Naynaben Maheshbhai Oza vs State Of Gujarat
2021 Latest Caselaw 7802 Guj

      C/LPA/2392/2017                             ORDER DATED: 06/07/2021



            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                R/LETTERS PATENT APPEAL NO. 2392 of 2017
              In R/SPECIAL CIVIL APPLICATION NO. 961 of 2014

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                        NAYNABEN MAHESHBHAI OZA
                                  Versus
                        STATE OF GUJARAT & 1 other(s)
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Appearance:
MR BJ TRIVEDI(921) for the Appellant(s) No. 1
MR JT TRIVEDI(931) for the Appellant(s) No. 1
MR.DEVENDRA H PANDYA(6462) for the Appellant(s) No. 1
MS JIGNASA B TRIVEDI(3090) for the Appellant(s) No. 1
MR MEET THAKKAR AGP for the Respondent(s) No. 1
RULE SERVED(64) for the Respondent(s) No. 2
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 CORAM:HONOURABLE MR. JUSTICE J.B.PARDIWALA
       and
       HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI

                        Date : 06/07/2021
                         ORAL ORDER

(PER : HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI)

This Appeal, under Clause 15 of the Letters Patent, is at the instance of the unsuccessful writ applicant and is directed against the order passed by the learned Single Judge of this Court in Special Civil Application No.961 of 2014 dated 20.3.2017 by which the learned Single Judge has dismissed the writ application filed by the writ applicant.

2. The facts relevant for the purpose of deciding this appeal can be summarized as under:-

2.1 The appellant (original writ applicant) came to be appointed on the post of Center Manager, Center No-169- Mahuva 18 on 8.9.1995 by the respondent No.4 - Dy. Collector, Mahuva, District Bhavnagar. Based on a complaint by one Kishanbhai Malabhai Chauhan in the "Taluka Swagat

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Fariyad Nivaran karyakram", the respondent No.1 passed an order terminating the services of the writ applicant on the ground that the recruitment of the writ applicant was in violation of Clause B(2)(6) of the Circular dated 2.5.2008 of the Collector, Madhyayan Bhojan Yojna, Gandhinagar whereby, the said Clause states that, "husband/wife/ son/daughter of any employee of any establishment under the State or Central Government shall not be appointed for the post of Manager/Cook/Helper in any Center".

2.2 According to the appellant, since the recruitment of the appellant was 13 years prior to the Circular and that the Circular was not given or has not been passed with retrospective effect, the appointment of the writ applicant, which was dated 8.9.1995 could not be terminated since the Circular was dated 2.5.2008. The husband of the appellant - Shri Ajaybhai Trivedi is serving in Mahuva Nagarpalika as a Clerk and therefore, the respondent invoked provision of Clause B(2)(6) of the Circular dated 2.5.2008, which is arbitrary and bad in law.

2.3 The appellant challenged the termination order passed by the respondent No.1 - Mamlatdar, Mahuva dated 22.3.2013 directing the services of the appellant to be terminated in accordance with the Circular dated 2.5.2008 relying on Clause B(2)(6) which states that her husband - Ajaybhai Trivedi was working as a Clerk at Mahuva Nagarpalika, which was in violation of the Circular dated 2.5.2008. The said order passed by the Mamlatdar was challenged before the Dy. Collector, Mahuva by the appellant by filing Misc. Appeal Case No.2 of 2013 as being unjust and arbitrary. The Dy.

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Collector, Mahuva by order dated 7.5.2013 rejected the said appeal filed by the appellant and confirmed the order passed by the Mamlatdar, Mahuva dated 22.3.2013. The appellant then approached the respondent No.3 - Collector, Bhavnagar by filing Appeal No.30 of 2013 challenging the orders passed by the Mamlatdar, Mahuva and Dy. Collector, Mahuva dated 22.3.2013 and 7.5.2013 respectively. The Collector confirmed the orders passed by the Mamlatdar, Mahuva and Dy. Collector, Mahuva dated 22.3.2013 and 7.5.2013 respectively and thereby, rejected the appeal filed by the appellant by order dated 3.7.2013.

2.4 The appellant made several representations to the respondents as also the Chief Minister's office, however, the respondents have not replied to the said representations made by the appellant. Hence, this appeal.

Submissions on behalf of the appellant:

3. Mr. Brijesh Trivedi, learned counsel for the appellant - writ applicant has mainly contended that the order of the learned Single Judge dated 20.3.2017 in Special Civil Application No.961 of 2014 interpreting that the Circular dated 2.5.2008 has retrospective effect, is against the settled principles of law. He has also contended that the respondents No.2 and 3 ought to have taken into consideration the Circular dated 10.11.1998 and the case of the appellant is required to be considered under the Circular dated 10.11.1998 which mentions that the notifications would be effective to the new appointments at new centers and that the same shall not affect the previous appointments and the services would remain unchanged. He has further contended

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that the authorities i.e. the respondents No.2 and 3 ought to have taken into consideration the above referred Circular dated 10.11.1998 and the appeal of the appellant was required to be allowed quashing and setting aside the order passed by the Mamlatdar, Mahuva dated 22.3.2013. He has also contended that the employee who has rendered services for more than 10 years, needs to be regularized and given benefit of permanency. He has contended that the order of the learned Single Judge has misinterpreted the communication dated 10.11.1998. He has also contended that the appellant has rendered services of almost two decades, which fact has to be taken into consideration by the learned Single Judge while passing the impugned order. He has also contended that the order of the learned Single Judge in Special Civil Application No.961 of 2014 dated 20.3.2017 is bad in law and therefore, requires to be quashed and set aside.

Submissions on behalf of the respondent State:

4. Per contra, Mr. Thakkar, learned AGP appearing for the respondent State submitted that the appellant could not seek benefit of Government Resolution dated 10.11.1998. The appointment of the appellant was only contract base appointment and that in such circumstances, the appellant was given appointment every year and therefore, it cannot be said that the appellant was in continuous service. He would further submit that since the appointment of the appellant is on yearly basis, the Government Resolution dated 2.5.2008 would be applicable. He further submitted that the findings of the all three authorities below i.e. the Mamlatdar, Mahuva dated 22.3.2013, Dy. Collector, Mahuva dated 7.5.2013 and the Collector, Bhavnagar dated 3.7.2013 concurrently held

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against the grievance of the appellant. He has further submitted that the appellant could have availed alternative remedy of challenge before the Commissioner, Mid-Day Meals Scheme, Gandhinagar, however, the appellant has chosen not to invoke the alternative remedy. It was further submitted that it is not denied by the appellant that her husband was working as a Clerk at Mahuva Nagarpalika. He has finally submitted that in view of above submissions, the learned Single Judge has rightly dismissed the writ application and this appeal also deserves to be dismissed.

5. At this stage, it is necessary to take into consideration the essential part of the order of the learned Single Judge, more particularly Paras 4, 4.1, 4.2 and 5, which read thus:-

"4. Having heard learned advocates for the respective parties and having gone through the material on record, this Court finds as under.

4.1 The cause of action of the petitioner is the order dated 02.03.2013 passed by the Mamlatdar (Annexure-C). The said order refers to the Circular of the Commissioner of Mid Day Meals Scheme. The said circular in terms prescribes who would not be appointed as Coordinator of the Center. The argument that the husband of the petitioner being a Junior Clerk, is not in a position to influence, can not be accepted by this Court, on the face of the circular dated 02.05.2008, which stipulates that the family members of the persons, who are in the employment in the local authority will not be eligible to get engagement as a Co-ordinator. The said circular further stipulates that at the time of renewal of engagement, this aspect be taken into consideration. Late implementation of the policy of the State qua the petitioner would not be prejudicial to the petitioner since she has been beneficiary thereof.

4.2 It is also on record that the impugned order of the Mamlatdar was also challenged before the Deputy Collector, Mahuva. The Deputy Collector vide his order dated 07.05.2013, confirmed the said order. The order of the Deputy Collector was also challenged before the Collector, Bhavnagar. The Collector vide order dated 03.07.2013 refused to interfere in the orders of the authorities below. This Court has taken into consideration the contents of all the orders. Firstly the order of the Mamlatdar, secondly the order of the Deputy Collector and lastly the order of the Collector. This Court finds that the authorities have not committed any error by not continuing the petitioner as Center Co-ordinator. The action of the State is in consonance with the spirit of the policy adopted and therefore no

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interference is required in the impugned order.

5. For the reasons recorded above, this petition is dismissed. Rule is discharged. No order as to costs."

6. We have heard Mr. Brijesh Trivedi, learned advocate for the appellant and Mr. Meet Thakkar, learned AGP for the respondent State extensively and have also perused the case papers.

Analysis:

7. Having heard learned counsel for both the sides and having gone through the documents which are forming part of the appeal as well as considering the impugned order of the learned Single Judge, we are at one with the order passed by the learned Single Judge.

7.1 We are of the view that the writ applicant was appointed on the post of Center Manager on 8.9.1995 by the respondent No.4 on contractual base. The appellant was appointed on yearly basis, which is undisputed. The appellant seeks to rely on the Government Circular dated 10.11.1998 on the basis that the appellant was appointed by the respondent No.4 on 8.9.1995 and therefore, her services would be considered continuous service as her services would be governed by the Government Resolution dated 10.11.1998. Such submission made by the appellant does not weigh with us in view of the fact that the appellant was contractual appointee, who was being appointed purely on contract basis every year.

7.2 In Municipal Council Neemuch Vs. Mahadeo [AIR 2019 SC 4517], the Apex Court held in para 14 to 17 which is produced thus :

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"In the present case, the learned Judges of the Division Bench have arrived at a finding that such a sanction was, in fact, granted. We will examine the correctness of the said finding of fact at a subsequent stage. However, before doing that, we propose to examine the scope of the powers of the High Court of judicial review of an administrative action. Though, there are a catena of judgments of this Court on the said issue, the law laid down by this Court in the case of Tata Cellular v. Union of India reported in (1994) 6 SCC 651 lays down the basic principles which still hold the field. Paragraph 77 of the said judgment reads thus:

77. The duty of the court is to confine itself to the question of legality. Its concern should be:

1. Whether a decision-making authority exceeded its powers?

2. committed an error of law,

3. committed a breach of the Rules of natural justice,

4. Reached a decision which no reasonable tribunal would have reached or,

5. Abused its powers. Therefore, it is not for the court to determine whether a particular policy or particular decision taken in the fulfillment of that policy is fair. It is only concerned with the manner in which those decisions have been taken. The extent of the duty to act fairly will vary from case to case. Shortly put, the grounds upon which an administrative action is subject to control by judicial review can be classified as under:

(i) Illegality: This means the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it.

(ii) Irrationality, namely, Wednesbury unreasonableness.

(iii) Procedural impropriety.

The above are only the broad grounds but it does not Rule out addition of further grounds in course of time. As a matter of fact, in R. v. Secretary of State for the Home Department, ex Brind, (1991) 1 AC 696, Lord Diplock refers specifically to one development, namely, the possible recognition of the principle of proportionality. In all these cases the test to be adopted is that the court should, 'consider whether something has gone wrong of a nature and degree which requires its intervention.

It could thus be seen that the scope of judicial review of an administrative action is very limited. Unless the Court comes to a conclusion, that the decision maker has not understood the law correctly that regulates his decisionmaking power or when it is found that the decision of the decision maker is vitiated by irrationality and that too on the principle of "Wednesbury Unreasonableness" or unless it is found that there has been a procedural impropriety in the decision-making process, it would not be permissible for the High Court to interfere in the decision making process. It is also equally well settled, that it is not permissible for the Court to examine the validity of the decision but this Court can examine only the correctness of the decision making process.

This Court recently in the case of West Bengal Central School

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Service Commission v. Abdul Halim reported in 2019 had again an occasion to consider the scope of interference Under Article 226 in an administrative action.

31. In exercise of its power of judicial review, the Court is to see whether the decision impugned is vitiated by an apparent error of law. The test to determine whether a decision is vitiated by error apparent on the face of the record is whether the error is self-evident on the face of the record or whether the error requires examination or argument to establish it. If an error has to be established by a process of reasoning, on points where there may reasonably be two opinions, it cannot be said to be an error on the face of the record, as held by this Court in Satyanarayan v. Mallikarjuna reported in AIR 1960 SC

137. If the provision of a statutory Rule is reasonably capable of two or more constructions and one construction has been adopted, the decision would not be open to interference by the writ Court. It is only an obvious misinterpretation of a relevant statutory provision, or ignorance or disregard thereof, or a decision founded on reasons which are clearly wrong in law, which can be corrected by the writ Court by issuance of writ of Certiorari.

32. The sweep of power Under Article 226 may be wide enough to quash unreasonable orders. If a decision is so arbitrary and capricious that no reasonable person could have ever arrived at it, the same is liable to be struck down by a writ Court. If the decision cannot rationally be supported by the materials on record, the same may be regarded as perverse.

33. However, the power of the Court to examine the reasonableness of an order of the authorities does not enable the Court to look into the sufficiency of the grounds in support of a decision to examine the merits of the decision, sitting as if in appeal over the decision. The test is not what the Court considers reasonable or unreasonable but a decision which the Court thinks that no reasonable person could have taken, which has led to manifest injustice. The writ Court does not interfere, because a decision is not perfect.

It could thus be seen that an interference by the High Court would be warranted only when the decision impugned is vitiated by an apparent error of law, i.e., when the error is apparent on the face of the record and is self evident. The High Court would be empowered to exercise the powers when it finds that the decision impugned is so arbitrary and capricious that no reasonable person would have ever arrived at. It has been reiterated that the test is not what the court considers reasonable or unreasonable but a decision which the court thinks that no reasonable person could have taken. Not only this but such a decision must have led to manifest injustice."

7.3 In view of the ratio laid down in Municipal Council Neemuch (supra) and the order passed by the learned Single Judge, the decision arrived at by the State authority is in

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consonance with the policy of 2008. We are not inclined to interfere with the same. In view of the prevailing policy of the State Government, this Court is not inclined to interfere with the said decision taken by the competent authority, more particularly all the authorities have held concurrently against the writ applicant.

8 Further, the appellant has not been able to controvert the policy of the State Government dated 2.8.2008 states that, "if the husband/wife/son/daughter of any employee of any establishment under the State or Central Government shall not be appointed for the post of Manager/Cook/Helper in any center:. The appellant's husband was working as a Clerk at Muhuva Nagarpalika and therefore, the action of the respondent authorities is in consonance with the spirit of the Government Resolution. In our view, the same does not inspire any interference. We are at one with the order passed by the learned Single Judge dismissing the writ application and the said order does not call for any interference. It is a settled principle of law that interference in the Letters Patent Appeal is called for only if there is a patent error on the face of the record or the judgment, which is against the established or settled principle of law.

In view of above, present Letters Patent Appeal therefore fails and the same is dismissed.

(J. B. PARDIWALA, J)

(VAIBHAVI D. NANAVATI,J) KAUSHIK D. CHAUHAN