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Special Civil Application No. … vs Mr.Lr Pujari on 2 August, 2011

Gujarat High Court
Special Civil Application No. … vs Mr.Lr Pujari on 2 August, 2011
Author: B.J.Shethna,
     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD


     SPECIAL CIVIL APPLICATION No 2932 of 1989


     For Approval and Signature:


              Hon'ble MR.JUSTICE B.J.SHETHNA sd/-


     ============================================================

1. Whether Reporters of Local Papers may be allowed : NO
to see the judgements?

2. To be referred to the Reporter or not? : NO

3. Whether Their Lordships wish to see the fair copy : NO
of the judgement?

4. Whether this case involves a substantial question : NO
of law as to the interpretation of the Constitution
of India, 1950 of any Order made thereunder?

5. Whether it is to be circulated to the Civil Judge? : NO

————————————————————–
MAHESHKUMAR R PARIKH
Versus
STATE OF GUJARAT

————————————————————–
Appearance:

1. Special Civil Application No. 2932 of 1989
MR KS JHAVERI for Petitioner No. 1
Mr.LR PUJARI, A.G.P. for Respondent No. 1
NOTICE SERVED for Respondents No. 2-3
MR JR NANAVATI for Respondent No. 4

————————————————————–

CORAM : MR.JUSTICE B.J.SHETHNA

Date of decision: 11/01/2002

ORAL JUDGEMENT

1.The petitioner Dr.Maheshkumar Ramanlal Parikh,
Assistant Director(Animal Husbandary) has filed this
petition under Article 226 of the Constitution of India
and prayed that the impugned Order at Annexure : A dated
23.3.1989 passed by the respondent No.4 be quashed and
set aside and the respondents be directed to allow the
petitioner to resume training of Post-Graduate course of
M.V.S.C. with respondent No.4 University in view of the
provisional admission given to him at Annexure : E to
this petition on 12.9.1988.

2.At the out-set I must state that the learned
Counsel Shri K.S.Zaveri for the petitioner requested to
adjourn this matter on the ground that he was unable to
contact his client as he was transferred to Kutch. He
requested Shri Pujari, learned A.G.P. appearing in this
matter on behalf of the State to give the information
about the present posting of the petitioner so that he
can contact him to which Shri Pujari stated at the bar,
on the instruction received from Shri P.R.Oza, Senior
Clerk, from the respondent Department, that the
petitioner was transferred from Kutch to Songadh some
where in March, 2000, but he has not joined and reported
to his duty at Songadh and therefore he is unable to give
his present address.

3.Under the circumstances the request made by Shri
Zaveri to adjourn this matter is turned down in view of
the latest decision of the Hon’ble Supreme Court for the
two reasons that this is a petition of 1989 and as per
the endorsement made today it is listed for 28 time.

4.Thereafter, learned Counsel Shri Zaveri
submitted on merit. He raised only one contention that
the impugned order at Annexure : A was passed without
extending any opportunity of hearing. Therefore, it is in
violation of principles of natural justice and liable to
be quashed and set aside.

5.Before appreciating the aforesaid contention I
must state that on 4.10.1989 the petitioner
Dr.Maheshkumar Parikh gave written undertaking to this
Hon’ble Court to pay back the salary and other benefit
borne by the Government as may be directed by this Court
at the final disposal of this petition if he fails in
this petition. It may be stated that on 4.10.1989learned
Single Judge of this Court while issuing the Rule granted
interim relief in terms of Para : 21(B) of the petition
whereby the petitioner was allowed to go for the training
on the Post Graduate Course of M.V.S.C. with the
respondent No.4 University on condition that he will pay
back the salary and other benefits borne by the
Government as may be directed by this Court. Thus, under
conditional interim order of the Court the petitioner
appeared, but he could not complete the course for which
the Government had to incur the expenses of about
Rs.1,38,000/-. Thus, in my considered opinion the person
who is not carrying out his subsequent order of transfer
in the year 2000 and not completing the course after
getting the interim order from this Court would not be
entitled for any discretionary relief from this Court
under Article 226 of the Constitution of India. On merits
the submission raised by Mr.Zaveri that without issuing
notice the impugned order Annexure : A came to be passed
may look attractive at first sight, but on the facts of
this case I am fully convinced that when the Departmental
Enquiry is already pending against him then there would
not have been any difficulty in cancelling the admission
given to the petitioner. The effect of initiation of
Departmental Enquiry is not even disputed by the
petitioner. However, it was tried to be submitted by
Mr.Zaveri for the petitioner that the said Departmental
Enquiry was initiated after giving him admission. This
would not make any difference. When the enquiry is
pending then the University would be at liberty to cancel
the admission. If the enquiry was initiated earlier to
his admission then obviously he would have been denied
the admission. Time and again the Hon’ble Supreme Court
has held that the Court should be slow in interfering
with the educational matters and in such type of cases
when the University has passed the order then this Court
should not interfere with such orders on the ground that
no opportunity of hearing was given to the petitioner.
Affording of opportunity of hearing would be nothing but
a formality. Therefore, in such type of cases when no
prejudice is caused then only on this ground the impugned
order cannot be set aside.

6.In view of above discussion this petition is
failed and is hereby dismissed. However, there shall be
no order as to costs. Rule discharged. Interim relief
vacated.

As per Undertaking given by the petitioner he
shall have to pay back the salary and other benefit borne
by the State Government within one month from today,
failing which the respondent Government will be at
liberty to recover the same, including the deduction from
his salary in instalment.

sd/-

Date : January 11, 2002(B.J.Shethna, J.)

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