Gujarat High Court
Ishwarbhai vs The on 21 December, 2010
Author: Abhilasha Kumari
Bench: Abhilasha Kumari
Gujarat High Court Case Information System
Print
SCA/26732/2007 29/ 29 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 26732 of 2007
With
CIVIL
APPLICATION No. 371 of 2008
In
SPECIAL CIVIL APPLICATION No. 26732 of 2007
With
CIVIL
APPLICATION No. 372 of 2008
In
SPECIAL CIVIL APPLICATION No. 26732 of 2007
With
CIVIL
APPLICATION No. 373 of 2008
In
SPECIAL CIVIL APPLICATION No. 26732 of 2007
With
CIVIL
APPLICATION No. 374 of 2008
In
SPECIAL CIVIL APPLICATION No. 26732 of 2007
With
CIVIL
APPLICATION No. 375 of 2008
In
SPECIAL CIVIL APPLICATION No. 26732 of 2007
With
CIVIL
APPLICATION No. 376 of 2008
In
SPECIAL CIVIL APPLICATION No. 26732 of 2007
With
CIVIL
APPLICATION No. 377 of 2008
In
SPECIAL CIVIL APPLICATION No. 26732 of 2007
For
Approval and Signature:
HON'BLE
SMT.JUSTICE ABHILASHA KUMARI
=====================================================
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, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
===============================================================
ISHWARBHAI
JEVTABHAI TURK - THE DIRECTOR - Petitioner
Versus
THE
STATE OF GUJARAT & OTHERS - Respondents
=====================================================
Appearance :
(In
SCA)
MR ASHISH H SHAH FOR MR
HARIN P RAVAL for petitioner
MS MINI M NAIR, learned Assistant
Government Pleader for respondents Nos. 1 to 4
MR TUSHAR MEHTA for
respondents Nos. 5 & 6
MR PARESH UPADHYAY for respondents Nos.
: 7, 9 to 14
MR VAIBHAV A VYAS for respondent No. : 8
(In
CA No.371/08)
MR VAIBHAV A VYAS for the applicant
MR ASHISH H SHAH FOR MR HARIN P RAVAL for respondent No.1
MS
MINI M NAIR, learned Assistant Government Pleader for respondents
Nos. 2 to 5
(In
CA No.372/08)
MR PARESH UPADHYAY for the applicant
MR
ASHISH H SHAH FOR MR HARIN P RAVAL for respondent No.1
MS
MINI M NAIR, learned Assistant Government Pleader for respondents
Nos. 2 to 5
MR
VAIBHAV A VYAS for respondent No. 8
(In
CA No.373/08)
MR PARESH UPADHYAY for the applicant
MR
ASHISH H SHAH FOR MR HARIN P RAVAL for respondent No.1
MS
JASWANT K SHAH, learned Assistant Government Pleader for respondents
Nos. 2 to 5
MR
VAIBHAV A VYAS for respondent No. 8
(In
CA No.374/08)
MR PARESH UPADHYAY for the applicant
MR
ASHISH H SHAH FOR MR HARIN P RAVAL for respondent No.1
MS
JASWANT K SHAH, learned Assistant Government Pleader for respondents
Nos. 2 to 5
MR
VAIBHAV A VYAS for respondent No. 8
(In
CA No.375/08)
MR PARESH UPADHYAY for the applicant
MR
ASHISH H SHAH FOR MR HARIN P RAVAL for respondent No.1
MS
JASWANT K SHAH, learned Assistant Government Pleader for respondents
Nos. 2 to 5
MR
VAIBHAV A VYAS for respondent No. 8
(In
CA No.376/08)
MR PARESH UPADHYAY for the applicant
MR
ASHISH H SHAH FOR MR HARIN P RAVAL for respondent No.1
MS
PATHIK ACHARYA, learned Assistant Government Pleader for respondents
Nos. 2 to 5
MR
VAIBHAV A VYAS for respondent No. 8
(In
CA No.377/08)
MR PARESH UPADHYAY for the applicant
MR
ASHISH H SHAH FOR MR HARIN P RAVAL for respondent No.1
MS
PATHIK ACHARYA, learned Assistant Government Pleader for respondents
Nos. 2 to 5
MR
VAIBHAV A VYAS for respondent No. 8
=====================================================
CORAM
:
HON'BLE
SMT. JUSTICE ABHILASHA KUMARI
Date
:27/03/2008
31/03/2008
COMMON
ORAL JUDGMENT
1. This petition under Article 226 of the Constitution of India has been filed with a prayer to issue a writ of certiorari or any other appropriate writ, order or direction to quash and set aside the judgment and order dated 30-7-2007 rendered by the State Government (respondent No.2) in Revision Application No.227 of 2006 whereby the matter regarding the legality of the appointments of the respondents Nos.7 to 14 in respondent No.5-Agricultural Produce Market Committee has been remanded. On the facts and in the circumstances of the case and with the consent of the learned counsel for the respective parties, the petition is being finally heard and decided, today.
2. In order to appreciate the issue in question, it would be relevant to notice the factual background in the context of which the present petition has been filed. The brief facts, as culled out from a perusal of the averments made in the petition as well as the documents annexed thereto are, that the petitioner is an elected member of the Deodar Agricultural Produce Market Committee (?SMarket Committee?? for short), having been elected from the Agricultural Constituency of the Market Committee. The respondent No.5 is the Deodar Agricultural Produce Market Committee, constituted under the provisions of the Gujarat Agricultural Produce Markets Act,1963 (?SThe Act?? for short). Prior to the Constitution of the respondent No.5-Market Committee, there was a joint Market Committee for the areas of Deodar Taluka, known as Deodar-Bhabhar Agricultural Produce Market Committee. On account of the bifurcation of Deodar and Bhabhar, two distinct and separate Market Committees for Deodar and Bhabhar came into existence by virtue of exercise of powers by the State Government, under the Act. On the coming into existence of the respondent No.5-Market Committee, the appointments of the staff of the said Market Committee were to be made as per the Staff Schedule sanctioned by the respondent No.3 i.e. Director of Agriculture Marketing and Rural Finance (?Sthe Director?? for short). Although, it is the case of the petitioner that no Staff Committee of the respondent No.5-Market Committee has been formed, however, it is averred in the petition that the Staff Committee of the respondent No.5 held a meeting on 24-10-2006 and passed Resolution No.2, inter alia, resolving to make appointments to the posts of Secretary (1 post), Assistant Secretary (1 post), Inspectors (2 posts),Clerks (2 posts), Driver-cum-Peon (1 post) and Peon (1 post) after inviting applications by issuing advertisements in daily newspapers, as well as after calling for names of eligible candidates from the Employment Exchange. A copy of the Resolution No.2 dated 24-10-2006 is annexed as Annexure ?SB?? to the petition. According to the averments made in the petition, on 26-10-2006 an advertisement was published in the daily newspaper known as ?SPalanpur Samachar?? and on 27-10-2006, another advertisement was published in the weekly magazine known as ?SVichardhara??, inviting applications for the posts mentioned above, to be filled up in the respondent No.5 ? Market Committee. In response to these advertisements, the respondents Nos.7 to 14 applied for the different posts that were advertised. The Staff Committee of the respondent No.5-Market Committee held a meeting on 16-11-2006 and, vide Resolution No.2, resolved to appoint the respondents Nos.7 to 14 on different posts. A copy of the Minutes of the meeting of the Staff Committee is annexed as Annexure ?SC?? to the petition. The said appointments were approved by the respondent No.3 i.e. the Director, and the respondents Nos.7 to 14 came to be appointed against different posts, in the respondent No.5-Market Committee.
2.1 It is the case of the petitioner that the respondents Nos.7 to 14 are related to the office bearers of the respondent No.5-Market Committee; inasmuch as the respondent No.7, who has been appointed as Secretary, is related to a member of the Market Committee, respondent No.8, who has been appointed as Assistant Secretary, is the son of the Chairman of the Market Committee, respondent No.9, who has been appointed as Inspector, is a relative of the Chairman of the Market Committee, respondent No.10, who has been appointed as a Clerk, is the nephew of one of the members of the Market Committee, respondent No.11, who has also been appointed as a clerk, is also a nephew of another member of the Market Committee, respondent No.12, who has been appointed as Clerk, is the son-in-law of the Vice Chairman of the Market Committee, respondent No.13,who has been appointed as Peon is the brother of a member and respondent No.14, who has been appointed as Peon-cum-Driver, is the relative of the Chairman of the said Market Committee. According to the petitioner, the respondents Nos.7 to 14 have been appointed due to their relationship with the members and office bearers of the Market Committee, although they are not eligible for appointment. It is stated in the petition that the said appointments are a result of favouritism and smack of nepotism,as well. It is averred in the petition that respondent No.9 is 45 years of age and his appointment is in violation of the provisions of the recruitment rules, and that out of 15 members of the respondent No.5-Market Committee, 8 members have filed affidavits objecting to the appointments of the respondents Nos.7 to
14. The case of the petitioner is that the advertisements calling for applications for the posts to be filled up in the respondent No.5-Market Committee were not published in daily newspapers having a wide circulation and, therefore, for the total 8 posts that were advertised, not more than 15 persons have applied and this, in itself, shows that the entire procedure for making the appointments is illegal and arbitrary and has been followed only to appoint the near relatives of the members of the Market Committee. It is averred that no names were called from the concerned Employment Exchange and, therefore, the appointments of the respondents Nos.7 to 14 are illegal and suffer from the vice of nepotism and favouritism.
2.2 Against the said appointments, the petitioner invoked the revisional powers of the State Government under the provisions of Section 48 of the Act, which confers power upon the State Government to call for and examine the proceedings of the Market Committee and pass orders thereupon. The proceedings initiated on the application of the petitioner were registered as Revision Application No.227 of 2006. The respondent No.2 i.e. Additional Secretary (Appeals) was of the opinion that there is insufficient material on record to determine whether the names of eligible candidates were called for from the concerned Employment Exchange, and whether the respondents Nos.7 to 14 were related to the members of the respondent No.5-Market Committee. In order to decide these issues, the matter was remanded to the respondent No.3 for the purpose of conducting a fact finding inquiry, vide order dated 30-7-2007.
3. Being aggrieved and dissatisfied by the above mentioned order of remand, the petitioner has preferred the present petition.
4. This Court, by order dated 16-10-2007(Coram: Ravi R.Tripathi,J) issued rule in the petition. By way of ad-interim relief, it was directed to discontinue the services of the persons appointed, with immediate effect till further orders. The respondent No.5 ? Market Committee and some of the private respondents, filed Letters Patent Appeals Nos.1990 to 1992 of 2007. The Division Bench of this Court (Coram:
Y.R.Meena, C.J and Smt.Abhilasha Kumari,J) vide order dated 23-10-2007 directed as under:
?SThese Appeals are filed against the exparte interim order dated 16th October, 2007, passed by the learned Single Judge in Special Civil Application No.26732 of 2007.
Though the appellants have raised several contentions challenging the impugned order, when there is remedy available under Article 226(3) of the Constitution of India for vacation of the stay, the appellants should first avail that remedy. If the appellants do not get relief under that remedy, it will be open for them to press these Appeals before us. Therefore, for the time being, these Appeals are kept pending with liberty to the counsels for the appellants to mention these matters for hearing after the decision is taken by the learned Single Judge in the applications which may be moved by the appellants under Article 226(3) of the Constitution.??
5. In pursuance of the direction of the Division Bench, the private respondents filed different Civil Applications for vacation of the ex parte interim order dated 16-10-2007. Vide order dated 1-11-2007, passed in Civil Application No.14166 of 2007 and allied matters, this Court (Coram: Ravi R.Tripathi,J) modified the order dated 16-10-2007 to the extent that the interim relief granted in terms of para 40(g) was recalled and it was directed that respondent No.7, who was appointed as Secretary, is allowed to continue subject to further orders, which may be passed after further hearing of the matter. However,liberty was reserved to the other private respondents to move the Court, for modification of the order.
6. At the very outset, before embarking upon the hearing of this petition, it was pointed out to the learned counsel for the respective parties that I was one of the members of the Division Bench which passed order dated 23-10-2007 and whether the parties have any objection, if the petition, which has been placed before me as per the prevailing roster, is heard and decided by me. Mr.Ashish H.Shah for Mr.Harin P.Raval, learned counsel for the petitioner, Mr.Tushar Mehta, learned counsel for the respondents Nos.5 and 6, Mr.Paresh Upadhyay, learned counsel for the respondents Nos.7,9 to 14 and Mr.Vaibhav A.Vyas, learned counsel for the respondent No.8 have stated at the Bar that they have no objection if the matter is heard by this court. Therefore, the petition has been finally heard by me.
7. Mr.Ashish H.Shah for Mr.Harin P.Raval, learned counsel for the petitioner has submitted a copy of the affidavit-in-rejoinder, in response to the reply filed by the respondents Nos.7,9,11 and 13. This document is taken on the record of the case.
8. Mr.Ashish H.Shah for Mr.Harin P.Raval, learned counsel for the petitioner has submitted as under:-
That the order dated 30-7-2007 passed by the respondent No.2 is a non-speaking order, which contains absolutely no reasons for arriving at any of the findings upon the points indicated therein. It is emphasised by the learned counsel for the petitioner, that by the impugned order the matter has been remanded but, the order does not indicate to which authority the matter has been remitted and this, in itself, indicates non-application of mind. Therefore, the impugned order dated 30-7-2007 deserves to be quashed and set aside.
(ii) That the respondent No.5-Market Committee has made the appointments of the respondents Nos.7 to 14 without calling for names of eligible persons from the concerned Employment Exchange, which is contrary to the Circular dated 21-12-2002 issued by the respondent No.3 that has been issued pursuant to the judgment of this Court in Special Civil Application No. 10808 of 1993, dated 3-7-2002. It is emphasised by the learned counsel for the petitioner that although the respondent No.5 ? Market Committee has stated in the reply filed in the revision proceedings that the names of eligible candidates were called from the concerned Employment Exchange by letter dated 25-10-2006, but the said letter has not been produced on record and, moreover, the Palanpur Employment Exchange, by letter dated 23-1-2007 has communicated that no names were called for by the respondent No.5 ? Market Committee and in view of th above, the appointments of the respondents Nos.7 to 14 deserve to be quashed and set aside.
(iii) The service rules of the respondent-Market Committee provide for a period of probation for one year but the respondent No.5-Market Committee has directly appointed the respondents Nos.7 to 14 without any probationary period which is in violation of the service rules.
(iv) That the respondents Nos.7 to 14 are relatives of the office bearers of the respondent No.5- Market Committee and in case of three persons, this fact has not been denied by the Market Committee as well. One of the private respondents is over-age, being 45 years of age, when the service rules provide that no person beyond the age of 27 years will be given appointment. It is pointed out that even though there is power for relaxation in certain cases, the respondent No.5 has not exercised this power and has straightaway appointed the concerned respondent, in violation of the age-limit prescribed by the recruitment rules.
(v) That the Circular dated 21-12-2002 prescribes that advertisements in respect of appointments to posts in a Market Committee be published in two daily newspapers having wide circulation but, in the present case, one advertisement dated 26-10-2006 was published in a daily newspaper known as ?SPalanpur Samachar?? which is published only in Palanpur and has no circulation in Deodar Taluka, and the other advertisement was published on 27-10-2006 in a weekly magazine known as ?SVichardhara?? which is not a daily newspaper and does not have wide circulation. According to Mr.Ashish H.Shah these advertisements were intentionally published in a newspaper and magazine which do not have wide circulation in the local area, so that there is no effective advertisement and the applications of respondents Nos.7 to 14 could be favourably processed, in order to secure appointments for them in the Market Committee. It is contended by the learned counsel for the petitioner that for 8 posts that have been advertised only 15 applications in all were received, out of which the respondents Nos.7 to 14 have been appointed on different posts and this, is a clear indication that the said respondents have been favoured and given appointments illegally, and therefore, this Court should quash and set aside the appointments of the respondents Nos.7 to 14.
(vi) That there is no provision for the appointment of a Staff Committee and the Staff Committee which made the appointments had no power for making appointments. The appointments have to be made by the elected members of the respondent No.5 -Market Committee and, on this ground also the appointments of the respondents Nos.7 to 14 are not in accordance with law and deserve to be quashed and set aside.
On the above premises, Mr.Ashish H.Shah, learned counsel for the petitioner, has prayed that the petition be allowed.
9. Per contra, Mr.Tushar Mehta, learned counsel for the respondents Nos.5 and 6 has submitted as under:
(i)That the impugned order dated 30-7-2007 is a reasoned one which shows proper application of mind and the respondent No.2 has clearly indicated the reasons for arriving at the findings contained in the order as to why it is necessary to remand the matter.
It is submitted by the learned counsel for the respondents Nos.5 and 6 that even though the respondent No.2 has, inadvertently, not mentioned the name/designation of the authority to which the matter has been remanded, but it is clearly indicated from the endorsement made on the order to the Director, Agriculture Marketing and Rural Finance (respondent No.3), that the matter has been remitted to him. The Director is appointed under the provisions of Section 4 of the Act and is empowered to exercise such powers and perform such functions and duties under the provisions of the Act as the State Government may, by general or special order, direct. Mr.Tushar Mehta has submitted that since the respondent No.3 has sanctioned the set-up of the staff and approved the recruitment of the respondents Nos.7 to 14, the matter has been remanded to him by the respondent No.2 and, therefore, it cannot be said that the order dated 30-7-2007 is vitiated for the reason that the name of the respondent No.3 has not been specifically mentioned therein.
(iii) So far as the aspect of calling for the names of the eligible candidates from the concerned Employment Exchange is concerned, Mr. Turshar Mehta has submitted that the respondent No.5-Market Committee has sent a communication dated 25-10-2006 to the concerned Employment Exchange, calling for the names of the eligible candidates and since this letter is not on record, the matter has been remanded, in order to enquire into this factual aspect, on the basis of the record as the factual finding on this aspect will be vital to the decision of the case, and, therefore, the order of remand passed by the respondent No.2 is just and proper.
(iv) Drawing the attention of the Court to the provisions of Section 25 of the Act, Mr.Tushar Mehta has submitted that this section provides for the appointment of sub-committees and delegation of powers. He has submitted that under the provisions of Section 25 of the Act, the Market Committee is empowered to appoint one or more sub-committees, consisting of such number of its members as it may determine, for carrying out any work or to report to it on any matter. The Staff Committee, which has resolved to appoint respondents Nos.7 to 14, has been constituted under the provisions of this Section and, therefore, it cannot be said that the respondent No.5- Market Committee has appointed the Staff Committee dehors the provisions of the Act.
(v) It is contended by the learned counsel for the respondents Nos.5 and 6 that the prescribed procedure for making the appointments to the posts in question has been properly and meticulously followed. Firstly, the set up of the Staff Committee was duly sanctioned by the Director (respondent No.3) on 14-9-2006, and thereafter advertisements were published in widely circulated newspapers locally, names of eligible candidates were called for from the concerned Employment Exchange, the names of the candidates selected by the Staff Committee were approved by the Director (respondent No.3) on 7-3-2007 and only thereafter, the appointments of the concerned respondents were made.
(vi) It has been pointed out by Mr.Tushar Mehta that the respondent No.5 ? Market Committee is situated in a remote area of a backward District and the advertisements for the posts concerned have been published in ?SPalanpur Samachar?? and ?SVichardhara?? which are Government approved newspapers for issuing advertisements and which have wide circulation in the area. It is submitted that it may be possible that due to the remoteness and backwardness of the area, a large number of applications were not received but, it cannot be said that this is due to the advertisements not being published in newspapers having a wide circulation. The daily newspaper ?SPalanpur Samachar?? and weekly magazine ?SVichardhara?? are widely circulated in the area and since these newspapers are recognized by the Government, which has also fixed the rates for advertisements, the respondent No.5 has published the advertisements in these newspapers, which cannot be said to be contrary to the provisions of Circular dated 21-12-2002.
(vii) It is further submitted by Mr.Tushar Mehta that there is no irregularity or illegality in the appointments to the various posts, made by the Market Committee. Although it is a fact that respondent No.8, respondent No.10 and respondent No.12 are related to some of the members of the Market Committee, however their selection had been carried out by a duly constituted Staff Committee, in which none of their relatives participated. The appointments were made by the Staff Committee which had interviewed the applicants and selected them on the basis of their respective merit. It is emphasised by the learned counsel that the selection of the respondents Nos.7 to 14 is strictly based upon merit and the relatives of the said respondents have neither participated in the selection proceedings nor were members of the selection committee. The respondent No.6 i.e. Chairman of the Market Committee, who was also a member of the selection committee did not participate in the proceedings of the selection committee at the time of selection and interview of his son i.e. respondent No.8. However, it is emphatically denied that any of the other private respondents are related to any other members of the respondent No.5-Market Committee. The learned counsel for the respondents Nos.5 and 6 has urged that the respondents Nos.7 to 14 have been appointed on merit and not on the basis of favouritism,as alleged.
(viii) It is contended by Mr.Tushar Mehta that the petitioner has suppressed material facts, inasmuch as he has not stated that the respondent No.7 had been working in Deodar-Bhabhar Agricultural Produce Market Committee for the past 17 years and his services were allocated to the newly-formed Deodar Agricultural Produce Market Committee, where he also submitted his application for the post of Secretary, pursuant to the advertisement by the respondent No.5-Market Committee. It is submitted by the learned counsel that the deliberate suppression of this material fact goes to the roots of the matter, and this fact has been suppressed in order to give a wrong impression that the respondent No.7 is a fresh appointee.
(ix) Mr.Tushar Mehta has drawn the attention of this Court to the document annexed as Annexure III to the reply filed by the respondent No.5-Market Committee and has submitted that on page 146 thereof, 8 members of the Market Committee are purported to have filed objections against the appointments of the concerned respondents, whereas it is clear from a reading of the letter annexed at page 147 thereof, that in fact, only 7 members have appended their signatures to the objections and the 8th signature on page 146 of Annexure III has been forged, and for this act a notice of disqualification has been issued to the petitioner by the Market Committee on 30-12-2006, and the respondent No.3(Director) has also been moved for the purpose of taking necessary action in the matter.
(x) Lastly, it is submitted by Mr.Tushar Mehta that the respondent No.2 has remitted the matter to the Director (respondent No.3) to enquire into certain factual aspects which are essential for coming to a proper decision and, therefore, since the findings of fact on the points whether names of eligible candidates have been called for from the Employment Exchange or not and whether the respondents Nos.7 to 14 are related to the members of the Market Committee, are not on the record, the order dated 30-7-2007 remanding the matter is just and proper and this Court, in proceedings under Article 226 of the Constitution of India, may not interfere and go into the above factual aspects on which the matter has been remanded.
On the basis of the above submissions, Mr.Tushar Mehta has prayed that the petition be dismissed.
10. Mr.Paresh Upadhyay, learned counsel for the respondents Nos.7,9 to 14 and Mr.Vaibhav A.Vyas, learned counsel for the respondent No.8 have, in effect, supported and reiterated the arguments put forth by Mr.Tushar Mehta. In addition, it is submitted on behalf of the respondents Nos.7 to 14 that they were appointed after following the proper procedure and had been working for a period of about one year, when their services came to be discontinued, as a result of the order of this Court. It is prayed by Mr.Paresh Upadhyay and Mr.Vaibhav A.Vyas that since the matter has been remitted in order to arrive at a finding of fact, this Court may not interfere with the order dated 30-7-2007, and the petition may be dismissed.
11. Ms.Mini M.Nair, learned Assistant Government Pleader for the respondents Nos.1 to 4 has also supported the order dated 30-7-2007 on the ground that since there are no proper findings of fact on vital issues, the order remanding the matter to the respondent No.3 for a fact finding enquiry is just and proper, and does not deserve to be interfered with by this Court and, therefore, the petition may be dismissed.
12. After having heard the learned counsel for the respective parties and perusing the averments made in the petition as well as the documents on record, I am of the considered view that there is no justifiable reason to interfere with the order dated 30-7-2007. It is evident from a perusal of the order under challenge that the grounds on which the matter has been remitted to the respondent No.3 are (i) whether the names of eligible candidates have been called for from the concerned Employment Exchange and, if not, what would be the effect upon the recruitments/appointments in question, (ii) whether all the persons, who have been appointed i.e. respondents Nos.7 to 14 are related to the members of the Market Committee and if so, whether they are eligible or not.
13. Since the issue in question is regarding the legality, or otherwise, of the appointments of the respondents Nos.7 to 14, in my view, no conclusive decision or finding can be arrived at, without proper findings of facts on the points indicated in the impugned order and,therefore, the order of the respondent No.2, remitting the matter to the respondent No.3, in order to enquire into the aspects mentioned therein, is just and proper.
14. Although it has not been specifically stated in the order dated 30-7-2007 that the matter is being remitted to the respondent No.3 (Director, Agriculture Marketing and Rural Finance), however, there is a clear endorsement on the order to the respondent No.3. Moreover, in view of the provisions of Section 4 of the Act, the respondent No.3 has been empowered to exercise such powers and perform such duties and functions as are conferred or imposed upon him by the Act, under the general or special orders of the State Government. The remand of the matter can legally or logically, be to no other authority, except to the Director, looking to the Scheme of the Act. A mere omission to mention the designation/office of the authority, to whom the matter has been remitted, will not vitiate the order. At best, it is a mere irregularity, and not an illegality.
15. A conspicuous aspect of the matter, which cannot but be noticed, is that the petitioner has filed a Revision Application under the provisions of Section 48 of the Act, before the State Government, challenging the legality and validity of the appointments of respondents Nos.7 to 14, without impleading these respondents as parties to the Revision Application. The respondents Nos.7 to 14 were most likely to be affected by the outcome of the revision proceedings, and it would have been just and proper had they been impleaded at the first instance. No doubt, the respondents Nos.7 to 14 have been impleaded as parties to the present petition but the fact remains that the proceedings before the State Government have remained inconclusive, inasmuch as the relevant factual material upon which a proper decision could have been arrived at, were not available and, therefore, the matter had to be remanded to inquire into the relevant facts.
16. It is now a settled principle of law that where a decision is likely to involve civil consequences, a pre-decisional hearing should be given to the party likely to be adversely affected by it. In Shekhar Ghosh v. Union of India and another, reported in (2007)1 SCC 331, the Supreme Court has held that:
?SA post-decisional hearing was not called for as the disciplinary authority had already made up its mind before giving an opportunity of hearing. Such a post-decisional hearing in a case of this nature is not contemplated in law. The result of such hearing was a foregone conclusion. (Para 14)??
17. In A.K. Kraipak and others v. Union of India and others, reported in AIR 1970 SC 150, the importance and relevance of the principles of natural justice have been clearly enunciated by a Constitution Bench of the Supreme Court in para 20 thereof, which reads as under:-
?SThe aim of the rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. These rules can operate only in areas not covered by any law validly made. In other words they do not supplant the law of the land but supplement it. The concept of natural justice has undergone a great deal of change in recent years.(Para 20) In the past only two rules were recognised but in course of time many more subsidiary rules came to be added to these rules. Till very recently it was the opinion of the Courts that unless the authority concerned was required by the law under which it functioned to act judicially there was no room for the application of the rules of natural justice. The validity of that limitation is now questioned. If the purpose of the rules of natural justice is to prevent miscarriage of justice there is no reason why those rules should be made inapplicable to administrative enquiries. Often times it is not easy to draw the line that demarcates administrative enquiries from quasi-judicial enquiries. Enquiries which were considered administrative at one time are now being considered as quasi-judicial in character. Arriving at a just decision is the aim of both quasi-judicial enquiries as well as administrative enquiries. An unjust decision in an administrative enquiry may have more far reaching effect than a decision in a quasi-judicial enquiry. (Para
20)??
18. In Rajesh Kumar and others v. Dy.CIT and others, reported in (2007)2 SCC 181, the Supreme Court has held as under:
?SWhen by reason of an action on the part of a statutory authority, civil or evil consequences ensue, principles of natural justice are required to be followed. In such an event, although no express provision is laid down in that behalf, compliance with principles of natural justice would be implicit. Exceptions, therefore, are required to be provided for either expressly or by necessary implication. (Paras 26 and 33).??
19. The rule of Audi Alteram Partem necessarily embodies the principle that no man should be condemned unheard and both sides must be heard in order to ensure fairness on the part of the deciding authority or body before passing any order,especially when it entails civil or evil consequences. Admittedly, the respondents Nos.7 to 14 have not been heard before passing order dated 30-7-2007. Since the respondent No.2 has only remitted the matter for arriving at a finding of fact, there is no need to set aside this order. However, since the respondents Nos.7 to 14 were not impleaded as parties to the Revision Application filed by the petitioner, and keeping in mind the principles of law enunciated in the judgments of the Supreme Court mentioned herein-above, it will be just and proper if the respondent No.3, to whom the matter has been remanded, is directed to give them an opportunity of hearing, before arriving at any findings.
20. The learned counsel for the respective parties have made various submissions on the merits of the matter. However, since, in my considered opinion, there is no legal infirmity in the order dated 30-7-2007, remanding the matter to respondent No.3, and since the parties are required to be given an opportunity of hearing, I am not inclined to go into the merits of the matter and, therefore, those submissions of the learned counsel for the respective parties are not being dealt with.
21. In the ultimate analysis, and for the afore-stated reasons, the petition fails. It is directed that the respondent No.3 i.e. the Director, Agriculture Marketing and Rural Finance will give an opportunity of hearing to the respective parties and shall proceed to decide the matter, in accordance with law.
22. The petition is dismissed. Rule is discharged. The interim orders shall stand vacated. There shall be no orders as to costs.
23. In view of the dismissal of the writ petition, Civil Applications Nos.371 to 377 of 2008 do not survive and are disposed of, accordingly.
(Smt.Abhilasha Kumari,J) arg Top