{"id":133677,"date":"2010-04-09T00:00:00","date_gmt":"2010-04-08T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/prakash-vs-secretary-on-9-april-2010"},"modified":"2017-06-02T02:55:49","modified_gmt":"2017-06-01T21:25:49","slug":"prakash-vs-secretary-on-9-april-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/prakash-vs-secretary-on-9-april-2010","title":{"rendered":"Prakash vs Secretary on 9 April, 2010"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Prakash vs Secretary on 9 April, 2010<\/div>\n
Author: Ks Jhaveri,&Nbsp;<\/div>\n
   Gujarat High Court Case Information System \n\n  \n  \n    \n\n \n \n    \t      \n         \n\t    \n\t\t   Print\n\t\t\t\t          \n\n  \n\n\n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nSCA\/9552\/2006\t 11\/ 11\tJUDGMENT \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nSPECIAL\nCIVIL APPLICATION No. 9552 of 2006\n \n\n \n \nFor\nApproval and Signature:  \n \nHONOURABLE\nMR.JUSTICE KS JHAVERI\n \n \n=========================================================\n\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n1\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tReporters of Local Papers may be allowed to see the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n2\n\t\t\n\t\t \n\t\t\t \n\nTo\n\t\t\tbe referred to the Reporter or not ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n3\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\ttheir Lordships wish to see the fair copy of the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n4\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tthis case involves a substantial question of law as to the\n\t\t\tinterpretation of the constitution of India, 1950 or any order\n\t\t\tmade thereunder ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n5\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tit is to be circulated to the civil judge ?\n\t\t\n\t\n\n \n\n \n=========================================================\n\n\n \n\nPRAKASH\nMOHANLAL SUTARIYA - Petitioner(s)\n \n\nVersus\n \n\nSECRETARY\nTO GOVT.OF GUJARAT & 2 - Respondent(s)\n \n\n=========================================================\nAppearance : \nMR\nPH PATHAK for\nPetitioner(s) : 1, \nMR JK SHAH AGP for Respondent(s) : 1 -\n3. \nNOTICE SERVED BY DS for Respondent(s) : 2 -\n3. \n=========================================================\n\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM\n\t\t\t: \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE KS JHAVERI\n\t\t\n\t\n\n \n\nDate\n: 09\/04\/2010 \n\n \n\nORAL\nJUDGMENT<\/pre>\n
1.\tBy
\nway of this petition under Article 226 of the Constitution of India,
\nthe petitioner has prayed to quash and set aside the order passed by
\nrespondent no.2 dated 18.05.2005 by which his services were
\nterminated and the letter dated 20.05.2005 issued by respondent no.3
\nby which the petitioner was communicated about the passing of the
\norder dated 18.05.2005 by respondent no.2.\n<\/p>\n
2.\tThe
\nfacts in brief are that the petitioner was appointed as a Medical
\nOfficer Class-II, on ad-hoc basis, vide appointment order dated
\n13.07.1999, issued by the Office of respondent no.2. Vide letter
\ndated 25.04.2005 issued by respondent no.3, an explanation was sought
\nfrom the petitioner as to why he petitioner had not remained present
\nin the official meeting called by respondent no.1 on 22.04.2005. The
\npetitioner submitted his explanation to the same vide letter dated
\n28.04.2005.\n<\/p>\n
3.\tBeing
\ndissatisfied with the same, respondent no.2 passed the impugned order
\ndated 18.05.2005 by which the services of the petitioner were
\nterminated. The petitioner was communicated about the passing of the
\nsaid order by respondent no.3 vide its letter dated 20.05.2005.
\nHence, this petition.\n<\/p>\n
4.0\tMr.\n<\/p>\n
P.H. Pathak, learned counsel for the petitioner, has submitted that
\nthe petitioner has been ill-treated by the respondents for raising
\nhis voice against the illegalities committed by them. He has
\nsubmitted that the petitioner did not attend the meeting held on
\n22.04.2005 since he was never communicated about the same by the
\nconcerned authority. Even otherwise, merely on the ground that the
\npetitioner had not attended a particular meeting, it could not be a
\nground to conclude that his services were unsatisfactory. Therefore,
\nthe order of termination passed by the respondents is bad in law and
\ndeserves to be quashed and set aside.\n<\/p>\n
4.1\tLearned
\ncounsel for the petitioners has submitted that before discontinuing
\nthe services of the petitioner on the ground of unsatisfactory work,
\ninquiry proceedings ought to have been initiated against him. No
\nnotice or charge-sheet was served upon the petitioner and hence, the
\nimpugned action is stigmatic.\n<\/p>\n
4.2\tLearned
\ncounsel for the petitioner has further submitted that the impugned
\norder of termination is bad in law also in view of the fact that it
\nis an unreasoned order. No proper procedure established by law was
\nfollowed by the respondents before taking the impugned action. Hence,
\nthe impugned action of the respondents is arbitrary and bad in law
\nand deserves to be quashed and set aside.\n<\/p>\n
4.3\tLearned
\ncounsel for the petitioner has relied upon a decision of the Apex
\nCourt in the case of Babu Lal v. The State of Haryana &
\nOrs., A.I.R. 1991 S.C. 1310, wherein, it has been held that
\neven if the order is couched as order of termination in accordance
\nwith the terms and conditions of the order of appointment, the Court,
\nif necessary, for the ends of fair play and justice, can lift the
\nveil and find out the real nature of the order and if it is found
\nthat the order is penal in nature, even though it is couched with the
\norder of termination in accordance with the terms and conditions of
\nthe appointment, the order can be set aside.\n<\/p>\n
4.4\tLearned
\ncounsel has also relied upon another decision of the Apex Court in
\nthe case of Rudrakumar Sain v. Union of India, 2000(8) S.C.C.
\n29, wherein, it has been held that in service jurisprudence,
\na person who possesses the requisite qualification for being
\nappointed to a particular post and then is appointed with the
\napproval and consultation of appropriate authority and continued in
\nthe post for a fairly long period, then such an appointment cannot be
\nheld to be  stop-gap or fotious or purely ad-hoc appointment .\n<\/p>\n
4.5\tLearned
\ncounsel for the petitioner has, therefore, submitted that the
\nimpugned action of the respondents is arbitrary and violative of the
\nrelevant provisions of the Constitution of India and deserves to be
\nquashed and set aside in view of the principle laid down by the Apex
\nCourt in the aforesaid decisions.\n<\/p>\n
5.0\tMr.\n<\/p>\n
J.K. Shah, learned AGP, has submitted that the petitioner was
\nappointed purely on ad-hoc and temporary basis. His services were
\nliable to be terminated, at any moment, without assigning any
\nreasons, as is clear from his original order of appointment dated
\n13.07.1999. The services of the petitioner were brought to an end as
\nhe was not regular and his work was found to unsatisfactory.
\nTherefore, the authorities below were completely justified in
\nterminating the services of the petitioner.\n<\/p>\n
5.1\tLearned
\nAGP has relied upon the decision of the Apex Court in the case of
\nU.P. State Cement Corporation Ltd. & Ors. v. B. K. Tiwari,<\/a>
\n(1998) 2 S.C.C. 542, wherein, it has been held that when an
\nemployee accepts the terms and conditions contained in the offer of
\nappointment, he could not claim better terms than what has been given
\nin the offer of appointment.\n<\/p>\n
5.2\tLearned
\nAGP has relied upon another decision of the Apex Court in the case of
\nAshok Kumar Sonkar v. Union of India & Ors.,<\/a> (2007) 4
\nS.C.C. 54, wherein, it has been held that the principles of
\nnatural justice may not be applicable in a given case unless a
\nprejudice is shown and that the application of the said principles is
\nnot necessary, where it would be a futile exercise. In that case, the
\nselection of the appellant-employee was illegal as he was ineligible
\nto be considered for appointment and therefore, the cancellation of
\nhis appointment, without affording any opportunity of hearing to him
\nby the authority concerned, was held to be proper.\n<\/p>\n
5.3\tLearned
\nAGP has next relied upon another decision of the Apex Court in the
\ncase of State of Uttar Pradesh & Anr. v. Ram Adhar,<\/a> (2008)
\n12 S.C.C. 136, wherein, it has been held that there is no
\nprinciple of law that a person appointed in a temporary capacity has
\na right to continue till a regular selection and rather the legal
\nposition is just the reverse, that is, that a temporary employee has
\nno right to the post and that he has no right to continue even for a
\nday as of right, far from having a right to continue till a regular
\nappointment is made.\n<\/p>\n
5.4\tLearned
\nAGP has lastly relied upon another decision of the Apex Court in the
\ncase of State of West Bengal & Ors. v. Banibrata Ghosh &
\nOrs.,<\/a> (2009) 3 S.C.C. 250, wherein also similar principle has
\nbeen laid down, i.e. an ad-hoc appointee does not have any right to
\nbe regularized.\n<\/p>\n
5.5\tLearned
\nAGP has, therefore, submitted that the respondent-authorities were
\ncompletely justified in terminating the services of the petitioner
\nand this Court may not exercise its discretionary powers in favour of
\nthe petitioner.\n<\/p>\n
6.\tHeard
\nlearned counsel for the respective parties and perused the documents
\non record. The petitioner was appointed on the post in question vide
\nappointment order dated 13.07.1999. In service jurisprudence, it is a
\nsettled law that the services of an employee shall be governed by the
\nterms and conditions provided in his offer of appointment. Such
\nappointment may be permanent or temporary or on ad-hoc basis for a
\nlimited period. Every appointment made, in pursuance of such offer of
\nappointment, shall be governed by the terms and conditions, as
\nprovided therein.\n<\/p>\n
7.\tA
\nplain reading of the appointment order dated 13.07.1999 of the
\npetitioner shows that the appointment of the petitioner was on purely
\nad-hoc basis and that his services are likely to be terminated, at
\nany moment, without issuing any Notice. In other words, the
\nemployment of the petitioner was temporary and was liable to be
\nterminated, at any time, without even issuing a Notice. In the order
\nof appointment, it has been categorically stated that his appointment
\nas an ad-hoc Medical Officer Class-II, in the pay-scale of
\nRs.8000-275-13500, shall be for a period of one year, on the terms
\nand conditions provided therein and also that his services are liable
\nto be terminated, at any time, without issuing any Notice. Therefore,
\nevidently, the petitioner was never appointed on a regular post, on
\npermanent basis, after following due selection procedure. He was
\nappointed on a purely temporary basis for a limited period.
\nTherefore, he has no right to hold the post in question.\n<\/p>\n
8.\tKeeping
\nthe aforesaid facts in mind, it is required to be noted that the
\nservices of the petitioner were brought to an end on the ground that
\nhis work was found to be ‘unsatisfactory’. It appears from the
\nrecord that the petitioner was not performing his duties diligently
\ninasmuch as he used to leave the Head Quarters, without prior
\npermission of the competent authority and was also not punctual in
\nattending the Hospital. The cause of action arose when a Meeting was
\ncalled by respondent no.1 on 22.04.2005 and the petitioner did not
\nattend the same. The main defence of the petitioner for not attending
\nthe said Meeting is that he was not intimated about the same by the
\nconcerned authority and that the day on which the Meeting was held,
\nit was a public holiday. However, the said story does not inspire any
\nconfidence since the petitioner was found to be leaving the Head
\nQuarters regularly without prior permission and that he was not
\nattending the Hospital punctually. For the aforesaid reasons, his
\nwork was found to be unsatisfactory.\n<\/p>\n
9.\tWhenever,
\nthe competent authority is satisfied that the work and conduct of a
\ntemporary employee is not satisfactory or that his continuance in
\nservice is not in public interest on account of his unsuitability,
\nmisconduct or inefficiency, it may either terminate his services in
\naccordance with the terms and conditions of the service or the
\nrelevant rules or it may decide to take punitive action against such
\ntemporary employee. In the present case, for reasons stated herein
\nabove, the work of the petitioner was found to be unsatisfactory and
\ntherefore, his services were brought to an end.\n<\/p>\n
10.\tThe
\ntermination order was also assailed on the ground that in substance
\nit was an order of punishment and also stigmatic. In my view, the
\nsaid contention raised by the learned counsel for the petitioner is
\nwithout any basis inasmuch as under the terms of the order of
\nappointment, no inquiry or notice was necessary. A regular
\ndepartmental inquiry initiated against a permanent employee can not
\nbe equated with any inquiry held against a temporary Government
\nemployee. In a regular departmental inquiry, the main idea is to
\nascertain as to what punishment should be imposed. But, the same is
\nnot the case in respect of a temporary Government employee since the
\nmain idea in such case is to decide whether such employee deserves to
\nbe continued in service or not. Thus, the criteria for the said two
\ncategories of employees are totally different.\n<\/p>\n
11.\tIn
\nmy opinion, the order of termination of services of a temporary
\nGovernment servant, which in form and substance, is no more than his
\ndischarge effected under the terms of contract or the relevant rule,
\ncannot in law, be regarded as his dismissal because the appointing
\nauthority was actuated by the motive that the said servant did not
\ndeserve to be continued in service for some alleged inefficiency or
\nmisconduct. Therefore, it is erroneous to hold that where no inquiry
\nis held before issuance of the order of termination, then such order
\nis punitive in nature. In the case on hand, the services of the
\npetitioner was found to be unsatisfactory and therefore, under the
\nterms of the contract of appointment, which categorically provided
\nthat the services was purely on ad-hoc basis for a limited period and
\ncould be terminated, at any time, without issuing any Notice, the
\nrespondent-authority passed the impugned order of termination. Hence,
\nunder no circumstances, it could be said that the order is punitive
\nor stigmatic.\n<\/p>\n
12.\tIn
\nBabu Lal’s case (supra), relied upon by the learned counsel for the
\npetitioner, the ad-hoc employee was placed under suspension on the
\nsole ground that criminal proceeding was pending against him. His
\nservices were terminated during the pendency of suspension and also
\nduring the pendency of criminal proceeding. Subsequently, he was
\nacquitted from the criminal proceeding. He was not considered for
\nregularization even though he had fulfilled all the requisite terms
\nof the executive instructions providing for regularization of such
\nemployee. On the facts of the case, the Apex Court held the order of
\ntermination to be illegal. The principle laid down in the said
\ndecision will not apply to the case on hand inasmuch as, in that
\ncase, the ad-hoc employee was found to be eligible in all respects
\nfor regularization of his services, whereas, in the present case, the
\nservices of the petitioner were found to be unsatisfactory rather
\nthan even being eligible. Moreover, the order of termination is also
\nfound to be couched as an order of termination in accordance with the
\nterms and conditions of offer of appointment. Therefore, the said
\ndecision will not be of any help to the petitioner.\n<\/p>\n
13.\tIn
\nview of the above discussion, I am of the opinion that the
\nrespondent-authority has not committed any error while issuing the
\nimpugned order of termination. The action of the respondents is just
\nand with due authority of law. Hence, I find no reasons to interfere
\nin this petition under Article 226 of the Constitution of India.\n<\/p>\n
14.\tFor
\nthe foregoing reasons, the petition is dismissed. Rule is discharged.
\nInterim relief, if any, stands vacated.\n<\/p>\n
[K.S.JHAVERI,
\nJ.]\t<\/p>\n
Pravin\/*<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Prakash vs Secretary on 9 April, 2010 Author: Ks Jhaveri,&Nbsp; Gujarat High Court Case Information System Print SCA\/9552\/2006 11\/ 11 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 9552 of 2006 For Approval and Signature: HONOURABLE MR.JUSTICE KS JHAVERI ========================================================= 1 Whether Reporters of Local Papers may […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-133677","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nPrakash vs Secretary on 9 April, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/prakash-vs-secretary-on-9-april-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Prakash vs Secretary on 9 April, 2010 - 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