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LPA/1599/2009 6/ 6 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS
PATENT APPEAL No. 1599 of 2009
In
SPECIAL
CIVIL APPLICATION No. 5466 of 2008
With
CIVIL
APPLICATION No. 9307 of 2009
In
LETTERS PATENT APPEAL No. 1599 of 2009
For
Approval and Signature:
HONOURABLE
MR.JUSTICE D.H.WAGHELA
Sd/-
HONOURABLE
MR.JUSTICE J.C.UPADHYAYA
Sd/-
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
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 ?
1 to 5: NO
=========================================================
STATE
OF GUJARAT & 4 - Appellant(s)
Versus
NARENDRABHAI
JETHABHAI SOLANKIC/O MANJULABEN KANTI HARIJAN & 1 - Respondent(s)
=========================================================
Appearance
:
MR
NJ SHAH ASSTT GOVERNMENT PLEADER
for
Appellants : 1 - 5.
MR PINAKIN M RAVAL for Respondents : 1 -
2.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE D.H.WAGHELA
and
HONOURABLE
MR.JUSTICE J.C.UPADHYAYA
Date
: 16/11/2010
ORAL
JUDGMENT
(Per
: MR.JUSTICE D.H.WAGHELA)
1. The
impugned order dated 08.05.2008 of learned single Judge of this Court
is couched in the following terms:
The
petitioners were appointed in the year 1999 on part-time basis. It
is also made out that two posts are vacant on which the petitioners
can be appointed but, their appointment against the vacant posts is
not for 10 years, which is the requirement of the State Government’s
Circular. As and when the petitioners fulfill that requirement, the
State Government will consider their cases for being regularised. In
the meanwhile, no appointments should be made against those vacancies
because, the petitioners will be given first claim on those two
vacant posts.
2. By
order dated 10.05.2010 in civil application, ad-interim relief was
granted to stay execution of the impugned judgment and order. It is
stated at the bar by learned A.G.P. that, subsequent to admission of
the appeal and grant of ad-interim relief, the petitioners have
partly succeeded in another petition, being SCA No.2742 of 2009,
wherein order dated 16.06.2009 is made by this Court (Coram:
M.R.Shah, J.) in the following terms:
It
is reported that the respective petitioners as on today are
reinstated by the concerned hospital/trust. Under the circumstances,
no further order is required to be passed except observing that the
respective petitioners be continued as part-timer sweeper/peon on
the same terms and conditions on the day their services came to be
terminated. With these present
Special Civil Application is disposed of.
3. No
one is present for respondents, though served. It is clear and fairly
conceded that upon reinstatement of original petitioners, the
question of filling up the posts in the meantime did not arise, and
the respondents herein have continued to be employed by the
appellant. Therefore, the only contention of learned A.G.P. was that
the respondents having been irregularly appointed on part-time basis,
their services could not be regularized even after continuous service
of ten years in terms of Government Resolution dated 01.05.2007 and,
therefore, the direction to consider their case for regularization
was required to be set aside.
4. The
resolution dated 01.05.2007 relied upon for the appellant is
expressly based upon the judgment of the Supreme Court and this
Court. This Court has, in Jadav
Nikeshkumar Mafatlal v. State of Gujarat [2007 (1) G.L.H.88],
made the following pertinent observations, and that judgment is
admittedly accepted by the Government and the aforesaid resolution
clearly appears to have been based on those observations:
17.1 ………
Since
many of the petitioners employed for more than ten years and for six
hours or more per day are stated to have worked against sanctioned
posts, the respondents are required to consider such cases on the
basis of the facts and circumstances of each case. It may be
pertinent to add and observe that the State Government, while
prescribing the minimum rates of wages in scheduled employment under
the Minimum Wages Act, 1948, usually provide for payment of full
wages in case the hours of work exceed
five hours per day. Therefore, ideally, a part-time employee working
for six or more hours per day since more than
ten years should be considered as a full-time employee for the
benefit of regularization, if he is otherwise eligible and covered by
the exceptional clause and directions contained in paragraph 53, as
mentioned hereinabove. Age-bar cannot, in the nature of things, be
invoked in consideration of such cases and for effectuating the
mandate. Since the averments in particular petitions of the
petitioner actually working full time, though treated and branded as
a part-timer, are neither substantiated nor specifically traversed,
the respondents have to be left to consider such cases in light of
actual facts and the above direction of the Hon’ble Apex Court [in
Secretary,
State of Karnataka v. Uma Devi (2006) 4 SCC 1].
18. Protection
or injunction against termination of service is denied with the
clarification that it should not be understood to mean that all the
petitioners whose services are required and who are presently in
service, with or without an interim injunction of the court, have to
be necessarily discharged by the respondents. Since raison d’etre and
justification for the apprehension of huge future liabilities in
respect of such employees are removed by the Constitution Bench
judgment of the Supreme Court in Secretary,
State of Karnataka v. Umadevi (supra),
the respondents may as well consider the issue of redefining the term
and conditions of such contracts of service on a just and reasonable
basis.
Rule
is made absolute only to the aforesaid extent, with no order as to
costs.
5. In
the peculiar facts of the present case, setting aside the direction
to even consider the case of the respondents for regularization would
mean and amount to the respondents being permanently condemned to the
status of part-time
sweepers/peons on the same term and conditions
in terms of the latter order dated 16.6.2009 in SCA No.2742 of 2009.
If the appellant do not propose to subject the respondents to such
treatment, the only course open for the appellant would be to
terminate their service in accordance with law. Therefore, although
it is not obligatory upon the appellant to regularize service of the
respondents and it is not permissible for this Court to direct
regularization of their service in the face of Constitution Bench
decision of the Supreme Court in Secretary,
State of Karnataka v. Uma Devi
(supra), it has to be left to the discretion and good conscience
of the appellant to make appropriate order in respect of service
conditions of the respondents, for which the direction to consider
their case must be preserved. As observed in Jadav
Nikeshkumar Mafatlal v. State of Gujarat (supra),
absence
of protection or injunction against termination of service should not
necessarily mean that the employees whose services are required and
who are presently in service have to be necessarily discharged. It
is also suggested in that judgment that the Government may as well
consider the issue of redefining the term and conditions of such
contract of service on a just and reasonable basis.
6. Therefore,
in the facts and for the reasons discussed hereinabove, the appeal is
partly allowed so as to modify the impugned order to the extent that
the State Government will be at liberty to consider cases of the
respondents for redefining the conditions of their service, but the
respondents shall have no superior claim to permanent employment only
on the basis that they have completed ten years of service on
temporary and part-time basis against vacant posts. It may not be
out of place to mention the constitutional goal of securing economic
and social justice and the directive principles of state policy
enshrined in the Preamble, and Article 43 in particular, in the
Constitution. With these observations, the appeal is partly allowed
with no order as to costs. Civil Application does not survive and
stands disposed.
Sd/-
(
D.H.Waghela, J.)
Sd/-
(J.C.Upadhyaya,J.)
(KMG
Thilake)
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