CHANDULAL KESHAVLAL SHAH Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Present appellants are the legal heirs of deceased Chandulal Keshavlal Shah original petitioner, whose petition was partly dismissed by Miss R. M. Doshit, J. by her order dated 4-10-2004, which is challenged in this appeal.

(2.) Learned Counsel Shri Jhaveri firstly submitted that the learned single Judge committed grave error in not granting prayer for reimbursement of the medical expenses incurred by the original petitioner in foreign country. In support of his submission, Shri Jhaveri has pointed out the copy of the Resolution dated 20-2-1979 passed by the Board of Directors of the respondent (Annexure-C Collectively), wherein it is stated that he would be entitled for free medical facilities for self and family. He submitted that the respondent No. 2-G.M.D.C. could not have altered his service conditions by subsequent Circular dated 28-1-1980 (Annexure-F). He also submitted that the averments made by him in Para 11 of his writ petition that Dr. S. C. Munshi of Jashlok Hospital, Bombay recommended him to undergo arteriography followed by heart by-pass surgery under Dr. Denton Cooly of St. Lukes Episcopal Hospital, Houston, Texas, U.S.A., where success rate of such operation procedure was more than 90%, remained uncontroverted by the respondent No. 2 in his affidavit. In that view of the matter, learned single Judge should have granted prayer for reimbursement of medical expenses incurred by him in U.S.A. In support of this submission, Shri Jhaveri has placed reliance on the judgment of this Court in the case of Madhavdas Bhagwandas Khushiramani v. State of Gujarat & Ors., reported in 2000 (2) GCD 871 (Para 8). There is no substance in it.

(3.) Shri Jhaveri then submitted that the learned single Judge committed grave error in not considering his challenge to the termination order dated 9-2-1973 (Annexure-A) on the ground that he had initially given up his challenge and the prayer clause 23(A) of the petition was deleted, because prayer clause 23(C) was very much there and the same was not deleted. We are really surprised with such arguments. It appears that the writ petition of the original petitioner was filed at a belated stage, with so many prayers including the challenge to the termination order of 1973. It is clear that only because the original petitioner had given up his challenge to the termination order of 1973, prayer clause 23(A) was deleted at the time of admission, and thereafter, his petition was entertained for other reliefs. Except the relief of reimbursement of his medical expenses and challenge to the order dated 9-2-1973, other reliefs have been granted by the learned single Judge. Therefore, now in this appeal, we would not permit to challenge his termination order of 1973. In fact, it was not open to the appellant to challenge it in appeal after giving up his challenge before the learned single Judge.