Gujarat High Court
Lata N Saharkar vs Executive Director & on 13 September, 2017
Author: Mohinder Pal
Bench: Mohinder Pal
C/SCA/3998/2014 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 3998 of 2014
[On note for speaking to minutes of order dated 28/06/2017 in
C/SCA/3998/2014 ]
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LATA N SAHARKAR....Petitioner(s)
Versus
EXECUTIVE DIRECTOR & 1....Respondent(s)
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Appearance:
MR KARTIK V PANDYA, ADVOCATE for the Petitioner(s) No. 1
MS ARCHANA U AMIN, ADVOCATE for the Respondent(s) No. 2
NOTICE SERVED for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE MOHINDER PAL
Date : 13/09/2017
ORAL ORDER
ORDER BELOW SPEAKING TO MINUTES:
1. In this Note for Speaking to Minutes, learned counsel for the petitioner has pointed out that in para-11 of the order dated 28.6.2017 passed by this Court, the petitioner is ordered to be joined as Assistant Grade-III within a period of 15 days. Learned counsel for the petitioner has submitted that, in fact, the petitioner was promoted from Grade-III to Grade-II, and thereafter, from Grade-II to Grade-I, and accordingly, she should have been joined at the Page 1 of 2 HC-NIC Page 1 of 8 Created On Wed Sep 13 23:39:22 IST 2017 1 of 8 C/SCA/3998/2014 ORDER place where she was working before termination.
2. This contention has been opposed by the learned counsel for the respondent. Be that as it may. The order passed on 28.6.2017 is modified to the extent that petitioner will be allowed to join the post where she was working before termination.
3. This Note for Speaking to Minutes stands disposed of.
(MOHINDER PAL, J.) mandora Page 2 of 2 HC-NIC Page 2 of 8 Created On Wed Sep 13 23:39:22 IST 2017 2 of 8 C/SCA/3998/2014 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 3998 of 2014 FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE MOHINDER PAL ========================================================== 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 ?
========================================================== LATA N SAHARKAR....Petitioner(s) Versus EXECUTIVE DIRECTOR & 1....Respondent(s) ========================================================== Appearance:
MR MR SHIVANG SHUKLA FOR MR KARTIK V PANDYA, ADVOCATE for the Petitioner(s) No. 1 MS ARCHANA U AMIN, ADVOCATE for the Respondent(s) No. 2 NOTICE SERVED for the Respondent(s) No. 1 ========================================================== CORAM: HONOURABLE MR.JUSTICE MOHINDER PAL Date : 28/06/2017 ORAL JUDGMENT Page 1 of 6 HC-NIC Page 3 of 8 Created On Wed Sep 13 23:39:22 IST 2017
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1. With the consent of the learned advocates, this matter is taken up for final disposal.
2. Rule. Learned advocate, Ms.Archana U.Amin, waives service of rule on behalf of respondents.
3. Petitioner, through this petition, has challenged the termination order dated 4.3.2013 passed by respondent No.2 terminating the services of the petitioner.
4. Facts giving rise to this petition are that, on 4.5.1995, respondents invited candidates through employment exchange for the post of Assistant Grade-III and accordingly, on 31.5.1996, petitioner was appointed on this post. After about 10 years from the date of appointment, on 17.3.2005, respondent No.2 asked the petitioner to produce the original caste certificate for the purposes of verification. Petitioner produced original certificate issued by the State of Gujarat. Original certificate was returned to the petitioner on 26.9.2005. In the meantime, Government of India issued circular dated 10.8.2008 directing that employees belonging to Halba Community, who have joined service prior to 28.11.2000, their services shall not be disturbed on account of caste. Despite such circular, respondents on 24.8.2012, issued a show cause notice to the petitioner that why her services may not be terminated in view of the fact that caste certificate supplied by the petitioner could not be verified by the District Backward Class Welfare Officer, Ahmedabad - Gandhinagar. In response to this notice, Page 2 of 6 HC-NIC Page 4 of 8 Created On Wed Sep 13 23:39:22 IST 2017 4 of 8 C/SCA/3998/2014 JUDGMENT petitioner filed a detailed reply on 15.10.2012 explaining therein that, the petitioner was having a caste certificate issued by the State of Maharashtra. However, at the time of appointment in the State of Gujarat, the authorities required a caste certificate issued from the State of Gujarat and accordingly, petitioner obtained this certificate from the State of Gujarat. However, respondents on 4.3.2013, passed order of termination on the ground that Certificate produced by the petitioner could not be verified for want of record. It is further case of the petitioner that similarly situated employees working with the respondent-Corporation in the State of Maharashtra belonging to Halba Community were issued similar notices for termination of their services. They approached Bombay High Court through Civil Writ Petition No.5198 of 2009. This writ petition came to be decided in their favour and the impugned notice was quashed and set aside. The respondent-Corporation went in SLP before the Apex Court vide No.11831 - 11832 / 2013. However, this SLP was dismissed on 12th April, 2013. After dismissal of SLP, review preferred by the Food Corporation of India also came to be dismissed on 26.2.2014.
5. Respondents have contested this case by filing reply mainly on the ground that, caste certificate produced by the petitioner was sent for verification to the District Backward Class Welfare Officer, Ahmedabad & Gandhinagar, District: Ahmedabad for the purposes of verification. However, it was returned back with the remarks that, said Department was not having any record of the petitioner.
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C/SCA/3998/2014 JUDGMENT
6. Learned counsel for the petitioner has argued that there was no reason for the respondents to have asked for verification of the caste certificate in 2005 and that too, at the time when she was eligible for promotion. He has further argued that the respondent-Corporation issued similar notices to the persons belonging to Halba Community working in State of Maharashtra. However, the notices were quashed and set aside by the High Court and affirmed by the Apex Court. He has also referred to the circular of Government of India according to which, persons who have joined services prior to 28.11.2000, being candidates belonging to Halba community, were not required to be disturbed on the basis of their caste. Finally, it has been argued that fault if any lies with the concerned Department of State of Gujarat for not having the record of the petitioner. However, on the basis of that, Certificate possessed by the petitioner cannot be termed as fake or invalid. It is also argued that brother of the petitioner working in Sales Tax Department in the State of Gujarat, has obtained the job on the basis of Caste Certificate belonging to Halba caste which is covered under the list as Scheduled Tribe.
7. On the other hand, learned counsel for the respondents has argued that it was incumbent upon the petitioner to have produced the caste certificate from the State of Gujarat. As the District Backward Class Welfare Officer, Ahmedabad was not having any record of the petitioner and the certificate on the basis of which the petitioner has entered into service cannot be termed as valid certificate and accordingly, termination of the Page 4 of 6 HC-NIC Page 6 of 8 Created On Wed Sep 13 23:39:22 IST 2017 6 of 8 C/SCA/3998/2014 JUDGMENT petitioner vide order dated 4.3.2013 was valid and legal.
8. This Court has considered the submissions of both the sides. Admittedly, petitioner has entered into service on 31.5.1996 being a candidate of ST category belonging to Halba community. It is also not in dispute that respondent-Food Corporation of India has issued similar notices to other members of Halba community who were working in the State of Maharashtra. The controversy seems to have been put to rest by the Bombay High Court in Writ Petition No.5198 of 2009. The SLP preferred against order of the High Court and review preferred against the order of the Apex Court also came to be dismissed.
9. The main reasoning given by the respondents while terminating the services of the petitioner is that the District Backward Class Welfare Officer, Ahmedabad was not having a record of the petitioner in their office. It could be seen that merely non-availability of the record cannot be taken as a ground to terminate the services of an employee if the caste certificate on the basis of which the employee has entered into services is not fake or invalid. This is particularly so, when similarly situated employees belonging to the Halba Community in the adjoining State have been treated as ST candidates and the matter has been put to rest by the Apex Court. It will be relevant to note that originally petitioner produced caste certificate issued by the State of Maharashtra. However, on insistence by the respondents, she approached the District Backward Class Welfare Officer, Ahmedabad for Page 5 of 6 HC-NIC Page 7 of 8 Created On Wed Sep 13 23:39:22 IST 2017 7 of 8 C/SCA/3998/2014 JUDGMENT issuance of another certificate from the State of Gujarat. It will be further relevant to note that brother of the petitioner having same father's name has been treated as a candidate belonging to ST categroy (Halba Community) and he is doing a Government job in the Sales Tax Department in the State of Gujarat. The certificate produced regarding brother of the petitioner seems to have been issued in the year 1987 i.e. much prior to the controversy in question.
10. In view of the afore-going discussion, this petition deserves to be allowed. Ordered accordingly.
11. Respondents are directed to allow the petitioner to join as Assistant Grade III within a period of 15 days from the date of receipt of copy of this order. Petitioner will be treated to be in service from the date of termination till the date of joining. She will be given notional benefit of continuity in services and she will be entitled to all other benefits except salary for the period she remained out of service.
12. Rule is made absolute.
(MOHINDER PAL, J.) ashish Page 6 of 6 HC-NIC Page 8 of 8 Created On Wed Sep 13 23:39:22 IST 2017 8 of 8