The petitioner has taken out present petition seeking below mentioned reliefs/directions:- “7(B) Allow this Petition by issuing an appropriate writ, order or direction by quashing and setting aside the impugned order dated 20/11/2010 passed by the respondent no.2 (ANNEXURE A) and notice dated 23/02/1994 issued by the respondent no.2 (ANNEXURE E) and thereby, be pleased to direct the Respondents to reinstate the petitioner in service with all consequential benefits as if the impugned order was never passed;
(C) Pending admission and till final disposal of this petition, be pleased to stay further operation and implementation of the impugned order dated 20/11/2010 (Annexure A) passed by the respondent no.2;
(D) Pending admission and till final disposal of this petition, be pleased to direct the respondent to reinstate the petitioner on the post of Statistical Assistant in the interest of justice;”
2. The relevant facts involved in and giving rise to present petition are that the petitioner was selected and appointed as Assistant Statistician in the ICMR project at Civil Hospital, Ahmedabad vide appointment order dated 29.1.1985.
2.1 Before proceeding further, it is relevant to note that the said ICMR project was being run with the grant of Central Government and the administration of the said project was with the State Government and the staff for the project was deputed from the staff of B.J.Medical College.
2.2 According to the said appointment order dated 29.1.2985, the appointment was made on temporary and on ad-hoc basis for the period of 1 month, i.e. from 1.2.1985 to 28.2.1985, and was to be renewed, if found unsatisfactory.
2.3 It is the case of the petitioner that subsequently his service was extended until 30.9.1985 vide different orders passed from time to time.
2.4 The petitioner has also averred that the said ICMR project was discontinued w.e.f. 30.9.1985 and his service consequently came to an end w.e.f. 30.9.1985.
2.5 The petitioner has after mentioning the aforesaid factual aspects also averred that the surplus staff of the project was absorbed in different Government departments and that therefore, the petitioner also made an application for being absorbed in any department of the Government.
2.6 The petitioner has claimed that he was absorbed as Statistical Assistant in accordance with the instructions issued by the Government vide communication dated 10.11.1986 in the Directorate of Health, Medical Services & Medical Education (Health Section and VS Branch) in the pay-scale of 380-600 on the post which was created vide Government Resolution dated 26.12.1980 but was, at the relevant time, lying vacant on account of transfer of Ms. Daxa Bhatt, Statistical Assistant, Vadodara.
2.7 According to the said order dated 31.3.1987 absorbing the petitioner in the service with the above mentioned department, the duration of break in service w.e.f. 1.10.1985 until the date on which he reported for duty was to be considered as condoned by treating the intervening period as Leave Without Pay and Allowances.
2.8 The petitioner has claimed that he reported for duty in pursuance of the order dated 31.3.1987 and since then, he has worked with the said department.
2.9 It appears that after about 7 years of his absorption, the petitioner was visited with show-cause notice dated 23.2.1984 calling for his explanation as to why his appointment should not be cancelled on the ground that his appointment was not in accordance with the recruitment rules and/or resolution dated 24.3.1976 of the Panchayat department.
2.10 It appears that vide his letter dated 25.2.1984, the petitioner requested the concerned authority to supply him copy of the recruitment rules and other relevant details so as to enable him to tender appropriate reply. The petitioner has made grievance that the documents requested for by him were not supplied and he apprehended that his service may be terminated and that therefore, the petitioner, at the relevant time, preferred writ petition being Special Civil Application No.6318 of 1994 which came to be admitted and interim relief protecting his service was granted. Subsequently, when the petition was taken up for final hearing, it was disposed of as withdrawn on the ground that it was preferred at premature stage. The petitioner was directed to tender his reply to the notice dated 23.2.1994. Accordingly, the said petition came to be disposed of vide order dated 6.11.2009. In pursuance thereof, the petitioner forwarded communication dated 19.11.2009. The petitioner was called for personal hearing which was scheduled for 16.11.2010. The petitioner received the said intimation on 15.11.2010, i.e. a day before the date on which the hearing was scheduled. The petitioner attended the hearing and submitted his written submissions. Thereafter, the impugned order dated 20.11.2010 came to be passed whereby the petitioner's service came to be terminated. Feeling aggrieved by the said termination order, present petition.
3. Mr. Pujara, learned advocate appeared for the petitioner and Mr. Patel, learned AGP appeared for the respondent – State Government.
4. Mr. Pujara, learned advocate for the petitioner, has submitted that the respondent's action of initiating the process almost 7 years after the petitioner was absorbed in service and the action of terminating his service almost 23 years after he was absorbed or almost 16 years after the show-cause notice was issued, is unjustified and vitiated on the ground of delay. Mr. Pujara submitted that the petitioner was absorbed in the department in accordance with and after following necessary and proper procedure, particularly in background of the fact that all persons who were working on the ICMR project were absorbed and accommodated in different departments with the Government and that therefore, the respondent's action of initiating proceedings after delay of 7 years and that too on the ground that the petitioner's absorption was not in accordance with applicable rules is misconceived, unjust and arbitrary. Mr. Pujara also submitted that when the petitioner was absorbed in the said department after considering all relevant aspects then, the contention that the absorption / appointment was not in accordance with the recruitment rules or resolution dated 24.3.1976 is not available to the respondents and any action on such premise could not have been initiated and/or cannot be taken.
Mr. Pujara further submitted that the petitioner always possessed necessary and prescribed educational qualifications for the post in question.
5. Per contra, Mr. Patel, learned AGP, has resisted the petition and opposed the said submissions made by learned advocate for the petitioner contending that the base of present petition is misconceived inasmuch as the relevant date would be the date on which the petitioner was absorbed and not the date on which he was appointed for the first time. Mr. Patel submitted that the relevant rules prevailing at the time when the petitioner was absorbed has to be taken into account and having regard to the rules and resolutions and policy prevailing and applicable at the time when the petitioner was absorbed in service, the petitioner's absorption is hit by the provisions contained in the rules, resolutions and applicable policy. Mr. Patel relied, particularly on resolution No.NCA-104-2080-N dated 24.3.1976. Mr. Patel led stress on Clause (i) of the said resolution dated 24.3.1976, which reads thus:-
“(i) The present incumbents should be absorbed in Government service, provided that the individual incumbent has rendered service in the Virus Research Unit for a period not less than three years.”
5.1 Mr. Patel, learned AGP, also submitted that according to the provisions, particular Clause (i) requires that the individual incumbent must have rendered service in the Virus Research Unit for the period not less than 3 years and shall possess the requisite qualification prescribed under the recruitment rules for the post on which the absorption is to be made. Mr. Patel submitted that the petitioner did not comply the requirements prescribed under the said resolution dated 24.3.1976 and for that reason, the petitioner was visited with show-cause notice, his explanation was called for and he was afforded opportunity of personal hearing. Mr. Patel also submitted that the petitioner had even tendered written submissions and all relevant details, applicable rules and policy, etc., factual aspects of the service rendered by the petitioner with the project and thereafter with the concerned department were all taken into consideration and having regard to all relevant aspects, including the relevant and applicable rules, the order dated 20.11.2010 came to be passed and the said order is, in the facts and circumstances of the case, legal and proper and does not deserve to be set aside, as prayed for by the petitioner.
6. Actually, present petition can be decided on the limited ground, viz. delay and passage of time in the interregnum (i.e. from the date of petitioner's appointment and/or absorption until the date on which the services of the petitioner came to be terminated).
6.1 Mr. Pujara, learned advocate for the petitioner, on this count, relied on the decision in case of Bipinchandra P. Patel (Vakil) v. Mafatlal Ambalal Prajapati [2005 (2) GLH 641].
6.2 Reference may also be made to the decision in case of D.S.Prabhuswamy & Ors. etc. v. Karnataka State Road Transport Corporation & Anr. [AIR 1991 SC 1789] as well as decision by the Division Bench of this Court in case of Patel Kantilal Ambalal & Ors. v. Government of Gujarat & Ors.
[1993 (1) GCD 690 (Guj)].
7. On this count, it would be necessary to recall and take into consideration few dates and chronology of events, which are as under:-
(a) The petitioner was initially appointed under the ICMR Project vide appointment letter dated 29.1.1985.
(b) When the said Project was discontinued and petitioner was declared surplus, w.e.f. 30.9.1985, the petitioner came to be absorbed vide order dated 31.3.1987 in the services of present respondents.
(c) Under order passed after his absorption by the Competent Authority, the intervening period, i.e. from 1.10.1985 to 31.3.1987, was treated as leave without pay and allowances and the break was accordingly condoned. Thus, for all practical purpose service has to be treated continuous and without break from 29.1.1985.
(d) 7 years after the order of absorption (w.e.f. 31.3.1987) show-cause notice dated 23.2.1994 came to be issued calling for explanation as to why petitioner's appointment should not be cancelled on the ground that he was not qualified on the date of absorption, as per the applicable rules.
(e) After the show-cause notice was issued, the petitioner had preferred writ petition being Special Civil Application No.6318 of 1994 and by order passed in the said petition, petitioner's service was protected. The said petition came to be disposed of vide order dated 6.11.2009.
(f) Thereafter, services of petitioner came to be terminated w.e.f. 20.11.2010 on the ground mentioned in the notice.
Accordingly, the petitioner's services has been terminated w.e.f. 20.11.2010. Considering the date of his initial appointment i.e. 29.1.1985, the petitioner's service is terminated after almost 24 years. Considering the date of show-cause notice also, the petitioner's service is terminated after more than 15 years.
8. It is in backdrop of above mentioned facts that the decisions referred to hereinabove are required to be relied on.
8.1 In case of Patel Kantilal Ambalal & Ors. (supra), the appointment was made in the year 1981 and the alleged irregularity in appointment was brought to the notice of the Government in 1983 and after lapse of another 7 years, the Government terminated the services of the petitioner. The Division Bench has observed in para 6 of the said decision that:-
“6. Such appointments could not have been cancelled. In the present case, the appointment was made in the year 1981. The so called irregularity was brought to the notice of the Government in 1983 and inquiry was made and the report of the C.I.D. (Crime) was received in the year 1984 and no action thereafter has been taken. According to that report, there was no irregularity in the appointment. If the Government was of the opinion that this police opinion was not correct, then some action was required to be taken at that time. But after another lapse of 7 years, the Government cannot be permitted to take action on the basis of the defect in the appointment in the year 1981. If that appointment was called in question in any Court after 10 years, no court of law, justice or equity would have granted any relief of setting aside that appointment and the Court would have refused to go into the merits of the case, even if there be a case on merits. Similarly, the Government also cannot wake up from the slumber after period of long years and take action after a decade.:
8.2 In case of D.S.Prabhuswamy & Ors. (supra), the concerned employees continued in service under orders of the Court though their services were terminated long back. Considering the facts of the case and also considering that in the interregnum the business of the employer had expanded, the Apex Court made below mentioned observations in para-4 of the said decision:-
“4. The provisions contained in the Ordinance as well as the Act indicate the legislative intent that the erstwhile employees of the private operators of contract carriages should be employed by the Corporation with a view to avoid hardship to those employees. Since the Corporation was not in a position to absorb all the employees who had been working with the private' operators, a scale was provided and a provision was made for the absorption and employment of only limited number of employees of the erstwhile operators. It is not possible to take exception to the principles laid down by the Legislature for the absorption of the erstwhile employees of private operators. But we do not think it necessary to discuss the legal question sin view of the changed circumstances. In 1976 the State Road Transport Corporation acquired a fleet of 600 contract carriages belonging to private operators. But now the Corporation has expanded the contract carriage transport business and at present it is having about 4000 contract carriage vehicles as a result of which a large number of employees are engaged in the transport business of the Corporation. There is further no dispute that there are various vacancies in different grades existing in the Corporation and recruitment for engaging additional hands is likely to be made. There is further no dispute that even though the appellants services were terminated in 1976-77 but till today they have been continuing in service of the Corporation, earlier under the interim orders issued by the High Court and subsequently by the interim orders issued by this Court. The appellants have not only been continuing in service for the last 14-15 years but some of them have also been promoted to higher posts. If the appeal is dismissed, the appellants' services will stand terminated or they will have to join service in the initial stage of their grade, even though they have now attained good experience of service under the Corporation. Having regard to these facts and circumstances especially the hardship the appellant will suffer on the dismissal of the appeal rendering the appellants unemployed, we are of the opinion that in the ends of justice the appellants should be allowed to continue in service.”
8.3 In case of Bipinchandra P. Patel (Vakil) (supra), the services of the petitioner was sought to be terminated after 20 years on the ground that his appointment was made contrary to the provisions contained under Schedule-F to the Gujarat Primary Education Act. The Court has made below mentioned observations in para-9 of the said decision.
“9. So far as the reliance placed on the judgment of the learned Single Judge of this Court rendered in Special Civil Application No.2463 of 1997 is concerned, in the facts of the said case, the petitioners teachers were not possessing any qualification of "Primary Teacher's Training" and that against requirement of 28 teachers for 27 classes, the school had appointed as many as 50 teachers including the petitioners of that Special Civil Application and considering the educational qualification and their seniority, the petitioners' services were terminated with a view to maintaining the students and teachers ratio and in the back drop of the aforesaid facts, the learned Single Judge of this Court has dismissed the said Special Civil Applications when services of those teachers were terminated. Under the circumstances, the said judgment will not be helpful to the case of the petitioners in the facts and circumstances of the present special civil application. Similarly, there is not dispute with regard to the ratio laid down in the judgments of the Hon'ble Supreme Court of India but considering the facts and circumstances of the case on hands, the same are also not of any assistance to the case of the petitioners. At the cost of repetition, it is required to be noted that the respondent No.1 was appointed after interview process and the respondent No.1 is having requisite qualification and on facts and on appreciation it is held by the Tribunal that at the relevant time when the respondent No.1 was appointed, implementation of the Schedule-F was stayed. Even otherwise as stated above, considering the fact that the petitioners appointed respondent No.1 in 1983 who was having all requisite qualification of becoming a Primary Teacher, cannot be permitted to take stand after a period of twenty years that the respondent No.1 was appointed dehors the rules. Under the circumstances, the present special civil application requires to be dismissed and the same is dismissed accordingly.”
9. When the facts of present case are considered in light of the above mentioned decisions, then, it emerges that the case of the petitioner is covered by the view taken in the above mentioned cases. Considering the date of his initial appointment i.e. 29.1.1985, the petitioner's service is terminated after almost 24 years. Considering the date of show-cause notice also, the petitioner's service is terminated after more than 15 years.
Furthermore, the case involves the perception of the employer which gives rise to the issue as to whether the provisions related to qualification which prevailed and were applicable as on the date of absorption of the petitioner should be taken into consideration or the eligibility criterion which prevailed and applicable at the time of initial appointment should be taken into consideration. Actually, what is, in fact, necessary and relevant to take into account is the language of the order whereby the petitioner came to be absorbed. The said order dated 31.3.1987 reads thus:-
“Sub: Absorption of services of shri Ahvin N. Patel, Statistical Assistant.
Ref.: Government letter No.CHA-1085-2407-H, dt.
10.11.86 and DO letter No.MCA-1074-3087-N, dated 17.5.75 of Shri V. Krishnamurthy, Jt. Secretary, H.& F.W. Deptt., Gandhinagar.
Consequence upon the closure of I.C.M.R. project on 'Regionalisation of perinatal care' at Civil Hospital, Ahmedabad with effect from 1.10.85, the services of Shri Ashvin N. Patel Statistical Assistant are declared surplus.
In accordance with the Government directives cited above, Shri Ashvin N. Patel is hereby absorbed as Statistical Assistant in the Directorate of Health Medical Services and Medical Education (Health Section – V.S.Branch) under the leprosy scheme in the pay scale of Rs.380-600 on the post created vide G.R.No.HFW-1079-J, dated 26.12.80 and lying vacant on account of transfer of Kum. Daksha Bhatt, Statistical Assistant, transferred to Baroda.
The duration of break in service of Shri Ashvin N. Patel with effect from 1.10.85 till he reports for duty should be condoned by considering the same period as leave without pay and allowances.
Shri A.N.Patel, should report for his duty within 10 days from receipt of this order and movement reports should be submitted.”
Furthermore, so far as the repondent' objection with reference to petitioner's age at the relevant time is concerned, it is not in dispute that petitioner's age was 27 years and prescribed upper age limit was 28 years (page-36 r.w. Page-42). However, the said amended provision seems to have been ignored by the respondents.
It is not in dispute that if the eligibility criterion prevailing as on the date of petitioner's initial appointment is taken into account, the petitioner possessed the described qualification and his appointment was not irregular or contrary to the applicable regulations. The respondent employer, conscious of the aforesaid fact, has taken shelter under the provisions which allegedly prevailed and applicable on the date of petitioner's absorption in service of the respondent. However, in the process, the competent authority is overlooking and ignoring the stipulations made in the communication dated 31.3.1987 under which the services of the petitioner came to be absorbed with present respondent.
9.1 However, as mentioned hereinabove, present petition can be disposed of without entering into said controversy, because of the passage of long time of almost 20 years, the said controversy has recede and pale into insignificance.
Therefore, in light of the view taken in the above referred cases, this Court is of the view that the action of the respondents terminating services of the petitioner vide impugned order dated 20.11.2010, purportedly on the ground that as on the date of absorption the petitioner did not fulfill the eligibility criterion (age limit) and that therefore, his appointment was irregular, deserves to be set aside and the said order cannot be sustained.
Therefore, the impugned order dated 20.11.2010 is set aside and the respondents are directed to reinstate the petitioner with benefits which he would be entitled for. Appropriate order reinstating the petitioner shall be passed within 2 weeks from service of certified copy of present order.
With the aforesaid observations and direction, present petition stands disposed of. Notice is discharged. Interim relief, if any, granted earlier, stands vacated forthwith.
Direct service is permitted.
(K.M.Thaker, J.) kdc