LPA/269/2002 1/12 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL No. 269 of 2002 In SPECIAL CIVIL APPLICATION No. 1375 of 1988 For Approval and Signature: HONOURABLE MR.JUSTICE RAVI R.TRIPATHI 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 ? ========================================================= GUJARAT MARITIME BOARD & 2 - Appellant(s) Versus ASHOKKUMAR IJJATRAI ANJARIYA & 1 - Respondent(s) ========================================================= LPA/269/2002 2/12 JUDGMENT Appearance : MS SEJAL K MANDAVIA for Appellant(s) : 1 - 3. MR NV ANJARIA for Respondent(s) : 1, RULE SERVED for Respondent(s) : 2, ========================================================= CORAM : HONOURABLE MR.JUSTICE RAVI R.TRIPATHI and HONOURABLE MR.JUSTICE K.M.THAKER Date : 18/09/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE RAVI R.TRIPATHI) 1. The present LPA is filed by the Gujarat Maritime Board and others being aggrieved by judgment and order dated 3.12.2001 passed by this Court in SCA No.1375 of 1988. 2. The learned advocate for the appellants vehemently submitted that the Court ought not have taken upon itself the task of ordering regularization of service of the opponent/original petitioner on the post of Clerk-cum-Typist more particularly with effect LPA/269/2002 3/12 JUDGMENT from 11.3.1997 because there is subsisting policy of giving benefits of regularisation, followed by the Board. The learned advocate for the appellants vehemently submitted that this order causes injustice to ten other employees who, according to the learned advocate for the appellants, are similarly situated. At the outset we must reject this contention of the learned advocate for the appellants. If at all any individual is aggrieved by a judgment and order of this Court, he can always come to the Court either in the same proceeding or by filing substantive proceeding. In the present case, no individual has complained about any injustice to this Court. It is only the Gujarat Maritime Board-the appellant who has chosen to be busy with the litigation of this nature rather than discharging its functions for which it is created by a statute. 3. The learned advocate for the appellants LPA/269/2002 4/12 JUDGMENT vehemently submitted that the order passed by this Court is not in consonance with the principles laid down by the Honourable the Apex Court in Secretary, State of Karnataka and others v. Umadevi (3) and others (2006) 4 SCC 1. The impugned judgment and order is dated 3.12.2001, therefore the judgment of the Honourable the Apex Court delivered on 10.4.2006 was not available for consideration while delivering the judgment and order under challenge. It is a well settled law that a ruling of the Honourable the Apex Court is prospective in nature unless it is otherwise provided. A Division Bench cannot say that the judgment and order is liable to be set aside on the ground that it is not in consonance with the law pronounced by the Honourable the Apex Court which is of a subsequent date. 4. At this juncture Mr. Nilay Anjaria, learned advocate for opponent/original petitioner, invited attention of this Court to a decision of LPA/269/2002 5/12 JUDGMENT the Honourable the Apex Court in U.P. State Electricity Board, Pooran Chandra Pandey and others, (2007) 11 SCC 92. Learned advocate Mr. Anjaria submitted that the principles laid down by the Honourable the Apex Court in Umadevi(3)'s case (supra) are explained in a later decision when the Honourable the Apex Court observed that “to take a contrary view would violate Article 14 of the Constitution. We have to read Umadevi(3) case (2006) 4 SCC 1 in conformity with Article 14 of the Constitution, and we cannot read it in a manner which will make it in conflict with Article 14. The Constitution is the supreme law of the law, and any judgment, not even of the Supreme Court, can violate the Constitution”. 5. Learned advocate Mr. Anjaria for the opponent/original petitioner submitted that what weighed with the Court while disposing of SCA No.1375 of 1988 by judgment and order under challenge was that four persons junior to the petitioner were regularised by the appellant- LPA/269/2002 6/12 JUDGMENT Board while the petitioner was denied that benefit for no valid reasons. The Court therefore had passed the order of regularising the opponent/original petitioner. 6. We having perused the judgment and order under challenge feel it appropriate to reproduce the following observations made in paras 3 and 6 which are as under: “3....The irony stood compounded when it was given out by the learned counsel for the respondents that the main reason for the petitioner being left out was that there was no award in his favour and that even the order of his appointment as a clerk-cum- typist on a permanent vacant post had had to be cancelled under pressure from the union and the employees who stood above the petitioner in the select list of the beneficiaries of the resolution dated 17.10.1988.” LPA/269/2002 7/12 JUDGMENT “6.....Thus, the Board itself had, recognising the seniority and utility of the petitioner as typist, appointed him on the post of clerk-cum-typist against a vacancy. The said order was cancelled without any express reason or an opportunity of being heard and, as given out on behalf of the Board, under pressure from the union and the employees who stood above the petitioner in the seniority list of the beneficiaries of the Resolution dated 17.10.1988. Under such circumstances, it would be necessary and in the interest of justice that the order dated 3.9.1998 cancelling the petitioner's appointment on the vacant post of clerk-cum- typist is set aside and in view of the petitioner's regular working on that post from 11.3.1997, his service is regularised on that post with all the concomitant benefits....” LPA/269/2002 8/12 JUDGMENT 7. At this juncture, the learned advocate Mr. Anjaria also invited our attention to yet another judgment of the Honourable the Apex Court in Gurbachan Lal v. Regional Engineering College, Kurukshetra and others, (2007) 11 SCC 102 wherein the Honourable the Apex Court has observed in paragraph 51 as under: “At this juncture we may observe that the aforesaid decisions of this Court which were overruled by the Constitution Bench decision in which reasons for giving directions to absorb temporary employees were on solid foundation which, however was not dealt with by the Constitution Bench at the time of overruling them. The reasons given in the aforesaid decisions which stand on solid footing, need to be considered in the light of the right of asking for absorption as permanent employees under the Government is a ground which needs to be reconsidered. Be that as it may, the Constitution Bench LPA/269/2002 9/12 JUDGMENT decision having overruled the above decisions, we need not delve any further on this aspect of this matter.” 8. In the result, the LPA fails. The same is dismissed. 9. At this juncture Mr. Anjaria, learned advocate for the opponent/original petitioner, requested that the appellants be directed to comply with the directions given by the judgment and order under challenge on 3.12.2001. Taking into consideration the fact that the opponent had initially joined the service of the appellant Board on 18.4.1984 having passed about a quarter century in the service of the Board, the opponent is still waiting for his rightful claim, to be given by the Board, more particularly when there is a judgment and order in his favour which is also by now seven years old, this Court deems it fit to direct the LPA/269/2002 10/12 JUDGMENT appellant-Gujarat Maritime Board to comply with the directions issued by this Court in judgment and order dated 3.12.2001 as expeditiously as possible and preferably within six weeks from the receipt of this order. 10. At this juncture, learned advocate for the appellant-Gujarat Maritime Board, requests that this direction be stayed. This Court is at pains to record that, Gujarat Maritime Board- a Public Body, is adamant in complying with the judgment and order and is busy with fighting frivolous litigation. It is clear from this request that the appellant is out to see that a person who is having not one but two decisions in his favour is left in a helpless condition and it is assured that even after a Letters Patent Appeal is dismissed by this Court, he does not get anything as the appellant, a Public Body, spending public money in frivolous litigation one after the other can LPA/269/2002 11/12 JUDGMENT approach the Honourable the Apex Court. This Court has no advisory jurisdiction more particularly to the officers who for their personal whims can drag a poor individual to the Highest Court of the country. Still this Court is not able to restrain itself from observing that, 'it will be better if the amount which is going to be spent on the fees of the learned advocates and in the Court is spent for the welfare of its employees. The appellant-Gujarat Maritime Board keeps itself busy in discharging the functions for which it is created rather than pursuing frivolous litigations'. The compliance of this order by depositing the entire amount payable to the opponent- original petitioner employee either before this Hon'ble Court or before the Honourable the Apex Court should be a condition precedent for filing any further proceeding before the Honourable the Apex Court so that in the event the Honourable LPA/269/2002 12/12 JUDGMENT the Apex Court rejects the plea of the appellant, the period of his agony could be shortened to that extent. (Ravi R. Tripathi, J.) (K.M. Thaker, J.) ... (karan)