The High Court dismissed the Letters Patent Appeal. The appellant banked on the first instance judge directing regularization from 1992. Dismissing the appeal, the High Court upheld the view that continuous service since 1992 and successful probation barred the authority from reverting to age limits later.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
C/LPA/1124/2018 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 1124 of 2018
In SPECIAL CIVIL APPLICATION NO. 4951 of 2012
With
CIVIL APPLICATION NO. 2 of 2018
=============================================== GUJARAT WATER SUPPLY AND SEWERAGE BOARD
Versus BHAGWANBHAI KHOJABHAI PARMAR
===============================================
Appearance:
MR HS MUNSHAW(495) for the PETITIONER(s) No. 1 MR GM JOSHI(370) for the RESPONDENT(s) No. 1
===============================================
CORAM: HONOURABLE THE ACTING CHIEF JUSTICE ANANT S. DAVE
and HONOURABLE MR.JUSTICE BIREN VAISHNAV
Date : 28/11/2018
ORAL ORDER (PER : HONOURABLE MR.JUSTICE BIREN VAISHNAV)
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C/LPA/1124/2018 ORDER
2.1. The petitioner was appointed as Gujarati Typist after a requisition was sent to Employment Exchange vide communication dated 7.8.1990. By an office order dated 18.11.1991, he was selected and appointed on vacant post of Gujarati Stenographer Grade-II by regular selection committee. On 31.5.1992, the petitioner resumed his duties and it appears that thereafter since he was prevented from working, he went on hunger strike and acceding the request of the petitioner, the respondent issued an order on 4.7.1992 and appointed the petitioner as a Gujarati Typist on ad hoc basis in the pay scale of Rs.950-1500. He was thereafter continued in service and on completion of probation, the petitioner was confirmed by order dated 12.7.1994.
2.2. The petitioner thereafter made various representations to the respondent authorities for grant of benefits of 6th Pay Commission. Failing to have received favourable consideration, he filed Special Civil Application No.12764 of 2011. The Court disposed of the petition by an order dated 2.9.2011 directing the respondent to pass an appropriate order. The respondent by order dated 12.3.2012 regularized the service of the petitioner. However, such regularization was w.e.f.12.3.2012. The learned Single Judge after considering the fact that the petitioner was appointed on regular pay scale w.e.f. 4.7.1992 and was granted pay scale of Rs.950-1500 and his name appeared in seniority list published on 5.6.1997 directed that the impugned order regularizing his services from the year 2012 was illegal and bad and his services ought to have been regularized from 4.7.1992.
2.3. By issuing such directions, the learned Single Judge has noticed certain facts which are undisputed and it should be relevant to reproduce the same:
“11. The respondent has not disputed the appointment of the petitioner to the post of Gujarati Typist, which was made vide order dated 18.11.1991. The said order
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indicates that the petitioner was appointed undergoing selection procedure conducted by the Selection Committee. It appears that thereafter, the petitioner was orally terminated and he went on the hunger strike. Thereafter, vide order dated 04.07.1992, the petitioner was reappointed on temporary basis, Class III post of Gujarati Typist, one of the conditions was that he has to satisfactorily clear the probation period of 1 year as well as has to pass Gujarati / Hindi examination. The seniority list dated 05.06.1997 was prepared by the respondent, wherein his name figures at Sr.1 and the date of appointment is shown as 06.07.1992 and it is also notified that his initial appointment was made beyond age limit. After the order of this court passed on 02.09.2011 in Special Civil Application No. 12764 of 2011, the respondent vide the impugned order dated 12.03.2012 has regularised the service of the petitioner from 12.03.2012. This court has specifically called upon learned advocate Mr.Munshaw to justify the date of appointment of the petitioner i.e. 12.03.2012, which is treated to be the date of regular appointment. But, neither the impugned order nor an affidavit filed by the respondent clarifies / justifies choosing the date “12.03.2012” for regularising services of the petitioner. The respondent continued the petitioner’s service from 04.07.1992, he was also paid regular salary. He has also cleared regular departmental examination and has also cleared probation period of 1 year. Only reason, which appears to have influenced the respondent authority is that the appointment of the petitioner is beyond the upper age limit prescribed in the rules. It is pertinent to note that initially, the appointment of the petitioner was within the prescribed age limit, which was done after undergoing the selection procedure. Since the petitioner is continued in service, the issue of his upper age limit would not arise. The respondent vide order dated 04.07.1992, while referring his earlier order of appointment reappointed the petitioner on the post of Gujarati Typist in the payscale of Rs.9501500 on the aforesaid conditions. In considered opinion of this court, the petitioner is selected after fulfilling all the conditions, he could not have been regularised from 12.03.2012 without there being any justification of fixing such date.
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who are appointed on part time basis.
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para 11 indicates that the learned Single Judge was correct in observing that the petitioner was appointed after undergoing selection procedure by selection committee on 4.7.1992 on temporary basis in Class III post of Gujarati Typist and that he subsequently cleared probation in the year 1994 and his name figured in seniority list on 5.7.1997, which facts were put up to suggest that the action of the respondents in denying the benefit of regularization and benefit of higher pay scale, considering his services w.e.f. 4.7.1992, was not proper.
(ANANT S. DAVE, ACJ)
(BIREN VAISHNAV, J)
NAIR SMITA V.
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3 issues framed by the court
Whether the regularization of services from 4.7.1992 should be maintained despite the petitioner being age-barred at the time of the interim appointment in 1992.
Whether the Single Judge was correct in quashing the regularization dated 12.3.2012 and directing regularization from 4.7.1992 with back benefits.
Whether the petitioner, having cleared probation and departmental examination, is entitled to benefits from the date of temporary appointment rather than the date of regular confirmation.
Gujarat Water Supply and Sewerage Board
Bhagwanbhai Khojabhai Parmar
Anant S. Dave
Biren Vaishnav
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
