Manjulaben Punjalal Dabhi vs State Of Gujarat
2021 Latest Caselaw 18609 Guj

      C/SCA/30973/2007                                       ORDER DATED: 21/12/2021



             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
              R/SPECIAL CIVIL APPLICATION NO. 30973 of 2007
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                           MANJULABEN PUNJALAL DABHI
                                     Versus
                           STATE OF GUJARAT & 1 other(s)
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Appearance:
MR TR MISHRA(483) for the Petitioner(s) No. 1
MR.ADITYASINH JADEJA, AGP for the Respondent(s) No. 1
RULE SERVED(64) for the Respondent(s) No. 2
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    CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA

                                   Date : 21/12/2021
                                    ORAL ORDER

[1] In the present writ petition, the petitioner has prayed for the following relief:-

"7A. That Your Lordships be pleased to issue an order, direction or writ in the nature of mandamus and / or any other appropriate writ, order or firections, directing the respondents to regularise the services of the petitioner in view of the the Government Resolution dated 01.05.2007."

[2] The brief facts giving rise to the present writ petition are that the petitioner was working as a water woman since 1983 on part time basis. Since her services were terminated, an industrial a dispute was raised which was registered as Reference (LCA) No.1748 of 1988. The Labour Court passed an Award dated 23.04.2001 directing the respondents for reinstatement of the petitioner with continuity of service with full back wages. After the aforesaid award was passed, the petitioner was again terminated and therefore, she preferred a petition being Special Civil

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Application No.21309 of 2007. During the pendency of the petition, the petitioner was taken in the service as per the order dated 01.11.2007 passed by this Court. The aforesaid petition was filed challenging the order terminating the services of the petitioner on the ground that as per the Circular issued by the Government of Gujarat persons having less than 10 years part time service should be discontinued. The said petition being Special Civil Application No.21309 of 2007 challenging the order of termination dated 24.07.2007 was disposed of by the order dated 23.11.2007.

[3] Learned advocate Mr.Mishra has submitted that by the impugned order, the petitioner was reinstated in service and she continued till she retired on 27.02.2015. It is submitted that in the order dated 23.11.2007 passed in Special Civil Application No.21309 of 2007, this Court has given liberty to file independent petition claiming benefits of regularisation on the basis of the Government Resolution dated 01.05.2007. He has submitted that thereafter the present petition claiming benefits of regularisation is filed. While referring to the Government Resolution dated 01.05.2007, more particularly, the condition no.1, he has submitted that the petitioner is entitled to regularisation after

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completion of 10 years of service. It is submitted that the petitioner has completed 10 years of service even prior to her termination. It is submitted that the petitioner was appointed on 23.05.1983 and was terminated in the year 1987, however, the Labour Court had granted reinstatement with continuity of service with full back wages vide award dated 23.04.2001 and the said award has become final as the writ petition was dismissed by quashing the grant of back wages, however, the continuity of service was not disturbed. It is also alternatively submitted that if as per Clause 1 of the aforesaid the Government Resolution, the petitioner is denied regularisation since she has continued under the interim order of the Court. However, such vinterim order was operative till the final disposal of the writ petition being Special Civil Application No.21309 of 2007 vide order dated 23.11.2007 and thereafter, the petitioner has been continued voluntarily by the respondent till her retirement day. Hence, it is urged by learned advocate Mr.Mishra that appropriate orders directing the respondents to confer the benefits of regularisation to the petitioner as per the the Government Resolution dated 01.05.2007 may be passed.

[4] Per contra, learned AGP Mr.Jadeja while

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placing reliance on the affidavit in reply has submitted that the petitioner is not entitled for benefits of regularisation as she was contained under the interim order of this Court. He has submitted that the Finance Department has rejected the case of the petitioner for regularisation. It is submitted that as per the judgment of Supreme Court in the case of State of Karnataka vs. Umadevi reported in 2006 (4) SCC 1, the petitioner cannot be regularised in service.

[5] Heard the learned advocates for the respective parties.

[6] The facts as narrated hereinabove would suggest that the petitioner, who is widow, after rendering almost 29 years of service, has retired without getting any benefits of regularisation. The facts as recorded in the order dated 01.11.2007 passed in Special Civil Application No.21309 of 2007 suggest that the petitioner was appointed as a part timer on 23.05.1983 and was terminated on 13.05.1987. The Labour Court vide award dated 23.04.2001 passed in Reference No.1748 of 1988 directed reinstatement of the petitioner with continuity of service with full back wages. The same was subject matter of challenge before this Court in the writ petition

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being Special Civil Application No.21309 of 2007, whereby the award was partly modified with regard to the grant of back wages and the same was denied by this Court, however, continuity of service was not disturbed. The petitioner was reinstated on 22.02.2006. It appears that thereafter, the petitioner was again terminated from service on 24.07.2007 vide order dated 20.07.2007, which constrained her to file Special Civil Application No.21309 of 2007 and because of interim order passed by this court, the petitioner was taken back in service on 01.11.2007. The said writ petition was disposed of vide order dated 23.11.2007 keeping it open for the petitioner to claim regulatisation on the basis of the Government Resolution dated 01.05.2007. After disposal of the said petition, the petitioner continued till she retired on reaching the age of superannuation i.e. 27.02.2015. By the order dated 27.02.2015, the petitioner was retired from service at the age of 60 years. The petitioner has premised her claim of regularisation in view of the Government Resolution dated 01.05.2007, which was issued by the Finance Department of the State Government granting benefits of regularisaiton to the part timers.

[7] The Condition no.1 of the Government

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Resolution dated 01.05.2007 reads as under:-

"1. Part time employees serving in Class-4, fulfilling the following criteria, shall be given regular appointment from the date of this resolution after consultation with the financial advisor of the concerned department and after obtaining prior permission of the Secretary of the concerned Administrative Department.

(1) They must have completed 10 years and daily 6 hours of service as Part time employees as on 10/02/2006. However, this service of 10 years must not have continued on account of judgement of Hon'ble Court or Tribunal."

[8] Thus, as per the aforesaid condition, those employees, who have rendered 10 years of service for 6 hours without any interim order passed by the Labour Courts, their case cannot be considered for regularisation. It is not in dispute that as per the facts recorded in various orders of the Labour Court as well as of this Court, the petitioner was appointed on 23.05.1983 and terminated on 13.05.1987 and reinstated in the service by the award dated 23.04.2001 with continuity of service. The said award has become final. Thus, the service of the petitioner from 1983 till she was reinstated in service up to 2001 is required to be treated as the said award has become final. Pursuant to the award passed by the the Labour Court and confirmed by this court, the petitioner was reinstated on 22.02.2006 on revised fixed pay of Rs.1350/-. It appears that petitioner was again terminated on 24.07.2007,

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which constrained her to file Special Civil Application No. 21309 of 2007 andby detailed interim order dated 01.11.2007, the respondents were directed to reinstate the petitioner in service.

[9] It appears that because of interim order of this Court dated 01.11.2007 passed in Special Civil Application No.21309 of 2007, the petitioner was taken back in service on 01.11.2007. The said petition was disposed of vide order dated 23.11.2007 by giving a liberty to the petitioner to file independent petition claiming benefits of regularisation on the basis of the Government Resolution dated 01.05.2007. Thus, even after the disposal of the petition on 23.11.2007, the petitioner was continued in service till she reached at the age of superannuation without their being any operation of interim order. Hence, the condition no.1 of the Government Resolution dated 01.05.2007 cannot be construed detrimental to the petitioner. The aforesaid interim order was not challenged by the State authority before any forum. The petitioner being a widow cannot be left at mercy to the State authority, after rendering 29 years of service. Thus, the period from 23.09.1983 (i.e. date if appointment) till her reinstatement (i.e. 22.02.2006) and the period from 01.11.2007 (again

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reinstatement) till retirement i.e. 27.12.2015 i.e. more than 29 years service, cannot be ignored by the State authorities.

[10] Under the circumstances and in light of the foregoing reasons, the respondent no.1 is directed to confer the benefit of the Government Resolution dated 01.05.2007 and extend the benefit of regularisation as envisaged in the said Government Resolution from the date of issuance of the Government Resolution dated 01.05.2007. The respondents are also directed to pay arrears. Appointment order in terms of directions issued by this Court shall be passed within a period of 1 month from the date of receipt of writ of this order.

[10] With the aforesaid directions, the writ petition is allowed. Rule is made absolute.

(A. S. SUPEHIA, J) NABILA