AI Structured Summary
Not yet generated for this judgment
Judgment
Biren Vaishnav, J
Heard Mr. T.R. Mishra, learned advocate appearing for the petitioners and Mr. Premal Rachh, learned advocate appearing for respondent no. 2. Petitioner no. 3 has expired and his legal heirs are on record.
The prayer in the petition is to quash and set aside the orders dated 27.08.2018 and 14.11.2018 by which the benefit of bonus, uniform, medical facilities etc was withdrawn from the petitioners.
Mr. T.R. Mishra, learned advocate appearing for the petitioners has drawn the attention of this court to the judgement and order dated 18.01.2022 passed in Special Civil Application No. 4202 of 2019 in respect of similar issue and same respondent Jamnagar Prathmik Shikshan Samiti.
Mr. Premal Rachh, learned advocate for the respondent no. 2 would draw the attention of the court to the affidavit-in-reply filed in the present petition and the contentions raised in which were also part of the order passed in Special Civil Application No. 4202 of 2019.
The judgement and order dated 18.01.2022 in Special Civil Application No. 4202 of 2019 reads as under:
“1 Though served, nobody appears for respondent No.1 Jamnagar Municipal Corporation. Heard Mr.T.R.Mishra, learned advocate for the petitioners, Mr.Premal rachh, learned advocate for respondent No.2 and Mr.Meet Thakkar, learned AGP for respondent No.3, who asked for time to file reply on behalf of the respondent No.3.
2 Rule returnable forthwith. With the consent of the learned advocates appearing for the respective parties, the petition is taken up for final hearing today.
3 In this petition under Article 226 of the Constitution of India, the petitioner has challenged the order dated 27.08.2018 and the Resolution No. 37. The facts in brief are that the petitioner’s mother who was working with the respondent Corporation died in harness. The petitioner in the year 1993 i.e. on 21.12.1993 was appointed on compassionate grounds. A certificate was also issued by the Corporation which is on record. The petitioner continued to serve, as such his name was included in the P.F Account and an account was accordingly opened. The benefit of higher pay scale was also granted on 28.04.2006. By the impugned order of the Resolution 37, the respondents Nos. 1 and 2, sought recovery of bonus for the year 2012 to 2017 amounting to Rs.2,52,000/- and discontinued the name of the petitioner from the benefit of Privident Fund on the ground that an audit objection has been raised as to the appointment procedure of the petitioner.
3.1 Reading the resolution, Mr.Mishra, learned advocate, would submit that the grievance is that the post could not have been filled in as it was not sanctioned or it could have been filled in by outsourcing.
4 Mr.Premal Rachh, learned advocate for respondent No.2, Administrative Officer, relied on the affidavit-in-reply and would submit that in view of the decision of this Court in the case of Saurashtra Shramik Sangh vs. Amreli Municipality & Anr., reported in 2017 (1) CLR and in the case of Dahyabhai Ajesing Anjana vs. State of Gujarat., reported in 2017 (2) GCD 1123, since the appointment was without sanction, no right accrues to the petitioner to continue on the post and by virtue of he being working without any authority of law, the petitioner is not entitled to the benefits. He would also submit that the Audit Committee while auditing the accounts for the year 2014-2015 and 2016-2017 raised an audit objection stating that the appointment was made without sanction de-hors the sanctioned setup of the State Government.
5 Mr.Meet Thakkar, learned AGP, at the outset, requested for time so as to satisfy the Court with regard to the veracity of the audit objections raised by the local fund office.
6 Considering the fact that the petitioner was appointed on compassionate grounds in the year 1993, the GPF Account was opened in the year 1995. The benefits of higher pay scale accrues to the petitioner continuously for several years and it was only in the year 2014-15 after 20 years that an objection was sought to be raised with regard to the mode of appointment.
7 No fault can be found on the petitioner for he having been appointed on compassionate grounds by virtue of resolution of the respondents and having earned his amount of bonus and PF. An employee cannot be faced with the uncertainty being told of his appointment being not in accordance with law post 15 years of having taken the services, essentially when it was on compassionate grounds. The recovery of the stoppage of bonus and P.F by virtue of the order dated 27.08.2018 and Resolution No.37 are contrary to law and are accordingly quashed and set aside. The petition is allowed, accordingly. The petitioner shall be entitled to all consequential benefits as if the order of 27.08.2018 and the Resolution No. 37 under challenge were never passed. Petition allowed accordingly.”
In view of the above, since the issue has already been considered by this court, the orders dated 27. 08.2018 and 14.11.2018 are quashed and set aside. The petitioners shall be entitled to all consequential benefits as if the orders under challenge were never passed. Since the petitioner no. 3 has expired and legal heirs are on record, the dues which the deceased petitioner no. 3 would be entitled to be paid to the legal heirs of the petitioner no. 3. Petition is allowed accordingly.