Rameshbhai Shivabhai Vaghela v. STATE — 1998 DIGILAW 570 (GUJ)

S. K. KESHOTE, J. ( 1 ) THE special civil application No. 7981 of 1991 was dismissed for non-prosecution by this Court on 29th July, 1998, By this M. C. A. , the applicants- petitioner prayed for recalling of that order and for restoration of the special civil application No. 7981/91 together with the interim relief granted by this court in that special civil application. ( 2 ) ). In this M. C. A. , the applicants-petitioners have come up with the case that they were earlier represented by late Mr. Ajit Padival, advocate. They are not aware about the death of Mr. Padival. They were under an impression that their cases are conducted properly in this Court. Recently it has come to their notice when the chief officer of the municipality has informed them that their cases are dismissed by this court. Immediately they came to Ahmedabad and inquired about the matter and obtained the simple copy of the order from the inquiry counter of this court. Thereafter, they applied for the certified copy and hence, this M. C. A. in these circumstances of the case, as the applicants were not represented by any advocate, and the applicants were not aware of the sad demise of the advocate, the prayer has been made for recalling of that order. ( 3 ) ). This application has been supported by an affidavit of Rameshbhai Shivabhai vaghela. The ground which has been given by the applicants for recalling of the order of this court dismissing the special civil application for non-prosecution is not correct and it cannot be accepted. On the death of late Mr. Padival, advocate, notice was sent to rameshbhai Shivabhai Vaghela, the deponent in this M. C. A. , and that notice has been served upon this person on 11-6-1997. Despite of the fact that after death of the advocate, notice has been sent to the deponent and served upon him he has made deliberately an incorrect statement only with the object and purpose to get the favourable order from this court. Only on this conduct of the applicant- deponent, rameshbhai Shivabhai Vaghela, this M. C. A. deserves to be dismissed. Be that as it may. ( 4 ) ). Heard the learned counsel for the parties on the merits of the matter. ( 5 ) ). Only on this conduct of the applicant- deponent, rameshbhai Shivabhai Vaghela, this M. C. A. deserves to be dismissed. Be that as it may. ( 4 ) ). Heard the learned counsel for the parties on the merits of the matter. ( 5 ) ). The applicant-petitioner No. 1 was appointed as Octroi Clerk on daily wages in june, 1990 and his services were terminated in the month of April, 1991. The petitioner no. 2 was appointed as Daily wager w. e. f. 1-10-1986 as Octroi Clerk and his services were also terminated in the month of April, 1991. The petitioner No. 3 came to be appointed as Daily Wager Octroi Clerk in September, 1989 and his services were also brought to an end from April, 1991. This special civil application has been filed by the petitioners in this Court on 28-10-1991 i. e. after more than six months from the date of termination of their daily wage services. The petitioner No. 3 came to be appointed as Daily Wager Octroi Clerk in September, 1989 and his services were also brought to an end from April, 1991. This special civil application has been filed by the petitioners in this Court on 28-10-1991 i. e. after more than six months from the date of termination of their daily wage services. In the special civil application, the petitioners prayed for the following reliefs: (A) Your Lordships be pleased to quash and set aside the action of the respondents of not regularising the services of the petitioners as Octroi Clerks as being bad in law, illegal, arbitrary, unconstitutional, suffers from non-application of mind, discriminatory and violative of Articles 14 and 16 of the Constitution of India by issuing a writ of mandamus or any other appropriate writ, order or direction by this Hon ble High Court; (B) Your Lordships be pleased to quash and set aside the action of the respondents of not regularising the services of the petitioners as Octroi Clerks on the vacant sanctioned post of Octroi Clerk and continuing; the petitioners as daily wager Octroi Clerk for a number of years with a view to deprive the petitioners the status, benefits and the privileges of permanent employees, as being bad in law, illegal, and arbitrary by issuing a writ of mandamus or any other appropriate writ, order or direction of this Honble High Court; (C) Your Lordships be pleased to quash and set aside the action of the respondents in discriminating the petitioners with regard to payment of salary and be further pleased to declare that the petitioners are entitled to get the same salary that is being paid to the confirmed employees holding the post of octroi Clerks on the principles of equal Pay for Equal Work as held by the honble supreme Court of India in the case of Randhirsingh reported in AIR 1982 SC 879 and as held by the Honble supreme Court in the cases reported in AIR 88 SC 1291, 1970, AIR 1987 SC 2049 , by issuing a writ of mandamus or any other appropriate writ order or direction of this Honble high Court. (D) Your Lordships be pleased to direct the Respondents not to prevent the petitioners from discharging their duties as daily wager Octroi Clerks under the respondents, pending the final disposal of this petition; (E) Your Lordships be pleased to direct the respondents to pay the petitioners same salary that are being paid to -the confirmed employees holding the post of Octroi Clerks, pending the final disposal of this petition. (F) Your Lordships be pleased to grant such other and further relief as are deemed fit, in the interest of justice. On 29-10-1991, this special civil application has come up for admission before this court and the Court passed the order "rule. To be heard with special civil application no. 1016 of 1987 and allied matters. So far as interim relief is concerned, the respondents are directed to permit the petitioners without prejudice to rights and contantions of both the sides, to resume duty as daily wager Octroi Clerk. Notice as to interim relief returnable on 2nd December, 1991. Direct Service permitted. "on 26th December, 1991, the order passed by this Court reads as under: the learned counsel for the petitioners states that in identical matters ad-interim relief as has been granted in this matter was granted and is ordered to be continued till the disposal of those matters. Ad-interim relief, as was granted on 29-10-1991 in this matter to continue until further orders. From the interim relief, which has been granted by this Court in this special civil application, it is clear that the petitioners were continued as daily wagers under the courts order till that order was vacated by this Court. From the prayer, which has been made by the petitioners in this special civil application, I find that they have not challenged the action of the respondents to terminated their services and above that, in the prayer clause, the prayer has not been made for declaring of termination of their services to be illegal and for setting aside of that action. Prayer is only made for regularisation of their services. ( 6 ) ). However, during the course of arguments, learned counsel for the petitioners contended that the termination of the services of the petitioners was contrary to law as many junior persons were appointed after termination of their services. Prayer is only made for regularisation of their services. ( 6 ) ). However, during the course of arguments, learned counsel for the petitioners contended that the termination of the services of the petitioners was contrary to law as many junior persons were appointed after termination of their services. It has next been contended that the petitioners were appointed after they have been selected in the oral interview. However, the learned counsel for the petitioners admit that applications have not been invited for making the appointments either from open market or from the employment exchange. It is further admitted that on the application of the petitioners, it appears to be an oral interview. Be that as it may. ( 7 ) ). Otherwise also in the absence of material on record that the applications were invited from the open market or employment exchange and after interview, their selection has been made, it is difficult to accept the plea much less a plea that these are the regular appointments. These are only daily wage appointments and as it goes by the name of the appointment, the appointments could have been made when there is temporary increase of work. This is also precisely the defence of the respondents, which is not controverted by the petitioners by filing any rejoinder. Learned counsel for the petitioners made reference to the document annexure c and tried to convinced this court that in response to this interview call, they have been given the appointments as daily wagers but that contention even at the first sight deserves to be rejected. This letter, calling the petitioners for interview is of 29th October, 1990 and interview was fixed on 19th November, 1990. So the appointments which have been made of the petitioners on daily wage are of much earlier in point of time to this letter and the same cannot be considered by any stretch of imagination made in pursuance of this interview. ( 8 ) ). So the appointments which have been made of the petitioners on daily wage are of much earlier in point of time to this letter and the same cannot be considered by any stretch of imagination made in pursuance of this interview. ( 8 ) ). The only contention which remains to be considered is that other persons have been appointed after termination of the services of the petitioners but from the averments made in the special civil application and from the reply filed thereof, I find that the persons named in para-9 of the special civil application though have been appointed after the termination of the services of the petitioners but these appointments are made after selection in pursuance of the interview call, reference of which has been made by the counsel for the petitioners in this special civil application as annexure c. It is also the case of the respondents that the petitioners were called for interview but they were not selected. ( 9 ) ). Learned counsel for the petitioners then submitted that the services of the petitioners were not terminated as selected candidates were made available but this contention cannot be accepted because from the pleadings as contained in para-9 of this special civil application it is clear that those persons named therein have been appointed after termination of services Of the petitioners. So the daily wagers have been replaced by the selected candidates. It is not the case of the petitioners that in regular selection they were not given an opportunity to compete in the same. The termination of the services of the petitioners, daily wagers, made by the respondents cannot be said to be illegal or arbitrary. The continuation of the petitioners in service as daily wagers from October, 1991 is only under this courts order and that interim order is subject to the final decision of this court. That interim relief merges in the final order. In this respect reference may have to the decisions of the Honble supreme court in the case of N. Mohanan vs. State of kerala, reported in 1997 (2) SCC 556 and in the case of committee of Management Arya nagar Inter College, Kanpur vs. Shree Kumar, reported in 1997 (4) SCC 388 . ( 10 ) ). In this respect reference may have to the decisions of the Honble supreme court in the case of N. Mohanan vs. State of kerala, reported in 1997 (2) SCC 556 and in the case of committee of Management Arya nagar Inter College, Kanpur vs. Shree Kumar, reported in 1997 (4) SCC 388 . ( 10 ) ). At the cost of repetition, it is stated that the petitioners have not challenged the termination of their services by the respondents and otherwise also, this Court has not found the termination of their services to be illegal, no order for regularization of their services can be made. The Court in the case where it finds the termination of the services of the petitioners to be illegal, could have directed for continuing and regularisation of their services but not otherwise. Reference in this respect may have to another decision of the Apex Court in the case of H. P. Housing Board vs. 6m Pal and Ors. , reported in 1997 (1) SCC 269 . ( 11 ) ). During the course of arguments; learned counsel for the petitioners made another submission that after filling of this special civil application, the union has raised an industrial dispute in which the prayer has been made for regularisation of the services of the daily wagers working in the office of the respondents. This dispute also covers the cases of the. petitioners and he prayed that the petitioners may be permitted to withdraw this special civil application and to proceed with that reference. ( 12 ) ). It is not the right of the petitioners to pray for withdrawal of the special civil application at any stage and the court is also not under an obligation to permit the petitioners to withdraw it. It is true that in appropriate case, the court may permit the withdrawal of the special civil application but where the litigant want to play the tricks or wants to get undue advantage of the interim orders of this court, this court may be justified not to permit the petitioners to withdraw the special civil application. The petitioners for all these years are working as daily wagers with the respondents but this court cannot be oblivious of the fact that this working was only under the interim arrangement ordered by this court. The petitioners for all these years are working as daily wagers with the respondents but this court cannot be oblivious of the fact that this working was only under the interim arrangement ordered by this court. Merely working on daily wage under the courts order after termination of their services by the respondents will not give any right to them much less a right of regularisation more so where the termination of their services was not illegal or arbitrary. This reference appears to have been made deliberately for the purpose of getting benefit in the garb of continuation of the petitioners on daily wage under the courts interim order. I do not find any justification in this prayer made by the learned counsel for the petitioners and the same is declined. ( 13 ) ). As the special civil application deserves to be dismissed on merits otherwise also no useful purpose would be served to recall the order passed by this Court dismissing the special civil application for non-prosecution on 29th July, 1998. ( 14 ) ). In the result, this M. C. A. fails and the same is dismissed. .