Gujarat High Court
Gujarat Pollution Control Board vs Navinbhai Dhirajbhai Kambli & 14 on 11 March, 2015
Author: Ks Jhaveri
Bench: Ks Jhaveri, A.G.Uraizee
C/LPA/1203/2014 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS PATENT APPEAL NO. 1203 of 2014
In SPECIAL CIVIL APPLICATION NO. 2155 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE KS JHAVERI
and
HONOURABLE MR.JUSTICE A.G.URAIZEE
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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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GUJARAT POLLUTION CONTROL BOARD....Appellant(s)
Versus
NAVINBHAI DHIRAJBHAI KAMBLI & 14....Respondent(s)
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Appearance:
MR DG CHAUHAN, ADVOCATE for the Appellant(s) No. 1
MR HARSHEEL SHUKLA, ASST. GOVERNMENT PLEADER for the
Respondent(s) No. 12 - 13
MR JAYANT P BHATT, ADVOCATE for the Respondent(s) No. 1 - 11
MR JEET J BHATT, ADVOCATE for the Respondent(s) No. 1 - 11
RULE SERVED for the Respondent(s) No. 14 - 15
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CORAM: HONOURABLE MR.JUSTICE KS JHAVERI
and
HONOURABLE MR.JUSTICE A.G.URAIZEE
Date : 11/03/2015
Page 1 of 5
C/LPA/1203/2014 JUDGMENT
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE KS JHAVERI) By way of filing this appeal under Clause 15 of the Letters Patent, the appellant - original respondent No.3 has challenged order dated 2nd September 2014 passed by the learned Single Judge in Special Civil Application No.2155 of 2013 vide which the learned Single Judge has allowed the writ petition and directed the respondents - appellants herein to reinstate the writ petitioners with continuity of service within four weeks from the date of receipt of the writ.
2 Mr D.G. Chauhan, learned advocate for the appellant- Board has submitted that the learned Single Judge has committed an error in directing the Board to reinstate the writ petitioners and the same is contrary to conditions Nos.4 and 8 of the appointment order and they have accepted all the conditions of the appointment order by way of declaration made on 12th August 1997.
3 Mr Chauhan has also contended that the petitioners were appointed as Drivers only as a stop gap arrangement and they were engaged due to exigency of work on purely temporary and ad hoc basis on fixed term basis. The Board, therefore, addressed a letter dated 8th May 2009 to the State Government requesting it to sanction 23 posts of Drivers. However, the State Government on 18 th June 2011 rejected the same and directed the Board to appoint the persons by way of outsourcing. He submitted that the said facts have not been considered by the learned Single Judge.
Page 2 of 5C/LPA/1203/2014 JUDGMENT 4 Mr Chauhan has also contended that learned Single
Judge has committed an error in directing the appellants to reinstate the respondents on the basis of Resolution dated 26 th February 2009, which is not applicable to the appellant-Board. He further submitted that the prayers which are prayed in the petition are multifarious and the learned Single Judge has committed an error in allowing the petition.
5 Mr Jayant Bhatt, learned advocate for the original petitioners has contended that the petitioners are working since 1997-98. He submitted that the so called regulations came into force with effect from 2007 and in view of the observations made by the Apex Court in paragraph 53 of its decision in Secretary, State of Karnataka and others Vs. Umadevi and others, (2006) 4 SCC 1 and also in paragraph 23 in State of Karnataka and Ors. v. M. L. Kesari and Ors., AIR 2010 SC 2587, discontinuation of the services of the petitioners by letter dated 2nd February 2013 is required to be quashed and set aside.
6 Mr Harsheel Shukla, learned Assistant Government Pleader that in view of the Government Policy of 2007, the requisition dated 8th May 2009 was not accepted and they were directed to appoint the Drivers through outsourcing. He submitted that practice of appointment of daily wagers has been discontinued.
7 We have heard learned counsel for the parties and perused the record.
Page 3 of 5C/LPA/1203/2014 JUDGMENT 8 The original petitioners were appointed through
employment exchange and they were appointed on certain conditions and they have worked for more than 10 years and considering the decision the Supreme Court, the employer thought it fit to regularise them and accordingly requested the State Government vide leter dated 8 th May 2009. However, under some misconception and without considering the law declared by the Supreme Court and applying a policy which is not applicable to the facts of the present case, the request of the Board dated 8th May 2009 was rejected by order dated 18th June 2011. In the case of Uma Devi (supra) the Honourable Apex Court has observed as under:
"53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa (supra), R. N. Nanjundappa (supra), and B. N. Nagrajan (supra), and referred to in paragraph 15 above, of duly 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 courts or of tribunals. The question of regularization 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 regularize as a one time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts Page 4 of 5 C/LPA/1203/2014 JUDGMENT but not under cover of orders of 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 regularization, 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 regularizing or making permanent, those not duly appointed as per the constitutional scheme."
9 In view of the above observations, if the respondents - original petitioners are found eligible, the State Government ought to have accepted the proposal of the Pollution Board. In our view, the order dated 18th June 2011 is rightly set aside by the learned Single Judge. We are in complete agreement with the view taken by the learned Single Judge. We direct the State Government to accept the proposal of the Gujarat Pollution Control Board dated 8th May 2009.
10 For the reasons stated above, the appeal being devoid of merits is dismissed. Respondents - original petitioners will be reinstated with effect from 1st April 2015.
Direct Service is permitted.
(K.S.JHAVERI, J.) (A.G.URAIZEE, J.) mohd Page 5 of 5