Balvant Karanbhai Solanki vs High Court Of Gujarat & 2 Other(s)

Biren Vaishnav, J

RULE. With the consent of learned advocates for the respective parties, present petition is taken up for final hearing. Mr.Hemang Shah learned advocate waives service of Rule for respondent no.

The present petition has been filed by the petitioner, challenging the order dated 12.06.2020, by which, his services from the post of driver at the Family Court, Bhavnagar, were terminated.

Facts in brief are as under.

The case of the petitioner is that the High Court of Gujarat on its' administrative side issued an advertisement dated 19.02.2018, advertising 24 posts for drivers, in which, there were three posts advertised for the Bhavnagar District (two for the District Court, Bhavnagar and one for the Family Court).

The petitioner applied for the post. 16 candidates were selected against the 24 posts advertised. A select list was published on 26.10.2018 and after verification of documents, the petitioner by an appointment order dated 29.11.2018 was appointed as a driver on the establishment of the Family Court at Bhavnagar. The case of the petitioner is that his appointment was made even though the vehicle was not available at the Family Court, Bhavnagar. An order dated 14.03.2019 is annexed with the petition to submit that the petitioner was even assigned work in other departments in addition to his work as a driver. The services of the petitioner were terminated by an order dated 12.06.2020 on the ground that as and when a car is allotted to the Court by the Legal Department his services shall be restored.

Ms. Harshal Pandya, learned advocate for the petitioner submits as under.

A. That the order of termination is bad because neither any notice nor any opportunity of hearing was given to the petitioner and therefore the order is passed in violation of principles of natural justice.

B. She would further submit that the appointment of the petitioner was made on the post of a driver though at the relevant time when the appointment was made, there was no vehicle allotted to the Family Court at Bhavnagar. She would further submit that in all, three posts were advertised in the District of Bhavnagar and the petitioner was occupying one of those posts. She would further submit that the same is even a stand taken by the petitioner and supported by the corrigendum annexed by the respondents in the affidavit-in-reply.

C. That the advertisement was published after collecting details of the number of vacancies from the subordinate Courts as is evident from the affidavit-in-reply and therefore the process took time. Of the 24 posts advertised, only 16 were filled in. Eight posts were therefore vacant and therefore there was enough reason for the establishment of the High Court on the administrative side to recommend that the petitioner be continued on the post of driver or any other Class-III post anywhere rather than face termination in the present situation of pandemic.

D. That the petitioner's appointment vide order dated 29.11.2018 was on probation for a period of one year. The probation order being for a period of one year, the petitioner should have been treated as having been confirmed on the tenure of probation being over. She would therefore submit that there was no earthly reason for terminating the petitioner's services and rendering him jobless in this hard time. The present advertisement pursuant to which he was appointed did still have vacant posts in the subordinate Courts and the petitioner is willing to be accommodated anywhere rather than facing starvation.

On a notice being issued by this Court, Mr. Hemang Shah, learned advocate has appeared for the respondents and has filed his affidavit-in-reply. Mr. Shah in support of the stand taken in the affidavit-in-reply would submit as under:

A. That there no longer exists a vehicle at the Family Court, Bhavnagar. The Family Court at Bhavnagar consists of two judicial officers who have their own cars and now that the petrol allowance is given, they prefer to drive their own car to the Court. The State Government was requested to allot a vehicle to the establishment. The allotment of a vehicle is pending. There was no need for the petitioner to be continued as a driver and therefore his services were put to an end.

B. That the regular follow-up by the Principal Judge, Family Court, Bhavnagar, has been made to the Legal Department. However, the allotment of vehicle is pending and till such allotment of a vehicle is made, the petitioner cannot be taken back in service. The submission of Mr. Shah was that as and when the vehicle is allotted to the Family Court at Bhavnagar, the petitioner could be considered to be taken back in service. At present, the petitioner cannot be retained at the cost of the exchequer.

C. That on 12.06.2020, the Principal Judge of the Family Court came to be transferred and considering the principle of no work no pay, the services of the petitioner have been put to an end.

D. To the submission made by Ms. Pandya that 24 posts were advertised and therefore there were 8 vacancies, in the advertisement pursuant to which the petitioner was appointed, Mr. Shah would rely on the decision of the Supreme Court in the case of Rabari Prabhatbhai Gugubhai and others v. State of Gujarat in Civil Appeal No.18020 of 2017 dated 19.04.2018 and would submit that six drivers who had approached the Supreme Court were absorbed pursuant to the directions given by the Supreme Court and the resultant vacancies therefore had come down from 24 to 18.

E. During the course of the hearing, a suggestion was made by the learned counsel for the petitioner that there was a post of a driver vacant at Botad and the respondents may consider the case of the petitioner being appointed at Botad. The arguments were concluded and the petition was adjourned for the respondent to explore that possibility. Mr. Hemang Shah came back with the submission that the advertisement for the post in question pursuant to which the petitioner was appointed, was issued on 19.02.2018 and the district of Botad came into being on 21.10.2018 and therefore, there was no reason why the case of the petitioner could be considered for being appointed on the post at Botad.

G. Mr. Shah in support of his submissions relied on the following decisions:

• Rakhi Ray and others v. The High Court of Delhi and others [2010 (2) SC 637]. He would rely on para 9 of the judgment to submit that the petitioner's request for appointment at Botad would not be tenable because a vacancy arising subsequent to the recruitment process, can only be filled in by a fresh recruitment.

• Registrar High Court of Gujarat and Anr. v. C.G.Sharma reported in AIR 2005 SC 344. He relied on para 26 of the judgment to contend that there can be no automatic confirmation of a probationer even if a probationer is about to continue for a period beyond the period of probation. There can be no deemed confirmation according to Mr. Shah and therefore unless a specific order was passed confirming the petitioner, it is not open for him to contend that he has been confirmed in service.

• Municipal Corporation, Raipur v. Ashokkumar Mishra [AIR 1991 SC 1402]. This was relied upon to support his submission that mere expiry of probation would not automatically entitle the petitioner to a deemed confirmation.

• Muir Mills Unit of NTC (U.P.) Ltd. v. Swayam Prakash Srivastava and Anr. Reference was made to para 45 of the decision that a probationer can be terminated at any time.

• State of M.P. v. Virendera Kumar Chourasiya [1999 SCC (L&S) 1155]. This decision is relied in support of his submission that a non stigmatic order can be passed for terminating the services of the probationer and the principles of natural justice are not applicable.

No other submission was made by learned advocate for the respondent.

Considering the submissions made by the learned advocates for the respective parties, the following undisputed facts emerge:

I. That an advertisement dated 19.02.2018 was issued by the Administrative side of the High Court for 24 vacancies of driver. Of these three vacancies were notified for the District Court, Bhavnagar, two on the establishment of the District Court and one at the establishment of the Family Court.

II. The petitioner was appointed on the establishment of the Family Court and the appointment order was issued on 29.11.2018. The petitioner joined pursuant to the post so advertised and pursuant to his selection.

III. It is not disputed that even when the petitioner was appointed as a driver on 29.11.2018, the establishment of the Family Court did not have a post of driver. It therefore becomes evident that though there was no vehicle available at the Family Court, Bhavnagar, the advertisement for the post of driver for the Family Court was issued and the petitioner was selected and appointed to be engaged as a driver. It is possibly under these circumstances that an order of 14.03.2019 needs to be appreciated. Possibly accepting Mr. Hemang Shah's submission that the petitioner cannot be continued and the public exchequer be made to suffer on the principle of 'no work no pay', that order was passed.

IV. The stand taken by the respondents now in the affidavit-in- reply is that there are no vehicles, that the Legal Department is being repeatedly pursued by way of a follow up to allot one vehicle to the Family Court, Bhavnagar, and the request is pending and that because of the transfer of the Family Court Judge on 12.06.2020, the resort was made to terminate the services of the petitioner does not appear to be sound.

V. At the cost of reiteration, it may be pointed out that it was the case even when the petitioner was appointed and there was no vehicle allotted to the Family Court, Bhavnagar, the petitioner was even then appointed as a driver. The reason for terminating the services therefore on the ground of non-availability of a vehicle is a clear afterthought to overcome any other disqualification.

VI. On the issue of the number of posts advertised i.e. 24 and that the number of posts which were filled in were 16 and therefore 8 vacancies still subsist on which the petitioner could have been appointed and in contra distinction thereto, Mr.Hemang Shah's submission that 6 of those posts have been filled in pursuant to the absorption of the drivers adhering to the order of the Supreme Court is a fact that this Court will not need to go into now as the Court finds that the termination of the petitioner from the post of driver on the ground that no vehicle is available, is not valid enough to sustain itself in the eye of law.

VII. The legal grounds raised by Mr. Shah in support of his submissions on the question of deemed confirmation and the judgments that have been cited are not a matter of dispute. The issue that the Court has to consider in the present case is not whether the petitioner has a right to do or entitled to be continued in appointment on the basis of the principle of 'deemed confirmation'. From the pleadings and the affidavit filed, what is evident is that the sole ground on which the petitioner was terminated is the transfer of the District Judge, Family Court on 12.06.2020 and therefore the non-availability of the vehicle and the option explored by the learned Judicial Officer to drive his own vehicle. The respondents have lost sight of the fact that despite this position which existed even when the post was advertised and the petitioner was appointed, they filled in the vacancy and appointed the petitioner after due process of selection on 29.11.2018. There was no vehicle and therefore, the option not to appoint a driver though advertised, was not exercised by the respondents. Once having exercised that option and continued the petitioner for a period of more than one year and having assigned him duties on other posts, to terminate his services on non-availability of vehicle will fail the test under Article 14 of the Constitution of India and the termination can be said to be arbitrary and in violation of principles of natural justice.

Accordingly the petition is allowed. The order of termination dated 12.06.2020 passed by the respondents is quashed and set aside and the respondents are directed to reinstate the petitioner forthwith on the post on which he was working prior to the date of his termination with all consequential benefits. It is however open for the respondent to assign the petitioner, duties other than driver till a regular vehicle is allotted to the Family Court, Bhavnagar or transfer his services to a place where the post of driver is vacant or falls vacant in future. Rule is made absolute accordingly. Registry to communicate this judgment through E-mail.