Mahendrabhai P. Prajapati vs State of Gujarat and Others

Abhilasha Kumari, J.—Rule. Mr. Maulik G. Nanavati, learned Assistant Government Pleader, waives service of notice of Rule on behalf of Respondent No. 1. Mr. Rajesh Chauhan, learned advocate, waives service of notice of Rule on behalf of Respondents Nos. 2 and 3. On the facts and in the circumstances of the case, and with the consent of the learned advocates for the respective parties, the petition is being heard and finally decided, today.

The Petitioner has preferred this petition under Article 226 of the Constitution of India, inter alia, with a prayer to regularize his services. During the pendency of the petition, the Petitioner was permitted to amend the petition. As per the amended prayer, the Petitioner has challenged the `oral'' termination of his services, on 12.10.2010.

Briefly stated, the facts of the case as stated in the petition are that the Petitioner was initially appointed as Assistant Clerk in the Taluka Panchayat, Nasvadi, on 01.09.1997. It is the admitted case of the Petitioner that he was appointed `orally'' by the concerned Department. According to the Petitioner, he was initially given fixed pay of Rs. 900/- per month. Thereafter, his pay came to be revised from time to time and from the year 2007 onwards, he has been paid fixed salary of Rs. 5,000/- per month. The case of the Petitioner is that he has been working for more than eight hours a day without any break since 1997, till his "oral termination" on 12.10.2010. The grievance of the Petitioner is that considering his working hours and length of service put in by him, he ought to have been regularized, instead of which, during the pendency of the petition, his services were terminated orally on 12.10.2010.

Mr. P.B. Khambholja, learned advocate for the Petitioner, has submitted that the Petitioner has been serving as Assistant Clerk with effect from 01.09.1997 to 12.10.2010 and has been performing the duties of a regularly appointed Clerk for eight hours a day. That there is no break in service of the Petitioner and considering the length of service put in by him, his services ought to have been regularized. That the representation of the Petitioner for regularization of services has not been decided. Instead of regularizing the services of the Petitioner, he has been subjected to oral termination of his services in a most arbitrary and illegal manner during the pendency of the petition, which action deserves to be quashed and set aside and the services of the Petitioner regularized.

An affidavit-in-reply has been filed on behalf of Respondent No. 3 -Taluka Development Officer, affirmed on 09.10.2010. A further affidavit has also been filed by the said Respondent, affirmed on 08.03.2011. The stand taken in the affidavit-in-reply is that the Petitioner was engaged on purely temporary, adhoc basis, as a daily wager without following due procedure of recruitment in the month of September, 1997, and that the Taluka Panchayat had no powers to make any regular recruitment. However, the Petitioner was continued without prior permission from the District Development Commissioner and his wages were paid out of the Work charge Contingency Fund by the Taluka Panchayat. It is denied that the Petitioner was employed as Assistant Clerk and it is stated that there is no cadre of Assistant Clerk, either in the Taluka Panchayat or District Panchayat and the Petitioner was doing miscellaneous work. It is averred in the said affidavit that the Petitioner has not worked at all after January, 2007, and he has been paid an amount of Rs. 2,12,033/- for the period commencing September, 1997 to January, 2007. It is also denied that the Petitioner was getting regular pay-scale and is averred that as he was not entitled to regular pay-scale, having been appointed without following any legal procedure, and his wages were paid out of the Contingency Fund. It is stated that the Petitioner has been paid an amount of Rs. 2,438/- towards wages in the month of January, 2007, and thereafter, he has not rendered any services, therefore, he has not been paid any wages. The same stand is reiterated in the further affidavit filed on behalf of Respondent No. 3. In addition thereto, it is averred in the further affidavit that the Petitioner has not worked after January 2007 and has not produced any evidence on record which would show that he has worked up to 12.10.2010, as averred in the petition.

Reiterating the stand taken in the affidavit and further affidavit filed on behalf of Respondent No. 3, Mr. Rajesh Chauhan, learned advocate for Mr. H.S. Munshaw, learned Counsel for Respondent No. 3, submits that the services of the Petitioner cannot be regularized as he has not been appointed in a legal or valid manner. No procedure known to law has been followed while engaging the Petitioner as a daily wager and this is admitted by the Petitioner himself in the petition, by stating that his appointment was an oral one. That to regularize the services of the Petitioner would amount to inducting the Petitioner in regular service through the back-door, which is not permissible in law. It is emphatically denied that the Petitioner has worked up to 12.10.2010, as averred in the petition, and is submitted that he has last worked up to the month of January, 2007, for which an amount of Rs. 2,438/- has been paid to him, which amount is admitted by the Petitioner in the rejoinder. That the Petitioner has not put on record any evidence to show that he has worked after January 2007, therefore, the prayers made in the petition may not be granted and the petition may be dismissed.

Mr. Maulik G. Nanavati, learned Assistant Government Pleader for Respondent No. 1, has supported the stand taken by Respondents Nos. 2 and 3, and has prayed for dismissal of the petition.

I have heard the learned advocates for the respective parties, perused the averments made in the petition and the documents annexed thereto.

Admittedly, the so-called appointment of the Petitioner was an "oral" one as per the averments made in the petition itself. No proper legal procedure appears to have been followed while engaging the Petitioner on daily wage basis. Further, there is no material on record to indicate that the Petitioner was working as an Assistant Clerk, on a fixed salary as stated in the petition. The statement annexed by Respondent No. 3 along with the affidavit-in-reply gives a detailed account of the wages paid to the Petitioner each month with effect from September, 1997, up to January, 2007. In all, a total amount of Rs. 2,12,033/- has been paid to the Petitioner during the said period. The last payment made to the Petitioner in January 2007 was for an amount of Rs. 2,438/-. There is no record indicating that the Petitioner has worked after January, 2007, or that he has been paid any wages thereafter. It is the assertion of the Petitioner that he has been working after January, 2007 up to 12.10.2010, when his services have been `orally'' terminated. However, no material has been put on record by the Petitioner in support of this assertion. In the absence of any material on record to show that the Petitioner has worked after January, 2007, and up to 12.10.2010, mere assertions to this effect by the Petitioner would only make this aspect a disputed question of fact, which the Court cannot go into while deciding a petition under Article 226 of the Constitution of India. As there is no material on record in support of the averments that the Petitioner has worked after January 2007, the so-called `oral'' termination of the services of the Petitioner on 12.10.2010, as stated in the petition, also becomes a disputed question of fact.

Insofar as the question of regularization of the services of the Petitioner is concerned, the Petitioner has admittedly been engaged by an `oral'' order. There is no material on record to show in what capacity the Petitioner was engaged. The statement annexed to the affidavit in reply filed by Respondents Nos. 2 and 3 shows the amount of wages paid to the Petitioner but there is no material on record to show that the Petitioner was engaged as an Assistant Clerk on a fixed salary, as stated in the petition.

In the affidavit-in-reply filed by Respondent No. 3, it is stated that only the Gujarat Panchayat Service Selection Board of the District Panchayat Service Selection Committee is empowered to make recruitments against a sanctioned post and that the Petitioner has not been appointed/ recruited through any such procedure, and has not been working against any sanctioned post. It appears from the material on record that the Petitioner has been engaged without following due procedure of law and his services have been continued up to January, 2007. The payment of his wages has been made from the Contingency Fund, and there is no record of the Petitioner having worked after January 2007 up to 12.10.2010 or of any amount being paid as wages to him, after January 2007 and up to 12.10.2010, as asserted in the petition. The engagement of the Petitioner is, therefore, not legal or valid.

As the Petitioner has not been appointed by following due procedure or in a legal and valid manner, the claim of the Petitioner for regularization of services merely on the length of service rendered by him cannot be entertained as to do so would amount to back-door entry into public service of a person whose very appointment is an illegal one. In the above circumstances, the Petitioner cannot claim any legal, vested or indefeasible right so as to invoke the extraordinary jurisdiction of this Court.

For the above-stated reasons, the petition fails and is dismissed. Rule is discharged. There shall be no orders as to costs.