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SCA/4969/2011 10/ 10 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 4969 of 2011
With
SPECIAL
CIVIL APPLICATION No. 5864 of 2011
To
SPECIAL
CIVIL APPLICATION No. 5873 of 2011
=========================================================
BARIA
VASANTKUMAR HAMIRSINH & 10 - Petitioner(s)
Versus
STATE
OF GUJARAT & 3 - Respondent(s)
=========================================================
Appearance
:
MR
ND GOHIL for
Petitioner(s) : 1 - 11.
MR.MAULIK G. NANAVATI,ASST.GOVERNMENT
PLEADER for Respondent(s) : 1-2
MR. P.V. HATHI FOR Respondent(s) :
3
MS KHYATI P HATHI for Respondent(s) :
4,
=========================================================
CORAM
:
HON'BLE
SMT. JUSTICE ABHILASHA KUMARI
Date
: 03/05/2011
ORAL
ORDER
1. These
group of petitions have been filed by the petitioners who were
appointed as Vidya Sahayaks and whose appointments have been
cancelled and the petitioners have been discharged from services.
Special Civil Application No.4969 of 2011, which is the lead matter,
has been filed with the following prayers:-
“(A) That
this Honourable Court may be pleased to issue a writ of mandamus or
any other appropriate writ, order or direction quashing and setting
aside the impugned order at Annexure-A dated 7.1.2011 and be further
pleased to direct the respondents, their servants, agents and
subordinates to reinstate the petitioners in service as Vidya Sahayak
with continuity of service with all other consequential benefits;
(B) Pending
admission, hearing and till final disposal of this petition, the
Honourable Court may be pleased to stay implementation and operation
of the impugned order at Annexure-A dated 7.1.2011 and be pleased to
direct the respondents to keep the said post vacant till the final
disposal of this petition;
(C) Be
pleased to Award costs of this petition;
(D) Be
pleased to grant such other and further relief/s that may be deemed
to fit, just and proper in the interest of justice;”
2. Respondent
No.4, District Primary Education Officer, issued an advertisement for
appointment of Vidya Sahayaks in District Jamnagar. Pursuant thereto,
the petitioners applied in the prescribed form, along with necessary
documents and were given appointments as Vidya Sahayaks. Certain
complaints were received by the authorities regarding purported
irregularities in the process of selection of Vidya Sahayaks.
Pursuant thereto, the Director of Primary Education ordered an
inquiry to be conducted. The said inquiry was conducted by the Deputy
Director of Primary Education. The Inquiry Officer submitted his
Report on 28-7-2010. After receipt thereof, the Director of Primary
Education instructed the District Primary Education Officer to
initiate proceedings, based upon the findings in the Inquiry Report.
The District Primary Education
Officer issued show cause notices to 84 persons named in the Report,
including the petitioners. The noticees
were given personal hearing and their statements were recorded.
Thereafter, by the impugned order dated 07-01-2011 passed by the
District Primary Education Officer (Respondent No.4), the services of
84 persons, including the petitioners, were terminated. Aggrieved
thereby, the petitioners have approached this Court by filing the
present petition.
3. Mr.N.D.
Gohil, learned advocate for the petitioners has submitted that the
impugned order has been passed without giving sufficient opportunity
of hearing to the petitioners to defend their cases. That the
removal of the petitioners from services amounts to a major
punishment which can only be imposed after holding regular
departmental inquiry and after adducing evidence. However, in the
present case, no such procedure has been followed before passing the
impugned order. That the action on the part of respondent No.4 is
malafide, illegal and arbitrary and clearly in violation of the
principles of natural justice. That the certificates/photographs
submitted by the petitioners are genuine and the respondents cannot
come to the conclusion, straightaway, that the said Certificates are
not genuine, without any detailed inquiry and without leading any
evidence or giving an opportunity of hearing to the petitioners, to
defend their cases.
4. A
similar issue arose in Special Civil Application No.823 of 2011,
which has been finally decided by order dated 15-03-2011. In the said
petition, Mr.Maulik G.Nanavati, learned Assistant Government Pleader,
upon instructions from Mr.R.C.Rawal, Director, Primary
Education, Government of Gujarat, had stated that:
“…..
a Committee comprising of three Officers, including one Officer from
the Office of the Director, Primary Education, one Officer from the
Education Department not below the rank of Under Secretary, and the
District Primary Education Officer,Jamnagar who is the appointing
authority, shall be constituted by the State Government. The said
Committee will issue individual show cause notices to all 84
individuals, whose names figure in the Inquiry Report, including the
petitioner, specifying the allegations against them and annexing a
copy of the Inquiry Report as well as copies of any other documents
relied upon against them. The concerned individuals may file written
replies to the show cause notices. Thereafter, each individual shall
be afforded an opportunity of personal hearing. The personal hearing
shall take place at Jamnagar. Thereafter, individual orders shall be
passed which shall be communicated to the concerned persons by
Registered Post. Till such time, as the final order is passed, 84
posts of Vidya Sahayaks would be kept vacant in District Jamnagar by
the District Primary Education Officer.”
5. There
is consensus amongst the learned advocates for the respective parties
that the petitioners are one of the 84 Vidya Sahayaks in respect of
whom the above statement was made.
6. Mr.
N.D. Gohil, learned advocate for the petitioners states that in case
the petitioners are found innocent and are absolved of all charges by
the Committee, they shall claim only continuity of services as though
the termination had not taken place.
7. Mr.Maulik
G.Nanavati, learned Assistant Government Pleader, in response to the
above statement of the learned advocate for the petitioners states,
upon instructions that in case the petitioners are found innocent and
are absolved of all the charges by the Committee, an appropriate
decision regarding continuity of service shall be taken by the
Committee.
8. Special
Civil Application No.823 of 2001 has been disposed of, with the
following directions:
“(a) As
the order dated 07-01-2011 suffers from inherent contradictions,
inasmuch as it is stated in the first paragraph thereof that the
Sports Certificates of the petitioner were not appended to the
application and in the second paragraph it is stated that the Sports
Certificates have not been certified, whereas, in the third paragraph
it is stated that the Sports Certificates have been submitted
later on; it clearly appears that the said order has been passed
without proper application of mind. It is also not clear from the
said order whether one, or all, of the alleged defects have been
found in the case of the petitioner as the order is identical in all
cases. It is further noticed that in the said order it is mentioned
that the High Court, by order dated 15-9-2010, passed in Special
Civil Application No.8875 of 2010 with Special Civil Application
No.9412 of 2010, has directed that 84 candidates be proceeded
against, pursuant to the Inquiry Report. However, upon perusal of the
said order of this Court, it is found that it contains no such
direction. The observations made in paragraph 3 of the said order,
which appear to have been misunderstood by the respondent, have since
been clarified by the Division Bench, in order dated 31-01-2011,
passed in Letters patent Appeal (St.) No.145 of 2011, wherein it has
been stated that such observations cannot be read as a mandate or a
direction by the High Court to the authority for cancellation of the
appointment.
(b) It
has also been submitted by the learned Senior Advocate
for the petitioner that before passing the impugned order neither the
documents relied upon against the petitioner nor a copy of the
Inquiry Report have been given to him. This aspect is not denied
by the learned advocate for respondent No.4 by submitting that the
petitioner did not demand the documents or the Inquiry Report,
therefore, they were not supplied. The reason for not supplying the
documents relied upon against the petitioner and a copy of the
Inquiry Report, cannot be countenanced by this Court. It is a
settled position of law that no action entailing adverse, or civil
consequences, can be taken without affording the person concerned a
proper and adequate opportunity to meet with the allegations levelled
against him. When the copy of the Inquiry Report and documents relied
upon against the petitioner have not been supplied to him, it cannot
be said that an effective or adequate opportunity of hearing has
been afforded. In such circumstances, calling the petitioner for
personal hearing would amount to a mere formality.
(c)
As the impugned order dated 07-01-2011 has been passed in violation
of the principles of natural justice,
the same cannot be sustained. It is, therefore, quashed and set
aside. As a result thereof, the consequential order dated 04-03-2011
(and any other such order) directing recovery of salary
would also, not stand. The petitioner shall now appear before the
Committee to be constituted by the State Government, at the time, and
on the date, as shall be intimated by respondent No.4 on behalf of
the Committee. All communications addressed to the petitioner shall
be by Registered Post, at the addresses to be supplied by Mr. Saurabh
Mehta, learned advocate who is appearing with the learned Senior
Advocate for the petitioner, to the learned Assistant Government
Pleader and learned advocate for respondents Nos.3 and 4, within a
period of one week from today.
(d) Insofar
as individuals, other than the petitioner are concerned, the
communications would be sent at the addresses mentioned in their
applications,as submitted by the learned Assistant Government
Pleader.
(e) The
Committee, constituted in this regard, shall complete the inquiry,
preferably, within a period of three months from the date of receipt
of a copy of this order. As stated by the learned Assistant
Government Pleader, these 84 posts of Vidya Sahayaks in District
Jamnagar shall be kept vacant till the conclusion of the proceedings
of the Committee. In case the order passed by the Committee is
adverse to the petitioner, the same shall not take effect for a
period of thirty days from the date of communication of the said
order.”
9. In
view of the consensus amongst the learned advocates for the
respective parties that the cases of the petitioners are similar to
the case of the petitioner of Special Civil Application No.823 of
2011, and that the same directions would cover the present case, it
is directed that the directions issued in Special Civil Application
No.823 of 2011, vide order dated 15-3-2011, shall apply to the cases
of the present petitioners, as well.
10. The
petitions are disposed of, as above.
(Smt. Abhilasha Kumari, J.)
Safir*
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