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2024 DIGILAW 1627 (GUJ)

Madanjee Saryu Prasad v. State Of Gujarat

2024-07-26

VAIBHAVI D.NANAVATI

body2024
ORDER : Vaibhavi D. Nanavati, J. 1. Heard Mr. Sandip H. Munjyasara, learned advocate appearing for the petitioner and Ms. Pooja K. Ashar, learned AGP appearing for the respondents. 2. The petitioner herein came to be appointed as Medical Officer, Class -II, on 18.03.1997 and is serving at Community Health Centre (CHC) at Khavda, Tal. Bhuj-Kachchh. The State Government floated a scheme for in-service training program/course of Diploma in Public Health and Management (DPHM) and other courses for Medical Officers of the State. As per the Government Gazette dated 02.11.1989 and 14.11.1989, the Medical Officer, who has completed this course of DPHM, would be entitled to get promotion in the higher post of ADHO and CDHO and more higher post like Additional Director in H & FW Department. As per the said scheme, the Government would bear the entire expenses of the course. The Government would be deputing the Medical Officer in DPHM training as per the H & FW department Government Resolution dated 29.08.1986. 2.1 As per the scheme, the respondent No.3 issued a Circular on 08.12.2011 inviting applications from the Medical Officers within the seniority nos.1828 to 1950, age below 45 years on 01.01.2012, passed M.B.B.S in one trial and willing to join the said course of DPHM. The said Circular is duly produced at Annexure – D. The petitioner applied for the aforesaid on 12.12.2011. The name of the petitioner was included in the seniority list at serial no.8 having seniority no.1927; duly produced at Annexure – E, however, the petitioner’s name did not figure in the select list; to be eligible for the said training. 2.2 Being aggrieved by the same, the petitioner preferred Special Civil Application No.604 of 2012 for a direction to the respondents to depute the petitioner for the DPHM course at his own cost. By order dated 26.04.2012, it was observed that the petitioner were to pursue DPHM course at his own cost and therefore, the respondents were directed to decide the application in this background and in accordance with law. Being aggrieved by the said observation, the petitioner preferred Letters Patent Appeal No.1017 of 2012 on the ground that the statement with regard to willingness to join the course at his own expense was made because of petitioner’s miscommunication. Being aggrieved by the said observation, the petitioner preferred Letters Patent Appeal No.1017 of 2012 on the ground that the statement with regard to willingness to join the course at his own expense was made because of petitioner’s miscommunication. The Hon’ble Division Bench vide order dated 21.02.2023 permitted the petitioner to withdraw Special Civil Application No.604 of 2012 with a liberty to file a fresh application with regard to the said subject matter. 2.3 In light of the aforesaid, the petitioner gave fresh application on 12.03.2013 for deputing the petitioner for DPHM course and requested to consider his case. The respondent No.2 by communication dated 20.04.2013 directed the petitioner to apply through the respondent No.4 as and when the Government issued a Circular with regard to the DPHM course by the Trivandrum Institute for the year 2014. 2.4 The petitioner once again applied on 23.01.2014 for the said course. Since the same was not replied to by the respondents, the petitioner preferred Special Civil Application No.10907 of 2014. By order dated 10.10.2014, the respondent authority was directed to take a decision upon the petitioner’s representation. In due compliance to the said order, the petitioner was informed by a communication dated 20.10.2014 that the petitioner had completed 45 years in the year 2014 and his case could not be considered. The respondent No.3 by letter dated 20.10.2014, confirmed by the Government, was informed to the petitioner by the respondent – State on 25.02.2015. 2.5 It is the case of the petitioner that there was remark on the file that ‘if the petitioner aged more than 45 years is permitted in special case for training of DPHM, than it will set an example and more demands may arise which would be difficult to negate’. On 31.08.2015, the petitioner once again requested to depute the petitioner in DPHM course in the next batch with clarification that whatever may be stated or demanded in previous applications like special case/special favour but, now the petitioner does not demand for special favour but to exempt from Government guideline due to unnecessary delay to settle the preliminary inquiry. Since the said inquiries were completed by the Investigating Officers after considerable delay, the petitioner’s case could not be considered in the year 2012 itself. The respondent sent this application dated 31.08.2015 to the respondent No.2 vide letter dated 03.10.2015 for necessary inquiry and suitable action. Since the said inquiries were completed by the Investigating Officers after considerable delay, the petitioner’s case could not be considered in the year 2012 itself. The respondent sent this application dated 31.08.2015 to the respondent No.2 vide letter dated 03.10.2015 for necessary inquiry and suitable action. 2.6 As per the Government letter dated 03.10.2015, the respondent No.3 neither inquired nor took action, sent a report to the Government by letter dated 26.10.2015 without any remarks and recommendations with false statement like petitioner’s request is for special favour/special case. In response to the respondent No.3’s letter dated 26.10.2015, the respondent No.1 replied to the respondent No.3 on 13.01.2016 that as departmental inquiry was pending against the petitioner in 2012 and now as he has crossed the age limit of 45 years, the petitioner is not eligible for joining the course of PGDPHM and asked to communicate the decision to the petitioner. 2.7 The petitioner gave representation/application on 10.02.2016. In response to the said application, the Government has decided to ‘No action’ on petitioner’s representation and asked the respondent No.2 to communicate the decision to the petitioner. The petitioner again preferred representation on 29.02.2016 and gave a copy of the same to the respondent No.3 and stated that the petitioner has got information that some doctors who were above the age of 45 years, were deputed for DPHM course. On 03.06.2016, the Section Officer of the respondent No.1 addressed a letter to the respondent No.2 and stated that the inquiry was done at your level and decision of refusing to depute the petitioner for course was also from your level. Therefore, the Commissioner had to take decision on representation of the petitioner dated 29.02.2016. 2.8 In-spite of the respondent No.1’s letter dated 03.06.2016, when the respondent No.2 did not take any decision, the petitioner again wrote a letter to the respondent No.3 on 08.07.2016 and requested him to take decision in his case and to depute the petitioner for the PGDPHM course which is going to start from August, 2016. In response to the petitioner’s application dated 08.07.2016, the respondent No.3 replied by letter dated 20.07.2016 that when Government give sanction for PGDPHM 2016, at that time the application of the petitioner will be taken into consideration as per the Government Policy. In response to the petitioner’s application dated 08.07.2016, the respondent No.3 replied by letter dated 20.07.2016 that when Government give sanction for PGDPHM 2016, at that time the application of the petitioner will be taken into consideration as per the Government Policy. 2.9 Being aggrieved by the said inaction and indirect refusal by the respondents in not considering the case of the petitioner for deputing him for the PGDPHM course, the petitioner has filed the present petition and has prayed for the following reliefs: “a. That this Hon’ble Court be pleased to issue a writ of Mandamus and or any other appropriate writ, order or direction and be pleased to quash and set aside the impugned decisions passed by respondent no.1 dated 23/2/2015 at Annexure-L, dated 13/1/2016 at Annexure-Q and dated 3/6/2016 at Annexure-AA and decision passed by Respondent No.3 Dt.20/10/2014 at Annexure-K and dated 20/07/2016 at Annexure and further be pleased to direct the Respondents to take decision to depute the Petitioner in special case in the course of PGDPHM at Indian Institute of Public Health at Gandhinagar, Gujarat next batch from August – 2016 to July – 2017 or MPH training which will start from 01-07-2016 upto two years or any training conducted by H & FW Dept. due to unnecessary delay or misrepresentation of G.R. Dt.29/08/1986 (Annexure C) and wrongfully adopted tradition by Respondent No.2 as stated in Para no.20(D); (aa) Pending this petition, this Hon’ble Court be please to direct the respondents to declare the location & time schedule of immediate next training to be held. (b) Pending hearing and till the final disposal of the present petition be pleased to direct the respondents to take decision to depute the Petitioner in special case in the course of PGDPHM at Indian Institute of Public Health at Gandhinagar, Gujarat in the next batch from August – 2016 to July – 2017 or MPH training which will start from 01- 07-2016 upto two years or any training conducted by H & FW Dept. due to unnecessary delay or misinterpretation of G.R. Dt.29/08/1986 (Annexure C) and wrongfully adopted tradition by Respondent No.2 as stated in Para no.20(D). (c) Any other appropriate order or orders be passed in the special and peculiar facts and circumstances of this case.” 3. Mr. due to unnecessary delay or misinterpretation of G.R. Dt.29/08/1986 (Annexure C) and wrongfully adopted tradition by Respondent No.2 as stated in Para no.20(D). (c) Any other appropriate order or orders be passed in the special and peculiar facts and circumstances of this case.” 3. Mr. Sandip H. Munjyasara, learned advocate appearing for the petitioner, submitted that the petitioner herein is seeking to undertake training for the PGDPHM under the DPHM course which would make the petitioner eligible for promotion in future. It is submitted that the petitioner’s name has been erroneously not included in the list of the candidates selected for the DPHM course; the name having included in the list duly produced at Annexure – E. It is submitted that upon non- inclusion of the petitioner name, the petitioner was constrained to approach this Court by preferring Special Civil Application No.604 of 2012 whereby, the respondent authority was directed to consider the case of the petitioner upon the statement being made by the petitioner that the petitioner would undertake the training at his own expenses. However, it is the case of the petitioner that there was a miscommunication and in view thereof, preferred Letter Patent Appeal No.1017 of 2012 wherein, the petitioner withdrew the Special Civil Application No.604 of 2012. Liberty was reserved to prefer a fresh representation. It is submitted that the petitioner preferred a fresh representation to the respondent authority on 12.03.2013 which was replied to by the respondent authority on 20.04.2013 and directed the petitioner to apply through the respondent No.4 as and when the Government issues Cricular with regard to DPHM course by Trivandrum Institute for the year 2014. 3.1 Mr. Munjyasara, learned advocate appearing for the petitioner, submitted that on 23.01.2014, the petitioner again applied for the DPHM course however, the same was not taken into consideration by the respondent authorities and in view thereof, the petitioner again approached this Court by preferring Special Civil Application No.10907 of 2014 wherein, by order dated 10.10.2014, the respondent authority was directed to take decision on petitioner’s application dated 23.01.2014. In compliance to the order passed by this Court dated 10.10.2014, the respondent No.3 took decision and vide communication dated 20.10.2014 informed the petitioner that the petitioner had completed 45 years in 2014 and in view thereof, the case of the petitioner could not be considered. In compliance to the order passed by this Court dated 10.10.2014, the respondent No.3 took decision and vide communication dated 20.10.2014 informed the petitioner that the petitioner had completed 45 years in 2014 and in view thereof, the case of the petitioner could not be considered. Subsequent thereto, the petitioner herein also preferred representations to the respondent authorities mainly on the ground that there was a preliminary inquiry pending against the petitioner in the year 2012 however, charges against the petitioner were not proved and there was a delay at the end of the respondents for which the petitioner was not responsible. However, in the year 2016, the petitioner was given a clean cheat of all the charges. In light of the aforesaid, it is submitted that the petitioner’s case be considered as a special case and be considered for training conducted by the H & FW Department in the course of PGDPHM at Indian Institute of Public Health at Gandhinagar. 4. Ms. Pooja K. Ashar, learned AGP appearing for the respondents authorities, submitted that the case of the petitioner herein is governed by the Government Resolution dated 08.12.2011 duly produced at page 46, Annexure – D, which provides that candidates are required to send the prescribed application form by 15/12/2011 after obtaining the same from the Medical Officers Class-II falling in the seniority list and having age not more than 45 years as on 01/01/2012 and willing to go for training of D.P.H. Further, the certificate is to be submitted as to whether any Preliminary/ Departmental inquiry is pending against the Medical Officer willing to undertake the training of D.P.H. It is also to be verified that such Officers must not have more than two attempts in M.B.B.S and after checking the same, the applications are to be submitted by 15/12/2011. The applications submitted after 15/12/2011 will not be accepted. Though the petitioner’s name was included in the seniority list dated 15.12.2011, the name of the petitioner was not included in the select list of candidates who were eligible for the training in the said course because of pendency of preliminary inquiry against the petitioner. 4.1 Ms. The applications submitted after 15/12/2011 will not be accepted. Though the petitioner’s name was included in the seniority list dated 15.12.2011, the name of the petitioner was not included in the select list of candidates who were eligible for the training in the said course because of pendency of preliminary inquiry against the petitioner. 4.1 Ms. Ashar, learned AGP, submitted that pursuant to the order passed in Special Civil Application No.10907 of 2014, the petitioner was informed that no decision is taken with respect to the PGDPHM course for the year 2014 for the in-service candidates; duly produced at page 67, Annexure – K to the petition. Pursuant to the order passed in Letters Patent Appeal No.1017 of 2012, a petitioner preferred a representation to the respondent authority wherein, on 13.01.2016 it was communicated to the petitioner that there were three disciplinary inquiry pending against the petitioner between 2013 to 2015 and also that no officers were sent for training in the interregnum period. The petitioner once again made a representation to the respondent authority on 29.02.2016, to which the respondent authority replied on 03.06.2016; duly produced at page 99, Annexure – U, that the request of the petitioner was not considered due to continuance of the disciplinary proceedings against the petitioner. 4.2 Ms. Ashar, learned AGP, submitted that on 20.07.2016, pursuant to the representation made by the petitioner dated 08.07.2016, the respondent authority replied that no approval for sending the petitioner for training was received from the respondent No.2. It is submitted that the petitioner herein has prayed for the decision to depute the petitioner in special case in the course of PGDPHM at Indian Institute of Public Health at Gandhinagar in the next batch of 2016 – 17 which commences from 01.07.2016 however, the said prayer is rendered infructuous. 4.3 Reliance is placed on Rule 8 of the Gujarat Civil Services Classification and Recruitment (General) Rules, 1967 which provides for condition as to prescribed qualifications. Reliance is placed on Clause 2 and Clause 5 of the of the said Rule. Placing reliance on the same, it is submitted that where the prescribed qualification include a qualification as to age limit, the appointing authority may relax the age in favour of the candidates belonging to the SC, ST, SEBC and in favour of the women candidates; maximum for the period of five years but, not exceeding 45 years. Placing reliance on the same, it is submitted that where the prescribed qualification include a qualification as to age limit, the appointing authority may relax the age in favour of the candidates belonging to the SC, ST, SEBC and in favour of the women candidates; maximum for the period of five years but, not exceeding 45 years. It is submitted that Clause 5 of the said Resolution provides that the candidate who is already in service officiating continuously for six months or more on the post, the upper age limit prescribed for the purpose of recruitment in such rules, shall not apply to him provided that he had not crossed the age limit prescribed for the concerned post at the time of his previous appointment. Reliance is placed on the aforesaid to substantiate that even if, the petitioner were to be considered as a special case and send for training, the same would come in way of the petitioner if the petitioner would seek promotion in future. 4.4 Placing reliance on the affidavit-in-reply which is duly filed at page 148 to the petition, Ms. Ashar, learned AGP, submitted that the petitioner herein has relied on a relaxation with respect to age given to one Mr. Vimalkumar Baijnath Das. However, it is submitted that the said candidate was not considered for the training course in PGDPHM. Placing reliance on the aforesaid, it is submitted that the impugned communications which are subject matter of challenge by the petitioner, are just and proper and require no interference. 5. Mr. Sandip H. Munjyasara, learned advocate appearing for the petitioner, in rejoinder, substantiated the submissions advanced earlier however, placed reliance on the ratio laid down in Letters Patent Appeal No.721 of 2022 wherein, the Hon’ble Division Bench relied on the ratio laid down by the Hon’ble Apex Court in case of Manoj Kumar vs. Union of India, reported in 2024 (3) SCC 563 , and submitted that in the facts of the present case, the pendency of preliminary inquiry against the petitioner and the delay caused in the same was at the instance of the respondents and the petitioner cannot be held responsible for the same and in view thereof, the case of the petitioner be considered for the training course of PGDPHM. Analysis :- 6. Analysis :- 6. Having heard the learned advocates appearing for the respective parties, it emerges that the petitioner herein came to be appointed as Medical Officer, Class – II on 18.03.1997, and serving at Community Health Centre (CHC), Khavda, Tal. Bhuj- Kachchh. In a scheme being floated by the Government for in-service program/course of Diploma in Public Health and Management (DPHM) and other courses for the Medical Officers of the State duly produced at Annexure – A & B, the Government deputes the Medical Officer in DPHM Training as per the H & FW Department Government Resolution dated 29.08.1986. 6.1. At this stage, it is apposite to refer to the Government Resolution dated 08.12.2011 which reads thus: (true translation) “CIRCULAR: The Medical Officers performing duties as Class-2 Officer in the subordinate offices and the offices under District Panchayat in your zone, having seniority no.1828 to 1950 as per the Seniority list of the year 2007, are to be sent for D.P.H. training. Therefore, you are requested to send the prescribed application form by 15/12/2011 after obtaining the same from the Medical Officers Class-2 falling in the seniority list and having age not more than 45 years as on 01/01/2012 and willing to go for training of D.P.H. If any Medical Officer is not willing to go for the aforesaid training, consent letter is to be obtained from him and the same is to be forwarded to this office. (The prescribed application form to go for the training of D.P.H. is attached herewith.) The certificate is to be submitted as to whether any Preliminary/ Departmental inquiry is pending against the Medical Officer willing to undertake the training of D.P.H. Further, it is to be verified that such Officers must not have more than two attempts in M.B.B.S and after checking the same, the applications are to be submitted by 15/12/2011. The applications submitted after 15/12/2011 will not be accepted. Moreover, it will be your personal responsibility if any Officer is willing to go for the D.P.H. training but you fail to submit the application to this office within time limit. As per consent of the Hon’ble Commissioner on the note. Sd/- Additional Director(H) Health, Medical Services and Medical Education (Health Department), Gandhinagar” 6.2. The petitioner herein applied on 12.12.2011 for the training course of DPHM. As per consent of the Hon’ble Commissioner on the note. Sd/- Additional Director(H) Health, Medical Services and Medical Education (Health Department), Gandhinagar” 6.2. The petitioner herein applied on 12.12.2011 for the training course of DPHM. The respondent No.4 sent applications of the 8 Medical Officers vide communication dated 15.12.2011 to the respondent No.3. The said communication contained name of the petitioner at serial No.8 having seniority No.1927. The respondent No.1 passed a Resolution dated 19.01.2012 and decided to send 6 Medical Officers for DPHM course at Trivandrum. The petitioner’s name was not included. 6.3. Considering the Government Resolution dated 08.12.2011, as referred above, the candidates were required to be below the age of 45 years. The petitioner was below 45 years of age at the time when the petitioner’s name was included in the seniority list at serial no.8. However, there was a preliminary inquiry going on against the petitioner and in view thereof, as per the said Government Resolution dated 08.12.2011, the petitioner’s name was not included and the petitioner was not considered for the aforesaid course. 7. In the aforesaid set of facts, the petitioner herein communicated to the respondent authorities time and again. In the meantime, pursuant to the said scheme, the candidates were not send to Trivandrum for the training and in view thereof, the petitioner was informed by communication dated 20.04.2013 that as and when the Government issues Circular with regard to the DPHM course, the petitioner would be informed. It appears that in the meantime, the petitioner crossed the age of 45 years and in view thereof, by communication dated 25.02.2015 duly produced at page 69- 70, Annexure – L, the petitioner was informed that the petitioner had crossed the age of 45 years and in view thereof, was not eligible to be considered for the said course. Pursuant to the aforesaid communication also, there have been communications between the petitioners and the respondents. 8. Considering the aforesaid, in the opinion of this Court, it is true that the petitioner’s name was included in the seniority list which is duly produced at page 47, Annexure – E, however, because of the pendency of the preliminary inquiry against the petitioner in consonance with one of the condition of the Government Resolution dated 08.12.2011, the petitioner’s name was not included for the said course. In the interregnum period, it appears that the candidates were not sent for the aforesaid training and in the meantime, the petitioner crossed the age of 45 years. Having crossed the age of 45 years as back as in the year 2014, as referred above, the relaxation as prayed for by the petitioner cannot be granted exercising extra – ordinary jurisdiction under Article 226 of the Constitution of India. 8.1 It is true that the petitioner’s name was there in the seniority list however, subsequently, the petitioner reached the age of 45 years and in view thereof, in terms of the Government Resolution dated 08.12.2011, the petitioner as crossed the age of 45 years. Further, the petitioner has prayed that the petitioner be considered for a training from August, 2016 to July, 2017, however, the said period is also over. 8.2 In the course of hearing, Mr. Munjyasara, learned advocate appearing for the petitioner, submitted that one Mr. Vimalkumar Baijnath Das; having crossed the age of 45 years, was considered for the training. The aforesaid is controverted by Ms. Pooja Ashar, learned AGP, having placed on record that vide Government Resolution dated 23.01.2017 nomination of 8 in-service Medical Officer, Class – II, were recommended however, vide communication dated 02.02.2017, only 7 excluding Mr. Vimalkumar Baijnath Das, were granted sanction for the training course. 8.3 To substantiate the aforesaid, it is apposite to refer to the ratio laid down in 2012 (0) GUJHC 31032 in case of Ashwinbhai Mathurbhai Vasava vs. Special Chief Executive (It And Hr), wherein, it is held that it is not open to go beyond the specific rules regarding age in matters of appointment. Relevant paragraphs of the said decision read thus: “11. The basic stand of the petitioners is that they are entitled to appointment on the strength of their having undergone the requisite training as apprentice in relevant trade having requisite certificate contemplated by the Apprentice Act and the Rules. It is required to be noted that even if a person is fully qualified for appointment as to any post, his right is only a right to be considered for appointment and not a right to appointment. It is required to be noted that even if a person is fully qualified for appointment as to any post, his right is only a right to be considered for appointment and not a right to appointment. Mere acquiring requisite qualification required for a post does not confer any right upon such a person to get appointment even if he is put on a list of qualified candidates, nor is there any duty cast upon the respondent to appoint such a person. 13. As regards the age limit is concerned the same is fixed for general category as also reserved category. If age limit for general category is 35 years no person above 35 years can be appointed. Under any circumstances the respondents cannot go beyond the specified Rules as regards age in the matter of appointment. 15. It was noticed that in many cases earlier age relaxation was granted and thereupon in many cases those persons who used to apply for age relaxation were granted such age relaxation and therefore the senior to such persons who did not apply were not given the benefit of age relaxation. These created an anomalous situation and therefore a decision was taken not to extend age relaxation in any case. Such decision was confirmed by this Court in Letters Patent Appeal No. 19 of 2008 dated 03.03.2008. In the said decision it is held as under: “...It is pursuant to the said order and subsequent circular issued in that behalf, the apprentices who are eligible appointment to various technical posts are enlisted for of employment as and when the vacancy arises. Under the orders, apprentices are mere source of recruitment but apprentices are neither offered employment nor do they can right to employment upon the apprentices. Their appointment would necessarily be governed by the relevant recruitment rules. As per the relevant requirement for appointment to post under the Board in Class-IV service, the maximum prescribed under the general standing order no. 7 dated October, 1960 is 25 years. However, in case of apprentices, said age has been extended to 35 years i.e. on the date offer of employment the concerned apprentice shall not be more than 35 year s of age. In the present case, indisputably, appellant had crossed the age of 35 years on the relevant date. The appellant, therefore, was not offered employment. However, in case of apprentices, said age has been extended to 35 years i.e. on the date offer of employment the concerned apprentice shall not be more than 35 year s of age. In the present case, indisputably, appellant had crossed the age of 35 years on the relevant date. The appellant, therefore, was not offered employment. In our view, the appellant failed ot answer the requirement employment in the Board. He was rightly refused the employment. No case for interference is made out. The appeal is dismissed in limine” 9. Mr. Munjyasara, learned advocate appearing for the petitioner, during the course of hearing submitted that if there is any scheme at present also for which the petitioner’s case can be considered, the same be considered by the respondent authorities. 10. While not interfering by exercising extra-ordinary jurisdiction under Article 226 of the Constitution of India, if there is any scheme for which the petitioner can be considered, it is always open for the respondent authorities to consider the case of the petitioner in accordance with law. 11. With the aforesaid, the present petition stands disposed of.