Gujarat High Court
Rakesh M. Dolia vs State Of Gujarat on 18 July, 2023
Author: Rajendra M. Sareen
Bench: Rajendra M. Sareen
NEUTRAL CITATION
C/SCA/22549/2017 JUDGMENT DATED: 18/07/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 22549 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN Sd/-
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1 Whether Reporters of Local Papers may be allowed NO
to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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RAKESH M. DOLIA
Versus
STATE OF GUJARAT & 3 other(s)
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Appearance:
MR ANKUR Y OZA(2821) for the Petitioner(s) No. 1
MR SANJAY UDHWANI AGP for the Respondents
RULE SERVED for the Respondent(s) No. 4
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CORAM:HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN
Date : 18/07/2023
ORAL JUDGMENT
1. By way of this petition under Article 226 of the Constitution of India, the petitioner has challenged the order dated 23/2/2011 issued by the respondent No.2 and implemented by the respondent No.3 and subsequent communication dated 14/12/2012 and order dated Page 1 of 20 Downloaded on : Sat Sep 16 21:57:20 IST 2023 NEUTRAL CITATION C/SCA/22549/2017 JUDGMENT DATED: 18/07/2023 undefined 29/4/2014 issued by the respondent No.2 and also prayed to direct the respondents to reinstate the petitioner on the post of ad-hoc lecturer, class II with all entitlements, rights, benefits including back wages and without break of service. The petitioner has also prayed to direct the respondent No.1 to decide afresh the case of the petitioner for reinstatement in service on the basis of the representation dated 22/2/2017.
2. CASE OF THE PETITIONER:
2.1. The petitioner was appointed as Lecturer Class II in the pay scale of Rs.8000-275-13,500 in the Mechanical Engineering branch on ad-hoc basis vide order dated 24/09/2008 issued by the respondent No.1. The appointment was for the period of 11 months or till the regular appointment is made by Gujarat Public Service Commission, whichever expires earlier.
2.2. The aforesaid order was in the nature of a consolidated order appointing 434 persons as Lecturer class II in various engineering colleges in the State of Gujarat. The name of the petitioner appeared in the list of appointees at Sr.No.3, appointing him as Lecturer Class II in the Shantilal Shah Engineering College, Bhavnagar. In pursuance of the said order, the petitioner resumed his duty w.e.f. 26/09/2008 as acknowledged by respondent No.4 in letter dated 03/10/2008 communicated to respondent No.1.Page 2 of 20 Downloaded on : Sat Sep 16 21:57:20 IST 2023
NEUTRAL CITATION C/SCA/22549/2017 JUDGMENT DATED: 18/07/2023 undefined 2.3. It is the case of the petitioner that since then the petitioner continued in service as ad-hoc lecturer Class II in Shantilal Shah Engineering College, Bhavnagar as the tenure of the ad-hoc appointment of the petitioner and similarly situated other ad-hoc lecturers appointed with the petitioner in the year 2008 has been extended vide order dated 26/06/2009 of respondent No.4 and order dated 30/4/2010 issued by the respondent No.3.
2.4. It is the case of the petitioner that while in service as lecturer class II in Shantilal Shah Engineering College, Bhavnagar, the petitioner was served with office order dated NIL issued by the respondent No.3 communicating that pursuance of the order dated 23/2/2011 issued by the respondent No.2, the service of the petitioner has been terminated after working hours of 1/3/2011. On going through the said order, it transpires that the service of the petitioner has been terminated by virtue of condition No.3 laid down in the appointment order dated 24/9/2008 which leads that during the tenure of service the appointee shall be discharged any time from service if their working is not found satisfactory.
2.5. The petitioner challenged the aforesaid termination order by way of preferring Special Civil Application No.4851 of 2011, which was dismissed by the co-ordinate Bench of Page 3 of 20 Downloaded on : Sat Sep 16 21:57:20 IST 2023 NEUTRAL CITATION C/SCA/22549/2017 JUDGMENT DATED: 18/07/2023 undefined this Court vide order dated 10/11/2011. Against the aforesaid order, the petitioner preferred Letters Patent Appeal No.1075 of 2012, which came to be disposed of by the Division Bench of this Court vide order dated 30/8/2012 permitting the petitioner to make representation to the authority for accommodating the petitioner in service, at least so long as vacancies are not filled up in accordance with the applicable recruitment rules.
2.6. Pursuant to the aforesaid order passed in the Letters Patent Appeal, the petitioner made a representation dated 15/9/2012 to the respondent Nos.1 and 2, which came to be rejected by the respondent No.3 vide order dated 14/12/2012.
2.7. The petitioner challenged the said communication dated 14/12/2012 by way of preferring Special Civil Application No.2595 of 2013, which came to be disposed of by co-ordinate Bench of this Court vide order dated 26/12/2013 directing the respondent authorities to reconsider the representation of the petitioner dated 15/9/2012. The respondent No.3 thereafter rejected the representation of the petitioner vide order dated 29/4/2014.
2.8. The petitioner challenged the said order dated 29/4/2014 of the respondent No.3 by way of preferring Special Civil Application No.9435 of 2014, which came to be Page 4 of 20 Downloaded on : Sat Sep 16 21:57:20 IST 2023 NEUTRAL CITATION C/SCA/22549/2017 JUDGMENT DATED: 18/07/2023 undefined disposed of vide order dated 23/12/2016 to avail alternate remedy.
2.9. The petitioner thereafter received from the office of the respondent the documents related to departmental inquiry based on which the service of the petitioner was terminated. From those documents, it transpires that the inquiry officer recorded statements of staff of the college during the departmental inquiry. The inquiry officer did not record statement of the petitioner. The respondent authority however rejected the representation of the petitioner on the ground that the petitioner was heard during the course of inquiry.
2.10. The petitioner thereafter made communication dated 22/2/2017 intimating the respondent authority to decide the case of the petitioner afresh. In response thereof, the respondent intimated to the petitioner vide communication dated 8/5/2017 to remain personally present on 25/5/2017 before the Commissioner, Technical Education, Gandhinagar. On 25/5/2017, the Commissioner was not present and thereafter as intimated vide communication dated 16/6/2017, the petitioner remained present on 20/6/2017 and made representation to the Commissioner, Technical Education. The respondent No.1 thereupon assured to the petitioner that appropriate decision will be taken and communicated to the petitioner. The petitioner, Page 5 of 20 Downloaded on : Sat Sep 16 21:57:20 IST 2023 NEUTRAL CITATION C/SCA/22549/2017 JUDGMENT DATED: 18/07/2023 undefined however, not received any decision in this regard from the office of the Commissioner.
2.11. The petitioner therefore, has preferred the present petition for the aforesaid reliefs.
3. SUBMISSION OF THE PETITIONER:
3.1. Mr.Ankur Oza, learned advocate for the petitioner has submitted that the respondent authority failed to perform their Statutory duty by not deciding afresh the case of the petitioner after it was brought to the notice of the respondents that the petitioner was not subject to any departmental inquiry and that the statement of the petitioner was never recorded in any such inquiry. That the order of termination of service of the petitioner for the reason that his working was not satisfactory was based on perverse findings and therefore such order deserves to be quashed.
3.2 Mr.Ankur Oza, learned advocate for the petitioner has submitted that the order dated 29/04/2014 of respondent No.3 being perverse deserves to be quashed and set aside. It is submitted that the statement of the petitioner was never recorded during the course of departmental inquiry. The petitioner was never heard before his serves was terminated.
The respondent no.3 however turned down the representation of the petitioner for the sole reason that the Page 6 of 20 Downloaded on : Sat Sep 16 21:57:20 IST 2023 NEUTRAL CITATION C/SCA/22549/2017 JUDGMENT DATED: 18/07/2023 undefined petitioner was given hearing before his service was terminated. The findings arrived at by the respondent No.3 while deciding the representation of the petitioner are factually incorrect and therefore the order dated 29/04/2014 based on perverse finding deserves to be quashed.
3.3. Mr.Ankur Oza, learned advocate for the petitioner has submitted that the order of termination issued by respondent No. 2 and implemented by respondent No. 4 as well as the order dated 29/04/2014 of the respondent No. 3 is illegal, unconstitutional, arbitrary and discriminatory and violates principle of natural justice and therefore void-ab- initio.
3.4. Mr.Ankur Oza, learned advocate for the petitioner has submitted that the impugned order dated 29/04/2014 of respondent No. 3 contains material which has come before the petitioner for the first time inspite of number of petitions before this court as well as the submissions before the respondents that there is no disciplinary inquiry against the petitioner and there are no adverse comments about performance of the duty in the quarterly evaluation of report of work of the petitioner made by the competent officer. The order dated 29/04/2014 speaks about a inquiry report dated 25/08/2010 of Deputy Director which report in fact in relation to anonymous petition against three other Page 7 of 20 Downloaded on : Sat Sep 16 21:57:20 IST 2023 NEUTRAL CITATION C/SCA/22549/2017 JUDGMENT DATED: 18/07/2023 undefined members of the staff namely namely (1) Shri M. K. Vora, (2) Shri J. A. Vadher and (3) Shri D. M. Joshipura. In the said anonymous letter there was no complaint against the petitioner. It is submitted that the contained in the anonymous petition has acted beyond the scope of the inquiry assigned to him and has implicated the petitioner in saying that allegations against the petitioner are proved and according to the statement of Shri M. K. Vora and other staff the performance of the petitioner being not good.
3.5. Mr.Ankur Oza, learned advocate for the petitioner has submitted that the evaluation of the work of the petitioner has been made on quarterly basis which has been communicated by respondent No. 4 to the respondent No. 1. Up to 01/03/2011 no adverse remark has been made in any of the evaluation reports of the petitioner. The petitioner has also not been communicated any thing adverse reported in quarterly evaluation report leading to the belief that service of petitioner was unsatisfactory. The petitioner right from the date of his resuming duty i.e. 26/09/2008 up to 01/03/2011 has not been issued any letter of displeasure from the principal or head of the department regarding the dissatisfactory service of the petitioner. Any warning or memorandum has also not been issued. The order of termination dated 23/02/2011 and order dated 29/04/2014 are therefore arbitrary and discriminatory deserve to be quashed. The order dated 29/04/2014 Page 8 of 20 Downloaded on : Sat Sep 16 21:57:20 IST 2023 NEUTRAL CITATION C/SCA/22549/2017 JUDGMENT DATED: 18/07/2023 undefined interalia speaks that at the relevant time the representation against this inquiry report was not accepted. This statement of respondent no. 3 is factually incorrect as the petitioner was never allowed to confront the inquiry report of Shri K. R. Parmar. In fact the petitioner was although out stranger to the inquiry report and even while hearing the petitioner in response to the order passed by this Court dated 26/12/2013 passed in SCA No.2595/2013, the facts about inquiry report of Shri K. R. Parmar has been mentioned only in the impugned order dated 29/04/2014 for the first time. Not only that the respondents have relied on an extraneous and irrelevant material contained in the inquiry report of Shri K R. Parmar but the petitioner has been kept in dark all through out right from the date of inquiry report ie. 25/08/2010 to the date on which the impugned order dated 29/04/2014 was served to the petitioner.
3.6. Mr.Ankur Oza, learned advocate for the petitioner has submitted that the petitioner is aggrieved that the inquiry report against the petitioner is made without any such inquiry assigned to the inquiry officer. The petitioner is shocked to find that the petitioner has been implicated in the inquiry report on the basis of statement of Shri M. K. Vora whose conduct was to be inquired in to as per direction to the inquiry officer Shn K. R. Parmar. The inquiry officer has been lead by the statement of Shri M. K. Vora that the performance of the petitioner is not good Page 9 of 20 Downloaded on : Sat Sep 16 21:57:20 IST 2023 NEUTRAL CITATION C/SCA/22549/2017 JUDGMENT DATED: 18/07/2023 undefined inspite of no such statement is made in his quarterly evaluation report all through out The petitioner finds the mquiry report as based on bias against him and is framed on the basis of evidence of Shri M. K. Vora who in fact was facing the inquiry and his statement is just to scapegoat the petitioner and keep himself safe. In fact anonymous applications ought to have been ignored by the authorities but even in it is inquired in to as the petitioner was not implicated in the anonymous petition it was a serious error on part of the inquiry officer that he implicated the petitioner and that too on the basis of statement by Shri M.K. Vora whose conduct was to be inquired into.
3.7. Mr.Ankur Oza, learned advocate for the petitioner has submitted that the petitioner is also aggrieved to find that his service was terminated vide order dated 23/02/2011 which is in the nature of major penalty. It is submitted that ordinarily a person facing major inquiry has a right to examine the report and the evidence on which the report is based and ought to have an opportunity to cross examine the witness. Without doing any such exercise the respondent authority summarily issued order of termination dated 23/02/2011 on the basis of inquiry report dated 25/08/2010 of Shri K. R. Parmar which is unjust, unfair and arbitrary and it amounts to miscarriage of justice.
Page 10 of 20 Downloaded on : Sat Sep 16 21:57:20 IST 2023NEUTRAL CITATION C/SCA/22549/2017 JUDGMENT DATED: 18/07/2023 undefined 3.8. Mr.Ankur Oza, learned advocate for the petitioner has submitted that the petitioner has never been intimated about the inquiry conducted by Shri K. R. Parmar. The respondents have also not supplied the inquiry report and the material on which the respondents placed reliance to terminate the service of the petitioner. It is submitted that the order of rejection of representation dated 29/04/2014 and order dated 23/02/2011 terminating employment of the petitioner being discriminatory and arbitrary and based on bias as there is no material to justify such actions.
3.9. Mr.Ankur Oza, learned advocate for the petitioner has submitted that the representation made by the petitioner ought to have been considered in light of the direction issued by this Court in SCA No.2595/2013 as well as orders dated 24/03/2011 and 07/09/2011 passed in LPA No.2986/2010 by this Court. That the case of petitioner is required to be considered for accommodation on ad-hoc basis in one or other equivalent standard Degree/Diploma Engineering College in any of the district of the State against the posts which are not yet been advertised. It is submitted that the respondents have erred in not considering the representation as the direction of this court and rejected the representation of the petitioner on extraneous material without giving any convincing reasons and the decision assumes the character of arbitrary action.
Page 11 of 20 Downloaded on : Sat Sep 16 21:57:20 IST 2023NEUTRAL CITATION C/SCA/22549/2017 JUDGMENT DATED: 18/07/2023 undefined 3.10. Mr.Ankur Oza, learned advocate for the petitioner has submitted that the protection of Articles 14 and 16 of the constitution is available even to a temporary government servant if he has been arbitrarily discriminated and singled out for harsh treatment in preference to his juniors similarly circumstanced. Even in case of a person employed on ad- hoc basis there subsists the relation of master and servant and there is a moral obligation to act fairly. The employee should be made aware of defect in his work and deficiency in his performance. Timely communications of the assessment of work in such cases may put the employee on the right track. Without any such communication, it would be arbitrary and discriminatory to terminate the service of the petitioner visa vis his juniors who have been retained.
3.11. Mr.Ankur Oza, learned advocate for the petitioner has submitted that the order terminating the service of the petitioner violates the principle of natural justice as opportunity of hearing has not been given before passing the order terminating the service of the petitioner. The observance of rule of natural justice is an essential ingredient of administrative law and any administrative order where the rule of natural justice is violated ought to be held as untenable.
3.12. Mr.Ankur Oza, learned advocate for the petitioner has submitted that the service of the petitioner has been Page 12 of 20 Downloaded on : Sat Sep 16 21:57:20 IST 2023 NEUTRAL CITATION C/SCA/22549/2017 JUDGMENT DATED: 18/07/2023 undefined terminated on the ground of unsatisfactory service and therefore the order issued is in the nature of punitive order. Before the order is issued the petitioner ought to have been heard and reasonable opportunity of hearing ought to have been granted. The order of termination is issued without following principal of natural justice and therefore deserves to be quashed and set aside.
3.13. Mr.Ankur Oza, learned advocate for the petitioner has submitted that the petitioner is otherwise possessed with meritorious academic record. The petitioner possessed academic qualification of M.Tech. (Mechanical) as compared to other ad-hoc employees who are simply B.E. or B.Tech. The petitioner has also recently declared successful in the Ph.D. entrance examination held by Gujarat Technological University. The petitioner has also got admission in Ph.D. course and is notified, enrolled student of Ph.D. of Gujarat Technological University.
3.14. Mr.Ankur Oza, learned advocate for the petitioner has submitted that the institute in which the petitioner works has inadequate working strength as against sanctioned strength and there is no necessity to reduce the number of employees on the ground of excessive strength. The employees junior to the petitioner have been retained where as the petitioner has been singled out for issue of termination order though the evaluation report of the Page 13 of 20 Downloaded on : Sat Sep 16 21:57:20 IST 2023 NEUTRAL CITATION C/SCA/22549/2017 JUDGMENT DATED: 18/07/2023 undefined petitioner and his juniors are identical in nature.
4. SUBMISSIONS OF THE AGP :
4.1. Mr.Sanjay Udhwani, learned AGP for the respondents -
State has vehemently submitted that the petitioner's conduct is gross that affected the students of the college where the petitioner was appointed as ad-hoc lecturer. It is submitted that students made complaints that the petitioner was never conducting lectures in the college and his teaching style was also not proper with regard to the standard of a engineering college lecturer.
4.2. Mr.Sanjay Udhwani, learned AGP for the respondent has further submitted that the present petition is 5 th round of litigation filed by the petitioner. It is submitted that in all earlier 4 petitions, similar prayers were made by the petitioner, however all the petitions either dismissed by the Court or withdrawn by the petitioner. It is submitted that when this Court has not interfere with the impugned order of termination in earlier 4 petitions, in this 5 th petition, no interference is required to be made by this Court.
4.3. Heard Mr.Ankur Oza, learned advocate for the petitioner and Mr.Sanjay Udhwani, learned AGP for the respondents State and considered the material on record.
5. FINDING :
Page 14 of 20 Downloaded on : Sat Sep 16 21:57:20 IST 2023NEUTRAL CITATION C/SCA/22549/2017 JUDGMENT DATED: 18/07/2023 undefined 5.1. Having heard the learned advocates for the respective parties and considering the material on record, it appears that the petitioner was appointed as lecturer Class-II in the Mechanical Engineering Branch on ad-hoc basis vide order dated 24/09/2008 issued by the respondent No.1. It is pertinent to note that the appointment of the petitioner was for the period of 11 months or till the regular appointment is made by Gujarat Public Service Commission, whichever expires earlier. In pursuance of the said order, the petitioner resumed his duty on 26/09/2008 and since then the petitioner continued in service as ad-hoc lecturer Class II in Shantilal Shah Engineering College, Bhavnagar as the tenure of the ad-hoc appointment of the petitioner and similarly situated other ad-hoc lecturers appointed with the petitioner in the year 2008 has been extended vide order dated 26/06/2009 of respondent No.4 and order dated 30/4/2010 issued by the respondent No.3. That thereafter the services of the petitioner came to be terminated by the respondent No.3 vide order dated 23/2/2011 in pursuance of the order of the respondent No.2, after working hours of 1/3/2011.
5.2. It is relevant to note that after termination, the petitioner had challenged the order of termination by way of preferring SCA No.4851 of 2011, which came to be dismissed by co-ordinate bench of this Court vide order dated 10/11/2011. By way of second round of litigation, the Page 15 of 20 Downloaded on : Sat Sep 16 21:57:20 IST 2023 NEUTRAL CITATION C/SCA/22549/2017 JUDGMENT DATED: 18/07/2023 undefined petitioner preferred LPA No.1075 of 2012 challenging the order passed by the learned Single Judge, however, even the said LPA was also not pressed by the petitioner and said appeal was disposed of as not pressed, by the Division Bench of this Court vide order dated 30/8/2012. Thus, the order of termination has been confirmed by the Division Bench of this Court and the same has attained finality.
5.3. It is pertinent to note that once again by way of third round of litigation, the petitioner challenged the termination order dated 23/2/2011 by filing Special Civil Application No.2595 of 2013 along with the order dated 14/12/2012 by which the representation of the petitioner was rejected and again the co-ordinate bench of this Court not interfere with the termination order but directed the respondent authority to reconsider the representation made by the petitioner and accordingly disposed of the said petition vide order dated 26/12/2013.
5.4. It is relevant to note that again by way of fourth round of litigation, the petitioner preferred SCA No.9435 of 2014 challenging the termination order and decision of the respondent authority dated 29/4/2014 by which on reconsideration, the respondent authority confirmed the earlier decision and again the said petition was not entertained by this Court on merits and the same was withdrawn by the petitioner on the ground of availing Page 16 of 20 Downloaded on : Sat Sep 16 21:57:20 IST 2023 NEUTRAL CITATION C/SCA/22549/2017 JUDGMENT DATED: 18/07/2023 undefined alternative remedy.
5.5. This petition is fifth round of litigation at the instance of the petitioner challenging the termination order. As noted hereinabove, SCA No.4851 of 2011 challenging termination order of 23/2/2011 was dismissed by co-ordinate bench of this Court vide order dated 10/11/2011. It is worthwhile to note that the co-ordinate Bench while dismissing the said petition, has observed and held as under :-
"6. In the above context if the case of the petitioner, an ad hoc lecturer is examined, initially appointment on 24.9.2008 was only for a period of 11 months and it was purely temporary creating no vested legal right in favour of the petitioner and the service conditions clearly mandate the authority to take appropriate action in case the service of the appointee is found not to be continued in the public interest or in administrative exigency.
If performance of the candidate is
found unsatisfactory it would be put to
an end without assigning any reasons
and in view of the above, as held by the
Apex Court and the decision of this
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NEUTRAL CITATION
C/SCA/22549/2017 JUDGMENT DATED: 18/07/2023
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Court in K.D. Vohra (supra) no vested
right accrues to the appointee on the
basis of ad hoc or temporary
appointment and further
satisfaction about performance of
an employee with regard to
discharge of duties is exclusively in
domain of administrative authority and such satisfaction do not require any interference by substituting it with any opinion by the Court exercising extraordinary power under Article 226 of the Constitution of India and the petition being devoid of merit deserves to be rejected."
5.6. Even LPA No.1075 of 2012, preferred against the said order in second round of litigation, was also not pressed by the petitioner and said appeal was disposed of as not pressed, by the Division Bench of this Court vide order dated 30/8/2012. Thus, it is clear that the order of termination has been confirmed by the Division Bench of this Court way back on 30/8/2012 and the said order was not further challenged before the Hon'ble Apex Court and the order of the Division Bench has become final and conclusive and the same has attained finality. Yet in third round, the petitioner preferred SCA No.2595 of 2013 Page 18 of 20 Downloaded on : Sat Sep 16 21:57:20 IST 2023 NEUTRAL CITATION C/SCA/22549/2017 JUDGMENT DATED: 18/07/2023 undefined challenging termination order dated 23/2/2011 and the co-
ordinate bench of this Court, did not interfere with the termination order. Thereafter also in fourth round the petitioner challenged termination order by way of preferring SCA No.9435 of 2014 and in the said petition also, the co- ordinate bench of this Court did not interfere in the impugned order and even did not enter into the merits of the matter and the said petition was also withdrawn.
5.7. From the aforesaid facts, it is clear that the termination order has become final and conclusive and has attained finality in view of the decision of the Division Bench of this Court LPA No.1075 of 2012 way back on 30/8/2012. Even after confirmation of the termination by the Division Bench, in SCA No.2595 of 2013 the co-ordinate bench has not interfere with the termination order and even in SCA No.9435 of 2014 also this Court has not interfere with the termination order. Under the circumstances and in view of confirmation of the order of termination by the Division Bench of this Court in LPA No.1075 of 2012 way back on 30/8/2012 and even thereafter in view of orders passed in SCA Nos.2595/2013 and 9435/2014, when this Court has not interfere with the impugned order of termination, in 5th found of litigation, no interference is called for in view of confirmation of the termination order by the Division Bench of this Court way back on 30/8/2012.
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6. In view of the above, present petition is dismissed. Rule is discharged. No costs.
Sd/-
(RAJENDRA M. SAREEN,J) R.H. PARMAR Page 20 of 20 Downloaded on : Sat Sep 16 21:57:20 IST 2023