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Solanki Rameshbhai Virabhai v. State Of Gujarat
Structured Summary of the Provided Opinion
Factual and Procedural Background
The opinion consolidates three Special Civil Applications that raise almost identical factual questions concerning termination of services. The petitioners had been given appointments as Class-IV employees by respondent No. 2 at the Civil Hospital, Mehsana. Respondents contend that the appointments were illegal, purely temporary (three months) and could be terminated without notice as per the terms of appointment. In one of the three matters (Special Civil Application No. 4578 of 1990) no interim protection had been granted; in the other two matters interim relief had been granted and those petitioners continued in service. A reply was filed in Special Civil Application No. 4111 of 1990 by the respondents denying validity of the appointments and asserting alternative statutory remedies were available. The petitions have been pending since 1990. Only in Special Civil Application No. 4578 of 1990 was a copy of the termination order filed; in the other two matters no termination orders were placed on record and the dates of alleged termination were not stated.
Legal Issues Presented
- Whether the Special Civil Applications are maintainable before this Court in view of alternative remedies available under statute (i.e., Industrial Disputes Act, 1947 and the Gujarat Civil Services Appellate Tribunal Act, 1972).
- Whether the terminations contravened Section 25F of the Industrial Disputes Act, 1947 (i.e., whether petitioners are entitled to protections available to 'workmen').
- Whether the terminations violated Rule 33(1)(b) of the Bombay Civil Services Rules, 1959 (i.e., failure to give one month's notice or pay in lieu thereof).
- Whether a plea of discrimination is sustainable where petitioners allege juniors were retained while seniors were terminated.
- Whether this Court should quash or set aside termination orders where doing so would have the effect of restoring appointments that are alleged to be irregular or illegal (the question whether the Court should decline relief to avoid perpetuating illegality).
Arguments of the Parties
Petitioners' Arguments
- The terminations were in violation of Section 25F of the Industrial Disputes Act, 1947, and thus the petitioners are entitled to protection under that provision.
- Persons junior to the petitioners were retained in service while the petitioners (senior) were dismissed—this constituted unlawful discrimination.
- The respondents adopted a "pick and choose" method while terminating services, selectively retaining some irregular appointees while terminating others.
- The terminations were effected without giving one month's notice or one month's pay in lieu of notice, contrary to Rule 33(1)(b) of the Bombay Civil Services Rules, 1959.
- Reliance was placed on earlier decisions (Sub-Divisional Soil Conservation Officer & Anr. v. M. M. Saiyed; V. P. Ahuja v. State of Punjab & Ors.) in support of the contentions concerning termination procedure and statutory protections.
Respondents' Arguments
- The appointments were illegal and impermissible back-door entries; accordingly the appointments were temporary and liable to be terminated.
- The appointments were purely temporary (three months) and could be terminated without notice under the terms of appointment.
- The names of petitioners were not called from the Employment Exchange nor sponsored by the Social Welfare Officer; the names were suggested by Gujarat Pradesh Dalit Varg Sangh.
- Preliminary objection: the petitioners had efficacious alternative statutory remedies, namely (a) raising an industrial dispute under the Industrial Disputes Act, 1947, and (b) appeal before the Gujarat Civil Services Appellate Tribunal under the Gujarat Civil Services Appellate Tribunal Act, 1972.
- Where relief sought would amount to perpetuating an illegality (i.e., restoring illegal/back-door appointments), this Court should not grant relief under Article 226; therefore the petitions are not maintainable in equity.
- Respondents relied upon several precedents (listed in the opinion) in support of the submission that this Court should not perpetuate illegal appointments.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Surendra Singh v. Central Government & Ors., 1986 (4) SCC 667; AIR 1986 SC 2166 | Requirement that a writ petition challenging an order must ordinarily have the impugned order placed on record and seek quashing of that order. | The Court relied on this authority to observe that unless a copy of the impugned termination order and a prayer for quashing is filed, relief ordinarily cannot be granted. The Court noted that in two matters no termination orders were filed and thus those petitions were, in principle, not maintainable — but proceeded on merits because respondents admitted services in those two cases were not terminated. |
| Sub-Divisional Soil Conservation Officer & Anr. v. M. M. Saiyed, 1990 (1) GLH 518 | Cited by petitioners in support of contentions regarding invalid terminations / procedural protections (as relied upon by petitioners in their submissions). | The decision was cited by petitioners; the Court recorded the reliance but evaluated the petitioners' claims against the full factual context (noting in particular the temporary/ad hoc nature of appointments and whether statutory remedies were available). |
| V. P. Ahuja v. State of Punjab & Ors., reported in AIR 2000 SC 1980 (as cited) | Cited by petitioners in support of their contentions concerning termination protections under statute/rules. | Recorded as relied upon by petitioners; the Court considered the statutory route (Industrial Disputes Act) as the appropriate forum for certain challenges rather than the writ forum. |
| State of Gujarat & Anr. v. P. J. Kampavat & Ors., 1993 (1) GLR 848 | Cited by respondents in support of their contention (as part of a group of authorities) that this Court should not perpetuate illegal appointments. | Listed by respondents as supporting authorities for the proposition that writ relief should not be used to restore illegitimate or irregular appointments; court treated these as part of respondents' supporting jurisprudence. |
| Nilesh Bhatt & Ors. v. Administrative Officer, Nagar Pradhamik Shikshan Samiti & Ors., 1996 (1) GLH 108 | Cited by respondents to support restraint on writ relief where appointments are irregular. | Included among the authorities relied upon by respondents; the Court considered the broader line of authority when discussing the principle of not perpetuating illegality. |
| Rupsinh Sonsinh Parmar & Ors. v. Sabarkantha District Panchayat & Ors., 1998 (1) GLH 263 | Cited by respondents in support of the same general principle regarding irregular appointments. | Recorded as relied upon by respondents and considered by the Court when evaluating whether quashing termination orders would amount to perpetuating illegality. |
| Dhanjibhai Ramjibhai v. State Of Gujarat, 1985 (2) GLR 862 | Cited by respondents as an authority to support their submissions about not perpetuating illegality. | Included in the list of authorities relied upon by respondents; the Court had regard to the respondents' reliance when addressing the question of whether to grant relief that would revive irregular appointments. |
| Chandigarh Administration v. Jagjit Singh, AIR 1995 SC 705 | Principle that a court should not quash an order where quashing would perpetuate an illegality by restoring illegal appointments. | The Court expressly referred to this Supreme Court authority to support the proposition that it may decline to interfere under Article 226 where quashing the impugned order would revive irregular appointments and perpetuate illegality. |
| State of Bihar v. Kameshwar Prasad Singh, AIR 2000 SC 2306 (also cited as 2000 AIR SCW 2389) | Latest authority (as cited) reinforcing the principle that courts should not restore illegal appointments by granting writ relief. | Cited by the Court as further authoritative support for declining to grant relief which would restore irregular or illegal appointments. |
Court's Reasoning and Analysis
The Court proceeded in a stepwise analysis, applying statutory and procedural principles to the facts before it:
- Maintainability and procedural requirement: The Court noted that in two of the three matters no copy of any termination order was placed on record and the dates of the alleged orders were not stated. It invoked the principle from Surendra Singh that ordinarily a writ petition seeking quashing must have the impugned order on record; without it relief cannot be granted. Nevertheless, because respondents admitted that the services in those two matters were not terminated, the Court did not dismiss those petitions on that ground and proceeded to consider the merits.
- Alternative statutory remedies: The Court found that the petitioners themselves treated their employment as falling within the scope of 'workmen' and the hospital as an 'industry' by invoking Section 25F of the Industrial Disputes Act, 1947. Given that the Industrial Disputes Act provides a specific remedy (raising an industrial dispute) and the Gujarat Civil Services Appellate Tribunal Act, 1972 provides an appellate remedy against discharge, the Court held that efficacious alternative statutory remedies were available. The Court expressed concern at litigants resorting directly to the writ forum when statutory remedies (industrial dispute or appeals) are available and described such tendencies as to be deprecated.
- On Section 25F: The Court observed that challenges under Section 25F can only be properly agitated in the forum provided by the Industrial Disputes Act (i.e., by raising an industrial dispute). Because the petitioners had not raised an industrial dispute, the Court considered the contention under Section 25F not appropriate for adjudication in the writ proceedings and declined to examine it further.
- On the discrimination/juniority contention: The Court found that petitioners failed to produce any seniority list. It emphasized that the appointments were purely ad hoc, temporary for three months, and that for such appointees there may not be any seniority list. The Court observed that applications were not invited from the open market, names were not called from Employment Exchange or Social Welfare Department, and constitution of any selection committee was not disclosed. On these facts the Court concluded the appointments appeared to be ad hoc/back-door entries rather than formal appointments following recruitment rules or Articles 14 and 16 of the Constitution.
- On the nature of appointment and probation: The Court held that mentioning 'AJMAYISH' or similar in appointment orders does not necessarily convert a temporary three-month appointment into an appointment on probation. The whole order and surrounding facts must be read; here the orders clearly indicated a three-month temporary appointment liable to be terminated without notice.
- On Rule 33(1)(b) and the refusal to quash where that would revive illegality: The Court recognized that even if termination orders were made in violation of Rule 33(1)(b) (notice or notice pay), it could legitimately decline to quash such orders where quashing would result in reviving irregular or illegal appointments. The Court applied the established principle that it will not, under Article 226, perpetuate illegality by restoring illegal appointees and cited Supreme Court and High Court authorities for that proposition.
- Overall evaluative conclusion: Having considered the factual matrix and the parties' submissions, the Court stated it was satisfied that the petitioners had no case on merits. The Court emphasized the availability of efficacious statutory remedies and the problematic character of the appointments (temporary, back-door sponsorship), and therefore found no basis to grant the relief sought.
Holding and Implications
Core Ruling: The Court found that the petitioners had no case on merits and declined to grant relief that would revive or perpetuate irregular or illegal appointments.
Implications (Direct Effects)
- The Court recorded that petitioners had efficacious alternative statutory remedies available (raising industrial dispute under the Industrial Disputes Act and appeal under the Gujarat Civil Services Appellate Tribunal Act) and that challenges under Section 25F should ordinarily be pursued through the statutory route.
- The Court concluded that the appointments in question were temporary/ad hoc and appeared to be irregular (names sponsored by a private organization rather than through Employment Exchange or open recruitment). Given that factual finding, quashing the termination orders would have the effect of restoring irregular appointments — an outcome the Court was not willing to effectuate.
- Because the Court declined to grant relief that would revive irregular appointments, the practical consequence for the petitioners is that they were not entitled to the relief sought in the writ petitions on the stated facts.
- No statement in the provided text indicates that the Court intended to lay down a novel legal principle; the Court relied on existing authorities to apply the established principle that writ relief will be refused where its effect would be to perpetuate illegality.
Note: This summary is strictly limited to and derived from the content present in the supplied opinion. No extra-textual facts or inferences beyond what the opinion expressly states have been added.
1. As in all these three matters, the grounds raised for challenge of the order of termination of services of the petitioners and the facts are almost similar, the same are being taken up for hearing together and are being disposed of by this common order.
2. In Special Civil Application No. 4578 of 1990, this Court had not protected the petitioner by grant of interim relief. However, in two other matters, interim relief has been granted in favour of those petitioners and they are continuing in service. Leading arguments in these three matters were advanced by Shri A.V. Trivedi, learned Counsel for petitioner in Special Civil Application No. 4578 of 1990. Those arguments have been adopted by Ms. Sejal Sutaria appearing for petitioners in two other matters.
3. It is not in dispute that the petitioners were given appointments as Class-IV by respondent No. 2 at the Civil Hospital, Mehsana.
4. Reply to the Special Civil Application No. 4111 of 1990 has been filed and therein it is stated that their appointments were illegal and accordingly their services were terminated. It has further been stated that the appointments were made purely on temporary basis and it was open to the respondent No. 2 to terminate their services without giving any notice as per the terms of appointment. It is further stated that the names of petitioners were not called for from the Employment Exchange or their names were also not sponsored by the Social Welfare Officer concerned. Names of the petitioners were suggested by Gujarat Pradesh Dalit Varg Sangh and the respondent No. 2 had appointed the petitioners. The respondents have also taken preliminary objection regarding maintainability of the Special Civil Application on the ground that the petitioners have efficacious alternative remedy available to approach to the Gujarat Civil Services Appellate Tribunal. During the course of arguments, the learned Counsel for the respondents raised another contention that these petitions are not maintainable as it is a matter of termination of services of the petitioners and it was alleged to be in violation of Section 25F of the Industrial Disputes Act, 1947, for which remedy is available under the Act aforesaid which has to be availed of.
5. The learned Counsel for the petitioners contended that the services of the petitioners were brought to an end in violation of the provisions of Section 25F of the Industrial Disputes Act, 1947. Second contention has been raised that the persons junior to the petitioners were retained in service whereas the services of the petitioners were dispensed with. Next contention is made that the respondents, while affecting the termination of services of the petitioners, adopted pick and choose method. It is submitted that along with the petitioners, many other persons have been appointed but the persons who were at Sr. Nos. 8 & 9 in the list prepared have been retained in service. Lastly, it is contended that the termination of the services of the petitioners is bad as the provisions of Rule 33(1)(b) of the Bombay Civil Services Rules, 1959, have not been followed, meaning thereby, the petitioners were not given one month's notice or one month's pay in lieu of notice. In support of his contention, the learned Counsel for the petitioners placed reliance on the decision of this Court in the case of Sub-Divisional Soil Conservation Officer & Anr. v. M. M. Saiyed, reported in 1990(1) GLH 518 and that of the Apex Court in the case of V. P. Ahuja v. State of Punjab & Ors., reported in AIR 2000 SC 1980.
6. The learned Counsel for the respondents strongly opposed these special civil applications and reiterated those very contentions raised in the reply to the Special Civil Application No. 4111 of 1990. In addition to this, he further contended that the very appointments of the petitioners were back-door entries and in case the termination order of their services is set aside, this Court will restore the illegal appointment order. It is settled law that this court sitting under Art. 226 of the Constitution will not perpetuate illegality. In support of his contention, Mr. Premal Joshi, the learned Counsel for the respondents placed reliance on the following decisions :
State of Gujarat & Anr. v. P. J. Kampavat & Ors. - 1993 (1) GLR 848 Nilesh Bhatt & Ors. v. Administrative Officer, Nagar Pradhamik Shikshan Samiti & Ors, - 1996 (1) GLH 108 Rupsinh Sonsinh Parmar & Ors. v. Sabarkantha District Panchayat & Ors. - 1998 (1) GLH 263 Dhanjibhai Ramjibhai v. State Of Gujarat . - 1985 (2) GLR 862
7. I have given my thoughtful considerations to the submissions made by learned Counsel for the parties.
8. In Special Civil Application No. 4578 of 1990, the order of termination of services of the petitioners is filed. In two other cases, the petitioners have not filed the order of termination of their services. Even in the special civil applications it is not stated on which date these orders have been passed. It is no more res Integra that unless a copy of the order impugned and prayer is made for quashing and setting aside thereof, is tiled, no relief can be granted to the petitioner. Reference in this respect may have to the decision of the Apex Court in the case of Surendra Singh v. Central Government & Ors., reported in 1986 (4) SCC 667 : AIR 1986 SC 2166. In these two special civil applications, prayer has been made that the action of the respondents to terminate the services of the petitioner be declared erroneous and violative of Art. 14 of the Constitution of India. Though artistically prayer has been made but in substance, prayer is for quashing and setting aside of the order of termination. It is a different matter that this Court has protected the petitioners but otherwise, unless a copy of the orders are filed, these petitions were not maintainable nor any relief could have been granted. Be that as it may, as the respondents have admitted that the services of the petitioners in these two special civil applications have not been terminated, I am not dismissing these petitions on this ground and considering the matter on merits.
9. The very fact that this termination of services of the petitioners was stated to be in violation of the provisions of Section 25F of the Industrial Disputes Act, 1947, there remains no doubt in the mind of the Court that the petitioners accepted the fact that they are the 'workmen' and the hospital where they have been posted, an 'industry'. It is a case where the petitioners are seeking benefits of the provisions under a specific Statute and in case where in that Statute specific remedy is provided for making grievances against the termination, then that remedy has to be availed of. I find sufficient merits in the contention of Mr. Premal Joshi, A.G.P., that efficacious alternative remedy was available to the petitioners in the matter to raise industrial dispute. Once that remedy is available to the petitioners then certainly that has to be availed of and the Court has to discourage the litigants to directly come up before this Court where they have efficacious alternative remedy under the Statute. This tendency of litigants to directly come up before this Court in the matters where efficacious alternative remedy of raising industrial dispute or appeal, revision, etc., under the Statute is available deserves to be deprecated. Another preliminary objection raised by learned Counsel for the respondents that the petitioners had also alternative remedy of filing appeal before the Gujarat Civil Services Appellate Tribunal is also of substance. If we go by the Schedule to the Gujarat Civil Services Appellate Tribunal Act, 1972, I find that the order of discharge of an employee from services is appealable. Here also, if we go by the order of termination of services of the petitioner filed in one case, it is a simpliciter discharge/termination of services of the petitioner and the petitioners had a statutory remedy of appeal available. In the petitions, more particularly in paragraph 13 thereof, the petitioner has deliberately and purposely made an incorrect statement of fact that he has no other alternative efficacious remedy save except this petition. In this matter, the petitioners had two alternative efficacious statutory remedies available, i.e., first of raising industrial dispute under the provisions of the Industrial Disputes Act, 1947, and another, a statutory right of appeal under the Gujarat Civil Services Appellate Tribunal Act, 1972. However, these matters are pending since 1990 and after hearing the learned Counsels for the parties, I am satisfied that the petitioners have no case on merits and as such, I do not dismiss these matters on this ground and to give another fresh life to these litigants by way of availing of alternative remedy by them.
10. So far as the first contention raised that the services of the petitioners were brought to an end in violation of Section 25F of the Industrial Disputes Act, 1947, it is suffice to say that this contention is not available to the petitioners for the simple reason that this can only be agitated, raised and gone into in the industrial dispute raised by the petitioners. The very fact that the petitioners have not raised industrial dispute, is clearly suggestive of the fact that they have given up their this challenge to the order of termination of services and this Court needs not to examine and go on this question.
11. So far as second contention raised that the juniors were retained and seniors' services were terminated, it is to be stated that the petitioners have not produced any seniority list nor they could have produced because their appointments are purely ad hoc and temporary for three months and for such appointees there may not be any seniority list. Though the petitioners have stated that they have been appointed after selection, it is difficult to accept this version of the petitioners as the applications were not invited from the open market. The names were not called from the Employment Exchange as well as Social Welfare Department and the petitioners have not given out the constitution of the Selection Committee. Apart from this, these appointments have been made purely on temporary basis for three months and they cannot he taken to be appointments after selection. If we go by the facts of this case, it is a clear case where on the basis of names sent or sponsored by Gujarat Pradesh Dalit Varg Sangh, these appointments have been made. I fail to see and the learned Counsel for the petitioners have also failed to show under which provisions it was permissible to this Sangh to sponsor the names and consequently, obligatory on the part of the respondent No. 2 to make appointments from this list. These are nothing but only back-door entries. These appointments have been made de hors the recruitment rules and if the recruitment rules are not there then of the Arts. 14 and 16 of the Constitution of India.
12. The learned counsel for the petitioners then contended that these appointments were made on probation, but merely because in the appointment orders, it has been mentioned as 'AJMAYISH', it cannot be taken to be the appointments on probation. The order has to be read as a whole and further the other facts have to be considered and if we go by all these, then these are purely temporary appointments made for fixed term for three months. The order clearly reveals two things; the appointment for three months and that it is temporary appointment which is liable to be terminated without notice. The appointment on probation could have been made only after recruitment in accordance with the recruitment rules or under Arts. 14 and 16 of the Constitution of India. The petitioners, no doubt, are S. C. but for making appointments against reservation quota, recruitment rules or in the absence of recruitment rules, Arts. 14 and 16 of the Constitution of India have to be followed. As per recruitment rules and Arts. 14 and 16 of the Constitution of India, appointment are to be made by giving opportunity to all the eligible persons and that is possible only by calling applications by way of advertisement or names are to be called from Employment Exchange or Social Welfare Department. That has not been done nor any selection has been made as even constilution of Selection Committee has not been given. In these facts on which no dispute has been raised by learned Counsel for the petitioners, these are only temporary appointments for fixed term of three months and on the condition of being liable to be terminated without notice and in fact and substance, the back-door entries.
13. It is not in dispute that along with the petitioners, some other persons have also been appointed and their services were retained. In case the appointments of petitioners were irregular as per say of respondents, certainly the appointments of those two other persons were also irregular and their services are to be terminated. But the question that falls for consideration is whether only on this basis, a plea of discrimination can be permitted to be raised by petitioners? If we go by the facts of this case, certainly the appointments of the petitioners and that of those persons named in one of the petition in paragraph 8 thereof were irregular. It is no more res Integra that a plea of discrimination on the basis of irregular and unwarranted orders of the officers cannot be permitted to be raised by the litigants. On the basis of this act of respondents to continue irregular appointments of some' of the persons, the petitioners cannot be given the benefit on the ground of discrimination. It is done, then what this Court will do is not only continue these irregular appointments but further will set aside the order of termination of the petitioners who were irregularly inducted in services and as a result of which, perpetuate illegality. Reference in this respect - may have to the decision of the Apex Court in the case of Chandigarh Administration v. Jagjit Singh, reported in AIR 1995 SC 705 and the latest decision of the Hon'ble Supreme Court in the case reported in 2000 AIR SCW 2389 : AIR 2000 SC 2306 (State of Bihar v. Kameshwar Prasad Singh).
14. The last contention raised that the termination of services of the petitioners has been made without any notice or notice pay as required under Rule 33(1)(b) of the Bombay Civil Services Rules, is also devoid of merits and substance. Each case has to be decided on its own facts and ratio of decision is on the facts of that case. When the appointments of the petitioners are irregular and in case the order of termination of their services is set aside on the ground that the provisions of Rule 33(1)(b) of the Bombay Civil Services Rules has not been followed, then it will result in revival of or restoration of the irregular appointment order and this will be resulted to continue those illegal appointees. This Court, sitting under Art. 226 of the Constitution will not perpetuate any illegality. This Court can legitimately decline to interfere with the order of termination of services of the petitioners though it may be made in violation of the provisions of Rule 33(1)(b) of the Bombay Civil Services Rules or Section 25F of the Industrial Disputes Act where quashing of the same will result in revival of irregular appointment. In catena of cases of different High Courts as well as Hon'ble Supreme Court, it has been held that this Court may decline to issue a writ of mandamus or certiorari where the effect of quashing the impugned order would be to restore illegal order. Exactly here in case what the learned Counsel for the petitioners contended is to be accepted, and relief is granted to the petitioners as prayed for, it will result in restoration of irregular appointments of the petitioners. Reference here may have to the following decision of the Apex Court as well as of different High Courts :
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