1. The present Second Appeal under Section 100 of the Code of Civil Procedure has been preferred by the appellants- original defendants to quash and set aside the impugned judgment and decree passed by the learned Civil Judge (Senior Division), Rajkot dated 23/11/2000 in Regular Civil Suit No. 281/1983 by which the learned trial Court has decreed the suit declaring that the respondent-original plaintiff is entitled to be continued in service and/or regularised in service and declaring the action of the appellants-original defendants in terminating the services of the respondent-original plaintiff as illegal and granting permanent injunction restraining the appellants- original defendants from terminating the respondent-original plaintiff as well as the impugned judgment and order passed by the learned Presiding Officer, 2nd Fast Track Court, Rajkot dated 24/11/2006 in Regular Civil Appeal No. 67/2006 by which the learned appellate Court has dismissed the said appeal preferred by the appellants-original defendants and has confirmed the judgment and decree passed by the learned trial Court.
2. The respondent-original plaintiff instituted Regular Civil Suit No. 281/1983 in the Court of learned Civil Judge (Senior Division, Rajkot for declaration and permanent injunction to declare that he is eligible to be continued in service and his services are to be regularised and for declaration that the order of termination terminating the services of the respondent- original plaintiff is illegal and void ab initio and for permanent injunction restraining the appellants-original defendants from terminating the services. It was the case on behalf of the respondent-original plaintiff that he was working as Junior Clerk from 01/03/1980 in the office of the appellant-original defendant no. 2- Executive Engineer, Panchayat, Survey and Research Department, Rajkot and his appointment was made as per the Government Rules i.e. he had received interview call from the employment exchange and thereafter his appointment was made. It was the case on behalf of the respondent-original plaintiff that thereafter there was vacancy for the post of Senior Clerk and the appointment of the respondent-original plaintiff was continued till 21/10/1980 and thereafter he was posted as Junior Clerk against the vacant post of Senior Clerk at Sub Division, Jam Khambhaliya. It was also the case on behalf of the respondent-original plaintiff that as he apprehended that the appellant-original defendant no. 2 is likely to terminate his services and the Collector was pressuring the appellant-original defendant no. 2 to terminate the respondent-original plaintiff as his appointment made in the year 1980 is irregular, he instituted the aforesaid suit for the aforesaid reliefs.
3. The suit was resisted by the appellants-original defendants by submitting that the appointment of the respondent-original plaintiff was purely temporary and till the regularly selected candidate is available. It was submitted that as such appointment of Junior Clerk is made under the Central Recruitment Scheme through the District Collector and the appointment of the respondent-original plaintiff was not after following the due procedure of selection as required. It was submitted that as regularly selected candidate, through the Collector, Rajkot, was made available, the respondent-original plaintiff was to be relieved from service. It was submitted that thereafter as it was found that there was a vacant post of Senior Clerk in the office of the appellant-original defendant no. 2 and considering the work load in the office, against the post of Senior Clerk it was decided to continue the respondent- original plaintiff on the post of Junior Clerk on temporary basis and till the regularly selected candidate is available. It was submitted that thereafter the respondent-original plaintiff was relieved from Rajkot office to Sub Division, Jam Khambhaliya as there was vacant post of Senior Clerk. The respondent-
original plaintiff was continued with a condition that as soon as Senior Clerk will be appointed he will be relieved and thereafter order was passed on 02/01/1981 and, therefore, it was submitted that as the appointment of the respondent-original plaintiff was purely on temporary basis and, therefore, he had no right on the post and/or any right to be continued and, therefore, it was requested to dismiss the suit. The learned trial Court framed the necessary issues. The respondent- original plaintiff examined himself at Exh. 188. The appellants- original defendants examined one Nalinkumar Shivkumar at Exh. 193. Thereafter, the learned trial Court by impugned judgment and decree dated 23/11/2000 allowed the suit and decreed the suit and granted declaration and permanent injunction as prayed for by observing that the action of the appellants-original defendants in terminating the services of the respondent-original plaintiff was against the provisions of BCSR and the learned trial Court also decreed the suit on the ground that he has been continued up to the year 2000. Being aggrieved and dissatisfied with the judgment and decree passed by the learned Civil Judge (Senior Division), Rajkot in Regular Civil Suit No. 281/1983 in decreeing the suit and granting declaration that the respondent-original plaintiff is entitled to be continued in service as Junior Clerk and his services is required to be regularised and the action of the appellants-original defendants in terminating the services of the respondent-original plaintiff is against the principles of natural justice, the appellants-original defendants preferred Regular Civil Appeal No. 67/2006 before the learned District Court, Rajkot and by impugned judgment and order dated 24/11/2006 the learned Presiding Officer, 2nd Fast Track Court, Rajkot has dismissed the said Appeal confirming the judgment and decree passed by the learned trial Court. Being aggrieved and dissatisfied with the impugned judgment and order passed by both the Courts below, the appellants-original defendants have preferred the present Second Appeal.
4. Shri Kabir Hathi, learned AGP appearing on behalf of the appellants-original defendants has vehemently submitted that the impugned judgment and order passed by both the Courts below are absolutely illegal and contrary to the law laid down by 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 Pradesh Municipal Union reported in 2004 (2) GLH 692. It is submitted that both the Courts below have materially erred in not properly appreciating the fact that the appointment of the respondent-original plaintiff was absolutely illegal in as much as there was no selection procedure followed and/or appointment of the respondent-original plaintiff was not in accordance with the recruitment rules. It is submitted that both the Courts below have materially erred in not appreciating the fact that the appointment of the respondent-original plaintiff was purely on temporary basis and till the regularly selected candidate was available from the office of the Collector as per the Central Recruitment Scheme. It is submitted that initially the respondent-original plaintiff was continued up to 21/10/1980 and as work was available in the office at Rajkot he was continued on temporary basis till the regularly selected candidate was available and, thereafter he was transferred to Jam Khambhaliya office on the same terms and conditions that as and when regularly selected candidate is available he will be relived from service. It is submitted that therefore both the Courts below have materially erred in directing the appellants-original defendants to continue the respondent-original plaintiff by holding that the respondent- original plaintiff is entitled to be continued in service and/or his service is required to be regularised. It is further submitted that the learned trial Court has materially erred in granting the relief on the ground that the respondent-original plaintiff has been continued for 20 years. It is submitted that both the Courts below have materially erred in not properly appreciating the fact that as such the respondent-original plaintiff was continued in service because of the interim relief granted by the learned trial Court. It is submitted that as observed by the Hon'ble Supreme Court in the case of Umadevi (3)(Supra) the period for which ad hoc and/or temporary employee is continued in service under the interim order, the same cannot be the basis to grant permanency. Under the circumstances, the learned trial Court has committed an error in decreeing the suit and the learned appellate Court has materially erred in dismissing the appeal confirming the judgment and decree passed by the learned trial Court. Making the above submissions and relying upon the above decisions, it is requested to allow the present Second Appeal.
5. The present Second Appeal is opposed by Ms. Shrusti Thula, learned advocate appearing on behalf of the respondent-original plaintiff. It is submitted that as such the respondent-original plaintiff has been continued in service till date and he has worked for more than 20 years and, therefore, it is requested not to allow the present Second Appeal and not to quash and set aside the impugned judgment and decree passed by the learned trial Court confirmed by the learned appellate Court. It is submitted that as such there are concurrent findings of fact given by both the Courts below and, therefore, the present Second Appeal deserves to be dismissed. It is further submitted that as such the respondent- original plaintiff was appointed after following the due procedure as required and his name was sent through employment exchange and, therefore, the decisions of the Hon'ble Supreme Court in the case of Umadevi (3)(Supra); in the case of Dayanand & Others as well as the full Bench decision of this Court in the case of Amreli Municipality (Supra) relied upon by the appellants-original defendants shall not be applicable to the facts of the present case and, therefore, it is requested to dismiss the present Second Appeal.
6. Heard the learned advocates appearing on behalf of the respective parties at length and considered and gone through the impugned judgment and orders passed by both the Courts below as well as the Record and Proceedings of the case, which is received from the learned trial Court. It is not in dispute that the post of the Junior Clerk is required to be filed only through the Central Recruitment Scheme and after following the due procedure of recruitment. It appears that as the regularly selected candidate/Junior Clerk were not available under the Central Recruitment Scheme through the Collector, the names were called from the employment exchange only for appointment on temporary basis and till the regularly selected candidates is available and, therefore, the name of the respondent-original plaintiff was sent through the employment exchange and only a formal interview was taken, which cannot be termed as following the due procedure as required. It was specifically mentioned that the appointment of the respondent- original plaintiff is purely on temporary basis and till the regularly selected candidate is available/Junior Clerk is available under the Central Recruitment Scheme from the office of the Collector. It appears that initially the respondent- original plaintiff worked on temporary basis only for the period between 01/03/1980 to 21/10/1980 in the office of the Executive Engineer at Rajkot and thereafter at Jam Khambhaliya up to 30/03/1983 on purely temporary basis till the regularly selected candidate/Junior Clerk was available. It appears that as soon as the regularly selected candidate/Junior Clerk was selected/available under the Central Recruitment Scheme by order dated 31/03/1983 the respondent-original plaintiff came to be relieved. Considering the above, it cannot be said the order dated 31/03/1983 was in any way illegal. It appears that the learned trial Court has held the order dated 31/03/1983 as illegal and in breach of natural justice by observing that the same is in breach of BCSR. However, considering the fact that the respondent-original plaintiff was appointed on purely temporary basis till the regularly selected candidate was available and his appointment was not on permanent basis it is not appreciable how the BCSR would be applicable. It is required to be noted that as such there is no issue framed by the learned trial Court whether the provisions of BCSR would be applicable or not. Under the circumstances, both the Courts below have materially erred in holding that the order dated 31/03/1983 is illegal and in breach of principles of natural justice.
7. It also appears that while granting the declaration that the respondent-original plaintiff is entitled to be continued in service and/or his services are required to be regularised what is weighed with both the Courts is that the respondent-original plaintiff is in service since last 20 years. However, both the Courts below have materially erred in not properly appreciating the fact that as such the respondent-original plaintiff was continued in service after 1983 pursuant to the interim injunction granted by the learned trial Court. As held by the Hon'ble Supreme Court in the case of Umadevi (3) (Supra) the period under which an employee has worked under any interim relief that period is not to be counted for the purpose of considering the case of an employee for regularisation and/or appointment on permanent basis. Even otherwise, as held by the Hon'ble Supreme Court in the case of Dayanand & Ors (Supra) and in catena of decisions, the person, who is appointed on temporary basis and that too without following any procedure as provided under the recruitment rules even for longer period is not a ground to grant regularisation and/or permanency. 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 so-called 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 emphasized 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.”
8. Considering the aforesaid facts and circumstances of the case, the impugned judgment and order passed by the learned trial Court confirmed by the learned appellate Court cannot be sustained and the same deserve to be quashed and set aside.
Now so far as the contention on behalf of the respondent- original plaintiff that he has been continued in service since long and since so many years without any complaint and, therefore, the impugned judgment and decree passed by the learned trial Court may not be set aside is concerned, the aforesaid cannot be granted as the respondent-original plaintiff has been continued in service pursuant to the interim order passed by the learned trial Court and as stated hereinabove, as observed by the Hon'ble Supreme court in the case of Umadevi (3) (Supra) merely because an employee has continued under cover of an order of the Court, under “litigious employment” he would not be entitled to any right to be absorbed and/or made permanent in service.
9. In view of the above and for the reasons stated hereinabove, the present Second Appeal succeeds and the impugned judgment and order passed by the learned Civil Judge (Senior Division), Rajkot dated 23/11/2000 in Regular Civil Suit No. 281/1983 as well as the impugned judgment and order passed by the learned Presiding Officer, 2nd Fast Track Court, Rajkot dated 24/11/2006 in Regular Civil Appeal No. 67/2006 are hereby quashed and set aside. The present Second Appeal is accordingly allowed. In the facts and circumstances of the case, there shall be no order as to cost.
(M.R. SHAH, J.) siji