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2018 DIGILAW 236 (GUJ)

M. K. Gajera v. State of Gujarat

2018-01-24

MOHINDER PAL

body2018
JUDGMENT : 1. All the aforementioned matter are taken up together having arising from the same cause of action. 2. By way of this petition, under Article 226 of the Constitution of India, the petitioner has challenged the order dated 24.1.2006, whereby, his services came to be terminated and further notification in this regard. 3. The petitioner was appointed as Insurance Medical Officer, Class-II on 27.8.1982. In July, 1983, he came to be selected by the Gujarat Public Service Commission (for short “GPSC”). In December, 1984, he was given posting as Medical Officer in Public Health Department at Primary Health Centre, Rajsitapur, District Surendranagar. On 17.10.1992, he was promoted as Additional District Health Officer, Class-I, Dang-Ahwa. On 31.1.2001, he was appointed as Chief District Health Officer (Assistant Director of Health Services Cadre) on selection by GPSC. On 12.2.2001, he joined as such, and on 31.12.2002, he was selected by GPSC and came to be appointed as Joint Director Class-I (Ophthalmology), which post, he joined on 4.1.2003. On 31.1.2004, the petitioner was given additional charge of Joint Director (Malaria) and in July, 2004, he was given regular charge of Joint Director (Malaria). 4. The petitioner was on probation for a period of two years on the said post of Joint Director (Malaria). According to the petitioner, he has completed the probation period on 31.1.2005. On completion of probation, no orders came to be passed for extension of such term of probation or confirming him on long term basis. The petitioner, therefore, made a representation to the concerned authority. He also challenged his non-confirmation on the post of Joint Director (Malaria) in Special Civil application No. 13949/2011, which is being taken up today along with the present petition. 5. On 28.12.2005, a charge-sheet came to be served upon the petitioner after the aforementioned representation and on 24.1.2006, his services as Joint Director (Malaria) were put to an end and he was asked to resume his duties as Chief District Health Officer, Valsad. On 30.1.2006, the petitioner replied to the charge sheet, however, respondent no. 2 decided to proceed further with the inquiry by communication dated 31.3.2006. By another communication dated 30.10.2007, the petitioner was informed that his services during the probation on the post of Joint Director being unsatisfactory, were put to an end. On 30.1.2006, the petitioner replied to the charge sheet, however, respondent no. 2 decided to proceed further with the inquiry by communication dated 31.3.2006. By another communication dated 30.10.2007, the petitioner was informed that his services during the probation on the post of Joint Director being unsatisfactory, were put to an end. It is further the case of the petitioner that he was threatened by the Commissioner of victimizing him because he has pointed out some irregularities in his representation given to the authorities. After conclusion of the inquiry, the inquiry report was submitted to the Disciplinary Authority. In the inquiry report, the petitioner was exonerated of second and third charge, the Disciplinary Authority, however, recorded its disagreement with the Inquiry Officer and communicated the same to the petitioner vide its letter dated 18.6.2009 calling upon the petitioner to put his final statement of defence. As a result of this inquiry proceedings, the services of the petitioner as Chief District Health Officer came to be terminated vide order dated 2.4.2012, which was challenged by he petitioner by way of Special Civil Application No. 6701/2012. This Court, vide its judgment dated 19.6.2014 allowed the special civil application and the order dated 2.4.2012 dismissing the petitioner as Chief District Health Officer, Narmada was quashed and set aside. The petitioner was directed to be reinstated with full salary and continuity of service with all other consequential benefits. 6. The grievance of the petitioner in SCA No. 2502/2011 is regarding his termination from the post of Joint Director. It is the grievance of the petitioner that though he has completed the period of probation in the year 2005, and thereafter, was allowed to continue till 2006, however, his service as Joint Director were wrongly terminated vide impugned order dated 24.1.2006. 7. The respondent-State has contested this petition by filing reply, wherein, it has been stated that as per terms and conditions of appointment dated 31.12.2002, the Government has power to extend the probation period, and as per the specific terms of assessment order, the government is further empowered to terminate the services without issuing a notice etc. 7. The respondent-State has contested this petition by filing reply, wherein, it has been stated that as per terms and conditions of appointment dated 31.12.2002, the Government has power to extend the probation period, and as per the specific terms of assessment order, the government is further empowered to terminate the services without issuing a notice etc. It is the case of the respondents that on perusal of the assessment report written by the Superior Officer for the period between 4.1.2003 to 3.1.2005, it was clear that the services of the petitioner were not found to be satisfactory, and as such, probation period was extended for another year which was within the powers of the State Government. As the petitioner, even after expiry of the extended one year period of probation, failed to show is caliber, efficiency and performance, and therefore, the Government has terminated the services of the petitioner. It has been pleaded that issuance of charge-sheet dated 28.12.2005 has no concern with the termination of the petitioner from the post of Joint Director (Malaria). In view of this pleadings, the respondents have prayed for dismissal of this petition. 8. The learned counsel has raised various arguments in favour of the petitioner. He has referred to the internal correspondence and discussion between the respondents, wherein, some of the officials have pointed out that the file of the petitioner was required to be routed through the office of Hon'ble Chief Minister, however, the same is not sent to the said office before passing the impugned order as Hon'ble Chief Minister was the appointing authority for the post of Joint Director. 9. The learned counsel for the petitioner has submitted that the petitioner has been appointed as Joint Director under the Rules and Notification of Health and Family Welfare Department, Gujarat as per notification dated 1.9.1981. The appointment to the post of Joint Director in Public Health Department can be made either by promotion of an officer on proved merits and from amongst working in the cadre of Deputy Director of Public Health under the Directorate of Health Services, who possesses the qualifications prescribed for appointment by direct selection. According to him, the petitioner was appointed by way of direct selection. According to him, the petitioner was appointed by way of direct selection. He has referred to clause-3 of the Notification, which relates to the probation period, according to which, after promotion, the petitioner was required to be kept on probation for a period of two years. According to him, once the petitioner has completed the probation period of two years, he was required to be treated as regular employee, and under these circumstances, his services could not have been terminated. He has further argued that as the post of Joint Director was direct selection, the petitioner could not have been reverted to the post of Chief District Health Officer. In support of his submissions, he has relied upon a decision of the Hon'ble Supreme Court in the case of (1) Jaswantsingh Pratapsingh Jadeja vs. Rajkot Municipal Corporation & Anr. reported in 2008(1) SC 333, (2) Pradip Kumar vs. Union of India, reported in 2012(13) SCC 182 , and (3) Sumati P. Shere vs. Union of India, reported in 1989(3) SCC 311 . 10. On the other hand, learned AGP has controverted her arguments while referring to the Gujarat Civil Services Classifications and Recruitment (General) Rules, 1967, and has contended that the State was within its power to extend the period of probation for a period of two years, and as the services of the petitioner came to be terminated within that period of two years, the order of termination was valid and legal. In support of this contention, she has relied upon the decision of learned single Judge of this Court in the case of State of Gujarat vs. B.K. Nikalani, reported in 2011(2) GLR 1333 and the decision of Hon'ble Supreme Court in the case of Registrar, High Court of Gujarat and Anr., vs. C.G. Sharma, reported in 2005(1)GLH 40. In reply to one of the contentions of learned counsel for the petitioner regarding consent of Hon'ble Chief Minister, it has been argued that the consent was duly taken on 26.7.2006, and accordingly, the termination was valid and legal. 11. This Court has considered the submissions of both the sides. Some of the facts of this case are not in dispute regarding initial appointment of the petitioner in the year 1982 on Class-II post and in 1984 as Class-I doctor. Thereafter, the petitioner came to be promoted as Chief District Health Officer, where he has worked till 31.12.2002. 11. This Court has considered the submissions of both the sides. Some of the facts of this case are not in dispute regarding initial appointment of the petitioner in the year 1982 on Class-II post and in 1984 as Class-I doctor. Thereafter, the petitioner came to be promoted as Chief District Health Officer, where he has worked till 31.12.2002. The petitioner was selected as Joint Director by way of direct selection by the GPSC, where, he joined on 4.1.2003. It is also not in dispute that thereafter, the petitioner has worked as Joint Director till 24.1.2006. The appointment of the petitioner as Joint Director was in pursuance to the Rules of Health and Family Welfare Department dated 1.9.1981, known as the Joint Director, Gujarat Public Health Services, Class-I, Recruitment Rules, 1981. As per these Rules, appointment to the post of Joint Director can be made by way of promotion or appointment by direct selection. The petitioner has been appointed by way of direct selection. Rule 3 of the aforementioned Rules deals with the probation period in case of direct selection of the candidates. As per these Rules, a candidate selected by way of direct selection was required to undergo probation period of two years. 12. It could be seen that the petitioner has joined on 4.1.2003. Meaning thereby, he has completed period of two years on 3.1.2005. The original file of the petitioner is there with the learned AGP. There is no decision by the respondents for extension of probation period of the petitioner. The petitioner has been allowed to continue for another year which has ended on 3.1.2006. Even thereafter, the petitioner has been continued till 21.1.2006. However, all of sudden, his services came to be terminated by finding his work to be unsatisfactory. 13. The main reasoning for terminating the services of the petitioner appears to be the Annual Confidential Reports, which is available on file. It has been argued by learned AGP that because of this report, the probation period of petitioner has been extended, and further, his services came to be terminated. This Court is unable to agree with the submissions simply for the reason that there was no specific decision in this regard. Even if there were adverse remarks against the petitioner in the ACR, the same were required to be conveyed to the petitioner to improve his performance. This Court is unable to agree with the submissions simply for the reason that there was no specific decision in this regard. Even if there were adverse remarks against the petitioner in the ACR, the same were required to be conveyed to the petitioner to improve his performance. In absence of any steps in this regard, the order of termination without assigning any reasons, is against the Rules of appointment, Constitutional provisions and against the principles of natural justice. 14. After the services of the petitioner as Joint Director having been terminated, he has been reverted back to his original post of Chief District Health Officer, the post where he was working prior to his selection as Joint Director. As mentioned in the foregoing para, a charge-sheet came to be served upon the petitioner, and ultimately, in pursuance to these charges, the petitioner's services as Chief District Health Officer came to be terminated in the year 2011. The petitioner has challenged this order by way of Special Civil application No. 6701/2012. The order of termination from the post of Chief District Health Officer has been quashed and set aside with all consequential benefits in favour of the petitioner. This Court would not like to elaborate further regarding the aforementioned petition as this is altogether a different matter, however, main concern of this Court would be regarding termination from the post of Joint Director. 15. Learned counsel for the petitioner has raised arguments regarding internal correspondence and not taking approval of Hon'ble Chief Minister before terminating the services of the petitioner. In response to this argument, learned AGP has referred to the approval of Hon'ble Chief Minister vide his order dated 26.7.2006. This Court has seen the order of Hon'ble Chief Minister. It will be relevant to note that the petitioner has been terminated from the post of Joint Director on 24.1.2006, however, consent of Hon'ble Chief Minister has been obtained on 26.7.2006 i.e. after about six months from the date of termination. Such approval by Hon'ble Chief Minister is nothing but flagrant violation of the established convention. This is particularly so when on the basis of termination the petitioner has been charge-sheeted and the punishment awarded by the concerned authorities has been set aside by this Court in the aforementioned special civil application. 16. Learned AGP has referred to two judgments. Such approval by Hon'ble Chief Minister is nothing but flagrant violation of the established convention. This is particularly so when on the basis of termination the petitioner has been charge-sheeted and the punishment awarded by the concerned authorities has been set aside by this Court in the aforementioned special civil application. 16. Learned AGP has referred to two judgments. First of all, I would like to take up the case of State of Gujarat vs. B.K. Nikalani (supra). This case pertains to the appointment in the Health Department. It could be seen that in the aforementioned case, employee was not appointed by any regular selection process like GPSC. There were no specific rules of probation or confirmation which are duly framed in case of appointment on the post of Joint Director, Gujarat Public Health Services Class-I Recruitment Rules 1981. In absence of any specific rules of probation or mandatory provisions, the aforementioned decision is not applicable to the facts of the present case. 17. Learned AGP has also relied upon another decision of the Hon'ble Supreme Court in the case of Registrar, High Court of Gujarat and Anr. vs. C.G. Sharma (supra). Even the facts of this case are entirely different. In this case, judicial officer was kept on probation. His probation period was extended by one year with effect from 17.6.1993. During the subsequent period also, the officer was communicated adverse remarks for the quarter between 15.6.1993 and 15.5.1994 and that the High Court considered the officer's overall performance and finally recommended to the State Government to terminate the services. It could be seen that in the present case, neither the mandatory period of two years is specifically extended by taking a decision nor any adverse remarks has been communicated to the petitioner during his period of service, and under these circumstances, even this decision is not helpful to advance the case of the State. 18. On the other hand, learned counsel for the petitioner has relied upon three judgments, which are as under: 1. Jaswantsingh Pratapsingh Jadeja vs. Rajkot Municipal Corporation & Anr. Reported in 2008(1) SC 333, 2. Pradip Kumar vs. Union of India, reported in 2012(13) SCC 182 , and 3. Sumati P. Shere vs. Union of India, reported in 1989(3) SCC 311 . Jaswantsingh Pratapsingh Jadeja vs. Rajkot Municipal Corporation & Anr. Reported in 2008(1) SC 333, 2. Pradip Kumar vs. Union of India, reported in 2012(13) SCC 182 , and 3. Sumati P. Shere vs. Union of India, reported in 1989(3) SCC 311 . All the aforementioned judgments are fully applicable to the facts of this case, according to which, if the Rules do not have any provisions to extend the probation, and allowing to continue after probation to an employee means deemed confirmation. Otherwise also, there was no such provision in the Rules for extension of probation period. Still further, if the respondents wanted to extend probation period, a specific decision in this regard was required to be taken which is not taken in the present case. 19. In view of the foregoing discussion, this petition is allowed. The impugned order dated 24.1.2006 passed by the State Government as well as by the Commissioner, are quashed and set aside. The petitioner is ordered to be treated in service on the post of Joint Director (Malaria) till his date of superannuation. He will be entitled to all consequential benefits including the pension, if permissible under the Rules. He may be further entitled to interest on the arrears at the rate of 9% per annum from the date his services as Joint Director came to be terminated till his date of superannuation. It is made clear that if the arrears are not paid within a period of six weeks from the date of receipt of copy of this order, the petitioner will be further entitled to interest at the rate of 12% per annum from the date his services came to be terminated till the date of superannuation. 20. Since the relief claims by the petitioner has been granted in SCA No. 2502/2011, SCA No. 13949/2011 and SCA No. 9171/2015 will not survive. All these petitions are disposed of as having rendered in-fructuous. The petitioner will be further at liberty to raise his grievance regarding increments and higher pay-scale etc. which he has claimed in SCA No. 9171/2015. Rule is made absolute in SCA No. 2502/2011 and Rule is discharged in SCA No. 13949/2011 and SCA No. 9171/2015. 21. At this stage, learned AGP has requested for stay of this order. The petitioner will be further at liberty to raise his grievance regarding increments and higher pay-scale etc. which he has claimed in SCA No. 9171/2015. Rule is made absolute in SCA No. 2502/2011 and Rule is discharged in SCA No. 13949/2011 and SCA No. 9171/2015. 21. At this stage, learned AGP has requested for stay of this order. Keeping in view the fact that the petitioner has already retired from service, the request to withhold the payment of arrears for a period of six weeks is declined.