JUDGEMENT
R.C.MANKAD -
(1.)Important question which arises for my consideration in this petition is whether the petitioner who was appointed as a Clerk on daily wages or as work-charged Clerk within the prescribed age limit can claim benefit under sub-rule (5) of Rule 8 of the Gujarat Civil Services Classification and Recruitment (General) Rules 1967 (General Rules for short) on his regular appointment as clerk on the work-charged establishment after he had crossed the upper age limit prescribed for the said post.
(2.)The above question arises in the background of the following undisputed facts; Petitioner was appointed as Clerk on daily wages for the period from 21/06/197 9/09/1981 under Capital Project (Sub- Division No. 8) at Gandhinagar. On 1/10/1981 the petitioner was appointed as work-charged Clerk for 29 days under order dated 1/10/1981 passed by the Executive Engineer Roads & Buildings Depart- ment Godhra (Executive Engineer for short). On expiry of 29 days petitioner was reappointed as work-charged Clerk again for 29 days Such appointments for 29 days were made upto 19/05/1982 The Executive Engineer called for names of persons for regular appointments on the work-charged establishment from the office of the Employment Exchange at Godhra. The Office of the Employment Exchange at Godhra sent a list of 32 candidates which included the name of the petitioner in response to the requisition made by the Executive Engineer. In this list while giving details of the petitioner two birth dates were mentioned namely 1/06/1956 and 11/12/1957 As against the date 11/12/1957 it was stated as per affidavit. 1/06/1956 is the date mentioned in the School Leaving Certificate of the petitioner. Candidates whose names were sent by the Employment Exchange were interviewed by a Selection Committee and the petitioner was one of the candidates who was selected for appointment to the post of work- charged clerk. The petitioner was appointed as Clerk on the work- charged establishment for six months under order dated 19/05/1982 Petitioner was thereafter given appointments as Clerk on the work- charged establishment for limited periods from time to time and he continued on this post upto 14/04/1983 From Ap 15/04/198 3/07/1987 petitioner worked as Clerk but he was paid daily wages as skilled labourer. Petitioner was not given any work after 30/07/1987 nor was he paid any salary or wages for any period subsequent to 30/07/1987
(3.)The petitioner has alleged that he worked as work-charged clerk continuously from October 1 198 1/07/1987 However between 1/10/1981 and 19/05/1982 he was given appointments as Clerk for 29 days under different appointment orders. It is contended by the petitioner that the breaks which were given in his service artificial breaks and he had in fact been in continuous service as work-charged Clerk between 1/10/1981 and 19/05/1982 On his selection for appointment as work-charged Clerk by the Selection Committee he was given appointment as work-charged clerk for six months. He however continued to work as work-charged Clerk upto 30/07/1987 under appointment orders issued from time to time appointing him for limited periods. Petitioner has not disputed that between 15/04/1983 and 30/07/1987 he was paid daily wages as skilled labourer though according to him he worked as Clerk According to the petitioner there was no justification to treat him as skilled labourer and pay him daily wages on that basis for the said period when he in fact had worked as Clerk. Petitioner further submitted that no order was issued terminating his services as work-charged Clerk and appointing him as skilled labourer on daily wages. It was stated that the petitioner had no option but to accept daily wages as skilled labourer paid to him beyond the period of 14/04/1983 for otherwise he would have been rendered jobless. It is further submitted by the petitioner that there was no justification in discontinuing him from the post of Clerk after 30/07/1987 The Office of the Executive Engineer at Godhra was closed and transferred to Palanpur. Petitioner has alleged that persons who were appointed as Clerks subsequent to him and who were junior to him were transferred to Palanpur alongwith the transfer of the Office of the Executive Engineer to Palanpur. The petitioner was thus given discriminatory treatment. According to the petitioner he should have been given the same treatment which was given to other Clerks who were junior to him and he should have been transferred to Palanpur on the transfer of the Office of the Executive Engineer to Palanpur. It is therefore contended that the action of the Executive Engineer in discontinuing him from service is arbitrary and illegal.
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