Gujarat High Court
State Of Gujarat vs Mukundprasad Chandubhai Valand on 14 June, 2024
Author: Biren Vaishnav
Bench: Biren Vaishnav
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 1070 of 2011
In R/SPECIAL CIVIL APPLICATION NO. 9919 of 1995
With
CIVIL APPLICATION (FOR STAY) NO. 2 of 2011
In R/LETTERS PATENT APPEAL NO. 1070 of 2011
With
R/LETTERS PATENT APPEAL NO. 478 of 1995
In
R/SPECIAL CIVIL APPLICATION NO. 2207 of 1986
With
CIVIL APPLICATION (SCA & SA BR.) NO. 1 of 1995
In R/LETTERS PATENT APPEAL NO. 478 of 1995
In
R/SPECIAL CIVIL APPLICATION NO. 2207 of 1986
With
CIVIL APPLICATION (SCA & SA BR.) NO. 2 of 1995
In R/LETTERS PATENT APPEAL NO. 478 of 1995
In
R/SPECIAL CIVIL APPLICATION NO. 2207 of 1986
With
R/LETTERS PATENT APPEAL NO. 479 of 1995
In
R/SPECIAL CIVIL APPLICATION NO. 3775 of 1986
With
CIVIL APPLICATION NO. 1 of 1998
In R/LETTERS PATENT APPEAL NO. 479 of 1995
In
R/SPECIAL CIVIL APPLICATION NO. 3775 of 1986
With
CIVIL APPLICATION (FOR INTERIM RELIEF) NO. 1 of 1999
In R/LETTERS PATENT APPEAL NO. 479 of 1995
In
R/SPECIAL CIVIL APPLICATION NO. 3775 of 1986
With
R/LETTERS PATENT APPEAL NO. 481 of 1995
In
R/SPECIAL CIVIL APPLICATION NO. 2815 of 1983
With
CIVIL APPLICATION NO. 2 of 1997
In R/LETTERS PATENT APPEAL NO. 481 of 1995
In
R/SPECIAL CIVIL APPLICATION NO. 2815 of 1983
With
R/LETTERS PATENT APPEAL NO. 1082 of 2001
Page 1 of 23
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In
R/SPECIAL CIVIL APPLICATION NO. 2125 of 1992
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BIREN VAISHNAV
and
HONOURABLE MR. JUSTICE PRANAV TRIVEDI
==========================================================
1 Whether Reporters of Local Papers may be allowed NO
to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
==========================================================
STATE OF GUJARAT & ORS.
Versus
MUKUNDPRASAD CHANDUBHAI VALAND
==========================================================
Appearance IN LPA NO. 1070 OF 2011:
MS. MANISHA L SHAH, ADDITIONAL ADVOCATE GENERAL
WITH MS. JEENAL ACHARYA AND MR. ROHAN SHAH, ASST
GOVERNMENT PLEADERS for the Appellant(s) No. 1,2,3
MR KUNAL S SHAH(5282) for the Respondent(s) No. 1
Appearance IN LPA NO. 478 OF 1995:
MS. MANISHA L SHAH, ADDITIONAL ADVOCATE GENERAL
WITH MS. JEENAL ACHARYA AND MR. ROHAN SHAH, ASST
GOVERNMENT PLEADERS for the Appellant(s) No. 1,2,3
MS MEDHA PANDYA for the Respondent(s) No. 1
Appearance IN LPA NO. 479 OF 1995:
MS. MANISHA L SHAH, ADDITIONAL ADVOCATE GENERAL
WITH MS. JEENAL ACHARYA AND MR. ROHAN SHAH, ASST
Page 2 of 23
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GOVERNMENT PLEADERS for the Appellant(s) No. 1,2,3
MR YN RAVANI for the Respondent(s) No. 1
Appearance IN LPA NO. 481 OF 1995:
MS. MANISHA L SHAH, ADDITIONAL ADVOCATE GENERAL
WITH MS. JEENAL ACHARYA AND MR. ROHAN SHAH, ASST
GOVERNMENT PLEADERS for the Appellant(s) No. 1,2,3
MR PRABHAKAR UPADHYAYA for the Respondent(s) No. 1-6
MR KJ VYAS for the Respondent(s) No. 7
MR TR MISHRA FOR MR MEHBOOB QURESHI for the
Respondent(s) No. 8
Appearance IN LPA NO. 1082 OF 2001:
MR AS ASTHAVADI for the Appellant(s)
MS. MANISHA L SHAH, ADDITIONAL ADVOCATE GENERAL
WITH MS. JEENAL ACHARYA AND MR. ROHAN SHAH, ASST
GOVERNMENT PLEADERS for the Respondent(s) No. 1-4
==========================================================
CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
and
HONOURABLE MR. JUSTICE PRANAV TRIVEDI
Date : 14/06/2024
CAV JUDGMENT
(PER : HONOURABLE MR. JUSTICE BIREN VAISHNAV)
1. Letters Patent Appeals No. 481, 478, 479 of 1995
have been filed by the State challenging the oral
judgement dated 07/08.03.1995 passed by the learned
Single Judge allowing the petitions filed by the original
petitioners. Letters Patent Appeal No. 1070 of 2011 has
also been filed by the State challenging the oral order
dated 09.03.2010 passed by the learned Single Judge
who allowed the petition of the original petitioner in
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terms of the oral order dated 07/08.03.1995 which are a
subject-matter of challenge in the other appeals. Letters
Patent Appeal No. 1082 of 2001 has been filed by the
original petitioner challenging the order dated
24.02.1994 passed by the learned Single Judge dismissing
the petition in absence of the advocate and on merits.
2. Since common issues are involved in all these
appeals, they are taken up together and decided by this
common judgment.
3. The original petitioners before the learned Single
Judge were engaged as Clerks to carry out liquidation
proceedings of the respective societies in question. It
was the case of the petitioners before the learned Single
Judge that the District Registrar, Co-operative Societies
appointed Co-operation Officers (Liquidators) for carrying
out liquidation proceedings of various societies. A
circular was issued on 03.07.1986 by the Registrar, Co-
operative Societies inter alia stating that liquidation
proceedings initiated against the concerned societies
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under Section 107 of the Gujarat Co-operative Societies
Act be completed and the liquidation officers may engage
persons for discharging relevant functions or duties. The
District Registrars in turn appointed the petitioners as
Clerks to carry out the liquidation process of the
concerned co-operative society. The appointments were
made on a fixed pay basis with an understanding that the
salary would be paid from the funds of the society which
were in liquidation. Having worked for several years as
Clerks appointed by the liquidators, these petitioners
approached this court by filing respective petitions.
3.1 For the purposes of brevity, the prayers made by the
petitioner of Special Civil Application No. 2815 of 1993
(LPA No. 481/95) are reproduced hereinbelow:
"19. The petitioners, therefore, pray that :
a) Writ of mendemus or any other writ, direction
or order in nature of mendemus may kindly be
issued against the respondents directing them to
recognise the petitione as the employees of the
department from the date from appoknt- ment and
to extend them all the benefits that are being
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extended to the government employees.
b) The respondents be directed to raise the pay of
the petitioners so as to be equal with that of the
clerks doing the same duties in the department
and;
c) Pending hearing and final disposal of this
petition, the 3rd respondent be directed to pay
petitioner No. 1 to 6 the same emoluments as being
paid to the clerks in the department and 7th
petitioner, the peons pay in the department.
d) Any other relief as deemed fit may kindly be
granted.
e) To direct the respodents to treat the
petitioners as permanent employees/workman
having completed 240 days and they may further
be directed to retain the petitioners in service and
also to pay them the pay and allowances on the
same scale as being paid to other clerks in the
department and also to pay them arrears
forthwith."
3.2 The learned Single Judge by the judgement under
challenge dated 07/08.03.1995 allowed the petitions
giving the following directions:
"1. The respondents are directed to consider the
individual cases of the petitioners, frame an
appropriate scheme for regularization and/or
absorption of their services and post them at the
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places where the work is available while treating
them civil servants in the appropriate grade of
scales.
2. The respondents shall treat only those
employees as Government employees who are
appointed either by the Registrar or by the
Liquidator who himself is the Government
employee. It is clarified that if a Bank or a Lawyer
is a Liquidator and has appointed its/his staff to
carry out the work of winding up of society in
Liquidation, such staff will not be treated as
Government employees.
3. The respondents shall formulate an appropriate
scheme for regularizing and/or absorption in
services of such employees, including the
petitioners, in the light of observations made in this
judgment within a period of 3 months from the date
of receipt of writ of this Court.
Till the finalization of the scheme and
implementation thereof, the interim relief granted
by this Court to the concerned petitioners shall
continue. Rule in each of these petitions is made
absolute to the aforesaid extent with costs."
4. Ms. Manisha L Shah, learned Additional Advocate
General appearing with Ms. Jeenal Acharya and Mr.
Rohan Shah, learned AGPs made the following
submissions:
(I) That the co-operative societies against which
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the relief was prayed for were not 'State' within the
meaning of Article 12 of the Constitution of India.
The societies are distinct from the State. The
liquidation proceedings were carried out under the
provisions of the Gujarat Co-operative Societies Act,
1961 through the Registrars. The original
petitioners were engaged as Peons and Clerks by
different liquidators to assist in the liquidation
process. The appointments were made in line with
the requirement of the liquidators and they having
not being selected in accordance with the provisions
of the Gujarat Non-Secretriat Clerks, Clerk Typists
and Typists (Direct Recruitment Procedure) Rules,
1970 would not be said to be in employment of the
State Government. The learned Single Judge could
not have classified them as civil servants.
(II) That the work associated with the liquidation
was temporary and in fact the Registrar or the
District Registrar did not possess authority to
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appoint such individuals on government posts as
Clerks and Peons. The expenses incurred on
payment of salary which was a fixed amount was to
be charged to the liquidation process and was the
responsibility of the society undergoing liquidation.
(III) That the winding of process was to be
undertaken by anybody which could include banks
and it was entirely the discretion of the concerned
liquidator to appoint any person as Clerk, Peon or
Typist. There is no relationship of an employer-
employee between the State appellant and the
respondents. She would therefore submit that the
directions issued by the learned Single Judge to
frame a scheme though has been complied with
inasmuch as a scheme has been framed which is
placed on record, the directions of the learned
Single Judge are misconceived.
4.1 Ms. Shah, learned Additional Advocate General
would rely on the following decisions:
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R.N. Nanjundappa Vs. Thimmaiah T. reported in
1972 (1) SCC 409;
Kanakrai Bachubhai Joshi Vs. Junagadh District
Central Co- operative Bank Ltd. rendered in LPA
1061 of 2001 in SCA 2271 of 1991;
Official Liquidator Vs. Dayanand & Others reported
in 2008 (10) SCC 1;
Bhatt Snehaben Maheshkumar Vs. State of Gujarat
reported in 2010 SCC Online Guj 1827;
Babu Vs. State of U.P. & Ors. reported in 2016 SCC
Online All 201;
Ram Naresh Rawat Vs. Ashwini Ray reported in
2017 (3) SCC 436;
V.I. Khalifa Vs. Satubha Tanubhai Vaghela reported
in 1988 SCC Online Guj 147;
Thalappalam Service Co-operative Bank Limited
and Other Vs. State of Kerala and Others reported in
(2013) 16 SCC 82;
Union of India and Others Vs. Ilmo Devi and Another
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reported in (2021) 20 SCC 290;
R. Muthukumar & Other Vs. Chairman And
Managing Director TANGEDCO & Others reported
in 2022 SCC Online SC 151.
5. Mr. T.R. Mishra, learned advocate appears for Mr.
Mehboob Qureshi - respondent in Letters Patent Appeal
No. 481 of 1995. This was done in light of the order
passed in the petition filed by him namely SCA No. 4093
of 1996 which was disposed of by the observations of the
learned Single Judge, para 12 of which reads as under:
"12 I propose to dispose of this writ application by
observing that, if ultimately the scheme is finalized,
subject to the outcome of the appeals, which are
pending, and if the petitioner is covered by the said
scheme, then the benefit should go to him. It
appears that the apprehension of termination,
which was expressed by the petitioner, way back in
the year 1996, was not wellfounded. He has
continued in service till this date and I do not see
any reason why he should be discontinued all of a
sudden. Therefore, he shall continue in service on
the same terms and conditions. In future, if the
scheme takes shape and if the petitioner is entitled
to the benefit of the same, the authorities
concerned shall consider his case. "
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5.1 The said respondent was thereafter joined in the
appeal by virtue of a Civil Application filed by him being
Civil Application No. 111 of 2018. Mr. Mishra therefore
would make the following submissions:
5.2 That the concerned respondent was appointed by
the District Registrar on 15.12.1990 and has since been
working till date. He is being paid a sum of Rs.8000/- per
month. He would place reliance on a decision in the case
of Daily Rated Casual Employees under P&T Department
through Bharatiya Dak Tar Mazdoor Manch vs. Union
of India and Others [(1988) 1 LLJ 370] to submit that
the respondent is entitled to minimum of payscale and
also entitled to absorption in accordance with the
directions of the learned Single Judge.
5.3 Relying on the decision in the case of Gandaram
and Ors. vs. MCD and Ors. Reported in 1988(2) LLJ
100, he would submit that a scheme ought to be framed
as directed by the learned Single Judge and absorption
benefits be given to the respondent who has been
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working on a fixed pay for over 34 years. He would also
place reliance on the following decisions:
Uttar Pradesh Land Development Corporation and
Another vs. Mohammad Kurshid Anwar & Ors.
Reported in 2010(7) SCC 739;
Mineral Exploration Corporation Employees Union
vs. Mineral Exploration Corporation Ltd. reported in
AIR SCW 3865;
Pravinkumar vs. State of Uttar Pradesh reported in
2004(1) LLN 129;
Gujarat Maritime Board vs. Ashokkumar Ijjatrai
Anjaria rendered in Letters Patent Appeal No. 269 of
2002;
Secretary, State of Karnataka & Ors. vs. Umadevi
and Ors. reported in 2006(4) SCC 1;
Oil and Natural Gas Corpn. Ltd. vs Engineering
Majdoor Sangh reported in 2005(2) GLH 703;
Central Inland Water Transport Corporation Ltd. vs.
Brojo Nath Ganguly reported in 1986(3) SCC 156;
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Government of India & Ors. vs. Court Liquidators
Employees Association reported in AIR 2000 SC 405;
5.4 Mr. Mishra would further submit that the
respondents are entitled to the benefits of not only equal
pay for equal work but to be considered as civil servants
and to give the benefits as if they are government
employees.
6. Written submissions have been filed on behalf of Ms.
Medha Pandya, learned advocate appearing for
respondents in Letters Patent Appeal No. 478 of 1995. In
context of each of the respondents, she would submit that
they had worked as Clerks attached to the office of the
liquidator without any break and as the Division Bench
had not granted any stay against the order of the learned
Single Judge the benefits of the draft scheme placed on
record is a mere eye wash. The respondents are not
being given any retirement benefits though they have
now after rendering more than 20 years of service, have
retired. She would submit that the work being of
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perennial nature, the directions of the learned Single
Judge ought to have been complied with, the respondents
ought to have been treated as civil servants and be paid
terminal benefits.
7. Mr. Y.N. Ravani, learned advocate appearing on
behalf of original petitioners in SCA No. 3775 of 1986
would adopt the submissions made by Mr. Mishra,
learned advocate and submitted that the original
petitioners had prayed for regularization and despite no
stay for several years now, their services were not
regularised nor were they given the status of a civil
servant. The respondents were continued on meagre
amount of Rs.300/-. The respondents have passed the
age of superannuation and no terminal benefits have been
given. The scheme is merely an eye wash.
8. Mr. K.J. Vyas, learned advocate for the concerned
respondents in Letters Patent Appeal No. 481 of 1995
would make similar submissions.
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9. Mr. Prabhakar Upadhyay, learned advocate for
respondents no. 1-6 in Letters Patent Appeal No. 481 of
1995 would submit that the concerned respondents were
terminated in the year 1987 which order was subject-
matter of challenge in Special Civil Application No. 6313
of 1987. All the respondents have reached the age of
superannuation. He would submit that the appointments
were made in accordance with the procedure established
and therefore it cannot be said that they were back door
entries. He would reiterate the submissions of Mr.
Mishra, learned advocate that at best they were irregular
appointments and not illegal appointments.
10. Mr. Kunal Shah, learned advocate appearing in
Letters Patent Appeal No. 1070 of 2011 for the
respondents would submit that the respondents were
appointed in around 1980 and continued to work till the
year 2019. He would reiterate the submissions made by
learned counsels for the respondents. Reliance was
placed on a decision of the Apex Court in the cases of
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Mahanadi Coal Fields vs. Brajrajnagar Coal Mines
Workers' Union [Civil Appeal No(s). 4092-
4093/2024] and Vinod Kumar & Ors. Etc. vs. Union
of India & ors. [SLP(C) Nos.22241-42 OF 2016)].
11. Having considered the submissions made by the
learned advocates for the respective parties, in context of
the prayers made in the petition, though the learned
counsels for the respective parties initially wanted to
argue on the question of maintainability of the petitions in
support of which several decisions were relied upon by
Mr. T.R. Mishra, learned counsel for the respondents, we
had at the outset made it clear that we were deciding the
appeals on merits in context of the directions issued by
the learned Single Judge without getting into the question
of maintainability particularly when more than two
decades have lapsed when the issue was initially raised
by filing the petitions in 1983.
12. What is evident from the perusal of the appointment
orders placed on record in the petitions is that the
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District Registrar of Co-operative Societies in order to see
that the concerned society's liquidation process is carried
out in the manner in accordance with the provisions of
the Act appointed such petitioners on the respective
positions of Peons and Clerks. The relevant portion of the
affidavit-in-reply filed by the State in Special Civil
Application No. 2815 of 1993 (LPA No. 481/95) reads as
under:
"Thus the Registrar can appoint the
liquidators to do the work of winding up the
societies and it is entirely at the discretation of the
concerned liquidator how to do this work of
winding-up i.e. to appoint the staff etc., Thus the
concerned liquidator may appoint staff (Clerks) to
assist him in the work of winding-up as per his
requirements, depending upon the load of the
work. Therefore, the staff appointed by the
concerned Liquidator for his assistance and his
requirement canno be said to be the staff of the
Government by any stretc of imegination. Because,
(i) this staff is appointed by concerned liquidator
and not by the third respondent of the Government.
Therefore the concerned liquidator is the
appointing authority, and not the respondent no. 3
or the State Government. And as I have stated
herein above once the Liquidator is given some
work of the winding up the societies the Liquidator
then it is for him to do that work and for him to
appoint the staff clerks, etc., depending upon the
load of work and the requirements.
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(ii) Moreover, this staff so appointed by the
concerned Liquidator cannot be said to heve been
appointed by the respondent no. 3 or the State
Government, as they are not appointed/recruited as
per any recruitment rules, which otherwise they
would have been recruited as per the centralise
recruitment scheme and after following the proper
procedure of the recruitment like other Govt.
department.
(iii) Similarly neither their appointment is made on
the posts sanctioned by the Government nor their
salary is paid from the Government ex-chequer.
However, I may clarify that the Registrar has
been given the powers of the General Supervision
and control under the Act because, these are the
co-operative societies and therefore in order to
keep check on the winding up proceedings and also
on the liquidation expanses, the Registrar is given
this power.
Therefore, the interpretation southt to be
convassed by the petitioners cannot be sustained
by any stretch of imagination.
4. With reference to para, 1 and 2 I deny that the
petitioners have been working as liquidation clerk
under the third respondent. As I have stated
hereinabove, they are appointed by the concerned
liquidator and are working under then and
therefore they cannot be said to be Govt. servant
by any stretch of imagination. And as I have
already dealth with the same in detail I do not
repeat the same for the sake of bravity.
5. With reference to para. 3 I say that I do not offer
any remarks as it pertains to their personal affairs.
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6. With reference to para, 4 I say and submit that
as I have stated hereinabove the liquidators are
appointed U/s. 108 of the Act, and any person can
be appointed as the liquidator (either the Govt.
officers or some private Professionals or the Bank
etc.,) I further say that as I have already stated, the
Government in order to expedite the work of the
liquidation as appointed some of its officers as
Liquidators to do this work of liquidation
exclusively. Therefore once the liquidator is
appointed it is his discretation and he may appoint
the staff to assist him in the work of winding-up
(Liquidation work) as per his requirements.
I further say that the liquidator is allowed to
charge some amount for the liquidation work and
that amount is debited to the accounts of the
concerned society which is to be wound up and the
concerned liquidator may appoint some staff as per
the requirements to assist him. Thus these
expenses are also not paid from the Government
Ex-chequer, However in order to keep some check
on this liquidation proceedings and the expenditure
thereon, the Registrar the respondent no. 3 herein
has been given the powers of over all supervision
and control by the act and the liquidators have to
work under general supervision of the Registrar
and they have to obtain the sanction for this
expenses of the liquidation work.
I further say and submit that the duties and
functions enumerated herein are in fact the
functions and duties of the Liquidator and not that
of the petitioners. The clerical staff like the
petitioner have to assist the liquidator."
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13. Therefore, what is borne out from the extract of the
reply reproduced hereinabove is that the respondents can
certainly not be termed as civil servants. In the case of
Dayanand and Others (supra), the Apex Court was
considering the issue on somewhat similar circumstances
and after considering the case law on regularization as
set out in various judgements referred to and relied on
the aspect of legitimate expectation, the Apex Court held
as under:
"114.By applying the ratio of the aforementioned
judgment to the facts of this case, we reiterate that
the respondents cannot invoke the doctrine of
legitimate expectation. At the cost of repetition, it
needs to be emphasized that the respondents were
employed by the Official Liquidators as additional
staff pursuant to the sanction accorded by the
concerned Courts. The conditions of their
appointment clearly envisaged cessation of
employment at the end of fixed tenure or on
completion of liquidation proceedings. Of course,
as it later turned out, the respondents were made
to work in relation to different liquidation
proceedings and for that purpose, the term of their
employment/engagement was extended from time
to time and they continued in service for many
years in the same capacity. However, no material
has been placed before this Court to show that any
promise was made or any assurance was held out
to the respondents by any competent authori9ty of
the Government of India for their absorption in the
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regular cadres.
115. There is nothing in the language of Rule 308
of the 1959 Rules from which it can be inferred
that those employed as additional staff in
connection with the liquidation proceedings will, in
future, be absorbed in the regular cadres. The
1978 as also the 1999 Schemes are merely
illustrative of compassionate approach adopted by
the Government of India for facilitating absorption
of the company paid staff against the sanctioned
posts to the extent of 50% vacancies in the direct
recruitment quota. These schemes cannot be read
as a charter for legitimating the claim of company
paid staff to be absorbed in the Government service
de hors availability of vacancies, more so when the
Government has taken a rational policy decision to
reduce direct recruitment to various services in a
phased manner.
116. In our opinion, any direction by the Court for
absorption of all company paid staff would be
detrimental to public interest in more than one
ways. Firstly, it will compel the Government to
abandon the policy decision of reducing the direct
recruitment to various services. Secondly, this will
be virtual abrogation of the statutory rules which
envisages appointment to different cadres by
direct recruitment.
117. Before parting, we consider it necessary to
take cognizance of the fact that in compliance of
order passed by Calcutta High Court in Writ
Petition No.211 of 2001, the Government of India
created 51 posts for absorption of staff employed
by the Court Liquidator. However, that cannot be
made basis for granting relief to the respondents
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because creation of those posts was clouded by the
threat of contempt, for which proceedings had
been initiated by the aggrieved employees."
14. In light of the aforesaid, the appeals are allowed.
The judgement dated 07/08.03.1995 passed by the
learned Single Judge allowing the petitions filed by the
original petitioners is hereby quashed and set aside.
Since we are allowing the Letters Patent Appeals filed by
the State, Letters Patent Appeal No. 1082 of 2001 is
dismissed.
(BIREN VAISHNAV, J)
(PRANAV TRIVEDI,J)
DIVYA
