Anilbhai Bachubhai Satani vs State Of Gujarat
2021 Latest Caselaw 18525 Guj

     C/LPA/1236/2017                              CAV ORDER DATED: 17/12/2021




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                 R/LETTERS PATENT APPEAL NO. 1236 of 2017

             In R/SPECIAL CIVIL APPLICATION NO. 11982 of 2008

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ANILBHAI BACHUBHAI SATANI Versus STATE OF GUJARAT & 1 other(s) ========================================================== Appearance:

MS KAJAL KALWANI for MR ANAND B GOGIA(5849) for the Appellant(s)

MR MANAN MEHTA, AGP (99) for the Respondent(s) No. 1 RULE SERVED(64) for the Respondent(s) No. 1,2 ==========================================================

CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIA and HONOURABLE MR. JUSTICE SANDEEP N. BHATT

Date : 17/12/2021

CAV ORDER (PER : HONOURABLE MR. JUSTICE N.V.ANJARIA)

Heard learned advocate Ms.Kajal Kalwani for learned advocate Mr.Anand B. Gogia for the appellant and learned Assistant Government Pleader Mr.Manan Mehta for the respondent State and its authorities.

2. The appellant- original petitioner has filed this Letters Patent Appeal seeking to challenge judgment and order dated 28.9.2016 of learned Single Judge dismissing the Special Civil Application.

3. In the main petition, what was prayed was to declare the action on part of the respondent in terminating the services of the petitioner with effect from 31.7.2006. The grievance was also raised in respect of not making the petitioner full-time

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employee. It was further prayed to direct the respondent to reinstate the petitioner with continuity of services, with backwages and regularize his services against the vacancy.

3.1 The further prayer contained in the petition was to declare as illegal the provisions of Resolution dated 1.5.2007 which laid down condition of minimum ten years of service with six hours of daily duty for regularization, was not pressed in course of the arguments, as recorded by learned Single Judge in the impugned judgment. The said prayer therefore did not survive.

3.2 The petitioner was appointed on 1.11.1989 as part time employee by Collector, Rajkot. In June, 1998, Collector, appears to have submitted the proposal for regularizing the services of the petitioner. The petitioner also made representation in that regard on 26.6.2000 and again on 30.5.2001. The further correspondence between the authorities inter se ensued. The representations were made by the petitioner. On 31.1.2003, respondent No.1 State rejected the proposal. After the services of the petitioner came to be terminated on 31.7.2006, he again made a representation to respondent No.2 Collector, wherein the petitioner relied on circular dated 1.5.2007 aforementioned for regularizing his services.

3.3 Contesting the petition, the respondent No.2 stated that the petitioner had been working for six hours on temporary basis and that the petitioner had given undertaking that he was agreeing to accept the temporary employment. The claim of the petitioner that he worked without break from 1.11.1989 to 31.7.2006 was denied and refuted. It was stated that the services of the petitioner would automatically get terminated on 31.7.2006 when the tenure would be over. It was further stated

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that the claim of regularization of the petitioner was based on Government Resolution dated 26.12.1980. This Resolution was suspended by subsequently issued Resolution dated 21.8.1995.

3.4 Learned Single Judge noticed that the services of the petitioner was temporary in nature and came to an end by efflux of time. The period of services of the petitioner specified in the orders of appointment, further noted learned Single Judge, it was observed that no right had accrued to the petitioner to seek any notice before the termination of services. Learned Single Judge referred to the decision of the Secretary, State of Karnataka And Other Vs. Umadevi And Others, [AIR 200 SC 1086], to observe on that basis that equality in public employment is basic to the rule of law and is consistent with such scheme the appointment which are not in terms of relevant rules and not after competition amongst the qualified, meritorious candidates. Such appointment would not confer any right upon the employee. Merely because he is continued beyond the term of his appointment, that by itself would not confer on him right to be absorbed in regular services or to be made permanent.

3.5 In paragraph No.7 of the order it was observed by learned Single Judge,

"Under any case, the seeker of public employment must face the competition from other similarly situated persons; no guidelines, Circulars or Resolutions carving out an artificial class for the persons who have by chance or by luck served the Government for some temporary period on temporary basis can be countenanced in view of above observations made by the Supreme Court. The Apex Court in Umadevi's

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thus:

"It is also clarified that those decisions which run counter to the principle settled in this decision or in which directions running counter to what we have held herein, will stand denuded of their status as precedents.""

4. Learned advocate for the petitioner submitted that several employees came to be regularized by the respondents, who, according to learned advocate for the appellant, were similarly situated. The decision of this Court in F.S.Pathan Vs. State of Gujarat in Special Civil Application No.4549 of 1996, was pressed into service to submit that the said petition was filed by group of twelve petitioners, who were the employees in the office of the Collector, Rajkot working as peons, drivers, gardeners, hamals, who were on fixed salary, prayed for regularization and that several amongst them were granted relief by this Court.

4.1 Another decision vehemently relied on was in Zarinaben Isubhai Qureshi Vs. State of Gujarat and Other, being Special Civil Application No.4074 of 2005, decided on 25.11.2016 where the petitioner working on the post of Sweeper cum Water Women in Class-IV cadre and was part-time employee, sought regularization to full time on the post, who was granted relief by this Court directing the respondents to consider and decide the case of petitioner for placing her in Class-IV cadre. It was urged that the petitioner has been sailing in the same boat and deserves to be granted same relief.

5. While appreciating the prayer of the petitioner and the facts attendant to his grievance, at the outset, the decision in F.S Pathan (supra) and Zarinaben Isubhai Qureshi (supra)

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relied on, on behalf of the petitioner, may be dealt with. In that case, the stand was inter alia that in view of Circular dated 21.8.1995 and also in view of the vacant available posts, Class-IV employees could not be adjusted or accommodated on permanent post untill 1992. The ban was imposed and the regularization were made before such ban.

5.1. Conspicuously, in the facts of those cases a statement was made on behalf of the respondent that if the representation was made, the same would be considered and decided for giving the minimum wages. The petition was disposed of on the basis of the statement made on behalf of the respondent authorities. Similar was the case in respect of the decision in Zarinaben Isubhai Qureshi (supra) in which on the footsteps of above order in F.S. Pathan (supra), again the statement was made by learned Assistant Government Pleader regarding maintaining status quo with service conditions of the petitioner and allowing her to make representation for regularizing services in accordance with statement made in the earlier petition. In that view the Court directed the authorities to decide the case of the petitioner. Striking difference between the facts of the case in F.S. Pathan (supra) and Zarinaben Isubhai Qureshi (supra), and the facts of the case on hand is that in both those cases, the employees concerned were very much in service and their services were protected upon the statement made with directions issued as above, the present petitioner is not in service since April 2007, as having been terminated with effect from 31.7.2006.

6. The conditions attached to the appointment of the petitioner is available on record. The petitioner was appointed for 29 days on part-time basis. His duty hours were fixed to be 6

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hours. The nature of duties performed by him was watering, cleaning etc. The appointment period was also specified to be from 5.6.2006 to 31.7.2006. No fixed salary was given to the petitioner, but remuneration depending upon the quantum of work was paid.

6.1 The documents which himself is produced by the petitioner on record indicated that his very application was for part-time Sweeper, as already noted. The petitioner's appointment was as part-timer and his remuneration was fixed on hourly basis. In the subsequent orders of appointment, which are of similar nature, also placed on record, the hours of duty were indicated. They were increased and remuneration at Rs.100/- per hour was fixed. In any case, the nature of appointment remains same. All these aspects relating to the nature of appointment of the petitioner disentitles the petitioner to seek relief which was to set aside the termination of the services which took place in July, 2006 and further to recognize the petitioner in service.

6.2 The material on record go to show that the petitioner never worked under respondent No.2 for more than five hours a day. The temporary engagement of the petitioner was done away with in the year 2006 itself. The temporary appointment and the kind of nature offered to the petitioner did not vest any right with the petitioner to continue in service muchless to get recognized.

6.3 The comparison of the petitioner with the instances of F.S.Pathan (supra) and Zarinaben Isubhai Qureshi (supra) is not well conceived on facts. There is material difference, as the petitioner was out of service since the year 2006, his services have been terminated which was temporary and part

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time. On the other hand, the workmen in F.S.Pathan (supra) and Zarinaben Isubhai Qureshi (supra) were in service and in the respective petitions, their consideration was based on the fair statement made by learned Assistant Government Pleader on behalf of the said authorities. As far as the petitioner is concerned, no right could be said to be existing to be regularized in service.

6.4 The observation of learned Single Judge that the seeker of public employment must face the competition from other similarly situated persons and that no guidelines, circulars or resolutions could be allowed to be operated by which an artificial class of persons is carved out, who by chance or by luck served the government on temporary basis, was eminently proper statement of law. In the instance case, the temporary nature of appointment of the petitioner was established on bare facts. Therefore, no right accrued for the petitioner to continue in service when he pray for regularization, such relief could hardly be granted to the petitioner.

7. In view of the above discussion and reasons, no interference is called for in the order of learned Single Judge, when he has dismissed the petition. This Letters Patent Appeal is meritless and the same is dismissed.

(N.V.ANJARIA, J)

(SANDEEP N. BHATT,J) Manshi