1.0 Present Second Appeal under Section 100 of the Code of Civil Procedure has been preferred by the appellants herein original defendants State of Gujarat and another to quash and set aside impugned judgment and decree passed by the learned 3rd Joint Civil Judge (S.D.), Jamnagar dated 20.8.1991 passed in Regular Civil Suit No.38 of 1989, by which, the learned trial Court has partly allowed the said suit declaring that respondent herein original plaintiff is entitled to continue on permanent post of Sweeper in the pay scale of Rs. 196232 i.e. pay scale which is available to Class IV employee w.e.f. 20.1.1989 and consequently directing the defendants to pay arrears of salary, seniority etc. treating the plaintiff as Sweeper Class IV employee on permanent post w.e.f. 20.1.1989 as well as the impugned judgment and order passed by the learned Joint District Judge, Fast Track Court No.5, Jamnagar dated 11.5.2005 passed in Regular Civil Appeal No.48 of 1992, by which the learned Appellate Court has dismissed the said appeal confirming the judgment and decree passed by the learned trial Court.
2.0 That the respondent hereinoriginal plaintiff was appointed as a Sweeper as Rojamdar/ daily wager on 9.6.1987 as stop gap arrangement on the post which has fallen vacant due to death of one Sweeper. It appears that the original plaintiff worked for more than 365 days with break in service and he was offered the work as and when the work was available. That the plaintiff instituted Regular Civil Suit No.38 of 1989 in the Court of learned Civil Judge(S.D.), Jamnagar against the appellants hereinoriginal defendants claiming permanent appointment/ permanency on the post of Sweeper as class IV employee contending inter alia that in view of the Government Resolution dated 29.5.1984 as he has completed 365 days, he is entitled to permanency on the post of Sweeper and was entitled to salary in the pay scale available to the Class IV employee/ Sweeper.
2.1. That the suit was resisted by the defendants by filing written statement. It was submitted that as such resolution dated 29.5.1984 is not applicable as the appointment of the plaintiff was not after following due procedure of selection / recruitment. It was submitted that as such the plaintiff was appointed as daily wager without following any recruitment procedure and as and when work was available he was offered work as daily wager and therefore, he is not entitled to permanency and / or even the salary in the pay scale available to the class IV employee. That the learned trial Court framed the issue at Exh. 16 and solely relying upon the Government Resolution dated 29.5.1984 (Exh.42) decreed the suit partly by declaring that the plaintiff is entitled to appointment on permanent post as Sweeper in the pay scale of Rs.196232 as Class IV employee w.e.f. 20.1.1989 and consequently directed the defendants to pay consequential benefits inclusive of seniority etc. from 20.1.1989.
2.2. Being aggrieved and dissatisfied with the judgment and decree passed by the learned trial Court dated 20.8.1991 passed in Regular Civil Suit No.38 of 1989, the appellants hereinoriginal defendants preferred Regular Civil Appeal No. 48 of 1992 before the District Court, Jamnagar and the learned Joint District Judge, 5th Fast Track Court, Jamnagar by impugned judgment and order dated 11.5.2005 has dismissed the said appeal confirming the judgment and decree passed by the learned trial Court.
2.3. Feeling aggrieved and dissatisfied with the impugned judgment and order passed by both the Courts below in decreeing the suit and directing the appellants to treat the plaintiff as permanent Chokidar and put the plaintiff in the pay scale of Rs.196232 as Class IV permanent employee, the appellants herein original defendants have preferred the present Second Appeal.
3.0. Shri Pranav Dave, learned AGP has vehemently submitted that both the Courts below have not properly appreciated and / or interpreted the Government Resolution dated 29.5.1984 for the purpose of regularization of the appointment. It is submitted that as the original plaintiff was appointed as daily wager as stop gap arrangement on the post of Sweeper and that too without following any recruitment process, both the Courts below ought to have held that the resolution dated 29.5.1984 would not be applicable and the plaintiff would not be entitled to claim permanency on the basis of the aforesaid resolution. It is further submitted that even otherwise the direction issued by the learned trial Court confirmed by the learned Appellate Court is contrary to the decision of the Hon'ble Supreme Court in the case of State of Karnataka vs. Umadevi (3) reported in (2006) 4 SCC 1; in the case of Official Liquidator vs. Dayanand & Others reported in (2008) 10 SCC 1 as well as the full Bench decision of this Court in the case of Amreli Municipality vs. Gujarat Pardesh Municipal Union reported in 2004(2) GLH 692.
3.1. By making above submissions and relying upon the above decisions, it is requested to allow the present Second Appeal.
4.0 Shri Nimavat, learned advocate for the respondent original plaintiff has tried to oppose the present Second Appeal by submitting that as such there are concurrent findings of fact given by both the Courts below holding that the plaintiff is entitled to permanent appointment on the post of Sweeper which are not required to be interfered with in exercise of powers under Section 100 of the Code of Civil Procedure. It is further submitted by Shri Nimavat, learned advocate for the respondent that as at the relevant time the plaintiff work for more than 522 days both Courts below have rightly relied upon the Government Resolution dated 29.5.1984. It is further submitted that even thereafter also plaintiff has been continued in service and therefore, it is requested to dismiss the present Second Appeal.
5.0 Heard the learned advocates for the respective parties at length and considered the impugned judgment and order passed by both the Courts below as well as Record and Proceedings of the case which is available from the learned trial Court. This Court has also considered the various appointment orders issued by the appellants hereinoriginal defendants issued from time to time and it appears that the plaintiff was appointed as daily wager on the post of Sweeper for 29 days which provided that appointment of the plaintiff is as adhoc and on daily wages post and that he shall not claim any claim of permanency. It appears that as and when work was available he was offered the work. It also appears that at the time when the plaintiff was appointed as daily wager no selection procedure and / or recruitment procedure has been followed. It is also not the case on behalf of the plaintiff that he was appointed as daily wager after following due procedure as required. Under the circumstances, merely because the plaintiff has continued in service as a daily wager for more than 365 days, he cannot claim the permanency. It is required to be noted that both the Courts below have relied upon the Government Resolution dated 29.5.1984 while declaring that the plaintiff is entitled to continue as permanent Sweeper and only to pay scale of class IV employee for the pay scale of Rs.196232. However, on considering the resolution dated 29.5.1984, it appears that both the Courts below have misinterpreted and / or misapplied the said resolution. It is to be noted that under the said Government Resolution only those Badali Workers who have completed 365 days of short term employment are required to be absorbed in permanent vacancy as and when they arise provided they satisfy the recruitment rules. Under the circumstances, under the aforesaid resolution dated 29.5.1984 all the daily wagers who have worked for more than 365 days are not required to be absorbed automatically on completion of 365 days.
5.1. Even otherwise, the judgment and decree passed by the learned trial Court confirmed by the learned Appellate Court is contrary to the decisions of the Hon'ble Supreme Court in the case of Umadevi (3) (supra); in the case of Dayanand & Others (supra) and the full Bench decision of this Court in the case of Amreli Municipality (supra). In the case of Umadevi (3) (supra) the Hon'ble Supreme Court has observed as under:
“This bypassing of the constitutional scheme cannot be perpetuated by the passing of orders without dealing with and deciding the constitutional validity of the interim and final orders of the Supreme Court and High Courts which have issued directions for regularisation, permanent continuation or absorption without referring to the legal position obtaining thereby, and which have been relied on by the respondent employees to claim the same relief. While approaching the questions falling for decision before this Constitution Bench, it is necessary to bear this in mind and to bring about certainty in the matter of public employment. The claim to a parity of treatment based on such orders also highlights the need for the Supreme Court to formally lay down the law on the question and ensure certainty in dealings relating to public employment. The very divergence in approach in the Supreme Court, the socalled equitable approach made in some, as against those decisions which have insisted on the rules being followed, also justifies a firm decision by the Supreme Court one way or the other. It is necessary to put an end to uncertainty and clarify the legal position emerging from the constitutional scheme, leaving the High Courts to follow necessarily, the law thus laid down. This Constitution Bench has to lay down the law. It has to approach the question as a constitutional court should.”
“Orders for absorption, regularisation or permanent continuance of such employees are passed apparently in exercise of the wide powers under Article 226 of the Constitution. The wide powers under Article 226 are not intended to be used for a purpose certain to defeat the concept of social justice and equal opportunity for all, subject to affirmative action in the matter of public employment as recognised by our Constitution. It is time that the courts desist from issuing orders preventing regular selection or recruitment at the instance of such persons and from issuing directions for continuance of those who have not secured regular appointments as per procedure established. The passing of orders for continuance tends to defeat the very constitutional scheme of public employment. It has to be emphasised that this is not the role envisaged for the High Courts in the scheme of things and their wide powers under Article 226 are not intended to be used for the purpose of perpetuating illegalities, irregularities or improprieties or for scuttling the whole scheme of public employment. Its role as the sentinel and as the guardian of equal rights protection should not be forgotten.”
“The High Courts acting under Article 226 should not, therefore, ordinarily issue directions for absorption, regularisation, or permanent continuance unless the recruitment itself was made regularly and in terms of the constitutional scheme. Merely because an employee had continued under cover of an order of the court, under “litigious employment” he would not be entitled to any right to be absorbed or made permanent in the service. In fact, in such cases, the High Court may not be justified in issuing interim directions, since, after all, if ultimately the employee approaching it is found entitled to relief, it may be possible for it to mould the relief in such a manner that ultimately no prejudice will be caused to him, whereas an interim direction to continue his employment would hold up the regular procedure for selection or impose on the State the burden of paying an employee who is really not required. The Courts must be careful in ensuring that they do not interfere unduly with the economic arrangement of its affairs by the State or its instrumentalities or lend themselves the instruments to facilitate the bypassing of the constitutional and statutory mandates.”
5.3. Considering the aforesaid facts and circumstances of the case, the impugned judgment and decree passed by the learned trial Court confirmed by the learned Appellate Court cannot be sustained and same deserves to be quashed and set aside.
5.4. Now, so far as contention on behalf of the respondent original plaintiff that thereafter he has been continued in service since long and therefore, the impugned judgment and order passed by the learned trial Court is not required to be set aside is concerned, the aforesaid cannot be accepted as the respondent original plaintiff has been continued in service pursuant to the impugned judgment and orders which are required to be quashed and set aside.
6.0 In view of the above and for the reasons stated above, present Second Appeal succeeds and the impugned judgment and decree passed by the learned 3rd Joint Civil Judge (S.D.), Jamnagar dated 20.8.1991 passed in Regular Civil Suit No.38 of 1989 as well as impugned judgment and order passed by the learned Joint District Judge, Fast Track Court No.5, Jamnagar dated 11.5.2005 passed in Regular Civil Appeal No.48 of 1992 are hereby quashed and set aside. In the facts and circumstances of the case, there shall be no order as to costs.
“kaushik”
sd/ ( M. R. Shah, J. )