The matter is called out. Learned advocate Mr.B.G. Patani for the petitioner is not present. Learned Assistant Government Pleader Ms.Jyoti Mehta assisted the Court. The Court perused the papers of the Special Civil Application including the memo of petition, annexures to the petition and two judgements, viz. (i) judgement dated 22.04.1999 in Special Civil Application No.7156 of 1996 of this Court [Coram: S.K. Keshote, J. (as he then was)], and (ii) judgement dated 11.09.1998 in Special Civil Application No.12243 of 1994 of this Court [Coram: Kundan Singh, J. (as he then was)]. The learned AGP invited attention of the Court to the affidavit in reply filed by Jagdishkumar M. Chaudhary, Vigilance Officer (Tribal), Ahmedabad affirmed on 14th June 2002.
2. The case of the petitioner as set out in para 3 is as under:
“3. The petitioner was on temporary appointed as a sweeper since more than 5 years till working on the post of class-IV employees as a temporary sweeper in the department of the respondents.” (emphasis supplied)
3. Taking into consideration the fact of two decisions which are quoted hereinabove, a complexion is sought to be given to the facts of the case of the petitioner that the petitioner demanded for certain benefits and therefore, the respondent authorities terminated the services of the petitioner. This is borne out from para 4, which reads as under:
“4. The petitioner states that therefore the petitioner approach the respondent- authority by approached letter dtd.10.12.2001 regarding their regularization for the post of safai kamdar since she is working continuously from 3.2.97 till date the Government has not regularized them nor they are protected for their rights.”
The petition then proceeds to make a statement that, “5. The petitioner says and submits that the service period of the petitioner working as a Safai Kamdar in the respondent department since 5.2.1997.”
4. The petitioner has then tried to build a case on Government Circular bearing No.PTE-1080-288-CH dated 26.12.1980. The same is referred to para 7 of the petition and it is contended that, “7. And as per the Government Circular No.PTE- 1080-288-CH dated 26.12.1980 the Government of Gujarat, Finance Department, Gandhinagar has directed the heads of the department to make efforts as per prescribed recruitment rules and procedure for filling in the post from the part time/ temporary employees who have continuously worked for three years to absorb such incumbents in regular posts that may be available under his control and to replace the incumbent by a fresh part time employee and also the General Administrative Department of Gujarat State, Gandhinagar of Gujarat State has also issued a circular dtd 16.10.92 directing all the concerned officers to strictly implement the guidelines issued earlier from time to time for appointing the part time sweepers on regular post of peon in the cadre of class-
IV on her completion of 5 years as Rojamdar employee. However, the respondent has not complied the above directions even though the petitioner has already worked for more than 5 years as a temporary sweeper, the petitioner is entitled to be absorbed as a regular as per the circular.” (emphasis supplied)
5. What is important is that in the petition, except a bald assertion that the petitioner was working as a Safai Kamdar in the respondent department since 03.02.1997, which in para 5 is shown as '5.2.1997', and that the petitioner has completed 5 years as Rojamdar employee, no material is placed on record. The only material which is placed on record is detailed as under:
(i) Copy of order dated 14.02.2000 (Annexure 'A'), wherein it is stated that the petitioner-Hansaben G. Zala (daily wager) is informed to discharge her duties between 10.00 AM to 1.30 PM and 3.00 PM to 6.00 PM. Nothing else is mentioned in the appointment letter.
(ii) Copy of receipt (Annexure 'B'), which only mentions that she is paid an amount of Rs.1302/- for the month of February 2001, and
(iii) Copy of receipt (Annexure 'C') wherein it is stated that she was paid Rs.780/- for the work done in December 1997, is produced in support of the contention that she made a demand for being regularised. A copy of the application dated 10.12.2001 is produced at Annexure 'D', wherein it is stated that the applicant belongs to scheduled caste. She is working for the last 5 years as daily wager sweeper and as per the Government rules and regulations she be treated as a permanent and she be given scale of permanent employee. Last, but not the least, caste certificate issued by the Social Welfare Officer, District Panchayat, Gandhinagar is enclosed and copies of the aforesaid judgements are also enclosed to the petition.
6. The contentions raised in the petition are replied by one Jagdishkumar M. Chaudhary, Vigilance Officer (Tribal), Ahmedabad, wherein it is stated in para 9 as under:
“9. I further say and submit that the petitioner is never punctual and sincere in work and she sometime agreed to work and sometime she never remain present and therefore, respondent office has no option to arrange another option. And therefore, in absence of petitioner another daily wagers being engaged. In such type of work, there is no question of termination but after 31st January 2002 she was not turned up in February and another daily wager Babuben were engaged for one month purely on part time daily wager. Thereafter, the petitioner has approached with respondent department to get the daily wager work for which she has worked periodically but not continuously and therefore, after considering her request she was given work in the month of March and May 2002 and therefore, she was not working continuously. Looking to the work or engagement of the petitioner same cannot be said as a service and petitioner cannot be termed as an employee or servant by the respondent under the settled position of law. And therefore, the petitioner has not even any primary right claiming the regularization. And these all facts are stated in this affidavit with a view to compliance of the order dated 30/05/2002 passed by this Hon'ble Court (Coram: Hon'ble Mr.Justice D.A. Mehta, J.) and therefore the statement made by the learned advocate of the petitioner regarding the continuous in service is not purely correct. And therefore, petitioner was working on 30/5/2002 for temporarily for which she was permitted as per oral appointment. Looking to the position of law, respondent office have also no power or authority to give any written appointment as petitioner always permitted to work under the oral instruction and petitioner is being paid her charge for sweeping work on voucher and petitioner is even not employee or permanent daily wager on muster roll. And therefore, the claim for regularization is worthless.”
7. The petition was admitted by this Court by order dated 16th December 2003. The order reads as under:
“Heard the learned advocates.
Rule. Learned AGP Ms. Patel waives service of rule.
Pending this petition, the petitioner be continued to be engaged as a part-time Sweeper on the terms and conditions mentioned in Order dated 14th February, 2000 [Annexure-A to the petition] on condition that the petitioner shall render regular and satisfactory service. This order shall not preclude the concerned authority from discharging the petitioner from service on disciplinary grounds.”
This order has continued for all these years. Coming to the prayer it is prayed in the petition that, “12 (A) Your Lordship may be pleased to issue an appropriate order, or direction to the respondents to absorb the petitioner on regular basis as per the rules and regulations thereunder.”
8. The question which arises for consideration is that the petitioner has not produced any material to show that she is in continuous service since 1997. She has not produced the Government Circulars which are referred to and relied upon in para 7, viz. Government Circulars dated 26.12.1980 and 16.10.1992. Except the aforesaid documents which go to show that the appointment, if any, was given only in the year 2000 by order dated 14.02.2000 and other documents which are in the form of receipt of having received remuneration for the month of February 2001 and for the month of December 1997. From the perusal of the contents of those two receipts it appears that it was in the nature of casual appointment and the appointment made is for the work done during that particular period.
9. Coming to two decisions which are cited by the petitioner, the said decisions are not applicable to the facts of the present case. Taking into consideration decision in Special Civil Application No.12243 of 1994, which is prior in point of time, the facts are set out in para 3 of judgement dated 11th September 1998 passed therein. Said para 3 reads as under:
“3. The petitioners were selected for the post of Class-IV employees as stated above after going through the interview procedure and the petitioners were appointed in the pay scale of Rs. 750-940 prevailing time scale grade as applicable in the Class-IV employees at the relevant time. The petitioners were given appointment as daily wager till approval of the concerned authorities. The petitioners' appointment were on clear vacancies and the posts were created by the Government and the respondent - Director has not issued approval to the appointment of the petitioners though one Bachubhai Dungarbhai Solanki much junior to the petitioners was placed in time scale grade salary and he was regularised by the order dated 17-10-1992. The petitioners were being given salary of Rs. 560/- only which is even below the Payment of Minimum Wages Act. The petitioners were also not given the benefit of national day, public holiday, even weekly holiday. When the petitioners made a joint representation for making them permanent from the date of their appointment in the time scale grade salary payable to Class IV employees permissible under the Rules an Regulations. Instead of regularising their services and granting them benefits of time scale grade salary, the respondent - Director issued Circular dated 6-4-1994 whereby he directed all the District Backward Class Welfare Officers with those of the Principals of Adarsh Nivasi School to terminate services of the employees because they demanded for their regularisation in service and not to take any work from old employees after their services have come to an end on completion of academic year and further directions were given to appoint new persons in place of the petitioners and other employees.”
10. This is not the situation in the case on hand. In the present case it is nowhere mentioned that there was a post created or that selection was held and appointment was given and therefore, the ratio of the said decision will not be applicable to the facts of the present case.
11. Coming to second decision relied upon by the learned advocate for the petitioner, vide judgement dated 22nd April 1999 in Special Civil Application No.7156 of 1996, the facts are set out in para 2 of the judgement, which read as under:
“ .. .. the respondent No.2 was in the urgent need of the employees. In his office, permanent sanctioned posts of Class IV employees of peons, sweepers, chowkidars, cooks were there. To make the appointment on the posts, the respondent No.2 called the applications and made the regular selection. The petitioners belong to either scheduled caste or scheduled tribe or socially and economically backward class category. The respondents filed reply to the special civil application in which they have admitted that the respondent No.2 did undertake sanctioned process for making the appointment ”
12. As discussed hereinabove in the present case, the facts are totally different. None of the aforesaid aspects are present in the case on hand. There is no material on record to show that there are permanent sanctioned posts. There is no material to show that applications were invited for making appointment. There is no material to show that process for making appointment on the sanctioned posts was undertaken. In view of that the Court is of the opinion that the petition deserves to be dismissed. The same is accordingly dismissed. Rule is discharged.
13. At this juncture, taking into consideration the fact that the petitioner may have some material, which his advocate may not have been able to produce before this Court, it is deemed proper to give him an opportunity to file an appropriate proceeding before appropriate forum. Interim relief granted by this Court on 16th December 2003 is ordered to continue for three months from today. The order which is continued for three months will be as under:
“Pending this petition the petitioner be continued to be engaged as a part time sweeper on the terms and conditions mentioned in order dated 14th February 2000 (Annexure 'A' to the petition) on condition that the petitioner shall render regular and satisfactory service. This order shall not preclude the concerned authority from discharging the petitioner from service on disciplinary grounds.”
(RAVI R. TRIPATHI, J.) karim