JUDGMENT
Ravi R. Tripathi, J.
1. Rule. With the consent of the parties, the matter is taken up for final hearing today.
2. Draft Amendment dated 9th May, 2001, Further Draft Amendment dated 16th May, 2001 and Draft Amendment dated 26th July, 2001 are granted.
3. The present Special Civil Application is filed by four petitioners. The case of the petitioners is that the petitioners were serving as daily wager Staff Nurse under respondent no.2 in Shardaben Manilal General Hospital and that they have completed 5 years and 900 days service and therefore, as per the policy decision of the respondent-Corporation, they are eligible and entitled for the regularisation order.
4. Mr. Gharaniya, learned Advocate appearing for the petitioners, submitted that the services of the present petitioners were terminated by an oral order on 10th April, 2000. It is the case of the petitioners that after terminating the services of the petitioners, the respondent-Corporation has continued juniors – daily wagers – Nurse in service and the names of as many as 11 such nurses have been set out in paragraph 5 of the petition. The names of other such 37 Nurses have also been pointed out in the Civil Application No. 6399 of 2001. Mr. Gharaniya submitted that the policy of the Corporation of regularising the employees, who have completed 5 years and 900 days service, is the policy decision and under that policy, the services of the present petitioners are required to be regularised.
5. It is required to be noted that the present petitioners have also filed a Special Civil Application No. 2355 of 2001, which came to be disposed of by this Court (Coram : Justice M.S. Shah), by an order dated 4th April, 2001, which is reproduced here under for ready perusal:
” The petitioners had made representation dated 22-1-1996 for their regularisation in service. The representation is at Annexure `E’ to the petition. It is the grievance of the petitioners that the aforesaid representation is not yet decided by the respondents and that, therefore, they are entitled to a writ of mandamus to direct the respondents to decide the representation.
2. While the grievance of the petitioners appears to be quite innocuous on the face of it, the averments made in para-7 of the petition indicate that the petitioners have also raised an industrial dispute and, therefore, the authorities may be feeling inhibited and on that ground, may not be taking the decision.
3. In the facts and circumstances of the case, it appears to the Court that it would be just and proper to dispose of this petition with a direction to the respondents to decide the petitioners representation at Annexrue-E to the petition and any further representation which the petitioners may file within two weeks from today. The representation shall be decided as expeditiously as possible and preferably within three months from the date of receipt of the supplementary representation. Pendency of any industrial dispute need not prevent the respondents from deciding the petitioner’s representation.
The petition is accordingly disposed of in terms of the aforesaid observation.
Direct Service is permitted.”
After the aforesaid order, a representation was made and that came to be decided by the Deputy Municipal Commissioner (West Zone & Health), wherein all the contentions of the petitioners are considered after setting out the contentions raised by the petitioners. The Deputy Municipal Commissioner has taken pains to consider all relevant aspects of the case and therefore, relevant portion of the said order is reproduced hereinbelow:
“After considering the aforesaid contentions raised by the petitioners, perusing the material on record in respect of their service, the relevant Circulars issued from time to time by the Ahmedabad Municipal Corporation and after carefully examining the policy of the Ahmedabad Municipal Corporation in respect of granting benefits arising out of the award given in Reference No. 179 of 1975 and considering the case law on the subject of regularisation and after perusing the judgement of the Hon’ble Supreme Court of India in Special Leave Petition (Civil) No.1090 of 1990 and 2317 of 1991 dated 23/7/1997, I find that the petitioners are not entitled to the benefits of the policy which was sought to be relied upon by them. This is so because firstly, the policy applies to making a daily rated workmen permanent after the daily rated workmen have performed the duties for five years or more in different sections of the Engineering Department of the Ahmedabad Municipal Corporation. Admittedly, all the petitioners are belonging to Class III and are appointed by way of stop gap arrangement on a leave vacancy purely on ad hoc basis and they have also accepted the said condition of appointment from the very first appointment. They are entitled to their freedom as they are not restrained from working elsewhere when they are not working on a leave vacancy in the hospital run by the Ahmedabad Municipal Corporation. They are free to take up any other kind of employment beyond their work hours with the hospital of the Ahmedabad Municipal Corporation. The Circulars issued very specifically do not encompass any other class of employees except the class four daily rated workmen of the Engineering Department of the Ahmedabad Municipal Corporation, which include daily wager majdoor and employees in the equivalent pay scale. The recruitment of Staff Nurses, a class III post, in the Shardaben General Hospital of the Ahmedabad Municipal Corporation is done after following the process of selection and which is prescribed. Applications are called for preparing the waiting list of Staff Nurses for the three Municipal Corporation Hospitals – L.G. Hospital, Smt. Shardaben General Hospital and the Nagari Hospital. Subsequently, a written test is conducted and the merit list is prepared according to the marks obtained by various candidates in the written test. The candidates after being placed in the order of merit list are given appointment in accordance with their rank in the merit list. The Roster Point is also considered while making appointment and principle on merit is not breached. The allegations that persons junior to the petitioners have been regularised and made permanent is not correct in view of the fact that the persons who are regularised are so done considering their merit numbers and the category to which they belong i.e. general or reserved. After examination of record it is noticed that there is no person similarly placed to the petitioners and who is junior to them who has been regularised and given benefits of a permanent Staff Nurse. As regards the Staff Nurse having obtained benefits under the Award passed by the learned Labour Judge, Ahmedabad, the same has been done in pursuance of the Award passed by the learned Labour Judge, Ahmedabad. The Ahmedabad Municipal Corporation has challenged the Award passed by the learned Labour Judge, Ahmedabad by filing Special Civil Application No. 3608 of 1998, which is admitted and pending final hearing in the Hon’ble High Court of Gujarat. The Circulars in question are not applicable to the Staff Nurses and the petitioners and, consequently, the petitioners are not entitled to the benefits accruing therefrom.”
6. Mr. Gharaniya submitted that the appointments of the petitioners started right from the year 1987 and for that, he has produced a statement at page 32, Annexure-A/3, which shows that petitioner no. 1, Shobhanaben Manilal, had been working since 1987 during different months for number of days mentioned therein. Mr. Gharaniya also submitted that on that very document, an endorsement is made, which is contended to have been an admission on the part of the authorities that the date of entry in the service is 01/10/1987, the date of completion of 5 years is 30/09/1992 and the date of completion of 900 days is 19/11/1991 and therefore, the date on which petitioner no. 1 is required to be made permanent is 01/10/1992. Mr. Gharaniya submitted that in case of other petitioners, similar statements are produced wherein also similar endorsements are made.
7. Mr. Panchal, learned Advocate appearing for the respondent-Municipal Corporation, invited the attention of this Court to a judgement of the Apex Court in Civil Appeal No. 1090 of 1990 in High Court Special Civil Application No. 7153 of 1989 between Ahmedabad Municipal Corporation vs. Virendrakumar Jayantibhai Patel, wherein the Apex Court has set out the facts in the first paragraph itself, which reads as under :
“The appellant (hereinafter referred to as the Corporation) is established and constituted under the Bombay Municipal Corporation Act, 1949 (hereinafter referred to as the Act). One of the duties assigned to the Corporation under the Act is to provide medical service to the residents of the Corporation. For that purpose, the Corporation has set up four dental clinics. The dentists attending the said clinics are the Corporation’s employees recruited through the positive act of selection as provided under the statutory rules framed in that regard. Whenever any doctor of the Corporation is on leave, the Corporation takes the service of private doctors only with a view that patients may not be inconvenienced. Such doctors in lieu of their services are paid their fee on daily basis. The respondent herein is a dental surgeon who was carrying on his private practice from private clinics. Since early seventies, the Corporation had been taking the services of the respondent for treating the patients whenever the Corporation’s dental surgeons were on leave. In the year 1984 the Corporation decided to fill the vacant posts of dental surgeons in its clinics and for that purpose issued an advertisement inviting applications to the said posts. The respondent amongst others, also applied in response to the said advertisement. However, the respondent was not selected by the Selection Committee constituted for that purpose on being unsuccessful in the said selection, the respondent raised a dispute claiming himself to be permanent dental surgeon in the staff of the Corporation. This dispute was referred to the Industrial Tribunal, Gujarat, under Section 10 of the Industrial Disputes Act for adjudication being reference No. (IT) 058 of 1984.
The case of the Union which sponsored the cause the respondent was that since the respondent has put 1034 days of service between 1978 and 1982 and as such in view of the award rendered by Industrial Tribunal. In case No. 179 of 1975 and the circulars issued in pursuance thereof, the respondent is entitled to be made permanent in the service of the Corporation. However, this was disputed by the Corporation. The Corporation submitted before the Tribunal that the respondent was not a workman covered under the award given in case No. 179 of 1975 and further the benefit arising out of the award given in reference No.179 of 1975 and the circulars issued in pursuance thereof, cannot be extended to the respondent as they are not applicable to the case of the respondent. However, the Tribunal relying upon the aforesaid award and the circulars issued by the Corporation held that the respondent is entitled to be made permanent in the staff of the Corporation. Aggrieved the Corporation challenged the said award in the High Court of Gujarat by means of a petition under Article 226 of the Constitution. The High Court dismissed the petition being of the opinion that the Tribunal after appreciating the evidence on record has recorded a finding that the respondent employee is a workman, having served for a requisite number of years, he entitled to the benefits of a permanent employee. Aggrieved, the applicant has come up in appeal before this Court.”
Mr. Panchal submitted that similar is the case with the present petitioners, who were appointed against leave vacancy. It is clear from the appointment order produced along with the Affidavit dated 4th May, 2001 filed by one Dr. A.D. Dave, Superintendent, Shardaben Chimanlal General Hospital, that the appointment is given at Smt. Shardaben Chimanlal Municipal General Hospital as Staff Nurse on absolutely temporary basis only for the periods which are mentioned against the names or till the date on which the person, who has proceeded on leave resumes, whichever is earlier. It is also stated in that order that the appointment is given only by way of stop-gap arrangement.
8. There is another affidavit filed by the same deponent, Dr. A.D. Dave, Superintendent, Smt. Shardaben Chimanlal General Hospital, dated 24th April, 2001 along with which one another appointment order is produced of petitioner no. 1 which is under the signature of the Superintendent, Smt. Shardaben Chimanlal General Hospital, and bears the date, 18th October, 1995. In that order, it is specifically mentioned that on account of Dodiya Geetaben proceeding on leave, you are appointed for a period from 14/10/1995 to 28/10/1995. It is also stated in the said order that in case the person who has proceeded on leave resumes duty prior to that date, in that event, from that date, the appointment shall come to an end. It is stated that the order is given by way of a stop gap arrangement and on absolutely temporary basis. In that view of the matter, the present petitioners have no case for regularisation. Mr. Gharaniya is not able to establish that the so-called policy is applicable to the present petitioners.
9. Mr. Gharaniya also pointed out that the Municipal Commissioner has issued an order, which bears the date, 5th November, 1993, whereby the persons, who were appointed as Case Writers by way of stop gap arrangement, were regularised. Mr. Gharaniya himself read that order wherein it is stated that it is pursuant to an order of an Arbitrator dated 23rd December, 1992, that such an order came to be passed. Mr. Gharaniya is not able to point out any order of Arbitrator in the present case and therefore, that order is of no help to the case of the present petitioners. The present petition is filed with misconception of law and it is nothing but a frivolous litigation and therefore, this petition is required to be dismissed with costs.
10. In the result, the petition is dismissed and costs of Rs.2500/- is awarded to the Corporation.
11. In view of the above order passed in the main Special Civil Application, there shall be no orders in Civil Application No. 6399 of 2001.