Gujarat High Court
Rajeshkumar Khelshankar Dave vs Halvad Municipality on 31 July, 2021
Bench: Bhargav D. Karia
C/SCA/18820/2017 JUDGMENT DATED: 31/07/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 18820 of 2017
With
CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2020
In R/SPECIAL CIVIL APPLICATION NO. 18820 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BHARGAV D. KARIA
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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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RAJESHKUMAR KHELSHANKAR DAVE
Versus
HALVAD MUNICIPALITY
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Appearance:
MR KR KOSHTI(1092) for the Petitioner(s) No. 1
MR HARI PATEL WITH MR DEEPAK P SANCHELA(2696) for the
Respondent(s) No. 1
RULE SERVED(64) for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA
Date : 31/07/2021
ORAL JUDGMENT
1. Heard learned advocate Mr. K.R. Koshti for the
petitioner and learned advocate Mr. Hari Patel
C/SCA/18820/2017 JUDGMENT DATED: 31/07/2021
for learned advocate Mr. Deepak Sanchela for the
respondent through video conference.
2. By this petition under Article 226 of the
Constitution of India, the petitioner has prayed
for the following reliefs :
"(A) Your Lordships may be pleased to issue
a writ of mandamus or writ in the nature of
mandamus or any other appropriate writ,
order or direction directing the Respondent
Authorities to appoint the petitioners in
his original post of Class-IV and to
regularize the services of the petitioner
on the post of cleaner/ peon and to pay him
salary and other benefits as are being paid
to a regular driver;
(B) Pending admission, hearing and final
disposal of this petition this Honourable
Court will be pleased to grant interim
direction to the respondents to continue the
petitioner on his original post and not to
discontinue the services of the petitioner
without following due procedure of law;
(C ) That this Hon'ble Court may be pleased
to pass such and further order as the nature
and circumstances of the case may require."
3. This Court (Coram : Hon'ble Mr. Justice N.V.
Anjaria) passed the following order on
16.01.2019 regarding the facts of the case while
admitting the matter :
"Heard learned advocate Mr.K.R. Koshti
for the petitioner and learned advocate
Mr.Deepak Sanchela for the respondent -
Halvad Municipality.
C/SCA/18820/2017 JUDGMENT DATED: 31/07/2021
2. The petitioner happens to be a daily-
rated employee working as Cleaner since
July, 1996. It appears that in Special
Civil Application No.13836 of 2008, order
was passed by this Court on 17th March,
2009 which in its relevant part reads as
under.
"In the facts and circumstances of the
case, the petitioner and the respondent-
Municipality are, obviously, bound by the
judgment and order of the Hon'ble
Division Bench in aforesaid L.P.A. No.
1202 of 2002 and cognate matters. It is
pertinent that after the aforesaid
judgment, Hon'ble Larger Bench has also,
in case of Amreli Municipality v. Gujarat
Pradesh Municipal Employees Union,
reported in 2004 (3) G.L.R. 1841, issued
certain directions and the
respondentMunicipality is, obviously,
bound to follow and comply with the said
directions."
3. Pursuant to the aforesaid order, by
communication dated 22nd June, 2009 the
Municipality made proposal through the
Collector to be forwarded to the Director
of Municipalities for the purpose of
filling up of post in question absorbing
the petitioner, which was a Class IV post
of Cleaner. It appears that pursuant to
the proposal of the Municipality, office
of Collector addressed letter dated 19th
July, 2009 whereafter the office of
Director of Municipalities by passing
order dated 03rd September, 2013
permitted the Municipality to fill up the
post by direct recruitment.
4. The grievance is that though five
years have passed, the Municipality has
not initiated the process which is to
result into giving benefit to the
petitioner of absorption as per the
observations of this Court and the
proposal made as above.
C/SCA/18820/2017 JUDGMENT DATED: 31/07/2021
5. In the facts and circumstances
obtaining, Rule, returnable on 07th
March, 2019. By way of adinterim relief
it is directed that the respondent -
Municipality shall immediately start the
necessary process and consider the case
of the petitioner in accordance with law.
6. At this stage, learned advocate for
the petitioner points out from the
communication dated 09th July, 2009 from
the office of the Collector who has
recommended the case of the petitioner by
mentioning the name of the petitioner for
the purpose of giving appointment on the
post of Class-IV.
7. It is further directed that during the
pendency of the petition, service
conditions of the petitioner shall not be
altered in any manner to his detriment.
The pendency of this petition shall not
come in way in granting the benefit of
appointment of the petitioner to the post
in question in accordance with law."
4. It appears that thereafter, the respondents did
not grant the benefit of appointment to the
petitioner and therefore, the following order
was passed on 19.08.2019 :
"Heard learned advocate Mr. K.R.Koshti for
the petitioner, learned Assistant Government
Pleader Ms. Krina Calla for the respondent
No.2 State and learned advocate
Mr. Deepak Sanchela for the respondent
No.1 Municipality.
2. The petitioner who has been
working under the Municipality since
24.07.1996 as daily wager Cleaner, filed the
present petition seeking direction
against the respondents to appoint the
C/SCA/18820/2017 JUDGMENT DATED: 31/07/2021
petitioner on ClassIV post and
regularize the services as Cleaner/ Peon.
3. In the background, it appears that as
back in the year 2008, Special Civil
Application No.13836 of 2008 was filed by
the petitioner which came to be disposed of
by this Court as per order dated
17.03.2009. In pursuance of this
order, the Municipality addressed the
letter dated 24.03.2009 so as to
make proposal to the Collector and the
Director of Municipality for filling up
the post of Cleaner, in respect of
which the petitioner had staked his claim.
3.1 It appears from the facts on record,
more particularly from
the contents of the letter dated 05.03.2019
addressed by the Chief Officer of
Municipality to the Regional
Director of Municipality that the
Director of Municipality had granted
permission to the Municipality to fill in
the post as per the communication dated
03.09.2013. The grievance of the
petitioner is that despite passage of long
years since then the Municipality has not
taken any steps to fill in the post to the
benefit of the petitioner. In view
of inaction on part of the
Municipality, the present petition
came to be filed with the prayers
repeated as aforesaid.
4. It was given out that the Municipality
has again made proposal for filling up
the post in light of the order
dated 16.01.2019 passed by this Court. In
this regard the grievance of the petitioner
is that eventhough the permission was
already granted as back as in the year 2013,
the Municipality did not fill up the post
rather proceeded to make a fresh proposal
which would only result in delaying the
process.
C/SCA/18820/2017 JUDGMENT DATED: 31/07/2021
5. The parties appearing through
their learned advocates could not
dispute the fact emerging from the
record that pursuant to the earlier
petition and the orders passed therein, the
proposal was made by the Municipality, and
that sanction was accorded by the
competent authority of the State
Government on 03.08.2013 whereby
Municipality was permitted to proceed to
fill up the post.
6. The said permission was reflected
in the letter dated 03.09.2013 which
figures on record to inter alia provide that
the Municipality was permitted to go for
recruitment in accordance with the Rules.
The second proposal made by the Municipality
would be prima facie meaningless since
the Director of Municipality is shown to
have been granted the permission to fill up
the post as above.
7. In light of the above factual scenario
emerging from the record of the petition,
following order is passed.
(a) The interim relief granted by
this Court by order dated 16.01.2019
directing that during the pendency of the
petition, the service conditions of the
petitioner shall not be altered in any
manner to his detriment, shall continue to
operate as interim order.
(b) The respondent authorities are permitted
to proceed to fill in the post of Cleaner as
per the proposal and the sanction given by
the authorities, in which the case
of the petitioner shall be
considered in accordance with law and by
giving preference in light of the fact that
the petitioner has been serving since 1996.
(c) The process to fill in the post may be
initiated within two months."
C/SCA/18820/2017 JUDGMENT DATED: 31/07/2021
5. Learned advocate Mr. Koshti submitted that
though the proposal to appoint the petitioner on
the post of Cleaner is made by the respondent
Nagar Palika and is sanctioned by the Director
of Municipalities vide order dated 3.9.2013, the
respondent-Municipality has not taken any
action. It was also submitted that pursuant to
the sanction given by the Director of
Municipalities, respondent Nagar Palika has
again sought the clarification after passing of
the order by this Court on 16.01.2019 and
thereafter, no action is taken either by the
Director of Municipalities or by the respondent
Nagar Palika. It was therefore, submitted that
in view of the facts narrated by this Court in
the earlier orders, respondent - Nagar Palika is
required to be directed to take action for
appointing the petitioner on the sanctioned post
of Cleaner by regularising his services and to
pay the salary and other benefits as are being
paid to the regular employees.
6. On the other hand, learned advocate Mr. Hari
Patel appearing for learned advocate Mr. Deepak
Sanchela submitted that respondent - Nagar
Palika has again forwarded the proposal on
23.7.2019 to the Regional Commissioner of
Municipalities but thereafter no further order
is passed by the office of the Regional
Commissioner of Municipalities and therefore,
C/SCA/18820/2017 JUDGMENT DATED: 31/07/2021
respondent - Nagar Palika is not able to take
any action unless the order is passed by the
Regional Commissioner of Municipalities, Rajkot
for appointment of the petitioner to the post of
Cleaner.
7. Considering the facts of the case, it appears
that the petitioner is tossed from pillar to
post by respondent - Nagar Palika as well as by
the Urban Housing and Urban Development
department and the office of the Regional
Commissioner of Municipalities as well as the
Director of Municipalities.
8. It is not in dispute that the petitioner is
entitled to the post of Cleaner pursuant to
order passed in earlier petition being Special
Civil Application No.13836/2008 and the orders
passed by this Court during the pendency of this
petition.
9. It appears that after passing of the order dated
19.8.2019 i.e. almost two years have passed but
the respondents have not taken any action for
implementation of the order passed by this
Court.
10. In such circumstances, the petition deserves
to be allowed and is accordingly allowed. The
respondents - Nagar Palika as well as the
Secretary, Urban Housing and Urban Development
C/SCA/18820/2017 JUDGMENT DATED: 31/07/2021
department is hereby directed to pass
appropriate order appointing the petitioner on
the post of Cleaner which is already sanctioned
by the Director of Municipalities vide order
dated 3.9.2013 and to pay the arrears of salary
to the petitioner and other consequential
benefits which are being paid to the regular
employee. Such exercise shall be completed
within four weeks from the date of receipt of
this order, failing which, the arrears to be
paid to the petitioner shall carry interest at
the rate of 9% per annum from the date on which
he is entitled to such payment.
11. With the aforesaid directions, the petition
is disposed of. Rule is made absolute to the
aforesaid extent. No order as to costs.
12. In view of order passed in the main
petition, Civil Application stands disposed of.
Direct service is permitted.
(BHARGAV D. KARIA, J)
PALAK BRAHMBHATT
