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2018 DIGILAW 50 (GUJ)

Bharatbhai Jadavji Prajapati v. State of Gujarat Thro Secretary

2018-01-10

A.S.SUPEHIA

body2018
JUDGMENT : 1. By way of the present writ petition, the petitioner has prayed for a direction directing the respondents to regularize the services of the petitioner to the post of peon from his initial date of appointment. It is the case of the petitioner that the petitioner was appointed as a part-time peon against the permanent vacant post under respondent No.2 on 01.05.1985. Since he was not made permanent and was granted artificial break in services of the petitioner, he approached the Court of Civil Judge (J.D.) at Wankaner by instituting Civil Suit No.30 of 1990, which was partly decreed in favour of the petitioner by regularizing his period of artificial break and to appoint him as peon as per Rules. Thereafter, the respondents filed a review application being Civil Misc. Application No.9 of 1997 before the Court of Civil Judge (J.D.), Wankaner, the same was also dismissed vide order dated 28.01.1988. Aggrieved and dissatisfied by the said order, the respondents preferred Regular Civil Appeal No.2 of 1998 before the Court of 4th Assistant Judge, Morbi, which also came to be dismissed vide order dated 13.02.2002. 2. The respondents further challenged the said order before this Court by filing Civil Revision Application No.433 of 2002 and the same was summarily dismissed by this Court vide order dated 18.04.2002. Since the respondents did not regularize the present petitioner in view of the aforesaid orders in his favour, he filed Misc. Civil Application No.1618 of 2008 for initiation of contempt proceedings before the Division Bench of this Court. The same were withdrawn by the order dated 17.07.2009 with a view to approach appropriate form for implementation of the order regularizing his services. The petitioner, pursuant to the aforesaid withdrawal of the Misc. Civil Application for contempt, filed Civil Misc. Application No.19 of 2009 before the Court of Principal Civil Judge (J.D.), Wankaner, which is still pending. 3. Learned advocate for the petitioner has vehemently submitted that neither his civil application is being decided by Principal Civil Judge (J.D.), Wankaner, nor the respondents are regularizing his services. He has stated that all the orders are in his favour, the only predicament is that the respondent authorities are sitting tight over the orders, as no decision is being taken by the civil court in his application. He has stated that all the orders are in his favour, the only predicament is that the respondent authorities are sitting tight over the orders, as no decision is being taken by the civil court in his application. In this view of the matter, he has urged that the present writ petition may be allowed and the case of the petitioner may be considered for regularization of his services in light of Government Resolution dated 01.05.2007 issued by the Finance Department, State of Gujarat, wherein it is provided that after completion of 10 years of service an employee has to be regularized in service. 4. The aforesaid facts would suggest that the petitioner, for the same cause has filed two parallel proceedings – one before the civil court for implementation of judgment regularizing his break in service and regular appointment and the second before this Court for seeking a direction of regularization of his services; though under Government Resolution dated 01.05.2007. It is settled law that for the same cause the petitioner cannot approach two forums simultaneously. Misc. Civil Application (for contempt) No.1618 of 2009 was withdrawn by the present petitioner in order to approach appropriate forum for implementation of the order regularizing his break in service, pursuant to which the petitioner has already filed Misc. Civil Application No.19 of 2009 before the Court of Principal Civil Judge (J.D.), Wankaner. Thus, the present petition seeking prayer of regularization is not maintainable and it would be advisable for the petitioner to pursue his Misc. Civil Application No.19 of 2009 for implementation of the orders of the courts below. 5. The contention of the learned advocate for the petitioner that the case of the petitioner is to be regularized as per Government Resolution dated 01.05.2007 issued by the State Government as he has completed 10 years of service cannot be examined at this stage as there is an adjudication on the regularization of break in service of the petitioner in his favour, wherein the courts below have already held him to be eligible for regularization and has also ordered to appoint him as peon as per Rules. Accordingly, the said judgment and decree has been confirmed by this Court in Civil Revision Application No.433 of 2002. In case Civil Misc. Accordingly, the said judgment and decree has been confirmed by this Court in Civil Revision Application No.433 of 2002. In case Civil Misc. Application No.19 of 2009 is allowed in favour of the petitioner his appointment as a peon will be regularized from the date of appointment, hence, the prayer made in the present petition will be satisfied. 6. As observed earlier, the application of the petitioner is already pending since 2009 and the same is not yet decided. As the regularization of break in service of the petitioner is confirmed upto this Court, it is expected that the civil court shall expeditiously decide the application of the petitioner being Civil Misc. Application No.19 of 2009, if the same is not yet decided, and pass appropriate orders. 7. The present petition is disposed of in the aforesaid terms. RULE is made absolute to that extent.