Gujarat High Court
Dashrathbhai B. Jadav & vs Petlad Nagar Palika & 2 on 6 September, 2017
Author: A. S. Supehia
Bench: A.S. Supehia
C/SCA/5541/2006 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 5541 of 2006
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE A.S. SUPEHIA
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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DASHRATHBHAI B. JADAV & 1....petitioners(s)
Versus
PETLAD NAGAR PALIKA & 2....Respondent(s)
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Appearance:
MR RD RAVAL, ADVOCATE for the petitioners(s) No. 1 - 2
MR YV SHAH, ADVOCATE for the Respondent(s) No. 1 - 2
RULE SERVED for the Respondent(s) No. 3
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CORAM: HONOURABLE MR.JUSTICE A.S. SUPEHIA
Date : 06/09/2017
ORAL JUDGMENT
1.The present petition is directed against the order dated 05.04.2005 passed by the Page 1 of 6 HC-NIC Page 1 of 6 Created On Sun Oct 01 15:57:01 IST 2017 C/SCA/5541/2006 JUDGMENT respondent - Nagar Palika reverting the petitioners from the post of driver to Safai Kamdars.
2.Learned advocate Mr.Raval appearing on behalf of the petitioners has stated that the impugned orders deserve to be quashed and set aside, as the same is passed without giving any opportunity of hearing to the petitioners. He has further stated that because of the said reversion, pay scale of the petitioners is also reduced. He has stated that the petitioners were appointed as drivers in the payscale of Rs.30504590, whereas by the impugned order, they are reverted in the post of Safai Kamdars carrying the payscale of Rs.25503200. He has submitted that because of such reversion the petitioners are facing economic hardship and before passing such orders the respondent authority ought to have offered them opportunity of hearing.
3. Per contra, learned advocate Mr.Shah has Page 2 of 6 HC-NIC Page 2 of 6 Created On Sun Oct 01 15:57:01 IST 2017 C/SCA/5541/2006 JUDGMENT submitted that the orders appointing the petitioners as drivers are without any authority of law since the same are passed by the President of Petlad Nagar Palika whereas the orders of reverting and appointing the petitioners on the post of Safai Kamdars are passed by the Chief Officer of the respondent Nagar Palika. Reliance is placed on the judgment of the Division Bench of this court rendered in the case of Manoj Nagardas Panchhiwala v. State of Gujarat and Ors., 2006 (1) GLR 846, for the proposition of law that if the person concerned who had no authority or power make the appointment, then nobody can claim right to be continued in service. In that view of the matter, the learned advocate for the respondent has stated that the impugned order does not require any interference by this court.
4.Heard learned advocates appearing for the respective parties at length.
5. It is an undisputed fact that before passing Page 3 of 6 HC-NIC Page 3 of 6 Created On Sun Oct 01 15:57:01 IST 2017 C/SCA/5541/2006 JUDGMENT the impugned order no opportunity of hearing was granted to the petitioners. The orders appointing the petitioners as drivers will suggest that the said orders were communicated to the Chief Officer, Petlad Nagar Palika. The petitioners were placed in regular payscale of Rs.30504590, looking to their qualifications, whereas they are reverted and placed in the reduced pay scale of Rs.25503200 by the orders dated 05.04.2005 passed by the Petlad Nagar Palika. The impunged orders do not suggest that earlier order dated 29.11.2004 appointing the petitioners as drivers was without any authority of law. The orders dated 29.11.2004 were communicated to the Chief Officer, Petlad Nagarpalika. No objection was raised that the orders passed are without authority of law or the same are passed de hors the provision of the Recruitment Rules. In such a fact situation, no order which is detrimental Page 4 of 6 HC-NIC Page 4 of 6 Created On Sun Oct 01 15:57:01 IST 2017 C/SCA/5541/2006 JUDGMENT to the interest of the petitioners affecting their service conditions could not have been passed without affording any opportunity of hearing. The impugned orders being in violation of the principles of natural justice are hereby quashed and set aside. The contention of the learned advocate Mr. Shah that the petitioners have got an alternate remedy of filing an appeal, cannot be entertained at this stage after passage of 11 years.
6.Even otherwise when the orders are passed in blatant violation of principles of natural justice, it is not proper to relegate the petitioner for availing alternate remedy. In that view of the matter, the present petition is allowed. Impugned order dated 05.04.2005 is hereby quashed and set aside. It will be open for the respondent authorities to give an opportunity of hearing to the petitioners and pass appropriate orders. Petition is allowed accordingly. Rule is made absolute.
Page 5 of 6 HC-NIC Page 5 of 6 Created On Sun Oct 01 15:57:01 IST 2017 C/SCA/5541/2006 JUDGMENT (A. S. SUPEHIA, J.) Nabila Page 6 of 6 HC-NIC Page 6 of 6 Created On Sun Oct 01 15:57:01 IST 2017