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SCA/11108/1998 1/ 4 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 11108 of 1998
For
Approval and Signature:
HONOURABLE
MR.JUSTICE KS JHAVERI
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ? Yes
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
SURESHKUMAR
HIRALAL DARJI - Petitioner(s)
Versus
STATE
OF GUJARAT & 2 - Respondent(s)
=========================================================
Appearance
:
MR
SHAILESH C PARIKH for
Petitioner(s) : 1,
MR JASWANT K SHAH AGP for Respondent(s) : 1,
MR
HS MUNSHAW for Respondent(s) : 2,
RULE SERVED for Respondent(s) :
3,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date
: 26/04/2010
ORAL
JUDGMENT
1.0 When
the matter was admitted way back in the year 1998, following order
was passed.
Mr.
Shailesh Parikh, ld. Counsel for the petitioner has submitted that
this petition is exactly identical to Special Civil Application No.
1902 of 1997. Rule. Notice as to interim relief returnable on 28th
January, 1999. To be heard with Special Civil Application No.
1902/1997.
2.0 It
is required to be noted that the Special Civil Application No. 1902
of 1997 is disposed of by this Court ( Coram: MS. JUSTICE R.M.
DOSHIT) vide order dated 18.09.2006 which is reproduced as under:
Heard the learned advocates.
The
petitioner, a former employee of the respondent-District Panchayat,
Surat [hereinafter referred to as, the District Panchayat ]
seeks reinstatement and regularization in service.
It is not in dispute that the petitioner was appointed by
the Executive Engineer, Roads & Building Department,
District Panchayat, Surat as a Work-charge Karkun temporarily for a
period of two months from 25th February, 1982 to 25th
April, 1982. The said arrangement continued for a pretty long
time. However, since the year 1995, the petitioner’s service had been
discontinued. Feeling aggrieved, the petitioner has preferred the
present petition.
Mr. Parikh has submitted that the petitioner was not regularized in
service only on the ground that he had not approached the Court of
law and obtained order in his favour. He has submitted that
similarly situated employees of the District Panchayat were,
pursuant to the order dated 15th November, 1988 of the
Hon’ble Supreme Court, given the benefit of regularization in
service. The said benefit, however, has been denied to the
petitioner.
It appears that a group of employees of the District Panchayat had
sought regularization in service. The claim made by the said
employees was rejected by this Court. The Hon’ble Supreme Court by
its Order dated 15th November, 1988 recorded that,
..Though they were not appointed in accordance with the
procedure prescribed by the recruitment rules, namely, through the
District Selection Committee. We have considered all the facts and
circumstances of the case. It seems to us just and proper that out of
these Appellants who also the Respondents referred to hereinbefore,
those who have not appeared as yet before the Selection
Committee should be given a chance to appear before the
Selection Committee and in case some of them have become age barred,
the Authority concerned will relax the age bar and permit them to
appear before the ensuing selection by the Selection Committee. Those
who are qualified and selected by the Selection Committee will have
their service regularized. So far as the question of continuity of
service is concerned, it will be open to the authority to consider
and decide the same. The authority concerned will of course leave out
the artificial breaks in service for short periods.
It is not in dispute that the
present petitioner was neither the petitioner nor the respondent
before the Hon’ble Supreme Court. It is also not in dispute that
during his long service from the year 1982 to 1995, the petitioner
never applied for selection through the District Panchayat
Service Selection Committee. Mr. Parikh has relied upon
the communication dated 17th
April, 1989 sent by the Deputy Executive Engineer, Panchayat [R&B]
Sub-Division, Valod addressed to the Executive Engineer, District
Panchayat. It appears that pursuant to certain information sought by
the Executive Engineer, District Panchayat, Surat, the
concerned Deputy Executive Engineer had furnished
detailed information of SSC passed work-charged Karkuns working under
him; one of them being the petitioner. However, it is far from truth
that the said information was sent in compliance with the aforesaid
directions issued by the Hon’ble Supreme Court. There is nothing on
record to suggest that the petitioner was called upon to appear
before the District Panchayat Service Selection Committee nor did the
petitioner ever bother to undergo the recruitment procedure conducted
by the District Panchayat Service Selection Committee. Besides, the
respondent has filed counter affidavit stating that the petitioner
was appointed temporarily on work charge basis. On completion of
the concerned project, his service was not continued further.
Be that
as it may, it is not disputed that the petitioner is out of
Panchayat service since the year 1995. It is also not disputed that
the appointment of the petitioner was temporary and was contrary to
the statutory recruitment rules. The petitioner had not been selected
by the District Panchayat Service Selection Committee. In absence of
proper recruitment, the petitioner’s claim for reinstatement
or regularization in service is not tenable. Further, by now,
the petitioner has attained the age of 45 years and the petitioner is
out of service of the District Panchayat for last twelve years.
Therefore also, the petitioner cannot be ordered to be reinstated in
service.
In above
view of the matter, the petition is dismissed. Rule is discharged.
The parties shall bear their own cost.
3.0 In
that view of the matter, this Court is of the opinion no
further order is required to be passed. Accordingly, petition stands
disposed of. Rule is
discharged with no order as to costs. Interim relief, if any, stands
vacated.
4.0 A
copy of the order dated 18.09.2006 passed in Special Civil
Application No. 1902 of 1997 shall be kept along with this order.
(K.S.JHAVERI, J.)
niru*
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