1. By way of this petition, the petitioner has made following main prayers in prayer clause XV (B):
“XV(B) Be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any appropriate writ, direction or order directing the respondent No.1 to 3 to treat the petitioner as employee of the Corporation from the date of the petitioner's appointment in the respondent No.2 Shahvadi Gram Panchayat from 1.10.1985 and direct the respondent No.1 Ahmedabad Municipal Corporation to pay the petitioner back wages and other permissible benefits as available to the other employees like petitioner.”
2. In the petition, the petitioner has alleged that the petitioner made an application for the post of Sub-Overseer to respondent No.2 Shahvadi Gram Panchayat and thereafter, resolution was passed on 1.10.1985 being Resolution No.76 whereby the petitioner was appointed on the said post and the petitioner joined the duty on 1.10.1985. That the petitioner along with the other persons was also appointed by respondent No.2 Shahvadi Gram Panchayat. That the limits of the Ahmedabad Municipal Corporation were extended by virtue of the Government Resolution and the part of the Shahvadi village was included in the limits of the Ahmedabad Municipal Corporation and after inclusion of the part of Shahvadi village, out of 11 members of panchayat, only eight members remained. That because of the inclusion of the part of Shahvadi village in the limits of the Corporation, services of employees of panchayat were proposed to be absorbed in the Municipal Corporation. That the Talati cum Mantri proposed to absorb the staff of village Shahvadi to the Corporation. That one Ratilal R. Bharvad who was absorbed by the Ahmedabad Municipal Corporation under order dated 3.8.1987 was recruited after the petitioner and he was junior to the petitioner as per the list of respondent no.2. The petitioner has also given instances of one Shri Punjalal who had filed writ petition before this Court and he was absorbed whereas the petitioner was not absorbed though senior to said Punjalal. Inspite of writing many letters by the petitioner, the petitioner was not absorbed by the Municipal Corporation and, therefore, petitioner filed the present petition for above said prayers. The petitioner has also given instances of one Shri Punjalal who had filed writ petition before this Court and he was absorbed whereas the petitioner was not absorbed though senior to said Punjalal.
3. Affidavit in reply has been filed on behalf of Respondent No.1 opposing present petition. It is stated therein that there is no legal right created in favour of the petitioner by virtue of the extension of the limits of the Ahmedabad Municipal Corporation. It is also stated that barring few survey numbers of Shahvadi Gram Panchayat merged with the Corporation, the Shahvadi Gram Panchayat continued even today and there was no question of absorption of the petitioner in the Corporation. That the resolution appointing the petitioner was passed on 1.10.1985 was passed with an intention to see that the petitioner and other persons are sent to the Corporation. That no permission of any competent authority was ever obtained before appointing the petitioner. That the persons who were in power in the panchayat wanted to see that the persons like petitioners are absorbed in the corporation. That since the entire Shahvadi Gram Panchayat is not merged with the Corporation and since the Gram Panchayat is still existing, there is no question of absorbing the petitioner in Municipal Corporation. That only one Pump man and peon were taken in the service of the Corporation as they were required to work in that very area. That there cannot be force from anybody to absorb the employees of Shahvadi Gram Panchayat as Shahvadi Gram Panchayat is still existing. That since the major area of Shahvadi Gram Panchayat is under the administration of the Panchayat and since the petitioner cannot claim as a matter of right such absorption, no prayer can be granted. That as a matter of fact, draft notification was issued in May, 1985 under the provisions of the Bombay Provincial Municipal Corporations Act, 1949 suggesting to create East Ahmedabad Municipal Corporation and thereafter, said draft notification was dropped and in November, 1985, State Government issued another notification. That it is a matter of common knowledge that between May, 1985 and November, 1985, since some areas adjacent to municipal corporation were to be absorbed, appointments were made immediately prior to such notification and the persons appointed by virtue of such appointments cannot claim as a matter of right to absorb them in the Municipal Corporation. That as a matter of fact, Punjalal was working as peon and when certain area merged with the Corporation, his work existed in that area and, therefore, he was absorbed in the Corporation and by his absorption, no legal right is created in favour of the petitioner and the corporation is not under any obligation to absorb the petitioner in the Corporation.
4. To the aforesaid reply, the petitioner has also filed rejoinder pointing out that the above said two persons were absorbed in corporation.
5. Learned Advocate for the petitioner Mr. K.H. Baxi submitted that the petitioner was entitled to be absorbed in the corporation as on the date of notification, the petitioner was already serving and he had all rights to be absorbed in the corporation. He also pointed out that the case of the petitioner was similar to that of Mr. Punjalal and Ratilal Bharvad and since said two persons were absorbed in the corporation, there was no any reason not to give similar treatment to the petitioner.
6. However, during the course of hearing, when the court asked the learned advocate for the petitioner as to whether the petitioner has continued in the service with the Shahvadi Gram Panchayat after filing of the petition or not, learned advocate for the petitioner fairly stated that the petitioner has not been in service of Shahvadi Gram Panchayat immediately after filing of the petition. There is no interim relief granted by this Court during the pendency of this petition. Learned Senior Advocate Mr. Tanna for the corporation has submitted that not only the petitioner has not been in service of the said Gram Panchayat since long but the petitioner also cannot as a matter of right claim to be absorbed in the municipal Corporation. Learned Senior Advocate Mr.Tanna has submitted that there is nothing on record to establish that the initial appointment of the petitioner was through regular process. He, therefore, submitted that the appointment of the petitioner was totally illegal appointment without following any procedure . He further submitted that immediately before issuance of draft notification by the State Government for extension of the limits of the Ahmedabad Municipal Corporation, the appointment of the petitioner was made just to see that the petitioner is taken in the services of the Corporation. He submitted that the Corporation was under no obligation to absorb the the petitioner whose appointment was illegal and was made within short span just prior to issuance of notification by the State government. He also submitted that there was no inclusion of the entire area of Shahvadi Gram
with the said Gram Panchayat and even the area wherein the petitioner was serving was also continued to be with the Shahvadi Gram Panchayat. Therefore, there was no question of absorbing the petitioner in the service of the Corporation. Therefore, he submitted that the petition being devoid of any merits, is required to be dismissed.
7. Having considered the arguments of learned advocates for both sides and having perused the record, I find that the petitioner cannot claim as a matter of right, to be absorbed in the Ahmedabad Municipal Corporation. It appears that the appointment of the petitioner was not made after following the procedure. The petitioner's appointment was not a regular appointment. The appointment of the petitioner was totally illegal. It further appears that that the entire area of Shahvadi Gram Panchayat not merged with the Corporation and the petitioner continued to serve the Shahvadi Gram Panchayat. Therefore, as a matter of right, petitioner cannot claim to be absorbed in the Ahmedabad Municipal Corporation. Even apart from this, the petitioner has not been continued in the service immediately after filing of the petition. The petitioner has not been serving all long with the Gram Panchayat. It appears that the petitioner has abandoned the services of Shahvadi Gram Panchayat manyyears before. In view of the above said facts, since the petitioner has not been serving with the Shahvadi Gram Panchayat since many years, there is no question of now considering the prayer of the petitioner for his absorption in the Ahmedabad Municipal Corporation. It is more so when the entire area of Shahvadi Gram Panchayat has not been merged in the Ahmedabad Municipal Corporation but only part thereof adjacent to Municipal Corporation area has merged in the Corporation. Even apart from this, prayers made by the petitioner for his absorption in the Municipal Corporation cannot be considered in light of the fact that the appointment of the petitioner in the Shahvadi Gram Panchayat was not in accordance with law. Petitioner also cannot claim that his case has to be considered at par with above said two persons. Services of those two persons were required by the Corporation and it was the discretion of the Corporation to absorb those two persons. Be that as it may, petitioner cannot claim as a matter of right to be absorbed in the Corporation. Petitioner having not been continued in the services of the Gram Panchayat, no relief at this stage can be granted. In view of this, petition is required to be dismissed. Same is, therefore, dismissed. Rule is discharged. No order as to costs.
(C.L. Soni,J.) an vyas