Research › Search › Judgment

Gujarat High Court · body

2013 DIGILAW 647 (GUJ)

Sumanbhai Sukhabhai Ahir v. State of Gujarat

2013-10-24

BHASKAR BHATTACHARYA, J.B.PARDIWALA

body2013
JUDGMENT : J.B.PARDIWALA, J. 1. This Appeal under Clause 15 of the Letters Patent is at the instance of an applicant of a Special Civil Application No.11928 of 2000 and is directed against the judgment and order dated 9th January 2013 passed by a learned Single Judge of this Court, by which His Lordship disposed off the petition confirming the interim order which was passed in the petition dated 3rd May 2001. However, since the interim order enured to the benefit of the petitioner only from 1st January 2001, the consequential benefits which were ordered to be paid by the learned Single Judge would also be counted from 3rd May 2001, whereas in the main writ-application, the petitioner prayed for regularisation of his service from the date of his appointment i.e. from 3rd August 1993. 2. It is in such circumstances that although the learned Single Judge made rule absolute, yet, in substance the main prayer for regularisation in service from 1993 could not be said to have been granted by the learned Single Judge. Accordingly, the present Appeal. 3. The facts giving rise to the filing of this Appeal may be summarised as under : 4. The petitioner started rendering honorary service as a teacher in the school run and managed by the respondent no.3 for the deaf and dumb children. On 27th June 1987, he was sent for training by the respondent no.1 for a period of one year. The training got completed on 13th June 1988. On completion of the training, the appellant started giving honorary services with the respondent no.3 as an Assistant Teacher for Standards I, II and III. The petitioner served as a Teacher upto 31st May 1989 for the students of Standards I, II and III. 5. For the period between 1st June 1989 and 31st March 1992, the appellant was paid a fixed salary of Rs.500=00 per month by the respondent no.3 although he was working as a full-time teacher. Thereafter, between April 1992 and June 1993, the appellant was paid Rs.1000=00 per month by the respondent no.3. 6. It is the case of the appellant that one another teacher named Junedbhai Hussainbhai Arab was not reporting for his duties and, therefore, in his place, the petitioner was appointed as a Teacher on regular basis vide order issued by the respondent no.3 dated 31st July 1993. 6. It is the case of the appellant that one another teacher named Junedbhai Hussainbhai Arab was not reporting for his duties and, therefore, in his place, the petitioner was appointed as a Teacher on regular basis vide order issued by the respondent no.3 dated 31st July 1993. But, the appellant was appointed on adhoc basis for a period of six months in the pay-scale of Rs.1400-2300 with all other benefits according to the rules. 7. Since one of the regular employees, viz., Shri Junedbhai Arab stopped attending the school and in his place the appellant was appointed, the respondent no.1 was requested to accord sanction to the appointment of the appellant as an Assistant Teacher in place of Shri Junedbhai Arab. The respondent no.2 was informed by the respondent no.3 vide letter dated 25th June 1997 that the appellant was working continuously in the school and, therefore, the appointment of the appellant may be approved. 8. The respondent no.2 vide letter dated 24th May 1999 rejected the request made by the respondent no.3 and refused to regularise the appointment of the appellant to the post of Assistant Teacher. 9. Feeling dissatisfied with such a decision of the respondent no.2, the appellant filed Special Civil Application No.11928 of 2000. On 3rd May 2001, a learned Single Judge of this Court passed the following order : "Rule. Heard the learned counsel for the parties on the question of interim relief. 2. There is no dispute about the fact that the petitioner had appeared for selection for the post of assistant teacher at the respondent-institution in the year 1988 and his name was placed at Sr.No.2 in the waiting list. The selected candidate joined, but another teacher working in the respondent school remained absent for about four years from 17.8.1989 to 31.7.1993 and, therefore, the petitioner was employed as an assistant teacher in the respondent school as a stop gap arrangement from 1989 onwards. In the year 1993, the respondent school requested respondent No. 2 to approve the appointment of the petitioner on the post of assistant teacher which request was not granted by the Director. Ultimately, the Director stopped giving grant to the respondent institution for the petitioner's salary in the year 1995. 3. It is not the case of the respondent authorities that the petitioner does not possess the requisite qualification for appointment to the post in question. Ultimately, the Director stopped giving grant to the respondent institution for the petitioner's salary in the year 1995. 3. It is not the case of the respondent authorities that the petitioner does not possess the requisite qualification for appointment to the post in question. The only objection appears to be is that the petitioner was at Sr.No. 2 in the waiting list. There is no dispute about the fact that the selected candidate was appointed as an assistant teacher and, therefore, if at all any grievance could be in respect of non appointment of the person at Sr. No. 1 in the waiting list. Without meaning to approve of non-appointment of that candidate at Sr.No. 1 in the waiting list, when the said candidate has not made any grievance for all these years i.e. for the last 13 years and considering the fact that respondent No. 3-institution is running a school for deaf and dumb students for the last 40 years and considering the fact that teaching deaf and dumb students requires a special skill in communicating with such students and the petitioner has been doing this for the last 12 years, it would be in the interest of justice to direct respondent Nos. 1 and 2 to pay respondent No. 3-institution grant for the petitioner's salary and allowances atleast with effect from 1st January, 2001 onwards i.e. soon after the service of notice of this petition on respondent Nos. 1 and 2 on 12th/14th December, 2000. It is directed accordingly and in respect of the arrears, the direction shall be complied with within one month from today. Direct Service is permitted." 10. Thus, it appears that vide order dated 3rd May 2001, the respondent nos.1 and 2 were directed to pay the respondent no.3 Institution grant for the appellant's salary and allowances with effect from 1st January 2001 onwards. 11. When the matter came up for final hearing on 9th January 2013, a learned Single Judge of this Court took notice of the interim order which was passed on 3rd May 2001 and came to the conclusion that in the order dated 3rd May 2001 the stance of the respondent authorities mainly the respondent nos.1 and 2 was considered & rejected and, therefore, the learned Single Judge found no reason to take a different view in the matter. Accordingly, the learned Single Judge thought fit to dispose of the petition by confirming the interim order dated 3rd May 2001. The learned Single Judge made the following observations in para 5, which reads as under : "5. Having heard learned counsel for the parties and having gone through the record, I find that the stand taken by the respondent-authorities is already considered and negated by this Court, while recording the interim order dated 3.5.2001 as aforesaid. I see no reason to take a different view in the matter, more particularly when service of the petitioner is required for the school of differently abled students, who were earlier called Deaf and Dumb, run by the respondent No.3 institute. Further by this time, decades have passed in this arrangement and disturbing that arrangement would create difficulties for such disabled children and on the other hand State authorities will not get any benefit, which I am not inclined to do. Under these circumstances, the interim order dated 3.5.2001 passed by this Court is confirmed. Petition stands allowed in terms of that order. All consequential benefits be paid to the petitioner within three months from today. Rule made absolute. No order as to costs." 12. At this stage it may not be out of place to take notice of the reliefs which were prayed for by the appellant in the main writ-application. The appellant prayed for the following reliefs : "(A). Quash and set aside the impugned decision dated 24.5.99 at Annexure-K to this petition, and further be pleased to direct the respondent no.1 and 2 to regularise the services of the petitioner for the post of Assistant Teacher from the date of his appointment from 3.8.93 with the continuity of service and with granting all benefits to the petitioner. (B). direct the respondent no.1 and 2 to consider the petitioner's case for regularisation for the post of Assistant Teacher w.e.f. the date i.e. 3.8.1993 on which date the petitioner joined the services and further be pleased to direct to pay the difference in salary to the petitioner from 1.1.96 and other benefits for the post of Assistant Teacher with the respondent no.3. (C). (C). direct the respondent no.1 and 2 to sanction the post of Assistant Teacher for the respondent no.3 school and further be pleased to direct the respondent no.1 and 2 to regularise the petitioner's service on the said sanctioned post as Assistant Teacher from 3.8.93. (D). pending admission, hearing and final disposal of this petition, the Hon'ble Court may be pleased to restrain the respondents, their agents, servants and officers from discharging the petitioner's services for the post of Assistant Teacher with the respondent no.3. (E). pending admission, hearing and final disposal of this petition, the Hon'ble Court may be pleased to direct the respondent no.1 and 2 to sanction one post of Assistant Teacher for the respondent no.3 school and further be pleased to direct the respondent to regularise the petitioner's services for the said post with all benefits from the date of his appointment i.e. 3.8.93 and further be pleased to direct the respondents to pay arrears of difference of salary and other benefits from 1.1.96 to the petitioner. (F). Awarding cost of this petition. (G). to grant such other and further relief/s or order/s as may deem fit, just and proper in the interest of natural justice." 13. Mr.Sunil K.Shah, the learned advocate appearing for the appellant, submitted that although by an interim order his client started getting the regular salary and the allowances, in the order of the learned Single Judge, which has been impugned, nothing has been stated so far as regularisation of the services of his client from the date of his appointment i.e. 3rd August 1993 is concerned. Mr.Shah submitted that in fact his client was working in the school run and managed by the respondent no.3 right from the year 1987, but it is only in the year 1993 that the respondent no.3 appointed his client to the post of Assistant Teacher in place of one Shri Junedbhai Arab who stopped attending the school. Therefore, in such circumstances, his client although worked as an Assistant Teacher from 1993, has been given the benefits only from the year 2001. 14. Mr.Shah submits that to that extent the order passed by the learned Single Judge suffers from an error. Therefore, in such circumstances, his client although worked as an Assistant Teacher from 1993, has been given the benefits only from the year 2001. 14. Mr.Shah submits that to that extent the order passed by the learned Single Judge suffers from an error. According to Mr.Shah, the learned Single Judge ought to have passed necessary orders for regularisation of the services of the appellant from 3rd August 1993 and should have directed the respondents to grant consequential benefits for the period between 3rd August 1993 and 1st January 2001. 15. Ms.Vacha Desai, the learned AGP appearing for the State respondent, opposed this Appeal and submitted that according to the guidelines of recruitment in voluntary institutions falling within the control of the Social Defence Department, the appointment to the post should only be through employment exchange. Ms.Desai submitted that a lady employee viz. Smt.Jagrutiben Rajendrabhai Nayak was appointed on 1st October 1988 and the name of the appellant was second in the list, which stood automatically cancelled on Jagrutiben being appointed to the post of Assistant Teacher. 16. Ms.Desai submitted that one another employee viz. Shri Junedbhai Arab who was already working in the school stopped reporting without informing the Institution and in his place the respondent no.3 appointed the appellant on a fixed monthly salary without any regular recruitment process being undertaken. 17. Ms.Desai submitted that the respondent no.3 had not forwarded any proposal to the Director of Social Defence for regularisation of the appellant's service and for sanctioning the grant towards his salary. 18. Ms.Desai also submitted that it has been admitted by the respondent no.3 in its letter dated 9th September 2010 that upto the year 2000, the salary was being paid by the Institution itself and the Institution had not sought prior approval of the authority before appointing the appellant. 19.In such circumstances, according to Ms.Desai, the appointment of the appellant to the post of Assistant Teacher in the school of the respondent no.3 by itself is illegal and the appellant has no right to continue on the said post. 20. In such circumstances referred to above, Ms.Desai submits that there being no merit in this Appeal, the same may be rejected. 21. 20. In such circumstances referred to above, Ms.Desai submits that there being no merit in this Appeal, the same may be rejected. 21. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for our consideration in this Appeal is, whether the learned Single Judge committed any error in passing the order impugned. 22. We propose to deal with the last submission of Ms.Desai, the learned AGP, first that the appellant has no right to continue on the post because his appointment from the inception could be termed as illegal. We are afraid, we are unable to accept this submission for the simple reason that the State has not filed any appeal challenging the order passed by the learned Single Judge. It is only the appellant who has filed the present Appeal. Since the State has accepted the order passed by the learned Single Judge, it is not possible for us now to hold that the appointment of the appellant to the post could be termed as illegal and, therefore, the benefit which has been granted in favour of the appellant from 1st January 2001 onwards should not be withdrawn in any circumstances. 23. Therefore, the only question for our consideration is, whether the appellant is entitled to the relief of regularisation in service from the year 1993 with all consequential benefits or not. 24. We have taken notice of the fact that the appellant had appeared in the process of selection to the post of Assistant Teacher at the Institution run and managed by the respondent no.3, in the year 1988 and his name was placed at Sr.No.2 in the waiting list. The candidate at Sr.No.1 joined the school, but one another teacher viz. Junedbhai Arab remained absent for about four years from 17th August 1989 to 31st July 1989 and, therefore, in his place the appellant was employed as an Assistant Teacher in the respondent no.3 School as a stopgap arrangement from 1989 onwards. 25. The aforesaid incident is suggestive of the fact that the appellant was placed in a waiting list at Sr.No.2. It is well settled that a waiting list could not have been operated after a period of four years. 25. The aforesaid incident is suggestive of the fact that the appellant was placed in a waiting list at Sr.No.2. It is well settled that a waiting list could not have been operated after a period of four years. Ordinarily, once the required post is filled up the waiting list would also get exhausted and the future recruitment cannot be through a waiting list. Many other persons must have qualified themselves for being appointed to the post between 1989 and 1993. If the respondent no.3 School wanted to appoint any other person as an Assistant Teacher in place of Shri Junedbhai Arab, then in such circumstances, a regular recruitment process ought to have been undertaken, but in no circumstances the appellant could have been appointed from a waiting list after a period of four years. 26. We are not inclined to grant the relief which is prayed for by the appellant in this Appeal for the simple reason that we are not satisfied with the manner in which the appellant was appointed by the respondent no.3 Institution. We, therefore, decline to grant the relief of regularisation in service from the year 1993 to 2001 as prayed for by the appellant. At the same time, we do not disturb the relief which the appellant had already obtained by an interim order dated 3rd May 2001 and which came to be confirmed vide order dated 9th January 2013 and has attained finality. 27. For the foregoing reasons, we do not find any merit in this Appeal and the same is accordingly dismissed. However, in the facts and circumstances of the case, there shall be no order as to costs. 28. Before parting with the Appeal, we deem it necessary to observe that ordinarily an interim order is passed by a court taking into consideration the prima facie case made out by the litigant, the balance of convenience and the irreparable injury which the litigant is likely to suffer. Therefore, after couple of years when a petition comes up for final hearing, the court should consider the entire matter afresh and dispose it off in accordance with law after assigning cogent reasons. 29. Ordinarily, the court should refrain from disposing off a petition finally by merely confirming an interim order which may have been passed in the matter earlier in point of time. 29. Ordinarily, the court should refrain from disposing off a petition finally by merely confirming an interim order which may have been passed in the matter earlier in point of time. It is necessary for us to state so because in the present case the learned Single Judge made rule absolute. Now, when the rule was issued, it was not confined to a particular prayer but, to all the reliefs, and if rule is made absolute, then it could be construed that all the reliefs as prayed for in the petition has been granted. However, in the present case, what has been confirmed is just an interim order dated 3rd May 2001 and, therefore, in substance, the learned Single Judge only approved the grant of salary and allowances from 1st January 2001. Appeal dismissed.