Gujarat High Court
Nanjibhai vs State on 28 December, 2010
Author: Ks Jhaveri
Bench: Ks Jhaveri
SCA/18210/2011 4/ 4 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 18210 of 2011 ============================================ NANJIBHAI PARSHOTTAMBHAI ROHIT - Petitioner(s) Versus STATE OF GUJARAT & 3 - Respondent(s) ============================================ Appearance : MR JA ADESHRA for Petitioner(s) : 1, MR. H. S. SONI, LEARNED AGP FOR Respondent(s) : 1, NOTICE SERVED BY DS for Respondent(s) : 1 - 4. ============================================ CORAM : HONOURABLE MR.JUSTICE KS JHAVERI Date : 25/07/2012 ORAL ORDER
1. By way of this petition, the petitioner has prayed to direct the respondents to regularize the services of the petitioner with all consequential benefits.
2. The brief facts leading to filing of the petition are that on 15.3.1990, the petitioner was appointed through employment exchange as part time Hamal in the office of respondent No.2. It is the case of the petitioner that the services of the similarly situated employees have been regularized by the respondents. However, the service of the petitioner has not been regularized by the respondents. Being aggrieved by the action of the respondents, the present petition has been filed by the petitioner.
3. Learned counsel for the petitioner submitted that the petitioner was appointed after calling the name of the petitioner from the Employment Exchange and he has almost put in 22 years of service. He further stated that similarly situated persons are regularized by order at Annexure-F dated 28th December, 2010 and the petitioner is discriminated. He further submitted that the petitioner was appointed for unlimited period and therefore the authorities ought to have regularize the services of the petitioner.
4. Mr. Soni, learned AGP, submitted that the order at Annexure-F cannot be equated with the petitioner's case. He further contended that the action of the respondents in not regularizing the service of the petitioner is just and proper.
5. In support of his contention, he relied upon the decision of the Apex Court in the case of Union of India and Anr. Vs. Arulmozhi Iniarasu and Others, reported (2011) 7 SCC 397 and in the case of Union of India and Others Vs. Vartak Labour Union(2) reported in 2011(4) SCC 200 and submitted that the present petition deserves to be dismissed.
6. I have heard learned advocates appearing for the parties and perused the material on record as well as the decision of the Apex Court. From the record of the case it is clear that the petitioner was appointed through Employment Exchange and appointment of the petitioner is not a regular one and the same was not done in accordance with rules and regulations.
7. In the case of Union of India and Anr Vs. Arulmozhi Iniarasu and Ors.(supra), wherein it has been held that doctrine of legitimate expectation is inapplicable since at no point of time was a promise held out to respondents by State that they would be absorbed as regular employees of the Department. Moreover, their appointment letter very clearly and in unambiguous terms stated that their appointments were temporary and would not confer any right to claim any permanent post in the Department. It is further held that Writ of mandamus can be issued by High Court only when there exists a legal right vested in writ petitioner and corresponding legal obligation on State. Only because an illegality has been committed, the same cannot be directed to be perpetuated. There cannot be equality in illegality. Hence, submission that action of State was highly discriminatory inasmuch as some similarly situated persons had been appointed/absorbed as Sepoys, rejected.
8. Further in the case of Union of India and Others Vs. Vartak Labour Union(2)(supra), the Apex Court has held that long period of employment(20 to 30 years in that case) as casual labourer under the employer, not by itself would be sufficient to sustain claim of regularization.
9. In view of the above referred decisions and the facts of the case, it will not be appropriate for this Court to regularize the services of the petitioner, more particularly when the petitioner was appointed through Employment Exchange and not after following the regular appointment process. Therefore, this Court is not inclined to exercise the powers conferred in it under Article 226 of the Constitution of India. However, appropriate remedy for the petitioner is to approach the Labour Court, in view of the Full Bench decision of this Court in the case of Amreli Municipality Vs. Gujarat Pradesh Municipal Employees Union, 2004(3) GLR 1841 and the decision of the Apex Court in the case of Secretary, State of Karnataka and Ors Vs. Umadevi (3) and Ors, reported in 2006(4) SCC 1.
10. In the premises aforesaid, I do not find any merits in this petition. Therefore, the same is accordingly dismissed.
[K.S.JHAVERI,J.] pawan