Gujarat High Court
Rohit Maheshbhai Manubhai vs State Of Gujarat & on 2 March, 2016
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/2344/2014 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 2344 of 2014
With
SPECIAL CIVIL APPLICATION NO. 2345 of 2014
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ROHIT MAHESHBHAI MANUBHAI....Petitioner(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR DHAVAL N VAKIL, ADVOCATE for the Petitioner(s) No. 1
MR UTKARSH SHARMA AND MS VACHA DESAI, AGPs for the
Respondent(s) No. 1
MR HS MUNSHAW, ADVOCATE for the Respondent(s) No. 2
NOTICE SERVED BY DS for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 02/03/2016
ORAL ORDER
By this writ-application under Article 226 of the Constitution of India, the petitioner, who was serving as a Multipurpose Health Worker (Male) with the District Panchayat, Anand, has prayed for the following reliefs :
"(A) The Hon'ble Court may be pleased to issue an appropriate writ and/or order and/or direction, directing the Respondents to absorb the petitioner in the regular establishment with regular pay scale and other eligible perks.
(B) The Hon'ble Court may kindly be pleased to direct the respondents to give minimum wages to the petitioner.
(C) Pending hearing and final disposal of this petition, the Hon'ble Court may be pleased to restrain the respondents for taking any adverse step with respect to Page 1 of 11 HC-NIC Page 1 of 11 Created On Fri Mar 04 02:05:02 IST 2016 C/SCA/2344/2014 ORDER the services of the petitioner.
(D) Ad-interim relief in terms of para 19(C).
(E) Any other and further relief(s) that is just, fit and expedient in the facts and circumstances of the case may be granted."
The facts of this case may be summarised as under :
The petitioner was appointed as a Multipurpose Health Worker (Male) on contractual basis in the fixed pay of Rs.2,500=00 per month. His appointment was pursuant to an advertisement issued by the Panchayat for the recruitment of the Multipurpose Health Workers (Male). After his appointment, he was posted at the Sub-Station "Chamara" under the Primary Health Centre, Bamangam. According to the policy of the State Government, his appointment was extended from time to time.
It is the case of the petitioner, relying on the terms of the appointment, that on expiry of the period of five years of service he should have been absorbed on regular basis. As he was not absorbed on regular basis and continued to work as a contractual employee, he came before this Court by filing Special Civil Application No.15581 of 2013. The said application came to be disposed of with a direction that the petitioner shall file an appropriate representation in that regard and the authorities concerned shall consider the same on its own merits.
Pursuant to such directions issued by this Court vide order dated 9th October 2013, the representation was considered and the petitioner was informed that it was not possible or rather permissible to regularize the services as he Page 2 of 11 HC-NIC Page 2 of 11 Created On Fri Mar 04 02:05:02 IST 2016 C/SCA/2344/2014 ORDER was serving on contractual basis. He was also informed that the other employees who had been absorbed in regular service had undergone the regular recruitment procedure, which was lacking in the case of the present petitioner.
Since the representation was not accepted, hence this petition.
It appears that during the pendency of this writ- application, his services were ultimately terminated i.e. on 31st January 2014, the date on which the contract period came to an end.
Mr.Vakil, the learned counsel appearing for the petitioner vehemently submitted that termination of his client is illegal and contrary to the terms of the appointment itself. Mr.Vakil invited my attention to clause (20) of the appointment letter. The free English translation of the same reads as under :
"The assessment of the two years' work of a candidate appointed shall be done on completion of two years of his service, and if the work is found to be satisfactory, then only he would be continued for further period."
The free translation of Clause (21) of the appointment letter reads as under :
"If five years of service/duties of a candidate appointed as per this scheme is found to be satisfactory, then after five years he would be given regular appointment on the concerned post in the minimum pay-scale of that post. But, this appointment will be considered as his fresh appointment and at that time he will be entitled to get admissible allowances/perks as per rules."
According to Mr.Vakil, Clause (21) makes it very clear that a candidate, on satisfactory completion of five years of Page 3 of 11 HC-NIC Page 3 of 11 Created On Fri Mar 04 02:05:02 IST 2016 C/SCA/2344/2014 ORDER service, without anything more, would be appointed on regular basis in the minimum pay of the regular pay-scale and from that date onwards his appointment would be considered as fresh. Mr.Vakil submitted that since his client completed five years of satisfactory service, he should have been absorbed in service as provided in Clause (21) referred to above. He submitted that the order of termination deserves to be quashed and the petitioner should be reinstated in service.
On the other hand, this writ-application has been vehemently opposed by Mr.Munshaw, the learned counsel appearing for the Panchayat and Mr.Sharma, the learned AGP appearing for the State.
Mr.Munshaw submitted that Clause (21) referred to above and relied upon by the petitioner would not confer any indefeasible right of being absorbed in regular service. Although Clause (21) provides that a candidate on completion of five years of satisfactory service on contractual basis shall be appointed in regular service, yet the regulations of appointment in regular service would have to be complied with.
Mr.Munshaw has placed reliance on the following averments made in the affidavit-in-reply duly affirmed by the Chief District Health Officer, Anand District Panchayat :
"2. The respondent no.2 most respectfully submits that petitioner herein was appointed as Multipurpose Health Worker (Male) on contractual basis on fixed monthly remuneration of Rs.2,500/- through orders dated 12/09/2007 and a copy thereof is annexed herewith and marked as Annexure-A. It is submitted that the said appointment order consists of number of other conditions. It is stated that Condition No.17 of the said Page 4 of 11 HC-NIC Page 4 of 11 Created On Fri Mar 04 02:05:02 IST 2016 C/SCA/2344/2014 ORDER order makes it clear that the appointees will have no right of absorption/ appointment on regular establishment. It is further stated that the said appointment was neither regular one nor after following due procure of recruitment. It is stated that the appointment order was issued due to consistent administrative exigencies subsequent to the directions from the higher authority.
The respondent No.2 humbly states that thereafter from time to time such contractual appointments were given to the petitioner depending upon the availability of work. At the cost of repetition, it is stated that such appointments were time bound and conditioned one and copies of such orders are annexed herewith and marked as Annexure-B collectively. It is pertinent to note that fresh contractual appointments were made pursuant to from time to time instructions from the respondent No.1 and copies of such instructions received from higher authorities are annexed herewith and marked as Annexure--C collectively. In other words, the petitioner herein has no right to continue beyond the period of contractual appointment.
3. The respondent No.2 most respectfully submits that first appointment of the petitioner on contractual basis was pursuant to the policy of the State Government laid down in the Resolution dated 01/08/2006 issued by the Finance Department of the Government of Gujarat and a copy thereof is annexed herewith and marked as Annexure-D. It is submitted that the petitioner has given such undertaking at appropriate time while accepting the appointment order. It is further submitted that the petitioner, who is fully conversant with the nature as well as terms & conditions of the appointment, has approached the Hon'ble Court after appropriate decision on his representation made pursuant to orders dated 09/08/2013 passed by the Hon'ble High Court of Gujarat in Special Civil Application No.15580 of 2013 & No.15581 of 2013.
It is further stated that the petitioner was also informed that time to time regular recruitment drive are initiated by the competent authority. It is stated that even the Page 5 of 11 HC-NIC Page 5 of 11 Created On Fri Mar 04 02:05:02 IST 2016 C/SCA/2344/2014 ORDER Government of Gujarat has issued notification dated 15/06/2011 through Panchayat Rural Housing & Rural Development Department laying down that upper age limit of 26 years would not be applicable in case of candidates who were working as Multi Purpose Health Worker (Male) on contractual basis on fixed pay on adhoc basis and a copy of the said notification is annexed herewith and marked as Annexure-E. In other words, it was open to the petitioner to take advantage of the policy of the State Government by way of competing with other candidates on other recruitments on permanent basis.
4. The respondent No.2 submits that even a copy of notification dated 15/06/2011 was served upon the petitioner along with a letter dated 06/12/2013 and a copy of letter duly accepted by the petitioner is annexed herewith and marked as Annexure-F.
5. The respondent No.2 submits that the petitioner herein, who competed in response to an advertisement No.1/2011-12 published for recruitment of Multi Purpose Health Workers (Male), was initially on waiting list prepared by Gujarat Panchayat Service Selection Board at Ahmedabad. It is submitted that however, pursuant to the orders of the Hon'ble High Court of Gujarat passed in other Court matters, it was agreed by Gujarat Panchayat Service Selection Board at Ahmedabad to revise the merit list and the name of present petitioner was not on revised list.
6. The respondent No.2 submits that the petitioner herein is not entitled to any benefit of regularization or any other similar benefit as he is appointed on contractual basis without following due procedure of recruitment. It is submitted that Government of Gujarat has issued a Resolution dated 16/02/2006 through its Finance Department on the issue of appointment of Class-III & IV Cadre by way of direct recruitment on fixed pay and a copy of said Resolution is annexed herewith and marked as Annexure-G. It is stated that the said Resolution is applicable in a case of appointment made alter following due procure of recruitment by the competent authority.Page 6 of 11
HC-NIC Page 6 of 11 Created On Fri Mar 04 02:05:02 IST 2016 C/SCA/2344/2014 ORDER At the cost of repetition, it is stated that the petitioner who has prayed for regularization on completion of his 5 years period in service is not entitled to any such benefit as he is a contractual appointee for a period of 11 months. It is reiterated that the petitioner is trying to mix up and create confusion by way of mixing up of his contractual appointment for a period of 11 months with permanent regular selection after following due procedure of recruitment."
Mr.Munshaw has also placed reliance on one further affidavit filed on behalf of the respondent no.2, which reads as under :
"1. The respondent No.2 most respectfully states that contractual appointment for a period of 11 months of present petitioner was restricted upto 31/01/2014 through order dated 03/04/2013 while the Chief District Health Officer, Anand District Panchayat and a copy of the order is annexed herewith and marked as Annexure- A. It is humbly stated that the petitioner herein was fully aware about the same as the same was referred to in order dated 06/02/2013 passed by the respondent No.2 while deciding his representation dated 14/10/2013 submitted pursuant to the order of the Hon'ble High Court of Gujarat passed on 09/10/2013 in Special Civil Application No.15580 of 2013 and 15581 of 2013. It is most respectfully stated that a copy of said order was personally served upon the petitioner and was signed by him and hence the deponent humbly submits that the petitioner herein cannot plead for ignorance about the same.
2. The respondent No.2 most respectfully submits that petitioner herein as a Multi Purpose Health Worker (M) has to work in Field except if there are meeting or any office work in Primary Health Centre. It is stated that the petitioner herein has to submit advance tour programme to the Medical Officer of the concerned Primary Health Centre for approval and on completion of month, he is required to submit a Tour Diary for approval. It is most respectfully stated that the petitioner herein was fully conversant with the facts that his contractual Page 7 of 11 HC-NIC Page 7 of 11 Created On Fri Mar 04 02:05:02 IST 2016 C/SCA/2344/2014 ORDER appointment was to end on 31/01/2014 and therefore, he has not at all submitted advance tour programme to the Medical Officer of Primary Health Centre, Bamangam, Taluka Aanklav, District Anand for approval.
3. The respondent No.2 submits that as per the information provided to the said Medical Officer of the Primary Health Centre, Bamangam, the petitioner herein has not at all approached the Medical Officer for work or for any other reasons after 31/01/2014. It is stated that petitioner is paid his salary by Office of Taluka Health Officer, Aanklav as per the information provided by him.
4. The respondent No.2 submits that even Taluka Health Officer, Aanklav has submitted his report dated 17/02/214 stating therein that all contractual appointees are relieved on 31/01/2014 and a copy of letter showing the names of in all 16 Multi Purpose Health Workers (Male) is annexed herewith and marked as Annexure-B It is submitted that petitioner herein is one of them and except him none of other Multi Purpose Health Workers (Male) has approached the Hon'ble Court or Authority for continuation in employment. It is stated that as such contractual appointment automatically comes to an end on 31/01/2014 and therefore, no separate relieving orders are required to be passed as contended by the petitioner.
5. In view of the facts mentioned hereinabove, it is clear that the contentions raised by the petitioner that he is in employment even after 31/01/2014 is thoroughly baseless and far from truth. It is submitted that even petitioner has affirmed in the memo of Special Civil Application on 10/02/2014 i.e. on Monday and the matter was heard by the Hon'ble High Court of Gujarat on 14/02/2014 and thereafter notice was directly served by the respondent No.2 on 19/02/2014, therefore, the respondent No.2 humbly submits that the contention raised by the petitioner that his services were brought to an end arbitrarily subsequent to the orders of the Hon'ble Court are thoroughly baseless.Page 8 of 11
HC-NIC Page 8 of 11 Created On Fri Mar 04 02:05:02 IST 2016 C/SCA/2344/2014 ORDER
6. The respondent No.2 submits that the petitioner is praying for regularization in service on the basis of Condition No.21 of the order dated 12/09/2007, but it is pertinent to note that in subsequent orders, no such condition is mentioned and a copy of orders dated 21/08/2008 and 06/04/2009 are annexed herewith and marked as Annexure-C & D respectively."
Mr.Munshaw lastly relied on one affidavit dated 7th March 2014, which reads as under :
"1. The respondent No.2 most respectfully states that the petitioner who was appointed on contractual basis from time to time was in employment upto 31/01/2014. It is stated that the petitioner was appointed purely on contractual basis on fixed monthly remuneration of Rs.2,500/-. It is humbly stated that the petitioner who is relieved with effect from 31/01/2014 is trying to make out a case as if he is in employment thereafter by way of producing irrelevant documents along with his reply. The respondent No.2 submits that the petitioner has never served after 31/01/2014 as a Multi Purpose Health Worker (Male) on contractual basis in official capacity.
2. The respondent No.2 submits that petitioner has produced a statement showing that he had worked during the month of February, 2014, but the same does not bear the signature of Medical Officer of the concerned Primary Health Centre. It is stated that a report base computer system is operated in all the Primary Health Centres as well as Block level and District level. It is stated that manipulation or mischief with the system is possible and that is why authentication of the officer is a must to substantiate a case put forward by the petitioner.
The respondent No.2 submits that the petitioner is trying to rely upon a statement pertaining to Malaria Eradication Programme (Slide collection). It is submitted that again the same is not signed by the Medical Officer or authenticated by any Officer including Laboratory Technician. It is further stated that it does not indicate that the petitioner herein has taken blood samples as a Page 9 of 11 HC-NIC Page 9 of 11 Created On Fri Mar 04 02:05:02 IST 2016 C/SCA/2344/2014 ORDER Multi Purpose Health Worker (Male). It is pertinent to note that apart from a Multi Purpose Health Worker, employees like Female Health Workers, Accredited Social Health Activists, Anganwadi Worker etc of Field Agency are performing this work and therefore, the petitioner is not assigned to collect the blood sample after 31/01/2014.
3. The respondent No.2 submits that the petitioner is trying to rely upon a letter dated 03/02/2014 addressed by the Medical Officer to Multi Purpose Health Workers, Female Health Worker to Sub Centre of Bamangam-2. It is pertinent to note that the same letter is not addressed to a particular person including the present petitioner and secondly it is addressed to a designated employee for completion of work assigning them and therefore, it does not help the petitioner in any manner.
4. Lastly it is submitted that the petitioner has produced photo copy of voucher showing payment to team members who worked during the Polio Eradication Programme between 23/02/2014 to 25/02/2014. It is stated that any individual can offer his service as volunteer and such volunteers are paid Rs.75/- per day as remuneration as per the Scheme of the Government. It is stated that even in the list it shows that most of them are not Government employees connected with Health Branch or the Government Department and therefore, the said statement does not help the petitioner in any manner.
It is pertinent to note that prior to this statement, in the affidavit-in-reply filed earlier by the respondent No.2 it is repeatedly mentioned that the contractual appointment of the petitioner was upto 31/01/2014 only.
It is further stated that the term of employment on contractual basis is determined by the State Government and implemented through Chief District Health Officer and hence, the document is not of any help to the petitioner."Page 10 of 11
HC-NIC Page 10 of 11 Created On Fri Mar 04 02:05:02 IST 2016 C/SCA/2344/2014 ORDER It appears from the stance of the respondents that in the year 2011-12, the Gujarat Panchayat Service Selection Board issued a public advertisement for recruitment of the Multipurpose Health Workers (Male) by way of regular recruitment process. It also appears that the Panchayat informed the petitioner that in view of the amended policy of the State Government he could be given the benefit of age relaxation for the purpose of applying pursuant to the said advertisement and recruitment. Taking advantage of that relaxation of age, the petitioner applied for being appointed on the post on regular basis but, unfortunately, was not successful as he could not clear the exam. In such circumstances, thereafter, his services were brought to an end.
Having already availed of an opportunity to compete with the others on regular basis and having failed to get himself appointed in the regular recruitment process, it would not be proper for the petitioner now to assert that his contractual appointment should not have been brought to an end.
In such circumstances referred to above, no relief can be granted to the petitioner. This petition, therefore, fails and is hereby rejected. The Special Civil Application No.2345 of 2014 is also accordingly disposed of.
(J.B.PARDIWALA, J.) MOIN Page 11 of 11 HC-NIC Page 11 of 11 Created On Fri Mar 04 02:05:02 IST 2016