Gujarat High Court
District Primary Education vs Manat Khemraj Somaji & 3 on 27 April, 2015
Bench: Jayant Patel, G.B.Shah
C/CA/4824/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL APPLICATION (FOR CONDONATION OF DELAY) NO. 4824 of
2015
In
LETTERS PATENT APPEAL (STAMP NUMBER) NO. 70 of 2013
In SPECIAL CIVIL APPLICATION NO. 1454 of 2012
TO
CIVIL APPLICATION NO. 4892 of 2015
In
LETTERS PATENT APPEAL (STAMP NUMBER) NO. 138 of 2013
With
LETTERS PATENT APPEAL (STAMP NUMBER) NO. 70 of 2013
In
SPECIAL CIVIL APPLICATION NO. 1454 of 2012
TO
LETTERS PATENT APPEAL (STAMP NUMBER) NO. 138 of 2013
In
SPECIAL CIVIL APPLICATION NO. 1830 of 2012
====================================
DISTRICT PRIMARY EDUCATION....Applicant(s)
Versus
MANAT KHEMRAJ SOMAJI & 3....Respondent(s)
====================================
Appearance:
MR RA MISHRA, ADVOCATE for the Applicant(s) No. 1
MR KB PUJARA, CAVEATOR for the Respondent(s) No. 1
MR DHAWAN JAYSWAL, AGP for the Respondent(s) No. 2
====================================
CORAM: HONOURABLE MR.JUSTICE JAYANT PATEL
and
HONOURABLE MR.JUSTICE G.B.SHAH
Date : 27/04/2015
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE JAYANT PATEL) Page 1 of 34 C/CA/4824/2015 ORDER
1. As in all matters, common judgment and order passed by the learned Single Judge is under challenge in the main Letters Patent Appeals, considering the facts and circumstances, we found it proper to consider the applications for condonation of delay as well as the Letters Patent Appeals simultaneously.
2. We may record that Civil Application Nos. 4824 to 4892 of 2015 are for condonation of delay of 101 days in preferring the appeals against the judgment and order passed by the learned Single Judge in the main Special Civil Applications.
2.1 Whereas, the Letters Patent Appeal (Stamp Number) Nos. 70 to 138 of 2013 are directed against the judgment and order passed by the learned Single Judge in the respective Special Civil Applications whereby, the learned Single Judge has allowed the said petitions in terms of the direction issued in the same.
3. We have heard Mr. Mishra, learned advocate appearing for the applicant appellant, for condonation of delay as well as for the merits of the main connected Letters Patent Appeals.
4. Before we consider the aspect of delay, we may record that the Page 2 of 34 C/CA/4824/2015 ORDER present Letters Patent Appeals appear to have been filed on 28/01/2013 but thereafter, as the office objections were not removed, all appeals were dismissed for default on 27/02/2013.
Thereafter, on behalf of the applicant - appellant, no steps were taken, not only for removal of office objections but even for moving the applications for restoration, for a long time, after delay of 635 days, the applications for restoration were filed and as there was delay of 635 days in preferring the applications for restoration, the applications for condonation were also filed being Nos. 1392 to 1459 of 2015 and the applications for restoration were numbered as Misc. Civil Application Nos. 3825 of 2014 to 117 of 2015 and allied matters. The aforesaid applications for condonation of delay as well as Misc. Civil Applications for restoration came up for hearing before this Court on 08/04/2015 and this Court had passed the following order:
"1. It appears that main Letters Patent Appeals with the interim applications therein came to be dismissed on account of nonremoval of the office objections. There is delay of 635 days in preferring the applications for restoration. As such, the delay is substantial. The learned counsel appearing for the appellant states that all office objections shall be Page 3 of 34 C/CA/4824/2015 ORDER removed on or before 17/04/2015 and if the office objections are not removed, the Letters Patent Appeals, thereafter if dismissed by this Court, the appellant shall not object to the same and he undertakes that all office objections shall be removed.
2. Considering the facts and circumstances, we find that uptil now, no process is issued in the Letters Patent Appeals. The merits of the Letters Patent Appeals can be considered at the later stage keeping the rights and contentions of the respondent in the Letters Patent Appeals open that there was delay on the part of the appellant in pursuing the Letters Patent Appeals well in time and pending the said appeals, the rights have altered.
3. In view of the above, without prejudice to the rights and contentions of the respondent in the main Letters Patent Appeals including the delay caused in pursuing the Letters Patent Appeals and allowing the Letters Patent Appeals to remain dismissed for default for a period of 635 days, we find that if the delay is condoned and the main Letters Patent Appeals are restored on condition that all office objections are removed on or before 17/04/2015, the same would meet with ends of justice. Hence, the delay is condoned and the main Letters Patent Appeals are restored on the condition that the applicant Page 4 of 34 C/CA/4824/2015 ORDER appellant shall remove all office objections on or before 17/04/2015 and with the further observation and direction that the office shall list the main Letters Patent Appeals, irrespective of the fact that office objections are removed or not, for hearing on 20th April 2015. All Civil Applications as well as the Misc. Civil Application (Stamp Number) are disposed of accordingly.
3.1 It is also observed that on the aspect of cost to be imposed for the delay in preferring the applications for restoration, it will be open to the Court to consider the said aspect as and when the Letters Patent Appeals are heard for admission."
5. The aforesaid shows that this Court, when condoned the delay of 635 days and permitted restoration so as to enable the applicant to remove the office objections, the rights and contentions in the main Letters Patent Appeals including the aspects of delay in pursuing the Letters Patent Appeals were kept open. It appears that thereafter, office objections are removed and the present applications as well as the Letters Patent Appeals are placed before us for further consideration. As such, there is no sufficient explanation for condonation of delay of 101 days but even if lenient view is taken on the aspects of condonation delay, when Page 5 of 34 C/CA/4824/2015 ORDER we heard Mr. Mishra, learned advocate for the applicant -
appellant on merits of the main Letters Patent Appeals, for the reasons recorded hereinafter, we find that the main Letters Patent Appeals are meritless.
6. Before we further proceed to examine the merits of the Letters Patent Appeals, it has been brought to our notice by learned counsel Mr. Pujara, who is appearing in one of the matters that the State Government, for challenging the very order of the learned Single Judge which is impugned in the present appeals, had preferred appeal being Letters Patent Appeal No. 881 of 2013 in Special Civil Application No. 1454 of 2012 i.e. in respect of only one petitioner and the said Letters Patent Appeal has been heard and decided by the another Division Bench of this Court vide order dated 2021/04/2015 and said appeal, for the reasons recorded by this Court, has been dismissed.
6.1 We may also record that the coordinate bench of this Court, in Letters Patent Appeal No. 881 of 2013, has passed the following order:
Page 6 of 34 C/CA/4824/2015 ORDER"
1. This appeal is filed by the State challenging the judgement of the learned Single Judge dated 14.09.2012. Though by the said judgement, the learned Single Judge disposed of as many as seven writ petitions involving common issues of large number of petitioners, the present letters patent appeal is filed only in case of Special Civil Application No. 1454 of 2012 and that too only against petitioner No.1 out of large number of petitioners in the said petition. The State has, for some strange reason, in the letters patent appeal joined only the petitioner No.1 as a respondent of course along side other original respondents. Though this factor may, at the first blush, seem somewhat technical and the State could have sought permission to correct an apparent error at least insofar Special Civil Application No. 1454 of 2012 is concerned. However, as no letters patent appeals have been filed in rest of the petitions, this issue also as we would discuss later, assumes significance.
2. This letters patent appeal was heard at length for final hearing on 17.04.2015 and kept today for dictation of judgement. At that stage, learned counsel Mr. K.V.Pujara for the respondent No.1original petitioner No.1 brought to our notice that the District Primary Education Officer, whose orders of dismissal Page 7 of 34 C/CA/4824/2015 ORDER were under challenge before the learned Single Judge in these writ petitions, has also preferred letters patent appeals. Such letters patent appeals were filed with delay. Today, another Division Bench of this Court was assigned such proceedings and now, upon being informed that the present letters patent appeal is going on before another bench, has adjourned the appeals alongwith delay condonation applications to 27.04.2015.
3. We notice that thus the same judgement of the learned Single Judge is challenged by the State Government in the present letters patent appeal and by the District Primary Education Officer in other bunch of appeals which are placed before another court. Ordinarily, we would have placed the issue before the Hon'ble Acting Chief Justice, if found appropriate to combine both sets of proceedings before a single Court. However, the present letters patent appeal was admitted on 22.07.2013 and, as noted, was already heard finally. On the other hand, the letters patent appeals filed by the District Primary Education Officer are still at the stage of condonation of delay. Under the circumstances, we would prefer to deliver our judgement.
4. The facts are rather long. The history of this litigation is chequered. We may record in brief only Page 8 of 34 C/CA/4824/2015 ORDER the relevant facts. All the petitioners, of Special Civil Application No. 1454 of 2012 and other proceedings disposed of by the learned Single Judge in the impugned common judgement, were appointed as primary school teachers in various Government Schools in the District of Junagadh. In the writ petitions, they had challenged the showcause notices issued to them why their services should not be terminated on the ground of alleged irregularities at the time of their appointments. In absence of any interim protection by the Court, the authorities proceeded to consider the objections of the petitioners and also passed the final order of termination. The writ petitions were, therefore, suitably amended challenging such terminations also. The learned Single Judge, by the impugned judgement, allowed all the petitions and set aside the orders of termination.
5. After noting this brief legal controversy involved in the writ petitions, we may peruse the facts a little more closely.
On 02.01.1990, the Education Department of the State Government decided to fill up 4900 vacancies of scheduled tribe primary school teachers which had mounted to such a large number on account of non availability of qualified candidates belonging to such category. Over a period of time, on account of such nonavailability, the backlog vacancies reached such a Page 9 of 34 C/CA/4824/2015 ORDER large number. The State authorities, therefore, in exercise of powers under Rule 4 of the Gujarat Panchayat Services (Recruitment of Primary Teachers) Rules, 1970 (hereinafter to be referred to as 'the Rules of 1970') decided to relax the qualifications. Rule 4 of the Rules of 1970 prescribes qualification of candidates. The essential educational qualification being, having passed anyone or more of the qualifying examination specified in Schedule I to the Rules. Schedule I included secondary certificate examination, primary school certificate examination with certificate of primary teachers certificate examination and Lokshala certificate examination alongwith a certificate of primary teachers certificate examination. Proviso to Rule 4 however, provided that the committee may, if the candidates fulfilling the qualifications of age and education were not available, relax the qualifications with prior approval of the State Government. As per the circular dated 02.01.1990, the educational qualifications were relaxed subject to certain conditions.
Advertisement was issued on or around 13.02.1990 by the District Primary Education Officer, Junagadh in the local news papers inviting candidates to appear at the oral interview who fulfilled such relaxed requirements. The interviews were fixed during FebruaryMarch 1990, as mentioned in the Page 10 of 34 C/CA/4824/2015 ORDER advertisements. All the petitioners appeared during such interviews having qualifications of SSC pass. The merit list was prepared on the basis of the performance in such examination and no weightage was given to the socalled oral interview.
During the period between August 1990 and March 1991, the petitioners were issued appointment orders. One of the conditions of appointment was that, they would undertake the PTC training at their cost as and when sent by the employer. All the petitioners joined their duties at their respective assigned schools in terms of such appointment offers.
On 09.01.1996, show cause notices came to be issued against the petitioners calling upon them why their services should not be terminated since they were appointed without fulfilling minimum educational criteria by committing irregularities. All the petitioners replied to the show cause notices and raised objections against the proposed termination pointing out that they were duly selected by the selection panel. Ignoring such objections, on or around 12.10.2000, identically worded large number of termination orders came to be issued against all the petitioners purportedly under Section 24(1) of the Bombay Primary Education Act which pertains to power to take disciplinary action.
Page 11 of 34 C/CA/4824/2015 ORDER6. These aggrieved petitioners, therefore, filed Special Civil Application No. 11317 of 2000 and connected petitions (Mannat Khemraj Somaji vs. District Primary Education Officer). By a judgement dated 27.10.2000, learned Single Judge allowed all these petitions. The petitioners were to be reinstated with backwages. The learned Judge was of the opinion that the authority had exercised power under Section 24(1) of the Bombay Primary Education Act which is in the nature of disciplinary action. The order was, therefore, not simplicitor a termination order but a penal one. Such order could not have been passed without affording proper opportunity of hearing to the petitioners. Primarily, on this ground, the writ petitions were allowed.
7. The District Primary Education Officer preferred Letters Patent Appeal No. 197 of 2001 only against some of the petitioners challenging the said judgement of the learned Single Judge. On 08.05.2003, the letters patent appeal was, withdrawn in following terms:
" Learned counsel Mr. Mishra for the appellants in all these appeals states that he has instructions from the appellants in all these appeals that the appellants will hold full fledged regular inquiry against all the respondentsteachers regarding their so called alleged malpractices in obtaining the appointments by practicing fraud. Therefore, he does not want to Page 12 of 34 C/CA/4824/2015 ORDER proceed further. In that view of the matter, all these appeals stand disposed of and the interim relief granted earlier against grant of back wages, on civil applications, which have been already disposed of, stands vacated in all cases. Civil Application No. 3141 of 2001 also stands dismissed."
Once again, on 12.04.2004, showcause notices came to be issued against all the petitioners which contained more elaborate facts than the previous showcause notices, primarily alleging irregularities in the selection process at the relevant time which ultimately culminated into appointment orders in favour of the petitioners. The petitioners filed their replies denying the allegations contending further that they have been working since many years. First set of showcause notices were issued after five years of their appointments. Even after the learned single Judge dismissed the terminations on the ground of non hearing, considerably long time had passed before the present showcause notices were issued. They asserted that they had appeared in the interviews conducted pursuant to the advertisement issued for filling up backlog vacancies for ST candidates. They all possessed the educational qualification as per the relaxation granted.
Not convinced by such reply, the District Primary Education Officer issued final showcause notices on or around 26.04.2004 repeating the same allegations Page 13 of 34 C/CA/4824/2015 ORDER giving to the petitioners, a final opportunity to remain present with necessary materials, if they so desire.
8. At that stage, the petitioners filed Special Civil Application Nos. 5485 and 5639 of 2004 challenging such notices. The learned Single Judge protected the petitioners against termination. Eventually, on 31.03.2005, the authorities conveyed to the Court that such showcause notices would be withdrawn, however, with liberty to start fresh proceedings for taking appropriate disciplinary action against the petitioners. Counsel for the petitioners contended that such fresh action would not be permissible. However, the single Judge, without going into the validity of such contention, disposed of the writ petitions on the ground that when the very foundation of the writ petitions did not survive, there was no reason to entertain the petitions any longer.
It appears that appointment orders were issued in favour of several persons (not the petitioners) who had never appeared for the interviews. Appointments of such persons were terminated by the authorities. Though the petitioners were not part of the said group of teachers, to complete the sequence of events, it would be necessary to note the developments in this respect. These teachers challenged their terminations by filing Special Civil Application No. 3141 of 1993 Page 14 of 34 C/CA/4824/2015 ORDER and connected petitions. This litigation went through layers of Court proceedings. It is not necessary to outline the details of all of them. Suffice it to note that in Special Civil Application No. 10801 of 2003 and connected petitions, learned Single Judge(M.R.Shah, J) on 25.03.2009, dismissed the group of petitions following the judgement of the earlier learned Single Judge (R.M.Doshit, J.) dated 01.10.2004 pertaining to the same group. Thus, the writ petitions, filed by those school teachers who were appointed though never appeared in the interviews, came to be dismissed. Against this judgement of the learned Single Judge, the teachers preferred Letters Patent Appeal No. 2051 of 2010 and connected appeals. Such letters patent appeals were also dismissed by a judgement dated 06.05.2011. Reference was made to the judgement of the Single Judge in case of Mannat Khemraj Somaji and ors vs. State of Gujarat through Secretary and ors. in Special Civil Application No. 18219 of 2003 and it was opined that the said decision does not lay down the correct law and the same was overruled. When we refer to the litigation directly involving the petitioners of this group of petitions this aspect would assume some significance.
Coming back to the present petitions, for merely seven years after withdrawing the show cause notices with Page 15 of 34 C/CA/4824/2015 ORDER liberty to issue fresh ones, no action was taken by the authorities. Though while conveying to the Court that showcause notice would be withdrawn, the authorities had reserved the right to initiate fresh proceedings for disciplinary action. On 24.01.2012, Director of Primary Education instructed the District Primary Education Officer, Junagadh to terminate services of all the petitioners. This communication relied upon and referred to the decision of the Division Bench dated 06.05.2011 in Letters Patent Appeal No. 2051 of 2010 and connected appeals.
The petitioners, thereupon, filed the present petitions and, at that time, challenged the said communication dated 24.01.2012, primarily contending that these petitioners had no concern with the controversy involved in Letters Patent Appeal No. 2051 of 2010 and connected appeals. They were not parties to the said proceedings. The observations made in the judgement of the Division Bench cannot be made the foundation for initiating action against them and that too at this belated stage.
As noted earlier, the authorities proceeded further in this regard in absence of any interim protection by the High Court. On 03.01.2012, the District Primary Education Officer issued notice proposing their termination. The petitioners, therefore, amended the Page 16 of 34 C/CA/4824/2015 ORDER writ petitions and challenged the said notices. During the pendency of such proceedings, the District Primary Education Officer passed orders on 03.03.2012 terminating the services of all the petitioners. These termination orders were also challenged in the writ petitions through amendments.
9. These petitions came to be allowed by the learned Single Judge by the impugned judgement, as already noted. The learned Single Judge was of the opinion that such belated action at the hands of the authorities was not justified. A detail note of the proceedings was taken. It was eventually concluded that the action was simply not legal. The learned Single Judge therefore, allowed the petitions in following terms:
"50. For the foregoing reasons, the petitions are allowed;
(i) The impugned order dated 23.12.2011 passed by respondent no.2, the showcause Notice dated 30.01.2012 issued by respondent no.3, the order of dismissal dated 03.03.2012 and the order cancelling the interdistrict transfers dated 23.12.2011 are quashed and set aside.
(ii) The respondents are directed to reinstate the petitioners on their original post and at the place where they were last serving immediately prior to the passing of the orders of dismissal within a period of FIFTEEN DAYS from today.Page 17 of 34 C/CA/4824/2015 ORDER
(iii) The period during which the petitioners had remained out of service shall be considered as continuous for all purposes and they shall be paid regular salary.
(iv) The arrears of salary shall be paid within a period of ONE MONTH from the date of their reinstatement in service.
(v) The respondents are directed to retransfer those petitioners, who have been transferred pursuant to the order dated 24.01.2012, to the places where they were originally posted prior to the orders of transfer, within a period of TWO MONTHS from the date of reinstatement."
10 Learned AGP Mr. Pandya vehemently contended that the learned Single Judge committed serious error in allowing the writ petitions. The original petitioners were appointed through a selection process which was full of irregularities. It was open to the authorities therefore to correct such irregularities by following proper procedure. Mere efflux of time would not make the appointments regular. He placed heavy reliance on the observations and directions of the Division Bench in the judgement dated 06.05.2011 in Letters Patent Appeal No. 2051 of 2010.
11. On the other hand, learned counsel Mr. K.V.Pujara for respondents No.1 submitted that the appointments of the petitioners were after following the proper procedure. The authorities found that large number of vacancies in ST category remained unfilled Page 18 of 34 C/CA/4824/2015 ORDER leaving a backlog of 4900 primary school teachers. Due to such extraordinary circumstances, educational qualifications were relaxed. All the petitioners possessed the educational qualifications, so prescribed. They responded to public advertisement and attended the interviews. The selection list was prepared on the basis of marks secured in the SSC examination. No weightage was given to oral interview. Nothing is pointed out by the authorities which would suggest that the petitioners were not meritorious candidates or were parties to or beneficiaries of the alleged irregularities.
12. Counsel further submitted that the appointment orders were issued in the years 199091. Since then all the petitioners are continuously working on such posts. After 25 years of service, they cannot be terminated. Counsel contended that at all stages, the authorities had taken unduly long time in initiating and pursuing the action.
13. Counsel lastly submitted that the observations of the Division Bench in judgement dated 06.05.2011 in Letters Patent Appeal No. 2051 of 2010 should not be seen in isolation. The present petitioners were not parties to such proceedings. No directions were issued by the Division Bench against these petitioners. In absence of any representation from these petitioners, Page 19 of 34 C/CA/4824/2015 ORDER crucial facts were not brought to the notice of the Division Bench. The Director of Primary Education, therefore, wholly misconstrued the judgement and directed initiation of the proceedings against the petitioners.
14. The letters patent appeal must fail on several grounds. First and foremost, this appeal is filed only against one of the petitioners in one of the petitions out of a group of petitions disposed of by the learned Single Judge by a common judgement. There were as many as 111 petitioners in all, who were the beneficiaries of the said judgement. State Government has preferred appeal in case of only one of them. No explanation has been rendered why one out of more than 100 petitioners was chosen for this special treatment. Special Civil Application No. 1454 of 2012 itself contained large number of petitioners. Without any explanation, the State cannot follow pick and chose policy. The factual and legal parameters were common in case of all petitioners. The State cannot file appeal at random against some and not the rest. There is no explanation why the appeal was filed only against one teacher. Even if it was a mere oversight, all throughout the pendency of the letters patent appeal and hearing which took place from time to time, no effort was made to seek amendment in this letters patent appeal and to file appeals in rest of the Page 20 of 34 C/CA/4824/2015 ORDER cases. The present appeal was filed sometime in February 2013. More than two years have passed without any further action on the part of the State in making amends. We have, therefore, proceeded on the basis that the State has perused this litigation against one of the petitioners and abandoned against the rest. This approach would simply not be permissible. In case of K.C.Bajaj and ors vs. Union of India and ors. reported in (2014) 3 SCC 777 it was observed that the State cannot follow pick and chose policy for carrying an issue further from amongst similarly suited employees.
15. There are, however, far more substantive reasons why this appeal must fail. We have noted, at some length, two parallel litigations one involving those who were appointed as primary school teachers without ever having appeared at the interviews. The other pertained to the petitioners who admittedly had appeared during such interviews and were placed in the select list on the basis of the marks secured by them in the SSC examination. In their case, their appointments were sought to be terminated on the ground of irregularities in assessment of vacancies and granting appointment orders. We also notice that in case of former group, their challenge failed at all stages. After going through different stages of litigation, finally, the learned Single Judge [Ms. Page 21 of 34 C/CA/4824/2015 ORDER R.M.Doshit, J.] on 01.10.2004 dismissed Special Civil Application No. 18219 of 2003. It appears that, no further challenge was carried against this judgement. Few other petitions being Special Civil Application No. 10801 of 2003 and connected petitions remained pending for sometime till finally when another learned Single Judge [M.R.Shah, J.] on 25.03.2009, followed the earlier judgement dated 01.10.2004 by [R.M.Doshit,J.] and dismissed such petition as well. Against this judgement dated 25.03.2009, aggrieved petitioners filed letters patent appeals. Such letters patent appeals were dismissed by the Division Bench by the judgement dated 06.05.2011.
16. On the other hand, in case of all the present petitioners, the action of termination of their services came to be set aside by the learned Single Judge [H.K.Rathod,J.] by his judgement dated 27.12.2000 [Mannat Khemraj Somaji ](supra). This was primarily on the ground that the penal action was taken without affording reasonable opportunity of being heard. Against such judgement of the learned Single Judge, letters patent appeals were filed but, later on, withdrawn on 08.05.2003 stating that the authorities would hold fullfledged regular inquiry against the teachers regarding their alleged mal practice in obtaining appointments. Once again, after long gap of time, showcause notices were issued, Page 22 of 34 C/CA/4824/2015 ORDER which were also withdrawn, as recorded in the order dated 31.03.2005 by the Single judge in Special Civil Application No. 5484 of 2004 and connected petitions, however, with liberty to start fresh proceedings for taking disciplinary action.
17. If the authorities desired to pursue any further action against the petitioners, they had to initiate the proceedings within a reasonable period after conveying to the Court on 31.03.2005 that they would withdraw the notices with a liberty to start fresh proceedings. Though no time limit was provided in the said order, such liberty would not enable the authorities to initiate fresh action after indefinite period of time. If the authorities were of the opinion that for some alleged irregularities or misconduct, any disciplinary action had to be initiated against all or any of the petitioners, the same had to be done within a reasonable period after withdrawing the existing proceedings with a liberty to start fresh proceedings. Admittedly, in the present case, this was not done. The matter remained dormant at the stage of the authorities for nearly seven years between 31.03.2005 i.e. the date of order in Special Civil Application No. 5484 of 2004 and connected petitions and 30.01.2012 when fresh showcause notices were issued. There was total silence at the end of the authorities with respect to these issues. It can thus be seen that the State Page 23 of 34 C/CA/4824/2015 ORDER authorities abandoned the action and envisaged no further steps though such liberty was reserved by them as conveyed to the High Court.
18. The reason for initiation of present action after a gap of seven years also is not difficult to discern. We have on record the communication dated 24.01.2012 from the Director of Primary Education instructing the District Primary Education Officer, Junagadh to terminate the services of the petitioners by passing speaking orders after completing the procedure in accordance with rules. It was, under these instructions that the said showcause notices dated 30.01.2012 came to be issued. The communication dated 24.01.2012 itself makes it clear that the same was based on the observations and directions of the Division Bench of the High Court in the judgement dated 06.05.2011 in Letters Patent Appeal No. 2051 of 2010 and connected appeals. This action is faulty for two reasons. Firstly, the Director of Primary Education has given directions to the District Primary Education Officer to terminate the services of the concerned teachers of course after passing of speaking order and following the procedure established under the rules. However, he has not given any discretion to the District Primary Education Officer whether to pass such an order of termination or not no matter what the representations by the petitioners be. The District Page 24 of 34 C/CA/4824/2015 ORDER Primary Education Officer was thus, under the dictate of his higher authority to take a particular action irrespective of the materials that may be brought on record. The observations for following the procedure which would include giving reasonable opportunity of being heard was thus a mere formality and eyewash. It is well settled that, the authority vested with the powers under statutory rules must exercise such powers uncontrolled by any of the outside agency or authority including a higher officer in the hierarchy of government mechanism. Secondly, the directives of the Director of the Primary Education would render the principles of natural justice wholly redundant since no matter what was defense of the teachers, the Primary Education Officer was under a direction to terminate their services. In case of Dipak Babaria and anr vs. State of Gujarat and ors. reported in (2014) 3 SCC 502 the Supreme Court relying upon Constitution Bench decision in case of The State of Punjab and anr vs. Hari Kishan Sharma reported in AIR 1966 SC 1081 observed as under:
"66. As noted earlier, the State Government is an appellate authority under sub section(3) of Section89 A, and it could not have given a direction to the Collector who was supposed to take the decision under his own authority. We may profitably refer to a judgement of a Constitution Bench in State of Punjab v. Hari Kishan Sharma. In that matter, the respondent desired to construct a cinema at Jhajhar. He submitted an application and under the orders of the State Page 25 of 34 C/CA/4824/2015 ORDER Government all applications were directed to be referred to the State Government. Therefore, though this application was initially accepted, the SDO informed him that the application was rejected. He appealed to the State Government and the appeal was rejected which had led to the petition in the High Court. The Punjab High Court framed the question as to whether the State of Punjab was justified in assuming the jurisdiction which was conferred on the licensing authority be the Act. The Supreme Court held in para 12 of the judgement, that the course adopted by the State of Punjab had resulted in the conversion of the appellate authority into the licensing authority. That was not permissible, and so it is in the present case. The reliance by the State Government on the overall control of the State under Section 126 of the Tenancy Act cannot be used when in the instant case the power is with the Collector and the appellate power is with the State Government. The power under Section 126 can be utilised for giving general guidelines, but not for interference or giving directions in individual cases."
19. Secondly, even the Division Bench of this Court in the said judgement dated 06.05.2011 did not provide for automatic termination of services of the teachers. In such litigation, the controversy was with respect to the action of the authorities in terminating services of those appointees who had never appeared in the interviews but were still granted appointments. Their cases were vitally different from the cases of the present petitioners, who had admittedly appeared at the interviews. While deciding such an issue, the Division Bench did comment on the decision of the learned Single Judge in case of Mannat Khemraj Page 26 of 34 C/CA/4824/2015 ORDER Somaji and ors vs. State of Gujarat through Secretary and ors. (supra) dated 27.12.2000 (rendered by H.K.Rathod, J] and opined that the Court was not persuaded to agree with the decision in case of Mannat Khemraj Somaji (supra) and it did not lay down the correct law of facts. The Bench proceeded to overrule the decision. Let us examine what would be the effect of these observations and directions by the Division Bench on the present petitioners. Surely, the judgement of the Division Bench did not apply to the petitioners since they were not parties to the said litigation. The fact, that the decision in case of Mannat Khemraj Somaji and ors vs. State of Gujarat through Secretary and ors.(supra), was carried in appeal but the appeal was withdrawn for initiating fresh proceedings, was, therefore, not brought to the notice of the Division Bench. This factor may not be very significant since before the Division Bench, the authorities had stated that they would be starting fresh proceedings for taking disciplinary action against the concerned teachers. Even in absence of these petitioners, it was always open to the Division Bench to disagree with the view of the learned Single Judge and to overrule the said judgement as was done in the present case. Effect of such overruling would be that, all the governmental authorities in the State as well as the Court would be guided by the ratio laid down by the Division Bench and apply the same in all cases Page 27 of 34 C/CA/4824/2015 ORDER arising before them. However, this declaration that the decision in case of Mannat Khemraj Somaji and ors vs. State of Gujarat through Secretary and ors.(supra) did not lay down correct law would not apply automatically as to nullify any appointments in case of any other teachers without appropriate proceedings if permissible being undertaken by the authorities. In other words, effect of overruling of the judgement in case of Mannat Khemraj Somaji and ors (supra) cannot be applied in vacuum. There had to be proceedings before the authorities to do so. Further, the learned Single Judge in case of Mannat Khemraj Somaji and ors (supra) had quashed the terminations on the ground of insufficient opportunity of being heard. The overruling of the said decision would not automatically mean that services of all the petitioners should be terminated irrespective of the materials on record. The decision in case of Mannat Khemraj Somaji and ors (supra) was overruled and not set aside. If the authorities had not decided to pursue the question of legality of appointments of the petitioners after reserving such liberty before the High Court for seven long years, merely on account of the decision of the Division Bench they could not have reopened the old issues which by their conduct they demonstrated, they had abandoned.
20. The petitioners have been in active Page 28 of 34 C/CA/4824/2015 ORDER services actually discharging their duties as primary teachers since the year 1990. 25 years have passed since then. 25 years is a period, when ordinarily, most government servants would prepare for retirement. We are still at the stage of deciding the validity of their initial appointments. Such controversy must be allowed to rest finally at the stage.
21. For all these reasons, letters patent appeal is dismissed."
6.2 As such, all issues which are contended by Mr. Mishra, learned counsel for the applicant - appellant herein, stand covered and answered in the abovereferred decision by this Court in Letters Patent Appeal No. 881 of 2013. It is hardly required to be stated that if the coordinate bench of this Court, after examining the very common judgment and order passed by the learned Single Judge, has found it proper not to interfere with the order passed by the learned Single Judge, the said decision would hold the field and would be binding to another Division Bench of this Court unless any different circumstances are satisfactorily demonstrated before the Court leading the subsequent Division Bench of this Court to take a different view.
Page 29 of 34 C/CA/4824/2015 ORDER6.3 However, Mr. Mishra, learned counsel for the applicant -
appellant contended that the view expressed by the earlier bench of this Court in case of Mannat Khemraj somaji and Others referred to herein above in Special Civil Application No. 18219 of 2003 and the subsequent observations made by the another Division Bench of this Court in Letters Patent Appeal No. 2051 of 2010 and allied matters were also holding the field but as submitted by him, when Letters Patent Appeal No. 881 of 2013 has been decided, the effect of earlier observations of the Division Bench of this Court in case of Mannat Khemraj Somaji and Others has been diluted. As per Mr. Mishra, learned counsel for the applicant - appellant, different view could not have been taken. He further submitted that in the present case, it is not a matter where one person is picked up for preparing the appeal but the appeals have been preferred in respect of all cases of the petitioners. He also contended that in case of fraud, the observance of principles of natural justice has no role to play and therefore, if fraud was played and the appointments were secured by fraud, there would not be any question of fullfledge inquiry or observance of principles of natural justice and therefore, the learned Single Judge has committed error to that extent, which might lead this Court to take a different view than Page 30 of 34 C/CA/4824/2015 ORDER as was taken in the abovereferred Letters Patent Appeal No. 881 of 2013.
6.4 It is true that one of the contentions in Letters Patent Appeal No. 881 of 2013 considered by this Court was that the State cannot pick and choose any particular case for giving a different treatment but it is not a matter where the ultimate decision for dismissal of the Letters Patent Appeal is based on that contention only. After deprecating the practice on the part of the State to apply pick and choose method to prefer the appeal, this Court, in the said decision, has further proceeded to examine the merits of the contentions raised on behalf of the State. When this Court considered the contentions in the Letters Patent Appeal No. 881 of 2013, it was found that the observations made in the earlier decision in case of Mannat Khemraj Somaji and Others, would not operate adverse against the interest of the petitioners concerned since they were not the parties to the proceeding.
Further, this Court in its decision in Letters Patent Appeal No. 881 of 2013 took a specific note for the delay caused in initiation of action on the alleged ground. By now, the teachers concerned, who were already offered appointment and who have resumed the duty, have competed about 25 years of service and Page 31 of 34 C/CA/4824/2015 ORDER at the fag end of the carrier if the action is allowed to be initiated, that too without observance of the principles of natural justice by fullfledged inquiry, it would certainly operate adverse frustrating their rights accrued to them by discharging duty for all such years. This Court may record that, had it been a case of fraud and the Court on merits found that fraud was played and employee concerned was party to the fraud and the action taken well in time or within a reasonable time, the matter might stand on different footing and on different consideration but even in case of alleged fraud when one party to the proceeding is employer, allows the employee concerned to take benefit of the employment already offered by not taking action for a long time and resultantly the rights accrued of the employee concerned, the employer cannot take action at any point of time on the alleged ground of fraud, that too without establishing the fraud and without holding any inquiry by observance of principles of natural justice. The action, if any, not initiated within a reasonable time, it might operate as regular appointment and the question of implied waiver may arise. In any case, in absence of any fullfledge inquiry, as such, an action, that too after a long period and by now 25 years is over, cannot be permitted to be reopened on the ground as sought to be canvassed.
Page 32 of 34 C/CA/4824/2015 ORDER7. In view of the above, we do not find that a different view on merits deserves to be taken than was taken by this Court in Letters Patent Appeal No. 881 of 2013 preferred by the State against the very judgment and order of the learned Single Judge which is impugned in the present appeals. It is a matter of record that the judgment and order of the learned Single Judge was common for all the petitioners and one Division Bench has found earlier no case for interference and there are no peculiar circumstances leading this Court to take a different view and hence, the main appeals can be said as meritless.
Page 33 of 34 C/CA/4824/2015 ORDER8. In view of the above, we do not find any useful purpose would be served in condoning the delay and to consider the appeals at the later stage. Hence, the present applications for condonation of delay as well as the Letters Patent Appeals shall stand disposed of.
[ Jayant Patel, J. ] [ G. B. Shah, J. ] hiren Page 34 of 34