Gujarat High Court
Patel Chhatrasinh Gokalbhai vs District Primary Education Officer & 3 on 13 April, 2017
Author: P.P.Bhatt
Bench: P.P.Bhatt
C/SCA/20020/2006 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 20020 of 2006
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 CHHATRASINH GOKALBHAI....Petitioner(s)
Versus
DISTRICT PRIMARY EDUCATION OFFICER & 3....Respondent(s)
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Appearance:
MR KB PUJARA, ADVOCATE for the Petitioner(s) No. 1
MS DEEPAK ALORIYA, AGP for the Respondent(s) No. 2 - 3
MR HS MUNSHAW, ADVOCATE for the Respondent(s) No. 1
RULE SERVED BY DS for the Respondent(s) No. 1 - 4
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CORAM: HONOURABLE MR.JUSTICE P.P.BHATT
Date : 13/04/2017
ORAL JUDGMENT
1. The petitioner by way of present petition under Page 1 of 11 HC-NIC Page 1 of 11 Created On Tue Aug 15 23:35:10 IST 2017 C/SCA/20020/2006 JUDGMENT Article 226 of the Constitution of India has challenged the order of termination dated 09.09.2006 passed by the respondent No.1, which is communicated to the petitioner on 11.09.2006 by the respondent No.4. Being aggrieved and dissatisfied with the said order the petitioner has preferred this petition.
2. Heard learned advocate Mr.K.B. Pujara for the petitioner, learned advocate Mr. H.S. Munshaw for the respondent No.1, and learned Assistant Government Pleader appearing for the respondent-State of Gujarat.
3. At the stage of final hearing, learned advocates appearing for the respective parties have agreed to convert the interim order dated 03.10.2006, passed by this Court (Coram : H.K. Rathod, J) into final order.
4. At the stage of admission of the petition detailed interim order was passed by this Court (Coram : H.K. Rathod, J) on 03.10.2006, which is running into 42 pages. While concluding the said interim order, this Court has observed as under :
"3. Looking to the facts which are emerging from the record, not much disputed by the parties, birth date of the petitioner is 13.5.1959. Petitioner belongs to SEBC Category. In March, 1980, petitioner passed new SSC Examination. In July, 1980, petitioner obtained admission in C. P. Ed. In Bharatiya Sharirik Shikshan Mahavidyalaya, Amravati (Maharashtra. In April, 1981, petitioenr passed C.P. Ed. Examination conducted by the Directorate of ports and Youth Services,Government Page 2 of 11 HC-NIC Page 2 of 11 Created On Tue Aug 15 23:35:10 IST 2017 C/SCA/20020/2006 JUDGMENT of Maharashtra. According to the case of the petitioner, on 22.9.1984, respondent No.1 issued advertisement inviting applications for vacancies of primary teachers inter alia from SSC/CPEd candidates. Being eligible and qualified, petitioner applied for the same with all his certificates and mark sheets. By call letter dated 21.11.1984, petitioner was called for interview wherein petitioner produced all his original certificates and mark sheets which were duly verified by the selection committee. On 24.1.1985, appointment order was issued to the petitioner by first respondent Petitioner cmplied with the terms of appointment order and submitted bond and medical certificate of physical fitness. On 6.2.1985, petitioner joined service as primary teacher under the respondents and discharged duties for 22 years diligently and sincerely without any objection from any authority. According to the petitioner, on 17.8.2006, petitioner was called by respondent no.4 with his certificates and mark sheets and appointment order and interview call letter. On 9.9.2006, respondent no.1 called the petitioner with all his certificates and mark sheets and other documents in support of his qualifications. Thereafter, on the same day, respondent no.1 passed order of termination based on the decision of the State Government and some communication of the Director of Primary Education. On 11.9.2006, respondent No. 4 communicated aforesaid order of termination to the petitioner.
10. Division Bench of this Court has considered the decision of the apex court in case of Suresh Pal and ors. v. State of Haryana and ors., reported in (1987) 2 SCC 445. Learned Advocate Mr. Page 3 of 11 HC-NIC Page 3 of 11 Created On Tue Aug 15 23:35:10 IST 2017 C/SCA/20020/2006 JUDGMENT Pujara has also placed reliance upon the same decision. Para 13 thereof is relevant because in that case, before terminating services of such teachers or Vidya Sahayaks, show cause notices were given and they were called upon to submit explanation and thereafter, necessary orders were passed by observing principles of natural justice.
Decision of division bench of this court in LPA NO. 827 of 2001 dated 9.10.2001 is also not applicable to the facts of this case as the facts of this case are totally different from the facts of that case. In the case before hand, there was pre decision to terminate service of petitioner and thereafter observance of principles of natural justice and therefore it cannot be said that before taking such decision, petitioner was given opportunity of heard which is the bare minimum requirement of the principles of natural justice.
Therefore, according to my opinion, service of petitioner was terminated by the respondents without giving any opportunity whatsoever considering the pre-decision emerging from page 58, Annexure A to the affidavit in reply filed by respondent NO.1.
11. Petitioner obtained admission in CP Ed in July, 1980, completed said course in April, 1981. Meanwhile, circular dated 29.12.1980 was issued by the State Government which was not informed by the State Government to the concerned Bharatiya Sharirik Shikshan Mahavidyalaya, Amravati, Maharashtra that your course or certificate is not recognized by the State of Gujarat or that it has been derecognized by the S tate Government so they should not admit any student from Gujarat State in the said course conducted by the said institute of Amravati, Maharashtra.
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C/SCA/20020/2006 JUDGMENT
Therefore, when the petitioner obtained admission, at that time, said course was not derecognized by the State of Gujarat. Further, in advertisement also, it has not been pointed out that the students from the said institute of Amravati of Maharashtra are not eligible for such appointment as the same is not recognized by the State of Gujarat. Without such assertion, advertisement was issued. Further, at the time of verification of the testimonials namely mark sheet, certificates etc. by the concerned selection committee, no such objection was raised by the committee and petitioner was called for interview and was interviewed and thereafter appointed without any such objection. Further, it is also not the case of the respondents that the petitioner has secured such appointment by making any false representation or by producing any false or fake documents. That is also not the submission before this Court. In such circumstances, if there is any fault on the part of the authority while giving appointment, when the employee concerned has worked for more than twenty two years and now has become over aged for any public employment, in such circumstances, the apex court has held that the appointment has to be left undisturbed. In case of Satish Rawat v. Union of India reported in (2002) 7 SCC page 29, Apex Court has directed that the appointment of respondent should not be disturbed and such post if not available should be created on supernumerary basis to be absorbed when a regular vacancy arises. Observations made by the apex court as per page 30 are reproduced as under:
"Pursuant to the selection made by the Department the appellant had worked from 1.9.1992 to 7.6.2001 for nearly 8 years and 7 ½ months except for a break from 1.12.2000 Page 5 of 11 HC-NIC Page 5 of 11 Created On Tue Aug 15 23:35:10 IST 2017 C/SCA/20020/2006 JUDGMENT to 12.1.2001. Now he is over aged for any selection for any post under the sports quota. Had the complete records been placed before the CAT, appropriate conclusion could have been drawn. For the mess that arose on the appointment of appellant and not supporting it properly and for appointment of respondent no.3, Department is entirely blameworthy. If now Respondent NO. 3 is displaced by the appellant, he will be uprooted.
(Paras 3 and 4)
Therefore, the appointment of
Respondent No.3 as directed by CAT should not be disturbed. However, in the peculiar facts of the case as arise now, it would be proper for the Department to provide a post to the appellant and such post if not available should be created on supernumerary basis to be absorbed when a regular vacancy arises. However, the appellant shall not be entitled to any monetary benefits for the period he had not worked. He be appointed in the post on the basis that he had been originally appointed in 1992 and due benefits of increments be given to him and his pay scale should be appropriately fixed on the basis of last pay drawn at the time of discharge from service."
14. Looking to the facts of this case, considering page 58 to the affidavit in reply of respondent NO. 1, decision has been taken to terminate service of petitioner after a period of 22 years. This delay of 22 years in taking such decision has not been explained by the respondent authority concerned. If any action/decision is required to be taken by the respondent authority, it is Page 6 of 11 HC-NIC Page 6 of 11 Created On Tue Aug 15 23:35:10 IST 2017 C/SCA/20020/2006 JUDGMENT required to be taken promptly or within some reasonable period and if not taken even within reasonable period, same shall have to be explained by the authority concerned before this Court.
Such power cannot be exercised arbitrarily at any time and that too in utter disregard to the principles of natural justice, otherwise, equity has been created in favour of petitioner. In such similar circumstances, if during the period of service, if any employee/officer has committed any serious misconduct, then, such initiation of departmental inquiry and charge sheet has been quashed by the apex court as well as this court only on the ground of delay in initiation of such an action, on the ground of initiation of such proceedings after inordinate delay which too remained unexplained by the authority. So, when misconduct is committed and charge sheet is issued, it has been quashed by the apex court and this court only on the ground that the action is not taken within reasonable period. Then, similar legal principle will apply to this case also because here there is inordinate delay on the part of the respondent authority in taking action and further, there is no any fault on the part of the petitioner and, therefore, same analogy will apply to this case also because there is delay of about 22 years from the date of appointment of the petitioner till the date of termination of the petitioner and that delay has remained unexplained by the authority. Therefore, petitioner has got strong prima facie case for grant of interim relief. (See : (1) PV Mahadevan versus MD TN Housing Board reported in 2005 (6) SCC 636; (2) State of AP v/s. N. Radhakishan reported in 1998 (4) SCC 154 and (3) State of M.P., Appellant v. Bani Singh and another, Respondents reported Page 7 of 11 HC-NIC Page 7 of 11 Created On Tue Aug 15 23:35:10 IST 2017 C/SCA/20020/2006 JUDGMENT in 1990 (Supplementary) SCC 738 and recent decision of this court in case of Chaturbhuj A. Sahu v/s. State of Gujarat reported in 2006 (3) GLR 2007.
Inordinate delay which is not explained has caused great prejudice to the rights of the petitioner and has resulted into tremendous mental agony and tension to the petitioner.
"17. In view of the aforesaid facts of this case and also considering the question of law involved in this petition and also considering the decisions of the apex court, in case when the department has committed an error while appointing an employee, in that case, appointment should not have to be disturbed by the department and same shall have to be protected by the Court, therefore, according to my opinion, petitioner who has put in more than 22 years service without any stigma, having unblemish record, therefore, petitioner is having strong prima facie case for grant of interim relief. Balance of convenience is also in favour of the petitioner. Petitioner will also suffer irreparable injury and/or loss if the mandatory interim relief is not granted in favour of the petitioner because after getting appointment with the present respondents, petitioner has put in more than 22 years service and there is a fault on the part of the respondents in scrutinizing the papers which were submitted by the petitioner along with application for the post in question and for which, it is also not the case of the respondents that any misrepresentation was made or any fake documents were submitted by the petitioner for securing the appointment. In view of this, now, if petitioner is not protected, then, petitioner will suffer irreparable injury as petitioner Page 8 of 11 HC-NIC Page 8 of 11 Created On Tue Aug 15 23:35:10 IST 2017 C/SCA/20020/2006 JUDGMENT and his family will put into starvation during interim period. It adversely affect the future of children and their education. The mental tension and agony is to be suffered by the whole family for no fault of their own which is a hard reality cannot be ignored by this Court. Therefore, such difficulty and damage cause to petitioner is such which cannot be compensated in terms of money even if petitioner ultimately succeeds in this matter and, therefore, mandatory interim relief as prayed for is required to be granted in the peculiar facts and circumstances of the matter, based on prima facie consideration.
18. Therefore, pending this petition, interim relief in terms of para 20 (b) is granted. Direct Service is Permitted."
5. Before reaching to this conclusion, this Court has also discussed as to why the mandatory interim relief was considered. While doing so, this Court has also taken into consideration the affidavit-in-reply filed by the respondent Nos. 1 and 2 and the relevant provisions of law as well as settled proposition of law.
6. In view of the aforesaid position, at the stage of final hearing without entering into a detailed discussion about the merits of the case, the interim order, which is as good as final order, is required to be converted into and confirm as final decision in this case. Accordingly, the termination order passed by the respondent No.1 is required to be set aside and the petitioner is required to be given all the consequential benefits, including the pensionary Page 9 of 11 HC-NIC Page 9 of 11 Created On Tue Aug 15 23:35:10 IST 2017 C/SCA/20020/2006 JUDGMENT benefits. The respondents authorities are also required to take necessary steps for processing the pensions papers, as the petitioner is going to attain the age of superannuation in near future.
7. Accordingly, the present petition is allowed. The impugned order of termination dated 09.09.2006 is ordered to be quashed and set aside. The respondent authorities are directed to give all the consequential benefits to the petitioner, including the benefit of pension and other retiral dues, within a period of six weeks from the date of receipt of this order. Rule is made absolute. Direct service is permitted.
8. Learned advocate Mr.H.S. Munshaw for the respondent No.1 submits that the interim order was passed by this Court on account of peculiar facts and circumstances of the present case, and therefore, while disposing of the present petition and while converting the interim order into a final order, an observation may be made that this order is passed looking to the peculiar facts and circumstances of the present case, and it will not be treated as a precedent.
9. In view of the above submission, and looking to the facts and circumstances of the present case as they emerge from the material on record, while converting the interim order into the final decision, it is clarified that the decision given in this case is based on peculiar facts and circumstances of the present case as discussed hereinabove and the same Page 10 of 11 HC-NIC Page 10 of 11 Created On Tue Aug 15 23:35:10 IST 2017 C/SCA/20020/2006 JUDGMENT shall not be treated as precedent.
(P.P.BHATT, J.) BD Songara Page 11 of 11 HC-NIC Page 11 of 11 Created On Tue Aug 15 23:35:10 IST 2017