otherwise it would make
function of the administration impossible. (Vide
Coromandel Fertilizers Ltd. v. Union of India, Panchi Dev V. State of
Rajasthan and Shanti Sports Club v. Union of India.)”
In view of the ratio laid
down by the Apex Court in the above decision, in our view, there is
no substance in the above submissions made by the learned counsel for
the respondents/original petitioners.
12. Now the question to be
dealt with is whether the two communications at Annexure “D”
and “E” respectively dated 7.1.1994 at page No.27 and
communication dated 27.6.1994 at page 28 are Government Resolutions
or instructions as described and considered by the learned Single
Judge. Inviting our attention to the above mentioned two
communications, learned AGP has submitted that those communications
had been written by the officials of the Roads & Building
department clarifying the Government Resolution dated 1.5.1991 and it
is an internal correspondence which is nothing but an opinion and it
cannot be construed as part of Resolution or instructions. We find
force and substance in the submission of the learned AGP. It is well
settled legal position that subsequent instructions or communications
cannot override the effect of the Government Resolutions. Thus, in
our view, the above referred two letters at Annexure “D”
and “E” dated 1.7.1994 and 27.6.1994 are simply internal
communications in the form of opinion only and it cannot be said to
be a Government Resolution or instructions in general.
13. So
far as the directions given by the learned Single Judge is concerned,
except the direction with regard to payment of arrears, the remaining
directions were already complied with and accordingly as per order
dated 19.9.2009 at
page Nos. 42 to 44 has been passed and in our view, the same is just
and proper.
Perusal of order dated 19.9.2009 issued by the appellant department
shows that they have complied with the directions of the court and
the pay scale was given with effect from the date of order of the
learned Single Judge i.e. 29.3.2007. In our view, the appellant has
acted strictly in accordance with the Government Resolution
dated 1.5.1991. The Government Resolution clearly states that the
daily wagers who
have completed seven years of service and who have passed SSC
examination are entitled to pay scale of Rs.950-1500. It further
states that apart from the above two criteria, the entitlement of
this pay scale will be from the date on which they are assigned the
administrative work i.e. of Class III post. Once the directions
given by the learned Single Judge is complied with by the appellant
department and the same is as per the Government Resolution dated
1.5.1991, the respondents are not entitled to any arrears for the
period they were not assigned with any work of Class III post. In our
considered opinion, considering the peculiar facts of this case, the
appellant department is justified in taking the decision to implement
the pay scale to the respondents from the date on which they are
given the class III post.
14. In
the result, this Appeal is allowed. The order dated 11.5.2010
passed by the learned Single Judge in Special Civil Application
No.4381 of 2010 is set aside with no order as to costs.
CIVIL
APPLICATION NO. 15789 OF 2010
In
view of the order passed in the Appeal, Civil Application No. 15789
of 2010 stands disposed of. Rule is discharged.
[V
M SAHAI, J.]
[G
B SHAH, J.]
msp
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