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SCA/11040/2008 4/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 11040 of
2008
=========================================================
PORBANDAR
DISTRICT PANCHAYAT & 1 - Petitioner(s)
Versus
BHARAT
J KHODA - Respondent(s)
=========================================================
Appearance :
MR
HS MUNSHAW for Petitioner(s) : 1 - 2.
None for
Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE AKIL KURESHI
Date
: 05/09/2008
ORAL
ORDER
Petitioners
have challenged various orders passed by the Courts below. However,
the main challenge is to an order dated 1.8.2008 passed by Principal
District Judge, Porbandar passed in Civil Misc. Application No.1 of
2008 by which the said application of the petitioners came to be
dismissed.
The
litigation has a longish history. Respondent herein is an employee
of the erstwhile Junagadh District Panchayat. He had filed a Civil
Suit seeking regularization employment being Regular Civil Suit
No.76 of 1987, After the suit was dismissed, the employee filed
Regular Civil Appeal No.15 of 1989 before the appellate Court which
disposed of appeal in following terms:
ORDER
The
present appeal is hereby partly allowed.
The respondents
are hereby ordered to give opportunity of being selected though due
procedure to the plaintiff and till the compelition of said
procedure they shall not terminate the services of the plaintiff.
The respondents are hereby ordered to regularize the services of the
plaintiff after following due procedure.
Judgment and
decree passed by the learned trial Judge is modified accordingly.
Parties to bear
their own costs of this appeal.
Decree be drawn
accordingly.
Pronounced in
open Court to day this 12th day of April, 1991 at
Porbandar .
It is not in
dispute that the above directions of the appellate Court have so far
not been implemented. The employee, therefore, preferred execution
proceedings and his execution application No.7 of 1993 came to be
disposed of by an order dated 10.2.2005 passed by learned Principal
Senior Civil Judge, Probandar. On the said application learned Judge
passed an order dated 10.2.2005 and directed the appellants herein
to file a report whether the judgment has been complied with or not.
Ultimately, the learned Judge passed an order dated 30th
September, 2005 and gave following directions:
ORDER
The
application Exh.13 is hereby allowed.
The defendants
are directed that earlier this Court has given the direction on
10.2.2005 to the defendants to follow same strictly as well as the
direction given by the Appellate Court in R.C.Exe.No.15 of 1989
within three months from the date of this order and the defendants
are also directed to produce his compliance report before this Court
on or before 31.12.2005 in view of above.
Yadi be sent to
the defendant.
No order as to
cost of this application.
Pronounced in
open Court today .
Against the said
order dated 30th September, 2005, the petitioners herein
preferred Special Civil Application No.25844 of 2006 in which
initially while issuing notice on 12th December, 2006,
stay also came to be granted in favour of the petitioners. The
petition, however, came to be disposed of by an order dated
27.11.2007. The petitioners were permitted to withdraw the petition
for availing alternative remedy and petitioners were directed to pay
cost of Rs.5,000/-.
4.1 Upon this
Court disposing of Special Civil Application No.25844 of 2006 in
above manner, the petitioners preferred Civil Misc. Application No.1
of 2008 before the District Court which came to be disposed of by
the impugned order dated 1.8.2008 and by the said order, the
District Court while rejecting the application of the petitioners
required that the execution be proceeded expeditiously. At that
stage, the petitioners have approached this Court.
It is not in
dispute that the order passed by the appellate Court on 12th
April, 1991 in favour of the respondent herein has become final and
was never challenged. Thus, since 1991, the respondent was directed
to be considered for regularization and it was provided that he
shall be regularized in service after following due procedure.
Admittedly, so far these steps have not been taken by the
petitioners. On behalf of the petitioners it was, however, contended
that earlier for want of vacancy and thereafter, on account of ban
from the Government, the petitioners have not undertaken any
recruitment process. Therefore, the directions could not be complied
with.
During the
pendecy of the above proceedings, the new district of Porbandar has
been created and it is not in dispute that certain vacancies have
arisen. Even otherwise, it was impossible to believe that it was not
possible to comply with order for a period of nearly 18 years, and
there were no retirements, termination, resignation or dismissals.
Upon reading the directions of the appellate Court, it is clear that
regularization of the respondent herein was not linked necessarily
with the petitioners undertaking regular selection. The case of
regularization of the respondent was to be taken up as directed by
the Court and if it was necessary, the petitioners should have done
so separately. Insofar as the defence of the petitioner for not
complying with the directions of the appellate Court is concerned, I
therefore see no validity. The impugned order dated 1.8.2008,
therefore, suffers from no illegality. The petition deserves to be
dismissed.
Learned advocate
for the petitioners, however, submitted that Courts below are
pressing hard for execution of the orders. He, therefore, prayed
that sometime be granted to the petitioners to comply with the
directions. This request is accepted. The petitioners shall have
time upto 31st December, 2008 to complete the procedure
and fully comply with the directions of the Courts below.
The petition is
disposed of accordingly.
(AKIL KURESHI,
J.)
ashish//
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