1.0 By way of present petition, the petitioner has prayed for following relief/s:
(b) Your Lordships be pleased to issue appropriate writ, order of direction upon the respondents 1, 2 and 3 herein directing them to absorb the services of the petitioner in the Panchayat services in the same manner as that of 14 others whose services have been absorbed in Panchayat service vide order dated 31.02.2000 passed by the respondent No.3 herein.
2.0 The facts of the case in brief are that the petitioner was appointed as male Primary Health Worker vide order dated 01.11.1993 which was converted into the post of Multi Purpose Health Worker and the appointment of the petitioner was extended till 31.10.1996. Thereafter vide order dated 01.01.1996, the services of the petitioner were extended till the lasting of the lease period obtained by respondent No.4 from the State Government. In view of the resolution No. 5 of Government of Gujarat dated 14.02.1989, the respondent No.4 herein had also proposed vide its letter dated 24.08.1998 to absorb and accommodate the petitioner in Government Service as the administration and functions of the Primary Health Center, Jhagadia was to be handed over to the State Government. The services of the petitioner will come to an end on 31.03.1999 and that the petitioner was informed by giving him an advance notice of three months. Vide notice dated 01.01.1999 the services of the petitioner was terminated on and after 31.03.1999 and vide letter dated 01.04.1999, the petitioner was asked to continue to function as Multi Purpose Health Worker. Vide letter dated 31.01.2000 the petitioner was informed by the respondent No.4 that the State of Gujarat had decided not to absorb the petitioner in Government Services as he was not fulfilling the recruitment rules of the Health and Family Welfare Department. Vide order dated 31.01.2000 the respondent No.3 had issued appointment orders to 14 out of 16 Multi Purpose Health Workers absorbing and accommodating them in the Government Services who were initially like the petitioner were appointed by the respondent No.4 and who were functioning as Multi Purpose Health Workers. Out of 14 persons, who were absorbed in the Government Services many of them are not graduates and No. 13 and 14 are even junior to the petitioner. Hence, the petitioner has filed the present petition.
3.0 Learned advocate for the petitioner submitted that the petitioner is required to be absorbed in the Panchayat service and even his juniors are retained in service.
4.0 Affidavitinreply is filed on behalf of the State Government. Paras 3, 5 and 7 read as under:
“3.0 I say and and submit that it is true out of 14 out of 16 employees appointed by respondent No. 4 has been absorbed and accommodated in Panchayat service vide Government Notification dated 10.08.1999.(copy annexed as Annexure R I) As per said notification dated 10.08.1999, the petitioner and another are required to be absorbed by respondent No.4 as they do not fulfill the requirement of the recruitment rules. Accordingly, the petitioner has been absorbed by resp No. 4 from 14.02.2000.
5.0 I say and submit that it is true that 14 out of 16 employees under resp. no.4 were absorbed and accommodated in the Panchayat service. The petitioner and one another were not found eligible for absorption as per Government Health and Family Welfare Department notification dated 10.08.1999 under which the Primary Health Centre, Jhagadia was decided to be taken over by State Govt. (copy of this notification is annexed as Annexure R II) The petitioner was not fulfilling the requirement of RRs dated 25.10.1990 ( copy of RR annexed as Annexure R III) for the post of Multipurpose Health Worker on the date of his appointment i.e. on 01.11.1993. The recruitment for the post of Multipurpose Health Worker as on 01.11.1993 was that the candidate must have passed multipurpose health worker training. The petitioner has not undergone and passed the said training and therefore, the petitioner was not absorbed in Government Service. In view of this, the case of absorption of the petitioner will have to be decided by resp. No. 4. Accordingly, resp. No.4 has absorbed the petitioner.
7.0 I say and submit that the petitioner was not fulfilling the requirement of the recruitment rules for the post of multipurpose health worker, he has therefore, not been absorbed which cannot be said to be contrary to the factual, circumstances or bad in law. When a decision is required to be taken on facts and existing rules, the petitioner cannot be given an opportunity to tender his explanation and, therefore, it cannot be termed as violative of principles of nature justice. It can simply mean absolutely legal. The petitioner was appointed as Multipurpose health worker by respondent No.4 on 01.11.1993. The existing Recruitment Rules for the post of multipurpose health worker as on 01.11.1993 clearly states that the candidate should have undergone and passed the multipurpose health worker training examination and therefore, the petitioner is not absorbed in Panchayat service. The petitioner is not possessing the required qualification of passing the MPHW training examination as on 01.11.1993 i.e. the appointment date, when the Recruitment Rules in force clearly states that such training and passing of examination is must for the appointment of MPHW. The other 14 coworkers who have been accommodated and absorbed vide order dated 31.01.2000 are fulfilling the requirements of the Recruitment Rules for the post MPHW as per Recruitment Rules at the relevant time of their appointment on 06.05.1981 and 20.11.1984 ( copy enclosed).”
5.0 The petitioner is an employee of the respondent no.4 Society and seeks absorption in Government service on the basis the order dated 31.01.2000, made in respect of other 14 employees of the respondent no.4 Society. The order dated 31.01.2000 refers to the eligibility of those 14 employees in respect of the educational qualification, experience and age at the time of their entry in service in accordance with the then prevalent rules. Unless the petitioner makes out a case that he is otherwise eligible for appointment to the post of Multi Purpose Health Worker, the benefit of absorption in public employment, as in the case of other 14 workers, cannot be granted to the petitioner. In the affidavitinreply filed by the Administrative Officer, Health, Medical Service and Medical Education it is pointed out that the petitioner and one another were not found eligible for absorption as per Government Health and Family Welfare Department notification dated 10.08.1999 under which the Primary Health Centre, Jhagadia was decided to be taken over by State Govt. The petitioner was not fulfilling the requirement of Recruitment Rules dated 25.10.1990 for the post of Multipurpose Health Worker on the date of his appointment i.e. on 01.11.1993. The requirement for the post of Multipurpose Health Worker as on 01.11.1993 was that the candidate must have passed multipurpose health worker training. The petitioner has not undergone and passed the said training and therefore, the petitioner was not absorbed in Government Service.
6.0 Thus, the petitioner was not fulfilling the requirement of the recruitment rules for the post of multipurpose health worker and he has therefore, not been absorbed which cannot be said to be contrary to law. The petitioner was appointed as Multipurpose health worker by respondent No.4 on 01.11.1993. The existing Recruitment Rules for the post of multipurpose health worker as on 01.11.1993 clearly states that the candidate should have undergone and passed the multipurpose health worker training examination and therefore, the petitioner is not absorbed in Panchayat service. The petitioner is not possessing the required qualification of passing the MPHW training examination as on 01.11.1993 i.e. the appointment date. When the Recruitment Rules in force clearly states that such training and passing of examination is must for the appointment of MPHW the case of the petitioner cannot be considered. The other 14 coworkers who have been accommodated and absorbed vide order dated 31.01.2000 are fulfilling the requirements of the Recruitment Rules for the post MPHW as per Recruitment Rules at the relevant time of their appointment on 06.05.1981 and 20.11.1984. In view of the above position, the petition is devoid of merits and the same is dismissed. Rule is discharged with no order as to costs. Interim relief, if any, stands vacated.
(K.S.JHAVERI, J.) niru*