Case: VINOD RAVJIBHAI RAJPUT Vs. STATE OF GUJARAT &amp; ORS

7. A candidate appointed by direct selection shall have to undergo such training according to his job and to pass such examination as may be prescribed by the Government from time to time. 26. On behalf of the Respondents, it was also argued that, the conditions for regularization of Class IV employees have been laid down in a Government Resolution dated 1 st May 2007. For regularization, the employees needed to fulfill the following conditions: (i) On 10 th February, 2006, the employees should have completed ten years of service, putting in atleast 6 hours of work per day. The ten year period should not be on the strength of any order of the Court or the Tribunal; (ii) The employees who had completed ten years of service should have been appointed in accordance with recruitment procedure prevailing at the relevant point of time. In other words, their names should have been recommended by the Employment Exchange, Social Welfare Authority etc.; (iii) At the time of temporary appointment, the employee should have had the requisite eligibility for being appointed to the particular post of Class IV and; (iv) the appointment should have been sanctioned by a competent authority and the appointment should have been against a vacant post. 27. The Respondent Authorities have been contending that the Appellant had not fulfilled condition No.(i) of the Government Resolution dated 1 st May 2007, as he had not completed ten years of service as a temporary employee on 10 th February 2006, but put in nine years and four months of service. His continuance thereafter, was on the strength of the order passed by the High Court. 28. By the judgment and order of 22 nd August 2013 in Letters Patent Appeal No. 635 of 2013 referred to above, the earlier Division bench had clearly directed reinstatement of the Appellant, but without back wages. As observed above the said judgment and order has assumed finality and is binding on the Respondents. It was not open to the concerned authorities to give fresh appointment to the Appellant with effect from 14 th October 2013. The learned Single Bench very rightly allowed the writ petition. However, the only error that the Single Bench made, was in directing reinstatement of the Appellant with consequential benefits, without clarifying that the reinstatement would be with consequential benefits except back wages for the period from 18.12.2012 to 22.08.2013 when the Appellant had not worked. 29. The Appellant having been appointed full-time Gallary Attendant Group-IV with the approval of the Director, Sangrahalaya, by the order dated 25.7.2002, his services could not have been terminated after almost two years, on the purported ground of a Government policy keeping permanent appointments in abeyance. The Division Bench had decided Letters Patent No.635 of 2016, after considering the Government Resolution dated 1 st May 2007 of the Finance Department, which had been issued in the wake of the directions of the Supreme Court in the case of Secretary, State of Karnataka & Ors. vs. Umadevi & Ors. reported in (2006) 4 SCC 1 . 30. The judgment and order in Uma Devi (supra) or the resolution dated 1 st May 2007 adopted pursuant to the said judgment and order cannot be retrospectively applied to the Appellant, who had duly been appointed full-time Gallery Attendant way back in 2002. The Rules framed in 2005 referred to above, cannot also have retrospective operation. 31. In Letters Patent Appeal No. 635 of 2013, the Division Bench held that the view taken by the Respondent Authorities was unreasonable for the following reasons:- (i) It was not in dispute that the appellant was appointed as a part-time Gallery Attendant on 14 th March, 1995; (ii) at that time post of full-time Gallery Attendant was vacant; (iii) the name of the appellant had been forwarded by the Employment Exchange and he had been interviewed; (iv) the appellant held a certificate of the Museum certifying his sincerity and honesty as Gallery Attendant; (v) on 25 th July, 2002, the appellant had been appointed as a full-time Gallery Attendant with the prior permission and sanction of the Director, Sangrahalaya Department, State of Gujarat. (vi) The order of termination dated 1 st July, 2004 was issued after permitting the appellant to work as full-time regular Gallery Attendant for almost a period of two years. (vii) By the time the order of termination had been issued, the appellant had put in nine years and four months of combined service as part-time employee and as full-time Gallery Attendant. (viii) The learned Single Judge had passed an interim order on being prima facie satisfied of the merits of the case of the appellant. 32. After considering all the factors surrounding the initial appointment of the Appellant as part-time Gallery Attendant, his services as full-time Gallery Attendant, the interim order of the Single Bench and considering that the Appellant had rendered almost seventeen years of service as a Gallery Attendant, Bhuj Museum, the Division Bench had allowed the appeal of the Appellant, set aside the judgment and order of the Single Bench dated 2 nd April 2013 and directed the Respondent Authorities to reinstate the Appellant to the post of full-time Gallery Attendant of Bhuj Museum forthwith, but without back wages, since the Appellant had not worked from 18 th December 2012 till the date of the judgment of the Division Bench. 33. In our considered opinion, the Appellant has to be reinstated with continuity of service from the date of his initial appointment as full-time Gallery Attendant in July 2002, but without back wages for the period between 18.12.2012 to 22.08.2013, when the Appellant did not work. The Appellant shall, however, be entitled to differential salary, if any, between the post of full-time Gallery Attendant and part-time Gallery Attendant from 25 th July 2002 onwards, but not for the period between 18.12.2012 to 22.08.2013, in view of the judgment and order of the Division Bench dated 22.08.2013 in Letters Patent Appeal No. 635 of 2013.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]23. May be, as argued by learned Counsel on behalf of the Respondent Authorities, the order of appointment i.e. 14 th October 2013 does not bear any reference to the judgment and order of the Division Bench, dated 22 nd August 2013 in Letters Patent Appeal No.635 of 2013. However, the aforesaid judgment and order, against which there was no appeal, has assumed finality and is binding on the Respondents28. By the judgment and order of 22 nd August 2013 in Letters Patent Appeal No. 635 of 2013 referred to above, the earlier Division bench had clearly directed reinstatement of the Appellant, but without back wages. As observed above the said judgment and order has assumed finality and is binding on the Respondents. It was not open to the concerned authorities to give fresh appointment to the Appellant with effect from 14 th October 2013. The learned Single Bench very rightly allowed the writ petition. However, the only error that the Single Bench made, was in directing reinstatement of the Appellant with consequential benefits, without clarifying that the reinstatement would be with consequential benefits except back wages for the period from 18.12.2012 to 22.08.2013 when the Appellant had not worked29. The Appellant having been appointed full-time Gallary Attendant Group-IV with the approval of the Director, Sangrahalaya, by the order dated 25.7.2002, his services could not have been terminated after almost two years, on the purported ground of a Government policy keeping permanent appointments in abeyance. The Division Bench had decided Letters Patent No.635 of 2016, after considering the Government Resolution dated 1 st May 2007 of the Finance Department, which had been issued in the wake of the directions of the Supreme Court in the case of Secretary, State of Karnataka & Ors. vs. Umadevi & Ors. reported in (2006) 4 SCC 1 30. The judgment and order in Uma Devi (supra) or the resolution dated 1 st May 2007 adopted pursuant to the said judgment and order cannot be retrospectively applied to the Appellant, who had duly been appointed full-time Gallery Attendant way back in 2002. The Rules framed in 2005 referred to above, cannot also have retrospective operation32. After considering all the factors surrounding the initial appointment of the Appellant as part-time Gallery Attendant, his services as full-time Gallery Attendant, the interim order of the Single Bench and considering that the Appellant had rendered almost seventeen years of service as a Gallery Attendant, Bhuj Museum, the Division Bench had allowed the appeal of the Appellant, set aside the judgment and order of the Single Bench dated 2 nd April 2013 and directed the Respondent Authorities to reinstate the Appellant to the post of full-time Gallery Attendant of Bhuj Museum forthwith, but without back wages, since the Appellant had not worked from 18 th December 2012 till the date of the judgment of the Division Bench33. In our considered opinion, the Appellant has to be reinstated with continuity of service from the date of his initial appointment as full-time Gallery Attendant in July 2002, but without back wages for the period between 18.12.2012 to 22.08.2013, when the Appellant did not work. The Appellant shall, however, be entitled to differential salary, if any, between the post of full-time Gallery Attendant and part-time Gallery Attendant from 25 th July 2002 onwards, but not for the period between 18.12.2012 to 22.08.2013, in view of the judgment and order of the Division Bench dated 22.08.2013 in Letters Patent Appeal No. 635 of 2013.