Jignaben Devendrabhai Shukla vs State Of Gujarat
2022 Latest Caselaw 7178 Guj

    C/SCA/12989/2021                                     JUDGMENT DATED: 18/08/2022




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 12989 of 2021


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE BIREN VAISHNAV
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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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                         JIGNABEN DEVENDRABHAI SHUKLA
                                     Versus
                               STATE OF GUJARAT
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Appearance:
MR RAKESH R PATEL(3239) for the Petitioner(s) No. 1
MR. KURVEN DESAI, ASSISTANT GOVERNMENT PLEADER for the
Respondent(s) No. 1,2
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    CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV

                                Date : 18/08/2022
                                ORAL JUDGMENT

1 Draft amendment granted. Rule returnable

forthwith. Mr.Desai, learned AGP, waives service of

notice of rule on behalf of the respondent -

State. Heard Mr. Rakesh Patel, learned advocate

for the petitioner and Mr.Kurven Desai,

C/SCA/12989/2021 JUDGMENT DATED: 18/08/2022

learned Assistant Government Pleader for the respondent

- State.

2 In this petition under Article 226 of the Constitution

of India, the prayer of the petitioner is that an

appropriate writ be issued to hold that the advertisement

issued by the Collector, Gandhinagar, on 21.07.2021

inviting applications for the post of Law Officers is illegal,

arbitrary and unjust. The other prayer made by the

petitioner is that appropriate writ be issued to hold that

the action of the respondent No.2 in not extending the

contract period with regard to the service of the

petitioner as a Law Officer is arbitrary.

2.1 This Court on 09.09.2021 initially issued notice. The

order dated 09.09.2021 reads as under:

"1. Heard learned Advocate Mr. Rakesh Patel on behalf of the petitioner and learned AGP Mr. Hardik Mehta for the respondents - State.

2. By way of this petition, the petitioner interalia challenges the decision of respondent no.2 whereby contractual appointment of the petitioner has not been continued and for the same post, an

C/SCA/12989/2021 JUDGMENT DATED: 18/08/2022

advertisement has been issued by the respondent no.2 for appointment by way of contract.

3. Learned Advocate Mr. Patel would submit that such an action of the administrative authorities of replacing one contractual employee with another employee by way of contract has been frowned upon by the Hon'ble Supreme Court in the case of State of Harayana V/s.Piara Singh and Ors. reported in 1992 (4) SCC 118.

4. Having regard to the same, issue NOTICE to the respondents returnable on 30.09.2021. Learned AGP waives service of notice for and on behalf of the respondent - State."

3 Pending the petition, it appears that the Collector,

Gandhinagar, issued a fresh advertisement on 22.10.2021

in a vernacular newspaper for filling up the posts in

question on contractual basis. Considering that, this

Court on 29.10.2021, passed the following order:

"Heard learned Advocate Mr. Rakesh R. Patel on behalf of the petitioner and learned AGP Ms. Vrunda Shah for respondent state. Learned Advocate Mr. Patel tenders a draft amendment whereby seeks to bring to the notice of the Court that even after notice had been issued on 09.09.2021. The Collector, Gandhinagar had caused to issue an advertisement on 22.10.2021 in vernacular newspaper more particularly for filing up of the post in question that too on contractual basis.

Learned Advocate Mr. Patel would submit that while this Court had noted the contention of learned Advocate that the action of the authorities

C/SCA/12989/2021 JUDGMENT DATED: 18/08/2022

concerned of replacing one contractual employee with another employee on the same contractual basis had been frowned upon by the Hon'ble Apex Court in case of State of Haryana v/s. piarasingh, yet, without filing reply to the petition, the respondents have again issued an advertisement on 22nd October, 2021.

Learned AGP Ms. Shah could not point out as to what was the extreme urgency in coming out with the second advertisement after this Court had issued notice more particularly when the respondents have even not filed a reply before this Court to the averments as made in the petition. Under such circumstances the further selection process by way of advertisement dated 22.10.2021 is hereby stayed. Respondent No. 2 Collector, Gandhinagar to file his personal affidavit stating as to why before filing of reply in the present petition further advertisement for filing up of the same post in question on contractual basis have been issued. Let this matter be listed for further consideration on 30th November, 2021."

4 Mr.Rakesh Patel, learned advocate for the petitioner

would submit that the petitioner had been discharging

her duties prior to the extinguishment of the contract on

23.06.2021 as a Law Officer with the respondent No.2

since the year 2013 and that her contractual period had

been extended from time to time. Placed on record are

the certificates issued by the Collector, Gandhinagar,

appreciating the services rendered by the petitioner.

C/SCA/12989/2021 JUDGMENT DATED: 18/08/2022

Since the advertisement was issued on 21.07.2021 for

contractual appointment, it was the case of the petitioner

that in view of the decision of the Hon'ble Supreme Court

in the case of State of Haryana vs. Piara Singh & Ors.,

reported in 1992 (4) SCC 118, where it is held that a

contractual employee need not be replaced by another

employee, the advertisement was not necessary and the

petitioner should have been continued. Further, the

petitioner without prejudice applied pursuant to the said

advertisement, but having received no response has made

representation which was not answered. Hence, the

petition.

4.1 According to Mr.Patel, learned counsel, even as per

the advertisement of 22.10.2021, the petitioner would not

have applied as she is beyond the age of 40, and

therefore, there was no reason for not continuing her on

contractual appointment.

5 Mr.Kurven Desai, learned Assistant Government

C/SCA/12989/2021 JUDGMENT DATED: 18/08/2022

Pleader for the State, drawing the attention of the Court

to the reply filed by Mr.Kuldeep Arya, Collector,

Gandhinagar, would submit that the tenure of the Law

Officers was purely contractual for a period of 11 months,

which was extended from time to time till 23.06.2021. No

further extension was made. Since the advertisement

dated 21.07.2021 did not fetch sufficient number of

applications, a fresh advertisement was issued on

22.10.2021 for appointment of Law Officers.

5.1 Mr.Desai, learned AGP, would submit that in light of

the decision of the Hon'ble Supreme Court rendered in

the case of Yogesh Mahajan vs. Professor, R.C.Deka,

Director, All India Institute of Medical Sciences,

reported in 2018 (3) SCC 218, a contractual employee

has no right for renewal and even if the services were

appreciated that itself would not be a ground to extend

the contract.

5.2 On instructions received from Mr.Raunaq Kapoor,

C/SCA/12989/2021 JUDGMENT DATED: 18/08/2022

Public Relation Officer, Gandhinagar, he states that even

the advertisement dated 22.10.2021 has become

academic as it could not be executed in light of the order

passed by this Court on 29.10.2021. Even otherwise, the

Collector, Gandhinagar, now intends to issue a fresh

advertisement for appointment of Law Officers on

contractual basis and the age limit would be 50 years and

the petitioner can apply for a selection when the

advertisement is so issued.

6 Having considered the submissions made by the

learned counsels for the respective parties, true it is in

light of the decision in the case of Yogesh Mahajan

(supra), that a contractual employee will not have a right

to continue in service once the contract tenure has ended.

In the facts of the present case, what is apparent is that

the Collector intends to engage a fresh contractual hand

as a Law Officer by issuing a fresh advertisement in due

course. Since the petitioner now would otherwise be

eligible in terms of the age, it is open for the petitioner to

C/SCA/12989/2021 JUDGMENT DATED: 18/08/2022

apply for the post of Law Officer with the Collector,

Gandhinagar.

It is clarified that as and when the petitioner so

applies for consideration in being appointed as a Law

Officer, the application so made shall be considered on

merits and also keeping in view the experience of the

petitioner. The application would, therefore, be

considered in accordance with law and on merits.

Further, it is also made clear that the fact that the

petitioner had filed her petition, shall not be treated as a

disqualification when such application is considered for

appointment.

With the aforesaid observations, the petition is

disposed of. Interim relief, if any, stands vacated. Rule is

made absolute to the aforesaid extent.

(BIREN VAISHNAV, J) BIMAL