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Gujarat High Court · body

2008 DIGILAW 125 (GUJ)

Ushaben v. Shashtri VS State of Gujarat

2008-03-12

BHAGWATI PRASAD

body2008
Judgment Bhagwati Prasad, J.—Heard learned Counsel for the parties. The present petition has been filed by the petitioner to the following relief: “(A) Your Lordships may be pleased to issue appropriate writ, direction or order quashing and setting aside the order dated 28.09.2006 annexed at Annexure-E to the petition. (B) Your Lordships may be pleased to direct the respondents to give to the petitioner regular appointment order from 13.02.2004 as per the judgement and order rendered in SCA No. 424 of 1996. 2. The case of the petitioner is that this Court had in earlier lis ordered in favour of the petitioner that she should be appointed on regular basis. This was so held by this Court in Special Civil Application No. 424 of 1996 decided on 13.02.2004. Pursuant to this direction, the respondent Institution appointed the petitioner after approval from the Government for a period of one year. 3. The case of the petitioner is that such appointment for one year is contrary to the directions of this Court and the term one year should not be read in that order and she should be deemed to be regularly appointed employee. Once she is deemed to be regularly appointed employee, she is to be sent out of the service in a particular manner. What has been done to the petitioner is that she is put under suspension without approval of the respondent State and also her services have been terminated after end of one year. Therefore, the action of the respondent Institution is violative of the order of this Court and also of the Constitutional guarantee to an employee that no employment can come to an end without due process of law. 4. Per contra, the learned Counsel for the Respondent No. 2 submitted that regularisation does not mean a permanent appointment and placed reliance on a decision rendered by the Hon’ble Supreme Court in the matter of B.N. Nagarajan and Others vs. State of Karnataka and Others reported in (1979) 4 SCC 507 . The learned Counsel for Respondent No. 2 placed reliance on Paragraph No. 24. The learned Counsel for Respondent No. 2 placed reliance on Paragraph No. 24. If a thought is given to Paragraph No. 23 of this judgement then, no doubt, it emerges out that regularisation does not mean confirmation but none the less a regular appointment is an appointment in accordance with law and if there is an appointment which is made in accordance with law then that appointment can come to an end only in accordance with law. In the instant case, in the first place, the appointment for one year was not as ordered by this Court. This appointment is to be treated as regular appointment in accordance with law. Therefore, the order of appointing the petitioner for one year was per se illegal, against the orders of this Court and therefore that part of the order has to be ignored wherein the term has been fixed for one year. If the services of the petitioner have to be terminated for one or the other reason then the procedure laid down by law has to be followed. That procedure has not been followed, the petitioner’s termination is, per se, illegal treating the same to be term appointment. The same, therefore, deserves to be quashed and set aside with a liberty to the respondent Institution to take any recourse which it deems fit in accordance with law. 5. The petitioner will be entitled to all consequential benefits which she is entitled to as regular employee. It was also brought to the notice that the suspension which was ordered against the employee was required to be approved by the State. It having not been done by the State Government so far, the petitioner should not be treated under suspension unless the State Government approves. The petition is allowed to the aforesaid extent. Rule is made absolute accordingly. P P P P P