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2017 DIGILAW 1047 (GUJ)

Arvindbhai Trikambhai Bhatti v. State of Gujarat

2017-06-08

K.M.THAKER

body2017
JUDGMENT : K.M. Thaker, J. 1. Heard Ms. Sadhana Sagar, learned advocate for petitioner and Mr. Munshaw, learned advocate for respondent Nos. 2 to 4 and Mr. Amit Barot, learned AGP for the State. 2. In present petition, the petitioner has prayed inter alia, that: "11(a) declaring that the order of termination dated 31.5.2004 annexure "D" passed by the respondent No. 2 is illegal, bad-in-law, arbitrary and violative of Article 14 and 16 of the Constitution of India and quash and set aside the same and direct the respondents to threat the petitioner in continuous service with all benefits as if termination order dated 31.5.2004 annexure "D" had not come into existence at all. b. to direct the respondent No. 2 to regularise the services of the petitioner in view of the G.R. Dated 01/05/2007 and order dated 16/12/2009 passed in Civil Application No. 1014 of 2009. c. declaring that the termination order dt. 31.05.04 passed by the respondent No. 2 under the instructions of respondent No. 4 is bad in law, arbitrary and unjustified as the question of regularising the service of the petitioner is to be made is remained." 3. So far as factual background is concerned, it has emerged from the record and submission by learned advocate for petitioner that the petitioner came to be appointed as part time Peon vide order dated 28.3.89 at Adatala Ayurvedic Dispensary, Adatala, Taluka: Lathi, District: Amreli. 3.1 According to the petitioner, he was working as part time peon regularly, continuously and diligently since March, 1989 and that he was required to work 4 hours per day and was paid wage at Rs. 75/- per hour. The petitioner has claimed that in 1998 a Resolution was passed whereupon the petitioner was paid salary at the rate of Rs. 225/- per hour and he was paid Rs. 900/- for 4 hours. 3.2 It appears that after about 5 years somewhere in May, 2004 the petitioner submitted representation for regularisation in service as Class-IV employee and for benefits of permanent employee but said request was not accepted. 3.3 The petitioner has alleged that his service came to be terminated vide order dated 31.5.2004. 3.4 In this background, the petitioner filed present petition and challenged the order dated 31.5.2004. 4. Ms. 3.3 The petitioner has alleged that his service came to be terminated vide order dated 31.5.2004. 3.4 In this background, the petitioner filed present petition and challenged the order dated 31.5.2004. 4. Ms. Sagar, learned advocate for petitioner assailed the order and submitted that the petitioner had worked as part time Peon continuously from March, 1989 to May, 2004 however his service came to be illegally terminated. She placed reliance on the decision in case of Jayantilal Valjibhai Potadia v. State of Gujarat [2003 (2) G.L.H (U.J.) 4. She also placed reliance on the interim order passed by Division Bench in Civil Application No. 1014 of 2009 in Letters Patent Appeal No. 107 of 2009. She also placed reliance on the G.R. Dated 1.5.2007 and submitted that the respondent should have granted benefit of the said G.R. Dated 1.5.2007 to the petitioner. 5. Learned advocate Mr. Munshaw and learned AGP opposed the petition and submission by the learned advocate for petitioner. Mr. Munshaw, learned advocate submitted that the service of petitioner came to be terminated in view of the fact that the Dispensary at which the petitioner was appointed and working, came to be closed down and that, therefore, there was no scope of continuing the petitioner in service. He also submitted that since the service of the petitioner came to be terminated on account of closure of the dispensary, the action cannot be termed as illegal or arbitrary and there was no option with the respondent but to relieve the petitioner who was working as part time peon. He submitted that in light of the facts of the case the decisions on which the petitioner has placed reliance and the Resolution on which the petitioner relies are not applicable or relevant. 6. I have considered rival submission and material on record as well as the impugned order dated 31.5.2004. 7. For sake of convenience it would be appropriate to first deal with the petitioner's submission on strength of the decision in case of Jayantilal Valjibhai Potadia v. State of Gujarat (Supra). From the said decision it comes out that the petitioner in the said case had raised demand for regularisation. Issue was as to whether the petitioner's service was required as part time or full time employee and whether regular post should be created or not. From the said decision it comes out that the petitioner in the said case had raised demand for regularisation. Issue was as to whether the petitioner's service was required as part time or full time employee and whether regular post should be created or not. Having regard to the fact that the concerned petitioner was in service and he had worked, as part time employee, for more than 10 years in Class-IV category the Court observed that it was good case for consideration by the authority for regularisation of his service. 8. Whereas in present case, the question is not about regularisation of the service. 9. Undisputedly, the service of the petitioner has been terminated and that, therefore, question of regularisation of service with benefits of Class-IV employees does not survive. 10. Besides this, undisputedly, the petitioner's services is terminated on account of closure of the Ayurved dispensary where he was employed as part time employee (peon). Under the circumstances, the said decision does not assist the petitioner. 11. So far as decision dated 06.12.2009 in Civil Application No. 1014 of 2009 is concerned, the said order would also does not assist the petitioner, for more than one reasons. The first reason being the fact that in present case while admitting the petitioner or at any subsequent stage any interim relief against the order dated 31.5.2004 has not been granted and for the last 13 years there has not been any interim relief or any interim order against the order dated 31.5.2004. The termination of the petitioner's service has, by now, become 13 years old. The second reason being the fact that from the said decision dated 16.12.2009, it does not come out that the establishment wherein the person concerned in cited decision was employed was closed down and for that the service of the concerned person was terminated on account of closure of the establishment. 12. In present case, the fact that the establishment (Dispensary) came to be closed down, is born out from the interim order itself. The third reason is that the closure of the establishment is also, by now, thirteen years old. More important fact is that the Petitioner never challenged the factum or action of closure of the dispensary and in this petition also factum of closure or legality are no to challenged. 13. The third reason is that the closure of the establishment is also, by now, thirteen years old. More important fact is that the Petitioner never challenged the factum or action of closure of the dispensary and in this petition also factum of closure or legality are no to challenged. 13. Even the decision dated 6.12.1999 in Special Civil Application No. 3845 of 1993 does not help the case of the petitioner because in that case also the facts were materially different from the facts of this case. The service of the concerned petitioner in SCA No. 3845 of 1993 was not terminated on account of closure of the establishment. 14. Now so far as Resolution dated 1.5.2007 is concerned, it is necessary to note that the Government issued the said Resolution as one time measure for regularisation of service of part time employee subject to the condition mentioned in the Resolution i.e. regularisation of service of those part time employee who fulfill or comply the condition mentioned in the Resolution dated 1.5.2007. The said Resolution would also not assist the case of the petitioner in view of the fact that said Resolution came to be passed about 3 years after the service of the petitioner was terminated while the Resolution came to be passed, the petitioner was not in service. Another reason any light of which the said Resolution help the case of the petitioner is the fact that the very establishment in which the petitioner was working came to be closed down in May, 2004 and that therefore, question of regularisation does not survive. 15. At this stage, it is relevant to note that the document at Annexure "C" gives out that vide order/Resolution dated 15/26.05.2004, the Government had taken Policy decision to close down several Ayurvedic Dispensaries for reasons mentioned in the Order/ Resolution. By virtue of the said order/Resolution dated 15/26.05.2004 as many as 26 Dispensaries at different towns/villages came to be closed down and the employees including daily wagers, part time employees came to be terminated. The Ayurvedic Dispensary at Adatala, Taluka: Lathi, District: Amreli is one of the said 26 Dispensaries which came to be closed down and the employee at the said Dispensary came to be relieved. The Order dated 31.05.2004 obviously, is passed in pursuance of the said decision and order dated 15/26.05.2004. 16. The Ayurvedic Dispensary at Adatala, Taluka: Lathi, District: Amreli is one of the said 26 Dispensaries which came to be closed down and the employee at the said Dispensary came to be relieved. The Order dated 31.05.2004 obviously, is passed in pursuance of the said decision and order dated 15/26.05.2004. 16. Service of the petitioner is discontinued on account of closure of the established, and when the said establishment is not in dispute and when closure of the establishment or the order dated 15/26.05.2004 are not challenged and factum of closure is also not under challenge on any ground including the ground of malafide and/or on the ground that the closure is not genuine or it is facade, there is no justification to interfere with the impugned order and any ground to entertain the petition and disturb the order dated 31.5.2004, which is passed in pursuance of the Policy decision, is not made out and, therefore, the petition fails and is accordingly dismissed. Rule is discharged.