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2019 Supreme(Guj) 368
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
A.S. SUPEHIA, J.
NAVINBHAI B. GANDHI & 15 others - Petitioners
Versus
STATE OF GUJARAT & 5 others - Respondents
R/SPECIAL CIVIL APPLICATION NO. 2059 of 2008 With R/SPECIAL CIVIL APPLICATION NO. 2060 of 2008
Decided On : 08-04-2019
For the Petitioners: MR. N.K. MAJMUDAR.
For the Respondents: MS. KRINA CALLA, AGP, MR. DHAVAL M. BAROT, MR. P.A. JADEJA.
Headnote:
Constitution of India,- Respondent No.4 -Charitable Trust had started Homeopathy College for DHMS course in which was recognised by the Central Council of Homeopathy respondent No. as well as the Government of -It is submitted that initially the respondent was recognized as self-finance institution form -State Government had recognized the said institution as grant-in-aid institution for DHMS course from -Respondent was being released grant upto to meet with the expenses of salaries of teaching and non-teaching staff and grant to meet with the expenses for other purposes -Petitioners were appointed form time to time as teaching and non-teaching staff is the case of the petitioners that all the staff of the respondent college was appointed by the respondents -Authorities as per the Rules and Regulations and also approved by the respondents - Authorities -Petitioners were appointed as per the norms of respondent Even the respondents -Authorities had passed resolution dated and granted all the pay and allowances as per the recommendations of Fifth Pay Commission to the staff of respondent No College and since then all the teaching and non-teaching staff of respondent college have been getting salary and allowances as per the revised rates -It is stated that upto the course of DHMS was being run by the respondent as grant-in-aid college -It seems that in the Central Government decided to stop the course of Diploma DHMS Course and to started BHMS Degree Course -Respondent No college also stopped Diploma DHMS Course and started proceedings for obtaining recognition for the BHMS Degree Course -Held, Court petitioners cannot as a matter of right demand to get absorbed on their terms and conditions once the institute had closed down the diploma course -State Government vide various communications have clarified that the entire burden was on the respondent No -Trust to accommodate the petitioners in service -Vide communication dated passed by the Deputy Secretary of Health and Family Welfare Department the respondent No –Trust was directed to absorb the present petitioners in the degree colleges -The same does not in any way reveal that the petitioners shall be absorbed with continuity of service -It appears that since the petitioners did not agree to be join as per the settlement; all other homeopathy colleges refused their appointment as there was no post available. Some of the institutes like Homeopathic Medical College & Research Institute homeopathic Trust Dave Homeopathy Medical College and Hospital have refused to absorb the petitioners were required to follow the other employees when they were called upon by the College to accept the terms and conditions as per the settlement, however they did not do so hence they cannot insist upon being appointed on their own terms and conditions in wake of the non-availability of posts -the writ petition fails legal scrutiny, however it is clarified that it will be open for the petitioners to file appropriate proceedings to claim damages against the respondent -Trust and if any such proceedings are filed the same may be decided in accordance with law. Rule discharged -Ordered Accodingly.
1. The instant writ petitions have been filed with the following prayers in paragraph No.7(a) and (b):
"(a) Be pleased to admit this petition;
(b) Be pleased to issue a writ of mandamus or any other appropriate writ, order or directions, quashing and setting aside the communication dated 17.7.2007 sent by respondent no.3 to the petitioners and be pleased to hold that the communication dated 17.7.2007 is absolutely illegal, arbitrary and unjust;"
2. The brief facts giving rise to these petitions are as under :
2.1 The petitioners are the teaching and non-teaching staff of respondent No.4 college.
2.2 The respondent No.4 - Pachchigar Charitable Trust (“Trust”) had started Homeopathy College for DHMS course in 1982 which was recognised by the Central Council of Homeopathy, i.e., respondent No.6 as well as the Government of Gujarat. It is submitted that initially, the respondent No.4 was recognized as self-finance institution form 1982 top 1986. Thereafter, the State Government had recognized the said institution as grant-in-aid institution for DHMS course from 1986. The respondent No.4 was being released grant upto 100% to meet with the expenses of salaries of teaching and non-teaching staff and 60% grant to meet with the expenses for other purposes. The petitioners were appointed form time to time as teaching and non-teaching staff.
2.3 It is the case of the petitioners that all the staff of the respondent No.4 college was appointed by the respondents - authorities as per the Rules and Regulations and also approved by the respondents - authorities. The petitioners were appointed as per the norms of respondent No.6. Even the respondents - authorities had passed resolution dated 03.11.1988 and granted all the pay and allowances as per the recommendations of Fifth Pay Commission to the staff of respondent No.4 College and since then, all the teaching and non-teaching staff of respondent No.4 college have been getting salary and allowances as per the revised rates. It is stated that upto 1997, the course of DHMS was being run by the respondent No.4 as grant-in-aid college. However, it seems that in 1998, the Central Government decided to stop the course of Diploma DHMS Course and to started BHMS Degree Course. Therefore, the respondent No.4 college also stopped Diploma DHMS Course and started proceedings for obtaining recognition for the BHMS Degree Course.
3. Learned advocate Mr. Majmudar appearing for the petitioners has submitted that there are five colleges, namely, Gujarat Homeopathic Medicine College, Savli, AJ Savla Homeopathic Medicine College, Dr. V.H. Dave Homeopathy Medicine College, Anand Homeopathic Medicine College and Hospital and the CD Pachchigar Homeopathic Medical College under the respondent No.5 university. He has submitted that all the teaching and non-teaching staff of the aforesaid four colleges were absorbed except the respondent No.4 - Trust on the same post with continuity of service after commencement of BHMS Degree Course.
3.1 Learned advocate Mr. Majmudar has submitted that respondent No.6 had granted permission to the aforesaid colleges only for two years, i.e., 2001 and 2002 for starting the BHMS Degree Course. He has submitted that while taking permission from respondent No.6, respondent No.4 - Trust had given undertaking to the effect that the teaching and non-teaching staff would be appointed as per the norms of the Government as well as Ordinance 69-A and 69-B of the University.
3.2 Learned advocate Mr. Majmudar has submitted that in the year 2001, since the petitioners were not paid salaries, they were constrained to prefer Special Civil Application No.6156 of 2002 before this Court. This Court in the said petition had passed the order directing the respondent No.4 to deposit an amount of Rs.82,25,735/- and further, it was directed to make payment of the salary to the petitioners. However, from September 2003, respondent No.4 stopped making payment of salary to the petitioners and, therefore, conte
