ORAL JUDGMENT

1. RULE. Learned AGP Mr.Dhawal Jayswal waives service of Rule on behalf of respondent No.1 and learned Advocate Mr.Trivedi waives service of Rule on behalf of respondent No.2.

2. The present petition under Article 226 of the Constitution of India is filed with following prayers:-

“A) Quashing and setting aside the order dt.3.8.2017 and directing the respondents to absorb the petitioner in regular sanctioned set up with continuity of service and further declaring the petitioner to be entitled for pension and other benefits.

AA) Quashing and setting aside the order dt.8.6.2017 passed by the respondent no.1 (Annexure R-2 page-30).”

3. Learned Advocate for the petitioner submitted that the petitioner was given appointment as a regular “safai kamdar” on 17.12.1997 in the pay scale of Rs.750-940 as per 4th pay commission. Thereafter, she was terminated from service on 3.4.1998. The said order was challenged before the Labour Court, Rajkot by filing Reference (LCR) No.100 of 2001. By award dated 01.11.2012, the Labour Court awarded reinstatement with continuity of service without back wages.

3.1 The respondent-Nagarpalika challenged the aforesaid award before this Court by filing Special Civil Application No.1275 of 2013 which was dismissed vide order dated 10.06.2013. Thereafter, the respondent-Nagarpalika preferred Letters Patent Appeal No.374 of 2014, which was also dismissed by the Division Bench by order dated 27.03.2014. Thereafter, the respondent- Nagarpalika gave appointment to the petitioner by order dated 25.06.2014 in regular sanctioned set up in the pay scale of rs.4440-

7440/-.

3.2 It is submitted that the respondent-Nagarpalika sent proposal to the Director of Municipalities for granting sanction for appointment of the petitioner in regular sanctioned set up vide letter dated 06.09.2014, which was rejected by the said authority by letter dated 08.06.2017. By order dated 31.08.2017, the respondent-Nagarpalika gave fresh appointment order to the petitioner as a regular “safai kamdar”, but out of sanctioned set up. As a result of this order, the petitioner will not be entitled to the benefits such as pension, increments and pay scale.

3.3 Learned Advocate for the petitioner submitted that the petitioner was given appointment as a regular “safai kamdar” on 02.07.1997 in the pay scale of Rs.750-940. She was terminated on 03.04.1998. Thereafter, she filed litigation in the Labour Court and subsequently, she succeeded up to Division Bench of this Court. Hence, she is required to be appointed in regular set up. It is further submitted that the Labour Court has granted continuity of service from the date she was terminated. Thus, the respondents are under legal obligation to give effect of appointment from

03.04.1998 as if she has never been out of service.

3.4 It is submitted that the petitioner was given appointment in regular set up by order dated 25.06.2014. Moreover, before passing the impugned order dated 03.08.2017, the petitioner has not been given opportunity of hearing.

4. As against this, learned Advocate for the respondent- Nagrapalika submitted that the Nagarpalika has passed the impugned order only in view of the decision of the State Government. Therefore, this action is pursuant to the stand of the Government.

5. Learned AGP submitted that the respondent- Nagarpalika has also not stated on record as to how the petitioner was appointed with it and from the order of settlement passed by the President of the Nagarpalika.

5.1 It is submitted that before the Labour Court, the State Government was not party and when the settlement was arrived at between the Nagarpalika and the petitioner, no consent of the State Government was obtained. It is also submitted that the petitioner was not appointed following the due process of law.

5.2 It is submitted that after receiving proposal on 04.07.2015, necessary correspondences and communications were exchanged and the Director of Municipalities has taken a decision dated 08.06.20