Research › Search › Judgment

Gujarat High Court · body

2018 DIGILAW 123 (GUJ)

Jorabhai Devkaranbhai Roz v. State of Gujarat

2018-01-15

A.S.SUPEHIA

body2018
JUDGMENT : 1. Since the issue involved in the present writ petitions are similar, though, the facts are differed. The facts are being incorporated from Special Civil Application No. 1950 of 2010 as lead matter. 2. In the present writ petition, the petitioners have prayed for direction to consider their case for giving permanent appointment in the post of Class-IV, in view of the Circular of Finance Department dated 01.05.2007. 3. The brief facts giving rise to the present petition are that : 4. It is the case of the petitioners that they were appointed on the post of peon for temporary basis by the Collector, Banaskantha. Petitioner no.1 has been appointed since 1994 and petitioner no.2 has been appointed since 1996. It seems that this is the third round of litigation for the very same cause. The facts narrated in the order dated 24.02.2005 passed in Special Civil Application no. 14138 of 2004 filed by the present petitioners are being reiterated in the present order. 5. As recorded by this court in the aforesaid order, the petitioners had earlier approached this court for a similar prayer. This court directed the respondents to consider the case of the petitioners sympathetically and to pass appropriate order in accordance with law. 6. It is observed by this court that the petitioners were appointed for the election duty as and when their service was required from the Employment Exchange. The said writ petition was rejected vide order dated 24.02.2005. Letters Patent Appeal No. 1269 of 2006 filed against the aforesaid order dated 24.02.2005, was also dismissed. 7. Learned advocate Mr.Prajapati appearing for the petitioners has stated that the case of the petitioners will squarely fall under the Resolution dated 01.05.2007, issued by the Finance Department, State of Gujarat, under which as a “One Time Measure” services of the part time employees are required to be regularised after completion of 10 years service as the petitioners have completed 10 years service. By the impugned order dated 15.03.2011, while considering the case of the petitioner for regularisation, the respondents have heard and rejected their case by placing reliance on the condition of the aforesaid Resolution, since as per the details provided in the writ petition at Page 37 and 39, the petitioners have completed 10 years service. By the impugned order dated 15.03.2011, while considering the case of the petitioner for regularisation, the respondents have heard and rejected their case by placing reliance on the condition of the aforesaid Resolution, since as per the details provided in the writ petition at Page 37 and 39, the petitioners have completed 10 years service. He has submitted that it is also the case of the respondent authority that the petitioners have completed 10 years of service and hence, the service is required to be regularised in view of the Resolution dated 01.05.2007. 8. Learned advocate Mr.Prajapati has placed reliance on the notes provided under the Right to Information Act, 2005, (the RTI Act). While considering the case of regularisation, it is noted by the committee that the petitioners have completed 10 years of service and their services are required to be regularised. 9. He has also submitted that the employees working in the other departments namely, in the Education Department as well as in the Police Department have been regularised after completion of 10 years in view of the aforesaid Resolution. He has submitted that the service of the petitioners being maintained by the respondent authority hence, they cannot be regularised part time or temporary employees and hence, benefits of Resolution dated 01.05.2007 cannot be implemented. 10. Learned AGP Mr.Chintan Dave has placed reliance on the affidavit-in-reply filed by the respondent authority, wherein he has drawn the attention to Para7 thereof, wherein it is stated that petitioner no.1 i.e. Mr.Jorabhai Roz has worked only for 659 days and petitioner no.2 Mr.Salimkhan D. Ghasura has worked for 839 days. He has submitted that the services of the petitioners are intermittent and not continued as they were required for the election duty as and when the election is held. He has submitted that they were not appointed by the regular recruitment process and their names were called from the Employment Exchange and were alloted duty during the election period. He has submitted that 10 years service calculated by the petitioners in their own method and manner cannot be adopted since their service for election duty was temporary and thereafter, they have been continuously appointed on fixed pay on contractual basis since 2000 and that too intermittently. 11. He has submitted that 10 years service calculated by the petitioners in their own method and manner cannot be adopted since their service for election duty was temporary and thereafter, they have been continuously appointed on fixed pay on contractual basis since 2000 and that too intermittently. 11. Learned AGP Mr.Chintan Dave has submitted that the petitioners cannot pray for regular appointment in view of their own submission made before this court in the earlier round of litigation that their case may be considered only for ad hoc basis. He has submitted that in the order dated 06.11.2006 passed by the Division Bench in the LPA filed by them, the Division Bench has also observed that the case of the petitioners can be considered for appointment at the time when appointments are to be made in future keeping in mind the relaxation in age limit, if it is permissible in accordance with law. Thus, it is contended by learned AGP that after unsuccessful round of litigation, merely because the State Government has issued Resolution dated 01.05.2007, their services cannot be regularised neither they can be given regular appointment. 12. Heard the learned advocates for the respective parties and perused the documents on record. 13. In the writ petition being Special Civil Application No. 14138 of 2004, this court vide order dated 24.02.2005 has rejected the case of the petitioners by observing that when the purposes for which the petitioners were engaged came to an end and their fixed term of appointment also came to an end, the petitioners have no right to continue in service. It was further observed that most of the engagements of the petitioners were for emergency services such as holding of elections, disaster management or management of drought relief. The petitioners have no right to claim regularisation and any such regularisation would amount to back door entry, since the petitioners have not faced regular selection process for fillingup permanent vacancies. 14. After inviting such observations, learned advocate for the petitioners submitted before the court that the case for ad hoc appointment may be considered in view of the observations made by the Division Bench as quoted in Para – 7 of the said order. 15. Thus, the case of the petitioners for regularisation or to give them appointment on regular vacant posts was rejected by this court vide order dated 24.02.2005. 15. Thus, the case of the petitioners for regularisation or to give them appointment on regular vacant posts was rejected by this court vide order dated 24.02.2005. The only liberty given to them was that in case any appointments were to be made on ad hoc basis, they shall be given priority. Before the Division Bench in Letters Patent Appeal No. 1269 of 2006, the petitioner prayed for age relaxation in appointing the petitioner in future and the petitioners had withdrawn the LPA with a view to make a representation. 16. By the Resolution dated 01.05.2007, the State Government as a “One Time Measure” decided to give appointment to those employees who were working on part time basis, and who had completed 10 years of service i.e. on 10.02.2006 for six hours. As per the condition of the aforesaid Resolution, the case of the petitioners were rejected. Thus, the requirement envisaged under the said Resolution 10 years service for six hours completed on 10.02.2006, hence, the petitioners were required to fulfill the same, for getting the benefit under the said Resolution. 17. The statement produced by the respondent in the affidavit in reply dated 05.03.2012 would suggest that petitioner no.1 Shri Jorabhai Devkaranbhai Roz was appointed for intermittent period as and when his service is required for temporary basis, From To Days 16/11/94 30/04/95 165 26/03/96 31/05/96 67 15/03/97 30/04/97 46 30/07/99 31/10/99 94 18. Thereafter, he was appointed on contractual basis in the fixed pay of Rs.1350/, From To Days 01/08/00 30/09/00 61 01/10/00 31/10/00 31 14/11/02 31/01/03 78 05/03/04 30/06/03 117 19. Whereas petitioner no.2 Shri Salimkhan D. Ghasura was appointed for temporary period, From To Days 26/03/96 31/05/96 67 15/03/97 30/04/97 46 02/06/02 30/06/00 28 03/07/02 31/07/00 28 Thereafter, he was appointed on contractual basis on fixed pay of Rs.1350/from 01.08.2000 to 30.06.2004. 20. The conspectus of the aforesaid statement of the service of the petitioners would clarify that the petitioners were appointed on temporary basis initially and thereafter, they have been continuously appointed on contractual basis on fixed pay of Rs.1350/. The Resolution dated 01.05.2007 stipulates that the period/tenure of service rendered by an employee on “part time” basis, for 10 years will be considered for regularisation. Unquestionably, the petitioners were not working on “part time” basis but on “contractual” basis. 21. The Resolution dated 01.05.2007 stipulates that the period/tenure of service rendered by an employee on “part time” basis, for 10 years will be considered for regularisation. Unquestionably, the petitioners were not working on “part time” basis but on “contractual” basis. 21. Condition no.2 of the Resolution dated 01.05.2007 states that such part time employee should have been appointed by undergoing regular recruitment process as per the recruitment rules. Meaning thereby, the same should have been made through the Employment Exchange, Social Welfare Officer etc. as per the Government Recruitment Rules. In the present case, as observed by this court in order dated 24.04.2005 passed in Special Civil Application No. 14138 of 2004, engagements of the petitioners were for emergency services such as holding of elections, disaster management or management of drought relief. 22. This court in the order dated 24.02.2005 in Special Civil Application no. 14138 of 2004, has importantly observed that the petitioners have no right to claim regularisation and any such regularisation would amount to back door entry, since the petitioners have not faced regular selection process for filling up permanent vacancies. Resolution dated 01.05.2007 would not apply in the case of the petitioners as the same applies to those employees, who are working on part time basis for 10 years for 6 hours continuously. Admittedly, in the present case the petitioners were appointed intermittently as and when their services were required initially for temporary period and thereafter, on contractual basis on a fixed pay of Rs.1350/. The writ petition is silent on any statutory rules and regulations, which provide for regularisation of appointment of such employees, as the petitioners working on contractual basis. Merely because while considering their case, the committee has observed that the petitioners have completed 10 years of service, the same would not give any right to the petitioners to claim regular appointment in absence of the statutory rules and regulations, which would confer them such rights. 23. In the affidavit-in-reply, the respondent authorities while calculating service have stated that petitioner no.1 had completed only 659 days, whereas petitioner no.2 had worked for 839 days. 23. In the affidavit-in-reply, the respondent authorities while calculating service have stated that petitioner no.1 had completed only 659 days, whereas petitioner no.2 had worked for 839 days. The only right was kept open by the court in earlier round of litigation on 24.04.2005, to consider the case of the petitioners by the respondent authority for only ad hoc basis, whereas the case of the petitioners was rejected by the respondent authorities by observing that such regularisation would amount to back door entry. The Division Bench in the order dated 06.11.2006 passed in Letters Patent Appeal No. 1269 of 2006 has also refused to interfere with the aforesaid observation and the petitioners had withdrawn the Letters Patent Appeal in order to make a representation. Merely because the State Government has come up with a Resolution thereafter, the same would not wipe out the observations made by this court, more particularly, when the petitioners themselves had invited the observations for considering their case on ad hoc appointment. 24. At this juncture, it would be apposite to refer the observations made in the case of Raj Balam Prasad Vs. State of Bihar, reported in A.I.R. 2017 S.C. 5572 (Para Nos. 19,20 and 21) thus: “19. In out opinion also, when the appointment of the appellants (writ petitioners) was made for a fixed period in exercise of the powers under Rule57A and the said appointment period having come to an end in the year 1991 after granting some extension, we fail to appreciate as to how the appellant could claim to remain in service after 1991. 20. One cannot dispute that the State has the power to appoint persons for a temporary period under the Act and Rules framed thereunder and once such power was exercised by the State, the status of such appointment continued to be that of temporary employee notwithstanding grant of some extensions to them for some more period. 21. In other words, the grant of extension to work for some more period to the writ petitioners could never result in conferring on them the status of a permanent employee or/and nor could enable them to seek regularisation in the services unless some rules had recognised any such right in their favour.” 25. 21. In other words, the grant of extension to work for some more period to the writ petitioners could never result in conferring on them the status of a permanent employee or/and nor could enable them to seek regularisation in the services unless some rules had recognised any such right in their favour.” 25. Thus, in view of the observations made by this court in order dated 24.02.2005 passed in Special Civil Application No. 14138 of 2004 as well as the Apex Court and more particularly, the Resolution dated 01.05.2007, under which the present relief claimed by the petitioners, would not apply in their case, the present writ petitions deserve to be dismissed and the same are hereby dismissed. Rule is discharged. No costs.