Gujarat High Court
State Of Gujarat vs Kanakrai J Parekh Died Through Lhr on 11 September, 2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 50 of 2002
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STATE OF GUJARAT & ORS.
Versus
KANAKRAI J PAREKH DIED THROUGH LHR & ORS.
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Appearance:
MS. ROSHANI PATEL, AGP for the Appellant(s) No. 1,2,3
MR NISHITH ACHARYA for MR VH KANARA(1881) for the Respondent(s)
No. 1.1,1.2,1.3
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 11/09/2024
ORAL ORDER
1. On formulating following questions of law as substantial
questions of law, the Second Appeal filed u/s 100 of the CPC
was admitted on 7.5.2002:-
"(1) Whether the learned appellate Judge has erred
in law in firstly holding that the work charge
establishment and its employees do not warrant
regular appointment and doing so whether it was
justified to yet hold the respondent's relieving order
as illegal and void? - Negative
(2) Whether the learned appellate Judge has
committed serious error of law in declaring the
relieving order of the respondent illegal in spite of
the fact that the entire establishment and its
employees are constituted only for work charge
basis? - Affirmative
(3) Whether the learned Appellate Judge has
committed grave errors of law in not correctly
interpreting the circulars and validity of the
recruitment scheme as declared by the government?"
- As per final order
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2. The facts giving rise to filing of present Second Appeal
are as under:-
2.1 Kanakrai Jaganth Parekh- deceased respondent original
plaintiff had applied for employment with defendant no.3-
Executive Engineer, Salinity Control Division No.1, Veraval
somewhere in 1977. The plaintiff was appointed as work
charge clerk by defendant no.3 vide office order dated
10.09.1989 for a period of 29 days. As the appointment was
given on ad-hoc and on temporary basis the plaintiff continued
the job only in his capacity as an ad-hoc and temporary
appointment. However, the Government by its order dated
31.011984, passed an order to relieve the plaintiff as junior
clerk from 31.011984. Thereafter he has worked as work
charge employee from 01.02.1984. Thereafter, plaintiff was
not given regular employment and his service was terminated
from 06.10.1986 and one month notice of termination was
given in this behalf. Being aggrieved and dissatisfied with the
said action the plaintiff filed suit before the Civil Court,
Veraval for declaration and injunction. The employee has
expired and his heirs are on record.
3. In nutshell, the respondent Kanakrai Parekh had filed
Regular Civil Suit No.9 of 1999 [Old case No.149 of 1989]
with the relief of declaration that the decision taken by the
appellant No.3 under the instruction of appellant No.2 to
terminate the services of the respondent is to be declared as
null and void and the respondent plaintiff be permitted to
continue on the service. The suit was dismissed by the
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learned trial Court. Against that, first appeal was preferred.
In the first appeal, the learned appellate Court passed the
following order:-
"Work-charged employees are not supposed to have
such conditions of service that he is at the whim and
caprise of the employer. He need not be a siap slave
of Superintending Engineer. He mast have some
humane and decent conditions of service because he
is indisputably a Govern- ment servant. After all the
recommendations of the Second Pay Commission
giving further benefits are extended to them. In
matter of pay they are brought on par with other
emp. loyees of the Government serving in comparable
cadres. They eam leave and it became apparent while
granting interim relief in this case that leave record
was maintained. Power to terminate service could be
exercised on some rational grounds such as the work
on which his salary was charged has come to an end,
or his services are no more available. Even in that
case, I would presently point out that discharge from
service should be on the well recognised principle in
industrial laws that last come first go. Present action
is utterly arbitrary and cannot be sustained."
4. Heard learned advocates for the respective parties.
5. It is an admitted position that respondent plaintiff has
expired long back ago. To arrive at the aforesaid final order
holding that the respondent plaintiff retained his service as
Work Charge Clerk on the work charge establishment, the
learned trial Court gave following reasons:-
"9. It further appears that as per the instructions given
in letter Exh.47, the defendant No.3 had arranged
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interview for the selection of Junior Clerk on adhoc basis
and the Plaintiff alongwith names of candidates were
called from Employment Exchange and were called for
attending the interview.. Exh.34 is Interview letter
dtd.20.08.79. It further appears that thereafter, the
pleintiff was given appointment as a Junior Clerk for 29
days period by order dtd.10.09.79 Exh.35 and there-
after his service was breaked for 1 day and thereafter,
he was given another appointment for 29 Anys, 3months
and such period, periodically on adhoe basia. Referring
to Exh.49, it appears that by order dtd.24.10.79, of the
defendant No.3, the Plaintiff was given appointment
from dtd.15.10.79 till next order as Junior Clerk on
adhoc basis. Referring to Exh.51 and other documents, it
appears that thereafter also, the Services of the Plaintiff
was discontinued and fresh orders were given and that
way, the Plaintiff had served till did.31.1.84 as Junior
Clerk.
10. Referring to Exh.43, it appears that by order
dtď.31.1.84, the defendant No.3 had relieved the
Plaintiff from Junior Clerk by assigning reason that Shri
C.P. Patel, Junior Clerk selected by Centralised Recruit
Scheme is appointed by the department and in the same
order, the plaintiff was given appointment as Work-
Charge employee on Work-charge establishment on
adhoc basis. Thereafter, the plaintiff had served with the
defendant department till dtd.06.10.86 and by letter dtd.
06.10.86 Exh.45 (Exh.60 is also same letter), the
plaintiff was served with the Notice for 1 month and he
as was informed thatthis services is not required, he is
relieved from the service as Work-charge Clerk and 1
month notice is given for the same. After receiving that
notice, the plaintiff had filed suit for challenging his
termination.
11. Referring to the appointment order of the plaintiff
Exh.35 dtd.10.09.1979, it appears that his first
appointment as a Junior Clerk was totally on adhoc basis
and it was mentioned in the order that whenever the
regular candidate selected by the Centralised Recruit
Scheme would be available, at that time, the services of
the plaintiff will be terminated. The Plaintiff had served
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as Junior Clerk continuously by periodical different
orders of the defendant No.3 till dtd.31.1.84, but he was
not regularly appointed candidate and he was not the
candidate selected by the Centralised Recruit Scheme
and, therefore, he had no right to continue in service as
Junior Clerk and, therefore, the order of the defendant
No.3 dtd 31.1.84 by which the services of the plaintiff
was terminated as Junior Clerk was correct, legal and
executable and, therefore, there is no defect or illegality
in termination order dtd.31.1.84 of the defendant No.3.
The regular recruited candidate Shri C.P. Patel selected
by Centralised Recruit Scheme was become available
are he was given appointment and, therefore, the
plaintiff was relieved as Junior Clerk and, therefore,
there was no requirement to give prior notice to the
plaintiff before terminating his service and no
opportunity of hearing was required to be given to the
plaintiff.
12. From dtd.01.02.1984, the next stage of the services
of the plaintiff was started. By order dtd. 31.01.1984
Exh.43, plaintiff was given appointment on adhoc basis
as Work-charge Clerk on Work-charge establishment
and as per that order, the plaintiff had continously
served with the department till dtd.06.10.86. Referring
to Exh.43 it appears that the appointment of the plaintiff
was on adhoc basis and the plaintiff was not regularly
selected candidate and, therefore, the plaintiff had got
no right to continue his service as Work-charge Clerk
and the defendant department was empowered to
relieve the plaintiff from his service whenever such
requirement arises and no opportunity of being hearing
was required before relieving means terminating the
services of the plaintiff. But, in present case, it is the
case of the plaintiff that other Work-Charge Clerks
which were on Work-charge establishment and who
were Juniors to him had not been disturbed by the
department and the plaintiff who was Senior to them is
discriminated and is terminated by the department.
Therefore, that question is required to be considered.
13. The plaintiff had alleged in the suit pleint that Shri
H.K. Pandit and Shri Kherbhai had been appointed in the
year 1985 and they were Juniors to the plaintiff. But they
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were continue in service as Work-charge Clerk and the
plaintiff though he was Senior, his services is
terminated. In reply to that allegation, the defendants
had contended in written statement that Shri H.K.
Pandit and Shri Kherbhai had been selected by the
Centralised Recruit Scheme and, therefore, their
services were not terminated though they were Juniors
to the plaintiff. The Learned Trial Court had considered
that fact and held that Shri H.K. Pandit and Shri
Kherbhai are regularly selected candidates and,
therefore, they are continue in service and there is no
discrimination in it. But, situation is changed during the
vendency of this appeal. The Plaintiff/Appellant has
produced Seniority List dtd.04.10.1991 at Exh.30 by
obtaining the permission of this Court under the
Provisions of 0.41, R.27(1)(2)(a) of C.P.C. My
predecessor brother Judge has passed order for granting
permission for the production of the same as the
Learned Advocate of the defendants/respondents had no
objection for exhibiting the documents. Therefore,
during the pendency of the Appeal, the Seniority List
dtd. 04.10.1991 E1.30 hes beenproduced in the appeal.
14. The learned advocate of the appellant has argued
that at the time of filing of the suit and during the
pendency of the suit, the plaintiff had no knowledge
about his place on the Seniority List And, therefore, he
wes not aware whether other persons other than Shri
H.K. Pendit and Shri Kherbhai are continued in service
though they were Juniors to the plaintiff. After receiving
the Seniority List Exh.30, plaintiff has come in the
knowledge that tl.. plaintiff was Senior most Work-
charge Clerk and there were many Juniars Work-charge
Clerks in the Work-charge establishment. But, other
Juniors were retained in the service and the plaintiff
(and Smt. V.C. Dave) were relieved by order
dtd.6.10.1986 Exh.45 by making discrimination against
them. He has further argued that after receiving the
Seniority List Exh.30, it is very clear that the plaintiff
was Senior most Work-charge Clerk ta on Work-charge
establishment and he was empowered to continue in
Service and the Junior most Work-charge Clerks were
required to be terminated. But, they are retained and by
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making discrimination against the plaintiff, his services
is terminated and, therefore, the order Exh.45 is illegal,
null and void.
15. Referring to Exh.30 Seniority List, it clearly
appears that the Plaintiff was appointed on dtd.1.2.84
and he was Senior Host Work-charge Clerk in the Work-
charge establishment. It further appears that there were
about 27 work-charge clerks who were Juniors to the
plaintiff on dtd.6.10.1986 when the order Exh.45 was
passed. Out of that Shri II.K. Pandit and 10herbhai were
regular recruited candidates. But, all Juniors were not
reguler recruited candidates, and, therefore, if the
exigences arise for relieving the Work-charge Clerks
from the Work-charge establishment, at that time, the
defendant No department was required to relieve the
Work-charge Clerks who were most Juniors and last
come first go rule was required to be applied. But, that
is not done by the department. In written statement of
the suit, it is not the stand of the department that
requirement for shortening the staff was arise and,
therefore, all work-charge clerks who were not regularly
appointed were terminated. The plaintiff was Senior
most and was standing first in the Seniority List and,
therefore, the plaintiff could not be terminated by
retaining any other Vork-charge Clerk (who is not
regularly selected). Therefore, it appears that the order
Exh. 45 terminating the services of the plaintiff is
discriminatory order and is illegal and not executable."
6. In nutshell, since the respondent plaintiff has been
retained in the service in a capacity of Work Charge Clerk, the
learned appellate Court came to the conclusion that
termination of the service of the respondent plaintiff being
senior as a Work Charge Clerk in absence of termination of
junior work charge clerk, could not be terminated and upon
such findings, the learned appellate Court passed the above
stated order.
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7. What could be significant to notice that the learned
appellate Court continued the service of the respondent
plaintiff as Work Charge Clerk on the work charge
establishment with the clarification that he is not a regular
appointee. So, what could be noticed that the learned
appellate Court while permitting the respondent plaintiff to
continue his service as Work Charge Clerk on the work charge
establishment never passed any judgment or decree
regularizing his services.
8. The above order passed by the learned appellate Court
has never been challenged before the higher forum by the
respondent plaintiff and as such, it attained finality as far as
respondent plaintiff is concerned. Thus, in nutshell, the
service status of the respondent plaintiff remains throughout
as Work Charge Clerk in work charge establishment and since
he has expired during the service, nothing remains to decide
the Second Appeal and considering this development, the
three substantial questions of law formulated at the time of
admission of present Second Appeal now do not survive.
9. Resultantly, the Second Appeal fails and stands
dismissed.
10. R & P to be sent back to the concerned Court.
(J. C. DOSHI,J)
SHEKHAR P. BARVE
