By means of the present petition under Article 226 of the Constitution, the petitioner has prayed for two-fold relief. He has prayed to quash and set aside the order dated 21.09.1998 terminating his services. The second prayer is for a direction to the respondent to regularize his services by appointing him in regular Class IV appointment and give all consequential benefits. 2. The petitioner was given a temporary appointment as Manager/ Assistant in the Mid Day Meal Scheme in primary school as Sagariawadi village of Taluka Khambhaliya. Having been appointed initially in 1992, his services came to be extended by issuing orders every time for 29 days. In 1994 he was shifted from Mid Day Meal Scheme and appointed on another Class IV post of Chowkidar at Grass Depot. Again his appointment came to be extended time to time as temporary employee. It appears that Mamaltdar, Khambhaliya, where the petitioner was serving, issued a show cause notice dated 15.07.1998 calling for explanation from the petitioner for his inefficient performance of duty and for not attending the duty for full hours and thus remaining negligent. The petitioner replied to that notice on 21.07.1998 denying the allegations, stating further that driver of respondent No.4 had misbehaved with him for which he had to lodge police complaint and because of that incident, false allegations about inefficiency in service were raised, even as he had been discharging the duties diligently and regularly. By order dated 21.09.1998, services of the petitioner was terminated.
3. The petitioner was granted ad-interim relief in terms of paragraph 7(C) of the petition by order dated 14.10.1998. Paragraph 7(C) reads as under.
“7(c) Pending the hearing and final disposal of the present Special Civil Application, Your Lordships may be pleased to stay the implementation and/or operation and/or executionof the order passed by respondent No.4 dated 21-9-1998 terminating the services of the petitioner and further be pleased to direct the concerned respondents, their servants and agents to regularise the services of the petitioner by considering the case of the petitioner in regular Class-IV employment with all consequential beneifits (sic)”“7(c) Pending the hearing and final disposal of the present Special Civil Application, Your Lordships may be pleased to stay the implementation and/or operation and/or execution of the order passed by respondent No.4 dated 21-9-1998 terminating the services of the petitioner and further be pleased to direct the concerned respondents, their servants and agents to regularise the services of the petitioner by considering the case of the petitioner in regular Class-IV employment with all consequential beneifits (sic)”
3.1 On 01.04.1999, Rule was issued in the petition and following further order was passed giving further directions and modifying the ad-interim order dated 14.10.1998. That order dated 01.04.1999 is reproduced hereunder.
“Rule. There shall be interim stay of the implementation of the impugned order dt. 21-9-98 on condition that the petitioner shall tender an unconditional apology to the concerned Mamlatdar within a period of 15 days from today. The petitioner shall also agree to submit a report of his daily work to the concerned Mamlatdar and shall regularly place the report before the concerned Mamlatdar daily.
In the event the petitioner fails to give an undertaking as directed hereinabove, present interim relief shall stand vacated. Ad-interim order made earlier stands modified to the aforesaid extent.”
3.2 Pursuant to the aforesaid order, the directions regarding filing of necessary undertaking etc. was complied with by the petitioner. Undertaking dated 15.04.1999 was placed on record, wherein it was stated he had already submitted apology to the Mamaltdar as directed by the Court. It was further stated that he would regularly attend to his duties and would submit a report to the concerned Mamaltdar about his daily work and that there would no cause of complain against him in future.
4. Today when the petition was posted on the hearing Board and was taken up for final hearing, learned advocate appearing for the petitioner Ms.Bhavika Kotecha, in course of her submissions, did not press the relief prayed for in paragraph 7(B), which was for direction from this Court to regularize the services of the petitioner. Learned advocate, in view of instructions from her client, made a statement that the said relief was not being pressed as the petitioner would prefer to approach the respondents by making an appropriate representation in that regard. It was submitted that this Court may make suitable observations and pass directions to the respondents to consider the representation of the petitioner. The request being reasonable, the petitioner is permitted to adopt the course of making a representation.
4.1 At the same time, learned advocate for the petitioner raised contentions on the legality of the order of termination and prayed that according to learned advocate, in wake of the order of the order of termination, the exercise of making representation by the petitioner for regularization may become futile. On the other hand, learned A.G.P. submitted that at the relevant time when the order of termination was passed, it was quite justified because the petitioner was irregular in attending the duty, for which a show cause notice was given complying with the principles of natural justice. It was submitted that the petitioner was only a temporary employee. He, however, could not dispute that, the interim orders as above were passed and operated.
5. This court considered the submissions in respect of the termination order then passed against the petitioner. However, as the petitioner has opted to make a representation to the respondent authorities with regard to his claim for regularization of service, which is being permitted under the present order, it is deemed expedient not to go into the merits of the legality of the termination order so that it may not either way influence the consideration of petitioner's representation by the respondent in their decision making process.
6. It may however be pertinently noted that this court has stayed the termination of the petitioner and that relief has operated till date throughout. This is coupled with the fact that as per the directions of this court in its order dated 01.04.1999 mentioned above, the petitioner tendered apology to the authority in respect of what was alleged against him in the show cause notice, and he also filed an undertaking dated 15.04.1999 before this court. It is stated that the petitioner has continued in service. In that view of the matter, it is suffice to mention that the interim orders of this court and the compliance of directions issued therein by the petitioner have taken due care of the matters contained in the show cause notice issued at the relevant time, upon which the termination order was passed. In that light it would be appropriate that the order of termination dated 21.09.1998 would not be treated to be a ground against the petitioner by the respondents while considering petitioner's representation for regularization of services and if the petitioner's case is otherwise found acceptable, the termination order will not operate as a disentitling factor.
6.1 As the interim relief staying the impugned termination has continued to operate since last fourteen years, it would now not be proper to upset the service status of the petitioner more particularly when his representation is to be considered. Moreover, as stated above, he has already apologized and further showed necessary willingness to discharge his duties diligently by filing undertaking. These also are the weighty reasons not to disturb the services of the petitioner. Therefore, the respondents are directed to maintain the service status of the petitioner obtained as per the interim orders. As a necessary corollary to above, it is also observed that the fact that the termination order is not formally set aside, shall not preclude the respondents from considering the representation of the petitioner for regularization.
6.2. It is accordingly observed and directed that the petitioner shall be at liberty to make a representation in respect of his claim for regularization of his services and other consequential benefits. Such representation shall be made within four weeks from the date of receipt of copy of this order. The respondents shall consider such representation, when made, through its competent authority and decide it preferably within a period of three months thereafter.
6.3 It is clarified that this court has not gone into the merits of the case of the petitioner for regularization, nor has expressed any opinion in that regard. It is further clarified that any of the observations made in the present order would not be construed to influence the merits of the claim of the petitioner for regularization of services. The respondents will consider and decide petitioner's representation in accordance with law and on its own merits.
7. With aforesaid observations and directions, the petition is disposed of.
No orders as to costs. Direct service is permitted.
(N.V. ANJARIA, J.) [SN DEVU PPS]