Governmnet service matter
AJITKUMAR N PARMAR
(Querist) 10 September 2024
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 utilized my service as legal assistant like court case hearing attending, filing FIR, assisting to authorized officer for power loom inspection under Implementation of Handlooms (RAP) Act’1985. During advertisement of legal assistant in my department I have applied for the post of legal assistant in 2010 with request to consider my application with apply section 6 relaxation of power as per RRs. However, 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 order issued in favour of me. Then the department filed SCA in HC of Gujarat. The HC of Gujarat partly allowed order.
Sir, please clarify me as per HC order point No. 8, i.e. 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. As per this order I am entitle wage /pay of legal assistant for the whole period or for day in the period as ascertained by the department. The department ascertained the period is 04.11.1996 to 31.10.2012.
CAT, Ahmedabad Order:
The applicant had been selected as LDC, but he had the qualification of a lawyer and, therefore the department had very wisely utilized his service as legal assistant from 1996 onwards. He had been given a charge allowance of Rs. 2500/- somewhere during 2008. Apparently, from an earlier point onwards the applicant had requested for scale of pay of legal assistant, but that has not been granted on the ground that charge allowance has been given to him for performing higher responsible duties. the department also admits that his services have been utilized as legal assistant. their case is that he has not been legally appointed as legal assistant and therefore he cannot be granted the pay scale of legal assistant and, therefore contended by them that he is actually helping in the work of legal assistant and he is not actually appointed legal assistant and therefore he is not entitled for the pay scale of legal assistant. but this will not do. if the respondents were extracting the work of legal assistant, they are bound to pay for the work which he is performing. Therefore we will hold that the applicant will be entitled to the scale of pay for the work which is has been doing and not as per his appointment, which is technical in nature. Therefore it is ordered to grant him pay scale of legal assistant and to pay arrears arising thereform within three months.
2. At this point of time, the respondents raise issue regarding RR for methodology of deputation / absorption of legal assistant. there will not be any harm for the respondents either to depute or absorb him as legal assistant according to the rules and interpretation. it is crystal clear that having put the applicant to serve as legal assistant, he should have been paid wages of legal assistant. in this connection it is noted that the respondents have power to relax RR and having his services utilized, this discretion to exercise the relaxation also is very prominent.
ORAL JUDGMENT Hon’ble High Court of Gujarat
(PER : HONOURABLE MR.JUSTICE A.S. SUPEHIA) (1) RULE. Ms.Reena Kamani, learned advocate, appears and waives service of rule on behalf 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 Respondent Original Applicant challenging the action of non granting of pay scale 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 petitioner authorities 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 challenging the said action of the petitioner authorities. The learned Tribunal vide judgment and order dated 26.11.2016 directed the petitioner authorities to absorb the respondent original 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 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 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.5000-8000 or 6 years regular service in the posts in the scale of Rs.4000-7000 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 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 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]
T. Kalaiselvan, Advocate
(Expert) 10 September 2024
The high court order is very clear that it has directed the employer to ascertain the period for which you were assigned the work of legal assistant and pay the wages for the legal assistance for that period however the amount of honorarium granted shall be adjusted while computing the wages for the period in question.
The order is very clear, what is your doubt about it.?
AJITKUMAR N PARMAR
(Querist) 10 September 2024
Sir the department was given payment of 1601 days. Ascertain period 04.11.96 to 31.10.12 Not given whole period. My question is the payment as per high court order is payment is whole period not a day is correct?
T. Kalaiselvan, Advocate
(Expert) 11 September 2024
You go through the orders passed by high court patiently and understand the orders, if you are not able to understand take the help of an advocate to interpret the orders in the manner that yo will understand, identify your grievances in this regard and then decide about taking action to get your grievances redressed
