In the present petition filed under Article 226 of the Constitution, following relief is prayed:-
"(A) The Honourable Court be pleased to issue a writ of mandamus or writ in nature of mandamus or any other appropriate writ, direction or order directing the respondent authority to quash and set aside the order of termination placed at Exh.A to this petition and be pleased to direct the respondent authority to absorb the petitioner in service on the post of peon with all consequential benefits."
2. Petitioner was appointed as peon on temporary basis with effect from 02.08.1994 in the office of the Charity Commissioner, Gujarat State Ahmedabad, the respondent herein, on a fixed pay of Rs.600 per month. His appointment was extended from time to time on that post. It is the case of the petitioner that he worked continuously without any break. His appointment was further extended from time to time. However, by the impugned order dated 30.12.1999 he was terminated from service with effect from 01.01.2000. That order is impugned in the present petition and the petitioner has further prayed for the relief of absorption on the post of peon.
3. Learned advocate Mr. Dilip Rana for the petitioner submitted that the petitioner had worked for five years continuously. It was submitted that the termination of petitioner's services was an arbitrary step and was in violation of natural justice. He submitted that the petitioner was given a certificate dated 28.05.1996 for good character and he was sincere and dedicated in discharging his duties. There was no complaint against him and therefore there was no good cause to drive him out of service, when the work of his post was available.
4. In respect of claim for regularisation, the petitioner relied on circular dated 26.12.1980 and 21.08.1995 of Finance Department of the State Government. Learned advocate Mr. Rana invited attention of the court to submit that under those circulars the part-time employees were entitled to be absorbed on regular post and their cases were required to be examined for such absorption by the Heads of the Department concerned. Learned advocate also relied on oral judgment dated 24.02.2004 of this Court in Special Civil Application No.8579 of 1998 in Patel Mahadeviben Dilipkumar v. Deputy Sales Tax Commissioner wherein this court, on the basis of the very circulars dated 26.12.1980 and 21.08.1985 had directed the authorities to consider the case of that petitioner for appointment on permanent post in class IV. It was submitted that the relief as prayed for in the petition was therefore required to be granted.
5. In view of well settled law in Secretary, State of Karnataka v. Umadevi [(2006) 4 SCC 1] and reiterated in Gurbachanlal Vs. Regional Engineering College [(2007) 11 SCC 102], Pinaki Chaterjee & Others Vs. Union of India [AIR 2009 SC 2623], Harvinder Kaur & Others Vs. Union of India [AIR 2009 SC 2875], State of Rajasthan & Others Vs. Dayalal & Others [(2011) 2 SCC 429] and in several other judicial pronouncements by the apex court and of this court that it is not permissible for the High Court in exercise of its jurisdiction under Article 226 of the Constitution, to issue directions to absorb or regularise the part-time, ad-hoc, temporary or daily-rated employees when their entry in service was not after following the prescribed recruitment procedure. Therefore, direction to absorb the petitioner on the regular post of peon cannot be granted in the present petition.
6. As far as challenge to the order dated 30.12.1999 terminating the services of the petitioner was concerned, the petitioner was admittedly a part-time temporary employee. The petitioner being a temporary employee who was given employment for limited period, there was no vested right with him to continue in service beyond the period of employment. When his services were terminated in terms of conditions of appointment no illegality was committed. The petitioner could not have prayed for writ of mandamus, where there was no legal right available to him.
7. Learned advocate in the end submitted that the petitioner would prefer to make representation to the authorities to convince them with regard to petitioner's claim for absorption in service as he had already put in five years service with the respondents. It was submitted that this Hon'ble Court may pass appropriate observations and give directions permitting the petitioner to approach the respondents by way of representation by relying on the circulars dated 26.12.1980 and 21.08.1995 as well as the decision of this court in Special Civil Application No.8579 of 1998 in Patel Mahadev (supra).
8. The request being reasonable, it is observed that the petitioner shall be at liberty to make a representation to the authorities in respect of his claim for absorption on the regular post of peon. In that representation it will be permissible for the petitioner to rely on the circulars dated 26.12.1980 and 21.08.1995 of the Finance Department of the respondents as well as the decision of this court in Special Civil Application No.8579 of 1989 mentioned above. Such representation may be made within four weeks from the date of receipt of certified copy of this order.
9. The competent authority of the respondent is directed to decide such representation of the petitioner, within two months from the date of making of it on its own merits. It is clarified that while permitting the petitioner to make representation, this court has not gone into the merits of the petitioner's claim for regularization nor has expressed any opinion thereon. The respondents shall take appropriate decision independently on merits and in accordance with law.
10. Subject to the aforesaid observations and directions, the petition is dismissed. Rule is discharged. No order as to costs. Direct service is permitted.
(N.V.
ANJARIA, J.) [SN DEVU PPS] Top