State of Gujarat vs Ranchhodbhai Ramjibhai Nakum

Jayant Patel, J.—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:

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.

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.

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:

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 AG Ps.

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:

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 there from.

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.