Bhavesh Gautambhai Chauhan vs The Registrar General, High Court ...
2023 Latest Caselaw 549 Guj

      C/SCA/10262/2021                                   ORDER DATED: 18/01/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 10262 of 2021
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                  BHAVESH GAUTAMBHAI CHAUHAN
                             Versus
          THE REGISTRAR GENERAL, HIGH COURT OF GUJARAT
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Appearance:
MR PRABHAKAR UPADYAY(1060) for the Petitioner(s) No. 1
MR RONAK RAVAL, AGP for the Respondent(s) No. 2
LAW OFFICER BRANCH(420) for the Respondent(s) No. 1
MS PJ DAVAWALA(240) for the Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 3
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 CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA

                                 Date : 18/01/2023
                                  ORAL ORDER

1. In the present writ petition, the petitioner is praying for issuance of a direction directing the respondents to consider the case of the petitioner for regularization of service for the post, on which he is working and further to direct to grant all the benefits, including the benefits of pay-scale and other incidental benefits at par with the permanent employees working on the post of Peon/Naik.

2. The petitioner was appointed on 03.05.2011 purely on temporary and ad hoc basis by way of stop gap arrangement for a period of six months. Thereafter, it appears that the service of the petitioner has been extended on various occasions intermittently. It is the case of the petitioner that he has been appointed by giving artificial break by the orders, as mentioned in paragraph No.5

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of the writ petition. He is also being paid fixed remuneration of Rs.14,654/- of Class-IV (inferior service)(Peon).

3. Learned advocate Mr.Upadhyay appearing for the petitioner has submitted that the petitioner is entitled to regularization in service since he has worked for more than 10 years under the respondent authority. He has submitted that the petitioner is also entitled to regular pay-scale, which has been given to the permanent employees working on the post of Peon. In support of his submissions, he has placed reliance on the order dated 06.03.2018 passed in Letters Patent Appeal No.1036 of 2016 and allied matters, against which the SLP being Special Leave Petition (Civil) Diary No.29316 of 2018 has been filed and the same was dismissed by the Apex Court vide order dated 27.08.2018. The reliance is also placed on the judgement of the Apex Court in the case of State of Punjab and Ors. vs. Jagjit Singh and Ors., 2015 12 S.C.C.775.

4. Per contra, learned AGP has submitted that merely because the petitioner has rendered considerable service of 10 years, the same would not entitle him to be regularized in service. He has submitted that the law on the issue of regularization is well settled and the petitioner would be governed by the terms and conditions of the appointment order.

C/SCA/10262/2021 ORDER DATED: 18/01/2023

5. Learned advocate Ms.Davawala appearing for the respondent No.1 has submitted that the petitioner having accepted his appointment with the terms and conditions as mentioned therein, cannot seek regularization of service.

6. Heard the learned advocates for the respective parties and also perused the documents as pointed out by them.

7. The aforementioned submissions and the averments made in the writ petition establish that the petitioner, who was appointed purely on stop gap arrangement and ad hoc basis, is seeking regularization of service. The appointment letter dated 03.05.2011, which incorporates various conditions, would suggest that the petitioner was appointed by way of stop gap arrangement for a period of six months only. The condition No.3 stipulates that he would be paid lump-sum fixed salary of Rs.3,500/-. The condition No.12 would be relevant, which reads as under:

"You shall not be entitled to claim regularization on the regular establishment of Labour Courts or the Industrial Courts in the State of Gujarat."

8. Having accepted such terms and conditions, the petitioner cannot claim regularization merely because he has rendered 10 years of service. The petitioner thus, who was appointed on the post of Peon (inferior service) Class-IV in the Industrial

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Court, Ahmedabad is bound by the terms and conditions of the appointment order.

9. At his stage, it would be apposite to refer to the decision of the Supreme Court in the case of Secretary to the Government School Education Department Chennai Vs. R.Govindaswamy and Ors. , 2014 (4) S.S.C. 769, wherein the Supreme Court has held thus :

"8. This Court in State of Rajasthan & Ors. v. Daya Lal & Ors., AIR 2011 SC 1193, has considered the scope of regularisation of irregular or part-time appointments in all possible eventualities and laid down well-settled principles relating to regularisation and parity in pay relevant in the context of the issues involved therein. The same are as under:

"8(i) The High Courts, in exercising power under Article 226 of the Constitution will not issue directions for regularisation, absorption or permanent continuance, unless the employees claiming regularisation had been appointed in pursuance of a regular recruitment in accordance with relevant rules in an open competitive process, against sanctioned vacant posts. The equality clause contained in Articles 14 and 16 should be scrupulously followed and Courts should not issue a direction for regularisation of services of an employee which would be violative of the constitutional scheme. While something that is irregular for want of compliance with one of the elements in the process of selection which does not go to the root of the process, can be regularised, back door entries, appointments contrary to the constitutional scheme and/or appointment of ineligible candidates cannot be regularised.

(ii) Mere continuation of service by a temporary or ad hoc or daily-wage employee, under cover of some interim orders of the court, would not confer upon him any right to be absorbed into service, as such service would be "litigious employment". Even temporary, ad hoc or daily-wage service for a long number of years, let alone service for one or two years, will not entitle such employee to claim

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regularisation, if he is not working against a sanctioned post. Sympathy and sentiment cannot be grounds for passing any order of regularisation in the absence of a legal right.

(iii) Even where a scheme is formulated for regularisation with a cut-off date (that is a scheme providing that persons who had put in a specified number of years of service and continuing in employment as on the cut-off date), it is not possible to others who were appointed subsequent to the cut-off date, to claim or contend that the scheme should be applied to them by extending the cut-off date or seek a direction for framing of fresh schemes providing for successive cut-off dates.

(iv) Part-time employees are not entitled to seek regularisation as they are not working against any sanctioned posts. There cannot be a direction for absorption, regularisation or permanent continuance of part-time temporary employees.

(v) Part-time temporary employees in government-run institutions cannot claim parity in salary with regular employees of the Government on the principle of equal pay for equal work. Nor can employees in private employment, even if serving full time, seek parity in salary with government employees. The right to claim a particular salary against the State must arise under a contract or under a statute." (Emphasis added)

9. The present appeals are squarely covered by clauses

(ii), (iv) and (v) of the aforesaid judgment. Therefore, the appeals are allowed. However, in light of the facts and circumstances of the case as Shri P.P. Rao, learned senior counsel has submitted that the appellant has already implemented the impugned judgments and does not want to disturb the services of the respondents, the services of the respondents which stood regularised should not be affected."

10. The Division Bench in the case of Babasaheb Ambedkar Open University Versus Dipesh Yashwantbhai Jani, rendered in 25.07.2022 in Letters Patent Appeal No.1092 of 2021 has reiterated thus:

C/SCA/10262/2021 ORDER DATED: 18/01/2023

"14 The decisions of the Hon'ble Supreme Court in the case of Secretary, State of Karnataka and others v. Umadevi and another and in the case of State of Karnataka and others v. M. L. Kesari and others (Supra), would not be applicable to the facts of the present case. Therefore, we are of the opinion that the appellant University had committed no error in terminating the services of the original petitioner in terms of the contract of appointment and, therefore, we also hereby held that the employee who is appointed on a particular post for a fixed period with fixed salary cannot claim regularization of his services on the ground that he continued on the said post for long duration as after the original petitioner was terminated from service, respondent No.4 who was appointed in his place was also appointed on fixed period of five years with fixed salary and upon completion of five years period, respondent No.4 has been appointed on regular basis. Therefore, it cannot be said that the Government Resolutions dated 15.5.2012 and 28.2.2013 are arbitrary and therefore the same cannot be quashed and set aside by directing University to reinstate the original petitioner and directing the University to take appropriate action for appointing the original petitioner on regular basis, as was done by learned Single Judge, contrary to the ratio laid down by the Hon'ble Supreme Court in the aforesaid decisions."

Thus, it is no more res integra, that an employee, who has been appointed on ad hoc, temporary, on stop-gap arrangement or on contractual basis, is not entitled to regularization only for the reason that he has been continued for a long period. The petitioner having accepted the terms and conditions of the appointment order, which mentions that he shall not claim regularization, cannot claim such benefit. The law is well settled in catena of judgements of this Court as well as the Apex Court that merely because rendered long period of service, the same would not entitle an employee for regularization or absorption on permanent basis.

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11. The petitioner is already being paid minimum wages of Rs.14,654/- as per the norms of the State Government and hence, he cannot claim regular pay- scale at par with the permanent employee, in wake of the fact that his appointment itself was made by way of stop gap arrangement.

12. With these observations, the writ petition fails. The same is hereby rejected. Notice is discharged.

                                                                      Sd/-     .
                                                              (A. S. SUPEHIA, J)
NVMEWADA