(Per : HONOURABLE MR.JUSTICE G.B.SHAH) 1. This Letters Patent Appeal has been filed by the appellant-State of Gujarat against the judgment and order dated 26.3.2012 passed by the learned Single Judge in Special Civil Application No. 4321 of 2011 whereby the respondent- petitioner was directed to be reinstated with benefits which he would be entitled for.
2. The respondent-original petitioner was initially appointed as Assistant Statistician under the ICMR Project at Civil Hospital, Ahmedabad vide appointment letter dated 29.1.1985. When the said project was discontinued, the respondent came to be absorbed vide order dated 31.3.1987 in the services of the appellants. The intervening period 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 purposes the service has to be treated continuous and without break from 29.1.1985 i.e. from the date of initial appointment. After seven years of the order of absorption, a show cause notice dated 23.2.1994 came to be issued calling for explanation as to why the respondent's appointment should not be cancelled on the ground that he was not qualified on the date of absorption, as per the applicable rules. The respondent preferred a writ petition being Special Civil Application No.6318 of 1994 wherein his service was protected and he was asked to make representation to the appellants within 15 days. The said petition came to be disposed of by order dated 6.11.2009. The respondent, by letter dated 19.11.2009, demanded copies of recruitment rules and regulations which had not been supplied, while he was called for personal hearing on 16.11.2010. The respondent had submitted his written submissions. Without considering the written submissions, the services of the respondent came to be terminated w.e.f. 20.11.2010. Being aggrieved by the said order, the respondent preferred Special Civil Application No.4321 of 2011 by which the impugned order of termination was set aside and the present appellants were directed to reinstate the respondent with benefits to which he would be entitled. This order is under challenge by the present appellants.
3. Learned AGP submitted that the appointment of the respondent was illegal and not in accordance with the Recruitment Rules and therefore, the order of termination was just and proper. He further submitted that learned Single Judge has erred in considering the factual aspects regarding the appointment of the respondent. He submitted that learned Single Judge ought to have considered the fact that initially the respondent was appointed in a project of Central Government which was purely on ad hoc and temporary basis. He also submitted that the date of birth of the petitioner is 31.12.1957 and when he joined service on 31.3.1987, he was already above 28 years of age, whereas Gujarat Civil Services Classification and Recruitment (General) Rules, 1967 prescribes upper age limit of 28 years for recruitment to any services or post under the State Government. As the post of Assistant Statistician was created under the project of ICMR run by Central Government and was co-terminus with the project, Gujarat Civil Services Classification and Recruitment (General) Rules, 1967 is not applicable to the respondent. He contended that learned Single Judge has allowed the petition on the ground of delayed action on the part of the appellants. He further contended that learned Single Judge has not considered the affidavits filed by the appellants as also the letter dated 30.09.1991 written by the Addl. Director (Statistics) addressed to the Secretary, Health and Family Welfare Department wherein irregularities done in the matter of appointment of the respondent was brought to the notice of the Secretary. The delay in action on the part of the appellants were not deliberate but due to procedural delay and the litigation and protection given by the Court to the respondent etc. He finally submitted that the irregularity in the appointment of the respondent was not considered by learned Single Judge and thus committed error in setting aside the impugned order dated 20.11.2010 passed by the appellants without considering the documentary evidence submitted. He, therefore, prayed to allow the present appeal and set aside the impugned order dated 26.3.2012.
4. We have heard learned AGP and learned counsel for the respondent and considered the submissions made by them. We have also perused the impugned judgment passed by learned Single Judge. Learned Single Judge has elaborately dealt with each and every issue after considering the arguments of the respective parties and the decisions relied upon by learned counsel for the respondent/petitioner. Learned Single Judge has decided the petition mainly on the ground of delay of almost 20 years and passage of time in the interregnum. It is observed by learned Single Judge that considering the date of initial appointment i.e. on 29.1.1985, the respondent's service is terminated after 24 years. Even if the date of show cause notice is considered, the service is terminated after 15 years. Learned Single Judge has held that according to the language of the order dated 31.3.1987 whereby the respondent came to be absorbed, the respondent possessed prescribed qualification and his appointment was not irregular or contrary to the applicable regulations and the appellant-respondents were very much conscious of the said fact. Learned Single Judge has also held that the said amended provision with regard to the prescribed upper age limit which was not in dispute, seems to have been ignored by the appellants. We are in complete agreement with the reasonings adopted by learned Single Judge. The government cannot wake up from slumber after so many years and take action after two decades on the basis of its own default, if any, in abiding by its own rules. If any irregularity was committed by any officer/s of the department in the matter of appointment of the respondent, the Government cannot be permitted to take action on the basis of the defect in the appointment. In fact the competent authority might have overlooked and ignored the stipulations made in the communication dated 31.3.1987 under which the respondent came to be absorbed with the appellant department. Assuming for the sake of argument that the absorption of the present respondent was an irregular or it tantamounts to a back door entry as detected by the appellants, upon a query put to the learned AGP on such admitted irregularity committed by the officials of appellant's department, what action has been taken against such erring officer, he was neither able to answer the query nor able to convince the Court. In view of the above discussion, the appeal lacks merit. In the result, the appeal is dismissed.
[D. H. WAGHELA, J.] msp [G. B. SHAH, J.]