{"id":145400,"date":"2011-09-02T00:00:00","date_gmt":"2011-09-01T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/whether-reporters-of-local-papers-vs-devendra-kumar-jain-ors-on-2-september-2011"},"modified":"2018-12-19T22:01:48","modified_gmt":"2018-12-19T16:31:48","slug":"whether-reporters-of-local-papers-vs-devendra-kumar-jain-ors-on-2-september-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/whether-reporters-of-local-papers-vs-devendra-kumar-jain-ors-on-2-september-2011","title":{"rendered":"Whether Reporters Of Local Papers … vs Devendra Kumar Jain & Ors. … on 2 September, 2011"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Whether Reporters Of Local Papers … vs Devendra Kumar Jain & Ors. … on 2 September, 2011<\/div>\n
Author: S.K.Keshote,<\/div>\n
     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD\n\n\n\n     SPECIAL CIVIL APPLICATION No 2781 of 1988\n\n\n\n\n     For Approval and Signature:\n\n\n     Hon'ble MR.JUSTICE S.K.KESHOTE\n     ============================================================\n<\/pre>\n
     1.      Whether Reporters of Local Papers may be allowed
\n             to see the judgements?\n<\/p>\n
     2.      To be referred to the Reporter or not?\n<\/p>\n
     3.      Whether Their Lordships    wish to see the fair copy
\n             of the judgement?\n<\/p>\n
     4.      Whether this case involves a substantial question
\n             of law as to the interpretation of the Constitution
\n             of India, 1950 of any Order made thereunder?\n<\/p>\n
     5.      Whether   it is to be circulated to the Civil Judge?\n<\/p>\n
     ————————————————————–
\n     VIHAJI SHIVAJI PARMAR
\nVersus
\n     DY. DIST. DEVELOPMENT OFFICER, DIST. PANCHAYAT,
\n       MEHSANA & OTHERS\n<\/p>\n
     ————————————————————–
\n     Appearance:\n<\/p>\n
           MR CL SONI for Petitioner
\n           MR HS MUNSHAW for Respondents<\/p>\n
     ————————————————————–\n<\/p>\n
     CORAM : MR.JUSTICE S.K.KESHOTE
\n     Date of decision: 05\/05\/97<\/p>\n
C.A.V. JUDGEMENT\n<\/p>\n
     1.The petitioner by this petition challenges the
\n     action of the respondents of not making him permanent on
\n     the post of peon though he has been serving continuously
\n     since 1982 as well as the action of terminating the
\n     services of the petitioner for appointing a fresh hand
\n     without following the due procedure of law.\n<\/p>\n
 2.The facts of the case, in brief, are that the
\npetitioner was appointed as a Rojamdari peon on 21st
\nAugust, 1982, in the office of respondent No.2. The
\npetitioner states that his appointment on daily wages was
\non a clear vacant post of peon which fall vacant because
\nof the retirement of Shri Babubhai L. Gosai on 30th
\nJune, 1981. No appointment order admittedly has been
\ngiven to the petitioner.      Vide application dated 10th
\nJanuary, 1984, the petitioner made a request that he
\nshould be made permanent.     The reply was given to this
\napplication by the respondent that as the post is to be
\nfilled in by calling the name from the employment
\nexchange and as the daily wagers cannot be appointed on
\npermanent basis, the petitioner’s request cannot be
\naccepted. The petitioner continued in service and he
\nfurther made requests from time to time to make him
\npermanent. The petitioner was again informed under the
\nletter dated 25th May, 1988, that he cannot be made
\npermanent on the post.      Hence, this Special     Civil
\nApplication by the petitioner before this Court.\n<\/p>\n
3.The petitioner was protected by grant of interim
\nrelief, but it is no more in dispute now that         the
\npetitioner is not in service.\n<\/p>\n
4.The contention of the learned counsel for the
\npetitioner is that the petitioner was appointed on daily
\nwages against the substantive permanent post and he
\nworked thereon for more than five years, and as such, he
\nacquired a right to be made permanent on the said post.
\nIt has further been stated that the respondents should
\nhave made him permanent and should have given to him all
\nthe benefits which are given to the regular employees.
\nIt has next been contended that the termination of
\nservices of the petitioner is bad in law.\n<\/p>\n
5.On the other hand,      the   counsel   for   the
\nrespondents contended that the post of peon has to be
\nfilled in accordance with the Gujarat Panchayat Service
\n(Classification and Recruitment) Rules, 1967. The post
\nof peon has to be filled in by direct recruitment after
\nselection.   So the permanent post has to be filled in by
\nmaking regular selection in accordance with statutory
\nrules.   There is no provision for regularisation of
\nservices of the daily wagers and to make them permanent
\non the post. The petitioner was only a daily wager, and
\nas such, when he was involved in a criminal case though
\nultimately he may be acquitted, he was not allowed to
\nwork on the post on daily wages. He was involved in a
\ncriminal case under the Prohibition Act.\n<\/p>\n
 6.I have given my thoughtful consideration to the
\nsubmissions made by the learned counsel for the parties.\n<\/p>\n
7.The post of peon was a permanent and substantive
\npost   on which the recruitment has to be made in
\naccordance with statutory rules. The daily wager has no
\nright to the post.     It has been decided by the Hon’ble
\nSupreme Court in the case of Madhya Pradesh Hasta Shilpa
\nVikas Nigam vs.   Devendra Kumar Jain & Ors. reported in
\nJT 1995 (1) SC 198 that the temporary Government servant
\nhas not acquired any right to hold the post.          The
\ntemporary Government servant does not become permanent
\nunless he acquires that capacity by force of any rule or
\nis declared as permanent servant. The appointment of the
\npetitioner as a daily wager was de hors of the rules.   A
\ncopy of the rules has been filed along with the reply and
\nit is clear that the appointment to the post of peon has
\nto be made in the Panchayat after making the regular
\nselection.   The learned counsel for the petitioner has
\nfailed to point out any provision from the rules as well
\nas any resolution or decision of the respondents which
\nempower them to regularise the services of a daily wager
\non permanent post. It is a case where very specifically
\nin the year 1984 then in the year 1988 the claim of the
\npetitioner to make him permanent on the post was declined
\non the ground that there is no provision to make a daily
\nwager permanent. So in case the plea of the petitioner
\nis accepted then what this Court will do, it will provide
\na third mode of recruitment to the post of peon. So the
\njudicial process will become a mode of recruitment.   The
\nappointment on regular basis after selection according to
\nthe rules is a condition precedent for the regularisation
\nof the incumbents. The persons appointed as daily wagers
\nde hors the rules even though they are regularly working
\nfor a long time are not entitled for regularisation. The
\npetitioner’s appointment on daily wages against the
\npermanent post was a back-door entry and in case his
\nclaim for regularisation is accepted then what this Court
\nwill do, to give a premium to illegal appointment.
\nMerely because the petitioner is continued as daily wager
\nwill not confirm him any right to hold the post. It only
\ngives out that some of his godfather was there in the
\noffice of the respondent who managed for his initial
\nappointment as daily wager and further his continuation
\nin the service. When the permanent post was available, I
\nfail to understand why the respondents have made the
\nappointment on daily wages, more so, when the rules
\ncontemplate for the appointment by regular selection.
\nThese facts go to show that a favour has been extended to
\nthe petitioner by somebody sitting in the respondent and
\nnow the petitioner want to encash that favour to the
\n extent of claiming the permanency in the appointment
\ndehors the rules.     The regularisation    of   ad   hoc
\nappointees can be acquired only in accordance with the
\nrules for direct appointment and the case of daily wagers
\ncannot be on better footing. Reference may have to the
\ndecision of the Hon’ble Supreme Court in the case of
\nHindustan Shipyard Ltd. vs. Shambashiva Rao reported in
\n1996(7) SCC 499.\n<\/p>\n
8.Reference may have to another decision of the
\nApex Court in the case of Union of India & Ors. vs.
\nBishamber Dutt reported in JT 1996 (10) SC 329 wherein
\nthe Court has held that the appointment not made on
\nregular basis after selection according to the rules then
\nthere is no question of any direction to be given by the
\nCourt or the Tribunal for regularisation of such an
\nemployee. The Court in Para No.4 of the judgment has
\nheld:\n<\/p>\n
 The   admitted   position    is that the
\n        respondent along with others came to be appointed
\n        on September 3, 1990, November 14, 1991 and
\n        September 14, 1994 as Class IV employees in the
\n        office of the Controller of Defence Accounts on
\n        part-time basis.     There is a controversy as to
\n        whether they are appointed on hourly basis or on
\n        regular basis.     The admitted position is that
\n        they were receiving the consolidated pay of
\n        Rs.500\/- per month which was raised to Rs.600\/-
\n        per month for working six hours a day. It is not
\n        necessary to consider the case whether it is
\n        full-time or hourly basis or monthly basis.
\n        Suffice it to state that they were not appointed
\n        to a regular post after selection according to
\n        rules; they were appointed as part-time employees
\n        de hors the rules. The question, therefore, is:
\n        whether they are entitled to the temporary status
\n        or regularisation as directed by the Tribunal?
\n        It is seen that pursuant to the enquiry whether
\n        temporary   status    should be granted to the
\n        part-time employees, directions were issued by
\n        the Ministry of Personnel, Public Grievances and
\n        Pension dated July 12, 1994 in the Memorandum,
\n        Clause 3, that they are entitled to such status.
\n        Since they are not appointed on regular basis in
\n        accordance with rules the direction issued by the
\n        Tribunal to regularise the service is obviously
\n        illegal. It is then contended by the learned
\n        counsel for the respondents that in view of the
\n        fact that they were regularly working for a long
\n        time they are entitled to regularisation. We do
\n          not appreciate the stand taken on behalf of the
\n         respondents.    Unless   they are appointed on
\n         regular   basis   according   to   rules    after
\n         consideration of the claims on merits, there is
\n         no question of regularisation of the services.\n<\/p>\n
9.Reference may have to another decision of the
\nApex Court in the case of State of H.P. vs. Sureshkumar
\nVerma and Anr. reported in 1996 (7) SCC 562. The Court
\nhas held that having made the rules for recruitment to
\nvarious service under State or to a class of posts under
\nthe State, the State is bound to follow the same and to
\nhave the selection of the candidates made as          per
\nrecruitment   rules   and   appointments shall be made
\naccordingly. Appointment on daily-wage basis is not an
\nappointment to a post according to the Rules. The case
\nbefore the Apex Court was that the respondents, therein,
\nwere engaged in a project and their services came to be
\nterminated for want of work.       On approach by     the
\nrespondents to the High Court, the High Court had given
\nthe directions to the State to reengage them in any other
\nwork or appoint them against existing vacancies. Dealing
\nwith this matter the Apex Court has held that if such a
\ncourse is adopted then the judicial process would become
\nother mode of recruitment dehors the rules. Dealing with
\nthe contention of the respondents, therein, that the
\nvacancies are available and therefore, the respondents
\nare entitled to be continued in service, the Apex Court
\nhas held:\n<\/p>\n
 4.   Mr.  Mahabir Singh, learned counsel for the
\n         respondents,   contended   that    there   was an
\n         admission in the counter-affidavit filed in the
\n         High court that there were vacancies and that,
\n         therefore, the respondents are entitled to be
\n         continued in service.    We do not agree with the
\n         contention. The vacancies require to be filled
\n         up in accordance with the Rules and all the
\n         candidates who would otherwise be eligible are
\n         entitled to apply for when recruitment is made
\n         and seek consideration of their claims on merit
\n         according to the Rules for direct recruitment
\n         along with all the eligible candidates.        The
\n         appointment on daily wages cannot be a conduit
\n         pipe for regular appointments which would be a
\n         back-door entry, detrimental to the efficiency of
\n         service and would breed seeds of nepotism and
\n         corruption. It is equally settled law that even
\n         for Class IV employees recruitment according to
\n         Rules is a precondition.      Only    work-charged
\n         employees who perform the duties of transitory
\n         nature are appointed not to a post but are
\n        required to perform the work of transitory and
\n        urgent nature so long as the work exists.    One
\n        temporary employee cannot be replaced by another
\n        temporary employee.\n<\/p>\n
The present is a case, which is exactly of the same
\nnature which was there before the Apex Court.         The
\nregular vacancy was available and the same has to be
\nfilled in accordance with the recruitment rules, but the
\npetitioner has been given the appointment on daily wages
\nand now he is claiming the permanent appointment. So as
\nobserved by the Apex Court, if such a plea is accepted,
\nthen the appointment on daily wages would be a conduit
\npipe for regular appointment which would be a back-door
\nentry, detrimental to the efficiency of service and would
\nbreed seeds of nepotism and corruption. It is a Class IV
\npost, no doubt, but as stated by the Apex court that even
\nfor Class IV employees recruitment according to Rules is
\na precondition. So the claim of the petitioner to make
\nhim permanent is devoid of any substance and cannot be
\naccepted.\n<\/p>\n
10.Apart from this, the petitioner has no legal
\nright to the post and in case his services           were
\nterminated as he was involved in a criminal case under
\nthe Prohibition act, no exception could be taken to the
\nsame.   However, the petitioner has been acquitted what
\nthe counsel for the petitioner contended and the post is
\nstill lying vacant.     The Class IV post has not been
\nfilled up in accordance with the recruitment rules.    So
\nthe learned counsel for the petitioner is right to
\ncontend that as and when the selection is made on the
\npost, the petitioner may be given an opportunity to apply
\nand take the chance in selection. The only apprehension
\nof the counsel for the petitioner is that the petitioner
\nhas now become over-aged and he may not be called for in
\nselection as being barred by age. This apprehension is
\nwell-founded, but as in many cases, the Hon’ble Supreme
\nCourt has directed, the same course is adopted and it is
\nhereby ordered that as and when the selection is made on
\nthe Class IV post lying vacant in the office           of
\nrespondent, the petitioner’s application may not be
\nrejected only on the ground of barred by age. He may be
\nconsidered to be within age limit. It is further ordered
\nthat the said post if it is not filled in so far then it
\nmay not be filled in by daily wage appointment or ad hoc
\nor temporary appointment.    The post has to be filled in
\nonly in accordance with the Rules after making regular
\nselection.   This Special Civil Application is dismissed.
\nRule is discharged subject to the aforesaid observations
\n and directions.\n<\/p>\n
 **********<\/p>\n
zgs\/-<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Whether Reporters Of Local Papers … vs Devendra Kumar Jain & Ors. … on 2 September, 2011 Author: S.K.Keshote, 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 ============================================================ 1. Whether Reporters of Local Papers may be allowed to […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-145400","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nWhether Reporters Of Local Papers ... vs Devendra Kumar Jain & Ors. ... on 2 September, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/whether-reporters-of-local-papers-vs-devendra-kumar-jain-ors-on-2-september-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Whether Reporters Of Local Papers ... vs Devendra Kumar Jain & Ors. ... on 2 September, 2011 - 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