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Judgment
Biren Vaishnav, J
Rule returnable forthwith. Ms. Surbhi Bhati, learned Assistant Government Pleader waives service of notice of Rule for the respondents.
With the consent of the learned advocates for the respective parties, both these petitions are taken up for final hearing today.
Heard Mr. Dharmesh V. Shah, learned counsel for the petitioners and Ms. Surbhi Bhati, learned Assistant Government Pleader for the respondents.
The case of the petitioners is that the petitioners are working as Work Assistants and, therefore, they are entitled to be absorbed in the Work Charge Establishment on completion of ten years of service with all consequential benefits.
Mr. Shah, learned counsel for the petitioners would rely on orders passed in similar matter by the coordinate Bench of this Court namely; SCA No.7323 of 2010 dated 25.6.2010 and SCA No.5676 of 2011 dated 28.4.2011. He further requested this Court to pass a similar order in these matters also. The order dated 28.4.2011 passed in SCA No.5676 of 2011 reads as under:
Heard learned advocate Mr.D.M.Devnani for petitioners and learned AGP Mr.A.L.Sharma for respondent No.1. 2. The brief facts of present petition emerging from list of events are as under :
On 21.9.1989, it is decided by the respondents to create new cadre of work assistant converting and consolidating post of Clerk, Mistry and Canal Inspector.
On 24.1.1990, the Work Assistant Recruitment Rules,1990 came into effect, wherein, it is provided that, Clerk, Mistry and Canal Inspector who have worked for more than 10 years continuously service as work charge karkoon shall be promoted as a work charge work assistant class-III. On 29.1.1990, the eligible candidates work as clerk, mistry and canal inspector may be appointed on the post of work assistant. Thereafter, respondents had given and extended the benefits of work charge in the year of 1998 to 2005 respectively, and given demand date to the petitioners as per Annexure-A to this petition.
As per Government Circular dated 29.1.1990 read with notification dated 5.10.2006, all the petitioners are eligible to get the benefits of Work Assistant after completion of 10 years of continuous service and ready to undergo training, are entitled to get the benefits of work assistant.
On 28.2.2011, the petitioners had made so many oral representations to the authority concerned for extending the said benefits of Work Assistant, more over the petitioners have sent a legal notice on dated 28.2.2011 to the respondent authority, but till date no reply or response given by the respondents.
On 2.4.2011, the other group of 100 employees, who are similarly situated to the present petitioners had approached to this Hon'ble Court by way of preferring SCA No.7323/2010, wherein this Hon'ble Court has been pleased to pass order on dated 25.6.2010 and directed to the respondent authority to consider the case of the employees for extending the benefits of work charge work assistant in favour of those employees as per notification dated 24.1.1990 and GR dated 29.1.1990 read with amendment circular dated 5.10.2006 within a period of two months. The petitioners state that, after passing the order by this Hon'ble Court, the respondent authority has considered the case of those employees, and passed office order No.85 of 2011 on dated 2.4.2011 and extended the benefits of work charge work assistant in favour of those employees.
Under the circumstances, present petition is preferred.
This Court has examined similar and identical question in SCA NO.7323/2010 decided on 25.6.2010 and made following observations :
“Heard learned advocates appearing on behalf of respective parties.
In this matter, the facts of present petition are that respondents have decided to create new cadre of Work Assistant converting and consolidating post of Clerk, Mistry and Canal Inspector by resolution dated 21st September 1989. On the basis of aforesaid resolution, State Government has made recruitment rules for the post of Work Assistant on 24th January 1990 which came into effect, wherein, it is provided that Clerk, Mistry and Canal Inspector who have worked for more than ten years continuous service as Work Charge Clerk shall be promoted as a Work Charge Work Assistant Class-III on condition to complete training of one year period. Accordingly, on 29th January 1990, it has been decided that from eligible candidates those who are working as Work Charge Clerk, Mistry and Canal Inspector may be appointed on the post of Work Assistant. Similarly benefits have been extended by respondent in favour of certain Work Charge employees those who have completed ten years service in the post of Clerk, Mistry and Canal Inspector. The respondents had given and extended the benefits of Work Charge in the year of 1999 and given deemed date of completion of ten years service to the petitioners - Annexure 'A'. Annexure 'A' is issued by Superintending Engineer, Narmada Project, Main Work Circle, Kevadiya Colony. This statement of 128 employees where their designation, date of birth, educational qualification and date on which they appointed in Work Charge Clerk and completion of ten years period have been specifically made clear that each employees from the list of 128 where name of petitioners are there have completed ten years period continuous service almost in the year of 1998-99, 2001-03, 2004 accordingly. Another list Page 22 for the post of Work Charge Telephone Operator, Technician, Time Keeper, Pump Operator, etc., have been prepared by said Authority and all the details are same and they have also completed ten years continue service and deemed date has been given by respondent authority. Therefore, learned advocate appearing for petitioners submitted that as per Government Circular dated 29th January 1990 read with Notification dated 5th October 2006, now, all the petitioners are eligible to get benefits of Work Assistant after completion of ten years continuous service and with undergo training as specified in Notification dated 5th October 2006 and they are entitled to get benefits in the post of Work Assistant. Therefore, a detailed representation has been made by some of the petitioners on 29th January 2010 Annexure 'F' Page 33 to Section Officer of Narmada Water Resources, Water Supply and Kalpasar Department. In the said representation, a request was made to the Authority by petitioners that on the basis of aforesaid notification and circular dated 29th January 1990 and 5th October 2006, they all are eligible for the said benefits, therefore, at least that benefit may be extended in their favour. Learned advocate for the petitioners submitted that more than four months have passed, no response and reply is given by respondents, therefore, present petition is filed claiming the benefits as per Circular dated 29th January 1990 and 5th October 2006.
I have heard learned advocates appearing on behalf or respective parties. I have also perused the petition along with all annexures which are annexed to the petition. The relevant portion of the notification dated 24th January 1990 is quoted as under:
“No.GJ-1/90/DCS/1089/3/G :- In exercise of the Powers conferred by the proviso to article 309 of the Constitution of India, the Government of Gujarat hereby makes the following rules to provide for regulating recruitment to the post of Work Assistant, Class III, in the subordinate service of the Water Resources Department, namely :-
These rules may be called the Work Assistant Recruitment Rules, 1990.
Appointment to the post of Work Assistant, Class – III in the subordinate service of the Water Resources Department shall be made either-
(a) by Promotion of a person of proved merit and efficiency from amongst the persons working as Karkoon, Mistry and Canal Inspector, who has put in atleast ten years continuous service on the said post in the Water Resources Department, or
(b) by direct selection.“
Similarly, this notification has been amended subsequently by State Government on Page 32 dated 5 th October 2006 which requires successful training, thereafter, they are entitled appointment in the post of Work Assistant from the post of Clerk, Mistry and Canal Inspector. This amendment has been made in Para 2(2). I have considered Annexure 'A' where petitioner has completed continuous service of ten years as a Work Charge Clerk, Telephone Operator, Technician, Pump Operator, Meter Reader, etc. Therefore, when the post of Clerk, Mistry and Canal Inspector has been upgraded in the post of Work Assistant and persons those who are working in the subordinate service in the post of Clerk, Mistry and Canal Inspector are entitled promotions in the post of Work Assistant subject to passing of successful training as per amendment made in Notification dated 5 th October 2006. Statement Annexure 'A' has been issued by respondents, therefore, there is no dispute from other side about the date of completion of ten years service of each petitioner.
In light of this background, similar benefits have been extended in favour of other subordinate staff those who were working in the post of Clerk, Mistry and Canal Inspector and same post has been converted in the post of Work Charge Work Assistant.
That order has been issued by respondent authority on 2nd March 2009 Page 40 Annexure 'H'. In the said order, the employees those who have completed ten years continuous service and after considering merits subject to passing successful training, their posts have been converted to Work Charge Work Assistant in the scale of Rs.4,000/- to R.6,000/-. Therefore, learned advocate for the petitioners submitted that in spite of representation received by other side, no decision is taken and petitioners those who have completed more than ten years continuous service since long remain without benefit of promotion as per Notification dated 24th January 1990.
In light of this background, it is directed to respondents authorities to consider the representation made by petitioners dated 29th January 2010 and extend the benefits of Work Charge Work Assistant in favour of petitioners as per Notification dated 24th January 1990 and Government Circular dated 29th January 1990 read with amended Circular dated 5th October 2006 within a period of two months from the date of receiving copy of present order and communicate the order of extending benefits in favour of each petitioners as early as possible.
In view of above observation and directions, present petition is accordingly disposed of.
Direct service is permitted.”
In pursuance to aforesaid order passed by this Court and representation made by those petitioners has been considered by respondent – State Government and issued office order No.85/2011 in favour of those petitioners which has been produced on record (Annexure-H, Page-137). In that office order, the order passed by this Court on 25.6.2010 has been considered.
Therefore, learned advocate Mr.Devnani for petitioners submitted that present petitioners are having identical and similar facts and circumstances and therefore, respondent may be directed to consider representation made by present petitioners on same line as directed by this Court in order dated 25.6.2010, as referred above.
In light of aforesaid background and order passed by this Court on 25.6.2010 in SCA No.7323/2010 is implemented by respondent – State Government, learned advocate for the petitioners submitted that in spite of legal notice / representation made by petitioners through advocate dated 28.2.2011 (Annexure-F, Page-126), which is received by other side but, no decision is taken and petitioners those who have completed more than 10 years' continuous service since long, remained without benefit of promotion as per notification dated 24.1.1990.
In light of this background, it is directed to respondent authorities to consider legal notice dated 28.2.2011 / representation made by petitioners through advocate and extend similar benefits to present petitioners as extended by respondent State authority as per office order No.85/2011 dated 2.4.2011 of work charge work assistant in favour of petitioners as per notification dated 24.1.1990 and Government Circular dated 29.1.1990 read with amended circular dated 5.10.2006, within a period of two months from date of receiving copy of present order and communicate the order of extending benefits in favour of each petitioner as early as possible.
In view of above observations and directions, present petition is disposed of accordingly. Direct service is permitted”
In view of above, the respondents are directed to consider and extend the benefits of Work Charge Assistants in favour of the petitioners as per Notification dated 24.1.1990 and Government Circular dated 29.1.1990 read with amended Circular dated 5.10.2006 in accordance with law considering their cases as referred to hereinabove within a period of eight weeks from the date of receipt of copy of this common judgment
The petitions are allowed in the aforesaid terms. Rule is made absolute to that extent. Direct Service is permitted. No costs.