Gujarat High Court
M K Gajera vs State Of Gujarat & 5 on 18 April, 2016
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/2502/2011 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 2502 of 2011
With
SPECIAL CIVIL APPLICATION NO. 9171 of 2015
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M K GAJERA....Petitioner(s)
Versus
STATE OF GUJARAT & 5....Respondent(s)
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Appearance:
MR NK MAJMUDAR, ADVOCATE for the Petitioner(s) No. 1
MR SWAPNESHWAR GOUTAM, AGP for the Respondent(s) No. 1
MS ROOPAL R PATEL, ADVOCATE for the Respondent(s) No. 6
RULE SERVED for the Respondent(s) No. 2 - 5
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 18/04/2016
COMMON ORAL ORDER
By these two writ-applications under Article 226 of the Constitution of India, the petitioner, serving as on date as an Additional District Health Officer, Class-I, which is equivalent to the post of Assistant Director, has prayed for the following reliefs :
"A) admit this petition;
B) issue appropriate writ, order or direction, quashing and setting-aside the order of termination dated 24.1.2006 and be pleased to issue appropriate writ, order or direction, quashing and setting-aside the order dated 30.10.2007 passed by the Under Secretary, Health and Family Welfare Department in the appeal preferred by the petitioner whereby the appeal preferred by the petitioner has been rejected and order of termination has been confirmed and be pleased to issue Page 1 of 8 HC-NIC Page 1 of 8 Created On Fri Apr 22 00:16:41 IST 2016 C/SCA/2502/2011 ORDER appropriate writ, order or direction, holding that the order of termination dated 24.1.2006 is per se illegal, illogical, arbitrary, discriminatory and violative of principles of natural justice and ab initio void and be pleased to issue appropriate writ, order or direction and be pleased to hold that the impugned order dated 24.12.2006 is illegal, illogical, discriminatory, violative of Articles 14 and 320 of the Constitution of India and, therefore, the same may be quashed and set-aside.
C) issue appropriate writ, order or direction, holding that the order of termination dated 24.1.2006 is per se illegal and the petitioner was deemed to have been confirmed on completion of his probation period as he was continued after the completion of probation period.
D) issue appropriate writ, order or direction, directing the respondent no.1 to rehear and reconsider the appeal preferred by the petitioner against the impugned order and notification dated 24.1.2006 in the appeal as well as in the representations preferred by the petitioner and the representations as well as the appeal of the petitioner may be ordered to be reconsidered and re-decided after giving personal hearing to the petitioner and the same may be kindly considered in view of various contentions raised by the petitioner in his representation annexed herein above as well as in view of the communication dated 24.10.2005 and 8.11.2005 and the said appeal may be directed to be reconsidered and reheard along with the representation preferred by the petitioner and reasoned order may be passed;
E) issue appropriate writ, order or direction, directing the concerned respondent authorities to reinstate the petitioner as Joint Director, Class-I and to extend all consequential benefits flowing therefrom.
F) pending admission and final disposal of the present petition, be pleased to issue appropriate writ, order or direction, directing the concerned respondent authorities to reinstate the petitioner as Joint Director, Class-I, subject to final outcome of the aforesaid petition till the aforesaid petition is finally heard and decided;
G) pass such orders as thought fit in the interest of justice."
In the Special Civil Application No.9171 of 2015, he has prayed for the following reliefs :
Page 2 of 8HC-NIC Page 2 of 8 Created On Fri Apr 22 00:16:41 IST 2016 C/SCA/2502/2011 ORDER "A) admit this petition;
B) issue appropriate writ, order or direction upon the respondent authorities to pass appropriate order for granting Higher Pay Scale to the petitioner as per G.R. dated 17.10.1994 considering the deemed date in Class-I services as that of 7.10.1988 and other consequential benefits and difference of salary and other benefits be ordered and the respondent authorities may be directed to undertake pay fixation after granting Higher Pay Scale to the petitioner and consequential benefits be ordered to be paid;
C) issue appropriate writ, order or direction and be pleased to direct the respondent authorities to pay the arrears as per the Gujarat Civil Services (Revision of 6th Pay) Rules, 2009 w.e.f. 1.1.2006 and the same may kindly be ordered to be paid with 12% interest to the petitioner;
D) issue appropriate writ, order or direction and be pleased to direct the respondent authorities to pass appropriate order for granting earned increment to the petitioner from 2001 to 2012 and further consequential benefits may be ordered to be paid and pay fixation be ordered to be undertaken;
E) grant interim relief and be pleased to direct the respondent authorities to pay the arrears to the petitioner as per 6th Pay Revision of Pay Rules, pending admission and final disposal of this petition;
F) pass such orders as thought fit in the interest of justice.
G) Be pleased to issue appropriate appropriate writ, order or direction and be pleased to direct the respondent authorities to release the legitimate dues of the petitioner including early/periodical increments for a period between 27.8.1982 to 27.12.1985 and consequential revision of pay scales of Fourth CPC with effect from 1.1.1986. Tikku committee higher pay scale with effect from 7.10.1994, Fifth CPC revision with effect from 1.1.1996 and Sixth CPC revision with effect from 1.1.2006 as per the 6th Pay Revision of Pay Rules 2009 after releasing periodical increments from 2001 and onwards (except increments for the year 2012, 2013 and 2014) and further consequential benefits including difference of salary amount towards higher pay scales and respondent authorities may be directed to undertake pay fixation of the petitioner, after releasing and addition of the aforesaid increments and higher pay scales and appropriate writ, order or direction may kindly be issued upon the respondent authorities in this regard;
Page 3 of 8HC-NIC Page 3 of 8 Created On Fri Apr 22 00:16:41 IST 2016 C/SCA/2502/2011 ORDER H) Be pleased to issue appropriate writ, order or direction upon the respondent authorities, directing the respondent authorities to prepare the pension papers after releasing the periodical increments for 27.8.1982 to 27.12.1985, and consequential revision of pay scales of Fourth CPC with effect from 1.1.1986. Tikku committee higher pay scale with effect from 7.10.1994, Fifth CPC revision with effect from 1.1.1996 and Sixth CPC revision with effect from 1.1.2006 as per the 6th Pay Revision of Pay Rules 2009 and all consequential benefits, legitimate dues, difference of salary and respondent authorities may be directed to prepare and finalize the pension papers of the petitioner and appropriate writ, order or direction may be issued in this regard;
I) Be pleased to grant interim relief and be pleased to direct the respondent authorities to release the periodical increments, revision of pay scales of Fourth CPC with effect from 1.1.1986. Tikku committee higher pay scale with effect from 7.10.1994, Fifth CPC revision with effect from 1.1.1996 and Sixth CPC revision with effect from 1.1.2006 as per the 6th Pay Revision of Pay Rules 2009 and by way of further interim order, respondent authorities be directed to prepare and finalize the pension papers of the petitioner, pending admission, hearing and final disposal of the present petition, aforesaid interim relief may kindly be granted, in the interest of justice."
The facts of this case may be summarised as under :
The petitioner came to be appointed by the ESIC as a Medical Officer on 27th August 1982. In July 1983, he came to be appointed as the Medical Officer through the GPSC. In December 1984, he came to be appointed as the Medical Officer by resigning from the post of the Medical Officer, ESIC. On 17th October 1992, he was promoted on adhoc basis as the Additional District Health Officer, Class-I. It appears that the petitioner filed a Regular Civil Suit No.108 of 1988 in the Court of the learned Civil Judge, Gondal, for a declaration that he was entitled to get the deemed date in Class-I services from 1985. The suit came to be allowed by the judgment and decree dated 31st January 1995.Page 4 of 8
HC-NIC Page 4 of 8 Created On Fri Apr 22 00:16:41 IST 2016 C/SCA/2502/2011 ORDER It appears that the State Government preferred a First Appeal before the District Court being dissatisfied with the judgment and decree referred to above. The First Appeal came to be dismissed by order dated 2nd February 1999.
It appears that thereafter a Second Appeal has been filed bearing No.86 of 1999 before this Court, which is pending as on date. There is no interim order in the said Second Appeal.
It appears that by order dated 17th October 1992, he was promoted with a deemed date of 7th October 1988. On 31st January 2001, the petitioner came to be appointed on the post of the Assistant Director through the GPSC for a period of two years on probation.
On 31st December 2002, he came to be appointed as the Joint Director through the GPSC for a period of two years on probation.
In 2005, a departmental charge-sheet was issued for the alleged misconduct in the purchase of malathion powder, which is used for the treatment of malaria. By order dated 24th January 2006, the petitioner came to be relieved from the post of the Joint Director as his performance was found to be unsatisfactory. The order of termination was challenged by him by filing the Special Civil Application No.2502 of 2011. It also appears that he was reverted to the post of the Chief District Health Officer, which is an equivalent post to the Assistant Director. On 2nd April 2012, he came to be dismissed as the Chief District Health Officer. The order of dismissal was challenged by way of the Special Civil Application No.6701 of 2012. The said petition came to be allowed by a learned Single Judge of this Court vide order dated 19th June 2014. While allowing the writ- application, the learned Single Judge observed as under :Page 5 of 8
HC-NIC Page 5 of 8 Created On Fri Apr 22 00:16:41 IST 2016 C/SCA/2502/2011 ORDER "34. As discussed in greater detail, the sum and substance of the allegations against the petitioner is of being negligent and dereliction in performance of his duties. It is not the case of the respondent Nos. 1 and 2 that any substantial economic loss was caused to the respondent No.2. Neither such charge was levelled nor any evidence to that effect is placed on record. On the contrary, as is clear from the details of Pre Dispatch and Post Delivery Inspection and Sampling of the 300, malathion samples produced at Annexure R-2 to the petition, except the samples drawn from malathion allotted to Banaskantha and few samples drawn from the lot allotted to Patan and one sample drawn from the lot allotted to Rajkot and samples from Sabarkantha, other samples confirmed to required Indian Standards. The petitioner was charged for lack of his overall supervision and superintendence and nowhere in the charge sheet any act holding him responsible for personal gains was attributed to petitioner. Under such circumstances, it is not deemed appropriate to remand the matter particularly when the petitioner is set to superannuate in May 2016 as stated by the learned counsel for the petitioner. Remanding such an inquiry would further add to the woes of the petitioner in a case where there is no likelihood of collection of any further evidence against the petitioner. The pendency of the inquiries in such a case may further delay the retiral dues and other consequential benefits to the petitioner which is not in the interest of justice.
35. It is rightly argued by the learned counsel for the petitioner that the disciplinary authority took into consideration the charges cumulatively and imposed the punishment upon the petitioner. It is thus not possible to severe charges and modify the impugned order.
36. In the result, the petition succeeds. Impugned order dated 02.04.2012 dismissing the petitioner as Chief District Health Officer, Narmada produced at Annexure P, is quashed and set aside. The petitioner is directed to be reinstated with full salary and continuity of service and all other consequential benefits.
Rule is made absolute with no order as to costs. Direct Service permitted."
It appears that the State of Gujarat, being dissatisfied with the order passed by the learned Single Judge, has filed the Letters Patent Appeal No.106 of 2015. A Division Bench of this Court admitted the appeal by order dated 2nd February 2015. In the Civil Application, the Page 6 of 8 HC-NIC Page 6 of 8 Created On Fri Apr 22 00:16:41 IST 2016 C/SCA/2502/2011 ORDER following order was passed :
"Mr.N.K.Majmudar, learned advocate for the respondent no.1 - caveator states that the respondent no.1 has already been reinstated and has granted all back wages.
In view of the above, no order is required to be passed in this Application. This Application stands disposed of accordingly. It is clarified that the reinstatement of the respondent no.1 will be subject to final outcome of the appeal."
It appears that the petitioner had to file a contempt petition being Misc. Civil Application No.2868 of 2014 in the Special Civil Application No.6701 of 2012. In October 2014, the petitioner was reinstated by the department and came to be posted as the Assistant Professor, Training Centre, Bavla.
In the aforesaid background, two questions fall for my consideration; one, whether the petitioner is entitled to the grant of the higher pay-scale, increments and revised pay-scale as per the 6th Pay Commission recommendations, and secondly, whether the petitioner could be said to have been confirmed in service having completed the probation period.
The reliefs as prayed for are being denied only on the ground that there is a Second Appeal pending as on date filed by the State of Gujarat and also the LPA referred to above.
As stated above, there is no interim order as on date i.e. neither in the Second Appeal nor in the Letters Patent Appeal. The petitioner is in service and is due to retire on 31st May 2016.
In such circumstances referred to above, the authorities are directed to consider the three reliefs as prayed for and pass appropriate orders in that regard within a period of two weeks from Page 7 of 8 HC-NIC Page 7 of 8 Created On Fri Apr 22 00:16:41 IST 2016 C/SCA/2502/2011 ORDER the date of receipt of the order since the petitioner is to retire on 31st May 2016, subject to the final outcome of the two proceedings pending before this Court i.e. the Second Appeal as well as the Letters Patent Appeal.
Let it be made clear while passing the appropriate order that the grant of the relief will be subject to the final outcome of the two proceedings.
This is an interim order. The main two writ-applications shall be taken up for hearing on 16th June 2016. Direct service is permitted.
(J.B.PARDIWALA, J.) MOIN Page 8 of 8 HC-NIC Page 8 of 8 Created On Fri Apr 22 00:16:41 IST 2016