Gujarat High Court
Rajesh Babubhai Amin vs State Of Gujarat on 12 July, 2023
Author: Rajendra M. Sareen
Bench: Rajendra M. Sareen
C/SCA/8603/2012 CAV JUDGMENT DATED: 12/07/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 8603 of 2012
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN Sd/-
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1 Whether Reporters of Local Papers may be allowed NO
to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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RAJESH BABUBHAI AMIN
Versus
STATE OF GUJARAT & 3 other(s)
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Appearance:
MR P C CHAUDHARI(5770) for the Petitioner(s) No. 1
MR MANOHAR RAHEVAR AGP for the Respondent(s) No. 1,2,3,4
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CORAM:HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN
Date : 12/07/2023
CAV JUDGMENT
1. By way of this petition under Article 226 of the Constitution of India, the petitioner has prayed for the following main reliefs:
"7(A). YOUR LORDSHIP may be pleased to issue a writ of a Mandamus or any other Page 1 of 30 Downloaded on : Wed Jul 12 20:47:57 IST 2023 C/SCA/8603/2012 CAV JUDGMENT DATED: 12/07/2023 appropriate writ, order and/or direction, directing the respondents to regularize the services of the petitioner on the post of Additional Assistant Engineer (Civil) Class III from the date on which the petitioner has completed 5 years of service i.e. 13/3/2006;
In the alternative (B) Your Lordship may be pleased to issue an appropriate writ, order or direction, directing the respondents to regularize the services of the petitioner on the post of Additional Assistant Engineer (Civil) Class III with effect from 14/2/2008 i.e. the date on which similarly situated employees have been regularized by the respondent No.1."
2. Brief facts of the case are as under :-
2.1. On 3/3/2001 the respondent No.1 had given an advertisement in the local daily news paper namely Gujarat Samachar for the post of Assistant Engineer.
2.2. Pursuant to the said advertisement, the petitioner had applied for the post of Additional Assistant Engineer (Civil) Class III on 8/3/2001.
2.3. Pursuant to the said advertisement, the petitioner was called for interview on 11/3/2001 by the respondent department and after interview and other selection Page 2 of 30 Downloaded on : Wed Jul 12 20:47:57 IST 2023 C/SCA/8603/2012 CAV JUDGMENT DATED: 12/07/2023 procedure, the petitioner came to be appointed on 13/3/2001 by the respondent No.1. The said post at the relevant point of time was called as Bhukamp Awas Bandhakam Nirikshak / consultant ("the consultant" for short). The said appointment was initially for a period of 9 months on a fixed pay scale of Rs.5000/- per month. Along with the petitioner several other persons were appointed in various Talukas in the District Kutch.
2.4. Time and again, services of the petitioner have been extended by the respondent department.
2.5. The State Government vide Government Resolution dated 16/2/2006 of the Finance Department issued a Circular whereby the employees working in the different departments of the State Government have been given the benefits to the effect that the employees who have completed service of 5 years satisfactorily on the sanctioned post, the State Government thought it fit to regularize the services of the concerned employees.
2.6. After the petitioner being appointed in 2001, the petitioner was working with the State. After the initial appointment of the petitioner by respondent No.1 because of the devastating earthquake in the district Kutch, the petitioner was transferred to the respondent No.2 department i.e. Gujarat State Disaster Management Page 3 of 30 Downloaded on : Wed Jul 12 20:47:57 IST 2023 C/SCA/8603/2012 CAV JUDGMENT DATED: 12/07/2023 Authority, who have time and again extended the services of the petitioner on the fixed pay.
2.7. The respondent No.1 department vide letter dated 12/4/2006 transferred all the employees who have been appointed on the post of "Consultant" to the offices of the district Collector. Thereafter the Collector passed an order and thereby transferred the petitioner to the office of the Mamlatdar and since then the petitioner has been working with the respondent department without any break.
2.8. Even the office of the Mamlatdar has also made several recommendations to the respondent department on 16/2/2009, 24/9/2009, 5/10/2010, 27/6/2011 and 25/8/2011 and thereby requested to regularize the services of the petitioner.
2.9. The Deputy Collector addressed a letter dated 2/9/2011 to the Collector and thereby requested for regularization of the services of the petitioner.
2.10. Pursuant to the recommendation made by the office of the Collector and the office of the Mamlatdar, the respondent No.2 department informed the office of the Collector vide letter dated 23/3/2012 and 17/5/2011 that since the appointment was not made by the respondent No.2, they cannot regularize the services of the petitioner.
Page 4 of 30 Downloaded on : Wed Jul 12 20:47:57 IST 2023C/SCA/8603/2012 CAV JUDGMENT DATED: 12/07/2023 The respondent No.2 also informed the office of the Collector that since the initial appointment was made by the respondent No.1 and thereby asked not to make any representation to the respondent No.2 department.
2.11. The respondent No.1 department vide order dated 14/2/2008 regularized the services of six employees of different areas of the development authorities, namely, Bhachau, Bhuj, Anjar and Rapar, who were appointed alike the petitioner on fixed pay scale considering Government Resolution dated 16/2/2006.
2.12. The Section Officer of the Urban Housing and Urban Development Department issued a letter dated 3/5/2008 to the various development authorities and thereby it was directed to them to regularize the services of the concerned employees who have been appointed after following due procedure of selection and services of the concerned employees may be regularized on the sanctioned post and the powers of regularization were delegated to the concerned authorities.
2.13. The Principal Secretary also issued letter dated 22/27.5.2008 to the various development authorities to act as per the letter dated 3/5/2008 issued to the concerned department and necessary action may be taken by the concerned authorities for regularizing the services of the Page 5 of 30 Downloaded on : Wed Jul 12 20:47:57 IST 2023 C/SCA/8603/2012 CAV JUDGMENT DATED: 12/07/2023 concerned employees and thereby powers were delegated to the concerned authorities.
2.14. Inspite of the aforesaid fats, the respondent No.1 or the respondent No.2 not regularized the services of the petitioner and the respondent No.1 department vide letter dated 27/6/2011 addressed a letter to the office of the Mamlatdar and thereby informed that since the initial appointment only was made by the respondent No.1 department, therefore, they cannot regularise the services of the petitioner.
2.15. Similar issue came up before this Court whereby some of the employees of the various authorities had approached this Court by way of preferring Special Civil Application No.9523 of 2009 and other allied matters and the Co- ordinate Bench of this Court vide order dated 21/12/2009 directed the State Government to regularize the services of the petitioners therein from the date on which the other employees were regularized. The said order was challenged in by way of preferring Letters Patent Appeal No.1453 of 2010 and the Division Bench of this Court vide order dated 16/7/2010 confirmed the order passed by the learned Single Judge. The order passed by the co-ordinate Bench of this Court and the Division Bench were carried by the authorities before the Hon'ble Apex Court, but the Hon'ble Apex Court rejected the Special Leave Petition filed by the Page 6 of 30 Downloaded on : Wed Jul 12 20:47:57 IST 2023 C/SCA/8603/2012 CAV JUDGMENT DATED: 12/07/2023 authorities.
2.16. Inspite of the aforesaid facts, as the services of the petitioner is not regularized, the petitioner has preferred the present petition for the aforesaid relief.
3. SUBMISSIONS OF THE PETITIONER :
3.1. Mr.P.C. Chaudhary, learned advocate for the petitioner has submitted that as per the Government Resolution of the finance department dated 16/2/2006 the employees who have completed services of 5 years satisfactorily in the Class III or IV department, after a period of 5 years their services are required to be considered for regularization. It is submitted that the petitioner has completed 5 years of service on 13/3/2006 and thereafter the petitioner has made various representations to the respondent Nos. 1 and 2 departments requesting them to regularize his services as the respondent department in past have also regularized the services of different employees and now after the delegation of power the respondent No. 2 department should take necessary action with regard to the regularization of the services of the concerned employees who have completed 5 years service satisfactorily, but the respondent Nos. 2 and 3 are not regularizing the services of the petitioner without any lawful reason.
3.2. Mr.P.C. Chaudhary, learned advocate for the petitioner Page 7 of 30 Downloaded on : Wed Jul 12 20:47:57 IST 2023 C/SCA/8603/2012 CAV JUDGMENT DATED: 12/07/2023 has further submitted that in the service of the petitioner, there is no untoward incident and there is no adverse remarks in the Confidential Report (C.R.) of the petitioner and still the respondents are not regularizing the services of the petitioner and therefore, the concerned respondents are required to be directed to regularize the services of the petitioner from the date of completion of 5 years of service or from the date on which the services of other employees have been regularized.
3.3. Mr.P.C. Chaudhary, learned advocate for the petitioner has further submitted that instead of regularizing the services of the petitioner, now the respondent No. 1 department has issued an advertisement for appointment of Additional Assistant Engineer (Civil). It is submitted that even the said advertisement is issued for filling the post of 172 employees. Therefore, the petitioner who has been working on the said post diligently for more than 11 years, the respondents are not regularizing his service. Therefore, the respondent No. 1 department is required to be directed to regularize the services of the petitioner from the date of completion of 5 years service.
3.4. Mr.P.C. Chaudhary, learned advocate for the petitioner has further submitted that the respondent Nos. 1 and 2 are trying to shift the burden on each other as according to them the services of the petitioner are required to be Page 8 of 30 Downloaded on : Wed Jul 12 20:47:57 IST 2023 C/SCA/8603/2012 CAV JUDGMENT DATED: 12/07/2023 regularized. It is submitted that as per the reply of respondent No. 2 department, the respondent No. 2 is not willing to regularize the services of the petitioner on the ground that the initial appointment was not made by them and respondent No. 1 does not want to regularize the services of the petitioner on the ground that only the initial appointment was made by them and they have not extended the services of the petitioner. Therefore, the fight between the two departments of the State, the petitioner is made to suffer and the petitioner is made to run from pillar to post.
It is submitted that therefore, the respondents concerned are required to be directed to regularize the services of the petitioner.
3.5. Mr.P.C. Chaudhary, learned advocate for the petitioner has further submitted that even the offices of the Mamlatdar, Collector and Deputy Collector have made several recommendations to the State Government for regularizing the services of the petitioner since the petitioner has completed 5 years of service way back and has been working on the same post diligently. Therefore also the the respondent concerned is required to be directed to regularize the services of the petitioner from the date of completion of 5 years of service.
3.6. Mr.P.C. Chaudhary, learned advocate for the petitioner has further submitted that it is not the case of the Page 9 of 30 Downloaded on : Wed Jul 12 20:47:57 IST 2023 C/SCA/8603/2012 CAV JUDGMENT DATED: 12/07/2023 respondents that the petitioner is not a regularly selected candidate. In fact, pursuant to the advertisement issued by the respondent, the petitioner had applied for the said post and thereafter after going through the selection procedure of interview, the petitioner came to be appointed and therefore, the appointment of the petitioner is not a back door entry and when the appointment of the petitioner is through the regular selection on the sanctioned post and the petitioner has completed 5 years of service satisfactorily and when the respondents have regularized the services of other employees in the past, the action of the respondents of not regularizing the services of the petitioner is illegal, arbitrary, discriminatory and violative of Article 14 of the Constitution of India and therefore, the respondents are required to be directed to regularize the services of the petitioner from the date of completion of 5 years of service and/or from the date on which the services of similarly situated employees have been regularized.
3.7. Mr.P.C. Chaudhary, learned advocate for the petitioner has further submitted that even after 3lst of March 2011, several recommendations have been made by the Office of the Mamlatdar requesting the office of the Collector to make payment of salary for the petitioner till date. In fact, the petitioner has not been paid any salary after 31 st March, 2011 though the petitioner has been working on the post continuously without any break. Therefore it is submitted Page 10 of 30 Downloaded on : Wed Jul 12 20:47:57 IST 2023 C/SCA/8603/2012 CAV JUDGMENT DATED: 12/07/2023 that the respondents are required to be directed to make salary of the petitioner from 31/3/2011.
By making above submissions, learned AGP has requested to allow the present petition.
4. SUBMISSIONS OF THE RESPONDENTS - State:
4.1. Present petition is opposed by Manohar Rehavar, learned AGP for the State. Relying ion the affidavit in reply filed by the 2 - Gujarat State Disaster Management Authority, it is contended that the petitioner was never employed on any of the posts as alleged by the petitioner by answering respondent i.e. Gujarat State Disaster Management Authority and therefore services of the petitioner cannot be regularized. . It is submitted that the contention of the petitioner that the State Government vide Government Resolution dated 16/02/2006 of the Finance Department has issued a circular whereby employees working in the different department of the State Government have been given the benefits to the effect that the employees who have completed services of five years satisfactorily on the sanctioned post, the State Government thought it fit to regularize services of the concerned employees is baseless. It is submitted that the said Government Resolution dated 16/02/2006 will not be applicable to the petitioner and similarly situated person as the petitioner was hired only for a particular project i.e. Gujarat Emergency Earthquake Reconstruction Programme Page 11 of 30 Downloaded on : Wed Jul 12 20:47:57 IST 2023 C/SCA/8603/2012 CAV JUDGMENT DATED: 12/07/2023 (GEERP) and the said post was not a sanctioned/permanent post. It is further submitted that the GR is applicable only to the posts to be recruited under the rules for the posts under regular recruitment. It apply to the appointments in the pay grade; it applies to the posts sanctioned by the Finance Department of the Government.
4.2. It is contended by the learned AGP that looking to the need of the pending rehabilitation work in Kutch district, Gujarat State Disaster Management Authority, only extended its financial assistance for permitting the consultancy services of proposed number of technical personnel by extending the timeline. It is submitted that there was neither proposal of the extension in the name of the petitioner nor the approval was accorded with regard to the name of the petitioner. The extension was given subject to the GR dated 08/03/2001 as mentioned in the approval, to extend the timeline of the proposed number of consultants, and not to extend the services of anyone in particular including the petitioner.
4.3. It is further submitted by the learned AGP that the answering Gujarat State Disaster Management Authority, vide communication dated 15/12/2005 agreed to provide funds for the said purpose till 30/04/2006 for extending the timeline of the consultancy services relying on the communications dated 08/12/2005 by District Page 12 of 30 Downloaded on : Wed Jul 12 20:47:57 IST 2023 C/SCA/8603/2012 CAV JUDGMENT DATED: 12/07/2023 Development Officer, Kutchh-Bhuj and Deputy Collector (Earthquake), Bhuj and 13/12/2005 by Executive Engineer, Road & Building Department, Bhuj.
4.4. It is further submitted by the learned AGP that time and again funding for the consultancy services were extended on the request by the authorities till 31/03/2011. That it is pertinent to note herein that in every communication for extending the timeline for the consultancy it was clearly stated that said extension is only for particular period.
4.5. It is submitted by the learned AGP that vide communications dated 03/03/2011 by Mamlatdar, Bhachau, 20/04/2011 by Deputy Collector, (Earthquake), Bhuj, 11/03/2001, Mamlatdar, Anjar, 24/03/2011, Mamaltdar, Gandhidham, 06/04/2011, Mamlatdar, Rapar, requested the respondent Gujarat State Disaster Management Authority to give permission for extending the services of the employees as still the work of reconstruction & rehabilitation was going on. That vide communication dated 17/05/2011 the respondent Gujarat State Disaster Management Authority being the funding authority rejected the request as there was not much technical work left and clearly denied the said request Stating that no more financial help will be extended for the said purpose. In the said communication respondent made it amply clear that Page 13 of 30 Downloaded on : Wed Jul 12 20:47:57 IST 2023 C/SCA/8603/2012 CAV JUDGMENT DATED: 12/07/2023 Gujarat State Disaster Management Authority that it was just an funding authority and not an appointing authority.
4.6. It is further submitted by the learned AGP that the contention of the petitioner that similarly situated employees were regularized by various development authorities is not abiding in any way or concern the respondent i.e. Gujarat State Disaster Management Authority, and therefore, the question of regularizing the services of the petitioner by the respondent does not arise.
4.7. It is submitted by the learned AGP that the contention of the petitioner that the respondent no.1 and respondent no.2 are trying to shift the burden on each other and further contention of the petitioner that the respondent no. 2 is not willing to regularize the services of the petitioner on the ground that the initial appointment was made by respondent no. 1 i.e. Road & Building Department is improper. It is submitted that the respondent - Gujarat State Disaster Management Authority only sanctioned the financial assistance for the said project and is no way an appointing authority.
4.8. It is submitted by the learned AGP that the respondent - Gujarat State Disaster Management Authority only being a funding and monitoring agency for the said rehabilitation work has nothing to do with the appointment Page 14 of 30 Downloaded on : Wed Jul 12 20:47:57 IST 2023 C/SCA/8603/2012 CAV JUDGMENT DATED: 12/07/2023 or regularization of the services of the petitioner.
4.9. It is submitted by the learned AGP that the respondent is not the authority who is conferred with the powers of regularizing the services as prayed by the petitioner in the petition as the respondent is only a funding and monitoring authority.
4.10. Relying on the Affidavit in reply is filed by the respondent No.1 - Secretary, Road and Building Department, Sachivalaya, Gandhinagar, it is contended that thepetitioner was appointed by the respondent no. 1 - Road & Building Department under the project "Gujarat Emergency Earthquake Reconstruction Programme"
(GEERP). It is submitted that after the devastating period of Earthquake, the State Government undertook reconstruction and rehabilitation programmes and for the said purpose aforesaid project was initiated and for the said purpose many employees were appointed including the present petitioner on the post of "Bhukamp Awas Bandhkam Nirikshak'. It is submitted that vide appointment order dated 13/03/2001 the present petitioner was appointed and the said appointment order clearly stipulates that the said tenure would end on 31.12.2001 and after 31/12/2001 appointment will end automatically. That in the appointment order itself it was clearly stated that the appointee shall not claim any benefits flowing from the said Page 15 of 30 Downloaded on : Wed Jul 12 20:47:57 IST 2023 C/SCA/8603/2012 CAV JUDGMENT DATED: 12/07/2023 appointment and no appointee shall claim any permanency for the said appointment and the appointee was required to give written under taking accepting the above mentioned terms and condition.
4.11. The learned AGP has further submitted that as the said project i.e. Gujarat Emergency Earthquake Reconstruction Programme (GEERP) was still in force as the purpose for which the said project was initiated and it was not over, the services of the employees were required to be extended and that the respondent no.1 i.e. Road & Building Department extended the same vide Government Resolution dated 26.12.2001. That the said extension was only for one month i.e. up to 31.12.2001. However, thereafter time and again their services were extended as the project was still going on. It is submitted that vide order dated 11/05/2005, respondent no.1 i.e. Road & Building Department extended the services till 31.08.2005. It is submitted that, for the year 2006, the Executive Engineer, Road & Building Department Bhuj, vide communication dated 13/12/2005 requested to Superintending Engineer, Road Building Department, Anmedabad for extending the services of the employees for the said project till 31/03/2006. That the said communication was forwarded to the answering respondent i.e. Gujarat State Disaster Management Authority and also forwarded to Deputy Executive Engineer, Bhuj and Deputy Collector, Bhuj. It is submitted that the contention of the Page 16 of 30 Downloaded on : Wed Jul 12 20:47:57 IST 2023 C/SCA/8603/2012 CAV JUDGMENT DATED: 12/07/2023 petitioner that on 03/03/2001 the respondent i.e. Road & Building Department had given an advertisement in the local daily newspaper namely "Gujarat Samachar' for the post of Additional Assistant Engineer (Civil) Class-III and that the petitioner has applied for the post of Additional Assistant Engineer (Civil) Class-III is false. It is submitted that an advertisement dated 03/03/2001 reflects the name of the post of the Assistant Engineer class-III and not as Additional Assistant Engineer Class-III. It is further submitted that vide Government Resolution dated 08/03/2001, it was clarified by the answering respondent i.e. Road & Building Department that the name of post mentioned in the advertisement i.e. Assistant Engineer Class-III is now changed Bhukamp Avas Bandhkam Nirikshak. It Is submitted that in the appointment order dated 13/03/2001 of the petitioner the name of the post mentioned is Bhukamp Avas Bandhkam Nirikshak and not Additional Assistant Engineer (Civil) Class-III.
4.12. The learned AGP has further submitted that the contention of the petitioner that the respondent no.1 - (R&B) Department vide order dated 14.02.2008 regularized the services of the six employees of different areas of the development authorities namely Bhachau, Bhuj, Anjar and Rapar who were appointed like the petitioner of a fixed pay Scale considering the Government Resolution dated 16/02/2006 is in appropriate. It is submitted that the said Page 17 of 30 Downloaded on : Wed Jul 12 20:47:57 IST 2023 C/SCA/8603/2012 CAV JUDGMENT DATED: 12/07/2023 order is issued by the Urban Housing and Urban Development Department, which is not a party respondent in the present petition and the said order is not issued by the respondent (R&B) Department. It is submitted that the respondent i.e. R&B Department has never issued any order of regularizing the service of the petitioner or similarly situated employees. That the post on which the petitioner was serving was a temporary post created only for the specific project namely G.E.E.R.P and was not sanctioned post.
4.13. Learned AGP has further submitted that the contention of the petitioner that the respondent no.1 (R&B) Department vide order dated 27/06/2011 addressed to the office of the Mamlatdar and thereby informed that since the initially appointment - was only made by the respondent no.1 i.e. Road and Building Department and therefore, they cannot regularize the services of the petitioner and further it is contended by the petitioner that on one hand the respondent no.1 i.e. Road & Building Department is delegating powers to regularize to the concerned authorities and on the other hand it is refusing to regularize service of the Petitioner on pretext that since only the appointment was made by the respondent no.1 i.e. Road & building Department. It is submitted that vide Government Resolution dated 12/04/2006, that the answering respondent no.1 i.e. Road & Building department has Page 18 of 30 Downloaded on : Wed Jul 12 20:47:57 IST 2023 C/SCA/8603/2012 CAV JUDGMENT DATED: 12/07/2023 resolved that all the employees working on the post of Bhukamp Avas Bandhkam Nirikshak, which are now transferred to the concerned District Bhuj Collector office and the said management was only applicable to the employees whose tenure work extended i.e. employees who were in service at that point of time. It is further submitted that in view of the above Government Resolution the answering respondent is set to be the appointing authorities only till 2006 and thereafter, the employees were under the supervision concerned District Bhuj, Collectorate offices. It is submitted that was serving as a Bhukamp Avas Bandhkam Nirikshak and not as an Additional Assistant Engineer Class-III and therefore, request to regularize their services was rejected. It is submitted that the contention of the present petition that the respondent no.1 i.e. Road & Building Department has issued an advertisement for appointment of Additional Assistant Engineer(Civil) Class-III and the said advertisement is filing the post of 172 employees is erroneous. It is submitted that the post on which the petitioner was serving as Bhukamp Avas Bandhkam Nirikshak and not as an Additional Assistant Engineer (Civil) Class-Ill which is sanctioned and permanent post and the post of Bhukamp Avas Bandhkam Nirikshak was a temporary post created only for the specific project (GEERP). It is submitted that only employees who were serving on sanctioned and permanent post can be regularized and the post on which the present petitioner Page 19 of 30 Downloaded on : Wed Jul 12 20:47:57 IST 2023 C/SCA/8603/2012 CAV JUDGMENT DATED: 12/07/2023 was serving as a temporary post that too for an specific project cannot be regularized. It is submitted that on perusing the advertisement it clearly transpired that the advertisement mentioned post of Additional Assistant Engineer (Civil) Class-ill, Additional Assistant (Electrical) Class-III, Assistant Architect Class-III. The post of Bhukamp Avas Bandhkam Nirikshak were not mentioned in the said advertisement.
By making above submissions, learned AGP has requested to dismiss the present petition.
5. FINDINGS:
5.1. Heard Mr.P.C. Chaudhary, learned advocate for the petitioner and Mr.Manohar Rahevar, learned AGP for the respondents State.
5.2. That the advertisement dated 3/3/2001 was issued in the local daily newspaper Gujarat Samachar by the Chairman, Selection Committee & Superintending Engineer inviting applications from all the eligible candidates for being appointed to the post of Assistant Engineer (Class-III) on contractual basis for 11 months. The said advertisement pertains to the earthquake affected areas, namely, Kutch, Jamnagar, Surendranagar, Rajkot etc. Apropos the said advertisement, the State Government in its Roads & Buildings Department appears to have issued Government Page 20 of 30 Downloaded on : Wed Jul 12 20:47:57 IST 2023 C/SCA/8603/2012 CAV JUDGMENT DATED: 12/07/2023 Resolution dated 8/3/2001 selecting the candidates for being appointed to the post of Surveyor (Assistant Engineer) and on 9/3/2001, the list was sent to all the Executive Engineers of District Kheda. Thereafter, the Chairman, Selection Committee & Superintending Engineer addressed a communication dated 11/3/2001 to the Executive Engineer, Kheda informing that the selected candidates shall be asked to remain present on 13/3/2001 along with all the necessary certificates and they be assigned identification number.
5.3. Pursuant to the communication dated 11/03/2001, the petitioner was assigned identification number followed by the office order dated 1/6/2001 issued by the Chairman, Selection Committee & Superintending Engineer, Roads & Buildings Department, Gandhinagar, appointing the petitioner on 13/3/2001 on contractual basis for 11 months. Copy of the order was endorsed to the Additional Chief Secretary, Urban Development & Urban Housing Department of the State Government. As per one of the conditions, the selected candidates were to undergo training and petitioner did it, for which, the Executive Engineer, Engineering Staff College, Gandhinagar had issued a certificate, certifying that the petitioner has undergone the training. Therefore, the chain of events clearly suggest that the appointment of the petitioner was made after the requisite approval by the State Government in its Roads & Page 21 of 30 Downloaded on : Wed Jul 12 20:47:57 IST 2023 C/SCA/8603/2012 CAV JUDGMENT DATED: 12/07/2023 Buildings Department, vide Government Resolution dated 8.3.2001. The record further reveals that the said appointment was extended from time to time and the petitioner is still continued and presently working with the office of Mamlatdar, Rapar.
5.4. Further, as is discernible from the record, the State Government in its Roads & Buildings Department had issued a Government Resolution dated 12/4/2006, discontinuing the establishment, which was created for reconstruction and rehabilitation of the earthquake affected areas. As per the condition no.3, all the offices of the Sub-
Division were closed down and the employees working on the contractual basis as surveyor/consultant were assigned to the District Panchayat/offices of the Collectors. Condition no.4 provided that the surveyor/consultant, who have been assigned to the offices of the District Panchayat as well as the Collector, their pay and other perks would be at the hands of the respective District Panchayat/office of the Collector. Therefore, till the year 2006, the service of the petitioner was continued on contractual basis and upon closure of the said project, the petitioner and other employees were allotted to the office of the respective District Panchayats/offices of the Collectors. Pertinently, the petitioner initially had worked with the office of Executive Engineer, Earthquake (R&B) Bhachau, and thereafter with the office of the Mamaltdar and currently with the office of Page 22 of 30 Downloaded on : Wed Jul 12 20:47:57 IST 2023 C/SCA/8603/2012 CAV JUDGMENT DATED: 12/07/2023 Mamlatdar, Rapar. There is no dispute so far as the aforesaid facts are concerned.
5.5. As is discernible from the record, employees, who were appointed in similar set of facts, the State Government in its Urban Development & Urban Housing Department, had issued Government Resolutions regularizing the service of the employees concerned, who were appointed on contractual basis. One such Government Resolution is dated 14/2/2008 regularizing the service of the six employees on regular establishment. The sole obstacle, which the respondent has spelled out in its affidavit is that since the initial appointment of the petitioner was by the Roads & Buildings Department and in the year 2006, the petitioner having been assigned to the office of the Collector, it will not be its responsibility; rather it would not be the obligation of the Roads & Buildings Department to regularize the service of the petitioner. The said approach on the part of the respondent authorities is clearly impermissible inasmuch as, the petitioner, as is clear from the record, was appointed after following the procedure by the Chairman, Selection Committee & Superintending Engineer. Strictly speaking, the appointment of the petitioner was not as per the statutory Rules; however, the same cannot be termed as an illegal appointment. At the most, the appointment of the petitioner can be said to be an Page 23 of 30 Downloaded on : Wed Jul 12 20:47:57 IST 2023 C/SCA/8603/2012 CAV JUDGMENT DATED: 12/07/2023 irregular appointment. Therefore, once the Court finds that the appointment of the petitioner was not illegal but irregular, the principle enunciated by the Apex Court in the case of State of Karnataka vs. M.L. Kesari reported in (2010) 9 SCC 247 squarely applies. The Apex Court in the said case, has held that where the appointments are not made or continued against sanctioned posts or where the persons appointed do not possess the prescribed minimum qualifications, the appointments will be considered to be illegal. But, where the person employed possessed the prescribed qualifications and was working against sanctioned posts, had been selected without undergoing the process of competitive selection, such appointments are considered to be irregular.
5.6. Therefore, as discussed hereinabove, the petitioner being found eligible in all respect was appointed by duly constituted Selection Committee of Chairman & Superintendent (Roads & Buildings) Circle Ghandinagar. Besides, this Court, in similar set of facts, has directed regularization of the service of the employees. One such order is dated 21/12/2009 rendered in Special Civil Application No.9523 of 2009. In another oral judgment dated 26/9/2014, in the case of Dipesh Bharatbhai Joshi vs. State of Gujarat, rendered in Civil Application No. 10457 of 2014 in Special Civil Application No. 11020 of 2010, this Court has directed regularization of the service. Paragraphs Page 24 of 30 Downloaded on : Wed Jul 12 20:47:57 IST 2023 C/SCA/8603/2012 CAV JUDGMENT DATED: 12/07/2023 2 and 3 whereof, read as under:
"2. Having considered the rival contentions there does not appear to be a dispute on the fact that the petitioners were appointed through set recruitment procedure as Surveyors w.e.f 15th June 2004. In the Civil Application an order dated 30th October 2013 regularising various similarly situated Surveyors has been produced and there does not appear to be a serious dispute that the petitioners also can be regularised in terms of the said order. Even otherwise this Court has been consistent in its view that regularly selected employees cannot be continued for long on contractual, adhoc or temporary basis and they are required to be regularised. Even in Secretary, State of Karnataka & Ors. V. Umadevi & Ors (AIR 2006 SC1806), the Apex Court emphasised the need for regularisation of such employees and deprecated the practice of making appointments on permanent post on contractual or on adhoc basis for long time.
3. In above view of the matter the petition is required to be allowed partly as submitted by learned counsel for the petitioner, to an effect that the petitioner will be regularised not from the date of inception in service but from the date his juniors were regularised. Accordingly the petition is partly allowed in above terms and the petitioner shall be regularised in terms of the order dated 30th October 2013. The decision to regularise the petitioner will be taken by the respondent preferably Page 25 of 30 Downloaded on : Wed Jul 12 20:47:57 IST 2023 C/SCA/8603/2012 CAV JUDGMENT DATED: 12/07/2023 within a period of six weeks from today. Rule is made absolute to the above extent. Direct service is permitted."
5.7. In paragraph 2, there is a reference of order dated 30.10.2013 whereby service of various surveyors has been regularized. Following the aforesaid two judgments, this Court vide judgment dated 23/2/2016 has directed the State Government to regularize the service of the petitioner therein. The petitioner therein was appointed pursuant to the very same advertisement issued in the local daily newspaper on the post of Additional Engineer (Civil) and was thereafter appointed to the post of Surveyor. The grievance raised therein was that he was serving past sixteen years on contractual basis and despite request being made to the authorities, his service was not regularized. This Court, while allowing the writ petition, has observed thus:
"Perhaps, the only ground put forward for not regularizing the services of the petitioner is that he was appointed for a brief period only with a view to meet with the exigencies that arose on account of the devastating earthquake. If that would have been so, probably, he would not have been continued for sixteen years at a stretch. On one ground or the other, this petition is sought to be opposed. It is now submitted that his performance is not satisfactory. It is also submitted that one FIR was Page 26 of 30 Downloaded on : Wed Jul 12 20:47:57 IST 2023 C/SCA/8603/2012 CAV JUDGMENT DATED: 12/07/2023 registered against him for the offence of forgery. It is pointed out that the investigation resulted in filing of a 'C' summary report by the Investigating Officer and the learned Magistrate has accepted the 'C' summary. Of course, a revision seems to have been filed in the Sessions Court against the order of the learned Magistrate accepting the 'C' summary.
I take notice of the fact that many employees in the establishment who were appointed along with the petitioner at the relevant point of time have all been regularized. It seems that the work is still there, otherwise the petitioner would not have been continued all these years in service.
In the result, the respondent nos.2 and 3 are directed to consider the case of the petitioner for regularization, more particularly, in view of the order which was passed by this Court dated 21st December 2009 referred to above. An appropriate decision shall be taken in this regard with necessary order within a period of eight weeks from the date of receipt of the writ of the order. The respondent nos.2 and 3 are also directed to take into consideration the judgment and order passed by this Court dated 4th February 2016 in Special Civil Application No.10829 of 2003 and allied matters, wherein this Court has considered the law on the subject of regularization at length. I expect the authorities to take a positive decision keeping in mind the judgments referred to above. The respondent nos.2 and 3 are also directed to consider the order dated 26th September Page 27 of 30 Downloaded on : Wed Jul 12 20:47:57 IST 2023 C/SCA/8603/2012 CAV JUDGMENT DATED: 12/07/2023 2014 passed by a learned Single Judge in Civil Application No.10457 of 2014 in Special Civil Application No.11020 of 2010 and allied matters.
I expect the authorities concerned to ensure that there is no second round of litigation.
With the above, this writ-application is disposed of. Direct service is permitted."
5.8. It has been reported that pursuant to the aforesaid directions contained in the judgment dated 23/2/2016, the service of the petitioner therein, who was working with the office of Rapar Area Development Authority has been regularized, by passing necessary orders.
5.9. The case of the petitioner is identical to the case of the petitioner of Special Civil Application No.16634 of 2012 and also identical to the case of the petitioner of Special Civil Application No.8601 of 2012 wherein the co-ordinate Bench of this Court passed similar order following order passed in Special Civil Application No.16634 of 2012.
5.10. It is pertinent to note that the aforesaid order passed by the Co-ordinate Bench of this Court in Special Civil Application No.8601 of 2012 was challenged before the Division Bench of this Court in Letters Patent Appeal No.592 of 2022 and the Division Bench of this Court, vide Page 28 of 30 Downloaded on : Wed Jul 12 20:47:57 IST 2023 C/SCA/8603/2012 CAV JUDGMENT DATED: 12/07/2023 order dated 2/5/2022 dismissed the said Letters Patent Appeal and confirmed the judgement and order passed and directions issued in Special Civil Application No.8601 of 2012. Thus, the aforesaid order has become final and conclusive and has attained finality. Under the circumstances, when the case of the petitioner herein is similar to that of the petitioner of Special Civil Application No.16634 of 2012 and Special Civil Application No.8601 of 2012, similar order is required to be passed and similar directions are required to be issued.
5.11. Considering the facts discussed herein above so also, the directions issued by this Court in the aforesaid judgments, there is no reason available to this Court to take a different view than the aforesaid views taken by this Court, more particularly, when the petitioner also has been appointed in the year 2001 after following the procedure and by duly constituted Selection Committee. Furthermore, the said order was approved by the State Government vide Government Resolution dated 8/3/2001 and it is only thereafter that the appointment was effected. The continuation of the petitioner from the year 2001, till date, also buttress the fact that the service of the petitioner is still required by the authorities concerned. Also, the recommendations made by the office of the Mamlatdar so also, the Deputy Collector strengthens the fact about requirement of service of the petitioner and therefore, in Page 29 of 30 Downloaded on : Wed Jul 12 20:47:57 IST 2023 C/SCA/8603/2012 CAV JUDGMENT DATED: 12/07/2023 absence of any strong justification assigned by the respondents, for not regularizing the service of the petitioner, the case of the petitioner also needs consideration in line with directions contained in the judgments passed by this Court in the aforementioned writ petitions.
5.12. Under the circumstances, the respondent no.1, in consultation with the concerned departments namely, Revenue Department and Urban Development & Urban Housing Department of the State Government, are directed to consider the case of the petitioner for regularization. The concerned authorities shall take decision in terms of this judgment within a period of four months from today. It is expected that the authorities will take positive decision, ensuring that there is no second round of litigation.
6. In view of the aforementioned discussion, the petition is partly allowed. Rule is made absolute to the aforesaid extent. No order as to cost.
Sd/-
(RAJENDRA M. SAREEN,J) R.H. PARMAR Page 30 of 30 Downloaded on : Wed Jul 12 20:47:57 IST 2023