Parul Anil Joshi vs State Of Gujarat & 4

1 By this writ application under Article 226 of the Constitution of India, the petitioner, serving as a Medical Officer (Ayurvedic), has prayed for the following reliefs:

or direction, directing the respondents to grant the benefit of higher pay scales of Lecturer (Senior Scale) and Lecturer (Selection Scale) to the petitioner on completion of 7 years and 16 years of service in view of resolution dated 20.3.1991, 19.1.2006 and 1.10.2005 and pay the difference of salary alongwith interest @ 12% p.a. thereon from the date due till realisation.

(C) To issue a writ of mandamus, or any other appropriate writ, order or direction, directing the respondents to regularize the services of the petitioner and treat the petitioner as permanent employee from the date of her appointment.

(D) To issue a writ of mandamus, or any other appropriate writ or order or direction, directing the respondents to grant benefit of pension, Page 1 of 9 HC-NIC Page 1 of 9 Created On Fri May 06 01:05:16 IST 2016 C/SCA/7134/2016 ORDER gratuity and leave encashment to the petitioner on her retirement.

(E) Pending admission, hearing and final disposal of this petition, to direct the respondents authorities to give adhoc pension, gratuity and leave encashment to the petitioner on her retirement from the date of superannuation.

(F) Pending admission, hearing and final disposal of this petition, to direct the respondents authorities to give adhoc benefit of higher pay scales of Lecturer (Senior Scale) and Lecturer (Selection Scale) to the petitioner on completion of 7 years and 16 years of service in view of resolutions dated 20.3.1991, 19.1.2006 and 1.10.2005 and pay the difference of salary alongwith interest @ 12% p.a. thereon from the date due till realisation.

(G) To grant ad­interim relief in terms of para­39 *E) & (F).

(H) To award the cost of this petition. (I) To grant such other and further reliefs as may be deemed fit by this Hon'ble Court in the interest of justice." 2 I am told that the petitioner is still in service and is due to retire in 2019. 3 The issue raised in this writ application is now squarely covered

by the judgment and order dated 22nd March 2016 passed in the Special Civil Application No.4269 of 2016. This Court passed the following order:

"1. By this writ application under Article 226 of the Constitution of India, the petitioner, a retired lecturer, has prayed for the following reliefs;

(A) Quashing and setting aside the action of the respondents in not granting benefits of Government Resolution dated 11.11.2012 and in not disbursing the retirement dues of the petitioner including pension with 18% interest, as being illegal, unreasonable, unjust, against the principles of natural justice and against the right enshrined under Articles 14, 19(1)(g) and 21 of the Constitution of India.

(B) Direct the respondent authorities to forthwith release amount Page 2 of 9 HC-NIC Page 2 of 9 Created On Fri May 06 01:05:16 IST 2016 C/SCA/7134/2016 ORDER towards pension, gratuity, leave encashment, group insurance, travel concession and other retirement dues with 18% interest, and further direct the respondent authorities to pay pension amount regularly to the petitioner.

(C ) Pending the admission, hearing and final disposal of this petition, Your Lordships may be pleased to direct the respondent authorities to pay provisional pension an other retirement dues to the petitioner;

(D) Grant an ex parte ad interim relief in terms of prayer (C ) above may kindly be granted.

(E) Pass such other and further order or orders as may be deemed just and proper in the facts and circumstances of the present case.

(G) Award costs;

2. The facts of this case may be summarized as under;

2.1 The petitioner was appointed as Class­II employee on the post of Ad­ hoc Demonstrator (Lecturer) in the Indian System of Medicine and Homeopathy by the Department of Health & Family Welfare on 10.7.1987. The appointment was on temporary basis. However, the petitioner worked on a permanent sanctioned post of Demonstrator (Lecturer).

2.2 Although, the petitioner was working on a permanent sanctioned post in the Government Ayurveda College, yet the respondents treated the petitioner as a temporary lecturer. This led to filing of a writ application being Special Civil Application No.2831 of 1992 before this Court. The Special Civil Application No.2831 of 1992 came to be disposed of vide order dated 10.10.2006 in the following terms;

By filing this petition, the petitioners, who are 18 in number have prayed that appropriate direction may be given to the respondents to regularize the services of the petitioners treating them as regularly selected from the date of their appointment. It is also prayed that the respondents may be restrained from terminating the services of the petitioners. The petitioners were appointed on the post of Demonstrator Class­II in Government Ayurvedic Hospital. Their appointment orders were issued by Director of Indian Medicine and Homeopathic System, Gujarat State, Gandhinagar.

As per the advertisement, which is at page 29, Annexure­A, appointments were to be made on ad­hoc basis till GPSC selected candidates are available or till the period of one year, whichever is less. On the basis of such advertisement, petitioners were Page 3 of 9 HC-NIC Page 3 of 9 Created On Fri May 06 01:05:16 IST 2016 C/SCA/7134/2016 ORDER appointed. Particulars about their appointment are given at page 30, Annexure­B. As per the same, some petitioners are appointed in 1984 and some are appointed in 1987. It seems that, thereafter, their services were extended from time to time, though no specific orders are finding place in the compilation. Since the petitioners were apprehending termination of their services, they have filed present petition with a prayer that they may be regularized in service and they should be given benefit of seniority etc., in that cadre.

This petition is pending before this Court since 1992 and interim relief is also operating in favour of the petitioners.

Mr.Buch, learned advocate for the petitioners vehemently submitted that though some time back, an advertisement was given by GPSC for filling up the posts which the petitioners are holding, subsequently that advertisement was withdrawn. He, therefore, submitted that the respondents may be directed to continue the petitioners on the post, which they are holding. It is also submitted by Mr.Buch that as per the information received by him from his clients, the Government is contemplating to form a separate cadre of the petitioners as per the direction given by the Division Bench of this Court in K.D.Vohra V. Kamleshbhai Gobarbhai Patel reported in 2003 (2) GLR 1342 and, therefore, till a separate cadre is created by the Government, this petition may be kept pending.

On the other hand, Ms.Falguni Patel, learned AGP submitted that the petitioners were appointed on ad­hoc basis and, therefore, they have no right to hold the post. She further submitted that in view of the directions given by this Court in Special Civil Application No.5415/1997, petitioners' services would be continued till GPSC selected candidate is available or any other employee is transferred from other department to the department where petitioner is serving. She further submitted that even if occasion arises for termination of the services of the petitioner, principle of 'last come first go' will be followed.

I have heard both the learned advocates. It is not in dispute that appointments of the petitioners are ad­hoc and till GPSC selected candidate is available. It is true that the petitioners were continued in service and no attempt was made by the department to fill up the posts through GPSC selected candidates, however, this point now no longer open to challenge as Division Bench of this Court in K.D.Vohra V. Kamleshbhai Gobarbhai Patel reported in 2003 (2) GLR 1342 has observed as under in paragraph 26.

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?Though these ad hoc lecturers cannot be directed to be continued contrary to the recruitment rules, nor can they be ordered to be regularised by any mode not warranted by the statutory rules governing the appointments to the cadre of Lecturers, GES, Class II (Collegiate Branch), in the facts and circumstances of the case, we direct that these ad hoc lecturers be treated as a separate class in view of their ad hoc continuance for nearly a decade due to reckless indifference in discharge of duties on the part of the executive and be considered for absorption in such posts as may be available with the government or under the authority of the government in consonance with the statutory provisions applicable to such posts. The State Government is also directed to inquire into the serious lapse of not consulting the GPSC while continuing these ad hoc lecturers contrary to Recruitment Rules beyond one year and fix the responsibility for the careless default that has resulted in the ad hoc lecturers being continued for long without consultation with the GPSC and for the posts not having been filled through the GPSC, as per the Recruitment Rules and the General Rules for over a decade, especially when there was no interim order of any Court, as we are told, which could have prevented the process of regular recruitment.?

In that view of the matter, prayer for regularization cannot be granted, however, till other suitable candidates are available to replace the petitioners through GPSC, the petitioner's services are required to be continued. Even if the petitioner's services are required to be terminated, principle of 'last come first go' may be followed. If the department wants to replace the petitioners by other candidates by way of transfer, then also, junior most employees should be relieved first by following principle of 'last come first go'.

It is also directed that the department may carry out the exercise in compliance of direction given by the Division Bench of this Court in paragraph 26 of its judgement. Such exercise should be completed within a period of three months from today so that there may not be any further delay. However, it is for the Government to create a separate cadre and it is also for the Government to consider whether the petitioners can be accommodated in such cadre.

Accordingly, this petition is allowed to the aforesaid extent. Rule is made absolute accordingly with no order as to costs.

2.3 It appears that despite the order passed by this Court referred to Page 5 of 9 HC-NIC Page 5 of 9 Created On Fri May 06 01:05:16 IST 2016 C/SCA/7134/2016 ORDER above, the petitioner and the identically situated other lecturers had to once again come before this Court by filing Special Civil Application No.23617 of 2007 and allied matters. The writ applications were disposed of vide order dated 13th September, 2007 in the following terms;

1. Heard learned Advocate Mr. NK Majmudar for petitioners and Mr. Sunit Shah, learned GP with Mr. Mr. Vinay Pandya, Mr. Hukum Singh, Mr. Amit Patel, Mr. Prashant Mankad and Ms. Sandhya Natani, learned AGPs for the State Authority in this group of petitions.

2. As per the case of the petitioners, they have been serving as Demonstrator cum Tutor in different Ayurvedic Medical Colleges situated in Gujarat for more than two decades. Petitioners are in continuous service as such on ad hoc basis without any break. Special Civil Application filed by some of the petitioners was dismissed against which, Letters Patent Appeal was filed wherein the Division Bench of this Court has directed the respondent authority to consider the case of those petitioners. Thereafter, letter was accordingly addressed by the Secretary, Central Council of Indian Medicines to the Health Secretary by letter dated 3.6.1991 wherein it ws stated that the tutors ought to have been appointed before 1st July, 1989 and qualification of post graduation should not be taken into account in promotion.

3. Recently, this Court has passed order in Special Civil Application NO. 18631 of 2007 on 27th July, 2007 wherein respondents were directed to consider representation of the petitioners and examine their grievance with regard to retirement benefits. Similarly, present petitioners are also requesting to direct respondents to consider length of their services rendered as ad­hoc for regularizing and also for retirement benefits including the pension and other consequential service benefits.

4. Decision given by the Division Bench in Letters Patent Appeal NO. 485 of 2002 dated 11.12.2002 is annexed to this petition. Against the said decision, some of the appellant approached the Hon'ble apex court challenging the decision given by the Division Bench of this Court in Letters Patent Appeal wherein the apex court has issued following directions:

These applications have been filed by the appellants who submit that in view of the judgment of this court in the case of Secretary, State of Karnataka and Ors. V. Uma Devi (2006) 4 SCC 1, individual cases of the appellants require to be considered by the State of Gujarat in the light of the aforesaid judgment.

We are of the view that the prayer should be granted Page 6 of 9 HC-NIC Page 6 of 9 Created On Fri May 06 01:05:16 IST 2016 C/SCA/7134/2016 ORDER since each individual case has to be considered on its own facts and to find out whether the appointment was illegal or merely irregular and, if so, whether an order of regularization should be passed. We, therefore, direct the State of Gujarat to consider the individual cases of the appellants herein and take decision in the matter within the period of four months from today.?

5. Learned Advocate Mr. NK Majmudar for the petitioners submits that the petitioners are in service and they are working with the respondents.

6. In view of the aforesaid order of the Hon'ble Supreme Court, learned Advocate Mr.NK Maumudar for the petitioners submits that the petitioners will make detailed representation to the respondents giving all the details to the respondent State Authority within the period of one month from the date of receipt of copy of this order.

7. As and when, the respondents receive such representation from the petitioners, it is directed to the respondent ?State Authority to consider the case of petitioners and examine the grievance voiced in the representation in light of the decision given by Apex Court in case of Secretary, State of Karnataka and Ors. v. Uma Devi reported in (2006) 4 SCC 1 and pass appropriate reasoned order in accordance with law within a period of four months from the date of receiving such representation from the petitioners and communicate the same to the petitioners immediately.

8. Meanwhile, it is directed to respondents not to disturb the present condition of service of the petitioners till the decision of such representation is communicated to the petitioners.

9. In view of above observations and direction, present petitions are disposed of without expressing any opinion on merits. Direct service is permitted.

2.4 It appears that although specific directions were issued by this Court to consider the representations, those were not considered within the stipulated period. It is the case of the petitioner that despite having worked for a period of 28 years on a permanent post of lecturer, he has not been granted the higher pay scale.

2.5 After long drawn two rounds of litigation, he attained superannuation by an order dated 30th September, 2015. The issue now before me is with regard to the retiral benefits. As usual, till this date, there seems to be no progress in the matter. It also appears that despite the government circulation dated 11.11.2002, the services of the petitioner as the demonstrator cum tutor/lecturer was not extended till 31.10.2015.

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2.6 An identically situated lecturer, who had to come before this Court by filing Special Civil Application No.19850 of 2015 has been extended the retiral benefits. I have disposed of the Special Civil Application No.19850 of 2015 today in view of the affidavit­in­reply filed by the respondents stating that all the retiral benefits have been paid. As there was a delay of three years in sanctioning such retiral benefits, I directed the respondents to calculate the amount of interest at the rate of 8% and pay the same to the petitioner of that petition.

3 No affidavit­in­reply has been filed by any of the respondents.

4. In such circumstances referred to above, I direct the respondents to immediately process the retiral benefits which are to be paid to the petitioner in accordance with law. The amount towards the leave encashment, pay fixation and the arrears of the 6th pay commission shall be calculated within a period of four weeks from today, and the requisite amount be paid within two weeks thereafter, failing which, orders for interest would be passed the same way in which it has been passed in Special Civil Application No.19850 of 2015. Any further delay in this regard will be viewed very strictly. Once an employee retires, it is expected of the authorities to give top priority so far as sanctioning of retiral benefits are concerned.

5. I expect the authorities to ensure that there is no further round of litigation.

6. With the above, this writ application is disposed of. Direct service is permitted.

Direct service is permitted."

4 The respondents are directed to calculate the higher pay scales and the requisite amount shall be paid to the petitioner within a period of four weeks from today. On attaining superannuation, the retiral benefits shall be paid to the petitioner in accordance with the judgment and order referred to above.

5 With the above, this application is disposed of. Direct service is permitted.

(J.B.PARDIWALA, J.) Page 8 of 9 HC-NIC Page 8 of 9 Created On Fri May 06 01:05:16 IST 2016 C/SCA/7134/2016 ORDER chandresh Page 9 of 9 HC-NIC Page 9 of 9 Created On Fri May 06 01:05:16 IST 2016