1. By way of this petition, the petitioner has challenged the action of the respondent whereby the petitioner was not allowed to continue in his services inspite of the fact that the petitioner was appointed in pursuance to the appointment order dated 07.08.2003 with a fixed salary of Rs. 2,500/- per month on ad-hoc basis as a Ward Boy in lieu of the death of his mother and a conditional order was passed that he and his father will not claim for the retiremental benefits and also for pension of his mother. The petitioner was continued upto 30.10.2010 in his service. 2.0 The case of the petitioner as narrated in the present petition are as under :
2.1 The petitioner was appointed on compassionate ground on 07.08.2003 as Ward Boy in JB Mehta Hospital, Kapadwanj on a condition that the petitioner and his father will not claim the pension of Narmadaben Kalidas Gohil (petitioner's mother) who expired during the course of her service on 09.11.2001 and she was serving in the said hospital as Aaya since 1987.
2.2 Father of the petitioner had given undertaking that he will not claim the pension of Narmadaben Kalidas Gohil (petitioner's mother) if the petitioner has been appointed on compassionate ground and the petitioner was appointed as a Ward Boy on ad- hoc basis for a period of 11 months on 07.08.2003. The said period was extended vide order dated 10.07.2004 and thereafter the appointment of the petitioner was again extended for 11 months.
2.3 Thereafter the petitioner was continued but no salary has been paid to him from 11.02.2009 to 31.05.2009. He made application for salary and regularization of appointment and again he was extended from 01.06.2009 but salary during the period was not paid to him.
2.4 On 30.04.2010, the petitioner was removed from his services by the respondent without issuing any notice and without giving any opportunity.
2.5 It is also case of the petitioner that in the year 2002, the petitioner completed his LL.B and started practice in Kapadwanj Court and after getting the appointment on compassionate ground, he deposited the Sanad issued by Bar Council of Gujarat.
2.6 On 18.02.2011, the petitioner made representation to Kapadwanj Nagar Palika to start pension of his mother as he was removed from services without giving any opportunity on 30.04.2010. Moreover, the other persons who are almost from the same cadre of service have started pension and continued in service which has been decided in General Board Meeting. But the pension is not started to the petitioner of his mother. Petitioner has worked with the said hospital for about 8 years.
2.7 The petitioner made a representation on 30.05.2011 regarding illegality committed by the respondent but there is no response with the respect to the said representation. Hence, the present petition.
3. Learned counsel for the petitioner has contended that though petitioner was appointed for 11 months and was continued upto 30.04.2010 and without giving any notice, he was restrained from his service by the respondent and he was deprived from his legitimate rights by the respondent. Therefore, he requested that though various representations was made on different dates i.e. 07.08.2008, 18.02.2011, 30.05.2011 but the permanency in the services was not granted to the petitioner which was contrary to law. Learned counsel for the petitioner has also relied upon the judgment of Mohinder Singh Gill and Another Vs. The Chief Election Commissioner, New Delhi and Others reported in (1978) 1 SCC 405.
4. On the other hand, learned counsel for the respondent has contended that the petitioner was not allowed in his services in view of the two Government Circulars dated 09.12.2004 and 30.06.2003 wherein it is stated that the appointments made to the petitioner is contrary to the direction of the government and, therefore, he was not allowed to continue in his services.
5. Learned counsel for the respondent has also pointed out that the petitioner has also moved an application to secure Sanad from the Bar Council of Gujarat as he was not regular employee of the Municipality.
6. I have heard Mr. V.A. Mansuri, learned counsel for the petitioner, Mr. J.K. Shah, learned AGP and Mr. Deepak P Sanchala, learned counsel for the respondent.
7. Before proceeding with the matter, it will be appropriate to bear in mind that the mother of the petitioner died in the year 2003 and an arrangement was entered between the parties namely Municipality and the petitioner that the petitioner and his father will not claim for the retiremental benefits as well as for pension of his died mother and he was appointed on purely contract basis for a period of 11 months with a fix salary of Rs. 2,500/-.
8. Subsequently the said contract was renewed vide orders dated 10.07.2004, 01.03.2009. Further, the petitioner was not allowed to continue his work after 30.04.2010, therefore, he has approached to this Court by way of filing this petition and prayed for reliefs to direct the respondents to reinstate to the petitioner and thereby regularize in service on his post and to give or consequential benefits with continuity of service and other benefits and consider the representation dated 07.08.2008, 18.02.2011 and 30.05.2011.
9. The first contention raised by the learned counsel for the petitioner that the service which came to be terminated was without following any due process of law and even no termination order was passed, only oral order was passed and he was not allowed to resume in services. In that view of the matter, the action taken by the respondents is contrary to law and a statutory authority is required to deprecated the petitioner as per law. In that view of the matter, the respondents ought not to have relieved the petitioner without following due process of law.
10. The contention raised by Mr. Sanchela, learned counsel for the respondent that he made an application in the year 2010 for securing back his Sanad from the Bar Council of Gujarat. In view of the said contention, I am of the view that naturally, the petitioner was jobless and he was required to make such application so that he may survive. This contention will not establish that the petitioner is not entitled for the service. Factum of appointment of the petitioner and his continuous working with the Municipality is not in dispute, then he cannot be relieved without any relieving order issued by the competent authority.
11. In my view the petitioner was removed from his service is contrary to law. In that view of the matter and well settled proposition of law, that if any such order is not passed then that order can be come by way of affidavit also.
12. Since in the case of the petitioner, the respondent cannot take shelter of the government policies. If the appointment given to the petitioner on compassionate ground was contrary to law in view of government resolution and if the petitioner's services was not continued, he should have been given retiremental benefits and pension.
13. Considering all the facts and circumstances of the case, I am of the opinion that the action taken by the respondent removing the petitioner from his service is hereby quashed and set aside. It is clarified that petitioner can approach to the Labour Court for regularization of his service. The petition is allowed to the aforesaid extent.
14. While admitting the matter, on 28th September, 2012, the following order was passed :
“Rule returnable on 07.11.2012.
The impugned order terminating the petitioner prima facie seems to be passed contrary to law. The petitioner seems to have been granted compassionate appointment in lieu of pension benefits payable to the wife (mother) of the employee who died in harness. Therefore, it will be open to the respondents to reconsider their decision and to restore the petitioner to his original post by following due procedure of law. It is clarified that if ultimately the court comes to the conclusion that the order is wrongly passed being contrary to law, the petitioner shall be paid backwages and such arrears shall be ordered to be recovered from the officer who has passed the impugned order. Direct service is permitted.”
15. The petitioner will be entitled for the salary from 19.07.2012 till today. Rule is made absolute.
Amar (K.S. Jhaveri, J.)