Gujarat High Court
J N Jagani & 28 vs State Of Gujarat Through The Additional ... on 8 August, 2016
Author: Abhilasha Kumari
Bench: Abhilasha Kumari
C/SCA/6289/2011 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 6289 of 2011
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J N JAGANI & 28....Petitioner(s)
Versus
STATE OF GUJARAT THROUGH THE ADDITIONAL CHIEF &
3....Respondent(s)
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Appearance:
DELETED for the Petitioner(s) No. 9 , 17 , 25
MR SI NANAVATI, SENIOR ADVOCATE WITH MR SAURABH MEHTA, MS
ANUJA S NANAVATI, ADVOCATE for the Petitioner(s) No. 1 - 8 , 10 - 16 , 18 -
24 , 26 - 29
MR NIRAJ ASHAR, ASSISTANT GOVERNMENT PLEADER for the
Respondent(s) No. 1
MR RAJESH CHAUHAN, ADVOCATE FOR MR HS MUNSHAW, ADVOCATE
for the Respondent(s) No. 3
RULE SERVED for the Respondent(s) No. 1 - 4
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CORAM: HONOURABLE SMT. JUSTICE ABHILASHA KUMARI
Date : 08/08/2016
ORAL ORDER
1. Heard Mr.S.I.Nanavati, learned Senior Advocate with Mr.Saurabh Mehta, learned advocate for the petitioners for a considerable period of time.
2. It is submitted by him that the petitioners have been appointed as Multi Purpose Health Workers (Male) pursuant to the advertisement dated Page 1 of 8 HC-NIC Page 1 of 8 Created On Wed Aug 10 03:18:04 IST 2016 C/SCA/6289/2011 ORDER 20.07.1990. There is no dispute regarding the fact that the petitioners are working against sanctioned and vacant posts. The appointment of the petitioners has been made on adhoc basis with the condition that, as and when the regular selection process for the posts of Multi Purpose Health Worker (Male) is advertised, they would have to participate in the said recruitment process.
3. It is submitted that for the first time, the advertisement for the selection process of Multi Purpose Health Worker (Male) was published by the District Panchayat, Junagadh, on 30.03.1996. As per the condition in their appointment orders, the petitioners participated in the selection process. However, they have been declared as failed, not on merits, but only on the ground that they have exceeded the permissible agelimit of twentyfive years.
4. It is submitted that the petitioners are not at fault that the selection process was not initiated prior to 1996 and was only initiated Page 2 of 8 HC-NIC Page 2 of 8 Created On Wed Aug 10 03:18:04 IST 2016 C/SCA/6289/2011 ORDER after six years, when the petitioners had crossed the age limit. This aspect was not in the hands of the petitioners. The fault of not holding the selection process in time cannot be attributed to the petitioners.
5. Learned Senior Counsel for the petitioners has referred to paragraph53 of the judgment of the Supreme Court in the case of Secretary, State of Karnataka v. Uma Devi (3) reported in (2006)4 SCC 1, and has submitted that the petitioners fall squarely within the ratio of the said judgment, as their appointments are not illegal but can be termed to be irregular.
6. It is submitted that the petitioners were appointed on sanctioned and vacant posts and have put in about twentyfive years of service. The interim order in their favour came to be passed on 10.05.2011. Before that date, they had completed approximately twenty years of service. Therefore, as per the ratio laid down by the Supreme Court in the case of Secretary, State of Karnataka v. Uma Devi (3) (supra), Page 3 of 8 HC-NIC Page 3 of 8 Created On Wed Aug 10 03:18:04 IST 2016 C/SCA/6289/2011 ORDER they ought to be considered for the regularization of their services.
7. Learned Senior Counsel has submitted that similarly situated persons from the same District, that is, Junagadh, who were appointed in, or around, 1990, along with the petitioners, have been regularized on 03.08.1991 by the very same District Panchayat, on the basis of the Government Resolution dated 02.05.1991. Similar orders have been passed by the Rajkot District Panchayat, where similarly situated persons have been regularized on 19.04.1993. It is further submitted that in District Sabarkantha, the State Government, itself, has passed an order dated 13.10.2009, regularizing the services of similarly situated Multi Purpose Health Workers (Male) with retrospective effect from the initial dates of their appointments. However, similar treatment is not being given to the petitioners herein, though they are similarly situated in all respects. This amounts to discrimination against the petitioners. Page 4 of 8 HC-NIC Page 4 of 8 Created On Wed Aug 10 03:18:04 IST 2016 C/SCA/6289/2011 ORDER
8. Learned Senior Counsel has drawn the attention of the Court to the judgment of the Supreme Court in the case of U.P. State Electricity Board v. Pooran Chandra Pandey And Others - (2007)11 SCC 92, especially paragraphs 18 and 19 thereof, wherein it is stated after noticing the judgment in the case of U.P. State Electricity Board v. Pooran Chandra Pandey And Others (supra), that the principle of reasonableness in executive action would be applicable and it will not be reasonable if the claim for regularization is denied after a long period of service.
9. Learned Senior Counsel has submitted that the action of the respondents in not regularizing the services of the petitioners, as has been done in similarly situated cases, is sought to be justified by the respondent on the ground of a judgment of the Division Bench of this Court dated 20.07.2010 passed in Letters Patent Appeal No.85 of 2010 in Special Civil Application No.8611 of 2009 and similar matters. However, there are significant differences in the case of Page 5 of 8 HC-NIC Page 5 of 8 Created On Wed Aug 10 03:18:04 IST 2016 C/SCA/6289/2011 ORDER the petitioners herein and the case of the appellants, in that judgment, who were Multi Purpose Health Workers (Female). In the case before the Division Bench, the appellants were appointed on a fixed term of eleven months whereas in the present case, no such fixed period of appointment was given to the petitioners, who have been continued from the initial date of their appointments. Moreover, in the case of the appellants before the Division Bench, the challenge was to a Government Resolution dated 01.10.2007, to the extent that it provided for appointment on contractual basis, for a period of eleven months. In the present case, this Government Resolution is not in question, as it was not even passed when the petitioners were appointed and has never been applied in their case. The appellants before the Division Bench were given breaks after the completion of the period of eleven months before being reengaged on contractual basis, whereas the petitioners herein have never been given any breaks in service. Hence, the case of the Page 6 of 8 HC-NIC Page 6 of 8 Created On Wed Aug 10 03:18:04 IST 2016 C/SCA/6289/2011 ORDER Multi Purpose Health Workers (Female) is different from that of the present petitioners and the judgment of the Division Bench would not be applicable to them.
10. On a specific query being addressed by the Court to Mr.Niraj Ashar, learned Assistant Government Pleader to the effect that, why did the State Government took a policy decision to regularize the services of similarly situated persons only in Sabarkantha District and not in the case of the petitioners, it is submitted that the Sabarkantha District Panchayat had moved proposals to the State Government which is evident from a perusal of the documents referred to in the order dated 13.01.2009 passed by the State Government in this regard.
11. To this, learned Senior Counsel has drawn the attention of the Court to paragraph3.13 of the memorandum of the petition wherein it is stated that the District Development Officer, Junagadh, had forwarded proposals to the State Government vide letter dated 24.09.1997, 11.12.2000, Page 7 of 8 HC-NIC Page 7 of 8 Created On Wed Aug 10 03:18:04 IST 2016 C/SCA/6289/2011 ORDER 25.09.2001, 18.12.2001 and 05.06.2006. This aspect has not been denied in the affidavitin reply.
12. Upon a query made by the Court whether the State Government has extended the policy adopted in District Sabarkantha to other Districts, the learned Assistant Government Pleader has sought time in order to take instructions in this regard. He may do so on, or before, the next date of hearing.
13. Learned Senior Counsel has completed his submissions. The State Government and the District Panchayat are to respond. List on 10.08.2016.
(SMT. ABHILASHA KUMARI, J.) sunil Page 8 of 8 HC-NIC Page 8 of 8 Created On Wed Aug 10 03:18:04 IST 2016