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SCA/6840/2009 5/ 5 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 6840 of 2009
For
Approval and Signature:
HONOURABLE
MR.JUSTICE RAVI R.TRIPATHI
=====================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ? YES
2
To
be referred to the Reporter or not ? NO
3
Whether
their Lordships wish to see the fair copy of the judgment ? NO
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? NO
5
Whether
it is to be circulated to the civil judge?NO
=====================================
RATANBEN
CHIMANLAL RATHOD - Petitioner(s)
Versus
STATE
OF GUJARAT & 1 - Respondent(s)
=====================================
Appearance
:
MR AS SUPEHIA for Petitioner(s)
: 1,
GOVERNMENT PLEADER for Respondent(s) : 1,
NOTICE SERVED BY
DS for Respondent(s) : 1 - 2.
MR DIPAK C RAVAL for Respondent(s) :
2,
=====================================
CORAM
:
HONOURABLE
MR.JUSTICE RAVI R.TRIPATHI
Date
: 25/10/2010
ORAL
JUDGMENT
1.0 Present
petition is filed praying that:
“14(A) Quashing
and setting aside the impugned order dated 16.06.2009 and directing
the respondents to pay amount of Rs.3,48,017/- sought to be recovered
from the petitioner, with 15% interest from 01.06.2006 till payment.
14(B) Directing
the respondent no. 2 to pass appropriate orders as regards the
cancellation of the pay scale and the status of post held by the
petitioner, forthwith.”
2.0 This
petition was filed on 8th July 2009. Notice was issued on
9th July 2009 and later on, on 8th September
2009, the Court issued Rule,
returnable on 30th September 2009 with a direction to
place in the First Board.
3.0 Today,
the matter came up for consideration on Civil Application No. 9178 of
2010 being filed in the present matter. In the Civil Application, it
is prayed that:
“6(A) Release
the amount of Rs.82,300/-, Rs.97,734/- and Rs.1,80,034/- representing
gratuity, commuted pension and leave encashment, in all
Rs.2,06,151/- in favour of the applicant.”
4.0 Learned
advocate Mr. Supehia for the petitioner submitted that the present
Civil Application is filed as the main matter is not being heard due
to paucity of time.
5.0 Learned
advocate Mr. Raval invited attention of the Court to Page 8 of the
Civil Application, which is an ‘Appointment Order’. It is dated 23rd
July 1981. In this Appointment Order it is specifically mentioned
that, ‘the petitioner is given appointment as a ‘Midwife’ in
‘Primary Health Center’ run by the District Panchayat. After she
successfully cleared the interview held on 11th
March 1980 and she is given appointment in the pay-scale of
196-3-232, with the initial pay of Rs.196/-‘. Later on, the
petitioner made a Representation to the Medical Officer, Primary
Health Center, Bamanbor dated 11th January 1999, a copy of
which is produced at Annexure ‘E’ to the Civil Application. In this
Representation, the petitioner described herself as a ‘Trained Dayan’
(Trained Midwife) and it is specifically mentioned that, ‘she was
appointed as a ‘Trained Dayan’ (Trained Midwife) w.e.f. 24th
March 1981′ and then she claimed the benefits of the pay-scale of the
‘Trained Midwife’.
5.1 It
appears that, by means which are not known to law, the petitioner was
able to obtain pay-scale of ‘Trained Midwife’, which later on came to
the notice of the authorities and therefore, the authorities passed
the impugned orders, which are under challenge in this petition.
5.2 Learned
advocate Mr. Raval submitted that what is produced at Annexure ‘F’ to
the Civil Application is an order dated
15th January
1999. He submitted that this order is issued by the Medical Officer,
Primary Health Center, Bamanbor, who had no authority to issue any
such order and therefore, the authorities having learnt about the
same, have ordered inquiry into the matter.
5.3 Learned
advocate Mr. Supehia was asked to explain as to when the petitioner
was given appointment as ‘Trained Midwife’ as mentioned in the
Representation dated 11th January 1999 (Annexure ‘E’ to
the Civil Application) when the Appointment Order was specifically
issued for the post of only ‘Midwife’ and not ‘Trained Midwife’
(Annexure ‘D’ to the Civil Application), Learned advocate Mr. Supehia
could not dislodge the submissions made by learned advocate Mr.
Raval. In view of that, the Court finds that the petitioner has
misrepresented before the authorities as early as on 15th
January 1999 and obtained an order in her favour from the
authorities, who was not having the competence to issue any such
order (Annexure ‘F’ to the Civil Application).
6.0 In
view of that, this petition is dismissed. As the petitioner has
already retired from service and is already out of job, the Court
restrains itself from imposing any cost on the petitioner.
6.1 Rule
is discharged with no order as to costs.
[
Ravi R. Tripathi, J. ]
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