Gujarat High Court
Patel Manilal Kalidas vs State Of Gujarat on 3 May, 2018
Author: P.P.Bhatt
Bench: P.P.Bhatt
C/SCA/9631/2017 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 9631 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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PATEL MANILAL KALIDAS
Versus
STATE OF GUJARAT
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Appearance:
MR MURALIN DEVNANI(1863) for the PETITIONER(s) No. 1
MR V R JANI, AGP for the RESPONDENT(s) No. 1
RULE SERVED(64) for the RESPONDENT(s) No. 2,3,4
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CORAM: HONOURABLE MR.JUSTICE P.P.BHATT
Date : 03/05/2018
ORAL JUDGMENT
1. The petitioner, by way of present petition under Article 226 of the Constitution of India, has prayed for issuance of appropriate writ/order for quashing and setting aside the impugned order dated 10.04.2017 passed by the respondent, whereby the petitioner was Page 1 of 7 C/SCA/9631/2017 JUDGMENT reverted to the post of Peon, without any prior intimation or show cause notice.
2. Brief facts of the case are as under :
2.1 By order dated 25.10.1983, the petitioner was recruited as Peon in the office of the District Inspector Land Records at Post Jalalpur, District Valsad. Thereafter, vide order dated 01.04.1991 the petitioner was promoted to the post of Junior Clerk. 2.2 Thereafter, after a lapse of 25 years of service as Junior Clerk, on the verge of the retirement from service, vide impugned order dated 10.04.2017, the petitioner is reverted to the post of Peon on the ground of non-passing of pre-service training examination, without any prior intimation, show cause notice or affording an opportunity of being heard personally. Though the petitioner's case was required to be considered for the post of Surveyor as further promotion from the post of Junior Clerk, the petitioner is reverted to the post of Peon by impugned dated 10.04.2017. Hence, the present petition is filed.
3. The learned advocate for the petitioner has Page 2 of 7 C/SCA/9631/2017 JUDGMENT submitted that initially, the petitioner was appointed as Peon, and thereafter, he was promoted to the post of Junior Clerk vide order dated 01.04.1991.
It is submitted that the promotion order did not contain any condition of passing of pre-service training 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 01.04.1991. It is further submitted that respondent authorities have issued the impugned order dated 10.04.2017 after a span of 25 years, that too, without any prior intimation and/or show cause notice and without affording any opportunity of personal hearing, the respondents authorities have reverted him to the post of Peon. Such action on the part 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 10.04.2017 deserves to be quashed and set aside. The learned advocate for the petitioner has further submitted that as on date, the petitioner has already retired from the service. Page 3 of 7
C/SCA/9631/2017 JUDGMENT 4. 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.
5. The learned AGP appearing for the respondent-
State relying on the Government Resolution dated
13.02.1991 read with Government Resolution dated
Page 4 of 7
C/SCA/9631/2017 JUDGMENT
16.08.1990 tried to justify the action of the
respondents. According to learned AGP, the
petitioner was not eligible and entitled for getting departmental promotion which was granted to him in the year 1991.
6. 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 that the promotion order dated 01.04.1991 does not contain any condition or stipulation of passing of departmental examination. Moreover, in the impugned order dated 10.04.2017, 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 of the Land Records has been informed about the said provisions in the year 1993-1994. Therefore, from the first paragraph of the impugned order dated 10.04.2017, itself clarifies that the promotion order dated 01.04.1991 issued in favour of the petitioner was prior to the information of the provisions of the Page 5 of 7 C/SCA/9631/2017 JUDGMENT pre-services departmental examination and such 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 petitioner 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 10.04.2017 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 petitioner. 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 Page 6 of 7 C/SCA/9631/2017 JUDGMENT referred settled legal proposition the respondent authorities have passed the impugned order which deserves to be quashed and set aside.
7. Accordingly, the present petition is allowed and the impugned order dated 10.04.2017 is hereby quashed and set aside. Since the petitioner has attained the age of superannuation and now he has retired from the service, the respondent authorities are directed to pay the family pension and all other pensionary benefits to the petitioner, calculating the same as per the last pay drawn by the petitioner on the Junior Clerk (Class-III) post within a period of four weeks from the date of receipt of this order.
8. Rule is made absolute accordingly. Direct service is Permitted.
(P.P.BHATT, J) BDSONGARA Page 7 of 7