Gujarat High Court
Pravinbhai Udesinh Sindha vs Gujarat State Electricity Corporation ... on 17 August, 2022
Author: Biren Vaishnav
Bench: Biren Vaishnav
C/SCA/15230/2019 ORDER DATED: 17/08/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 15230 of 2019
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PRAVINBHAI UDESINH 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
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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
Date : 17/08/2022
ORAL ORDER
1. Heard learned advocates for the parties.
2. The issue arising in this petition has been decided by this court vide judgement and order dated 22.02.2022 passed in Special Civil Application No. 6574 of 2021 with Special Civil Application No. 9021 of 2021 which pertains to a challenge to the show cause notice. The court after considering the submissions of the respective parties held as under:
"6 Having considered the submissions made by the learned advocates for the respective Page 1 of 7 Downloaded on : Mon Aug 22 20:40:16 IST 2022 C/SCA/15230/2019 ORDER DATED: 17/08/2022 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:
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:
"13 The appellants are appointed on the post of Vidyut Sahayaks as a reserved category candidates belonging to the Page 2 of 7 Downloaded on : Mon Aug 22 20:40:16 IST 2022 C/SCA/15230/2019 ORDER DATED: 17/08/2022 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 Page 3 of 7 Downloaded on : Mon Aug 22 20:40:16 IST 2022 C/SCA/15230/2019 ORDER DATED: 17/08/2022 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."
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 Page 4 of 7 Downloaded on : Mon Aug 22 20:40:16 IST 2022 C/SCA/15230/2019 ORDER DATED: 17/08/2022 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 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.
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 Page 5 of 7 Downloaded on : Mon Aug 22 20:40:16 IST 2022 C/SCA/15230/2019 ORDER DATED: 17/08/2022 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."
3. The matter was carried in appeal before the Division Bench and the Division Bench vide order dated 08.03.2022 in Letters Patent Appeal No. 302 of 2022 and allied matters has held as under:
"4. We are in total agreement with the observations made by the learned Single Judge. The respondent authorities have already given show cause notices and it goes without saying that the appellants will have an opportunity to represent their case before the respondent authorities and therefore, even the basic requirement of the principles of natural justice can be culled out by bare reading of the impugned notices. The learned Single Judge has correctly come to the conclusion that as the contentions raised are at the show cause notice stage and the decision is yet awaited, no interference is called for.
5. Resultantly, the appeals fail and are hereby dismissed. However, considering the peculiar facts and circumstances of the case, more particularly, the fact that even in the judgment and order passed in Letters Patent Appeals no.656/13 to 668/13 by the Coordinate Bench in 2015, the appellants had put in more than 10 Page 6 of 7 Downloaded on : Mon Aug 22 20:40:16 IST 2022 C/SCA/15230/2019 ORDER DATED: 17/08/2022 years of service. All that can be provided by way of equitable relief is that in case if any decision is taken adverse to the appellants, the same may not be implemented for a period of one week from the date of communication to enable the petitioners to take appropriate recourse.
6. The appeals are otherwise not entertained on merits and are hereby dismissed. As the appeals are dismissed, connected Civil Applications also stand dismissed. However, there shall be no order as to costs."
4. Accordingly, the petition is dismissed. However, since the petitioner has to be in more than ten years of service, by way of equitable relief, it is provided that in case any decision is taken adverse to the petitioner, the same may not be implemented for a period of one week from the date of communication to the petitioner so as to enable the petitioner to take appropriate recourse.
Notice is discharged. Interim relief, if any, shall stand vacated. No costs.
(BIREN VAISHNAV, J) DIVYA Page 7 of 7 Downloaded on : Mon Aug 22 20:40:16 IST 2022