Gujarat High Court
Raval Kanaiyalal Fulshankar vs State Of Gujarat on 3 May, 2018
Author: P.P.Bhatt
Bench: P.P.Bhatt
C/SCA/5624/2017 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 5624 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE P.P.BHATT
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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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RAVAL KANAIYALAL FULSHANKAR
Versus
STATE OF GUJARAT
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Appearance:
DECEASED LITIGANT(100) for the PETITIONER(s) No. 1
MR MURALIN DEVNANI(1863) for the PETITIONER(s) No. 1.1,1.2,1.3
MR V R JANI, AGP for the RESPONDENT(s) No. 1,2,3,4
RULE SERVED BY DS(65) for the RESPONDENT(s) No. 1,2,3,4
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CORAM: HONOURABLE MR.JUSTICE P.P.BHATT
Date : 03/05/2018
ORAL JUDGMENT
1. The petitioners, by way of present petition under Article 226 of the Constitution of India, have prayed for issuance of appropriate writ/order for quashing and setting aside the impugned order dated Page 1 of 9 C/SCA/5624/2017 JUDGMENT 09.03.2017 passed by the respondent, whereby the petitioner was reverted to the post of Peon, without any prior intimation or show cause notice.
2. During the pendency of the present petition, original petitioner died and thereafter, legal heirs of the petitioner are brought on record.
3. Brief facts of the case are as under :
3.1 By order dated 24.10.1985, the deceased petitioner was recruited as Peon in the office of the District Inspector Land Records, Mehsana. 3.2 Thereafter, vide order dated 03.04.1992 issued by the Superintendent, Land Records-cum-Consolidation Officer, Ahmedabad, the deceased employee was promoted to the post of Junior Clerk against the vacant post in the office of the District Inspector Land Records, Mahesna.
3.3 Thereafter, in the year 2005, process of promotion to the post of Maintenance Surveyor was conducted, but case of the deceased employee was not considered by the Departmental Promotion Committee and Juniors to the deceased employee were promoted to Page 2 of 9 C/SCA/5624/2017 JUDGMENT the post of Maintenance Surveyor vide order dated 15.06.2005. Therefore, the deceased employee has made representation dated 22.06.2006. In response thereto, the Deputy Director, Land Records, Ahmedabad, vide communication dated 06.11.2006 had informed the deceased employee that due to adverse remarks in the Confidential Reports, his case was not considered.
Appeal preferred by the deceased employee against adverse remarks in question was allowed by the Settlement Commissioner and Director, Land Records, Government of Gujarat, Gandhinagar, vide order dated 20.06.2005 and adverse remarks have been cancelled accordingly.
3.4 Against the decision of the Departmental Promotion Committee, the deceased employee has made representation dated 12.11.2009 to the Settlement Commissioner and Director, Land Records, Government of Gujarat, Gandhinagar, which was forwarded to the Joint Secretary, Revenue Department, Government of Gujarat, Gandhinagar by the Settlement Commissioner and Director, Land Records, Government of Gujarat, Gandhinagar with his recommendations.
3.5 Without issuance of any prior notice or show
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C/SCA/5624/2017 JUDGMENT
cause notice or affording any opportunity of personal hearing, vide impugned order dated 09.03.2017 issued by the Deputy Director, Land Records, Ahmedabad, deceased employee was reverted to the post of Peon and relieved him from the post of Junior Clerk with immediate effect, on the ground that the deceased employee did not clear departmental examination prior to his promotion. Hence, the present petition is filed.
4. The learned advocate for the petitioner has submitted that the deceased employee was promoted to the post of Junior Clerk vide order dated 03.04.1992. The said order did not contain any such condition of passing of departmental examination. Moreover, Government Resolution dated 13.02.1991 read with Government Resolution dated 16.08.1990 came to implemented by the office of the Land Records in the year 1993-94 i.e. after issuance of the promotion order dated 03.04.1992. On the contrary in the year 2005 though the deceased employee was possessing requisite experience for promotion to the post of Maintenance Surveyor, his case was not considered on the ground of adverse remarks in confidential Page 4 of 9 C/SCA/5624/2017 JUDGMENT reports, which were already cancelled prior to the meeting of the Departmental Promotion Committee. As a result, juniors to the deceased employee were promoted to the post of Maintenance Surveyor. Against which, the deceased employee had made representation dated 12.11.2009 to the Settlement Commissioner and Director, Land Records, Government of Gujarat, Gandhinagar, which was forwarded by the said authority to Joint Secretary, Revenue Department, Government of Gujarat, Gandhinagar with favourable recommendations. The learned advocate for the petitioner has further submitted that respondent authorities have issued the impugned order after a span of 17 years that too without any prior intimation and/or show cause notice or without affording any opportunity of personal hearing. The learned advocate for the petitioner has further submitted that the action of the respondent authorities is illegal, unconstitutional and contrary to the principle of natural justice and against settled proposition of law, therefore, the impugned order dated 09.03.2017 deserves to be quashed and set aside.
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C/SCA/5624/2017 JUDGMENT 5. In support of his submissions, the learned
advocate for the petitioner relied on the following case laws:
1) M.A.Hameed Vs. State of Andhra Pradesh reported in 2001 (9) SCC page 261, wherein the Hon'ble Apex Court has held that reversion should be carried out within reasonable time.
2) Dayalji Dhanjibhai Kanjariya Vs. Gujarat Ayurved University (Special Civil Application No. 4836 of 2003) reported in 2016 JX(Guj) 911, wherein this Court has quashed and set aside the order of reversion of the petitioner therein on the ground of non-giving of an opportunity of hearing to the petitioner.
3) State of Gujarat Vs. C.G.Raiyani, (Second Appeal No. 81 of 1986) reported in 1994 (2) GCD 661, wherein it is held that no status of person can be adversely affected without giving him opportunity of hearing.
6. The learned AGP appearing for the respondent- State relying on the affidavit-in-reply filed by the respondent No. 3 tried to justify the action of the Page 6 of 9 C/SCA/5624/2017 JUDGMENT respondents. According to learned AGP, the deceased petitioner was not eligible and entitled for getting departmental promotion which was granted to him in the year 1992.
7. Regard being had to the above submission and looking to the facts and circumstances of the case, this Court finds substance in the submissions made by the learned advocate for the petitioner. The promotion order dated 03.04.1992 does not contain any condition or stipulation of passing of departmental examination. Moreover, in the impugned order dated 09.03.2017, it is clearly mentioned vide Government Resolution dated 13.02.1991 provisions of pre- services departmental examination has been applicable to the office of the Land Records. Prior to it, there were no such provisions. The office the Land Records has been informed about the the said provisions in the year 1993-1994. Therefore, from the first paragraph of the impugned order dated 09.03.2017, itself clarifies that the promotion order dated 03.04.1992 issued in favour of the deceased employee was prior to the information of the provisions of the pre-services departmental examination and such Page 7 of 9 C/SCA/5624/2017 JUDGMENT provisions cannot be made applicable with retrospective effect. As per the principle of natural justice, the respondent authorities are duty bound to give intimation or issue show cause notice to the deceased employee and to give reasonable opportunity of personal hearing prior to issuance of impugned order. In the present case, the respondent authorities failed to do so. Therefore, the present petition deserves to be allowed and impugned order dated 09.03.2017 is required to be quashed and set aside on the ground of non-observance of principle of natural justice and also on the ground of unreasonable delay in passing the order of reversion by giving retrospective effect of the Government Resolution dated 13.02.1991 read with Government Resolution dated 16.08.1990, though the provisions of the said Government Resolution were not in existence in the said department at the time of appointment/promotion of the deceased employee. The issue involved in the present petition is also covered by the decision of the Hon'ble Apex Court in the case of M.A.Hameed Vs. State of Andhra Pradesh reported in 2001(9) SCC Page 261. However, ignoring above referred settled legal proposition the Page 8 of 9 C/SCA/5624/2017 JUDGMENT respondent authorities have passed the impugned order which deserves to be quashed and set aside.
8. Accordingly, the present petition is allowed and the impugned order dated 09.03.2017 is hereby quashed and set aside. Since the original petitioner - employee has died during the pendency of the present petition, the respondent authorities are directed to pay the family pension and all other pensionary benefits to the present petitioner - widow of the deceased employee, calculating the same as per the last pay drawn by the deceased employee on the Junior Clerk (Class-III) post within a period of four weeks from the date of receipt of this order.
9. Rule is made absolute accordingly. Direct Service is Permitted.
(P.P.BHATT, J) BDSONGARA Page 9 of 9