Gujarat High Court
Bahadursinh Ramsinh Sindha vs Gujarat State Electricity Corporation ... on 8 March, 2022
Author: R.M.Chhaya
Bench: R.M.Chhaya
C/LPA/302/2022 ORDER DATED: 08/03/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 302 of 2022
In R/SPECIAL CIVIL APPLICATION NO. 9021 of 2021
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2022
In R/LETTERS PATENT APPEAL NO. 302 of 2022
With
R/LETTERS PATENT APPEAL NO. 303 of 2022
In SPECIAL CIVIL APPLICATION NO. 6574 of 2021
With
CIVIL APPLICATION (FOR INTERIM RELIEF) NO. 1 of 2022
In R/LETTERS PATENT APPEAL NO. 303 of 2022
In SPECIAL CIVIL APPLICATION NO. 6574 of 2021
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BAHADURSINH RAMSINH SINDHA
Versus
GUJARAT STATE ELECTRICITY CORPORATION LTD. THROUGH CHIEF
ENGINEER
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Appearance:
MR TR MISHRA(483) for the Appellant(s) No. 1
MS LILU K BHAYA(1705) for the Respondent(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
and
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
Date : 08/03/2022
COMMON ORAL ORDER
(PER : HONOURABLE MR. JUSTICE R.M.CHHAYA)
1. Heard Mr. T.R. Mishra, learned advocate for the appellants and Ms. Lilu K. Bhaya, learned advocate for the respondents on caveat.
2. By way of this intra-Court appeals under Clause 15 of the Letters Patent, the appellants-original petitioners have challenged the judgment and order dated 22.2.2022 passed by the learned Single Judge Page 1 of 9 Downloaded on : Wed Mar 09 21:44:39 IST 2022 C/LPA/302/2022 ORDER DATED: 08/03/2022 in Special Civil Applications no. 6574/21 and 9021/21.
3. The appellants-original petitioners have approached this Court by petitions under Article 226 of the Constitution of India challenging the show cause notices dated 10.3.2021 and 31.3.2021. Suffice it to note that the issue relating to the appellants has been subject matter of Letters Patent Appeals no.656/13 to 668/13, which came to be dismissed by a Coordinate Bench vide judgment and order dated 24.10.2015. As can be seen from the bare reading of the impugned notices that even the Special Leave Petition filed by the appellants came to be rejected by the Hon'ble Apex Court vide order dated 26.4.2019. Thus, the main plank of the contention that the show cause notices are without jurisdiction, is without any basis. We find that the learned Single Judge has succinctly considered all the aspects and the contentions raised by Mr. Mishra, learned advocate for the appellants - original petitioners which are reiterated before us and has observed thus:-
"6 Having considered the submissions made by the learned advocates for the respective parties, the Court cannot lose sight of the fact that what is under challenge is a show cause Page 2 of 9 Downloaded on : Wed Mar 09 21:44:39 IST 2022 C/LPA/302/2022 ORDER DATED: 08/03/2022 notice dated 10.03.2021. The notice is issued on the basis of the following preceeding factual scenario:
6.1 The petitioner was engaged as an Apprentice (Machinist) from 26.09.1995 to 25.09.1996. That engagement was only under the provisions of the Apprenticeship Act and not an employment with the respondent-Electricity Corporation.
6.2 On 08.10.2007, based on his SEBC Certificate, the petitioner secured a fixed term engagement / appointment as a Vidhyut Sahayak (Helper).
6.3 Consequential regularisation of his service on the regular establishment of the Corporation as Helper on 18.11.2010 was on this basis of his appointment to the post on a seat reserved for SEBC.
6.4 The Scrutiny Committee found that the caste certificate obtained in the year 2007 as "Hindu-Baraiya" was misconceived and the Certificate was found to be ab initio bad.
6.5 On a challenge to the order before this Court, by a judgement dated 03.04.2013, this Court confirmed the findings of the Scrutiny Committee.
6.6 On a challenge to the judgement of the learned single Judge in appeal, the Division Bench in its judgement of 24.02.2015 in Letters Patent Appeal No. 656 of 2013 held as under:Page 3 of 9 Downloaded on : Wed Mar 09 21:44:39 IST 2022
C/LPA/302/2022 ORDER DATED: 08/03/2022 "13 The appellants are appointed on the post of Vidyut Sahayaks as a reserved category candidates belonging to the SEBC category and the basis for the same is the certificate which is declared to be bad ab initio by the Committee. In that view of the matter, when the certificate is declared to be void ab initio subsequently, the conclusion that can be reached is that the appointment of the petitioners cannot be said to be valid in the eye of law because, their appointment is based on the Certificate holding the appellants to be belonging to SEBC category.
In that view of the matter, the basic foundation of the appointment of the appellants has gone and therefore they cannot be allowed to continue on the post which are meant for the candidates belonging to SEBC category. The posts which are meant for reserved category must go to the reserved category. In that view of the matter, we are of the opinion that the learned Single Judge has not committed any error in rejecting the writ petitions. We are in complete agreement with the view taken by the learned Single Judge.
The appeals are liable to be
dismissed and the same are
accordingly dismissed. Consequently, Civil Applications filed in the appeals do not survive and the same stand disposed of accordingly. Interim relief, if any, stands vacated.
14 However, while dismissing these Page 4 of 9 Downloaded on : Wed Mar 09 21:44:39 IST 2022 C/LPA/302/2022 ORDER DATED: 08/03/2022 appeals, the appellants have put in a long period of service of around 10 years. Therefore, if the posts of Vidhyut Sahayaks are available in general category and these appellants can be accommodated, the respondents can accommodate them on the posts meant for general category. However, it is clarified that we are not dismissing the appeals on the ground that the appellants have resorted to fraud, but on basic principles of the Constitution that the rights of reserved category candidates cannot be taken away by the people belonging to general category. At this stage, Mr T.R. Mishra, learned advocate for the appellants has requested this Court to stay the operation of this order for a period of ten weeks. The request is accepted. The service conditions of the petitioners will not change till 1st April 2015."
6.7 The submission of Mr.Mishra, learned counsel, that the impugned show cause notice proceeds on an assumption that the appointment was obtained by fraud is misconceived and contrary to the observations of the Division Bench now need to be examined.
6.8 Reading the observations of the Division Bench while dismissing the Appeal what the Bench observed was that if posts of Vidhyut Sahayaks are available in general category, then the appellants can be accomodated meant for general category.
6.9 Reading the show cause notice would indicate that as contended by Shri Mishra, learned counsel, its not Page 5 of 9 Downloaded on : Wed Mar 09 21:44:39 IST 2022 C/LPA/302/2022 ORDER DATED: 08/03/2022 a hyper technical view which is being taken. The petitioners appointment even agreeing with Mr.Mishra's submission, if taken as on 08.10.2007, was on the basis that he belonged to the SEBC category. Once the support of the Certificate goes, the basis of his appointment even in the year 2007 on a preference as a reserved category candidates gets obliterated. As per the directions of the Division Bench therefore the Corporation was bound to consider as if the petitioner was a general category candidate. His claim as a general category candidate as reflected in the show cause notice would indicate that his claim as a general category could not be over ridden by considering the seniority of other general category candidates above the petitioner who were still to be appointed. That fact of the contents of the show cause notice even gets support from the statement annexed by the Corporation in its reply. In other words, what the show cause notice emphasizes is that the appointment of the petitioner in the year 2007 had to be considered on he being a general category candidate and not on the basis of he belonging to SEBC category and claiming appointment over riding seniority of candidates belonging to the general category who could not get appointment till the year 2009 when the petitioner would attain the age of 35 years. Persons senior to him in general category were not given appointment.
7 The reliance therefore placed by learned counsel for the petitioner on Page 6 of 9 Downloaded on : Wed Mar 09 21:44:39 IST 2022 C/LPA/302/2022 ORDER DATED: 08/03/2022 the decisions is of no help.
Admittedly, the petitioner is not being persecuted of having obtained appointment on the basis of a fraudulent caste certificate. That issue is a closed chapter once the observations of the Division Bench in para 14 are read.
8 The show cause notice is therefore in compliance of the directions of the Division Bench opining that even if the petitioners were to be considered on their claim as general category, persons senior to them were awaiting appointment.
9 The issue is at the show cause notice stage and therefore based on the observations hereinabove, a decision is yet awaited which will surely be taken in accordance with law based on the submissions made by the petitioners in response thereto.
10 Accordingly, the petitions are dismissed. Interim relief stands vacated.
FURTHER ORDER After the pronouncement of judgement, Mr.Mishra, learned Counsel for the petitioners, seeks stay of the judgement to which Ms.Lilu Bhaya, learned counsel for the respondent objects.
However, request for stay is acceded. Stay granted earlier shall continue up to 08.03.2022."
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4. We are in total agreement with the observations made by the learned Single Judge. The respondent authorities have already given show cause notices and it goes without saying that the appellants will have an opportunity to represent their case before the respondent authorities and therefore, even the basic requirement of the principles of natural justice can be culled out by bare reading of the impugned notices. The learned Single Judge has correctly come to the conclusion that as the contentions raised are at the show cause notice stage and the decision is yet awaited, no interference is called for.
5. Resultantly, the appeals fail and are hereby dismissed. However, considering the peculiar facts and circumstances of the case, more particularly, the fact that even in the judgment and order passed in Letters Patent Appeals no.656/13 to 668/13 by the Coordinate Bench in 2015, the appellants had put in more than 10 years of service. All that can be provided by way of equitable relief is that in case if any decision is taken adverse to the appellants, the same may not be implemented for a period of one week from the date of communication to enable the petitioners to take appropriate recourse.
Page 8 of 9 Downloaded on : Wed Mar 09 21:44:39 IST 2022C/LPA/302/2022 ORDER DATED: 08/03/2022
6. The appeals are otherwise not entertained on merits and are hereby dismissed. As the appeals are dismissed, connected Civil Applications also stand dismissed. However, there shall be no order as to costs.
(R.M.CHHAYA,J) (HEMANT M. PRACHCHHAK,J) Maulik Page 9 of 9 Downloaded on : Wed Mar 09 21:44:39 IST 2022