Gujarat High Court

State Of Gujarat vs Liyaquatalikhan Hasankhan ... on 26 February, 2021

Bench: Gita Gopi

       C/LPA/1223/2005                                     CAV JUDGMENT DT. 26.02.2021
                    STATE OF GUJARAT V. LIYAQUATALIKHAN HASANKHAN BATANGI




                   IN THEHIGHCOURTOF GUJARATAT AHMEDABAD

                         R/LETTERSPATENTAPPEALNO. 1223of 2005
                                           In
                          R/SPECIALCIVILAPPLICATIONNO. 7 of 1987
                                          With
                          R/LETTERSPATENTAPPEALNO. 98 of 2002
                                          In
                         SPECIALCIVILAPPLICATIONNO. 4993of 1985


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 ?

============================================================================== STATE OF GUJARAT & 1 other(s) Versus LIYAQUATALIKHAN HASANKHAN BATANGI & 2 other(s) ============================================================================== Appearance:

IN LETTERS PATENT APPEAL No.1223 OF 2005:

MR UTKARSH SHARMA, ASST. GOVERNMENTPLEADERfor the Appellant(s)No. 1, 2 NOTICESERVEDfor the Respondent(s)No. 1.2

UNSERVEDREFUSED(N) for the Respondent(s)No. 1.1,1.3

C/LPA/1223/2005 CAV JUDGMENT DT. 26.02.2021 STATE OF GUJARAT V. LIYAQUATALIKHAN HASANKHAN BATANGI

IN LETTERS PATENT APPEAL No.98 OF 2002:

MR UTKARSH SHARMA, ASST. GOVERNMENTPLEADERfor the Appellant(s)No. 1, 2, 3 MR RAMNANDAN SINGH ADVOCATEfor the Respondent(s)No. 1 ==============================================================================

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

Date: 26/02/2021

CAVJUDGMENT ( PER: HONOURABLE MS. JUSTICE GITA GOPI)

1. Both these appeals arise out of the common judgment and order dated 11.07.2001 passed by the learned Single Judge in Special Civil Application Nos.07/1987 and 4993/1985 by which both the petitions were partly allowed and the order of termination passed by the Appellant- State was set aside and the Respondent-employees were ordered to be reinstated in service will all benefits but, without any back wages.

2. The facts, in a nutshell, are that Respondent - Mrs. Indumatiben Chalabhai Kantharia (Petitioner No.2 in Special Civil Application No.7 of 1987) was appointed as a Tailor on temporary basis by the Appellant- State vide order dated 21.07.1977, whereas, Respondents - Mr. Liyaquatalikhan Hasankhan Batangi (Petitioner No.1 in Special Civil Application No.7 of 1987) and Ms. Dilshad Saiyed (Petitioner in Special Civil Application No.4993 of 1988 and Mrs. Dilshad S. Kadri after marriage) were appointed as Linen Keeper on temporary basis vide order dated 20.07.1981 by the Appellant-State. It appears that the services of the Respondents were continued from time to time. However, the services of all the three Respondents came to be terminated vide order dated 14.03.1985.

C/LPA/1223/2005 CAV JUDGMENT DT. 26.02.2021 STATE OF GUJARAT V. LIYAQUATALIKHAN HASANKHAN BATANGI

2.1 Respondents - Mr. Liyaquatalikhan and Mrs. Indumatiben challenged the order of termination before the Gujarat Civil Services Tribunal, Gandhinagar by filing Appeal Nos.82/1985 and 84/1985. Both the appeals were dismissed by the Tribunal vide order dated 19.05.1986.

2.2 Being aggrieved by the same, the above Respondents preferred the captioned Writ Petition being Special Civil Application No.7 of 1987 before this Court. Respondent - Ms. Dilshad Saiyed challenged the order of termination dated 14.03.1985 by filing the captioned Writ Petition being Special Civil Application No.4993 of 1985 before this Court. The learned Single Judge heard and disposed of both the Writ Petitions by way of the impugned judgment and order dated 11.07.2001 whereby, both the petitions were partly allowed by setting aside the order of termination dated 14.03.1985 and the Appellant-State was directed to reinstate them with all benefits but without any back wages. Against the impugned judgment and order passed by the learned Single Judge, the Appellant-State has preferred the present Letters Patent Appeals.

3. Mr. Utkarsh Sharma, learned Assistant Government Pleader, assailed the order passed by the learned Single Judge mainly on the ground that the appointment of the Respondents was purely on temporary basis and on probation, for a period of one year at a time, which was extended from time to time. It was submitted that when the Appellant- Department initiated the process for filling up the posts on regular basis, the services of the Respondents came to be terminated and since the Respondents were working on the temporary set-up and on probation, no

C/LPA/1223/2005 CAV JUDGMENT DT. 26.02.2021 STATE OF GUJARAT V. LIYAQUATALIKHAN HASANKHAN BATANGI

notice was issued before terminating their services.

4. Though served, none appears on behalf of Respondents - Mr. Liyaquatalikhan, now represented by his Legal Heirs and Mrs. Indumatiben.

5. Mr. Ramnandan Singh, learned counsel appearing for the respondent in Letters Patent Appeal No.98 of 2002, submitted that the learned Single Judge has rightly passed the order of reinstatement with all benefits since the action of the Appellant-Department was found to be discriminatory and bad in law. It was submitted that the Respondent- employee possessed requisite qualification under the Rules which were prevailing at the relevant time; however, her services came to be terminated in a discriminatory manner, though there was no allegation of any misconduct or any other irregularity against the said Respondent. It was, therefore, submitted that the present appeals may be dismissed.

6. We have heard learned counsels on both the sides. One of the main grounds agitated before the learned Single Judge was that the Respondents did not possess requisite qualification as required under the relevant Rules. The Respondents possessed the qualification of Diploma in Tailoring, which they had cleared from one "Ideal Tailor and Cutter Institute, Ahmedabad". It was the say of the Appellant-Department that the said Institute was recognized only for "Certificate Courses" by the State Government and that since the Respondents had cleared the "Diploma Course" from the said Institute, it could not be considered as a valid qualification. However, the learned Single Judge did not find any substance in the said submission since the Appellant-Department could

C/LPA/1223/2005 CAV JUDGMENT DT. 26.02.2021 STATE OF GUJARAT V. LIYAQUATALIKHAN HASANKHAN BATANGI

not produce any material on record to show that there was any Government recognized Institute in the State, which was offering the course of "Diploma in Tailoring". In fact, it appeared that the Institute in question from where the Respondent had cleared the course in question was the only Institute in the State at that time, which was awarding the qualification of "Diploma in Tailoring". Before appointing the Respondents, the Selection Committee of the Appellant-Department were well aware of the fact that the Respondents possessed the Diploma qualification and not the Certificate Course qualification and having made the appointments, the Appellant-Department could not take the stand that they did not possess the qualification as required under the Rules. It was never the case of the Appellant-Department before the learned Single Judge or before us that the services of the Respondents came to be terminated on the ground of any alleged irregularity or misconduct. In these circumstances, we are of the considered opinion that the action of the Appellant-Department of terminating the services of the Respondents was bad in law.

7. It also appears from the record that the Respondents were meted out discriminatory treatment by the appellant. Some employees, who were junior to the Respondents and were similarly situated, were continued in service while the services of the Respondents were terminated without any valid reasons or justification. Considering the aforesaid aspects, we are of the opinion that the learned Single Judge was completely justified in directing reinstatement of the Respondents with all benefits but without any back wages.

8. It appears that when these two Letters Patent Appeals were earlier

C/LPA/1223/2005 CAV JUDGMENT DT. 26.02.2021 STATE OF GUJARAT V. LIYAQUATALIKHAN HASANKHAN BATANGI

listed before the Coordinate Bench of this Court on 09.02.2015, they were disposed of on the ground of maintainability of the said appeals. Against the said order, the Appellant-State had preferred Civil Appeal No.5283 of 2007 in Special Leave to Appeal (Civil) No.12912 of 2006 before the Hon'ble Supreme Court. The Hon'ble Supreme Court allowed the said Civil Appeal No.5283 of 2007 by order dated 16.11.2007 whereby, it set aside the order dated 09.02.2015 passed by the Coordinate Bench of this Court and remitted the matter back to the High Court for disposal of the Letters Patent Appeals on merits.

9. Mr. Utkarsh Sharma, learned Assistant Government Pleader, submitted that insofar as Respondent - Mrs. Indumatiben G. Kanthiria is concerned, she was originally appointed on the post of Tailor and was, therefore, reverted. The said Respondent continued to render services on the said post and took Voluntary Retirement with effect from 30.04.2005. It was, therefore, prayed that the impugned judgment and order granting reinstatement and other benefits deserves to be quashed and set aside.

10. When the matters were earlier listed before this Court on 03.02.2021, the Court had instructed the learned counsels on both the sides to obtain instructions as to whether the dispute on hand could be settled on payment of some compensation to two of the Respondents, namely, (i) Mr. Liyaquatalikhan Hasankhan Batangi, represented through his Legal Heirs and (ii) Smt. Dilshad Saiyed, in view of the fact that more than three decades have passed since the order of termination was passed in 1985 and no order for reinstatement could be passed at this stage, as they both have already crossed the age of superannuation (Though one of the Respondents, Mr. Liyaquatalikhan Hasankhan Batangi, has expired

C/LPA/1223/2005 CAV JUDGMENT DT. 26.02.2021 STATE OF GUJARAT V. LIYAQUATALIKHAN HASANKHAN BATANGI

and is represented by his Legal Heirs). The Court had instructed the learned Assistant Government Pleader to obtain necessary instructions as the Court was not inclined to disturb the findings recorded by the learned Single Judge in the impugned judgment and order. The case of Respondent, Mrs. Indumatiben Chalabhai Kantharia, was not considered as she was continued in service and she had subsequently opted for voluntary retirement from service.

11. Considering the facts and circumstances of the case and the long period of time that has elapsed after the passing of the order of termination in 1985, we are of the opinion that in lieu of the order of reinstatement with all benefits and without backwages passed by the learned Single Judge, the Respondent - Mr. Liyaquatalikhan Hasankhan Batangi, represented by his Legal Heirs and Smt. Dilshad Saiyed could be awarded lumpsum compensation of Rs.6,00,000/- each since they have crossed the age of superannuation by now. Hence, the following order is passed:-

(i) As none appears on behalf of the legal heirs of deceased Respondent - Mr. Liyaquatalikhan Hasankhan Batangi, the Appellant-State is directed to issue a Demand Draft in the sum of Rs.2,00,000/- [Rupees Two lacs only] in the name of each of the Legal Heir, who are Three in number, which shall be dispatched at the address given in cause-title of the memo of petition / appeal.

(ii) Another Demand Draft in the sum of Rs.6,00,000/- [Rupees Six lacs only] be issued in the name of Respondent - Smt. Dilshad S. Kadri (after marriage).

C/LPA/1223/2005 CAV JUDGMENT DT. 26.02.2021 STATE OF GUJARAT V. LIYAQUATALIKHAN HASANKHAN BATANGI

(iii) The above payments shall be made within a period of Three Months from today and the compliance report may be placed on record of the case by filing a Note within a period of Fifteen Days from such payment.

(iv) On compliance thereof, the impugned judgment and order of the learned Single Judge granting reinstatement with all benefits but without backwages shall stand substituted with this order.