Hemantkumar J. Bhatt vs State of Gujarat

Jayant M. Patel, J.—As in both the appeals common questions arise for consideration, they are being considered simultaneously.

Both the appeals are directed against the orders passed by the learned Single Judge in the respective Special Civil Applications, whereby the learned Single Judge has dismissed the petitions.

The short facts of the case appear to be that as per both the petitioners, they were appointed as Ayurvedic Doctors/Vaidyas in the clinics run by District Panchayat on the fixed salary as prescribed. The appointment of both the petitioners were recommended by the District Panchayat. As the clinics were with the respective Gram Panchayat, concerned Sarpanch of the Gram Panchayats had issued appointment orders. Such appointments continued for a petty long time. In the meantime, the District Panchayat took a decision to close down certain Ayurvedic Clinics, which were run from the funds of the District Panchayat. The case of the original petitioners - appellants herein is that there were other Ayurvedic Doctors/Vaidyas, who were engaged on other clinics run by the District Panchayat, for which decision was taken to close down, recommendation was made by the District Panchayat to the State Government to accommodate those Ayurvedic Doctors/Vaidyas in the regular set up of Class-III. The State Government accepted the request of the District Panchayat by giving relaxation. However, so far as the petitioners - appellants herein are concerned, their cases were not considered. Under these circumstances, the petitioner of Special Civil Application No. 18209 of 2003 had preferred the petition earlier being SCA No. 222 of 2003 and in the said petition, this Court vide order dated 18.6.2003, directed the petitioner to make representation and the authority was directed to take decision. The State Government, ultimately, considered the matter and rejected the representation of the petitioner of SCA No. 18209 of 2003 on the ground that the case of the petitioner was not similar with those Ayurvedic Doctors/Vaidyas for whom the relaxation was earlier granted by the State Government. Under these circumstances, the petitioner of SCA No. 18209 of 2003 preferred the petition before this Court.

So far as the petitioner of SCA No. 9638 of 2004 is concerned, his name was not recommended for grant of relaxation by the District Panchayat and before any decision was taken by the State Government as to whether the relaxation should be granted or not, the said petitioner approached this Court by preferring SCA No. 9638 of 2004.

The learned Single Judge found that the petitioners were not selected and recruited by the District Panchayat on its sanctioned posts after following due procedure of recruitment under the Rules and, therefore, found that no direction deserves to be issued. Therefore, the learned Single Judge dismissed the petitions. Under these circumstances the present appeals before the Division Bench of this Court.

We have heard Mr. Dipen Desai, learned Counsel for the appellants in both the matters, Mr. Munshaw, learned Counsel for the District Panchayat and its officers and Mr. Oza, learned AGP for the State and its officers.

The perusal of the order passed by the State Government in the case of Mr. Trivedi, one of the petitioners, shows that the State Government has found that the Medical Officers/Vaidyas in respect of whom relaxation was granted were working in the clinics run from the funds of the District Panchayat, whereas Mr. Trivedi (one of the petitioners) was appointed by Gram Panchayat and, therefore, his case for relaxation has not been granted. In the case of Mr. Bhatt, petitioner of SCA No. 9638 of 2004, the same stand is reiterated by the District Panchayat and it has been opined by the District Panchayat that the request for regularization of services cannot be considered.

We have considered the appointment orders and the correspondences for recommending appointment of the respective petitioners by the District Health Officer. It appears that the said communications, which are already on record, show that the Ayurvedic clinics were run by the Gram Panchayat from the funds of the District Panchayat and Taluka Panchayat. In the case of other similarly situated persons for whom the relaxation has been granted by the State Government vide order dated 3.1.1992, copy whereof is produced at Annexure-J in the compilation of SCA No. 9638 of 2004, similar situation existed, inasmuch as they were also working as Ayurvedic Doctors/Vaidyas in the Ayurvedic Clinics run by the District Panchayat. In their cases relaxation has been granted, whereas in the case of appellants - original petitioners, who were also appointed in the Ayurvedic Clinics run by the District Panchayat, similar treatment has not been given.

Hence, it appears to us that the ground on the basis of which the representation has been turned down for grant of relaxation and for absorption of the petitioners in the cadre of Class-III at par with other 21 Ayurvedic Doctors/Vaidyas, who were considered for regularization vide order dated 3.1.1992 is not proper and can be said as contrary to the record. We are aware about the limitations of the power of this Court to direct for regularization, but at the same time, if similar treatment has not been given, the action of the authority or the State may be rendered as arbitrary. As the prayer for regularization or relaxation has been turned down on wrong premise, we find it proper to issue direction to the State Government to reconsider the matter after calling the relevant records from the District Panchayat, including on the aspect as to whether the Ayurvedic Clinics were run by the District Panchayat or from the funds of the District Panchayat or not and thereafter, if the case of the petitioners is found to be similarly situated, the matter may be considered for giving similar treatment at par with the other 21 Doctors, whose cases were considered vide order dated 3.1.1992 of the State Government (Annexure-J) and in accordance with law.

In view of the aforesaid observations and discussion, the order passed by the learned Single Judge is set aside. The impugned order passed by the State Government as well as the action of the District Panchayat for not to grant relaxation and not to pass order for absorption are set aside with the further direction that the concerned Secretary of the State Government shall reconsider the matter of both the petitioners in light of the observations made by this Court in the present judgment and shall pass appropriate orders, as early as possible, preferably within a period of four months from the date of receipt of the order of this Court. The appellants - original petitioners shall also be at liberty to submit necessary documents before the State Government as and when the issue is to be finalized by the State Government.

The appeals are allowed to the aforesaid extent. Considering the facts and circumstances, no order as to costs.