ANVARKHAN R MAKARANI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) By this petition under Article 226 of the Constitution, the petitioner-workman has prayed for a direction to regularise his service on the post of a clerk in Danta Taluka Panchayat with all consequential and incidental benefits. As the service of the petitioner was alleged to have been terminated on the day the petition was filed, i.e. 30.11.1988, a further prayer by an amendment is made to set aside the alleged oral order of termination.

(2.) According to the petition, the petitioner, being qualified and registered with the employment exchange, was appointed from 3.3.1983 as a work charge clerk for a period of 29 days in the respondent No.2 - Danta Taluka Panchayat. Subsequently, he continued to be employed as a clerk or mistry on similar appointment orders employing him for a fixed period of 29 days with a clear break of seven months from May 1983 to December, 1983. The successive orders of appointment on or for specific job and for specific periods are placed on record. The last such order dated 1.11.1985 appointed the petitioner as a mistry on daily wage basis with the stipulation that he could be relieved at any time without notice. Thereafter, by an order dated 11.2.1987 of the Executive Engineer, Roads & Buildings, Panchayat Department No.1, Palanpur, the petitioner along with 117 other persons was appointed as work-charge clerk on purely temporary basis and with the express condition that the appointment was on `scarcity relief work' and would automatically come to an end with the closing of the relief works. It appears that by an order dated 30.7.1988 of the Taluka Development Officer, the petitioner was relieved with effect from 31.7.1988 on termination of the scarcity relief work. Immediately after that, on 1.8.1988, the petitioner made a fresh application for appointment which was considered by the Taluka Panchayat in its meeting dated 14.10.1988 and it was resolved to appoint the petitioner after obtaining prior permission of the District Panchayat. However, the District Panchayat having not approved the appointment, the petitioner was no more employed by any of the respondents. The allegation of the petitioner that he continued to work in the same office under the same employer from 1.8.1988 till he was orally discharged on 30.11.1988, is denied in the affidavit of the Taluka Development Officer, according to which, after the termination of the petitioner's service from 30.7.1988, the petitioner had never worked. It is also stated by the Taluka Development Officer that the petitioner had along with other employees filed Special Civil Application No.1577 of 1988 through their Union and the fact of its disposal by this Court was suppressed in the petition. It is admitted by the petitioner in his rejoinder that he had joined in the Special Civil Application No.1577 of 1988 as a petitioner and as one of the persons who were working in the scarcity relief work. Thus, the service of the petitioner or continuation thereof after 30.7.1988 till the alleged oral termination is in dispute. And the alleged oral termination on 30.11.1988, the legality and validity thereof as also whether such alleged oral termination amounted to "retrenchment" and whether any of the mandatory provisions of the Industrial Disputes Act, 1947 were violated, involve disputed questions of fact which cannot be resolved in this proceedings.

(3.) On the basis of the above facts, it was contended on behalf of the petitioner that the breaks brought about in the continuity of his service by issuance of orders of appointment for 29 days were artificial, that such practice was unfair and arbitrary, that the petitioner had put in continuous service of three years and also completed 240 days of work in the year preceding his termination and, therefore, the termination of his service was void ab initio for being in violation of the provisions of Section 25-F of the Industrial Disputes Act and that the petitioner was also entitled to regularization in service. It was also argued in the alternative that the termination of service of the petitioner being admittedly without notice or notice pay, the same also violated Rule 33 (1) (b) of the Bombay Civil Service Rules, 1959 ('the BCSR' for short). However, as seen earlier, the petitioner's case has to be considered on the basis that his service had been terminated on completion of the scarcity relief work and the factum of his alleged subsequent service as also the legality and validity of its termination having fallen in the area of disputed questions of fact cannot be decided. Therefore, the issue that falls for consideration is whether, disregarding the artificial breaks brought about by the successive orders of appointment for 29 days, the petitioner had acquired the status of a temporary employee entitled to notice and protection of Rule 33 (1) (b) of the BCSR. The learned counsel for the petitioner has, despite a specific query in that regard, failed to point out as to how the BCSR were applicable in the facts of this case. And, the fact which has to be borne in mind is that the petitioner was never appointed on or against a vacant post after undergoing any process of selection or regular recruitment.