The petitioner who was appointed as Hammal in December 1987, on daily rated basis under the respondent Board, filed the present petitioner under Article 226 of the Constitution praying for direction to declare that termination of the services was illegal, further praying to declare his services to be continuous. It was also prayed that the respondent be directed to reemploy him as Hammal by giving preference over any other person to be employed by the respondent Board on regular basis. 2. As the relevant facts stated in the petition go, the petitioner was initially appointed as daily wager Hammal in December 1987. It appears that after having been so appointed and having worked, he was twice relieved from services and was thereafter again recalled and reemployed. On 22.07.1994 the petitioner was again relieved for non availability of work. It was the case of the petitioner that as a daily wager he was getting only Rs.15/ per day, whereas a regular employee was being paid salary in the grade of Rs.750 – 950 and other benefits. It was petitioner’s grievance that the respondent had been thereby violating principle of equal pay for equal work, as according to the petitioner, the nature of work performed by him and a regular employee were similar in nature. It was the further case that while employing other persons, respondent did not call the petitioner despite an assurance was given. It was contended in the petition that the termination of services was in the nature of retrenchment without following mandatory provisions of law in that regard. It was alleged that the respondent Board which was statutory authority and a ‘state’ under Article 12 of the Constitution acted arbitrarily and in violation of Articles 14 and 16 of the Constitution.
2.1 It was next submitted that other persons were appointed as Hammals without following any procedure, and that termination of the petitioner was by an oral order and it was in nature of an illegal retrenchment without giving notice to him or complying with the requirements of law. The petitioner further relied on two interim orders of this Court passed in two petitions filed by similarly situated Hammals against the same respondent Board being Special Civil Application No.7586 of 1988 and Special Civil Application No.8749 of 1992, by submitting that in the first mentioned petition interim relief was granted to the effect that any further appointment shall be offered according to the seniority list of the retrenched persons whose list was annexed, whereas in the other petition the Court granted stay against termination of services.
3. It is pertinently noticed that in the present petition, this Court granted interim relief by referring to to the interim order which was passed in Special Civil Application No.8749 of 1992. The order dated 29.03.1995 granting interim relief in this petition reads as under.
“By way of interim relief, the respondent Board is directed to follow the seniority list as stated by it in SCA 8749/92 and shall provide work to the employees strictly as per the seniority list.”
4. This Court heard Mr. Dipen Desai learned advocate for the petitioner, when the matter posted today for final hearing. He made a statement that during the pendency of the petition, the petitioner was again taken back in service and is engaged in the same capacity by the respondent and presently also he is accordingly in service.
4.1 He fairly and candidly submitted that this Court (Coram: C.L.Soni, J) heard Special Civil Application No.7586 of 1988 and cognate petitions which included aforementioned Special Civil Application No.8749 of 1992, involving similar issue, which was decided by oral order dated 17.02.2012 in which the Court did not grant similar relief prayed for by those petitioners.
5. Having considered the facts of the case, the prayer in the present petition cannot be granted in any of its part. The first part of the prayer namely the declaration that the termination of service was illegal is not required to be decided as the learned advocate for the petitioner stated that the petitioner was taken back in service. The other parts of the prayer namely treating his services as continuous and to reemploy him in preference to any other regularly appointed persons cannot be granted keeping in view the principles settled by the Supreme Court in Secretary, State of Karnataka Vs. Umadevi [(2006) 4 SCC 1] and subsequent decisions following the ratio of Umadevi. The very nature of employment of the petitioner who was originally engaged as daily rated Hammal and is taken back during the pendency of services in the same capacity, was and is temporary.
6. At the same time, even a rojamdar would deserve a fair treatment from the employer, particularly when it is ‘state’, who would be expected to desist from policy of pick and choose or hire and fire. Therefore, considering the fact that as per the statement of the learned advocate for the petitioner, the petitioner is taken back in service by the respondent itself coupled with the fact that the interim order quoted above was granted initially which has operated throughout, it will meet the ends of justice, if while dismissing the petition, it is observed that the respondent shall abide by the interim order dated 29.03.1995 and its spirit in future and will follow the seniority positions amongst the rojamdars while engaging others for the work in question. It is accordingly so observed and directed.
6.1 It was requested by the learned advocate for the petitioner that the respondent Board may be directed to confer the other service benefits to the petitioner keeping in view his past services and the injustice, which according to learned advocate, was done to him. On this, the petitioner is permitted to make an appropriate representation to the respondent for any further or future service benefits which may be available to him within the parameters of rules or policy of the respondent Board, and the respondent is directed to duly consider such representation of the petitioner, if and when made, and decide it on its merits.
7. Subject to aforesaid observations, the petition is dismissed. Rule is discharged. No order as to costs.
Amit [N. V. ANJARIA, J.]