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2018 DIGILAW 343 (GUJ)

BHARATSINH M JHALA v. STATE OF GUJARAT

2018-02-01

A.Y.KOGJE, AKIL KURESHI

body2018
JUDGMENT : AKIL KURESHI, J. 1. This appeal is filed by the original petitioner challenging the judgment of the learned Single Judge dated 06.09.2011 passed in Special Civil Application No.12805 of 2010. 2. Brief facts are as under:- 2.1 The petitioner was engaged as a part-time daily wager peon in the office of City Survey Superintendent, Ahmedabad on 01.12.1992. He continued in such position till his services were terminated on 28.02.2006. He challenged this termination and also sought regularization in service by filing Special Civil Application No.7650 of 2006. His petitions along with number of other petitions involving similar issues came to be disposed of by the learned Single Judge by common judgment dated 18.09.2006. The learned Single Judge did not grant direction for regularization of service to any of the employees in view of the judgment of the Supreme Court in case of Secretary, State of Karnataka & Ors. Vs. Umadevi & Ors., reported in (2006) 4 SCC, 1. However, referring to the observations of the Court in para-53 of the said judgment (of SCC), the learned Judge directed the Departments concerned to consider the cases in light of actual facts, bearing in mind the directions of the Supreme Court. We may record that the Supreme Court in para-53 of the judgment in case of Umadevi (supra), had made distinction between the irregular appointments where the employee otherwise fulfilled all criteria for being appointed on the post in question as against illegal appointments. 2.2 After consideration as desired by the Court, the Department rejected petitioner’s request for reinstatement and regularization, so conveyed under letter dated 01.07.2010, upon which the petitioner filed fresh petition in which the learned Single Judge passed the impugned judgment. The learned Single Judge was of the opinion that in view of the judgment of the Supreme Court in case of Umadevi (supra), prayers cannot be granted since initial appointment of the petitioner in service was not in accordance with statutory rules framed by the Government. This judgment the petitioner has challenged in the present Letters Patent Appeal. 3. Appearing for the appellant, learned Counsel Shri Clerk submitted that the petitioner had discharged duties for nearly 14 years before his services were terminated. His initial appointment was on sanctioned post made by the Head of the Department, who had the powers to do so. This judgment the petitioner has challenged in the present Letters Patent Appeal. 3. Appearing for the appellant, learned Counsel Shri Clerk submitted that the petitioner had discharged duties for nearly 14 years before his services were terminated. His initial appointment was on sanctioned post made by the Head of the Department, who had the powers to do so. The petitioner fulfilled all requisite criteria to be appointed on the post in question. In fact, after the High Court in the first round of litigation directed the Department to consider his case, the office of the City Survey Superintendent had recommended his case for regularization, despite which the Government rejected his request without citing reasons. 3.1 Counsel relied on following judgments in support of his contentions:- I. In case of Amarkant Rai Vs. State of Bihar & Ors., reported in (2015) 8 SCC, 265. II. In case of Sandhya Vs. State of Maharashtra & Ors., reported in (2014) 13 SCC, 260. III. In case of Prem Ram Vs. Managing Director, Uttarakhand Pey Jal and Nirman Nigam, Dehradun & Ors., reported in (2015) 11 SCC, 255. I. In case of Oil and Natural Gas Corporation Limited Vs. Petroleum Coal Labour Union & Ors., reported in (2015) 6 SCC, 494. 3.2 Counsel also brought to our notice the developments which took place during the pendency of the Letters Patent Appeal. In Civil Application No.13610 of 2011, Division Bench of this Court passed detailed reasoned order on 26.12.2011 and had issued the following interim directions:- “3. RULE. NOTICE as to interim relief returnable on 24.01.2012. 3.1 Taking into consideration the facts of the case, the respondents are directed to allow the applicant to discharge his duties as peon in the office of City Survey Superintendent, No.1, respondent No.2 herein, which he was performing prior to his termination and pay him salary and consequential benefits on that basis. It is expected that the authorities will effect the aforesaid order as early as possible, but not later than 16.01.2012. 3.2 In light of the fact that Division Bench of this Court (Coram: Hon'ble the Chief Justice Mr. S.J. Mukhopadhaya and Hon'ble Mr. It is expected that the authorities will effect the aforesaid order as early as possible, but not later than 16.01.2012. 3.2 In light of the fact that Division Bench of this Court (Coram: Hon'ble the Chief Justice Mr. S.J. Mukhopadhaya and Hon'ble Mr. Justice Akil Kureshi) in order dated 26.08.2010 in Special Civil Application No.2492 of 2009, has quoted that, “State Government in its different establishments engages persons on fixed pay basis and after completion of certain years, they are taken in the regular establishment and a minimum amount of Rs.1500/- is paid to Class-IV employees, which is now revised to Rs.3500/-”, it will be in fitness of things to direct the respondents herein to pay the applicant an amount not less than Rs.3,500/-. Order accordingly. Direct service is permitted.” 3.3 While disposing of the said Civil Application by order dated 26.02.2013, such interim order was continued. That is how, the petitioner is presently discharging his duties as a daily wager peon and is being remunerated at the prescribed rates for such employees. 4. On the other hand, learned AGP Shri Jani opposed the appeal contending that the learned Single Judge has given cogent reasons and correctly applied the law laid down by the Supreme Court in case of Umadevi (supra). He relied on the affidavits filed by the respondents to highlight that now the Government has decided to outsource similar work and it was through such outsourced agency that the petitioner himself was being engaged in the said office, of course, till the interim directions issued by this Court in the above noted Civil Application. 4.1 Learned AGP also relied on the judgment in case of State of Jammu and Kashmir & Ors. Vs. District Bar Association, Bandipora, reported (2017) 3 SCC, 410, in which, the Court referring to the judgment in case of Umadevi (supra), reiterated the observations made in case of Renu Vs. District and Sessions Judge, reported in (2014) 14 SCC, 50. 5. The facts on hand are in a narrow compass. The petitioner was engaged as a daily wage part-time peon in the year 1992 and continued in such position till 28.02.2006 when he was terminated. His petition against such order and also seeking regularization met with limited success. District and Sessions Judge, reported in (2014) 14 SCC, 50. 5. The facts on hand are in a narrow compass. The petitioner was engaged as a daily wage part-time peon in the year 1992 and continued in such position till 28.02.2006 when he was terminated. His petition against such order and also seeking regularization met with limited success. The Court in group of petitions desired the Government to consider the impact of the observations made by the Supreme Court in para-53 in judgment of Umadevi (supra). The State Government rejected the request of the petitioner for regularization. His petition came to be dismissed by the learned Single Judge. Pending Letters Patent Appeal, he is ordered to be reinstated as a daily wager and on such position, he is working since then. 6. Having heard learned Advocates for the parties, we do not find that the learned Single Judge committed any error in refusing the petitioner’s prayer for regularization. The law on the issue has been sufficiently discussed and clarified in the Constitution Bench judgment in case of Umadevi (supra), in which practice of regularization of employees who are appointed without following statutory requirements has been deprecated and categorize as “back door entries”. Admittedly, the petitioner was appointed as part-time daily wager peon by the Head of the Department. There is nothing on the record to suggest that at the relevant time, any selection process was undertaken, giving opportunity to all similarly situated eligible candidates to compete. We have therefore proceeded on such basis. The situation that would arise therefore is the petitioner was engaged by the Head of the Department, of course, in exercise of his discretionary powers as may be available at the relevant time, nevertheless without following any other procedure. In view of the judgment of the Supreme Court in case of Umadevi (supra), he cannot seek regularization. These principles were reiterated by the Supreme Court in case of Renu (supra), holding that all public employments must be visited by equality principles flowing from Articles 14 and 16 of the Constitution. To the same effect, observations were made in case of State of Jammu and Kashmir (supra). 7. The reliance on the GR dated 01.05.2007, as later on amended by GR dated 16.05.2008 placed by the Counsel for the petitioner also would be of no help. To the same effect, observations were made in case of State of Jammu and Kashmir (supra). 7. The reliance on the GR dated 01.05.2007, as later on amended by GR dated 16.05.2008 placed by the Counsel for the petitioner also would be of no help. These GRs were issued pursuant to the judgment of this Court dated 18.09.2006, in which, the case of the petitioner was also decided. In the GR dated 01.05.2007, the Government granted regularization to the employees who fulfilled the conditions contained therein by way of one time measure. One of the conditions was that the employee should have put in minimum of 10 years of service as part-time employment of six hours. Such tenure should not be due to the protection granted by a Court or Tribunal. He would be considered for regularization on permanent post subject to the condition that his initial appointment was after following the then prevailing procedure, i.e. after calling names from Employment Exchange. Additional condition was that his appointment should be against the full time permanent vacancy. This later condition was modified in the GR dated 16.05.2008 that his appointment should be against sanctioned, temporary or permanent post. 8. The essence of the said GRs would be that the employment should be of not less than 10 years without the aid of the Court protection and that the initial appointment should be after following the then prescribed procedure of calling names from Employment Exchange. This would ensure atleast semblance of procedure being followed enabling all similarly situated eligible candidates to have competed. When these conditions are not fulfilled, the claim of the petitioner for regularization must fail. 9. We may now refer to the judgments cited by the Counsel for the appellant. In case of Amarkant Rai (supra), the Court found that similarly situated employees were regularized pursuant to a Government resolution, leaving the appellant unprotected. It was in this background, the Court directed his regularization in service. 10. In case of Sandhya (supra), the facts were vitally different. The employees belonged to a special category of unpaid candidates. Their emoluments came from copying charges received by the Department, 70% of which would be absorbed towards their wages and 30% would be credited to the Government. Their services were terminated, which termination was set aside. 10. In case of Sandhya (supra), the facts were vitally different. The employees belonged to a special category of unpaid candidates. Their emoluments came from copying charges received by the Department, 70% of which would be absorbed towards their wages and 30% would be credited to the Government. Their services were terminated, which termination was set aside. The High Court disallowed the benefit of the GR dated 10.03.2005 on the ground that they were not in service on such date. It was in this background, the Supreme Court held that once termination was set aside, the employees would be deemed to be in service as on 10.03.2005. 11. In case of Prem Ram (supra), again the facts were different. It was a case where persons junior to him, who were working in the work charge establishment were regularized. The Court found that there was no qualitative difference between the daily wagers and employees engaged in the work charge establishment. It was in this back that the petitioner was directed to be regularized from the date his juniors were granted such benefits. 12. In case of Oil and Natural Gas Corporation Limited (supra), the Court held that the organization, which is a State within the meaning of Article 12 of the Constitution, cannot act arbitrarily or unreasonably. The Court also found that the ONGC itself had issued certified standing orders, which contained the scheme for regularization and the ONGC was bound by such scheme and implement it uniformly. 13. Though the petitioner’s principal claim for regularization would fail in view of the discussion above, the question is what should be the final order? We have noted that the petitioner continued in service uninterruptedly without any protection from any Court or Tribunal between 01.12.1992 to 28.02.2006, i.e. for close to 14 years. Under interim order of this Court dated 26.12.2011, he was ordered to be reinstated in service and paid the prevailing wages meant for daily wagers. This order was confirmed and would operate till final disposal of the appeal, when Civil Application was disposed of on 26.02.2013. By now, close to 25 years have passes since the petitioner’s initial engagement, making him completely ineligible in law as well as in practicality for any other whole employment. This order was confirmed and would operate till final disposal of the appeal, when Civil Application was disposed of on 26.02.2013. By now, close to 25 years have passes since the petitioner’s initial engagement, making him completely ineligible in law as well as in practicality for any other whole employment. Terminating his services and paving the way for other temporary or ad hoc appointment or even appointing another person through contractual arrangement, would be wholly inequitable. In any case, as per the settled law, an ad hoc employee cannot be substituted by another ad hoc employee without there being any special reasons. Additionally, learned Counsel Shri Clerk had drawn our attention to the judgment dated 07.07.2017 passed by Division Bench in Letters Patent Appeal No.107 of 2009. The facts in the said case were substantially similar. In such case also, the Division Bench had directed reinstatement of the employee during pendency of the appeal, which order continued till the Letters Patent Appeal was taken up for final disposal. While disposing of the Letters Patent Appeal by judgment dated 07.07.2017, the Court protected the employee from termination by giving following directions:- “6. In view of the interim order passed in the appeal on 16.12.2009, the appellants in the present appeal are continued in service. 7. As seen from the facts of the case, the appellants were initially engaged in the year 1990-1994. Pursuant to the interim order passed in the year 2009, in the present Appeal, the Appellants were reinstated and are still continued in service. 8. Looking to the prayer in the present appeal and in view of the fact that the appellants/petitioners have continued in service for sufficiently long period of time, after passing of the interim order in the year 2009, interests of justice, it would be served if direction to be issued to the respondent authorities to continue the appellants in service. 9. In view of the fact that the petitioners/appellants have been protected, the respondents are directed to see that if the work in question for which they have employed is continued, such work which the appellants carry out shall not be outsourced nor will the appellants will be replaced by any ad hoc employees till the appellants reach the age of superannuation prescribed for Class IV employees. The appeal is disposed of accordingly.” 14. We would adopt the same modality in the present case also. The appeal is disposed of accordingly.” 14. We would adopt the same modality in the present case also. While disposing of the appeal and confirming the view of the learned Single Judge regarding non-granting of the benefit of regularization to the petitioner, it is further provided that his services shall not be terminated as long as the work continues by replacing him by any other ad hoc employee or taking work through outsourcing till the petitioner reaches age of superannuation prescribed for Class-IV employees in the State Government. It is clarified that he would receive remuneration at the rates prescribed for similarly situated other daily wagers in the Government and as may be revised from time to time. If for some reasons, such rates are not paid, the same shall be paid with back date.