Gujarat High Court
Mahipatsinh Ramsinh Sindha vs Gujarat State Electricity Corporation ... on 22 February, 2022
Author: Biren Vaishnav
Bench: Biren Vaishnav
C/SCA/6574/2021 CAV JUDGMENT DATED: 22/02/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 6574 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 9021 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BIREN VAISHNAV
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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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MAHIPATSINH RAMSINH SINDHA
Versus
GUJARAT STATE ELECTRICITY CORPORATION LTD.
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Appearance:
MR TR MISHRA(483) for the Petitioner(s) No. 1
MS LILU K BHAYA(1705) for the Respondent(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
Date : 22/02/2022
CAV JUDGMENT
1 In both these petitions under Article 226 of the Constitution of India, the challenge is to the show cause notices dated 10.03.2021 and 31.03.2021 respectively, by which, the Page 1 of 13 Downloaded on : Tue Feb 22 21:39:49 IST 2022 C/SCA/6574/2021 CAV JUDGMENT DATED: 22/02/2022 petitioners have been asked to show cause as to why their services be not terminated on the ground of they being void ab initio.
2 Facts of Special Civil Application No. 6574 of 2021 shall be considered.
2.1 The petitioner was engaged as an Apprentice in the trade of Machinist for one year from 26.09.1995 to 25.09.1996 with the respondent Electricity Company. By another order dated 08.10.2007, the petitioner was appointed as Vidhyut Sahayak (Helper) on the reserved post of SEBC Community. By an order dated 18.11.2010, the petitioner was taken on a regular establishment as Vidhyut Sahayak (Helper) on the basis of his SEBC Certificate. On 20.05.2011, the petitioner was appointed as Machinist, Grade-III based on the In-house recruitment procedure.
2.2 It appears that on the basis of the complaint filed before His Excellency, the Governor of Gujarat, an inquiry into the validity of the Caste Certificate of the petitioner was inquired into. The Scrutiny Committee by a report found that the Caste Certificate obtained by the petitioner of he being "Hindu- Page 2 of 13 Downloaded on : Tue Feb 22 21:39:49 IST 2022
C/SCA/6574/2021 CAV JUDGMENT DATED: 22/02/2022 Baraiya" from the District Social Welfare Officer, Anand, on 10.09.2007 was not valid and the same was therefore cancelled. That became a subject matter of challenge by filing Special Civil Application No.1283 of 2013 and allied matters. A co-ordinate Bench of this Court by judgment dated 03.04.2013 dismissed the petition. On an appeal being filed by the petitioner, the Division Bench of this Court by an oral judgment dated 24.02.2015 dismissed the appeal with certain observations. On a challenge to the order before the Supreme Court, the Supreme Court by an order dated 26.04.2019, affirmed the order of the High Court. 3 The Gujarat State Electricity Corporation Limited, respondent No.1, issued a show cause notice dated 10.03.2021 referred to hereinabove which is a subject matter of challenge. 4 Mr.T.R.Mishra, learned counsel for the petitioner, would make the following submission:
4.1 The petitioner was engaged as an Apprentice for a period of one year in 1995-1996. His date of birth was 27.02.1974 and the age therefore on the date of he being engaged as an Apprentice, was 22 years.
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C/SCA/6574/2021 CAV JUDGMENT DATED: 22/02/2022 4.2 The show cause notice proceeds on the assumption that the appointment of the petitioner was obtained by fraud. Inviting the attention of the Court to the operative portion of the oral judgment of the Division Bench, Mr.Mishra, learned counsel, would submit that the Division Bench clearly clarified that the appeals are not being dismissed on the ground that the appellants have resorted to fraud. The appellants ought to be accomodated on the posts of Vidhyut Sahayaks in general category. Accordingly, the show cause notice is on the fact of it contrary to a final finding of fact that appointments of the petitioner and the consequential termination cannot be on the basis of a finding that the appointments were fraudulently obtained.
4.3 Mr.Mishra, learned counsel, would extensively read paras 15 onwards of the decision in the case of Kavita Solunke vs. State of Maharashtra & Ors., rendered in Civil Appeal No.5821 of 2012 dated 09.08.2012. Relying on para 15 he would submit that once there is no acqusation that the Certificate was false or fabricated, there is no reason why the benefit of protection against ouster should not be extended, particularly when the petitioners are in service for over ten Page 4 of 13 Downloaded on : Tue Feb 22 21:39:49 IST 2022 C/SCA/6574/2021 CAV JUDGMENT DATED: 22/02/2022 years.
4.4 Mr.Mishra, learned counsel, would extensively rely on para 5 of the pleadings in the petition and submit that a hyper technical view is being taken with a mala fide intention. The show cause notice proceeds on the assumption that as a general category candidate, the petitioner when appointed was over the age of 35 years which is in fact incorrect. Taking his date of birth as 27.02.1974, he was only 33 years on 08.10.2007. The show cause notice is therefore misconceived.
4.5 Mr.Mishra, also relied on the decisions in the case of Dattu S/o. Namdev Thakur vs. State of Maharashtra & Ors., reported in (2012) 1 SCC 549. Reliance was placed on paras 3 to 7 thereof to submit that it was improper to get into the circumstances of the caste scrutiny after such a long delay. He also relied on a decision in the case of Raju Ramsing Vasave vs. Mahesh Deorao Bhivapurkar & ors., reported in (2008) 9 SCC 54. Reliance was placed on para 47 thereof to submit that the petitioner cannot be made to suffer now on the doctrine of proportionality.
5 Ms. Lilu Bhaya, learned counsel for the respondent - Page 5 of 13 Downloaded on : Tue Feb 22 21:39:49 IST 2022 C/SCA/6574/2021 CAV JUDGMENT DATED: 22/02/2022 Electricity Corporation would submit as under:
5.1 Inviting the Court's attention to the findings of the Scrutiny Committee, she would submit that the petitioner was engaged as a Vidhyut Sahayak (Helper) on the basis of his Caste Certificate showing "Hindu-Baraiya" which was obtained on 10.09.2007. On investigation it was found and recorded that the petitioner has not been able to establish that the community was socially and economically backward.
5.2 She would therefore submit that once the Certificate was cancelled to have been found illegal ab initio, and confirmed by the order of the Co-ordinate Bench, the benefit that the petitioner obtained in getting appointed based on his SEBC certificate cannot enure.
5.3 Even otherwise, the Division Bench in para 14 of the oral judgement had categorically observed that the respondent could consider accomodating the petitioner to the post of Vidhyut Sahayak in the general category if posts are available and on the posts meant for general category. This was based on the principle that posts which are meant for reserved category must go to the reserved category. In other words, having lost the claim to be appointed on the reserved category, the Board considered Page 6 of 13 Downloaded on : Tue Feb 22 21:39:49 IST 2022 C/SCA/6574/2021 CAV JUDGMENT DATED: 22/02/2022 the claim of the petitioner on the basis of the directions in the general category. It was then found that in the common seniority list of Apprentice Trade, the petitioner's name figured at serial
196. In a statement annexed to the reply, in Ms.Bhaya's submission, it would be evidently clear that but for his SEBC the petitioners got priority to be appointed on that basis on 08.10.2007 on a contractual basis and on 18.11.2010 on the regular establishment. If the benefit of he being a general category is to be extended then several seniors to the petitioner in the general category were yet to be appointed. The show cause notice, therefore, is just and proper. She relied on the following decisions:
(i) Union of India & Ors. vs. M. Bhaskaran., reported in 1995 Supp (4) SCC 100. She would submit that employment secured by fraud rendere it voidable at the option of the employer.
(ii) State of Maharashtra vs. Milind & Ors., reported in AIR 2001 SC 393 to submit that for subsequent periods once caste certificate is cancelled, no advantage can be taken.
(iii) R. Vishwanatha Pillai vs. State of Kerala., reported in AIR 2004 SC 1469. Reliance was placed on para 19 of the Page 7 of 13 Downloaded on : Tue Feb 22 21:39:49 IST 2022 C/SCA/6574/2021 CAV JUDGMENT DATED: 22/02/2022 decision to submit that appointment against the post meant for reserved candidate when obtained by fraud is an appointment nonest in law. Benefits flowing from such appiontment cannot be given.
(iv) Bank of India & Anr vs. Avinash D. Mandivikar & ors., reported in (2005) 7 SCC 690. Reliance was placed on para 9.
(v) Superintendent of Post Offices & Ors. vs. R.Valasina Babu., reported in (2007) 3 SCC 335. Para 9 was relied on by the learned counsel.
(vi) The Chief Regional Officer , The Oriental Insurance Co.
Ltd vs. Pradip & Anr., rendered in Civil Appeal No. 742 of 2020 dated 27.01.2020 to submit that the issue pertaining to the protection of services have not attained finality and the protection is granted purely on the basis of being considered in accordance with the directions of the Division Bench. 6 Having considered the submissions made by the learned advocates for the respective parties, the Court cannot lose sight of the fact that what is under challenge is a show cause notice dated 10.03.2021. The notice is issued on the basis of the following preceeding factual scenario:
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C/SCA/6574/2021 CAV JUDGMENT DATED: 22/02/2022 6.1 The petitioner was engaged as an Apprentice (Machinist) from 26.09.1995 to 25.09.1996. That engagement was only under the provisions of the Apprenticeship Act and not an employment with the respondent-Electricity Corporation. 6.2 On 08.10.2007, based on his SEBC Certificate, the petitioner secured a fixed term engagement / appointment as a Vidhyut Sahayak (Helper).
6.3 Consequential regularisation of his service on the regular establishment of the Corporation as Helper on 18.11.2010 was on this basis of his appointment to the post on a seat reserved for SEBC.
6.4 The Scrutiny Committee found that the caste certificate obtained in the year 2007 as "Hindu-Baraiya" was misconceived and the Certificate was found to be ab initio bad. 6.5 On a challenge to the order before this Court, by a judgement dated 03.04.2013, this Court confirmed the findings of the Scrutiny Committee.
6.6 On a challenge to the judgement of the learned single Judge in appeal, the Division Bench in its judgement of 24.02.2015 in Letters Patent Appeal No. 656 of 2013 held as under:
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C/SCA/6574/2021 CAV JUDGMENT DATED: 22/02/2022 "13 The appellants are appointed on the post of Vidyut Sahayaks as a reserved category candidates belonging to the SEBC category and the basis for the same is the certificate which is declared to be bad ab initio by the Committee. In that view of the matter, when the certificate is declared to be void ab initio subsequently, the conclusion that can be reached is that the appointment of the petitioners cannot be said to be valid in the eye of law because, their appointment is based on the Certificate holding the appellants to be belonging to SEBC category.
In that view of the matter, the basic foundation of the appointment of the appellants has gone and therefore they cannot be allowed to continue on the post which are meant for the candidates belonging to SEBC category. The posts which are meant for reserved category must go to the reserved category. In that view of the matter, we are of the opinion that the learned Single Judge has not committed any error in rejecting the writ petitions. We are in complete agreement with the view taken by the learned Single Judge.
The appeals are liable to be dismissed and the same are accordingly dismissed.Consequently, Civil Applications filed in the appeals do not survive and the same stand disposed of accordingly. Interim relief, if any, stands vacated. 14 However, while dismissing these appeals, the appellants have put in a long period of service of around 10 years. Therefore, if the posts of Vidhyut Sahayaks are available in general category and these appellants can be accommodated, the respondents can accommodate them on the posts meant for general category. However, it is clarified that we are not dismissing the appeals on the ground that the appellants have resorted to fraud, but on basic principles of the Constitution that the rights of reserved category candidates cannot be taken away by the people belonging to general category. At this stage, Mr T.R. Mishra, learned advocate for the appellants has requested this Court to stay the operation of this order for a period of ten weeks. The request is accepted. The service conditions of the petitioners will not change till 1st April 2015." Page 10 of 13 Downloaded on : Tue Feb 22 21:39:49 IST 2022 C/SCA/6574/2021 CAV JUDGMENT DATED: 22/02/2022 6.7 The submission of Mr.Mishra, learned counsel, that the impugned show cause notice proceeds on an assumption that the appointment was obtained by fraud is misconceived and contrary to the observations of the Division Bench now need to be examined.
6.8 Reading the observations of the Division Bench while dismissing the Appeal what the Bench observed was that if posts of Vidhyut Sahayaks are available in general category, then the appellants can be accomodated meant for general category. 6.9 Reading the show cause notice would indicate that as contended by Shri Mishra, learned counsel, its not a hyper technical view which is being taken. The petitioners appointment even agreeing with Mr.Mishra's submission, if taken as on 08.10.2007, was on the basis that he belonged to the SEBC category. Once the support of the Certificate goes, the basis of his appointment even in the year 2007 on a preference as a reserved category candidates gets obliterated. As per the directions of the Division Bench therefore the Corporation was bound to consider as if the petitioner was a general category candidate. His claim as a general category candidate as reflected in the show cause notice would indicate that his claim as a Page 11 of 13 Downloaded on : Tue Feb 22 21:39:49 IST 2022 C/SCA/6574/2021 CAV JUDGMENT DATED: 22/02/2022 general category could not be over ridden by considering the seniority of other general category candidates above the petitioner who were still to be appointed. That fact of the contents of the show cause notice even gets support from the statement annexed by the Corporation in its reply. In other words, what the show cause notice emphasizes is that the appointment of the petitioner in the year 2007 had to be considered on he being a general category candidate and not on the basis of he belonging to SEBC category and claiming appointment over riding seniority of candidates belonging to the general category who could not get appointment till the year 2009 when the petitioner would attain the age of 35 years. Persons senior to him in general category were not given appointment.
7 The reliance therefore placed by learned counsel for the petitioner on the decisions is of no help. Admittedly, the petitioner is not being persecuted of having obtained appointment on the basis of a fraudulent caste certificate. That issue is a closed chapter once the observations of the Division Bench in para 14 are read.
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C/SCA/6574/2021 CAV JUDGMENT DATED: 22/02/2022 8 The show cause notice is therefore in compliance of the directions of the Division Bench opining that even if the petitioners were to be considered on their claim as general category, persons senior to them were awaiting appointment. 9 The issue is at the show cause notice stage and therefore based on the observations hereinabove, a decision is yet awaited which will surely be taken in accordance with law based on the submissions made by the petitioners in response thereto. 10 Accordingly, the petitions are dismissed. Interim relief stands vacated.
(BIREN VAISHNAV, J) Bimal FURTHER ORDER After the pronouncement of judgement, Mr.Mishra, learned Counsel for the petitioners, seeks stay of the judgement to which Ms.Lilu Bhaya, learned counsel for the respondent objects.
However, request for stay is acceded. Stay granted earlier shall continue up to 08.03.2022.
(BIREN VAISHNAV, J) Bimal Page 13 of 13 Downloaded on : Tue Feb 22 21:39:49 IST 2022