MARIAMBEN AMIRBHAI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The petitioners herein were employed as Ayes at Ram Rajendrasinhji Hospital and Baluba Maternity Home Limbdi in Surendranagar District. They were employed over a period of two years and more on several occasions each time for a period of 29 days at a stretch. the petitioner No. 1 whose date of birth is stated to be 23/11/1951. was employed for the first time as Aaya on 2/04/1980 for a period of 29 days. Thereafter she has heel employed on 18 occasions with short intervals which time the employment being for 29 days. Thus from 2/04/1980 upto 22/06/1983 she had worked on 19 occasions each time 29 days making a total of 55t days. Similarly the petitioner No. 2 was employed as Aaya for the first time on 10/06/1981 for a period of 29 days. Thereafter she was employed 12 times for a period of 29 days at a time till 22/06/1983 Similarly the petitioner No. 3 also was first appointed as Aaya on 22/07/1981 for 29 days and was subsequently appointed from time to time on 19 different occasions each time for 29 days till 24/05/1983 The three petitioners having worked as Aayas for more than two years although there were gaps in between and each time the employment was for a period of 29 days they were sent before the Selection Board for permanent appointment. The appointing authority in the case of the petitioners is the Civil Surgeon Limbdi. He selected the petitioners and recommended their permanent appointment as Aayas in the said hospital. The Director of Health and Medical Services by his letter dated 22/05/1984 turned down the recommendation of the Civil Surgeon Limbdi on the ground that the petitioners had passed the age limit of 30 years on the date of their permanent appointment. Against the said order of the Director the present petition is filed.

(2.) Mr. A. D. Padival for Mr. P. M. Thakker the learned counsel for the petitioners submits that although the petitioners were employed for a period of 29 days on each occasion in fact they had served for about 2 years with short intervals. Therefore according to him the petitioners are entitled to be appointed permanently on the basis of their service for nearly two years. Mr. Padival has further argued that it is not in dispute that the petitioners were the age limit of 30 years when they were first employed on temporary basis for a period of 99 days. He has submitted that as per the Gujarat Civil Services Classification and Recruitment (General) Rules 1967 (hereafter Rules). the petitioners are entitled to be employed on a permanent basis. He relies on Rule 8 sub-rule (5) which provides as under:

(3.) Mr. B. D. Desai the learned A.G.P. has urged that the petitioners having been employed for only 29 days on each occasion. it cannot be said that they have served continuously for a period of six months to come within the preview of sub-rule (5) of Rule 8 of the aforesaid Rules. The contention of Mr. must be rejected. The fact that the petitioners have worked for a period of nearly two years although with short intervals and only for 9 days at a stretch cannot be taken to mean that they have not worked for a period of six months continuously. If they had been given continuous employment it would have been much longer than six months. But by resorting to the subterfuge of employing for 29 days at a stretch ar. attempt is made to circumvent the aforesaid provision of the Rules. Technically of course it may be correct to say that the petitioners have not worked continuously for a period of six months but this technicality cannot be allowed to perpetrate injustice. The re-employment over and over again although for 29 days at a time must be regarded as continuous for the purpose of giving rational and just meaning to the aforesaid provision in the Rules. Even if a private employer were to resort to this kind of unfair tactics it would be regarded as bad enough. But the State resorting to these kinds of unfair tactics must be denounced in no uncertain terms. It does not behove the State as an employer to resort to the exploitation of its employees especially those belonging to the lowest stratum the poor the ignorant and the weak ones. The petitioners who were working as Aayas i.e. Class-IV servants doing menial job of cleaning the dirt in the hospital. The fact that they have been subjected to this unfair treatment should disturb the conscience of any right thinking person. It is difficult to see how the Director or Health and Medical Services tried to lake shelter behind the provisions of the Rules when the Civil Surgeon. Limbdi had recommended their appointment as permanent Aayas. The Civil Surgeon Limbdi was justified in taking the view that the petitioners were within the age limit when they were first employed on temporary basis. It is surprising that the Director turned down the recommendation of the Civil Surgeon on the flimsy and untenable ground that the petitioners had passed the age limit of 30 years at the time of their permanent appointment and that they could not get the benefit of sub-rule (5) of Rule 8 of the Rules as they had not put in a continuous service for more than six months. The stand taken by the Director is based on a misconception. He is entirely wrong and hyper-technical in taking the view that the petitioners had not put in a continuous service of six months because they were employed for 29 days at a time and that there were short breaks in between various re-employments. It is hoped that the State as an employer will not resort to such subterfuge in future.