Murlidhar Anjani Roy vs State Of Gujarat
2021 Latest Caselaw 10687 Guj

      C/SCA/9241/2021                                ORDER DATED: 05/08/2021



            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
              R/SPECIAL CIVIL APPLICATION NO. 9241 of 2021
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                         MURLIDHAR ANJANI ROY
                                 Versus
                           STATE OF GUJARAT
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Appearance:
MR NK MAJMUDAR(430) for the Petitioner(s) No. 1
for the Respondent(s) No. 2
Mr.DHARMESH DEVNANI, AGP for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA

                            Date : 05/08/2021
                             ORAL ORDER

[1] The present petition has been filed seeking the following prayers:-

"12(B). Your Lordship may be pleased to issue appropriate writ, order or direction and be pleased to quash and set aside the illegal, illogical, arbitrary, discriminatory action and decision of respondent authorities of terminating the services of the petitioner from the post of Medical Officer, Class-II, after a long span of service of 18 years and therefore, the aforesaid action of terminating the services of the petitioner may kindly be quashed and set aside as the same is violative of Article 14, 16, 21 of the constitution of India as well as violative of principles of natural justice.

12(C). Your Lordship may be pleased to issue appropriate writ, order or direction and be pleased to quash and set aside the communication / order dated 31.05.2021 and 07.06.2021 and be pleased to issue appropriate writ or order or direction, directing the respondent authorities to reinstate the petitioner on the post of Medical Officer, Class-II with continuity of service and with all the consequential benefits, the petitioner may kindly be order to be reinstate as Medical Officer Class-II and respondent may kindly be directed to make payment of wages/back wages from the date of termination till the petitioner has been reinstated as Medical Officer Class- II and the same may kindly be paid with 12% interest.

12(D).Your Lordship may be pleased to issue appropriate writ, order or direction and be pleased to quash and set aside the action and decision of respondent authorities of not regularising the services of the petitioner on the permanent vacant sanctioned post of Medical Officer Class-II and therefore, the said action and decision of

C/SCA/9241/2021 ORDER DATED: 05/08/2021

the respondent may kindly be quashed and set aside and the concerned respondent may kindly be directed to pass appropriate order for regularisation and permanent absorption of the petitioner on the permanent sanctioned post of Medical Officer Class-II, petitioner may kindly be ordered to be reinstated as Medical Officer, Class-II. 12(E). Your Lordship may be pleased to issue appropriate writ, order or direction and be pleased to direct the respondent authorities to pass appropriate order for treating the entire service of the petitioner from the date of appointment i.e. 19.06.2003 and onwards as a "Qualifying Service" under Rule 25 of Gujarat Civil Services (Pension) Rules, 2002, the respondent may kindly be further be directed to treat the said service of the petitioner as pensionable service of the petitioner."

[2] Thus, there are various prayers sought in the writ petition. The first is challenging the action of termination, second is to reinstate with all benefits with continuity of service and with all the consequential benefits, and finally to regularise service of the petitioner and further to treat his entire service from the date of 19.06.2003 and onwards as a qualifying service under Rule 25 of the Gujarat Civil Services (Pension) Rules, 2002.

[3] The petitioner was appointed as a Medical Officer (Class-II) with the Gujarat Health Service purely on ad hoc basis on 19.06.2003. Thereafter, on 19.06.2011 his services came to an end and hence, he has preferred Special Civil Application no.9283 of 2011, which was disposed of by order dated 28.07.2011, directing the respondent to re-examine the case of the petitioner. The Court in the order dated 28.07.2011 specifically observed that the petition is devoid of merits, hence the termination of the petitioner cannot be

C/SCA/9241/2021 ORDER DATED: 05/08/2021

said to be illegal. The Court has directed the respondent to decide the representation of the petitioner challenging his termination and pass appropriate reasoned order and liberty was reserved in case of the petitioner to challenge the same.

[4] Thereafter, another writ petition being Special

Civil Application No.17039 of 2011 was filed by the

petitioner after his representation against the

termination was rejected. By the order dated 15.11.2011,

the Coordinate Bench rejected the said matter as devoid

of merits. The Coordinate Bench, after examining the case

placing reliance on the judgment of the Division Bench in

the case of K.D.Vohra vs. Kamleshbhai Gobarbhai Patel

2003(2) GLH 1343 by holding that the entire practice

appointing Government engineer de hors of merits and the

order of termination cannot be said to be in any manner

illegal and henceforth no such directions can be issued.

[5] Thereafter, it appears that since the GPSC was

conducting regular recruitment process for appointing

Medical Officers, they approached this court by filing

writ petition being Special Civil Application No.14874 of

2013 and allied matters with a prayer that since they are

rendering service since many years and are

apprehending termination they may be protected. By a

common oral order dated 26.07.2016, the aforesaid

writ petitions were disposed of with direction to

C/SCA/9241/2021 ORDER DATED: 05/08/2021

the respondent to allow them to continue in respective

post of Medical Officers until regular selected

candidates are replaced. Similarly in other group of

matters being Special Civil Application No.6376 of 2008

similar order was passed on 15.11.2019.

[6] Learned advocate Mr.Majmudar has submitted that vide communications dated 31.05.2021 and 07.06.2021, the service of the petitioner was terminated by the State on the ground that now since the regularly selected candidates - Medical Officers (Class-II) are available, the service will not be required, thereafter, the petitioner has been terminated. The aforesaid communications are under challenge in the present petition.

[7] Learned advocate Mr.Majmudar has submitted that there are 3,300 permanent sanctioned posts available and they are yet not filled up, hence there was no need of terminating the service of the petitioner on the ground that such candidates through GPSC are available. Learned advocate Mr.Majmudar has submitted that initial appointment of the petitioner may not be considered as illegal.

[8]       Heard                 learned                advocates                for              the

respective parties.                        As          the         facts               narrated

above            suggest              that             the            petitioner                was

appointed           as         an          ad hoc          Medical             Officer           and

two       writ       petitions                  were      filed          by         him          and

both           of             them         were           disposed             of         without






       C/SCA/9241/2021                             ORDER DATED: 05/08/2021



any      relief         to   him.      In Special Civil application

No.9283 of 2011, in which the order of termination was

challenged by the petitioner, this Court vide order dated

28.07.2011, had only directed the petitioner to make a

representation. After his representation is rejected, he

filed Special Civil Application No.17039 of 2011, which

was rejected vide order dated 15.11.2011 observing thus:-

"4. On perusal of various orders passed by learned Single Judge of this Court along with orders impugned and other relevant annexures it reveals that except issuance of direction to respondent authorities to reconsider and re- examine the case of the petitioner, no other issue was decided and representation submitted by the petitioner in backdrop of pending criminal case for the offence under Section 302 read with Section 120(B) of IPC and decision that is taken for terminating service of the petitioner cannot be said to be in any manner contrary to law inasmuch as, no right whatsoever accrues in favour of the petitioner by virtue of his conditional and ad hoc appointment in which various terms of the appointment clearly mention that the appointment was subject to termination without assigning reasons. Action taken by the respondent authority to terminate service of the petitioner even if duly selected candidate by GPSC is not available cannot be termed as arbitrary or unreasonable or contrary to law in any manner since the authority appointing the candidate on ad hoc basis predominantly reserve right to put an end to service and no duty is cast upon the authority either to afford any opportunity of hearing or issue show cause notice or give any reason for such termination. In a matter of public employment the recruitment is to be undertaken by the authority only in accordance with recruitment rules and if process other than the above if undertaken would amount irregular exercise of powers and contrary to decision of this Court in case of K.D. Vohra v. Kamleshbhai Gobarbhai Patel [2003(2) GLH 1343] in which Division Bench of this Court deprecated the practice of appointing ad hoc lecturer in Government Engineering Colleges dehors recruitment rules. In the above circumstances, if the respondent authorities have not taken any action in reexamining or reconsidering the order of termination of the petitioner cannot be said to be in any manner illegal and no direction as sought for can be given."

C/SCA/9241/2021 ORDER DATED: 05/08/2021

[9] Thus, the Coordinate Bench, while placing reliance on the judgment of the Division Bench passed in the case of K.D.Vohra (supra) has precisely rejected the petition filed by the petitioner challenging his termination.

[10] Thus, the petitioner has lost his right to continue

in service after the order dated 15.11.2011 since his

termination order had became final. Despite the aforesaid

order, it appears that the petitioner was continued in

service in view of the common order dated 26.07.2016

passed in Special Civil Application No.14874 of 2013 and

other allied matters and common order dated 15.11.2019

passed in Special Civil Application No.6983 of 2008 and

other allied matters. Now since the recruitment process

of regularly selected candidates is over, the State

intends to appoint such candidates.

[11] In the considered opinion of this Court, the

petitioner has no right of being continued in service and

further to seek regularisation in service since his

termination has become final by the order dated

15.11.2011 of the Coordinate Bench rejecting the writ

petition. The said order is not challenged by the

petitioner. Merely, because the petitioner is continued

in service, despite the order of this Court, the same

will not give any right in his favour, as such

continuation in service cannot wipe out the order passed

by this Court.

C/SCA/9241/2021 ORDER DATED: 05/08/2021

[12] The contention raised by the present petitioner with regard to non-considering his appointment as illegal will not be bear any fruit in favour of the petitioner, since his termination has become final and hence, once termination of an employee has become final and is accepted, it is settled law that no further relief of any kind can be passed in favour of such employee.

[13] Under the circumstances, having accepted the order dated 15.11.2011 of this Court passed in Special Civil Application No.17039 of 2011, it is not now open for the petitioner to claim benefits. The present petition is being devoid of merits and fails. Hence, the petition is rejected.

                                                                             Sd/-     .
                                                                     (A. S. SUPEHIA, J)
NABILA