Hasmukhbhai Babubhai Patel vs State Of Gujarat
2023 Latest Caselaw 2209 Guj

     C/SCA/17142/2019                                     ORDER DATED: 13/03/2023




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 17142 of 2019

                               With
 CIVIL APPLICATION (FOR VACATING INTERIM RELIEF) NO. 2 of 2021
         In R/SPECIAL CIVIL APPLICATION NO. 17142 of 2019
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                        HASMUKHBHAI BABUBHAI PATEL
                                  Versus
                            STATE OF GUJARAT
==========================================================
Appearance:
MR VAIBHAV A VYAS(2896) for the Petitioner(s) No. 1,2
MR JAY A. MEHTA, AGP GOVERNMENT PLEADER for the Respondent(s)
No. 1
MR HRIDAY BUCH(2372) for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                               Date : 13/03/2023

                             COMMON ORAL ORDER

1. The present petition is filed by the present petitioners

seeking following reliefs:-

9(A) direct the respondent authorities to regularize the services of the petitioners from the date of their initial appointment and further be pleased to give all consequential benefits to the petitioners, including regular pay-scale and allowances, and

(B) pending admission and final disposal of this petition, be pleased to restrain the respondent authorities from terminating the services of the

C/SCA/17142/2019 ORDER DATED: 13/03/2023

petitioners, and/or

(C) pending admission and final disposal of this petition, be pleased to direct the respondent authorities to maintain status quo as regards the service condition of the petitioners, and

(D) award the cost of this petition, and

(E) grant any other relief or pass any other order which the Hon'ble Court may consider as just and proper in the facts and circumstances of the case.

2. Considering the case of the petitioners in the petition

that the petitioners have challenged the so-called illegal,

arbitrary and discriminatory action on the part fo the

respondent authority, whereby the services of the petitioners

on ad-hoc basis are sought to be terminated and the

petitioners are sought to be replaced by another set of

contractual/ ad-hoc employees.

3. Heard Mr. Vaibhav Vyas, learned advocate appearing for

the petitioners; Mr. Hriday Buch, learned advocate appearing

for the respondent no.2 and Mr. Jay Mehta, learned AGP

appearing for the respondent no.1.

C/SCA/17142/2019 ORDER DATED: 13/03/2023

4. Mr. Vaibhav Vyas, learned advocate appearing for the

petitioners submit that though it is averred by the respondent

that the self finance department of the university is now

closed down, in fact, the department is operating and as per

the documents, which are annexed with the affidavit-in-

rejoinder, which clearly established that the said department

is functioning. He has further submitted that the respondent

authorities are trying to see that the employees like

petitioners are replaced by the other ad-hoc employees. He

has further submitted that in view of the various judgments of

this Court, the services of the petitioners cannot be

terminated in such illegal manner. He has relied on the

judgment of this High Court rendered in Special Civil

Application No.13200 of 2013 and allied matters, dated

31.01.2014 and has prayed that considering the case of the

petitioners, who had served more than one decade with the

respondent authority and that too, on the meager fixed pay

without any benefits available to regularly selected candidate,

the respondent authorities cannot be permitted to resort to

call the person to the aspect of contractual post and therefore,

C/SCA/17142/2019 ORDER DATED: 13/03/2023

he prays to allow the petition considering the materials

available in the matter.

5. Per contra, Mr. Hriday Buch, learned advocate

appearing for the respondent no.2 has drawn attention of this

Court to the affidavit-in-reply filed by the respondent no.2 -

the Registrar of University in wake of the subsequent

development. In addition to that, he has further drawn

attention of this Court to the fact that as the self-finance

department is closed down, the Civil Application is filed for

vacating of interim-relief, which is granted by this Court while

issuing notice vide order dated 04.10.2019.

6. Today, when the matter is called out, both - Special Civil

Application as well as the Civil Application are heard together

and argued for final disposal by the respective parties.

7. Mr. Hriday Buch, learned advocate appearing for

respondent no.2 has further drawn attention of this Court

towards the affidavit-in-reply and the documents annexed to

the affidavit-in-reply, more particularly, the agreement which

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is signed by the present petitioners. He has also submitted

that the petitioners while filing present petition, have not

produced those documents, which are annexed with the

affidavit-in-reply. He further submitted that the services of the

petitioners were purely on the contractual basis and

therefore, regularizing the same would be dehors the

principles of service jurisprudence. He has further submitted

that since the strength of the students is continuously

declining and due to paucity of funds, the self finance

programme department does not require the staff in the

Library and in the Computer Lab and as per the

communication, the mehkam has been decided to discontinue

any such contractual staff. He has further submitted that

considering the fact that the petitioner no.1 came to be

appointed on the post of Lab-Assistant purely on the

contractual basis with the self finance department of

answering respondent in the fixed pay for a period of 11

months and by virtue of an agreement only and petitioner no.2

on the post of Librarian in October, 2010 without there being

even any agreement and therefore, he has submitted that no

estate right can be created in favour of the petitioners as the

C/SCA/17142/2019 ORDER DATED: 13/03/2023

petitioners are appointed on the said post purely on the

contractual basis and in terms of contract agreement.

Therefore, he prays the petition deserves to be dismissed as

no relief can be granted and interim-relief granted earlier is

required to be vacated forthwith in view of subsequent

development.

8. Considering the rival submissions made at the bar and

also considering the fact that the petitioner no.1 is appointed

on the post of Lab-Assistant for the period of 11 months on

contractual basis and the petitioner no.2 is appointed on the

post of Librarian without there being any agreement,

moreover, it transpires from the record that the self-finance

department of the MCA programme of the University is now

closed down, however, the said fact is tried to be contested by

the learned advocate for the petitioners by relying on the

communication dated 24.02.2021 addressed by the Professor

and Head of the particular department and answer to that

contest, Mr. Buch has clarified that there is a self finance

department as well as regular government department and

therefore, that communication cannot have any barring in this

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petition and it remain that the department is now closed

down.

9. Considering the averments made in the petition as well

as affidavit-in-reply as well as affidavit-in-rejoinder and also,

considering the settled position of law by judgment of Hon'ble

Apex Court that the contractual employees cannot as a

matter of fact regularize, more particularly, on the basis of

long services. It is also now well-settled that under the

contractual employment, the services can be dispensed with

without notice at any stage and therefore, the present

petitioners cannot claim the right to be continued in the

service.

10. Mr. Buch has relied on the judgments reported in AIR

2006 SC 1806; AIR 2019 SC 2610 and AIR 2006 SC 3106,

which are certainly helpful to the case of the respondents, as

Hon'ble Apex Court has rightly observed that for contractual

appointment, it would not be open to agitate the grievance by

resorting Articles 14 and 16 of the Constitution of India and I

therefore found no reason for many grounds as the action of

C/SCA/17142/2019 ORDER DATED: 13/03/2023

the respondents authorities can be considered as in

accordance with settled position of law and also, in

consonance with the provisions of Constitution. Hence, there

is no extra ordinary powers under Article 226 of the

Constitution of India. Hence, the petition deserves to be

dismissed and accordingly dismissed. Notice discharged.

ORDER IN CIVIL APPLICATION:-

11. In view of main petition is disposed of, the Civil

Application does not survive and the same is accordingly

disposed,

(SANDEEP N. BHATT,J) A. B. VAGHELA