District Development Officer vs Nilesh Chhaganlal Solanki
2021 Latest Caselaw 17846 Guj

      C/LPA/1418/2019                              CAV ORDER DATED: 29/11/2021




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
                  R/LETTERS PATENT APPEAL NO. 1418 of 2019
               In R/SPECIAL CIVIL APPLICATION NO. 2207 of 2014
                                     With
                  CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
                 In R/LETTERS PATENT APPEAL NO. 1418 of 2019
==========================================================

DISTRICT DEVELOPMENT OFFICER Versus NILESH CHHAGANLAL SOLANKI ========================================================== Appearance:

MR HS MUNSHAW(495) for the Appellant(s) No. 1,2 MR. MANAN MEHTA, AGP(99) for the Respondent(s) No. 2 MR KEYUR A VYAS(3247) for the Respondent(s) No. 1 ========================================================== CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIA and HONOURABLE DR. JUSTICE A. P. THAKER

Date : 29/11/2021 CAV ORDER (PER : HONOURABLE MR. JUSTICE N.V.ANJARIA)

Heard learned advocate Mr. H. S. Munshaw for the appellants, learned advocate Mr. Keyur Vyas for respondent No.1 and learned Assistant Government Pleader Mr. Manan Mehta for respondent No.2, at length.

2. The present Letters Patent Appeal filed under clause 15 of the Letters Patent by the appellants-the original respondent Nos. 2 and 3 is directed against judgment and order dated 23 rd January, 2019 of learned single Judge, whereby Special Civil Application of respondent-original petitioner came to be allowed. Thereby, the respondents were directed to consider the case of the petitioner for regularisation of his services from the date of initial appointment with all consequential benefits within stipulated time.

2.1      In the Special Civil Application, what was prayed by the petitioner




      C/LPA/1418/2019                              CAV ORDER DATED: 29/11/2021

was for declaration that the petitioner was entitled to be regularised on the post of Multi Purpose Health Worker (Male) in the regular time scale of pay of Rs. 3050-4590 with effect from his date of initial appointment with consequential benefits. It was further prayed to declare that the action on the part of the respondents in continuing the petitioner on a fixed term of 11 months and paying fixed salary to be illegal and arbitrary.

3. It appears that pursuant to advertisement dated 1.8.1998 issued by respondent No.3 Chief District Health Officer for filling up the posts of Multi Purpose Health Worker (Male), the petitioner applied, however, the said advertisement was cancelled and fresh one came to be issued on 14.3.2000. The petitioner came to be selected and appointed in the said subsequent advertisement. He completed successfully training of one year as Multi Purpose Health Worker (Male). The petitioner was issued necessary certificate regarding completion of training. The petitioner was appointed on the said post for a fixed duration of 11 months. He was paid fixed salary of Rs. 2500/- per month as per order dated 18.12.2004 passed in that regard. The appointment of the petitioner on such terms and conditions came to be renewed and extended from time to time. The renewal and extension continued right from November, 2005 till February, 2014. The petitioner raised grievance that he was entitled to the pay scale of Rs. 3050-4590 instead of fixed pay and also to be conferred with the benefit of regularisation. In the representation which the petitioner made for the above prayer, it was inter alia pointed out that similarly situated persons on the post of Multi Purpose Health Worker (Male) who were appointed on the same fixed terms and salary, approached the court by filling Special Civil Application No. 8245 of 2008 and also Special Civil Application No. 3660 of 2010, which

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petitions are stated to be pending at the time of filling of the Special Civil Application from which the present Letters Patent Appeal arises.

3.1 Contesting the petition and prayers, the respondent No.3 filed its affidavit-in-reply to contend that initial appointment of the petitioner on 11.11.2003 was purely temporary and ad hoc basis which appointment was contractual in nature. It was stated that the permanent and sanctioned posts were required to be filled in, in accordance with the recruitment rules by the competenet authority. The appointment of the petitioner was not regular, though he got the benefit of renewal of the contract from time to time, it was stated. It was thereafter stated that when regular recruitment process was undertaken by the authorities, the petitioner fared successfully and was issued order of appontment on 5.7.2014 in the cadre of Multi Purpose Health Worker (Male) and his salary was fixced at Rs. 19,900/- per month.

3.2 Refuting the prayer for regularisation, it was stated by respondent No.3 that the petitioner cleared recruitmet process in the month of July, 2014 and was not entitled to any benefit of regularisation with effect from the initial date of appointment. It was mentioned that the total sanctioned posts in the cadre of Multi Purpose Health Worker (Male) were 296, out of which 260 posts were filled-up through regular recruitment process. The petitioner was under the regular employment of District Panchayat and it that there was no contractual appointee in the cadre at present, it was stated.

3.3 In the rejoinder affidavit, it was sought to be pointed out on behalf of the petitioner that non-granting of benefits of regularisation etc. to the petitioner was discriminatory.

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4. Learned single Judge refused to countenance submissions on behalf of the respondents whose stand inter alia was that the petitioner had accepted employment and the tenure thereof with open eyes and that he was continued in view of the policy of the State Government. It was the submission, again not accepted, in the facts of the case that there was no vested right in seeking regularisation. Further contention canvassed was that in any view regularisation could not have been claimed as a matter of right.

4.1 Learned single Judge was eminently justified in rejecting the stand of the respondents and in granting relief to the petitioner in view of decision of this court in J. N. Jagani vs. State of Gujarat [2017 (2) GLR 1562]. From the law extracted by learned single Judge from the said decision, the relevant is reproduced hereinbelow,

"The action of the respondent authorities in not regularizing the services of the petitioners, as has been done in the case of other similarly situated MPHW(M) by the concerned District Panchayats and the State Government in Sabarkantha District, is not only arbitrary but also discriminatory and unjust and is, therefore, in violation of Article 14 of the Constitution of India. The petitioners are being deprived of the fruits of regularization in spite of having worked continuously for a period of about twentyfive years, or more. As such, the action of the respondents is also in violation of the provision of Articles 16 and 21 of the Constitution of India."

(para 27)

4.2 It was observed by the court in J. N. Jagani (supra) also that action on part of the respondents when tested by the principle of reasonable executive action, would not stand to the touch stone. It was observed that even though there was condition in the impugned order that the petitioner in that case had to undergo regular selection process, but the respondents themselves were tardy and did not conduct the selection

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process for years together. The case in J. N. Jagani (supra) was in relation to the Multi Purpose Health Worker (Mail) only working on ad hoc basis to apply to the facts of the present case squarely. The court issued direction to the authorities to consider the case of such Multi Purpose Health Workers (Mail) and those petitioners were granted benefits of regularisation with restrospective effective. In J. N. Jagani (supra), the court stated further,

"At the same time, the Court cannot overlook the fact that the State Government is supposed to be a model employer. It would have behoved the State Government to have framed a uniform policy for MPHW(M) such as the petitioners, covering the entire State of Gujarat, instead of confining the decision only to those MPHW(M) working in Sabarkantha District, as has been done vide the order dated 13.10.2009. This would have ensured equal treatment to all similarly situated MPHW(M) throughout the State, irrespective of the District in which they are working. The fact that a decision has not been taken for all MPHW(M) but only for those working in a particular District, has caused a great deal of anguish and heartburning to the petitioners, which is quite understandable, considering that they have been discriminated for no fault of their own."

(para 34)

4.3 There was yet another decision in Gujarat State Karmachari Sankalan Samiti vs. State of Gujarat being Special Civil Application No. 12537 of 2011 decided as per oral judgment dated 25.7.2018 wherein also the prayer was to regularise the servies of Multi Purpose Health Workers (Mail) from the date of their initial appointment. The controversy was based on identical facts. The following was stated by the court in Gujarat State Karmachari Sankalan Samiti (supra) referring to the facts of the case,

"It is admitted that initially, petitioners were contractual appointment for 11 months and thereafter, they have been continued for all these years. Some of these petitioners have joined way back in the year 2004 and 2005 and working on fixed remuneration of Rs.2500/-. The main ground of the respondents in denying the regular appointment to the petitioners and terminating their services is that initial appointment was on contractual basis."

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                                                                               (para-7)

4.4      The court observed that stand on part of the state government

authorities in terminating the services of the petitioner although the petitions of similarly situated persons were allowed as early as in 2011 and 2016, was not acceptable in law. The decision in Special Civil Application No. 6289 of 2011 involving the same facts and issue was referred and para 25 was relied on therefrom,

"It may be true that in the case of District Rajkot, similarly situated MPHW(M) have been regularized by the concerned District Panchayat. However, it is obvious that in the case of Sabarkantha District Panchayat, the services of MPHW (M), who are identically situated to the petitioners, have been regularized, with restrospective effect, by the State Government, itself. The State Government has taken a policy decision in this regard, confined only to the MPHW (M) of Sabarkantha District. Why all similarly situated MPHW (M) in other Districts of the State have not been covered under a uniform policy, is certainly baffling. Multi Purpose Health Worker (Male) such as petitioners, who were appointed on ad- hoc basis but have been denied the fruits of regular appointment only because the regular selection process was not fhled until they had crossed the permissible age-limit, from a distinct class of employees. Different categories in a single class cannot be carved out by taking piecemeal decisions benefiting only a section of such employees. This would amount to sub-classification that would not be permissible in law, as there is no rational nexus to the object sought to be achieved by confirming the decision only to MPHW (M) in Rajkot and Sabarkantha districts. They, therefore, cannot be accorded discriminatory treatment. The respondent authorities are not only trying to take advantage of the situation but are also trying to put the blame on each other which cannot be permitted, to the detriment of the petitioners."

(para 25)

4.5 Finally, in Gujarat State Karmachari Sankalan Samiti (supra) the court held,

"From the aforementioned judgment, it is clear that Multi Purpose Health Worker (Male) who have worked continuously for so many years cannot be discriminated by taking one excuse or the other. There is no rationale in discriminating the present petitioners by treating them as employees on contractual basis when initial contract for which they were appointed is over after 11 months and thereafter, without any break, they are continued for all these years. This is particularly so, when clear cut finding has been recorded

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by co-ordinate Bench of this Court in Special Civil Application No.6289 of 2011 and respondents were party in these proceedings."

(para-10)

5. It is to be further noted that the issue in Gujarat State Karmachari Sankalan Samiti (supra) being Special Civil Application No. 12517 of 2011 was subjected to contempt proceedings, which resulted into order dated 10.1.2020 directing compliance of the directions. The decision in J. N. Jagani (supra) was noted to record the law laid down therein and having attained finality.

6. In the impugned judgment, learned single Judge has relied on J. N. Jagani (supra) and Gujarat State Karmachari Sankalan Samiti (supra) and has granted relief to the petitioner directing authorities to consider his case for regularisation of service from his initial date of appointment rightly placing the petitioner at par and at the same padestial with the other similarly situated employees who were granted similar relief in the aforesaid cases by this court with consequential benefits.

7. For the above reasons and considerations, the challenge in the present Letters Patent Appeal is thoroughly meritless. The same is dismissed with costs. Directions of learned single Judge in para 8.1 of the impugned judgment and order about the payment of consequential benefits to the petitioner shall operate, to be complied with, within a period of eight weeks from today. Notice is discharged. Civil Application for stay also stands disposed of accordingly.

(N.V.ANJARIA, J)

(DR. A. P. THAKER, J) C.M. JOSHI