SCA/8398/2008 11/ 11 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 8398 of 2008 ========================================================= P.L. MAHIDA - Petitioner(s) Versus STATE OF GUJARAT & 2 - Respondent(s) ========================================================= Appearance : MR AS SUPEHIA for Petitioner(s) : 1, MR SATYAM Y CHHAYA, AGP for Respondent(s) : 1, None for Respondent(s) : 2 - 3. ========================================================= CORAM : HONOURABLE MR.JUSTICE ANANT S. DAVE Date : 23/06/2008 ORAL ORDER
This
petition under Article 226 of the Constitution of India is filed by
the petitioner seeking regularisation of his services with continuity
from 01st July, 1989 in a Class-IV post in the pay scale
from 10th February, 2006 and to pay the arrears with 10%
interest.
2. It
is the case of the petitioner that the petitioner was appointed as a
part-time Class-IV employee from 01st July, 1989 and
served as such till 10th February, 2006 when his services
came to be terminated orally.
3. The
claim of the petitioner for regularisation is based on Government
Resolution dated 01st May, 2007 issued by Department of
Finance, State of Gujarat as ýSone-time measureýý. To regularise
services of Class-IV employees, certain parameters have been laid
down. The petitioner further claims regularisation of his service on
the basis of certain directions contained in the judgment dated 18th
September, 2006 delivered in a group of petitions alongwith Special
Civil Application No.4355 of 2006, where the petitioner and other
similarly situated part-timers filed writ petitions pursuant to their
oral termination in the year 2006.
3.1 According
to Shri A.S. Supehia, learned counsel for the petitioner, when the
scheme is framed by the respondent Government as ýSone-time measureýý
by Government Resolution dated 01st May, 2007 and pursuant
to certain directions issued by this court, the petitioner fulfilled
all relevant criteria mentioned in the above Government Resolution
for regularisation and a certificate dated 10th May, 2007
is issued by the District Planning Officer, District Kheda that since
01st July, 1989, the petitioner has rendered part-time
service and at the time of recruitment as a Sweeper, the petitioner
had passed Standard VIII examination and the above part-time
appointment was made by competent authority on a sanctioned post.
3.2 On
the above basis, it is submitted by learned counsel for the
petitioner that necessary directions be issued to the respondent
authorities to consider the case of the petitioner for regularisation
in a permanent establishment of the respondent authority.
4. Shri
Supehia, learned counsel has further relied on a decision of this
court produced alongwith the petition and reported in 2007 (1) G.L.H.
Page 88 and another decision of the Apex Court decided on 09th
October, 2007 in the case of U.P. STATE ELECTRICITY BOARD vs. POORAN
CHANDRA PANDEY AND OTHERS in Civil Appeal No.3765 of 2001 and
submitted that even as per para 53 of the decision of the
Constitution Bench of the Apex Court in the case of Uma Devi etc.,
the case of the petitioner deserves consideration. Learned counsel
further submitted that reasonableness and non-arbitrariness in
exercise of power by the authority are the hallmark of a fair
decision and as held by their Lordships in the case of U.P. State
Electricity Board, the decision of Uma Devi cannot be read like a
Euclid’s theorem and, therefore, this is a fit case to issue
appropriate directions for regularisation to the respondent
authorities.
5. Shri
Satyam Chhaya, learned AGP appearing for the respondent State has
drawn my attention to the certificate issued by the District Planning
Officer, District Kheda dated 10th May, 2007 and submitted
that nowhere such certificate prescribed that the initial recruitment
of the petitioner was in accordance with Recruitment Rules or even by
way of public advertisement or by summoning his name from the
Employment Exchange. Learned AGP has next submitted that the
Government Resolution dated 01st May, 2007 is a scheme
which lays down certain criteria for regularising services of
Class-IV employees and as per Criteria 1(2), the case of a part-timer
can be considered only if such part-timer was appointed after
following the procedure laid down under Recruitment Rules or at least
by sponsoring names from the Employment Exchange or by an agency
which is recognised by the Government. In the case of the
petitioner, no such procedure was followed when the petitioner was
appointed as a part-timer in the year 1989 and, therefore, neither
the petitioner deserves any consideration in accordance with the
above-mentioned Government Resolution nor any direction whatsoever,
in exercise of power under Article 226, can be issued by this court.
Shri Satyam Chhaya, learned AGP appearing for the State Government
has drawn attention of this court to various other decisions of the
Apex Court in the case of Indian Drug Pharmaceutical, Niraj Awasthi
and other such cases where the Apex Court has held that dehors
the Rules, no direction can be given by the High Court in exercise of
power under Article 226 of the Constitution of India.
6. Having
heard the learned counsel appearing for the parties, I am unable to
accept the submissions of learned counsel for the petitioner that the
case of the petitioner deserves to be considered for issuance of
appropriate direction to the respondent authorities for
regularisation of his part-time services. That a bare perusal of the
Government Resolution dated 01st May, 2007 reveals that
after taking into consideration various decisions of this court and
Apex Court, as ýSone-time measureýý, it was resolved by the
Department of Finance, State of Gujarat to consider case of Class-IV
employees for regularisation provided such Class-IV employees fulfill
the criteria mentioned therein.
7. That
criteria clause 1(2) are completion of 10 years of service as on 10th
February, 2006 after performing duties for six hours on a day and
completion of 10 years should not be by virtue of grant of any stay
or order of injunction by court of tribunal. Recruitment of such
part-timer and Class-IV employees ought to have been made at the time
of recruitment after following legal and valid selection procedure
and possessing requisite qualification as per the Recruitment Rules
at the time of appointment and such appointment is on the established
and vacant post.
7.1 The
reliance placed on the certificate dated 10th May, 2007
does not reveal anywhere that the appointment of the petitioner was
made by the competent authority after following the procedure laid
down under Recruitment Rules for filling up of the post of Class-IV
employees. Nowhere it is made out by the petitioner that the name of
the petitioner was sponsored from the Employment Exchange or the
recruitment was made after issuing public advertisement. Therefore,
the case of the petitioner is not covered by Clause 1(2) of the
Government Resolution dated 01st May, 2007 and, therefore,
it cannot be said that the petitioner fulfills all relevant criteria
for issuance of appropriate direction to the respondent for
considering his case for regularisation of service in accordance with
provisions of the above Government Resolution.
8. It
is true that in a matter of public employment, the authority has to
recruit an employee as per the Recruitment Rules framed by such
authority in consonance with the requirement of Article 14 of the
Constitution of India and any appointment of an employee in the
Department of the Government dehors
the Recruitment Rules and without even issuing public advertisement
will be per se illegal and violative of equity clause in the
matter of public employment, depriving other meritorious and equally
qualified candidates from seeking the employment. By keeping the
above concept, the Constitution Bench in the case of SECRETARY,
STATE OF KARNATAKA VS. UMA DEVI [(2006) 4 SCC Page 1] deprecated
the tendency of the Government authority to by-pass the Recruitment
Rules and employ the employees in various Departments of the
Government which result into litigious perseverance on the part of
the employees. This court has also taken a view in Special Civil
Application No.9262 of 1994 that in exercise of powers under Article
226 of the Constitution of India, no directions can be issued for
regularisation of service of an employee recruited dehors
the Rules and by way of a back-door entry.
8.1 As
regards the law in the matter of public employment in consonance with
Articles 14 and 16 of the Constitution of India and absorption,
regularisation or permanent continuance of temporary, contractual,
casual, daily wage or ad-hoc employees appointed/recruited and
continued for long time in public employment by not following regular
recruitment rules, the Apex Court in the case of SECRETARY, STATE
OF KARNATAKA VS. UMA DEVI (supra) cautioned the High Court in
exercising power under Article 226 of the Constitution of India for
issuing any direction or conferring permanent benefits of continuity
and granting permanent status.
8.1.1 The
Apex Court further took note that even the phenomenon of ‘litigious
employment’ had arisen due to issuance of such directions by the High
Court and only because an employee had continued under cover of an
order of the High Court, even for a long period of time, no such
directions of conferring permanency can be issued and, ultimately,
the Apex Court held that wide powers under Article 226 are not
intended to be used for the purpose of perpetuating illegalities,
irregularities or improprieties.
8.2 In
SURINDER PRASAD TIWARI VS. U.P. RAJYA KRISHI UTPADAN MANDI
PARISHAD AND OTHERS, reported in [2006] 7 SCC 684, the Apex
Court held that the contractual employee, who was appointed dehors
the constitutional scheme of public employment but continued in
service for 14 years because of interim order granted by High Court,
was not entitled to any right to be absorbed or made permanent in the
service.
8.3 In
STATE OF BIHAR AND OTHERS VS. PROJECT UCHCHA VIDYA, SIKSHAK SANGH
AND OTHERS, reported in [2006] 2 SCC 545, it was held by the Apex
Court that the regularization must be preceded by a legislative act
or in absence of legislation, by rules framed under Article 309
proviso and the decision of the Bihar State to establish large number
of High Schools in the State by ‘Project Schools’ Scheme by a
Circular and the employees of existing and new private schools
brought within ambit of such scheme, if regularized, was held to be
neither any legislation nor policy decision had been passed to that
effect and the directions were given to follow relevant rules.
Therefore, the case of the petitioners if examined with the purpose
of the scheme of providing non-formal elementary primary education to
the children of a particular strata of a society not from regular
teaching class of the primary school and serving on honorarium basis
for a few years, do not confer any legal right making it necessary
for this Court to issue a writ of mandamus for regularization and/or
absorption with the service of Education Department of the State.
8.4 The
equality clause contained in Articles 14 and 16 of the Constitution
must be given primacy. No policy decision can be taken in terms of
Article 77 or Article 162 of the Constitution which would run
contrary to the constitutional or statutory scheme. No
regularization is, thus, permissible in exercise of power conferred
under Article 162 of the Constitution if the appointments have been
made in contravention of the statutory rules. [See Post Master
General, Kolkata vs. Tutu Das [2007] 5 SCC 317].
8.5 In
PUNJAB WATER SUPPLY & SEWERAGE BOARD VS. RANJODH SINGH,
[2007] 2 SCC 491, the Apex Court held that long continuance does not
create an entitlement to regularization. It is further observed:
ýSRegularisation
cannot be a mode of appointment. A post must be created and/or
sanctioned before filling it up. The employees in question had not
been appointed by following the regular procedure, and instead they
had been appointed only due to the pressure and agitation of the
union and on compassionate grounds. There were not even vacancies on
which they could be appointed. Such employees cannot be regularized
as regularisation is not a mode of recruitment. If the
court/tribunal directs that a daily-rated or ad hoc or casual
employee should be continued in service till the date of
superannuation, it is impliedly regularising such an employee, which
cannot be done. Regularization can only be done in accordance with
the rules and not dehors the rules. The rules of recruitment cannot
be relaxed and the court/tribunal cannot direct regularization of
temporary appointees dehors the rules, nor can it direct continuation
of service of a temporary employee [whether called a casual, ad hoc
or daily-rated employee] or payment of regular salary to them.
Orders for creation of posts, appointment on these posts,
regularization, fixing pay scale, continuation in service,
promotions, etc. are all executive or legislative functions, and it
is highly improper for Judges to step into this sphere, except in a
rare and exceptional case. The courts must exercise judicial
restrain in this connection, and not encroach into the executive or
legislative domain. The tendency in some courts/tribunal to
legislate or perform executive functions cannot be appreciated.
Judicial activism in some extreme and exceptional situations can be
justified, but, resorting to it readily and frequently, as has lately
been happening, is not only unconstitutional, it is also fraught with
grave peril for the judiciary.ýý
9. Thus,
the petitioner fails to fulfill even the requirement of ‘one-time
measure’ Government Resolution and initial recruitment of the
petitioner was not either through Employment Exchange or under any
prevalent recruitment rules and, therefore, no directions can be
issued in exercise of powers under Article 226 of the Constitution of
India.
10. The
reliance placed on the decision of the Apex Court in Civil Appeal
No.3765 of 2001 was a case where the employees of the Society which
came to be absorbed in the U.P. State Electricity Board were treated
differently even after the absorption and in the backdrop of the
above facts, their Lordships have held that decision of Uma Devi
(supra) cannot be treated or to be read like Euclid’s theorem. Even
the latest decision of the Apex Court clearly reiterates what is laid
down in the case of Uma Devi (supra) and in the present case, when
the petitioner was not recruited after following relevant Recruitment
Rules prevalent at the time of his appointment in the year 1989, the
appointment of the petitioner is contrary to rules and against the
mandate of Articles 14, 15 and 16 of the Constitution of India. To
continue such petitioner in service will be contrary to the
directions of the Apex Court and it will be open for the respondent
authority to take appropriate action in accordance with law.
11. No
direction, as sought for, can be given to the petitioner in exercise
of power under Article 226 of the Constitution of India. The
petition, therefore, fails and is summarily rejected.
(
Anant S. Dave, J. )
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