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2024 DIGILAW 526 (GUJ)

Yagnik Prafulkumar Kantilal v. State Of Gujarat

2024-03-13

HEMANT M.PRACHCHHAK

body2024
JUDGMENT : 1. Present petition is filed by the petitioners under Articles 14, 16 and 226 of the Constitution of India for the following reliefs:- “(A) Your Lordships may be pleased to admit and allow this Special Civil Application; (B) Your Lordships may be pleased to hold and declare that the action on the part of the respondent authorities of non-payment of salaries to the petitioners is against the Government Gazette dated 26.12.2014 and its Circular dated 6.9.2014 is against the law laid down by this Hon’ble Court in Letters Patent Appeal No.244 of 2014 on the basis of the circular of the Government dated 6.9.2014. (C) Your Lordships may be pleased to direct the respondent authorities to compute salaries of the petitioners from the date of implementation of its resolution and circular and to pay arrears of salaries in difference to the petitioners. (D) Your Lordships may be pleased to hold and declare that since the petitioners are working prior to conversion of Nagar Palikas, they are entitled to regularization of their services with the respondent Nagar Palika on the posts on which they are working by further holding and declaring the inaction on the part of the respondent authorities to be illegal, arbitrary and against the Government guidelines in this regard. (E) Your Lordships may be pleased to direct the respondent authorities to regularize the service of the petitioners as per the Government Resolution dated 26.12.2014 and to place them in the time scale salary in vogue at the relevant time and to pay them the arrears of salaries in difference. (F) Your Lordships may be pleased to hold and declare the inaction on the part of the respondent authorities of not regularizing the servics of the petitioners to be victimization, vindictive, illegal, arbitrary, de hors the guidelines and law laid down in this regard, therefore, null and void. (G) Pending admission, hearing and final disposal of the present Special Civil Application, Your Lordships may be pleased to direct the respondent authorities to pay wages to the petitioners with allowances as have been provided under the Government Gazette dated 26.12.2014 and the Circular dated 6.9.2014. (H) Pending admission, hearing and final disposal of the present Special Civil Application, Your Lordships may be pleased to restrain the respondent authorities from terminating the services of the petitioners, except for a misconduct attributable under the unestablished proofs. (H) Pending admission, hearing and final disposal of the present Special Civil Application, Your Lordships may be pleased to restrain the respondent authorities from terminating the services of the petitioners, except for a misconduct attributable under the unestablished proofs. (I) Ex-parte ad-interim relief in terms of Prayer 9G) and (H) may kindly be granted. (J) Your Lordships may kindly be pleased to pass any other further order/s as are deemed fit, just and proper in the facts and circumstances of the case and in the interest of justice.” 2. Brief facts of the present petition, in nutshell are as under:- 2.1 It is the case of the petitioners that they are serving the respondent Municipality from the 1987, 1989, 1990, 1991 within the range of 24 to 28 years of services on full time basis, however, they are being paid fixed salary of Rs.4,000/- to Rs.5,000/- per month. It is the case of the petitioners that the Urban Development and Urban Housing Department issued a resolution on 22.01.2004, whereby Nagarpalikas have categorized as A, B, C and D and the petitioners are unskilled workers, serving with respondent – Municipality. It is the case of the petitioners that the respondent Nagarpalika issued resolution No.48 dated 31.07.2008 in the General Body meeting, resolving to act and carry out the directions of this Court. That the Chief Officer and the President of the Nagarpalika issued a resolution and submitted requisition that 97 posts fall within approved establishment, therefore, the Regional Director of Municipalities, Rajkot has requested to approve the report. The respondent – Halvad Nagarpalika has categorized under Category D and order in this regard came to be issued by the respondent Regional Director of Municipalities Rajkot dated 20.08.2008 and artificial brak came to be created in respect of the services of the employees who have been served with Nagarpalika before it s conversion in the year 1994 and they have been asked to fill in the forms to render the services in the Municipalities on contractual obligation. 2.2 It is the case of the petitioners that in respect of the Halvad Nagarpalika’s approval to the requisition number of posts to be filled in more particularly in respect of the directions of this Court, the Director of Municipalities, government of Gujarat passed orders to fill in the posts as per the guidelines. 2.2 It is the case of the petitioners that in respect of the Halvad Nagarpalika’s approval to the requisition number of posts to be filled in more particularly in respect of the directions of this Court, the Director of Municipalities, government of Gujarat passed orders to fill in the posts as per the guidelines. That respondent – Nagarpalika approached the Collector, Surendranagar requesting to take into consideration the guidelines of this court and further recommending the names of ten employees on the basis of the direction issued by this Court to regularize the services of such employees as they have been worked in Halvad Nagarpalika dated 15.04.1994 and, thereafter, their services came to be terminated and again they have been employed on the contractual basis on inevitable and inseparable requirement of work. Though the petitioners are entitled to receive salary of Rs.11,100/- as daily wagers for 30 days, the respondent – Nagarpalika paid fixed salary to the petitioners only to Rs.4,000/- to Rs.5,000/- and thereby the petitioners are deprived of their rights to get regularized into the services. Despite the petitioners are working within the approved number of posts by the Director of Municipalities, Government of Gujarat, they are interregnum entitled to salary as per the Government Gazette dated 26.12.2014 and Government Circular dated 6.9.2014. It is the case of the petitioners that being aggrieved by the inaction of the part of the respondent – authorities, they have preferred the present petitions. 3. Heard Mr.U. T. Mishra, learned counsel with Mr.Chandresh Jani, learned counsel appearing for the petitioners, Mr.Meet Thakkar, learned Assistant Government Pleader appearing for respondents No.1 and 2 and Mr.Deep Vyas, learned counsel appearing for respondent No.3. 4. Mr.U. T. Mishra, learned counsel with Mr.Chandresh Jani, learned counsel appearing for the petitioners would submit that the petitioners are in service of respondent – Municipality on full time basis and they are being paid fixed salary. They would submit that the petitioners are working in Halvad Nagarpalika since long and they are entitled to get regular time scale, which was paid to another employees. They would submit that since the petitioners are working on permanent vacant post, their services are required to be regularized and they are unskilled workers serving in respondent – Municipality. They would submit that the petitioners are working in Halvad Nagarpalika since long and they are entitled to get regular time scale, which was paid to another employees. They would submit that since the petitioners are working on permanent vacant post, their services are required to be regularized and they are unskilled workers serving in respondent – Municipality. While referring and relying upon the correspondences between the respondent No.2 and respondent No.3, they would submit that respondent No.3 has made proposal for the sanctioned the post to respondent No.2, but ultimately respondent No.2 has not considered such proposal of respondent No.3 and, therefore, the services of the petitioners came to be terminated. They would submit that it is an admitted fact that though the petitioners were appointed without following recruitment process as prescribed under the Gujarat Municipalities Act and since they were appointed on contractual basis, the case of the petitioners is not considered by the respondents. They would submit that the being aggrieved by the action on the part of the respondent No.3 in not appointing the petitioners and in not granting the benefits, which were given to another similarly situated employees, the present petition is filed. They would submit that the petitioners are working prior to the date of conversion to the Nagarpalika from the Panchayat which converted with effect from 15.09.1994 and from the inception they are working in the Nagarpalika on the sanctioned setup. They would submit that the present petition may be allowed. 5. Mr.Meet Thakkar, learned Assistant Government Pleader appearing for the respondent – State Authorities has opposed the present petition and has submitted that considering overall facts and circumstances of the case, the Court may pass appropriate order. 6. Mr.Deep Vyas, learned counsel appearing for respondent No.3 has opposed the petition and submitted that the petitioners are not appointed on regular post. He has submitted that the petitioners are appointed on the contractual basis after following due recruitment process and though there was no sanctioned setup, respondent – Nagarpalika has sent proposal to respondent No.2, which was not considered and, therefore, respondent No.3 is not able to appoint any of the persons on regular setup and, therefore, the request made on behalf of the petitioners cannot be considered by respondent No.3. He has referred to and relied upon the affidavit-in-reply filed on behalf of respondent No.3. He has referred to and relied upon the affidavit-in-reply filed on behalf of respondent No.3. He has submitted that the respondent – Municipality was converted to municipal in the year 1994 and after making necessary requisition, the setup came to be approved by the State Authorities on 02.07.2012. He has submitted that the recruitment would be made as per the qualifications, eligibility and the selection process and rules sanctioned governing the employees of the respondent authority which has directed by State Authorities. It is submitted that the petitioners were working purely on ad-hoc and temporary basis and would not have any right over such post and the vacant post in the setup could only be filled by following mandatory procedure of recruitment. He has submitted that the petitioners were never recruited through public advertisements or other recruitment process or selection process. It is submitted that the appointment was on the basis of exigency and availability and the petitioners have accepted the employment on contractual basis and in view thereof the petition would be barred by principle of estopple and waiver. Mr.Vyas, learned counsel has submitted that the petition being meritless deserves to be dismissed. 7. Considering the facts and circumstances of the case and considering the submissions canvassed by the learned counsel appearing for the respective parties and considering the affidavit-in-reply filed on behalf of the respondent – Nagarpalika and perusing the material on record, it appears that the petitioners are working in respondent No.3 then they have to establish the fact that they have completed 240 days in each year after leading the cogent and relevant material evidence before the Industrial Disputes Court. So far as the averment made in the petition is concerned, it is disputed fact involved in the present petition requires to be established before the Industrial Disputes Court by leading cogent evidence. It is the case of respondent No.3 that the petitioners were appointed on contractual basis and they do not have any fundamental rights. 8. It is worthwhile to refer to the decision of the Hon’ble Supreme Court in the case of Gridco Limited and another Vs. Sadananda Doloi and others reported in (2011) 15 SCC 16 wherein the Hon’ble Supreme Court has held and observed in para – 25, 28 and 39 as under:- “25. 8. It is worthwhile to refer to the decision of the Hon’ble Supreme Court in the case of Gridco Limited and another Vs. Sadananda Doloi and others reported in (2011) 15 SCC 16 wherein the Hon’ble Supreme Court has held and observed in para – 25, 28 and 39 as under:- “25. It is true that judicial review of matters that fall in the realm of contracts is also available before the superior courts, but the scope of any such review is not all pervasive. It does not extend to the Court substituting its own view for that taken by the decision-making authority. Judicial review and resultant interference is permissible where the action of the authority is mala fide, arbitrary, irrational, disproportionate or unreasonable but impermissible if the petitioner's challenge is based only on the ground that the view taken by the authority may be less reasonable than what is a possible alternative. The legal position is settled that judicial review is not so much concerned with the correctness of the ultimate decision as it is with the decision-making process unless of course the decision itself is so perverse or irrational or in such outrageous defiance of logic that the person taking the decision can be said to have taken leave of his senses. 28. Recognizing the difference between public and private law activities of the State, this Court reasoned that unlike private individuals, the State while exercising its powers and discharging its functions, acts for public good and in public interest. Consequently every State action has an impact on the public interest which would in turn bring in the minimal requirements of public law obligations in the discharge of such functions. The Court declared that to the extent, the challenge to State action is made on the ground of being arbitrary, unfair and unreasonable hence offensive to Article 14 of the Constitution, judicial review is permissible. The fact that the dispute fell within the domain of contractual obligations did not, declared this Court, relieve the State of its obligation to comply with the basic requirements of Article 14. 39. A writ Court is entitled to judicially review the action and determine whether there was any illegality, perversity, unreasonableness, unfairness or irrationality that would vitiate the action, no matter the action is in the realm of contract. 39. A writ Court is entitled to judicially review the action and determine whether there was any illegality, perversity, unreasonableness, unfairness or irrationality that would vitiate the action, no matter the action is in the realm of contract. Having said that we must add that judicial review cannot extend to the Court acting as an appellate authority sitting in judgment over the decision. The Court cannot sit in the arm chair of the Administrator to decide whether a more reasonable decision or course of action could have been taken in the circumstances. So long as the action taken by the authority is not shown to be vitiated by the infirmities referred to above and so long as the action is not demonstrably in outrageous defiance of logic, the writ Court would do well to respect the decision under challenge.” 9. It is also worthwhile to refer to the decision of this Court in the case of Jani Chintan Hareshkumar Vs. Managing Director, Paschim Gujarat Vij Co. Ltd and others reported in 2022 (3) GLR 1724 . The relevant head note of the said decision reads as under:- “Service Law - Constitution of India - Art. 226 - contractual employee - termination of service - appointment through recruitment process - post of Vidhyut Sahayak (Junior Engineers) - removal from service without prior notice - challenged - case of Vidyavardhaka Sangha vs. Y. D. Deshpande relied on - contractual employees are only governed by contract and they have no right to permanency and they cannot claim regularization - termination of contractual employee in accordance with terms of contract is permissible - employee can claim no protection against such termination - in present case, there is also dispute with regard to continuation of project - petitioners have also alleged unfair practice - such disputed questions or issues cannot be decided under Article 226 of the Constitution - in the present case, it cannot be said that respondent-Company has acted illegally since petitioner are relieved after the contract period was over - as it is no more res integra that regularization or seeking permanency is not mode of appointments and High Court, acting under Article 226, cannot issue direction for regularization, permanency or continuation unless there are rules and regulations asserting such right - petitions dismissed.” 10. Considering the facts and circumstances of the case and the aforesaid decisions, I am of the opinion that the petitioners were appointed purely on ad-hoc and temporary basis and were not recruited by following regular process of recruitment and their mere engagement for a longer period cannot result into the grant of reliefs as sought for. So, in view of the above, the action on the part of the respondent – authorities is just and proper and hence, the petition deserves to be dismissed. 11. In the result, the petition stands dismissed. Rule is discharged. Interim relief, if any, granted earlier shall stand vacated forthwith. It is open for the petitioners to raise such grievance before the Industrial Court by way of preferring appropriate proceedings for regularization their services and regular salary after leading cogent evidence. 12. In view of disposal of the present petition, the civil application does not survive and hence, the same is disposed of accordingly.