SCA/22157/2005 1/38 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 22157 of 2005 With SPECIAL CIVIL APPLICATION No. 23800 of 2005 With SPECIAL CIVIL APPLICATION No. 2000 of 2001 With SPECIAL CIVIL APPLICATION No. 23724 of 2005 With SPECIAL CIVIL APPLICATION No. 22658 of 2005 To SPECIAL CIVIL APPLICATION No. 22662 of 2005 With SPECIAL CIVIL APPLICATION No. 23725 of 2005 With SPECIAL CIVIL APPLICATION No. 23865 of 2005 With SPECIAL CIVIL APPLICATION No. 23866 of 2005 With SPECIAL CIVIL APPLICATION No. 12678 of 2005 With SPECIAL CIVIL APPLICATION No. 20406 of 2005 With SPECIAL CIVIL APPLICATION No. 20405 of 2005 With SPECIAL CIVIL APPLICATION No. 20301 of 2005 With SPECIAL CIVIL APPLICATION No. 24540 of 2005 With SPECIAL CIVIL APPLICATION No. 24661 of 2005 To SPECIAL CIVIL APPLICATION No. 24669 of 2005 With SPECIAL CIVIL APPLICATION No. 22158 of 2005 With SPECIAL CIVIL APPLICATION No. 22104 of 2005 With SPECIAL CIVIL APPLICATION No. 21669 of 2005 With SPECIAL CIVIL APPLICATION No. 22834 of 2005 To SPECIAL CIVIL APPLICATION No. 22836 of 2005 With SPECIAL CIVIL APPLICATION No. 22840 of 2005 With SPECIAL CIVIL APPLICATION No. 8440 of 2004 With SPECIAL CIVIL APPLICATION No. 23846 of 2005 With SPECIAL CIVIL APPLICATION Nos.3 to 13 of 2006 with SPECIAL CIVIL APPLICATION Nos.14333 to 14335 of 2005 with SPECIAL CIVIL APPLICATION Nos.22641, 21792 and 22667 of 2005 SCA/22157/2005 2/38 JUDGMENT For Approval and Signature: HONOURABLE MR.JUSTICE JAYANT PATEL ============================================================== 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 ? ============================================================== PRAVIN A PARMAR - Petitioner(s) Versus SECRETARY YOURH, SERVICES AND CULTURAL ACTIVITIES DEPARTMENT & 2 - Respondent(s) ============================================================== Appearance : MR PINAKIN M RAVAL for Petitioner(s) : 1, MR DIPAN DESAI, AGP for Respondent(s) : 1, None for Respondent(s) : 2 - 3. ================================================================== CORAM : HONOURABLE MR.JUSTICE JAYANT PATEL Date : 12/01/2006 COMMON ORAL JUDGMENT 1.Heard Mr.Pinakin Raval, Ms.Sadhana Sagar, Mr.Japee, Mr.Virendra Baheti, Mr.Dagli, Mr.Vyas, Mr.Pandya, Mr.Jaykuar Patel, Mr.D.P.Vora, Mr.Astavadi, Mr.Devang Vyas, Mr.Tandel and Mr.Dalal, learned Counsel appearing for the concerned petitioners as well as Mr.Dipan Desai, learned AGP appearing for the State, Mr.Munshaw, learned Counsel for respondent Kheda District Panchayat SCA/22157/2005 3/38 JUDGMENT appearing in the concerned petitions and Mr.Mehul Rathod, learned Counsel for respondent No.1 in the concerned petitions. 2.As all the petitions are inter-connected and common questions arise for consideration, they are being considered by this common order. 3.It is not in dispute that all the petitioners are working as part-timer in the respective Department of the State Government or the office is under the direct or indirect control of the State Government. It is also not in dispute that the petitioners were appointed on the concerned posts as part-timer and the duty was for different periods considering the work in which the engagement was there. As per some of the petitioners, their names were called from the Employment Exchange and thereafter the appointments were given as part- timer, whereas such is not pleaded in case of some of the petitioners, but the fact remains that status of all the petitioners are as that of engaged for part- time work in the concerned office of the State Government. The challenge can broadly be classified into two categories; (1) challenge against the termination in capacity as part-timer employee; and (2) challenge to the action of the authority in not regularizing the services on the permanent post by SCA/22157/2005 4/38 JUDGMENT converting the status of the petitioner from part-timer to full-timer or in alternative, the prayers are for directing the respondent authority to absorb the petitioners on regular scale in the permanent cadre wherever the posts are available and if the posts are not available, the part-timer post may be converted as full-timer and the absorptions may be ordered. 4.So far as the first challenge is concerned, as such it would depend upon the terms and conditions of the appointment. If the appointment of the concerned petitioner is as part-timer, till a particular period, and if the conditions so provide for enabling power with the authority to terminate, such power for termination can be exercised. If the engagement is as daily wager and not for a fixed period, the appointment may be continued till the requirement of the work as daily wager, but if such engagement is discontinued as that of the daily wager, it cannot be validly asserted as of right that the termination is illegal. The reference may be made to the decision of the Apex Court in case of “Allahabad Bank vs. Premsingh”, reported in 1996 (10) SCC, 597, more particularly the observations made at para 9, of the said decision. 5.However, in a matter where the appointment is there for a fixed period as it is in case of SCA No.22641 of SCA/22157/2005 5/38 JUDGMENT 2005, SCA No.22667 of 2005, SCA No.22658 to 22662 of 2005, SCA No.22724 of 2005, SCA No.22725 of 2005 the position would not be the same. It appears that the power for termination is not exercised for any bonafide purpose, but is exercised with a view to deprive the concerned petitioners from the benefits under the law, as may be available. The perusal of the circular dated 14.10.2005 by Director of Library on the basis of which the impugned termination orders are issued shows that the same is with a view to deprive the employees concerned from their legitimate rights under law and, therefore, it has been communicated for giving an artificial break. 6.The Hon'ble Apex Court has observed that such practice must be deprecated. The reference may be made to the decision of the Apex Court in case of “Bhagwati Prasad v. Delhi State Mineral Development Corporation,” reported at 1990(1) SCC, p. 36. It appears that based on the said circular dated 14.10.2005, the termination orders are passed, though the post available are up to 31.3.2006 and, therefore, the impugned termination order, which is challenged in the aforesaid SCAs by the petitioners, who are working as part-timer in the Government Library of the State Government can be said as illegal and arbitrary and as a consequence thereof SCA/22157/2005 6/38 JUDGMENT the impugned termination order cannot be maintained in the eye of law and deserves to be quashed and set aside. 7.The larger issues are required to be considered in the second aspects of the petition as referred to hereinabove pertain to the right of such part-timer employees for absorption by converting the post from part-timer to full-timer. 8.The contention of the petitioners in all the petitions are that the State Government has issued the circular giving directions to all the Departmental Heads to assess the situation if such part-timer had continued for a period of more than three years and, therefore, it has been prayed that the posts in question are required to be converted as full-timer and the petitioners are required to be absorbed as full-timer on the regular post. It has also been submitted that in certain cases the posts are available and, therefore, if the petitioners are continued as part- timer and are not absorbed on the permanent available posts of full-timer, the same results into exploitation of the petitioners and, therefore, the action would be unreasonable and arbitrary and, in any case, would not be in the larger interest, where the State Government is supposed to act as the model employer. In support SCA/22157/2005 7/38 JUDGMENT of the submissions made by the learned Counsel appearing for the petitioners, they have relied upon two decisions of this Court; (1) Special Civil Application No.8917 of 1998 decided on 17.12.2004; and (2) Special Civil Application No.1804 of 1987 decided on 1.4.2004. The petitioners have also submitted that as such the decision of this Court in Special Civil Application No.8917 of 1998 and allied matters is based on another decision of this Court in SCA No.1209 of 1994 decided on 20.7.1998 and it has been further submitted that the aforesaid view of this Court in SCA No.1209 of 1994 is followed in SCA No.9296 of 2000 and thereafter the LPA (St.) No.1424 of 2004 was preferred against the decision of this Court in SCA No.8917 of 1998 and the LPA is withdrawn. It has been further submitted that SLP was preferred against the decision of the Division Bench of this Court being SLP (Civil) No.16455 of 2005 arising from the order dated 9.12.2004 in LPA No.2504 of 2005 and the Hon'ble Supreme Court has dismissed the SLP on 16.8.2005 (Page 48 of SCA No.22834 of 2005) and, therefore, it has been submitted that this Court, may take the same view as the matters are covered by the said decision. 9.It may be recorded that when some of the matters being SCA No.22157 of 2005 with SCA No.22158 of 2005 with SCA SCA/22157/2005 8/38 JUDGMENT No.22104 of 2005 came up for hearing before this Court, this Court had passed the following order on 15.11.2005: 1.Upon hearing the learned Counsel for the petitioners, it appears that the reliefs are prayed by the petitioners mainly on the ground that in similar circumstances in respect to the very department, this Court has directed for absorption on permanent post on regular basis. Mr.Raval, learned Counsel for the petitioners has relied upon the decision of this Court (Coram: A.H. Mehta, J.) dated 17.2.2004 in Special Civil Application No.8917 of 1998 and others and another decision of this Court (Coram: R.R.Tripathi, J.) dated 1.4.2004 in Special Civil Application No.1804 of 1987. The perusal of both the judgements show that since the petitioner continued as part-timer for the period of about three years by relying upon the circular dated 26.12.1980, the petitioners have been ordered to be absorbed on permanent post. 2.Mr.Desai, learned AGP, during the course of the hearing did submit that the said circular dated 26.12.1980 is kept in abeyance due to economic measure as per the circular dated 21.8.1999. It appears that this Court in above referred two SCA/22157/2005 9/38 JUDGMENT decisions directed regularisation on permanent post and, therefore, on behalf of the petitioners, it has been submitted that the petitioners would be entitled for the same relief as granted by this Court in the above referred decisions qua other employees. 3.It appears that for the recruitment in any public employment, the procedure as provided under the recruitment rules are required to be followed. If the appointment of the petitioners are made on temporary basis as part-timers the same cannot be read as appointment made on full time permanent post. If the vacancy of full time permanent post is to be filled up the requirements as per the recruitment rules are to be followed. The petitioners who may be working on part-time basis, temporarily may be considered, but such consideration cannot result into foreclosing the entry to the zone of consideration to the other similarly situated persons in such public employment. If such is permitted, it may result into regularising the back-door entry or conferring the benefits upon the persons who are not selected for the post in question. The reference may be made to the recent decision of the Apex Court in case of “Binod Kumar Gupta and SCA/22157/2005 10/38 JUDGMENT Ors v. Ram Ashray Mahoto and Others”, reported in 2005(4) SCC, 209, more particularly the observations made by the Apex Court for appointments of Class-IV Staff in Civil Courts. The reference may also be made to another decisions of the Apex Court in case of “Dhampur Sugar Mills Ltd. v. Bhola Singh”, reported in 2005(2) SCC, 470 and in case of “Mahendra L. Jain v. Indore Development Authority”, reported in 2005(1) SCC, 639, whereby the view taken is that daily wager in the absence of a statutory provision would not be entitled to claim regularisation. So far as the settled norms for public employment is concerned and for Court to allow the regular appointment to continue is concerned, it would also be necessary to consider the observations made by the Division Bench of this Court in case of “Halvad Nagarpalika & Anr. v. Jain Dipakbhai chandravadanbhai & Ors.”, reported in 2003(4) GLR, 3229 at para 18 of the said decision. Therefore, in view of the aforesaid decision of the Apex Court, the petitioners, at the most, can be considered together with the other similarly situated persons at the time when the process for filling up of the SCA/22157/2005 11/38 JUDGMENT permanent post is undertaken but, in any case, direction cannot be issued to the respondent Authorities to absorb the petitioners on the permanent post, without following the regular process of recruitment and that too, after giving opportunity to all eligible candidates at that time. 4.It appears that in the aforesaid decisions of this Court, attention of the Court is not drawn to the above referred decision of the Supreme Court and the issue is not examined in detail as to the extent that if such is permitted in public employment, it may result into deprivation of the opportunity to other similarly situated and eligible candidates and also giving premium to the petitioners who are not selected for the post concerned. 5.In view of the above, I find that it would be just and proper to refer the matter to the Division Bench. It may be incidentally recorded that against the decision of the learned Single Judge in Special Civil Application No.8917 of 1998 and others, upon which the reliance is placed, Letters Patent Appeal (St.) No.1424 of 2004 was preferred by the Government, but the said LPA is withdrawn as per the order dated 6.10.2005 passed by the SCA/22157/2005 12/38 JUDGMENT Division Bench of this Court. It has been stated by the learned Counsel appearing for the petitioner that in the contempt proceedings the order of the learned Single Judge was implemented and thereafter the LPA has been withdrawn. 6.Be that as it may, but it appears that there is no decision of the Division Bench of this Court brought to the notice of this Court having considered the above referred decision of the Supreme Court. 7.Hence, Office to place the matter before the Bench as may be ordered by the Hon'ble the Chief Justice on administrative side. The petitioner to supply second set on or before 17.11.2005. 8.In Special Civil Application Nos.22157 and 22158 of 2005 no interim relief has been granted, however, in Special Civil Application No.22104 of 2005, ad-interim relief has been granted against the termination and, therefore, the ad-interim relief granted earlier shall continue till the listing of the matter before the Division Bench on 21.11.2005. 10.Thereafter the matters were placed before the Division Bench of this Court (Coram: B.J.Shethna and M.C.Patel, J.J.) and on 6.12.2005 the following order was passed by the Division Bench: SCA/22157/2005 13/38 JUDGMENT “1. All these petitions are placed before this Court in view of the order dated 15.11.2005 passed by the learned Single Judge of this Court. 2. Having carefully gone through the order passed by the learned Single Judge and the judgment of the Hon'ble Supreme Court which is referred to and discussed by the learned Single Judge in his order, in brief, we are of the considered opinion that when there is a Supreme Court judgment, then, the matters were required to be decided by the learned Single Judge in light of the Supreme Court judgment. For that the Division Bench judgment of this Court was not necessary, even if there was a conflicting view taken by different learned Single Judges of this Court. Whereas, in the instant case, two different Hon'ble Judges of this Court took the same view. 3. In light of the above, we are of the considered opinion that all the writ petitions be now placed before the learned Single Judge for passing appropriate orders SCA/22157/2005 14/38 JUDGMENT on it after obtaining necessary orders from the Hon'ble the Chief Justice. Till then, the interim relief operating in the matters to continue.” 11.Thereafter in view of the aforesaid order passed by the Division Bench, the present group of petitions together with the other petitions were placed for hearing before the Single Bench of this Court. 12.Therefore, in the aforesaid circumstances all the matters deserve to be considered also in light of the decision of the Apex Court referred to in the order dated 15.11.2005 in SCA No.22157 of 2005 and the allied matters and others, since the aforesaid decision of the Apex Court could not be brought to the notice of this Court (Coram: Kundan Singh, J.), (Coram: A.H.Mehta, J.) and (Coram: Ravi R. Tripathi, J.) and consequently could not be considered by this Court. It also deserves to be recorded that after the aforesaid three decisions of this Court, the Full Bench of this Court in case of “Amreli Municipality v. Gujarat Pradesh Municipal Employees Union”, reported at 2004(3) GLR, 1 had an occasion to consider the issue which is connected with the subject matter of the present group of petitions and, therefore, the said decision of the Full Bench is also to be considered while deciding the SCA/22157/2005 15/38 JUDGMENT second aspect raised by the petitioners for seeking regularization and/or absorption on the available permanent posts or by conversion of posts from part- timer to full-timer. 13.It is an un-disputed position that the employment to which this Court is concerned in all the group of petitions is the employment in the State Government i.e., public employment. The constitutional mandate provides that all who are eligible for the posts in question are required to be given equal opportunity for consideration at the time when selection or appointment are to be made in the public employment. The mode of recruitment in public employment for the eligibility criteria may vary from case to case. However, one of the settled norms for filling up of the post of public employment is to invite applications from all the eligible persons and to give opportunity to all eligible persons to apply for the posts and thereafter to consider the applications of eligible persons on the basis of, inter se, merits and thereafter to make the appointment for the posts in question. 14.The post of part-time employment at the first instance cannot be equated with the post of full-time employment. Even if it is considered for the sake of examination that all the petitioners were appointed as SCA/22157/2005 16/38 JUDGMENT part-timers or in the posts of part-time employment after calling their names from the Employment Exchange, then also their appointment is on part-time basis and even if the contention of the petitioners is accepted as that of no irregular appointment as part-timer, the petitioners can at the most be termed as appointed on part-time basis. Therefore, the appointment of the petitioners are not at all made on full time basis. 15.Even if due to requirement of the work part-time posts are converted as full time posts or new full-time posts are created, such posts should and must be available to all eligible candidates who are meeting with the necessary qualification for the posts in question. If the vacant posts, may be by conversion or creation of new post, are only made available to the petitioners, whose selection is not otherwise of full-time posts, the consequence would be that such full-time posts will not be made available to the other eligible persons and the same may result into deprivation of the rights of other eligible citizens to apply for the posts in question, more particularly when such posts are in public employment. If the deprivation of the opportunity to the candidates who are otherwise holding the necessary qualification, is to be considered, such action not only may not meet with the test of Article SCA/22157/2005 17/38 JUDGMENT 14 of the constitution of India, but would also result into violation of Article 16 of the Constitution of India. Therefore, as such with a view to ensure that the selection process meets with the test of Articles 14 and 16 of the Constitution of India, the recruitment Rules are framed, including that for Class-IV employees and the recruitment process as per the recruitment Rules are required to be undertaken by the concerned Department of the State Government. Any action of the statutory authority for giving appointment in any public employment in contravention to the recruitment rules or without following the recruitment process can generally be said to be illegal. Further this Court while exercising the power under Article 226 of the Constitution would not create a situation compelling the authority to make the appointment dehors the statutory Rules for recruitment or without following the recruitment process, resulting into deprivation of large number of other eligible candidate from being considered for the post in public employment. 16.At this stage, it would be profitable to extract certain observations of the Hon'ble Apex Court on the aspects of status of an employee appointed on particular terms and conditions and seeking a different status or conversion thereof in “State of M.P. And Anr. SCA/22157/2005 18/38 JUDGMENT vs. Dharam Bir”, reported in 1998(6) SCC, 165. In the said decision the Apex Court observed at para 26 and 27 as under: “26. Whether a person holds a particular post in a substantive capacity or is only temporary or ad hoc is a question which directly relates to his status. It all depends upon the terms of appointment. It is not open to any government employee to claim automatic alteration of status unless that result is specifically envisaged by some provision in the statutory rules. Unless, therefore, there is a provision in the statutory rules for alteration of status in a particular situation, it is not open to any government employee to claima status different that that which was conferred upon him at the initial or any subsequent stage of service. 27. Applying these principles to the instant case, since the respondent admittedly, was appointed in an ad hoc capacity, he would continue to hold the post in question in that capacity. On the promulgation of Rules, therefore, the post of Principal which he was holding could not be treated to have been filled up onregular basis and had to be treated as vacant. In order to make SCA/22157/2005 19/38 JUDGMENT regular appointment by promotion on that post, the eligible candidates were considered and the respondent, not possessing the required educational qualification, was not found fit or suitable for the post of Principal and was consequently directed to be appointed on regular basis as Vice-Principal as he was found suitable only for that post principally for the reason that he did not possess a Degree or Diploma in Engineering.” 17.In case of “Mahendra L. Jain and Ors. v. Indore Development Authority and Ors.”, reported in 2005(1) SCC, 639, the Apex Court while considering the matter for regularisation of the daily wagers who were later on given monthly salary having found that there is no provision under the standing order observed as under at para 19: “19. The question, therefore, should arise for consideration is as to whether they could lay a valid claim for regularisation of services. The answer to that must be rendered in the negative. Regularisation cannot be claimed as a matter of right. Illegal appointment cannot be legalised by taking recourse to the regularisation. What can regularise is an irregularity and not an SCA/22157/2005 20/38 JUDGMENT illegality. The constitutional scheme which the country has adopted does not contemplate any back- door appointment. A State before offering public service to a person must comply with the constitutional requirements of Articles 14 and 16 of the Constitution. All actions of State must confirm to the constitutional requirements. A daily-wager in absence of any statutory provisions in this behalf would not be