WAGHELA RASIK RAMJI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Heard the learned Advocate, Ms. S.A. Thula, for learned Advocate, Ms. Roma Fidelis, appearing on behalf of petitioner.

(2.) Looking to the facts which are on record, the petitioner was appointed on 1.10.1995 as a Safai Kamdar and his term was extended from time to time. Since then, the petitioner has been working with the respondent department without there being any break in service till the date of termination i.e. 16.4.2006. The order of termination (Annexure-A) wherein the service of petitioner was terminated as part time Safai Kamdar by respondent Police Head Constable, Amran, Taluka 'Jodiya, District' Jamnagar.

(3.) Learned Advocate, Ms.S.A.Thula, submitted that petitioner was continuously working with respondent more than 10 years, even though service of the petitioner was not regularized by respondent. She also submitted that looking to the Government Resolution dated 26.12.1980, the State Government has decided to consider the case of part time employees after a period of three years, to be regularized their services as a full time employees. She also submitted that this Resolution dated 26.12.1980 has been kept in abeyance by another Resolution dated 21.8.1995. However, the case of the petitioner was not considered by the respondent after a period of three years as a full time employee. She also submitted that at the time of appointment some sort of procedure was followed by the respondent while giving appointment to the petitioner. She also submitted that the petitioner is qualified to the post of Safai Kamdar and also eligible for the post of Safai Kamdar according to Recruitment Rules. She submitted that at the time of making appointment, no procedure was followed by respondent, for that petitioner should not have to be penalized. She also submitted that it is a duty rather legal obligation on the part of the respondents to make appointment as per Service Rules / Recruitment Rules. Not to make appointment as per Service / Recruitment Rules, then, it is not a fault on the part of the petitioner but, it was a fault on the part of respondent. Meaning thereby that respondents failed in discharging legal obligation. Therefore, she submitted that respondents should have to consider the case of the petitioner for regular employee in the post of Safai Kamdar as a full time employee. She also submitted that it is a settled principle of law that in case if any adverse civil consequence is required to be effected to any employee, at least principle of natural justice is required to be followed by respondents. The service of the petitioner has been terminated without following the principles of natural justice which hit by Articles 14 and 16 of the Constitution of India. She also submitted that it is not the case of the respondent that termination is result of non-working or no work. She submitted that perennial work is available with the respondent during last more than 10 years but, no work was given to the petitioner. Meaning thereby that work is available with the respondent, even though service has been abruptly terminated by respondent. She also submitted that respondent is now taking some work through agency, therefore, requirement of work is there but, persons will be appointed through agency. Therefore, ultimately, respondent-State Government may not have any burden either financial or administrative to continue such employee for a long period. She submitted that it amounts to State Government applying the business brain with colourful device to terminate the service of such employees, those who have continued for more than 10 years with the respondents. She also submitted that if work is available and work is permanent in nature, then to terminate the service of such employee which amounts to unfair labou practice by the state authority, who has acted as a private employer. She relied upon the decision of Apex Court (i) Mineral Exploration Corporation Employees' Union v. Mineral Exploration Corporation Ltd. and Anr. and also of this Court (Coram : D.H. Waghela, J.) in SCA No. 4355 of 2006 and group of matters dated 18.9.2006