STATE OF GUJARAT Vs. LUMBHANI NIRANJAN KAKUBHAI

JUDGEMENT

(1.) The present appeal is directed against the judgment and order dated 19.7.2004 passed by the learned Single Judge in Special Civil Application No.7992 of 2003, whereby the learned Single Judge has quashed and set aside the order of termination of the original petitioner from service with the further direction that if it is found that the order dated 7.3.1996 is passed in concurrence with GPSC, then the petitioner be given appropriate benefit in accordance with law.

(2.) The short facts of the case appears to be that the petitioner in reality was appointed as Insurance Medical Officer Class -II on adhoc basis vide order dated 14.8.1992. There were various conditions in the appointment order and some of them were that his appointment is purely temporary and adhoc and the original petitioner can be relieved from service without any notice. The original petitioner thereafter continued in service on adhoc basis for a long time until his services came to be terminated vide order dated 9.5.2003 on the ground that he had not applied to the Gujarat Public Service Commission (hereinafter referred to as 'the GPSC') for appearance at the examination of Insurance Medical Officer Class II. The original petitioner in the meantime appeared in the GPSC examination for the post of Medical Officer Class II, a different cadre which was conducted by GPSC. It also appears that the original petitioner successfully cleared the examination of GPSC and his name was recommended by GPSC for appointment and the appointment orders were also issued on 14.9.1995. However, the original petitioner was not happy with the place of posting and, therefore, he made representation for change of posting to Rajkot because of his family circumstances. He did make representation to various authorities including concerned Minister of Health and Family Welfare but it appears that nothing was materialized and the posting was not given at the place of choice of the original petitioner. Resultantly, the original petitioner did not join the duty on the post of Medical Officer Class II wherein he was regularly selected after clearance of GPSC examination. The another relevant aspect is that there were large number of persons together with the petitioner who did not join the duty in spite of the posting orders were issued and in the communication dated 25.2.2000, it was also mentioned that the original petitioner has not joined the duty in spite of the appointment offered to him and his name appears at Sr.No.32 of the said list. In spite of the aforesaid fact situation, when the services of the original petitioner came to be discontinued/terminated by the impugned order dated 9.5.2003 Annexure 'P', a petition was preferred before this Court being Special Civil Application No.7992 of 2003 but the most pertinent aspect is that the original petitioner never disclosed in the petition that he was appointed on the post of Insurance Medical Officer vide order dated 14.8.1992 and he continued on the said post but rather a misleading statement was made by the petitioner giving impression to the Court that the petitioner joined the duty pursuant to the order dated 9.5.1998 which was for the post of Medical Officer Class II. Various documents were produced by the petitioner for the selection made of him by GPSC and the appointment orders issued after clearance of the examination of the GPSC for the post of Medical Officer Class II. The petitioner never disclosed in the petition that he was not appointed as Insurance Medical Officer and continued on the post of Insurance Medical Officer by showing the distinction of the cadre of Medical Officer Class II and Insurance Medical Officer Class II. The tenor of the petition appears to be that he had cleared GPSC examination for the post in question which was Insurance Medical Officer though in reality he had cleared the GPSC examination and the appointment orders were issued to the original petitioner for the post of Medical Officer Class II. When the matter was heard before the learned Single Judge, it appears that such non -disclosure of the material fact continued and also the misleading statements on the part of the petitioner. The learned Single Judge at paragraph 4 and 4.1 recorded as under:

(3.) We have heard Mr.Jayswal, learned AGP for the appellant -State, Mr.Pathak, learned counsel for respondent no.1 herein -original petitioner and Mr.Joshi, learned counsel for respondent no.2 -GPSC.