State Of Gujarat vs Ashok Amarsinh Solanki
2021 Latest Caselaw 6655 Guj

      C/LPA/2178/2017                              ORDER DATED: 22/06/2021




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                R/LETTERS PATENT APPEAL NO. 2178 of 2017

            In R/SPECIAL CIVIL APPLICATION NO. 12804 of 2008

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                        STATE OF GUJARAT & 2 other(s)
                                  Versus
                         ASHOK AMARSINH SOLANKI
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Appearance:
MR CHINTAN DAVE, AGP(1) for the Appellant(s) No. 1,2,3
HCLS COMMITTEE(4998) for the Respondent(s) No. 1
MR JEET J BHATT(6154) for the Respondent(s) No. 1
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    CORAM:HONOURABLE MR. JUSTICE J.B.PARDIWALA
          and
          HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI

                              Date : 22/06/2021

                                ORAL ORDER

(PER : HONOURABLE MR. JUSTICE J.B.PARDIWALA)

1 This appeal under clause 15 of the Letters Patent is at the instance of the State of Gujarat and others (original respondents) and is directed against the order passed by a learned Single Judge of this Court dated 1 st September 2016 in the Special Civil Application No.12804 of 2008 filed by the respondent herein (original writ applicant), by which the learned Single Judge allowed the writ application and directed the respondents (appellants herein) to reconsider the case of the writ applicant in the light of the observations made in the order passed by the learned Single Judge.

2 The facts giving rise to this appeal may be summarized as under:

3 The original writ applicant was appointed as a Laboratory Attendant, a Class IV post, as a daily wager with effect from 19 th

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September 1995. It is not in dispute that the writ applicant was asked to work for five hours a day on adhoc and temporary basis in accordance with the policy dated 21st December 1994 and 23rd March 1995 respectively. It is the case of the original writ applicant that although his appointment was for five hours a day, yet he used to work for more than five hours and his superior had also recommended appointment of the writ applicant for six hours a day.

4 The writ applicant, in such circumstances referred to above, preferred an application dated 10 th May 1995 seeking appointment for six hours a day, and by office order dated 28 th May 1999, his services were extended by one hour.

5 It appears that the services of the writ applicant came to be terminated on 21st February 2007 with effect from 14 th January 2007. In such circumstances, he came before this Court by filing the Special Civil Application No.21570 of 2007 questioning the termination.

6 The Special Civil Application No.21570 of 2007 came to be disposed of by a learned Single Judge of this Court vide order dated 22 nd August 2007. The relevant observations reads thus:

"In light of the aforesaid background, when petitioner is working since 19.9.1995 completed more than ten years, selected by due process of selection and appointed and working six hours in a day, entitled for consider his case as per Government Resolution dated 1.5.2007.

Therefore, it is directed to the respondent to consider the case of petitioner as per Government Resolution dated 1.5.2007 while examining original service record of petitioner and pass appropriate reasoned order in accordance with policy dated 1.5.2007 including the order of reinstatement within a period of three months from the date of receiving the copy of this order and communicate the decision to the petitioner immediately.

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In view of the above observations and directions present petition is disposed of without expressing any opinion on merits.

However, in case if ultimate decision is adverse to the petitioner, it is open for the petitioner to challenge the same before appropriate forum in accordance with law."

7 The case put up by the original writ applicant before the learned Single Judge was one for regular appointment as a Laboratory Attendant with all consequential benefits. As the Government Resolution dated 1 st May 2007 was coming in the way of the writ applicant, he prayed to quash the same and restore the benefit of the Government Resolution dated 26th December 1980. We clarify that it is not necessary for us to go into the issue with regard to the constitutional validity of the Government Resolutions. The learned Single Judge, while allowing the writ application filed by the writ applicants, observed in paras 8, 9, 10 and 11 as under:

"8. As can be seen from the above, no other objection except as stated above was raised by the respondent against regularising the petitioner in terms of the aforestated policy dated 1.5.2007. It is true that no formal order appointing the petitioner to work as part-timer for six hours a day was issued to him as on the date of his original appointment i.e. on 19.9.1995. However, the letter dated 5.7.1996 evidences the fact that he was already working for more than five hours a day from the inception of his service. Therefore, merely because no formal appointment order was issued, it cannot be said that the petitioner did not satisfy condition no. 1 as stated above.

9. Learned counsel for the petitioner contended that termination of petitioner's services after 12 years of service that too, without hearing him was bad in law and deserves to be set aside.

10. It is noticed that the services of the petitioner of more than 12 years were terminated without even issuing a formal notice to the petitioner. The learned Assistant Government Pleader is unable to contend to the contrary. Therefore, without examining the other issues raised with regard to the termination of the services of the petitioner, it is required to be set aside solely on the above ground. However, it is clarified that the petitioner will not be entitled to any backwages or other benefits

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except continuity of services as a consequence of setting aside the order of termination.

11. In the above view of the matter, the petition is required to be allowed. Accordingly, the same is allowed. The respondents are directed to reconsider the case of the petitioner in the light of the observations made in this judgement regarding the petitioner's work for more than five hours a day within a period of six weeks from today. Rule is made absolute to the above extent. Direct service is permitted."

8 Thus, the appellants herein came to be directed to reconsider the case of the writ applicant.

9 We have heard Mr. Chintan Dave, the learned A.G.P. appearing for the appellants and Mr. Jeet Bhatt, the learned counsel appearing for the respondent - original writ applicant.

10 We take notice of the fact that the original appointment of the writ applicant is of 1995. The writ application is of the year 2008. A Coordinate Bench of this Court stayed the operation of the impugned order passed by the learned Single Judge vide order dated 4 th December 2017. The same reads thus:

"1. RULE. Shri Anand Gogia, learned advocate waives service of notice of rule on behalf of the respondent.

2. In the facts and circumstances of the case and with the consent of the learned advocates appearing on behalf of the respective parties, present application is taken up for hearing today.

3. Present application has been preferred by the applicants herein - original respondents to stay, during pendency and final disposal of the main Letters Patent Appeal, further execution, implementation and operation of the impugned judgment and order passed by the learned Single Judge in Special Civil Application No.l12804/2008.

4. Having heard the learned advocates appearing on behalf of the respective parties and considering the fact that even in the main petition the prayer of the respondent herein - original petitioner was that the Government Resolution dated 01/05/2007 was required to be

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modified and the same shall not be applicable and the same is not required to be implemented, the learned Single Judge has passed the impugned judgment and order granting the benefit as per the Government Resolution dated 01/05/2007, which according to the applicants was not required to be applied in the case of the respondent

- original petitioner, we are of the opinion that the impugned judgment and order passed by the learned Single Judge is required to be stayed.

5. In view of the above, it is directed by way of interim relief that there shall be stay of further execution, implementation and operation of the impugned judgment and order passed by the learned Single Judge in Special Civil Application No.12804/2008, during pendency and final disposal of the main Letters Patent Appeal. Rule is made absolute accordingly. No order as to costs."

11 This appeal is being heard in the year 2021. Having regard to the time period that has elapsed, it would be too much at this point of time to ask or direct the appellants to reconsider the case of the writ applicant and take him back in service.

12 In the result, this appeal succeeds and is hereby allowed. The impugned order passed by the learned Single Judge is hereby set aside. The Special Civil Application No.12804 of 2008 filed by the original writ applicant stands rejected.

(J. B. PARDIWALA, J)

(VAIBHAVI D. NANAVATI,J) CHANDRESH