IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 3313 of 2001 For Approval and Signature: Hon'ble MR.JUSTICE P.B.MAJMUDAR ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgement? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : NO -------------------------------------------------------------- NARESH TRIKAMLAL BRAHMBHATT Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: MR PARESH UPADHYAY for the Petitioner. Mr.Kamal Trivedi, Additional Advocate General, with Ms.Harsha Devani, Assistant Government Pleader, for the Respondent. -------------------------------------------------------------- CORAM : MR.JUSTICE P.B.MAJMUDAR Date of decision: 13/02/2002 ORAL JUDGEMENT 1. Rule. Ms.Harsha Devani, learned Assistant Government Pleader, waives service of rule on behalf of the respondent. With the consent of the parties, the matter is heard finally and it is accordingly disposed of by this Judgment. 2. The petitioner, who was selected as Class I Officer in Gujarat Administrative Service, has challenged the order dated 13.2.1990, cancelling his appointment order as well as the subsequent order of the Department dated 9.12.2000, by which his representation is rejected. 3. The petitioner had applied for appointment to the aforesaid Class I post in response to the advertisement issued by the Gujarat Public Service Commission in November, 1985, by which applications were invited for combined competitive examination for the post of Gujarat Administrative Service Class I and Gujarat Civil Services Class I and II. The petitioner was, ultimately, selected by the GPSC and the name of the petitioner was kept at Serial No.18 in the select list of Class I Officers. On the basis of the aforesaid selection, the petitioner was to be appointed in the cadre of Gujarat Administrative Service Class I, as "Deputy Collector". It is required to be noted that the said advertisement of 1985 was issued for the posts which were created for the year 1983, 1984 and 1985. It is also required to be noted that the select list, in which the name of the petitioner figured, was for the vacancies, which had remained vacant for about 5 to 6 years. On the basis of the selection, the selected candidates were informed by the Department by way of telegram, asking them to report for duty on 26th December, 1989 at SPIPA. Copy of such telegram is annexed by the petitioner at Annexure `A', by which he was asked to remain present for duty on 26.12.1989. The said telegram is dated 22.12.1989. On the basis of the aforesaid telegraphic message, the petitioner remained present at the said place on the aforesaid date and on that very day, i.e. 26.12.1989, the appointment order was issued in favour of the petitioner. The said appointment order was given to all the selected candidates, including the present petitioner. It is mentioned in Clause 8(4) of the said appointment order that the selected candidate will be on probation for a period of two years and that the appointment in question is purely temporary and ad hoc. It is mentioned in Clause 8(2) of the said order that if a candidate fails to report at the relevant date for the purpose of training, his appointment shall stand cancelled unless some genuine reasons are pressed into service by such candidate for not reporting for training within the stipulated time. It has also been further provided in paragraph 8(4) that the appointment in question will be subject to the outcome of medical examination. It is mentioned in the said order in Clause 14 that after completing two years' probation period satisfactorily and after completing the training and after passing the departmental examination, the Officers shall be absorbed on the relevant post. On the basis of the said order, most of the selected candidates resumed duty on the very date, i.e. 26.12.1989. However, so far as the present petitioner is concerned, he requested the Department to give him some extension of time for the purpose of joining duty, as, at the relevant time, the petitioner wanted to be sure that he is able to come out successful in the medical examination. There was some correspondence between the petitioner and the Department in connection with extension of time. In the meantime, the petitioner also reported for medical examination on 9th January, 1990, but since some further examination was required, he was asked to report again to the Medical Superintendent, Civil Hospital, on any other subsequent date, as mentioned in the letter dated 16.1.1990, which is at Annexure `G', page 35. It is required to be noted that, in the meanwhile, on 4th January, 1990, the petitioner made a representation to the Deputy Secretary, General Administration Department, Gandhinagar, wherein he pointed out that since he is serving in the Reserve Bank of India since last 10 years, and in order to resume his duty as Deputy Collector, he will be required to give resignation from the Bank's service and for that purpose, it would be necessary for him to give one month's notice. He has also stated in the said letter dated 4.1.1990 that it was not possible for him to resume duty on 26.12.1989. He also pointed out that as per the condition prescribed in Clause 8(4) of the appointment order, his appointment is subject to medical examination and, therefore, in case he fails the medical test, his appointment can be cancelled and under such circumstances, he will be at peril of losing both the employments, i.e. employment with the Bank as well as employment with the State Government. He, therefore, requested that in view of the aforesaid practical difficulty on his part, he may be permitted to report for duty only after the medical report is available so that he can give necessary notice to the Bank. On that ground, he requested that some extension may be given for the purpose of reporting for duty. The Section Officer of the GAD informed the petitioner by letter dated 12th January, 1990 that the petitioner is given time upto 15th January, 1990 for the purpose of resumption of his duty. The petitioner was asked to report by evening of 15th January, 1990 at the office of Commissioner, Sardar Patel Institute of Public Administration, Ahmedabad, which is known as "SPIPA". The petitioner was also informed by the said letter that no further extension will be given to him and in case, by the aforesaid date of 15.1.1990, the petitioner fails to resume duty, his appointment shall be treated to have been cancelled. However, on the very next day, i.e. on 13.1.1990, the petitioner addressed another letter to the Deputy Secretary of the GAD, wherein he pointed out that he had already undergone medical examination on 9th January, 1990 and requested the Department to inform him about the outcome of the said medical examination. He also pointed out that he is required to give one month's notice to the Bank for the purpose of resigning from his existing service from the Bank. He also requested that after ascertaining the outcome of the Medical Report, he will report for duty after giving appropriate notice to the Bank. Under the circumstances, he again prayed for extension of time for the purpose of resumption of duty. In the meanwhile, as stated earlier, the petitioner was informed by another letter dated 16.1.1990 by the Medical Board that he may again remain present for further medical examination. 4. The petitioner thereafter wrote another letter to the Deputy Secretary on 24th January, 1990, stating that since he is asked to submit himself for further medical examination and since he was not keeping good health, he will go for further medical examination within a short time and till report of such medical test is available, he may be given suitable extension for the purpose of reporting for duty. However, in pursuance of the earlier letter of the petitioner dated 13.1.1990, the petitioner was informed by a Section Officer of the GAD on 24.1.1990 that extension is given up to 5th February, 1990 and by that date, he should report for duty, and if he fails to report for duty by the aforesaid date, his appointment will be treated to have been cancelled. Subsequently, by another letter dated 1st February, 1990, in pursuance of the earlier application of the petitioner dated 24th January, 1990, the petitioner was informed by the Section Officer that the petitioner will have to report for duty during the extended period, i.e. by 5th February, 1990, and that the petitioner should undergo medical examination within the aforesaid date. He was accordingly asked to complete the said process of medical examination by the said date and was asked to report for duty by the said date. However, as per the averment of the petitioner in the petition, the said letter dated 1st February, 1990 was received by the petitioner at a later point of time and he received the said letter on 6th February, 1990 and, in the meanwhile, the petitioner did appear for medical examination on 5th February, 1990. Thereafter, by order dated 13th February, 1990, the appointment of the petitioner was ordered to be cancelled on the ground that the petitioner has failed to report for duty within the extended period, and on that ground, the appointment of the petitioner was ordered to be cancelled. It is required to be noted that such orders were issued against the petitioner and two other employees. Reference of the same is made in the order itself. The petitioner, thereafter, made representation by writing a letter on 21st February, 1990, requesting the Department to reconsider the aforesaid decision. The petitioner pointed out that even though he had received the letter dated 1st February, 1990 to resume duty by 5th February, 1990, he appeared before the Medical Board and that the medical examination is over and that he was awaiting the said medical report from the Department and accordingly, he was awaiting orders of the Department asking him to resume duty from a particular date and under these circumstances, he requested the Department to reconsider the said decision. He, in fact, showed his willingness to opt for the second preference, which he had given for the post of Dy.S.P. Thereafter, by letter dated 19th March, 1990, the petitioner was informed by the GAD that since the petitioner had failed to report for duty within the extended period of time, his appointment is already cancelled by order dated 13.2.1990 and that, there is no valid reason to reconsider the said decision and, therefore, the prayer of the petitioner for reconsidering the said decision was rejected. However, the petitioner again wrote another letter dated 26th March, 1990, to the Secretary of the GAD, and pointed out the factual aspect of the matter in the said representation regarding medical examination, etc. He, therefore, requested the Secretary to reconsider the case and he also requested to give him personal appointment. Since he had not received any reply to the earlier representation dated 26th March, 1990, similar request was again made by him on 12.6.1990. Further representation was again made on 27th June, 1990. Thereafter, he was informed by letter dated 6th July, 1990 that since his appointment is already cancelled as he failed to report for duty within the extended period, his case cannot be considered for appointment to the post of Dy.S.P. as per his second preference. The petitioner was asked not to make further correspondence in this behalf. 5. In view of the aforesaid stand of the Department, ultimately, the petitioner approached this Court challenging the said decision of cancellation of his appointment by filing a writ petition, being Special Civil Application No.6598 of 1990. The aforesaid matter was admitted by this Court and, ultimately, the same was taken up for final hearing on 18th August, 2000. After hearing the learned Advocate for the petitioner as well as the concerned AGP, this Court (Coram : R.K. Abichandani, J.) permitted the petitioner to make an appropriate representation to the Department and the Department was asked to consider the said representation sympathetically, keeping in view the high rank of the petitioner in the select list as well as the circumstances which might be pointed out by the petitioner in his representation. The Court also further observed, in the concluding part of the order, that while passing the fresh order, Rule 5 of the Gujarat Civil Services Classification and Recruitment (General) Rules, 1967 may be taken into consideration, which provides that no person could be appointed if he had failed to pass the medical test. This Court also further observed that such fresh decision may be taken without being coloured by the order of cancellation of the petitioner's appointment made earlier. The aforesaid petition was accordingly allowed to the aforesaid extent. 6. Subsequently, in view of the aforesaid order of this Court, the petitioner made a detailed representation to the Secretary of the GAD on 31st August, 2000. In the said representation, the petitioner pointed out his difficulties in the nature of non-availability of the medical report at the relevant time. In his representation, he also pointed out the provisions of Rule 5 of the Gujarat Civil Services Classification and Recruitment (General) Rules, 1967. The petitioner accordingly prayed that the said issue may be reconsidered. The petitioner also pointed out that since his employment continued with the R.B.I. during the relevant period, he will not claim any right or any monetary benefit for the said intervening period. He requested that his case may be considered sympathetically. 7. Thereafter, the General Administration Department, by its detailed order dated 9.12.2000, rejected the said representation of the petitioner dated 31st August, 2000 and accordingly, the earlier order of 13.2.1990, by which the appointment of the petitioner was cancelled, remained as it is. The aforesaid order dated 9.12.2000, which is passed on the basis of the order of this Court in Special Civil Application No.6598 of 1990, has given fresh cause of action to the petitioner in challenging the decision of the Department cancelling his appointment to the post in question. 8. Mr.Paresh Upadhyay, learned Advocate appearing for the petitioner, argued the matter at length and pointed out various factual aspects to substantiate his say that the order in question, by which order of his appointment was cancelled, suffers from arbitrariness, and, according to him, in the facts and circumstances of the case, the petitioner has successfully demonstrated that there was justifiable reasons available with him for not reporting for duty even during the extended period at the relevant time. Mr.Upadhyay has also relied upon the provisions of Rule 5 of the Gujarat Civil Services Classification and Recruitment (General) Rules, 1967, which, according to him, justify the action of the petitioner in so far as the failure on the part of the petitioner to report for duty at the relevant time without medical report being made available to him is concerned. Mr.Upadhyay has also relied upon the Government Resolution dated 31st March, 1989, which is at page 26 Annexure `C', laying down that an employee should be given one month's joining time if he is recruited by way of direct recruitment. Mr.Upadhyay, therefore, submitted that in view of the clear-cut provision in Rule 5 as well as in view of the observations made by this Court in earlier Special Civil Application, the Department should have considered the decision properly and should have reconsidered the order of cancellation of the appointment order of the petitioner. Mr.Upadhyay also further submitted that the manner in which extension was granted to the petitioner for a few days itself shows that the Department acted in a most unrealistic and arbitrary manner. Mr.Upadhyay also further submitted that since the petitioner was already in service in the Reserve Bank of India, it was but natural for him to ask for reasonable time for the purpose of joining duty, as he wanted to be sure that there is a proper medical examination report available with him and only on such medical report, he was willing to report for duty. He further submitted that it is not open for the Department to insist that the employee should join duty first and, therafter, to report for medical examination after joining duty. Mr.Upadhyay also submitted that unless a person is medically fit, he should not have been asked to report for duty, as such insistence is contrary to the Rules. He also submitted that, considering the facts of the present case, and considering the fact that the petitioner was already serving in the Reserve Bank of India, his insistence for complying with Rule 5 of the Gujarat Civil Services Classification and Recruitment (General) Rules, 1967 was justified as the petitioner may not be subjected to the peril of losing both the employment at a time. He, therefore, submitted that it cannot be said that the petitioner was not willing to resume his duty so far as his new appointment in the said Service is concerned, but because of the aforesaid genuine difficulties, if extension was sought for, which was also granted initially, it should have been granted till the medical report was made available. 9. Under the aforesaid circumstances, in his submission, the order, cancelling his appointment, is arbitrary and illegal and that this Court should set aside the same and direct the respondents to appoint the petitioner on the said post on which he was selected earlier. Mr.Upadhyay has also attacked the impugned order dated 9.12.2000, by which his representation is rejected after the earlier order of the High Court on the ground that the reasons mentioned in paragraph 6 of the aforesaid order are wholly arbitrary, and on absolutely irrelevant grounds, the said representation is rejected and, according to him, on the face of it, the reasons given in paragraph 6 are arbitrary, misconceived and shocking, and, according to him, such reasoning is not expected from the Authorities. On all the aforesaid grounds, therefore, the decision in question is challenged by the petitioner and appropriate writ, direction or order is prayed for by filing this petition. 10. The matter is opposed by the Department by filing affidavit-in-reply, at page 104. On behalf of the Department, one V.P.Pandya, Under Secretary, General Administration Department, has filed the affidavit-in-reply, denying the averments made in the petition and it is prayed that the petition deserves to be dismissed. 11. Mr.Kamal Trivedi, learned Additional Advocate General, along with Ms.Harsha Devani, Assistant Government Pleader, has supported the decision of the Department. It was submitted by the learned Additional Advocate General that, in the facts and circumstances of the case, the insistence on the part of the Department to report for duty first, without waiting for the report of the Medical Board is justified. It was submitted by Mr.Trivedi that similar treatment was given to all the candidates, who were selected by the GPSC, and that it is not the case where the petitioner is singled out or that he was given different treatment as compared to other candidates. Mr.Trivedi also pointed out that in view of the fact that the appointments were held up since long, it was decided to give appointment forthwith to the selected candidates so that the Government work may not suffer. Mr.Trivedi also further submitted that so far as Rule 5 of the Gujarat Civil Services Classification and Recruitment (General) Rules, 1967 is concerned, the application of the said rule comes into picture only at the time when substantive appointment is made and not before that. In his submission, since the petitioner was appointed purely on ad hoc basis, and that too, temporarily, it was not incumbent upon the Department to comply with Rule 5 of the aforesaid Rules till permanent appointment is given after completing the probationary period and that, at the time of passing the confirmation order. Mr.Trivedi also further submitted that the order of cancellation was passed as back as in the year 1990 and that, now, select list is already exhausted and no post of that list is now available, especially when this Court has not passed any interim order in the writ petition, which was filed in 1990, to keep any post vacant or giving any interim order to the effect that the appointment in question shall be subject to the result of this petition. Under the circumstances, it is contended that it is too late in the day to contend that the petitioner should be given appointment on the basis of the selection of the year 1990. Mr.Trivedi also further submitted that, even otherwise, since the appointment order was not given to the petitioner and since the petitioner gave counter offer, the matter remained at the offer stage and that the said offer has not culminated into a final acceptance on the part of the Government. In his submission, therefore, since the request of the petitioner by way of counter offer is rejected by the Government and since on that ground, his appointment is cancelled, the master and servant relationship has never come into force as the counter offer is not accepted. He also further submitted that even if it is assumed that it was not open for the Department to give appointment without there being any medical report available on record before giving such appointment, yet it is open for the Government to relax the same under Rule 16 of the said Rules, as such powers for relaxation are available with the State Government. Mr.Trivedi has relied upon the provisions of Rule 10 of the said Rules to substantiate his say that only at the time of making regular appointment on permanent basis, it is obligatory on the part of the employee to get himself medically cleared through medical examination and it is not obligatory that even for making ad hoc appointment, this medical examination is a sine qua non. He also submitted that the petitioner was given reasonable time by giving extension and that after having waited for sufficient time for more than 42 days, ultimately, the appointment was cancelled. He submitted that if really the Department was vindictive or was keeping any grudge against the petitioner, there was no reason for the Department to give any such extension even though the services of such Officers were required immediately at the relevant time. He submitted that, in the facts and circumstances of the case, therefore, the action of the Government cannot be branded as arbitrary and discriminatory, and it cannot be said that any hostile treatment was given to the petitioner in any manner. He also submitted that considering the fact that the appointment was to be made as back as in the year 1990, this Court now may not exercise its powers for setting aside the impugned order after such a long period and that if the petitioner is ordered to be appointed on the post of Deputy Collector after a period of 12 years of his selection, it will upset and disturb the administration, especially when now no post is kept vacant from that list which was prepared in the year 1990. He also submitted that in case the petitioner is to be accommodated again, then the selected candidates of the list will have to go home, especially when the said list is already exhausted and the waiting list has also already exhausted which was prepared at the relevant time. It is submitted that in case the petitioner is now to be accommodated in service, the Government will have to create a post in the nature of supernumerary post, which, according to him, may create administrative difficulties. It is, therefore, prayed that the petition deserves to be dismissed and no relief can be given to the petitioner after such a belated period. 12. I have heard the Advocates of both the sides in detail.