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SCA/2467/2011 9/ 9 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 2467 of 2011
For
Approval and Signature:
HON'BLE
SMT. JUSTICE ABHILASHA KUMARI
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ? No
2
To be
referred to the Reporter or not ? No
3
Whether
their Lordships wish to see the fair copy of the judgment ? No
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 ? No
5
Whether
it is to be circulated to the civil judge ? No
=========================================================
VAGHELA
USHABEN DAHYABHAI - Petitioner(s)
Versus
STATE
OF GUJARAT THROUGH DIRECTOR OF MUNICIPALITIES & 1 - Respondent(s)
=========================================================
Appearance
:
MR
HARNISH V DARJI for
Petitioner
MR MAULIK G NANAVATI, ASSTT. GOVERNMENT PLEADER for
Respondent:1
MR DEEPAK P SANCHELA for
Respondent:2
=========================================================
CORAM
:
HON'BLE
SMT. JUSTICE ABHILASHA KUMARI
Date
: 12/05/2011
ORAL JUDGMENT
Rule.
Mr.Maulik G.Nanavati, learned Assistant Government Pleader, and
Mr.Deepak P.Sanchela, learned advocate waive service of notice of
Rule on
behalf of respondents Nos.1 and 2 respectively. On the facts, and in
the circumstances of the case, and with the consent of the learned
advocates for the respective parties, the petition is being heard
and finally decided, today.
This
petition, under Article 226 of the Constitution of India, has been
filed with the following prayers:
“(A) Admit
and allow this Special Civil Application.
(B) Allow
this Special Civil Application and be pleased to hold action of
respondent authority in not regularizing services of petitioners as
bad, illegal and arbitrary and further be pleased to direct
respondent authority to consider case of petitioner for selection on
regular post and regularize service of petitioner and direct them to
give all consequential benefits to petitioner.
(C) Pending
admission, hearing and till final disposal of this petition be
pleased to grant interim relief in terms of para 10(B).
(D) Pending
admission, hearing and till final disposal of this petition be
pleased to direct respondent no.2 not change service condition of
petitioner.
(E) Be
pleased to award the cost of this petition.
(F) Grant
such other and further relief as deemed fit and just in the interest
of justice.”
Briefly
stated, the case of the petitioner is that she was appointed on
01.03.1990, as Safai Kamdar on daily wages in Mansa Municipality.
She has been working as Safai Kamdar ever since her date of
appointment and is still engaged as such. The grievance of the
petitioner is that though work is available, respondent No.2 has not
taken any steps to regularize her services. According to the
petitioner, the respondent – Municipality has a sanctioned set
up and had initiated the procedure for appointment on several posts,
by issuing an Advertisement dated 13.01.2008. Pursuant thereto, the
petitioner had applied for appointment to the post of Safai Kamdar,
and was called for the interview on 16.06.2008. However, as the
petitioner did not possess the requisite educational qualification,
she was not given appointment. Being aggrieved thereby, the
petitioner has approached this Court by filing the present petition.
Mr.Harnish
V.Darji, learned advocate for the petitioner, has submitted that in
petitions filed by similarly situated persons, the Court had
directed the respondents to consider the cases of daily wagers for
regularization. The case of the petitioner has not been considered
in proper perspective by the respondent-Municipality, though there
is a regular sanctioned setup and posts are available. It is further
submitted that the work that the petitioner is performing does not
require any educational qualifications. Though, admittedly, the
petitioner does not possess the necessary qualifications as
mentioned in the advertisement, considering the fact that she has
worked for about 21 years, the respondent-Municipality ought to have
regularized her services, in view of the judgment in Secretary,
State of Karnataka and Others v. Umadevi (3) and Others –
(2006)4 SCC 1.
The
affidavit-in-reply has been filed by the Chief
Officer of the respondent-Municipality, wherein it is stated that if
any appointment on regular post is to be made, the procedure
prescribed in the sanctioned setup has to be followed and any
appointment made should be in accordance with the Recruitment Rules.
Referring
to the said affidavit-in-reply, Mr.Dipak P.Sanchela, learned
advocate for respondent No.2, who is the main contesting respondent,
has submitted that the petitioner had applied pursuant to the
advertisement and could not be selected as she does not have the
requisite educational qualifications as stipulated therein. The
Municipality is bound to follow the criteria set by respondent No.1,
Director of Municipalities, and the sanctioned posts have to be
filled up in accordance with the said criteria. It is contended that
in the present case, the minimum educational requirement for the
post of Safai Kamdar as per advertisement dated 13.01.2008 is that
the candidate should have passed the 4th
Standard which, admittedly, the petitioner does not possess.
Therefore, the petitioner could not be given appointment on regular
basis.
I
have heard the learned advocates for the respective parties and
perused the averments made in the petition and other documents on
record.
It
is an admitted position that the petitioner does not fulfil the
requisite educational qualification of having passed the 4th
Standard, which is necessary for being appointed as Safai Kamdar on
regular basis, as per advertisement dated 13.01.2008. When the
eligibility criteria has been prescribed by the
respondent-Municipality as per the sanctioned setup, any candidate
appointed to such post should necessarily fulfil the said criteria.
Merely because the petitioner has worked for 21 years as daily waged
Safai Kamdar in the respondent-Municipality, and is still working as
such, does not mean that the prescribed educational qualifications
and criteria should be given a go-bye, and the services of the
petitioner should be regularized dehors the Recruitment Rules
and stipulations made in the advertisement, only on the ground of
length of service. In any case, the petitioner has not challenged
the said advertisement. On the contrary, she has applied in
pursuance thereto, and even appeared in the interview,
unsuccessfully. Having participated in the recruitment process, it
does not lie in the mouth of the petitioner to say that her services
should be regularized dehors the eligibility criteria prescribed for
such post. The learned advocate for the petitioner has placed
reliance upon the decision of Secretary, State
of Karnataka and Others v. Umadevi (3) and Others
wherein
it has been held that:
“53.
One aspect needs to be clarified. There may be cases where irregular
appointments (not illegal appointments) as explained in State of
Mysore v. S.V.Narayanappa (1967)1 SCR 128 : AIR 1967 SC 1071,
R.N.Nanjundappa v. T.Thimmiah (1972)1 SCC 409 : (1972)2 SCR 799, and
B.N. Nagarajan v. State of Karnataka (1979)4 SCC 507 : 1980 SCC (L
& S)4 : (1979)3 SCR 937, and referred to in paragraph 15 above,
of duly qualified persons in duly sanctioned vacant posts might have
been made and the employees have continued to work for ten years or
more but without the intervention of orders of courts or of
tribunals. The question of regularization of the services of such
employees may have to be considered on merits in the light of the
principles settled by this Court in the cases above referred to and
in the light of this judgment. In that context, the Union of India,
the State Governments and their instrumentalities should take steps
to regularize as a one-time measure, the services of such
irregularly appointed, who have worked for ten years or more in duly
sanctioned posts but not under cover of orders of courts or of
tribunals and should further ensure that regular recruitments are
undertaken to fill those vacant sanctioned posts that require to be
filled up, in cases where temporary employees or daily wagers are
being now employed. The process must be set in motion within six
months from this date. We also clarify that regularization, if any
already made, but not subjudice, need not be reopened based on this
judgment, but there should be no further bypassing of the
constitutional requirement and regularizing or making permanent,
those not duly appointed as per the constitutional scheme.”
The
above observations will not be applicable to the facts and
circumstances of the present case, as the petitioner has been
appointed on daily wage basis on 01.03.1990 and it is not her case,
or even that of the respondents, that her appointment as a daily
wager is either irregular, or illegal. In addition thereto, during
the subsistence of her appointment on daily wages, the petitioner
has applied pursuant to the advertisement and has appeared for the
interview for the post of Safai Kamdar on regular basis. The post
has been advertised as a part of the regular recruitment process and
the petitioner admittedly does not possess the requisite educational
qualifications for the post. In this view of the matter, to grant
the prayer for regularization made by the petitioner would amount to
appointment of a person who is not qualified or eligible, through
the back-door, which would neither be permissible, nor legally
sustainable.
The
ground advanced by the learned advocate for the petitioner that the
nature of the work performed
by the petitioner does not require any educational qualifications,
cannot be accepted, as the eligibility criteria are not to be
decided by the petitioner but by the employer. In a fact-situation
such as the present one where the petitioner admittedly does not
fulfil the educational requirements for the post in question, she
cannot be considered to be entitled to the post in question. The
action of the respondents in not offering the petitioner regular
appointment on the ground that she lacks the requisite educational
qualification, cannot be said to be illegal or unreasonable.
For
the aforestated reasons, the petition has no merit and deserves to
be dismissed. It is, accordingly, dismissed. Rule is discharged.
There shall be no orders as to costs.
(Smt.Abhilasha
Kumari, J.)
(sunil)
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