Gujarat High Court
Parmar Rajesh Shivabhai & 3 vs State Of Gujarat & 2 on 7 July, 2017
Author: Biren Vaishnav
Bench: Akil Kureshi, Biren Vaishnav
C/LPA/107/2009 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS PATENT APPEAL NO. 107 of 2009
In
SPECIAL CIVIL APPLICATION NO. 5285 of 2008
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE AKIL KURESHI
and
HONOURABLE MR.JUSTICE BIREN VAISHNAV
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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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PARMAR RAJESH SHIVABHAI & 3....Appellant(s)
Versus
STATE OF GUJARAT & 2....Respondent(s)
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Appearance:
MR SHALIN N MEHTA, ADVOCATE for the Appellant(s) No. 2
MS VIDHI J BHATT, ADVOCATE for the Appellant(s) No. 1 , 3 - 4
MR CHINTAN DAVE, AGP for the Respondent(s) No. 1 - 3
NOTICE SERVED for the Respondent(s) No. 1 - 3
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CORAM: HONOURABLE MR.JUSTICE AKIL KURESHI
and
HONOURABLE MR.JUSTICE BIREN VAISHNAV
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C/LPA/107/2009 JUDGMENT
Date : 07/07/2017
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE BIREN VAISHNAV)
1. The appellants-original petitioners have approached this Court, upon being aggrieved by the order of the learned Single Judge dated 22.04.2008. By the aforesaid order, the learned Single Judge dismissed the petitions. The petitioners had approached this Court seeking regularization of services on the premise that they had been working as part time sweepers from more than ten years. From the table produced at page 3 of the petition, it is apparent that the petitioners had been working as part time sweepers safai kamdars from the years 1990 and 1994 onwards.
2. The learned Single Judge had dismissed the petitions on the ground that since the process of cleaning has been outsourced, the petitioners in view of such policy of the Government, could not seek regularization.
3. It needs to be taken note of that in the earlier round of litigation in view of the judgement of the learned Single Judge dated 18.09.2006 in Special Civil Application Nos 4355/206 and allied matters the Court had considered the question of the legality of the termination of such part time sweepers/workers and their right to seek regularisation. In an extensively discussed judgement the Court had negated the right of such petitioners for regularisation.
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4. The appellants-petitioners had approached this Court
apprehending that their services would be discontinued with effect from 31.3.2008.This was so apprehended in light of the directions contained in the judgement dated 18.9.2006 and the formulation of policy by the Government consequent to the judgement so rendered.
5. By virtue of the impugned judgement of the Learned Single Judge,the Appellants were terminated from their services. However in the present Appeal ,while admitting the appeal, this Court, by an order dated 16.12.2009, had passed an order below Civil Application No. 1014 of 2009, the order reads as under:
"2. Taking into consideration the facts of the case and the fact that the applicants are without any livelihood, the prayer prayed for in clause-(D) of para-3 is granted. Respondent Nos.2 and 3 are directed to see that the applicants are allowed to discharge the duties which they were discharging prior to their termination and they shall be paid as they were being paid prior to termination. Respondent Nos.2 and 3 are also directed to see that the applicants are reinstated on or before 23.12.2009 and report compliance on 24.12.2009. It is also a settled law that employer cannot replace an ad hoc employee by another ad hoc employee, as laid down by the Hon'ble the Apex Court in the matter of State of Karnataka Vs. Umadevi, reported in 2006 (4) SCC 1.
3. Learned Assistant Government Pleader Mr.Devang Vyas submitted that no relief is required to be granted, in view of the fact that the alleged illegal termination, even if it is held to be legal, has taken place in the year 2007. The fact that the Court has admitted the appeal, the applicants - appellants - original Page 3 of 5 HC-NIC Page 3 of 5 Created On Sun Jul 23 18:12:45 IST 2017 C/LPA/107/2009 JUDGMENT petitioners cannot be left to starve and therefore the aforesaid order is passed.
"4. The application is disposed of accordingly. Rule is made absolute to the aforesaid extent. No costs. At the request of the learned advocate for the applicants, it is clarified that it will be open for the applicants to press for the other reliefs prayed in this application either by filing a separate application or as it is. At the request of the learned Assistant Government Pleader, it is clarified that the reinstatement of the applicants will be on the same terms and conditions on which they were working prior to termination and the present order of the reinstatement will not create any equities in favour of the applicants."
6. In view of the interim order passed in the appeal on 16.12.2009, the appellants in the present appeal are continued in service.
7. As seen from the facts of the case, the appellants were initially engaged in the year 1990-1994. Pursuant to the interim order passed in the year 2009, in the present Appeal, the Appellants were reinstated and are still continued in service.
8. Looking to the prayer in the present appeal and in view of the fact that the appellants/petitioners have continued in service for sufficiently long period of time, after passing of the interim order in the year 2009, interests of justice, it would be served if direction to be issued to the respondent authorities to continue the appellants in service.
9. In view of the fact that the petitioners-appellants have been protected, the respondents are directed to see that if the work in question for which they have employed is continued, such work Page 4 of 5 HC-NIC Page 4 of 5 Created On Sun Jul 23 18:12:45 IST 2017 C/LPA/107/2009 JUDGMENT which the appellants carry out shall not be outsourced nor will the appellants will be replaced by any ad hoc employees till the appellants reach the age of superannuation prescribed for Class IV employees. The appeal is disposed of accordingly.
10. Letters Patent Appeal is accordingly disposed of.
(AKIL KURESHI, J.) (BIREN VAISHNAV, J.) Jyoti Page 5 of 5 HC-NIC Page 5 of 5 Created On Sun Jul 23 18:12:45 IST 2017