IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION No 2781 of 1988
For Approval and Signature:
Hon'ble MR.JUSTICE S.K.KESHOTE
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1. Whether Reporters of Local Papers may be allowed
to see the judgements?
2. To be referred to the Reporter or not?
3. Whether Their Lordships wish to see the fair copy
of the judgement?
4. Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India, 1950 of any Order made thereunder?
5. Whether it is to be circulated to the Civil Judge?
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VIHAJI SHIVAJI PARMAR
Versus
DY. DIST. DEVELOPMENT OFFICER, DIST. PANCHAYAT,
MEHSANA & OTHERS
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Appearance:
MR CL SONI for Petitioner
MR HS MUNSHAW for Respondents
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CORAM : MR.JUSTICE S.K.KESHOTE
Date of decision: 05/05/97
C.A.V. JUDGEMENT
1.The petitioner by this petition challenges the
action of the respondents of not making him permanent on
the post of peon though he has been serving continuously
since 1982 as well as the action of terminating the
services of the petitioner for appointing a fresh hand
without following the due procedure of law.
2.The facts of the case, in brief, are that the
petitioner was appointed as a Rojamdari peon on 21st
August, 1982, in the office of respondent No.2. The
petitioner states that his appointment on daily wages was
on a clear vacant post of peon which fall vacant because
of the retirement of Shri Babubhai L. Gosai on 30th
June, 1981. No appointment order admittedly has been
given to the petitioner. Vide application dated 10th
January, 1984, the petitioner made a request that he
should be made permanent. The reply was given to this
application by the respondent that as the post is to be
filled in by calling the name from the employment
exchange and as the daily wagers cannot be appointed on
permanent basis, the petitioner’s request cannot be
accepted. The petitioner continued in service and he
further made requests from time to time to make him
permanent. The petitioner was again informed under the
letter dated 25th May, 1988, that he cannot be made
permanent on the post. Hence, this Special Civil
Application by the petitioner before this Court.
3.The petitioner was protected by grant of interim
relief, but it is no more in dispute now that the
petitioner is not in service.
4.The contention of the learned counsel for the
petitioner is that the petitioner was appointed on daily
wages against the substantive permanent post and he
worked thereon for more than five years, and as such, he
acquired a right to be made permanent on the said post.
It has further been stated that the respondents should
have made him permanent and should have given to him all
the benefits which are given to the regular employees.
It has next been contended that the termination of
services of the petitioner is bad in law.
5.On the other hand, the counsel for the
respondents contended that the post of peon has to be
filled in accordance with the Gujarat Panchayat Service
(Classification and Recruitment) Rules, 1967. The post
of peon has to be filled in by direct recruitment after
selection. So the permanent post has to be filled in by
making regular selection in accordance with statutory
rules. There is no provision for regularisation of
services of the daily wagers and to make them permanent
on the post. The petitioner was only a daily wager, and
as such, when he was involved in a criminal case though
ultimately he may be acquitted, he was not allowed to
work on the post on daily wages. He was involved in a
criminal case under the Prohibition Act.
6.I have given my thoughtful consideration to the
submissions made by the learned counsel for the parties.
7.The post of peon was a permanent and substantive
post on which the recruitment has to be made in
accordance with statutory rules. The daily wager has no
right to the post. It has been decided by the Hon’ble
Supreme Court in the case of Madhya Pradesh Hasta Shilpa
Vikas Nigam vs. Devendra Kumar Jain & Ors. reported in
JT 1995 (1) SC 198 that the temporary Government servant
has not acquired any right to hold the post. The
temporary Government servant does not become permanent
unless he acquires that capacity by force of any rule or
is declared as permanent servant. The appointment of the
petitioner as a daily wager was de hors of the rules. A
copy of the rules has been filed along with the reply and
it is clear that the appointment to the post of peon has
to be made in the Panchayat after making the regular
selection. The learned counsel for the petitioner has
failed to point out any provision from the rules as well
as any resolution or decision of the respondents which
empower them to regularise the services of a daily wager
on permanent post. It is a case where very specifically
in the year 1984 then in the year 1988 the claim of the
petitioner to make him permanent on the post was declined
on the ground that there is no provision to make a daily
wager permanent. So in case the plea of the petitioner
is accepted then what this Court will do, it will provide
a third mode of recruitment to the post of peon. So the
judicial process will become a mode of recruitment. The
appointment on regular basis after selection according to
the rules is a condition precedent for the regularisation
of the incumbents. The persons appointed as daily wagers
de hors the rules even though they are regularly working
for a long time are not entitled for regularisation. The
petitioner’s appointment on daily wages against the
permanent post was a back-door entry and in case his
claim for regularisation is accepted then what this Court
will do, to give a premium to illegal appointment.
Merely because the petitioner is continued as daily wager
will not confirm him any right to hold the post. It only
gives out that some of his godfather was there in the
office of the respondent who managed for his initial
appointment as daily wager and further his continuation
in the service. When the permanent post was available, I
fail to understand why the respondents have made the
appointment on daily wages, more so, when the rules
contemplate for the appointment by regular selection.
These facts go to show that a favour has been extended to
the petitioner by somebody sitting in the respondent and
now the petitioner want to encash that favour to the
extent of claiming the permanency in the appointment
dehors the rules. The regularisation of ad hoc
appointees can be acquired only in accordance with the
rules for direct appointment and the case of daily wagers
cannot be on better footing. Reference may have to the
decision of the Hon’ble Supreme Court in the case of
Hindustan Shipyard Ltd. vs. Shambashiva Rao reported in
1996(7) SCC 499.
8.Reference may have to another decision of the
Apex Court in the case of Union of India & Ors. vs.
Bishamber Dutt reported in JT 1996 (10) SC 329 wherein
the Court has held that the appointment not made on
regular basis after selection according to the rules then
there is no question of any direction to be given by the
Court or the Tribunal for regularisation of such an
employee. The Court in Para No.4 of the judgment has
held:
The admitted position is that the
respondent along with others came to be appointed
on September 3, 1990, November 14, 1991 and
September 14, 1994 as Class IV employees in the
office of the Controller of Defence Accounts on
part-time basis. There is a controversy as to
whether they are appointed on hourly basis or on
regular basis. The admitted position is that
they were receiving the consolidated pay of
Rs.500/- per month which was raised to Rs.600/-
per month for working six hours a day. It is not
necessary to consider the case whether it is
full-time or hourly basis or monthly basis.
Suffice it to state that they were not appointed
to a regular post after selection according to
rules; they were appointed as part-time employees
de hors the rules. The question, therefore, is:
whether they are entitled to the temporary status
or regularisation as directed by the Tribunal?
It is seen that pursuant to the enquiry whether
temporary status should be granted to the
part-time employees, directions were issued by
the Ministry of Personnel, Public Grievances and
Pension dated July 12, 1994 in the Memorandum,
Clause 3, that they are entitled to such status.
Since they are not appointed on regular basis in
accordance with rules the direction issued by the
Tribunal to regularise the service is obviously
illegal. It is then contended by the learned
counsel for the respondents that in view of the
fact that they were regularly working for a long
time they are entitled to regularisation. We do
not appreciate the stand taken on behalf of the
respondents. Unless they are appointed on
regular basis according to rules after
consideration of the claims on merits, there is
no question of regularisation of the services.
9.Reference may have to another decision of the
Apex Court in the case of State of H.P. vs. Sureshkumar
Verma and Anr. reported in 1996 (7) SCC 562. The Court
has held that having made the rules for recruitment to
various service under State or to a class of posts under
the State, the State is bound to follow the same and to
have the selection of the candidates made as per
recruitment rules and appointments shall be made
accordingly. Appointment on daily-wage basis is not an
appointment to a post according to the Rules. The case
before the Apex Court was that the respondents, therein,
were engaged in a project and their services came to be
terminated for want of work. On approach by the
respondents to the High Court, the High Court had given
the directions to the State to reengage them in any other
work or appoint them against existing vacancies. Dealing
with this matter the Apex Court has held that if such a
course is adopted then the judicial process would become
other mode of recruitment dehors the rules. Dealing with
the contention of the respondents, therein, that the
vacancies are available and therefore, the respondents
are entitled to be continued in service, the Apex Court
has held:
4. Mr. Mahabir Singh, learned counsel for the
respondents, contended that there was an
admission in the counter-affidavit filed in the
High court that there were vacancies and that,
therefore, the respondents are entitled to be
continued in service. We do not agree with the
contention. The vacancies require to be filled
up in accordance with the Rules and all the
candidates who would otherwise be eligible are
entitled to apply for when recruitment is made
and seek consideration of their claims on merit
according to the Rules for direct recruitment
along with all the eligible candidates. The
appointment on daily wages cannot be a conduit
pipe for regular appointments which would be a
back-door entry, detrimental to the efficiency of
service and would breed seeds of nepotism and
corruption. It is equally settled law that even
for Class IV employees recruitment according to
Rules is a precondition. Only work-charged
employees who perform the duties of transitory
nature are appointed not to a post but are
required to perform the work of transitory and
urgent nature so long as the work exists. One
temporary employee cannot be replaced by another
temporary employee.
The present is a case, which is exactly of the same
nature which was there before the Apex Court. The
regular vacancy was available and the same has to be
filled in accordance with the recruitment rules, but the
petitioner has been given the appointment on daily wages
and now he is claiming the permanent appointment. So as
observed by the Apex Court, if such a plea is accepted,
then the appointment on daily wages would be a conduit
pipe for regular appointment which would be a back-door
entry, detrimental to the efficiency of service and would
breed seeds of nepotism and corruption. It is a Class IV
post, no doubt, but as stated by the Apex court that even
for Class IV employees recruitment according to Rules is
a precondition. So the claim of the petitioner to make
him permanent is devoid of any substance and cannot be
accepted.
10.Apart from this, the petitioner has no legal
right to the post and in case his services were
terminated as he was involved in a criminal case under
the Prohibition act, no exception could be taken to the
same. However, the petitioner has been acquitted what
the counsel for the petitioner contended and the post is
still lying vacant. The Class IV post has not been
filled up in accordance with the recruitment rules. So
the learned counsel for the petitioner is right to
contend that as and when the selection is made on the
post, the petitioner may be given an opportunity to apply
and take the chance in selection. The only apprehension
of the counsel for the petitioner is that the petitioner
has now become over-aged and he may not be called for in
selection as being barred by age. This apprehension is
well-founded, but as in many cases, the Hon’ble Supreme
Court has directed, the same course is adopted and it is
hereby ordered that as and when the selection is made on
the Class IV post lying vacant in the office of
respondent, the petitioner’s application may not be
rejected only on the ground of barred by age. He may be
considered to be within age limit. It is further ordered
that the said post if it is not filled in so far then it
may not be filled in by daily wage appointment or ad hoc
or temporary appointment. The post has to be filled in
only in accordance with the Rules after making regular
selection. This Special Civil Application is dismissed.
Rule is discharged subject to the aforesaid observations
and directions.
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