Gujarat High Court
For Approval And Signature vs State Of Gujarat & 3 on 12 September, 2017
Author: K.M.Thaker
Bench: K.M.Thaker
C/SCA/28500/2007 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 28500 of 2007
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE K.M.THAKER Sd/-
1 Whether Reporters of Local Papers may be allowed Yes
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of No
the judgment ?
4 Whether this case involves a substantial question of No
law as to the interpretation of the Constitution of
India or any order made thereunder ?
BHABHOR BACHUBHAI KALABHAI....Petitioner(s)
Versus
STATE OF GUJARAT & 3....Respondent(s)
Appearance:
MS MAMTA R VYAS, ADVOCATE for the Petitioner(s) No. 1
DS AFF.NOT FILED (R) for the Respondent(s) No. 2 , 4
MR VR JANI AGP for the Respondent(s) No. 1
MR HARSHAD K PATEL, ADVOCATE for the Respondent(s) No. 3
CORAM: HONOURABLE MR.JUSTICE K.M.THAKER
Date : 12/09/2017
ORAL JUDGMENT
1. Heard Ms. Mamta R. Vyas, learned advocate for the Page 1 HC-NIC Page 1 of 15 Created On Sun Oct 01 18:46:41 IST 2017 C/SCA/28500/2007 JUDGMENT petitioner and Mr. V.R. Jani, learned AGP for the respondent Nos. 1 and 2. No one has appeared for the respondent Nos. 3 and 4.
2. In present petition the petitioner has prayed, inter alia, that:-
"8(A) Your Lordships may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction quashing and setting aside the order dtd. 8.2.2006 as well as the order dtd. Nil of 2007 sent along with letter dtd. 24.9.2007 and further be pleased to hold that the petitioner is duly selected Principal and further be pleased to direct the District Education Officer to release the salary of the petitioner since 8.2.2006 and to pay the same along with interest and further be pleased to direct the District Education Officer to pay the salary under the District Payment Scheme to the petitioner regularly."
3. Since, the petitioner's appointment as Principal of respondent No. 4 school came to be cancelled by the respondent no. 2, the petitioner felt aggrieved and filed present petition.
3.1 The order cancelling petitioner's appointment as Principal and the approval granted to the said selection were challenged by the President of the trust in Special Civil Application No. 6058 of 2006 on the ground that the said order was passed without hearing trust / trustees.
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3.2 The High Court set aside the order and remanded the matter for fresh hearing and fresh order. 3.3 Consequently respondent no. 2 passed another order whereby the respondent no. 2, for the reasons recorded in the order, reiterated his earlier decision i.e. the decision to canel the petitioner's appointment order. 3.4 The petitioner felt aggrieved by the said order and filed present petition.
4. A brief retreat through the events which led to the challenge against the order passed by respondent no. 2 on 24.9.1997 will be helpful in appreciating the controversy. 4.1 From the record it has emerged that after petitioner acquired qualification for being appointed as Asst. Teacher he got selected and was appointed as Asst. Teacher in respondent no. 4 School in August 1997. 4.2 Subsequently somewhere in 2005 post of principal in Page 3 HC-NIC Page 3 of 15 Created On Sun Oct 01 18:46:41 IST 2017 C/SCA/28500/2007 JUDGMENT respondent No. 4 school fell vacant. Therefore the trust which runs and manages respondent no. 4 school started the process for selection and appointment of principal. 4.3 The petitioner applied for the said post of principal. It appears that somewhere in November - December 2005 the selection process including interview was conducted. 4.4 According to the case of the petitioner, he succeeded in the interview and he was selected for the post of principal in the respondent no. 4 school. 4.5 The petitioner has also claimed that the respondent no. 2 approved the selection process and the decision of the trust of selecting / appointing the petitioner to the post of principal.
4.6 Accordingly upon approval from the respondent no. 2, the petitioner came to be appointed as principal in respondent no. 4 school.
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4.7 However, within few days some of the trustees opposed the selection process and approached the respondent no. 2 with the grievance that the said selection process was not conducted in accordance with applicable rules and that the selection of the petitioner was irregular and the said selection / appointment should be cancelled.
4.8 The respondent no.2 considered said grievance and objection by group of trustees and he decided to cancel the approval granted earlier. The respondent no. 2, therefore, passed order dated 8.2.2006 and cancelled the approval granted to the selection / appointment of present petitioner as principal in respondent no. 4 school. 4.9 Consequently the petitioner's selection / appointment as principal came to be cancelled / withdrawn by the respondent no. 2 vide his order dated 8.2.2006. 4.10 The President and other trusties felt aggrieved by the order dated 8.2.2006 passed by the respondent no. 2.
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Therefore, President of the trust filed above mentioned Special Civil Application No. 6058 of 2006 and challenged order dated 8.2.2006 passed by the respondent no. 2. 4.11 The High Court, vide order dated 13.3.2007 in Special Civil Application No. 6058 of 2006, set aside the order dated 8.2.2006 on limited ground. The relevant part of the said order dated 13.3.2007 reads thus:-
"Therefore, according to my opinion, since the action or decision has been taken by the School Management which has been approved by the authority and that order of approval has been cancelled without giving any opportunity to the School Management, District Education Officer has violated the basic principles of natural justice while passing order dated 8/2/2006. Therefore, only on that ground, without considering the matter on merits, the order dated 8/2/2006 which has been against the principle of natural justice is required to be set aside. It is not the case of any of Respondents 5 to 14 that before passing order dated 8/2/2006 District Education Officer has given reasonable opportunity of hearing to petitioner School Management.
In result, the order dated 8/2/2006 passed by the District Education Officer, District Dahod, Dahod is hereby quashed and set aside with a direction to the District Education Officer, District ? Dahod, Dahod to decide the afresh whether approval granted by the order dated 6/2/2006 is required to be cancelled or not, after giving reasonable opportunities of hearing to the petitioner, respondent no.4, respondent no. 5 to 14 within a period of four months from the date of receiving the copy of this order."
5. At this stage it is pertinent to note that despite the fact that by the said order appointment of the petitioner as principal was cancelled and actually the petitioner would be the affected person, the petitioner had not Page 6 HC-NIC Page 6 of 15 Created On Sun Oct 01 18:46:41 IST 2017 C/SCA/28500/2007 JUDGMENT challenged said order dated 8.2.2006 until the President of the Trust Challenged the order dated 8.2.2006. 5.1 High Court considered the grievance of the petitioner in Special Civil Application No. 6058 of 2006 and upon reaching to the conclusion that said order dated 8.2.2006 was passed without hearing trust and President / other trustees, High Court considered it appropriate to set aside the order dated 8.2.2006 passed by the respondent no. 2 and therefore the High Court passed aforesaid order dated 13.3.2007 5.2 Consequently on the limited ground viz. that the order dated 8.2.2006 was passed in breach of principles of natural justice, and without entering into merits and propriety of the order dated 8.2.2006, High Court set aside the order dated 8.2.2006.
6. At this stage it is pertinent to note that in meanwhile i.e. from 6.2.2006 until High Court passed order dated 13.3.2007, the petitioner seems to have continued to act Page 7 HC-NIC Page 7 of 15 Created On Sun Oct 01 18:46:41 IST 2017 C/SCA/28500/2007 JUDGMENT as principal of the school.
7. In this context it is also relevant to note that while passing order dated 13.3.2007 in Special Civil Application No. 6058 of 2006 High Court also directed that:-
"Meanwhile, it is directed to the petitioner and respondents to maintain existing status quo till the matter will decide by the District Education Officer.
This Court has passed aforesaid order without entering into the merits of the matter, therefore, District Education Officer has to decide the matter independently without influenced by order of this Court. Rule is made absolute to aforesaid extent."
8. The petitioner claims that in view of the said order he continued to work as principal even after 13.3.2007. 8.1 It appears that after order dated 13.3.2007 in Special Civil Application No. 6058 of 2006 and in light of the direction passed by the High Court vide said order, the respondent no. 2 initiated process of rehearing so as to pass fresh order as directed by High Court. 8.2 Thereafter the respondent no. 2 passed order dated 24.9.2007 whereby the respondent no. 2 reiterated the decision taken vide order dated 8.2.2006 i.e. cancelling approval in respect of the petitioner's appointment as Page 8 HC-NIC Page 8 of 15 Created On Sun Oct 01 18:46:41 IST 2017 C/SCA/28500/2007 JUDGMENT principal in the respondent No. 4 school. 8.3 In this context it is relevant to note that during the hearing before said respondent No. 2, 12 trustees out of total 15 trustees remained present. The respondent No. 2 has recorded that according to change report, 3 trustees have died and the board comprised 12 trustees at the relevant time.
8.4 What is pertinent to note is the fact that out of 12 trustees who were present before respondent No. 2, as many as 8 trustees claimed that irregularities were committed in the meeting and while passing the resolution and therefore the selection process as well as the selection / appointment deserve to be cancelled and the decision cancelling sanction is just and proper. 8.5 One of the trustees out of said 12 trustees carried his allegation to the extent that he had not signed the resolution allegedly passed by the trust for initiating procedure of appointment and the signature shown in the Page 9 HC-NIC Page 9 of 15 Created On Sun Oct 01 18:46:41 IST 2017 C/SCA/28500/2007 JUDGMENT record as his signature is not his signature. On the other hand four trustees submitted before the respondent No.2 that the selection procedure was proper and sanction granted by the respondent No. 2 should be continued. 8.6 After having considered such response by the trustees and after taking into account the fact that 8 out of 12 trustees supported cancellation but without granting opportunity of hearing to present petitioner the respondent No. 2 passed order dated 24.9.2007.
9. Before proceeding further it is relevant to note that until High Court passed order dated 13.3.2007 in Special Civil Application No. 6058 of 2006 present petitioner had not challenged order dated 8.2.2006 passed by the respondent no. 2. Not only this even until 24.9.2007 when the respondent no. 2 passed order reiterating his earlier decision dated 8.2.2006, the petitioner had not challenged order dated 8.2.2006. However, after the respondent no. 2 passed order dated 24.9.2007 the petitioner, somewhere in November 2007, filed present petition and challenged Page 10 HC-NIC Page 10 of 15 Created On Sun Oct 01 18:46:41 IST 2017 C/SCA/28500/2007 JUDGMENT said order dated 24.9.2007 as well as order dated 8.2.2006.
10. In view of the fact that vide order dated 13.3.2007 in Special Civil Application No. 6058 of 2006 the order dated 8.2.2006 is already set aside, any other or further direction with regard to said order is not required to be passed. The said order dated 8.2.2006 does not survive after order dated 13.3.2007 passed by High Court in Special Civil Application No. 6058 of 2006.
11. Now, so far as order dated 24.9.2007 is concerned it is relevant to note that present petitioner was not party to Special Civil Application No. 6058 of 2006. 11.1 However it is pertinent that in entire dispute, which essentially appears to have arisen on account of dispute between the two groups of the board of trustees of respondent no. 3 trust, actually it is the petitioner who is really affected and concerned party because it is the petitioner whose selection and appointment as principal is Page 11 HC-NIC Page 11 of 15 Created On Sun Oct 01 18:46:41 IST 2017 C/SCA/28500/2007 JUDGMENT cancelled.
12. Under the circumstances order dated 24.9.2007 could not have been passed without hearing and without calling for his explanation and without granting opportunity of hearing to the petitioner.
13. Despite this position, the learned AGP would contend that the petitioner was not party to the Special Civil Application No. 6058 of 2006 and there was no direction under order dated 13.3.2007 to hear the petitioner and that therefore the respondent no. 2 did not call the petitioner.
14. Such submission cannot be accepted.
15. It was for the respondent no. 2 to ensure that all concerned parties, more particularly the party who would be affected by his order gets opportunity of hearing. It was duty and obligation on part of the respondent No. 2 to grant opportunity of hearing to all parties concerned in the Page 12 HC-NIC Page 12 of 15 Created On Sun Oct 01 18:46:41 IST 2017 C/SCA/28500/2007 JUDGMENT dispute, more particularly to the party who would be directly affected by the order.
15.1 Despite this position respondent no. 2 failed to grant opportunity of hearing to the petitioner.
16. Under the circumstances order dated 24.9.2007 is vitiated on ground of violation of principles of natural justice.
16.1 Consequently said order dated 24.9.2007 cannot be sustained and the said order deserves to be set aside on said limited ground viz. violation of principles of natural justice.
17. Consequently following order is passed:-
18. The order dated 24.9.2007 passed by respondent no. 2 is set aside on the ground of violation of principles of natural justice because the said order is passed without granting opportunity of hearing to the petitioner, who is Page 13 HC-NIC Page 13 of 15 Created On Sun Oct 01 18:46:41 IST 2017 C/SCA/28500/2007 JUDGMENT actually most affected and was necessary party to the proceedings.
18.1 The proceedings are remanded to the District Education Officer who will pass fresh order after granting opportunity of hearing to the petitioner. 18.2 In view of the fact that more than 10 years have passed since the dispute and controversy commended, it would be appropriate that the respondent no. 2 shall expedite the matter and pass appropriate fresh order after granting opportunity of hearing to the petitioner and concerned parties including trust / trustees, as expeditiously as possible but not later than 13.10.2017.
Until then the effect of the interim order dated 2.11.2007 passed by this Court in present petition shall continue.
With the aforesaid clarifications the petition is disposed of.
Orders accordingly.
Direct service is permitted.
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Sd/-
(K.M.THAKER, J.)
Suresh*
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