IN THE HIGH COURT OF GUJARAT AT AHMEDABAD. SPECIAL CIVIL APPLICATION No 6329 of 1987 For Approval and Signature : Hon'ble MR. JUSTICE S.K.KESHOTE ------------------------------------------------------- 1. Whether Reporters of Local Papers may be allowed to see the Judgment ? 2. To be referred to the Reporter or not? 3. Whether Their Lordships wish to see the fair copy of the Judgment ? 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? -------------------------------------------------------- BHARAT KUMAR M VYAS VERSUS STATE OF GUJARAT -------------------------------------------------------- Appearance: MR MUKUL SINHA for Petitioner MR HH PATEL, AGP, for Respondents -------------------------------------------------------- CORAM : MR JUSTICE S.K. KESHOTE Date of Decision : 04/04/2001 C.A.V. JUDGMENT #. This petition by the 4 petitioners in all is filed under Article 226 of the Constitution and they are praying for quashing and setting aside the order (Annexure H) of the respondent No.2 under which there services were terminated. The second prayer is made to restrain the respondents, their servants & agents from preventing the petitioners from discharging their duties on the post of Wiremen & Helpers under the respondent no.2's office till pending the hearing and final disposal of this petition. #. This petition was presented in this Court on 2.12.87. It has come up for preliminary hearing in the court on 3.12.87. On this day, this Court has been pleased to issue notice pending admission and notice as to interim relief returnable on 17.12.1987. On 17.10.88, this matter was admitted. So far as the prayer made by the petitioners for grant of interim relief is concerned, the same was refused. So as a result of the aforesaid order, it is now no more in dispute that the petitioners are not in service of the respondents. #. The facts of the case as emerge from the petition are that the petitioner No.1 has passed SSC examination and has also passed examination of Wiremen in 2nd Class. The petitioner No.2 is a non-matriculate and has also passed Wiremen examination. The petitioner No.3 holds the qualification of Helper and Wiremen and has passed SSC examination also. The petitioner No.4 has passed F.Y.B.Com and has also passed Wiremen examination in 2nd class. It is the say of the petitioner No.1 that he is the only earning member in his family and he has to maintain his parents and younger brother. Similarly, the petitioner No.4 stated to be the only earning member in his family. The petitioner No.2 also stated to be the only earning member in his family which consists of his parents, his wife, 3 daughters and one son. The petitioner No.3 also falls in the same line and claims himself to be the only earning member in the family which consists of 9 members including his wife, parents, 2 younger brothers, 2 younger sisters and his own son. #. The Home Department of the Government of Gujarat vide its resolution dated 23.7.84 created 2 posts of Wiremen and 2 posts of Helpers for maintaining and preserving 45 sirens situated in different parts of the Ahmedabad city under the Civil Defence Directorate. Initially, these 4 posts were created temporarily for a period of six months i.e. upto 28.2.85. It is made clear that though these posts are created in the centre of Civil Defence but subsequently are to be transferred to the Roads & Building Division, now known as Buildings and Communication. It is further resolved that 50% expenses for these posts shall be borne by the Union Government. It is the case of the petitioners that subsequently, the Government has extended the period of these 4 posts upto 1998. #. It is alleged that the respondent No.2 issued interview calls to all the petitioners vide letter dated 17.1.86. Pursuant to that interview calls, the petitioners were selected and accordingly given the appointments. Under the order dated 21.8.86, all the petitioners were given extension on the posts of Wiremen & Helpers for a period of 2 months. Their term of appointment orders for the posts of Wiremen/Helpers were extended for a period of 2 months and that was further extended upto 28.2.87, under the order dated 26.11.86. The petitioners have not produced any order of the respondent No.2 extending their term of appointment beyond 28.2.87. Under order dated 23.4.87 of the respondent No.2, the services of the petitioners were transferred to the Office of the Executive Engineer, Electricity, Roads & Building Division, ESI. In the order dated 23.4.87 it is stated that the lien shall be maintained of the petitioners in the department vice the Directorate of Civil Defence. The petitioners submitted that they worked on the posts and they have completed 240 days in ESI. The posts of Wiremen & Helpers still exist meaning thereby that the posts were not abolished. These posts were created for the maintenance of 45 sirens, which also continue meaning thereby , the work was of perennial nature. The Union of India & State Government with an object to maintain internal security of the public and to warn the public against the attack of air force and on account of natural calamity and to take precautionary measures to maintain the security of the public at large have installed these sirens at various places in the city of Ahmedabad and these are required to be maintained and operated regularly. Concluding this what it is conveyed that so long as Civil Defence Department and the sirens exist, the posts of Helpers & Wiremen cannot be abolished. It is alleged that the petitioners have been given status of permanent government employees in as much as their pay and wages are fixed and are entitled to all the benefits prescribed by the Government. The Government has also started to deduct Provident Fund from their salary. Regular service books of the petitioners are being maintained by the respondents. It is a complaint of the petitioners that in spite of all these facts and circumstances, the respondent No.2 by his order dated 30.11.87 terminated their services on the ground that their services are not required. It is also ordered that 1 month notice salary will be paid to the petitioners. The respondent No.2 is Director of Civil Defence, Gujarat State, Ahmedabad. The petitioners have filed appeal against the order of the respondent No.2 to terminate their services before the Gujarat Civil Services Appellate Tribunal. The petitioners, if we go by the facts of this case are taken to be the workmen and the place where they were working was taken to be industry by the respondent No.2 which is clearly borne out by the order under which their services were terminated. The petitioners also on their turn do not dispute that they are the workmen and the place where they were working is industry. This is clearly borne out from the fact that in this petition, the petitioners prayed for giving them protection under Section 25-F of the Industrial Disputes Act, 1947. Reply to this Special Civil Application has been filed by the respondent No.2 to which the petitioners filed their rejoinder. #. Shri Mukul Sinha, Learned Counsel for the petitioners contended that the work for which the petitioners were given appointment is of a perennial nature and their services could not have been brought to an end in the manner and fashion as what it has been done in the case in hand. The second contention raised is that though their services were transferred to Road & Building Department but the lien was maintained or ordered to be maintained in the Parent Department, Civil Defence Department. Had the lien being maintained, their services could not have been terminated so long as the work for which they have been appointed is available. In the alternative, it is contended that if the Road & Buildings Department does not want to continue them in service then the petitioners should have been sent back to their parent department. In his submission, the parent department would have no justification to terminate their services. It has next been contended that before terminating their services, the petitioners were not given one month notice or 1 month pay in lieu thereof. In support of this contention, the Learned Counsel for the petitioners places reliance on Rule 30 of the Bombay Civil Services Rules, 1959. Lastly, it is contended that the orders of termination of the services are not implemented in as much as the petitioners are not paid 1 months notice pay and therefore there is no termination of the petitioners from services. It is contended that otherwise also the petitioners are entitled to retrenchment compensation in as much as they have put in service of more than 240 days in a year & the respondents are under a legal duty to follow the procedure under Section 25-F of the Industrial Disputes Act before bringing their services to an end. Shri Sinha in support of his contention placed reliance on an unreported Division Bench judgement of this Court in SCA No. 5778 of 1998 with C.A.No. 1938 of 1996 decided on 2.10.91. #. The Learned Counsel for the respondent on the other hand contended that this petition is wholly misconceived. The petitioners were given the appointment purely on adhoc temporary basis. The posts were temporary, their appointments were fixed term appointments. After 28.2.1988, the term of their appointments was not extended. It is a case of a back door entry meaning thereby, the petitioners appointments have not been made in accordance with the recruitment rules or by inviting the applications from the open market. As the appointments of the petitioners were purely adhoc & temporary no question does arise of their having any lien on the post or in the parent department. One month's notice pay has been given to them. It is contended that this petition is wholly misconceived. When the petitioners are claiming benefit under the special Act for that benefit they have to avail of the remedy provided under that Act. Lastly, it is contended that this petition deserves to be dismissed only on the ground of availability of 2 alternative remedies to the petitioners. First is by way of appeal before the Gujarat Civil Services Appellate Tribunal and 2nd is by way of approaching the Labour Court. #. I have given my thoughtful consideration to the submissions made by the Learned Counsel for the parties. #. From the resolution of the Government of Gujarat, Home Department No.NGS-2183-1932-C, Sachivalaya, Gandhinagar dated 23-7-84, I find that these four posts, two of Wiremen and two of helpers were created for a period of six months i.e. upto 28th February, 1985 from the date of first recruitment. From para-2 of this resolution it is clear that these posts were to be created by the Director of Civil Defence and thereafter these posts were to be transferred to the Roads & Buildings Department. However, the entire expenditure of these posts shall be met from the grant sanctioned for Director of Civil Defence and the same shall be allocated to the Roads & Buildings Department. On the record no document whatsoever is there nor it is the case of the petitioners that these posts created for a period of six months i.e. upto 28th February, 1985 on the date of first recruitment later have been made permanent. The first appointment order of the two petitioners on the post of Wiremen is dated 14-2-1986. This appointment was given to these two persons on temporary basis for six months. These appointments thereafter were subject to approval of the Government to be continued for further period. Six months' period expired in the month of August, 1986. From the document annexure `E" I find that term of appointments was extended upto 28-2-87. From 28-2-87, the term of appointment of the petitioners was extended is not established. No document is produced on the record that the term of appointment of the petitioners was extended after 28-2-87. Reference has been made by the learned counsel for the petitioners during the course of arguments to document annexure `F' i.e. the order of Director of Civil Defence, Gujarat State, Ahmedabad dated 24-4-87 and it reads, "The following two Wiremen and two helpers appointed for maintenance and repairs of sirens installed in the city of Ahmedabad as per order under Ref.1, are hereby transferred to the office of Deputy Executive Engineer, Electrical Division, Roads & Buildings Department, E.S.I. Electric subdivision. They shall continue to hold lien, rights and claims with this office and shall be binding as per the rules of the Government." It is not the case of the petitioners nor any document has been produced that they were ultimately appointed on the post of Wiremen and helpers on long term basis i.e. made permanent. It is not out of context to state that the appointments of the petitioners were at any point of time approved by the Government, is not made known to the court by the petitioners. From order annexure `C' the extension of the term of appointments of these petitioners was subject to the approval of the Government and in the absence of that approval, otherwise also, their appointments could not have been continued. The Director of Civil Defence, Gujarat State, Ahmedabad as per the order dated 14-2-86 was competent to give temporary appointment only for six months and further continuation thereof was only with the approval of the State Government. In the document, annexure `E', reference has been made to four orders/letters /resolutions out of which one is of the Government and rest are of the Director of Civil Defence. There is no document on the record, as stated earlier and to be stated at the cost of repetition showing that the term of appointment of the petitioners has been extended beyond 28-2-87. In the special civil application in para-3 thereof, the petitioners stated that creation of four posts were extended by the Government upto 1988. It is a mere statement made by the petitioners and in proof thereof, they have not produced any record. It is also not admitted by the respondents in the reply. ##. From document, annexure `A' I find that the Government of Gujarat, Home Department, Sachivalaya, Gandhinagar created these posts for a period of six months i.e. upto 28-2-85 from the date of first recruitment. These posts come to an end or stood abolished on 28-2-85 as the Government has not extended the period. In fact it appears to be a case where the Director of Civil Defence, Ahmedabad on its own taken the benefit of this order and made these appointments. These appointments of the petitioners even if it is taken to have been made after calling the names of the candidates from Employment Exchange, Ahmedabad are not legal. The Director of Civil Defence has no right to extend the term of posts which have been created by the State Government for fixed term. This is exclusively in the domain of the State Government and on the record, no such document is produced by the petitioners for extension of the term of the posts. In all the documents which have been produced on the record by the petitioners, I find reference to the orders made from time to time by the Director of Civil Defence, Ahmedabad except one document of the State Government i.e. resolution dated 23-7-84, annexure `A'. In case the term of posts would have been extended then in all the subsequent orders passed by the Director of Civil Defence, reference to the same would have been made. The very entry of the petitioners in the service is bad in law. This will not stand regularise, corrected or legal merely because the Director of Civil Defence, Ahmedabad has taken care to get the names of the candidates to be sponsored by the Employment Exchange, Ahmedabad. Prima-facie the possibility of extending favour to the petitioners by the then Director of Civil Defence, Ahmedabad cannot be excluded. It is further fortified from the fact that these four petitioners were kept on deputation with him for a considerable period and under the direction dated 23-4-87 they were sent to the office of the Deputy Executive Engineer, Electrical Division, Roads & Buildings Deptt., E.S.I. Electric Subdivision. It appears to be an another act of favouritism of the officer concerned to make out the way for the petitioners to continue in the Department. The Roads & Buildings Department has noticed this fact and accordingly the Director of Civil Defence would have been under compulsion and passed the order of termination of services of the petitioners. When the period for which the posts were initially created has not been extended by the State of Gujarat, the appointments of the petitioners on temporary basis on the post and their continuation from time to time upto 28-2-87 is illegal and does not confer any right upon the petitioners and does not provide justification to them to approach to this Court by this petition under Article 226 of the Constitution and praying therein for quashing and setting aside of the order under which their services were terminated. ##. Learned counsel for the petitioners submitted that the petitioners were appointed for the work perennial in nature and their services could not have been terminated. From the document annexure `A' resolution of the Government dated 23-7-84, it is difficult to accept that the work for which the posts were created therein are of perennial nature. If it would have been as what it is contended by the counsel then the posts would not have been created only for six months upto the period 28-2-85. This is also fortified from the fact that the petitioners have not produced any document to show that this period of creation of the post has been extended by the State Government from 28-2-85. That apart from para-2 of the document, annexure `A' these posts were clearly created for temporary period as the work was temporary in nature in the office of the Director of Civil Defence. This work ultimately has to be looked after the Roads & Buildings Deptt.. There is all possibility that ultimately the posts would have been created in the Roads and Buildings Deptt., but on this aspect, the learned counsel for the petitioners has failed to throw any light. This contention of the learned counsel for the petitioners that the work was of perennial nature deserves no acceptance. ##. Another contention raised is that under the order dated 23-4-87 while transferring the petitioners to Roads and buildings Deptt, the Director of Civil Defence, Ahmedabad ordered maintaining of the petitioners lien, rights and claims in its office. However, as per the Rules of the Government, reference here may have to the provisions as contained in Rules 18A, 18-B and 19 of the Bombay Civil Services Rules, 1959 (hereinafter referred to as `the Rules, 1959') this contention has no legs to stand. Before digesting to these three Rules of the Rules, 1959;, I consider it to be appropriate first to have a glance to the definition as given to lien in the Rules, 1959. `Lien' has been defined in clause 31 of Rule 9 of Rules, 1959 which means the title of the Government servant to hold substantively either immediately or on the termination of the period or periods of absence a permanent post including tenure post to which he has been appointed substantively. It is a title conferred on the Government servant to hold substantively the permanent post, including tenure post to which he has been appointed substantively. Rule 18-A of the Rules, 1959 makes a provision how a Government servant acquires lien on the post. A Government servant acquires a lien on a post on his substantive appointment to a permanent post. Rules 18-B and 19 of Rules, 1959, are not relevant to this matter as these are for different purpose than what is required to be considered in this case. A conjoint reading of clause 30 of Rule 9 and Rule 18-A of the Rules, 1959, makes it clear that a Government servant acquires lien on a post on his substantive appointment to a permanent post. To acquire lien it has to be established to the satisfaction of the Court that the Government servant has been appointed substantively on a permanent post. Definition of `lien' no doubt makes reference to tenure post also but that also not different than permanent post. In the Rules 1959, I do not find that the Rule Making Authority has defined substantive appointment. In service jurisprudence, substantive appointment is not unknown. Substantive appointment means an appointment made in accordance with the recruitment rules or where recruitment rules are not there in accordance with the procedure laid down by executive instructions in the form of standing orders, or resolutions of the State or in accordance with the provisions as contained under Article 16 of the Constitution of India. It is true that the provisions of Article 16 are also applicable to the temporary appointments meaning thereby temporary appointments are to be made after open invitation and affording an opportunity to all the eligible candidates. In this case even if it is taken in making of the appointments the provisions of Article 16 have been complied with still by these appointments, the petitioners have not acquired any lien on the posts. While creating the post, three things are to be specified in the order of creation, namely, nature of post i.e. permanent or temporary, the eligibility for appointment on the post and the mode of recruitment. In the order of creation of post, two things have not been mentioned i.e. the eligibility for the post and the mode of recruitment. However, one thing is clearly mentioned that these posts were temporarily created for fixed term. The period for which the posts were initially sanctioned was not extended by the State Government and posts were never made permanent. This contention of the learned counsel of the petitioners is devoid of any substance and merits. The lien on a post can only be acquired in accordance with the Rules, 1959. It cannot be allowed to be acquired or accepted to be acquired by the Director of Civil Defence, Ahmedabad. Whatever is mentioned in he order dated 23-4-87 by the Director of Civil Defence, Ahmedabad re. continue to hold lien, rights and claims with the office by the petitioners will not confer or create any right in favour of the petitioners. The Director of Civil Defence, Ahmedabad has no power or authority or competence to term the petitioners acquiring lien which otherwise is not acquirable by them under Rules, 1959. Anything if is mentioned in the order which is contrary to statutory rules, then Rules will prevail. Otherwise also, this sentence has to be read as a whole and the Director of Civil Defence, Ahmedabad made it clear that it shall be binding as per the rules of the Government. Rules nowhere permits for such lien and on this recital, no such claim of the petitioners can be accepted. ##. When the petitioners have no lien on the posts in the Civil Defence Department, this contention raised by the learned counsel for the petitioners that Roads and Buildings Deptt. should have sent them back to their parent department is of no relevance and substance and any help to the petitioners. Otherwise also, there is a fallacy in this contention. The Roads and Buildings Deptt. have sent these persons back to the Civil Defence Deptt. which is borne out from the fact that the services of the petitioners were terminated by the later department. ##. Now remains the last contention of the learned counsel for the petitioners to be considered. This contention relates to two aspects and with reference to both these aspects, the matter has to be considered. ##. In para-12A of the special civil application, the petitioners averred that the impugned