Gujarat High Court
Naroda Kelavni Mandal vs Jayantibhai Bhagabhai Patel & ... on 27 June, 2017
Author: K.M.Thaker
Bench: K.M.Thaker
C/MCA/3327/2014 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
MISC. CIVIL APPLICATION (FOR REVIEW) NO. 3327 of 2014
In SPECIAL CIVIL APPLICATION NO. 6760 of 2001
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NARODA KELAVNI MANDAL....Applicant(s)
Versus
JAYANTIBHAI BHAGABHAI PATEL & 3....Opponent(s)
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Appearance:
MR MUKUND M DESAI, ADVOCATE for the Applicant(s) No. 1
MR. V.R.JANI, AGP for the Opponent(s) No. 2 - 3
MRS VD NANAVATI, ADVOCATE for the Opponent(s) No. 4
MS MAMTA R VYAS, ADVOCATE for the Opponent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE K.M.THAKER
Date : 27/06/2017
ORAL ORDER
1. Heard Mr. Chauhan, learned advocate for Mr. Desai, learned advocate for applicant, Ms. Vyas, learned advocate for opponent no.1, Mr. Jani, learned AGP for respondent nos. 2 and 3 and Ms. Shah, learned advocate for respondent no.4.
2. This application is admitted vide order dated 14.09.2016. Mr. Vyas, learned AGP and Ms. Nanavati, learned advocates at the relevant time waived service of notice of Rule.
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3. By this application, the applicant seeks review of order dated 3.9.2012 passed in Special Civil Application No. 6760 of 2001. After about 2 years, the applicant filed application for review of order dated 3.9.2012.
3.1 This Court condoned delay vide order dated 14.09.2016. By separate order passed on the same dated i.e. 14.09.2012, the Court admitted this Application.
3.2 The opponent no.1 has filed reply opposing the application. The Commissioner of Higher Education has also filed affidavit. Today, the petitioner has filed affidavitinrejoinder. 3.3 The petition i.e. Special Civil Application No. 6760 of 2001 came to be filed by present opponent somewhere in August, 2001. After considering the petition and after hearing the petitioner i.e. present opponent no.1, the Court Page 2 of 20 HC-NIC Page 2 of 20 Created On Sun Aug 20 06:02:14 IST 2017 C/MCA/3327/2014 ORDER passed order dated 23.08.2001 and called the respondents to answer the petition. 3.4 Subsequently, in October, 2002, the Court passed order dated 21.10.2002 and granted interim relief. The said interim order, whereby the Court granted interim relief, reads thus:
"Leave to amend the prayer clause.
Considering that
(i) even according to the respondent authorities the date of issuance of NOC is relevant for deciding the qualification required to be possessed by the candidates for the post of Principal;
(ii) the appointment to the post of Principal in an institution in Olpad taluka of Surat District was approved, although the selected candidate did not possess the UGC qualifications, on the ground that although the appointment was made after the issuance of Government Resolution dated 29.4.2000, the NOC was issued before 29.4.2000;
(iii) in the facts and circumstances of the present case when the NOC dated 29.4.2000 was issued by the Commissioner of Higher Education (Annexure "A"), it did not prescribe that the candidate must possess the UGC qualifications, unlike the NOC dated 24.5.2000 (Annexure "G") in another case; and
(iv) the representative of the DEO was present at the time of interview when the petitioner was selected, the following order is passed : Rule returnable on 3.3.2003.
Till final disposal of the petition, the respondents shall consider the petitioner as having been duly appointed in accordance with the NOC dated 29.4.2000 (Annexure "A" to the petition) and to release the petitioner's salary accordingly.
Direct Service is permitted.
Page 3 of 20 HC-NIC Page 3 of 20 Created On Sun Aug 20 06:02:14 IST 2017 C/MCA/3327/2014 ORDER 3.5 The said order remained in operation for almost 10 years. From record of the petition it appears that in the said petition, except the Joint Director of Education, any other respondentincluding present applicantdid not file any reply.
4. The Court finally decided and allowed the petition vide order dated 3.9.2012. The said order dated 3.9.2012 reads thus:
"1. On 7th August, 2012, following order was passed. "Prima facie, interim order which was passed on 21.10.2002 reads as follows :
"Leave to amend the prayer clause.
Considering that
(i) even according to the respondent authorities the date of issuance of NOC is relevant for deciding the qualification required to be possessed by the candidates for the post of Principal;
(ii) the appointment to the post of Principal in an institution in Olpad taluka of Surat District was approved, although the selected candidate did not possess the UGC qualifications, on the ground that although the appointment was made after the issuance of Government Resolution dated 29.4.2000, the NOC was issued before 29.4.2000;
(iii) in the facts and circumstances of the present case when the NOC dated 29.4.2000 was issued by the Commissioner of Higher Education (Annexure "A"), it did not prescribe that the candidate must possess the UGC qualifications, unlike the NOC dated Page 4 of 20 HC-NIC Page 4 of 20 Created On Sun Aug 20 06:02:14 IST 2017 C/MCA/3327/2014 ORDER 24.5.2000(Annexure "G") in another case; and
(iv) the representative of the DEO was present at the time of interview when the petitioner was selected, the following order is passed : Rule returnable on 3.3.2003.
Till final disposal of the petition, the respondents shall consider the petitioner as having been duly appointed in accordance with the NOC dated 29.4.2000 (Annexure "A" to the petition)and to release the petitioner's salary accordingly.
Direct Service is permitted."
Practically nothing is required to be done. Mr. Shah requests for time. S.O. to 03rd September, 2012".
2. In view of the above, parties will be governed by the interim order.
3. Accordingly, present petition stands disposed of accordingly. Rule made absolute.
4. Liberty to apply in case of difficulty."
5. Now after 2 years, original respondent no.4 has preferred present application. As mentioned above, vide separate order dated 14.9.2016 in Civil Application No. 14249 of 2014, the Court has condoned delay.
6. The applicant seeks review of order dated 3.9.2012 on the ground that the notice issued by the Court in main Petition i.e. Special Civil Application No. 6760 of 2001 and / or the interim Page 5 of 20 HC-NIC Page 5 of 20 Created On Sun Aug 20 06:02:14 IST 2017 C/MCA/3327/2014 ORDER order dated 21.10.2002 passed by the Court in main Petition, were not served to the applicant and the applicant was not aware about the proceedings. The second ground in light of which the applicant has sought review of the order is the allegation that present opponent submitted fabricated/ forged documents on the record of the Court to claim that the Notice issued vide order dated 23.8.2001 and / or the order dated 21.10.2002 were served to the applicant whereas the Notice/ Rule were not served to the applicant and that present opponent represented, by submitting such documents that the Notice and interim order and order admitting the petition were served to the applicant. It is also claimed that even otherwise impugned order is without merits.
7. The allegations by the applicant with regard to alleged nonservice of the order dated 23.8.2001 and/ or order dated 21.10.2002 have been vehemently and vociferously opposed by Page 6 of 20 HC-NIC Page 6 of 20 Created On Sun Aug 20 06:02:14 IST 2017 C/MCA/3327/2014 ORDER present opponent no.1. So as to support his submission and reply that the allegations by the applicant are incorrect, opponent no.1 has placed several documents on record along with affidavit dated 13.10.2016. Of course, in response to the said affidavit dated 13.10.2016, the applicant has, today, tendered affidavit dated 27.06.2017 wherein the assertion by opponent no.1 are denied.
8. I have heard Mr. Chauhan, learned advocate for applicant at length. I have also considered submission by Ms. Vyas, learned advocate for opponent no.1, Ms. Shah, learned advocate for respondent University and learned AGP. I have also taken into consideration documents available on record of the present application.
9. So far as the contention against merits of the order dated 3.9.2012 are concerned, the same are not reproduced in present order in view of the fact that this Court cannot enter into the Page 7 of 20 HC-NIC Page 7 of 20 Created On Sun Aug 20 06:02:14 IST 2017 C/MCA/3327/2014 ORDER contention against merits of the order dated 3.9.2012. The merits or otherwise of order dated 3.9.2012 can be subject matter of appeal and can be considered, examined and decided only by Appeal Court and not by this Court/ Coordinate bench, that too, in exercise of review jurisdiction.
10. This Court's jurisdiction for considering the application seeking review of order is limited and the Court will be concerned only with an error, if any, apparent on face of record of the case.
11. Now so far as the applicant's case for review of order dated 3.9.2012 is concerned, the Court inquired from the applicant to show and pointout error apparent on face of record. In reply, Mr. Chauhan, learned advocate submitted that the order dated 23.08.2001 or order dated 21.10.2002 were not served to the applicant. He submitted that the applicant was not aware about the Page 8 of 20 HC-NIC Page 8 of 20 Created On Sun Aug 20 06:02:14 IST 2017 C/MCA/3327/2014 ORDER pendency of the proceedings of Special Civil Application No. 6760 of 2001 and original petitioner i.e. present opponent no.1 had not informed the applicant about the proceedings and / or about order dated 23.8.2001 and/ or about order dated 21.10.2002. He alleged that the signature on the document dated 1.1.2002 (Annexure IV at page94) is not of Mr. H.B. Patel and said Mr. H.B. Patel was not President of Trust in 2002 and the said document is concocted. He submitted that the said letter does not bear outward number which goes to show that the Trust had not addressed letter dated 1.11.2002. Likewise, the learned advocate for applicant disputed the document dated 21.5.2003. Learned advocate for the applicant disputed the receipt of the communication dated 21.5.2003 from the Office of Commissioner of Higher Education. Learned advocate for applicant disowned the communication dated 26.5.2003 and he claimed that letter addressed by the University to the applicant Trust was not received by the Trust. Page 9 of 20 HC-NIC Page 9 of 20 Created On Sun Aug 20 06:02:14 IST 2017 C/MCA/3327/2014 ORDER
12. In light of such stark and blatant denial - of almost all documents by learned advocate for applicant in respect of documents placed on record by opponent no.1 and in light of the applicant's allegation that the document dated 1.11.2002 was not written/ addressed by the applicant Trust and the signature which purports to be signature of Mr. H.B. Patel is not of Mr. H.B. Patel and that he did not hold office of the President and was not authorised to sign or forward any letter on behalf of Trust, this Court inquired from the learned advocate for the applicant as to whether the applicant has filed any complaint against opponent no.1 for having forged / fabricated or concocted any document and/ or having placed on record of the petition allegedly false, fabricated or concocted document with forged signature.
13. In reply, learned advocate for applicant accepted and admitted that the applicant has not Page 10 of 20 HC-NIC Page 10 of 20 Created On Sun Aug 20 06:02:14 IST 2017 C/MCA/3327/2014 ORDER filed any complaint with any authority including the Police or the Registrar of the Court in reference to the allegations that the opponent fabricated/ forged document and / or has placed fabricated and concocted document with forged signature on record of the petition.
14. This Court also inquired from the learned advocate for applicant that for as many as 10 years (i.e. from 2002 to 2012) applicant Trust continued the applicant without having knowledge about pendency of the petition and/ or about the interim order and despite the fact that the opponent no.1, according to applicant, is not qualified and does not possess qualification to be appointed as Lecturer or Professor much less Principal.
15. In reply learned advocate for applicant could not explain continuation of opponent no.1 in service with the applicant Trust for as many as 10 years, that too allegedly without knowledge of Page 11 of 20 HC-NIC Page 11 of 20 Created On Sun Aug 20 06:02:14 IST 2017 C/MCA/3327/2014 ORDER the pendency of the petition and / or without knowledge of the order dated 21.10.2002. During entire period from 20022012, opponent no.1 received salary on the strength of the interim order. However, the applicant wished away the said fact by claiming that the petitioner received salary under direct payment system. Learned advocate for applicant conveniently disregarded the fact that during entire period of 10 years, the opponent no.1 as Principal of the College, signed several official communications addressed to the Government authorities, Universities including eligibility Certificates of the students and Certificates certifying attendance of the students which enabled them to appear in University examinations and such other official documents and correspondence and the applicant allowed the said process without questioning the continuation of applicant in service despite the fact that according to applicant the opponent did not possess requisite qualification.
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16. On examination of the documents placed on record from Page Nos. 88 to 110, the allegation by the applicant that it was not aware about the petition and/ or the orders dated 23.3.2001 and 21.10.2002 is not palatable. In this context, it is appropriate to consider the document dated 27.6.2003 which was addressed by the University to the petitioner Trust. A glance at the said communication dated 27.6.2003 by the University gives out that the said documents make reference of the pending petition and that therefore the Petitioner's claim that it was not aware about and had no knowledge about the petition, cannot be digested. Even if it is assumed (only to test the bonafides of the petitioner's claim) that the petitioner were not aware about the pendency of the petition, then also after receipt of the letter dated 27.6.2003 the said ground would not survive and the applicant would have no reason or ground to claim ignorance about the petition or the orders inasmuch as upon receipt of the letter Page 13 of 20 HC-NIC Page 13 of 20 Created On Sun Aug 20 06:02:14 IST 2017 C/MCA/3327/2014 ORDER from the University, (which made reference of pending petition), the applicant got the information and then it ought to have made inquiry with regard to petition and the orders and it should have taken appropriate steps for attending the petition and filing reply/ opposing the petition. The petition came to be disposed of by the Court on 3.9.2012 i.e. almost 9 years after University forwarded the said communication dated 27.6.2003 to the petitioner Trust. So as to wriggle out of this situation, learned advocate claimed that applicant had not received said correspondence. Such submissions do not inspire trust or confidence. The applicant has not been able to give any satisfactory reply or explanation with regard to various issues which arise in light of the facts of the case e.g. that the petition remained pending with this Court for almost 10 years and two interim orders came to be passed in the interregnum and the opponent no.1 not only remained in service with the applicant Trust for almost 10 years and during said period Page 14 of 20 HC-NIC Page 14 of 20 Created On Sun Aug 20 06:02:14 IST 2017 C/MCA/3327/2014 ORDER he discharged the duties as Principal of the College and conducted official correspondence with Government authorities/ departments and the University in his capacity as Principal and on behalf of College/ Trust, that too despite the claim that opponent no.1 was, according to claimant's allegation, not duly qualified and did not possess requisite qualification and despite such facts, how could the applicant remain ignorant or unaware about pendency of the petition or above mentioned orders. In this view of the matter said claim cannot be digested or mechanically accepted. Similarly, the communication dated 4.10.2011 which is addressed by the petitioner Trust to the respondent employee also gives out that the Petitioner Trust had called upon the respondent employee to provide details of the petition i.e. Special Civil Application No. 6760 of 2001. According to the respondent employee, the petitioners addressed the said letter dated 4.10.2011 to the petitioners with malafide intention. Even if said Page 15 of 20 HC-NIC Page 15 of 20 Created On Sun Aug 20 06:02:14 IST 2017 C/MCA/3327/2014 ORDER allegations by respondent employee is not taken into account or ignored, the fact remains that the petitioner Trust, in any case and by any standard, was certainly aware about pendency of the petition atleast on 27.6.2003 and in any case 4.10.2011. Thus, from that point onwards until the date on which the petition came to be finally disposed of vide order dated 3.9.2012 i.e. for about 1 year, the Petitioner Trust, despite being aware and though it could have and should have taken appropriate steps ( during the said period of one year), even during that period the petitioner Trust did not take any action with regard to the petition. Even if it is assumed, only with a view to giving benefit of doubt and to test bonafides of the claim of the petitioner, and to consider as to whether there is any base or justification in applicant's allegation that it was not aware about the petition or interim order passed by the Court, then also after receipt of the said claim would not have any platform to stand on, after the letter from Page 16 of 20 HC-NIC Page 16 of 20 Created On Sun Aug 20 06:02:14 IST 2017 C/MCA/3327/2014 ORDER University or atleast after its own letter dated 4.10.2011 and after said two events, the petitioner could have gathered information about the petition and the interim order. Since the petitioner does not have any satisfactory or convincing reply with regard to above mentioned aspects, it becomes clear that the excuse sought to be made out by the Petitioner is after thought which cannot be digested and cannot be accepted and sustained. The communication dated 21.5.2003 from the Office of Commissioner, Higher Education to the Director also does not support and justify the excuse sought to be advanced by the petitioner.
17. Likewise the communication dated 10.10.2011 by Shri A.P. Patel and Shri M.P. Patel Commerce College addressed to the petitioner Trust also belies the excuse sought to be urged by the petitioner. From the said communication dated 10.10.2011 forwarded by above named College to the petitioner Trust, it comes out that the Page 17 of 20 HC-NIC Page 17 of 20 Created On Sun Aug 20 06:02:14 IST 2017 C/MCA/3327/2014 ORDER petitioner Trust was informed vide said letter about the petition as well as the order dated 21.10.2002 passed by the Court in the petition i.e. Special Civil Application No. 6760 of 2001. Almost one year passed after the said communication dated 10.10.2011 and before the Court disposed the petition vide order dated 3.9.2012 and during the said period of almost one year the petitioner did not take any step with regard to the petition. When above mentioned aspects are taken into account along with the fact that at any stage and before any authority the petitioner has never made any grievance with regard to alleged forgery by the respondent teacher or with regard to allegedly concocted documents, the case sought to be urged by the applicant in present Application i.e. about two years after the petition came to be disposed of vide order dated 3.9.2012 and almost 11 years after the Court issued Notice in the petition and almost 12 years the Court passed interim order, cannot be accepted or sustained.
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18. The substantive ground on strength of which the applicant has preferred present application namely that the two interim orders passed by the Court were not served to the applicant and the applicant was not aware about pendency of the petition, do not appeal to the Court and do not inspire confidence, more particularly in light of the document at Page Nos. 88 to 110 and also in view of the fact that the applicant could not offer any explanation with regard to said documents and also with regard to conduct of the applicant during said entire period viz. that though according to applicant, opponent no.1 has placed forged, fabricated or concocted documents on record and that opponent has also forged signature of Mr. Patel, the applicant did not take any action against the opponent no.1, (including lodging of any complaint against opponent no.1), the Court is not inclined to accept allegations by the applicant. The applicant does not deserve to be entertained. Page 19 of 20 HC-NIC Page 19 of 20 Created On Sun Aug 20 06:02:14 IST 2017 C/MCA/3327/2014 ORDER
19. Any legally or even factually sustainable ground to review and recall the order is not made out. The applicant, therefore, deserves to be rejected and it is hereby rejected.
20. However, it is clarified that on the premise that the contention against merits of the order cannot be examined by this Court in review application and such contention can be raised by the petitioner only in appeal before Appeal Court, the Court has not examined any contention against order dated 3.9.2012 on merits and that therefore this order will not come in way of the petitioner in agitating grievance against merits of the order dated 3.9.2012 before Appeal Court.
21. With above clarification and direction, the applicant stands dismissed. Rule is discharged.
(K.M.THAKER, J.) saj Page 20 of 20 HC-NIC Page 20 of 20 Created On Sun Aug 20 06:02:14 IST 2017