P L CHAMAR Vs. STATE OF GUJARAT

JUDGEMENT

(1.) AS all the matters are inter connected and common questions arise for consideration, with the consent of the learned advocates appearing for both the sides, the matters are finally heard today.

(2.) TWO questions arise for consideration; one is that whether second petition for challenging the subsequent order based on the earlier order which was subject matter of earlier petition which was already withdrawn with a view to resort to alternative forum, is maintainable or not. The second question is whether this Court should examine the aspects of recovery of the higher pay scale already paid to the petitioners.

(3.) THE short facts of the case appears to be that the petitioners formerly working as work charge peon, were given pay scale of work charge clerk on the basis that the State Government had passed the resolution for such purpose but the pertinent aspect is that such resolution was for the department of Road and Building of the State Government. Whereas the petitioners were working with Gram Vikas Agency. However, it is the say of the petitioners that the said resolution was made applicable to the petitioners also and they were placed in the pay scale of work charge clerk since they were working on administrative side as work charge peon for a long time. It appears that thereafter the State Government regularized certain work charge clerk by giving them regular appointment but the petitioners were not regularized and therefore they had preferred Special Civil Application No 1985 of 2004 and allied matters before this Court in which, this Court (Coram: Akil Kureshi, J.), vide order dated 22. 03. 2005, relegated the petitioners to make the representations for such purpose and the Government was directed to consider the same. Pending the question of regularization of the petitioners as regular clerk, the respondent authority further considered the matter and found that the petitioners were entitled to the pay scale of work charge peon only and not of work charge clerk. However, such order was passed without giving any opportunity of hearing on 31. 05. 2005 against which the petitioners preferred Special Civil Application No. 14237 of 2005 and allied matters before this Court and in the said petitions, this Court (Coram: P. B. Majmudar, J. , as he then was) vide order dated 22. 07. 2005 found that as no opportunity of hearing was given, the order was set aside with the direction to give the opportunity of hearing and to decide the matter afresh. Thereafter, the opportunity of hearing was given to the petitioners and it appears that thereafter the petitioners once again approached before this Court by preferring Special Civil Application No. 21620 of 2007 and allied matters and in the said petitions, this Court (Coram: H. K. Rathod, J.) vide order dated 22. 08. 2007, directed the petitioners to make the representation to the higher authority i. e. the Additional Chief Secretary of the State Government and the said representation was directed to be considered. The petitioners did make the representation and ultimately order dated 30th January, 2008 came to be passed by the Secretary of the State Government (Rural Development), Panchayats, Rural Housing and Rural Development Department, whereby, he found that the petitioners were not entitled to the pay scale since the resolution of the Government of Road and Building Department was not applicable to the petitioners as they were working with the Gram Vikas Agencies and therefore it was directed that the orders passed by the Director of District Rural Development Agencies are set aside and the necessary action be taken in this regard. The said order of the State Government dated January 30, 2008 Annexure 's' was challenged by the petitioners by preferring Special Civil Application No. 3719 of 2008 and allied matters before this Court and on 29. 02. 2008, when the matter came up before this Court (Coram: Bhagwati Prasad, J.), following order was passed: