Gujarat High Court
Bhavendra H Parmar & 3 vs State Of Gujarat & 12 on 23 September, 2016
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/6149/2014 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 6149 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
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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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BHAVENDRA H PARMAR & 3....Petitioner(s)
Versus
STATE OF GUJARAT & 12....Respondent(s)
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Appearance:
MR GM JOSHI, ADVOCATE for the Petitioner(s) No. 1 - 1.10 , 2 - 4
MR UTKARSH SHARMA, AGP for the Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 1 - 3
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 23/09/2016
CAV JUDGMENT
By this writ-application under Article 226 of the Constitution of India, the writ-applicants have prayed for the Page 1 of 21 HC-NIC Page 1 of 21 Created On Sat Sep 24 00:45:31 IST 2016 C/SCA/6149/2014 CAV JUDGMENT following reliefs :
"(a) Your Lordships may be pleased to issue a writ of mandamus or in the nature of mandamus or any appropriate writ, order or direction, quashing and setting the conditions introduced by the government resolution dated 6.10.1983 in the government resolution of 9.6.1981 treating the services of the petitioners from 1951 to 1981 as non-pensionable and also quashing and setting aside the decision dated 11.01.2011 & 15.02.2011 and communication dated 28.2.2014 and be pleased to hold that the petitioners have rendered pensionable service all throughout and direct the respondent government to confer and pay all financial benefits flowing therefrom to the petitioners with appropriate rate of interest;
(b) Grant such other and further relief/s as may be deemed fit and proper in the interest of justice.
(c) Pending the admission, hearing and final disposal of this petition, this Honourable Court may be pleased to direct the respondent government to place on record the reasons recorded on the file for treating the services of the petitioners as non-pensionable;
(d) Be pleased to award cost of this petition;"
The case of the writ-applicants may be summarised as under :
The then State of Bhavnagar issued a circular dated 15th October 1946, whereby it declared the allocation of Rs.15 lac towards the fund to form a public trust in the name of 'Sir Krishnakumarsinhji Trust'. The Trust was formed for the purpose of establishing a medical school and various medical centres to prepare Vaidya doctors in the combined system of Ayurvedic and Allopathic medicines to work under the Rural Medical Relief Scheme. The management of the institution was Page 2 of 21 HC-NIC Page 2 of 21 Created On Sat Sep 24 00:45:31 IST 2016 C/SCA/6149/2014 CAV JUDGMENT under the medical department of His Highness of the State of Bhavnagar. The State of Bhavnagar became a part of the Union of India and was merged with the then State of Saurashtra. Subsequently, on reconstitution of the States, the State of Gujarat was formed. The State of Gujarat, in its Health and Industries Department, issued a resolution dated 15th September 1964, which reads as under :
"Under Government Resolutions, Local Self Government (Medical) Department of the former Saurashtra Government No.SN/69-2774, dated 5th April 1951, Government has approved the scheme for opening of eighteen dispensaries and constructing building for them in villages of the former Bhavnagar State, Government has also accorded sanctions for creation of 18 posts of Vaidyas and one post of the clerk in the scale of Rs.60-2- 80-4-100 on additional post of relicting vaidyas was also created subsequently.
As the fund has no other source of income, except interest on the securities, the Vaidyas are not put on par with Government Vadiyas and are not given dearness allowance as per Government Rules, it is observed that the working of dispensaries at present is not satisfactory, as they are to be run, from the limited source only. There are no posts of peons, as in Government Ayurvedic dispensaries.
In order to see that these dispensaries are run on the line of Government dispensaries, Government is pleased to direct that the present Vaidyas should be given the revised scale of Rs.100-3-12-EB-4-170, as per No.GH- 17/PCR-1064/662-CH dated 17th March 1964. They should be given the dearness allowance, as admissible under the normal rules. The Vaidyas appointed thereafter should be given the pay-scale of Rs.125-5-145-EB-6-245- 9-290, plus dearness allowance etc. as admissible under normal rules.
Government is also pleased to creata 18 posts of peons, in the scale of Rs.65-2-70. They should be given dearness allowance, as admissible under normal rules.Page 3 of 21
HC-NIC Page 3 of 21 Created On Sat Sep 24 00:45:31 IST 2016 C/SCA/6149/2014 CAV JUDGMENT Government is also pleased to direct that the clerk attached in the work relating to these dispensaries, should be given the scale of Rs.100-3-13-4-170. He should also be given Dearness Allowance step as admissible under the rules.
Government is pleased to sanction the following amount for each dispensary for each year.
Rs.500 for medicines and equipments 600 x 18 10,800=00 Rs.100 for traveling allowance 100 x 18 1,800=00 Rs.300 for contingencies 300 x 18 5,400=00 Rs.180 for permanent travel 180 x 18 3,240=00 allowance Rs.500 for T.A. for Relicting Vaidya 500=00 21,740=00 The details of expenditure on account of pay and D.A. etc. to the Vaidyas, peons and clerks will be as under :
1. Vaidyas Pay D.A. Rs.15/- Total Annual Rs.100/- Rs.115/- Rs.1380/-
2. Peons Rs.65/- D.A. Rs.15/- Total Rs.80/- Annual Rs.980/-
3. Clerks Rs.100/- D.A. Rs.15/- H.R. Rs.47/- Rs.1664/-
Rs.138 x 19 Vaidyas Rs.26,220=00
Rs.980 x 118 Peons Rs.17,260=00
Rs.1464 x 1 Clerk Rs. 1,464=00
---------------------
Rs.44,944=00
(A) Rs.21,740=00
(B) Rs.44,944=00
--------------------------
Rs.66,984=00
--------------------------
The actual expenditure on account of pay, DA to the Staff, H.R. Medicine, equipment T.A., P.T.A., Contingencies relieving Vaidyas should first be net out of the income, derived from the Trust Fund and the remaining expenditure should be debited to the Budget Page 4 of 21 HC-NIC Page 4 of 21 Created On Sat Sep 24 00:45:31 IST 2016 C/SCA/6149/2014 CAV JUDGMENT Head "29-Medical Ayurvedic".
The writ-applicants, after completing the education, were issued the certificate. One such certificate reads as under :
"Shri Bhavendra Haribhai Parmar having completed the prescribed courses of study and training in Theory and Practice of Ayurvedic and Allopathic Systems of medicine, for three years at Ayurvedic Medical School, Bhavnagar, and thereafter having fully passed the final year examination, we do hereby certify that he is qualified to practise in Medicine and Surgery, for which he is being granted this Certificate.
Bhavnagar, this twenty sixth day of January Nineteen hundred and fifty one."
On 9th June 1981, the State Government passed the following resolution :
"The question of taking over the administration of 18 dispensaries of Krushna Kumar Trust Fund in Bhavnagar by the Government was under consideration of the Government for a long time. After going through consideration, in order that the administration of the above dispensaries run smoothly, the patients get satisfactory treatment and the difficulties of the staff of the dispensaries of the trust are removed, it is hereby resolved to take over by the Government, the administration of the dispensaries of the Krushna Kumar Trust Fund.
In order to meet the expenditure of the taking over the dispensaries of the Krushna Kumar Trust Fund, the Finance Department has by its letter No.CFF/1081/K permitted to draw from contingency fund on emergency basis.
This expenditure shall be debited under the Budget Head Grant 4 - 200/Medical/Other Systems of Medicines-K- Ayurvedic Medical Relief/dispensaries.Page 5 of 21
HC-NIC Page 5 of 21 Created On Sat Sep 24 00:45:31 IST 2016 C/SCA/6149/2014 CAV JUDGMENT Provisions and conditions for the property and staff of dispensaries of Krushna Kumar Trust Fund shall be published after preparing separately.
This resolution is issued with the concurrence of the Finance Department on its file of even number dated 19.5.1981."
On 6th October 1983, the State Government passed the following resolution, which reads as under :
"The administration of 18 (eighteen) dispensaries working under Krushna Kumar Trust Fund, of Bhavnagar district was undertaken by the government of Gujarat from dtd. 09.06.1981 in this regard, the question of finalisation of service condition of the trust staff was under consideration. After due consideration, the service conditions of employee of concerned trust dispensaries are as under :
1. These dispensaries have been undertaken by the State Government from date 09.06.1981 therefore, the employee of these dispensaries are deemed to be the employees of the State Government from date 09.06.1981. The separate order of appointment of these staff shall be issued by the Directorate, Indian System of Medicine and Homoeopathy, Gandhinagar from the date of absorption. So, the service rendered by these staff before dated 09.06.1981 under the concern trust shall not be considered as a continuous service with the government service for the purpose of pension, fixation, increments and leaves or for any purpose under State Government. Since, these Vaidhkiya Adhikaris-Medical Officers of dispensaries have become the employees of State Government from the date 09.06.1981, their pay should be decided as per qualified and unqualified officer of state government as per their qualification & registration.
2. Among these employees, the deduction of provident fund which has been made from the pay of these employees shall be stopped from the date 09.06.1981. The amount deducted before date 09.06.1981 shall be refunded to the concerned employees.
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3. From 09.06.1981, the employees of trust have become the employees of state Government, from that date, the benefits of leaves, GPF & pension shall be given to these employees as decided by the state government from time to time. Thus, these employees shall become members of General Provident Fund, scheme of the state government from the date 09.06.1981.
4. Since, the employees of the trust have been undertaken by the State Government, the service rendered by the employees under the Trust shall be deemed to be ended from the date 09.06.1981. They shall be deemed as a newly appointed employee of the state government from 09.06.1981, due to which if any question of overage arises under such circumstances age relaxation will be given to the concerned employees.
5. These employees of the Trust have become the employees of the state government from date 09.06.1981 and that date shall be their date of new appointment under the state government. Therefore, their name in the seniority list will be counted as per their date of appointment in government. Service rendered by the employees under the trust shall not be considered for the seniority list of the department.
6. The securities of trust dispensaries which are under the control of Treasure, Charitable and account are under the control of state government from the date 09.06.1981. After this date whatever the income from his securities shall be considered as a government income.
7. The 18 (eighteen) dispensaries including accommodation facilities of the trust deemed to be the assets of the state government from the date of 09.06.1981. Hence, these assets shall be put under the control of R&B department. Repairing & maintenance of these assets shall be done by the R&B department.
8. From the date of 09.06.1981 the 18 (eighteen) dispensaries of the trust has become the dispensaries of the state government. As per the GR dated 09.06.1981 the amendments shall be deemed to be made in the Health and Industrial Dept. resolution no.AUD/1562/1077/Q dated 15.09.1964. In addition to Page 7 of 21 HC-NIC Page 7 of 21 Created On Sat Sep 24 00:45:31 IST 2016 C/SCA/6149/2014 CAV JUDGMENT this, if any query arises regarding to the assets of trust and services conditions of the employees of the trust than government order shall be taken.
This resolution is issued on the even number file by the consent obtained in not department of Finance and GAD, dtd. 18.01.1982 and dtd. 09.05.1983 respectively.
In the name and by the order of Governor of Gujarat."
Thus, by the aforenoted resolution, it was made clear that the writ-applicants would be considered as employees of the State Government from 9th June 1981. They were made the members of the General Provident Fund Scheme of the State Government from 9th June 1981. It was also declared that the eighteen dispensaries of the Trust became the dispensaries of the State Government with effect from 9th June 1981.
It appears that the writ-applicants in the past had preferred the Special Civil Application No.3404 of 1983 with the following prayers :
"...To issue a writ of mandamus, certiorari or any other appropriate writ, direction or order:
(a) quashing and setting aside the letter of the State Government dated 14.2.69 at annexure 'I' and directing the respondent-State and authorities to extend to the petitioners the pay scales of qualified Vaidyas pursuant to Sarela and Desai Pay Commissions recommendations and to pay to them the difference in salary with retrospective effect from the due dates;
(b) directing the respondent-authorities to extend to the petitioners the benefits of the above said pay commissions recommendations and to fix the salaries of the petitioners on the basis of the pay scales of qualified Vaidyas under the above said recommendations and to fix their future salaries on that basis and to pay to them arrears in difference of salary on that basis;Page 8 of 21
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(c) directing the respondent-authorities to treat the petitioners as qualified Vaidyas for the purpose of pay scales and for all other service purpose and further directing the respondent authorities to grant to the petitioners all other benefits;
(d) directing the respondent-authorities to enter the Licentiate in Ayurvedic Medicine course of the Ayurvedic Medical School, Bhavnagar in Part-I of the Schedule annexed to the Medical Practitioners' Act, 1963;
(e) directing the respondent-Board to enter the names of the petitioners in Part-I of the register kept under the Gujarat Medical Practitioners' Act.
(f) directing the respondents to treat the petitioners as qualified Vaidyas for all purposes and to extend to them all consequential benefits with retrospective effect;"
The writ-application came to be rejected vide order dated 16th December 1996 as under :
"The petitioners were appointed as Vaidyas in the Government service. The Sarela Pay Commission, recommendations of which were given effect by the Government from 1.4.65, two pay scales have been prescribed for Vaidyas, i.e. one for qualified and another for unqualified Vaidyas. The petitioners were treated to be unqualified Vaidyas and accordingly a revised pay scale as prescribed for unqualified Vaidyas has been given to them. The Government has made it clear under its letter dated 14.2.69 that the petitioners are unqualified Vaidyas and as such they are not entitled for the revised pay scale as recommended by the Sarela Pay Commission for qualified Vaidyas with effect from 1.4.65.
2. This writ petition is filed after 14 years of the date of the said order. The delay caused in filing of this writ petition has not been explained by the petitioners. Be that as it may. The learned counsel for the respondents raised a preliminary objection that this petition deserves to be dismissed only on the ground of Page 9 of 21 HC-NIC Page 9 of 21 Created On Sat Sep 24 00:45:31 IST 2016 C/SCA/6149/2014 CAV JUDGMENT suppression of material facts by the petitioners. The learned counsel for the respondents has given out that all the petitioners filed a Civil suit in respect of same relief, i.e. to declare that they are qualified Vaidyas and consequently entitled for the pay scale fixed for the qualified Vaidyas. That Civil Suit has been decreed by the Civil Judge, S.D., Bhavnagar. Thereafter, the respondents filed Regular Appeal No.2 of 1978 against the said judgment and decree of the Court below. This appeal was decided by the Extra Assistant Judge, Bhavnagar who allowed the appeal and set aside the judgment and decree of the trial Court. The petitioners herein filed Second Appeal No.87 of 1982 before this court which is pending.
The counsel for the respondents contended that this fact has been suppressed by the petitioners. They have suppressed this fact and were able to get order of issue of Rule in the matter.
3. I have given my thoughtful considerations to the submissions made by the learned counsel for the respondents. The learned counsel for the petitioners does not dispute the aforesaid facts. I have called the file of Second Appeal No.87 of 1982 and I found therefrom that all petitioners are the party in the the Second Appeal. I have gone through the contents of this Special Civil Application. I found therefrom that the petitioners have not disclosed this fact in this Special Civil Application. The learned counsel for the petitioners confronted with this situation has tried to give out explanation that this fact has not been concealed and reference has been made to para-10 of the Special Civil Application. Para-10 of this petition reads as under:
"10. The petitioners submit that the courses of study which they have undergone is qualitatively far superior to the other courses recognised by the State Government and included in the schedule annexed to the Gujarat Practitioners Act, 1963. Further, even the experts of Ayurvedic and Allopathic Medicine have authentically opined that the course of study imparted at Ayurvedic Medical School, Bhavnagar is an integrated course in Ayurvedic and Allopathic medicine with its Page 10 of 21 HC-NIC Page 10 of 21 Created On Sat Sep 24 00:45:31 IST 2016 C/SCA/6149/2014 CAV JUDGMENT comprehensive course which will enable the persons graduating from the School to practice in Ayurvedic and Allopathic Medicine independently all over the Country. Shri Chandrakant P.Shukla, Ex-Director of Ayurved in Gujarat State has also deposed in his evidence before the Hon'ble Civil Court that the course conducted at Ayurvedic Medical School, Bhavnagar was an integrated course and that the persons who have undergone this course ought to be treated as qualified Vaidyas. The Hon'ble Judge of the Civil Court has also observed in his judgment that Shri Chandrakant P. Shukla had opined to this effect. The observations made by the Hon'ble Civil Court in this respect are as under:
"Shri Shukla Ex.67 has stated in his evidence that one School was started for training of Vaidyas in time of the then Bhavnagar State, and that when he was the Chairman of Ayurvedic Faculty in the year 1965, he saw the Syllabus of the said School of Bhavnagar and found that it was for integrated course of ayurved and Allopathy. Shri Shukla opined in his evidence that the persons who have been trained in Bhavnagar Ayurvedic Medical School should be considered as qualified Vaidyas."
Thus the experts on the subject have also recognised that the course of Licentiate in Ayurvedic Medical imparted at Ayurvedic Medical School, Bhavnagar was a Course which was in integrated and comprehensive course of high content. The course was treated as equivalent to the other Licentiate in other Medical courses imparted at other Schools and colleges, like Licentiate in Ayurvedic Medicine at Patan. The course was treated as of the said level or even a higher level as compared to the other courses imparted at other schools and colleges. The petitioners, therefore, submit that since the course was of the same or a higher level as compared to the other courses imparted at other schools and colleges which were recognised by the Ex-Saurashtra state and thereafter by the State of Page 11 of 21 HC-NIC Page 11 of 21 Created On Sat Sep 24 00:45:31 IST 2016 C/SCA/6149/2014 CAV JUDGMENT Gujarat, the petitioners who have undergone the course at Ayurvedic Medical School, Bhavnagar ought to be treated as qualified Vaidyas."
It is difficult to accept the explanation given by the petitioners. The petitioners have not stated anywhere in the writ petition that they have filed a Civil Suit in the matter. Though this Special Civil Application has been filed after decision in the Civil Suit by the Appellate Court and after filing of the Second Appeal before this Court, both, but they have not disclosed this fact. It is difficult to accept that from the averments made in para- 10 of Special Civil Application it can be presumed and assumed and even inferred that the petitioners have disclosed the aforesaid facts.
4. The law is well settled that the petitioners are not entitled as a matter of course, to a writ of Certiorari or Mandamus and that they must be perfectly frank and open to the Court. They are under obligation before this Court to make full and correct disclosure of all the material facts in a candid manner and if they do not do so and suppressed any material fact and thereby obtained a Rule-nisi or notice or stay order the Court will not grant any relief to them on merits. In the case of Asistic Engineering Co. vs. Achhru Ram, reported in AIR 1951 ALL. 746, the Full Bench of the Allahabad High Court, while dealing with the obtaining of an ad-interim ex-parte stay order by suppressing the facts, has held that a person obtaining an ex-parte order or a Rule nisi by means of a petition for exercise of the extra ordinary powers under Article 226 of the Constitution must come with clean hands, must not suppress any relevant fact from the Court, must refrain from making misleading statements and from giving incorrect information to the Court. Court should insist that person invoking the extra ordinary jurisdiction of the High Court should not attempt in any manner to misuse a valuable right by obtaining ex- parte orders by suppression, misrepresentation or mis- statement of facts. It has further been said in this case that if the facts are stated in such a way as to mislead and deceive the Court, in order to protect itself and to prevent and abuse of its process, to discharge the interim order and to refuse to proceed further with the examination of the merits of the application. In the Page 12 of 21 HC-NIC Page 12 of 21 Created On Sat Sep 24 00:45:31 IST 2016 C/SCA/6149/2014 CAV JUDGMENT case of K.K. Anathan Pillai v. The State of Kerala, reported in AIR 1968 KERALA 234, it has been laid down that a petitioner resorting to suppressio veri and suggestio falsi obtains exparte stay order should not be given any relief in a writ petition under Article 226 of the Constitution. It has been said in this case that the petitioner's conduct is a relevant factor in the matter of invoking an extra ordinary jurisdiction. It has further been held that whatever sympathy one might feel on the merits, where the petitioner is guilty of suppressio veri and suggestio falsi, he disentitled himself to invoke extraordinary jurisdiction of this Court. In the case of Nand Lal v. State of Jammu and Kashmir, reported in AIR 1960 J.K. 19 it has been held that where the petitioners under Article 226 of Constitution have not stated the relevant facts correctly and candidly either in their petition or in the affidavit in support of their petition, this is by itself sufficient to entail an outright dismissal of the writ petition without going into its merits. It has further been held in this case that even if the petitioners have a good case on merits the Court will be entitled to decline to go into the merits and dismiss their petition because the conduct of the petitioners has been such as to mislead the Court in exparte interim order. In this case the leading authority of Rex v. Kensinghton Income Tax Commissioner, reported in 1917(1) K.B. 486 has been referred and relevant extract from the observations of Cozens Hardy M.R. quoted as follows:
"On an exparte application uberrima fides is required, and unless that can be established if there is anything like deception practised on the Court, the Court ought not to go into the merits of the case, but simply say we will not listen to your application because of what you have done."
In that very case Lord Scrution L.J. put the matter very clearly clearly by saying as under:
"It has been for many years the rule of the Court and one which it is of the greatest importance to maintain, that when any applicant comes to the Court to obtain relief on an exparte statement he should make a full and fair disclosure of all the material facts not law.... The applicant must state Page 13 of 21 HC-NIC Page 13 of 21 Created On Sat Sep 24 00:45:31 IST 2016 C/SCA/6149/2014 CAV JUDGMENT fully and fairly the facts and the penalty by which the Court enforces that obligation is that if it finds out that the facts have not been fully and fairly stated to it the court will set aside any which it has taken on the faith of the imperfect statement."
In this case although the Court had found that the Commissioner had no jurisdiction to make the assessment yet it said:
"We refuse the writ of Prohibition without going into the merits of the case on the ground of the conduct of the applicant in bringing the case before us."
This authority has also been followed by the Full Bench of Allahabad High Court in the case of Asiatic Engineering Company (supra). Lord Haterlay in R. v. Church Wardens of All Saints Wigan, reported in 1876(1) A.C. 611 has stated:
"Upon a prerogative writ there may arise many matters of discretion which may induce the judges to withheld the grant of it matters connected with delay or possibly with the conduct of the parties."
Reference may also have to the case of Reg v. Gerland, 1870 (39) LJ BS6 in which it was held:
"Where a process is ex debite justice the Court would refuse to exercise its discretion in favour of the applicant where the application is found to be wanting in bonafide."
In the case of T.Subramania Chettiar v. District Supply Officer, reported in AIR 1995 MADRAS 54 the Court held:
"Any way, it is clear that the petitioners have suppressed in the supporting affidavit this particular fact, namely, that the payment of renewal fee and the application for registration certificate were out of time. In all fairness, the petitioners in their supporting affidavit should have mentioned about this material fact, but deliberately have suppressed the above said material fact, on this ground also, this writ Page 14 of 21 HC-NIC Page 14 of 21 Created On Sat Sep 24 00:45:31 IST 2016 C/SCA/6149/2014 CAV JUDGMENT petition is liable to be dismissed."
Again the Madras High Court, in the case of Kamashi v. A. Radhakrishnan and Others, reported in AIR 1995 MADRAS 60 observed as follows:
"When the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India is invoked, the person who does so must take the Court into confidence and place all the facts before it without any reservation. If the Court finds that the petitioner has not stated the full truth in the relevant matters, it shall refuse to exercise its discretion in favour of the petitioner."
The Apex Court in the case of Ramjas Foundation v. Union of India, reported in 1993 SUPP(2) SCC 20, in para No.7 observed:
"It is well settled that a person invoking an equitable extraordinary jurisdiction of the Court under Article 226 of the Constitution is required to come with clean hands and should not conceal material facts. The objection regarding not affording an opportunity of personal hearing in respect of objections filed under Section 5A of the Act was one of the main planks of the grounds raised in the writ petition as well as in the special leave petition filed before this Court and ought we know if such ground had not been taken this Court would have entertained this appeal or not."
5. A reference may have to the two other decisions of Apex Court in the case of Rama Narang v.Ramesh Narang & Ors., reported in JT 1995(1) SC 515, and in the case of Agricultural And Processed Food Products v. Oswal Agro Furane & Ors., reported in (1996)4 SCC 297. A reference may further have to other two decisions of this Court in the case of Ghelabhai Popatbhai Tarpara & Ors. v. Agricultural Produce Market Committee, Kelavad & Anr., reported in 1988(2) GLR 1425, and in the case of Narendra Bhimabhai Patel & Ors. v. State of Gujarat & Anr., reported in 1984(2) GLR 1403.
6. The fact of filing of the suit was very material and relevant to the controversy which has been raised by the Page 15 of 21 HC-NIC Page 15 of 21 Created On Sat Sep 24 00:45:31 IST 2016 C/SCA/6149/2014 CAV JUDGMENT petitioners in this Special Civil Application. Not only this that it was relevant, but for the same relief, the petitioners have approached to the Civil Court and have lost there and the matter is still sub-judice before this Court. Non disclosure of this fact is certainly very serious concealment or suppression of material fact. The petitioners, in view of this fact, have not come up before this Court with clean hands. By suppressing this material and important fact, the petitioners succeeded in getting the order of issue of Rule nisi and I find sufficient merits in the contention of the learned counsel for the respondents that only on this ground, the petition deserves to be dismissed. Suppression of fact of previous litigation on the same subject is very material and relevant and this conduct of the petitioners disentitles them from getting any consideration of the Special Civil Application by this Court on merits. Apart from this, the petitioners cannot be permitted to avail of two parallel remedies simultaneously. The petitioners have chosen to go to the form of civil suit and they should have stick to that form and in fact they still continue with those proceedings as against the decision of the Appellate Court, allowing the appeal of the respondents herein, they preferred Second Appeal which is pending before this Court on the date on which this Special Civil Application has been filed.
7. Taking into consideration the totality of the facts of the case, I am satisfied that this writ petition deserves dismissal only on the ground of suppression of material fact by the petitioners. In the result, this Special Civil Application fails and the same is dismissed. Rule discharged. The petitioners are Vaidyas in Government service and they are sufficiently senior officers of the Government. They cannot be said to be innocent or illiterate or an ordinary village litigant. This fact of filing of the civil suit on the subject concerned has been deliberately concealed from Court. In view of this fact, exemplary costs are to be awarded to the respondents. Each petitioner is directed to pay Rs.1,000/- by way of costs of this Special Civil Application. This amount has to be paid by the petitioners to the Secretary, Panchayat Health & Family Welfare Department, Government of Gujarat. The respondent No.1 is directed to deposit 50 % of this amount received by it in the office of Gujarat State Legal Aid & Advisory Board, High Page 16 of 21 HC-NIC Page 16 of 21 Created On Sat Sep 24 00:45:31 IST 2016 C/SCA/6149/2014 CAV JUDGMENT Court Building, Navrangpura, Ahmedabad and the remaining 50% in any of the funds maintained by the Chief Minister for famine or other calamities. The respondent No.1 is further directed to file a copy of receipt of the aforesaid amount on the file of this case. The petitioners are directed to pay the amount of this costs within one month from the date of receipt of certified copy of this Court."
Being dissatisfied with the judgment and order passed by the learned Single Judge, the writ-applicants preferred the Letters Patent Appeal No.1377 of 1997. The Letters Patent Appeal came to be disposed of vide judgment and order dated 1st April 2014, which reads as under :
"1. We have heard learned advocates appearing for the parties.
2. This intra-court Letters Patent Appeal has been filed challenging the order dated 16.12.1996 passed by the learned Single Judge in Special Civil Application No. 3404 of 1983 whereby the learned Single Judge dismissed the writ petition. The appellant had filed the writ petition before the learned Single Judge challenging the letter dated 14.07.1969 and seeking direction to the State to extend the pay scales of qualified Vaidyas pursuant to Sarla and Desai Pay Commission recommendations.
3. Mr. Gautam Joshi, learned advocate appearing for the appellant submitted that the learned Single Judge dismissed the writ petition on the ground of suppression of material facts and not on merits. He submitted that the appellants had filed Civil Suit only for a declaratory relief praying for a declaration that they were qualified Vaidyas and that they were also entitled to have Licence of Ayurvedic Medicine certificate and therefore there was no question of suppressing any facts. He submitted that not hearing the case on merits amounts to violation of principles of natural justice and therefore it is very important that the writ petition may be heard on merits.
4. As a result of hearing and perusal of records of the Page 17 of 21 HC-NIC Page 17 of 21 Created On Sat Sep 24 00:45:31 IST 2016 C/SCA/6149/2014 CAV JUDGMENT case, more particularly, the impugned judgement and order and the communication dated 28.02.2014 addressed by the State Government which is produced by learned AGP and taken on record, it is borne out that the writ petition was dismissed not on merits but on the ground that the appellants had suppressed certain material facts from the court. In that view of the matter, the appropriate remedy for the appellants is to file fresh independent petition disclosing the true and correct facts so that the issue can be heard and decided on merits. The learned Single Judge deciding the fresh petition shall not be influenced by the impugned judgement and order as the same is not on merits of the matter. It shall also be open to the appellants to challenge the communication dated 28.02.2014 before the appropriate forum.
5. With the above observations and directions, appeal stands disposed of. No costs."
Pursuant to the observations made by the Division Bench referred to above, the present writ-application has been filed.
Mr.Joshi, the learned counsel appearing for the writ- applicants, vehemently submitted that the action on the part of the State Government in treating the service of the writ- applicants from 1951 to 1981 as non-pensionable is absolutely arbitrary and unconstitutional. Mr.Joshi submits that the Bhavnagar Medical College and the medical centres were established by the erstwhile Bhavnagar State. The old Bhavnagar State got merged into the State of Saurashtra, and in turn, in the State of Gujarat. According to Mr.Joshi, the College and the medical centres were the part and parcel of the State for which an amount of Rs.15 lac was allocated by the State of Bhavnagar from its consolidated funds. He pointed out that after the passing from the Medical College, the students were required to render their services at the medical Page 18 of 21 HC-NIC Page 18 of 21 Created On Sat Sep 24 00:45:31 IST 2016 C/SCA/6149/2014 CAV JUDGMENT centres compulsorily. All the writ-applicants were appointed at the different medical centres. Mr.Joshi pointed out that all other qualified Vaidyas were given the requisite pay-scales and the pensionary benefits but, unfortunately, his clients continued to serve in the medical centres managed by the Trust and were paid their salary and other allowances from the consolidated funds of the State Government. This is evident from the Government Resolution dated 15th September 1964. Mr.Joshi, placing much reliance on the Government Resolution dated 15th September 1964, submitted that the services rendered at the medical centres should have been treated as pensionable. He submits that after the passing of the Government Resolution dated 6th October 1983, the writ- applicants retired from the service without putting in minimum qualifying service for the purpose of pension. Their service of almost more than 30 years went in vain.
In such circumstances referred to above, Mr.Joshi prays that the reliefs as prayed for be granted.
On the other hand, this writ-application has been vehemently opposed by the learned AGP appearing for the State Government. He would submit that no case is made out for grant of any relief as prayed for in this writ-application. However, as a special case, although the writ-applicants have put in less than 10 years of service, yet they have been extended the benefit of the minimum pension vide resolution dated 9th April 1991. He prays that there being no merit in this writ-application, the same be rejected.
Having heard the learned counsel appearing for the Page 19 of 21 HC-NIC Page 19 of 21 Created On Sat Sep 24 00:45:31 IST 2016 C/SCA/6149/2014 CAV JUDGMENT parties and having considered the materials on record, the only question that falls for my consideration is, whether the writ-applicants are entitled to the reliefs as prayed for in this writ-application.
The issue raised in this writ-application is more in the nature of a policy decision taken by the State Government at the relevant point of time. The State Government thought fit to take over the administration of the eighteen dispensaries of the 'Sir Krishnakumarsinhji Trust'. Later on, by a resolution dated 6th October 1983, the service conditions of the employees of the Trust came to be finalized. The State Government made it very clear that the employees of the Trust would be treated as the employees of the State Government with effect from 9th June 1981, i.e. the date on which the eighteen dispensaries were taken over by the State Government from the Trust. The employees were made the members of the General Provident Fund Scheme of the State Government with effect from 9th June 1981. The Government also made it clear that the service rendered by the employees under the Trust shall be deemed to have come to an end with effect from 9th June 1981 and they shall be deemed to be newly appointed employees of the State Government.
I find it extremely difficult to take the view that the State Government should consider the service rendered by the writ- applicants between 1951 and 1981 as regular Government service so as to make it pensionable. I am saying so because there is no legal basis for me to take such a view except the fact that the Trust was constituted when the old State of Bhavnagar was in existence.
Page 20 of 21HC-NIC Page 20 of 21 Created On Sat Sep 24 00:45:31 IST 2016 C/SCA/6149/2014 CAV JUDGMENT Let me, for the time being, proceed on the footing that the medical school, medical college and the medical centres were part of the then State of Bhavnagar and could be said to be the instrumentality of a State. The State took a policy decision to take over all the eighteen dispensaries in the year 1981. It is only after taking over all the eighteen dispensaries that the service conditions of the writ-applicants were finalised. In such circumstances, it would not be appropriate for this Court to issue a mandamus, more particularly, in cases of policy decision.
For the foregoing reasons, this writ-application fails and is hereby rejected. Rule discharged.
(J.B.PARDIWALA, J.) MOIN Page 21 of 21 HC-NIC Page 21 of 21 Created On Sat Sep 24 00:45:31 IST 2016