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Gujarat High Court · body

2019 DIGILAW 327 (GUJ)

NAVINBHAI B. GANDHI v. STATE OF GUJARAT

2019-04-08

A.S.SUPEHIA

body2019
ORDER : 1. The instant writ petitions have been filed with the following prayers in paragraph No.7(a) and (b): "(a) Be pleased to admit this petition; (b) Be pleased to issue a writ of mandamus or any other appropriate writ, order or directions, quashing and setting aside the communication dated 17.7.2007 sent by respondent no.3 to the petitioners and be pleased to hold that the communication dated 17.7.2007 is absolutely illegal, arbitrary and unjust;" 2. The brief facts giving rise to these petitions are as under : 2.1 The petitioners are the teaching and non-teaching staff of respondent No.4 college. 2.2 The respondent No.4 - Pachchigar Charitable Trust (“Trust”) had started Homeopathy College for DHMS course in 1982 which was recognised by the Central Council of Homeopathy, i.e., respondent No.6 as well as the Government of Gujarat. It is submitted that initially, the respondent No.4 was recognized as self-finance institution form 1982 top 1986. Thereafter, the State Government had recognized the said institution as grant-in-aid institution for DHMS course from 1986. The respondent No.4 was being released grant upto 100% to meet with the expenses of salaries of teaching and non-teaching staff and 60% grant to meet with the expenses for other purposes. The petitioners were appointed form time to time as teaching and non-teaching staff. 2.3 It is the case of the petitioners that all the staff of the respondent No.4 college was appointed by the respondents - authorities as per the Rules and Regulations and also approved by the respondents - authorities. The petitioners were appointed as per the norms of respondent No.6. Even the respondents - authorities had passed resolution dated 03.11.1988 and granted all the pay and allowances as per the recommendations of Fifth Pay Commission to the staff of respondent No.4 College and since then, all the teaching and non-teaching staff of respondent No.4 college have been getting salary and allowances as per the revised rates. It is stated that upto 1997, the course of DHMS was being run by the respondent No.4 as grant-in-aid college. However, it seems that in 1998, the Central Government decided to stop the course of Diploma DHMS Course and to started BHMS Degree Course. Therefore, the respondent No.4 college also stopped Diploma DHMS Course and started proceedings for obtaining recognition for the BHMS Degree Course. 3. Learned advocate Mr. However, it seems that in 1998, the Central Government decided to stop the course of Diploma DHMS Course and to started BHMS Degree Course. Therefore, the respondent No.4 college also stopped Diploma DHMS Course and started proceedings for obtaining recognition for the BHMS Degree Course. 3. Learned advocate Mr. Majmudar appearing for the petitioners has submitted that there are five colleges, namely, Gujarat Homeopathic Medicine College, Savli, AJ Savla Homeopathic Medicine College, Dr. V.H. Dave Homeopathy Medicine College, Anand Homeopathic Medicine College and Hospital and the CD Pachchigar Homeopathic Medical College under the respondent No.5 university. He has submitted that all the teaching and non-teaching staff of the aforesaid four colleges were absorbed except the respondent No.4 - Trust on the same post with continuity of service after commencement of BHMS Degree Course. 3.1 Learned advocate Mr. Majmudar has submitted that respondent No.6 had granted permission to the aforesaid colleges only for two years, i.e., 2001 and 2002 for starting the BHMS Degree Course. He has submitted that while taking permission from respondent No.6, respondent No.4 - Trust had given undertaking to the effect that the teaching and non-teaching staff would be appointed as per the norms of the Government as well as Ordinance 69-A and 69-B of the University. 3.2 Learned advocate Mr. Majmudar has submitted that in the year 2001, since the petitioners were not paid salaries, they were constrained to prefer Special Civil Application No.6156 of 2002 before this Court. This Court in the said petition had passed the order directing the respondent No.4 to deposit an amount of Rs.82,25,735/- and further, it was directed to make payment of the salary to the petitioners. However, from September 2003, respondent No.4 stopped making payment of salary to the petitioners and, therefore, contempt proceedings were also initiated. He has submitted that thereafter, since the petitioners were not absorbed, they were constrained to file Special Civil Application No.8960 of 2002 before this Court seeking direction upon the respondents authorities to absorb them as teaching and non-teaching staff for BHMS Degree Course in respondent No.4 - CD Pachchigar Homeopathic Medical College and Hospital, Surat. The aforesaid writ petition was disposed of vide order dated 06.09.2002 by directing the petitioners to make representation before the respondents authorities. 3.3 Learned advocate Mr. The aforesaid writ petition was disposed of vide order dated 06.09.2002 by directing the petitioners to make representation before the respondents authorities. 3.3 Learned advocate Mr. Majmudar has submitted that pursuant to the aforesaid order, the petitioners made representations to the Deputy Secretary, Health and Family Welfare Department by communication dated 18.12.2002 directing the respondent No.4 to absorb 19 employees in the degree colleges. It was clarified in the aforesaid communication that the liability of the payment of the salary and allowances of such employees will entirely depend on the respondent No.4 college. He has submitted that despite the aforesaid communication, the respondent No.4 did not absorb the present employees. He has submitted the South Gujarat University also decided to absorb them as teaching and non-teaching staff in respondent No.4 college for BHMS Degree Course. Such resolution was passed by Syndicate Committee on 14.08.2003, however, the respondent No.4 did not pass any such orders. It is submitted by learned advocate that the respondent No.4 in fact has belatedly decided to run the college as self-finance college with a view to see that staff of the their choices be appointed. 3.4 Learned advocate Mr. Majmudar has further invited the attention of this Court to the order dated 12.10.2006 passed in Special Civil Application No.13462 of 2006 by the petitioners challenging their terminations. The same was disposed of vide order dated 12.10.2006 by directing the respondents to see that respondent No.4 may take effective steps to absorb such petitioners in service. However, it was observed that this Court has not expressed any opinion on merits. 3.5 Learned advocate Mr. Majmudar submitted that the petitioners made representations for absorption as teaching and non-teaching staff in respondent No.4 college, the petitioners were informed by communication dated 22.01.2007 written by the Secretary of respondent No.4 College that they would be absorbed without continuity of service and other consequential benefits in the new pay-scale and subject to the terms and conditions mentioned therein. Thus, it is submitted that respondent No.4 - Trust decided to absorb the petitioners as fresh appointees subject to new terms and conditions and without continuity of service and other consequential benefits and the petitioner did not agree to the same and they decided to challenge the same. 3.6 Learned advocate Mr. Thus, it is submitted that respondent No.4 - Trust decided to absorb the petitioners as fresh appointees subject to new terms and conditions and without continuity of service and other consequential benefits and the petitioner did not agree to the same and they decided to challenge the same. 3.6 Learned advocate Mr. Majmudar has submitted that the petitioners filed Special Civil Application No.7316 of 2007 and allied matters before this Court seeking direction on the respondent No.4 to absorb them in grant-in-aid institute. By the order dated 19.03.2007, while recording the statement made by the learned advocate for the petitioners that the petitioners are ready and willing to join in any grant-in-aid homeopathy colleges and they are also ready to give necessary undertakings to that effect. He invited the attention of this Court to the undertakings given by the petitioners on 19.05.2007, wherein, they have given an undertaking to the effect that they are ready and willing to be absorbed in any other grant-in-aid homeopathy college with continuity of service and they are agreeable to accept the same. 3.7 Learned advocate Mr. Majmudar has further invited the attention of this Court to the order dated 19.03.2007 Passed in Special Civil Application No.7316 of 2007, wherein it was specifically recorded that as and when the Assistant Director receives the undertaking from any of the petitioners, the same may be considered whether the petitioners are entitled to continue in service or not and then pass appropriate orders and inform to the petitioners. Pursuant to the order dated 19.03.2007 passed by this Court, the Director of the Indian System of Homeopathic and Medicine sent a communication dated 17.07.2007 to one of the petitioners by which case of the petitioners was rejected on the ground that the State Government is not responsible for their absorption since the appointments were not made by the State Government and the respondent No.4-College had entered with an agreement between them on the stamp paper of Rs.50/-. 3.8 Learned advocate Mr. Majmudar has further submitted that the organizer of the respondent No.4 has entered into an agreement with the State Government, i.e., it would like to run the college as self-finance and, therefore, expenses of salary and allowance as well as the infrastructure will be borne by trust. 3.9 Learned advocate Mr. 3.8 Learned advocate Mr. Majmudar has further submitted that the organizer of the respondent No.4 has entered into an agreement with the State Government, i.e., it would like to run the college as self-finance and, therefore, expenses of salary and allowance as well as the infrastructure will be borne by trust. 3.9 Learned advocate Mr. Majmudar has contended that since, the institute has closed the diploma course, the pay of the petitioner has been stopped by the State Government and since there is no provision of absorbing such employees in other grant-in-aid homeopathy colleges, the request is rejected. He has further pointed out that one of the employees, namely Vinodchandra N. Patel, who was working in the college by the respondent No.4 was absorbed, whereas, the present petitioners were discriminated. Thus, he has submitted that the petitioners cannot be terminated from service by the respondent No.4 despite instructions to the State Government to absorb the petitioners. 4. Learned AGP Ms. Calla appearing for the respondent Nos.1 and 2 has submitted that the petitioners have suppressed the facts before this Court simply producing the letter of Director of the Indian System of Homeopathic and Medicine dated 03.02.2007, but having not produced the G.R. dated 19.01.2007. She has submitted that according to the aforesaid G.R. dated 19.01.2007 issued by the Health and Family Welfare Department, the petitioners were asked to give the consent letter but only Vinodchandra N. Patel had given his consent letter. Since the consent was not given by any of the other petitioners, they were not absorbed in other colleges. She has submitted that Shri CD Pachchigar Homeopathic Medical College was covered under the direct payment scheme through G.R. dated 23.10.1986 issued by the Health and Family Welfare Department for diploma course and as per the said GR, there is a provision which enables that whenever course is discontinued or derecognized by the Council / University, the Government can discontinue the payment of salary of the staff. She has submitted that since the college, in which the petitioners were working, has been permitted to start degree course on self-finance basis from June 2000 by Health and Family Welfare Department, the salary of the staff was stopped since September 2003. She has submitted that it was the responsibility of the respondent-trust to absorb the petitioners. She has submitted that since the college, in which the petitioners were working, has been permitted to start degree course on self-finance basis from June 2000 by Health and Family Welfare Department, the salary of the staff was stopped since September 2003. She has submitted that it was the responsibility of the respondent-trust to absorb the petitioners. She has submitted that various homeopathy colleges were refused to absorb the petitioners since the post was not available. Thus, she has submitted that the entire burden was on the respondent No.4 alone to absorb the staff. 5. I have given my thoughtful consideration to the submissions advanced by the learned advocate for the respective parties. Learned advocate Mr. Dhaval Barot appearing for the respondent No.4 has chosen not to remain present. 6. Before adverting to the merits of the case, it will be apposite to refer to various writ petitions filed by the petitioners. The facts which are not in dispute is that the college Shri CD Pachchigar Homeopathic Medical College, which is run by respondent No.4, was converted into a self-finance college with effect from 15.02.2001 as it was permitted to start degree course on self-finance basis. The petitioners in the aforesaid college were discontinued since the diploma course in the college was no more in existence. It appears that the action of the state government in derecognizing the institute in which the petitioners were serving was challenged before this Court by filing writ petition being Special Civil Application No.3965 of 1997. Since the petitioners, were not paid the salary, they approached this Court by filing Special Civil Application No.6156 of 2002. Both the writ petitions were disposed of vide judgment dated 11.04.2007 by observing thus: “Under the circumstances, the respondent No.1 is also directed to consider the claim of the petitioner at the time of considering the bill submitted by the respondent No.2 towards the Maintenance Grant as well as the Salary Grant for which necessary direction is issued hereinabove. Both the writ petitions were disposed of vide judgment dated 11.04.2007 by observing thus: “Under the circumstances, the respondent No.1 is also directed to consider the claim of the petitioner at the time of considering the bill submitted by the respondent No.2 towards the Maintenance Grant as well as the Salary Grant for which necessary direction is issued hereinabove. If ultimately it is found that the petitioner is entitled to 100% salary after completion of audit, then the payment already made by the respondent No.2 to the petitioner and others shall be reimbursed and/or adjusted accordingly and the balance amount, if any, payable to the petitioner and/or other staff members of the DHMS may be paid to the petitioner and other members directly or through respondent No.2 as per the practice prevailing.” 6.1 The petitioners also filed Special Civil Application No.8960 of 2002 praying for directions to the respondents to absorb entire teaching and non-teaching staff of D.H.M.S, Diploma Course in the respondent-4 C.D.Pachigar college. The same was disposed of vide order dated 06.09.2002 by directing the petitioners to approach the authorities by making a representation who in turn will consider the same. It appears from the communication dated 22.1.2007, the respondent-college carried out the exercise for absorbing the staff of the Diploma Course. There were in-depth discussion with all the concerned parties including the petitioner, the health and family welfare department, and the management and a unanimous formula was arrived at to the effect that “those who want to be joined with same status, pay scale, etc with the other GIA BHMS colleges, will approach the department and those who were ready to work at the College with existing terms and conditions, will approach the management. Accordingly, Dr. Sucheta Pandit, Dr. Nina Banker, Dr. Bhupendra Shah, Dr. Vinod Vyas, Mr. Hiten Bhagwatwaka, Mr. Rajesh Maturdkar, Mr. Ahok Bhabsude and Mr. Rakesh Patel were appointed. As regards the petitioner Dr. Navin Gandhi and Dr. Mahesh Jooshi at the relevant time were selected by the panel and were recommend to the University and were later on approved, did not accept the offer of the appointment. Thus, the petitioners were offered appointment after there was an amicable formula arrived at between the government and the colleges and the employees but they refused to accept the same. Mahesh Jooshi at the relevant time were selected by the panel and were recommend to the University and were later on approved, did not accept the offer of the appointment. Thus, the petitioners were offered appointment after there was an amicable formula arrived at between the government and the colleges and the employees but they refused to accept the same. 6.2 The petitioners thereafter, filed Special Civil Application Nos.13462 of 2006 and 13480 of 2006 challenging the order dated 1.4.2004 through which the Administrator of the College had directed the entire staff of Diploma course not to remain present in the college premises from 1.4.2004. The writ petition was disposed of vide order dated 12.10.2006, by observing thus: “3. As and when the respondent No.4 receives the representation from the petitioners, it is directed to the respondent No.4 to re-consider the representation of the petitioners and if possible, absorb the petitioners in service. However, respondent No.4 shall have to pass appropriate reasoned order in accordance with law within a period of 2 months from the date of receiving such representation from the petitioners and communicate same to the petitioners. 4. It is directed to the respondent State to see that respondent No.4 may take effective steps to absorb such petitioners in service. 5. In view of the aforesaid observation.” 6.3 Pursuant to the aforesaid order, the petitioners made a representation to the respondent-authorities. Vide communication dated 22.01.2007, the respondent-College informed the petitioners that they are ready and willing to appoint the petitioners in the same cadre provided they give an undertaking by stating as follows: “You will abide by the existing terms, rules, and regulations of the Self Financed B.H.M.S Degree Course and that may be framed in future inclusive of pay and other service conditions; with the right of management to review your service and act at their will”. 6.4 It was further observed that their appointments will be considered afresh and no back date benefit will be given. As stated in preceeding paragraphs, there was amicable settlement reached by consulting the petitioners, the state government and the college for absorbing/appointment the staff of diploma course including the petitioners after the order passed by this Court in Special Civil Application No.3965 of 2002, but the petitioners refused the offer. Some of the staff members accepted the offer and joined the institute. Some of the staff members accepted the offer and joined the institute. 6.5 The petitioners thereafter, filed Special Civil Application No.7316 of 2007 and allied matters. The same were disposed of vide order dated 19.03.2007 by directing the respondents to consider the representation of the petitioners and examine their case for absorption. The petitioners had shown their willingness to give the undertaking and also expressed their inclination to join any other homeopathy colleges. Ultimately, this Court vide order dated 19.03.2007 disposed of the petitions directing the Assistant Director to decide the representation of the petitioners on the condition of filing the undertakings. It was directed by this Court that the Assistant Director shall pass appropriate orders after considering the undertakings given by the petitioners and also considering that whether the petitioners are entitled to continue in service or not. 7. The aforenoted facts reveal that the petitioners at the relevant time were called upon by the respondent college to accept their appointments pursuant to the amicable settlement arrived at between, the staff, the state government and the management and the petitioners were also called upon to accept the appointment. Some of the staff members agreed to the same and they were accordingly absorbed. The petitioners did not agree to give the requisite undertakings. 8. In the considered opinion of this Court, the petitioners cannot as a matter of right demand to get absorbed on their terms and conditions once the institute had closed down the diploma course. The State Government vide various communications have clarified that the entire burden was on the respondent No.4 – Trust to accommodate the petitioners in service. Vide communication dated 18.12.2002 passed by the Deputy Secretary of Health and Family Welfare Department, the respondent No.4 – Trust was directed to absorb the present petitioners in the degree colleges. However, the same does not in any way reveal that the petitioners shall be absorbed with continuity of service. Thereafter, it appears that since the petitioners did not agree to be join as per the settlement; all other homeopathy colleges refused their appointment as there was no post available. Some of the institutes like Anand Homeopathic Medical College & Research Institute, Anand, Hariom homeopathic Trust, Shree Dr. Virendra H. Dave Homeopathy Medical College and Smt. Shardaben I. Patel (Ipcowala) Homeopathich Hospital have refused to absorb the petitioners. Some of the institutes like Anand Homeopathic Medical College & Research Institute, Anand, Hariom homeopathic Trust, Shree Dr. Virendra H. Dave Homeopathy Medical College and Smt. Shardaben I. Patel (Ipcowala) Homeopathich Hospital have refused to absorb the petitioners. Thus, the petitioners were required to follow the other employees when they were called upon by the College to accept the terms and conditions as per the settlement, however, they did not do so, hence they cannot insist upon being appointed on their own terms and conditions in wake of the non-availability of posts. 9. Under the circumstances, the writ petition fails legal scrutiny, however, it is clarified that it will be open for the petitioners to file appropriate proceedings to claim damages against the respondent No.4 - Trust and, if any, such proceedings are filed, the same may be decided in accordance with law. Rule discharged.