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S.B. Civil Writ Petition No.1320/2007
Govind Singh
Vs
State of Rajasthan & Ors
Date of order : 12.8.2009
HON'BLE MR. PRAKASH TATIA, J.
Dr. Sachin Acharaya, for the petitioner
Mr. Rajesh Bhati, Asstt to AAG.
Heard learned counsel for the parties.
The petitioner was given appointment on the post of
Lower Divisional Clerk vide order dated 10th May, 1994 on
petitioner’s application dated 14.1.1994. The petitioner in
his application (Annex.1) stated that his mother Bhanwari
Bai was in service in Women Hospital at Udaipur. She died
at Ahemdabad in Civil Hospital on 14th Nov., 1980. It
appears that he also sent the death certificate of his
mother. The petitioner stated that he passed B.Sc in the
year 1990 and he is seeking appointment as nobody has
been given appointment in the Government service from his
family after death of his mother. The petitioner submitted
affidavit alongwith this application then the appointment
order Annex.3 dated 10th May, 1994 was given to the
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petitioner and since then the petitioner was in service. The
petitioner was served with the show cause notice dated 7th
July, 2004 i.e., almost 10 years after his appointment. The
allegation against the petitioner is that petitioner’s mother
resigned from service on 14.2.1980 and his resignation was
accepted on 28th April, 1980 and then she died on 14th Nov.,
1980. Therefore, the petitioner’s mother had not died while
in service. In view of the above, the allegation has been
levelled that he suppressed the material facts and obtained
the appointment. Without holding any inquiry against the
petitioner, after obtaining the explanation of the petitioner,
the respondents straighway passed the impugned order
after 3 years on 2nd March, 2007 holding that the petitioner
deliberately gave wrong facts and obtained the
appointment.
Learned counsel for the petitioner submits that
petitioner or his family members never gave any wrong
facts to the respondents. The petitioner clearly stated in his
application that his mother was in service and that fact is
not wrong. He stated that his mother died in Ahemdabad
Hospital on 14th Nov., 1980, that fact is not wrong. He
stated he passed B.Sc in the year 1990, that fact is also not
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wrong. None of the family member of the petitioner
obviously of his mother has been given any appointment in
the Government service and that fact is not wrong. In the
appointment order Annex.3 itself it is mentioned that
petitioner’s mother was in service and the petitioner is
eligible candidate in view of his age, his character
certificate, his educational qualification and medical fitness
certificate. After satisfying, the respondents gave
appointment to the petitioner vide order dated 10th May,
1994.
Learned counsel for the petitioner submitted that
petitioner if has been given appointment by the respondents
without misleading by the petitioner in any manner then the
respondents cannot question their own appointment order.
Learned counsel for the petitioner also submitted that once
the petitioner has been given appointment, he works
satisfactorily for more than 10 years by the time when the
notice was given to the petitioner of show cause and by the
time when petitioner was removed from service, he already
served for about 13 years. It is submitted that there is no
provision under any service rules governing the petitioner’s
services by which he can be stand straightway removed
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from service without holding an inquiry. It is also submitted
that the respondents even did not take any decision to
dispense with for holding any inquiry. It is also submitted
that any appointment which is given to a person who is not
qualified cannot claim relief of continuation on post because
of the various reasons, but in this case, the petitioner is
qualified to hold the post and if he was under impression
that he can get the appointment and he disclosed the fact
and applied for the post and respondents gave appointment
then the respondents’ order removing the petitioner from
the service without affording an opportunity of hearing to
show that he otherwise could have been given appointment.
Learned counsel for the petitioner relied upon judgment of
the Hon’ble Apex Court delivered in the case of Jaswant
Singh Vs. State of Punjab & Ors reported in AIR 1991 SC
385 and the judgment of the Division Bench of this Court
delivered in Girdhari Singh Rajpurohit Vs. State of
Rajasthan & Ors (DBSAW No.7/2002), decided on 9.4.2002.
Learned counsel for the respondent vehemently
submitted that the petitioner misled the authorities and
obtained the appointment and, therefore, he cannot be
continued in the service. It is also submitted that facts are
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not in dispute that petitioner’s mother died after she
resigned from the service and petitioner’s mother had not
died during the service. In view of the above reasons, the
petitioner was not dependent of the employee who dies
while in service. It is also submitted that as per the record,
the petitioner’s brother also submitted affidavit that none of
the petitioner’s family member has been given appointment
in the Government service after the death of the petitioner’s
mother.
I considered the submissions of learned counsel for
the parties and perused the record as well as the judgment
referred above.
So far as passing of the order Annex.6 dated 2.3.2007
without giving an opportunity of hearing to the petitioner
and without holding any departmental inquiry is concerned,
this fact is admitted. The petitioner though was served with
the show cause notice, copy of which has been placed on
record by the petitioner himself and he submitted his reply
to that show cause notice verifying that he never
misrepresented the authorities that he is seeking
appointment because his mother died while in service and
he even disclosed the date of death of his mother clearly in
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his application seeking appointment. Be it as it may be, if
by the reply, the respondents could not have satisfied they
may have initiated the proceedings under the relevant rules
for holding inquiry against the petitioner. It is also clear
from the appointment order as well as from the order of
removal of petitioner from service dated 2nd March, 2007
that petitioner has not been removed from service on
account of his any disqualification at the time of his
appointment or subsequent disqualification. It is a case of
clear violation of principles of natural justice and in view of
the above referred judgments relied upon by learned
counsel for the petitioner, this writ petition is allowed. The
order dated 2nd March, 2007 is set aside. However, the
respondents will be free to initiate any departmental inquiry
against the petitioner if it is so desirable and the petitioner
will be free to take all his objections which are available to
him in accordance with law.
[PRAKASH TATIA], J.
cpgoyal/-