Gujarat High Court
State Of Gujarat vs Madhavji Kanjibhai Gajera on 8 August, 2018
Author: S.G. Shah
Bench: S.G. Shah
C/SA/86/1999 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 86 of 1999
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE S.G. SHAH
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1 Whether Reporters of Local Papers may be allowed to
see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law
as to the interpretation of the Constitution of India or any
order made thereunder ?
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STATE OF GUJARAT
Versus
MADHAVJI KANJIBHAI GAJERA
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Appearance:
MR SOAHAM SHAH, AGP for the PETITIONER(s) No. 1,2,3
MR NK MAJMUDAR(430) for the RESPONDENT(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE S.G. SHAH
Date : 08/08/2018
CAV JUDGMENT
1. Heard learned AGP Mr. Soaham Joshi for the appellants and learned advocate Mr. N. K. Majmudar for the respondent. Perused the record.
2. This Second Appeal is filed by the State of Gujarat against the concurrent findings by judgment and decree passed by the Civil Judge (S.D.), Gondal on 31.1.1995 in Regular Civil Suit No.108/1988 by which Suit preferred by the present respondent-plaintiff came to be allowed Page 1 of 12 C/SA/86/1999 CAV JUDGMENT so also the judgment and decree by the District Court, Rajkot on 2.2.1999 in Regular Civil Appeal No.42 of 1997, confirming the judgment and decree passed by the Trial Court.
3. While filing the appeal, the appellants have framed the questions of law which are reproduced as under :
i. Whether the appellants prove that the judgment and decree passed by the Civil Judge (S.D.) Gondal in R.C.S. 108/88 is illegal, improper and against the established principles of law?
ii. Whether the Learned Trial Judge has erred in passing the impugned judgment and decree?
iii. What order ?
Thus, the aforesaid questions of law are neither questions of law nor substantial questions of law and they are questions of facts.
4. The factual details as submitted by the respondent may be listed as under:
a. On 27.8.1982, the respondent- Dr. Madhavji Kanjibhai Gajera came to be appointed as Insurance Medical Officer, Class-II in Employees State Insurance Division (ESI Page 2 of 12 C/SA/86/1999 CAV JUDGMENT Division).
b. In July, 1983, the respondent was selected by Gujarat Public Service Commission ('GPSC', for short) for the pose of Insurance Medical Officer, Class-II and appointed on the said post by Health & Family Welfare Department's resolution dated 30.6.1983 without any physical break.
c. In December, 1983, the respondent had applied through the Department for seeking appointment as Medical Officer, Class-II under Public Health Division. The respondent came to be appointed as Medical Officer, Class-II under Public Health Division. The services rendered by the respondent under ESI Division as stated herein above as well as appointment of the respondent under Public Health Divison, both the aforesaid Divisions were and are under one Parent Department i.e. Health & Family Welfare Department, State of Gujarat.
d. On 9.5.1988, as the authorities did not considered the same as continuous one, the respondent preferred Regular Civil Suit No.108/1988 and had prayed for various reliefs as prayed in para-8 of the plaint.
e. On 5.9.1988, during pendency of the said Suit, interim mandatory injunction came to be granted below Exh.5 by which the Civil Judge was pleased to direct the present appellant to consider the case of the respondent on merits for promotion on the promotional post of District Health Officer and it was also observed that without considering the case of the respondent for further promotion on merits, no other person's case should be considered for further promotion.
f. On 30.9.1988, despite interim injunction came to be granted below Exh.5 vide order dated
5.9.1988, the same was not complied with and, Page 3 of 12 C/SA/86/1999 CAV JUDGMENT therefore, the respondent had preferred an application under Order-39 Rule-2(A) for breach of injunction and during pendency of the said application on 17.10.1992 the appellant passed order granting promotion to the respondent on the promotional post of District Health Officer w.e.f. 7.10.1988.
g. On 1.4.1991, Civil Misc.Appeal of the present appellants being No.1 of 1990 challenging the order under Exh.5 was also dismissed by 2nd Extra Assistant Judge, Gondal.
h. On 17.10.1992, as others came to be granted promotion on 7.10.1988, ultimately during pendency of the aforesaid application for breach of injunction, the appellant authorities have passed order and the respondent came to be granted promotion on District Health Officer w.e.f. 7.10.1988.
5. It is submitted by the respondent that when the respondent came to be appointed for the first time as Insurance Medical Officer under ESI Division (under Health & Family Welfare Department) on 27.8.1982, the petitioner was possessing the qualification of MBBS and Diploma in Public Health (DPH) with 1 st Class and, therefore, considering the Recruitment Rules published through Notification dated 30.7.1979 by which the Gujarat Public Health Services, Class-I Recruitment Rules, 1979 came to be published and the respondent became eligible and entitled to be considered for promotion on Class-I Promotional post of District Health Officer which was the Class-I Page 4 of 12 C/SA/86/1999 CAV JUDGMENT post as per Rule-2 of the said Notification and as per the relevant rules the required qualification was Degree of M.B.B.S. as well as Diploma in Public Health and the minimum experience of three years as Medical Officer. The respondent had also served earlier for two and a quarter year as Municipal Health Officer in Junagadh Municipality, which is also valid experience under Rule 4(d) of the Recruitment Rules of 1979. As the respondent fulfilled the qualification criteria and was having qualifications of M.B.B.S. and Diploma in Public Health and was having three years' experience serving under Health & Family Welfare Department, Medical Officer, Class-II, the respondent ought to have been considered for promotion as District Health Officer, however, as the respondent was not considered for promotion and even services rendered by the respondent in ESI division, was required to be treated as continuous services of the respondent in Public Health Department i.e. services rendered between 27.8.1982 to 27.12.1984 was required to be treated as continuous one as the services rendered in ESI Division was also under Health & Family Welfare Department and the services of the respondent from day one in Public Health Division of Health & Family Welfare Department w.e.f.
Page 5 of 12 C/SA/86/1999 CAV JUDGMENT28.12.1984 were required to be treated as continuous one.
6. Though, considering the relevant recruitment rules, the respondent became eligible to be considered for promotion immediately on completion of 3 years' services from his initial date of appointment under ESI Division, and, therefore, the respondent became eligible to get the deemed date of promotion in the cadre of District Health Officer from October, 1985 as the respondent had completed 3 years' services in August, 1985. However, the appellant did not consider the same and even did not pass any order for joining the services rendered by the respondent in ESI Division Sub Branch for a period between 27.8.1982 to 27.12.1984 as, on 28.12.1984 he came to be appointed in Public Health sub-branch and as the respondent was not granted promotion on completion of 3 years' services from 27.8.1982.
7. That considering the relevant Rules and Notification dated 30.7.1979 read with the Rule-41, the Hon'ble Trial Court was pleased to pass judgment and decree and to grant relief to the effect that -
i) the respondent-plaintiff would be entitled for promotion of District Health Officer from October, 1985 Page 6 of 12 C/SA/86/1999 CAV JUDGMENT i.e. deemed date of October, 1985 has been given and seniority list was ordered to be corrected accordingly
ii) the respondent is held to be entitled to receive all the benefits and allowances including Dearness Allowance and other emoluments of Class-I Post from October, 1985 including arrears and
iii) the Hon'ble Court was pleased to hold that the services rendered by the respondent-plaintiff in ESI Division shall be counted and added in the present service i.e. in the service as Medical Officer, Class-II under Public Health Department.
8. Against the aforesaid judgment and decree passed by the Trial Court, the State of Gujarat had preferred Regular Civil Appeal before the Appellate Court being Regular Civl Appeal No.42/1997, the first Appellate Court being 5th Extra Assistant Judge, Gondal was pleased to reject the said appeal by order dated 2.2.1999 passed in Regular Civil Appeal No.42/1997 as per the reasoning in para-9 onwards of the said judgment.
9. Thus, against the aforesaid concurrent findings of facts the said Second Appeal is filed. As such no question of law, much less important question of law or substantial question of law is involved in the said Second Appeal. Even reading the grounds of the Appeal Page 7 of 12 C/SA/86/1999 CAV JUDGMENT Memo no question of law has been raised by the appellant.
10. In addition to what is discussed herein above, the appellants have submitted that the services of respondent was not satisfactory and therefore, his probation was not cleared and his services came to be terminated. However, such fact is not with reference to the dispute raised in this litigation and with reference to post, which is under reference in this litigation. Whereas, such termination was regarding selection of respondent on the post of Joint Director with effect from 1.1.2003 i.e. pending this Second Appeal, but it is also disclosed and confirmed by both the sides that even in those disputes, respondent has succeeded in writ petitions before this court and therefore, only because Letters Patent Appeal/s is/are filed by the State against such decisions in writ petitions, it cannot be said that those facts are relevant or material so as to disturb the concurrent findings of two courts in such Second Appeal.
11. Thereby, now, the fact remains that the decision of the two courts below, is purely based upon the provisions of The Bombay Civil Services Rules, wherein Rule Nos.41 and 41A confirm that if a Government servant working in Page 8 of 12 C/SA/86/1999 CAV JUDGMENT a office of department is selected for appointment either in the same office or in other office to a service/cadre/post under the Government through the GPSC, Centralised recruitment scheme or any other method approved by the Government and if the service rendered prior to and after such selection is continuous without any physical break, the previous service shall count for the purpose of fixation of pay and leave. Similarly, the date of increment of the Government servant whose duty in the post is interrupted due to these causes, before an increment in the prescribed scale became due to him, should be regulated according to Rule 9 of the said Rules, if this is of advantage to the Government servant.
12. Similarly, G.R. dated 17.11.2008 is relevant, wherein, in fact, Government itself has confirmed that service of officers, who are promoted on higher post need not require any further issue since their services are to be treated as continuous service. Similar is the case of respondent, but unfortunately, at relevant time, the Government has not taken care of such situation though relevant benefit of such G.R. was also extended to the respondent, but in past, such benefit has not been extended to the respondent for the reasons best known to the appellants. The respondent Page 9 of 12 C/SA/86/1999 CAV JUDGMENT has also relied upon the District Health Officer (Gujarat Public Health Services Class- I) Recruitment Rules, 1979.
13. In view of above facts, circumstances and discussion, when factual details are perfectly in favour of the respondent, I do not find any substance in the submissions by the appellants
- State that appointment of the respondent was on adhoc basis, without consultation with GPSC and therefore, he is not entitled to the benefits, which are extended to him by impugned judgment. It is further contended that promotions is to be confirmed by Departmental Promotion Committee (DPC), which being expert body to decide about promotions, and the courts are not empowered to direct to grant promotion to anyone. It is also contended that suit was filed without statutory service of notice u/s.80 of the Civil Procedure Code.
14. However, perusal of both the judgments make it clear that there is no substance in any such submissions, when both Trial Court and first Appellate Court have discussed all the evidence before it, so also applicable law and submissions of both the sides. Therefore, if we peruse the memo of appeal, when no substantial question of law is framed and the questions, which are framed as substantial questions and Page 10 of 12 C/SA/86/1999 CAV JUDGMENT reproduced herein above, practically, relied upon factual details for promotion or not, and that whether in the facts and circumstances of the case, his service rendered under E.S.I.S. could be treated as continuous service, entitling him to seniority or not and that whether adhoc appointee can claim promotion or not, are nothing, but dispute or issue on factual basis only and there is no substantial question of law involved though it is so portrayed.
15. Thereby, when there is no substantial question of law involved and even if we consider that above issues are involving substantial questions of law, then, considering the applicable provisions of Rules, when it is clear that appointment on adhoc basis in any Government department, is to be considered as continued in service, more particularly, when further selection and the appointment is in the same department i.e. Health Department. In any case, it is not the case of the appellants that respondent was serving in different department with different eligibility criteria and different duties and therefore, services cannot be considered as continuous service for all purposes, including promotion. It is undisputed fact that for all the period in service, respondent has served under Health Department, Page 11 of 12 C/SA/86/1999 CAV JUDGMENT but may be in different organisation and different post and for almost for similar type of job and therefore, when selection on higher post was done by the department based only based upon the eligibility criteria, experience and performance as well as result of the selection process on such higher post, it cannot be said that services of the appellant was not enough or sufficient to consider it as continuous service, only because he has applied for different post where he was able to get higher salary and therefore, factually, so also legally, the case of the respondent is quite clear and thereby, when both the courts below have allowed the suit of the respondent, I do not see any reason or substance to reverse such concurrent decision in Second Appeal only because State is appellant or only because respondent has preferred some other litigation for his other post, wherein he got to be selected by the appellants only, because the issue raised in those petitions are nowhere concerned with the issue arising in present appeal.
16. In view of above facts and circumstances, there is no substance in the Second Appeal and same is dismissed.
(S.G. SHAH, J) BINOY B PILLAI Page 12 of 12