LPA/1239/2004 1/10 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL No. 1239 of 2004 In SPECIAL CIVIL APPLICATION No. 2082 of 2004 With CIVIL APPLICATION No. 6594 of 2007 In LETTERS PATENT APPEAL No. 1239 of 2004 With CIVIL APPLICATION No. 9287 of 2007 In LETTERS PATENT APPEAL No. 1239 of 2004 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 ? ========================================================= MAKWANA CHANDULAL H & 7 - Appellant(s) Versus STATE OF GUJARAT & 2 - Respondent(s) ========================================================= Appearance : YN OZA, Senior Advocate with Mr. Dipen K. Dave for Appellant(s) : 1 - 8. Mrs. VS PATHAK, ASST GOVERNMENT PLEADER for Respondent(s) : 1, DS AFF.NOT FILED (R) for Respondent(s) : 2, MR RN SHAH for Respondent(s) : 3, ========================================================= LPA/1239/2004 2/10 JUDGMENT CORAM : HONOURABLE MS. JUSTICE R.M.DOSHIT and HONOURABLE MR.JUSTICE K.M.THAKER Date : 26/02/2008 ORAL JUDGMENT (Per : HONOURABLE MS. JUSTICE R.M.DOSHIT) Leave to place the Resolutions dated 13th March, 2001 and 18th July, 2001 on record. 2. This Appeal, preferred by the writ petitioners in Special Civil Application No. 2082 of 2004 arises from interim order dated 30th April, 2004 made by the learned Single Judge pending the Special Civil Application. By impugned order, the interim relief pending the petition has been refused. 3. By order dated 2nd July, 2001 made by the Deputy District Development Officer, District Panchayat, Rajkot the appellants were appointed in the Earthquake Section as 'Talati-cum-Mantri' on a consolidated pay of Rs. 3000 upto 28th LPA/1239/2004 3/10 JUDGMENT February, 2002. On 19th November, 2003 the State Government published advertisement to invite applications from eligible candidates for appointment as 'Panchayat Sahayaks' under the District Panchayats on consolidated salary of Rs. 2500. Feeling aggrieved, the appellants preferred the above Special Civil Application No. 2082 of 2004 under Article 226 of the Constitution before this Court. According to the appellants they were appointed as Talati-cum- Mantri after selection made by a committee and were entitled to appointment as Panchayat Sahayaks. Feeling apprehensive that on appointment of the Panchayat Sahayaks their service will be terminated, the appellants prayed that they be appointed on the post of Panchayat Sahayaks; that the respondents be restrained from recruiting and appointing any person on the post of Panchayat Sahayak in pursuance of the advertisement published on 19th November, 2003 and for a direction to regularize the service of the appellants as Talati-cum-Mantri. Pending the petition, the appellants prayed for directions; LPA/1239/2004 4/10 JUDGMENT (i) to restrain the respondents, their agents, officers and servants from terminating the service of the petitioners on the post of Talati-cum-Mantri; (ii) to restrain the respondents,their servants officers and agents from recruiting and appointing any persons on the post of Panchayat Sahayaks in pursuance of the advertisement at Annexure “D”, without first appointing the petitioners on the post of Panchayat Sahayaks considering their experience and the work performed by them on the post of Talati-cum-Mantri in the District of Rajkot; (iii) to direct the respondents to keep 8 posts of Panchayat Sahayaks vacant in the District of Rajkot”.... LPA/1239/2004 5/10 JUDGMENT 4. Mr. Oza has appeared for the appellants. He has submitted that the appellants are qualified for being appointed as Talati-cum-Mantri; their names were sponsored by the Employment Exchange office; they were selected for appointment as Talati-cum- Mantri after selection by the interview committee. The appellants, therefore, have a right to appointment under the District Panchayat. He has submitted that under the interim order made pending this Appeal the appellants have continued in service. He has relied upon the averments made in Civil Application No. 9287 of 2007. He has submitted that though the appellants have been continued in service the appellants have not been paid the salaries since the month of July, 2006. 5. The Appeal is contested by Mr. Shah. 6. After the massive destruction due to earthquake on 26th January, 2001, the State Government was required to take up rehabilitation work. To man the rehabilitation work all over the State, the State Government, under its resolution passed on 13th March, LPA/1239/2004 6/10 JUDGMENT 2001, sanctioned 1000 posts of Talati-cum-Mantri for a period upto 28th February, 2002. The said 1000 posts were distributed amongst six districts. As far as the Rajkot District is concerned, 100 posts were allocated to the Rajkot District. By resolution passed on 18th July, 2001 total number of posts sanctioned were reduced to 600 and the posts allocated to the Rajkot District were reduced to 75. The terms and conditions approved by the said Resolution provided, inter alia, that the said posts were sanctioned for period upto 28th February, 2002. The District Development Officer would recruit the persons by calling the names from District Employment Exchange; selection to be made on the basis of educational merit and after interview by a committee comprising District Collector, District Development Officer and the Social Welfare Officer. Even a retired Talati was allowed to be appointed. For eligibility, educational qualifications and the age limit as applicable for appointment to the posts of Talati-cum-Mantri, Junior Clerk and Gujarati Typist be adopted. Over and above consolidated pay of Rs. 3000, the said terms and conditions provided for LPA/1239/2004 7/10 JUDGMENT grant of certain allowance, weekly holiday, absence without leave, termination of service after giving 7 days' notice, etc. It was made specific that the appointment under the said resolution would be ad-hoc specifically for rehabilitation work. The persons selected would not be entitled to claim for employment under the Panchayat or any Board or Corporation or under the State Government, etc. It is not in dispute that it was pursuant to the aforesaid resolution, the appellants came to be employed as Talati-cum-Mantri. The appointment order also incorporated the above referred terms and conditions mentioned in the resolution dated 13th March, 2001. It further appears that after the prescribed period, i.e., after 28th February, 2002 the rehabilitation work in Morbi Taluka of Rajkot District was not completed. The appellants were, therefore, by order made by the Taluka Development Officer continued in service as daily wage employees and were paid accordingly. 7. The question that arises for the purpose of the present Appeal is whether by virtue of their LPA/1239/2004 8/10 JUDGMENT initial appointment on 2nd July, 2001 and subsequent continuation in service as daily wage employees the appellants were entitled to continue in service and whether by virtue of their appointment the appellants were entitled to be absorbed in the service of the District Panchayat as Panchayat Sahayaks. 8. Undoubtedly, the appellants came to be appointed as Talati-cum-Mantri pursuant to the above referred resolution dated 13th March, 2001 by local selection. According to the terms and conditions of their appointment, their service was not supposed to be continued after 28th February, 2002. Since 28th February, 2002 their service was continued at taluka level as daily wage employees. In our opinion, neither the appellants can be said to have been appointed in accordance with relevant recruitment rules after proper selection nor did the terms and conditions confer right upon the appellants of permanent employment on regular posts. Their appointment, right from the first was ad-hoc, made for a specified purpose and specified period. Such appointment did not create equity in favour of the LPA/1239/2004 9/10 JUDGMENT appellants nor did the appellants have right to be absorbed in service as Panchayat Sahayak. In our opinion, the learned Single Judge has rightly refused to grant interim relief pending the petition. 9. For the aforesaid reasons, the Appeal is dismissed. Interim relief is vacated. 10. Mr. Shah admits that the appellants have not been paid the wages since July, 2006. In the submission of Mr. Shah, unless the State Government makes the fund available the District Panchayat is unable to pay the wages to the appellants. Whether the State Government makes the funds available or not, the District Panchayat is obliged to pay the appellants their wages so long as they are employed by the District Panchayat. It is, therefore, directed that the District Panchayat will pay unpaid wages to the appellants within two months from today. 11. Subject to the above direction, the Appeal, the Civil Application No. 6594 of 2007 and Civil Application No. 9287 of 2007 stand disposed of. The parties will bear their own cost. LPA/1239/2004 10/10 JUDGMENT [ Ms. R.M. Doshit, J. ] rmr*. [ K.M. Thaker, J. ]