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3. On the basis of the above facts, it was contended on behalf of the petitioner that the breaks brought about in the continuity of his service by issuance of orders of appointment for 29 days were artificial, that such practice was unfair and arbitrary, that the petitioner had put in continuous service of three years and also completed 240 days of work in the year preceding his termination and, therefore, the termination of his service was void ab initio for being in violation of the provisions of Section 25F of the Industrial Disputes Act and that the petitioner was also entitled to regularization in service. It was also argued in the alternative that the termination of service of the petitioner being admittedly without notice or notice pay, the same also violated Rule 33 (1) (b) of the Bombay Civil Service Rules, 1959 ('the BCSR' for short). However, as seen earlier, the petitioner's case has to be considered on the basis that his service had been terminated on completion of the scarcity relief work and the factum of his alleged subsequent service as also the legality and validity of its termination having fallen in the area of disputed questions of fact cannot be decided. Therefore, the issue that falls for consideration is whether, disregarding the artificial breaks brought about by the successive orders of appointment for 29 days, the petitioner had acquired the status of a temporary employee entitled to notice and protection of Rule 33 (1) (b) of the BCSR. The learned counsel for the petitioner has, despite a specific query in that regard, failed to point out as to how the BCSR were applicable in the facts of this case. And, the fact which has to be borne in mind is that the petitioner was never appointed on or against a vacant post after undergoing any process of selection or regular recruitment.

4.2 Relying upon a judgment of this Court in SUB-DIVISIONAL SOIL CONSERVATION OFFICER, IDAR v. M.M.SAIYED [1990 (1) GLR 495], it was submitted that Rule 33 (1) (b) of the BCSR was attracted in case of termination of a temporary government servant and in absence of the requisite notice, the order would get voided. It is, however, clearly observed in the judgment that if the service had come to be terminated by efflux of time under the last appointment order of 29 days, the situation would have been different. And, on facts, the government servant was found to have acquired the status of a temporary government servant.

6. As against the facts and submissions as above, the learned counsel for respondent No.3 only relied upon order of this Court in Special Civil Application No.3548 of 1997 by which the petition was dismissed in similar set of facts and the petitioner was relegated to alternative remedies including making of a representation.

7. In STATE OF GUJARAT v. P.J.KAMPAVAT [34 (1) GLR 848], a decision of the Supreme Court, it was held that Rule 33 (1) (b) of the BCSR was not applicable in such cases in view of the opening words of Rule 2 of the BCSR, which contained the non obstante clause ("except where it is otherwise expressed or implied"), and because the order appointing the respondents expressly stated not only that the service shall be terminated at any time without giving any notice and without assigning any reasons, but also that the appointment was for a limited period co-terminous with the concerned Minister's tenure. It was held that the terms of appointment and undertaking executed in those terms were clearly inconsistent with Rule 33 (1) (b) of the said Rules. The Supreme Court held that the appointment of the respondents was a pure and simple contractual appointment and that such appointment did not attract and was outside the purview of the BCSR, and no order of termination as such was necessary for putting an end to the service, much less a prior notice.

In SAVITABEN M. PATEL v. STATE OF GUJARAT [38 (2) GLR 1567], the appointment of the petitioners for 29 days was held to be a fixed term appointment and it was held that as per the terms and conditions of appointment, their services were liable to be terminated without any notice and Rule 33 (1) (b) of the BCSR was not attracted.

In NILESH BHATT v. ADMINISTRATIVE OFFICER, NAGAR PRADHAMIK SHIKSHAN SAMITI [1996 (1) GLH 108], where the appointment was itself ad-hoc, temporary and for a fixed term and subject to further stipulation that it was liable to be brought to an end earlier without notice, it was held that the principles of natural justice did not have to be followed while terminating the services of such employees. It was held that a person who was appointed on temporary basis did not acquire any substantive right to the post and that mere prolonged continuous ad-hoc service did not ripen into a regular service to claim permanent or substantive status.