Bombay High Court
Dr.Anil Sukhdevrao Dhage Nagpur vs State Of Mah. Mumbai & 3 Others on 13 August, 2015
Bench: A. B. Chaudhari, P. N. Deshmukh
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
Writ Petition No.1250/2002
Dr. Anil s/o Sukhdevrao Dhage,
aged 30 years, Occ. Pvt. Practitioner,
r/o Sharamjivi Nagar, Post Parvati Nagar,
Nagpur. ...PETITIONER
...V E R S U S...
1. State of Maharashtra, through its
Secretary, Health Department,
Mantralaya, Mumbai.
2. The Dean, Government Medical College
and Hospital, Nagpur.
3. Rural Health Centre, Saoner,
distt. Nagpur, through its Professor.
4. Maharashtra Administrative Tribunal,
Bench at Nagpur, through its Member.
5. Dr. Sandip Gujar,
r/o At Post Khapa, Tq. Saoner,
Dist. Nagpur.
6. Director of Medical Education and
Research, through its Director,
c/o Government Dental College
Building, Sr. George Hospital Compound,
Mumbai-1.
7. Dean,
Government Dental College, Nagpur. ...RESPONDENTS
-------------------------------------------------------------------------------------------
Mr. U. S. Dupare, Advocate for petitioner.
Mr. S. M. Ukey, A.P.P. for respondent-State.
Mr. Rohit Joshi, Advocate for respondent no.5.
-------------------------------------------------------------------------------------------
CORAM:- A. B. CHAUDHARI & P. N. DESHMUKH , JJ.
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DATED :-
AUGUST 13, 2015
J U D G M E N T (Per : A. B. Chaudhari, J.)
1. By the present writ petition, the petitioner Dr. Anil Dhage, a Dentist, has put to challenge judgment and order dated 24.12.2001 in Original Application No.558/2000, inter alia, by which the Maharashtra Administrative Tribunal (MAT) held that the ad hoc employee-petitioner was replaced by a bonded candidate namely; respondent no.5-Dr. Sandip Gujar on 09.04.2001 and, therefore, the Original Application did not survive and was disposed of.
FACTS:
2. The petitioner, being a qualified Dental Surgeon, was appointed by Dean, Medical College, Nagpur on 12.06.1998, pursuant to his selection on 19.08.1997 as Dental Surgeon in the pay scale of Rs.2200-4000/-. But before that he had worked and the total period of his service till 29.08.2000 is as shown below, which is supported by the appointment orders produced by the petitioner from Annexures E to E-11.
::: Uploaded on - 29/08/2015 ::: Downloaded on - 10/09/2015 20:02:36 ::: 3 wp1250.02.odt Date of Period Working days appointment 15/10/1996 15/10/1996 to 12/11/96 29 27/11/1996 15/11/1996 to 14/12/1996 29 6/1/1997 16/12/1996 to 14/4/1997 120 - 17/4/1996 to 15/5/1997 29 - 17/5/1997 to 13/9/1997 120 21/6/99 14/9/1997 to 30/9/1998 16 21/6/1996 9/10/1997 to 31/10/1997 23 - 1/11/1997 to 30/11/1997 29 - 1/12/1997 to 20/12/1997 20 1/6/1998 - ig 29/5/1998 to 26/6/1997 30/6/1998 to 28/7/1998 29 29 2/9/1998 30/7/1998 to 27/7/1998 29 6/10/1998 29/8/1998 to 16/9/1998 19 13/10/1998 29/9/1998 to 27/10/1998 29 16/11/1998 29/10/1998 to 26/11/1998 29 2/2/1999 30/12/1998 to 27/1/1999 29 23/2/1999 19/1/1999 to 26/2/1999 29 2/5/2000 02/5/2000 to 29/8/2000 120
3. The petitioner then approached the Maharashtra Administrative Tribunal (MAT) by filing Original Application No. 558/2000 seeking directions that till the time regular candidate is selected and appointed, he should be continued in the same capacity namely; Ad Hoc Dentist. The MAT initially on 28.08.2000, passed the following order:::: Uploaded on - 29/08/2015 ::: Downloaded on - 10/09/2015 20:02:36 :::
4 wp1250.02.odt "Heard petitioner who is adhoc employee should not be replaced by any other adhoc employee except bonded candidate, if there is post vacant and he has a requisite qualification. Also issue N.B.A. returnable 2 weeks. Hamdast allowed."
4. The respondents, without obtaining the modification of the said order, as late as on 09.04.2001 appointed one Dr. Sandip Gujar-respondent no.5 herein, in his place again by way of Ad hoc appointee because admittedly, no candidate from the Maharashtra Public Service Commission (M.P.S.C.) was sent. The post occupied by the petitioner was, however, kept vacant for about 8 months and the petitioner was not allowed to resume his duties even till Dr.Sandip Gujar was appointed i.e. from 30.08.2000 till 08.04.2001 for no reason when there was clear cut direction in addition issued by the Directorate of Medical Education on 24.02.2000 not to keep the post vacant in order that the patients do not suffer. As per the Dental Surgeon Class-III Directorate of Health Services Recruitment Rules, 1990, examination for recruitment for the post is necessary. However, stop gap, temporary or ad hoc appointments are permitted to be made till ::: Uploaded on - 29/08/2015 ::: Downloaded on - 10/09/2015 20:02:36 ::: 5 wp1250.02.odt receipt of the selected candidates vide rule (3) thereof. The services of the petitioner were, however, terminated in order to favour respondent no.5-Dr. Sandip Gujar by showing that he was appointed as a bonded candidate and, therefore, he replaced the petitioner. The petitioner had already applied for the post of Dental Surgeon through M.P.S.C. but since the M.P.S.C. did not declare any examination, he should have been continued in the service. At any rate, appointment of Dr. Sandip Gujar was only up to 12.02.2002 and at least thereafter the petitioner should have been continued in service. The petitioner then filed the instant petition and during the pendency of the writ petition, certain developments took place, which the petitioner brought by way of amendment to this petition in paragraph nos. 18A and 18B along with documents. The averments in the amended petition have not been refuted. He was then given appointment w.e.f. 22.04.2004 to 21.03.2005 and was again appointed by order dated 18.01.2006.
However, suddenly w.e.f 20.07.2007, he was discontinued from service and was thus rendered jobless for no reasons when the posts were available. In the month of November-2008, pursuant to the advertisement for the post of Dental Surgeon, he applied but he was not allowed to appear for the interview not being in ::: Uploaded on - 29/08/2015 ::: Downloaded on - 10/09/2015 20:02:36 ::: 6 wp1250.02.odt service. The petitioner has then stated in the amendment application that the only reason given was that he was replaced by Dr. Sandip Gujar, a bonded candidate when, as a matter of fact, he was never so. Therefore, the very foundation of his appointment was without any basis and without verifying the correctness of the claim that Dr. Sandip Gujar was appointed as a bonded candidate.
In support of the contention, the petitioner has filed the information received by him under the Right to Information Act that the certificate of Dr. Gujar of bonded candidate was never issued nor was it issued by any competent authority. The information received under the R. T. I. Act shows that no such certificate, as claimed by Dr. Gujar, was ever issued by the competent authority and, therefore, the petitioner was put to miscarriage of justice. The petitioner then contends that he was unjustifiably not continued in service as Ad hoc Dental Surgeon.
Not only that, in fact, he was entitled to be regularized in view of decision of the Government vide Government Resolution No.NEC 1408/C.No.116/Medical Services dated 22.01.2009. He, therefore, seeks a direction for regularizing him in service. He submits that he came to know about the fraud played by Dr. Sandip Gujar and other respondents in respect of certificate of bonded candidate ::: Uploaded on - 29/08/2015 ::: Downloaded on - 10/09/2015 20:02:36 ::: 7 wp1250.02.odt only after filing of the writ petition in this Court and that is how, he has brought it on record.
5. Respondent no.2 has filed an affidavit-in-reply in answer to the petition. Paragraph 8 thereof reads thus:
"8. It is submitted that the petitioner being a bonded candidate was initially appointed as a Dental surgeon class-II Officer on temporary basis for 29 days w.e.f. 15.10.96 and some time for 120 days through D.S.B. subject to certain conditions. It is submitted that on perusal of the conditions No.5, it would clear that he was appointed as a bonded candidate."
Thus, it is stated in the said reply that the petitioner was appointed as bonded candidate for a specific period. It is also stated that respondent no.5 was also appointed as bonded candidate by replacing the petitioner. Respondent nos. 2 and 3 filed affidavits dated 30.07.2012 and it is stated therein that respondent no.5 alike the petitioner also was selected and appointed through Divisional Selection Board and appointed again on 24.11.2008 and is in employment.
::: Uploaded on - 29/08/2015 ::: Downloaded on - 10/09/2015 20:02:36 :::8 wp1250.02.odt ARGUMENTS:
6. In support of the petition, the learned counsel for the petitioner invited our attention to the various facts and documents filed on record during the pendency of the writ petition and submitted that the impugned order of the MAT is based only on the fact that respondent no.5 was a bonded candidate, which according to him, is totally false and baseless. According to him, the information gathered under the R. T. I. Act clearly reveals that no such certificate was issued in favour of respondent no.5. He, therefore, submitted that the petitioner was unnecessarily put to sufferance only because respondents wanted to favour Dr.Sandip Gujar and if they wanted to favour him, they could have posted him at some other place instead of putting the career of the petitioner at stake. As to the allegations of his absence, the petitioner has produced a letter issued by the peon Shri B. R. Dubey, who has clearly written to the concerned incharge of the Primary Health Centre at Saoner that though Dr. Dhage was present on duty, his superiors asked him to write that he was absent on 26.05.2007 by obtaining letter from him on 07.06.2007.
He then submitted that the petitioner was deprived of the employment. He invited our attention to the resolution dated ::: Uploaded on - 29/08/2015 ::: Downloaded on - 10/09/2015 20:02:36 ::: 9 wp1250.02.odt 22.01.2009 which provides for regularization of services of such persons and particularly when the petitioner is a qualified Dental Surgeon having worked from 1996 for so many years. He, therefore, prayed for directions accordingly.
7. The learned A.G.P. in reply, submitted that this Court itself had made an interim order on 11.09.2002 that the present petitioner was replaced by respondent no.5 and, therefore, the petition is rendered infructuous and may not be entertained. The learned A.G.P. then prayed for dismissal of the writ petition in view of subsequent events and the respondents are ready to accommodate the petitioner since the candidates duly selected from the M.P.S.C. have not been received till date. Therefore, till such candidates are received, the petitioner would be appointed as ad hoc. Similarly, counsel for respondent no.5 submitted that his client was bonded candidate and is still in employment for so many years. He should not be disturbed.
CONSIDERATION:
8. We have heard learned counsel for rival parties. We have perused the entire record and the accompanying documents.
::: Uploaded on - 29/08/2015 ::: Downloaded on - 10/09/2015 20:02:36 :::10 wp1250.02.odt At the outset, we must express that there is a criminal neglect and mismanagement on the part of the recruitment machinery with the State Government in its Public Health Department, Medical Colleges so also the Maharashtra Public Service Commission in creating mess altogether in following the foul practice of employing Doctors, Dental Surgeons on ad hoc basis without even understanding the concept of ad hoc employment. The Government preaches to others not to indulge in ad hocism, but itself follows this unfair practice.
It cannot be disputed that Medical Doctors/Dental Surgeons from the Government run colleges are educated at the cost of the tax payer's money. It is also not in dispute that their services are largely required also in rural areas. The petitioner worked in rural area at Primary Health Centre, Saoner from 15-10- 1996 till 20.07.2007 after he became a Dental Surgeon from Government Dental College, Nagpur in the year 1995. He was asked to work on ad hoc basis for eleven years and it is still expected that he should clear M.P.S.C. examination and interview for regularization. Having rich experience of eleven years as Dental Surgeon, should he asked to answer M.P.S.C. examination and interview? Can the concept of 'ad hocism' be stretched to ::: Uploaded on - 29/08/2015 ::: Downloaded on - 10/09/2015 20:02:36 ::: 11 wp1250.02.odt employment as such over a decade? One can understand a few years like two or three years for such an exercise of ad hocism. In our opinion, experience shows that such a perilous practice of ad hocism leads to favouritism, nepotism and a miasma of corruption.
We are compelled to observe how shabbily the petitioner has been treated for the past two decades by drowning his skill and experience instead of utilizing his services in rural or urban areas.
With the above preface, we proceed to determine the issue involved in the present writ petition.
9. The meaning of word ad hoc as per the Black's Law Dictionary (Ninth Edition) is as under :-
"Ad hoc : Formed for a particular purpose."
As per the Websters Comprehensive Dictionary (Encyclopedic Edition), the meaning of word ad hoc is as under:
"With respect to this (particular thing); up to this time."
10. The apex Court stated thus in the case of Rattan Lal and others ..vs.. State of Haryana and others; (1985) 4 SCC 43
1. In all these petitions the common question which arises for decision is whether it is open to the State Government to appoint teachers on an ad-hoc ::: Uploaded on - 29/08/2015 ::: Downloaded on - 10/09/2015 20:02:36 ::: 12 wp1250.02.odt basis at the commencement of an academic year and terminate their services before the commencement of the next summer vacation or earlier to appoint them again on an ad-hoc basis at the commencement of next academic year and to terminate their services before the commencement of the succeeding summer vacation or earlier and to continue to do so year after year. A substantial number of such ad-hoc appointments are made in the existing vacancies which have remained unfilled for three to four years.
It is the duty of the State Government to take steps to appoint teachers in those vacancies in accordance with the rules as early as possible. The State Government of Haryana has failed to discharge that duty in these cases. It has been appointing teachers for quite some time on an ad-hoc basis for short periods as stated above without any justifiable reason. In some cases the appointments are made for a period of six months only and they are renewed after a break of a few days. The number of teachers in the State of Haryana who are thus appointed on such ad-hoc basis is very large indeed. If the teachers had been appointed regularly they would have been entitled to the benefits of summer vacation along with the salary and allowance payable in respect of that period and to all other privileges such as casual leave, medical leave, maternity leave etc. available to all the Government servants. These benefits are denied to ::: Uploaded on - 29/08/2015 ::: Downloaded on - 10/09/2015 20:02:36 ::: 13 wp1250.02.odt these ad-hoc teachers unreasonably on account of this pernicious system of appointment adopted by the State Government. These ad-hoc teachers are unnecessarily subjected to an arbitrary 'hiring and firing' policy. These teachers who constitute the bulk of the educated unemployed are compelled to accept these jobs on an ad-hoc basis with miserable conditions of service. The government appears to be exploiting this situation. This is not a sound personnel policy. It is bound to have serious repercussions on the educational institutions and the children studying there. The policy of 'ad-hocism' followed by the State Government for a long period has led to the breach of Article 14 and Article 16 of the Constitution. Such a situation cannot be permitted to last any longer. It is needless to say that the State Government is expected to function as a model employer.
2. .....
3. We strongly deprecate the policy of the State Government under which 'ad-hoc' teachers are denied the salary and allowances for the period of the summer vacation by resorting to the fictional breaks of the type referred to above. These 'ad-hoc' teachers shall be paid salary and allowances for the period of summer vacation as long as they hold the office under this order. Those who are entitled to maternity or medical leave, shall also be granted such leave in accordance with the rules."
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11. It is, thus, clearly seen from the above Supreme Court judgment that the Supreme Court minced no words in deprecating the policy of the Government in indulging in 'ad hocism'. That was a case of the teachers. Here, we are dealing with the case of a qualified doctor i.e. Dental Surgeon who passed out his degree course from the Government Dental College, Nagpur way back in the year 1995 and was since then appointed on ad hoc basis and continued to work as such till the year 2007 and, thereafter, was deprived of the employment for no reasons and since then he is without any job. It is not in dispute that firstly he was appointed on 15.10.1996 and was given employment for 29 days, as is evident from the chart, which we have reproduced in paragraph 2 of the judgment. The chart shows that from 15.10.1996 to 02.05.2000 i.e. for a bout 4 years, he was appointed for 29 days.
There is no explanation why he was appointed as above. But then it clearly appears that the only object of giving him employment for 29 days for four years was to prohibit him from claiming any regularization in service clearly forgetting that the rules themselves do not provide for regularization. But then with some apprehension with some bureaucrats namely; that if one is given employment for more than 29 days, he would start claiming ::: Uploaded on - 29/08/2015 ::: Downloaded on - 10/09/2015 20:02:36 ::: 15 wp1250.02.odt regularization, appears to be a figment of imagination without even understanding that ultimately the affected people are the people residing in the rural areas where he was working and that they are wasting a Doctor/Dental Surgeon for whose education the tax payer's money was spent by the Government. In the year 2000, the petitioner must have sensed that he would be again terminated and might not be appointed as ad hoc Dental Surgeon.
That is why he went to the M.A.T. and the M.A.T. made an order on 28.08.2000, which we have already reproduced that he should not be replaced by any other ad hoc employee except the bonded candidate. He was working as dental Surgeon at Primary Health Centre, Saoner and was serving the rural population right from the year 1996 and then he was protected by the aforesaid interim order. But then for no reasons, he was kept out of employment for about 8 months, contrary to the interim order and in fact none was appointed in his place till 08.04.2001 and thus the Government and its officers have been responsible in depriving the rural population under Saoner Primary Health Cetnre for eight months in providing medical services. Thereafter, on 09.04.2001, Dr. Sandeep Gujar was appointed. The respondents have pleaded that Dr. Sandeep Gujar was a bonded candidate and, therefore, he ::: Uploaded on - 29/08/2015 ::: Downloaded on - 10/09/2015 20:02:36 ::: 16 wp1250.02.odt was appointed as suggested by the M.A.T. in its interim order.
There appears to be a confusion in the mind of the respondents themselves about this concept of bonded candidate. There is a further confusion with the respondents as to the alleged rights or privileges of the bonded candidates compared to the non-bonded candidates. The respondents and the State Government appears to have created a clear cut artificial class of the bonded candidates and non bonded candidates, which does not have any foundation or basis insofar as the consideration of employment on merits is concerned. Nay, according to us, the same clearly violates Article 16 of the Constitution of India. The respondents are under impression that the candidates who are bonded are to be preferred over the candidates who are non-bonded while giving employment. If the non bonded candidates are also ready to work in rural areas, why they could be denied employment? We find no foundation and we deprecate this type of practice. If such a practice is being adopted or continued, the same would be clearly violative of Articles 14 and 16 of the Constitution of India in the matter of public employment. In this case, exactly that has happened. In response to the Original Application before the M.A.T., the respondents came up with a stand that the ::: Uploaded on - 29/08/2015 ::: Downloaded on - 10/09/2015 20:02:36 ::: 17 wp1250.02.odt respondents appointed respondent no. 5, a candidate who was a bonded candidate in place of the petitioner. Shockingly enough, on the bare statement, without any verification and without any evidence about correctness of the same, the M.A.T. readily accepted the said stand and dismissed the original application filed by the petitioner. We are saddened with this kind of approach of the M.A.T. The reason is that in this case, the respondents themselves have created a mess in respect of bonded and non bonded candidates. The respondents have stated in affidavit-in- reply to this petition in paragraph 8 as under:
"8. It is submitted that the petitioner being a bonded candidate was initially appointed as a Dental Surgeon Class-II officer on temporary basis for 29 days w.e.f. 15.10.96 and some time for 120 days through D.S.B. subject to certain conditions. It is submitted that on perusal of the conditions No.5 it would clear that he was appointed as a bonded candidate..."
12. From the above, it is clear that the respondents are treating the petitioner as bonded candidate. If that is so, there is no explanation as to why still he was not continued and why ::: Uploaded on - 29/08/2015 ::: Downloaded on - 10/09/2015 20:02:36 ::: 18 wp1250.02.odt respondent no.5-Dr. Gujar, replaced him. Secondly, there is no mention anywhere as to who would issue certificate about the bonded candidate. The reason is that the petitioner had challenged the certificate dated 20.08.2001, issued by Dean, Dental College and Hospital, Nagpur stating he was not competent to issue said certificate and further as per the information gathered under the R.T.I. Act, no such certificate was at all issued. The information under the Right to Information Act clearly rejects the certificate. In this background, we called the file from the Dean of the Government Dental College and in the file of Dr.Sandip Gujar, we found a printed bond having something filled therein. Insofar as the petitioner is concerned, the file shows a printed bond but nothing was filled therein, therefore, the Dean stated that he was not bonded candidate. It is thus clear to us that there is no definite procedure or a competent authority named by the Government as to who would be competent to issue certificate of bonded candidate and what is the evidentiary value of such a certificate. That apart, it is further seen from the concept of the bonded candidates that the bonded candidates are those candidates, who are described in Government Resolution dated 24.09.1971 at item no. 9, which reads as under.
::: Uploaded on - 29/08/2015 ::: Downloaded on - 10/09/2015 20:02:36 :::19 wp1250.02.odt "9. .....Bonded candidates shall be posted in the vacancies in the rural areas and non-bounded candidates in the vacancies according to Government orders already issued depending on the posts and category of service applied for."
From reading of the above, we have not found anywhere that the candidate like the petitioner, who was replaced by respondent no.5-Dr. Gujar, should be removed and should not be continued nor it is the stand taken anywhere that the petitioner was never a bonded candidate. On the contrary, it appears from the reading of the above that the bonded candidates are those candidates, who are bound to work in the rural areas. The petitioner was working in rural areas even though he was not bonded candidate. But then there is no provision for replacement of the petitioner, who was working in the Primary Health Centre and there was no occasion to remove the petitioner from service that too after five years to appoint in his post respondent no.5- Dr. Gujar.
13. There is one more significant aspect which requires consideration. The petitioner was given some memo and notices that he was practicing privately in addition to his work and, ::: Uploaded on - 29/08/2015 ::: Downloaded on - 10/09/2015 20:02:36 ::: 20 wp1250.02.odt therefore, that was the reason he could not be given reemployment. At the end of one year, however, an enquiry was held against respondent no.5-Dr. Gujar, who was found guilty of practicing privately. Thus, despite holding enquiry and recording of findings against Dr.Gujar, he was continued in service and he continues even now. Insofar as the petitioner is concerned, no such enquiry was held. On the contrary, there is a document on record to show that the superiors at Primary Health Centre, Saoner had shown the petitioner deliberately absent and that is what given in writing by the peon Mr. Dubey about the petitioner. That apart, when the respondents have not given any assurance of a regular and clear employment to the Dental Surgeon like the petitioner and if he practices privately, in addition to his duty at the Primary Health Cetnre, what wrong is committed by him? We, therefore, think that the reasons for not continuing the petitioner in employment even after working for a decade on ad hoc basis, are preposterous, beyond any sense of justice, equity and good conscience. It is really unfortunate that despite warning contained in the Supreme Court Judgment in Rattan Lal (supra), the administration is still indulging in ad hocism insofar as Doctor/ Dental Surgeons are concerned. It is then noteworthy that after ::: Uploaded on - 29/08/2015 ::: Downloaded on - 10/09/2015 20:02:36 ::: 21 wp1250.02.odt the M.A.T. dismissed the Original Application, he filed writ petition in this Court and this Court made an order that the petitioner would be continued in as and when vacancy is available.
Even after the employment of respondent no.5-Dr. Gujar had come to an end due to his misconduct on 12.02.2002, the petitioner was not appointed and the post of Dental Surgeon at Saoner was kept vacant, causing serious loss to the rural population in not providing medical help, for which there is no explanation.
14. Be that as it may. The petitioner was again appointed on 22.04.2004 and continued to work till 20.07.2007 but for no reasons again, he was discontinued and was rendered jobless. In November-2008, he applied for the post of Dental Surgeon as per the advertisement but surprisingly he was not allowed to appear on the ground that he was not in employment. Thus, there was a clear intention to waste a doctor, who got educated by the Government at the cost of public money. We have thus found that though several posts were available in the State of Maharashtra, the petitioner was never appointed after 2007. This petition remained pending in this Court and in the meanwhile, the ::: Uploaded on - 29/08/2015 ::: Downloaded on - 10/09/2015 20:02:36 ::: 22 wp1250.02.odt petitioner filed another criminal Writ Petition No.415/2015 against the Government and its officers saying that false certificate about respondent no.5-Dr. Gujar was issued. As we have discussed above, the respondents themselves are confused about the issue of bonded candidates. Be that as it may. We do not want to dilate on the said issue any further. We have, however, come to the firm conclusion that the petitioner was entitled to be continued in employment as ad hoc Dental Surgeon and because respondent no.5-Dr. Sandip Gujar was continued even till this date in the same capacity, who was junior to the petitioner and who replaced him for no reasons, we must remove the injustice done to the petitioner.
15. The next question is working out the relief for the petitioner. Undoubtedly, the petitioner has claimed several reliefs before us including the award of back wages etc. In fact, the petitioner and his counsel were pressing hard for back wages from the Government but then we openly declined the request, all the more so because an undertaking has been filed by the respondents saying therein that the petitioner wold be appointed again on ad hoc basis w.e.f. 01.09.2015 and would be continued without any ::: Uploaded on - 29/08/2015 ::: Downloaded on - 10/09/2015 20:02:36 ::: 23 wp1250.02.odt disturbance. Thus, the issue about his reinstatement has come to an end and since we have declined to grant him any back wages, that issue also has come to an end.
16. The next issue is about his regularization in service. We have already held that there cannot be ad hocism for so many years, which is contrary to the very concept of ad hocism. The petitioner has an experience of 20 years by now and we do not want that because of the whims and fancies of the Government agencies and the M.P.S.C., the people at large should suffer.
There is a Government Resolution dated 22.01.2009, that was issued by the Government and the decision taken in that Government Resolution is as under:
"As mentioned in the preface, the temporary services of Professors/Dental Surgeons, who were either in continuous or discontinuous service as on 15.01.2009, i.e. those who having been appointed in service till 15.01.2007 by temporary appointment and at the time of issuance of this resolution were working, shall be regularized as special case in the pay scale of Rs.8000-13500 of Class-B of Maharashtra Medial Education and Research Services"::: Uploaded on - 29/08/2015 ::: Downloaded on - 10/09/2015 20:02:36 :::
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17. The resolution shows that those who are in employment on temporary/ad hoc basis as on 15.01.2007, would be regularized in service as special case. Now, admittedly, the petitioner was in employment till 20.07.2007 and was thereafter again appointed on 15.10.2007 but then it was falsely shown that he was absent from the duty and despite his representations, was not allowed to work form 15.10.2007 onwards till date. The fact, however, remains that as on the relevant date 15.01.2007, he was appointed and was in the employment and, therefore, his case is fully covered by the said Government Resolution. We, therefore, find that the petitioner must be given the benefit of the said Government Resolution for being regularized in service. Apart from the said resolution, we think that the petitioner having the experience of two decades as Dental Surgeon, should not be asked to face the M.P.S.C. and must be regularised. There cannot be 'ad hocism' for twenty years.
18. The next question is about gap due to the period of his unemployment as ad hoc Dental Surgeon. The first appointment of the petitioner as ad hoc Dental Surgeon was w.e.f. 15.10.1996, while that of respondent no.5-Dr. Sandip Gujar was from ::: Uploaded on - 29/08/2015 ::: Downloaded on - 10/09/2015 20:02:36 ::: 25 wp1250.02.odt 09.04.2001 (Page 180). Thus, the petitioner was far senior to respondent no.5. As it is clear that after replacement of the petitioner by respondent no.5-Dr. Gujar, the petitioner should have been again appointed from 12.02.2002 when services of respondent no.5-Dr. Gujar were discontinued for misconduct. The petitioner was however appointed on 22.02.2004 till 20.07.2007 and, thereafter, till date on false reasons, he was not allowed to work though was again appointed on 15.10.2007. It is, thus, clear that the petitioner would be entitled to continuity of service, of course, only as ad hoc Dental Surgeon alike others for the above entire period since during the pendency of this writ petition, the respondents failed to appoint him, despite interim order made by this Court. But the respondents continued respondent no.5-Dr. Gujar till date. The petitioner must also be given continuity in service till 01.09.2015 i.e. his reemployment, as undertaken by the Government. We, thus, hold and declare that the petitioner is entitled to continuity of service from 15.10.1996 till 01.09.2015 and the respondents are directed to issue an order of continuity of service accordingly to him. The petitioner shall not be then liable to face M.P.S.C. and his services shall be regularized in accordance with said Government Resolution dated 22.01.2009. We further ::: Uploaded on - 29/08/2015 ::: Downloaded on - 10/09/2015 20:02:36 ::: 26 wp1250.02.odt make it clear that we are not disturbing services of respondent no.5-Dr. Sandip Gujar.
19. In view of above, we make the following order:
ORDER
(i) Writ Petition No. 1250/2002 is allowed.
(ii) Impugned order dated 24.12.2001 passed by Maharashtra Administrative Tribunal in Original Application No.558/2000 is quashed and set aside.
Instead, Original Application No. 558/2000 is allowed.
(iii) It is declared that the petitioner shall be deemed to be in employment as ad hoc Dental Surgeon right from the date of his removal as such w.e.f.
08.04.2001 till his reinstatement as ad hoc Dental Surgeon on 01.09.2015 but without any emoluments or any back wages or other benefits involving monetary benefits and further that he being in employment as on 15.01.2007, is entitled to regularization as per Government Resolution No.NEC 1408/C.No.116/ Medical Services etc. dated 22.01.2009 and consequently shall not be asked to face the M.P.S.C.
(iv) The respondents are directed to count services of the petitioner for the period from 08.04.2001 to 01.09.2015 only as ad hoc Dental Surgeon but ::: Uploaded on - 29/08/2015 ::: Downloaded on - 10/09/2015 20:02:36 ::: 27 wp1250.02.odt without any emoluments or back wages or other monetary benefits and regularize his service in terms of Government Resolution No.NEC 1408/C.No.116/ Medical Services etc. dated 22.01.2009 as expeditiously as possible and, in any case, within six months from today. Failure on the part of the respondents to regularize services of the petitioner within six months as per the Government Resolution dated dated 22.01.2009 shall automatically result into payment of salary and allowances to the petitioner after six months as regular Government Dental Surgeon and he shall be paid accordingly.
JUDGE JUDGE
kahale
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