Gujarat High Court
Patel Kaushikkumar Madhavlal vs State Of Gujarat Thru The Secretary on 30 August, 2022
Author: Biren Vaishnav
Bench: Biren Vaishnav
C/SCA/3921/2019 CAV JUDGMENT DATED: 30/08/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 3921 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 5609 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 10880 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 10879 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 10878 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 4328 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 4336 of 2019
==========================================================
PATEL KAUSHIKKUMAR MADHAVLAL Versus STATE OF GUJARAT THRU THE SECRETARY ========================================================== Appearance:
MR.SHAILN MEHTA, LD. SENIOR ADVOCATE with MS SHIKHA PANCHAL with MS.ADITI RAOL, ADVOCATE for the Petitioner(s) No. 1,2,3 in SCA NOS. 10878, 10879 and 10880 of 2018 MR.NIKUL SONI, ADVOCATE for the Petitioner(s) in SCA NOS.5609 AND 3921 OF 2019 MR.SHAKTI JADEJA, ADVOCATE for the Petitioner(s) in SCA NOS.4336 AND 4328 OF 2019 MR.UTKARSH SHARMA, AGP for the Respondent(s) No. 1,2,3,4,5 in all petitions ========================================================== CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV Date: 30/08/ 2022 COMMON CAV JUDGMENT
1. All these petitions pertain to employees working on a contract basis / ad-hoc basis on the posts of Junior Pharmacists, Lab Assistants / X-Ray Technicians etc. Page 1 of 39 Downloaded on : Tue Aug 30 21:07:57 IST 2022 C/SCA/3921/2019 CAV JUDGMENT DATED: 30/08/2022 Commonly, they have prayed for regularization of their services with the State.
2. Briefly stated, the facts of each petition are as under.
3. Special Civil Application No.3921 OF 2019 is by petitioners who are working as Junior Pharmacists with the respondents. They were appointed on ad-hoc basis for a period of 11 months or till the regularly selected candidates through the Gujarat Subordinate Services Selection Board are available. On and from their appointments in the year 2004, since they apprehended termination on the expiry of 11 months, they filed Special Civil Application No.15268 of 2004 and allied petitions, wherein, this Court on 26.11.2004, granted interim relief not to terminate their services till regularly selected candidates through the Gujarat Subordinate Services Selection Board are available. These petitions were then finally disposed of by an order dated 03.05.2007, by Page 2 of 39 Downloaded on : Tue Aug 30 21:07:57 IST 2022 C/SCA/3921/2019 CAV JUDGMENT DATED: 30/08/2022 which, it was directed that the case of the petitioners be considered and they be continued in service in light of the statement made by the learned AGP that they will be continued in service till their cases are considered by the State Authorities.
4. In certain Special Civil Applications filed by the X-
ray Technicians, being Special Civil Application Nos.12349 of 2000 and allied petitions this Court by an oral common judgement dated 30.06.2016, disposed of the petitions with a direction to the State Government that since the petitioners therein had continued for more than 16 years on ad-hoc terms, the State should consider absorbing them in service. The State went in appeal and the order of the learned Single Judge was modified to the extent that the cases be considered for regularization in accordance with law.
5. Mr.Nikul Soni learned counsel for the petitioner would submit that the petitioners are working as Junior Page 3 of 39 Downloaded on : Tue Aug 30 21:07:57 IST 2022 C/SCA/3921/2019 CAV JUDGMENT DATED: 30/08/2022 Pharmacists since a long period. These appointments were made pursuant to a Government Resolution dated 13.03.2001 whereby permission was granted for filling up 433 regular posts after following the due process of recruitment on ad-hoc basis. The petitioners were selected by a newly constituted selection committee, pursuant to an advertisement issued in a daily newspaper. The posts advertised included posts of Junior Pharmacists, Lab Assistants / X-Ray Technicians, Operation Theater Assistants etc. Reliance was placed on the observations of the order of the learned Single Judge which was ultimately carried in appeal where a direction was issued that the cases of these petitioners be considered for regularization. It is the case of the petitioners that by the impugned order dated 19.06.2018, in light of the decision taken in the case X-Ray Technicians, the case of the petitioners for regularization has been rejected. Hence, the petition.
6. Special Civil Application No.5609 of 2019 is by the Page 4 of 39 Downloaded on : Tue Aug 30 21:07:57 IST 2022 C/SCA/3921/2019 CAV JUDGMENT DATED: 30/08/2022 petitioner initially praying for regularization of her services. It is her case that she was appointed on the post of Laboratory Assistant on the same terms and condition as the petitioners of Special Civil Application Nos.3921 of 2019. The additional prayer in this petition is to quash and set aside the order of termination dated 12.03.2019, by which, the services of the petitioner were terminated on the ground that her appointment was on ad-hoc basis. Mr.Soni would submit that the order of termination clearly demonstrates the motive of the respondents not to regularize their services and the order therefore is in a camouflage or depriving the petitioners of regularization.
7. Special Civil Application Nos.10878, 10879 and 10880 of 2018 are filed by the X-ray Technicians who too were appointed on similar terms and conditions on an ad-
hoc basis for a fixed period in a pay scale fixed and the tenure of appointment fixed till a regularly selected candidates are available.
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8. Mr.Shalin Mehta learned Senior Advocate appearing with Ms.Shikha Panchal learned advocate for the petitioners in these petitions would submit that at the relevant time the candidates who had undergone successful examination and training were given appointment. Some of the candidates who were successful in the years 1991 and 1992 were given appointment to the posts of X-ray technicians. However, the petitioners were left out. Pursuant to an advertisement of 21.11.2000 inviting applications for the post of Radiography Technician, the petitioners were appointed. The petitioner filed Special Civil Application No.12349 of 2000 and allied matters praying for a direction to declare that the non-grant of appointment as X-ray technicians in the pay scale of Rs.5000-8000/- to the petitioners is illegal and to issue a writ of mandamus or any other appropriate writ, direction or order and joining upon the respondents to give appointment to the petitioners as X-ray technicians. The Court considering the facts, disposed of the earlier petitions. On a Letters Page 6 of 39 Downloaded on : Tue Aug 30 21:07:57 IST 2022 C/SCA/3921/2019 CAV JUDGMENT DATED: 30/08/2022 Patent Appeal being filed, the order was modified to consider their case for regularization and by the impugned order dated 19.06.2018, it is the case of the State that the petitioners were given an opportunity to accept appointment by orders dated 30.12.2006 which they did not accept and their appointments not being regular but on an ad-hoc basis, their request for regularization has been rejected.
9. Special Civil Application Nos.4336 and 4328 of 2019 have been filed by candidates working on an ad-hoc basis.
In Special Civil Application No.4336 of 2019, the petitioners are working as Laboratory Technicians, Artists and Laboratory Assistants Class-III respectively.
They too challenged the decision of the respondents dated 31.01.2019, by which, the request for regularization and for benefits has been rejected. It is rejected on the same grounds as is the case of the petitioners of Special Civil Application Nos.10880 of 2018 on the ground that their appointments are on ad-hoc Page 7 of 39 Downloaded on : Tue Aug 30 21:07:57 IST 2022 C/SCA/3921/2019 CAV JUDGMENT DATED: 30/08/2022 basis for a fixed period and therefore in light of the reasonings given in the order of 19.06.2018 which is impugned in the other petitions their services need not be regularized.
10. Mr.Shakti Jadeja learned counsel for the petitioners would submit that even the petitioners were appointed on account of the State granting permission to fill up 433 regular posts on an adhoc basis with immediate effect as a need arose due to earthquake. They were appointed by regular selection committee albeit for a period of 11 months. In case of some of the petitioners viz. petitioner no.4 and petitioner no.5 of Special Civil Application No.4336 of 2019, Special Civil Application No.433 of 2013 and Special Civil Application No.435 of 2013, requesting the Court for granting them priority for selection on the basis of experience is admitted and pending.
11. Mr.Jadeja too would rely on the decisions of this Page 8 of 39 Downloaded on : Tue Aug 30 21:07:57 IST 2022 C/SCA/3921/2019 CAV JUDGMENT DATED: 30/08/2022 Court in Special Civil Application No.12945 of 2015 by which, the State was directed to consider recommending their cases for regularization on the ground that they had worked for over a period of 16 years. Mr.Jadeja would submit that though the petitioners were not appointed by the Gujarat Subordinate Services Selection Board, the manner and method of selection of appointment were identical to that which is adopted by the Board. It is an admitted fact that the petitioners are holding prescribed qualifications to hold the post on which they are appointed. The process undertaken for appointment is the same i.e. by giving advertisement and orally. Since the advertisement was not given by the Board-
Commissioner their case for regularization should not be rejected.
12. As far as Special Civil Application No.4328 of 2019 is concerned, it is a case where the petitioner is engaged as a driver.
13. Mr.Jadeja would submit that the name of the Page 9 of 39 Downloaded on : Tue Aug 30 21:07:57 IST 2022 C/SCA/3921/2019 CAV JUDGMENT DATED: 30/08/2022 petitioner was procured from the Employment Exchange and he was appointed after taking an interview. This appointment too, though for a period of 12 months on a consolidated pay and on an ad-hoc basis or till the regularly selected candidate is available by the Gujarat Subordinate Services Selection Board, this appointment cannot be termed as irregular. By the very impugned order dated 31.01.2019, the case of the petitioner for regularization of services has been rejected.
14. The additional ground pressed into service by the petitioners of Special Civil Application Nos.10878, 10879 and 10880 of 2018 is that in Special Civil Application No.14545 of 2003 filed by one of the petitioners Mahendra A. Patel, the Court had on 27.12.2004, granted them the benefit of being placed in the scale as that of one Anil Prajapati and the petitioner was placed on the regular pay scale of Rs.5000-8000/-. It was therefore reasonable for the petitioners not to accept their appointments vide order dated 30.12.2006 which offered Page 10 of 39 Downloaded on : Tue Aug 30 21:07:57 IST 2022 C/SCA/3921/2019 CAV JUDGMENT DATED: 30/08/2022 them fixed pay appointment of Rs.3500/- when by interim order of this Court they were placed in the regular pay scale of Rs.5000-8000/-.
15. Mr.Utkarsh Sharma learned AGP in all these petitions would rely on an affidavit in reply filed in Special Civil Application No.10880 of 2018. He would submit that administrative instructions were issued by the State for giving one year training course for laboratory and x-ray technicians. Pursuant to this training, the petitioners were appointed on execution of a bond. The petitioners were aware that their appointments are on an ad-hoc basis, temporary for a fixed period till regularly selected candidates from the Gujarat Services Subordinate Selection Board are available. They cannot claim any right to appointment. No reliance can be placed on the decision of a Co-ordinate Bench of this Court passed in Special Civil Application No. 12349 of 2000 and other matters because the same was carried in appeal by the State, where the Court directed the State to take an Page 11 of 39 Downloaded on : Tue Aug 30 21:07:57 IST 2022 C/SCA/3921/2019 CAV JUDGMENT DATED: 30/08/2022 appropriate decision in accordance with law. By the impugned order dated 19.06.2018 which is the foundation in other petitions too, the reading of the order clearly indicates that though the petitioners were in the year 2006 offered appointment, they declined the appointment and refused to take such appointments. The petitioners therfore cannot now pray for regularization once having refused to take appointment on a fixed term basis.
16. Mr.Sharma, learned AGP, would further submit that it is a well settled principle that merely because by interim orders the petitioners are continued in service in all these petitions, except in one in which there is an order of termination already dated 12.03.2019, their continuance would not create any equity in their favour.
True it is that the petitioners may claim that they possess the qualifications that are required for such appointments based on the recruitment rules which are placed on record separately by Mr.Sharma, learned AGP, admittedly their appointment is not through the Gujarat Subordinate Page 12 of 39 Downloaded on : Tue Aug 30 21:07:57 IST 2022 C/SCA/3921/2019 CAV JUDGMENT DATED: 30/08/2022 Services Selection Board, by virtue of an advertisement and ad-hoc services therefore their service cannot be claimed to be regularized. He would also rely on a further affidavit in reply filed by the Department of Medical Education & Research. He would submit that the State issued a Resolution dated 04.07.2011 with regard to the recruitment process which has to be followed by any department which wants to recruit any Class-III employees through direct recruitment. After the consultation of the Finance Department, the whole recruitment process is to be undertaken by the Gujarat Subordinate Service Selection Board. In case of the present petitioners, the State has forwarded a proposal to the Health & Family Welfare Department for the post of 1035 Para Medical Staff which includes 523 X-Ray Technicians. As far as X-ray Technician is concerned, an advertisement was issued on 18.06.2012 for the 23 posts that were sanctioned, the criteria laid down in the advertisement for the post of X-ray Technician was that they should be B.Sc. with Physics, English or Chemistry Page 13 of 39 Downloaded on : Tue Aug 30 21:07:57 IST 2022 C/SCA/3921/2019 CAV JUDGMENT DATED: 30/08/2022 and they should have one year experience in any other medical college. For these posts, the recruitment has to be undertaken by the Board. However, the State has taken a decision that since for the earlier recruitment pending in the year 2018, the present advertisement and the report cannot be considered and therefore, the recruitment is not to be undertaken.
17. Considering the submissions made by the learned counsels for the respective parties, since in all these petitions, it is the question of the Para Medical Staff engaged by the respondent-State on an adhoc basis, the following admitted facts need to be noticed:(i)The State on 13.03.2001, in light of the extraordinary circumstances as is evident from reading the Resolution dated 13.03.2001, undertook the exercise of engaging Para Medical Staff such as Laboratory Technicians, X-Ray Technicians etc. Reference is made to the natural calamity of extraordinary nature in the case then that the State had suffered a devastating earthquake which Page 14 of 39 Downloaded on : Tue Aug 30 21:07:57 IST 2022 C/SCA/3921/2019 CAV JUDGMENT DATED: 30/08/2022 resulted in several casualties and therefore required urgent need of para medical assistance. It was in light of these circumstances that 433 posts in accordance with the recruitment rules were permitted to be filled in on an ad-hoc basis for a period of one year. It is not in dispute that all these petitioners were engaged and appointed in terms of the appointment orders which clearly and specifically indicate that their appointment was on an ad-
hoc basis for a period of 11 months or till a regularly selected candidate of the Gujarat Subordinate Services Selection Board is available. The petitioners took their appointments with open eyes having accepted the fact that their appointments are short term appointments in accordance with the conditions therein i.e. of a tenure of 11 months or till regular selection.
18. By various interim orders passed in these petitions, in the earlier rounds, it appears that the petitioners have continued in service by virtue of their interim orders wherein the Court restrained the State from terminating Page 15 of 39 Downloaded on : Tue Aug 30 21:07:57 IST 2022 C/SCA/3921/2019 CAV JUDGMENT DATED: 30/08/2022 their services. The petitions were then disposed of with a direction to consider their case for regularization. In some cases, as is pointed out by Mr.Shalin Mehta, learned Senior Advocate, the Court also passed interim orders to grant them the pay-scale of Rs.5,000-8,000/-.
This order is pressed into service as a defense of not having accepted their appointments when offered on a fixed pay basis vide order of 30.12.2006.
19. It may be that the petitioners do possess the qualifications required for the appointments on the respective posts. That is a fact that even the recruitment rules which placed on record indicate that the minimum qualification of B.Sc. in either Physics, Chemistry etc., is possessed by the petitioners who had undergone training.
20. However, the fact does remain that the only direction that was given by the Division Bench of this Court in the Letters Patent Appeal which was a precursor that the State was required to consider the request of the Page 16 of 39 Downloaded on : Tue Aug 30 21:07:57 IST 2022 C/SCA/3921/2019 CAV JUDGMENT DATED: 30/08/2022 petitioners for regularization.
21. Since in all these matters the relevant order that is relied upon by the petitioners is that of SCA no. 12349 of 2000 and allied petitions, the order needs to be reproduced, which reads as under:
"1 Since the issues raised, in all the captioned writ applications, are more or less the same, those were heard analogously and are being disposed of by this common judgment and order.
2 For the sake of convenience, the Special Civil Application No.12349 of 2000 is treated as the lead matter.
3 The writ applicants before me are all serving as the X-Ray Technicians in the government hospitals.
4 The writ applicants have prayed for the following reliefs:
6(a) to allow this petition with costs and to declare that the non-grant of the appointment as X-Ray Technicians in the pay scale of Rs.5000 8000/- to the petitioners is illegal and to issue a writ of mandamus or any other appropriate writ, direction or order in the nature of writ, enjoining upon the respondents to give appointments to the petitioners as X-Ray Technicians in the pay scale of Rs. 5000 8000/-.
(b) to quash the advertisement at Annexure B and Ann. P and all proceedings subsequent thereto, unless and until the right of the petitioners to get appointments is finally adjudicated upon, Page 17 of 39 Downloaded on : Tue Aug 30 21:07:57 IST 2022 C/SCA/3921/2019 CAV JUDGMENT DATED: 30/08/2022
(c) to stay the operation and implementation of the advertisement at Annexure B and Ann. P and all proceedings subsequent thereto, pending admission, hearing and final disposal of the present petition.
And
(d) to grant such further and other reliefs, as may be deemed to be just and proper.
5 The facts of this case are in a very narrow st compass. For the period between 1 October 1991 th st & 30 October 1993, and between 1 October th 1992 and 30 October 1993, all the petitioners underwent the training course as the X-Ray Technician, which was held in September 1993. It is the case of the petitioners that all those candidates, who passed the examination held in September 1993, were offered appointments vide order dated th 18 July 1998. However, the petitioners herein were left out. In the year 2000, an advertisement was published in a Gujarat Daily for the posts of the Radiography Technician. It is the case of the petitioners that the issue of such advertisement was a departure made from the normal and consistent practice. To put in other words, it appears that all the petitioners were working as the X-Ray Technicians in the government hospitals on contractual basis, after executing a bond. After the bond period was completed, they continued to serve as adhoc employees. They were expecting that having completed the bond period of service, the Government would appoint them on the vacant sanctioned posts of the X-Ray Technicians. However, this did not happen.
Page 18 of 39 Downloaded on : Tue Aug 30 21:07:57 IST 2022C/SCA/3921/2019 CAV JUDGMENT DATED: 30/08/2022 6 As on date, they continue to serve with the government hospitals as the X-Ray Technician, but on the pay scale of Rs.5,000 8,000/-, which was prevailing in the year 2004. The said pay scale was also offered to the petitioners pursuant to the interim order passed by this Court dated th 27 December 2004, which reads as under:
This matter is pending since September, 2003 and even though learned AGP, Mr.Sood, has sought specific instruction whether any similarly situated employees like the petitioner are getting pay scale of Rs.5000-8000, he has not received any instruction in this behalf, therefore, he submitted that the Court may pass appropriate order, as it deem fit.
Considering the fact that this matter is pending since long and no instruction is given to the learned AGP, this matter is required to be admitted, hence, RULE. EXPEDITED.
Considering the averments made by the petitioner that similarly situated employees are getting pay scale of Rs.5,000-8,000/- as against that the petitioner is getting only Rs.3,500/- as fixed salary, by way of interim direction during the pendency of this petition, the respondents are directed to place the petitioner in the pay scale of Rs.5,000-8,000.
As the petitioner has pointed out that in similar type of cases, some employees have been given the benefit of the pay scale and in case of one, Mr.Anil Prajapati after giving such pay scale some increments are also released and since this averment is not controverted by the department, this interim direction is required to be given.Page 19 of 39 Downloaded on : Tue Aug 30 21:07:57 IST 2022
C/SCA/3921/2019 CAV JUDGMENT DATED: 30/08/2022 In case the department is able to distinguish the case of the petitioner from other employees, it will be open for the department to move appropriate application for vacating this interim relief.
Direct service is permitted.
7 Thus, the picture that emerges as on date is that the petitioners are serving as the X-Ray Technicians in the government hospitals, but the status, which is being understood, is that of adhoc employees in the pay scale of Rs.5,000 8,000/-. The petitioners, by now, have put in for more than approximately seventeen years.
8 The grievance of the petitioners is that till this date, they have not been paid anything towards increment. If they would have been treated as regular employees having completed the bonded service with the State Government, then they would have been receiving the pay scale of Rs.9,300 34,500/-.
9 Hence, three writ applications.
10 Mr. Jasani, the learned counsel appearing for the petitioners vehemently submitted that gross injustice has been done with his clients. According to him, his client should have been absorbed in service, no sooner the bonded period got over.
However, inadvertently, no orders were passed. He further pointed out that one Mr. Anil Prajapati, an identically situated X-Ray Technician came to be appointed on the regular basis, and he is being paid the regular pay scale as on date. He pointed out that Mr. Prajapati is even junior to the petitioners.
11 Mr. Jasani further pointed out that in fact, the interim order passed by this Court dated Page 20 of 39 Downloaded on : Tue Aug 30 21:07:57 IST 2022 C/SCA/3921/2019 CAV JUDGMENT DATED: 30/08/2022 th 27 December 2004 in the Special Civil Application No.14545 of 2003 has been misinterpreted. The interim order, according to Mr. Jasani, should have been interpreted as if the petitioners are entitled to regular pay scale with all increments.
12 In such circumstances referred to above, Mr. Jasani prays that the appropriate orders or directions be issued in this regard to the concerned authorities.
13 On the other hand, all these three writ applications are vehemently opposed by Mr. Swapneshwar Goutam, the learned Assistant Government Pleader appearing for the respondents. According to the learned Assistant Government Pleader, the petitioners, as on date, could not be said to be regular employees. Their status, even as on date, is that of the adhoc employees. In such circumstances, according to Mr. Goutam, the petitioners are not entitled to the regular pay scale. Distinguishing the case of the petitioners with that of Mr. Prajapati, he pointed out that Mr. Prajapati, being a member of the S.E.B.C., was appointed on regular basis as there was a post vacant on that date.
14 The learned Assistant Government Pleader has relied upon the following averments made in the further additional affidavit-in-reply:
3 I respectfully say and submit that, as a first desideratum, it is very much essential to place on record, the factual matrix of the present case for clear understanding of the controversy raised in present petition on 12.07.1989 X-ray/Laboratory Technician Course was conducted by various Medical Colleges across the Gujarat State. This course was offered with a bond of Rs.5,000. At this Page 21 of 39 Downloaded on : Tue Aug 30 21:07:57 IST 2022 C/SCA/3921/2019 CAV JUDGMENT DATED: 30/08/2022 juncture, it is very pertinent to mention that, in the year 1993 specifically 27.09.1993, the State Government decided to close the bond scheme, meaning thereby, no further bond to be taken for such courses. But, however, the fact, the candidates who had completed the course were given appointment with the State on bond. Nonetheless, 9 candidates were left out, amongst who those had done their training course successfully under the bond scheme. In the meanwhile, an advertisement was published on 21.11.2000 by the member secretary, Dean B.J. Medical college, Ahmedabad.
The copy of the advertisement is annexed as Annexure-B at page no.19 to the memorandum of the petition. At this juncture it is also pertinent to mention that, the left out 9 candidates who have successfully completed training program on X-ray Technician Course could not be accommodated due to non availability of the posts. But, however, in the interregnum period after filing of the Special Civil Application No.12349 of 2000, a communication was made by the Additional Director, Heath Service Department to the Medical Education Department that, the 9 persons who had done and completed the Training of X-ray Technician could be accommodated in recruitment process of vacant posts of medical education department and they should be given priority in appointment considering that, they had completed their course for bonded candidates. Taking regard and consideration to the communication by the Additional Director Health Services, on 21/22.03.2001, the appointment orders were given to all 9 candidates. Copies of the appointment orders of 9 candidates are annexed hereto and marked as Annexure-I colly.
5 I say that appointment orders clearly delineates that all the appointees shall be given pay scale of Rs.5,000 8,000/- to all the appointees for period of one year, or till the regular candidates are selected.
Page 22 of 39 Downloaded on : Tue Aug 30 21:07:57 IST 2022C/SCA/3921/2019 CAV JUDGMENT DATED: 30/08/2022 In the meantime, another, Special Civil Application No.12349 of 2000 was preferred which was filed on 30.09.2000 to quash and set aside the advertisement issued by the Medical Education Department. Wherein, this Hon'ble Court had passed interim order on 25.02.2002 directing that, not to terminate 4 petitioners. The copy of the interim order is annexed hereto and marked as Annexure-II.
6 I respectfully say and submit that, on 13.03.2013, there were total 433 vacancy in the establishment of Medical Education department, the State Government instructed Medical Education department to fill the vacancy on 433 posts. On 22.04.2002, the Government by issuing a Government Resolution dated 22.04.2002 directed that, all these vacancies are to be filled on fix tenure and for six months by the above said Government Resolution on 22.04.2002, it was a policy decision to fill the vacancies on the fix tenure basis for 6 months. The copy of the aforesaid Government Resolution dated 22.04.2002 is annexed hereto and marked as Annexure-III.
7 I say that, except 4 petitioners who were protected by this Hon'ble Court by the interim order passed by this Hon'ble Court on 25.02.2000 others were terminated from the service as there appointment was purely contractual, but, as a matter of act, they were again given a fresh appointment in the department along with the other candidates, but, with the terms that, they shall be appointed for fix tenure and with the conditions for 6 months. As it was decided by the State Government in its policy decision as mentioned in Government Resolution dated 22.04.2002.
8 I respectfully say and submit that, in the year 2002, the petitioner 1. B.A. Patel and 2. K.B. Shah had again filed Special Civil Application No.3523 of Page 23 of 39 Downloaded on : Tue Aug 30 21:07:57 IST 2022 C/SCA/3921/2019 CAV JUDGMENT DATED: 30/08/2022 2002 before this Hon'ble Court wherein, the petitioner had prayed for the following prayer:
[a] to allow this petition with costs and to declare that the their appointments have to be on the same terms as in Annexure A and that the deviation therefrom qua the petitioners is illegal and to issue a writ of mandamus or any other appropriate writ, direction or order in the nature of writ, enjoining upon the respondents according;
[b] to quash the advertisements at Annexure B and all proceedings subsequent thereto, unless and until the right of the petitioners to get appointments is finally adjudicated upon;
[b-1] to grant all the benefits already granted to Shri A.B. Prajapati with retrospective effect from the date of his appointment, including increments and all other consequential benefits and to place the names of the petitioners above that of Shri A.B. Prajapati in the seniority list;
[c] to grant interim relief in case of Special Civil Application No.12349 of 2000, pending admission, hearing and final disposal of the present petition;
and [d] to grant such further and other reliefs, as may be deemed to be just and proper.
This Hon'ble Court had granted protection in favour of the petitioner of Special Civil Application No.3523 of 2002. The copy of the order is annexed hereto and marked as Annexure-IV.
9 I respectfully say and submit that, on 06.02.2003, the Government had passed another resolution by which, it was decided that, to extend the time period Page 24 of 39 Downloaded on : Tue Aug 30 21:07:57 IST 2022 C/SCA/3921/2019 CAV JUDGMENT DATED: 30/08/2022 of 11 months to those candidate who are appointed against the vacancy of 433 till the regular appointees from the Government Subordinate Service Selection Board are being appointed. The copy of the aforesaid Government Resolution is annexed hereto and marked as Annexure-V. At this juncture, it is pertinent to point out that, all those candidates who were appointed a fresh by the department on 20.02.2003 where given an appointment with the fix pay. However, earlier the candidates appointed on the said pay-scale of Rs.5,000 8,000/-. In this context it is very much pertinent to refer to the Special Civil Application No.12349 of 2000 whereby, this Hon'ble Court had protected the services of 4 petitioner were appointed initially in the pay-scale of Rs.5,000 8,000/-. On 20.02.2003, Mr. Mahendra Patel who is the petitioner of Special Civil Application No.14545 of 2003 filed a petition with the following prayers:
(a) to allow this petition with costs and to declare that his appointment has to be on the same terms as in Annexure A and that the deviation therefrom qua the petitioners is illegal and to issue a writ of mandamus or any other appropriate writ, direction or order in the nature of writ, enjoining upon the respondents;
(b) to quash the advertisement at Annexure B and all proceedings subsequent thereto, unless and until the right of the petitioners to get appointments is finally adjudicated upon,
(c) to grant interim relief as in case of Special Civil Application No.12349 of 2000, besides salary in the pay scale of Rs.5000 8000 in lieu of fixed salary of Rs.3,500/-, pending admission, hearing and final disposal of the present petition.
And Page 25 of 39 Downloaded on : Tue Aug 30 21:07:57 IST 2022 C/SCA/3921/2019 CAV JUDGMENT DATED: 30/08/2022 d. to grant such further and other reliefs, as may be deemed to be just and proper.
This Hon'ble Court has passed interim order on 27.12.2014 directed that, the State Government to pay the pay-scale to the petitioner. The relevant portion of the order is quoted herein below for the ready reference of the Hon'ble Court:
Considering the averments made by the petitioner that similarly situated employees are getting pay scale of Rs.5,000-8,000/- as against that the petitioner is getting only Rs.3,500/- as fixed salary, by way of interim direction during the pendency of this petition, the respondents are directed to place the petitioner in the pay scale of Rs.5,000-8,000.
As the petitioner has pointed out that in similar type of cases, some employees have been given the benefit of the pay scale and in case of one, Mr.Anil Prajapati after giving such pay scale some increments are also released and since this averment is not controverted by the department, this interim direction is required to be given.
10 I respectfully say and submit that, bear reading of the afore quoted highlighted paragraphs clearly emphasis that, this Hon'ble Court had directed in clear terms to pay the petitioner pay-
scale. But, however, there had no direction of the Hon'ble court to pay the increment. However, Hon'ble Court had very emphatically in simple and clear terms observe that:
As the petitioner has appointed in similar type of case, some employees have been given the benefits of the pay-scale and in case of one Mr. Anil Prajapati after given such pay-scale increment are also released and since, averment is not controverted by Page 26 of 39 Downloaded on : Tue Aug 30 21:07:57 IST 2022 C/SCA/3921/2019 CAV JUDGMENT DATED: 30/08/2022 the department, the interim direction is required to be given.
11 I respectfully say and submit that, at this juncture, it is equally important to highlighted the interim prayer prayed by the petitioner in the Special Civil Application No.12349 of 2000.
Wherein, the petitioner in para 6 specifically C as ask for following prayer:
6(a) to allow this petition with costs and to declare that the non-grant of the appointment as X-Ray Technicians in the pay scale of Rs.5000 8000/- to the petitioners is illegal and to issue a writ of mandamus or any other appropriate writ, direction or order in the nature of writ, enjoining upon the respondents to give appointments to the petitioners as X-Ray Technicians in the pay scale of Rs. 5000 8000/-.
(b) to quash the advertisement at Annexure B and all proceedings subsequent thereto, unless and until the right of the petitioners to get appointments is finally adjudicated upon,
(c) to stay the operation and implementation of the advertisement at Annexure B and all proceedings subsequent thereto, pending admission, hearing and final disposal of the present petition.
And
(d) to grant such further and other reliefs, as may be deemed to be just and proper.
As it is clearly mentioned in the prayer, there is no aspect regarding the increment. The Hon'ble Court had granted interim prayer of the petitioner in toto. Neither it was prayed by the petitioner to pay increment nor it was directed by the Hon'ble Court Page 27 of 39 Downloaded on : Tue Aug 30 21:07:57 IST 2022 C/SCA/3921/2019 CAV JUDGMENT DATED: 30/08/2022 to be paid. But, however, the Hon'ble Court had given the liberty to the department to controvert the same and distinct the case one Mr. Anil Prajapati. It is further liberty to move appropriate application for vacating the interim order. Thus, there is no question increment which was ordered by the Hon'ble Court.
12 I respectfully say and submit that, Mr. Mahendra Patel was granted a pay-scale as granted by this Hon'ble Court on 31.03.2005. The copy of the same is annexed hereto and marked as Annexure-VII.
13 I respectfully say and submit that, in order to counter and distinguish the case of the Mr. Anil Prajapti he belongs to SEBC category. Mr. A.B. Prajapati was regularly appointed on 27.03.2001 in Health Service Department at Kutch. As regular employee, he joined on 31.03.2001, he belongs to Health Services Department. So far as the case of the petitioners is concerned, the petitioners are yet not regularized and the service of the petitioners are continue only for the reason that, the protection granted by this Hon'ble Court. Secus, the service of the petitioners were to be terminated, as they have no right to continue due to nature of their appointment being contractual. At this juncture, it is equally important to clarify that, Mr. Anil Prajapati who was earlier appointed as contractual appointee with Medical Education Department, subsequently, appointed in the Health Service Department as there was a vacancy in the Health Service Department for SEBC category. It was also contractual appointee but he was belonging to SEBC category, therefore, on falling a vacant position in SEBC category, Mr. Prajapati was given regular appointment which has nothing to do with the present medical department.
14 It is also clarify that no application has been filed before this Hon'ble Court for vacating interim order Page 28 of 39 Downloaded on : Tue Aug 30 21:07:57 IST 2022 C/SCA/3921/2019 CAV JUDGMENT DATED: 30/08/2022 against the order passed by this Hon'ble Court on 27.12.2004.
15 I respectfully say and submit that, the petitioner had already granted been pay-scale as granted by this Hon'ble Court even for the sake of repetition.
16 I respectfully say and submit that, in the year th 2009 when the 6 Pay Commission was implemented in the Medical Education Department, it was implemented in the Rajkot, it was implicated only in case of the petitioners namely Satyakam Vyas and Nitin Manvar. However, the said benefits which subsequently cancelled by the department. The order of the same was also annexed hereto and marked as Annexure-VIII. Subsequent to which a Civil Application was filed in Special Civil Application No.12349 of 2000 bearing Civil Application No.965 of 2011 which was withdrawn by the petitioner on 16.08.2002. The copy of the said is annexed hereto and marked as Annexure-IX. Thereafter, the petitioner had filed a fresh Civil Application No.11066 of 2012 in Special Civil Application NO.12349 of 2000 wherein this Hon'ble Court had protected the petitioner. The copy of the order passed by this Hon'ble Court is annexed hereto and marked as Annexure-X. The said order which was compiled by the department and on 16.01.2013 instructions were issued to the institute to not to recover. The communication dated 16.01.20013 is annexed hereto and marked as Annexure-XI.
17 I respectfully say and submit that, in the background of the above factual details, it is most respectfully submitted that, the bonded scheme is already been cancelled by the State Government in the year 1993.
Page 29 of 39 Downloaded on : Tue Aug 30 21:07:57 IST 2022C/SCA/3921/2019 CAV JUDGMENT DATED: 30/08/2022 18 It is most obsequiously submitted that the petitioner are never appointed by the proper recruitment process on regular basis, in simple terms their appointment was ad-hoc basis though the recruitment specifically requires for passing the examination from the Gaunseva Pasandgi Mandal.
19 I respectfully say and submit that, the petitioners are not entitled for the regularization of service. As the appointment of the petitioners were on contractual basis. The entry of the petitioners are backdoor entry and serving for long period shall not crystallize any right to claim regularization as a matter of right.
20 I respectfully say and submit that, the petitioners are not entitled for any increment as given to Mr. Anil Prajapti, as there is no applicability of principle of doctrine of Equality. In case of Mr. Anil Prajapati is a regular appointee by the Health Services department and the petitioners are contractual appointed. Thus, the petitioners are not entitled for any increment at parity with the case of Mr. Prajapati.
15 Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether the petitioners are entitled to the reliefs prayed for in these writ applications.
16 I am at one with Mr. Jasani so far as the interim th order passed by this Court dated 27 December 2004 referred to above is concerned. It is plain and clear. For some reason or the other, it was understood by the respondents that the petitioners should be paid only Rs.5,000 8,000/-. Be that as it may, the fact remains that all the petitioners are Page 30 of 39 Downloaded on : Tue Aug 30 21:07:57 IST 2022 C/SCA/3921/2019 CAV JUDGMENT DATED: 30/08/2022 qualified X-Ray Technicians. By now, they have put in more than sixteen years of service with the State Government. They all had rendered service under the bonded / adhoc terms. In fact, the Government should have absorbed the petitioners in service, but the explanation offered is that, by that time, the scheme came to an end.
17 In fact, there was no need for the petitioners even to participate in the regular recruitment process in the facts and circumstances of the case. I am of the view that it would be gross injustice with the petitioners if they are being continued in the pay scale of Rs.5,000 8,000/- for all times to come. In fact, the said pay scale is offered pursuant to the interim order passed by this Court. Otherwise, they would have been receiving Rs.3,500/-, as a fixed salary, as on date.
18 This issue should have been resolved long time back by the State Government in the interest of its own employees. Mr. Goutam, the learned Assistant Government Pleader, upon instructions from Mr. Pathak, Section Officer, Medical Education Department, who is present in the Court today, points out that it is the Additional Director (Health Services Department), who is the competent authority to look into this issue. He further pointed out that the representation of the petitioners was placed before the then Chief Minister of the State. The office of the Additional Director, Medical Education & Research Department, Gandhinagar had also offered its comments as regards the representation filed by the petitioners. The decision was taken at the relevant point of time, but till this date, there is no further development.
19 In such circumstances referred to above, the Secretary, Health and Family Welfare Department, is directed to immediately take up this issue and see Page 31 of 39 Downloaded on : Tue Aug 30 21:07:57 IST 2022 C/SCA/3921/2019 CAV JUDGMENT DATED: 30/08/2022 to it that the appropriate orders are passed in this regard so far as the relief prayed for in these writ applications is concerned. The observations made by this Court should be a sufficient indication for the Government to take the decision at the earliest. I expect that there is no second round of litigation in this regard. Let this exercise be completed within a period of three months from the date of receipt of this order. In the meantime, the Secretary, Health and Family Welfare Department shall also look into the interim order passed by this Court way back in the year 2004 referred to above for the purpose of release of the increment.
20 With the above, these writ applications are disposed of. Direct service is permitted."
22. The case of the respondent State in the earlier order as is evident from the affidavit in reply which is extensively reproduced therein would indicate that it was the stand of the State that the petitioners are not entitled to regularization as their appointments were on a contractual basis and that merely because they were serving for a long period will not crystalize any right to claim regularization. Their case for parity in light of an order passed in one case of Mr.Anil Prajapati was also disputed. Considering these developments, the Court passed an order directing the respondent - State to put Page 32 of 39 Downloaded on : Tue Aug 30 21:07:57 IST 2022 C/SCA/3921/2019 CAV JUDGMENT DATED: 30/08/2022 the issue in rest. That order was carried in appeal by the State and while disposing of the Letters Patent Appeal vide order dated 11.01.2018, the Court observed as under:
"3. Having heard the learned advocates appearing for the respective parties, we are of the opinion that once the learned Single Judge directed the Secretary, Health & Family Welfare Department, to take up the issue and take appropriate decision, it should be left to the said authority to take appropriate decision in accordance with law and on merits rather than with certain directions, which prima facie, appears to be allowing the petition. Under the circumstances, without expressing anything on merits or entering into merits of the case and/or expressing anything in favour of either of the parties, we modify the impugned order passed by the learned Single Judge and direct the Secretary, Health & Family Welfare Department, to take appropriate decision on the issue involved in the petitions in accordance with law and on merits and within a period of three months from today. Till then, the position as on today is directed to be continued, and it goes without saying that, if any decision adverse to the original petitioner is taken, in that case, it will be open for them to challenge the same before the appropriate Court / Forum, which shall be considered in accordance with law and on merits. If any order, adverse to the original petitioners is passed, in that case the said order shall not be implemented for a further period of one month and thereafter the position which is directed to be continued by the present order shall be Page 33 of 39 Downloaded on : Tue Aug 30 21:07:57 IST 2022 C/SCA/3921/2019 CAV JUDGMENT DATED: 30/08/2022 continued for further period of one month, so as to enable the original petitioners to approach this Court or appropriate Forum for appropriate orders. With this, all these Letters Patent Appeals and the respective Civil Applications stand disposed of."
23. It is in light of these directions by the Division Bench to consider their case in accordance with law that the impugned order has been passed. Reading of the impugned order indicates that though their appointments were made on the post by virtue of an advertisement and there were interim orders granting them the benefit of the pay-scale of Rs.5,000-8,000/-, it was clear that this was pursuant to a decision that 151 posts will be filled up on an ad-hoc basis till a regularly selected Gujarat Subordinate Service Selection Board candidate is available. The petitioners of Special Civil Application Nos.
10178 to 10180 of 2018 were appointed on an ad-hoc basis and therefore their services could not be regularized that is the ratio of the decision impugned in this petition which is also the decision impugned in the other petitions.
Page 34 of 39 Downloaded on : Tue Aug 30 21:07:57 IST 2022C/SCA/3921/2019 CAV JUDGMENT DATED: 30/08/2022
24. Reading the orders of appointment which were initially made in favour of the petitioners would clearly indicate that their appointments were, to reiterate ad-hoc and fixed term appointments. They continued in service subsequently and are so continuing today by virtue of the interim orders passed by this Court and therefore the argument of the learned counsels for the respective parties, namely, the petitioners that their case for regularization deserves to be considered in light of their long tenure of service and that because they possess the requisite qualifications too, cannot be accepted in the terms of the appointment orders pursuant to which they were so appointed.
25. The legal position is well established that the High Courts in exercise of powers under Article 226 of the Constitution of India, will not issue directions for regularization unless the employees claiming regularization had been appointed in pursuance of a Page 35 of 39 Downloaded on : Tue Aug 30 21:07:57 IST 2022 C/SCA/3921/2019 CAV JUDGMENT DATED: 30/08/2022 regular recruitment process. Albeit the petitioners claim that their appointments were after a regular selection through an advertisement what is evident from the foundation of their appointments is that it was looking to the gravity of the devastation that the State faced in the earthquake, a regular process of selection was given a go-
bye which is the process that is to be undertaken through the Gujarat Subordinate Services Selection Board, and the petitioners were appointed bypassing such process by interviews through a committee appointed by the Commissioner of Health & Education.
26. The petitioners have continued on an ad-hoc basis under the cover of interim orders that have been passed by this Court. Sympathy and sentiments cannot be grounds for orders of regularization when apparently their appointments were on an ad-hoc basis and that itself is a ground which does not give them a legal right to claim regularization. In the decision of the Hon'ble Supreme Court in the case of State of Rajasthan & Ors Page 36 of 39 Downloaded on : Tue Aug 30 21:07:57 IST 2022 C/SCA/3921/2019 CAV JUDGMENT DATED: 30/08/2022 vs. Daya Lal reported in 2011 (2) SCC 429, the observations which are relevant are in para 12 thereof, which read as under:
"12. We may at the outset refer to the following well settled principles relating to regularization and parity in pay, relevant in the context of these appeals:
(i) High Courts, in exercising power under Article 226 of the Constitution will not issue directions for regularization, absorption or permanent continuance, unless the employees claiming regularization had been appointed in pursuance of a regular recruitment in accordance with relevant rules in an open competitive process, against sanctioned vacant posts. The equality clause contained in Articles 14 and 16 should be scrupulously followed and courts should not issue a direction for regularization of services of an employee which would be violative of constitutional scheme. While something that is irregular for want of compliance with one of the elements in the process of selection which does not go to the root of the process, can be regularized, back door entries, appointments contrary to the constitutional scheme and/or appointment of ineligible candidates cannot be regularized.
(ii) Mere continuation of service by an temporary or ad hoc or daily-wage employee, under cover of some interim orders of the court, would not confer upon him any right to be absorbed into service, as such service would be `litigious employment'. Even temporary, ad hoc or daily- wage service for a long number of years, let alone service for one or two years, will not entitle such employee to claim Page 37 of 39 Downloaded on : Tue Aug 30 21:07:57 IST 2022 C/SCA/3921/2019 CAV JUDGMENT DATED: 30/08/2022 regularization, if he is not working against a sanctioned post. Sympathy and sentiment cannot be grounds for passing any order of regularization in the absence of a legal right.
(iii) Even where a scheme is formulated for regularization with a cut off date (that is a scheme providing that persons who had put in a specified number of years of service and continuing in employment as on the cut off date), it is not possible to others who were appointed subsequent to the cut off date, to claim or contend that the scheme should be applied to them by extending the cut off date or seek a direction for framing of fresh schemes providing for successive cut off dates.
(iv) Part-time employees are not entitled to seek regularization as they are not working against any sanctioned posts. There cannot be a direction for absorption, regularization or permanent continuance of part time temporary employees.
(v) Part time temporary employees in government run institutions cannot claim parity in salary with regular employees of the government on the principle of equal pay for equal work. Nor can employees in private employment, even if serving full time, seek parity in salary with government employees. The right to claim a particular salary against the State must arise under a contract or under a statute."
27. In light of the clear position of law, the present petitions which claim the benefit of regularization do not deserve to be entertained. The petitions are accordingly Page 38 of 39 Downloaded on : Tue Aug 30 21:07:57 IST 2022 C/SCA/3921/2019 CAV JUDGMENT DATED: 30/08/2022 dismissed. Interim relief granted earlier, stands vacated.
(BIREN VAISHNAV, J) FURTHER ORDER After pronouncement of the judgment, learned counsel for the petitioner request for extension of interim relief granted by this Court earlier. Mr.Utkarsh Sharma learned AGP would vehemently object to the request.
However, the interim relief granted earlier is extended till 21.09.2022.
(BIREN VAISHNAV, J) ANKIT SHAH Page 39 of 39 Downloaded on : Tue Aug 30 21:07:57 IST 2022