Vijaydan Togubhai Gorviyala vs State Of Guajrat
2021 Latest Caselaw 16681 Guj

       C/SCA/24710/2006                                           ORDER DATED: 25/10/2021



              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
               R/SPECIAL CIVIL APPLICATION NO. 24710 of 2006
================================================================
                          VIJAYDAN TOGUBHAI GORVIYALA
                                     Versus
                           STATE OF GUAJRAT & 4 other(s)
================================================================
Appearance:
MR HEMANG TRIVEDI FOR MS MAMTA R VYAS(994) for the Petitioner(s)
No. 1
MR RONAK RAVAL, AGP for the Respondent(s) No. 1
MS KHYATI P HATHI(346) for the Respondent(s) No. 3
RULE SERVED(64) for the Respondent(s) No. 2,4,5
================================================================
     CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
                      Date : 25/10/2021
                       ORAL ORDER

1. The present petition has been filed for the following relief:-

"12(A) Your Lordships may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction quashing and setting aside the order dt.18.5.2001 and further be pleased to direct the respondents to allow the petitioner to resume the duty as Vidya Sahayak in the Resp. No.5 school with continuity of services with all consequential benefits."

2. The brief facts of the case are as under:-

2.1. The petitioner was appointed as Vidya Sahayak on honorarium basis vide order dated 21.01.2000 on fixed salary of Rs.2,500/-. It is the case of the petitioner that on 29.03.2000, he fell ill and he filed a leave report because of illness of suffering from falciparum and after he was fully recovered he resumed his duties, but he was not allowed.

2.2. On 13.06.2000, the respondent no.4 asked the petitioner to remain present before the Medical Board and accordingly, he remained present on 21.08.2000 and was discharged on 28.08.2000 with the certificate that he was mentally fit to resume his duties.

2.3. It is the case of the petitioner that he was not allowed to resume his duties and accordingly, a legal notice dated 09.04.2001 was issued through

C/SCA/24710/2006 ORDER DATED: 25/10/2021

an advocate to the respondents asking them to resume the petitioner on service. Since the petitioner was not allowed to resume, he instituted Regular Civil Suit No.328 of 2001 before the Civil Judge (SD), Jamnagar and during the pendency of the suit, the petitioner was served with the termination order dated 18.05.2001. Ultimately, the said suit was withdrawn for filing a writ petition before this Court since the respondent had taken an objection with regard to the jurisdiction of the civil court in dealing with the termination of the petitioner. Thereafter, the captioned writ petition has been filed challenging the termination.

3. Learned advocate Mr.Hemang Trivedi appearing for the petitioner has submitted that despite the efforts made by the petitioner to resume his duties, he was not allowed and was asked to produce medical certificate. It is submitted by him that the respondent by a communication dated 02.11.2000 asked the petitioner to resume the duties within 10 days, however, he did not receive the said communication and on 08.03.2001 another letter was issued to the petitioner asking him to resume the duties within 10 days and the petitioner immediately resumed the duties on 17.03.2001, however the respondent authorities did not allow him to do so.

3.1. Learned advocate Mr.Hemang Trivedi for the petitioner has further submitted that the petitioner was also referred to the Medical Board and was asked to remain present on 14.06.2000, but the petitioner was asked to come on a later date. It is submitted that ultimately the petitioner was admitted in the hospital for 10 days and was discharged on 28.08.2000 whereby a certificate was issued by the Medical Board certifying that he was mentally fit for resuming the duties and thereafter, when he went to resume his duties, the respondent did not allow him to do so. It is submitted that a legal notice was also issued to the respondents on 09.04.2001 through an advocate narrating the aforesaid facts, but the respondent did not allow the petitioner

C/SCA/24710/2006 ORDER DATED: 25/10/2021

to resume the duties.

4. Learned advocate for the petitioner has also referred to the communication dated 16.05.2001 written by the District Primary Education Officer, wherein it is stated that with regard to the regularization of absence of 347 days, the issue was referred to the Director of Primary Education, Gandhinagar, however, no decision is yet taken. Thus, he has submitted that despite the certificate issued by the Medical Board with regard to the mental fitness, the petitioner was not allowed to join his duties. He has also pointed out the communication dated 17.03.2001 requesting the Principal to resume his duties, but he was not allowed to do so. Thus, he has submitted that the impugned order may be set aside. No further submission has been advanced.

5. In response to the aforesaid submissions, learned advocate Ms.Khyati Hathi appearing for the respondent no.3 has submitted that despite various notices issued to the petitioner, he did not report for the duties. It is submitted that on 08.03.2001 the petitioner was asked to resume the duties within 10 days, however, he did not do so. It is submitted that on 21/28.03.2001, the District Primary Education Officer, Jamnagar had requested the Director of Primary Education Officer while referring to the absence of 347 days whether the petitioner can be allowed to be reinstated or not. It is submitted that ultimately by the impugned communication dated 18.05.2001, the District Primary Education Officer passed the order of terminating the service of the petitioner with effect from 19.05.2001. Thus, she has submitted that despite various communications, since the petitioner did not choose to remain present and hence, his service was terminated.

6. Learned AGP Mr.Roank Raval appearing for the State Authorities has submitted that the petitioner was only appointed on honorarium basis and as such he has no right to continue in service and his service was purely

C/SCA/24710/2006 ORDER DATED: 25/10/2021

on contractual and honorarium. He has submitted even after the petitioner was declared fit by the Medical Board vide certificate dated 20.08.2000, he did not choose to remain present despite the issuance of notices. He has placed reliance on the judgment of this Court in case of Devendrakumar Ambalal Vaghela vs. State of Gujarat, 2018 (2) G.L.R. 1050 and also referred to the condition no.6 of the appointment order, wherein it is specifically stated that the service of the petitioner is absolutely ad hoc and it can be terminated after giving one week's notice. Thus, he has submitted that the petitioner being appointed on honorarium basis has no right to continue his service.

7. I have heard the learned advocates appearing for the respective parties.

8. It is not in dispute that the petitioner was appointed vide order dated 21.01.2000 as Vidya Sahayak on honorarium of Rs.2,500/-. It appears that, after the appointment order of the petitioner, he went on leave because he is suffering from falciparum malaria as the certificate of the surgeon dated 04.05.2000 suggests. Thereafter, from the communications issued by the authorities, it is reflected that the petitioner did not report for the duties and was issued a notice/letter dated 02.11.2000, but he did not report for duties and another notice dated 08.03.2001 was also issued to him. On 17.03.2001, the petitioner informed the respondent-Principal that he was on leave from 29.03.2000 to 16.03.2001. It is surprising that the petitioner himself in the communication dated 17.03.2001 has considered the leave from 29.03.2000 to 16.03.2001 as leave without pay despite there being no order passed by the authorities in this regard. From the documents on record, it is disclosed that the petitioner was also referred to the Medical Board with regard to his mental condition and by the certificate dated 28.08.2000, it was found that the petitioner was physically fit to resume his duties. Despite the aforesaid

C/SCA/24710/2006 ORDER DATED: 25/10/2021

certificate in his favour, the petitioner chose not to report his duties and the respondents were constrained to issue a show cause notice asking him to resume his duties. On 02.11.2000, the Taluka Development Officer, Kalyanpur, had informed him to resume his duties. The aforesaid communication also refers to the earlier communication dated 13.06.2000. The notice dated 02.11.2000 specifically refers that if he does not resume within 15 days, failing which, a departmental action shall be taken against him. Again on 08.03.2001, a similar notice was issued to him to remain present within 10 days, failing which, he would be terminated from service. It appears that only after the final notice of termination was issued to the petitioner on 08.03.2001, vide communication dated 17.03.2001 he has admitted that he was on leave from 29.03.2000 to 16.03.2001 due to illness and presumed such leave as leave without pay. Ultimately by the impugned communication, the petitioner was terminated from service in view of his constant illness.

9. It is not in dispute that the petitioner was employed on honorarium of Rs.2,500/- on absolutely ad hoc service and the condition no.6 of the appointment order specifically stipulates that the service can be terminated by giving 7 days' notice.

10. This Court in the case of Devendrakumar Ambalal (supra) in the judgment dated 25.09.2017 passed in Special Civil Application No.11232 of 2009 has observed thus:-

"14. The Hon'ble Supreme Court in the case of Vidyavardhaka Sangha & Anr. Vs. Y.D.Deshpande & Ors., reported in (2006) 12 SCC 482 has held as under:-

"4. It is now well-settled principle of law that the appointment made on probation/ad hoc basis for a specific period of time comes to an end by efflux of time and the person holding such post can have no right to continue on the post. In the instant case as noticed above, the respective respondents have accepted the appointment including the terms and conditions stipulated in the appointment orders and joined the posts in

C/SCA/24710/2006 ORDER DATED: 25/10/2021

question and continued on the said posts for some years. The respondents having accepted the terms and conditions stipulated in the appointment order and allowed the period for which they were appointed to have been elapsed by efflux of time, they are not now permitted to turn their back and say that their appointments could not be terminated on the basis of their appointment letters nor they could be treated as temporary employees or on contract basis. The submission made by the learned counsel for the respondents to the said effect has no merit and is, therefore, liable to be rejected. It is also well- settled law by several other decisions of this Court that appointment on ad hoc basis/temporary basis comes to an end by efflux of time and persons holding such post have no right to continue on the post and ask for regularisation, etc."

15. The petitioner was bound by the condition to the appointment letter dated 28.10.2004. The undisputed fact remains that he was habitual absentee and after proceeding on leave from 02.10.2009 to 04.10.2009, he did not resume on duty. No communication or letter is produced by the petitioner which would indicate that he has tried to resume the duty. Thus, the case of the petitioner would fall under condition no.12 which he has accepted without any demur. Moreover, the petitioner cannot be appointed to the post as the requisite qualification for the said post is S.S.C. pass, which the petitioner does not possess.

In view of aforesaid observations, present petition stands dismissed. Rule is discharged."

11. Thus, the petitioner, who has remained constant on unauthorized absence, and was also servicing on honorarium basis of Rs.2,500/-, does not have any right on the post and in view of the condition stipulated in his appointment order, no illegality or perversity can be found in the decision of the respondent authorities in terminating his service.

12. The present petition fails. Rule is discharged.

(A. S. SUPEHIA, J) ABHISHEK