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2024 DIGILAW 1691 (GUJ)

JITENDRA GOVINDRAM SHRIMALI v. STATE OF GUJARAT

2024-08-08

A.Y.KOGJE, SAMIR J.DAVE

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JUDGMENT : SAMIR J. DAVE, J. 1. This appeal under clause 15 of the Letters Patent is filed against the order dated 22.04.2019 passed by the learned Single Judge in Special Civil Application No. 11740 of 2004 for the following prayers: “(A) Your Lordships may be pleased to admit and allow this Letters Patent Appeal. (B) Your Lordships may be pleased to quash and set aside the impugned order dated 22.04.2019 passed by the learned Single Judge in Special Civil Application No. 11740/2004 (Annexure-A). (C) Your Lordships may be pleased to direct the respondent authorities not to terminate the services of the appellants herein till the regularly selected candidates are available to the post of Medical Social Worker. (D) Your Lordships may kindly dispense with the certified copy of the impugned order dated 22.04.2019 passed by the learned Single Judge in Special Civil Application No. 11740 of 2004. (E) xxx xxx xxx” 2. The brief facts of the case of the present appeal are as under: 2.1 That pursuant to public advertisement dated 20.11.2000, the appellants came to be appointed as Medical Social Workers (MSW) with the respondent authority. It was mentioned in the appointment orders that the appellants are appointed on ad-hoc basis which was in consonance with the public advertisement. Thereafter, the appellants were given break and vide appointment order dated 11.11.2023, the appellants were again appointed to the post of MSW till 30.09.2004 or till the regularly selected candidates are made available by the respondent no. 3 herein, whichever is earlier. He also submitted that the appellants are till today discharging their duties as MSW. That till date neither regular recruitment process has been initiated nor the appellants have been regularized in service and the appellants are also not given the pay-scale as per the prevailing Government norms. The appellants were apprehending that the appellants would be replaced by another set of ad-hoc employees, therefore, the appellants preferred the captioned Special Civil Application No. 11740 of 2004. On 15.09.2004, this Court has granted interim stay against the termination of services of the appellants. The appellants were apprehending that the appellants would be replaced by another set of ad-hoc employees, therefore, the appellants preferred the captioned Special Civil Application No. 11740 of 2004. On 15.09.2004, this Court has granted interim stay against the termination of services of the appellants. 2.2 Thereafter, some of the appellants had preferred Special Civil Application No. 12820 of 2010 seeking exemption from appearing in the examination to be conducted by Gujarat Subordinate Service Selection Board for the post of MSW as the appellants were age barred were not in a position to appear in the examination to be conducted by the respondent no. 3. The said petition was disposed of with a direction to make representation to the respondents within 2 months and further directed the respondents to decide the representation within 3 months. This Court has passed the following order on 27.07.2011 in Special Civil Application No. 12820 of 2010: “2. In respect to grievance voiced/raised in this petition, let petitioners may make detailed representation to respondent No. 1-Secretary, Health and Family Welfare Department, Sachivalaya, Gandhinagar within fifteen days from date of receipt of copy of present order and to submit copy of such representation to respondent no. 2 and 3. 3. As and when such representation made by petitioners is received by respondent no. 1 Secretary, Health and Family Welfare Department, Sachivalaya, Gandhinagar, it is directed to respondent no. 2 Commissioner, Health, Medical Services and Medical Education (ME) Gandhinagar as well as respondent No. 3 Gujarat Subordinate Service Selection Board to cooperate respondent No. 1 while giving all details and supplying each and every aspect for enabling respondent no. 1 to consider and examine representation effectively and, thereafter, it is directed to respondent no. 1 to pass appropriate reasoned order within three months from date of receiving such representation from petitioners. Communication gap between respondent no. 2 and 3 as suggested by learned advocate Mr. Mehta may not again occur and process of consideration of representation may not be delayed further because present petitioners are working on post of Medical Social Worker for more than eight years on ad-hoc basis because no regular selection process has been carried out by respondent. Communication gap between respondent no. 2 and 3 as suggested by learned advocate Mr. Mehta may not again occur and process of consideration of representation may not be delayed further because present petitioners are working on post of Medical Social Worker for more than eight years on ad-hoc basis because no regular selection process has been carried out by respondent. Let that aspect may also be re- examined and then appropriate reasoned order be passed in accordance with law within three months from date of receiving such representation from petitioners and then to communicate same to petitioners immediately thereafter. 4. With these observations and directions, this petition is disposed of by this court without expressing any opinion on merits. DSP.” 2.3 Thereafter, the learned Single Judge vide impugned order dated 22.04.2019 rejected the captioned Special Civil Application and thereby refused to regularize the services of the appellants herein and to continue the appellants on their respective posts till the regularly selected candidates are made available. Hence, the present appeal is filed. 3. Heard learned advocate Mr. M.J. Mehta for the appellants and learned AGP Ms. Dharitri Pancholi for the respondent-State. 4. Learned advocate for the appellants submitted that all the appellants are working as MSW with the respondent authorities since 19 years and having unblemished service record. The respondent authorities have not conducted selection process since last more than 20 years and till date, no regular selection process has been held for the post of MSW. There is permanent nature of work is available with the respondent authorities and thus, the appellants who are having experience of 19 years as MSW, they may be absorbed in the establishment in view of the fact that till date no regular selection process has been held by the respondent authority. He further submitted that the appellants may not be replaced by another set of ad-hoc employees and all the appellants are aged about 40 to 44 years and it will become very difficult for the appellants to search and start altogether a new job at this stage of their life. He also submitted that the learned Single Judge has rejected the case of the appellants solely relying upon the decision dated 28.12.2005 rendered in LPA No. 1368, 1369, 1370 of 2003. He also submitted that the learned Single Judge has rejected the case of the appellants solely relying upon the decision dated 28.12.2005 rendered in LPA No. 1368, 1369, 1370 of 2003. Learned advocate for the appellants referred to the decision of Division Bench of this Court in the case of Hiren N. Upadhyay & Ors. Vs. Bhavik M. Patel and Anr. in LPA No. 2986/2010, to submit that in the present case, regular selection process is not held since last more than 20 years and when the said process will start that is also not clear. The appellants are seeking the identical relief from this Hon'ble Court that the services of the appellants may not be terminated till the regularly selected candidates are made available for the post of MSW. 5. As against this, learned AGP appearing for the respondent-State has submitted that the respondent-State shall be initiating the recruitment process for regular candidates through the Gujarat Subordinate Service Selection Board. She also submitted that for the said purpose, requisition dated 02.05.2019 has already been sent by respondent no. 2 to the Health and Family Welfare Department, Government of Gujarat. On the basis of this office proposal the Health and Family Welfare Department has put forward the proposal to the standing committee of Finance Department which sanction such requisition. After the approval of the Finance Department the requisite requisition would be sent to Gujarat subordinate service selection board. Learned AGP has referred to and rely upon the decision of the Division Bench of this Court in the case of Hardik Pradipbhai Joshi vs. State of Gujarat, 2024 (1) GLR 771 and more particularly she emphasized on Para No. 5.1 of the said judgment. She submitted that the Supreme Court inter alia held that the temporary or ad-hoc persons appointed for a specified period or till the availability of the candidate selected by the Public Service Commission, had no right to the post. It is was further held that non-joining of the selected candidates, to replace the appellant would also not confer right to hold the post. The Hon'ble Supreme Court upheld the termination of the appellant before it further holding that even doctrine of legitimate expectation would not apply in such circumstances. 6. It is was further held that non-joining of the selected candidates, to replace the appellant would also not confer right to hold the post. The Hon'ble Supreme Court upheld the termination of the appellant before it further holding that even doctrine of legitimate expectation would not apply in such circumstances. 6. Having heard learned advocates for the parties and having perused the documents on record, it appears that the learned Single Judge has not considered the request made by the appellants herein to direct the respondent authorities not to terminate the services of the appellants till regularly selected candidates are made available through regular recruitment process by the Gujarat Subordinate Services Selection Board. It also appears that pursuant to advertisement for MSW came to be published in the year, wherein condition no. 8 specifically provided that the vacancies which came in the purview of Gujarat Subordinate Service Selection Board was to be filled for a period of one year or till regular candidates are appointed whichever earlier. 7. It also appears that the appellants have emphasized that they are identically situated to the appellants of the Letters Patent Appeal No. 1368, 1369 and 1370 of 2003 and allied matters. By the judgment and order dated 28.12.2005, the Division Bench has dismissed the Letters Patent Appeal after examination of the entire issue, which is also similar issue raised in the present Letters Patent Appeal. The Division Bench has considered the following questions: “(i) Whether the appellants/ petitioners appointed purely on ad hoc basis for a fixed tenure after a selection held pursuant to an advertisement by the respective section/department are entitled to regularisation in substantive capacity by an order of the Court? (ii) Whether continuance for a long time entitles an ad hoc appointee to regularisation without its initial recruitment being regularised through prescribed Selection Agency, by giving necessary relaxation in the matter of age and qualification prescribed under various provisions of the Recruitment Rules in absence of Recruitment Rules expressly providing for such relaxation? (iii) What role the factors like legitimate expectations, equity, sympathy and human approach have to play while considering the claim of regularisation of ad hoc appointees on the ground that they had worked on the posts in question for quite some time?” 8. (iii) What role the factors like legitimate expectations, equity, sympathy and human approach have to play while considering the claim of regularisation of ad hoc appointees on the ground that they had worked on the posts in question for quite some time?” 8. The Division Bench, after examining the similar controversy and similar issue, has held thus: “The matter was heard by the learned Single Judge and after considering the arguments of both the sides the learned Single Judge allowed the writ petitions in part. The respondents were directed to pay the pay scale of Rs.4500-7000/-, but the prayer to regularise them in service and to continue them in services till regularly selected candidates are available was refused.” 9. On the basis of the aforesaid observations and after considering all these issues, the learned Single Judge in the impugned order has rightly held as under: “Under the circumstances, the case of the petitioners will be governed by the observations made by the learned Single Judge, which was confirmed by the Division Bench. The learned single judge has refused the prayer to regularize and to continue the petitioners in service till regularly selected candidates were available was refused. The respondents are hereby directed to pass appropriate order in terms of the order passed by the Single Judge and the Division Bench in Letters Patent Appeal No. 1342 of 2013 and allied matters. The present petition fails and the same is disposed of. Rule is discharged.” 10. For the foregoing reasons and discussion, in addition to the reasons supplied by the learned Single Judge, the challenge in the present Letters Patent Appeal devoid of merits. The learned Single Judge has rightly refused the case of petitioners in terms of the policy and therefore, we find no infirmity or illegality in the order passed by the learned Single Judge. In the above view of the matter, we are of the considered opinion that the learned Single Judge was completely justified in dismissing the Special Civil Application. We are, therefore, in complete agreement with the findings, ultimate conclusion recorded by the learned Single Judge and hence find no reasons to interfere with the same, the impugned order passed by the learned Single Judge is hereby confirmed. 11. Hence the present Letters Patent Appeal being devoid of merits, the same is dismissed. No order as to costs. 12. We are, therefore, in complete agreement with the findings, ultimate conclusion recorded by the learned Single Judge and hence find no reasons to interfere with the same, the impugned order passed by the learned Single Judge is hereby confirmed. 11. Hence the present Letters Patent Appeal being devoid of merits, the same is dismissed. No order as to costs. 12. In view of the order passed in main Letters Patent Appeal, Civil Application does not survive and accordingly stands disposed of. 13. After passing of this order, learned advocate for the appellants requests to stay the execution, implementation and operation of this order for certain period. The request made by the learned advocate is acceded to. The implementation and operation of this order is stayed for eight weeks from the date of receipt of the writ of this order.