Gujarat High Court
Bhavsar Urmiben Kanaiyalal vs State Of Gujarat - Through Thedirector ... on 28 March, 2016
Author: Anant S. Dave
Bench: Anant S. Dave, R.P.Dholaria
C/LPA/70/2012 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS PATENT APPEAL NO. 70 of 2012
In SPECIAL CIVIL APPLICATION NO. 4146 of 2011
With
LETTERS PATENT APPEAL NO. 331 of 2013
In
SPECIAL CIVIL APPLICATION NO. 207 of 2011
TO
LETTERS PATENT APPEAL NO. 335 of 2013
In
SPECIAL CIVIL APPLICATION NO. 4151 of 2011
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BHAVSAR URMIBEN KANAIYALAL....Appellant(s)
Versus
STATE OF GUJARAT - THROUGH THEDIRECTOR SOCIAL SECURITY &
3....Respondent(s)
==========================================================
Appearance:
MR SUNIL K SHAH, ADVOCATE for the Appellant(s) No. 1
MS VACHA DESAI, AGP for the Respondent(s) No. 1 , 3 in LPA No.70/2012,
LPA Nos.334 and 335 of 2013.
MR BHARGAV PANDYA, AGP for Respondent No.1, 3 in LPA Nos.331 to 333
of 2013
MR MANOJ N POPAT, ADVOCATE for the Respondent(s) No. 2 , 4
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CORAM: HONOURABLE MR.JUSTICE ANANT S. DAVE
and
HONOURABLE MR.JUSTICE R.P.DHOLARIA
Date : 28/03/2016
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE ANANT S. DAVE)
1. Heard learned counsel for the parties.
Page 1 of 6HC-NIC Page 1 of 6 Created On Wed Mar 30 00:53:29 IST 2016 C/LPA/70/2012 ORDER 1.1 All these appeals under clause 15 of the Letters Patent arise out of the decision dated 19.7.2011 rendered in writ petitions filed by the petitioners / appellants herein. By the above decision dated 19.7.2011, the learned Single Judge had not entertained the writ petitions filed under Article 226 of the Constitution of India on the ground that Gujarat State Social Welfare Board - respondent No.2 therein was not covered by Article 12 of the Constitution of India. Being aggrieved and dissatisfied by the above, Letters Patent Appeals are filed by the petitioners in which on 18.7.2014, this Court passed the following order.
"1. We have heard Mrs. Sushma S. Shah, learned counsel for the appellant and Mr. Manoj N. Popat, learned counsel assistant by Mr.Digant Popat, learned counsel for the respondents.
2. In this Letters Patent Appeal, common judgment of learned Single Judge dated 19th July 2011 passed in Special Civil Application No.207 of 2011 and Special Civil Application No.4146 of 2011 to 4152 of 2011 has been challenged, wherein, the learned Single Judge has dismissed the writ petitions holding that the Gujarat State Social Welfare Board is not a State within the meaning of Article 12 of the Constitution of India and therefore the writ petitions are not maintainable.
3. The learned counsel for the appellant Page 2 of 6 HC-NIC Page 2 of 6 Created On Wed Mar 30 00:53:29 IST 2016 C/LPA/70/2012 ORDER has urged that the Gujarat State Social Welfare Board is a State within the meaning of Article 12 of the Constitution of India as the State Government has got deep pervasive control of the Board and therefore if any employee has any grievance, he may file a writ petition before this Court.
4. This argument is opposed by Mr. Digant Popat, who has placed reliance on the decision of learned Single Judge in P. K. Khalsa v. Gujarat State Social Welfare Advisory Board & Another, 1995(2) GLH 339. The said decision was challenged by way of a Letters Patent Appeal. The said appeal was disposed of on 20.11.1998 as not pressed as the retiral benefits were paid by the Board to the appellant.
5. In the said Letters Patent Appeal, the question whether the Gujarat State Social Welfare Advisory Board was a State within the meaning of Article 12 of the Constitution of India was not decided.
6. In the affidavit-in-reply filed in this appeal, respondent No.2 in para 3 has clearly stated that earlier the name was State Social Welfare Advisory Board which has been changed by the resolution dated 12.05.2004 and is now known as Gujarat State Social Welfare Board.
7. From the arguments raised before us by the learned counsel for the parties it is clear that at some stage the Central Government passed the orders and granted assistance and at some stages the Gujarat State Government passed the orders and granted assistance and as a matter of fact if we look into the Page 3 of 6 HC-NIC Page 3 of 6 Created On Wed Mar 30 00:53:29 IST 2016 C/LPA/70/2012 ORDER budgetary provisions as provided in Rules of the State Social Welfare Advisory Boards, which have been filed on page 77 of the paper-book, it is clear that the expenditure to be incurred on the establishment of the office of the State Board will be equally shared by the Central Board and the State Govt. concerned. From the Rules, it prima facie appears that the Board is controlled by the Central and State Government and the State is having deep and pervasive control over it. Funds are also provided by the Central and State Government and at page 84 of the paper-book, a document has been annexed, which shows that there are six projects going on at present and out of these projects, first five projects are 100% financed by the Central Social Welfare Board to the Gujarat State Social Welfare Board. Though, there was an order of learned Single Judge holding that the Gujarat State Social Welfare Advisory Board is not a State within the meaning of Article 12 of the Constitution of India and this question was not touched in an appeal by the Division Bench, we may have proceeded to decide the Letters Patent Appeals but the interest of justice demands that since the Letters Patent Appeal against the order of learned Single Judge in P. K. Khalsa's case had been disposed of by the Division Bench, we deem it fit and proper to refer the following question to be decided by the Full Bench of this Court.
QUESTION
"Whether the Gujarat State Social
Welfare Board is a State within the
meaning of Article 12 of the
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C/LPA/70/2012 ORDER
Constitution of India?"
8. Let the papers of these Letters Patent Appeals be placed before the Hon'ble the Chief Justice for constituting an appropriate Full Bench. Office shall obtain necessary nomination at the earliest."
2. Now, the decision of the Full Bench of this Court is available and accordingly, it is held that Gujarat Social Welfare Board is a State within the meaning of Article 12 of the Constitution of India. Thus, admittedly, Gujarat Social Welfare Board being a State within the meaning of Article 12 of the Constitution of India, order dated 19.7.2011 impugned in these appeals passed by the learned Single Judge rejecting the writ petitions under Article 226 of the Constitution of India only on the ground that they were not entertained because Gujarat Social Welfare Board was not State within the meaning of Article 12 of the Constitution of India shall have to be quashed and set aside.
3. Accordingly, impugned judgment / order of the learned Single Judge dated 19.7.2011 in Special Civil Application No.207 of 2011 and Special Civil Application Nos.4146 to 4152 of 2011 is quashed and set aside. The matters are remanded to the learned Single Judge for passing appropriate orders in accordance with law in the writ petitions.
Page 5 of 6HC-NIC Page 5 of 6 Created On Wed Mar 30 00:53:29 IST 2016 C/LPA/70/2012 ORDER (ANANT S.DAVE, J.) (R.P.DHOLARIA,J.) pathan Page 6 of 6 HC-NIC Page 6 of 6 Created On Wed Mar 30 00:53:29 IST 2016