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2011 DIGILAW 292 (GUJ)

State of Gujarat v. Ajay Nanaji Rajput

2011-04-06

G.B.SHAH, V.M.SAHAI

body2011
JUDGMENT : V. M. Sahai, J. This Letters Patent Appeal has been filed by the appellants challenging the judgment of the learned Single Judge dated 7th July, 2010 passed in Special Civil Application No. 12845 of 2009 by which the learned Single Judge has allowed the petition relying on Division Bench decision dated 29.6.2010 passed in Letters Patent Appeal No. 446 of 2010 and has passed the following order : "5. This petition is allowed. The petitioners are ordered to be reinstated in service with full back wages from the date of the petition till the date of their reinstatement in service with continuity of service. The Government Resolution dated 11.6.2009 will be effective from 4.2.2009 in the cases of the petitioners and the petitioners will be entitled to all the consequential benefits subject to specific order regarding back wages as stated hereinabove. Rule is made absolute accordingly. No order as to costs." 2. The learned Assistant Government Pleader Mr. N.J.Shah appearing for the appellants has urged that judgment dated 29th June, 2010 of the Division Bench of this Court in the case of Dr. Vinod Behari Simlote v. State of Gujarat and others in Letters Patent Appeal No. 446 of 2010 is under challenged before the Apex Court. However, it is admitted by the learned counsel for the parties that the Special Leave to Appeal (Civil) (CC 17661 of 2010) has been dismissed by the Apex Court by order dated 10.12.2010. The order of the Apex Court dated 10.12.2010 is extracted below: "Delay condoned. The Special Leave Petition is dismissed." 3. The Division Bench had found that the State Government by the Government Resolution dated 4.2.2009, had enhanced the age of superannuation of Insurance Medical Officers from 58 years to 62 years and by another Government Resolution dated 11th June, 2009, the age of superannuation of Medical Officers appointed under ESIS was also extended from 58 years to 62 years. 4. It is not disputed by the learned counsel for the parties that the respondents in this Appeal are those employees who have already retired during 28February, 2009 to 11th June, 2009 and whether the benefit of enhancement in age of superannuation from 58 years to 62 years would be available to them or not. 5. 4. It is not disputed by the learned counsel for the parties that the respondents in this Appeal are those employees who have already retired during 28February, 2009 to 11th June, 2009 and whether the benefit of enhancement in age of superannuation from 58 years to 62 years would be available to them or not. 5. The Division Bench has found as a fact that hospitals and dispensaries under ESIS were administered and financially controlled by Health and Family Welfare Department of the State Government and the criteria for recruitment, other service conditions including pay, promotion, benefits of higher pay scales to Medical Officers as per Tikku Pay Commission were also made applicable to the Insurance Medical Officers. The appointing authority and the parent department of Medical Officers, Class II under the Health and Medical Service Department and those for the Insurance Medical Officers appointed under ESIS were the same. 6. In para-8 of the judgment, the Division Bench has held as under: "8. As already held hereinabove in paragraph 5, non-inclusion of Insurance Medical Officers in G.R. dated 4.2.2009 was irrational and arbitrary or possibly an inadvertent omission and that view of the matter is buttressed by the fact that the Government have extended the same benefit to such officers by the next G.R. dated 11.6.2009. Therefore, the crucial question of giving retrospective effect to the second G.R. assumes importance and upon resolution thereof depends the removal of discrimination and real relief for the Insurance Medical Officers who would have retired during the short period intervening between the two resolutions. In other words, the cut-off date indirectly prescribed by G.R. dated 11.6.2009 by making it prospective cannot be examined in isolation as a stand-alone measure, but it has to be seen as a remedial and curative measure calculated to remove the injustice meted out to Insurance Medical Officers due to their exclusion inadvertent or arbitrary, from the operation of the first G.R. dated 4.2.2009...." In the same paragraph. the Division Bench has further held as under: "....The Government could not have and could not be justified in having the intention of depriving the few Insurance Medical Officers, who might have retired during March to June 2009, of the benefit of G.R. dated 11.6.2009. the Division Bench has further held as under: "....The Government could not have and could not be justified in having the intention of depriving the few Insurance Medical Officers, who might have retired during March to June 2009, of the benefit of G.R. dated 11.6.2009. Thus, the indirect fixing of the cut-off date for operation of the G.R. dated 11.6.2009 is, in the facts of the present case, having the effect of hostile discrimination without any nexus with the object sought to be achieved and also of perpetuating the effect of discrimination and injustice, caused by non-inclusion of Insurance Medical Officers in the first G.R. dated 4.2.2009. There is no question of any financial impact and no such issue is raised in the facts of the present case...." 7. The Division Bench in para-10 granted relief to the appellant which reads as under: "10. Therefore, in the facts and for the reasons discussed hereinabove, the impugned order dated 10.9.2009 in S.C.A.No. 8629 of 2009 is set aside and the appellant is ordered to be reinstated with full wages for the period from 1.8.2009 till the date of his reinstatement in service with continuity of service. It is also directed that G.R. dated 11.6.2009 shall take effect from 4.2.2009 in case of the appellant with all the consequential benefits subject to specific order regarding back wages as stated hereinabove." 8. The learned Single Judge has relied on the decision of the Division Bench and has granted the same relief to the respondents. 9. After hearing learned Assistant Government Pleader Mr. N.J. Shah appearing for the appellants and Mr. S.J. Gaikwad, learned counsel appearing for the respondents, we do not find any reason to take a contrary view than what has been taken by the Division Bench in Letters Patent Appeal No. 446 of 2010 in case of Dr. Vinod Behari Simlote v. State of Gujarat and others decided on 29th June, 2010. We are in agreement with the view taken by the Division Bench and the impugned judgment of the learned Single Judge dated 7th July, 2010. This Appeal is devoid of any merits and is accordingly dismissed. 10. As the Letters Patent Appeal is dismissed, Civil Application No. 4440 of 2011 does not survive. Appeal dismissed.