Gujarat High Court
Jitendra Babulal Shah vs State Of Gujarat on 1 July, 2025
NEUTRAL CITATION
C/SCA/14385/2021 ORDER DATED: 01/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 14385 of 2021
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JITENDRA BABULAL SHAH
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR ANSHIN DESAI, SENIOR ADVOCATE WITH MS NIKITA S
BAROT(7417) for the Petitioner(s) No. 1
SANSKRUTI R SHUKLA(8913) for the Petitioner(s) No. 1
MS SURBHI BHATI, AGP for the Respondent(s) No. 1,2,3,4
NOTICE SERVED BY DS for the Respondent(s) No. 5
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 01/07/2025
ORAL ORDER
1. This petition is filed for the following prayers:
"10(i) That this Hon'ble Court may be pleased to admit and allow the present Petition;
(ii) That this Hon'ble Court may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other writ, order or direction quashing and setting aside the Office order dated 02.09.2021 issued by the Respondent No.1 and the Communication dated 30.07.2021 made the Respondent No.2 to the Respondent No.1.
(iii) That pending the hearing and disposal of the present Petition, this Hon'ble Court may be pleased to stay the operation and implementation of the Office Order dated Page 1 of 16 Uploaded by U. SRILATHA(HC00185) on Tue Jul 01 2025 Downloaded on : Wed Jul 02 03:25:12 IST 2025 NEUTRAL CITATION C/SCA/14385/2021 ORDER DATED: 01/07/2025 undefined
02.9.2021 issued by the Respondent No.1 and the Communication dated 30.07.2021 made by the Respondent No.2 to the Respondent No.1 and further direct the Respondent No.3 to release the amount of Pension to the Petitioner;
(iv) For ex-parte interim and ad-interim reliefs in terms of prayer (iii) hereinabove;
(v) xxxx
(vi) xxxxx"
2. Learned senior advocate Mr.Desai, at the outset, submitted that the Court has considered similar aspects in Special Civil Application No.13338 of 2021 which is decided by order dated 9.2.2023. He submitted that the said petition was filed by the Trustees and the present petition is filed by the Director, but by challenging the same resolution. He also submitted that the affidavit-in-reply filed in that petition and this petition are verbatim same. Therefore, he submitted that identical order may be passed in this petition also.
3. Learned AGP Ms.Bhati, after verifying the facts of the matter and the order passed in Special Civil Application No.13338 of 2021, has conceded to what is stated by learned senior advocate Mr.Desai and submitted that similar order may be passed.
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NEUTRAL CITATION C/SCA/14385/2021 ORDER DATED: 01/07/2025 undefined
4. The relevant paragraphs of the aforesaid order dated 9.2.2023 are as under:
"5. The brief facts of the case are as under:- 5.1. The petitioners are the trustees of Lalbhai Dalpatbhai Bhartiya Vidhyamandir (hereinafter referred to as "the Trust"), a public trust registered under the provisions of the Gujarat Public Trusts Act, 1950. The petitioner Trust has set up a premier research institute "Lalbhai Dalpatbhai Institute of Indology"(for short"the Institute") dedicated to the preservation, restoration and collection of the ancient Indian manuscripts and artefacts.
5.2.It is the case of the petitioners that one Shri Jitendra Babulal Shah was appointed as the Director of the Institute from 08.12.1998 till his date of retirement on 31.12.2018. There was a complaint filed against Mr.Shah with regard to his selection for the post of Director of the Institute.
5.3. The appointment of Shri Shah was made by the Selection Committee comprising of the representative appointed by the Gujarat University as well as the Department of Higher Education as per the circular dated 20.11.1997 of the Gujarat University. 5.4. On the basis of the complaint made by one Page 3 of 16 Uploaded by U. SRILATHA(HC00185) on Tue Jul 01 2025 Downloaded on : Wed Jul 02 03:25:12 IST 2025 NEUTRAL CITATION C/SCA/14385/2021 ORDER DATED: 01/07/2025 undefined employee of the Institute against Shri Shah for his alleged illegal appointment on the ground that he did not meet with the criteria prescribed by the respondent no.4-University, inquiry was initiated by the respondent State Government and the Gujarat University on multiple occasions. After completion of the inquiry in the year 2002, it was found that the appointment was legal and valid.
5.5. The respondent no.4-University initiated another inquiry on the very issue in the year 2017 which was stayed by this Court vide order dated 26.04.2017 passed in Special Civil Application No.8564 of 2017. Thereafter, on the basis of the statement made on behalf of the respondent no.4- University that no further inquiry was contemplated against Shri Shah, the proceedings came to an end on 23.06.2021 as this Court disposed of the said petition in view of the statement made by the respondent no.4-University.
5.6. Thereafter, it appears that by letter dated 30.07.2021, the respondent no.3 directed the respondent no.2- Commissioner of Higher Education after considering the letters of the Gujarat Vigilance Commission dated 27.09.2006, 27.04.2007, 27.03.2007, 27.04.2007, 23.03.2009 and 31.07.2009, 15.03.2010, Page 4 of 16 Uploaded by U. SRILATHA(HC00185) on Tue Jul 01 2025 Downloaded on : Wed Jul 02 03:25:12 IST 2025 NEUTRAL CITATION C/SCA/14385/2021 ORDER DATED: 01/07/2025 undefined 16.09.2018, 04.06.2011 and part 1 of the letter dated 22.02.2019 to initiate proceedings against Shri Shah and it was further informed that as Shri Shah was not the employee of the Government, no departmental inquiry can be initiated against him, however it was decided by the respondent Government to initiate criminal proceedings against the trustees of the petitioner trust and to recover the amount of the grant paid to the Institute which was utilized for payment of salary to Shri Shah.
5.7 On the basis of such letter the respondent no.2 passed the impugned order dated 02.09.2021 to implement the directions given by the respondent no.3.
6. Being aggrieved, the petitioner is before this Court.
7. This Court passed the following order on 15.09.2021:-
"1. Heard, learned Senior Advocate Mr.Mihir Joshi assisted by learned AdvocateMr. Parth Contractor for thepetitioners.
2. Learned Senior Advocate Mr. Joshi submitted that without giving an opportunity of hearing to the Petitioners, i.e. the Trust and its Trustees or representatives, the Respondent No.2 has passed the impugned order dated 02.09.2021, pursuant to the letter / order dated 30.07.2021 issued by the Page 5 of 16 Uploaded by U. SRILATHA(HC00185) on Tue Jul 01 2025 Downloaded on : Wed Jul 02 03:25:12 IST 2025 NEUTRAL CITATION C/SCA/14385/2021 ORDER DATED: 01/07/2025 undefined Under Secretary, Education Department, State of Gujarat, to take several actions against the Petitioner- Trust and its Trustees. 2.1 It was further submitted that by the impugned communication an erstwhile employee of the Petitioner-Trust, namely one Mr. Shah, who was not in employment of the Department of Higher Education as no departmental action could be initiated against him, in the alternative it is directed to initiate proceedings under the Indian Penal Code against the Management of the Petitioner-Trust. 2.2 It was submitted that the petitioner had no notice or knowledge of the internal communications on the basis of which the impugned notice / communication has been issued by the Respondents.
3. Considering the above submissions, a prima facie case is made out to grant ad interim relief. Moreover, the balance of convenience is also in favour of the petitioners, because if any action is initiated against the Petitioners pursuant to the impugned communication the same shall be without affording an opportunity of hearing to the Petitioners and Page 6 of 16 Uploaded by U. SRILATHA(HC00185) on Tue Jul 01 2025 Downloaded on : Wed Jul 02 03:25:12 IST 2025 NEUTRAL CITATION C/SCA/14385/2021 ORDER DATED: 01/07/2025 undefined serious and irreparable loss harm and injury would be caused to the Petitioner-Trust and its Trustees.
4. NOTICE, returnable on 6 TH OCTOBER, 2021. 4.1 By way of ad-interim-relief, the operation, implementation and execution of the impugned order dated 02.09.2021 passed by Respondent No.2 so also the communication / order dated 30.07.2021 addressed by Respondent No.3 to Respondent No.2 shall remain STAYED qua the present Petitioners. Direct service is permitted."
8. Learned Senior Advocate Mr.Mihir Joshi submitted that the appointment of Shri Shah was made by an independent Selection Committee comprising of the following persons:-
"1. Shri Arvind Narottam (Chairman of the Governing Body)
2.Prof. Ujamshi Kapadia (Member of Governing Body)
3.Dr. Raghuvir Chaudhari (Nominee of Vice-chancellor)
4.Dr. Vasant M. Bhatt (Nominee of Vice-chancellor)
5.Prof. R.H.Vyas (Expert)
6.Shri C.N.Gonsai (Joint Director, Higher Education)"
9. It was submitted that the trustees of the petitioner Page 7 of 16 Uploaded by U. SRILATHA(HC00185) on Tue Jul 01 2025 Downloaded on : Wed Jul 02 03:25:12 IST 2025 NEUTRAL CITATION C/SCA/14385/2021 ORDER DATED: 01/07/2025 undefined trust are not at all involved in the selection of Shri Shah in the year 1998.
10. It was further submitted that it is not in dispute that since the year 2002 the selection of Shri Shah is held to be legal and valid and thereafter no further proceedings were initiated against either Shri Shah or the trustees of the petitioner trust or any person. It was submitted by learned Senior Advocate Mr.Joshi that the impugned order is passed without any show cause notice and therefore, the same is in fragrant breach of principles of natural justice. It was submitted that there is no provision under any law to hold the trustees of the petitioner trust liable for criminal action as well as recovery of the grant as per the provisions of the Grant in aid code, when there is no report suggesting that the appointment of Shri Shah was not legal and valid.
11. Learned Senior Advocate Mr.Joshi invited the attention of the Court that the criminal complaint filed against Shri Shah is also disposed of on 23.06.2015 by filing a summary report under Section 173 of the Code of Criminal Procedure, 1973 which has been accepted by the competent Court. Learned Senior Advocate Mr.Joshi submitted that the criminal complaint was filed by one Page 8 of 16 Uploaded by U. SRILATHA(HC00185) on Tue Jul 01 2025 Downloaded on : Wed Jul 02 03:25:12 IST 2025 NEUTRAL CITATION C/SCA/14385/2021 ORDER DATED: 01/07/2025 undefined Mr.Vinod Pandya, advocate.
12. It is therefore submitted that even on merits there is no pending proceeding against Shri Shah and therefore, the impugned orders dated 30.07.2021 and 02.09.2021 are liable to be quashed and set aside.
13. On the other hand learned AGP Mr.Kurven Desai submitted that the impugned orders are passed on the basis of the communication received from the Gujarat Vigilance Commission from the year 2006 onwards as referred to in the order dated 30.07.2021. He referred to and relied upon the following averments made in the affidavit in reply filed on behalf of the respondent no.2:
"6. By way of communication dated 30.07.2021, the Respondent No. 3 observed that pursuant to communication dated 27.04.2007 of the Gujarat Vigilance Commission, three separate committees investigated the issue of appointment of Dr. J.B. Shah. Out of the three committees, two committees arrived at a finding that the appointment of Dr. Shah was on the basis of forged documents. As Dr.Shah was not an employee of the state, appropriate departmental proceedings could not be initiated against him. Hence, it was recommended that as per the original recommendation of the Gujarat Vigilance Commission, Page 9 of 16 Uploaded by U. SRILATHA(HC00185) on Tue Jul 01 2025 Downloaded on : Wed Jul 02 03:25:12 IST 2025 NEUTRAL CITATION C/SCA/14385/2021 ORDER DATED: 01/07/2025 undefined the salary as well as pension paid to Dr. Shah be recovered from the organization.
7. Thereafter, order dated 02.09.2021 came to be passed by the Respondent No. 2. The said order dated 02.09.2021 referred to the communication dated 30.07.2021. The operative portion of the order dated 02.09.2021 provides for the following: (1) recovery of amounts paid to Dr. Shah towards pension and salary from the Petitioner-Trust (2) keeping the pension paid to Dr.Shah in abeyance (3) to initiate appropriate proceedings against Dr.Shah as well as the trustees of the Petitioner- Trust under the provisions of the Indian Penal Code. It may be noted that as on date, neither recovery proceedings nor criminal proceedings have been initiated in terms of the order dated 02.09.2021.
8. As per the report dated 22.09.2006 issued by Shri Arvind Bhandari, Registrar of Gujarat University, Dr. Shah lacked the experience required in terms of clause 3(c) of the updated criteria provided for by the circular dated 20.11.1997. In terms of clause 3(c),Dr. Shah did not have the requisite experience of Ph.D guide with 5 years administrative experience.
9. As per the report dated 08.12.2015 issued by a committee of Dr.S.U. Vora, (Principal, M.P. Shah Arts and Science College) and 3 others, the L.D. Insititue of Page 10 of 16 Uploaded by U. SRILATHA(HC00185) on Tue Jul 01 2025 Downloaded on : Wed Jul 02 03:25:12 IST 2025 NEUTRAL CITATION C/SCA/14385/2021 ORDER DATED: 01/07/2025 undefined Indology failed to carry out verification of the certificates dated 01.02.1998, 01.05.1998 and 05.05.1998 submitted by Dr. Shah. It was found that:
a. For the period August, 1991 to April, 1998, Dr. Shah served as merely an honorary director of Shardaben Chimanbhai Educational Research Centre. b. With reference to experience certificate dated 02.05.1998 issued by Shardaben Chimanbhai Educational Research Centre, it was found that certain discrepancies in signatures were found.
c. Shardaben Chimanbhai Educational Research Centre had not provided any verification of the certificates dated 01.02.1998, 01.05.1998 and 05.05.1998 relied upon by Dr. Shah. It was concluded that Dr. Shah was not eligible to be appointed as director.
10. The Education Department addressed letter dated 24.07.2017 to the Director, L.D. Institute of Indology regarding the appointment of Dr. Shah as well as regarding the misuse of government funds. A request was made to the recipient of the letter to remain present before the department with all documents and provide an appropriate explanation. However, none remained present before the department.
11. I state that the averments in the Petition to the effect that various inquiries concluded that the appointment of Dr. Shah was legal and valid is not Page 11 of 16 Uploaded by U. SRILATHA(HC00185) on Tue Jul 01 2025 Downloaded on : Wed Jul 02 03:25:12 IST 2025 NEUTRAL CITATION C/SCA/14385/2021 ORDER DATED: 01/07/2025 undefined correct. I reiterate that as stated hereinabove, two out of three committees concluded that the appointment of Dr. Shah was not valid.
12. I submit that in view of the facts of the present matter and in view of what has been stated hereinabove, it was the responsibility of the management of the L.D. Institute of Indology i.e. the Petitioner-Trust to carry out a thorough verification of all documents prior to appointment of Dr. Shah as Director. As the Petitioner-Trust and its trustees failed to take proper care while managing the affairs of the L.D. Institute of Indology, the Trust as well as its trustees would be liable to repay the expenses that have wrongfully been incurred by the state exchequer."
14. Learned AGP Mr.Desai has also placed on record the original file of the respondent no.2 and 3 pursuant to the order dated 02.02.2023 before this Court. It was submitted that it is not in dispute that the show cause notice was not issued to the petitioners or the trustees of the petitioner trust but on the basis of the documents available on the original file, a conscious decision is taken by the State Government to initiate criminal proceedings against the trustees of the petitioner trust and to recover the grant-in-aid for Page 12 of 16 Uploaded by U. SRILATHA(HC00185) on Tue Jul 01 2025 Downloaded on : Wed Jul 02 03:25:12 IST 2025 NEUTRAL CITATION C/SCA/14385/2021 ORDER DATED: 01/07/2025 undefined payment of salary of Shri Shah from the Institute.
15. It was submitted that such decision is taken after considering the various correspondence with the Gujarat Vigilance Commission and therefore, no interference is required to be made while exercising the extraordinary jurisdiction under Articles 226 and 227 of the Constitution of India, as the entire proceedings are in accordance with the findings given by the two inquiry committees which were constituted pursuant to the directions received from the Gujarat Vigilance Commission since 2006 onwards.
16. Having heard the learned advocates for the respective parties and having considered the material on record and on perusal of the original records produced before this Court, it is not in dispute that the Gujarat Vigilance Commission has directed in the letter dated 02.09.2006 that the inquiry is required to be made in the appointment of Shri Shah and if upon inquiry, it is found that the appointment of Shri Shah is not legal and valid, then the action which are stated in letter dated 30.07.2021 were proposed of taking criminal action as well as recovery of the grant.
17. However on basis of the documents which are available in the original file, it appears that out of Page 13 of 16 Uploaded by U. SRILATHA(HC00185) on Tue Jul 01 2025 Downloaded on : Wed Jul 02 03:25:12 IST 2025 NEUTRAL CITATION C/SCA/14385/2021 ORDER DATED: 01/07/2025 undefined three inquiry reports submitted by the inquiry officers, two reports stipulates that the appointment of Shri Shah is not legal and valid. Thereafter, it appears that the matter was referred to the Gujarat Vigilance Commission but there is nothing on record to show that the Gujarat Vigilance Commission has recommended to take criminal action against the trustees of the petitioner trust, except the letter dated 22.02.2019, wherein it is only stated that pursuant to the application dated 04.02.2019 received from one Mr. Vinod Pandya, appropriate action should be taken. As per the application of Mr. Pandya, grievance was made before the Commission for not implementing the two inquiry reports and not recovering the grant from the Institute. There is nothing on record to point out the locus standi of Mr. Vinod Pandya who is stated to be residing at Suparna-2, Shreyash Foundation, Ambawadi.
18. On inquiry, learned AGP Mr. Desai, stated that Mr. Vinod Pandya is an advocate. It appears that on basis of such application made by Mr. Vinod Pandya, advocate, the Vigilance Commission has informed the Principal Secretary of the Education Department of the State to take appropriate action and on basis of such letter, the impugned order appears to have been passed on 30.07.2021.
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19. Thus, from the chronology of events stated hereinabove as well as documents available on the original file there is nothing on record to show the involvement of the trustees of the petitioner trust. There is also no material available on record of involvement of the Institute for appointment of Shri Shah. In such circumstances, the impugned orders dated 30.07.2021 and 02.09.2021 to initiate criminal proceedings against the trustees of the Institute and to recover the grant without there being any authority to recover such amount paid to Shri Shah is not tenable in law, as such orders are without any force of any existing law.
20. Moreover, there is no finding of any adjudicating authority to hold the appointment of Shri Shah as not legal and valid. The respondent no.4- University has also made a statement before this Court in the pending Special Civil Application No.8564 of 2017, that no further inquiry is contemplated against Shri Shah and accordingly, the inquiry initiated against Shri Shah was dropped. The Revision Application against the closure report is pending before the competent Court."
5. Considering the submissions, since the coordinate Bench has taken the view and issue is decided which is Page 15 of 16 Uploaded by U. SRILATHA(HC00185) on Tue Jul 01 2025 Downloaded on : Wed Jul 02 03:25:12 IST 2025 NEUTRAL CITATION C/SCA/14385/2021 ORDER DATED: 01/07/2025 undefined identical to the facts of the present case, no further discussion or reasons are required to be assigned by discussing the facts of the present case in detail as both the parties have also jointly submitted that the issue is covered by the aforesaid judgment.
6. In view of the above, the impugned orders are not sustainable and are accordingly ordered to be quashed and set aside.
(SANDEEP N. BHATT,J) SRILATHA Page 16 of 16 Uploaded by U. SRILATHA(HC00185) on Tue Jul 01 2025 Downloaded on : Wed Jul 02 03:25:12 IST 2025