Gujarat High Court
Dayalji D Kanjariya vs State Of Gujarat & 2 on 31 March, 2014
Author: G.B.Shah
Bench: G.B.Shah
C/SCA/9980/2013 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 9980 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE G.B.SHAH
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1 Whether Reporters of Local Papers may be allowed to see
the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law as
to the interpretation of the Constitution of India, 1950 or any
order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
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DAYALJI D KANJARIYA....Petitioner(s)
Versus
STATE OF GUJARAT & 2....Respondent(s)
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Appearance:
MR HRIDAY BUCH, ADVOCATE for the Petitioner(s) No. 1
MR KL PANDYA, AGP for the Respondent(s) No. 1
MR SN SHELAT, SENIOR ADVOCTE, ASSISTED BY MS SEJAL K
MANDAVIA, ADVOCATE for the Respondent(s) Nos. 2 - 3
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CORAM: HONOURABLE MR.JUSTICE G.B.SHAH
Date : 31/03/2014
Page 1 of 105
C/SCA/9980/2013 CAV JUDGMENT
CAV JUDGMENT
1. The present petition is directed against the order dated 14.6.2013 passed by respondent No.2 - Gujarat Ayurvedic University whereby the appointment of the petitioner on the post of Office Superintendent with respondent No.3 - Institute of Post Graduate Teaching and Research in Ayurved (for short "I.P.G.T.& R.A.") has been terminated and the petitioner has been reverted to the post of Stenographer Grade-III with respondent No.3.
2. The broad facts of the case are such that the petitioner herein initially joined respondent No.3 - I.P.G.T.& R.A., as Stenographer (English) Grade-III on 28.1.1986. The post of Stenographer (English) Grade-III has been upgraded by the Government of India to the level of Stenographer Grade-II-cum-PA to Dean and the petitioner came to be appointed on the upgraded post on 1.1.1998. Vide office order dated 28.1.2003, the petitioner came to be reverted to Page 2 of 105 C/SCA/9980/2013 CAV JUDGMENT the lower grade of Stenographer Grade-III and hence, the petitioner filed Special Civil Application No.4836 of 2003 before this Court which is pending. The respondent No.3 - I.P.G.T.& R.A., issued an advertisement on 18.9.2008 inviting applications for various posts which were vacant in respondent No.3 -I.P.G.T.& R.A., and out of about 16 posts advertised, one post was for the Office Superintendent at item No.7 in the said advertisement. On the basis of the said advertisement, the petitioner had applied in the prescribed form along with the enclosures. There were about 29 applications received for which respondent No.3 - I.P.G.T.& R.A., had appointed a Scrutiny Committee consisting of six persons and the said committee short listed the applications and about 17 candidates were called for interview including the present petitioner which was to be conducted on 2/3rd January 2009. Accordingly, the petitioner remained present before the Staff Selection Committee consisting of as many as seven persons. Only 16 candidates were Page 3 of 105 C/SCA/9980/2013 CAV JUDGMENT successfully interviewed and the petitioner came to be selected by the Staff Selection Committee for the appointment on the post of Office Superintendent and accordingly recommendations were sent for approval of the Board. The Board in its 14th Meeting held on 5.2.2009 approved the said appointment. On the basis of the said approval given by the Board, respondent No.2 - the Gujarat Ayurvedic University issued the order of appointment on the post of Office Superintendent on probation for a period of two years. Accordingly, the petitioner joined the services with effect from 9.2.2009 itself who was otherwise working on the post of Stenographer Grade-II with respondent Nos.2 and 3. On or about in October 2009, a team consisting of three officers appointed by the Government of India came to Jamnagar for conducting an inquiry and investigate into the complaints of alleged administrative and financial irregularities. The said team visited respondent No.3 from 4/7th November 2009 and submitted its report. One of Page 4 of 105 C/SCA/9980/2013 CAV JUDGMENT the allegations was with regard to the appointment of the petitioner. Thereafter, the petitioner received a notice dated 5.3.2012 written by Shri J.G.Vohra, retired Deputy Secretary & Inquiry Officer. In response to the said notice, the petitioner gave a detailed reply dated 16.3.2012 pointing out each and every fact and also produced documentary evidence. Thereafter, the impugned order came to be passed cancelling the appointment of the petitioner on the post of Office Superintendent and reverted the petitioner to the post of Stenographer Grade- III. Being aggrieved and dissatisfied by the same, the petitioner had approached this Court by filing Special Civil Application No.2144 of 2013. During the course of hearing, respondent No.2 had produced the communication before the Court that respondent No.2 is withdrawing the said order of reversion and based on the said statement, the said petition came to be disposed of as withdrawn. Thereafter, the petitioner resumed the duty on the post of Office Superintendent on Page 5 of 105 C/SCA/9980/2013 CAV JUDGMENT 21.3.2013. The petitioner was supplied the copy of the inquiry report and was called upon to give his comments within 15 days upon the findings of the said inquiry report. Ultimately, the impugned order came to be passed on 14.6.2013 against the petitioner. Being aggrieved and dissatisfied with the same, the petitioner has approached this Court by filing the present petition.
3. It is mainly contended by learned counsel Mr.Hriday Buch for the petitioner that the impugned order passed by respondent No.2 is without jurisdiction as any action required to be taken against the petitioner is to be taken by respondent No.3 in consultation with the Board. In his submission, the Vice Chancellor and/or the Registrar of respondent No.2 does not have any jurisdiction and/or authority to pass any order against the petitioner. He further submitted that the impugned order is passed in gross violation of the principles of natural justice as no opportunity of being heard is given to the petitioner. He further submitted that the Page 6 of 105 C/SCA/9980/2013 CAV JUDGMENT impugned order itself suggests that the order is passed only on the basis of the Inquiry Officer's report and as the petitioner has been appointed by the Board, it is only the Board who has an authority to pass order against the petitioner. He submitted that the impugned order suffers from the vice of total non-application of mind because the post of Stenographer Grade-III which has been abolished since 1991, the petitioner was ordered to be reverted in the year 2013 on the said post of Stenographer Grade-III. He submitted that the disciplinary authority in the present case would be Board and without following the proper procedure, inquiry is ordered wherein the Inquiry Officer has gone much beyond the scope of his powers questioning the validity of the procedure followed by Scrutiny Committee as well as the Selection Committee of the University. He, therefore, submitted that since the impugned order dated 14.6.2013 passed by respondent No.2 is ab-initio void as no reasons are assigned, the same is required to be set aside and lastly, Page 7 of 105 C/SCA/9980/2013 CAV JUDGMENT requested to allow this petition.
4. On the other-hand, learned senior advocate Mr.S.N.Shelat for respondent Nos.2 and 3 has vehemently contended while drawing the attention of this Court on page 158/Z/12 the Inquiry Officer's Report that the draft rules were not approved and hence, the petitioner is not entitled to be appointed on the post of Office Superintendent. He submitted that the selection committee has not looked into the approved Rules otherwise the committee's report would have been otherwise. Referring to page 158/K more particularly paragraph 25, Mr.Shelat, learned Senior Advocate has submitted that the petitioner was not fulfilling the requisite qualification and the petitioner was appointed in absence of the Recruitment Rules and the crux of the inquiry report is whether the petitioner possesses the requisite qualification or not and on the basis of the said inquiry report, the Vice Chancellor passed the order dated 14.6.2013 under section 11 of the Gujarat Ayurved University Act, Page 8 of 105 C/SCA/9980/2013 CAV JUDGMENT 1965 (for short "the Act") to the effect that the petitioner's appointment is not as per the Recruitment Rules and the appointment is made in absence of Recruitment Rules and so his appointment is illegal and irregular. He submitted that the Inquiry Officer conducted the inquiry in detail and during the inquiry, the petitioner was given opportunity of putting his case before the Inquiry Officer and came to the conclusion that the petitioner's appointment is not as per the Recruitment Rules and therefore the appointment being direct recruitment is illegal and irregular. He has then submitted that the board which is appointing authority is under control of the University. The Vice Chancellor has wide powers as narrated in section 11(1) of the Act and the Vice Chancellor is the competent authority under section 11(4)(a) of the Act and as narrated in section 11(4)(a), the check on his power is to submit action taken report to the concerned authority and the second check on his power is to file an appeal by affected person to Page 9 of 105 C/SCA/9980/2013 CAV JUDGMENT Syndicate under section 11(4)(b) of the Act. In breach of provision laid down in section 11(4)(b) of the Act, now at this stage, the petitioner may not be relegated to prefer the regular appeal and accordingly the petition may not be entertained. He has lastly submitted that after thoughtful consideration of the written submissions as well as other documents, the impugned order dated 14.6.2013 came to be passed by exercising the powers under section 11 of the Act by the Vice Chancellor and so requested to dismiss the present petition.
5. I have heard learned counsel for the parties at length and perused the papers of the case placed before me. The question which is to be decided by this Court in nutshell is, as to whether the impugned order dated 14.6.2013 passed by the Vice Chancellor under section 11 of the Act is without jurisdiction / authority and is in gross violation of the principles of natural justice and if yes, whether the petitioner is entitled to be continued on the post of Office Page 10 of 105 C/SCA/9980/2013 CAV JUDGMENT Superintendent or not? Before dealing with the rival submissions made by learned counsel for the parties, certain undisputed facts are required to be narrated as under.
5.1 The Director of respondent No.3 - I.P.G.T & R.A., had issued advertisement on 18.9.2008 inviting applications for various posts which were vacant in respondent No.3 - I.P.G.T & R.A., and out of 16 posts advertised, one post was for Office Superintendent-I, serial No.7 in the said advertisement, copy of which is at Annexure-G page 42. The petitioner had applied in the prescribed form along with the annexures and he being in service, forwarded the same as per the instructions given in the said advertisement referred above. The petitioner was appointed on the post of Office Superintendent in the year 2009. One person i.e. Mr.Bhaskar N.Vaya, Social Activist has forwarded the application to the Chancellor and the Honourable Governor of Gujarat dated 6.6.2011, copy of which is at pages 214 to Page 11 of 105 C/SCA/9980/2013 CAV JUDGMENT 216 drawing attention that "major irregularities and violation of rules in recruitment of Office Superintendent post in IPGTRA" have been carried out. It is further averred in it that during the last two to three years, large number of teaching and non-teaching posts were filled up in IPGTRA; out of which, few posts like Reader in R.S. and B.K. Dept and Office Superintendent were recruited breaching all the rules and regulations.
5.2 For ready reference and for better understanding the real issue which is involved in this petition, the said letter dated 6.6.2011 alleged to have been written by Mr.Bhaskar N.Vaya, addressed to the Chancellor and Honourable Governor of Gujarat referred hereinabove is reproduced hereto under.
"From:
Bhaskar N Vaya Social Activist Ram-Rakh Chowk Prabhas-Patan Dist-Junagadh (Gujarat) Page 12 of 105 C/SCA/9980/2013 CAV JUDGMENT To, The Chancellor & Hon'ble Governor of Gujarat Raj Bhavan Gujarat State Gandhinagar Date:6/06/2011 Sub: Major irregularities & violation of rules in the Recruitment of Office Superintendent post in IPGTRA H.E. Governor of Gujarat, As you well aware that Inst.of PG Teaching & Research in Ayurveda, Jamnagar is the leading institute of India in the field of Ayurvedic Research & Teaching. It is the one of the oldest & esteem institute dealing in alternative medicine.
Madam, I want to draw your attention on other dark side of this institute which may not be in your knowledge. During last 2-3 years large number of teaching, non-teaching posts was filled in IPGT, out of which few posts like Reader in RS & BK Dept & Office Superintendent were recruited by breaching all rules & regulation. Because of such kind of malicious act IPGT losing its name & fame at local & national level.
Your good-self might be aware about fact that Dr K R Baldania (Prof & HOD of G.A.College, Ayurved University) had filed a writ petition in the High Court Page 13 of 105 C/SCA/9980/2013 CAV JUDGMENT of Gujarat. Looking to legal aspects of this case mostly the decision may come in the favor of Dr.Baldania, as institute violates the Roster point and advertised the post as General instead of OBC!!! While for the selection of Office Superintendent all the regulation & laws broken in such manner that from the outside it look liked that nothing happened wrong but if you go in detail than major - major irregularities found which only happen in IPGT! You may surprise to know that person who was selected for the post of O.S. is merely 12th standard pass. With the blessing of higher authorities Mr.D.D.Kanzaria was selected for the said post, which is classified as Group-B post in the pay scale of 9300-34800, GP-4600. Don't you think this is the one of the worst irregularities ever made by any Government authority in entire India?
I humbly submitted other details of this black chapter with facts for your kind knowledge.
1) To select Mr.Kanzaria in O.S.post the R.R. was changed in the 13th Meetings of the Board of PGT&R held on 27/08/2008 at New Delhi (Annexure-1). As he was simply 12th pass and as per previous R.R. he was not qualified for the post therefore very cunningly relaxation in Age, experience & educational qualification was given to internal candidate. Such kind of relaxation in qualification and experience was totally against the rule;
only relaxation in Age can be given to internal candidate in any Page 14 of 105 C/SCA/9980/2013 CAV JUDGMENT Govt.organization.
(Mr D D Kanzaria is working as a Stenographer in IPGT since 1987 therefore his application for O.S. was considered as internal candidate)
2) Later on Govt.of India, Deptt. Of AYUSH also realizes this mistake and they modified the R.R. of O.S.post vide Letter no 12015/9/2007-NI dated 8/10/2008 (annexure-2). In this letter modification for O.S. post made that only Age etc may be relaxed in case of internal candidate.
It is self explanatory that Govt. of India did not agree for giving relaxation of experience & qualification to internal candidate. Therefore they have not accepted the proposed R.R. of the O.S. as suggested by Board of PGT & R in its 13th meeting vide item no-C and modified it as mentioned in annexure-3.
3) In between IPGT & R has placed an advertisement for the various teaching & non-teaching posts including Office Superintendent vide no PGT/7E/2008- 09/1831, dated 18/09/2008 (Annexure-3). It means that post was advertised even before the finalization of R.R.!!!
4) Generally R.R. of any post is changed if post is advertised so many times and no candidates found eligible but in this case post is advertised only once (clearly indicates 1 st attempt in annexure-3) and even large no of candidates found suitable even as per previous R.R. The previous R.R. of O.S. Page 15 of 105 C/SCA/9980/2013 CAV JUDGMENT post is also attached (Annexure-4). Hence it is crystal clear that R.R. was modified in such a way that Mr Kanzaria's application can be considered. This was the only motive to lowering the qualification criteria in the R.R. of O.S.post.
5) With the blessing of higher
authorities Scrutiny Committee had
generously accepted the form of Shri Kanzaria. Scrutiny committee was highly pressurized therefore they interpreted that Age etc. relaxation for internal candidate means Age, experience & qualification may be relaxed. This was totally wrong because as mentioned in para-2, GOI realized the mistake and hence they modified the R.R. by putting Age etc. instead of Age, experience, educational qualification (Please refer Annexure - 2 & 3).
Based on such false interpretation scrutiny committee also accepted the form of one more internal candidate Shri Doshi. Being working as Lab Asst in Pharmaceutical Lab of IPGTRA, he did not possess single day admin experience still he called for interview for such kind of higher admin post!! Funniest thing is if such kind of criteria like qualification & experience being relaxed for internal candidate than even any class-4 employee of the institute who simply 7th or 8th std. passed must be eligible for Office Superintendent post. Luckily not a single class-4 employee was applied for the O.S. post otherwise it must be Page 16 of 105 C/SCA/9980/2013 CAV JUDGMENT recorded in Guinness Book of World Record!
6) Mr. Kanzaria's past record is also very poor. One lady employee Smt.R M Sondarava (At present working as Head Clerk) lodged the complaints against him for physical harassment. He also reverted from the post of Stenographer grade-II to stenographer grade-III by the Syndicate on 29/07/2002 vide item no-23, because he was not fulfilled the basic criteria for that post & simply promoted by influence.
(Copy of reversion order of Syndicate is attached as Annexure-6).
7) Because of his closeness with Present Director & other authority he managed to appoint brother-in-law Mr Hadiyal as Junior Clerk by making mischief in OMR Answer sheet.
From the above facts it is crystal clear that all the rules & regulation violated for the selection of Kanzaria. In Past this issue also raised by then Board & Syndicate Member Dr A.R.Trivedi but because of his influence at University & even in AYUSH Dept it goes in vain.
Therefore being a Chancellor of the University, you are requested to urgently look into matter & constituted independent inquiry. Further it is to inform you that in near future Mr. D D Kanzaria's probation period may over; looking to the seriousness of the matter you are also requested to take necessary steps for not to confirm his service and reverts him to his original post of Stenographer.
Page 17 of 105 C/SCA/9980/2013 CAV JUDGMENT
Thanking You, Yours faithfully, Sd/-
Bhaskar N Vaya (Social Activist) Copy to:
1) The Joint Secretary (NI), Department of AYUSH, Red Cross Building, New Delhi."
5.3 It is also not under dispute that on or about October 2009 a team consisting of three officers appointed by the Government of India (for short "GOI") came to Jamnagar for conducting inquiry and investigate into the complaint of alleged administrative and financial irregularities. The said team visited I.P.G.T & R.A., from 4/7.11.2009 and submitted its report. One of the allegations was with regard to appointment of the petitioner. Copy of the said tour report for visiting I.P.G.T & R.A., Jamnagar to investigate complaints of alleged administrative and financial irregularities Page 18 of 105 C/SCA/9980/2013 CAV JUDGMENT submitted to the GOI by the said team are at Annexure-M, pages 128 to 136. The relevant findings of the said team related to the petitioner at serial No.12 at page 133 reads as under.
Sr. Complaint Proposed Findings Remarks
No. Action Plan
12 Complaint against a. What are RRs for the Allegation
appointment of the RRs for post of OS is not
Shri D.D.Kanjaria, the post of have correct.
Office OS ? A copy provision
Superintendent of RRs. to relax
(OS), IPGTRA age
b. Is DD experience
Kanjaria and
eligible for educational
the post ? A qualificati
copy of ons in
essential respect of
qualification internal
i.e. Degree candidate.
certificate Selection
possessed by committee
Shri had
Kanjaria. approved
his
c. Complaint appointment
of Dr.A.R. as per
Trivedi, HOD merit
Kaumanbhritya obtained by
in this him during
regard. the
selection
d. To look period. A
into the file member from
regarding this
appointment department
of Kanjaria. was also
present in
the meeting
of
Selection
Committee.
Page 19 of 105
C/SCA/9980/2013 CAV JUDGMENT
6. It is not under dispute that allegations made by Mr.Bhaskar N.Vaya vide his letter dated 6.6.2011, referred hereinabove are the basis or foundation for initiation of inquiry and in turn, the impugned order dated 14.6.2013 at Annexure-A. Referring to the said letter dated 6.6.2011 and from the bare reading of subject mentioned in it, it is clear that the said allegations are related to the post of Office Superintendent in I.P.G.T. & R.A. alleging that major irregularities and violation of rules in the recruitment of posts like Reader in RS & BK Department and Office Superintendent have been committed by I.P.G.T. & R.A. So far as the petitioner is concerned who is serving on the post of Office Superintendent with respondent No.3, the main allegations levelled against him are as under.
(i) The person who was selected for the post of O.S. i.e. petitioner is merely 12th Standard pass.
(ii) The petitioner's past record is also very poor. One lady employee Smt.R.M.Sondarava (at Page 20 of 105 C/SCA/9980/2013 CAV JUDGMENT present working as Head Clerk) lodged the complaints against him for physical harassment.
(iii) Because of his closeness with present Director and other authority, he managed to appoint brother-in-law Mr.Hadiyal as Junior Clerk by making mischief in OMR Answer Sheet. 6.1 So far as above referred letter dated 6.6.2011 of Mr.Bhaskar Vaya is concerned, the allegations made against the officials of I.P.G.T. & R.A. can be summarized as under.
(a) During last 2 - 3 years, large number of teaching and non-teaching posts were filled in IPGT out of which few posts were recruited by breaching all rules and regulations and because of such malicious act IPGT losing its name and fame at local and national level.
(b) In case of Dr.K.R.Baldania (Prof. & HOD of G.A.College, Ayurved University), writ petition filed by him in the High Court is pending as it is alleged that institute violates the Roster point and advertised the Page 21 of 105 C/SCA/9980/2013 CAV JUDGMENT post as General instead of OBC.
(c) For the selection of Office Superintendent, all the regulations and laws broken in such manner that from the outside it look liked that nothing happened wrong but if one go in detail then major - major irregularities found which only happen in IPGT.
(d) To select Mr.Kanzaria in O.S. Post the R.R. was changed in the 13th meetings of Board of PGT&R held on 27.8.2008 at New Delhi. Very cunningly relaxation in age, experience and educational qualification was given to internal candidate against rule because only relaxation in age can be given to internal candidate in any Government Organization.
(e) Mr.D.D.Kanzaria is working as a Stenographer in IPGT since 1987 therefore his Page 22 of 105 C/SCA/9980/2013 CAV JUDGMENT application for O.S. was considered as internal candidate.
(f) Later on Government of India, Dept. of AYUSH also realizes this mistake and they modified the R.R. of O.S. post vide letter dated 8.10.2008 by the competent authority, Department of AYUSH in which modification for O.S. post is made that only Age etc may be relaxed in case of internal candidate.
(g) In between I.P.G.T. & R.A. has placed an advertisement for various teaching and non- teaching posts including Office Superintendent dated 18.9.2008. It means that post was advertised even before the finalization of R.R.
(h) With the blessing of higher authorities, Scrutiny Committee had generously accepted the form of Shri Kanzaria. Scrutiny Committee was highly pressurized therefore they Page 23 of 105 C/SCA/9980/2013 CAV JUDGMENT interpreted that Age etc. relaxation for internal candidate means Age, experience and qualification may be relaxed.
(i) In past issue related to violation of Rules and Regulation also raised by the then Board and Syndicate Member Dr.A.R.Trivedi but because of his influence at University and even in AYUSH Dept it goes in vain.
6.2 In the last portion of the letter dated 6.6.2011 said Mr.Bhaskar Vaya has suggested to look into matter & constitute independent inquiry and also requested not to confirm the probation period of the petitioner and to revert him to his original post of Stenographer.
From the above facts, it can be easily said by any common man that main allegations were levelled against the members of Board including Chairman as well as against Dept. of AYUSH at New Delhi and also the Scrutiny Committee which was Page 24 of 105 C/SCA/9980/2013 CAV JUDGMENT alleged to be highly pressurized and against the Top Officials of I.P.G.T. & R.A. In short, as per the allegations referred above, against all concerned as stated above was that Rules and Regulations were modified by the above referred all concerned in such a way that the petitioner's application can be considered and the same was the only motive of all concerned referred above for lowering the qualification criterian in the Rules and Regulations of the post of Office Superintendent.
7. It is important to note that upon completion of the period of two years, the petitioner was to be confirmed in service but respondent No.2 extended the said period of probation until further orders vide its order dated 10/15.2.2011, copy of which is at Annexure- N. 7.1 The matter of confirmation of the probation period related to the petitioner was again placed Page 25 of 105 C/SCA/9980/2013 CAV JUDGMENT before the Board in its 18th meeting held at New Delhi on 26.9.2011 at Dept. of AYUSH. When the said agenda at Item No.7 was taken up for discussion, Vice Chancellor of respondent No.2 University, who was the Chairman of said meeting, has reported that, "a one man inquiry committee under retired Judge has been set up on the complaint of one Social Activist which was forwarded by the office of Governor, Gujarat State". The said minutes related to "Item No.7 TO CONFIRM THE EMPLOYEES OF THE I.P.G.T.& R.A." read as under.
"ITEM NO.:07: TO CONFIRM THE EMPLOYEES OF THE I.P.G.T.& R.A. While discussing the confirmation cases of employees, Board noted that the Regulation No.19 having the provision for DPC/Confirmation Committee has been abolished by the Senate hence Board has to consider these cases.
Page 26 of 105 C/SCA/9980/2013 CAV JUDGMENT During discussion chairman brought to the notice of Board that
regarding the confirmation case of Dr B J Patgiri one representation was received from Dr K.R.Baldaniya.
In this regard Board has been
informed that D.K.R.Baldaniya has
already approached the Hon'ble High Court in this regard vide his petition No.1139/2009 & 7592/2010. The Board observed that since there is no court order in this matter till date and further that otherwise he is eligible and entitled to be confirmed in the post held by him, his services be confirmed.
The confirmation case of Shri D.D.Kanjaria on the post of Office Superintendent after completion of 02 years' probation was discussed in detail. While asking about his ACR's it was reported that ACR's of Shri D.D.Kanjaria are excellent and very good during two years of probation. The Vice Chancellor reported that a one man inquiry committee under retired Judge has been setup on the complaint of one Social Activist Page 27 of 105 C/SCA/9980/2013 CAV JUDGMENT which was forwarded by the Office of the Governor, Gujarat State. The Director, I.P.G.T.& R.A. had responded to that complaint.
However, Office of the Governor
again asked Parawise clarification
on ten related issues. That's why
an inquiry committee has been setup to know the truth and facts related to all matters of the recruitment process for the post of Office Superintendent. This was informed by the Director that the Rrs for the post of Office Superintendent has been duly amended by the Board and duly approved by the Government of India. It was also informed that as per the Order No.R.12012/01/2009-NI dated 29.10.2009, the team of two Under Secretaries and one joint Advisor, Deptt. Of AYUSH, Government of India during 4th to 7th November, 2009 has investigated the recruitment process along with other matters and in their report submitted to the Deptt. Of AYUSH opined that the allegations are not correct.Page 28 of 105 C/SCA/9980/2013 CAV JUDGMENT
Though Board viewed that as per rules Shri Knajaria is entitled to be confirmed as no adverse remarks or notice has been served to him during the period of two years from his appointment. Since confirmation of appointment after completion of probation links with the performance of employee during the period and there was no dissatisfactory note about his services during the period. Most of the members expressed their views that Shri Kanjaria was appointed by the Board on the recommendation of duly constituted Staff Selection Committee based on his performance & fulfilling the Recruitment Rules of the post hence his probation should be cleared. However, the Vice Chancellor assured the Board that the inquiry will be completed within a month after the first sitting of the Inquiry committee and till then the confirmation process of Shri D.D.Kanjaria may be deferred. Keeping in view the Board decided to consider the confirmation case of Shri Kanjaria in the next meeting of Page 29 of 105 C/SCA/9980/2013 CAV JUDGMENT the Board."
7.2 From the above minutes, it is clear that despite the fact that the Annual Confidential Reports of the petitioner were "excellent" and "very good" during the two years of probation and though there were no adverse remarks and/or complaints, the confirmation process of the petitioner was deferred till next meeting of the Board because one man Inquiry Committee under retired Judge has been set up to know the truth and facts related to all matters of the recruitment process for the post of Office Superintendent. It is the fact that no such one man Inquiry Committee under the retired Judge has ever been constituted as represented / reported by Vice Chancellor of respondent No.2 University. 7.3 It is also not under dispute that after the above referred 18th meeting of the Board held on 26.9.2011, the petitioner received notice dated 5.3.2012 issued by one Shri J.G.Vohra, Retired Page 30 of 105 C/SCA/9980/2013 CAV JUDGMENT Deputy Secretary and Inquiry Officer, called upon the petitioner to remain present on 16.3.2012 at 15.30 hours before him, to inquire into irregularities committed at the time of appointment on the post of Office Superintendent. The petitioner appeared before the above referred Inquiry Officer and gave detailed response on 16.3.2012. Thereafter, petitioner received an order dated 18.2.2013 without any Inquiry report whereby respondent No.2 had cancelled the appointment of the petitioner on the post of Office Superintendent and reverted the petitioner to the post of Stenographer Grade-III. The petitioner had preferred Special Civil Application No.2144 of 2013. The relevant paragraph Nos.4, 5 and 6 of the order dated 19.3.2013 passed by this Court in the said Special Civil Application No.2144 of 2013 read as under.
"4. Today, at the time of hearing, Ms. Mandavia, learned advocate for the respondent Nos.2 and 3, has submitted, Page 31 of 105 C/SCA/9980/2013 CAV JUDGMENT in view of and on the strength of the written instructions dated 18.3.2013 received by her, that the respondent Nos.2 and 3 shall withdraw the impugned order dated 18.2.2013 and the petitioner will be supplied copy of the inquiry report dated 3.9.2012 submitted by Inquiry Officer Mr. J.G.Vora and the petitioner will also be granted opportunity of personal hearing in connection with the proposed action and the said report dated 3.9.2012 and appropriate order shall be passed by following procedure in accordance with law and after hearing the petitioner.
5. In view of the said submission, statement and stipulation by Ms.Mandavia, learned advocate for the respondent Nos.2 and 3, Mr. Buch, learned advocate for the petitioner, submitted that, at this stage, the grievance of the petitioner is substantially redressed and that therefore, the petitioner does not press present petition, at this stage, and withdraws the petition at this stage without prejudice to his contentions.Page 32 of 105 C/SCA/9980/2013 CAV JUDGMENT
6. In view of the said submission, statement and stipulation by Mr.Buch, learned advocate for the petitioner, present petition is disposed of, at this stage, as not pressed/withdrawn.
It is clarified that the respondent Nos.2 and 3 will take necessary steps to withdraw the impugned order and intimate the withdrawal of the order to the petitioner. The petitioner shall be supplied the copy of the inquiry report dated 3.9.2012 by the Inquiry Officer Mr. J.G.Vora and thereafter, opportunity of personal hearing will be granted as submitted by the learned advocate for the respondent Nos.2 and 3 in light of instructions dated 18.3.2013. It will be open to the petitioner to raise all contentions available in law, at the time when he is granted hearing (after supplying copy of the report dated 3.9.2012), during the proceedings. It is also further clarified that the respondent Nos.2 and 3 may grant sufficient time to the petitioner for personal hearing, after providing him copy of the report dated 3.9.2012 and they will act as per submissions by learned advocate Ms. Mandavia.Page 33 of 105 C/SCA/9980/2013 CAV JUDGMENT
With aforesaid observations,
clarifications and direction, present
petition stands disposed of as
withdrawn/not pressed. Notice is
discharged."
7.4 After the above order dated 19.3.2013, the
petitioner has resumed his duties on the post of Office Superintendent vide his letter dated 21.3.2013 at page 157 and vide order dated 30.3.2013, earlier order issued by respondent No.2 dated 18.2.2013 has been withdrawn and copy of inquiry report was supplied to the petitioner, calling upon him to give his comments within 15 days upon the findings of the said report.
7.5 In response to the said order dated 30.3.2013 and after receiving the Inquiry Report dated 3.9.2012 at pages 158-A to 158/Z-26, the petitioner requested to respondent No.2 to provide him the copy of the report and all other documents considered by the Three Members' Committee appointed by AYUSH, Government of India Page 34 of 105 C/SCA/9980/2013 CAV JUDGMENT in November 2009 so that contradictions between two inquiry reports can easily be demonstrated by him vide his letter dated 8.4.2013. On this demand, learned senior advocate for respondent Nos.2 and 3 has submitted that the petitioner has sought for irrelevant document i.e. first inquiry report of Three Members' Committee because the petitioner himself has produced the said report in earlier petition and also produced the same in this petition at page Nos.128 to 136. Again, referring to the above referred letter dated 8.4.2013 at page No.159, it appears that the petitioner has asked for copy of the report as well as all other documents considered by Three Members' Committee appointed by Dept. of AYUSH, Government of India in November 2009. It appears that after having no response to the above referred demand vide letter dated 8.4.2013, the petitioner once again reiterated his request vide letter dated 22.4.2013 - page 160 further clarifying that copy of fact and findings of Three Members' Committee was submitted by him in Page 35 of 105 C/SCA/9980/2013 CAV JUDGMENT his petition being Special Civil Application No.2144 of 2013 and requested to provide certified complete Inquiry report and other documents submitted to the Government of India by Three Members' Committee. Referring to the letter dated 22.4.2013, learned senior advocate for respondent Nos.2 and 3 has submitted that the petitioner has reiterated the said demand which is nothing but another way of delaying the proceeding, otherwise where was the need of certified copy.
7.6 It appears that in response to the above letter, respondent No.2 informed vide letter dated 22.4.2013 which was received by the petitioner on 24.4.2013 that report of Three Members Committee sought for by him had already been annexed by the petitioner himself in the writ petition being Special Civil Application No.2144 of 2013 vide Appendix-M page Nos.128 to 136 and also informed that university i.e. respondent No.2 would decide as to what action Page 36 of 105 C/SCA/9980/2013 CAV JUDGMENT should be taken after the petitioner gave his comments on the findings of the report of Inquiry Officer and a second show cause notice shall be issued to the petitioner. In response to the same, the petitioner gave preliminary reply dated 30.4.2013 reserving his right to give personal explanation and further liberty to give other and further reply after issuance of show cause of the proposed action. Even, in this reply, the petitioner has raised several factual and legal contentions like issue of jurisdiction and also contended that inquiry report is self contradictory and is based on inferences, conjectures and surmises; that the petitioner being victimized and also that Inquiry Officer never gave opportunity either of hearing or to cross examine and so the said report is prepared in gross violation of the principles of natural justice. Thereafter, on 1.5.2013, the petitioner sent a letter in form of representation at page 182 and also on 7.5.2013 and 20.5.2013, the petitioner sent reminders to the respondents Page 37 of 105 C/SCA/9980/2013 CAV JUDGMENT seeking various details and documents vide respectively pages 183 - 184. In response to the letter dated 7.5.2013 referred above, respondent No.3 vide his letter dated 22.5.2013 informed the petitioner that the report of Three Members' Committee appointed by the Government of India is yet to be received from New Delhi. Vide letter dated 10.6.2013, the petitioner requested the Vice Chancellor to provide an opportunity of hearing before any further decision is taken.
Vide letter dated 7/10.6.2013 written by respondent No.3 to the petitioner informing that the petitioner shall not make any representations / requests in form of reminders and further maintained that process of preparation of reply is going on and documents have not been received from the Government of India.
7.7 It is the case of the petitioner that on 13.6.2013 he was on duty, however, he had sought casual leave on 14 to 18th June 2013 as he had to go out of station. A peon from the office of Page 38 of 105 C/SCA/9980/2013 CAV JUDGMENT respondents went to the house of the petitioner and handed over a cover on 15.6.2013.
Accordingly, the petitioner was served with the impugned order dated 14.6.2013 along with the order dated 13.6.2013. It is also the fact that order dated 13.6.2013 was verbatim similar, however the said order was withdrawn on 14.6.2013 and the resultant effect of the impugned order is that the petitioner is reverted to the post of Stenographer Grade-III which was abolished with effect from 28.11.1991 and hence, the petitioner has preferred the present petition.
8. In the facts and circumstances referred above, now we will see the main submissions made by learned senior advocate for respondent Nos.2 and 3. He has submitted that the petitioner was appointed on 9.2.2009 on probation. He drew attention on page No.121 which is the terms and conditions and clause No.1 of the same reads as under.
"1. The appointee will be on probation Page 39 of 105 C/SCA/9980/2013 CAV JUDGMENT for two years as Office Superintendent which may be extended or curtailed at the discretion of the appointing authority."
8.1 He has then submitted that the probation period was extended on 10.2.2011, but the fact remains that the petitioner was not confirmed on the post of Office Superintendent. He has also drawn attention on page 158/K on which the rules have been reproduced thereon vide No.25 and submitted that on the date of advertisement the said rules were prevailing on the basis of which the advertisement was issued for direct selection. The petitioner was F.Y. (Arts) passed only, and hence, he was not fulfilling the requisite qualification. He has then submitted that the crux of the inquiry report dated 3.9.2012 at page Nos.158/A to 158/Z-26 is whether the petitioner possesses the requisite qualification or not. He has then submitted that there is no breach of principles of natural justice because according to the learned Single Page 40 of 105 C/SCA/9980/2013 CAV JUDGMENT Judge, the petitioner must be given opportunity and the petitioner was given the copy of inquiry report. The petitioner was in possession of Three Members' Committee report. Thereafter, the petitioner is not able to explain as to how he is qualified because the petitioner says that the selection committee has considered him that he is found good but the petitioner is not speaking a word about his qualification. A person can be good - a good person, but in these days, graduation is a must for a job. Relaxation is permissible in promotion only and no law would permit him to work as the petitioner is not qualified. As the said fact is brought to the notice, respondents are bound to terminate him. The fact related to qualification of post is admitted and if facts are admitted, then there is no question of breach of principles of natural justice.
9. It has also been submitted by learned senior advocate for respondent Nos.2 and 3 that Page 41 of 105 C/SCA/9980/2013 CAV JUDGMENT the petitioner is a probationer and not a regular employee and in case of a probationer, the authority is competent to terminate service and as such, in the impugned order dated 14.6.2013, no stigma is attached. He has also submitted that probation is probation and competent authority can issue the impugned order and in case on hand, the Vice Chancellor being the highest authority exercised the power on behalf of the committee under section 11(4)(a) of the Gujarat Ayurved University Act, 1965 ("the Act"
for short). At this juncture, on a query put by this Court to learned senior advocate for respondent Nos.2 and 3 related to disciplinary authority, he has replied that disciplinary authority must be there but he is not talking about the disciplinary authority.
9.1 Learned senior advocate for respondent Nos.2 and 3 has placed reliance on the following citations.Page 42 of 105 C/SCA/9980/2013 CAV JUDGMENT
(a) "State Bank of India and others Vs Palak Modi and another, reported in AIR 2013 SCW 76".
In the above referred decision, learned senior advocate for respondent Nos.2 and 3 has placed reliance on paragraph 20 and learned advocate for the petitioner has also placed reliance on paragraph Nos.27, 29 and 30 which are reproduced here under.
"20. The ratio of the abovenoted judgments is that a probationer has no right to hold the post and his service can be terminated at any time during or at the end of the period of probation on account of general suitability for the post held by him. If the competent authority holds an inquiry for judging the suitability of the probationer or for his further continuance in service or for confirmation and such inquiry is the basis for taking decision to terminate his service, then the action of the competent authority cannot be castigated as punitive. However, if the allegation of misconduct constitutes the foundation of the action taken, the Page 43 of 105 C/SCA/9980/2013 CAV JUDGMENT ultimate decision taken by the competent authority can be nullified on the ground of violation of the rules of natural justice.
xxxx xxxx xxxx
27. The use of unfair means in the
evaluation test/confirmation test held
by the Bank certainly constitutes a
misconduct. The Bank itself had treated such an act to be a misconduct (Para 10 of Advertisement dated 1-7-2008). It is not in dispute that the services of the private respondents were not terminated on the ground that there was any deficiency or shortcoming in their work or performance during probation or that they had failed to satisfactorily complete the training or had failed to secure the qualifying marks in the test held on 27-2-2011. As a matter of fact, the note prepared by the Deputy General Manager, which was approved by the General Manager makes it crystal clear that the decision to dispense with the services of the private respondents was taken solely on the ground that they were guilty of using unfair means in the Page 44 of 105 C/SCA/9980/2013 CAV JUDGMENT test held on 27-2-2011. To put it differently, the foundation of the action taken by the General Manager was the accusation that while appearing in the objective test, the private respondents had resorted to copying. IBPS had relied upon the analysis made by the computer and sent a report to the Bank that 18 candidates were suspected to have used unfair means. The concerned authority then sent for the chart of seating arrangement and treated the same as a piece of evidence for coming to the conclusion that the private respondents had indeed used unfair means in the examination. This exercise was not preceded by an inquiry involving the private respondents and no opportunity was given to them to defend themselves against the charge of use of unfair means. In other words, they were condemned unheard which, in our considered view, was legally impermissible.
xxxx xxxx xxxx
29. In Krishnadevaraya Education Trust
v. L.A. Balakrishna (AIR 2001 SC 625 :Page 45 of 105 C/SCA/9980/2013 CAV JUDGMENT
2001 AIR SCW 253) (supra) the Court noted that the services of the respondent, who was appointed as Assistant Professor on probation were terminated on the ground of unsuitability and observed:
"There can be no manner of doubt
that the employer is entitled to
engage the services of a person on probation. During the period of probation, the suitability of the recruit/appointee has to be seen. If his services are not satisfactory which means that he is not suitable for the job, then the employer has a right to terminate the services as a reason thereof. If the termination during probationary period is without any reason, perhaps such an order would be sought to be challenged on the ground of being arbitrary. Therefore, naturally services of an employee on probation would be terminated, when he is found not to be suitable for the job for which he was engaged, without assigning any reason. If the order on the face of it states that his Page 46 of 105 C/SCA/9980/2013 CAV JUDGMENT services are being terminated because his performance is not satisfactory, the employer runs the risk of the allegation being made that the order itself casts a stigma. We do not say that such a contention will succeed. Normally, therefore, it is preferred that the order itself does not mention the reason why the services are being terminated.
If such an order is challenged, the employer will have to indicate the grounds on which the services of a probationer were terminated. Mere fact that in response to the challenge the employer states that the services were not satisfactory would not ipso facto mean that the services of the probationer were being terminated by way of punishment. The probationer is on test and if the services are found not to be satisfactory, the employer has, in terms of the letter of appointment, the right to terminate the services.Page 47 of 105 C/SCA/9980/2013 CAV JUDGMENT
In the instant case, the second order which was passed terminating the services of the respondent was innocuously worded. Even if we take into consideration the first order which was passed which mentioned that a Committee which had been constituted came to the conclusion that the job proficiency of the respondent was not up to the mark, that would be a valid reason for terminating the services of the respondent. That reason cannot be cited and relied upon by contending that the termination was by way of punishment."
30. In Pavanendra Narayan Verma v.
Sanjay Gandhi PGI of Medical Sciences (AIR 2002 SC 23 : 2001 AIR SCW 4616) (supra), this Court again considered the question whether termination of the service of the probationer can be termed as punitive merely because it is preceded by an inquiry for the purpose of judging his suitability and answered the same in the negative. The two-Judge Bench referred to a large number of precedents and observed:
Page 48 of 105 C/SCA/9980/2013 CAV JUDGMENT
"29. ... Generally speaking when a probationer's appointment is terminated it means that the probationer is unfit for the job, whether by reason of misconduct or ineptitude, whatever the language used in the termination order may be. Although strictly speaking, the stigma is implicit in the termination, a simple termination is not stigmatic. A termination order which explicitly states what is implicit in every order of termination of a probationer's appointment, is also not stigmatic. The decisions cited by the parties and noted by us earlier, also do not hold so. In order to amount to a stigma, the order must be in a language which imputes something over and above mere unsuitability for the job."
(b) The next one is "Aligarh Muslim University and others Vs Mansoor Alikhan, AIR 2000 SC 2783".
Page 49 of 105 C/SCA/9980/2013 CAV JUDGMENT
"... The absence of a notice to show cause does not make any difference for the employee has already been told that if his further overstay is for continuing in the job with foreign University, it is bound to be refused. The case of the delinquent thus fall within the exceptions stated by in S.L.Kapoor v Jagmohan, AIR 1981 SC 136, namely, that on the admitted or indisputable facts - only one view is possible. In that event no prejudice can be said to have been caused to the delinquent though notice has not been issued." (Emphasis Supplied).
(c) Paragraph 23 of the case law, "State of Manipur Vs Token Singh, (2007) 5 SCC 65" reads as under.
"23. The respondents, therefore, in our opinion, were not entitled to hold the posts. In a case of this nature, where the facts are admitted, the principles of natural justice were not required to be complied with, particularly when the same would result in futility. It is true that where appointments had been Page 50 of 105 C/SCA/9980/2013 CAV JUDGMENT made by a competent authority or at least some steps have been taken in that behalf, the principles of natural justice are required to be complied with, in view of the decision of this Court in Murugayya Udayar (supra)."
(d) Head note (A) of the case law, "Head Master Lawrence School Lovedale Vs Jayantilal Raghu, 2012 (1) GLH 882" reads as under.
"(A) Service Law - Probation - automatic confirmation order passed without enquiry - Whether warrant to quash - The words "if confirmed", read in proper context, confers a status on the appointee which consequently entitles him to continue till the age of superannuation, unless the employee is otherwise removed from the service as per the Rules - Entitlement to continue till the age of superannuation is not absolute - A confirmation, as is demonstrable from the language employed in the Rule, doe not occur with efflux of time, as it is hedged by a condition, an affirmative or positive act is the requisite by the employer. Held, an Page 51 of 105 C/SCA/9980/2013 CAV JUDGMENT order of confirmation is must - Appeal allowed and the judgment and order passed by the High Court are set aside to the extent that the employee had acquired the status of confirmed employee and, therefore, holding of enquiry is imperative."
(e) Paragraphs 44 and 45 of the case law "State of UP Vs Neeraj Awasthi and others, JT 2006(1) SC 19" reads as under. On paragraph No.44, respondents have placed reliance and so far as paragraph No.45 is concerned, learned advocate for the petitioner has placed reliance.
"44. If the employees are workmen within the purview of the U.P. Industrial Disputes Act, they are protected thereunder. Rules 42 and 43 of the U.P. Industrial Disputes Rules provide that before effecting any retrenchment in terms of the provisions of Section 6-N of the U.P. Industrial Disputes Act, the employees concerned would be entitled to a notice of one month or in lieu thereof pay for one month and 15 days' wages for each completed year of service by way of Page 52 of 105 C/SCA/9980/2013 CAV JUDGMENT compensation. If such a retrenchment is effected under the Industrial Disputes Act, the question of complying with the principles of natural justice would not arise. The principle of natural justice would be attracted only when the services of some persons are terminated by way of a punitive measure or thereby a stigma is attached. [See Dr.Suresh Chandra Verma and others v. Chancellor, Nagpur University and others, Karnataka Public Service Commission and others v. B.M. Vijaya Shankar and others, paras 4 and 5 and State of M.P. and others v. Shyama Pardhi and others]
45. In Viveka Nand Sethi v. Chairman, J&K Bank Ltd and others it was held:
"The principle of natural justice, it is trite, is no unruly horse. When facts are admitted, an enquiry would be an empty formality. Even the principle of estoppel will apply. [See Gurjeewan Garewal (Dr.) v. Dr. Sumitra Dash.] The principles of natural justice are required to be complied with having regard to the fact situation obtaining therein. It cannot be put in a straitjacket formula. It cannot be Page 53 of 105 C/SCA/9980/2013 CAV JUDGMENT applied in a vacuum without reference to the relevant facts and circumstances of the case."
10. Before proceeding further, it is required to be looked into the relevant provisions of the Act on which learned counsel for the parties have placed reliance. Learned senior advocate for respondent Nos.2 and 3 has mainly placed reliance on section 11(4)(a) and 11(4)(b) of the Act which reads as under.
"Section 11(4)(a). In any emergency which, in the opinion of the Vice- Chancellor, requires that immediate action should be taken, he shall take such action as he deems necessary and shall at the earliest opportunity thereafter report his action to such officer, authority or body as would have in the ordinary course dealt with the matter."
"Section 11 (4)(b) : When action taken by the Vice-Chancellor under this sub- section affects any person in the Page 54 of 105 C/SCA/9980/2013 CAV JUDGMENT service of the University, such person shall be entitled to prefer an appeal through the said officer, authority or body to the Syndicate within fifteen days from the date on which such action is communicated to him."
10.1 Drawing attention on the above provisions, learned senior advocate for respondent Nos.2 and 3 has submitted that in an emergency and as per the opinion of the Vice Chancellor, any immediate action is required to be taken as he deems necessary being the competent authority he can take such action and only check put on his power is to submit the action taken report to the concerned authority and the second check on his said power is to file appeal by affected person before the Syndicate as provided under section 11(4)(b) of the Act and as the petitioner herein has not preferred such appeal before the Syndicate, this petition should not be entertained.
10.2 On the above sections 11(4)(a) and 11(4) Page 55 of 105 C/SCA/9980/2013 CAV JUDGMENT
(b), learned advocate for the petitioner has submitted that considering the factual position related to this petition, as referred hereinabove, it is clear that as such no emergency has arisen on the part of the Vice Chancellor to take immediate action for issuance of the impugned order dated 14.6.2013, more particularly, when all other documents considered by Three Members' Committee submitted to the Government of India have not been supplied and on the contrary, respondents have deliberately misread the demand and as such ignored the said demand by mentioning that the petitioner himself had produced the report of Three Members' Committee in Special Civil Application No.2144 of 2013 and accordingly forced the petitioner to file preliminary reply dated 30.4.2013 referred above which the petitioner has filed reserving his liberty for personal explanation and to give further reply in case of necessity. As referred above, thereafter twice respondent No.3 has also given assurances to the effect that report along Page 56 of 105 C/SCA/9980/2013 CAV JUDGMENT with the documents submitted by Three Members' Committee, though asked for, is yet to be received from New Delhi vide their letters dated 22.5.2013 and 7/10.6.2013. Then, on 14.6.2013, the impugned order has been issued by respondent No.2. Learned advocate for the petitioner has then submitted that under the above circumstances, how one can believe that the Vice Chancellor was required to take immediate action and in the said emergency, he being the competent authority initiated the inquiry by his own and in turn, has issued the impugned order dated 14.6.2013 under section 11(4)(a) of the Act.
11. So far as the provisions of the above Act are concerned, learned advocate for the petitioner has submitted that "the Act" has been amended with effect from 19.9.2013 and thereby separate department of Board of I.P.G.T.& R.A. has been brought into existence as defined in section 2(6A) and also as an authority of the University as laid down in section 14(iia) of the Act. Section 12A has been inserted for Page 57 of 105 C/SCA/9980/2013 CAV JUDGMENT appointment of Director of Board of PGTR who shall exercise such powers and perform such duties as may be prescribed under the statute and regulations. As per the case of the petitioner, he is appointed in the set up allotted to I.P.G.T. & R.A. which is exclusively managed by Board as per Section 20A and 20B. It is also the case of the petitioner that the cadres of the employees working in I.P.G.T. & R.A. under the Board are different than the cadres of other departments of the University and separate seniority list is also maintained. Referring to the notification dated 29.5.2013 at page 194, learned advocate for the petitioner has submitted that the Board was not in existence when earlier order dated 18.2.2013 against the petitioner was passed but now the Board is constituted under section 20A(1) as per the letter from the Government of India No.R.12015/14/2006-NI dated 16.5.2013 and under the said circumstances, the order of reversion could never have been passed i.e. the impugned order dated 14.6.2013 without Page 58 of 105 C/SCA/9980/2013 CAV JUDGMENT the concurrence of the board as the petitioner has been appointed under the board and who is the competent authority and accordingly the Board only is the disciplinary authority also and thus, as the entire action of the Vice Chancellor of respondent No.2, right from its inception, is against the provisions of the Act, the impugned order is required to be set aside, more particularly, when the petitioner has not committed any wrong.
12. In light of the above discussed facts and circumstances, I have considered the rival submissions made by learned counsel for the parties. It is contended by respondent Nos.2 and 3 that as per the undertaking given by respondent No.2 before the High Court vide office order dated 30.3.2013, copy of inquiry report dated 3.9.2012 was supplied to the petitioner and thus, opportunity with regard to the inquiry officer's report has been given to the petitioner to make written or oral submissions and initially 15 days time was granted to the petitioner for the same, Page 59 of 105 C/SCA/9980/2013 CAV JUDGMENT but the petitioner has not done anything and therefore, again more one week was given to the petitioner and pursuant to it, on 30.4.2013 the petitioner has produced only written submissions which were taken into consideration by respondent No.2 and after thoughtful consideration relating to written submissions as well as other documents forthcoming, the impugned order dated 14.6.2013 has been passed and the petitioner was reverted and thus, it cannot be said that the petitioner has been reverted behind the back and the impugned order is violative of the principles of natural justice. It has also been contended by respondent Nos.2 and 3 that actually, the High Court has not given any opportunity to the petitioner to demand and make other submissions but with regard to the inquiry report only, the petitioner was given liberty to make his submissions. However, the documents were provided to the petitioner. In light of the above contentions made by respondent Nos.2 and 3, I have once again carefully perused the order dated Page 60 of 105 C/SCA/9980/2013 CAV JUDGMENT 19.3.2013 passed by this Court in Special Civil Application No.2144 of 2013 and the documents produced by the petitioner at page Nos.159 to 195 related to the different dates and mostly the communications between the parties which have been summarized here to above in paragraph Nos.7.4 to 7.7. It is contended by the respondents as referred above that though 15 days time was granted after forwarding the inquiry report vide office order dated 30.3.2013 but the petitioner has not done anything and therefore again more one week time was given to the petitioner pursuant to it on 30.4.2013 the petitioner has produced only written submissions which has been taken into consideration. These contentions on behalf of the respondents, in my view, are far from truth and it appears that deliberately the fact which are their on record by way of documentary evidence have been ignored and tried to misread the same. Referring to the letter dated 8.4.2013 at page 159, it appears that after receiving the inquiry report vide Page 61 of 105 C/SCA/9980/2013 CAV JUDGMENT office order dated 30.3.2013, within stipulated period i.e. within 15 days the petitioner has requested vide his above referred letter dated 8.4.2013 to provide for a copy of various documents as mentioned therein including the report and all other documents considered by Three Members' Committee appointed by the Department of AYUSH, Government of India in November 2009 so that contradictions between the two inquiry reports could be easily demonstrated by him. As the petitioner has neither received the documents sought for, nor denied for the same and accordingly in absence of any response, the petitioner has again written letter dated 22.4.2013 at page 160 and requested to provide him details which he has asked vide his earlier letter dated 8.4.2013. It is important to note that in this 2nd letter dated 22.4.2013, the petitioner has specifically clarified that fact findings of above referred Three Members' Committee has already produced by him in his Special Civil Application No.2144 of 2013, but he Page 62 of 105 C/SCA/9980/2013 CAV JUDGMENT wants complete inquiry report and other documents submitted to the Government of India by the said three officers. Under the circumstances, I do not find any force and merit in the submissions made by learned senior advocate for respondent Nos.2 and 3 that the petitioner has not done anything within the stipulated period of 15 days given to him vide office order dated 30.3.2013. On this point, learned senior advocate for respondent Nos.2 and 3 drawing attention of this Court on 1st and 2nd letters respectively dated 8.4.2013 and 22.4.2013 submitted that irrelevant documents were sought for by the petitioner and when the petitioner has produced the said report in earlier petition and also in this petition, what was the need to ask for the same and then reiterated the demand by asking certified copy and this conduct of the petitioner is nothing but the tactics for delaying the proceedings. I do not find any merit in the said submission because if according to respondents, if the petitioner has asked for irrelevant documents, then they Page 63 of 105 C/SCA/9980/2013 CAV JUDGMENT could have replied to that effect denying the said demand but the respondents have chosen to remain silent. When the petitioner has written 2 nd letter dated 22.4.2013, learned senior advocate for respondents has submitted that petitioner has reiterated the same demand. I failed to understand that under the above circumstances, except reiterating the demand, which other option would be open to the petitioner.
13. The respondents have also boldly contended that actually the High Court has not given any liberty to the petitioner to demand and to make other submissions, but with regard to inquiry report only, the petitioner was given liberty to make his submissions, however, the documents were provided to the petitioner by them. Once again, I have gone through paragraph Nos.4, 5 and 6 of the order dated 19.3.2013 passed in Special Civil Application No.2144 of 2013 reproduced hereinabove in paragraph No.7.4 of this order. In my view, totally false defence Page 64 of 105 C/SCA/9980/2013 CAV JUDGMENT and false contentions have been made by respondent Nos.2 and 3. It is the fact that order dated 18.2.2013 of reversion was withdrawn vide office order dated 30.3.2013 as referred above, and accordingly, the petitioner had withdrawn the petition at that stage without prejudice to his rights and contentions. This Court specifically reserved liberty to the petitioner to raise all contentions available in law, at the time when he is granted hearing (after supplying copy of the report dated 3.9.2012) during the proceedings. Thus, it is incorrect on the part of the respondents to contend that the petitioner was not entitled to demand the documents and to make other submissions is the submission made by learned advocate for the petitioner and I find myself in complete agreement with the same. It is also to be noted at this juncture that though it has been contended that however, the documents were provided to the petitioner by the respondents, but no document has been placed by the Page 65 of 105 C/SCA/9980/2013 CAV JUDGMENT respondents in support of the same and the petitioner, as such, has denied the said contention on oath.
14. After the 2nd letter dated 22.4.2013 of the petitioner referred above, respondent No.2 has also given response to the same and informed vide letter dated 22.4.2013 which was received by the petitioner on 24.4.2013 that report of Three Members' Committee sought for by him has already been annexed by the petitioner himself in the writ petition being Special Civil Application No.2144 of 2013 vide Annexure-M page Nos.128 to 136 and also informed that after the petitioner give his comments on the findings of the report of Inquiry Officer within a week, respondent No.2 will decide as to what action should be taken and accordingly, second show cause notice shall be issued to the petitioner. It is important to note that said second show cause notice has never been issued by respondent No.2 to the petitioner. In response to the above letter dated 22.4.2013 Page 66 of 105 C/SCA/9980/2013 CAV JUDGMENT which was received by the petitioner on 24.4.2013, the petitioner gave preliminary reply within a week i.e. on 30.4.2013 reserving his right to give personal explanation and further liberty to give other and further reply after issuance of show cause of the proposed action. It has also contended and defence has been taken by the respondents that pursuant to one week's time granted by the respondents as referred above vide their reply dated 22.4.2013 received by the petitioner on 24.4.2013, on 30.4.2013, the petitioner has produced only written submissions and the said written submissions were taken into consideration by the University - respondent No.2 and after thoughtful consideration whatever written submissions produced by the petitioner, the impugned order dated 14.6.2013 has been passed and reverted the petitioner on his original post as Stenographer Grade-III. Referring to the document dated 30.4.2013 at page Nos.162 to 181, it appears that the same is the copy of preliminary reply of the petitioner Page 67 of 105 C/SCA/9980/2013 CAV JUDGMENT referred hereinabove reserving liberty to give personal explanation and also further liberty to give any other and further reply in case of necessity. Thereafter, neither the petitioner has produced further reply in absence of non-supply of documents sought for nor produced any written submissions. The respondents have not produced the copy of the said written submissions which had been considered by them and after thoughtful consideration whatever written submissions produced by the petitioner, they have passed the impugned order. As the respondents have contended that pursuant to one week's time granted by them on 30.4.2013, the petitioner has produced written submissions in absence of any document to that effect as referred above. I am presuming that respondents have alleged to have considered the preliminary reply to which they are addressing written submissions. Referring to the impugned order dated 14.6.2013, it appears that vide serial No.5, the written submissions (not written reply or preliminary reply) related to the Page 68 of 105 C/SCA/9980/2013 CAV JUDGMENT petitioner was perused i.e. considered by the respondents. I pose a question to myself that why the preliminary reply mentioned by the petitioner be addressed by respondents as written submissions. May be, because no document has been forthcoming on the record to show that personal hearing in light of order dated 19.3.2013 passed by this Court has been given to the petitioner related to inquiry report supplied by them vide office order dated 30.3.2013. It is the defence of the respondents that they have thoughtfully considered written submissions / preliminary reply but that consideration has not come on record of this petition. Neither that thoughtful consideration or outcome of that thoughtful consideration has been forwarded by the respondents to the petitioner nor anything has been contended to that effect in affidavit-in- reply dated 21.6.2013 filed by them at page Nos.196 to 212. Referring to the impugned order dated 14.6.2013 as mentioned therein that the petitioner has only made written submissions Page 69 of 105 C/SCA/9980/2013 CAV JUDGMENT which have been thoughtfully and minutely considered and as the same is not acceptable, the impugned order has been passed. From the above discussion, it can be safely and easily derived by any lay-man that though it has been specifically said that respondents have thoughtfully considered written submissions / preliminary reply dated 30.4.2013, the said consideration has not taken shape of written document. It is also important to note that before issuance of the impugned order dated 14.6.2013 vide letter dated 22.5.2013 - page 185 and letter dated 7/10.6.2013 - page 187 written by the respondents, they have informed the petitioner that the report of Three Members' Committee appointed by the Government of India is yet to be received by them from New Delhi. Referring to the letter dated 10.6.2013 received by the respondent No.2 at 11.00 a.m., written by the petitioner, it appears that he has requested respondent No.2 to provide him an opportunity of hearing before any further decision to be taken Page 70 of 105 C/SCA/9980/2013 CAV JUDGMENT by them with a view to appropriately explain the whole process by him, but it appears that thereafter no opportunity of hearing has been given by the respondents to the petitioner in spite of the fact that liberty has been granted by this Court not only for personal hearing but also to raise all contentions available in law as well as it has further clarified by this Court that respondent Nos.2 and 3 may grant sufficient time to the petitioner for personal hearing. Considering the above referred conduct of respondent Nos.2 and 3, in my view, the same is enough to come to the conclusion that the impugned order dated 14.6.2013 which is under challenge in this petition is not just and legal because the respondents have not given any reasons on the issues and points raised by the petitioner in his preliminary reply dated 30.4.2013 referred above. Moreover, nothing has come on record to show that the respondents have considered the issue of jurisdiction of Inquiry Officer which has been raised by the petitioner Page 71 of 105 C/SCA/9980/2013 CAV JUDGMENT and also not considered the fact that it is only the Board which will have jurisdiction either to appoint an Inquiry Officer and/or to pass an order against the petitioner. In absence of reasons, the impugned order dated 14.6.2013 becomes nullity in the eye of law is the submission made by learned advocate for the petitioner and there appears substance and merit in it.
15. Before proceeding with the inquiry report dated 3.9.2012 at page Nos.158/A to 158/Z- 26 and the issues related to the same, certain other conduct so far as respondent No.2 is concerned which has come on record as submitted by learned advocate for the petitioner is required to be noted at this juncture. Referring to the minutes of the 18th meeting of the Board dated 26.9.2011 and more particularly, minutes related to Item No.7 which has been reproduced hereinabove in paragraph 7.1, it appears that the Vice Chancellor of respondent No.2 in the Page 72 of 105 C/SCA/9980/2013 CAV JUDGMENT capacity of an ex-officio member and Chairman of the said meeting of Board has reported that one man inquiry committee under retired Judge has been set up on the complaint of one Social Activist which was forwarded by the office of the Governor, State of Gujarat and though the Director of I.P.G.T. & R.A. had responded, the office of the Governor it had again asked parawise clarification on ten related issues to know the truth and facts related to the matters of recruitment process for the post of Office Superintendent but in fact the Vice Chancellor had as such misled the Board by misrepresentation of above referred facts and thereafter appointed the Inquiry Officer by his own on 8.12.2011 showing alleged emergency and later on submitted that under section 11(4)(a) of the act, he was duty bound to appoint Inquiry Officer. In the affidavit-in-reply, nothing has been explained by the respondents on this aspect as to why, the Vice Chancellor misled the Board on 26.9.2011 when no such inquiry committee that too under a Page 73 of 105 C/SCA/9980/2013 CAV JUDGMENT Retired Judge, was ever appointed. Learned advocate for the petitioner has submitted that had the Vice Chancellor being an ex-officio Chairman of the 18th meeting of Board, at New Delhi, not misled the Board, most of the members had already expressed their opinion to confirm the service of the petitioner on the post of Office Superintendent as can be seen from the minutes of resolution No.7 reproduced at paragraph 7.1 hereinabove. I have gone through the same and there appears substance and merit in it which throws more light related to conduct of respondent No.2.
16. It has been vehemently argued by learned senior advocate for the respondents that Vice Chancellor being competent authority has rightly exercised his power under section 11(4)(a) of the Act and the check on his power related to section 11(4)(a) of the Act to submit action taken report has not been breached and so far as the 2nd check on his power under section 11(4)(b) of the Act to Page 74 of 105 C/SCA/9980/2013 CAV JUDGMENT file an appeal by affected person to Syndicate has not been filed by the petitioner and the petitioner has straightaway filed this petition which is not maintainable. The question to be decided is, under the circumstances narrated above, can it be said that Vice Chancellor has rightly exercised the powers conferred upon him under section 11(4)(a) of the Act to take decision by his own to appoint Mr.J.G.Vohra, retired Deputy Secretary vide office order dated 8.12.2011 as Inquiry Officer for taking immediate action under emergent process, on the allegations made by one Social Activist vide application dated 6.6.2011. Learned advocate for the petitioner has submitted that with the sole object to discontinue the probation of the petitioner, after a long time and also after misleading the members of the Board, as referred above, powers under section 11 of the Act has been exercised which could never fall under emergent action. Moreover, nothing has come on record to show as to whether the Vice Chancellor Page 75 of 105 C/SCA/9980/2013 CAV JUDGMENT has sent the report of his action to the Board or not and so under section 11 of the Act, the impugned order of respondent No.2 would not stand for a second. It has been submitted by learned advocate for the petitioner that in the case on hand, there has been no emergency at all in view of the fact that the petitioner has been working on the post of Office Superintendent and Vice Chancellor has initiated action in the year 2011 after misleading the Board as referred above. He has also submitted that emergent power could never have been exercised, that too, without following the process of law because in the case on hand and in the circumstances narrated above, it is only the Board which could have taken action against the petitioner, more particularly, when the Act has been amended in the year 2003, as referred above. Moreover, so far as 2nd check on power of Vice Chancellor under section 11(4)
(b) of the Act to file an appeal by affected person to Syndicate is concerned, it appears that after the above referred amendment of the Act in Page 76 of 105 C/SCA/9980/2013 CAV JUDGMENT 2003, "The Board of Post Graduate Teaching and Research" came to be established over and above other authorities like Senate, Syndicate, etc. vide amendment 14(iia) of the Act. Referring to section 19 of the Act, it further appears that Vice Chancellor of the University is Ex-officio Chairman of the executive authority of the Syndicate. If that be so, how the 2 nd check on the power of Vice Chancellor be carried out by the affected person by preferring an appeal under section 11(4)(b) of the Act before the Syndicate whose Ex-officio Chairman is the same person against whom the affected person wants to prefer an appeal. There appears merit and force in the said submission made by learned advocate for the petitioner. It is the fact that Inquiry Officer Mr.Vohra has not been appointed by the Board nor he has been appointed after the consultation with the Board. It is important to note at this juncture that Government of India established IPGTRA in the year 1956. Thereafter, State of Gujarat established the Gujarat Ayurvedic Page 77 of 105 C/SCA/9980/2013 CAV JUDGMENT University in 1965 pursuant to the Gujarat Ayurvedic University Act, 1965. Thereafter, by enactment dated 11.6.1970 the management of the IPGTRA has been handed over to the University. However, the entire cost is borne by the 100% grant given by the Central Government. To avoid technical difficulties, the Act came to be amended in the year 2003. Pursuant to the Amendment, which came into force w.e.f. 19.9.2003, several provisions have been incorporated under the Act. The most important amendment has come in the form of Section 14(iia) of the Act whereby one more authority of the University, namely, the Board of Post Graduate Teaching and Research came to be established over and above other authorities like Senate, Syndicate, etc. As per Section-12A, the provision has been inserted for appointment of the Director of the Board who shall exercise such powers and performs such duties as may be prescribed under the statute and regulations. Further, most of the powers and duties of the University Syndicate Page 78 of 105 C/SCA/9980/2013 CAV JUDGMENT which were performed by the University's Syndicate earlier have been given to the Board as per Sections 20A and 20B of the Act. Apart from the above said duties, the principal duty is to "manage" the IPGTRA. It is also not under dispute that vide order dated 8/9.10.2006 the University resolved to maintain different cadres in the University as well as I.P.G.T.& R.A. The petitioner has been appointed on the post of Office Superintendent in I.P.G.T.& R.A. Under the circumstances, the order of reversion i.e. the impugned order never have been passed without concurrence of the Board as the petitioner has been appointed under the Board more particularly when the Board is constituted on 29.5.2013 as per letter from the Government of India No.R.12015/14/2006-NI dated 16.5.2013. In absence of any specific denial and in absence of any explanation by the respondents on the above point, there appears merit in the above submission made by learned advocate for the petitioner.
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17. The appointment order of Mr.J.G.Vohra, retired Deputy Secretary, appointing him as Inquiry Officer dated 8.12.2011 is at page 219. The inquiry report dated 3.9.2012 is at page Nos.158/A to 158/Z-26. Referring to the said inquiry report, learned senior advocate for the respondents has mainly submitted that the Inquiry Officer has perused and discussed all the Rules and Regulations of the University and given said detailed inquiry report and held that the petitioner's appointment on the post of Office Superintendent is not as per the Recruitment Rules and appointment is made in absence of Recruitment Rules and therefore, his appointment is illegal and irregular.
18. Drawing attention of this Court on paragraphs 8 and 9 of the affidavit-in-reply filed by the respondents, learned senior advocate for respondents has submitted that the Recruitment Rules of the Office Superintendent Page 80 of 105 C/SCA/9980/2013 CAV JUDGMENT which were prevailing before 2011 have been produced by the petitioner and relevant clause on which the respondents have put reliance reads as under.
"Post of Office Superintendent - 6500- 10500 Essential Bachelor Degree with 5 years of Experience with responsible Administrative post, age Not less than 30 years.
In relaxation age and Educational qualification may be relaxed in case of Internal candidate in Case of promotion."
18.1 It has been further submitted by the respondents that on 30.6.2008, the post of Office Superintendent has become vacant as Shri V.P.Buch who was working on post of Office Superintendent in I.P.G.T.& R.A. had retired. Therefore, above mentioned Rules would be applicable in case of the petitioner and relaxation would be given in educational qualification in case of promotion Page 81 of 105 C/SCA/9980/2013 CAV JUDGMENT only, but in case on hand, it is an admitted position that the petitioner was appointed, as applied, as direct recruitee. It is further contended in paragraph 9 of the affidavit-in- reply that I.P.G.T.& R.A. has made draft / proposed rules of Office Superintendent and suggested that relaxation in age and educational qualification requires to be given in case of promotion and failing which by open selection also so that the petitioner can be appointed on the post of Office Superintendent. The said draft rules have been sent to the Board of I.P.G.T.& R.A. in the 13th meeting of the Board which was held at Department of AYUSH, New Delhi on 27.8.2008. In the said meeting, Item No."C" is with regard to "To consider and approve Recruitment Rules for the post of Office Superintendent and P.A. to Director, I.P.G.T.& R.A., Jamnagar". It is the fact that in the said meeting, the said rules were not approved and it is mentioned in the meeting that "this agenda item could not be taken up by the Board due to Page 82 of 105 C/SCA/9980/2013 CAV JUDGMENT paucity of time. The Director, I.P.G.T.& R.A. was asked to send proposal to the Department of AYUSH". It means that on 27.8.2008, the rules were not approved. Thereafter, the Director of I.P.G.T.& R.A. sent the proposal on 29.9.2008 and the rules were approved on 8.10.2008. The Board has approved the rules to the effect that "as regards the post of Office Superintendent the Recruitment Rules stand modified as under :
"Board of Recruitment :
-> By promotion, failing which by direct recruitment.
-> Relaxation : Age etc., may be relaxed in case of internal candidate."
The respondents have then submitted that from the above, it is clear that on 8.10.2008, the rules were sanctioned / approved in which "age etc., may be relaxed" words have been used. Drawing attention of this Court on page 42, which is a copy of advertisement published on 18.9.2008, the respondents have submitted that when the rules Page 83 of 105 C/SCA/9980/2013 CAV JUDGMENT were not approved as referred hereinabove, advertisement was published on 18.9.2008 and it means that in absence of Recruitment Rules, public advertisement was issued and by giving relaxation in educational qualification, the petitioner was given appointment on the post of Office Superintendent. As per the rules, educational qualification is graduate whereas the petitioner is F.Y.B.A and relaxation in educational qualification was given to him relying upon the rules which were not sanctioned at all. At the time of publishing advertisement relaxation can be given to internal candidate, by way of promotion only and it is established law of service jurisprudence that age and experience can be relaxed, but educational qualification cannot be relaxed otherwise 5th standard pass person can be appointed on the post of Office Superintendent. Thus, the petitioner is not qualified on the post of Office Superintendent, in absence of valid and approved Recruitment Rules as referred above. Lastly, learned senior Page 84 of 105 C/SCA/9980/2013 CAV JUDGMENT advocate for the respondents has submitted that as the petitioner was appointed by giving relaxation in educational qualification and, therefore, he cannot continue on the post of Office Superintendent and accordingly, the impugned order dated 14.6.2013 passed by the respondents is just and proper.
18.2 Before discussing further, certain facts related to the petitioner, which are emerging from documentary evidence produced by the petitioner, are required to be considered with a view to justify the submission made by the respondents referred hereinabove. While making the above referred submission, the respondents have put stress on the fact that relaxation in educational qualification cannot be given otherwise 5th Standard pass person i.e. Class-IV employee can be appointed on the post of Office Superintendent. In the case of the petitioner, his educational qualification is F.Y.B.A. pass and he is not graduate. Without entering into Page 85 of 105 C/SCA/9980/2013 CAV JUDGMENT merits or demerits on the above issue so far as this petition is concerned, in the above circumstances, the next question to be cropped up is, whether the employer can take additional work of Office Superintendent from the richly experienced employee who is 5th Standard pass or F.Y.B.A. pass. The petitioner has annexed certain documents at page Nos.73 to 120 which he had also annexed with his application form submitted by him in light of the advertisement dated 19.8.2008 published by the Director of I.P.G.T. & R.A. The educational qualification narrated below of the petitioner is not under dispute. The same is as under.
Sr. Examination Board/Uni. Year of
No. passing.
1 S.S.C.E. Gujarat Sec. Edu. 1980
Board, Gandhinagar
2 H.S.C.E. Gujarat Sec. Edu. 1982
Board, Gandhinagar
3 F.Y.B.A. Saurashtra 1986
(English) University, Rajkot
4 English State Examination 1980
Typewriting Board, Ahmedabad
30 wpm
5 Stenography National Council 1984
English 80 for Vocational
w.p.m. and Training, Govt. of
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C/SCA/9980/2013 CAV JUDGMENT
Typewriting India, Ministry of
40 w.p.m. Labour.
6 Hindi Rastrabhasa Prachar 1978
Prambhik Samiti, Vardha
7 Sistavanchan Gujarat Sistavancha 1978
Examination Trust,
Vadodara
8 Sanskrit Shri Saurashtra 1978
Sahitra Vidyut
Prarambh Parishtpatriksha
Jamnagar
9 CCC+ S.P.I.P.A., Rajkot. 2008
18.3 The experience derived by the petitioner
during the service can be summarized as under.
1. Worked as English Steno-Typist in M.P.Shah Medical College, Jamnagar.
2. Working as English Stenographer Gr.III in I.P.G.T.& R.A., Gujarat Ayurved University, Jamnagar from 28.01.1987.
3. Worked as P.A. to Dean & Incharge for general administration in I.P.G.T.& R.A., Gujarat Ayurved University, Jamnagar.
4. Worked as Steno Gr.II-cum-P.A. to Dean in I.P.G.T.& R.A., Gujarat Ayurved University, Jamnagar from 01.01.1998 to 28.01.2003 (5 years 28 days).
5. Worked as I/c Head Clerk, I/c Officer Supdt. from 11.05.1995 to 22.05.1995 (14 days).
6. Worked as Office Superintendent (O.S.) from 27.11.1995 to 06.12.1995 (10 days).
7. Accounting work allotted to take cash Page 87 of 105 C/SCA/9980/2013 CAV JUDGMENT charges amount from patients of Special Room, X-ray charges and deposited in the A/c Section from 01.10.2001 to 11.11.2002 (1 year 1 month).
8. Establishment (EST) work of Fixation and Audit of pay scales of teaching staff of I.P.G.T.& R.A. from 13.06.2000 to 17.08.2003 (3 years 1 month).
9. Worked in the P.G.Hospital Establishment / Store from 14.12.2000 to till today.
10. Worked in the Estate Section of the University (Dead Stock/Condomn of all University Departments, Purchase of Uniforms of all Class-IV employees) from 18.08.2003 to 26.07.2005 (Two years).
11. Worked in the P.G.Hospital Establishment and allotting works of EST P.H.Hospital, etc. Also working in the Office of the Director and allotting works of Board, RTI, SAC, Annual Report alongwith additional duty of Stenographer and other administrative works from 26.07.2005 to till today.
12. Worked as I/c Office Supdt. From 1.7.08 to 31.8.09 (two months).
18.4 The additional responsibilities performed by the petitioner are as under.
1. Appointed as Assistant of Inquiry Officer for the Inquiry of one Sweeper of P.G.Hospital in the year 2001.
2. Appointed as Additional Presiding Officer by the University for the Senate Election held on 23.05.1993.
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3. Appointed as Assistant of Inquiry Officer for the Inquiry of Dr.Elizabeth P.John in the year 2003.
4. Appointed as Committee member for the preparation of Roster Register of I.P.G.T.& R.A. in the year 2006.
5. Appointed as Committee member for the preparation of Recruitment Rules (RR) of posts of I.P.G.T.& R.A.
6. Appointed as Presenting Officer for the Inquiry of Two Class-IV employee of I.P.G.T.& R.A. in the year 2008.
7. Appointed as Presenting Officer for the Inquiry of one Class-IV employee of I.P.G.T.& R.A. in the year 2008.
8. Worked in the MD (Ayu) Admission Entrance Test.
9. Committee member for computerization of OPD/IPD Case Papers of the Patients.
10. Assist Scrutiny Committee for the scrutiny of application forms.
11. Assistant for Liason Officer for OBC Roaster Register of teaching & Non teaching posts.
12. Assistant for Liason Officer for SC/ST Roster Register of teaching & Non teaching posts.
18.5 Personal achievements prior to petitioner is appointed as Office Superintendent are as under.
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- Reviewing Officer recorded overall assessment in the ACR for the period 01.04.2006 to 31.03.2007 with remarks "Excellent.
- Reviewing Officer recorded overall assessment in the ACR for the period 01.04.2007 to 31.03.2008 with remarks "Excellent. Very useful the Institute and have good knowledge of rules and regulations.
18.6 Referring to the minutes of the 18th meeting held at New Delhi dated 26.9.2011, more particularly, the minutes related to Item No.7 reproduced in paragraph 7.1 hereinabove and the averments made on oath by the petitioner in paragraph 4.1 of affidavit-in-rejoinder, it appears that overall assessment during the work on the post of Office Superintendent of the petitioner made by reviewing officer for the years 2008-2009 to 2012-2013 reads as under.
Year Assessment by Reviewing Officer 2008.2009 Excellent 2009.2010 Excellent 2011.2012 Very Good Page 90 of 105 C/SCA/9980/2013 CAV JUDGMENT 2012.2013 Excellent 18.7 From the above narration of facts, one
can easily conclude that though the petitioner had been appointed on 28.1.1987 as English Stenographer, Grade-II in I.P.G.T. & R.A. by performing various additional duties, over and above his regular official duty, the petitioner has received much experience and can be said to be richly experienced employee of I.P.G.T. & R.A.
19. Referring to the office order dated 8.12.2011 at page 219, it appears that Mr.J.G.Vohra retired Deputy Secretary has been appointed as Inquiry Officer. The Inquiry work entrusted to him is mentioned in the last portion of said order dated 8.12.2011 and accordingly, the Inquiry Officer was supposed to make inquiry regarding the allegations made in the complaint of Mr.Vaya dated 6.6.2011 and on the ten issues raised by the office of Honourable Governor vide its letter No.G.S.11.9/10/5571 dated 26.8.2011. Page 91 of 105 C/SCA/9980/2013 CAV JUDGMENT No time period of said inquiry was fixed while passing the above referred office order dated 8.12.2011 nor any mode of inquiry has been mentioned / suggested or directed in it. Drawing attention to the inquiry report dated 3.9.2012 at page Nos.158/A to 158/Z-26, learned advocate for the petitioner has submitted that the subject mentioned in the said report itself makes the said report illegal because as such the said report should be the "preliminary inquiry report"
report and if the manner in which it has been carried out can lead to the conclusion that Inquiry Officer has, as such, made the "preliminary inquiry report" and hence he has not given any opportunity of cross examination to the affected person. It is alleged by the petitioner that with ulterior motive, the respondents appear to have been scoured off word "preliminary"
before supplying the copy of the same to him and though the Inquiry Officer had prepared "preliminary inquiry report", the same has been converted as final inquiry report by scouring off Page 92 of 105 C/SCA/9980/2013 CAV JUDGMENT the word "preliminary" at three places at page No.158/A and also at one place at page No.158/Z- 22 and the said allegations become strengthen by the fact that the said "scoured off" portion is without bearing any initials of Inquiry Officer and considering the mode and manner in which the inquiry has been undertaken is enough to discard the said inquiry report into toto. It is important to note that in the petition as well as in the written submissions / preliminary reply at page Nos.162 to 181, the above allegations have been specifically levelled by the petitioner against respondent No.2 at paragraph 3.1(vi) at page 167 but no explanation has been forthcoming on record in the affidavit-in-reply filed by them at page Nos.196 to 212 and nothing has been forthcoming on the record that while giving the thoughtful consideration on the written submissions / preliminary reply, how the same has been considered by the respondents. 19.1 It is important to note at this juncture Page 93 of 105 C/SCA/9980/2013 CAV JUDGMENT that in paragraph No.5 of their affidavit-in- reply, after referring two letters dated 15.6.2011 and 26.8.2011 of the Under Secretary to the Governor, the respondents have contended that pursuant to the said order of the Government, respondent No.2 has appointed the Inquiry Officer Shri J.G.Vohra, retired Deputy Secretary and Inquiry Officer vide office order dated 8.12.2011 to look into the matter and inquire about the case of the petitioner. Learned advocate for the petitioner has submitted that from the above contentions, the respondents have tried to show that respondent No.2 has appointed the Inquiry Officer as they were directed to do so by the Chancellor but referring to both the said letters respectively at page Nos.213 and 217, it can be seen that no direction from the Chancellor to appoint an Inquiry officer has ever been given to the respondents. Drawing attention of this Court on letter dated 26.8.2011 at page 217, learned advocate for the petitioner has submitted that it can be easily seen that the respondents have Page 94 of 105 C/SCA/9980/2013 CAV JUDGMENT written letter No.PGT/7/Dir/2011-12 1581 dated 17.8.2011 on the subject major irregularities and violation of rules in recruitment of Office Superintendent post to the Under Secretary to Governor and in further clarification on the points 1 to 10 appended with the same was sought for but the said letter dated 17.8.2011 has been purposefully not produced by the respondents. In the said letter dated 17.8.2011, the process of recruitment undertaken by the University while making the appointment of Office Superintendent clearly mentioned in which respondent No.2 has defended its action of petitioner's appointment. It is pertinent to note that neither the two letters dated 15.6.2011 or 26.8.2011 nor the points of clarifications ever suggest the desire of Chancellor to carry out any inquiry or to appoint an Inquiry Officer. So, as such, respondent No.2 has taken the action of appointment of Inquiry Officer Mr.Vohra who was retired Deputy Secretary by its own keeping the Board aside as discussed hereinabove. Page 95 of 105 C/SCA/9980/2013 CAV JUDGMENT 19.2 Learned advocate for the petitioner has then drawn attention of this Court on conclusion of the Inquiry Officer narrated in paragraph 6 of the inquiry report at page Nos.158/Z-22 and 158/Z-23 and submitted that in paragraph No.6(2) of the same, the Inquiry Officer has observed that I.P.G.T. & R.A. is entitled to fill up the post of Educational, Para-medical and Technical but though it is clear that the said I.P.G.T. & R.A. is not the competent authority to fill up the administrative post, but it is advisable to get opinion on the same from the Health and Family Welfare Department of Government through the Legal Department and/or opinion of the Department of Legislative and Parliamentary Affairs, but such opinion has not been forthcoming on record, though the respondents still appear to have proceeded further ignoring the said advice of Inquiry Officer for the reasons best known to them. In absence of any clarification or explanation on the above point, Page 96 of 105 C/SCA/9980/2013 CAV JUDGMENT there appears force and merit in the said submission made by learned advocate for the petitioner.
20. The respondents have also contended in their affidavit-in-reply that the petitioner is not confirmed and he being the probationer employee, there is no necessity to hold detailed inquiry against him and even the question to cross examine the witnesses would not arise before the Inquiry Officer because the Inquiry Officer was appointed pursuant to the instructions of the Chancellor and as such it is fact finding report. Respondents have still contended that actually, the inquiry report is also not required to be given to the petitioner, but to follow the principles of natural justice and to give opportunity to defend his case with regard to inquiry, the same was afforded and accordingly, impugned order is just and proper and this court should not interfere with the same. In my view, the above contention related to Page 97 of 105 C/SCA/9980/2013 CAV JUDGMENT handing over the copy of inquiry report after the above referred order dated 19.3.2013 passed by this Court in Special Civil Application No.2144 of 2013 should have been avoided by the respondents but it appears that they could not restrain themselves and the said conduct of respondents speaks a lot.
20.1 In light of the above submissions made by learned senior advocate for the respondents, they have placed reliance on the decision in the case of Palak Modi (supra) referred above and submitted that it has been specifically held by the Supreme Court that a probationer has no right to hold the post and his service can be terminated at any time during or at the end of the period of probation on account of general suitability for the post held by him and the competent authority respondent No.2 herein as such can terminate the service as the petitioner was recruited by direct selection and also appointed in absence of Recruitment Rules but on Page 98 of 105 C/SCA/9980/2013 CAV JUDGMENT sympathetic ground, respondent No.2 University has put him on his original post as Stenographer Grade-III without casting any aspersion or stigma.
20.1.a Learned advocate for the petitioner has also placed reliance on paragraph No.27 of the same citation which has also been reproduced earlier. As observed in the said paragraph No.27, the foundation of the action taken by the General Manager was the accusation in the objective test, the private respondents resorted to copying. IBPS had relied upon the analysis made by computer and sent report to the Bank that 18 candidates were suspected to have used unfair means and the chart of seating arrangement supported and treated the same as piece of evidence for coming to the conclusion that private respondents had indeed used unfair means in the examination. The said exercise was not preceded by an inquiry involving the private respondents and no opportunity was given to them to defend themselves against the Page 99 of 105 C/SCA/9980/2013 CAV JUDGMENT charge of use of unfair means and as they were condemned unheard which was legally impermissible and accordingly, order of termination was set aside.
20.1.b I have considered and gone through the above referred case law and the observations and ratio laid down by the Supreme Court. I am in complete agreement with the ratio laid down in paragraph 20 that on account of general suitability for the post held by the respondents during the period of probation can be terminated as probationer has no right to hold the post. So far as the case on hand is concerned, the observations and ratio laid down in paragraph 27 is squarely applicable to the petitioner is submission made by learned advocate for the petitioner and I find myself in complete agreement with the same because in the case on hand, though the inquiry was held, the petitioner was not heard and also not heard after the order dated 19.3.2013 passed by this Court in Special Page 100 of 105 C/SCA/9980/2013 CAV JUDGMENT Civil Application No.2144 of 2013. As discussed above, the Inquiry Officer has initiated the preliminary inquiry and also prepared preliminary inquiry report. When the petitioner has received copy of the said inquiry report after this Court has passed order dated 19.2.2013 referred above, the petitioner has found that from four places the word "preliminary" has been scoured off without putting any initial to that effect. The petitioner has alleged that respondent No.2 has converted the "preliminary inquiry report" in a final inquiry report by scouring off the word "preliminary" by their own. No explanation has been forthcoming on the part of the respondents and affidavit-in-reply filed by the respondents is silent on the above aspect. Though directed by this Court vide order dated 19.3.2013 passed in Special Civil Application No.2144 of 2013, personal hearing was not given as discussed hereinabove nor written submissions / preliminary reply has been considered by the respondents for the reasons best known to them. Moreover, as Page 101 of 105 C/SCA/9980/2013 CAV JUDGMENT referred above, after undergoing lengthy exercise carried out by the respondents, the petitioner was selected and appointed on the post of Office Superintendent. For the sake of argument, for the time being if we believe that the petitioner's appointment on the post of Office Superintendent was not as per the Recruitment Rules and the appointment was made in absence of Recruitment Rules and as submitted by learned senior advocate for the respondents that the crux of the inquiry report is whether the petitioner possesses the requisite qualification or not and accordingly, after the inquiry, it was found that the petitioner was educationally unqualified for the post and accordingly, as the petitioner's appointment found illegal and irregular, the impugned order dated 14.6.2013 has been passed, then in that circumstances, the question which cropped up for our consideration is that, in absence of any allegations against the petitioner related to unfair means, what is the fault on the part of the petitioner, if he was appointed after Page 102 of 105 C/SCA/9980/2013 CAV JUDGMENT undergoing perfect and legal process carried out by the respondents and accordingly Scrutiny Committee has scrutinized and also after undergoing the process of Staff Selection Committee, he was appointed. The next question to be cropped up is, if both the committee members remained negligent in their duty, what is the fault on the part of the petitioner to undergo the punishment imposed only against him by issuing the impugned order dated 14.6.2013. Under the above circumstances, in my view, the Vice Chancellor of respondent No.2 who is the ex- officio Chairman of the Board of I.P.G.T. & R.A. has mislead the members of the Board during the course of 18th meeting of the Board held on 26.9.2011 as discussed hereinabove and each and every action taken thereafter by him is against the well settled principles of law, as discussed above and so with a view not to burden more to the record of this petition, I thought it fit not to discuss the rest of the citations on which the respondents have placed reliance though I am as Page 103 of 105 C/SCA/9980/2013 CAV JUDGMENT such not agreeable to the submissions that the same are applicable to the case on hand.
21. Under the circumstances narrated hereinabove, in my view, this 2nd petition filed by the petitioner on the above referred issue is allowed. The impugned order dated 14.6.2013 at Annexure-A to the petition is hereby set aside. Considering the specific conduct of respondent No.2 University, discussed hereinabove and considering the fact that respondent No.2 has deliberately tried to mislead the Court by knowingly misinterpreting the earlier order passed by this Court dated 19.3.2013 in Special Civil Application No.2144 of 2013, referred hereinabove, in paragraph 7.3, in my view, respondent No.2 has intentionally tried to ignore the important facts on record and so the petitioner is entitled to get the amount of cost from respondent No.2 which is quantified at Rs.25,000/-. The respondent No.2 is directed to deposit the amount of cost of Rs.25,000/- before Page 104 of 105 C/SCA/9980/2013 CAV JUDGMENT the registry of this Court towards the cost of preferring this 2nd petition by the petitioner and the petitioner is at liberty to withdraw the same following the due procedure for the same.
(G.B.SHAH, J.) pathan Page 105 of 105