1. By way of this petition under Article 226 of the Constitution of India, the petitioner workman who was working in the school run by the respondent Nagarpalika has prayed for the following reliefs: “(A) This Hon'ble Court be pleased to issue an order, writ in the nature of mandamus and/or certiorary or other appropriate writ, order or direction, declaring the impugned decision of respondent nagarpalika to discontinue the service of petitioner during vacation period and to deprive her of the benefits & status of continuity of service as arbitrary, illegal, unjust and in violation of Ar.14 & 16 of the Constitution of India and be pleased to treat the petitioner in continuous services for all purposes.
B. Be pleased to declare that the services of the petitioner cannot be discontinued without prior permission of Hon. Tribunal and without following mandatory provisions of I.D. Act 1947 and therefore, set aside the decision of respondent to discontinue the petitioner from service and direct to treat the petitioner in continuous service for all purposes.
C. Be pleased to declare the impugned action of respondent to deprive the petitioner of weekly paid off and the minimum of pay scale with permissible allowances payable to the peon of respondent nagarpalika, as arbitrary, illegal, unjust and violative of Art 14, 16 & 21 of the Constitution of India and be pleased to direct the respondent to pay the arrears to the petitioner for the paid weekly off and public holidays.
D. Be pleased to direct the respondent to pay minimum of payscale of class IV employees, from initial date of appointment and pay all arrears of difference of salary to the petitioner with 18% interest.
E. Pending admission and final disposal of this petition be pleased to restrain the respondent from terminating, discontinuing or discharging services of petitioner and direct to extend the benefits of weekly paid of as provided under the Minimum Wages Act, to the petitioner.
(F) Any other relief to which this Hon'ble Court deems fit and proper in interest of justice together with cost.”
2. The matter came to be admitted by an order dated 13.4.2004 passed by this Court (Coram: Jayant Patel, J.) in the following terms: “Heard Mr. Pathak for the petitioner and Mr. Ketan Shah for Respondent. Considering the facts and circumstances, whether the break in service is on account of nonavailability of work, or is merely an artificial break, is a question which will be considered by the Court at the time of final hearing. However, Mr. Shah for the respondent Municipality voiced the grievance that in view of the order dated 9.5.2003 passed by this Court in this petition, the petitioner may claim for continuation of service and wages for the period during which the work is not allotted to her.
The statusquo means, the status of the petitioner as it is prevailing shall be continued qua termination. If the break is given on account of nonavailability of work, the Court may decide the question at the time of final hearing of the matter, but at this stage the petitioner will not be required to make the payment for the period of vacation or otherwise break given in service.
However, Mr. Pathak for the petitioner states that there should be continuity of service and the petitioner should be allowed to claim the wages for such break in service also.
Considering the facts and circumstances whether the break is genuine break or artificial break, will be considered at the time of final hearing. If the work is not taken from the petitioner, the petitioner will not be entitled to claim wages for the aforesaid period.
In the aforesaid circumstances, I am inclined to pass the following order.
Rule. Interim relief to the extent that the respondent shall pay wages to the petitioner for the period during which the work is taken, with further stipulation that the service shall not be terminated. The earlier adinterim order passed shall stand modified accordingly. ”
3. Today, Mr. Deepak Sanchela, learned advocate for respondent Nagarpalika states that the petitioner workman is no more working in the school, but is transferred to the office of the respondent Nagarpalika and therefore, she is working as daily wager in the office of the respondent Nagarpalika, where there is no question of giving any break because of vacation. In view of the above, Mr. Sanchela submitted that the present petition has become infructuous.
4. Mr. P.H. Pathak, learned advocate for the petitioner candidly submits that he has no instructions in the matter.
5. Considering the above, the petition is disposed of as having become infructuous with a liberty to the petitioner to revive in case of any difficulty. However, it is expected that the respondent Nagarpalika shall continue the petitioner as daily wager. Rule discharged. Interim relief stands vacated.
[R.M.CHHAYA, J.] mrpandya