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2004 DIGILAW 233 (GUJ)

JYOTIBEN R. SOLANKI v. STATE LIBRARIAN and ORS

2004-04-01

RAVI R.TRIPATHI

body2004
RAVI R. TRIPATHI, J. ( 1 ) THE petitioner, belonging to Scheduled Caste, was appointed as Safai Kamdar in the Central Library, Baroda on 1st April, 1982. Incidentally, today also, it is 1st April, 2004. The only difference is, in between long 22 years have passed and the petitioner is still in the same situation of uncertainty and awaiting that the high sounding policies of the Government, giving benefits to the members of the Scheduled Caste, reach to her in the form of order of regularisation of her services. ( 2 ) THE facts of the case are that the petitioner was initially appointed as Safai Kamdar by an order dated 5th April, 1982, effective from 1st April, 1982, for a period of one year. Before completion of one years service, the petitioner was called upon to give another application in the month of March-1983 and on such application dated 1st March, 1983 being made, the authorities issued another appointment order dated 7th February, 1983 appointing the petitioner for a period of six months. Similarly, on expiry of the period of six months, the same thing was again repeated and it continued till 1987, when the petitioner was issued appointment order dated 8th April, 1987 appointing the petitioner for a period from 1st April, 1987 to 30th September, 1987, but for the reasons best known to the authorities, the authorities passed an order dated 13th April, 1987 terminating the petitioners services with immediate effect i. e. from 13th April, 1987 and, therefore, the petitioner, having no other go, approached this Court by way of this petition on 20th April, 1987. ( 3 ) THIS Court, on 21st April, 1987, issued Notice to the respondents, making it returnable on 27th April, 1987. Thereafter, the Court issued Rule in the petition on 30th April, 1987. The petitioner, thereafter, filed Civil Application No. 1682 of 1987 on 28th September, 1987 as after filing of the petition by the petitioner, the respondents issued order dated 23rd April, 1987 sanctioning the continuance of employment of Safai Kamdars and other Class-IV posts in the Libraries in the State of Gujarat, under the administrative control of respondent no. 2. The petitioner, thereafter, filed Civil Application No. 1682 of 1987 on 28th September, 1987 as after filing of the petition by the petitioner, the respondents issued order dated 23rd April, 1987 sanctioning the continuance of employment of Safai Kamdars and other Class-IV posts in the Libraries in the State of Gujarat, under the administrative control of respondent no. 2. In that Civil Application, the petitioner prayed for the relief to the effect that pending the admission, hearing and final disposal of Special Civil Application No. 1804 of 1987, the Court may be pleased to restrain the respondents from terminating the petitioners services and to restrain the respondents from interfering with the discharge of her duties by the respondents and to pay the petitioner her salary regularly. In light of the aforesaid order dated 23rd April, 1987 issued by respondent no. 2, respondent no. 1-State Librarian Central Library, Mandvi Baroda issued a letter dated 27th April, 1987 taking the petitioner back in service as Safai Kamdar. In that Civil Application, on 29th September, 1987, this Court issued Notice and granted ad interim relief in the aforesaid terms till the next date, which was continued further and on 30th November, 1987, the Court finally passed the following order: "rule. Interim relief to continue till final hearing and disposal of this petition". By virtue of this order, the petitioner is in service till date. ( 4 ) AS is on record, the petitioner belongs to `scheduled Caste, serving as a `safai Kamdar and, therefore, a judicial notice can be taken of `the limited sources of information she has at her disposal. In the year 1993, the petitioner again filed Civil Application No. 2907 of 1993, placing certain Government Circulars on record, dealing with `giving permanent appointment to the persons like the petitioner as peon and prayed for a direction to the respondents to consider the case of the petitioner for appointment/promotion to the post of peon or any other Class-IV post on full-time basis in the regular pay-scale in light of the contents of Circular dated 4th February, 1982. It was also prayed to direct the respondents, `to absorb the petitioner as a full-time employee in the regular time-scale of a Safai Kamdar as per the Circular dated 26th December, 1980. This Civil Application was ordered to be heard with the main matter on 21st December, 1993. It was also prayed to direct the respondents, `to absorb the petitioner as a full-time employee in the regular time-scale of a Safai Kamdar as per the Circular dated 26th December, 1980. This Civil Application was ordered to be heard with the main matter on 21st December, 1993. ( 5 ) THE respondent authorities did not find time to file affidavit-in-reply in the main petition until the matter was listed for final hearing in February-2004. It was listed on 23rd February, 2004, after which it was adjourned from time to time till date. Now, an affidavit-in-reply is filed, affirmed by one Shri M. S. Parmar, State Librarian, Central Library, Baroda on 15th March, 2004. Thus, the respondents find time to take note of the present petition after almost 17 years. As the fact stands, the petitioner is serving since 1982 and even before the protection was granted by this Court in the year 1987, she had served for `five years as Safai Kamdar. Even if at the relevant time, the authorities had taken care to extend her the benefit of the Government Circular dated 4th February, 1982, the petitioner would not have been required to undergo the agony of cost of litigation, uncertainties on account of pendency of the petition, etc. ( 6 ) THE circular dated 4th February, 1982 is issued by the General Administration Department and the title of the circular is `giving appointment to Safai Kamdars as peon. It is stated in this Circular that there was a representation from the persons serving as Safai Kamdars and other similar kamdars working in hospitals, Municipalities, Municipal Corporations for appointing them to the post of peon so as to see that they get relieved from the filthy work which they have to perform. On careful consideration, the Government decided that when the heads of the offices come across occasions of making recruitment in Class-IV, the persons, who are serving as Safai Kamdars or other similar cadres, if possess the qualifications as per the eligibility criterion and are within the age limits according to the recruitment rules of peon, they shall be given first preference. This circular is issued in the name of the Governor of Gujarat. This circular is issued in the name of the Governor of Gujarat. (emphasis supplied) ( 7 ) THE petitioner also prayed for grant of benefit of Government Circular dated 26th December, 1980 issued by the Finance Department of the Government of Gujarat titling as `part time employee for conversion of pay into regular post. The Heads of the Departments were requested by the circular to examine the need for continuing the existing arrangement for part time employment with consolidated pay and to make proposals giving full justification for conversion of pay of such post into regular posts. The circular also provided that whenever part time employment has continued for three years, the Head of the Department should make efforts as per the prescribed Recruitment Rules and Procedure for filling in the posts, to absorb such incumbents in regular posts that may be available under his control and to replace that incumbent by a fresh part time employee. ( 8 ) DESPITE the fact that both these circulars were placed on record by Civil Application No. 2907 of 1993, which was ordered to be heard with the main petition, a copy of which was served to the learned Advocates appearing for the respondents on 20th December, 1993, the affidavit, which is filed today, does not even make a mention of the said Civil Application. From the said affidavit, it is not clear as to whether the Head of the Department was aware of these circulars and if yes, whether he ever considered the case of the petitioner in light of these circulars. ( 9 ) THE learned Advocate appearing for the petitioner submitted that it is clear from the sequence in which the orders were issued, which are at Annexures A to F to the petition, that the nature of the work discharged by the petitioner was of perennial nature and for no valid reasons, the petitioner was given the breaks in appointment. He emphatically submitted that the first order is dated 5th April, 1982, but, was made effective from 1st April, 1982 and at the first instance, the appointment was given for a period of twelve months; the second order is dated 7th February, 1983 and the appointment is given for a period of six months from 1st March, 1984 to 31st August, 1983. Similarly, the next order is dated 30th March, 1984 and the period for which appointment is given from 1st April, 1984 to 31st March, 1985. Next in the line is order dated 25th March, 1985 for the period from 1st April, 1885 to 30th September, 1985 i. e. for six months. Last but one, in line, is order dated 1st October, 1985 for the period from 1st October, 1985 to 31st March, 1986. Finally, order dated 8th April, 1987 was issued whereby the petitioner was appointed for a period from 1st April, 1987 to 30th September, 1987. Then, the order of termination dated 13th April, 1987 was issued, against which the petitioner approached this Court. During the pendency of the petition, the respondent no. 2 granted sanction to the part time (Contingency Paid Safai Kamdar) in the year 1987-88, after which, the petitioner was issued order dated 27th April, 1987 appointing her till 30th September, 1987 (Annexure-J to Civil Application No. 1682 of 1987 ). It is stated in the said order that the petitioner will be required to discharge her duties in two spell i. e. from 7. 30 a. m. to 11. 00 a. m. and from 2. 30 p. m. to 6. 00 p. m. , totalling 7 hours a day. The learned Advocate for the petitioner submitted that it is more than clear that the petitioner was discharging the duties, which, by no standards, can be said to be of temporary nature and, therefore, there was no reason for the respondent authorities to give artificial breaks in her service. Besides, the authorities did not extend the benefits of the aforesaid two Government Circulars dated 4th February, 1982 and 26th December, 1980, which the Head of the Department was under an obligation as per the circulars. ( 10 ) MR. M. S. RAO, learned AGP, reiterated the contents of the affidavit-in-reply stating that the petitioner was engaged as a Safai Kamdar with effect from 1st April, 1982 on part time basis on a remuneration of Rs. 37. 50 per hour, per month for a fixed period. He further submitted that the remuneration was increased to Rs. 47. 50 per hour, per month vide Memorandum dated 8th March, 1984. He submitted that the appointment of the petitioner was purely on temporary basis as a part timer and in view of that, the petition deserves to be dismissed. 37. 50 per hour, per month for a fixed period. He further submitted that the remuneration was increased to Rs. 47. 50 per hour, per month vide Memorandum dated 8th March, 1984. He submitted that the appointment of the petitioner was purely on temporary basis as a part timer and in view of that, the petition deserves to be dismissed. He also submitted that as a matter of fact, the expenditure of remuneration paid to the petitioner was incurred from the contingent grant. The petitioner was engaged as part time sweeper as the permission was granted by the Curator of Libraries, Gandhinagar vide Circular No. K-87-88/459-418 dated 9th April, 1987. He submitted that hence no relief can be granted and the present petition is required to be dismissed. He submitted that an identical petition, being Special Civil Application No. 10203 of 2001, is dismissed by this Court vide order dated 8th January, 2002. The learned AGP relied upon the decision of this Court in that matter without successfully persuading this Court on the point that the facts of that petition were similar. Hence, in the considered opinion of this Court, the said decision is of no help to the respondent. ( 11 ) THE learned AGP, in reply to the contention raised by the learned Advocate for the petitioner, submitted that the petitioner could not be extended the benefits of Circular dated 26th December, 1980 because by another Circular dated 21st August, 1985, the said Circular was kept in abeyance. Even if that is so, the petitioner could have been extended the benefits of the Circular dated 4th February, 1982, which is very much in operation till date as nothing is pointed out to this Court to show that the said circular is not in operation. ( 12 ) IN view of the aforesaid discussion, it is clear that the petitioner, a member of Scheduled Caste, serving as Safai Kamdar, having worked since 1982 till 1987, under the orders of the Department, and thereafter, under the orders of this Court by now for 22 years, deserves a sympathetic consideration in light of the policy of the Government at the hands of the respondents for regularisation. In view of that, it is directed that the respondents shall consider the case of the petitioner for regularisation bearing in mind the contents of the Circular dated 4th February, 1982 and other similar circulars, if any, on the subject, within six months from the date of receipt of writ of this Court. The authorities shall then communicate the decision to the petitioner by Registered Post A. D. letter. The respondents are directed not to terminate the services of the petitioner till the expiry of the period of four weeks, after the decision is communicated, if the same is adverse to the petitioner. The respondents shall continue to pay the petitioner on the same terms and conditions as on date. The petition is allowed. Rule is made absolute to the aforesaid extent. No order as to costs. ( 13 ) IN view of the disposal of the main petition, no orders in Civil Application Nos. 1682/1987 and 2907/1993. Rule in Civil Application No. 1682/1987 is discharged. .