Arjanbhai Titabhai Baraiya vs State Of Gujarat
2021 Latest Caselaw 5013 Guj

          C/SCA/8601/2012                                         JUDGMENT



         IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

          R/SPECIAL CIVIL APPLICATION NO. 8601 of 2012


FOR APPROVAL AND SIGNATURE:


HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
==========================================================
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 ?

==========================================================
                            ARJANBHAI TITABHAI BARAIYA
                                      Versus
                            STATE OF GUJARAT & 3 other(s)
==========================================================
Appearance:
MS NIYATI K SHAH(2935) for the Petitioner(s) No. 1
MR ROHAN SHAH AGP (1) for the Respondent(s) No. 1,2,3,4
==========================================================
CORAM: HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
                 Date : 05/04/2021

                                 ORAL JUDGMENT

1. By this petition, inter alia, under Article 226 of the Constitution of India, the petitioner has prayed for direction to the respondents to regularize the service of the petitioner on the post of Additional Assistant Engineer (Civil) Class-III from the date on which, the petitioner has completed 5 years of service, that is, 1.6.2006.

2. Briefly stated are the facts:

2.1. On 3.3.2001, respondent no.1-Roads & Buildings Department

C/SCA/8601/2012 JUDGMENT

(hereinafter referred to as "the Respondent no.1") of the State Government had given an advertisement in the local daily newspaper, namely, Gujarat Samachar inviting applications for the post of Assistant Engineer. Pursuant to which, the petitioner had applied on 30.5.2001. Accordingly, the petitioner was called for interview on 11.03.2001 by the respondent department and after conducting the selection procedure, came to be appointed on 1.6.2001 by the respondent no.1. The said appointment was initially for a period of 9 months on a fixed pay of Rs.5000/- per month. It is the case of the petitioner that along with the petitioner, several other persons were also appointed in various Talukas in the District Kutch.

2.2. It is the case of the petitioner that the respondent no.1, vide letter dated 12.4.2006, was pleased to transfer all the employees, who have been appointed on the post of Consultant to the offices of the District Collectors, who in turn, had passed further orders. The petitioner was transferred to the office of Mamlatdar and since then, the petitioner has been working with the respondents without any break.

2.3. The petitioner after having put in several years of service, made representations to the concerned respondent, inter alia, requesting it to regularize the service of the petitioner; however, the request of the petitioner did not yield any result. The office of the Mamlatdar so also, the office of the District Collector had recommended to the concerned authorities to regularize the service of the petitioner but the respondent no.2, vide letters dated 23.3.2012 and 17.5.2012, did not accede to the request on the ground that the appointment was not made by the concerned respondent and it is impermissible for it to regularize the service of the petitioner.

2.4. It is stated that the service of the similarly situated employees, who were appointed along with the petitioner, have been regularized. One

C/SCA/8601/2012 JUDGMENT

such order is dated 14.2.2008 regularizing the service of six employees of different areas development authorities, namely, Bhachau, Bhuj, Anjar and Rapar, in tune with the Government Resolution dated 16.2.2006. Further, the Section Officer of the Urban Development & Urban Housing Department had also issued a letter dated 3.5.2008 to the various development authorities, directing them to regularize the service of the concerned employees, who have been appointed after following due procedure of selection. Apropos which, service of the concerned employees was regularized on the sanctioned post. Moreover, the Principal Secretary had also issued a letter dated 22/27.5.2008 to the various development authorities to act in conformity with the directions contained in the letter dated 3.5.2008 of the concerned department. Despite such instructions issued by the concerned department, the service of the petitioner has not been regularized. Further, to the shock of the petitioner, the respondent no.1 vide letter dated 27.06.2011 addressed to the office of the Mamlatdar, informed that considering the nature of the initial appointment of the petitioner, his service cannot be regularized by respondent no.1.

2.5. In support of such grievance, reliance is placed on various orders passed by this Court to contend that though the petitioner is similarly situated, the respondents have not bothered to regularize the service of the petitioner despite the fact that the petitioner has been appointed after following due procedure. It is therefore, urged that the petition deserves to be accepted and necessary directions be issued to the respondents to regularize the service of the petitioner in conformity with the Government Resolution dated 16.2.2006.

3. The respective respondents have filed their replies. So far as the reply filed by the respondent no.1 is concerned, it is, inter alia, stated that the petitioner was appointed on the post of Bhukamp Awas Bandhkam Nirikshak vide appointment order dated 1.6.2001 and the

C/SCA/8601/2012 JUDGMENT

said appointment order clearly carried the stipulation that the tenure would end on 31.12.2001. There is a further stipulation in the appointment order that the appointee shall not claim any benefits flowing from the said appointment order so also, any permanency. The reply further states that the appointment of the petitioner was extended from time to time, that is, up to the year 2006 and thereafter, there was no further extension accorded to the petitioner. While distinguishing the orders passed by the Urban Development & Urban Housing Department, regularizing the service of the six employees, it is stated that no such order regularizing the service of any of the employees has been passed by the Roads & Buildings Department and therefore, considering the nature of initial appointment of the petitioner his service cannot be regularized. Therefore, the petitioner cannot, as a matter of right, claim regularization.

3.1 It is also pointed out that vide Government Resolution dated 12.4.2006, the respondent no.1 had resolved to transfer all the employees working on the post of Bhukamp Awas Bandhkam Nirikshak to the office of the District Collector and thereafter, the employees are under the supervision and control of the concerned Collectorate offices of District Bhuj. It is clarified that the petitioner was serving as Bhukamp Awas Bandhkam Nirikshak and not as an Additional Assistant Engineer (Class-III) and therefore also, the request to regularize the service could not have been accepted.

4. So far as the affidavits filed by the respondent nos.2 and 3 are concerned, except stating about sending proposals to the concerned offices, recommending regularization of service, nothing more has been pointed out. So far as the respondent No.3 is concerned, it has disowned the responsibility on the ground that it is only an implementing authority constituted under the Disaster Management Act.

C/SCA/8601/2012 JUDGMENT

5. Ms.Niyati Shah, learned advocate for the petitioner has submitted that the advertisement was issued in the local daily newspaper Gujarat Samachar, inviting applications from the eligible candidates for being appointed to the post of Assistant Engineer (Class-III) on contractual basis. Pursuant to the said advertisement, the petitioner had applied and was since selected, issued identification number being I.D.No.420 on 30.5.2001 followed by Office Order no.2741 dated 1.6.2001. It is submitted that though the appointment was initially up to 31.12.2001, the same has been thereafter, extended from time to time and by now, the petitioner has rendered more than 20 years of service.

5.1. It is submitted that the petitioner was appointed by the duly constituted Selection Committee of the State Government and that too, after issuing advertisement in the newspaper. The appointment of the petitioner was made after getting necessary approval of the State Government which is clear from the communication dated 11.3.2001 of the Chairman, Selection Committee & Superintending Engineer. The appointment of the petitioner was after going through the selection procedure and therefore, it cannot be said that his appointment was a back door entry. However, the respondents did not regularize the service of the petitioner; such action on the part of the respondents is illegal, arbitrary, discriminatory and violative of Article 14 of the Constitution of India.

5.2 It is next submitted that the petitioner was selected against the sanctioned post and having completed 5 years of service, the respondent ought to have regularized the service of the petitioner, considering the Government Resolution dated 16.2.2006 issued by the Finance Department, as it provides for regularization of the service upon completion of satisfactory service of 5 years in Class-III or Class- IV. It is submitted that, in past, the respondents have regularized the

C/SCA/8601/2012 JUDGMENT

service of similar such employees in tune with the Government Resolution dated 16.2.2006. Also, the petitioner possesses an unblemished career as, neither is any departmental inquiry pending nor the petitioner had received any adverse remarks in his Annual Confidential Report. Therefore, there is no reason available to the respondents to deny regularization to the petitioner.

5.3. It is next submitted that as can be culled from the communications issued by the office of the Mamlatdar so also, the office of the District Collector, it had recommended regularization of the service of the petitioner, citing the reasons that the petitioner has been very sincere in his work and his case deserves consideration. However, despite there being positive recommendation by the concerned offices, the respondents have shifted the responsibility of taking any favorable decision. So far as the respondent no.1 is concerned, it is not accepting the request of regularization only on the ground that it had only made the initial appointment. It is further submitted that it is the Respondent no.1 who had transferred the whole setup to the office of the Collector and because of this there appears to be a fight between the departments of State Government as well as the office of the Collector. Owing to such fight, the petitioner is made to suffer. It is therefore, urged that considering the nature of appointment of the petitioner by the respondent no.1 and the tenure for which the petitioner has served, his service deserves to be regularized.

5.4. It is submitted that the State Government vide Government Resolution dated 14.2.2008 has regularized the service of other similarly situated employees, who were appointed along with the petitioner and therefore, when the State Government has regularized their service there is no reason available to the respondents not to regularize the service of the petitioner on the similar lines. Reliance is placed on the communication dated 3.5.2008 to contend that even the

C/SCA/8601/2012 JUDGMENT

Section Officer of the Urban Development & Urban Housing Department has issued necessary instructions that considering the provisions of the Government Resolution dated 16.2.2006, the employees concerned, who have been appointed after following recruitment process on contractual basis, should be regularized. Therefore, the petitioner also deserves the same treatment.

5.5. Ms.Niyati Shah, learned advocate for the petitioner has placed reliance on the judgment passed by this Court in the case of Rohanbhai Premjibhai Hadia vs. State of Gujarat rendered in Special Civil Application No.9523 of 2009 to contend that this Court, in similar set of facts, has directed regularization. Further, the said order was carried in appeal being Letters Patent Appeal No.1453 of 2010, which came to be dismissed and the Special leave Petition against the order of Division Bench was also dismissed vide order dated 2.4.2012, and therefore, the oral order passed by this Hon'ble Court governs the field.

5.6. Reliance is placed on the oral judgment dated 26.9.2014 passed by this Court in Civil Application (For Direction) No.10457 of 2014 in Special Civil Application No.11020 of 2010. It is submitted that the petitioner therein was appointed pursuant to the advertisement which was issued in the year 2001 as Surveyor in the year 2004. This Court, while referring to the judgment of the Apex Court in the case of Secretary, State of Karnataka vs. Umadevi reported in (2006) 4 SCC 1, has directed regularization of the petitioner therein; however, with the clarification that the service will be regularized not from the date of inception but, from the date, the service of the juniors of the petitioner therein were regularized.

5.7. Further reliance is placed on the oral order dated 23.2.2016 passed by this Court in Special Civil Application No.16634 of 2012. It is submitted that the petitioner therein was also appointed pursuant to the

C/SCA/8601/2012 JUDGMENT

same advertisement on the post of Additional Engineer and was subsequently appointed to the post of Surveyor. This Court, after considering the order dated 21.12.2009 passed in Special Civil Application No.9523 of 2009 as well as the affidavits filed by the respective respondents, directed the respondents therein to consider the case of the petitioner therein for regularization. It is vehemently submitted that the case of the petitioner is akin to the case of the petitioner of Special Civil Application No.16634 of 2012 and therefore the petitioner should be accorded parity in the matter of regularization.

5.8. It is therefore, urged that the appointment of the petitioner being after following the due procedure, the respondents are required to be issued necessary directions for regularizing the service of the petitioner.

6. Per contra Mr. Rohan Shah, learned Assistant Government Pleader for the respondent - State, submitted that after the devastated earthquake, which shook the State of Gujarat, it undertook reconstruction and rehabilitation programmes and for such purpose, the respondent no.1, that is, Roads & Buildings Department, had introduced the project called "Gujarat Emergency Earthquake Reconstruction Programme". For the said purpose, several employees were appointed including the present petitioner on the post of Bhukamp Awas Bandhkam Nirikshak vide appointment order dated 1.6.2001. The petitioner was appointed for a limited tenure, that is, up to 31.12.2001, with a clear stipulation that it would stand automatically discontinued; however, the same was extended from time to time. But the fact remains that the petitioner was appointed on contractual basis and upon completion of the said period, no right has accrued in favour of the petitioner. It is submitted that the petitioner was never recruited after following due procedure or for that matter as per statutory recruitment Rules and therefore, once the appointment of the petitioner was not as per the recruitment Rules, the petitioner cannot, as a matter of right,

C/SCA/8601/2012 JUDGMENT

seek regularization.

6.1 It is submitted that since the work could not get over and the tenure of the project was extended vide Resolution dated 26.12.2001, initial for one month followed by further extension so also the contractual appointments but till 31.08.2005. It is further submitted thereafter, the Roads & Buildings Department issued Government Resolution dated 12.4.2006 resolving that all the employees working on the post of Bhukamp Awas Bandhkam Nirikshak be transferred to the concerned office of the Collector. It is therefore, submitted that in view of the Government Resolution dated 12.4.2006, the respondent no.1 was the appointing authority only for the limited period and thereafter, the employees were under the control and supervision of the office of the Collector, District Bhuj.

6.2 It is submitted that so far as the regularization of the service of the similarly situated employees is concerned, the same was issued by the Urban Development & Urban Housing Department and not by the Roads & Buildings Department, which had never issued any order regularizing the service of any employees. While emphasizing it is submitted that the post on which the petitioner was serving was temporary post, created for the specific project and for the limited purpose and therefore, the appointment of the petitioner was not on the sanctioned post. It is further submitted that since the petitioner was appointed on contractual basis, he has no right, much less, any legal or fundamental right, to seek direction from this Court for regularization of his service.

6.3 It is therefore, urged that the petition being devoid of any merits, deserves to be dismissed.

7. Heard Ms. Niyati Shah, learned advocate for the petitioner and

C/SCA/8601/2012 JUDGMENT

Mr. Rohan Shah, learned Assistant Government Pleader for the respondents.

8. Perceptibly, the advertisement dated 3.3.2001 was issued in the local daily newspaper Gujarat Samachar by the Chairman, Selection Committee & Superintending Engineer inviting applications from all the eligible candidates for being appointed to the post of Assistant Engineer (Class-III) on contractual basis for 11 months. The said advertisement pertains to the earthquake affected areas, namely, Kutch, Jamnagar, Surendranagar, Rajkot etc. Apropos the said advertisement, the State Government in its Roads & Buildings Department appears to have issued Government Resolution dated 8.3.2001 selecting the candidates for being appointed to the post of Surveyor (Assistant Engineer) and on 9.3.2001, the list was sent to all the Executive Engineers of District Kheda. Thereafter, the Chairman, Selection Committee & Superintending Engineer addressed a communication dated 11.3.2001 to the Executive Engineer, Kheda informing that the selected candidates shall be asked to remain present on 13.3.2001 along with all the necessary certificates and they be assigned identification number.

9. Pursuant to the communication dated 11.03.2001, the petitioner was assigned identification number being I.D.No.420 dated 30.5.2001 followed by the office order no.2741 dated 1.6.2001 issued by the Chairman, Selection Committee & Superintending Engineer, Roads & Buildings Department, Gandhinagar, appointing the petitioner on contractual basis for 11 months. Copy of the order was endorsed to the Additional Chief Secretary, Urban Development & Urban Housing Department of the State Government. As per one of the conditions, the selected candidates were to undergo training and petitioner did it, for which, the Executive Engineer, Engineering Staff College, Gandhinagar had issued a certificate dated 30.5.2001, certifying that the petitioner

C/SCA/8601/2012 JUDGMENT

has undergone the training. Therefore, the chain of events clearly suggest that the appointment of the petitioner was made after the requisite approval by the State Government in its Roads & Buildings Department, vide Government Resolution dated 8.3.2001. The record further reveals that the said appointment was extended from time to time and the petitioner is still continued and presently working with the office of Rapar Area Development Authority, Rapar.

10. Further, as is discernible from the record, the State Government in its Roads & Buildings Department had issued a Government Resolution dated 12.4.2006, discontinuing the establishment, which was created for reconstruction and rehabilitation of the earthquake affected areas. As per the condition no.3, all the offices of the Sub-Division were closed down and the employees working on the contractual basis as surveyor/consultant were assigned to the District Panchayat/offices of the Collectors. Condition no.4 provided that the surveyor/consultant, who have been assigned to the offices of the District Panchayat as well as the Collector, their pay and other perks would be at the hands of the respective District Panchayat/office of the Collector. Therefore, till the year 2006, the service of the petitioner was continued on contractual basis and upon closure of the said project, the petitioner and other employees were allotted to the office of the respective District Panchayats/offices of the Collectors. Pertinently, the petitioner initially had worked with the office of Executive Engineer, Earthquake (R&B) Bhachau, and thereafter with the office of the Mamaltdar and currently with the office of Rapar Area Development Authority, Rapar. There is no dispute so far as the aforesaid facts are concerned.

11. As is discernible from the record, employees, who were appointed in similar set of facts, the State Government in its Urban Development & Urban Housing Department, had issued Government Resolutions regularizing the service of the employees concerned, who

C/SCA/8601/2012 JUDGMENT

were appointed on contractual basis. One such Government Resolution is dated 14.2.2008 regularizing the service of the six employees on regular establishment. The sole obstacle, which the respondent has spelled out in its affidavit is that since the initial appointment of the petitioner was by the Roads & Buildings Department and in the year 2006, the petitioner having been assigned to the office of the Collector, it will not be its responsibility; rather it would not be the obligation of the Roads & Buildings Department to regularize the service of the petitioner. The said approach on the part of the respondent authorities is clearly impermissible inasmuch as, the petitioner, as is clear from the record, was appointed after following the procedure by the Chairman, Selection Committee & Superintending Engineer. Strictly speaking, the appointment of the petitioner was not as per the statutory Rules; however, the same cannot be termed as an illegal appointment. At the most, the appointment of the petitioner can be said to be an irregular appointment. Therefore, once the Court finds that the appointment of the petitioner was not illegal but irregular, the principle enunciated by the Apex Court in the case of State of Karnataka vs. M L Kesari reported in (2010)9 SCC 247 squarely applies. The Apex Court in the said case, has held that where the appointments are not made or continued against sanctioned posts or where the persons appointed do not possess the prescribed minimum qualifications, the appointments will be considered to be illegal. But, where the person employed possessed the prescribed qualifications and was working against sanctioned posts, had been selected without undergoing the process of competitive selection, such appointments are considered to be irregular.

12. Therefore, as discussed hereinabove, the petitioner being found eligible in all respect was appointed by duly constituted Selection Committee of Chairman & Superintendent (Roads & Buildings) Circle Ghandinagar. Besides, this Court, in similar set of

C/SCA/8601/2012 JUDGMENT

facts, has directed regularization of the service of the employees. One such order is dated 21.12.2009 rendered in Special Civil Application No.9523 of 2009. In another oral judgment dated 26.9.2014, in the case of Dipesh Bharatbhai Joshi vs. State of Gujarat, rendered in Civil Application No. 10457 of 2014 in Special Civil Application No. 11020 of 2010, this Court has directed regularization of the service. Paragraphs 2 and 3 whereof, read as under:

"2. Having considered the rival contentions there does not appear to be a dispute on the fact that the petitioners were appointed through set recruitment procedure as Surveyors w.e.f 15th June 2004. In the Civil Application an order dated 30th October 2013 regularising various similarly situated Surveyors has been produced and there does not appear to be a serious dispute that the petitioners also can be regularised in terms of the said order. Even otherwise this Court has been consistent in its view that regularly selected employees cannot be continued for long on contractual, adhoc or temporary basis and they are required to be regularised. Even in Secretary, State of Karnataka & Ors. V. Umadevi & Ors (AIR 2006 SC1806), the Apex Court emphasised the need for regularisation of such employees and deprecated the practice of making appointments on permanent post on contractual or on adhoc basis for long time.

3. In above view of the matter the petition is required to be allowed partly as submitted by learned counsel for the petitioner, to an effect that the petitioner will be regularised not from the date of inception in service but from the date his juniors were regularised. Accordingly the petition is partly allowed in above terms and the petitioner shall be regularised in terms of the order dated 30th October 2013. The decision to regularise the petitioner will be taken by the respondent preferably within a period of six weeks from today. Rule is made absolute to the above extent. Direct service is permitted."

13. In paragraph 2, there is a reference of order dated 30.10.2013 whereby service of various surveyors has been regularized. Following the aforesaid two judgments, this Court vide judgment dated 23.2.2016 has directed the State Government to regularize the service of the petitioner therein. The petitioner therein was appointed pursuant to the very same advertisement issued in the local daily newspaper on the

C/SCA/8601/2012 JUDGMENT

post of Additional Engineer (Civil) and was thereafter appointed to the post of Surveyor. The grievance raised therein was that he was serving past sixteen years on contractual basis and despite request being made to the authorities, his service was not regularized. This Court, while allowing the writ petition, has observed thus:

"Perhaps, the only ground put forward for not regularizing the services of the petitioner is that he was appointed for a brief period only with a view to meet with the exigencies that arose on account of the devastating earthquake. If that would have been so, probably, he would not have been continued for sixteen years at a stretch. On one ground or the other, this petition is sought to be opposed. It is now submitted that his performance is not satisfactory. It is also submitted that one FIR was registered against him for the offence of forgery. It is pointed out that the investigation resulted in filing of a 'C' summary report by the Investigating Officer and the learned Magistrate has accepted the 'C' summary. Of course, a revision seems to have been filed in the Sessions Court against the order of the learned Magistrate accepting the 'C' summary.

I take notice of the fact that many employees in the establishment who were appointed along with the petitioner at the relevant point of time have all been regularized. It seems that the work is still there, otherwise the petitioner would not have been continued all these years in service.

In the result, the respondent nos.2 and 3 are directed to consider the case of the petitioner for regularization, more particularly, in view of the order which was passed by this Court dated 21st December 2009 referred to above. An appropriate decision shall be taken in this regard with necessary order within a period of eight weeks from the date of receipt of the writ of the order.

The respondent nos.2 and 3 are also directed to take into consideration the judgment and order passed by this Court dated 4th February 2016 in Special Civil Application No.10829 of 2003 and allied matters, wherein this Court has considered the law on the subject of regularization at length.

I expect the authorities to take a positive decision keeping in mind the judgments referred to above. The respondent nos.2 and 3 are also directed to consider the order dated 26th September 2014 passed by a learned Single Judge in Civil Application No.10457 of 2014 in Special Civil Application No.11020 of 2010 and allied matters.

       I   expect     the   authorities   concerned   to   ensure    that





         C/SCA/8601/2012                                        JUDGMENT



       there is no second round of litigation.

With the above, this writ-application is disposed of. Direct service is permitted."

It has been reported that pursuant to the aforesaid directions contained in the judgment dated 23.2.2016, the service of the petitioner therein, who was working with the office of Rapar Area Development Authority has been regularized, by passing necessary orders. The case of the petitioner is identical to the case of the petitioner of Special Civil Application No.16634 of 2012 and therefore, the case of the petitioner deserves consideration on similar lines.

14. Considering the facts discussed herein above so also, the directions issued by this Court in the aforesaid judgments, there is no reason available to this Court to take a different view than the aforesaid views taken by this Court, more particularly, when the petitioner also has been appointed in the year 2001 after following the procedure and by duly constituted Selection Committee. Furthermore, the said order was approved by the State Government vide Government Resolution dated 8.3.2001and it is only thereafter that the appointment was effected. The continuation of the petitioner from the year 2001, till date, also buttress the fact that the service of the petitioner is still required by the authorities concerned. Also, the recommendations made by the office of the Mamlatdar so also, the Deputy Collector strengthens the fact about requirement of service of the petitioner and therefore, in absence of any strong justification assigned by the respondents, for not regularizing the service of the petitioner, the case of the petitioner also needs consideration in line with directions contained in the judgments passed by this Court in the aforementioned writ petitions.

15. Under the circumstances, the respondent no.1, in consultation with the concerned departments namely, Revenue Department and Urban Development & Urban Housing Department of the State

C/SCA/8601/2012 JUDGMENT

Government, are directed to consider the case of the petitioner for regularization. The concerned authorities shall take decision in terms of this judgment within a period of four months from today. It is expected that the authorities will take positive decision, ensuring that there is no second round of litigation.

16. In view of the aforementioned discussion, the petition is partly allowed. Rule is made absolute to the aforesaid extent. No order as to cost.

(SANGEETA K. VISHEN,J) Hitesh