Research › Search › Judgment

Gujarat High Court · body

2019 DIGILAW 924 (GUJ)

Paresh Zanzmera v. State of Gujarat

2019-10-15

A.S.SUPEHIA

body2019
JUDGMENT : A.S. SUPEHIA, J. 1. In the present petition, the petitioners have prayed for quashing and setting aside the Government Resolution dated 11th September, 2008. The issue pertains to grant of non-practicing allowances to the petitioners. 2. It appears that similar set of petitioners had approached to this Court challenging the Government Resolution dated 27th March, 2008 whereby the Doctors are permitted to do the private practice. 3. The said averments made in para (b) and para (c) of the writ petition, the same are incorporated as under: (b) It is submitted that the petitioners herein joined the services with the State Government knowing fully well that they should not be allowed to do private practice and in lieu thereof Non Practicing Allowance will be paid to them. The petitioners herein discharge their duties efficiently, diligently and to the utmost satisfaction of the State Government as per the relevant rules applicable to them and have not indulged themselves in private practice. As and when the State Government passed a resolution dated 29th March, 2007 and stopped giving Non Practicing Allowances to the present petitioners, the petitioners herein started their private practice after office hours as laid down in the Government Resolution dated 29th March, 2007. It is submitted that till this date, the petitioners herein discharged their duties as an obedient employee, but after the implement of the resolution dated 29th March, 2007, they have started their private practice which is heard burning and adversely affect to their reputation in the society, and therefore, the impugned Resolution is required to be quashed and set aside. It is pertinent to note at this juncture that till this date, the State Government is not giving NPA to the present petitioners and the said is deducted from the salary of the petitioners. (c) It is submitted that after the Government Resolution dated 29th March, 2007, the petitioners herein started their private practice after the office hours but till this date there is not a single case which is reported or which is pointed out by the State Government that the doctors i.e. the present petitioners and the similarly situated persons have not discharged their duties properly by giving weightage to their private practice, therefore, the impugned resolution is required to be quashed and set aside. 4. 4. The aforesaid resolution was subject matter of challenge before the Division Bench in Letters Patent Appeal No. 1379 of 2008, whereas the common judgment dated 09.01.2008 passed by the learned Single Judge in Special Civil Application No. 11170 of 2007 with allied matters was confirmed. 5. It appears that the learned Single Judge had set aside the Government Resolution dated 29th March, 2007, which was the subject matter of challenge. The Division Bench, after threadbare examining the concerned Rules as well as the Resolution dated 29th March, 2007, has observed thus:- "Before proceeding with, it is made clear that the observations in this appeal will not affect pending Special Civil Application No. 12076 of 2008. It will be open to learned Single Judge to examine the matter independently irrespective of the result of this appeal. We are examining the issues which are raised in the original petition and we are not deciding the issues which are raised in Special Civil Application No. 12076 of 2008. Regarding the contention of the formation of Society at page Z-50, it is made clear that it will be open for the petitioners to challenge the same before appropriate forum, regarding the practice adopted by the State Government, nonetheless the Government will adhere to the judgment in its true spirit and if it is pointed out that they are committing breach of any Rule or any disobedience of the Court's order, they will put their house in order without relegating it to this Court. 4.1 Now coming to the contention raised by learned counsel for the appellants regarding the benefit of the Government Resolution dated 29.3.2007 at page 50 Annexure-A which is subject of the petition, a prayer is made there but nonetheless the contention that the petitioners are not joined as party, in our view, the Government Resolution which is contrary to statutory rules as pointed out by learned Single Judge in the judgment, more particularly, at paragraph Nos. 19 and 20, which is reproduced hereinafter, is rightly quashed and set aside: "19. 19 and 20, which is reproduced hereinafter, is rightly quashed and set aside: "19. Apart from the above, various recruitment rules expressly provide ban of private practice and they are as under: (a) The Physician Class-I Employees' State Insurance Scheme Recruitment Rules, 1983, inter alia, provides for Rule 8, which reads as under: "The selected candidate shall be a full time Government Servant and shall not undertake any private practice of any kind." (b) Medical Officers (Gujarat Medical Service) Class I-I Recruitment Rules, 1977, inter alia, provides Rule 7 as under: "The selected candidate shall be a full-time Government Servant and shall be debarred from private practice of any kind". (c) The District Family Planning Medical Officers' Recruitment Rules, 1967, inter alia, provides for Rule 8, which reads as under: "Appointment will be full-time and no private practice will be allowed." (d) The Gujarat Insurance Medical Officers-Class I-I (Allopathy) Employees' State Insurance Scheme Recruitment Rules, 1981, inter alia, provides for Rule 8, which reads as under: "The selected candidate shall not undertake private practice." 20. It is an admitted position that there is no amendment made prior to the policy in the aforesaid recruitment rules deleting the aforesaid prohibition against private practice. All petitioners have entered service based on the aforesaid recruitment rules since they are all those who have not completed 15 years period in service. The stand of the State Government is that the recruitment rules shall be amended after getting concurrence of Gujarat Public Service Commission. The fact remains that rules are uptill now not amended and even if amended, may be for prospective effect. Therefore, the policy runs counter to aforesaid existing recruitment rules." 4.2 If Executive fiat is contrary to Rules, in our view, under 226 of the Constitution of India when it is brought to the notice of the High Court, it is permissible to do so and as rightly submitted by learned Advocate General that the Executive fiat is a nullity and he accepted the same contention, nullity in any form can be quashed by the Court. In that view of the matter, the contention that learned Single Judge has travelled beyond the scope of the prayer is not acceptable. In our view, the Resolution is running contrary to the Rules. In that view of the matter, learned Single Judge has not committed any error in quashing and setting aside the Government Resolution. In that view of the matter, the contention that learned Single Judge has travelled beyond the scope of the prayer is not acceptable. In our view, the Resolution is running contrary to the Rules. In that view of the matter, learned Single Judge has not committed any error in quashing and setting aside the Government Resolution. As stated, if any illegality is pointed out and the Resolution is contrary to the Rules and the judgment of this Court, the State Government will act promptly and will try to see that there is no breach of any statutory rule or judgment of this Court. In that view of the matter, the appeal is devoid of any merit and the same is dismissed. 4.3 It is pointed out that the State Government has accepted the judgment and the Executive fiat is a nullity. In that view of the matter, learned Advocate General states that the State Government will adhere to the judgment in toto and will implement it. 6. Thus, it appears that the basic resolution was against the statutory Government Resolution and the judgment and order passed by the Single Judge setting aside the Resolution dated 29th March, 2007 and also been confirmed the Division Bench. Pursuant to the aforesaid judgment, the State Government in compliance of the same, has issued the Government Resolution dated 11.09.2008, which impugned in the present petition. Since, the State Government has issued the said Government Resolution, pursuant to the judgment of the Court, the Government Resolution dated 11.09.2008 cannot be set aside. The petition is also governed by the same since the similar class of employees and identically situated persons had challenged the Government Resolution dated 29th March, 2007 for permitting them private practice after office hours. 7. In this view of the above, the writ petition fails. Rule discharged.