SAVITABEN M PATEL Vs. STATE OF GUJARAT

JUDGEMENT

(1.) All these writ petitions proceed on common facts and as such they are being disposed of by this common order.

(2.) In these petitions the petitioners have made the challenge to the order of termination of their services. It is not in dispute that the petitioners were given the appointment on temporary basis on different occasions on fixed term of 29 days. The learned Counsel for the petitioners made three-fold submissions in this Spl. Civil Application challenging the order of termination of the services of the petitioners. Firstly, he urged that the petitioners have worked though with some artificial break for more than three years and as such the break which has been given in their services should be declared to be illegal, invalid and inoperative. It has next been contended that even if it is appointment on temporary basis, then too, the termination of services of the petitioners is void and it is made in violation of Rule 33(1)(b) of the Bombay Civil Services Rules. Lastly, relying on the decision of the Supreme Court in the case of State of Haryana v. Pyara Singh, reported in AIR 1992 SC 2130 it has been contended that ignoring the artificial break the respondents should be directed to regulate the services of the petitioners. The respondents have filed the reply in Spl. Civil Application No. 230 of 1986. All the three Spl. Civil Applications are identical and hence the reply filed in Spl. Civil Application No. 230 of 1986 has been considered in all the Spl. Civil Applications. The Counsel for the respondents has taken the preliminary objection that these writ petitions are not maintainable as the petitioners have earlier filed Spl. Civil Application No. 5394 of 1985 in the same subject-matter before this Court and this writ petition has been withdrawn by them on 17-10-1985. The writ petition was dismissed as withdrawn and no opportunity was given to the petitioners to file fresh writ petition and as such these writ petitions are barred by the principle of res judicata. In support of this contention, Miss Sejal Mandavia, learned Counsel for the respondents placed reliance on the decision of this Court in the case of Natwar Textiles Processors Pvt. Ltd. v. Union of India, reported in 1990(1) GLR 338. She has further relied on the decision of the Supreme Court in the case of State of U.P. v. Labh Chand, reported in AIR 1994 SC 754. In reply to the contention of the learned Counsel for the petitioners regarding giving notice before terminating their services Miss Mandavia urged that no specific ground has been taken in the writ petition on this ground and as such this ground is not available. Secondly, Miss Mandavia contended that it is a case of termination of temporary services of the petitioners by efflux of time. The petitioners were given the fixed term temporary appointment and it has come to an end on the expiry of the term of appointment and as such the provisions of Rule 33(1)(b) of the Bombay Civil Services Rules are not applicable to the present case. Thirdly, Miss Sejal Mandavia urged that Pyara Sing's case (supra) is not applicable to the present case. The posts on which the petitioners were given temporary appointment are to be filled up by selection. The posts fall within the purview of the centralised recruitment scheme and the appointments to these posts are required to be made by allocating the persons selected for appointment to such posts by the Collector. The petitioners have not been selected in the centralised recruitment scheme. Lastly, it is contended that the petitioners' services were terminated as the regularly selected candidates are made available. I have considered the submissions made by the learned Counsels for the parties. Counsel for the petitioners has given out the translation version of the appointment order of one of the petitioners. The appointment of the petitioners were made only for 29 days, i.e., a fixed term appointment. It was a temporary appointment with condition that the services are liable to be terminated without any notice. The further condition was that the services are liable to be terminated on availability of the candidates from the Collector. These averments made by the respondents in reply to one of the writ petitions have not been controverted. In the rejoinder, the petitioners tried to make out a case that the work which the petitioners are doing is being taken by the employees who have been appointed on daily wages basis and on temporary basis. But these averments are difficult to accept because the petitioners have not given out the details of those employees. From the appointment order of the petitioners, it is clear that it was a contractual appointment. The condition that the appointment is likely to be terminated without notice has been accepted by the petitioners and this term excludes the applicability of the provisions of Rule 33 of the Bombay Civil Services Rules and no notice is required to be given to the petitioners by the respondents before terminating their services. Reference may have to the decision of the Apex Court in the case of State of Gujarat v. P. J. Kampavat & Ors., reported in 1993(1) GLR 848. This case has been considered by this Court in the case of Bhanmati Tapubha Muliya v. State of Gujarat, reported in 1996(1) GLR 54. In paragraph 7 of this case, this Court held :

(3.) The contention of the learned Counsel for the petitioners regarding the necessity of the giving of notice under Rule 33 of the Bombay Civil Services Rules before terminating the services of the petitioners has been concluded by the decision of the Apex Court in the case of Natwarlal Textile's case (supra) as also the case of State of U.P. (supra). It is not in dispute that there is a stipulation in the order of appointment of the petitioners that their services are liable to be terminated without notice. This contention of the learned Counsel for the petitioners is of no substance. The services of the petitioners have been terminated. The prayer of the petitioners that the break which has been given in their temporary appointments be declared to be illegal is of no consequence in the present case. The Court has put a question to the Counsel for the petitioners as to how this declaration, even if it is given by this Court, will be of any help to the petitioners. The Counsel for the petitioners is unable to give any reply to the question which has been put to him. I proceeded to examine this issue with assumption that declaration may give a continuity in services to the petitioners and their services may come to more than three years but the question is whether only on this ground the termination of the services of the petitioners become invalid or illegal and the reply to this is obviously in the negative. In 1983 and 1984 as it comes out from the averments made in one of the Spl. Civil Applications No. 225 of 1986 the regular selection has been made for the post of Clerks under the centralised recruitment scheme but the petitioners therein were not called for interview in both the years. The petitioners at the most may be considered to have worked continuously on temporary basis, but merely on their continuation on temporary basis they or any of them do not acquire any right to hold the post. This question has come up for consideration before the Division Bench judgment in Bhanmati's case (supra) and this Court relying on the decision of the Apex Court referred therein in paragraph 8 held as under :