Prahladbhai Manilal Parmar and Others vs State of Gujarat and Others

G.B. Shah, J.—We have heard learned Counsel Mr. B.S. Brambhatt for the Appellants and learned Assistant Government Pleader Mr. N.J. Shah for the Respondents.

Being aggrieved and dissatisfied with the order passed by the learned Single Judge dated 9.9.2010 in Special Civil Application No. 10806 of 2010, the Appellants have preferred this Letters Patent Appeal on the grounds stated in the memo of appeal.

Brief facts of the present Appeal are that the Appellants are serving as Class-IV employees under Respondent No. 2, i.e. Road and Building Design Circle Gandhinagar and have filed a writ petition seeking direction against the Respondents to allot plot at Gandhinagar at concessional rate under the policy of the State Government. According to the case of the Appellants, their post of Class-IV employees under the Respondent No. 2 is a Non-Transferable post and they are entitled to plots at Gandhinagar at concessional rate in light of the Government Resolution dated 27.12.2001. As per the case of the Respondents, the case of the Appellants is governed under the Government Resolution dated 4.4.2001 as the post in question on which the Appellants are serving is a Transferable post. Therefore, the main dispute in this case is whether Class-IV post on which the Appellants are serving is Transferable or Non-Transferable ?

As referred above, this Letters Patent Appeal has been filed by the Appellants challenging order dated 9.9.2010 passed by the learned Single Judge in Special Civil Application No. 10806 of 2010. Referring to the record and proceedings of this Letters Patent Appeal, it appears that earlier on the same issue/point, the present Appellants had preferred Special Civil Application No. 12559 of 2009, in which the learned Single Judge had passed order dated 2.2.2010. Paragraph Nos. 2 and 3 of the above-referred order dated 2.2.2010 read as under:

It is the case on behalf of the Petitioners that as such, the post on which the respective Petitioners are serving under the Respondent No. 2 is a non-transferable post and therefore, they are entitled to the plot at Gandhinagar at concessional rate in light of the Government Resolution dated 27.12.2001. On the other hand, it is the case on behalf of Respondents that the case of the Petitioners shall be governed by Government Resolution dated 4.4.2001 as post in question on which the respective Petitioners are serving is a transferable post. Thus, there is a dispute whether the post on which the respective Petitioners are serving is transferable post or a non-transferable post and it is reported that Secretary, Road & Building Department, State of Gujarat is the Competent Authority to take an appropriate decision whether post in question on which the respective Petitioners are serving is a non-transferable post or a transferable post. If it is found that post on which the respective Petitioners are serving is a non-transferable post in that case the respective Petitioners shall be governed by the Government Resolution dated 27.12.2001 otherwise they shall be governed by the Government Resolution dated 4.4.2001 and their cases are required to consider accordingly in light of the Government Resolution dated 4.4.2001.

In that view of the matter, let the respective Petitioners submit and appropriate representations along with supporting documents before the Secretary, Road & Building Department, State of Gujarat within a period of 4 (four) weeks from today in support of their contention that the post in question on which the respective Petitioners are serving under the Respondent No. 2 is a non-transferable post and let the Secretary, Road and Building Department, State of Gujarat consider the same and pass an appropriate speaking order in accordance with law and on merits whether the post in question on which the respective Petitioners are serving under the Respondent No. 2 as a non-transferable post or transferable post and such a decision shall be taken within a period of 8 (eight) weeks from the date of receipt of such representation and communicate the outcome of the same to the respective Petitioners within a period of 2 (two) weeks thereafter. If it is found that the post in question on which the respective Petitioners are serving under the Respondent No. 2 is non-transferable post, concerned Respondents are directed to consider the case of the respective Petitioners for allotment of the plot at Gandhinagar at concessional rate in light of the Government Resolution dated 27.12.2001 otherwise, if it is found that the post on which the respective Petitioners are serving under the Respondent No. 2 is transferable post, in that case, cases of the respective Petitioners for allotment of the land shall be considered in light of the Government Resolution dated 4.4.2001. However, it is observed that this Court has not expressed any opinion on merits in favour of either parties.

The learned Counsel for the Appellants has then submitted that pursuant to above-referred order dated 2.2.2010 in Special Civil Application No. 12559 of 2009, a detailed representation was submitted by the Appellants on 2.3.2010, stating that they are Class-IV employees and serving under the same office right from the beginning situated at Gandhinagar and the Appellants had not been transferred at any point of time but, without considering a single ground as well as without dealing with each submission of the representation, the request of concessional rate plot was rejected on 10.5.2010. Hence, the present Appellants have preferred Special Civil Application No. 10806 of 2010 seeking the relief to quash and set aside above-referred order dated 10.5.2010 passed by Respondent No. 1. The learned Single Judge has disposed of said Special Civil Application No. 10806 of 2010 by order dated 9.9.2010, holding that the decision taken by the Respondent authority is just and proper. It is this order which is under challenge by the Appellants before this Court.

The learned Counsel for the Appellants has mainly urged that the learned Single Judge has failed to consider that once the Government had already issued policy that none of the Appellants is transferred to any of the office as well as in the Recruitment Rules, the post of Class-IV employee has not been shown as Transferable in nature and therefore, the order referred above passed by the learned Single Judge is required to be set aside.

The learned Counsel for the Appellants has then submitted that Class-IV employees are Non-Transferable and considering the said aspect, number of plots on concessional rate had been given by the Respondents and therefore, once the job of the Appellants is proved as Non-Transferable in nature, the Appellants are entitled for the benefits granted earlier to the other similarly situated employees and this important aspect ought to have been considered by the learned Single Judge.

We have gone through the record and proceedings of this Letters Patent Appeal. In light of order dated 2.2.2010 passed in Special Civil Application No. 12559 of 2009, reasoned order dated 10.5.2010 was passed. Said order dated 10.5.2010 is at pages Nos. 10 to 13. It was held that the services of the Appellants in the office of the Superintending Engineer, Design (Roads & Buildings) Circle, Gandhinagar is Transferable and hence, their application for grant of plot at concessional rate is not acceptable. It is pertinent to note that in the affidavit of Mr. S.K. Patel, Superintending Engineer dated 30.3.2011, he had specifically averred that in the set up of Design (R & B) Circle, Gandhinagar, no person, like that of the Appellants, has been allotted plot. In the said affidavit, it has also been averred that Shri P.R. Machantar, Peon under N.H. Division, Ahmedabad office had been transferred to Design (Roads and Buildings) Circle, Gandhinagar and the same person has been transferred to the office of the Superintending Engineer City (Roads and Buildings) Circle Ahmedabad. In the affidavit-in-rejoinder dated 6.4.2011, the Appellants have contended that as per their knowledge, to maintain the discipline and decorum of the office, Shri P.R. Machantar was transferred and in absence of transfer order and as Mr. P.R. Pachantar is not a party before this Hon''ble Court, the said aspect be discarded and requested not to be considered.

We have carefully perused the record and proceedings of this Letters Patent Appeal and the orders respectively dated 26.6.2002 and 9.2.2009 related to Shri P.R. Machantar, which are at pages Nos. 137 and 139 and both the said documents have also supported the above-referred grounds made by the Respondents in their affidavit and we find ourselves in agreement with the same. The learned Single Judge has observed in para 3 of his order dated 9.9.2010 passed in Special Civil Application No. 10806 of 2010, that the Appellants/Petitioners are not holding Non-Transferable post and we are in agreement with the same. The observations made in para 3 of the above-referred order read as under:

3.0 Considering the case of the Petitioners, the Respondent authority has found that the Petitioner is not holding the post of Non-Transferable Class IV employees. However, endevaour is made by learned advocate for the Petitioner that such benefits are granted to other Class IV employees who are working under other Departments. The Petitioner is not holding non transferable post. It is a policy for the welfare of the Class IV employees that they may not be transferred out of their office. The Petitioner is not transferred but it will not amount that his post is non-transferable post. The decision taken by the Respondent authority is just and proper. The petition is summarily rejected.

We have carefully perused the entire record and proceedings along with the documentary evidence forthcoming on the record. After considering the representation made by the Appellants, the request for concessional rate plot was rejected on 10.5.2010. Nothing has been produced by the Appellants to show that in the Recruitment Rules, the post of Class-IV employee has not been shown as Transferable in nature. We do not find any illegality or infirmity either in order dated 10.5.2010 passed by the Under Secretary or in order passed by the learned Single Judge dated 9.9.2010.

For the aforesaid reasons, this Letters Patent Appeal is devoid of merits and is accordingly dismissed.

Since the main Appeal is dismissed, Civil Application does not survive. The Civil Application is disposed of. Rule is discharged.