IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 5992 of 2001
For Approval and Signature:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
=========================================================
RAMESHGIRI B GIRINAMA - Petitioner(s) Versus
STATE OF GUJARAT & 3 - Respondent(s)
========================================================= Appearance :
MR MURALI N DEVNANI for Petitioner(s) : 1, GOVERNMENT PLEADER for Respondent(s) : 1 - 2. MR HS MUNSHAW for Respondent(s) : 3, MR MD RANA for Respondent(s) : 4, =========================================================
CORAM : HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 26/03/2012 CAV JUDGMENT
(Per : HONOURABLE MR.JUSTICE J.B.PARDIWALA)
1. By way of this petition under Article-226 of the Constitution of India the petitioner, an employee of Patidar Gram Panchayat, Patidar, Ta: Gondal, Dist: Rajkot, has prayed for the following reliefs :
“A) This Hon’ble Court may kindly be pleased to admit this Special Civil Application;
B) This Hon’ble Court may be pleased to allow this Special Civil Application by issuing a writ of mandamus or writ in the nature of mandamus or any other appropriate writ, order or direction by quashing and setting aside the impugned order dated 13th March, 2001 rejecting the claim of the petitioner and be further pleased to direct the respondent authorities to consider the case of the petitioner and release all the benefits available to the petitioner including the revised pay scales on the basis of the 4th and 5th Pay Commission along with the amount of arrears and interest accrued thereon and be further pleased to direct the respondents to place the petitioner at appropriate place in the seniority list maintained by the respondent authorities and be further pleased to direct the respondent authorities to consider his case for which he is entitled to;
C) Pending admission, hearing and final disposal of this petition, this Hon’ble Court may be pleased to direct the respondent authorities to consider the case of the petitioner and release all the benefits for which he is entitled to subject to the outcome of this petition; and
D) This Hon’ble Court may kindly be pleased to pass any other further orders as are deemed fit, just and proper in the facts and circumstances of the case and in the interest of justice.”
2. Facts relevant for the purpose of deciding this petition may be summarized thus -
2.1) The petitioner came to be appointed in the office of Patidar Gram Panchayat, Patidar, Ta: Gondal, Dist: Rajkot on the post of Peon-Clerk in the year 1971 on monthly salary of Rs.25/- on temporary basis. At a later stage the petitioner was placed in the pay scale of Rs.350/- per month i.e. from 21st April, 1980. On 5th November, 1980 respondent no.4 Gram Panchayat passed a resolution fixing the salary of the petitioner in the pay scale of Rs.260-400. It is the case of the petitioner that though the petitioner was placed in the post of clerk, he was given regular increment of the said grade at Rs.6/- per year w.e.f. 1st May, 1980 by way of resolution dated 4th May, 1982 and accordingly he was placed on the pay scale of Rs.296/- per month on 5th May, 1982. Record also revealed that the respondent authorities passed a resolution dated 29th November,1985 granting L.T.C. Benefit to the petitioner and another resolution dated 30th November,1987 deducting the particular amount from the salary towards contribution to his General Provident Fund. Record reveals that on 22nd June, 1988 respondent no.1, State of Gujarat issued a letter to the District Development Officer to extent the benefit of revision of the Pay Scale to the employees of Gram and Nagar Panchayat which were pending fro decision of the State Government with respect to the 4th Pay Commission. The petitioner preferred representation dated 16th November, 1991 with the respondent authorities to grant him the benefit of the revised pay scale on the basis of the 4th Pay Commission as all other employees working with the Gram Panchayat were receiving the said benefits but the same was not extended to the petitioner.
3. It appears that the representation of the petitioner remained unanswered and the benefits as prayed for by the petitioner were not extended. In this event the petitioner issued a legal notice through his advocate dated 13th July,1992. Even thereafter there was no response at the end of the respondent authorities and therefore, he preferred Special Civil Application No.297/1993 before this Court. It appears from the record that the said writ petition came to be disposed of by the learned Single Judge vide order dated 1st December, 2000. The learned Single Judge disposed of the petition by passing the following order :
“Heard the learned advocates.
It is the claim of the petitioner that initially he was appointed as a peon in the Gram Panchayat and by resolution dated 6th November, 1980, passed by the TalaticumMantri, Patidar Gram Panchayat, he was appointed as a Clerk in the scale of Rs.260 400 w.e.f. 1st May, 1980. Though the petitioner has been appointed to be a clerk in the regular pay scale, the petitioner has not been given the benefit of pay revision which became effective from 1st January,1986.
I am of the view that the grievance made by the petitioner can best be redressed by the concerned panchayat. The petitioner shall, therefore, make representation to the District Development Officer, Rajkot in the subject matter of this petition. If such a representation is made, the District Development officer shall decide the same in accordance with law within a period of three months from the date of the receipt of the representation.
Subject to the above direction, the petition is disposed of. Rule is discharged.”
4. It is the case of the petitioner that accordingly as per the direction of this court, the petitioner preferred representation with respondent no.3 narrating all the relevant facts and more particularly bringing it to the notice of the respondent no.3 that though the petitioner is entitled to get the benefit of 4th and 5th Pay Commissions the benefits have not been extended and on the contrary the persons who are junior to him as well as who are in the lower grade were getting higher pay scale.
5. Record reveals that on receiving the said representation preferred by the petitioner, respondent no.3 i.e. the District Development Officer, Rajkot informed the petitioner by letter dated 13th March, 2001 that as Gram Panchayat does not have any power to appoint, recruit or promote on its own, nor has power to fix the salary, the request of the petitioner cannot be acceded.
6. It is at this stage that the petitioner was left with no other option but to once again approach this court by way of this petition.
I) Contentions of the Petitioner :
Mr.Murali Devnani, learned Advocate appearing for the petitioner vehemently contended that this case is a very fine specimen of travesty of justice inasmuch as an employee of a Gram Panchayat even after working for 30 odd years is being denied pensionary benefits and other retirement benefits. He would submit that this case can be termed as nothing short of unfair labour practice. The learned advocate submitted that the authorities ought to have considered the law as laid down by the Apex Court in the case of State of Gujarat and another Vs. Ramanlal Keshavlal Soni reported in AIR 1984 SC -161, wherein the Apex Court has clearly taken the view that Panchayat service constituted under sec.203 of the Gujarat Panchayats Act is a Civil Service of the State and the members of the Service of the State and the members of the
entitled to claim for pensionary benefits or other retirement benefits as the petitioner was not appointed following regular recruitment procedure as prescribed under the Act is also not tenable in law. Mr. Devnani vociferously urged before the court to consider the plight of an employee who is asked to live rest of his life after retirement without any retirel benefits or pensionary benefits. He submitted that all through-out the service, the petitioner was paid very meager salary and was also denied the revision of pay scales which were implemented time to time. He, therefore, submitted that this is a fit case where this Court should exercise its powers under Article-226 of the Constitution and grant appropriate relief in the interest of justice.
II) Contentions of Respondents :
On behalf of respondent no.1 State of Gujarat an affidavit-in-reply has been filed by one Shri N.D. Patel, Under Secretary to the Government, Panchayat Rural Housing & Rural Development Department. Mrs.
V.S. Pathak, learned AGP appearing for State of Gujarat submitted that there is no merit in this petition and the same deserves to be rejected. She submitted that the petitioner was appointed as Clerk- Peon in the year 1971 on purely adhoc basis in the fixed pay of Rs.25/- per month on the strength of a resolution passed by Patidar Gram Panchayat. She would submit that the Gram Panchayat itself fixed the terms and conditions of the employment and the post was also created by the Gram Panchayat itself. Learned AGP Mrs. Pathak has also relied upon the judgment of the Supreme Court in the case of R.K. Soni (Supra.) and the Government circular No.NPM-1038-964- K(1) dt. 25/8/83 which provides that the Gram/Nagar Panchayat has no powers to recruit/to appoint/to promote any appointment in the Gram/Nagar Panchayat and has no powers to fix the pay scales of its employees. She would submit that if this Panchayat has laid down its own procedure in making such appointments, then the person appointed cannot seek benefit which a regularly appointed employee is entitled to under the law. She would further submit that the set-up of the said post is not sanctioned by the District Development Officer/Development Commissioner or by Government. She submitted that in the present case the petitioner was not appointed as per the procedure recognized by law on a sanctioned post and at no point of time services of the
establishment expenditure was borne by Patidar Gram Panchayat from its own fund as per Sec. 204 of the Gujarat Panchayats Act, 1961 and Sec. 228 of the Act, 1961 as well.
The learned AGP also vehemently contended that the petitioner was not recruited by District Panchayat Service Selection Committee or by Gujarat Panchayat Selection Service Board as per the provisions of Sec.
203 of the Gujarat Panchayats Act, 1961 and Sec. 227 as well. She submitted that the reliance placed by the petitioner on the judgment of the Supreme Court in the case of R.K.Soni (Supra.) is completely misplaced as the principle of law has propounded in the case of R.K.Soni (Supra.) is not applicable in the present case. Distinguishing the facts of R.K.Soni’s case with the facts of the present case, the learned AGP submitted that the petitioner is not an allocated employee from Ex-Municipality converted to Gram Panchayat as per Sec. 206 of the Gujarat Panchayats Act, 1961. The learned AGP submitted that in the case of R.K. Soni (Supra.) a Municipality was converted to Gram Panchayat and the employees of Municipality were allocated to the Gram Panchayat in accordance with law and under such circumstances Supreme Court took the view that such an employee who has been allocated from the Municipality which came to be dissolved, will get the status of being Government Servants and members of the Service of the State. The learned AGP submitted that in this view of the matter the petitioner is not entitled to the reliefs as prayed for in the petition.
The learned Advocate Mr.H.S.Munshaw appearing for respondent no.3 District Development Officer, Rajkot has also relied upon the affidavit-in-reply filed by the District Development Officer, Rajkot. Mr.Munshaw has also taken the same stand as taken by the State Government. Mr. Munshaw’s contention is also to the same effect that the petitioner was appointed on the strength of a resolution passed by the Gram Panchayat and he cannot be said to have been appointed after following the Regular Recruitment Process so as to give him the status of a Government Servant. Mr. Munshaw has relied upon the following decisions in support of this contention.
i) Nasir Bacha Thaker Vs. State of Gujarat & others - 1998 (2) G.L.R. -1644.
ii) Chorwad Gram Panchayat & Others Vs. Ramniklal Dahrshi Shah & Ors.
- 2010(1) GCD -675.
III) Analysis :
I shall now proceed to analyze the contentions as raised by the learned counsels for the respective parties. However, before expressing my views on the contentions, it will be appropriate for me to look into the position of law prevailing as on today so far as the subject matter of the petition is concerned.
It appears that one learned Single Judge (Coram: R.M.Doshit,J) of this Hon’ble Court while deciding Special Civil Application No.354 of 2004 took the view that a person who has not been appointed in the Panchayat Service following the provisions of Sec. 203 of the Act, cannot be treated as a Panchayat employee so as to claim the pensionary benefits under the Gujarat Panchayat Service (Pension) Rules, 1976 or to claim family pension under the Family Pension Scheme or from the Panchayat itself, in absence of a pension scheme.
On the other hand another learned Single Judge (Coram: Mr.Justice Akshay H. Mehta –as His Lordship then was) while deciding Special Civil Application No.2019/1988 took the view that merely because Pension Rules have been framed by the State Government, it cannot be saddled with the liability to discharge the burden of the Panchayats with regard to pensionary benefits to the retired servants of the Panchayat. However, the learned Judge interpreting Sec. 204 of the Panchayats Act, held that expenditure towards pay and allowance and other benefits available to an Officer or servant of Panchayat shall have to be met by the Panchayat from its own funds and therefore, it is the responsibility of the Panchayat to discharge liability of retiral benefits and the family pension to the petitioner.
An identical issue came-up before His Lordship Hon’ble Mr.Justice M.R.Shah while deciding Special Civil Application No.13990 of 1993. His Lordship Mr.Justice M.R.Shah notices that there are two conflicting decisions of Single Judges on this issue and therefore, Hon’ble Mr.Justice M.R.Shah directed the Registry to place the matters before a Bench for appropriate decision so as to settle the controversy since large number of cases were pending claiming similar benefits by the retired employees, including family pension. Under such circumstances this issue was taken-up for consideration by the Division Bench of this Court (Coram: Hon’ble Mr.Chief Justice K.S. Radhakrishnan, as His Lordship then was and Hon’ble Mr.Justice Akil Kureshi). The Division Bench after considering both the views as expressed by respective learned Single Judges of this Court ultimately held that only those employees who have been appointed following the procedure laid down under Sec. 203 of the Act and the Rules framed there under, U/s.323 of the Act would alone be a member of the Panchayat service, apart from the allocated employees from the Municipality to the Panchayats on its formation, or other employees who have been recognized as member of th Panchayat Service by the State Government or by the District Panchayat Service Selection Committee. Thus, the Divison Bench upheld the view taken by the Hon’ble Ms.Justice R.M.Doshit and disagreed with the view taken by the Hon’ble Mr.Justice Akshay Mehta (as His Lordship then was). I would like to quote the relevant portion of the judgment.
“10. Section 323 of the Gujarat Panchayats Act, enables State Government to make Rules, and as per the powers conferred under Section 323 of the Act, Government of Gujarat framed Gujarat District Panchayat Service Selection Committee (Functions)Rules, 1964. Definitions 2(vi) says “Panchayat Service” means service as constituted by an order made by Government from time to time under Section 203 of the Act. Section 211 of the Panchayat Act, 1961 says that there shall be District Panchayat Service Selection Committee in each district for selecting candidates for recruitment to such posts of the Panchayat service and to advise the panchayats in such matters and to perform such other functions as may be prescribed. “Selection Committee” has been defined under Rule 2 (ix).
11. The government in exercise of powers conferred by Section 323 read with clauses (b) of Subsection (1) of Section 102, Clause 3 of Section 122 and Clause (3) of Section 142 of the Gujarat Panchayats Act, 1961, made Gujarat Panchayat Service (Appointing Authorities) Rules, 1967.
12. Above mentioned Rules clearly indicate that the appointments in the district cadres, taluka cadres and local cadres shall have to be made after following provisions laid down under Section 203 of the Act and persons so appointed would fall within the Panchayat service constituted under Section 203(1) of the Act. Once selection of an incumbent is made following the procedure laid down under Section 203 of the Act, appointments are effected by the appointing authorities under the Gujarat Panchayat (Appointing Authorities) Rules, 1967 framed by the Government in exercise of the powers conferred under Section 323, read with Clause (b) of Subsection
(1) of Section 102, Clause (3) of Section 122 and clause (3) of Section 142 of the Act.
13. Subsection (2) of Section 203 of the Act says that Panchayat Service shall consist of such classes, cadres and posts and the initial strength of officers and servants in each such class and cadre shall be such, as the State Government may by order from time to time determine. In exercise of the powers conferred under Subsection (2) of Section 203 of the Act, the State Government issued an order dated 2.1.1967 indicating respective cadres to which different posts in the Panchayat service belong. Yet another Departmental order was issued on 30.3.1977 dealing with district cadre, taluka cadre and local cadre. PartI deals with district cadre, PartII deals with taluka cadre and PartIII deals with local cadre. Service conditions of a Panchayat servant is governed by the Gujarat Panchayat Service (Conditions of Service) Rules, 1977. The word “Panchayat service” is defined as a Panchayat service constituted under Section 203 of the Act. Vela Keshav was never appointed by following above mentioned Rules or statutory provisions by way of selection made by the Staff Selection Committee constituted under Sec.211 of the Act. Only those persons who are appointed in the Panchayat Service following the recruitment procedure laid down under Section 203(4)(b) of the Act, can be treated as members of Panchayat service.
14. Government of Gujarat in exercise of powers conferred under Section 323 read with Section 203 of the Act, made Gujarat Panchayat Service (Pension) Rules, 1976. Rule 3 of the Pension Rules says that Pension Rules shall apply to all Panchayat servants. ‘Panchayat Servant’ has been defined under Rule 2(d) to mean any person who belongs to Superior Panchayat service or, as the case may be, the Inferior Panchayat service. Rule 2(c) defines “Inferior Panchayat Service” to mean the Inferior Panchayat service as constituted by Clause (d) of subrule (2) of rule 3 of the Gujarat Panchayat Service (Classification and Recruitment) Rules, 1967. Rule 2(e) defines “Superior Panchayat Service” to mean the Superior Panchayat service as constituted by Clause (a) of subrule 3 of the Gujarat Panchayat Service (Classification and Recruitment ) Rules, 1967. Gujarat Panchayat Service Rules, 1967 would apply to only those Panchayat servants, and shall not apply to certain categories of Panchayat servants. For easy reference, Rule (3) of the Gujarat Panchayat Service (Pension) Rules, 1976 is extracted hereunder: “3. Applicability and option. (1) Save as otherwise provided in these rules shall apply to all the Panchayats Servants, but shall not apply to:
(a) a panchayat servant not in the whole time employment of the panchayat;
(b) a panchayat servant paid out of contingencies;
(c) a panchayat servant paid otherwise than, on monthly basis, including those paid only on piece rate basis;
(d) a panchayat servant appointed on workcharged establishment or on daily rate basis or employed casually;
(e) a panchayat servant entitled to the benefit of a Contributory Provident Fund; other than that who opts to take the benefits of these rules in accordance with the provisions of subrule(4) of rule 3.
(f) a panchayat servant employed on contract except when the contract provides otherwise:
Provided that any such panchayat servant to whom these rules shall apply, have the right to opt to continue to be governed by any pension rules applicable to him immediately before the coming into force of these rules. Such of option shall be exercised in writing case Form in “A” before the 9th May, 1976. The option once exercised, shall be final.
(2) The option exercised under Subrule(1), shall be communicated by the panchayat servant, to the Head of his office. This option when received from a Panchayat Servant should be countersigned by the Head of office and posted in the Service Book or, as the case may be Service Roll of the panchayat servant concerned.
(3) It shall be the responsibility of the Head of Office to acknowledge the option and the panchayat servant concerned shall ensure that the receipt of his option is acknowledged by the head of Office and that he receives an intimation that it has been duly recorded by the Head of Office.”
15. We may indicate that Vela Keshav had submitted an application exercising his option under the proviso to Rule 3 of the above Rules, but the same was rejected by the Local fund office stating that he was not a member of the Panchayat service.
We are therefore, clearly of the view that only those employees who have been appointed following the procedure laid down under Section 203 of the Act and the Rules framed thereunder, under Section 323 of the Act would alone be a member of the Panchayat service, apart from the allocated employees from the Municipality to the Panchayats on its formation, or other employees who have been recognized as member of the Panchayat service by the State Government, or by the District Panchayat Service Selection Committee. Since Vela Keshav was never a member of Panchayat service, in our view he is not entitled to get pension under the Gujarat Panchayat Service (Pension) Rules, 1976 or any Pension Scheme framed by the Government for grant of Family Pension or otherwise for members of the Panchayat service.
16. We may indicate that the view taken by us is in consonance with the view expressed by the Apex Court in State of Gujarat vs. R.K.Soni, AIR 1984 SC 161 in which decision the Hon’ble Supreme Court in Paragraph 24 referred to the Gujarat Panchayat Service (Absorption Seniority Pay and Allowances) Rules, 1965, which provided for the equation of posts, fixation of seniority, scales of pay and allowances of “allocated employees”. It was noted that the Rule provided that every allocated employee holding a corresponding post immediately before the appointed day, shall be appointed to the equivalent post. It was observed that unless equivalence of posts is first determined, by order, by the Government, the said Rules could not be effectively applied. The Government however, did not make any order regarding equation of posts of the staff in the local cadre and the fixation of their scale of pay although such orders were made in respect of posts of other cadres.
17. Circular issued by the Government bearing No.NPM/1083 964K(1) dated 25.8.1983 would indicate that Gram and the Nagar Panchayats have no power or authority under Section 102 of the Act to recruit, fix pay scales or prescribe qualifications for recruitment of the employees.
18. We are also of the view that learned Single Judge (Akshay Mehta,J.) was not justified in giving a positive direction to the Gram Panchayat to pay pensionary benefits to Vela Keshav and family pension to his widow by holding that under Section 203, read with Section 204 of the Gujarat Panchayats Act, Panchayat has got a statutory obligation to pay pensionary benefits. In our view, the learned Single Judge has completely misunderstood the scope of Section 204 of the Act. Section 204 of the Act says that subject to the rules, which the State Government may make in this behalf, the expenditure towards the pay and allowances of and other benefits available to an officer or servant of the Panchayat Service serving for the time being under any panchayat shall be met by that panchayat from its own fund. In our view, Section 204 of the Act would apply to the officers and servants of Panchayat service which says that their pay and allowances be met by the Panchayat from its fund, Panchayat may give salary and other benefits including Gratuity, Provident Fund etc. to persons like Vela Keshav, appointed on the basis of resolutions passed by the Panchayat and not by following the procedure laid down under Section 203 of the Act. Mere fact that Panchayat has paid salary and other benefits to Vela Keshav does not mean that he was a member of the Panchayat service so as to get the benefit available to members of Panchayat service. Panchayat, in its counter affidavit has stated that they have not framed any Pension Scheme, in our view, the learned Single Judge was not justified in directing the Panchayat to pay pensionary benefits to Vela Keshav and family pension to his widow. Needless to say that all the statutory benefits such as Provident Fund, Gratuity etc. may be available to such persons and not the pensionary benefits or the family pension unless there is a Pension Scheme available to such employees.
19. Under the circumstances, we are inclined to dismiss Letters Patent Appeal Nos.1522 of 2004, 1523 of 2004 and 614 of 1998 and allow Letters Patent Appeal No. 1381 of 2004, declaring that only those employees who have been appointed in the Panchayat service following the procedure laid down under Section 203 of the Gujarat Panchayats Act, can be treated as member of the Panchayat service entitled to get pensionary benefits under Gujarat Panchayat Service (Pension) Rules, 1976 and Family Pension Scheme, 1972. We further hold that those persons who have been appointed by the Panchayat in their service otherwise than following the above mentioned statutory procedure are entitled to get pensionary benefits and family pension only if there is a Scheme available with the respective Panchayats. We make it clear if any pensionary benefits including Family Pension have already been paid to the petitioners on the strength of the judgments of the Court, they shall not be recovered from them, but they are not entitled to any future payments.”
It appears that the position of law is abundantly clear. There is no scope for me even to interpret and consider the ratio as laid down by the Supreme Court in R.K.Soni’s case (Supra.) because this judgment of R.K.Soni (Supra.) has also been considered by the Division Bench. In the present case it is an undisputed fact that the petitioner was appointed on temporary basis as Clerk-peon in the year 1971 by the Gram Panchayat by merely passing a resolution to this effect. No regular recruitment procedure was undertaken to appoint the petitioner on a sanctioned post. It is indeed very unfortunate that almost from 1971 till the time the petitioner must have retired, he must have worked drawing a very meager salary because even the benefit of the Revision of Pay scale of the said post was not being extended to the petitioner.
In the aforesaid view of the matter, I am left with no other option but to reject the petition in view of the Division Bench Judgment in the case of Chorvad Gram Panchayat (Supra). However, I am of the view that this is not the end of the matter. I have noticed that in Para-19 of the judgment in the case of Chorvad Gram Panchayat (Supra) the Division Bench has made some observations which I find quite significant. I shall quote the relevant portion.
“We further hold that those persons who have been appointed by the Panchayat in their service otherwise than following the above mentioned statutory procedure are entitled to get pensionary benefits and family pension only if there is a Scheme available with the respective Panchayats.”
Thus, what the Division Bench conveyed, was that if there is a scheme available in this regard with respective Panchayat, then probably even an employee who has been appointed by the Panchayat otherwise than following the statutory procedure as laid down would be at least entitled to draw a pension which will help him to survive the rest of his life after his retirement.
It is high time that the State Government seriously thinks over on this issue and frames an appropriate scheme so as to entitle persons like the present petitioner, who has toiled for more than 30 years on one post and that too by drawing a paltry salary where a person would find it extremely difficult to make two ends meet in this world as on today.
It appears that the State Government is still oblivious of a very important pronouncement of the Supreme Court on the subject in question rendered in case of State of Karnataka v. Umadevi reported in AIR 2006 SC 1806. The decision in Umadevi (Supra) was rendered on 10.04.2006. In that case, a Constitution Bench of Supreme Court held that appointments made without following the due process or the rules relating to appointment did not confer any right on the appointees and courts cannot direct their absorption, regularization or re-engagement nor make their service permanent, and the High Court in exercise of jurisdiction under Article 226 of the Constitution should not ordinarily issue directions for absorption, regularization, or permanent continuance unless the recruitment had been done in a regular manner, in terms of the constitutional scheme; and that 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, nor lend themselves to be instruments to facilitate the bypassing of the constitutional and statutory mandates. Supreme Court further held that a temporary, contractual, casual or a daily-wage employee does not have a legal right to be made permanent unless he had been appointed in terms of the relevant rules or in adherence of Articles 14 and 16 of the Constitution. Supreme Court, however, made one exception to the above position and the same is extracted below (Para 44 of AIR):
"53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa [1967 (1) SCR 128] : (AIR 1967 SC 1071); R.N.
Nanjundappa [1972 (1) SCC 409] : (AIR 1972 SC 1767) and B.N.
Nagarajan [1979 (4) SCC 507] : (AIR 1979 SC 1676) and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the courts or of tribunals. The question of regularization of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases abovereferred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularize as a onetime measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date "
It is evident from the above that there is an exception to the general principles against 'regularization' enunciated in Umadevi (AIR 2006 SC 1806 : 2006 AIR SCW 1991), if the following conditions are fulfilled :
(i) The employee concerned should have worked for 10 years or more in duly sanctioned post without the benefit or protection of the interim order of any court or tribunal. In other words, the State Government or its instrumentality should have employed the employee and continued him in service voluntarily and continuously for more than ten years.
(ii) The appointment of such employee should not be illegal, even if irregular. Where the appointments are not made or continued against sanctioned posts or where the persons appointed do not possess the prescribed minimum qualifications, the appointments will be considered to be illegal. But where the person employed possessed the prescribed qualifications and was working against sanctioned posts, but had been selected without undergoing the process of open competitive selection, such appointments are considered to be irregular.
Umadevi casts a duty upon the concerned Government or instrumentality, to take steps to regularize the services of those irregularly appointed employees who had served for more than ten years without the benefit or protection of any interim orders of courts or tribunals, as a one-time measure. Umadevi, directed that such one-time measure must be set in motion within six months from the date of its decision (rendered on 10.4.2006).
In a very recent pronouncement of the Supreme particularly para 53 of Umadevi's judgment (Supra). The Bench held as under:
“6. The term 'onetime measure' has to be understood in its proper perspective. This would normally mean that after the decision in Umadevi (AIR 2006 SC 1806 : 2006 AIR SCW 1991), each department or each instrumentality should undertake a onetime exercise and prepare a list of all casual, dailywage or ad hoc employees who have been working for more than ten years without the intervention of courts and tribunals and subject them to a process verification as to whether they are working against vacant posts and possess the requisite qualification for the post and if so, regularize their services.
7. At the end of six months from the date of decision in Umadevi, cases of several dailywage/ad hoc/casual employees were still pending before Courts. Consequently, several departments and instrumentalities did not commence the onetime regularization process. On the other hand, some Government departments or instrumentalities undertook the onetime exercise excluding several employees from consideration either on the ground that their cases were pending in courts or due to sheer oversight. In such circumstances, the employees who were entitled to be considered in terms of Para 53 of the decision in Umadevi (AIR 2006 SC 1806 : 2006 AIR SCW 1991, Para 44), will not lose their right to be considered for regularization, merely because the one time exercise was completed without considering their cases, or because the six months' period mentioned in para 53 (Para 44 of AIR) of Umadevi has expired. The onetime exercise should consider all dailywage/ad hoc/those employees who had put in 10 years of continuous service as on 10.4.2006 without availing the protection of any interim orders of courts or tribunals. If any employer had held the onetime exercise in terms of para 53 (Para 44 of AIR) of Umadevi, but did not consider the cases of some employees who were entitled to the benefit of para 53 (Para 44 of AIR) of Umadevi, the employer concerned should consider their cases also, as a continuation of the onetime exercise. The one time exercise will be concluded only when all the employees who are entitled to be considered in terms of Para 53 (Para 44 of AIR) of Umadevi, are so considered.
8. The object behind the said direction in para 53 of Umadevi (AIR 2006 SC 1806 : 2006 AIR SCW 1991, Para 44) is twofold. First is to ensure that those who have put in more than ten years of continuous service without the protection of any interim orders of courts or tribunals, before the date of decision in Umadevi 2006 AIR SCW 1991 was rendered, are considered for regularization in view of their long service. Second is to ensure that the departments/instrumentalities do not perpetuate the practice of employing persons on dailywage/ ad hoc/casual for long periods and then periodically regularize them on the ground that they have served for more than ten years, thereby defeating the constitutional or statutory provisions relating to recruitment and appointment. The true effect of the direction is that all persons who have worked for more than ten years as on 10.4.2006 (the date of decision in Umadevi) without the protection of any interim order of any court or tribunal, in vacant posts, possessing the requisite qualification, are entitled to be considered for regularization. The fact that the employer has not undertaken such exercise of regularization within six months of the decision in Umadevi or that such exercise was undertaken only in regard to a limited few, will not disentitle such employees, the right to be considered for regularization in terms of the above directions in Umadevi as a onetime measure.
9. These appeals have been pending for more than four years after the decision in Umadevi (AIR 2006 SC 1806 : 2006 AIR SCW 1991). The Appellant (Zila Panchayat, Gadag) has not considered the cases of respondents for regularization within six months of the decision in Umadevi or thereafter.
10. The Division Bench of the High Court has directed that the cases of respondents should be considered in accordance with law. The only further direction that needs to be given, in view of Umadevi, is that the Zila Panchayat, Gadag should now undertake an exercise within six months, a general onetime regularization exercise, to find out whether there are any daily wage/casual/ad hoc employees serving the Zila Panchayat and if so whether such employees (including the respondents) fulfil the requirements mentioned in para 53 (Para 44 of AIR) of Umadevi. If they fulfil them, their services have to be regularized. If such an exercise has already been undertaken by ignoring or omitting the cases of respondents 1 to 3 because of the pendency of these cases, then their cases shall have to be considered in continuation of the said onetime exercise within three months. It is needless to say that if the respondents do not fulfil the requirements of Para 53 (Para 44 of AIR) of Umadevi, their services need not be regularised. If the employees who have completed ten years' service do not possess the educational qualifications prescribed for the post, at the time of their appointment, they may be considered for regularization in suitable lower posts. This appeal is disposed of accordingly.”
Thus, what can be gathered from the judgment of the Supreme Court in case of Umadevi (Supra) and M.L.Kesari (Supra), the duty is now cast upon the State Government to frame an appropriate scheme to take care of persons like present petitioners who is being denied pensionery benefits even after putting in more than 30 years of service with the Panchayat on the ground that the appointment was not in accordance with the Rules and Regulations.
I, therefore, in exercise of my powers under Article 226 of the Constitution direct the State Government to undertake an exercise within six months from today, a general one-time regularization exercise, to find out how many daily wage/casual/adhoc employees are serving in different Panchayats all over the State of Gujarat and if so, whether such employees (including petitioner herein) fulfill the requirements mentioned in Para 53 (Para 44 of AIR) of Umadevi. If they fulfill them their services have to be regularized. It is needless to say that if such daily wage/casual/adhoc employees do not fulfill requirements of para 53 of Umadevi, their services need not be regularized but at the same time some scheme shall be evolved to provide pensionery relief to such employees. If the employees who have completed 10 years service do not possess the educational qualifications prescribed for the purpose at the time of their appointment they may be considered for regularization in suitable lower posts.
This petition is accordingly disposed of with the above directions. The Registry is directed to provide 2 copies of this judgment to learned AGP for its onward communication so that necessary essential steps can be undertaken to give effect to the direction which has been issued by this Court in this regard. The Registry shall notify this matter once again before this Court (Coram:J.B.Pardiwala;J) on 07.01.2013 to report compliance of the directions.
(J.B.Pardiwala, J) mehul