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2022 DIGILAW 76 (GUJ)

Halvad Municipality v. State of Gujarat

2022-01-12

N.V.ANJARIA, SAMIR J.DAVE

body2022
JUDGMENT : N.V. Anjaria, J. 1. Heard learned advocate Mr. Dhaval Vyas for the appellant-Municipality, learned Assistant Government Pleader Mr. Sahil Trivedi for respondent No. 1-State and learned advocate Mr. T.R. Mishra for learned advocate Mr. Koshti for private respondent No. 2. 2. The present Letters Patent Appeal filed under Clause 15 of the Letters Patent is directed against judgment and order dated 31st July, 2021 of learned Single Judge, whereby the petition of the respondent No.2 herein came to be allowed. The respondents-Nagarpalika as well as Secretary, Urban Housing Department, are directed to pass orders appointing the petitioner on the post of Cleaner which is already sanctioned by the Director of Municipalities by order dated 03rd September, 2013. It is further directed to pay arrears of salary to the petitioner and other consequential benefits as above paid to the regular employee, completing such exercising within four weeks and it was further provided that failure to comply would attract interest on the payment to be made to the petitioner. 2.1. In the Special Civil Application what was prayed by the petitioner was for direction against the respondent authorities to appoint the petitioner on the post of Cleaner and to give benefits equal to regular employee. 3. The petitioner joined services in the Municipality as daily wager with effect from 24th July, 1996 and worked till 2003. It is stated that he worked continuous. It appears that in the year 2000 services of the petitioner along with other employees came to be terminated. The petitions came to be filed and petitioner came to be reinstated in service. In Letters Patent Appeal No. 1202 of 2002 filed by the Municipality against order in Special Civil Application No. 9916 of 2000 of learned Single Judge, observations were made by the Division Bench to consider the case of the petitioner for future appointment. It was stated that Special Leave Petition filed against the said order of the Letters Patent Bench was dismissed. 3.1. As the Municipality failed to act in accordance with the observation of the Division Bench to give preference to the petitioner for future appointment, petitioner made representation. As no response forth-came, petitioner filed Special Civil Application No. 13836 of 2008 with a grievance that the Municipality had not been extending the benefits available to the regular employee despite the fact that petitioner had been working since long. As no response forth-came, petitioner filed Special Civil Application No. 13836 of 2008 with a grievance that the Municipality had not been extending the benefits available to the regular employee despite the fact that petitioner had been working since long. The said petition was disposed of by order dated 17th March, 2009 requiring the Municipality to act upon the representation of the petitioner in light of the observations of the Division Bench mentioned above. 3.2. The grievance of the petitioner persisted, leading him to file Special Civil Application No. 18820 of 2017 being the instant proceedings, with the prayers mentioned as above. 3.3. At the time of issuing Rule in the petition on 16th January, 2019, the Court observed about the controversy giving the crux, "2. The petitioner happens to be a daily rated employee working as Cleaner since July, 1996. It appears that in Special Civil Application No. 13836 of 2008, order was passed by this Court on 17th March, 2009 which in its relevant part reads as under. "In the facts and circumstances of the case, the petitioner and the respondent Municipality are, obviously, bound by the judgment and order of the Hon'ble Division Bench in aforesaid L.P.A. No. 1202 of 2002 and cognate matters. It is pertinent that after the aforesaid judgment, Hon'ble Larger Bench has also, in case of Amreli Municipality v. Gujarat Pradesh Municipal Employees Union, reported in 2004 (3) G.L.R. 1841 , issued certain directions and the respondent Municipality is, obviously, bound to follow and comply with the said directions." 3. Pursuant to the aforesaid order, by communication dated 22nd June, 2009 the Municipality made proposal through the Collector to be forwarded to the Director of Municipalities for the purpose of filling up of post in question absorbing the petitioner, which was a Class IV post of Cleaner. It appears that pursuant to the proposal of the Municipality, office of Collector addressed letter dated 19th July, 2009 whereafter the office of Director of Municipalities by passing order dated 03rd September, 2013 permitted the Municipality to fill up the post by direct recruitment. 4. The grievance is that though five years have passed, the Municipality has not initiated the process which is to result into giving benefit to the petitioner of absorption as per the observations of this Court and the proposal made as above. 5. 4. The grievance is that though five years have passed, the Municipality has not initiated the process which is to result into giving benefit to the petitioner of absorption as per the observations of this Court and the proposal made as above. 5. In the facts and circumstances obtaining, Rule, returnable on 07th March, 2019. By way of ad interim relief it is directed that the respondent - Municipality shall immediately start the necessary process and consider the case of the petitioner in accordance with law. 6. At this stage, learned advocate for the petitioner points out from the communication dated 09th July, 2009 from the office of the Collector who has recommended the case of the petitioner by mentioning the name of the petitioner for the purpose of giving appointment on the post of Class-IV." 3.4. It was pointed out to the Court that as per communication dated 09th July, 2009, office of Collector had recommended the case of the petitioner by mentioning name of the petitioner for the purpose of giving appointment on Class-IV post. The Court granted interim relief directing the respondents not to alter the service conditions of the petitioner to his detriment and it was further provided that pendency of the petition would not hinder the process of granting benefits of appointment to the petitioner. 3.5. When the proceedings of the petition came up for consideration on 19th August, 2019, the Court noticed that nothing had been acted upon, much less any progress achieved, for giving appointment to the petitioner on Class-IV post. The inaction on part of the respondent was noticed by the Court with disapproval in the following words. "2. The petitioner who has been working under the Municipality since 24.07.1996 as daily wager Cleaner, filed the present petition seeking direction against the respondents to appoint the petitioner on Class IV post and regularize the services as Cleaner/Peon. 3. In the background, it appears that as back in the year 2008, Special Civil Application No. 13836 of 2008 was filed by the petitioner which came to be disposed of by this Court as per order dated 17.03.2009. In pursuance of this order, the Municipality addressed the letter dated 24.03.2009 so as to make proposal to the Collector and the Director of Municipality for filling up the post of Cleaner, in respect of which the petitioner had staked his claim. In pursuance of this order, the Municipality addressed the letter dated 24.03.2009 so as to make proposal to the Collector and the Director of Municipality for filling up the post of Cleaner, in respect of which the petitioner had staked his claim. 3.1 It appears from the facts on record, more particularly from the contents of the letter dated 05.03.2019 addressed by the Chief officer of Municipality to the Regional Director of Municipality that the Director of Municipality had granted permission to the Municipality to fill in the post as per the communication dated 03.09.2013. The grievance of the petitioner is that despite passage of long years since then the Municipality has not taken any steps to fill in the post to the benefit of the petitioner. In view of inaction on part of the Municipality, the present petition came to be filed with the prayers repeated as aforesaid. 4. It was given out that the Municipality has again made proposal for filling up the post in light of the order dated 16.01.2019 passed by this Court. In this regard the grievance of the petitioner is that eventhough the permission was already granted as back as in the year 2013, the Municipality did not fill up the post rather proceeded to make a fresh proposal which would only result in delaying the process. 5. The parties appearing through their learned advocates could not dispute the fact emerging from the record that pursuant to the earlier petition and the orders passed therein, the proposal was made by the Municipality, and that sanction was accorded by the competent authority of the State Government on 03.08.2013 whereby Municipality was permitted to proceed to fill up the post. 6. The said permission was reflected in the letter dated 03.09.2013 which figures on record to inter alia provide that the Municipality was permitted to go for recruitment in accordance with the Rules. The second proposal made by the Municipality would be prima facie meaningless since the Director of Municipality is shown to have been granted the permission to fill up the post as above." 3.6. The facts were noted by the Court that Regional Director of Municipalities had granted permission to the Municipality to fill in the post as per communication dated 03rd September, 2013 and despite passage of long years, no steps were taken to fill the post to the benefit of the petitioner. The facts were noted by the Court that Regional Director of Municipalities had granted permission to the Municipality to fill in the post as per communication dated 03rd September, 2013 and despite passage of long years, no steps were taken to fill the post to the benefit of the petitioner. Not only that, despite the permission having been already granted by the competent authority to fill up the post, the Municipality choose to submit another proposal dated 16th January, 2019. It was gatherable from such conduct of the Municipality that fresh proposal was a step to delay the process of appointment to the petitioner. 3.7. In the aforementioned order dated 19th August, 2019, following directions came to be passed. "7. In light of the above factual scenario emerging from the record of the petition, following order is passed. (a) The interim relief granted by this Court by order dated 16.01.2019 directing that during the pendency of the petition, the service conditions of the petitioner shall not be altered in any manner to his detriment, shall continue to operate as interim order. (b) The respondent authorities are permitted to proceed to fill in the post of Cleaner as per the proposal and the sanction given by the authorities, in which the case of the petitioner shall be considered in accordance with law and by giving preference in light of the fact that the petitioner has been serving since 1996. (c) The process to fill in the post may be initiated within two months." 3.8. Even after passing the above order and the direction on 19th August, 2019, the apathetic approach of the respondent-Municipality continued. No action was taken in pursuance. It was unreasonable, unjust and arbitrary. The petition came up for final consideration on 31st July, 2021. 4. In the present proceedings of Letters Patent Appeal, private respondent filed his affidavit-in-reply reiterating the relevant facts and placing them on record. It was pointed out that as back as on 31st October, 2008 that General Body of the Municipality had passed Resolution No. 74 to send proposal for appointment of the respondent on Class IV post to the Director of Municipalities. Also placed on record was the communication dated 19th October, 2013 from the Director of Municipalities addressed to the Chief officer to implement the permission granted on 03rd September, 2013. Also placed on record was the communication dated 19th October, 2013 from the Director of Municipalities addressed to the Chief officer to implement the permission granted on 03rd September, 2013. The application of the respondent earlier made on 14th October, 2008 was also placed on record, whereby respondent sought benefit of the orders of the Court and appointment on the post and for considering his case for granting benefits equal to the regular employee. It was submitted that in view of the above sequence of events and the procedure undertaken leading to the permission accordingly by the Director of Municipalities on 03rd September, 2013, the Municipality could not have wriggled out from its obligation to grant benefit of regular appointment to the respondent. 5. The facts obtained in the case are stark reflecting injustice done to the respondent. The respondent has been in service since 1996 as daily wager barring small period. He is presently in service. Orders have been passed by the Court making observations to consider the case of the respondent. In pursuance thereof, authorities have acted upon to pass Resolution including the orders permitting grant of benefit of appointment to the respondent. The post is a sanctioned post. Instead of granting benefit to the respondent, his status is converted into a contractual employee as stated by learned advocate for the Municipality. This itself is suggestive of perpetuated arbitrariness on part of the Municipality. 5.1. Decision of the Supreme Court in State of Punjab v. Jagjit Singh [ (2017) 1 SCC 148 ] which came to be followed in the recent decision in Sabha Shanker Dube v. Divisional Forest officer [ (2019) 12 SCC 297 ] has laid down that temporary employees who worked as daily wagers, ad hoc appointees, employees appointed on casual basis, contractual employees but performing same duties discharged by those engaged on regular basis against sanctioned post are entitled to parity in pay with those engaged on sanctioned post. The case of the respondent stands even on higher pedestal and requires to be treated in light of the orders already passed by the competent authorities as stated above. The appointment of the petitioner as regular would only an implementation of those orders, by conferring the benefits to the petitioner. 6. The case of the respondent stands even on higher pedestal and requires to be treated in light of the orders already passed by the competent authorities as stated above. The appointment of the petitioner as regular would only an implementation of those orders, by conferring the benefits to the petitioner. 6. The law reiterated as above, coupled with the facts obtained in the case, learned Single Judge did not commit any error in passing the impugned order to give directions for granting the benefits to the petitioner and thereby allowing the petition. No interference is called for in the letters patent jurisdiction. 6.1. At this stage of dictation, learned advocate for the appellant submitted that learned Single Judge has directed immediate compliance of the direction. He, therefore, requested that time to comply with the directions may be granted. 6.2. Six weeks are granted to the appellant Municipality to comply with the orders of this Court, as requested. 7. Appeal stands meritless and the same is dismissed. Notice is discharged. ORDER IN CIVIL APPLICATION In view of even date order passed dismissing the main Letters Patent Appeal, no orders are required to be passed in the present Civil Application. The same is disposed of.