Dharmendrakumar Shantilal Patel vs Niveditaben Chaudhary - District ...
2021 Latest Caselaw 10413 Guj

     C/MCA/172/2020                                    ORDER DATED: 03/08/2021




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/MISC. CIVIL APPLICATION NO. 172 of 2020
                                   In
               R/LETTERS PATENT APPEAL NO. 333 of 2017

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            DHARMENDRAKUMAR SHANTILAL PATEL
                           Versus
NIVEDITABEN CHAUDHARY - DISTRICT PRIMARY EDUCATION OFFICER
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Appearance:
MR M D RAHEVAR(6268) for the Applicant(s) No. 1
MR BHARGAV PANDYA, AGP (1) for the Opponent(s) No. 2,3
MR HS MUNSHAW(495) for the Opponent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE A.J.DESAI
       and
       HONOURABLE DR. JUSTICE A. P. THAKER

                               Date : 03/08/2021

                            ORAL ORDER

(PER : HONOURABLE MR. JUSTICE A.J.DESAI)

1. By way of present application under the provisions of the Contempt of Courts Act, 1971, the original petitioner has requested to initiate the proceedings under the Contempt of Courts Act and to punish the respondents for non-compliance of order passed by learned Single Judge dated 16.12.2016 in Special Civil Application No.4901 of 2009, which came to be confirmed by judgment dated 3.7.2019 in Letters Patent Appeal No.333 of 2017 preferred at the instance of one of the respondents.

2. Present application was listed for hearing before coordinate Bench on 13.2.2020 and Notice was issued, which was made returnable on 27.3.2020. Notices were served and the respondents have appeared through their respective learned advocates. The matter was against listed for hearing

C/MCA/172/2020 ORDER DATED: 03/08/2021

on 29.6.2021. At the request of Mr.Munshaw, the matter was again listed on 2.7.2021. On 2.7.2021, this Court passed following order:-

"1. It is submitted by Ms.Vrunda Shah, learned Assistant Government Pleader that the State of Gujarat contemplating filing of Special Leave Petition before the Hon'ble Supreme Court. She, therefore, requests for time.

2. Mr.M. D. Rahevar, learned advocate for the applicant has vehemently opposed the grant of adjournment.

3. Considering the fact that the applicant is fighting since number of years and the last order dated 03.07.2019 passed by the Division Bench in Letters Patent Appeal No.333 of 2017, the time is granted to the concerned authority to comply with the said order within a period of four weeks from today or may get appropriate order from the Hon'ble Supreme Court failing which strict action shall be taken against erring officer since the order has been passed before two years.

The matter is adjourned to 03.082021."

3. Today, when the query was put to the learned advocates for the respondents, Mr.Bhargav Pandya, learned AGP states that the respondents have already preferred Special Leave Petition before Honourable the Apex Court on 5.7.2021 with an application for condonation of delay. He, therefore, requests for time.

4. On the other hand, Mr.Rahevar, learned advocate appearing for the applicant would submit that the applicant is without fruits of the order, which was passed way back on 16.12.2016 by learned Single Judge of this Court in a petition, which was filed by the applicant way back in the year 2009. He would submit that since the order dated 16.12.2016 was not complied with, the applicant was compelled to file an application under the provisions of the Contempt of Courts Act

C/MCA/172/2020 ORDER DATED: 03/08/2021

being Miscellaneous Civil Application No.687 of 2017. However, in view of stay granted by Division Bench in Letters Patent Appeal No.333 of 2017, the same was not pressed. He would submit that the Letters Patent Appeal came to be finally heard by coordinate Bench of this Court and it came to be dismissed by judgment dated 3.7.2019. The applicant, thereafter, issued several notices to the respondents for compliance of the order. However, the applicant was compelled to file present application though the notices have been issued way back in the month of February 2020 i.e. more than one year and five months. The State has preferred Special Leave Petition only after the order came to be passed by this Court on 2.7.2021, he, therefore, would submit that appropriate orders may be passed.

5. We have heard learned advocates for the respective parties. It is true that the applicant has been terminated way back in the year 2009 for which petition being Special Civil Application No.4901 of 2009 was allowed on 16.12.2016 in favour of the applicant and such order was confirmed by the Division Bench on 3.7.2019 i.e. before more than two years. It is also pertinent to note that only after passing of the order on 2.7.2021, referred to herein above, the State has preferred Special Leave Petition before the Honourable Apex Court.

6. In view of above facts, instead of taking any serious action at this stage and, particularly, when Special Leave Petition has already been preferred, we dispose of present application by passing following order:-

C/MCA/172/2020 ORDER DATED: 03/08/2021

"The respondent authorities are hereby directed to comply with the order dated 16.12.2016 passed by learned Single Judge in Special Civil Application No.4901 of 2009, which came to be confirmed by judgment dated 3.7.2019 in Letters Patent Appeal No.333 of 2017, unless implementation of the orders is stayed by the Apex Court on or before 17.9.2021. If this order is not complied with the Secretary of Education Department shall be personally held liable for not obeying the order.

7. Accordingly, present application is disposed of. Notice is discharged.

(A.J.DESAI, J)

(DR. A. P. THAKER, J) R.S. MALEK