LPA/41/1989 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL No. 41 of 1989 In SPECIAL CIVIL APPLICATION No. 4350 of 1987 For Approval and Signature: HONOURABLE MS. JUSTICE R.M.DOSHIT HONOURABLE MR.JUSTICE K.M.THAKER ========================================================= 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 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= MOHANBHAI KACHRABHAI BITWALA - Appellant(s) Versus UNIT OFFICER & 3 - Respondent(s) ========================================================= Appearance : MR TS NANAVATI for Appellant(s) : 1, MRS ML SHAH, AGP for Respondent(s) : 1 - 4. ========================================================= CORAM : HONOURABLE MS. JUSTICE R.M.DOSHIT and HONOURABLE MR.JUSTICE K.M.THAKER Date : 24/01/2008 ORAL JUDGMENT (Per : HONOURABLE MS. JUSTICE R.M.DOSHIT) LPA/41/1989 2/6 JUDGMENT This Appeal preferred under clause 15 of the Letters Patent arises from the order dated 21st December, 1988 made by the learned Single Judge in above Special Civil Application No.4350/1987. The appellant is the writ petitioner. The appellant preferred above Special Civil Application No.4350/1987 for a relief that his service as Driver be regularised and he be given consequential benefits. It appears that the appellant was appointed as Driver on 9th December, 1980 by the Filaria Officer, Surat under the National Filaria Control Programme. The appointment of the appellant was adhoc for specific period of 29 days. The said arrangement was continued upto December, 1981. The appointment of the appellant as Driver by the Filaria Officer, Surat was not approved by the appointing authority, the Director of Health Services, Ahmedabad, as the same was not made by the LPA/41/1989 3/6 JUDGMENT appointing authority or in consonance with the relevant recruitment rules. On 5th March, 1982 his service came to be terminated. Feeling aggrieved, the appellant instituted Civil Suit No.21/1982 before the Civil Court at Surat. Under the interim order made by the Civil Court, his service came to be continued. The appellant withdrew the said suit on 31st August, 1987. On 1st September, 1987 he filed Special Civil Application No.4350/1987 before this Court and obtained the stay order. The writ petition was contested by the respondents. It was pointed out that the appointment of the appellant was not in consonance with the relevant recruitment rules and was not made by the appointing authority. The appellant was, therefore, not entitled to continue in service. The learned Single Judge, by impugned order, rejected the writ petition. The learned Single Judge has observed that the appellant's case was considered for regular appointment in 1981. As he did not possess sufficient experience required for regular appointment he was not appointed. His initial LPA/41/1989 4/6 JUDGMENT appointment was on adhoc basis. No order for regularisation of service, therefore, could be made. Pursuant to the order of the learned Single Judge, the service of the appellant was terminated on 13th January, 1989. However, in view of the interim order made on the present Appeal on 3rd March, 1989 he was reinstated in service on 9th March, 1989. We are informed that since his reinstatement in service on 9th March, 1989, the appellant has continued in service till the date. He has been discharging his duties and is paid regular salary. We do agree with the learned Single Judge that initial appointment of the appellant was adhoc. Such adhoc appointment did not confer right to regular appointment upon the appellant. However, we note that he was considered for regular selection in the month of February, 1981. He was found suitable but as he did not possess the requisite experience i.e. he did not hold valid driving license for about five years, he was not selected. In view of passage of time and the fact that, though under the interim order, the LPA/41/1989 5/6 JUDGMENT appellant has been continued in service, we believe the ends of justice would be met if the service of the appellant is ordered to be regularised from the date he acquired eligibility and not from the date he joined the service on adhoc basis or on the date he was found suitable but not eligible. In above view of the matter, the Appeal is allowed. The impugned order dated 21st December, 1988 made by the learned Single Judge in above Special Civil Application No.4350/1987 is quashed and set- aside. The Special Civil Application No.4350/1987 is allowed to the extent that the service of the appellant be regularised from 1st March, 1982 (after completion of five years from the date the appellant first acquired valid driving license). The break in his service for the period from the date his service was terminated on 13th January, 1989 to the date he was reinstated in service on 9th March, 1989 be regularised as extra-ordinary leave without pay. It is clarified that this order is made in view of the long passage of time and that the appellant LPA/41/1989 6/6 JUDGMENT was found suitable by the legally appointed Selection Committee. The regularisation of service made in accordance with this direction will not confer right to any other benefit of revision of pay; or refixation of pay; or arrears of salary to the appellant. The parties will bear their own cost. (Ms. R.M.Doshit, J.) (K.M.Thaker, J.) /moin