Gujarat High Court
Saroj Bahedia vs State Of Gujarat & 4 on 23 June, 2016
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/1474/2001 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 1474 of 2001
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SAROJ BAHEDIA....Petitioner(s)
Versus
STATE OF GUJARAT & 4....Respondent(s)
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Appearance:
MR BM MANGUKIYA, ADVOCATE for the Petitioner(s) No. 1
GOVERNMENT PLEADER for the Respondent(s) No. 1 - 3
RULE SERVED BY DS for the Respondent(s) No. 4 - 5
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 23/06/2016
ORAL ORDER
By this writ-application under Article 226 of the Constitution of India, the petitioner, a former Tutor of a medical college at Vadodara, has prayed for the following reliefs :
"(A) Be pleased to issue writ of mandamus or writ in the nature of mandamus or appropriate writ, order or direction to quash and set aside the impugned order passed by the respondent no.2 dated April 5, 2000 and consequential order passed by the respondent no.3 dated April 7, 2000, terminating the service of the petitioner.
(B) Pending admission and final disposal of the present petition, be pleased to stay the implementation, execution and operation of the impugned order passed by the respondent no.2 dated April 5, 2000 and the consequently order passed by the respondent no.3 dated April 7, 2000.Page 1 of 6
HC-NIC Page 1 of 6 Created On Sat Jun 25 02:28:44 IST 2016 C/SCA/1474/2001 ORDER (C) Be pleased to pass such other and further orders as may be deemed fit and proper."
On 28th August 1998, the petitioner was appointed as a Tutor in a Pathology Medical College at Vadodara in the pay- scale of Rs.8000-13500 with usual allowances admissible under the rules on purely temporary and adhoc basis for a period of six months or till the post was filled in on regular basis or till further orders, whichever was earlier. By order dated 5th April 2000, her services came to be terminated on the ground that there was reduction of four posts of Tutor in the Pathology department of the College. The termination order reads as under :
"Order:
Sub. Termination of services of Tutor in Pathology at Medical College, Baroda.
Ref.: Govt. H. and F.W.Deptt. MCB/102000/1353(1)J dated 5.4.2000.
As there are reduction of four posts of Tutor in Pathology at Medical College, Baroda, the services of following Tutors in Pathology at Medical College, Baroda are hereby terminated with immediate effect subject to Government Approval.
1. Dr.R.J.Shah,
2. Dr.Simple Shah
3. Dr.Saroj Bahedia Sd/-
Commissioner, Health Medical
Service and Medical
Education (Medical
Education),
Gandhinagar."
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C/SCA/1474/2001 ORDER
Hence, this petition.
It appears from the grounds urged in this petition that, although the petitioner was appointed on adhoc basis, yet she could not have been terminated from service before the juniors. An affidavit-in-reply has been filed on behalf of the State Government duly affirmed by the Deputy Director, Medical Education, which reads as under :
"3. At the outset, I say and submit that four posts of Tutor in Pathology Medical College, Baroda were reduced amongst total strength as there was no alternative laid rest than terminating the persons working on the said post on above basis. The petitioner was appointed purely on temporary and on adhoc basis and therefore, his services were terminated.
4. I say and submit that as per the Government Resolution dated 5th April 2000 of Health and Family Welfare Department, four posts of Tutor in Pathology at Medical College, Baroda have been abolished and consequently four persons appointed on the same posts were terminated with effect from 4.7.2000.
5. I say that, thereafter, vacancies arose due to promotion of Dr.M.R.Patel, Dr.Manisha M.Shah and Dr.Anju Prakash since 10.5.2000, 17.5.2000 and 16.6.2000 respectively and one vacancy arose due to resignation of Dr.P.A.Toprani since 2.8.2000 and therefore, in order to meet with the academic requirements of students of medical college, Baroda, my office has appointed Dr.H.S.Dhanani by transfer from Medical College, Bhavnagar and Dr.Dimple Arora, Dr.Ritesh Panani and Dr.Nidhi Jain from available waiting list. At this juncture, I clarify that the petitioner and persons appointed after termination of the petitioner had never been in service together and therefore it is not correct that the petitioner appointed subsequently are junior to the petitioner."
An affidavit-in-reply has also been filed on behalf of the Page 3 of 6 HC-NIC Page 3 of 6 Created On Sat Jun 25 02:28:44 IST 2016 C/SCA/1474/2001 ORDER respondent no.3, i.e. the Medical College, duly affirmed by the Dean, which reads as under :
"2. I further say and submit that the appointment order given to the petitioner and other ad-hoc appointees clearly states that the appointment is on purer temporary and ad-hoc basis for a period of 6 months or till the post is filled in on regular basis or till further orders whichever is earlier. Further, it is also mentioned that the services of the ad-hoc appointee being purely on ad-hoc and temporary basis is liable to be terminated at any time. Hence. the petitioner herein, being ad-hoc appointee has no right to object or oppose the termination and even has no right to claim subsequent appointment after being terminated.
3. I further say and submit that at the time of admission, this Hon'ble Court issued notice relying on judgment passed by Hon'ble Division Bench of this Court in Dr. S.C.Kaushik vs. Union of India, 1980 GLR 997. I most respectfully and humbly submit that in both the cases i.e. of 1980 and the present case, the cause of termination is not identical and is different. The cause of termination in 1980 GLR 997 is that, that the ad-hoc appointee has not passed selection examination and hence was terminated. But in the present case, the ad-hoc appointee was terminated due to reduction of 4 posts of Tutors in Pathology Department of Medical College, Baroda. Hence, in the present case, there is no discrimination and violation of Articles 14 and 16.
4. I further say and submit that there were total 17 sanctioned posts including the present petitioner and other two. By way of order dated 05-04-2000, the 4 posts of Tutor in Pathology were reduced. Hence, the petitioner and two others were terminated and the total sanctioned posts came to be 13 in number. Subsequently, 4 vacancies had occurred due to the event of 3 promotions and 1 resignation. Hence, these vacancies have come into existence within those 13 sanctioned posts only. Hence, it cannot be said that there were new vacancies due to generation of 4 new posts and accordingly, petitioner and other two cannot be appointed as already Page 4 of 6 HC-NIC Page 4 of 6 Created On Sat Jun 25 02:28:44 IST 2016 C/SCA/1474/2001 ORDER terminated and being purely on temporary and ad-hoc appointment, the petitioner has no right to claim the same. Hence, the termination order of the petitioner being result of reduction of 4 posts is totally legal, proper and just.
5. I further say and submit that the claim of the petitioner cannot be accepted for the major reason that there has been termination of ad-hoc appointees even prior to the petitioner. Hence, if, without admitting and without prejudice to the contentions of the answering respondent, it is believed for a moment also that the petitioner has the right for appointment as she was prior in appointment than the private respondent, then there would be enormous number of ad-hoc appointees who would have been terminated prior to the petitioner and can claim right for appointment. I most respectfully and humbly submit that, it is totally impractical, impossible and unfeasible to give right of appointment to the persons who had been terminated earlier. Hence. it is humbly submit that ad-hoc appointees being purely on temporary in nature and as described in the appointment letter itself accrues no right in the same. I further say and submit that the claim of the present petitioner would also not survive for the reason that services of the persons who were appointed after the termination of the present petitioner i.e. the present private respondent are already terminated or have resigned. Copies of the said letters are marked and annexed hereto as ANNAXXURE-R-1 (Colly) .
6. Under the aforesaid facts and circumstances, the present petition of the petitioner deserves to be dismissed on the below mentioned reasons :
(1) Termination order of the petitioner is legal for the reason that there was reduction of 4 posts. (2) The causes of termination in the present case and in 1980 GLR 997 are different and not identical. (3) It is specifically stated in the appointment order that the services of the petitioner can be terminated at any time.Page 5 of 6
HC-NIC Page 5 of 6 Created On Sat Jun 25 02:28:44 IST 2016 C/SCA/1474/2001 ORDER (4) Without prejudice to the above contentions, if the petitioner's claim is accepted then also, there are large number of cases who are terminated before petitioner.
(5) The private respondents who are appointed after the termination of the petitioner are no more in service."
In view of the stance of the respondents, which has not been controverted by the petitioner, no case is made out for interference. This writ-application, therefore, fails and is hereby rejected.
(J.B.PARDIWALA, J.) MOIN Page 6 of 6 HC-NIC Page 6 of 6 Created On Sat Jun 25 02:28:44 IST 2016