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2012 Supreme(Guj) 380
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
K.S. JHAVERI, J.
JYOTIBEN VINODBHAI BHATT & ORS
Versus
STATE OF GUJARAT THRO SECRETARY & ORS
SPECIAL CIVIL APPLICATION No. 5958 of 2012 With SPECIAL CIVIL APPLICATION No. 8691 of 2012 To SPECIAL CIVIL APPLICATION No. 8720 of 2012
Decided On : 06/08/2012
V.H. KANARA for Petitioner(s): 1 - 37.
PRANAV DAVE, A.G.P. for Respondent(s): 1 & 3,
NOTICE SERVED for Respondent(s): 1 - 3.
SHALIN N. MEHTA Sr. Advocate for Respondent(s): 2,
MS. KRUTI M. SHAH for Respondent(s): 4,
Headnote:
Service Laws – Discharge from duties – Petitioners herein were appointed on the post of Assistant (Junior Clerk) by respondent no.4, vide different orders passed–Petitioners were appointed on the said post, in pursuance of the selection process undergone by all the eligible candidates, whose names were forwarded to respondent no.4 by the District Employment Exchange – The petitioners have been discharging their duties as such since their date of appointment – Petitioners have, preferred present petition for issuance of a Writ of Mandamus or any other appropriate Writ, order or direction that the petitioners have been regularly appointed on permanent vacant post of Assistant (Junior Clerk) on establishment of respondent no.4, and they are entitled to receive regular pay-scale of the cadre from date of their initial appointment with all consequential benefits; and to restrain the respondents from removing and / or discharging petitioners from said post; and also to direct the competent authority to accept the Application Forms of the petitioners pursuant to the Advertisement who have become over-aged – Held, Case of the petitioners for regularization also could not be considered for the reason that none of the petitioners satisfy the criteria, as prescribed by the Apex Court in Umadevis case– Appointment of the petitioners can be considered as “irregular” and not “illegal” and therefore, the petitioners could be given the benefit of regularization, if they had continued to work for ten years or more, without the intervention of the orders of Courts or Tribunals, as has been held in para-53 of Umadevis case– No dispute about the fact that the petitioners have been working on regular vacant posts since the date of their appointment –petitioners have not completed ten years of service and therefore, they could not be granted the benefit of the principle rendered in Umadevis case (supra) – Therefore, on this count also, the petitioners could not be granted the benefit of regularization –Petition dismissed (Paras 12, 13)
K.S. JHAVERI, J.-Rule. Service of notice of rule has been waived by learned counsel appearing on behalf of the respective respondents. With the consent of both the sides, the matters are heard finally today.
The petitioners herein were appointed on the post of Assistant (Junior Clerk) by respondent no.4, District Court, Jamnagar, vide different orders passed between 2006 to 2008. The petitioners were appointed on the said post, in pursuance of the selection process undergone by all the eligible candidates, whose names were forwarded to respondent no.4 by the District Employment Exchange. The petitioners have been discharging their duties as such since their date of appointment.
2. On 15.02.2012 the High Court of Gujarat published an Advertisement for filling up 2084 posts of Assistant (Junior Clerk) on regular basis. The petitioners apprehend that they would be removed from service by the respondents in order to accommodate candidates who shall be selected in pursuance of the Advertisement in question.
3. The petitioners have, therefore, preferred the present petition for issuance of a Writ of Mandamus or any other appropriate Writ, order or direction that the petitioners have been regularly appointed on permanent vacant post of Assistant (Junior Clerk) on the establishment of respondent no.4, District Court, Jamnagar and they are entitled to receive regular pay-scale of the cadre from the date of their initial appointment with all consequential benefits; and to restrain the respondents from removing and / or discharging the petitioners from the said post; and also to direct the competent authority to accept the Application Forms of the petitioners pursuant to the Advertisement dated 15.02.2012 who have become over-aged.
4. Heard learned counsel for the respective parties.
5. Mr. V.H. Kanara learned counsel appearing on behalf of the petitioners submitted that the petitioners were appointed on the post in question in pursuance of the order of appointment dated 31.08.2006 issued by the competent authority of respondent no.4, District Court, Jamnagar. They were appointed on vacant regular posts, after following due process of law and on the basis of the prevailing Policy of the respondent-State. The petitioners also possess requisite educational qualification, as described in the Advertisement dated 15.02.2012 published by the High Court of Gujarat. Therefore, the petitioners are required to be paid regular pay-scale.
5.1 Learned counsel Mr. Kanara further submitted that some of the petitioners are not able to apply for the post of Assistant (Junior Clerk), as per the Advertisement dated 15.02.2012, since they had crossed the upper age-limit. He, therefore, submitted that the respondents ought to have granted additional age relaxation to such persons considering the total years of service rendered by them.
5.2 Learned counsel for the petitioners placed reliance upon a decision of the Apex Court in the case of State of Jharkhand and others v. Manshu Kumbhkar, (2007) 8 SCC 249 and more particularly on the observations made in Para-12, which reads thus;
“12. In Ashwani Kumar v. State of Bihar it was noted in paras 13 and 14 as follows: (SCC pp.17-20)
13. So far as the question of confirmation of these employees whose entry itself was illegal and void, is concerned, it is to be noted that question of confirmation or regularisation of an irregularly appointed candidate would arise if the candidate concerned is appointed in an irregular manner or on ad hoc basis against an available vacancy which is already sanctioned. But if the initial entry itself is unauthorised and is not against any sanctioned vacancy, question of regularising the incumbent on such a non-existing vacancy would never survive for consideration and even if such purported regularisation or confirmation is given it would be an exercise in futility. It would amount to decorating a still-born baby. Under these circumstances there was no occasion to regularise them or
