ABDULSATTAR I SHAIKH Vs. EXECUTIVE ENGINEER

JUDGEMENT

(1.) The petitioner claims to be a member of Socially & Educationally Backward Class on the basis of a Certificate held by him as issued by the Mamlatdar, Kapadvanj. A copy of this Certificate has been placed on record as Annexure'A'. The petitioner also claims that he has passed English type examination of 30 w.p.m. in April/May 1990 and Gujarati type examination of 20 w.p.m. in March 1986 and Gujarati type examination of 25 w.p.m. in July 1989 as conducted by State Examination Board for the State of Gujarat. The petitioner also claims to have appeared in English type examination of 40 w.p.m. by the same Board in June 1990 but he says that the Certificate to that effect had not been issued and that the same will be issued in due course. The petitioner has also come with the case that a Certificate has been issued in his favour by the Government recognized Institution, namely, 'Shree Ganesh Type Classes, Kapadvanj' where the petitioner had undergone this course. A copy of this Certificate has also been placed on record. The petitioner has also come with the case that he had passed the Higher Secondary Examination (Commerce Stream) conducted by Gujarat Secondary Examination Board, Gandhinagar in April 1982. The petitioner thus claiming eligibility for appointment as Typist, has stated that he was appointed as English Typist in the office of the Executive Engineer, Narmada Yojna Naher Vibhag, Thasra. He had faced the interview before the Selection Committee and after the interview dated 25.10.89 for the post of English Typist his candidature was considered as sponsored through the Employment Exchange, Nadiad, District - Kheda and vide order dt.16.11.89 he was given appointment as English Typist as daily wager, temporarily for a period of one month in the first instance. In pursuance of this order dt.16.11.89 the petitioner joined on 19.11.89. The term of appointment was extended by various orders passed from time to time and the last order, to which the petitioner has made reference, is the order dt.6.3.90, which has been produced by the petitioner alongwith Special Civil Application as Annexure 'K'. This appointment was again an appointment for a period of one month only. The petitioner then says that even after the expiry of this period of one month, he was allowed to continue in service on the same terms till 15.7.91 on which date his services were orally terminated because he refused to attend the office at the odd hours in night. The petitioner has thus assailed the aforesaid action of his oral termination and has complained of the violation of the Circular dt.27.6.90 annexed with the petition as Annexure 'L' issued by Narmada Water Resources Department of the Government of Gujarat wherein it has been provided that in case the worker is required to be terminated due regard must be given to the seniority and the provisions of Industrial Disputes Act so as to give the notice/notice pay and compensation. The petitioner has also stated that there is heavy work load of English Type and the 3rd post of English Typist is also sanctioned and that the posts of English Typists are lying vacant. It has also been clarified that there were 2 posts of English Typists and 1 post of Gujarati Typist and the 3rd post of English Typist is also sanctioned by the Department and after his termination 2 posts of English Typists were lying vacant. He has claimed the reliefs for setting aside the action of his unlawful termination with effect from 16.6.91 and has also sought a direction that he be appointed on a vacant post of English Typist. The petitioner has claimed the relief of reinstatement with full backwages.

(2.) The petitioner's claim, as aforesaid, has been sought to be traversed on behalf of respondents Nos.1 to 3 through the affidavit-in-reply dt.4.12.91 and the additional affidavit-in-reply dt.15.9.92. The respondents have taken the stand that the petitioner's appointment was only contractual and ad hoc appointment on daily wages basis, he can not claim regular appointment and the Narmada Project authorities had no competence either to give the regular appointment or to appoint him on permanent basis and absorb him. It has also been stated in para 6 at page 6 of the affidavit-in-reply dt.4.12.91 that the petitioner's appointment was discontinued in view of the terms and conditions on which the petitioner was appointed as daily wager typist and while doing so it has also been denied that 2 posts of English Typists were lying vacant and that the Circular dt.27.6.90 was not applicable and hence there is no question of following the requirements of giving notice or notice pay and the compensation. In the additional affidavit-in-reply dt. 15.9.92 it has been stated that it is not conceded that the respondent Nigam is an industry within the meaning of S.2(j) and further that the petitioner is a workman within the meaning of the terms 'workman' as defined in S.2(s). Applicability of the Circular dt.27.6.90 has also been contested and a bald denial has been made in para 5 of this additional affidavit-in-reply against the petitioner's case that he had worked with the respondent Nigam continuously and without any break and that he has served for more than 240 days. Learned counsel for the respondents Nos.1 to 3 has submitted that in any case in view of the provisions of S.2(oo) (bb) it is not a case of retrenchment and hence S.25F of the I.D.Act was not required to be followed.

(3.) It appears from the record of the proceedings in this case that after issuing notice to the respondents and after hearing both the sides and considering the affidavit-in-reply dt.4.12.91 and the additional affidavit in reply dt.15.9.92 filed by the respondents, Rule was issued in this case on 19.10.92. While issuing the Rule it has also been recorded in the order that no interim relief as prayed for could be granted and the ad interim relief, which was granted in terms of para 16(d) was vacated with the direction that the person who will be absorbed shall be either on deputation or on transfer and, therefore, the respondent - Corporation shall accept such employee on deputation or transfer subject to the result of this petition with clear information to such employee that he is on deputation only subject to the result of this petition and he shall abide by the final decision of this Court. The contents of this order dt.19.10.92 are reproduced as under:-