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Gujarat High Court · body

2001 DIGILAW 685 (GUJ)

N. S. KADRI v. SECRETARY

2001-09-07

RAVI R.TRIPATHI

body2001
RAVI R. TRIPATHI, J. ( 1 ) ). THIS petition is filed by the petitioner, who was appointed as a Computer in the services of Panchayat on temporary basis by the order issued by the District Health Officer, District Panchayat, Valsad, dated 17th/18th August, 1976, copy of the said appointment order is produced along with the Affidavit in Reply filed by one Dr. M. K. Chopra, Chief District Health Officer as Annexure-I. The appointment is given on certain terms and conditions which are also annexed to the said order. ( 2 ) ). MR. R. S. Sanjanwala, learned Advocate appearing for the petitioner, invited the attention of the Court to condition nos. 11 and 12 of the said appointment order which provide as under :"condition No. 11 -- This temporary appointment is made on the condition of approval by the District Panchayat Services Selection Committee. In case approval of the Committee is not received then he will be terminated or if a candidate is available from the waiting list prepared by the Committee and there being recommendations for appointment of such candidate, he will be terminated. "condition No. 12 -- You will have to apply for this post when advertisement is given by the District Panchayat Services Selection Committee within the prescribed period, if application is not made or if written test is held or if interview is not attended or if you are not selected or if selected, but on the post of serial number in the merit list if you are not allotted to this District, then, you will be terminated. " ( 3 ) ). MR. Sanjanwala submitted that respondent no. 1, i. e. Secretary, Valsad District Panchayat Selection Committee, advertised the post of Computer on 10th December, 1976. The petitioner applied pursuant to the said advertisement and as stated in paragraph 4. 2 of the petition, interviews were held on 13/6/1978. The petitioner was not called for interview and therefore, he was constrained to take up legal proceedings by filing an Appeal before the Gujarat Civil Services Tribunal, being Appeal No. 224 of 1978. The said Appeal came to be allowed by the Tribunal by passing an order, extracts of which are placed on record in paragraph 6, which reads as under :"the appeal is allowed. The Order No. EST/k/computer/20658-60 dated 15. 7. 1978 discharging the appellant from service is set aside. The said Appeal came to be allowed by the Tribunal by passing an order, extracts of which are placed on record in paragraph 6, which reads as under :"the appeal is allowed. The Order No. EST/k/computer/20658-60 dated 15. 7. 1978 discharging the appellant from service is set aside. The appellant shall be deemed to have continued in service as if the above order had not been passed and he will be entitled to full pay and allowance from the date of his discharge. (2) the respondent no. 3 should specifically consider the case of the appellant in the light of the recruitment rules, interview him if necessary and give appropriate advice to the appointing authority, who should decide on merits whether the appellant should continue in service or not. (3) if it is not possible to provide for respondent no. 4 in some other post, he will have to be discharged from service. " ( 4 ) ). MR. Sanjanwala submitted that thereafter, the petitioner was reinstated in service. Not only that he was paid full pay and allowances from the date of his discharge. ( 5 ) ). IT is worth noting that after the aforesaid order, whereby the order discharging the petitioner was quashed and set aside and the appellant was ordered to be deemed to have continued in service and he was ordered to be paid full pay and allowances from the date of his discharge, the same is challenged by the authorities and for that, no reasons are coming forward even in the Affidavit in reply filed in this petition by Dr. N. K. Chopra, the Chief District Health Officer. ( 6 ) ). MR. Sanjanwala submitted that some of the directions given by the Tribunal in paragraph 2 of the operative part of the order, namely, respondent no. 3 should specifically consider the case of the appellant in light of the recruitment rules, interview him, if necessary, and give proper advise to the appointing authority, which should decide on merits, whether the appellant should continue in service or not, were not carried out by the authorities despite several oral and written representations of the petitioner. The petitioner was, therefore, constrained to approach this Court by filing the present petition in the year 1988. ( 7 ) ). The petitioner was, therefore, constrained to approach this Court by filing the present petition in the year 1988. ( 7 ) ). THE matter was heard on 16th January, 1989 for its admission and the Court was pleased to pass an order, which reads as under :"rule. To be heard with Special Civil Application No. 5737 of 1985. NOTICE as to interim relief to made returnable on 31/1/1989. Direct service permitted. "thereafter, the matter was adjourned from time to time and on 2nd August, 1991, the Court was pleased to pass an order which reads as under :"this matter and the Special Civil Application No. 5737 of 1985 both be fixed for hearing in the week commencing from 19th August, 1991. "after that, it is only in the month of December, 2000, that the matter came to be listed for final hearing. ( 8 ) ). MR. Sanjanwala submitted that pursuant to the terms and conditions of the appointment order of the petitioner, the petitioner was under duty to apply in response to an advertisement. After he applies, if the written test is held and if he fails to appear in the written test or if he appears in the written test, but, fails to appear in the interview, held after written test, or though he is selected after the interview, but, he does not come within the required number of appointees on the basis of merit, his services could have been terminated. Mr. Sanjanwala submitted that on the contrary nothing happened as provided in the terms and conditions of the appointment order after the petitioner appeared for the written test, he was neither called for interview nor was communicated any reasons for not calling him for interview. His services were terminated and therefore, he was constrained to approach the Gujarat Civil Services Tribunal in which the order as aforesaid was passed and after having complied with first part of the order, the second part of the order was not complied with by the authorities and therefore, the petitioner approached this Court. ( 9 ) ). MR. Doshit, learned Advocate appearing for the respondent authorities, submitted that an Affidavit in reply is already filed and as submitted in the Affidavit in reply, the petitioner had applied for the post when applications were invited by the District Panchayat Selection Committee. He had also appeared for the written test. ( 9 ) ). MR. Doshit, learned Advocate appearing for the respondent authorities, submitted that an Affidavit in reply is already filed and as submitted in the Affidavit in reply, the petitioner had applied for the post when applications were invited by the District Panchayat Selection Committee. He had also appeared for the written test. However, the petitioner was not called for interview as the Committee had called for interview only such applicants, who had obtained at least 60% marks in the S. S. C. Examination. Having regard to the number of posts to be filled in, only particular numbers of applicants were called. The percentage of marks obtained by the petitioner at the S. S. C. examination were less than 60% and therefore, he was not called for interview. The services of the petitioner were therefore, liable to be terminated in accordance with the terms and conditions of the appointment. These submissions are not open to the respondents now in this petition because this controversy stands concluded by the order of the Tribunal. ( 10 ) ). MR. Doshit, learned Advocate appearing for the respondents, is not able to point out anything to explain the inaction on the part of the respondent authorities in not carrying out the directions issued by the Gujarat Civil Services Tribunal in paragraph 2 of the operative part of the order. It is not only surprising, but, also shocking that the order was complied with in part and remaining part of the order was not complied with. According to Mr. Doshit, the authorities had valid reasons for terminating the services of the petitioner. The order passed by the Gujarat Civil Services Tribunal, which is not challenged before higher forum, has become final. Therefore, today, what is required is, to allow the petition, filed by the present petitioner seeking the compliance of the said order. The authorities having accepted the verdict of the Gujarat Civil Services Tribunal cannot be now allowed to say that the services of the petitioner were rightly terminated in view of the terms and conditions of the appointment order. This argument or plea was available to the authorities right in the year 1978, which cannot be heard from the authorities now in the year 2001. All along the petitioner has continued in service. Mr. Doshit submitted that the petitioner has continued in service under the orders of the Court. This argument or plea was available to the authorities right in the year 1978, which cannot be heard from the authorities now in the year 2001. All along the petitioner has continued in service. Mr. Doshit submitted that the petitioner has continued in service under the orders of the Court. This is not borne out from the record. The record shows that the petitioner was continued in service after he was reinstated in service under the order of the Tribunal. The said order was not challenged by the authorities for the reasons best known to them. Not only that as referred to hereinabove, in this petition also, it was only, "notice as to interim relief", was issued and no interim relief was ever granted, possibly because no interim relief was required to be granted as the petitioner was already continuing in service, having reinstated by the authorities themselves in partial compliance of the order of the Tribunal. ( 11 ) ). MR. Doshit submitted that in the changed circumstances, which is stated in the Affidavit in reply, "by a Government Resolution of Health and Family Welfare Department, No. CHC-3092-3027-B dated 1/3/1995, the pattern of staff in the Head Quarters of a Primary Health Centre was fixed, under that pattern the post of clerk (in which the cadre of computer was merged) is abolished", no relief can be granted to the present petitioner. Mr. Doshit is not able to point out as to what happened to the other similarly situated regularly appointed persons as computers. The authorities shall give similar treatment to the present petitioner also. ( 12 ) ). MR. SANJANWALA, learned Advocate for the petitioner, submitted that the `computers under the said Government Resolution were to be the `clerks as the cadre of `computer was merged with the cadre of `clerk. Mr. Sanjanwala submitted that in any case, what the petitioner seeks is equal treatment as is given to other similarly situated persons. Mr. Sanjanwala also pointed out that he has mentioned in the `affidavit in support dated 11th February, 2001 in paragraph 3 that number of other persons, who were junior to the petitioner, were given promotions ignoring the claim of the petitioner. Be that as it may. Mr. Sanjanwala also pointed out that he has mentioned in the `affidavit in support dated 11th February, 2001 in paragraph 3 that number of other persons, who were junior to the petitioner, were given promotions ignoring the claim of the petitioner. Be that as it may. The question remains that the order of the Tribunal has become final and the same is implemented by the authorities in part and only some part of the order is not implemented by the authorities for which no explanation, much less a satisfactory explanation, is coming forth from the respondent authorities. ( 13 ) ). IN the result, the petition is allowed. The respondent authorities are directed to consider the case of the petitioner as duly appointed for the post of clerk in view of the provisions of the Government Resolution dated 1/3/1995 and to give him proper seniority and all benefits of service. The respondents are also directed to consider the case of the petitioner in light of the provisions of the Government Resolution dated 6th April, 1998 as the petitioner has already completed age of 45 years. Taking into consideration the fact that the petitioner is dragged to this Court for no fault of the petitioner, costs of Rs. 5500. 00 is awarded to the petitioner. Rule is made absolute. .