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2021 Supreme(Guj) 286
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
ASHUTOSH J. SHASTRI, J.
KIRANBHAI AMRITLAL DESAI – Appellant
Versus
INDIAN INSTITUTE OF MANAGEMENT –Respondents
SPECIAL CIVIL APPLICATION NO. 1024 of 2021
Decided On : 23-04-2021
For the Petitioner:MR SHALIN MEHTA, SENIOR ADVOCATE with MR SHRINEEL M SHAH
For the Respondent: MR NANDISH Y CHUDGAR,
Point of Law: Service Law – Terminal benefits - Looking to the nature of appointment having duly accepted the terms of it, the petitioner is estopped from challenging the nature of appointment at the fagend of service.
Headnote:
Constitution of India - Article 226 - Terminal benefits - Order or direction directing the Respondent Institute To treat the Petitioner as permanent Full Time Resident Medical Officer in the Respondent Institute w.e.f. the date of his joining the services - To grant the benefits of Pay Commission Pay scales and other monetary benefits extended to the other Officers, Staff members and employees of Respondent Institute w.e.f. his date of joining along with arrears with 12% simple interest per annum.
Finding of the Court : petitioner been aggrieved by his nature of appointment as purely part time Medical Officer on contractual basis, he could have raised his grievance well within the time when his contract was extended from time to time upon his own request and ought not to have waited till the end of the situation, where the contract is extended only for the last time. The Court found that there is a gross unexplained laches and inordinate delay in raising this grievance by the petitioner and seeking the relief now to be treated as permanent employee. Right from beginning, the position is well accepted by the petitioner with open eyes being a highly literate fellow and conveniently, has stepped out to claim the reliefs mentioned in the petition having realized that his contract is not to be extended. Additionally, the Court found that there must exist a power of regularization in the respondent which the petitioner has not remotely pointed out before the Court about such kind of existing of power. Neither any reference is projected before this Court nor any supportive material is addressed to the Court to justify the reliefs claimed in the petition and as such, the petitioner has miserably failed in making out the case of seeking the relief of this nature. For pretty long period, being a professional qualified person, the petitioner has satisfied himself with the status of his employment as parttime Medical Officer on contractual basis in the Institute and as such, has acquiesced his right of agitating such kind of grievance which is tried to be voiced out in the year 2021.
Result: Petition dismissed
JUDGMENT :
1. By way of this petition under Article 226 of the Constitution of India, the petitioner has asked for the following reliefs:
(A) Your Lordships may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction directing the Respondent Institute to treat the Petitioner as permanent Full Time Resident Medical Officer in the Respondent Institute w.e.f. the date of his joining the services;
(B) Your Lordships may be further pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction directing the Respondent Institute to grant the benefits of Pay Commission Pay scales and other monetary benefits extended to the other Officers, Staff members and employees of Respondent Institute w.e.f. his date of joining along with arrears with 12% simple interest per annum;
(C) Your Lordships may be further pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction directing the
Respondent Institute to grant the benefits of terminal benefits viz. Gratuity, Leave Encashment, Pensionary benefits etc. to the petitioner herein at par with other Officers, Staff members and employees of Respondent Institute after his superannuation from the service of Respondent Institute;
(D) During the pendency of this petition, Your Lordships may be pleased to direct the respondent Institute to continue the Petitioner herein upto December, 2023 i.e. upto completion of 70 years of his age and continue to grant him Payscales and other monetary benefits at par with other Officers, Staff members and employees of Respondent Institute till the final disposal of the present petitioner in the interest of justice;
(E) During the pendency of this petition, Your Lordships may be pleased to direct the respondent Authorities not to fill in the post of Medical Officer in place of Petitioner herein till the final disposal of the present petition in the interest of justice.
(F) …………..
(F) …………..”
2. The case of the petitioner, in brief, is that the Indian Institute of Management Dispensary started functioning originally with appointment of Dr. B.G. Desai in 1963, who was a General Practitioner in Vadaj area of Ahmedabad. He was attending his own dispensary in the evening hours and one Mr. Yogendra Adhvaryu was an Attendant at the dispensary with effect from 1967 and was dispensing the medicines and performing the functions of dressing, firstaid, etc. On account of the increase in strength of the students and staff members, the dispensary started functioning from morning hours and one Dr. R.R. Joshi, MBBS and General Practitioner of Naranpura area was also appointed as Medical Officer in 1976 and along with him, one Mr. Dhanjibhai Patel joined as an Attendant performing the same duty like Mr. Yogendra Adhvaryu. On account of increase in the need at IIM campus in 1979, Dr. B.G. Desai contacted the present petitioner who was interviewed by Dr. V.S. Vyas, the then Director of the respondent Institute and selected the petitioner as Honorary Medical Officer on contract basis in IIM Dispensary with effect from 7.12.1979. On the same day, Dr. Dhanwant Shah, D.Pharm joined as Pharmacist. During the said time, Dr. B.G. Desai started staying at IIM Campus in House No.417 and thereby was attending the dispensary in the evening hours, whereas Dr. R.R. Joshi was staying outside and was attending the dispensary in the morning hours, while the petitioner was staying away from the campus and was attending the dispensary in the morning and evening hours as well as Practitioner. Due to increase in the workload, said Dr. B.G. Desai decided to move out of the campus and Dr. R.R. Joshi refused to stay in the campus, the petitioner was requested by the Institute to stay in the campus and as such, has started staying in the campus in House No.T11 and started working as Resident Medical Officer but on same terms. The
