Service matter

AJITKUMAR N PARMAR (Querist) 16 May 2017 This query is : Resolved
Sir,
I am working as LDC in GOI, the post of LDC is isolated. My qualification is B.Com LL.B, In my Office the Post of Legal Assistant is vacant since 1995 to till date. Having a legal qualification, my office is utlized my service as legal assistant like court case hearing attending, filing FIR as per legal assistant works and also perform the duty of technical supdt., for power loom inspection. During advertisement of legal assistant in my department I have applied for the post of legal asisstant in 2010 with request to consider my application with apply section 6 relaxation of power as per RRs. But the department is not put up my relaxation application on file and not submitted to higher officer for decision because my post is LDC is isolated and my application for the post of legal assistant is not considered. so then I have file my case in CAT and the department going on HC of Gujarat on CAT order.

Sir, Please clarify on on HC order point No. 8 is apply for period or day? for legal assistant wages and allowance for my case.

C/SCA/9660/2016 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO.9660 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE M.R. SHAH Sd/and
HONOURABLE MR.JUSTICE A.S. SUPEHIA Sd/===================================================
1 Whether Reporters of Local Papers may
be allowed to see the judgment ? NO
2 To be referred to the Reporter or
not ? NO
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 or any order made thereunder ?
NO
===================================================
UNION OF INDIA & 3....Petitioner(s)
Versus
AJIT KUMAR PARMAR S/O NAROTTAMDAS PARMAR...Respondent
===================================================
Appearance:
MS AVANI S MEHTA, ADVOCATE for Petitioner(s) No.14
MS REENA KAMANI, ADVOCATE for MR PH PATHAK, ADVOCATE
for the Respondent(s) No. 1
===================================================
CORAM: HONOURABLE MR.JUSTICE M.R. SHAH
and
HONOURABLE MR.JUSTICE A.S. SUPEHIA
Date : 16/08/2016
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE A.S. SUPEHIA)
(1) RULE. Ms.Reena Kamani, learned advocate,
appears and waives service of rule on behalf
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of the Respondent. With consent of the
learned advocates appearing on behalf of the
respective parties, the petition is taken up
for final hearing forthwith.
(2) Present petition is directed against the
judgment and order dated 26.11.2015 passed
by the Central Administrative Tribunal
wherein and whereby the O.A No.250 of 2012
filed by the RespondentOriginal
Applicant
challenging the action of non granting of
payscale
of the post of Legal Assistant is
allowed.
(3) The facts of the present petition in
nutshell are that the present Respondent was
appointed as Lower Division Clerk (LDC) on
04.11.1996. It appears from the record that
the petitionerauthorities
were taking
additional services of the Respondent as
Legal Assistant as he was duly qualified for
the said post. The Respondent requested the
authorities to absorb him in regular service
as Legal Assistant by relaxing the
recruitment rules as there was no other
avenue of promotion available to him. Since
the respondent was not considered fit for
the post of Legal Assistant, he was
constrained to approach the Learned Tribunal
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challenging the said action of the
petitionerauthorities.
The learned Tribunal
vide judgment and order dated 26.11.2016
directed the petitionerauthorities
to
absorb the respondentoriginal
applicant as
Legal Assistant and pay him wages of the
said post as he had worked as such.
(4) Ms.Avani S Mehta, learned Advocate appearing
on behalf of the petitioners, has vehemently
submitted that the learned Tribunal has
erred in directing the authorities to absorb
the respondent as Legal Assistant as same is
de hors the recruitment rules. She has
submitted that the recruitment to the post
of Legal Assistant is to be made by the
department as per the recommendation of
Union Public Service Commission (UPSC) after
following up the process for filling up the
post as per the mode and method of
selection/recruitment provided under the
Recruitment Rules. Accordingly, an
advertisement was issued for filling up the
post. The application of the Respondent was
scrutinized by the department, and he was
found ineligible. She has submitted that in
wake of the aforesaid facts the learned
Tribunal could not have directed the
petitioners to absorb the respondent as
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Legal Assistant. She has also further
submitted that the learned Tribunal has fell
in error by directing the petitioners to pay
wages of the Legal Assistant to the
Respondent, as the duties which the
petitioner were discharging cannot be
construed as performing the duties of Legal
Assistant. No further contention is raised.
(5) Ms.Reena Kamani, learned Advocate appearing
for the Respondent, has submitted that the
judgment and order of learned tribunal does
not required interference, and the same is
required to be sustained. She has submitted
that the learned Tribunal is justified in
giving the direction of absorbing the
respondent as Legal Assistant since he was
performing his duties as such since 1996.
She has also vehemently submitted that
action of the petitioners in not paying the
wages/salary as Legal Assistant to the
respondent, despite having worked as such,
is illegal and arbitrary.
(6) We have heard the respective advocates
appearing on behalf of the parties. After
careful scrutiny of the judgment delivered
by the learned Tribunal and on examination
of the documents on record, we are of the
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opinion that the direction given by the
learned Tribunal for absorbing the
Respondent as Legal Assistant calls for
interference as the same is erroneous and
against the settled legal principles of law.
(7) It is undisputed fact that the department
had issued an advertisement for filling up
the post of Legal Assistant. The same was
also circulated. The application of the
respondent for appointment to the post of
Legal Assistant was examined by the
department, and he was found ineligible for
the same. The respondent is not eligible to
be appointed as Legal Assistant as he does
not fulfill the eligibility criteria of
“having 3 years regular service in the posts
in the scale of Rs.50008000
or 6 years
regular service in the posts in the scale of
Rs.40007000
or equivalent. The UPSC had
specifically denied any relaxation of the
Recruitment Rules while examining the
applications of the employees. Thus, the
learned Tribunal has exceeded its
jurisdiction in issuing the directions for
absorbing the respondent de hors the
Recruitment Rules. It is settled law that an
employee cannot be absorbed or regularized
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on a post if he does not qualify for the
same. Merely the respondent was assigned the
work of Legal Assistant, he cannot claim the
right of being absorbed/appointed to the
post of Legal Assistant that too by relaxing
the Rules. Hence, the aforesaid direction
issued by the learned Tribunal is quashed
and set aside.
(8) So far as the contention of Ms.Ramani for
entitlement of wages for the period the
respondent worked as Legal Assistant is
concerned, we find merit in the same.
Learned Advocate Ms.Avani Mehta is unable to
dispute the contents of Letter dated
12.11.2008 issued by the petitionerauthorities
wherein it is specifically
stated that services of the respondent was
utilized as Legal Assistant as he possess
legal qualification (LL.B), and further
request was made to pay him honorarium for
such service. It seems that thereafter the
respondent was paid an honorarium of
Rs.2,500/per
year as evident from the
Letter dated 20.07.2011. Thus, the
respondent was only paid a meager amount of
Rs.2,500/as
honorarium per year for the
services rendered by him as Legal Assistant.
It is undisputed fact that the post of Legal
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Assistant was lying vacant and the
respondent used to perform duties of Legal
Assistant. In our considered opinion the
Respondent is entitled to wages/salary of
Legal Assistant for the period he worked as
such. Ms.Ramani states that the respondent
was rendering his service as Legal Assistant
since 1996, whereas Ms.Avani Mehta has
asserted that his services were utilized as
such since 2008. We would like to abstain
ourselves from entering into disputed
question. However, we direct the petitioners
to examine the record for ascertaining the
period for which the respondent was assigned
the work of Legal Assistant, and pay him
wages of the post of Legal Assistant for
that period. The amount of honorarium
granted to the Respondent shall be adjusted
while computing the wages of the petitioner
for period in question. The entire exercise
shall be completed within a period of three
months from today.
(9) The petition is partly allowed. Rule is made
absolute to the aforesaid extent.
Sd/[
M.R.SHAH, J]
Sd/[
A.S.SUPEHIA, J]
Bhavesh[
pps]*
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