Gujarat High Court
State Of Gujarat & 2 vs Lumbhani Niranjan Kakubhai & on 8 May, 2015
Author: Jayant Patel
Bench: Jayant Patel
C/LPA/68/2006 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS PATENT APPEAL NO. 68 of 2006
In SPECIAL CIVIL APPLICATION NO. 7992 of 2003
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE JAYANT PATEL
and
HONOURABLE MR.JUSTICE G.B.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 & 2....Appellant(s)
Versus
LUMBHANI NIRANJAN KAKUBHAI & 1....Respondent(s)
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Appearance:
GOVERNMENT PLEADER for the Appellant(s) No. 1 - 3
MR PH PATHAK, ADVOCATE for the Respondent(s) No. 1
MR PREMAL R JOSHI, ADVOCATE for the Respondent(s) No. 2
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CORAM: HONOURABLE MR.JUSTICE JAYANT PATEL
and
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C/LPA/68/2006 JUDGMENT
HONOURABLE MR.JUSTICE G.B.SHAH
Date : 08/05/2015
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE JAYANT PATEL)
1. The present appeal is directed against the judgment and order dated 19.7.2004 passed by the learned Single Judge in Special Civil Application No.7992 of 2003, whereby the learned Single Judge has quashed and set aside the order of termination of the original petitioner from service with the further direction that if it is found that the order dated 7.3.1996 is passed in concurrence with GPSC, then the petitioner be given appropriate benefit in accordance with law.
2. The short facts of the case appears to be that the petitioner in reality was appointed as Insurance Medical Officer Class-II on adhoc basis vide order dated 14.8.1992. There were various conditions in the appointment order and some of them were that his appointment is purely temporary and adhoc and the original petitioner can be relieved from service without any notice. The original petitioner thereafter continued in service on adhoc basis for a long time until his services came to be terminated vide order dated 9.5.2003 on the ground that he had not applied to the Gujarat Public Service Commission Page 2 of 9 C/LPA/68/2006 JUDGMENT (hereinafter referred to as `the GPSC') for appearance at the examination of Insurance Medical Officer Class II. The original petitioner in the meantime appeared in the GPSC examination for the post of Medical Officer Class II, a different cadre which was conducted by GPSC. It also appears that the original petitioner successfully cleared the examination of GPSC and his name was recommended by GPSC for appointment and the appointment orders were also issued on 14.9.1995. However, the original petitioner was not happy with the place of posting and, therefore, he made representation for change of posting to Rajkot because of his family circumstances. He did make representation to various authorities including concerned Minister of Health and Family Welfare but it appears that nothing was materialized and the posting was not given at the place of choice of the original petitioner. Resultantly, the original petitioner did not join the duty on the post of Medical Officer Class II wherein he was regularly selected after clearance of GPSC examination. The another relevant aspect is that there were large number of persons together with the petitioner who did not join the duty in spite of the posting orders were issued and in the communication dated 25.2.2000, it was also mentioned that the original petitioner has not joined the duty in Page 3 of 9 C/LPA/68/2006 JUDGMENT spite of the appointment offered to him and his name appears at Sr.No.32 of the said list. In spite of the aforesaid fact situation, when the services of the original petitioner came to be discontinued/terminated by the impugned order dated 9.5.2003 Annexure `P', a petition was preferred before this Court being Special Civil Application No.7992 of 2003 but the most pertinent aspect is that the original petitioner never disclosed in the petition that he was appointed on the post of Insurance Medical Officer vide order dated 14.8.1992 and he continued on the said post but rather a misleading statement was made by the petitioner giving impression to the Court that the petitioner joined the duty pursuant to the order dated 9.5.1998 which was for the post of Medical Officer Class II. Various documents were produced by the petitioner for the selection made of him by GPSC and the appointment orders issued after clearance of the examination of the GPSC for the post of Medical Officer Class II. The petitioner never disclosed in the petition that he was not appointed as Insurance Medical Officer and continued on the post of Insurance Medical Officer by showing the distinction of the cadre of Medical Officer Class II and Insurance Medical Officer Class II. The tenor of the petition appears to be that he had cleared GPSC Page 4 of 9 C/LPA/68/2006 JUDGMENT examination for the post in question which was Insurance Medical Officer though in reality he had cleared the GPSC examination and the appointment orders were issued to the original petitioner for the post of Medical Officer Class II. When the matter was heard before the learned Single Judge, it appears that such non-disclosure of the material fact continued and also the misleading statements on the part of the petitioner. The learned Single Judge at paragraph 4 and 4.1 recorded as under:
"4.0 I have heard the learned advocate for the parties and have gone through the averments made in the petition. The reply filed by the respondent authorities is silent on the fact that the petitioner was selected as a Medical Officer, Class II, in the Examination which was conducted by the G.P.S.C. as per its advertisement in the year 1994-
95. The petitioner was placed at Sr.No.9 in the select list of candidates and was offered appointment by Order dated 14/09/95. By Order dated 07/03/96, the petitioner was directed to obtain physical fitness certificate and other terms and conditions mentioned therein.
Therefore, it is clear that the
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C/LPA/68/2006 JUDGMENT
petitioner was appointed on regular
basis as he had cleared the G.P.S.C.
examination for the said posts as per its advertisement in the year 1994-95.
4.1 From the documents on record, it is clear that the Order dated 09/05/03 was passed contrary to the evidence on record, inasmuch as in February 1996 the name of the petitioner was selected by the G.P.S.C. and pursuant to it he was offered the appointment Order dated 07/03/96. On this ground itself, the order qua the petitioner dated 09/05/03, is required to be quashed and set aside."
Being aggrieved by the aforesaid order of the learned Single Judge, the present appeal before the Division Bench of this Court.
3. We have heard Mr.Jayswal, learned AGP for the appellant-State, Mr.Pathak, learned counsel for respondent no.1 herein-original petitioner and Mr.Joshi, learned counsel for respondent no.2-GPSC.
4. We may record that as there was no Page 6 of 9 C/LPA/68/2006 JUDGMENT clarity of facts and rather as there was suppression of material fact on the aspects of first appointment order of the original petitioner, learned AGP was directed to produce the file from the Government and the aforesaid aspects of the appointment of the original petitioner as Insurance Medical Officer vide order dated 14.8.1992 has transpired which has not been even disputed by Mr.Pathak, learned counsel appearing for the original petitioner. Since the aforesaid aspects were not properly disclosed before the learned Single Judge, it appears from the above referred reasons were recorded by the learned Single Judge and the learned Single Judge was guided by the fact that the petitioner was regularly selected as Medical Officer Class II by clearing GPSC examination and when the petitioner was appointed on regular basis and had cleared GPSC examination, his services could not have been terminated. The fine distinction between the post of Insurance Medical Officer and Medical Officer Class II has not been considered probably because at the relevant point of time, the petitioner also did not disclose all the material facts. Be that as it may. If the correct facts are considered and if it is an admitted position that the original petitioner was appointed as Insurance Medical Officer Class II vide order dated 14.8.1992 on adhoc basis and Page 7 of 9 C/LPA/68/2006 JUDGMENT his services are terminated by impugned order dated 9.5.2003 Annexure `P' on the ground that he did not apply even for clearance of GPSC examination, the impugned action for discontinuation of the services or termination of the services of the original petitioner could not be said to be arbitrary or illegal. Further, in any case, the basis on which the order came to be passed in the main Special Civil Application is factually not available inasmuch as the original petitioner never cleared the GPSC examination for the post of Insurance Medical Officer Class II. We would have further considered the matter for taking appropriate action against the original petitioner for suppression of material fact and for making misleading statements in the petition. However, Mr.Pathak, learned counsel appearing for respondent no.1-original petitioner, under the instruction of his client, declared before us that petitioner unconditionally apologizes for the statement made in the petition and the original petitioner is also ready to pay appropriate cost as may be directed by this Court and no further action may be taken against the original petitioner.
5. Under the above circumstances, the following order:
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1)The impugned order passed by the learned
Single Judge is set aside. The petition shall stand dismissed.
2)The appeal shall stand allowed with the further direction that the original petitioner shall deposit the amount of Rs.25,000/- as cost of the present litigation before this Court within a period of two weeks from today. Out of the said amount of cost, Rs.5,000/- only shall be paid to G.P.Office and to GPSC as the cost of the litigation and the remaining amount of Rs.10,000/- shall be transferred to Gujarat State Legal Services Authority. The appeal is disposed of accordingly. However, it is observed that if the amount of cost is not deposited, the office shall place the matter for further appropriate order and action on judicial side.
(JAYANT PATEL, J.) (G.B.SHAH, J.) Srilatha Page 9 of 9