Balbhim vs The State Of Maharashtra
2010 Latest Caselaw 68 Bom

                                   1

             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                       BENCH AT AURANGABAD.




                                                                   
                   WRIT PETITION NO.4364 OF 2009




                                           
           Balbhim s/o Sureshrao alias
           Suryakantrao Tapse, age 28
           years, occupation : service,




                                          
           r/o Dipewadgaon, Taluka Kej,
           District Beed.                                    Petitioner

                     versus




                               
     1.    The State of     Maharashtra,
           through Secretary,Legal Dept.
                   
           Mantralaya, Mumbai.

     2.   Principal   District   Judge,
                  
          Beed.                                  Respondents
     -------------------------------------------------------
     Shri Vivek Bhavthankar, Advocate,   for the      Petitioner.

     Shri V.B.Ghatge,Asstt.Govt.Pleader for Respondent No.1.
      


     Shri V.B.Jadhav,Advocate, holding for Shri V.D. Hon,
   



     Advocate for Respondent No.2.
     ----------------------------------------------------------





                     Coram: S.B.Deshmukh and Shrihari P.Davare, JJ.
                     Judgment reserved on : 13th October, 2010.
                     Judgment pronounced on : 20th October, 2010.



     JUDGMENT (Per: Shrihari P. Davare, J.)

01. Rule. Rule made returnable forthwith and with

the consent of learned counsel for the parties, taken

up for final hearing at the admission stage itself.

     02.         The     petitioner         has           assailed              the




                                                                        
     communication/order        dated      15.5.2009             passed           by




                                                

Respondent No.2-Principal District Judge, Beed, thereby

discontinuing the services of the petitioner as a peon.

03. The factual matrix of the present case is

that the petitioner had applied for the post of peon,

in District Court, ig Beed, in pursuance of the

advertisement published in newspaper. According to the

petitioner, name of his father in the village record

was recorded as "Suryakant", whereas his school record

disclosed his father's name as "Sureshrao".

Accordingly, in the application made for the post of

peon, the petitioner mentioned his father's name as

"Sureshrao" as per the school record.

04. Thereafter, the petitioner was called for

written test by Respondent No.2, on 17.9.2006 (page

11). The petitioner appeared thereto and passed the

said written test. Accordingly, he was called for

practical test on 24.9.2006, which was also cleared by

the petitioner. Thereafter, he was called for oral

interview, along with original documents, on 4.10.2006.

The petitioner filed death certificate of his father,

ration card and the statement of marks obtained by him

in 10th standard and the affidavit dated 3.10.2006

(Exh. B Colly.) stating that his father, namely,

`Sureshrao' was also known as `Suryakant'.

                                       
     05.           Thereafter,        waiting       list       was     published          by

     Respondent       No.2
                         ig    on    12.6.2007          wherein       name       of     the

     Petitioner        was     at     serial        No.35,        and       thereafter
                       
     appointment        orders       were        issued      to      the        selected

     candidate,        including      the        petitioner,          on      31.7.2008

(Exh.C, page 17). The petitioner was at serial No.12 in

the said appointment order and was posted as peon in

the court of Joint Civil Judge, Junior Division,

Patoda. Accordingly, he joined the said post on

6.8.2008. Thereafter, he was transferred to Shirur-

Kasar Court, on 12.8.2008 and after joining the said

Court, he was further transferred to the Court of Civil

Judge, Junior Division, Patoda, and accordingly, was

relieved from the Court at Shirur-Kasar, on 4.10.2008

and he joined the new place i.e. Court at Patoda, on

5.10.2008.

06. However, to the shock and surprise of the

petitioner, he received the impugned order dated

15.5.2009 (Exh. D, pages 20,20-A) issued by Respondent

No.2, thereby discontinuing services of the petitioner

suddenly, contending that Respondent No.2 intended to

verify the documents of the petitioner, and also

stating that there was difference in the name of father

of the petitioner ig in the application form and the

documents produced by him.

07. Hence, the petitioner made representation dated

25.5.2009 (Exh. E, page 21) and invited attention of

Respondent No.2 to the fact that there was no

suppression of the fact, as he had filed affidavit

dated 3.10.2006 to the effect that his school record

disclosed the name of his father as 'Sureshrao',

whereas the village record showed name of his father as

'Suryakant' and requested to cancel the order of

discontinuation of his services and reinstate him on

the post of peon. However, since there was no response

from Respondent No.2, the petitioner again made

representation dated 29.5.2009 (Exh. F colly., pg.22)

to Respondent No.2, annexing the copy of Govt.

Notification dated 21/27th May 2009 thereto, disclosing

therein rectification in the name of his father from

"Sureshrao" to "Suryakant". However, there was no

response from Respondent No.2 to said representation

also and hence, the petitioner has filed the present

writ petition, challenging the impugned order dated

15.5.2009 (Exh. D) and prayed for quashment thereof.

08. Shri ig Bhavthankar, learned counsel for the

petitioner canvassed that there is absolutely no

suppression on the part of petitioner in respect of

name of his father, since the village record and even

the death certificate of his father disclosed the name

of his father as "Suryakant", whereas his school record

reflected the name of his father as "Sureshrao" and the

said fact was brought to the notice of Respondent No.2

by the Petitioner, when he was called for interview on

4.10.2006, since on that very day, he had filed

affidavit dated 3.10.2006 along with other documents,

such as death certificate of his father, ration card

and the statement of marks obtained by him in 10th

Standard examination etc., specifically stating in the

said affidavit dated 3.10.2006 that the death

certificate of his father disclosed his name as

"Suryakant",whereas the school record of the petitioner

disclosed his father's name as `Sureshrao' and further

that his father was known in the village also as

"Suryakant" and further specifically stating therein

that the names "Suryakant Tapse" and "Sureshrao Tapse"

belong to one and the same person, but in spite of

that, Respondent No.2 did not consider the said aspect,

properly.

09. Shri Bhavthankar, learned counsel for the

petitioner, also submitted that the petitioner was

doing his duty without any complaint and to the

satisfaction of the superiors and he did not receive

any adverse remarks and even his work was appreciated

from time to time, and yet he received the impugned

order dated 15.5.2009, suddenly discontinuing his

services as a peon, which causes injustice to him.

10. Learned Counsel Shri Bhavthankar for the

petitioner further canvassed that no show cause notice

was issued to the petitioner and even no enquiry was

conducted and the services of the petitioner were

discontinued by Respondent No.2 without giving him any

opportunity which is against the principles of natural

justice and, therefore, learned counsel for the

petitioner urged that the impugned order dated

15.9.2009 deserves to be quashed and set aside.

11. Shri ig V.B.Ghatge, learned A.G.P. for

Respondent No.1 and Shri V.B.Jadhav, learned counsel,

holding for Shri V.D.Hon, learned counsel for

Respondent No.2, opposed the present petition

vehemently and submitted that the application form

submitted by the petitioner for the post of peon,

discloses his father's name as"Suryakant", whereas

school record of the petitioner i.e. school leaving

certificate, statement of marks obtained by the

petitioner in 10th standard examination (Exh. B colly.,

pgs. 12/13) disclose his father's name as "Sureshrao"

and,therefore,learned Civil Judge, Junior Divn.,Patoda,

sought guidance from Respondent No.2, by letter dated

7.5.2009, as to which name of the petitioner's

father was to be entered into the service

book of the petitioner and hence, consequently,

Respondent No.2 issued the impugned order dated

15.5.2009 to the petitioner, stating therein that there

was difference in the name of the petitioner's father,

in the application form submitted by him and in his

school record, which fact is required to be verified

and accordingly, his services were discontinued by the

impugned order. Thus, learned A.G.P. and learned

Counsel for Respondent Nos.1 and 2 respectively,

submitted that the impugned order dated 15.5.2009 has

been issued, rightly and no interference therein is

called for in exercise of the writ jurisdiction.

12. Learned Counsel for the respondents also

submitted that the notification issued by the Govt.of

Maharashtra dated 21/27th May 2009, which is produced

by the petitioner along with his second representation

dated 29.5.2009 addressed to the 2nd Respondent, is

subsequent to the impugned order dated 15.5.2009 and

hence, the said notification dated 21st/27th May 2009

issued by the Government of Maharashtra, rectifying

the name of petitioner's father, cannot be of any aid

and assistance to the petitioner's case. Learned

Counsel for the Respondents further canvassed that the

petitioner failed to satisfy the then Principal

District Judge about the difference in the name of his

father and, therefore, the impugned order dated

15.5.2009 has been issued by Respondent No.2, rightly,

and, therefore, urged that the present petition bears

no substance and same is devoid of any merits and,

therefore, same be dismissed.

13. We have perused the contents of the petition,

its annexures, and also the contents of true copy of

the affidavit-in-reply dated 4.8.2009 filed on behalf

of Respondent No.2 which is sworn in by the then

Principal Dist.Judge Madhusudansingh Laxmansingh

Chouhan, along with its annexures and also considered

the submissions advanced by learned counsel for the

parties, anxiously.At the outset, indisputably, it may

be noted that in the village record, as well as in the

death certificate,the name of the petitioner's father

was recorded as "Suryakant", whereas in the school

record, name of father of the petitioner is recorded

as `Sureshrao'. Pertinently, the said fact was brought

to the notice of Respondent No.2 by the petitioner on

his own, at the inception itself i.e at the time of

interview held on 4.10.2006, by filing an affidavit

dated 3.10.2006 along with other documents, such as

death certificate of his father, statement of marks

obtained by petitioner in 10th standard, by

specifically stating in the said affidavit that the

petitioner had ig submitted the application form

mentioning his name as "Balbhim s/o Suryakant Tapse" as

the death certificate issued by the concerned Gram

Panchayat disclosed the name of his father as

"Suryakant Tapse", and further specifically stating

that, but the school record of the petitioner reflected

his name as "Balbhim Sureshrao Tapse". It is further

specifically stated by the petitioner in the said

affidavit that his father was known in the village by

name "Suryakant Tapse" and also categorically stating

therein that "late Suryakant Tapse" and "late Sureshrao

Tapse" is one and the same person, but it appears that

the said affidavit dated 3.10.2006 and the facts stated

therein were not considered by Respondent No.2, in

proper perspective, before issuance of the impugned

order dated 15.5.2009, thereby discontinuing the

services of the petitioner.

14. Moreover, it is also material to note that,

no show cause notice was issued to the petitioner and

no enquiry was conducted by Respondent No.2 prior to

issuance of impugned order dated 15.5.2009,

discontinuing services of the petitioner and hence, it

is apparent that no principles of natural justice were

followed by Respondent No.2 before issuing the impugned

order dated 15.5.2009. The said fact is strengthened

by the letter dated 7.10.2010 issued by present

Principal District Judge to Advocate Shri V.D. Hon

appearing for Respondent No.2, who produced the copy

thereof during the course of arguments, which is taken

on record and marked "X" for the purpose of

identification. The said letter discloses that prior to

discontinuation of services of the petitioner, no

opportunity of personal hearing was given to him.

Hence, it is apparently clear that neither any

explanation was called for from the petitioner in

respect of any doubt about the genuineness of the

documents submitted by him, nor any audience was given

to the petitioner nor due process of law was followed

by Respondent No.2, before issuance of the impugned

order dated 15.5.2009, discontinuing his services and,

therefore, the impugned order deserves to be quashed

and set aside.

15. Besides that, although the petitioner had

sent two representations dated 25.5.2009 and 29.5.2009,

clarifying therein the true position and also annexing

a copy of the notification issued by the Govt. of

Maharashtra dated 21st/27th May, 2009, thereby

rectifying his father's name from "Sureshrao Tapse" to

"Suryakant Tapse" to representation dated 29.5.2009,

and although the said notification dated 21st/27th May

2009 was later in point of time to the impugned order

dated 15.5.2009, Respondent No.2 neither took any

cognizance thereof even subsequently, nor considered

the aforesaid representations dated 25.5.2009 and

29.5.2009 respectively, and no communication in that

respect was sent to the petitioner and, therefore, the

petitioner had no alternative, but to approach this

forum.

16. In the circumstances, we are inclined to accept

the submissions advanced by the learned counsel Shri

Bhavthankar for the petitioner, and we are of the considered

view that this is a fit case to exercise the extra-ordinary

writ jurisdiction and, therefore, the impugned order dated

15.5.2009 issued by Respondent No.2, discontinuing the

services of the petitioner from the post of peon, deserves

to be quashed and set aside.

17. In the result, present petition succeeds and same

is, accordingly, allowed in terms of prayer clause (A)

thereof and the impugned order dated 15.5.2009 issued by

Respondent No.2 stands quashed and set aside.

18. Rule made absolute, accordingly. In the facts and

circumstances, there shall be no order as to costs.

             sd/-                                                              sd/-
     (SHRIHARI P. DAVARE, J.)                                           (S.B.DESHMUKH, J.)





     pnd/wp4364.09