Er. Sandip Harshadray Munjyasara ... vs J M Vyas

1. In this petition under Article 226 of the Constitution of India, the petitioner party-in-person, has approached this Court with the following prayers:

C/SCA/12350/2019 JUDGMENT "A) This Hon'ble Court may be pleased to allow this petition and may kindly be pleased to issue writ of quo warranto and/or appropriate writ order or direction, directing the 1st Respondent, Dr.J. M. Vyas to vacate the office of the Director, Directorate of Forensic Science/Forensic Science Lab, Gandhinagar, Gujarat and further be pleased to hold that additional charge of post of Director given to Respondent No. 1 through notification 11.02.2009 is illegal, arbitrary and void ab initio as it was given without haivng any authority or power to do so nd further be pleased to quash and set aside the para 2 of notification dated 11.02.2009 already annexed as Annexure-A (Page No.11-12).

B) This Hon'ble Court may be pleased to issue writ of prohibition and/or appropriate writ order or direction in the nature of writ of prohibition restraining the Respondent No.1 permanently to function as Director (including officiating basis or in- charge) of the Respondent No.2.

C) This Hon'ble Court may be pleased to issue writ of mandamus or pass order or direction, directing the Respondent No.3 to take decision on petitioner's representation dated 17.06.2019 already annexed as Annexure-F (Page No.20-21) and put copy of such decision on record of this case along with all kind of documents including file noting related to additional charge of the post of Director given to Respondent No.1 from 11.02.2009 to till today.

D) This Hon'ble Court may be pleased to issue writ of mandamus or pass order or direction, directing the Respondents to fill the vacancy on the post of Director of Respondent No.2 by appointing eligible and qualified candidate on the said post of Director of Respondent No.2 within 4 weeks.

E) This Hon'ble Court may be pleased to issue writ of mandamus and/or appropriate writ or pass order or direction, directing the Respondents to do the recovery of the pay & allowances paid to Page 2 of 26 Downloaded on : Sun Feb 16 18:21:45 IST 2020 C/SCA/12350/2019 JUDGMENT Respondent No. 1 as Director, DFS/FSL, for the period from 11.02.2009 to 30.11.2009 and along with recovery of fix payment worth Rs..25000/- per month paid to Respondent No.1 as Director, DFS/FSL for the period from 30.11.2009 to till date along with Re-fixing pension as well as other retirement benefits of Respondent No. 1 from the deemed date of his retirement (viz. 11.02.2009) and recover all kind of access payment score and deposit/credit the same to the Government Account within 30 days.

F) This Hon'ble Court may be pleased to issue writ of mandamus and/or appropriate writ or pass order or direction, directing the Respondents to initiate disciplinary and departmental actions against all responsible for their blunder as mentioned in this case.

G) Costs of this petition to be provided for to the petitioner.

H) Pending admission, hearing and/or final disposal of this petition, your Lordhips may be pleased to restraining the Respondent No.1, Dr. J.M. Vyas to function as Director (including officiating basis or in-charge) of the Respondent No. 2 and be pleased to allow prayer as prayed in above para C.) I) Ad interim exparte relief in terms of paragraph H) above."

2. It is the case of the petitioner that the respondent no.1 who was working as a Director of Forensic Science Laboratory, by a notification dated 10.02.2009 issued by the Home Department, was appointed as the Director General of Gujarat Forensic Sciences University ('GFSU' for short) for a period of three years. This appointment was made in exercise of powers conferred under sub-section (1) of Section 8 of the Gujarat Forensic Sciences University Act, 2008.

C/SCA/12350/2019 JUDGMENT

3. It is the case of the petitioner that by a subsequent notification of 11.02.2009 while the respondent no.1 was holding his office as Director of Forensic Science Laboratory, in order to take over the charge of the Director General of the Gujarat Forensic Sciences University, he was relieved from the assignment as Director of Forensic Science Laboratory. The notification further provided that the respondent no.1 will hold the additional charge of the post of Director of Forensic Science, Gujarat, at Gandhinagar till further orders.

The petitioner further states that the respondent no.1- retired on superannuation on 30.11.2009. The order of superannuation provided that in special circumstances, though the incumbent had been superannuated, he will continue to hold the additional charge of the post of Director, Forensic Science.

4. It is under these circumstances, that the petitioner made a representation dated 17.06.2019 to the Principal Secretary to the Governor, to the Chief Secretary and the Additional Chief Secretary, Home Department.

5. According to the petitioner, an age of retirement as stipulated in Rule 10 of the Gujarat Civil Services (Pension Rules), 2002, is 58 years and therefore, once the respondent no.1 had attained the age of superannuation, the continuance of the respondent no.1 by giving additional charge of the post of Director, Forensic Science, could be only in accordance with the Government Resolution dated 07.07.2016 and such contract could be extended after getting the pre-sanction of the Government till the completion of 62 years of age.

C/SCA/12350/2019 JUDGMENT

6. The case of the petitioner is that since the respondent no.1 is more than 67 years of age as on 17.06.2019 and is also holding the post of Director of Forensic Science, by way of additional charge, such contractual appointment/reappointment of the respondent no.1 is illegal, amounts to a back-door contractual appointment and therefore, the respondent no.1 ought not to be continued as Director of Forensic Sciences. The petitioner has therefore prayed for a writ of quo-warranto praying that the respondent no.1's appointment should be terminated forthwith as he is a back-door entrant and does not qualify to hold the post.

7. Mr.Sandip Munjyasara has appeared as party-in-person and submitted that the Gujarat Civil Services (Pension) Rules, 2002, particularly Rule 10 thereof provides the age of retirement. A government employee may be retained in service beyond the age of 58 years but that can only be done in public interest for reasons to be recorded in writing. There is nothing on record to suggest justification of respondent no.1 to be continued as the Director of the Forensic Science. Rules 13 and 14 of the Rules have been pressed into service by Mr.Munjyasara to contend that such an extension is also contrary to the Rules and there cannot be any further extensions, endless in nature.

8. Mr.Munjyasara invited the attention of this Court to the Recruitment Rules called the Director (Gujarat State Forensic Science Laboratory Recruitment Rules), 1983. He would contend that the appointment is in violation of Rule 3 of such rules.

C/SCA/12350/2019 JUDGMENT A copy of the resolution dated 07.07.2016 was handed over to the Court to support his submission that the Government of Gujarat through General Administration Department has stipulated standards on which, after superannuation, government employees can be taken on a contract basis. He would submit that as per the conditions stipulated in the resolution, such contractual employees can only be continued till the age of 62.

9. Written submissions have been filed by Mr.Munjyasara. He invited my attention to page 87 of the petition to contend that the Gujarat Forensic Sciences University has been so formed under the GFSU Act. It is a body corporate. The respondent no.1 was holding the post of Directorate of Forensic Sciences/Forensic Sciences Laboratory and being a State Government employee, he could not have been appointed as a Director General of a body corporate. By holding the post of Director General (GFSU), he could not have continued this assignment as Director, Directorate of Forensic Sciences/Forensic Science Laboratory. My attention by Mr.Munjyasara has been invited to Rule 49 of the Gujarat Civil Services (Pay) Rules 2002 in support of his submission in context of Rule 49. Mr.Munjyasara would submit that no special pay can be sanctioned beyond the period of 12 months and if it is so done beyond such period, the post ought to be held in abeyance. In the course of his written submissions, Mr.Munjyasara has relied on the following decisions of the Supreme Court.

I. In case of Central Electricity Supply Utility of Odisha v. Dhobei Sahoo [(2014) 1 SCC 161]. This Page 6 of 26 Downloaded on : Sun Feb 16 18:21:45 IST 2020 C/SCA/12350/2019 JUDGMENT judgment is relied upon by Mr.Munjyasara to support his contention that when petition prays for writ of quo-warranto, neither the aspect of locus-standi nor the grounds of delay and latches would be used for throwing out the petition seeking a writ of quo-warranto.

II. He also relied on a decision in case of N. Kannadasan v. Ajoy Khose and others; [(2009) 7 SCC 1]. This decision was pressed into service to contend that a writ of quo- warranto cannot be dismissed on the grounds that the petitioners have motive for filing such a petition.

10. According to Mr.Munjyasara, the continuous existence of the respondent no.1 by way of additional charge on the post, tantamounts to violation of Articles 14 and 16 of the Constitution of India inasmuch as, public interest would suffer by depriving aspirants of younger generation to aspire for the post of Director, Directorate of Forensic Science Laboratory.

11. In the body of the petition, Mr.Munjyasara has cited the following judgments:

I. In case of Rajesh Awasthi v. Nand Lal Jaiswal and others; [(2013) 1 SCC 501] II. In case of Center for PIL and another v. Union of India and another; [(2011) 4 SCC 1] III. In case of A Umarani v. Registrar, Cooperative Societies & Ors.; [(2004) 7 SCC 112] Page 7 of 26 Downloaded on : Sun Feb 16 18:21:45 IST 2020 C/SCA/12350/2019 JUDGMENT IV. In case of State of Bihar v. Upendra Narayan Singh; [(2009) 5 SCC 65] He also sought to rely on the decision rendered by a Division Bench of this Court in Letters Patent Appeal No.1468 of 2015 in support of his submission that the respondent no.1 cannot be permitted to endlessly hold the charge as Director of Directorate of Forensic Science/Forensic Science Laboratory.

12. Ms.Manisha Shah learned Government Pleader assisted by learned AGP Ms.Aishvarya Gupta has made the following submissions:

12.1 The contents of the affidavit-in-reply have been extensively relied upon and read together with the chronology of dates. At the outset, a preliminary objection has been raised with regard to the credentials of the petitioner to file a petition challenging the appointment of the respondent no.1. Perusal of the affidavit-in-reply would indicate motives have been attributed to the petitioner, he being a former student of Gujarat Forensic Sciences University who has completed his course of M.Tech, Cyber Security, in response to an incident having occurred in 2018 and that he has filed several petitions in public interest.

12.2 The learned Government Pleader would invite my attention to the decision of this Court in a petition filed by the petitioner, being Special Civil Application No.118 of 2019, wherein, the petitioner had prayed for a writ of quo-warranto with a direction that the respondent no.1 be directed to vacate the office of the Director General, Gujarat Forensic Page 8 of 26 Downloaded on : Sun Feb 16 18:21:45 IST 2020 C/SCA/12350/2019 JUDGMENT Science University. At that point of time, a specific suggestion made by the Court as to whether the petitioner would want the petition to be treated as a Public Interest Litigation. The petitioner had declined to accept this and had argued the petition on merits. The Court found on appreciation of provisions of Section 8 of the GFSU Act that the appointment of the respondent no.1 as Director of GFSU was absolutely in consonance with the provisions of the Act. Having failed in that attempt, the petitioner has approached this Court now opening up another front to challenge the appointment of the respondent as Director of Forensic Science.

12.3 Ms.Shah would submit that if the grounds in the petition are perused, the emphasis of the petitioner is to the fact that the respondent no.1, according to the petitioner, is a back- door entrant. That, he has been appointed on an officiating basis by back-door methods. In essence, therefore, the petitioner assails the appointment of the respondent no.1, is on the footing that the respondent no.1 is a back-door entrant.

12.4 On merits, the learned Government Pleader would contend that the Directorate of Forensic Science is a state-of- the-art Laboratory helping various agencies of the Central Government like CBI, NCB, Customs and Excise, DRI, BSF etc. It is the only Forensic Science Laboratory in the country to have all the technologies for investigation of varieties of crime.

12.5 The respondent no.1 is the senior most working Forensic Scientist in the country with a total experience of 46 years in Page 9 of 26 Downloaded on : Sun Feb 16 18:21:45 IST 2020 C/SCA/12350/2019 JUDGMENT the field of Forensic Science. He has been awarded President's Police Award for meritorious services. It is contended that on his superannuation on 30.11.2009, in accordance with Rule 10 of the Gujarat Civil Services (Pension) Rules, 2002, it was deemed fit in the public interest to award additional charge to the respondent no.1 and continue the same. The additional charge was in accordance with Rule 10 of 2002, Rules.

12.6 It was incorrect for the petitioner to press into service the notification dated 07.07.2016, as the same only applied to the contractual appointees. With regard to the allegation that public money was being spent wastefully, it is submitted that when he was appointed with the respondent no.1 as Director General of GFSU on 10.02.2009, he was so appointed on a fixed pay of Rs.75,000/- till he retired on superannuation as Director of Directorate of Forensic Science Laboratory on 30.11.2009.

12.7 As a Director of Directorate of Forensic Science Laboratory, on attaining the age of superannuation, the additional charge was on a monthly salary on the basis of a formula of pay minus pension and he would therefore get a fixed amount of Rs.25,000/- for holding such an additional charge.

12.8 The contention of the petitioner that the appointment was in violation of Rule 3 of the Director (Gujarat Forensic Science Laboratory) Recruitment Rules, 1983 was incorporated. His initial appointment was through public advertisement and the appointing authority to the Gujarat Page 10 of 26 Downloaded on : Sun Feb 16 18:21:45 IST 2020 C/SCA/12350/2019 JUDGMENT Public Service Commission had appointed him. That he had continued in service and after his retirement i.e. superannuation in the year 2009, he has held additional charge for a period of 10 years and it is only after such delayed response, the petitioner had, for the motive attributed to him, challenged the appointment of the respondent no.1 on the ground that the additional charge as Director of Directorate of Forensic Science Laboratory, is bad.

12.9 The respondent no.1 has played a key role in various forensic investigations and the same is highlighted in the affidavit-in-reply. The appointment of the respondent no.1 is therefore absolutely in consonance with rules in vogue.

12.10 Inviting my attention to the provisions of Section 8 of the GFSU Act, Ms.Shah would submit that it would indicate that a Director General of Forensic Science University had to be a renowned Forensic Scientist associated with Gujarat and the respondent no.1 was so appointed on this post by orders/Government Resolutions of 08.10.2010 and 12.10.2010. Terms of appointment on such post was fixed in accordance with the Rules. A writ of quo-warranto therefore would not lie so as to grant the benefit to the petitioner and consider the respondent no.1 of being an usurper of the post of Director of Directorate of Forensic Science Laboratory

13. Having considered the submissions of the learned advocates for the respective parties, it will be in the fitness of things to recapitulate the time line of the service record of the respondent no.1. The respondent no.1 was appointed as a Director of Directorate of Forensic Science Laboratory in the Page 11 of 26 Downloaded on : Sun Feb 16 18:21:45 IST 2020 C/SCA/12350/2019 JUDGMENT year 1983. This appointment was by the Gujarat Public Service Commission in accordance with the qualifications that the respondent No.1 conferred to as is stipulated in the Rules of 1983 framed under Article 309 of the Constitution of India known as the the Director (Gujarat State Forensic Science Laboratory) (Recruitment Rules), 1983.

13.1 The Forensic Science University was constituted under the provisions of the Gujarat Forensic Science University Act, 2008. Section 8 of the Act provided for appointment of a Director General of a University. Perceiving the respondent no.1 to be a renowned forensic scientist, the State appointed the respondent no.1 on 10.02.2009 as a Director General of Directorate of the University while he continued to hold the post of Director, Directorate of Forensic Science Laboratory.

13.2 On 11.02.2009, in order to enable the respondent no.1 to take over as the Director General of the University, he was relieved, however, was continued with the additional charge of the Director of the Directorate of Forensic Science Laboratory.

13.3 On superannuation of respondent no.1 on 30.11.2009, the order provided that he would continue to hold the additional charge as envisaged in February, 2009, under special circumstances as a special case.

13.4 The question therefore before this Court is, can it be said that the respondent no.1 has "usurped the office" of the Director of Directorate of Forensic Science Laboratory?

C/SCA/12350/2019 JUDGMENT 13.5 Dealing with the first contention of Mr.Munjyasara that the appointment is in contravention of the Recruitment Rules, 1983, inasmuch as, the Rules only provide for direct selection on deputation or promotion and do not, in any manner, provide for a provision of extension of service. It is a contention which must be disregarded at the threshold. The entire case of the petitioner to support his fact that the additional charge that the respondent no.1 holds is not in accordance with Rule 10 of the Pension Rules and/or Rule 49 of the Pay Rules, cannot be founded on assailing the respondent no.1's initial appointment as a Director of the Forensic Science Laboratory, on which post, the respondent no.1 was appointed, in accordance with the qualifications through the Gujarat Public Service Commission. In fact, it is not even the case of the petitioner that initial appointment as Director of Directorate of Forensic Science Laboratory is void- ab-initio. Once such appointment on the post of a Director is held to be one in accordance with the conformity of the 1983 Recruitment Rules, merely because, the Recruitment Rules so framed, do not envisage or have a provision of extension, cannot be pressed into service to assail his continuance on additional charge.

13.6 The entire stress of the petitioner that by virtue of the respondent being a back-door entrant, his continuance to hold the additional charge is contrary to law and therefore should fail.

13.7 Next comes the question whether it was open for the Government, on the respondent no.1 having retired on superannuation, to continue him and give him additional Page 13 of 26 Downloaded on : Sun Feb 16 18:21:45 IST 2020 C/SCA/12350/2019 JUDGMENT charge of the post of Director of Directorate of Forensic Science Laboratory. To answer this question, the time line of his service details indicate that on coming into the existence of the university i.e. GFSU, a notification of 10.02.2009 was issued appointing the respondent no.1 as the Director of Directorate of GFSU. In order that he can officially take over the realms of the University, he was relieved as Director on 11.02.2009. However, reading notification of 11.02.2009 would indicate that the respondent no.1 continued to hold the responsibility of the Director of Directorate of Forensic Science Laboratory.

13.8 Nine months after this notification, the respondent no.1 attained the age of superannuation on 30.11.2009. The Government issued an order on 30.11.2009. Reading of the order indicates that Dr.J.M.Vyas, the Director General of Gujarat Forensic Sciences University, who retired on superannuation on 30.11.2009, shall continue to hold the additional charge of the Director of Directorate of Forensic Science Laboratory as a special case till further orders. It is at this point of time that one needs to consider Rule 10 of the Gujarat Civil Services (Pension) Rules, 2002. Rule 10 of the Rules reads as under:

"10.Age of retirement : (1) Except as provided in this rule, every Government employee, other than a Class IV employee, shall retire from service on the afternoon of the last day of the month in which he attains the age of fifty-eight years. The Government employee may be retained in service beyond the age of fifty-eight years only with the previous sanction of the Government in the public interest, the reasons for it shall be recorded in writing.

(2) A Government employee in Class IV service shall retire from service on the afternoon of the last day of the Page 14 of 26 Downloaded on : Sun Feb 16 18:21:45 IST 2020 C/SCA/12350/2019 JUDGMENT month in which he attains the age of sixty years. The Government employee may be retained in service beyond the age of sixty years only with the previous sanction of Government.

Explanation : For the purpose of sub-rules (1) and (2), a Government employee whose date of birth is the 1st day of a month shall retire from service on the afternoon of the last day of the same month in which he attains the age of fifty-eight years or sixty years, as the case may be.

(3) The following conditions are applicable to particular services :-

a) Except as otherwise provided in this sub-clause, a holder of the post of the Chief Judge of the Court of Small Causes, Ahmedabad, or the Chief Metropolitan Magistrate for Metropolitan area of the city of Ahmedabad, whether he is recruited directly or is promoted from subordinate post, shall ordinarily be retained in service till the age of sixty years, if he continues efficient upto that age, otherwise he may be required to retire on attaining the age of fifty-eight years or at any time thereafter.

b) The Principal Judge, Ahmedabad City Civil and Sessions Court, shall be required to retire on attaining the age of sixty years.

c) Except as otherwise provided in this sub- clause, Government employees in the Gujarat Services of Engineers, Class-I, shall retire on attaining the age of fiftyeight years and may be required by the Government to retire on attaining the age of fifty years if they have not reached to the rank of Superintending Engineer.

d) (i) Subject to the requirements of this sub- clause as to reappointment, the Government may, in special circumstances, which should be recorded in writing, grant an extension of service not exceeding three months, to a Page 15 of 26 Downloaded on : Sun Feb 16 18:21:45 IST 2020 C/SCA/12350/2019 JUDGMENT Chief Engineer.

(ii) No Chief Engineer shall, without respondent-appointment, hold the post for more than five years, but respondent-

appointment to the post may be made as often and in each case for such period not exceeding five years, as the Government may decide, provided that the term of reappointment shall not extend more than three months beyond the date on which he attains the age of fifty-eight years. (Officiating service, unless followed by confirmation without interruption in such service, does not count towards the period of five years mentioned in this sub-clause).

e) Government employee who while in Government service is appointed as Chairman or Member of the Gujarat Public Service Commission, shall hold office for a term of six years from the date on which he enters upon his office or until he attains the age of sixty-two years, whichever is earlier, as laid down in Article-316 (2) of the Constitution of India; even though he attains the age of compulsory retirement according to the service to which he belonged during his tenure as Chairman or Member of the Commission.

(4) Notwithstanding anything contained in sub-rule (1) of this rule, the appointing authority, if it is of the opinion that it is in the public interest so to do, by giving him three months' pay and allowances have the absolute right to retire-

(a) any Gazetted Government employee working under the State Government :-

(I) if he had entered Government service before attaining the age of thirtyfive years, after he has attained the age of fifty years, and

(ii) in any other case, after he has attained the age of fifty five years,

(b) any Government employee who holds a post in any other service of the State either pensionable or Page 16 of 26 Downloaded on : Sun Feb 16 18:21:45 IST 2020 C/SCA/12350/2019 JUDGMENT non-pensionable, after he has attained the age of fiftyfive years;

Note : For the purposes of sub-clause (a) of sub- rule (4), the age of entry into Government service or recruitment in Government service shall be the age at which a Government employee was appointed to a full time post and not to a part time or honorary post.

(5) Notwithstanding anything contained in sub-rules (1) and (2) of this rule, any Government employee may, by giving notice of not less than three months in writing to the appropriate authority, retire, in case of a Government employee :-

(i) referred to in sub-rule (4) (a) (I), after he has attained the age of fifty years,

(ii) referred to in sub-rule (4) (a) (ii) and 4 (b) after he has attained the age of fiftyfive years; Explanation-1 : For the purposes of sub-rules (4) and (5) "Appointing authority" means the authority which has power to make substantive appointment to the post or service from which the Government employee retires, or wants to retire; Explanation-2 : For the purpose of sub-rule (5) three months' notice may be given either before or after the Government employee attains the age of fifty or fifty-five years but before he attains the age of fifty-seven years, provided that the retirement takes place after he has attained the age of fifty or fiftyfive years, as the case may be;

Explanation-3 : In computing the notice period of three months referred to in sub- rule (5) the date of service of notice and the date of its expiry shall be excluded.

Provided that it shall be open to the appointing authority to withhold permission to retire to a Government employee who is under suspension, or against whom departmental proceedings are pending or contemplated and who seeks to retire under this sub- rule."

Government is satisfied for the reasons which are recorded in writing that it is in public interest to retain an employee beyond the age of 58 years, it can do so. The background of the respondent no.1 in context of the Forensic Science Laboratory needs to be considered as so set out in the affidavit-in-reply by the State. At the cost of burdening of record, it will be in fitness of things to reproduce paragraph no.9 of the affidavit-in-reply which reads as under:

"9. Without prejudice to what is stated herein above, even on merits, the writ petition does not book any relief from this Hon'ble court for the following aspects with regard to the status and importance of the Director Of Forensic Science laboratory are as under:

A. That, the Directorate of Forensic Science, Gujarat (DFS for short) is a state-of-the-art, NABL accredited, ISO-IEC 17025:2005 certified laboratory, maintaining international standards in terms of infrastructural facilities, experts and technology for Forensic analysis. The Directorate of Forensic Science, Gandhinagar is a state of the art laboratory and helps Central Govt. agencies like- CBI, Narcotics Control Bureau, Custom & Excise (CGST), DRI, BSF, RPF, NIA, Income Tax, Director General of Central Excise and Intelligence, Directorate of Enforcement, Costal Guard, ATS, Railways and Union Territories like - Diu, Daman and Dadra Nagar Haveli. Police authorities from the other States of the nation are taking assistance of the DFS, Gandhinagar for the investigation purpose of complexed crimes. This DFS is the only F.S.L. In the country to have all the technologies available for investigation of varieties of crimes.

B. That, the Respondent No 1 has been the pioneer of forensic arena in India, specifically the State of Gujarat. The Respondent No. 1 is Page 18 of 26 Downloaded on : Sun Feb 16 18:21:45 IST 2020 C/SCA/12350/2019 JUDGMENT presently the senior most (working) Forensic Scientist of the country. Under his able leadership, all forensic laboratories in Gujarat State have flourished to attain the status of the best in the entire country. The Respondent No. 1 has total experience of 46 years in the field of Forensic Science out of which over twenty six years he is heading the Forensic Laboratories across Gujarat State; including the regional laboratories, district laboratories and providing forensic investigation education and training to law enforcement personnel of the country and abroad. A true Administrative Expert and a Vigilant Educationist;

perfection and uniqueness are his major assets. Respondent No 1 is awarded with the President's Police Medal for meritorious services in the field of crime investigation on the eve of Republic Day, 1997. Also, Respondent No. 1 is appointed as consultant to Central bureau of Investigation (C.B.I.), New Delhi for the establishment of "International Centre of Excellence in Forensic Science" (ICEFS) at Ghaziabad. From chairing the Forensic University's Board of Governors, to acting as expert advising on all major national level crime cases, criminal investigation; administrative leadership and higher education management are his ultimate qualities. Revolutionizing the Indian Forensic domain is his foremost objective in life.

C. That, the Respondent No 1 is appointed as Director, Forensic Science Laboratory in the year 1993 as per the Director (Gujarat Forensic Science Laboratory) Recruitment Rules, 1983 by Gujarat Public Service Commission. Vide order dated 30/11/2009, respondent No.1 is retired from his regular service as per the norms.

D. That, considering the Government's policy to combat the crime with the help of Forensic Science and investigation methods, as a special case, decision was taken to give additional charge of the Directorate of Forensic Science, Gujarat State to the Respondent No 1 until further orders. State Government specifically considered the vast experience Respondent No.1 possesses and consciously took the decision that such vast Page 19 of 26 Downloaded on : Sun Feb 16 18:21:45 IST 2020 C/SCA/12350/2019 JUDGMENT experience will be helpful in achieving the State Government's policy for prevention of crime. Meaning thereby, State Government's decision to give additional charge, as a special case, is taken after due consideration and it is in larger public interest.

E. That, it is therefore submitted that by way of order dated 10/02/2009, the state government through its home Department was pleased to appoint Shri Vyas as director general of Gujarat forensic sciences University for a period of three years from the date he assumes the duty. It is further submitted that on day 10/02/2000 and Shri Vyas was holding the post of director, forensic science, Gujarat and the post of director general of Gujarat forensic sciences University was an additional post. A copy of the order dated 10/02/2009 is enclosed herewith and marked as Annexure-R3 to this affidavit. It is submitted that allotment of additional portfolio or appointment on additional post or handing over the charge for the additional post is permissible as per the Gujarat Civil Services Rules, 2002.

F. That, it would be appropriate to mention that the State Government may appoint a Government servant already holding a post in a substantive or officiating capacity to officiate, as a temporary measure, in one or more of other independent posts at one time under that Government.

G. That, Petitioner is incorrectly and conveniently construing the additional charge as "Extension" and/or "Contractual Appointment". But in fact, it is an additional charge given to Respondent no 1 while holding the post of Director General, Gujarat Forensic Sciences University, Gandhinagar.

H. That, it is further stated that for considering the matter on merits the following Date-wise events be taken into consideration:

1993 Respondent No.1 appointed as Director, Forensic Science Laboratory by Gujarat Page 20 of 26 Downloaded on : Sun Feb 16 18:21:45 IST 2020 C/SCA/12350/2019 JUDGMENT Public Service Commission as per Director (Gujarat Forensic Science Laboratory) Rules, 1983.

10/2/09 Notification No: GG/25/FSL102009/302/A Appointed Dr. J.M.Vyas Director, Forensic Science as the Director General, Gujarat Forensic Sciences

University for a period of three years.

11/2/09 Notification No:FSL/102009/302/A Dr. J.M.Vyas Director General, Gujarat Forensic Sciences University, Gandhinagar will hold additional charge of the post of the Director, Forensic Science, Gujarat, Gandhinagar until further orders.

30/11/09 Notification No:FSL/102009/2339/A Retired from the post of Director, FSL upon attaining the superannuation.

Further ordered to hold the additional charge of Director, DFS.

8/10/10 Notification No:FSL/102009/302/A The pay of the Director General of the Gujarat Forensic Sciences University will be Rs.75000/- (fixed) plus Rs.5000/- monthly special allowance.

13/10/10 Resolution No:FSL/102009/302/A Para 2:

Dr. J.M.Vyas has been appointed as the Director General of the Forensic Sciences University, Gandhinagar vide Home Department's Notification No:GG/25/FSL-102009/302/A dt:

10/2/2009.

C/SCA/12350/2019 JUDGMENT Para 4:

(1) Shri J.M.Vyas having been appointed as Director General, GFSU on 10.2.2009, shall get Rs. 75000/- (fixed pay) plus Rs.5 000/- monthly Special Allowance per month from 10.2.2009 till 30.11.2009 (the date of his retirement from the service of State Government) as per Home Department's Resolution of even no. dated 08/10/2012.

(2) After retirement from the Government Service on 30/11/2009, he will get monthly salary on the basis of the formula of "pay minus pension" from 1.12.2009 as D.G., GFSU.

17/10/11 Notification No:FSL/102011/842(Part File)/A Vide Notification dated 11/2/2009, Dr.J.M.Vyas has been given additional charge of the Director, Directorate of Forensic Science, Gandhinagar and for holding the additional charge of the said post, it has been notified to pay Rs.25,000/- per month.

10/2/2012 Notification No:GG/12/2012/FSL 102009/302/A Reappointed Dr.J.M.Vyas as the Director General, Gujarat Forensic Sciences University for a period of three years.

1/8/2012 Resolution No:FSL-102009-302(P.F.-2)-

A Will get HRA admissible to the pay scale of the post which he was holding immediately before his retirement from the Government service 10/2/2015 Notification No:GG/11/2015/FSL-

102009/302/A Page 22 of 26 Downloaded on : Sun Feb 16 18:21:45 IST 2020 C/SCA/12350/2019 JUDGMENT Reappointed Dr.J.M.Vyas as the Director General, Gujarat Forensic Sciences University for a period of three years.

22/2/2018 Notification No:GG/11/2015/FSL-

102009/302/A Reappointed Dr.J.M.Vyas as the Director General, Gujarat Forensic Sciences University for a period of three years.

Even in view of what is stated hereinabove and events occur date-wise, there is no such legality as claimed and portrayed by the petitioner in the writ petition and in that view of the matter also, the petition is required to be dismissed."

13.10 A conjoint reading of the averments made in the reply would indicate that the State in public interest, has found it fit to continue the responsibilities of the Forensic Science Laboratory on the respondent no.1 as a Director particularly looking to the nature of investigations that the Forensic Science Laboratory is handling.

13.11 What is found from the averments made in the reply that the laboratory is one of its kind in the country. The affidavit further indicates that it is a laboratory of international repute. That the respondent no.1 has played a key role in the forensic investigation as the Director of Forensic Science Laboratory. This is also evident from reading para 13 of the affidavit-in-reply which speaks in volumes about the competence of the respondent no.1 to hold as Director of Directorate of Forensic Science Laboratory.

13.12 Rule 19 of the Pay Rules relied upon by party-in-

C/SCA/12350/2019 JUDGMENT person Mr.Munjyasara is out of place to be pressed into service inasmuch as, such Rules would govern conditions of service of an in-house employee and would not be applicable to the case of the person incumbent i.e. respondent no.1 who is holding additional charge on superannuation. Perusal of the notifications dated 08.10.2010, 18.10.2010 and 17.10.2011 would indicate that on the superannuation of the respondent no.1, what is being paid to him is a fixed amount of Rs.25,000/- for holding additional charge which is worked out on the basis of pay minus pension formula.

14. All these factors which have been dealt with herein above would indicate that the case of the petitioner that the respondent no.1 is not fit to hold the post of Director of the Forensic Science Laboratory and be held as "an usurper" of the post, therefore, are without merit.

15. It is in these circumstances that I would not like to go into the submissions and decide on the question of motives of the petitioner to file such a petition. A lot has been said in the affidavit-in-reply and during the course of the arguments on the credentials of party-in-person as he being past student of the university. This Court would not want to oust the petitioner on the motives, particularly when on merits I am not satisfied with the case made out by the petitioner to hold that the respondent no.1 is not entitled to hold the post of the Director of Directorate of Forensic Science Laboratory.

16. However, while doing so, I cannot lose sight of the fact that the petitioner had made an attempt unsuccessfully to challenge the appointment of the respondent no.1 as the Page 24 of 26 Downloaded on : Sun Feb 16 18:21:45 IST 2020 C/SCA/12350/2019 JUDGMENT Director General of Forensic Science University. In that challenge, which was confirmed upto the Division Bench the petitioner failed, though the controversy in that petition was in context of the respondent no.1's appointment as the Director General of Forensic Science Laboratory. That the controversy does overlap, cannot be lost sight of. Section 8 of the GFSU Act provided that a person of renowned repute as a Forensic Scientist is fit as a Director General of GFSU University. It is in this context that this Court in the order passed in Special Civil Application No.118 of 2019 dated 25.01.2019, in para 5 of the judgment held as under:

"5.

...

...The reappointments/ renominations of the respondent No.1 being absolutely in consonance with the provisions contained in the said Act, the Court does not find any substance in the submissions made by the petitioner that the said reappointments/ renominations were in violation of the statutory provisions of the Act."

17. That from the records of the petition, it is evident that the respondent no.1 has been holding the post of the Director of Directorate of Forensic Science Laboratory since 1993. The record is vocal enough to suggest the role that the respondent no.1 has played as a Director of Forensic Science Laboratory and the investigations that have been handled under his leadership.

18. The State Government therefore if in exercise of powers under Rule 10, as a special case in public interest, has thought it fit to continue to obtain the services of such an Page 25 of 26 Downloaded on : Sun Feb 16 18:21:45 IST 2020 C/SCA/12350/2019 JUDGMENT officer in his capacity as an additional charge of the Director of Directorate of Forensic Science Laboratory, by virtue of his being a renowned Forensic Scientist and therefore holding the post of Director General of Forensic Science University, would itself not make the respondent no.1 a "usurper" of the post of the Director of Directorate of Forensic Science Laboratory.

19. On these grounds, I do not found any merit in the petition and the petition is therefore dismissed.

(BIREN VAISHNAV, J) ANKIT SHAH Page 26 of 26 Downloaded on : Sun Feb 16 18:21:45 IST 2020