KUWARBEN VALJIBEN PARMAR Vs. PATAN MUNICIPALITY

JUDGEMENT

(1.) HEARD the learned advocates appearing for the respective parties.

(2.) BRIEF facts of the present case are that the petitioner was appointed on compassionate ground as Sepoy Jakat Mehkam on 6. 2. 1996 as the husband of the petitioner expired while in service in the year of 1994 and since then, the petitioner is discharging her duties with utmost sincerity and honesty. The date of birth of the petitioner is 1. 3. 1952. Therefore, the petitioner will be completing the age of 55 years on 28. 2. 2007. The respondent has passed an order dated 30. 11. 2006 at Annexure-A, whereby, the petitioner has been given notice of three months and the petitioner's service are to be treated as terminated w. e. f. 28. 2. 2007. The above said order has been passed by invoking Rule 5 of the Rules framed under Section 271 (1) of the Gujarat Municipalities Act, 1963. According to service condition, the petitioner is entitled to remain in service upto the age of 60 years as petitioner is working in Class-IV category. But, respondent is compulsorily retiring the petitioner on her attaining the age of 55 years without assigning any reasons.

(3.) LEARNED advocate, Mr. Gupta, relying upon the decision of this Court in SCA No. 3235/2006 with CA No. 2677/06 dated 14. 7. 2006, submitted that similar order has been passed by the respondent in case of Valiben J. Bhanji, whose service was also terminated under Rule 5 of the Rules framed under Section 271 (1) of the Gujarat Municipalities Act,1963, challenged in aforesaid petition, wherein, this Court has set aside the termination order and directed the respondents to reinstate the petitioner in service. Against which, LPA No. 1078 of 2006 was filed by the respondent which has been admitted by the Division Bench of this Court. He also submitted that the order which has been passed by this Court (Coram : Akil Kureshi,j.) as above that petitioner Valiben Jethabhai is reinstated by the respondents in service and at present, she is working with the respondents. Meaning thereby that during the pendency of that petition, she was in service and she remain continued in service. Meaning thereby that the order passed by this Court in aforesaid SCA has been implemented by the respondents as there is no stay granted by the Hon'ble Division Bench of this Court in LPA No. 1078 of 2006 on the ground that petitioner is reinstated by the respondents and working with the respondents having near date of superannuation. He also submitted that the decision given by this Court is squarely covered the case of petitioner so long the appellate Court reverse it. He also submitted that respondent being the State authority should have to respect the order passed by this Court unless and until it is stayed by the higher authority. The State authority should not waste the amount of public exchequer unnecessarily without any justification only to have legal fight between unequal. He also submitted that petitioner was appointed on the ground of compassionate appointment, is having a different status, position and her service should not have to be terminated in the guise of Rule 5 of the Rules framed under Section 271 (1) of the Gujarat Municipalities Act,1963 and, therefore, he submitted that when the petitioner is having more than strong prima facie case in her favour and balance of convenience is also in her favour on the ground that if petitioner remain continued in service, then, she will receive the salary after doing the work and she will not get any pie without work. He also submitted that in case of respondent authority should have to engage some other employee in place of petitioner, they should have to pay the salary to other employee and in case petitioner succeeds, they have to pay double salary for one post and one work. Therefore, balance of convenience is in favour of petitioner. He also submitted that if the interim relief is not granted in favour of petitioner, then, it amounts to irreparable loss caused to the petitioner. He emphasized that a moment service of petitioner terminated or interim relief refused, then, the petitioner will loose her status and position in the society. This was not the service condition incorporated by the respondent at the time of recruitment of the petitioner nor it was informed to the petitioner by the respondent when petitioner was appointed on compassionate ground. Therefore, according to learned advocate, Mr. Gupta for the petitioner, all of sudden action has been taken which was not visualized and estimated by the petitioner from the respondent State authority. The said action of respondent is contrary to legitimate expectation of the petitioner. Therefore, premature termination / retirement under Rule 5 will create a problem for the petitioner to maintain the family for subsequent years without salary. In absence of salary, to maintain the family that itself is enough to satisfy irreparable loss caused to the petitioner, because in absence of salary it is very difficult for the petitioner to maintain the family and also it adversely affects the education and maintenance of the children and other responsibility which have arisen by passage of time. He also submitted that it is very easy for the respondent State authority because nobody is having any responsibility and no officer or any President or office bearers should have to pay a single pie in case when petitioner is succeeded in the present petition. Therefore, he submitted that in such kind of litigation by State authority, difficulty of the individual employee must have to be taken care by this Court while exercising the power under Article 226 of the Constitution of India. He also submitted that State authority may not suffer because ultimately at the most it is a question of financial burden but, for the petitioner, it adversely affects to her livelihood which amounts to violation of Article 21 of the Constitution of India. Therefore, he submitted that petitioner has dissatisfied that if interim relief is not granted, then, it amounts to irreparable loss caused to the petitioner. He relied upon the decision of the Apex Court in case of M. Gurudas and Ors. v. Rasaranjan and others, reported in 2006 (7) Supreme 289. The relevant observations are in Para. 22 which are quoted as under :