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CA/12494/2010 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL
APPLICATION No. 12494 of 2010
In
LETTERS
PATENT APPEAL (STAMP NUMBER) No. 2183 of 2010
In
SPECIAL
CIVIL APPLICATION No. 1046 of 1998
WITH
LETTERS
PATENT APPEAL (STAMP NUMBER) No. 2183 of
2010
=========================================
RAMESHBHAI
BABUBHAI THAKORE - Applicant(s)
Versus
STATE
OF GUJARAT & 2 - Respondent(s)
=========================================
Appearance :
MR
CB DASTOOR for
Applicant(s) : 1,
MR N J SHAH, AGP for Respondent(s) : 1 - 2.
MR
VIRAL V DAVE for Respondent(s) :
3,
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE JAYANT PATEL
and
HONOURABLE
MR.JUSTICE J.C.UPADHYAYA
Date
: 19/01/2011
ORAL
ORDER
(Per
: HONOURABLE MR.JUSTICE JAYANT PATEL)
The
present application is for condonation of delay of 1138 days in
preferring the appeal against the order dated 01.08.2007 passed by
the learned Single Judge of this Court in Special Civil Application
No. 1046 of 1998.
Considering
the facts and circumstances, it appears that when this Court had
issued rule, the amount of Rs. 2500/- was ordered to be deposited
with the Gujarat State Legal Services Authority.
The
contention of the learned counsel for the appellant is that the
amount deposited is towards the probable cost for the delay, and
hence, this Court may take the sympathetic view. He also submitted
that the main letters patent appeal be simultaneously heard on
merits as he is ready for such purpose. Hence, in order to see that
the merits of the matter may not be frustrated on account of delay,
we have also heard learned counsel for the applicant on merits of
the letters patent appeal.
If
the explanation given in the application for condonation of delay
is considered as it is, it is apparent that there is no sufficient
explanation for condonation of such a long delay of 1138 days, and
hence, delay does not deserve to be condoned.
Heard
learned counsel appearing for the appellant on the merits of the
appeal. If the prayers made in the petition are considered as it is,
they are on the premise that respondents have illegally appointed
certain persons and the petitioner-present appellant, is seeking the
same treatment. The another prayer in the petition is that the claim
of the petitioner is for having priority than the those persons who
are, as per the petitioner, illegally appointed by way of back-door
entry and; the third prayer is that the appointment of those persons
be declared as illegal and in violation of Articles 14 and 16 of the
Constitution.
The
learned Single Judge has dismissed the petition on the ground that
the persons, whose appointment is challenged, are not impleaded as
the party, and therefore, the petition has been dismissed. As such,
when the prayer is made for seeking a declaration that the
appointment made of certain persons be declared as illegal, those
persons are necessary parties to the proceedings and without their
presence, the relief cannot be considered. Hence, the discretion
exercised by the learned Single Judge for dismissal of the petition,
since the necessary parties to the proceedings were not joined,
cannot be said as erroneous.
Apart
from the above, even if the reliefs prayed in the petition are
considered as it is, the petitioner is seeking equal treatment at
par with those who are illegally appointed, as per the petitioners
themselves. It is well settled position of law that Articles 14 and
16 cannot be invoked for putting the case at par with illegal
action. If the appointment of those persons were illegal as per
the petitioner, the petitioner would not be entitled to such relief.
Further, the petitioner was working on purely temporary and
ad-hoc basis and no right can be read with the petitioner for
permanency benefits or regularization and or absorption, as sought
to be canvassed.
In
view of the above, we find that there is no case on merits even in
the letters patent appeal. Hence, no useful purpose would be served
in condoning the delay. Hence, the application for condonation of
delay is rejected. Rule is discharged.
As
the delay has not been condoned, Letters Patent Appeal (Stamp) No.
2183 of 2010 would not survive and shall stand disposed of
accordingly.
[JAYANT
PATEL, J.]
[J.C.UPADHYAYA,
J.]
JYOTI
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