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Gujarat High Court · body

2017 DIGILAW 1689 (GUJ)

Devndrakumar Ambalal Vaghela v. State of Gujarat

2017-09-25

A.S.SUPEHIA

body2017
JUDGMENT : A.S. SUPEHIA, J. 1. By way of present petition, the petitioner has challenged the order dated 13.10.2009, whereby the services of the petitioner are terminated. 2. The brief facts of present petition are as under:- The petitioner was appointed by the order dated 28.10.2004 as Safai Kamdar on contractual basis for a period of 11 months. Thereafter, his service was extended time and again till the passage of impugned order. 3. Mr.Pradeep Patel, learned advocate for the petitioner has vehemently submitted that the impugned order of termination dated 13.10.2009 is passed dehors the condition contained in the appointment order dated 28.10.2004. He has stated that no notice or notice pay was given to the petitioner before terminating the petitioner from the service. Thus, the respondent authority has violated condition no.2 of the appointment order dated 28.10.2004. 4. Mr. Patel, learned advocate has also drawn the attention of this Court to the averments made in affidavit in reply, wherein he pointed out that there are three reasons of termination of services i.e. he remained absent, his services were not required and indiscipline on the part of the petitioner. 5. He has stated that the order dated 13.10.2009 does not bear any signature of the petitioner. Since, he had apprehended termination, he filed writ petition before this Court. During the pendecy of the petition, the termination order was handed over to the petitioner which was subsequently challenged by way of amendment. 6. He has further stated that the leave of the petitioner from 02.10.2009 to 04.10.2009 was sanctioned. Thereafter, the petitioner went to resume his duty, but he was not allowed to do so. Thus, he has stated that the petitioner cannot be faulted with any reason which would justify the order of termination. 7. Per contra, Mr. Soni, learned AGP has stated that as per the condition no.12 of the appointment order dated 28.10.2004, the services of the petitioner can be terminated without any notice, if his service is found unsatisfactory or he is involved in any discipline. He has stated that the petitioner service was contractual in nature and any employee who is employed on adhoc contractual basis has no right to continue in service. He has also stated that during the period from 2004-2009, the petitioner remained absent for 372 days. 8. He has stated that the petitioner service was contractual in nature and any employee who is employed on adhoc contractual basis has no right to continue in service. He has also stated that during the period from 2004-2009, the petitioner remained absent for 372 days. 8. Learned AGP has contended that the petitioner was in habit of remaining absent though he was asked to report for duty after his leave from 02.10.2009 to 04.10.2009, but he did not remain present. He has stated that the petitioner had only worked for one day in the month of October – 2009 i.e. 01.10.2009 and he went on leave and had not worked for the entire month. He has stated that the petitioner was appointed on contractual ad-hoc basis for 11 months and it is not that only the petitioner is terminated by the impugned order dated 13.10.2009, where as other similarily situated persons were also terminated, as their services were not required. 9. Mr. Soni, learned AGP has also pointed out that after passing the impugned order, recruitment of regular process was also carried out in which as per recruitment rules, persons, who are S.S.C. passed are appointed. He has also pointed out to the appointment letter made pursuant to the said recruitment rules, wherein all the candidates who are recruited are S.S.C. Pass. He has also stated that the petitioner cannot be appointed, as he is not S.S.C. Pass. 10. I have given thoughtful consideration to the rival submissions made by learned advocates for the respective parties. 11. The order dated 28.10.2004 appointing the petitioner clearly reveals that the petitioner was appointed on contractual basis for the period of 11 months. He was also appointed on the fixed-scale of Rs.1500/-. The condition no.2 states that the services of the petitioner will be terminated at any point of time by giving one month notice or one month pay. The condition no.12 specifically mentions that during the contract period, if the duties of the petitioner are found unsatisfactory or he is involved in any indiscipline, then the service of the petitioner would be ended without giving any notice. 12. By the order dated 18.09.2016, passed by this Court, learned advocate Mr. Pradeep Patel was specifically asked to produce any communication or intimation given by the petitioner to the authorities before proceeding on leave. No such intimation or letter is shown to this court. 12. By the order dated 18.09.2016, passed by this Court, learned advocate Mr. Pradeep Patel was specifically asked to produce any communication or intimation given by the petitioner to the authorities before proceeding on leave. No such intimation or letter is shown to this court. 13. Thus, looking to the nature of appointment of the petitioner, it can be said that the petitioner was appointed on contractual basis. The Supreme Court in the case of Director, Institute of Management Development U.P. Vs. Smt. Pushpa Srivastava, reported in 1992 4 SCC 33 , has observed that any appointment which is made only for a limited period comes to an end after the expiry of such period and the right to remain on the post also comes to an end. 14. The Hon'ble Supreme Court in the case of Vidyavardhaka Sangha & Anr. Vs. Y.D. Deshpande & Ors., reported in (2006) 12 SCC 482 has held as under:- “4. It is now well-settled principle of law that the appointment made on probation/ad hoc basis for a specific period of time comes to an end by efflux of time and the person holding such post can have no right to continue on the post. In the instant case as noticed above, the respective respondents have accepted the appointment including the terms and conditions stipulated in the appointment orders and joined the posts in question and continued on the said posts for some years. The respondents having accepted the terms and conditions stipulated in the appointment order and allowed the period for which they were appointed to have been elapsed by efflux of time, they are not now permitted to turn their back and say that their appointments could not be terminated on the basis of their appointment letters nor they could be treated as temporary employees or on contract basis. The submission made by the learned counsel for the respondents to the said effect has no merit and is, therefore, liable to be rejected. It is also well-settled law by several other decisions of this Court that appointment on ad hoc basis/temporary basis comes to an end by efflux of time and persons holding such post have no right to continue on the post and ask for regularisation, etc.” 15. The petitioner was bound by the condition to the appointment letter dated 28.10.2004. It is also well-settled law by several other decisions of this Court that appointment on ad hoc basis/temporary basis comes to an end by efflux of time and persons holding such post have no right to continue on the post and ask for regularisation, etc.” 15. The petitioner was bound by the condition to the appointment letter dated 28.10.2004. The undisputed fact remains that he was habitual absentee and after proceeding on leave from 02.10.2009 to 04.10.2009, he did not resume on duty. No communication or letter is produced by the petitioner which would indicate that he has tried to resume the duty. Thus, the case of the petitioner would fall under condition no.12 which he has accepted without any demur. Moreover, the petitioner cannot be appointed to the post as the requisite qualification for the said post is S.S.C. pass, which the petitioner does not possess. In view of aforesaid observations, present petition stands dismissed. Rule is discharged. Petitions dismissed.