Niranjan M Shah vs State Of Gujarat
2021 Latest Caselaw 2053 Guj

         C/LPA/707/2016                                    CAVJUDGMENTDT. 11/02/2021
                            NIRANJAN M SHAH V. STATE OF GUJARAT


                   IN THEHIGHCOURTOF GUJARATAT AHMEDABAD

                      R/LETTERSPATENTAPPEALNO. 707 of 2016
                                       In
                     R/SPECIALCIVILAPPLICATIONNO. 8198of 2012


FORAPPROVALANDSIGNATURE:

HONOURABLEDR. JUSTICEVINEETKOTHARI

and

HONOURABLEMS. JUSTICEGITAGOPI

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

1     Whether Reporters of Local Papers may be allowed
      to see the judgment ?

2     To be referred to the Reporter or not ?

3     Whether their Lordships wish to see the fair copy
      of the judgment ?

4     Whether this case involves a substantial question
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

============================================================================== NIRANJANM SHAH Versus STATEOF GUJARAT& 2 other(s) ============================================================================== Appearance:

GOVERNMENTPLEADER(1)for the Respondent(s)No. 1,2,3 ==============================================================================

CORAM: HONOURABLE DR. JUSTICE VINEET KOTHARI and HONOURABLE MS. JUSTICE GITA GOPI

Date: 11/02/2021

CAVJUDGMENT

C/LPA/707/2016 CAVJUDGMENTDT. 11/02/2021 NIRANJAN M SHAH V. STATE OF GUJARAT

(PER: HONOURABLE MS. JUSTICE GITA GOPI)

1. This Letters Patent Appeal is filed against the judgment and order passed by the learned Single Judge in Special Civil Application No.8198 of 2012 dated 30.06.2016 wherein, the prayer made by the appellant- petitioner was for issuance of a Writ of Mandamus for quashing and setting aside the orders dated 28.05.2009 and 16.04.2012 of the respondent authority by considering the post on which he was serving as "non-transferable" for the purpose of allotment of land at concessional rate at Gandhinagar. The learned Single Judge rejected the writ petition on the ground that there was no violation of any legal or fundamental right of the appellant-petitioner, while observing that the appellant- petitioner could not claim the allotment of plot as a matter of right.

2. The appellant has challenged the action of the respondent authorities mainly on the ground that the parent Department of the appellant, being the Office of the Additional Director General of Police (Intelligence), Gandhinagar, has recognized the service of the appellant as being "non-transferable" vide communication dated 01.09.2007 of the Director General of Police (Intelligence). The respondent Nos.1 and 2 authorities were not justified in rejecting the case of the appellant also on the ground that the post of Shorthand Reporter (Gujarati) were 12 in number and were spread over in different Districts across the State of Gujarat and thus, to consider the said post as "transferable", is against the clarification issued by the Office of the Additional Director General of Police vide communication dated 15.02.2002.

3. Mr. Ronit Joy, learned advocate appearing for Mr. A.J. Yagnik for the appellant-petitioner, submitted that in the earlier round of litigation in

C/LPA/707/2016 CAVJUDGMENTDT. 11/02/2021 NIRANJAN M SHAH V. STATE OF GUJARAT

Special Civil Application No.4876 of 2008, the Office of the Government Pleader attached to this Court had sought a response from the respondent No.3 - Office of the Director General of Police, Gujarat State so as to ascertain whether the post of Shorthand Reporter (Gujarati) borne on its Establishment was a "transferable" or "non-transferable" post. The respondent No.3 had expressed opinion of the said post being "non- transferable"; despite that the respondent authorities rejected the application of the appellant made in pursuance of the Government Resolution dated 29.03.2001 and has, thereby, violated his legal right.

3.1 Learned advocate Mr. Joy submitted that the 12 posts of Shorthand Reporter (Gujarati) were considered under single Establishment at Gandhinagar and for administrative convenience, the Shorthand Reporter (Gujarati) could be deputed to another District by the parent Department, putting the post under the category of "non-transferable". The learned advocate harped upon the fact of the Office being shifted from Ahmedabad to Gandhinagar in the year 1996 and thereby, the appellant was posted at Gandhinagar. It was contended that as per the Government Resolution dated 29.03.2001, all Officers serving on "non-transferable" posts and residing at Gandhinagar became entitled for Government plot with the criteria of eligibility to be governed as on 31.12.2000. It was submitted that the appellant was posted at Ahmedabad in the year 2002 under administrative convenience, as the demand for Shorthand Reporter (Gujarati) had increased due to the riots in the year 2002.

3.2 Learned advocate Mr. Joy further submitted that the appellant had claimed parity with one Mr. Ajitsinh A. Chauhan, who was allotted a plot of land in pursuance of the order passed in Special Civil Application No.4876 of 2008 filed by the appellant and the said Mr. Ajitsinh A.

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Chauhan. The appellant was given a discriminatory treatment by the respondents, which action is arbitrary and violative of his right guaranteed by the Constitution of India. It was contended that the respondent authorities are bound by its own correspondence, issued in the form of communication dated 01.09.2007 by the Office of the Additional Director General of Police (Intelligence), Gujarat and they cannot neglect / ignore the material placed before it to suit their convenience. Accordingly, it was urged that the impugned order passed by the learned Single Judge may be quashed and set aside and appropriate directions may be issued for the allotment of land to the appellant in pursuance of the Government Resolution dated 29.03.2001.

4. Mr. Utkarsh Sharma, learned Assistant Government Pleader, referred to the Affidavit filed by one D.R. Bhammar, Under Secretary, Home Department, State of Gujarat in the writ petition before the learned Single Judge to submit, that the appellant did not satisfy the criteria prescribed under the Government Resolution dated 29.03.2001 for allotment of a plot of land at concessional rate. It was submitted that the appellant has no indefeasible right to claim the plot of land since he was serving on a "transferable" post, as described in the Government Resolution dated 27.12.2001, which explains the term "Non-transferable Permanent Temporary employee / Officer". As per the policy in question in the form of Government Resolution dated 29.03.2001, the employee concerned should be working at Gandhinagar on a "non-transferable" post. The case of the appellant was also reconsidered and reviewed on different occasions. Mr. Sharma contends that the conduct of the appellant having sought transfer from Gandhinagar to Ahmedabad, on his own volition, clarifies his knowledge of the post being "transferable".

          C/LPA/707/2016                                    CAVJUDGMENTDT. 11/02/2021
                            NIRANJAN M SHAH V. STATE OF GUJARAT

4.1    The learned Assistant Government Pleader further submitted that

the post of Shorthand Reporter (Gujarati) borne on the Establishment at the District levels also includes the Districts of Bhuj, Surat, Vadodara and Junagadh. For this reason too, the post of Shorthand Reporter (Gujarati) was considered as "transferable" justifying the rejection of grant of land at concessional rate. The applications of three other employees, who were similarly situated, serving on the post of Shorthand Reporter (Gujarati) at the relevant time, were rejected on similar lines. Even on reconsideration of the case of the appellant in pursuance of the order passed in Special Civil Application Nos. 4876 of 2008 and 9914 of 2011, the respondent authorities found no merits in the claim of the appellant.

5. Having heard the learned counsel for the appellant and the learned Assistant Government Pleader and on perusal of the material on record, it is to be noted that the appellant was appointed as a Temporary Shorthand Reporter (Gujarati) in the Office of the Dy. Inspector General of Police, CID (INT) G.S., Ahmedabad vide Office Order dated 31.12.1974. In pursuance of the policy framed by the State Government vide Government Resolution dated 29.03.2001, the appellant applied for a plot of land on 18.01.2002. It appears that the appellant, along with one Mr. Ajitsinh A. Chauhan serving as Shorthand Reporter (Hindi) in the same Office at the relevant time, filed Special Civil Application No.4876 of 2008 before this Court. While disposing of the said petition on 11.08.2008, the Court had directed the respondent authority to consider the case of the petitioners therein, as it was found that the application seeking the plot of land under the policy in question had not been forwarded to the Office of the District Collector by the parent Office within the stipulated period. However, the case of the appellant came to be rejected vide communication dated 28.05.2009. The said

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communication of the Home Department to the District Collector, Gandhinagar and Additional Secretary and Chief Engineer, Roads and Building Department, Gandhinagar, refers to the case of (i) Mr. Ajitsinh A. Chauhan, Shorthand Reporter (Hindi) (ii) Ms. Dilshad Begum Zahir Ahmed, Shorthand Reporter (Urdu) and even (iii) Mr. N.M. Shah (the present appellant) (iv) Mr. P.K. Ahir (v) Mr. N.M. Prajapati, who three were in the category of Shorthand Reporter (Gujarati). The post of Shorthand Reporter (Hindi) and Shorthand Reporter (Urdu) were considered "non-transferable". The appellant's application moved on 30.01.2010 for reconsideration was rejected by the Home Department on the ground that the Government had decided not to make any change in the decision communicated through letter dated 28.05.2009, the appellant was informed accordingly by the Home Department vide letter dated 11.03.2010. Claiming parity to the case of Ms. Dilshad Begum Zahir Ahmed, the appellant filed Special Civil Application No.9914 of 2011 before this Court. The said petition came to be disposed of on 18.08.2011 whereby, a direction was issued to the respondent authority to consider the case of the appellant in light of the order passed in respect of Ms. Dilshad Begum Zahir Ahmed. It appears that in the meantime, the appellant had preferred Misc. Civil Application No.790 of 2012 [For Contempt] and during the pending proceeding, in reference to the order in Special Civil Application No.9914 of 2011, on the representation of appellant dated 09.09.2011, the case of the appellant was rejected on 16.04.2012 and thus, in view of the said fact, the contempt petition came to be disposed of vide order dated 17.04.2012 with the liberty to the appellant to challenge the order dated 16.04.2012 passed by the respondent authority. The appellant had challenged both the orders of the Home Department dated 28.05.2009 and 16.04.2012 before the learned Single Judge in the captioned writ petition, which came to be dismissed,

C/LPA/707/2016 CAVJUDGMENTDT. 11/02/2021 NIRANJAN M SHAH V. STATE OF GUJARAT

vide impugned judgment and order dated 30.06.2016.

6. The State Government had framed the policy for allotment of land to its employees working at Gandhinagar at concessional rate by way of Government Resolution dated 29.03.2001. One of the eligibility criteria prescribed under the said policy was of the employee concerned to be working on a "Non-transferable" post at Gandhinagar. It appears that since there was some confusion regarding the expression - "Non- transferable" forming part of the said policy, a Committee was constituted by the State Government to define the expression - "Non- transferable". The Committee furnished its report and vide Government Resolution dated 27.12.2001, it was resolved that the expression - "Non- transferable" would cover those Government employees, who were appointed on a Permanent Post in Gandhinagar City or who have been appointed initially and / or thereafter on transfer have been working in Gandhinagar and cannot be transferred out of Gandhinagar during the tenure of service except on deputation.

7. The record reflects that pursuant to the direction issued by this Court in Special Civil Application No.4876 of 2008 dated 11.08.2008, the respondent No.1 State authority, Home Department, expressed its opinion by communication dated 28.05.2009 to the Collector, Gandhinagar and Roads and Building, Gandhinagar. The letters of the Additional Director General of Police (Intelligence) dated 15.02.2002 and 21.04.2009 were referred to, where it was mentioned that there were 12 posts of Shorthand Reporter (Gujarati), 1 post of Shorthand Reporter (Urdu) and 1 post of Shorthand Reporter (Hindi) and that the posts of Shorthand Reporter (Gujarati) were also borne on the Establishments at Vadodara, Bhuj, Junagadh, Ahmedabad, etc. and thus, the Home

C/LPA/707/2016 CAVJUDGMENTDT. 11/02/2021 NIRANJAN M SHAH V. STATE OF GUJARAT

Department while treating the posts of Shorthand Reporter (Hindi) and Shorthand Reporter (Urdu) as "non-transferable" considered the Shorthand Reporter (Gujarati) post as "transferable", by which the claim of the appellant for allotment of land came to be rejected. Therefore, the facts suggest that in consultation with respondent No.3 authority - Director General of Police, the case of the appellant was considered along with that of others. While again the appellant rushed to this Court in Special Civil Application No.9914 of 2011 placing himself in similar footing with the case of Ms. Dilshad Begum Zahir Ahmed, on direction of this Court for reconsideration on that line, the respondent No.1 authority, Home Department, in its order dated 16.04.2012 while rejecting the case of the appellant, has taken note of the fact, that the appellant had, on his own volition, opted for transfer from Gandhinagar to Ahmedabad by Office Order dated 12.08.2002 and thereafter, voluntary retired from service with effect from 31.07.2004 from Ahmedabad. The learned Single Judge considered all the aforesaid aspects, to conclude that no discriminatory treatment was meted out to the appellant and the claim of allotment of plot could not be made as a matter of right. We are of the opinion that the decision of the learned Single Judge requires no interference.

8. The appellant has challenged the decision of the authority concerned dated 28.05.2009 and 16.04.2012, which is, essentially, decision arising out of policy decision by Government Resolution dated 29.03.2001 and 27.12.2001. The question whether one or the other class of employees should be alloted land, at any particular place or not, is a policy decision, which can be taken by the State authorities. Under Article 226 of the Constitution of India, this Court cannot decide as to which employee is entitled to get plots of land under the policy in

C/LPA/707/2016 CAVJUDGMENTDT. 11/02/2021 NIRANJAN M SHAH V. STATE OF GUJARAT

question. In Government Establishments, there are both "transferable" and "non-transferable" posts. The case of the appellant was not found to be similar to that of Mr. Ajitsinh A. Chauhan or Ms. Dilshad Begum Zahir Ahmed, as the said two persons, serving as Shorthand Reporter (Hindi) and Shorthand Reporter (Urdu) respectively, were found to be serving, only on one "sanctioned" post at the relevant time and thus, were "non-transferable". Their place of posting was found to be on "sanctioned" posts at Gandhinagar, they satisfied the eligibility criteria prescribed under the policy dated 29.03.2001 and were, accordingly, alloted the plot of land as per the terms of the said policy. The appellant and two others were working on twelve "sanctioned" posts of Gujarati Shorthand Reporter but on "transferable" posts, as there sphere of work extended to different Districts of the State and therefore, they were found to be "ineligible" under the said policy.

8.1 One writ petition being Special Civil Application No.3455 of 2001 was preferred by the President of the Association of Government Employees working in Gandhinagar filed on behalf of about 2500 employees serving in different Departments of the State for a direction to the respondents to set aside the Government Resolution dated 29.03.2001 on the ground that the aforesaid Resolution is arbitrary and discriminatory as the same discriminates similarly situated employees of the State and creates artificial distinction of transferable and non-transferable employees serving at Gandhinagar. The same was rejected by the Division Bench of this Court, as was found to be policy decision to be taken by the state authority.

9. The appellant cannot claim to have acquired a vested right. Having preferred an application in pursuance of the Government Resolution

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dated 29.03.2001, he only becomes entitled for consideration of his application as regards such claim. The appellant, as a matter of right, cannot insist for allotment of plot of land, irrespective of his case falling within the policy framed by the State Government. It is well settled that the Court cannot determine whether a particular policy or a decision in fulfillment of that policy is fair or not. The only concern of the Court would be whether the decision making process under such policy is legal and / or appropriate. The authority concerned is required to make decisions in all fairness, which will vary from case to case. The representation of the appellant was considered at all levels. Even his case was reviewed and reconsidered in accordance with the directions given by this Court in Special Civil Application No.4876 of 2008 and Special Civil Application No.9914 of 2011.

10. In the case of Food Corporation of India v. M/s. Kamdhenu Cattle Feed, AIR 1993 SC 1601, the Apex Court has held that mere reasonable or legitimate expectation of a citizen in a given situation may not be itself be a distinct enforceable right but failure to consider and give due weight may render the decision arbitrary. Every legitimate expectation is a relevant factor requiring due consideration in a fair decision making process. Whether the expectation of the claimant is reasonable or legitimate is a question of fact in each case. Whenever the question arises, it is to be determined not according to the claimant's perception but in larger public interest wherein other more important considerations may outweigh what would otherwise have been the legitimate expectation of the claimant. A bona fide decision of the public authority reached in this manner would satisfy the requirement of non- arbitrariness and withstand judicial scrutiny.

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11. A person, who basis his claim on the doctrine of legitimate expectations, in the first instance, must satisfy that there is a foundation to his claim. The appellant herein has been unable to show from the record that the decision taken by the respondent authorities is marred by any unreasonableness or that the decision has been taken in breach of the principles of natural justice and has affected his legitimate expectation. Considering the facts and circumstances of the case and the principle propounded in the aforesaid decision, we are of the opinion that the respondent authorities were completely justified in rejecting the claim of the appellant. We are in complete agreement with the reasonings given by the learned Single Judge in the impugned judgment and order and hence, find no reasons to entertain this appeal.

12. In the result, the appeal is dismissed with no order as to costs.

(DR. VINEET KOTHARI,J)

(GITA GOPI, J) PRAVIN KARUNAN