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2013 DIGILAW 57 (GUJ)

Ram Suhag Kumar v. State of Gujarat

2013-02-01

PARESH UPADHYAY

body2013
JUDGMENT : Paresh Upadhyay, J. Heard Mr. Kirtidev R. Dave, learned Advocate for the petitioner and Mr. Udit Mehta, learned Assistant Government Pleader for the respondent authorities. 2. In this petition, challenge is made to the order dated 12.08.2004 passed by the respondent authorities whereby the petitioner was terminated as probationer. It is stated on behalf of the petitioner that the petitioner was appointed on 23.07.1999 as Medical Officer and till termination order came to be passed on 12.08.2004, there was no break in his service, and thus the date on which the impugned order came to be passed, the petitioner had put more than five years of service. Learned counsel for the petitioner has contended that the Government did not have any power to pass the order after 23.07.2003, since as per Rules, the petitioner could not have been continued as probationer beyond that period. It is further contended that if the language of the impugned order is seen, the petitioner was terminated for misconduct. It is therefore contended that even if it is held that the Government had power to pass the order even after four years, the order impugned in this petition is a short cut to departmental inquiry and therefore, the same needs to be quashed and set aside. Learned Advocate for the petitioner, in support of the first contention that the Government did not have power, has relied on the decision of this Court in Special Civil Application No. 1913 of 1998 (C.M. Rathod v. Gujarat Maritime Board) as confirmed by the Division Bench in Letters Patent Appeal No. 855 of 1998. 3. Learned Assistant Government Pleader Mr. Mehta by referring to affidavit-in-reply filed on behalf of the Government, first dated 16.02.2006 and second dated 16.05.2010, vehemently contended that the petitioner misbehaved and committed misconduct during probation period and therefore he could not have been continued in Government service and therefore the service of the petitioner came to be terminated as probationer. It is contended that this Court may not interfere in the order impugned in this petition. 4. It is contended that this Court may not interfere in the order impugned in this petition. 4. Having heard learned counsel for the petitioner and learned Assistant Government Pleader and having gone through the petition as well as both affidavit-in- replies filed on behalf of the respondent authorities, I find that so far the first argument of learned advocate for the petitioner, with regard to deemed confirmation of the petitioner is concerned, the issue is covered by the judgment of this Court in the case of Gujarat Maritime Board v. C.M. Rathod (supra). Government did not have power to pass such order of termination after four years of service. Be it noted that in the case of Gujarat Maritime Board (supra), it was not that the Rule of the Board was under consideration but it was the Rule of the Government {General Administrative Department} which fell for interpretation, which is the same Rule which is applicable and applied in the present case. Learned Assistant Government Pleader is not in a position to point out as to whether some different Rule was applicable to the petitioner or as to whether the law has changed after the decision of the Division Bench in case of Gujarat Maritime Board (supra) which is relied on by the learned Advocate for the petitioner. In this fact situation the petition succeeds on the first point itself which is of interpretation of the Gujarat Civil Services Classification and Recruitment (General) Rules, that the order impugned in this petition, was beyond the power of the Government. 5. Even on merits, learned Advocate for the petitioner is right in contending that if the language of the order impugned, as well as both the affidavits filed on behalf of the authorities are considered, it is ex-facie stigmatic and resorting to termination of petitioner as a probationer, was a short cut to departmental inquiry. Thus even if this order was passed within first four years, then also the order could not have been upheld. Thus, the impugned order cannot be sustained in the eyes of law even on that count and the same needs to be quashed and set aside. 6. For the reasons recorded above, the petition is allowed. The impugned termination order dated 12.08.2004 is quashed and set aside. The petitioner is deemed to have continued in service and shall be entitled to all consequential benefits. 6. For the reasons recorded above, the petition is allowed. The impugned termination order dated 12.08.2004 is quashed and set aside. The petitioner is deemed to have continued in service and shall be entitled to all consequential benefits. Respondents are directed to give all consequential benefits to the petitioner within a period of three months from today. Rule made absolute. No costs. Petition allowed.