Gujarat High Court
Maharaja Krishnakumarsinhji vs Amitbhai Rajubhai Beradiya on 28 March, 2018
Author: Anant S. Dave
Bench: Anant S. Dave, Biren Vaishnav
C/LPA/1041/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 1041 of 2017
With
CIVIL APPLICATION NO. 1 of 2017
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MAHARAJA KRISHNAKUMARSINHJI
Versus
AMITBHAI RAJUBHAI BERADIYA
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Appearance:
MR AD OZA(515) for the PETITIONER(s) No. 1
DS AFF.NOT FILED (N)(11) for the RESPONDENT(s) No. 2
MR. VISHAL P THAKKER(7079) for the RESPONDENT(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE ANANT S. DAVE
and
HONOURABLE MR.JUSTICE BIREN VAISHNAV
Date : 28/03/2018
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE ANANT S. DAVE)
1. The challenge in this appeal under Clause 15 of the Letters Patent is the order dated 3.5.2017 passed in Civil Application (for direction) No.1189 of 2017 in Special Civil Application No.11999 of 2016, whereby learned Single Judge directed the appellant-respondent therein to reinstate the applicant-petitioner in service with continuity and other consequential benefits and to pay salary from the date of termination till the date of reinstatement with interest.
2. In the writ petition filed by the petitioner-a sweeper under Article 226 of the Constitution of India, prayer was against the respondents to absorb the petitioner in the existing set up at serial no.47 of the list of Sweepers and to regularize the services of the petitioner and pay salary as per the prevalent pay scale.
Page 1 of 8 C/LPA/1041/2017 ORDER3. During the pendency of the above writ petition, service of the petitioner was put to an end on the ground that contractual period of service for which the petitioner was performing the duties had come to an end and, thereafter the Civil Application No.1189 of 2017 was filed with the prayers, as aforesaid.
4. For appreciating factual aspects and the circumstances which led learned Single Judge to pass the order and directions mandatory in nature, we reproduce paragraphs 2, 3 and 4 of the impugned order as under:-
"2. This is a really disturbing situation and in fact the real reason for pendency of the cases before the Court. It becomes clear that everyday, more than 100 matters are listed before the Court because of non-availability of total number of courts. This results into a situation that if any matter is listed in first 50 serial numbers, then, only because one of the advocate remains away from the court when the matter is called out, then there would be less chance of recalling the matter because of total number of matters listed per day and, thereby, it would be automatically adjourned even without requesting the court for adjourning the matter and then it is stated before court on the next date that the matter was not taken up by the Court. To avoid such situation, there is a need to take up all the matters as and when they are called out and to pass appropriate orders.
3. Therefore, request by Mr. Jha is rejected and Mr. Thakkar is allowed to argue the matter. Mr. Thakkar has submitted that though the petitioner has been appointed and worked from the year 2011 till 2016, and thereby, though respondents are supposed to regularise his service, they have discontinued the services of the petitioner though work was available with them and moreover they are going to appoint a new Sweeper to carry out the same work; thereby, instead of appointing them on contractual basis directly, as petitioner was appointed for last more than 5 years, now, respondents are entering into labour contract with some private agency. It is alleged that such agency is having political Page 2 of 8 C/LPA/1041/2017 ORDER support. Irrespective of such allegation regarding political support, the basic fact remains that the petitioner has worked for five years on contractual basis with the respondent, such orders are placed on record collectively at Annexures A to C from pages No. 10 to 14, which confirms that the services of the petitioner has been continued on 11 months basis right from the year 2011 till he was removed from service in the month of December, 2016. Amongst such orders, an order dated 31.3.2016 at Annexure-C, discloses the glaring facts, when the respondents have passed an order that to save the money, the petitioner is directed to work as Driver also in addition to his duties as Sweeper from 1.4.2016 to 19.5.2016 and he has to continue such duty as Driver till the work of examination is over and that for such additional work, he would not be paid any additional allowance. This is nothing, but a clear exploitation of a Class-IV employee by the respondents on 2.4.2016, the copy of such order is at Annexure-D (page 15). The respondents have the audacity to even assign a serious duty to the petitioner by addressing him a communication as if he is serving as a Driver and conveyed him to carry out particular serious work of transporting question papers and answer papers at different places.
4. In view of such fact, when there was no interim relief granted by this court at the relevant time of issuance of notice in main petition on 20.7.2016, and more particularly thereafter, when respondents have put an end to the services of the petitioner somewhere in the month of December, 2016, the petitioner applicant has no option, but to file this Civil Application on 20.6.2016 seeking following relief in paragraph 11:-
"a. This Hon'ble Court be pleased to declare that the action of the respondents in terminating the services of the applicant is illegal, unjust, arbitrary, against the principle of natural justice and in violation of Articles 14, 16 and 21 of the Constitution of India can be pleased to direct the respondents to restore the applicants in service with all consequential benefits.
b. Be pleased to direct the respondent to reinstate the applicant in service with continuity of service and will all consequential benefits and pay all Page 3 of 8 C/LPA/1041/2017 ORDER arrears of amount as per the orders of the Honble Court with interest.
c. Pending admission and final disposal of the present application, the Hon'ble Court be pleased to direct the respondents to take the applicant back in service forthwith and pay salary accordingly. This Hon'ble Court further be pleased to direct the respondents to pay the due salary from the date of termination till the date of reinstatement to the applicant forthwith with interest.
d. Be pleased to direct the respondents to pay the cost to the present applicant.
e. Any other relief which this Hon. Court deem fit and proper in interest of justice together with cost."
5. Shri A.D.Oza, learned counsel appearing for the appellant
-University would contend that, by interim order, no direction could have been issued to take back the respondent-writ petitioner in service when he was appointed purely on contractual basis and served for 11 months in a year for about five years and upon completion of contractual period, his service came to an end. When any appointment is made contrary to law for which no procedure of regular recruitment/ selection is followed, direction issued by learned Single Judge will be contrary to law and various decisions of the Apex Court to which our attention is drawn, including the decision in the case of State of Jammu and Kashmir and Others v. District Bar Association, Bandipora, in Civil Appeal No.36084 of 2016 and in the case of Secretary to Government, Commercial Taxes and Registration Department and Another v. Singamuthu in Civil Appeal No.3770 of 2017.
6. According to learned counsel for the appellant, various Government Resolutions do not recognize any appointment by University unless it is made in accordance with recruitment Rules and sanction is given by the competent authority of the Page 4 of 8 C/LPA/1041/2017 ORDER State Government. Therefore, the order impugned deserves to be quashed and set aside.
7. As against above, learned advocate for the respondent- employee would contend that appointment on contractual basis was a device found out by the respondent-University to deprive the benefit of regularization and permanency to an employee and, in the facts of this case, when the petitioner had invoked the jurisdiction of this Court under Article 226 of the Constitution of India and the writ petition was pending, his service came to be terminated, though work was available with the University and, therefore, he was compelled to file Civil Application seeking relief, as above. It is further submitted that interim relief granted by learned Single Judge to reinstate him is not complied with and such interim relief will be subject to final outcome of the writ petition without creating any right in his favour. It is, therefore, submitted that the order impugned deserves to be sustained and the appeal be dismissed.
8. Having regard to the facts and circumstances of the case and submissions made by learned advocates appearing for the parties, ordinarily we would have examined the case in detail considering the nature of relief granted by learned Single Judge of reinstatement of an employee during the pendency of writ petition awaiting final adjudication, but peculiar facts and circumstances of this case reveal that the invocation of writ jurisdiction by the employee-writ petitioner under Article 226 of the Constitution of India seeking regularization and permanency was awaiting adjudication and it appears that taking advantage of the situation, particularly when service conditions of the petitioner were not protected, the action was Page 5 of 8 C/LPA/1041/2017 ORDER taken by the University to terminate his service, which is not only unjust, unreasonable and arbitrary but amounts to giving go-bye to fair means while dealing with an employee of Class- IV category.
9. Besides, learned Single Judge has given reasons for granting such relief and we are also in agreement with such reasonings, but at the same time, we are of the considered view that the respondent-original writ petitioner shall be reinstated in service by the appellant-University but benefit of regularization and permanency shall be subject to final outcome of the writ petition that may be decided finally.
10. The decision in the case of State of Jammu and Kashmir (supra), on the contrary in paragraph 30 refer to the duties cast upon statutory bodies and authorities of the Government to follow essence of rule of law and not to employ employees on contractual basis. Besides in the above case, in the appointment of ministerial in nature by the High Court of Jammu and Kashmir, blanked order was passed to regularize services of such staff. Some of them have been appointed in the year 2015 without laying down any criteria and, therefore, Apex Court interfered with. In the case of Secretary to Government (supra), the Apex Court once again referred to the case of State of Karnataka v. Uma Devi, (2006) 4 SCC 1 and other such cases and in paragraph 12 referred to settled principles relating to regularization. We reproduce paragraph 12 of the said decision, which reads as under:-
"12. We may at the outset refer to the following well settled principles relating to regularization and parity in pay, relevant in the context of these appeals.Page 6 of 8 C/LPA/1041/2017 ORDER
(i) High Courts, in exercising power under Article 226 of the Constitution will not issue directions for regularization, absorption or permanent continuance, unless the employees claiming regularization had been appointed in pursuance of a regular recruitment in accordance with relevant rules in an open competitive process, against sanctioned vacant posts. The equality clause contained in Article 14 and 16 should be scrupulously followed and courts should not issue a direction for regularization of services of an employee which would be violative of constitutional scheme. While something that is irregular for want of compliance with one of the elements in the process of selection which does not go to the root of the process, can be regularized, back door entries, appointments contrary to the constitutional scheme and / or appointment or ineligible candidates cannot be regularized.
(ii) Mere continuation of service by a temporary or ad hoc or daily - wage employee, under cover of some interim orders of the court, would not confer upon him any right to be absorbed into service, as such service would be 'litigious employment'. Even temporary, ad hoc or daily -wage service for a long number of years, let alone service for one or two years, will not entitle such employee to claim regularization, if he is not working against a sanctioned post. Sympathy and sentiment cannot be grounds for passing any order of regularization in the absence of a legal right.
(iii) Even where a scheme is formulated for regularization with a cut-off date (that is a scheme providing that persons who had put in a specified number of years of service and continuing in employment as on the cut-off date), it is not possible to others who were appointed subsequent to the cut-off date, to claim or contend that the scheme should be applied to them by extending the cut-off date or seek a direction for framing of fresh scheme providing for successive cut off dates.
(iv) Part-time employees are not entitled to seek regularization as they are not working against any sanctioned posts. There cannot be a direction for absorption, regularization or permanent continuance of part time temporary employees.Page 7 of 8 C/LPA/1041/2017 ORDER
(v) Part time temporary employees in government run institutions cannot claim parity in salary with regular employees of the government on the principle of equal pay for equal work. Nor can employee in private employment, even if serving full time, seek parity in salary with government employees. The right to claim a particular salary against the State must arise under a contract or under a statute."
11. We are in agreement with above illustrative principles relating to regularization and parity in pay and exercise of power under Article 226 of the Constitution of India by the High Court not to issue directions for regularization, absorption or permanency, unless the employees seeking regularization had been appointed in pursuance of regular recruitment in accordance with relevant rules in an open competitive process and against vacant posts. However, in the facts of this case, the petitioner who was appointed on contractual basis and continued to serve for about five years, while approached this Court seeking relief of regularization and permanency even the service on contractual basis is also taken away and, therefore, we are inclined to modify the relief granted by learned Single Judge by not disturbing the order and direction qua reinstatement of the respondent-writ petitioner and the question of regularization and permanency of the employee can be decided at the time of final disposal of the writ petition.
12. In view of above, present Letters Patent Appeal as well as Civil Application for stay are disposed of.
(ANANT S. DAVE, J) (BIREN VAISHNAV, J) R.S. MALEK Page 8 of 8