Gujarat High Court
Mayurikaben M Mewada & 2 vs State Of Gujarat & on 5 May, 2006
Author: D.H.Waghela
Bench: D.H.Waghela
SCA/4012/2006 1/11 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
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MAYURIKABEN M MEWADA & 2 - Petitioner(s)
Versus
STATE OF GUJARAT & 1 - Respondent(s)
=========================================================
Appearance :
Mr. Y.N.Oza, Sr.Advocate with Mr Pinakin Raval, Ms.Sadhana Sagar,
Ms.Tejal Doshi, M/s. J V Bhairavia, A M Parekh, Ms.Femina
Chhapatwala, Ms. Roma Fidelis, M/s Asim J Pandya, A M Raval, K Raj,
I S Supehia, R K Mishra, J V Mehta, V H Desai, R C Jani, S K
Gadhvi, Dhaval N Vakil, B S Brahmbhatt, A V Prajapati, V D Parghi,
Haresh J Trivedi, M B Farooqui, P H Pathak, Jayant P Bhatt, Devang D
Trivedi, Paresh Upadhyay,P J Kanabar, Hemant Raval,Virendra Baheti
for Petitioner(s) :
Mr Kamal B Trivedi, A.G. With Mr K.P. Rawal, and Ms. D.S. Pandit,
Asstt. GOVERNMENT PLEADERS for Respondent(s) : 1,
NOTICE SERVED BY DS for Respondent(s) : 2,
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HC-NIC Page 5 of 11 Created On Thu Aug 17 00:16:52 IST 2017 SCA/4012/2006 6/11 ORDER CORAM : HONOURABLE MR.JUSTICE D.H.WAGHELA Date : 05/05/2006 ORAL (COMMON) ORDER
1. All the petitions were stated to be involving a common question of law which required urgent determination and argued on that basis. Therefore, the arguments on the side of the petitioners were addressed by several learned counsel including the learned Senior Advocate Mr Y.N. Oza and the learned Advocate General was requested to assist the Court from the side of the respondents. The arguments have, however, remained inconclusive even on the last day before summer vacation.
2. The petitioners are stated to be generally falling into three classes of Government employees, namely, part- time employees, temporary employees and casual employees employed for a particular period and their period of services are stated to be ranging from 2 years to 22 years. The prayers of the petitioners are also falling under three distinct heads, namely, direction for regularization of their services, direction to restrain the respondents from terminating their services and direction for reinstatement of the petitioners, who were already discharged from HC-NIC Page 6 of 11 Created On Thu Aug 17 00:16:52 IST 2017 SCA/4012/2006 7/11 ORDER service.
3. The admission of the petitions was vehemently resisted and objected on behalf of the respondents by the learned Advocate General on the basis of the recent judgment dated 10.4.2006 of the Constitution Bench of the Supreme Court in the case of Secretary, State of Karnataka & Ors. v. Umadevi & Ors (JT 2006 (4) SC 420). Heavily relying upon the said judgment, it was submitted on behalf of the respondents that, after the law being settled by the Constitution Bench of the Supreme Court, there was no scope for any High Court to entertain the petitions for regularization of part-time, temporary or casual employees, whose very appointment and continuation in service would amount to violation of Articles 14 and 16 of the Constitution. It was also submitted that the Government had taken a policy decision expressed in the form of Resolution dated 10.2.2006 whereby the powers of the various officers who engaged such employees and paid them wages, were withdrawn and this Court may not, by any interim or final order, impose any financial burden on the Government.
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4. In view of the aforesaid recent judgment of the Constitution Bench of the Supreme Court, the learned counsel for the petitioners fairly conceded that prima facie, the demand, claim or prayers of the petitioners for regularization may not survive or may not be entertained at this stage, but when it comes to termination of service of a Government servant, after even 10 to 20 years of employment in the same office with the hopes of regularization in terms of the Resolutions of the Government itself and in absence of protection of other labour laws, it requires to be examined whether the livelihood of the employee enjoying no status, could legally be snatched away without even a notice or a written order. The learned counsel relied upon the judgment of the Constitution Bench of the Supreme Court in the case of Olga Tellis v. Bombay Municipal Corporation (AIR 1986 SC 180) to submit that the Government was obliged at least to give notice before taking action of terminating the services of any of its employees and that argument was also buttressed by the provisions of Bombay Civil Service Rules which were replaced by Gujarat Civil Service Rules and in particular Rule 35 of the Gujarat Civil Service Rules.
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5. Although the affidavits-in-reply of the respondents are not filed in all the petitions taken up for hearing together, it is not the case of the respondents that any of the petitioners is discharged from service after following any procedure or issuance or service of any notice. The Resolution on the basis of which the petitioners are discharged from service or proposed to be discharge, itself, is under challenge and the petition challenging that Resolution dated 10.2.2006 is admitted.
6. In the above facts and circumstances, prima facie, the Court finds that the petitions require serious consideration and are required to be fully argued after filing of affidavits-in-reply, if any, by the respondents.
7. Therefore, RULE returnable on 21.6.2006 in each of the petitions.
8. Learned Senior counsel appearing for the petitioners submitted that many of the petitioners were already terminated from service or apprehending termination even as some of the petitioners were protected by ad-interim orders of this Court. It was pointed out from some of the communications from the HC-NIC Page 9 of 11 Created On Thu Aug 17 00:16:52 IST 2017 SCA/4012/2006 10/11 ORDER office of the respondents themselves that the services of the petitioners were required by the very offices which had terminated their service pursuant to the aforesaid Resolution dated 10.2.2006 and in any case, it was not the case of the respondents that the services of the petitioners were terminated or were being terminated for want of work or funds. It was only by way of a policy of the Government to terminate the services of such temporary, casual or part-time employees, for re- organisation and to avoid the future liability in case such employees were regularised that the employees were being discharged en masse, according to the submission.
9. Now, the petitioners themselves were not pressing their claim for regularization at this stage, and in view of the aforesaid judgment of the Constitution Bench of the Supreme Court, the petitioners may not be in a position to press the claim for regularization in any case. Under such circumstances, the only question which remained was as to whether the services of the petitioners were required to be immediately terminated and whether any procedure was required to be followed in the facts and circumstances of the case. It may also be relevant to note at this stage that the learned Advocate HC-NIC Page 10 of 11 Created On Thu Aug 17 00:16:52 IST 2017 SCA/4012/2006 11/11 ORDER General had fairly conceded that such of the petitioners as were discharged from service and were entitled to any protection under the labour laws, were free to approach such forum under the labour laws, as may be available to them.
10. Therefore, in the peculiar facts and circumstances and in view of the paucity of time today, the interim relief which is operating in whichever matter, is extended on the same terms till the returnable date of the Rule. In all other petitions, the interim relief is refused at this stage. It will, however, be open for the respondents to continue such of the petitioners whose services are really required or even to re-employ any of the petitioners subject to final order that may be made.
[D. H. Waghela, J.] msp HC-NIC Page 11 of 11 Created On Thu Aug 17 00:16:52 IST 2017