Gujarat High Court
Hirabhai Sankalbhai Patel (Dy. Exe. ... vs State Of Gujarat & 2 on 13 September, 2017
Author: Mohinder Pal
Bench: Mohinder Pal
C/SCA/287/2015 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 287 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE MOHINDER PAL
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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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HIRABHAI SANKALBHAI PATEL (DY. EXE. ENGINEER)....Petitioner(s)
Versus
STATE OF GUJARAT & 2....Respondent(s)
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Appearance:
MR DEEPAK P SANCHELA, ADVOCATE for the Petitioner(s) No. 1
MR SOAHAM JOSHI AGP for the Respondent(s) No. 1
MRS FALGUNI D PATEL, ADVOCATE for the Respondent(s) No. 3
NOTICE SERVED BY DS for the Respondent(s) No. 2
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CORAM: HONOURABLE MR.JUSTICE MOHINDER PAL
Date : 13/09/2017
ORAL JUDGMENT
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1. Rule. Mr. Soaham Joshi Learned AGP waives service of rule on behalf of respondent no. 1 and Mrs. Falguni D. Patel learned counsel waives service of rule on behalf of respondents no. 2 and 3.
2. The petitioner has approached this Court under article 226 of the Constitution of India, seeking following reliefs:
a) A writ of mandamus or a writ in the nature of mandamus or any other appropriate writ quashing and setting aside the resolution dated 20.8.2014 as well as circular dated 24.11.2014 and further may be pleased to direct the respondents authority to consider the case of the petitioner and absorb on the post of adhoc Assistant Engineer in the interest of justice.
b) Pending admission hearing and final disposal of this petition, it may be directed to the respondents to grant the benefit at par with another similar situated employee and keep one post vacant for next posting for the petitioner in the interest of justice.
3. The petitioner having degree in Engineering, Page 2 of 11 HC-NIC Page 2 of 11 Created On Sun Oct 01 19:39:13 IST 2017 C/SCA/287/2015 JUDGMENT came to be appointed as Jr. Engineer on 27.6.1991 under the office of Deputy Executive Engineer, Sub-Division, Bharuch, Gujarat Housing Board. Thereafter, pay of the petitioner was revised on 6.11.1992 and was put in the pay-scale of Rs. 2000-60-2300-EB-75-3200 and his designation was changed to Work Charge Assistant Engineer. Petitioner made representations to the Commissioner, Gujarat Housing Board on 19.1.1995 to promote him to the post of Acting Assistant Engineer from Work Charge Assistant Engineer. The Superintending Engineer, Vadodara Circle, on 9.1.196 recommended the case of the petitioner for promotion, to the Commissioner, Gujarat Housing Board. The petitioner made another representation on 17.1.1996 to be promotted to the post of Acting Assistant Engineer, and on 12.4.1996, the Commissioner, Gujarat Housing Board, wrote a letter to the Superintending Engineer, Vadodara Circle, stating that at present there was no recruitment in the cadre of Assistant Engineer, and as such, the petitioner be continued on his designation of Work Charge Assistant Engineer. The case of the petitioner was also recommended by the other officials of Gujarat Housing Board and representation made by the petitioner for promotion and absorption remained without any results
4. On 4.3.2014, twenty four persons came to be selected on the post of Assistant Engineer Page 3 of 11 HC-NIC Page 3 of 11 Created On Sun Oct 01 19:39:13 IST 2017 C/SCA/287/2015 JUDGMENT without considering case of the petitioner. On 20.8.2014, R & B Department passed a resolution, whereby, it was decided to cancel earlier resolution dated 16.8.1973, vide which, the petitioner was entitled to be absorbed on the work charge establishment. As the aforesaid resolution of 20.8.2014 was contrary to the rights and entitlement of the petitioner, he has approached this Court under Article 226, 14 and 21 of the Constitution of India.
5. The respondents no. 2 & 3 - Housing Board has contested this petition by filing reply, wherein, it has been stated that in view of the decision of the Hon'ble Apex Court, merely completion of five years does not oblige the State Government authority to absorb the employees on the temporary establishment as it would be directly in violation of Articles 14 and 16 of the Constitution of India. The respondents have justified their act by referring to the other decisions of the Apex Court, and stated that resolution dated 16.8.1973 did not confer any absolute right or vested right, on the Work Charge employees, to be absorbed on the temporary establishment inasmuch as the actual absorption was dependent on several factors viz. seniority, availability of post and relevant Recruitment Rules governing the appointment.
Since it was social obligation of the State
Government inasmuch, there were specific
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Recruitment Rules governing the appointments on the temporary establishment, the act of the respondents was legal and justified, as a result of which the petition was liable to be dismissed.
6. At the very out-set, learned counsel for the petitioner has made oral request that he does not press his prayer for quashing and setting aside the Resolution dated 20.8.2014 as well as Circular dated 24.11.2014. However, his petition be considered for absorption to the post of adhoc Assistant Engineer. He has reiterated the averments made in the petition and has submitted that as per Resolution dated 16.8.1973 after completion of five years of service, the petitioner was entitled to promotion on adhoc establishment which has been denied by the respondents while taking into consideration the resolution dated 20.8.2014 passed by the State Government as well as Circular dated 24.11.2014 which were not applicable to the case of the petitioner.
7. On the other hand, learned counsel for respondent nos. 2 and 3 has contended that initial entry of the petitioner into service, in the year 1991, was a back-door entry. The respondents were within their rights to have not considered the case of the petitioner by absorbing him into regular establishment of the respondents. It is also argued that during the year 1988, it came to the notice of the State Page 5 of 11 HC-NIC Page 5 of 11 Created On Sun Oct 01 19:39:13 IST 2017 C/SCA/287/2015 JUDGMENT Government that the respective departments were making appointments without following the procedure, resulting into back-door entry and with a view to eliminate this menace, the State Government issued various Government Resolutions directing the Head of Department, not to appoint any daily wager on the establishment. The State Government in the year 1987 and thereafter, issued various Government Resolutions dated 3.2.1987, 11.7.1988, 31.3.1989, 30.5.1989, 5.6.1989 and last in point of time Government Resolution dated 5.1.1990, inter alia, putting a ban on the recruitment of daily wagers by the Head of the Department. Further, according to the learned counsel merely because an employee is working as Work Charge and has put in 13 years service, cannot automatically be conferred the status of temporary or permanent Government servant. It has been argued that in view of the latest resolution of the State Government passed in the year 2014, petitioner was not at all entitled to be absorbed with the respondents - Board.
8. This Court has considered submissions of both the sides and written statement placed on record by the respondents as well as the orders, vide which, certain permanent appointments have been made by the respondents after selection of the petitioner. Learned counsel for the petitioner has placed heavy reliance on the Government Page 6 of 11 HC-NIC Page 6 of 11 Created On Sun Oct 01 19:39:13 IST 2017 C/SCA/287/2015 JUDGMENT Resolution dated 16.8.1973 and withdrawal of the same vide Government Resolution 20.8.2014.
9. Whole thrust of the petitioner in this case is for absorption on temporary establishment of respondents-Board. It could be seen that the petitioner came to be appointed on 27.6.1991 as Jr. Engineer under the Office of the Deputy Executive Engineer, Sub-Division, Bharuch, Gujarat Housing Board. The Government Resolution of 16.8.1973 was in operation at the relevant time. As per this resolution, if an employee has put in five years of service on temporary establishment, he was liable to be promoted as adhoc employee, meaning thereby, he was required to be absorbed as permanent employee. The Government Resolution of 16.8.1973 has been placed on record by the respondents. Para-2 of the said resolution will be relevant and is reproduced as under:
"2. The Heads of Deptt., under P.W.D. are, therefore, requested to please ensure that work charged posts in respect of maintenance and repairs of any works or Irrigation management which are proposed for conversion to temporary establishment should have been continuously in existence for a minimum period of five years and are required either permanently or on very long term Page 7 of 11 HC-NIC Page 7 of 11 Created On Sun Oct 01 19:39:13 IST 2017 C/SCA/287/2015 JUDGMENT basis say 10 to 15 years."
10. Perusal of the aforementioned provisions leaves no doubt that employee working on work charge post and have continuously worked for a minimum period of five years will earn the status of temporary employee. It would be relevant that after 1991, the petitioner completed five years in 1995, and thereafter has continued even till today. Once the petitioner is retained in service after five years, he was required to be absorbed on temporary establishment and his status should have been changed from work charge.
11. Learned counsel for the respondents has referred to various resolutions passed after 1973, according to which, back-door entry was prohibited. The arguments of learned counsel for respondents cannot be appreciated simply on the reasons that the present appointment has been made in the year 1991, that is, well after coming into force the aforementioned resolutions which came to be passed in the year 1988 to 1990. Further the action of the respondents in denying the benefits of temporary establishment to the petitioner, while taking strength from resolution dated 20.8.2014 is also against the established principles of natural justice. This is particularly so, when the petitioner was entitled to be regularized in the year 1995 and new resolution has come into force in the year 2014.
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12. Another point argued by learned counsel for respondents is regarding availability of the posts etc. It will be relevant to mention here that 24 other appointments have been made by the respondents after appointment of the petitioner. In view of these appointments, it cannot be said that the post on which the petitioner was appointed was a temporary post or such posts were not available.
13. Perusal of written statement further goes to show that respondents have relied upon the decision of the Hon'ble Apex Court in the case of Secretary, State of Karnataka vs. Umadevi, reported in (2006) 4 SCC 1. No doubt, in the aforementioned judgment, the Hon'ble Apex Court has in no uncertain terms deprecated the back- door entry into service. However, in the same judgment in para-53 it has been held that the cases where appointments are irregular and such employees have worked for a period of 10 years on permanent post without any help from the orders passed by the Court, as a one time measure, are required to be regularized. Para-53 is reproduced as under:
"53. One aspect needs to be clarified. There may be cases where irregular appointments (not legal appointments) as explained in S.V. Narayanappa, R.N. Nanjundappa and B.N. Nagarajan and referred to in para 15 above, of duly Page 9 of 11 HC-NIC Page 9 of 11 Created On Sun Oct 01 19:39:13 IST 2017 C/SCA/287/2015 JUDGMENT qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the courts or of tribunals. The question of regularisation of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularise as a one-time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases, where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularisation, if any already made, but not sub judice, need not be reopened based on this judgment, but there should be no further by-passing of the constitutional requirement and regularising or making permanent, those not duly appointed as per the constitutional scheme.
14. In view of the foregoing discussion, this Court is unable to find any reason with the respondents to deny the claim of the petitioner to be absorbed as permanent employee from the year 1995. Though the petitioner has also Page 10 of 11 HC-NIC Page 10 of 11 Created On Sun Oct 01 19:39:13 IST 2017 C/SCA/287/2015 JUDGMENT challenged resolution dated 20.8.2014, however, in view of the oral submission by learned counsel for the petitioner, this prayer is treated to be not pressed.
15. Consequently, the petitioner will be entitled to all the benefits which are available to the similarly situated other employees by treating him to be a regular employee from the year 1995. The petition stands disposed of accordingly.
(MOHINDER PAL, J.) mandora Page 11 of 11 HC-NIC Page 11 of 11 Created On Sun Oct 01 19:39:13 IST 2017