Gujarat High Court
Rahul Sharma vs State Of Gujarat & 2....Opponent(S) on 29 March, 2017
Bench: R.Subhash Reddy, Vipul M. Pancholi
C/WPPIL/219/2016 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
WRIT PETITION (PIL) NO. 219 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH REDDY
and
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
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1 Whether Reporters of Local Papers may be allowed to see Yes
the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law as No
to the interpretation of the Constitution of India or any
order made thereunder ?
=============================================
RAHUL SHARMA, I.P.S. (RETD.)....Applicant(s)
Versus
STATE OF GUJARAT & 2....Opponent(s)
=============================================
Appearance:
MR IH SYED, ADVOCATE WITH MR.CHIRAG B UPADHYAY, ADVOCATE for the
Applicant(s) No. 1
MR TUSHAR MEHTA, ADDL. SOLICITOR GENERAL WITH MR.P.K.JANI, ADDL.
AG WITH MS. MANISHA SHAH, GP for the Opponent(s) No. 1
=============================================
CORAM: HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH REDDY
and
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
Date : 29/03/2017
CAV JUDGMENT
(PER : HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH REDDY) Page 1 of 22 HC-NIC Page 1 of 22 Created On Thu Mar 30 00:11:31 IST 2017 C/WPPIL/219/2016 CAV JUDGMENT [1] This writ petition is filed by way of Public Interest Litigation with prayers, which read as under : "A. This Hon'ble Court may be pleased to allow this petition; B. This Hon'ble Court may be pleased to issue the writ of mandamus or any other appropriate writ, order or direction, to quash and set aside the impugned Order dated 31.08.2016 reappointing Respondent No.2 and posting him as the Superintendent of Police, Mahisagar District;
C. This Hon'ble Court may be pleased to issue the writ of mandamus or any other appropriate writ, order or direction, to quash and set aside the impugned Order dated 13.10.2016 reappointing Respondent No.3 and posting him as the Deputy Superintendent of Police, Headquarters, Western Railways, Vadodara; D. By way of interim relief, this Hon'ble Court may be pleased to issue the writ of quo warranto or any other appropriate writ, order or direction, to restrain Respondent No.2 from discharging his duties as the Superintendent of Police, Mahisagar District, as well as restrain Respondent No.3 from discharging his duties as the Deputy Superintendent of Police, Headquarters, Western Railways, Vadodara, with immediate effect;
E. Pass any such other orders as may be deemed fit, proper and just in the interest of justice pending admission, hearing and final disposal of the present petition."
[2] As averred in the petition, the petitioner who was member of 1992 batch of direct recruit to the Indian Police Service, was allotted to Gujarat Cadre. It is stated in the petition that during communal riots of 2002 in the State of Gujarat, he was posted as Superintendent of Police, Bhavnagar District. He has rendered distinguished service and Page 2 of 22 HC-NIC Page 2 of 22 Created On Thu Mar 30 00:11:31 IST 2017 C/WPPIL/219/2016 CAV JUDGMENT was instrumental in tracing out the accused persons during riots. It is also stated that the petitioner is recipient of award conferred by Indian Institute of Technology, Kanpur as distinguished alumnus of the institute.
[2.1] In the petition, which is filed by way of PIL, the petitioner has challenged contractual appointment, after retirement, made by the 1st respondent in favour of 2nd and 3rd respondent. It is alleged that in view of the criminal antecedents, their appointments to the senior position after retirement is not conducive to general public interest. The petitioner has placed on record copy of the impugned Notification No.IPS/102016/454292/B dated 31.08.2016. By the aforesaid proceedings, 1st respondent has appointed 2nd respondent on contractual basis and posted him as Superintendent of Police, Mahisagar District.
Further, copy of impugned Notification bearing No.DySP/102016/1120/B dated 13.10.2016 is also placed on record. By virtue of aforesaid notification, 1st respondent has appointed 3rd respondent after retirement on contractual basis and posted him as Deputy Superintendent of Police, Headquarters, Western Railways, Vadodara.
[2.2.] It is the case of the petitioner that 2nd respondent was directly recruited as Deputy Superintendent of Police in 1996 and is Page 3 of 22 HC-NIC Page 3 of 22 Created On Thu Mar 30 00:11:31 IST 2017 C/WPPIL/219/2016 CAV JUDGMENT Medical Doctor by profession. During his service, he was allegedly involved in fake encounter in two criminal cases i.e. Sohrabuddin Kauserbi and Tulsiram Prajapati. After investigation, he was arrested and charge sheeted by CBI and the case is pending. It is pleaded that despite pendency of charge against him, after his release on bail, he was promoted to the rank of Superintendent of Police and was posted as Superintendent of Police, Mahisagar District by 1st respondent. It is also pleaded that he is also chargesheeted in Ishrat Jahan fake encounter case and it is also pending trial.
[2.3] It is further stated that 2nd respondent retired from service on attaining the age of superannuation on 31.08.2016. Thereafter, immediately, vide impugned notification, he was appointed on contractual basis and posted as Superintendent of Police, Mahisagar District with effect from 01.09.2016 to 31.08.2017. A reference is made to case registered against 2nd respondent vide Umargaon Police Station C.R.No.I102 of 2000 under section 302 of the Indian Penal Code. It is stated that the petitioner was Investigating Officer of the said offence. Summary was prepared and filed in the Court, which came to be rejected and inquiry under section 202 of the Cr.P.C. was ordered and the same is pending.
[2.4] In the petition, reference is made to the Original Application Page 4 of 22 HC-NIC Page 4 of 22 Created On Thu Mar 30 00:11:31 IST 2017 C/WPPIL/219/2016 CAV JUDGMENT (OA) being O.A.No.2282 filed by the petitioner before the Central Administrative Tribunal, Principal Bench, New Delhi for various reliefs. He has also sought interim relief to continue his services till final decision of the Original Application and the same is pending. [3] With reference to background of 3rd respondent, it is pleaded by the petitioner that he was working as Assistant Commissioner of Police in Ahmedabad City, during which posting, he was found to have been allegedly involved in two cases of fake encounter. He was arrested in the fake encounter case of Sadiq Jamal in September 2012 and was in jail for some time before he was granted bail. It is alleged that he has also been arrested in Ishrat Jahan case and thereafter he was released on bail. It is further pleaded that on attaining the age of superannuation, 3rd respondent retired from service in the year 2014 and thereafter, vide notification dated 13.10.2016, 3rd respondent was reappointed on contractual basis and posted as Deputy Superintendent of Police, Headquarters, Western Railways, Vadodara. [4] In the petition, while referring to various Circulars issued by the Government, it is alleged that all these Circulars / Government Resolutions are not issued under the provisions of Bombay Police Act, 2007. It is further pleaded that appointments under the said Act are Page 5 of 22 HC-NIC Page 5 of 22 Created On Thu Mar 30 00:11:31 IST 2017 C/WPPIL/219/2016 CAV JUDGMENT illegal and are contrary to public interest in view of criminal antecedents of 2nd and 3rd respondents. It is the case of the petitioner that by virtue of such appointments, public interest is suffered and also run contrary to the doctrine of public trust.
[5] The petition was listed for admission on 19.10.2016 and as the petition was served on the Government Pleader, the matter was adjourned to obtain instructions by the Government Pleader on the allegations made in the petition.
[6] In view of order passed by this Court, reply affidavit was filed at the stage of admission on behalf of 1st respondent State. In the reply affidavit, while denying various allegations made by the petitioner, a preliminary objection is taken with regard to maintainability of the petition as PIL, wherein challenge is to the order of contractual appointment of 2nd and 3rd respondents and their posting as Superintendent of Police, Mahisagar District and Deputy Superintendent of Police, Headquarters, Western Railway, Vadodara respectively. It is pleaded that in view of judgments of Hon'ble Supreme Court, PIL in service matter is not maintainable. It is pleaded that as held by Hon'ble Supreme Court, in absence of violation of any statutory rules, writ of Mandamus as sought by the petitioner is not maintainable. Referring to Page 6 of 22 HC-NIC Page 6 of 22 Created On Thu Mar 30 00:11:31 IST 2017 C/WPPIL/219/2016 CAV JUDGMENT contractual appointment, it is stated that the State has power to make such appointments depending upon exigences of situation. Disputing locus standi of the petitioner to file this petition, it is stated that the petitioner has not disclosed complete information which are required to be given for filing the petition by way of PIL. It is pleaded that the petitioner himself, an IPS Officer of 1992 batch, has enumerated his accomplishments selectively without informing this Court that he has been chargesheeted in two departmental enquires by the State Government, out of which one is pending adjudication before this Court. In view of the same, it is pleaded that the petitioner is not entitled to invoke equitable jurisdiction of this Court under the garb of Public Interest Litigation. It is also stated that it was incumbent upon the petitioner to state that he had sought voluntary retirement and upon State Government's acceptance, he was permitted to voluntarily retire on 28.02.2015. It is stated that at the time of voluntary retirement, 34 preliminary enquiries were closed by the State Government and further 2nd and 3rd respondents were colleagues working in the same police department. It is pleaded that this petition is filed with personal bias against two officers who were working with him. In the reply affidavit, it is stated that following proceedings are pending against the petitioner : "i) SCA No.13084 / 2016 is pending at Hon'ble Gujarat High Court arising out of chargesheet dated 12.8.2011 for Page 7 of 22 HC-NIC Page 7 of 22 Created On Thu Mar 30 00:11:31 IST 2017 C/WPPIL/219/2016 CAV JUDGMENT neither handing over compact discs containing call details, which he has obtained from two mobile provider companies, to investigating officer of Naroda Police Station C.R.No.I 193/2002 nor got it entered into the Register of case property nor informed competent court about the seizure of above said case property and retained the same with him and at the time of relinquishing charge as Dy. Commissioner of Police (Control Room) Ahmedabad City he did not hand over the same to his successor or investigating officer of the Naroda Police Station C.R.No.I193 of 2002.
ii) Another charge sheet dated 6.10.2016 for non submission of travelling allowance and dearness allowance bills as per Rule 120 and 122 of Gujarat Civil Services (Travelling Allowance) Rules, 2002. Therefore, office of the Director General and Inspector General of Police wrote letters dated 9.10.2012 and 13.8.2013 seeking clarification for the irregularity and illegality prima facie found to have been committed in respect of travels made by him. The applicant never paid heed to the same which amounted to insubordination."
[6.1] In view of above such proceedings pending and having regard to petitioner's career in police department and retirement on voluntary basis in the year 2015, it is pleaded that this Court may not entertain the petition at the behest of the petitioner.
[6.2] With reference to allegations made against 2nd and 3rd respondent, Page 8 of 22 HC-NIC Page 8 of 22 Created On Thu Mar 30 00:11:31 IST 2017 C/WPPIL/219/2016 CAV JUDGMENT it is pleaded that 2nd respondent was serving as Deputy Superintendent of Police, State Crime Record Bureau (SCRB) from 5.6.2015 to 24.8.2015, as Superintendent of Police, State Crime Record Bureau (SCRB) from 24.08.2015 to 16.1.2016, as Superintendent of Police, Mahisagar District from 16.01.2016 and he has been given further appointment on the same post for a period of one year i.e. till 31.08.2017 as per the terms and conditions contained in the notification. With regard to appointment of 3rd respondent, it is pleaded that he was appointed on contractual basis to the vacant post of Deputy Superintendent of Police, Headquarters, Western Railways, Vadodara on the terms and conditions stated in the appointment notification. [6.3] With reference to charges pleaded against 2nd and 3rd respondents, it is stated that so far as 2nd respondent is concerned, he was arrested in ATS Criminal Case No.5 of 2005 on 18.06.2007, but he was discharged by CBI Court on 18.08.2016. It is pleaded that in view of discharge of 2nd respondent from the aforesaid charges and when order of discharge has become final, it is not open for the petitioner to act beyond such order and plead allegations against 2nd respondent. With reference to other charges in C.R.No.BS1/S/2011/0005, it is pleaded that 2nd respondent was released on bail subject to certain terms and conditions and there are no allegations of violation of such conditions. Even with Page 9 of 22 HC-NIC Page 9 of 22 Created On Thu Mar 30 00:11:31 IST 2017 C/WPPIL/219/2016 CAV JUDGMENT regard to allegations made against 3rd respondent, it is pleaded that the petitioner has conveniently omitted to mention that he was enlarged on bail. With reference to Criminal Case No.RC(3)S/2011 dated 15.07.2011, it is pleaded that he was already released on bail subject to certain terms and conditions and there is no complaint of violation of any conditions. Further, it is pleaded that so far as 2nd and 3rd respondents are concerned, no charges are framed in any departmental proceedings and no sanction for prosecution has been granted by the competent authority. Further, while referring to provisions of Gujarat Police Manual, it is pleaded that the very foundation of the petitioner's arguments that all the appointments are made only under the Bombay Police Act is incorrect. It is categorically pleaded that appointments of 2nd and 3rd respondents are not under Bombay Police Act, but they were appointed in view of the Government Resolutions, which empowers the Government to make contractual appointment after retirement. [6.4] In the reply affidavit, with reference to Circulars referred by the petitioner in the petition, it is stated that said resolutions would not be applicable to the case of the present petitioner and further it is pleaded that vide resolution dated 21.12.1998 issued by the General Administration Department, it is resolved that the State Government is empowered to grant contractual appointments even to nontechnical Page 10 of 22 HC-NIC Page 10 of 22 Created On Thu Mar 30 00:11:31 IST 2017 C/WPPIL/219/2016 CAV JUDGMENT posts subject to conditions contained in the Resolution dated 23.12.1996. Further, a reference is made to Resolution dated 09.05.2002, in which procedure is prescribed for making such appointments. Referring to Government Resolution dated 07.07.2016, it is pleaded that by following procedure prescribed under the Government Resolution, State is empowered to make appointment on contractual basis and Government resolutions are issued appointing 2nd and 3rd respondents by stipulating that they are entitled for 60% of the salary. It is further pleaded that there are no departmental proceedings initiated against these two officers and the appointments were made after considering Confidential Reports of last 10 years. It is categorically pleaded that performance as recorded in the Confidential Report reveals "outstanding performance". Thus, in full compliance of the Government Resolutions and other administrative instructions, the appointments were made.
[7] In pursuance of the reply filed on behalf of 1st respondent, there is no rejoinder disputing allegations made by the 1st respondent. [8] Heard Shri I.H.Syed, learned counsel for the petitioner, Shri Tushar Mehta, learned Additional Solicitor General appearing for the 1st respondent.
Page 11 of 22 HC-NIC Page 11 of 22 Created On Thu Mar 30 00:11:31 IST 2017 C/WPPIL/219/2016 CAV JUDGMENT [9] The matter is at the stage of admission and as no notice was issued to 2nd and 3rd respondents, there was no occasion for them to appear before this Court.
[10] When the matter is called out for admission, Shri Tushar Mehta, learned Additional Solicitor General of India appearing for the 1st respondent - State has raised preliminary objection with regard to maintainability of the petition mainly on the ground that as the matter relates to service, no petition can be maintained by way of PIL. It is pleaded that with regard to service matter, in clear terms, the Hon'ble Supreme Court has held that no writ can be issued other than writ of quo warranto in a matter relating to service. It is further pleaded that this petition may not be entertained at the instance of the petitioner who has personal bias against 2nd and 3rd respondents and who is retired from the police department by way of voluntary retirement. [11] In view of above, request is made to Mr.I.H.Syed, learned counsel to confine his submissions to the maintainability of the petition only. Learned counsel Mr.Syed has advanced his arguments on the preliminary objection regarding maintainability of the petition. It is contended by Mr.Syed that the posts which are held by 2nd and 3rd Page 12 of 22 HC-NIC Page 12 of 22 Created On Thu Mar 30 00:11:31 IST 2017 C/WPPIL/219/2016 CAV JUDGMENT respondents after appointment on contractual basis are very important posts and the respondent State, in absence of any power conferred on it, issued impugned notifications appointing them on contractual basis. It is contended by Mr.Syed that in view of important position held by them, their continuity on contractual basis, run contrary to larger public interest and doctrine of public trust. It is contended by Mr.Syed that such appointments cannot be continued on contractual basis after attaining the age of superannuation. Learned counsel referred to charges against 2nd and 3rd respondents which are pending for trial. It is submitted that in view of serious charges and involvement in fake encounter cases, 1st respondent ought not have appointed 2nd and 3rd respondents and continued their service on contractual basis. It is submitted that as appointments were made without any authority of law and jurisdiction, the petition at the instance of the petitioner is maintainable to safeguard larger public interest. Learned counsel for the petitioner has placed reliance on the decisions in the case of Centre for Public Interest Litigation and another v/s. Union of India and Another reported in (2005) 8 SCC 202; Centre for PIL and Another v/s. Union of India and Another reported in (2011) 4 SCC 1 and Central Electricity Supply Utility of Odisha v/s. Dhobei Sahoo and Others reported in (2014) 1 SCC 161 in support of his arguments. [12] On the other hand, it is contended by Mr.Tushar Mehta, Page 13 of 22 HC-NIC Page 13 of 22 Created On Thu Mar 30 00:11:31 IST 2017 C/WPPIL/219/2016 CAV JUDGMENT learned Additional Solicitor General appearing for the respondent State that this petition may not be entertained at the instance of the petitioner, who has worked in the very same department and is having bias against his own colleagues. It is submitted that there are charges pending against the petitioner in the departmental proceedings and even at the time of retirement, several preliminary enquiries were closed, as mentioned in the reply affidavit. It is submitted that 1st respondent is having authority and jurisdiction to make appointment on contractual basis, wherever it is needed and such power cannot be disputed. It is pleaded that in view of executive power conferred on the State Government and having regard to Government Resolutions, which are referred in the petition, it cannot be said that there is no authority of law and jurisdiction to make contractual appointment for appointing officers who have retired on attaining the age of superannuation. It is contended that this petition filed by way of PIL is not maintainable having regard to the fact that it is service matter and in such matters only writ of quo warranto can be maintained by third person by way of PIL, for which appointment must be shown to be contrary to statutory provisions. It is specifically stated that except petition by way of writ of quo warranto, no petition can be maintained in view of eligibility of 2nd and 3rd respondents for appointment to said posts on contractual basis, and authority and power is conferred on the 1st respondent by way of Page 14 of 22 HC-NIC Page 14 of 22 Created On Thu Mar 30 00:11:31 IST 2017 C/WPPIL/219/2016 CAV JUDGMENT Government Resolution for making such appointments. Learned counsel has submitted that appointments were not made under the provisions of Gujarat Police Act, 1951 and the petitioner is under a misconception that the 2nd and 3rd respondents were appointed under the Gujarat Police Act. In support of his argument that by way of PIL no writ can be maintained in service matter, learned counsel has placed reliance on decisions in the case of Girjesh Shrivastava and others v/s. State of Madhya Pradesh and others reported in (2010) 10 SCC 707 and Hari Bansh Lal v/s. Sahodar Prasad Mahto and Others reported in (2010) 9 SCC 655. It is contended by learned counsel for the 1st respondent that this petition may not be entertained at the instance of the petitioner only due to personal animosity and bias against 2nd and 3rd respondents. [13] Having heard learned counsel for both the sides, we have perused impugned orders issued by 1st respondent and other materials placed on record. At the outset, it is to be noted that notifications were issued by 1st respondent in view of earlier resolutions passed, which empowers the Government to make appointment on contractual basis and such power can be termed as executive power of the State and the same cannot be disputed. Having regard to the resolutions which are referred in the reply affidavit, allegations of which are not controverted by way of rejoinder, it is clear from the record that such orders of Page 15 of 22 HC-NIC Page 15 of 22 Created On Thu Mar 30 00:11:31 IST 2017 C/WPPIL/219/2016 CAV JUDGMENT appointments were not made under the provisions of Gujarat Police Act, but were made in view of Government resolutions empowering the State Government to make appointments on contractual basis. It is true that earlier some resolutions were there as referred by the petitioner, which were confined to making appointment to technical posts, but subsequent resolutions as referred in the reply affidavit make it clear that Government has passed resolutions for making appointment on contractual basis for nontechnical posts also. In view of Government resolution and executive power conferred on the State, it cannot be said that 1st respondent is not having power to make appointment on contractual basis. Keeping in mind such power of the State Government to make appointment, we deal with the contention as advanced in this petition.
[14] In view of objection with regard to maintainability, learned counsel Mr.Syed submitted that as 1st respondent lacks power and jurisdiction to make appointment appointing persons with criminal antecedents on contractual basis, this petition can be maintained. Learned counsel Mr.Syed has relied on judgment in the case of Centre for Public Interest Litigation and Another v/s. Union of India and Another reported in (2005) 8 SCC 202. In the aforesaid judgment, challenge to the appointment of 3rd respondent as Chief Secretary of Page 16 of 22 HC-NIC Page 16 of 22 Created On Thu Mar 30 00:11:31 IST 2017 C/WPPIL/219/2016 CAV JUDGMENT State of Uttar Pradesh was made mainly on the ground that it runs contrary to the norms prescribed by the Government of India, Department of Personnel and Training, OM No.22011/4/91 dated 14.09.1992. In the said case, having regard to sensitiveness attached to the post of Chief Secretary, directions were issued to transfer 3rd respondent to some other post in the same cadre. Reliance is also placed by the learned counsel for the petitioner in the case of Centre for PIL and another v/s. Union of India and Another reported in (2011) 4 SCC 1. In the aforesaid judgment, Hon'ble Supreme Court has held that the procedure of quo warranto confers jurisdiction and authority on the judiciary to control executive action in the matter of making appointments to public offices against the relevant statutory provisions. However, in the very same judgment, it is clearly held that before a citizen can claim a writ of quo warranto he must satisfy the court inter alia that the office in question is a public office and it is held by a person without legal authority. It is also held that in such cases, writ of quo warranto is issued to prevent a continued exercise of unlawful authority. Reliance is also placed by the learned counsel for the petitioner on the judgment in the case of Central Electricity Supply Utility of Odisha v/s. Dhobei Sahoo and Others reported in (2014) 1 SCC 161. In the aforesaid judgment, the Hon'ble Supreme Court has held that jurisdiction of the High Court while issuing writ of quo warranto is Page 17 of 22 HC-NIC Page 17 of 22 Created On Thu Mar 30 00:11:31 IST 2017 C/WPPIL/219/2016 CAV JUDGMENT limited one and can only be issued when the person holding the public office lacks the eligibility criteria or when the appointment is contrary to the statutory rules. In the said judgment, it is categorically held by the Hon'ble Supreme Court that basic purpose of writ of quo warranto is to confer jurisdiction on the constitutional Courts to see that a public office is not held by a usurper without any legal authority. [15] Having perused aforesaid judgments and fact situation in which such judgments are rendered, we are of the view that aforesaid judgments relied on by the learned counsel for the petitioner would not render any assistance to the case of the petitioner. In the case of Centre for Public Interest Litigation and Another (supra), the matter was relating to appointment of Chief Secretary, the appointment of which is governed by the procedure prescribed by Government of India, Department of Personnel and Training, OM No.22011/4/91 dated 14.09.1992. In view of sensitiveness of the highest post of the State, the Hon'ble Supreme Court has ordered to transfer 3rd respondent to other post of same cadre. Learned counsel for the petitioner has also relied on the judgments in the case of Centre for PIL and Another v/s. Union of India and Anr. reported in (2011) 4 SCC 1 and Central Electricity Supply Utility of Odisha v/s. Dhobei Sahoo and Ors. Reported in (2014) 1 SCC 161. Both the judgments relate to issuance of writ of quo Page 18 of 22 HC-NIC Page 18 of 22 Created On Thu Mar 30 00:11:31 IST 2017 C/WPPIL/219/2016 CAV JUDGMENT warranto. As the petitioner is not seeking issuance of writ of quo warranto, we are of the view that such judgments would not render any assistance to the petitioner. Even in absence of specific prayer for issuance of writ of quo warranto, we do not find any ground which warrants interference by way of quo warranto in the present case by applying ratio of the aforesaid two judgments.
[16] In that view of the matter and further having regard to fact that we are convinced that power is conferred on the State to make appointments of 2nd and 3rd respondents on contractual basis, it cannot be said that such appointments are either without authority of law or contrary to any of the statutory provisions. In absence of the same, no ground exists to entertain this petition.
[17] Further, disputing maintainability of PIL in the service matter, Mr.Tushar Mehta, learned Additional Solicitor General of India has placed reliance on the judgment in the case of Girjesh Shrivastava and others v/s. State of Madhya Pradesh and others reported in (2010) 10 SCC 707. In the aforesaid judgment, the Hon'ble Supreme Court has held that public interest litigation cannot be maintained in the matter relating to service except in case for a writ of quo warranto. In the aforesaid judgment, reference is made to the judgment in the case of Page 19 of 22 HC-NIC Page 19 of 22 Created On Thu Mar 30 00:11:31 IST 2017 C/WPPIL/219/2016 CAV JUDGMENT Duryodhan Sahu (Dr.) v/s. Jitendra Kumar Mishra reported in (1998) 7 SCC 273, wherein, three Judges Bench of the Hon'ble Supreme Court has held that PIL is not maintainable in service matters. Further, in the case of Hari Bansh Lal v/s. Sahodar Prasad Mahto reported in (2010) 9 SCC 655, the Hon'ble Supreme Court has held that petition by way of PIL in service matter is not maintainable except for writ of quo warranto. In the said judgment, reference is made to the earlier judgment in the case of Ashok Kumar Pandey v/s. State of West Bengal reported in (2004) 3 SCC 349, wherein, the Hon'ble Supreme Court has observed that a time has come to weed out the petitions, which, though titled as public interest litigations, are in essence something else. It is further observed that though the parameters of public interest litigation have been indicated by the Hon'ble Supreme Court in large number of cases, yet unmindful of the real intentions and objectives, Courts are entertaining such petitions and wasting valuable judicial time which could be otherwise utilized for disposal of genuine cases. [18] In the case of Hari Bansh Lal v/s. Sahodar Prasad Mahto (supra), the Hon'ble Supreme Court observed that except for a writ of quo warranto, public interest litigation is not maintainable in service matters.
Page 20 of 22 HC-NIC Page 20 of 22 Created On Thu Mar 30 00:11:31 IST 2017 C/WPPIL/219/2016 CAV JUDGMENT [19] Both the judgments relied on by learned counsel for the 1st respondent would fully support his case in view of the objection that petition cannot be maintained at the instance of the petitioner by way of PIL. In view of the binding precedents of the Hon'ble Supreme Court, the petition which is not for writ of quo warranto cannot be entertained for grant of relief as sought for.
[20] A useful reference can also be made to the Rules framed by this Court titled "The High Court of Gujarat [Practice and Procedure for Public Interest Litigation] Rules, 2010", which are framed in exercise of powers conferred under Article 225 of the Constitution of India regulating practice and procedure for public interest litigation. As per Rule 6 of the said Rules, matters relating to service would not ordinarily be considered as matters of public interest. Applying judgments referred above by Mr.Tushar Mehta, learned counsel for the 1st respondent and further having regard to Rules framed by this Court, coupled with the averments made in the reply affidavit filed by the 1st respondent - State, we are of the considered view that this petition, which is filed by way of PIL, is not maintainable and deserves to be rejected in limine on the ground of maintainability.
[21] For the aforesaid reasons, we reject the petition on the ground of maintainability. Accordingly, the petition is dismissed. No Page 21 of 22 HC-NIC Page 21 of 22 Created On Thu Mar 30 00:11:31 IST 2017 C/WPPIL/219/2016 CAV JUDGMENT order as to costs.
(R. SUBHASH REDDY, CJ) (VIPUL M. PANCHOLI, J.) satish Page 22 of 22 HC-NIC Page 22 of 22 Created On Thu Mar 30 00:11:31 IST 2017