Judgment:
S.K. Keshote, J.
1. Heard the learned Counsel for the petitioners. The Counsel for the petitioners is unable to let to know this Court as to what ultimately happened to the Civil Suit No. 53 of 1983.
2. The petitioners filed this petition before this Court wherein the prayer made that respondents No. 1 & 2 be directed to allow them to join the duties forthwith as per the appointment letter. The prayer for interim relief has also been made. Thereafter further prayers have been made that respondent No. 3 be directed that the hearing of the said application made in Regular Civil Suit No. 53 of 1983 be pre-emptorily heard and the matter be decided urgently. Further, prayers have been made that the judgment and decree passed in said Regular Civil Suit No. 53 of 1983 on 30th December 1983 be declared to be not binding on the petitioners and further prayed for issuance of injunction from enforcing the judgment and decree dated 30th December 1983.
3. First of all, I constrain to observe that the petitioners have not correctly stated the facts in the petition. In Civil Suit No. 53 of 1983 no decree has been passed. The prayer which has been made in the petition by the petitioners is self-contradictory. In case the decree would have been passed in Civil Suit No. 53 of 1983 then there was no occasion for the petitioners to make prayer as made in prayer clause B- l. Be that as it may, I may proceed with the merits of the case.
4. The petitioners were selected for the post of clerks by Selection Committee and or the recommendations of the Selection Committee they were issued appointment letters dated 30th December 1982. After receipt of the appointment letters the petitioners presented themselves before respondents No. 1 & 2 for joining their services, but they were not allowed to join service on the ground that this Court has granted stay order regarding appointments.
5. On enquiry being made by the petitioners they have come to know that one Kalidas Nathabhai Rathod with other persons had filed Special Civil Application No. 5606 of 1982 before this Court challenging the appointments on 16 additional posts created. On 31 st December 1982 this Court was pleased to issue notice to the respondents in the aforesaid Special Civil Application and interim relief has also been granted restraining the respondents from making any appointment on additional 16 posts. On contest of the aforesaid petition by the respondents ultimately on 28th January 1983 the petitioner therein sought permission of the Court for withdrawal of the petition which was granted. The writ petition was dismissed as withdrawn and ad interim relief was vacated. After withdrawing the said petition and vacation of the interim stay the respondents would have allowed the petitioners to join duties, but they were not allowed to join on one or the other pretext. The petitioners worried about their services. They remained with no option but to approach this Court and they are before this Court by this petition.
6. The writ petition has come up before this Court on 8th March, 1983 for admission on which date notice was issued. On 14th March 1983 when this matter has come up for admission, this Court has been pleased to direct Civil Judge (S.D.), Narol to hear and decide the application filed in Regular Civil Suit No. 53 of 1983 within a week from today. Therefore, this writ petition came up for admission before this Court on 7th April 1983. On this date this writ petition was admitted and interim relief in favour of the petitioners has been granted. The order of interim relief passed on 7th April 1983 is as follows:
Rule. Mr. M.I. Patel, learned Counsel waives service of Rule, on behalf of Respondents No. 1 and 2. Mr. J.A. Shelat, learned Counsel waives service of Rule on behalf of the respondent No. 4.
Mr. Y.S. Mankad, learned Counsel for the petitioners seeks permission to delete the respondent No. 3 as he is not necessary party. Permission is granted. Name of respondent No. 3 stands deleted.'
The present respondent No. 4 Saijpur Bogha Nagarpalika Karmachari Mandal filed a Civil Suit No. 53 of 1983. In the said suit ad interim injunction was granted by the trial Court. Against which an appeal was filed before the District Court, being Misc. Civil Appeal No. 43 of 1983. However, that appeal was unconditionally withdrawn on 7-4-1983.
7. The present petitioners have already reported to-day to the Saijpur Bogha Municipality for allowing them to join the post of junior clerks in pursuance to the advertisement dated 14-11-1982. Respondents No. 1 and 2 agree that the petitioners will be taken in service from to-day. Learned Counsel Mr. J.A. Shelat appearing for respondent No. 4 states that the respondent No. 4 has no objection if the same three employees who have been already working as junior clerks are allowed to be retained as temporary servants by the respondents No. 1 and 2 subject to the result of the pending litigations between the parties or further litigation if any, in respect of the selection of the Junior clerks which was made pursuant to the advertisement dated 14-11-1982. The learned Counsel Mr. M.I. Patel for respondent Nos. 1 and 2 makes a statement that all the appointments including the appointment of the present petitioners and the appointment of the abovementioned three persons will be subject to the result of the Civil suit and the present petition.
Mr. Mankad, learned Counsel for the petitioners seeks permission to delete from paragraph 5 the first nine lines beginning from 'but now the petitioner...' and ending with '...in the High Court.' on pages 49 and 50 and also to delete paragraph 6 on page 51 of the Affidavit of Bakulray D. Patel, petitioner No. 2 filed on 4-4-1983. Permission is accordingly granted. The above portion from the said Affidavit stands deleted.
Respective parties to act as per their above statements during the pendency of this petition.
8. It is not in dispute that in pursuance of the interim order dated 7th April 1983 the petitioners were allowed to join their posts and they are working on these posts till date. The petitioners are the appointee on the post of clerks after selection. As usual, the litigation has been started by the persons who were not appointed after selection on the post of clerks. The four persons who are appointed on temporary basis have filed regular Civil Suit No. 53 of 1983 in the Court of Civil Judge (S.D.) at Narol and have been granted a blanket stay order. The petitioners were not impleaded as party to the said suit. The petitioners wrongly stated it to be a case of final decision, but the suit was only at the stage of passing of order for the temporary injunction. Be that it may, the order of temporary injunction passed by the learned trial Court was taken to the appellate Court, as it comes out from the carbon copy of the order of the appellate Court dated 7-4-1983. By settlement amongst the parties the appeal was unconditionally withdrawn and the trial Court was directed to expedite the hearing of the suit as far as possible and dispose of the same by the end of December, 1983. From reading of the copy of the order dated 7-4-1983 it appears that the petitioners would have been party to that appeal. The petitioners have nowhere stated in the writ petition as to whether they have approached to the trial Court to implead them as party. Once the petitioners have come to know about the pendency of the suit then they should have approached the said Court and should have contested the same. They are certainly the necessary party to the suit as they have been selected for the post. They have not only selected, but they have given appointment to the post and decision given in the suit may cause prejudice to them, but that action has not been taken and they have chosen to file this petition on 27th March 1983. Now the petitioners have been allowed to join duties on the post in pursuance of the appointment orders by this Court by granting interim relief in their favour and they are serving with respondents No. 1 & 2. It is not the case of the parties that the suit has been disposed of finally. The proceeding of the suit has not been stayed by this Court. As the proceedings were not stayed by this Court in Civil suit, this Court is of the opinion that the suit should be proceeded with and should be decided on merits. After the order passed by this Court on 7-4-1983 the petitioners should have approached to the Civil Court and in case of difficulty by either of the party, I am of the opinion that they would have approached to this Court. Whatever may be the fact today whether the petitioner had joined there or not, but it is certain that the petitioner had been protected by this Court by granting interim relief and the proceeding of Civil suit was not stayed.
9. Many questions of facts are there in the writ petition and when the Civil Court is ceased of the matter where even the evidence can be recorded and the question of fact can be gone into, that proceeding should be allowed to reach to the logical conclusion. The appointments of the petitioners to the post of clerks has already been ordered subject to the decision of the suit. In view of this interim order which has been granted by this Court in this case, I do not consider it to be necessary and desirable that the matter should be decided on merits. The Civil Court should be allowed to decide the matter on merits.
10. In the the result this petition fails and the same is dismissed. The appointment of the petitioners to the post in question shall be subject to the result of the suit. However, it is made clear that the petitioners have already taken back in the services in pursuance of the interim order of this Court and they shall be allowed to continue to work on the post till the decision of the suit. However, in case the suit is decided against them, the decision of the suit shall remain stayed for one month from the date of decision. Rule is discharged subject to the aforesaid observation. No order as to costs.