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LPA/2394/2010 8/ 8 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS
PATENT APPEAL No. 2394 of 2010
In
SPECIAL
CIVIL APPLICATION No. 13510 of 2008
With
CIVIL
APPLICATION No. 12480 of 2010
In
LETTERS PATENT APPEAL No. 2394 of 2010
For
Approval and Signature:
HONOURABLE
MR.JUSTICE V. M. SAHAI
HONOURABLE
MR.JUSTICE G.B.SHAH
=================================================
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 ?
=================================================
PREETA
FRANCIS - Appellant(s)
Versus
MAHESH
JETHNAND MULCHANDANI & 3 - Respondent(s)
=================================================
Appearance
:
MR RJ OZA for Appellant(s) :
1,
RULE SERVED for Respondent(s) : 1 - 2, 4,
MR TR MISHRA for
Respondent(s) : 1,
MR DHAVAL D VYAS for Respondent(s) :
3,
=================================================
CORAM
:
HONOURABLE
MR.JUSTICE V. M. SAHAI
and
HONOURABLE
MR.JUSTICE G.B.SHAH
Date : 25/04/2011
ORAL
JUDGMENT
(Per
: HONOURABLE MR.JUSTICE V. M. SAHAI)
1. We have heard Mr R.J.
Oza, learned counsel for the appellant, Mr T.R. Mishra, learned
counsel for respondents No.1 and 2 and Mr Dhaval Vyas, learned
counsel for respondent No.3. This intra court Letters Patent Appeal
has been filed challenging the judgment of learned Single Judge dated
30.09.2010 passed in Special Civil Application No.13510 of 2008 by
which the learned Single Judge allowed the writ petition partly and
set aside the order passed by the respondent No. 3 Kandla Port Trust
dated 19.8.2008 appointing the present appellant on permanent basis
on the post of Junior Clerk/Typist. However, the learned Single Judge
has directed that the case of the appellant was required to be
considered as per seniority of Messengers by the Kandla Port Trust in
accordance with law.
2. The learned counsel for
the appellant has urged that the appellant has been appointed by way
of direct recruitment as clerk, therefore, the seniority list of
Messengers was not relevant to his case.
3. It is always open to a
class IV employee/messenger to appear in any written examination or
interview for direct appointment and once he is appointed after
following the procedure prescribed by law, he has a right to the
post. From the order of the learned Single Judge, it is clear that
the appointment was given to the appellant as Messenger on
compassionate ground. Thereafter, without inviting applications by
advertisement in the newspapers appointment of the appellant by way
of direct recruitment has been made by the respondents de hors
the Rules without following any procedure prescribed by law. The
findings recorded by the learned Single Judge in the impugned
judgment from paras 8 to 12 is extracted as under:
“8. Heard
learned advocates appearing on behalf of the respective parties at
length. At the outset, it is required to be noted that initially
respondent No.2 was appointed as a Messenger – Class IV
employee on compassionate ground in the year 2001 and as per the
rules and regulations, she came to be confirmed/her services were
regularized as Messenger. That thereafter, without following any
procedure and/or even interview, respondent No.2 was appointed in the
year 2002 as Junior Clerk/Typist – Class III employee on purely
adhoc basis for temporary period of 85/90 days with a specific
condition that on the basis of the said order, she cannot claim any
regular appointment. The appointment came to be extended from time
to time. It appears that thereafter, number of representations were
made and considering the same, respondent No.2 came to be reverted
and the Union raised industrial dispute against the said reversion
and it was sought to be contended on behalf of the Union that
pursuant to the circular dated 30.07.2002, respondent No.2 submitted
the application and her case was considered. Considering the
proceedings before the Assistant Labour Commissioner (Central), it
appears that the stand of respondent No.1 was just contrary to their
stand in the present petition. It was specifically the case on
behalf of respondent No.1 before the Assistant Labour Commissioner
(Central) that the contention of the Union that circular inviting
application from the employees
was issued, is not correct. It was also the case on behalf of
respondent No.1 that “on the basis of details furnished by the
Deputy Conservator, respondent No.2 – Kumari
Preeta Francis was appointed as Junior Clerk/Typist on
adhoc basis on fix pay for a period of 90 days by order
No.GA/PS/1403/330dated 13.09.2002 and the said appointment was made
without interview and on a fixed pay and further on the condition
that the same does not confer any right for regular appointment.
Kumari Preeta Francis accepted the above appointment on the above
terms and the said appointment was extended for further period by the
department concerned”. It was also the specific case on behalf
of respondent No.1 before the Assistant Labour Commissioner (Central)
that “in the case of Ms. Preeta Francis, she was regularized
initially on the post of Messenger in the month of December 2001,
being a compassionate appointee and at that time she was not a
graduate. Since she was confirmed in the post Class IV i.e.
Messenger, her status of compassionate appointee to get preference to
go to higher post after obtaining graduate ceased to exist and she
will come on common pool of Messenger alongwith other departmental
candidates for the purpose of promotion and for this reason, she was
not regularized in the post of Junior Clerk.” Despite the
above, some settlement took place between the Union and the
Management before the Assistant Labour Commissioner (Central)
collusively and thereafter, the impugned order came to be passed, the
settlement cannot bind the petitioners, as they were not party to the
proceedings before the Assistant Labour Commissioner (Central). Even
otherwise, on the basis of such a
settlement, respondent No.2 cannot be appointed on the post of Junior
Clerk/Typist, which otherwise she is not entitled to.
9. Considering
the case on behalf of the respondents, it appears that according to
respondents, it is neither the case of direct recruitment to the post
of Junior Clerk/Typist nor it is a case of promotion within 10%
quota. According to the respondents, she is appointed on
compassionate ground on the post of Junior Clerk/Typist. Once,
respondent No.2 was appointed as a Messenger on compassionate ground,
considering her qualification at the relevant time (at the relevant
time, respondent No.2 was not graduate, which was required for the
post of Class III) and when her services came to be regularized as
Messenger, there is no question of again appointing respondent No.2
as Junior Clerk/Typist on compassionate ground. The aforesaid is
absolutely illegal and contrary to the policy and rules &
regulations of respondent No.1.
10. It
appears that respondent No.1 has tried to change their stand from
time to time. It is to be noted that after respondent No.2 was
appointed as Messenger on compassionate ground in the year 2001,
thereafter, respondent No.2 came to be appointed as Class III –
Junior Clerk/Typist on purely adhoc and temporary basis for 85/90
days and on certain terms and conditions and one of the condition is
that on the basis of such order, she will not claim any appointment
on regular basis. The said order came to be accepted by her. That
the said period of appointment came to be extended from time to time
and thereafter all of a sudden, under the guise of some settlement
between the Union and the Management before the Assistant Labour
Commissioner (Central), the impugned order came to be passed. It is
an admitted position that at the relevant time, when respondent No.2
was appointed as adhoc on Class III post, no selection procedure was
followed and even interviews were also not taken. It is to be noted
that it is the specific case on behalf of the respondents that
appointment of respondent No.2 is neither as a direct recruitment nor
by way of promotion. Under the circumstances, the impugned order
passed by respondent No.1 appointing respondent No.2 on permanent
post as Junior Clerk/Typist in the pay scale of
Rs.4300-120-5260-130-8120, is absolutely illegal and arbitrary, which
cannot be sustained and which deserves to be quashed and set aside.
11. Now,
so far as the second prayer of the petitioners to promote the
petitioners on the post of Junior Clerk/Typist is concerned, the same
is required to be considered by respondent No.1, after following due
procedure and as per the rules & regulations for which
straightway no order can be passed.
12. In
view of the above and for the reasons stated above, petition succeeds
in part. The impugned order passed by respondent No.1 dated
19.08.2008 appointing respondent No.2 on permanent basis on the post
of Junior Clerk/Typist in the pay scale of Rs.4300-120-5260-130-8120,
is hereby quashed and set aside and her case is required to be
considered along with other Messengers as per the seniority list of
the Messengers. So far as the prayer of the petitioners to direct
respondent No.1 to promote them as Junior Clerk/Typist by way of
promotion is concerned, respondent No.1 to consider the case of the
petitioners and other Messengers for promotion to the post of Class
III (within 10% quota) in accordance with law and after following due
procedure and as per the seniority list at the earliest. Rule is
made absolute to the aforesaid extent. No costs.”
The learned Single Judge has
rightly come to the conclusion that under the guise of settlement
arrived at between the representative of the Union and the
Management, the management could not appoint the appellant on the
post of Junior Clerk/Typist by following the procedure prescribed by
law for direct recruitment. The appellant could not be promoted as
Clerk/Typist jumping the seniority list of Messengers. The appellant
was appointed in view of the settlement dated 26.6.2003 entered into
between the Union and the Kandla Port Trust in the proceedings before
Conciliation Officer under section 12 (p) of the Industrial Disputes
Act, 1947 illegally. The learned Single Judge had rightly quashed
the appointment of the appellant. We do not find any illegality in
the impugned order passed by the learned Single Judge.
3. In the result, this
appeal fails and is dismissed accordingly.
4. In view of the order
passed in the Appeal, Civil Application No.12480 of 2010 does not
survive and is accordingly disposed of. Rule is discharged. Interim
relief, if any, stands vacated.
[V
M SAHAI, J.]
[G
B SHAH, J.]
msp
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