Gujarat High Court
Sharad Shivshankar Vyas vs State Of Gujarat on 18 December, 2015
Bench: Jayant Patel, Vipul M. Pancholi
C/LPA/1468/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS PATENT APPEAL NO. 1468 of 2015
In SPECIAL CIVIL APPLICATION NO. 11405 of 2015
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SHARAD SHIVSHANKAR VYAS....Appellant(s)
Versus
STATE OF GUJARAT....Respondent(s)
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Appearance:
MR GM JOSHI, ADVOCATE for the Appellant(s) No. 1
ADVANCE COPY SERVED TO GP/PP for the Respondent(s) No. 1
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CORAM: HONOURABLE THE ACTING CHIEF JUSTICE MR.
JAYANT PATEL
and
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
Date : 18/12/2015
ORAL ORDER
(PER : HONOURABLE THE ACTING CHIEF JUSTICE MR. JAYANT PATEL)
1. The present appeal is directed against the order dated 02.12.2015 passed by learned Single Judge of this Court in Special Civil Application No.11405 of 2015, whereby the learned Single Judge, for the reasons recorded in the order, has dismissed the petition.
2. We have heard Mr. Joshi, learned counsel appearing for the appellant.
3. The contention raised on behalf of the appellant was that the appointment of the appellant is by virtue of the notification under Section 3 of the Gujarat Emergency Medical Services Act, 2007 (hereinafter Page 1 of 6 HC-NIC Page 1 of 6 Created On Tue Dec 22 01:33:59 IST 2015 C/LPA/1468/2015 ORDER referred to as 'Act'). Further, in the notification there is no reference but in the office order dated 27.02.2009 the pay is fixed minus pension and on that basis he had continued in service. It was submitted that thereafter as per the rules, terms and conditions of services were required to be provided which have not been provided and the person appointed vice him as per the order dated 04.07.2015 is Dr. Bhavsar, who has not been appointed by any Government Notification under Section 3 of the Act and therefore the appellant
- petitioner was entitled to be continued in service as Director of Emergency Medical Services Authority. It was also submitted that in absence of any specific terms and conditions framed by the Rules, the services of the appellant could not be put to an end nor he could be directed to handover the charge to Dr. Bhavsar and the action was illegal. The learned Single Judge has not considered the said aspect properly and therefore the Division Bench of this Court may consider in the present appeal.
4. It is true that by notification under Section 3 of the Act the appellant was re-employed by way of appointment on the post of Director of Emergency Medical Services Authority. For the purpose of the Act, in the said notification, the period during which he is appointed is not specifically mentioned. In the office order dated 27.02.2009, which pertains to the fixation of pay minus pension, there also the period has not been prescribed. The contention of the appellant particularly is that in absence of any Page 2 of 6 HC-NIC Page 2 of 6 Created On Tue Dec 22 01:33:59 IST 2015 C/LPA/1468/2015 ORDER specific terms and conditions of service framed by the statutory rule, his services could not be put to an end and he has right to continue in service until the statutory rules are framed or the person vice him is appointed as Director of Emergency Medical Services Authority.
5. In order to appreciate the contention, we have considered the scheme of the Act. It is true that Section 2(9) provides for Director appointed under Section 3(1). It is also true that notification is required to be issued in the Official Gazette for appointing any person as Director of Emergency Medical Services Authority. Section 6(1) provides that the Authority shall consist of a Chairperson and seventeen other members and as per Section 6(1)(h), Director is ex-officio Member Secretary of the authority to be constituted under Section 4 of the Act. The definition as provided under Section 2 (17) provides for the 'member' and it states as under:
"member" means a member of the Authority and includes the Chairperson of the Authority."
6. The aforesaid shows that the definition is inclusive definition for the purpose of member of the authority. Section 7 of the Act reads as under:
"7. (1) The term of office of a member shall be three years from the date of his appointment or nomination:
Provided that the term of office of a member nominated under clause (l), (n),(o),(p) or (q) of sub-section (1) of Section 6 shall Page 3 of 6 HC-NIC Page 3 of 6 Created On Tue Dec 22 01:33:59 IST 2015 C/LPA/1468/2015 ORDER come to an end as soon as he ceases to be a professor, administrator, member or, as the case may be, the Chief Officer.
(2) The term of office of an ex-officio member shall continue so long as he holds the office by virtue of which he is such a member.
(3) A member shall not be entitled to receive any compensation for his services but shall be reimbursed for the travelling and other expenses incurred by him in discharge of his duties."
7. The aforesaid shows that the term of the office of the member shall be three years from the date of his appointment or nomination. It further provides for the term of the office of ex-officio member so long as he holds the office by virtue of which he is a member. It is true that as per Section 3(2)(b) the terms and conditions of appointment of the Director shall be as may be prescribed by rules but in absence of such rules there is no reason why Section 7 which provides for general tenure of the member of three years should not be applied to the appellant.
8. The contention that since terms and conditions are not framed by the Rules, the appellant is entitled to continue until person appointed next by virtue of the notification, is absolutely on a misconceived premise because when any person, who is holding, in any capacity a particular post, is asserting the right to continue over the said post, the burden would be upon him to show that he has right to continue over the post by the statutory provision or the rules. Had the rule provided for a particular tenure, matter may Page 4 of 6 HC-NIC Page 4 of 6 Created On Tue Dec 22 01:33:59 IST 2015 C/LPA/1468/2015 ORDER be different but when no rules are framed, the tenure cannot be said as for a particular fixed period in absence of rule. Section 7 provides for general tenure of three years for each member. Further, it is an admitted position that the appellant has continued with the post not exceeding for a period of 62 years at the initial period and thereafter 65 years and therefore he was directed to handover the charge to Dr. Bhavsar since the petitioner had completed 65 years and 2 months, which is much more when three years tenure is provided for normal member.
9. We are not impressed by the submission that unless there is notification issued in favour of Dr. Bhavsar, the authority could not direct the appellant to handover the charge to Dr. Bhavsar. The basic fallacy is that Dr. Bhavsar is not regularly appointed as Director of Emergency Medical Services Authority on the date when the impugned order dated 04.07.2015 was passed. At that stage the services of the appellant have come to an end and the charge is ordered to be handed over to Dr. Bhavsar. Handing over of the charge to a particular officer would not require issuance of the notification as sought to be canvassed. The same is coupled with the aspect that the interim stay was granted in the main petition by the learned Single Judge which came to be continued until final disposal and even thereafter till today. Therefore, one would not expect issuance of the notification in favour of Dr. Bhavsar even if it is considered for the sake of examination that Dr. Bhavsar was to be regularly Page 5 of 6 HC-NIC Page 5 of 6 Created On Tue Dec 22 01:33:59 IST 2015 C/LPA/1468/2015 ORDER appointed as Director of Emergency Medical Services Authority.
10. The basic fallacy in the contention is that until another person vice the appellant is appointed by notification, the services of the appellant cannot be put to an end. However, the real question is that whether the appellant is entitled to continue to hold the office for indefinite period or beyond the period prescribed by Section 7 of the Act or in any case beyond 65 years for which no State Government Servant even after re-employment is entitled to continue to hold the office.
11. If the aforesaid aspect is considered with the reasons recorded by the learned Single Judge, we do not find that any case is made out for interference. Hence, appeal is merit-less and therefore dismissed.
(JAYANT PATEL, ACJ.) (VIPUL M. PANCHOLI, J.) Jani Page 6 of 6 HC-NIC Page 6 of 6 Created On Tue Dec 22 01:33:59 IST 2015