Gujarat High Court
Hetal Chhabildas Nimavat vs State Of Gujarat on 19 February, 2025
Author: Nirzar S. Desai
Bench: Nirzar S. Desai
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C/SCA/5001/2023 JUDGMENT DATED: 19/02/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 5001 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE NIRZAR S. DESAI Sd./-
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Approved for Reporting Yes No
✔
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HETAL CHHABILDAS NIMAVAT
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR GM JOSHI, SR. ADVOCATE, VYOM H SHAH(9387) for the Petitioner(s)
No. 1
MR RUTVIJ M BHATT(2697) for the Respondent(s) No. 3,4
MR SG UDHWANI, NOTICE SERVED for the Respondent(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI
Date : 19/02/2025
ORAL JUDGMENT
1. Today, learned Advocate, Mr. Shah, appearing for the
petitioner tendered a draft amendment. The same is taken on
record and is granted.
1.1 Since, the issue involved in this petition is squarely
covered by the decision of the Coordinate Bench dated
18.10.2022, rendered in Special Civil Application No. 3342 of
2018 and the allied matters, with the consent of the learned
Advocates for the parties, the same is taken-up for hearing and
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final disposal, today. Hence, RULE. Learned AGP, Mr. Udhwani,
and learned Advocate, Mr. Rutvij Bhatt, waives service for the
respective Respondents.
2. The petitioner before the Court is Female Health Worker,
who was appointed pursuant to an advertisement. However,
her initial appointment was on ad hoc basis and subsequently,
the petitioner, considering necessity to appear in the
examination, which was scheduled pursuant to another
advertisement and after having successfully cleared selection
procedure, was given a fresh appointment. However, such
fresh appointment was to the disadvantage of the petitioner,
as the services of the petitioner pursuant to previous selection
procedure was washed out and made ineffective and therefore,
this petition is filed, seeking direction to the respondent
authorities to consider services of the petitioner rendered on
ad hoc basis for the purpose of pay, continuing seniority,
promotions and terminal benefits, as if, the petitioner is
appointed out of original selection process.
3. At the outset, learned Senior Advocate, Mr. Joshi, appearing
with learned Advocate, Mr. Shah, for the petitioner submitted
that similar issues were already taken into consideration in
various batches of petitions and in each of such petitions, this
Court has ruled in favour of the petitioners-Female Health
Workers. It is submitted that confusion in the minds of the
Female Health Workers all across the State occurred on
account of changes perceived that the cadre of Female Health
Worker was initially a District Panchayat cadre, however,
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subsequently, it was treated to be a state-wise cadre and
therefore, when advertisement was issued for recruitment of
Female Health Workers to err on safer side, the petitioner
applied in response to such advertisement and in fact, was
selected and thereafter, was also issued appointment order
pursuant to such selection. However, the issue arose when
appointment was made afresh and no weightage was given to
the services rendered by the petitioner during the period
between the initial appointment in the year 2004 and
purported fresh selection of 2010.
3.1 It is submitted that in some of the petitions decided by
this Court, even where petitioners therein had not appeared in
the fresh selection procedure, they have also been given
benefit of continuity.
3.2 Attention of this Court was drawn to oral judgment dated
05.12.2019, passed in a batch of petitions being Special Civil
Application No.889 of 2013 and allied matters as well as
decision of the Division Bench of this Court in Letters Patent
Appeal No.216 of 2021 and allied matters dated 09.02.2021.
4. As against this, learned AGP, Mr. Udhwani, opposed grant of
this petition by submitting that the facts in the cases cited
were quite different inasmuch as, the petitioners therein had
approached the Court forthwith in the year 2013, itself, when
the petitioners therein were given appointment on temporary
basis in the year 2013, whereas, in the present case, the
petitioner was given appointment orders in the year 2011, but,
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she filed the present petition in the year 2023, only. It is
submitted that once she has opted for a fresh appointment in
the year 2010, she was entitled to the benefits, which were
accompanying such appointments, especially fresh
appointments were entitled to be covered under the pension
scheme, which otherwise was not available.
4.1 It is also submitted that once having taken advantage of
the scheme by claiming fresh appointment of 2010, the
petitioners cannot turn the clock back to claim benefits, as per
the appointment of 2004 and claim continuity and other
retirement benefits.
5. Having heard learned Advocates for the parties and having
perused documents on record, it appears that the petitioner is
a Female Health Worker. From the record, it appears that the
advertisement came to be issued in the month of July 1998
(Annexure-A) for recruitment of the Female Health Workers
and accordingly, the petitioner having applied, had undergone
selection procedure as mentioned in Annexure-A and in the
year 2005, ultimately, appointment order was given to the
petitioner. The orders of the petitioners are at Annexure-B, ,
wherein, it is stated that he appointment was on ad hoc and
temporary basis for the period of 11 months. At the same time,
petitioner was put in the pay scale of Rs.3050-Rs.4590. From
the record, it appears that the Gujarat Panchayat Service
Selection Board issued advertisement in the year 2010 for
recruitment of State-wise Female Health Workers with specific
vacancies and thereby the petitioner was made to believe that
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as the petitioner is an ad hoc appointee, she may have to
undergo selection process undertaken by the Gujarat
Panchayat Service Selection Board, as earlier selection was at
the district level against the advertisement issued by the
District Panchayat. Fortunately for the petitioner, the
petitioners was, in fact, selected and given appointments in
the year 2010. Such appointment order, pursuant to selection
by the Gujarat Panchayat Service Selection Board in 2010,
have been annexed at Annexure-D.
6. The application of the petitioner, pursuant to advertisement
issued for State-wise selection by the Gujarat Panchayat
Service Selection Board, cannot be treated to her
disadvantage, particularly, when she had cleared such
examination and was selected. The contention of the
respondent-State that such application was for the purpose of
providing benefit of pension scheme, cannot be accepted as
the same is not coming out from the record at the time when
the petitioner applied pursuant to fresh recruitment procedure.
Even if that be so, then also, this Court in the judgment
referred in the preceding paragraphs has held in favour of the
petitioners, who were also identically situated as the present
petitioner and therefore, benefit which is available to the
petitioner cannot be declined.
7. The argument of the respondent regarding delay in filing the
petition also cannot be accepted by this Court in view of the
fact that the petitioner had no scope to comprehend the
disadvantage to which the petitioner was put to in view of
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accepting fresh appointment in the year 2010 and therefore,
when previous services of the petitioner was washed out by
treating her appointment to be a fresh appointment, the
petitioner was justified in filing the present petition.
8. At this stage, it would be appropriate to refer to the decision
of the Division Bench of this Court in Letters Patent Appeal
No.216 of 2021 and allied matters dated 09.02.2021, wherein,
the Court has recorded the facts that the writ-petitioner who
was appointed in the early nineties under an appointment
order on a regular scale continued to receive all the benefits
admissible to him including increments, Dearness Allowances
and all other benefits till 2012 when he is said to have passed
one examination, where after he was given a contractual
appointment of 5 years on a fixed pay of Rs.4,500/. On such
facts the learned Single Judge vide judgment dated 05.12.2019
allowed Special Civil Application No.15228 of 2012 and granted
him the benefits of past service from the initial date of
appointment treating him in continuous service in terms of the
judgment dated 10.08.2016 passed in Special Civil Application
No.6289 of 2011.
8.1 In the above facts, the Court has held in paras-4 and 5 as
under:-
"4. We may further note here the submission of Shri
Munshaw referring to two judgments of the Division Bench
dated 19.07.2016 in Letters Patent Appeal No.507 of 2016
arising out of Special Civil Application No.2344 of 2014 and
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the judgment dated 20.07.2010 in Letters Patent Appeal
No.85 of 2010 arising out of Special Civil Application
No.8611 of 2009, based upon which he submits that the
Multipurpose Health Workers (Male) were not extended the
benefits which have been given to the present petitioners. We
have perused both the judgments and we find that they were
based on different set of facts and the initial appointment of
those Multipurpose Health Workers were contractual in
nature unlike the present petitioners who were given regular
appointment on fixed term and conditions.
5 Learned counsels for the respondents state that they are
entitled to the benefits of regularization from 15.04.1995 and
not from any earlier date because they are working
continuously from the said date and prior to it in their
appointments there were certain breaks. This honest
submission of the learned counsels for the respondents is
noted and the appellants would implement the order of the
learned Single Judge accordingly."
8.2 Similarly, this Court in common oral judgment dated
05.12.2019 in Special Civil Application No.889 of 2013 and
allied matters has also issued directions as under:-
"9. In the present case, the Female Health Workers of Kheda
District are discriminated and such discrimination cannot be
allowed in wake of the fact that the State authorities have
granted the benefits of regularization in Sabarkantha,
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Junagadh and Rajkot Districts to Multi Purpose Health
Workers (Male). It is also noticed that the Coordinate Bench
of this Court has also considered the factor of the employees
being over-age and some of them had also not passed the
examinations. The facts recorded in the judgment reveal that
some of the employees had even failed in the recruitment
process, which had taken place on 30.03.1996. Despite the
aforesaid facts, the Court has directed to regularize the
service of the Multi Purpose Health Workers of Junagadh
District from the date of initial appointment.
10. It is also not in dispute that the Coordinate Bench of this
Court has also held that once the Multi Purpose Health
Workers, who are engaged on contractual basis after given
breaks, are entitled to regularize in service since they have
cleared the recruitment process. It is also noticed that the
petitioners have also cleared the examination and once they
have participated in the regular selection process, their
earlier services cannot be wiped out and they are required to
be treated as regular employees by conferring the continuity
of service. It is reported that the aforesaid judgment is
implemented by the State authorities.
11. Under the circumstances, the present petitioners cannot
be discriminated only because they are working as Female
Health Workers. The writ petitions succeed in light of the
judgment dated 10.08.2016 passed in Special Civil
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Application No.6289 of 2011. The respondents are hereby
directed to confer the benefits of past service to the
petitioners from the initial date of appointment treating them
as continuous in terms of the judgment dated 10.08.2016
passed in Special Civil Application No.6289 of 2011."
9. In view of the aforesaid, present petition is allowed and it is
directed that the petitioner is entitled to the benefits of past
service of the petitioners from the initial date of appointment
by treating them as continuous in service. The respondent
authorities therefore may pass appropriate orders in this
regards as expeditiously as possible. Rule is made absolute. No
orders at to costs.
Sd./-
(NIRZAR S. DESAI,J)
UMESH/-
