Gujarat High Court
Shaileshbhai Bhagubhai Shrimali & 2 vs State Of Gujarat & 4 on 23 July, 2014
Author: Harsha Devani
Bench: Harsha Devani
C/SCA/6797/2014 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 6797 of 2014
================================================================
SHAILESHBHAI BHAGUBHAI SHRIMALI & 21....Petitioner(s)
Versus
STATE OF GUJARAT & 4....Respondent(s)
================================================================
Appearance:
MR TEJAS P SATTA, ADVOCATE for the Petitioner(s) No. 1 - 22
MR DM DEVNANI, ASSTT. GOVT PLEADER for the Respondents No. 1 - 5
================================================================
CORAM: HONOURABLE MS.JUSTICE HARSHA DEVANI
Date : 23/07/2014
ORAL ORDER
1. The learned advocate for the petitioners has tendered draft amendment. The amendment is allowed in terms of the draft. The same shall be carried out forthwith.
2. By this petition under Article 226 of the Constitution of India, the petitioners seek a direction to the respondent authorities to decide the recommendation and representations made by the petitioners within a time bound schedule for absorbing them on a permanent basis. The petitioners also seek directions to the respondents not to include the services of the petitioners under the contract system and allow them to continue to work with the respondent authorities as well as to absorb them on the post of Room Attendant on a permanent basis and to regularize them.
Page 1 of 8 C/SCA/6797/2014 ORDER3. The facts as averred in the petition are that the petitioners are serving as daily wagers/Room Attendants on a temporary basis for the period of the Vidhan Sabha sessions since many years and that, in the past, some similarly situated persons have been made permanent. According to the petitioners, in the year 1998, the respondent authorities had revised the pay scales of Room Attendants officially by issuing necessary orders and by absorbing some Room Attendants from amongst them and made them permanent in terms of the Government Circular dated 17.10.1988. The grievance of the petitioners is that despite the fact that some of the Room Attendants have been appointed on a permanent basis, the petitioners have not been given similar treatment though there are sufficient vacancies on the post of Room Attendants. It is the case of the petitioners that they are working as Room Attendants from 1983 continuously till today and up to the year 1996, their signatures had been taken in the muster roll when they joined their duties. Moreover, since the petitioners were discharging their duties honestly and sincerely, several members of the legislative assembly had made positive recommendations in favour of the petitioners and had requested the concerned authorities to appoint them on permanent basis. Copies of such recommendations made by the following members of the Legislative Assembly: Mohanbhai Kundarilya, Dhirubhai Bhil, Kantibhai R. Gamit, M.L.A.Vajesingbhai Parsingbbhai Panda, Raghavji Patel, Dharshibhai Lakhabhai Khanpura, Kishorebhai Kanani, Ishwarbhai D. Patel, Mohansinh K. Chauhan, C.K. Raolji and Poonam Makwana have been annexed along with the petition. It is the case of the petitioners that the respondent authorities are not following the policies and circulars issued by the Page 2 of 8 C/SCA/6797/2014 ORDER Government of Gujarat from time to time and that there is no bar against appointing daily wagers on permanent basis if vacancies are available for a particular post. The petitioners have made representations vide letters dated 03.03.2003, 29.06.2004, 28.09.2007, 26.05.2008 and in the month of March, 2013, however, none of the respondent authorities have replied to the same, nor have they proceeded further pursuant to the demand made by the petitioners and on the contrary they have introduced the contract system and have included the petitioners under such contract system. Copies of the representations dated 28.09.2007, 26.05.2008 and March, 2013 have been annexed along with the petition. Further the petitioners have requested for details about the number of vacancies available however, such details are not being furnished though several vacancies are available in respect of the permanent post of Room Attendant. Since the respondents have not responded to the representations made by the petitioners and have introduced the contract system for availing of the services for the post of Room Attendant, the petitioners have approached this court by way of the present petition seeking the reliefs noted hereinabove.
4. Mr. Tejas Satta, learned advocate for the petitioners vehemently assailed the inaction on the part of the respondent authorities in introducing the contract system and employing Room Attendants on contract basis despite the fact that there are vacancies available in respect of such post. It was submitted that the respondents are not following their own policy, but are acting in a manner prejudicial to the interests of the petitioners by introducing the contract system. It was contended that the inaction on the part of the respondent Page 3 of 8 C/SCA/6797/2014 ORDER authorities in the matter of appointing the petitioners as Room Attendants on a permanent basis despite the fact that the petitioners have been working since 1985, is arbitrary, illegal, unlawful and discriminatory in nature. According to the learned counsel, the attempt on the part of the respondents to include the petitioners in the newly introduced contract system instead of giving them the benefit of permanency in service, is unlawful, arbitrary and amounts to injustice to the petitioners. It was argued that though there is a man power crunch for the post of Room Attendants, the respondent authorities are not making appointments on a permanent basis and are appointing workers on a contractual basis. It was submitted that similarly situated persons like the petitioners have been absorbed previously and that as many as 42 workers have been made permanent in the past and even at present, 28 vacancies are available for the post of Room Attendant and that the petitioners being similarly situated to those 42 workers who have been absorbed, are entitled to equal treatment and should be regularized. It was further submitted that instead of appointing persons on contractual basis, the petitioners should be given priority and should be regularized as they have been working for many years and work of permanent nature is available with the respondent authorities.
5. Opposing the petition, Mr. D. M. Devnani, learned Assistant Government Pleader submitted that having regard to the nature of employment of the petitioners, they are not governed by the Government Resolution dated 17.10.1988, inasmuch as, under the said circular, a daily wager is required to have completed 240 days in a year for a period of ten years to be entitled to all the benefits thereunder, whereas it is not Page 4 of 8 C/SCA/6797/2014 ORDER even the case of the petitioners that they have completed 240 days as daily wagers even in a single year. It was, accordingly, submitted that the petitioners are not entitled to the reliefs prayed for in the petition.
6. This court has considered the submissions advanced by the learned counsel for the respective parties and has perused the case papers.
7. From the facts and contentions noted hereinabove, it is apparent that the petitioners were working as Room Attendants on a temporary basis for the period when the Vidhan Sabha was in session, which is for a few months in a year. It is not even the case of the petitioners that they were employed throughout the year. The entire petition is based upon the fact that 42 similarly situated persons have been absorbed and given the benefit of permanency by the respondents whereas the petitioners' case is not being considered. In this regard it may be pertinent to note that except for making vague averments that forty two persons who were similarly situated to the petitioners have been regularized as Room Attendants, in the entire petition as well as the annexures annexed thereto, no particulars have been stated as regards the identity of the said forty two persons who have are stated to have been regularized and when and on which posts they have been appointed. Moreover, the learned advocate for the petitioners is not in a position to point out any relevant statutory provision or Government Resolution which entitles the petitioners to be absorbed on a permanent basis. The petitioners have not placed any material to establish that any vacancy for the post of Room Attendant is actually Page 5 of 8 C/SCA/6797/2014 ORDER available, neither have they been able to point out any recruitment rules regarding the manner in which recruitment is required to be made for the post of Room Attendant. From the facts as emerging from the record, it appears that the duties discharged by the petitioners are totally in the nature of casual workers who have been engaged by the respondent authorities only for a few months in a year. Evidently therefore, for the remaining period of the year, the petitioners may be gainfully employed elsewhere. The petitioners, therefore, are not even regular daily wagers working in the Department round the year, but are only seasonal workers.
8. In Union of India and another v. Kartick Chandra Mondal and another, (2010) 2 SCC 422, the Supreme Court has held that an engagement or appointment on daily wages or casual basis, comes to an end at the end when it is discontinued and "merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules". It was further observed that while directing that appointments, temporary or casual, be regularized or made permanent, the courts are swayed by the fact that the person concerned has worked for some time and in some cases for a considerable length of time. Even assuming that the similarly placed persons were ordered to be absorbed, the same if done erroneously cannot become the foundation for perpetuating further illegality. If an appointment is made illegally or irregularly, the same cannot be the basis of further Page 6 of 8 C/SCA/6797/2014 ORDER appointment. An erroneous decision cannot be permitted to perpetuate further error to the detriment of the general welfare of the public or a considerable section.
9. Examining the facts of the present case in the light of the principles enunciated in the above decision, from the averments made in the memorandum of petition as well as the submissions advanced by the learned counsel for the petitioners, it is clear that no material has been brought on record to show that the forty two persons who according to the petitioners have been regularized, have been regularized in accordance with any known procedure provided under law. The learned counsel for the petitioners is not in a position to point out any relevant provision, statutory or otherwise, under which the petitioners claim entitlement for being made permanent or to be regularized, nor has any such policy been placed on record. The sole basis for filing the present petition is that forty two other similarly situated persons have been granted the benefit of permanency and the petitioners are, therefore, on the grounds of parity entitled to such benefits. In the light of the law laid down by the Supreme Court, assuming that similarly situated persons were erroneously ordered to be absorbed, the petitioners would not be entitled to be appointed on a permanent basis merely because some other persons were employed dehors the rules. Another aspect of the matter is that the petitioners have placed on record recommendations of several members of the Legislative Assembly, who no doubt must be in a position to wield considerable influence in the Government. If despite such recommendations, the petitioners have not been appointed on a permanent basis, it must be because, it cannot be legally done.
Page 7 of 8 C/SCA/6797/2014 ORDER10. It may also be noted that the record of the case reveals that the petitioners have addressed several representations to different persons/authorities like the concerned Member of the Legislative Assembly, the Hon'ble Chief Minister and the Manager, Vidhan Sabha. A perusal of the cause title of the petition shows that none of the persons to whom the representations have been addressed are parties before this court. Moreover, had the petitioners been able to make out any case for granting relief, this court, based upon the merits of the case, granted such relief. However, when the petitioners have not made out any case for regularization or for being appointed on permanent basis, no useful purpose would be served by directing the respondent authorities to decide the representations of the petitioners as they would not be in a position to legally grant any benefit to the petitioners when the claim is not based upon any legal entitlement.
11. For the foregoing reasons, the petition fails and is, accordingly, dismissed. Notice is discharged with no order as to costs.
(HARSHA DEVANI, J.) parmar* Page 8 of 8