Gujarat High Court
State Of Gujarat & 2 vs Vinod Ravjibhai Rajput on 24 June, 2016
Author: R. Subhash Reddy
Bench: R.Subhash Reddy, Vipul M. Pancholi
C/LPA/195/2016 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS PATENT APPEAL NO. 195 of 2016
In SPECIAL CIVIL APPLICATION NO. 5108 of 2014
With
CIVIL APPLICATION NO. 2414 of 2016
In
LETTERS PATENT APPEAL NO. 195 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH REDDY
and
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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STATE OF GUJARAT & 2....Appellant(s)
Versus
VINOD RAVJIBHAI RAJPUT....Respondent(s)
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Appearance:
MR DHAWAN JAYSWAL, AGP for the Appellant(s) No. 1 - 3
MR BHARGAV HASURKAR, CAVEATOR for the Respondent(s) No. 1
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Page 1 of 16
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C/LPA/195/2016 CAV JUDGMENT
CORAM: HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH
REDDY
and
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
Date : 24/06/2016
CAV JUDGMENT
(PER : HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI)
1. The present appeal is filed by the State Government under Clause 15 of the Letters Patent challenging the judgment dated 14.9.2015 rendered by the learned Single Judge in Special Civil Application No.5108 of 2014, by which the petition preferred by the present respondent- original petitioner is allowed.
2. For deciding the controversy involved in the present appeal, following facts are required to be considered:
2.1 The present respondent-original petitioner was appointed as part-time Gallery Attendant in Bhuj Museum on 14.3.1995. It is the case of the petitioner that his name was forwarded by the Employment Exchange and thereafter he was appointed on the said post.
Thereafter, the Director of Museums passed an order on 25.7.2002 by which the petitioner was appointed as a full-time Gallery Attendant on a Page 2 of 16 HC-NIC Page 2 of 16 Created On Sat Jun 25 03:40:34 IST 2016 C/LPA/195/2016 CAV JUDGMENT sanctioned vacant post after obtaining sanction of the Director of Sangrahalaya Department, State of Gujarat. It is further the say of the petitioner that he served as full-time Gallery Attendant for a period of two years. However, thereafter, his services came to be terminated by an order dated 1.7.2004. The said order was passed on the ground that despite the policy of the State Government of not making any fresh recruitment due to financial constraints, the petitioner was appointed as a full-time Gallery Attendant.
2.2 It is the case of the petitioner that thereafter he challenged the order of termination by filing Special Civil Application No.7943 of 2004, wherein the learned Single Judge passed the following interim order on 7.7.2004:
"Notice to the respondents returnable on 4th August, 2004.
Pending the petition the petitioner's service shall not be terminated pursuant to the impugned notice dated 1st July, 2004. However, subject to the result of this petition, if need be, the petitioner may be reverted as a part- time employee.
Direct service to the respondent No.3 is permitted."
2.3 The concerned appellant reverted the petitioner to the position of part-time employee Page 3 of 16 HC-NIC Page 3 of 16 Created On Sat Jun 25 03:40:34 IST 2016 C/LPA/195/2016 CAV JUDGMENT as permitted by the learned Single Judge in the order dated 7.7.2004. The petitioner, therefore, filed Civil Application No.7970 of 2004 in Special Civil Application No.7943 of 2004 for clarification. Learned Single Judge, by an order dated 29.1.2005, rejected Civil Application and observed in paragraph 3 as under:
"3. In view of the interim order passed by this court and in view of the affidavit in reply filed by the respondents, it is not possible to conclude that the order dated 10.8.04 is contrary to the interim direction granted by this Court or that no justification is rendered to pass such order. The applicant has, therefore, not made out any case for staying the said order. The Civil Application is therefore rejected. Rule is discharged."
2.4 It is not in dispute that the petitioner has worked on the post of part-time Gallery Attendant during the pendency of Special Civil Application No.7943 of 2004. The said petition was disposed off by an order dated 17.3.2008 by the learned Single Judge wherein it is observed as under:
"Heard learned counsel for the parties. By the interim orders of this Court the petitioner is continued as part-timer on fixed pay. As things stand, it would be appropriate if the present status of the petitioner is maintained and he is given Page 4 of 16 HC-NIC Page 4 of 16 Created On Sat Jun 25 03:40:34 IST 2016 C/LPA/195/2016 CAV JUDGMENT due consideration in due course of time on a representation being made to the authorities. It is clarified that since under the orders of this court that the petitioner has been offered part-time job, his termination would not flout that order.
The petition is disposed of in view of the aforesaid indications."
2.5 It is further the case of the petitioner that he made representation in pursuance of the liberty given by the learned Single Judge while disposing off Special Civil Application No.7943 of 2004. However, no decision was taken on such representation. Thereafter, suddenly by an order dated 18.12.2012, the services of the petitioner came to be terminated on the ground that it was not permissible to regularize the petitioner on the post of Gallery Attendant of Bhuj Museum since the petitioner was not fulfilling the requisite conditions as prescribed in the Government Resolution dated 1.5.2007 issued by the Finance Department. It was the case of the present appellants that the petitioner had not completed ten years of service as part-time employee at the rate of six hours work per day and even if it is believed that he had completed ten years of continuous service, the same was on the basis of the interim order passed by this Court.
Page 5 of 16HC-NIC Page 5 of 16 Created On Sat Jun 25 03:40:34 IST 2016 C/LPA/195/2016 CAV JUDGMENT 2.6 The petitioner thereafter challenged the order of termination dated 18.12.2012 by filing Special Civil Application No.16840 of 2012. The said petition was dismissed on the ground that the petitioner is having alternative remedy of filing proceedings under the provisions of Industrial Disputes Act. The petitioner, therefore, filed Letters Patent Appeal No.635 of 2013 and the Division Bench of this Court by an order dated 22.8.2013 allowed the said appeal and observed in paragraph 24 as under:
"24. For the aforesaid reasons, we find merit in this appeal, and are of the opinion that the same deserves to be allowed. The appeal is, accordingly, allowed. The judgment and order dated 2nd April, 2013, passed by the learned Single Judge of this Court, is hereby set aside. The respondents are directed to reinstate the appellant on the post of full time Gallery Attendant of Bhuj Museum, forthwith. The connected Civil Application No.5149 of 2013 stands disposed of accordingly.
2.7. It is further the case of the petitioner that in pursuance to the direction given by the Division Bench, he was reinstated by the appellants on the post of full-time Gallery Attendant by an order dated 14.10.2013. However, the present appellants have not regularized the services as full-time Gallery Attendant from 25.7.2002.Page 6 of 16
HC-NIC Page 6 of 16 Created On Sat Jun 25 03:40:34 IST 2016 C/LPA/195/2016 CAV JUDGMENT 2.8 The petitioner has, therefore, preferred Special Civil Application No.5108 of 2014 wherein he has prayed for the following reliefs:
"7.(A) This Hon'ble Court be pleased to issue a writ of mandamus or any other writ, order or direction in form of writ of mandamus directing the Respondents to forthwith consider services of the Petitioner to have been regularized with effect from 25.07.2002 and further be pleased to direct the Respondents to pay to the Petitioner benefits that are due pursuant to such regularization of the Petitioner's services from 25.07.2002 in light of Judgment passed by this Hon'ble Court dated 22/08/2013 in Letters Patent Appeal no.635 of 2013.
(B) The Hon'ble Court be pleased to award interest at the rate of 12% on the amount that has remained unpaid on salary and other benefits that ought to have been paid to the Petitioner as a Fulltime Gallery Attendant, Class-IV of Bhuj Museum with effect from 25.07.2002. (C)xxxx."
2.9 The learned Single Judge in this petition, after discussing the facts of the case and decisions rendered by the Hon'ble Supreme Court and this Court, observed in paragraph 15 as under:
"15. Thus, in view of the above, reinstatement includes the continuity of service, and accordingly, the petitioner Page 7 of 16 HC-NIC Page 7 of 16 Created On Sat Jun 25 03:40:34 IST 2016 C/LPA/195/2016 CAV JUDGMENT is entitled for the benefits flowing from the continuity of service."
The petition was accordingly disposed off.
2.10 The present appellant-state authorities have therefore preferred this appeal.
3. Heard learned AGP Mr.Jayswal for the appellants and learned advocate Mr.Bhargav Hasurkar for the respondent-original petitioner.
3.1 Learned AGP mainly contended that the petitioner was appointed in 1995 as part-time Gallery Attendant and in July, 2002, he was appointed as a full-time Gallery Attendant ignoring the government policy reflected in the Government Resolution of 1989, therefore, his services were terminated on 1.7.2004. It is not in dispute that though learned Single Judge stayed the order of termination, permitted the appellants herein to revert the petitioner as part-time employee by an order dated 7.7.2004. The said order was confirmed by the learned Single Judge and while disposing off the main petition also, the said order was not disturbed. Thus, it is contended that the petitioner has worked as part-time employee during the period between 1995-2002 and during the period between 2004 to 2012. It is further contended that when the services of the petitioner was terminated in Page 8 of 16 HC-NIC Page 8 of 16 Created On Sat Jun 25 03:40:34 IST 2016 C/LPA/195/2016 CAV JUDGMENT the year 2012, the said order was challenged by the petitioner and the Division Bench has directed the present appellants to reinstate the petitioner on the post of full-time Gallery Attendant. Accordingly, he was appointed as full- time employee. However, there is no direction with regard to the continuity of the service or for regularization of service of the petitioner on the post of full-time Gallery Attendant from the year 2002 nor there is any direction to grant any other benefits from 2002 and therefore learned Single Judge has committed an error by observing that reinstatement includes continuity of service and petitioner is entitled for the benefits flowing from the continuity of service.
3.2 Learned AGP further contended that if there is any ambiguity in the order passed by the Hon'ble Division bench while disposing off Letters Patent Appeal No.635 of 2013, the petitioner ought to have preferred application for clarification of the order dated 22.3.2013 passed in the said Letters Patent Appeal. However, it is not proper on the part of the learned Single Judge to clarify the order of Division Bench and give direction to the appellants herein as observed hereinabove. He, therefore, submitted that the present appeal be allowed and order passed by the learned Single Page 9 of 16 HC-NIC Page 9 of 16 Created On Sat Jun 25 03:40:34 IST 2016 C/LPA/195/2016 CAV JUDGMENT Judge be quashed and set aside.
4. Per contra, learned advocate Mr.Hasurkar appearing for the respondent-original petitioner supported the reasoning given by the learned Single Judge while disposing off Special Civil Application No.5108 of 2014. It is contended that the petitioner has worked during the period between 1995 to 2002 as part-time employee. Thereafter, he was appointed as full-time employee. However, his services came to be terminated in 2004 which was challenged by filing Special Civil Application before this Court. He has worked as part-time employee during the period between 2004-2012. Thereafter, though he was entitled to get the benefit of Government Resolution dated 1.5.2007 issued by the government, benefit of the said Government Resolution was not given to him. The services of the petitioner was wrongly terminated. He, therefore, challenged the said action by filing the petition. The Division Bench has directed the present appellants to reinstate the petitioner on the post of full-time Gallery Attendant. Learned Single Judge has discussed all the important aspects of the matter and rightly observed that the petitioner is entitled to get the continuity of service and for the benefits flowing from the continuity of service. He further submitted that Page 10 of 16 HC-NIC Page 10 of 16 Created On Sat Jun 25 03:40:34 IST 2016 C/LPA/195/2016 CAV JUDGMENT the concerned appellant, by an order dated 3.5.2008, placed the petitioner in the pay scale of Rs.2550-3200 on the post of full-time Gallery Attendant. The present appeal, therefore, be dismissed.
5. We have considered the submissions canvassed on behalf of learned advocates appearing for the parties. We have also gone through the material produced on record and placed before us during the course of hearing.
6. It has emerged from the record that the petitioner was appointed as a part-time Gallery Attendant in the year 1995. Thereafter, he has worked on the said post upto July, 2002. Thereafter, the petitioner was appointed as full- time Gallery Attendant. However, such appointment was made ignoring the policy of the government reflected in Government Resolution of 1989. The services of the petitioner, therefore, came to be terminated by an order dated 1.7.2004. The petitioner immediately preferred the petition before this Court. Learned Single Judge granted interim order in favour of the petitioner. However, at the same time, learned Single Judge permitted the present appellants-employer to revert the petitioner on the post of part-time Gallery Attendant. Accordingly, the order dated Page 11 of 16 HC-NIC Page 11 of 16 Created On Sat Jun 25 03:40:34 IST 2016 C/LPA/195/2016 CAV JUDGMENT 10.8.2004 was passed by the present appellants by which the petitioner was reverted on the post of part-time Gallery Attendant. The said action of the appellants was challenged by the petitioner by filing Civil Application No.7970 of 2004. However, the said application was dismissed and action of reverting the petitioner on the post of part-time employee came to be confirmed. It is not in dispute that the petitioner never challenged the said order passed by the learned Single Judge in Civil Application No.7970 of 2004 before the higher forum and therefore the said order has attained finality. It is also revealed that Special Civil Application No.7943 of 2004 filed by the petitioner was disposed off by learned Single Judge vide order dated 17.3.2008 by observing as under:
"Heard learned counsel for the parties. By the interim orders of this Court the petitioner is continued as part-timer on fixed pay. As things stand, it would be appropriate if the present status of the petitioner is maintained and he is given due consideration in due course of time on a representation being made to the authorities. It is clarified that since under the orders of this court that the petitioner has been offered part-time job, his termination would not flout that order.
The petition is disposed of in view of the aforesaid indications."Page 12 of 16
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7. Thus, by the aforesaid order also, learned Single Judge has not disturbed the order of reverting the petitioner on the post of part-time Gallery Attendant. Thereafter also, the petitioner continued on the post of part-time Gallery Attendant till the order dated 18.12.2012 was passed by the present appellants whereby services of the petitioner came to be terminated. Thus, it is not in dispute that during the period between 2004-2012 also, the petitioner has worked on the post of part-time Gallery Attendant. The order dated 17.3.2008 passed by learned Single Judge was also not challenged before higher forum by the petitioner and thus the same has attained finality.
8. In view of the aforesaid facts and circumstances of the case, when the petitioner challenged the order dated 18.12.2012 passed by the present appellants before this Court, initially learned Single Judge dismissed the petition. However, the Division Bench allowed the said appeal by an order dated 22.8.2013 and directed the present appellants to reinstate the petitioner on the post of full-time Gallery Attendant. However, there is no direction in the said order with regard to giving continuity of service and regularization of service of the petitioner on the post of full time Gallery Page 13 of 16 HC-NIC Page 13 of 16 Created On Sat Jun 25 03:40:34 IST 2016 C/LPA/195/2016 CAV JUDGMENT Attendant from 2002 nor there is any reference to grant back wages.
9. Thus, when the petitioner was appointed on the post of full-time Gallery Attendant in pursuance to the direction given by the Division Bench from 14.10.2013, the appellants have not granted any other benefit to the petitioner and therefore he filed Special Civil Application No.5108 of 2014 before learned Single Judge wherein he has requested for regularizing his service from 25.7.2002 and for grant of other benefits after regularization from the said date. However, the learned Single Judge has granted continuity of service and also observed that the petitioner is entitled for the benefits flowing from continuity of service.
10. We are of the considering opinion that the Division Bench has not stated anything about the continuity of service or with regard to regularization of services of the petitioner as full-time employee from July, 2002 nor there is any reference with regard to the grant of any benefit flowing from continuity of service or regularization from the said date. In spite of that, learned Single Judge in the impugned order, held that the petitioner is entitled for the benefits flowing from the continuity of service.
Page 14 of 16HC-NIC Page 14 of 16 Created On Sat Jun 25 03:40:34 IST 2016 C/LPA/195/2016 CAV JUDGMENT We are also of the opinion that if the appellants have not granted continuity of service or other benefits including the regularization from July, 2002, the petitioner could have approached before the Division Bench by filing necessary application for clarification of the order dated 22.8.2013 passed in Letters Patent Appeal No.635 of 2013. In absence of such application for clarification, it was not proper for the learned Single Judge to clarify the order passed by the Division Bench in the aforesaid appeal.
11. The contention of learned advocate Mr.Hasurkar appearing for the original petitioner that by an order dated 3.5.2008, the concerned appellant has passed an office order by which the petitioner was placed in the pay scale of Rs.2550-3200 on the post of full-time Gallery Attendant. However, such submission is misconceived. If the said order is carefully examined, it is revealed that though the learned Single Judge has disposed off Special Civil Application No.7943 of 2004 on 17.3.2008, the concerned officer has observed that the said order is subject to outcome of the petition pending before the High Court. The officer was not aware about the disposal of the petition. Further, the said order was never implemented as the petition was disposed off and the petitioner Page 15 of 16 HC-NIC Page 15 of 16 Created On Sat Jun 25 03:40:34 IST 2016 C/LPA/195/2016 CAV JUDGMENT was continued on the post of part-time employee upto 2012. Even otherwise, the petitioner has not taken such contention in the Special Civil Application No.16840 of 2012 nor such contention was taken before the Division Bench in Letters Patent Appeal No.635 of 2013. Thus, the aforesaid contention cannot be accepted.
12. In view of the aforesaid discussion, we are of the opinion that learned Single Judge has committed an error while observing that the petitioner is entitled to the benefits flowing from the continuity of service. Hence, the impugned order is quashed and set aside. The appeal is allowed. As the appeal is allowed, no orders are passed on civil application.
(R. SUBHASH REDDY, CJ) (VIPUL M. PANCHOLI, J.) Srilatha Page 16 of 16 HC-NIC Page 16 of 16 Created On Sat Jun 25 03:40:34 IST 2016