State Of Gujarat Through ... vs Arunkumar Dolatrai Desai
2021 Latest Caselaw 13005 Guj

        C/CA/528/2021                                     ORDER DATED: 01/09/2021



             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                    R/CIVIL APPLICATION NO. 528 of 2021
                                     In
                  R/LETTERS PATENT APPEAL NO. 788 of 2021

=====================================================
         STATE OF GUJARAT THROUGH PRINCIPAL SECRETARY
                                Versus
                     ARUNKUMAR DOLATRAI DESAI
=====================================================
Appearance:
MS. MEGHA CHITALIYA, AGP for the Applicant(s) No. 1,2
for the Respondent(s) No. 1,2,3
=====================================================

     CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
           and
           HONOURABLE MR. JUSTICE NIRZAR S. DESAI

                                 Date : 01/09/2021

                                   ORAL ORDER

(PER : HONOURABLE MR. JUSTICE NIRZAR S. DESAI)

ORDER IN CIVIL APPLICATION:

1. Heard Ms. Megha Chitaliya, learned Assistant Government Pleader for the appellants-applicants-State.

2. The present application is preferred by the applicants /appellants for condoning the delay of 115 days caused in filing present Letters Patent Appeal.

3. After having heard the learned Assistant Government Pleader, who reiterated the grounds, due to which

C/CA/528/2021 ORDER DATED: 01/09/2021

delay occurred in filing the present Letters Patent Appeal, we are convinced that the delay of 115 days in filing the present Letters Patent Appeal is required to be condoned and the same is condoned accordingly.

4. Civil Application stands disposed of, accordingly.

ORDER IN LETTERS PATENT APPEAL:

1) The main matter i.e. Letters Patent Appeal is taken- up for hearing today itself.

2) The present Letters Patent Appeal under Clause-15 of the Letters Patent Act is filed against the judgment dated 23.10.2019 passed by the learned Single Judge in Special Civil Application No. 6799 of 2013, whereby, the learned Single Judge allowed the petition preferred by the present respondent no.1 in terms of prayer-(B) of Special Civil Application No. 6799 of 2013, whereby, the present respondent no.1 had sought a direction against the present appellants to club the services of the present respondent no.1 from 29.11.1991 to 19.01.1993 as a Lecturer and to count the period as continuous service from the date of his initial appointment i.e. 29.11.1991 and to give confirmation from the date of initial appointment i.e. from 29.11.1991 and grant all consequential benefits including senior scale, selection grade and pay fixation as per time scale entitlement from 29.11.1991.

         C/CA/528/2021                                      ORDER DATED: 01/09/2021




3)               Being aggrieved by and feeling dissatisfied with the

aforesaid order passed by the learned Single Judge dated 23.10.2019, present Letters Patent Appeal is preferred.

4) The brief facts giving rise to the filing of the present Letters Patent Appeal are stated as under:

4.1). The respondent no.2 college was a grant-in-aid institute, which was affiliated with the respondent no.3 University. The present respondent no.1 was appointed on probation basis for a period of two years in the respondent no.2 college by the respondents as a Lecturer. At that point of time, there was a clear vacancy in the respondent no.2 college in the commerce faculty and even the Director of Higher Education also gave permission for appointment of two Lecturers on unreserved post. Pursuant to the said permission, interviews were held on 14.10.1991 by the selection committee and respondent no.1 was one of the selectees. The appointment of the respondent no.1 was approved by the Vice Chancellor of the University vide letter dated 22.10.1991 and the respondent no.1 was appointed as a Lecturer in the respondent no.2 College, after following due process of selection vide order dated 25.10.1991. The appointment order was sent to the respondent no.1 herein by the respondent no.2.

4.2).            Pursuant   to     the    said       appointment          order,        the




         C/CA/528/2021                                  ORDER DATED: 01/09/2021

respondent no.1 joined the services under the respondent no.2 college w.e.f. 29.11.1991. The respondent no.1's appointment was also approved by the university. The Commissioner of Higher Education also approved the appointment of the respondent no.1 till the completion of education term till 30.04.1993, which was further extended till completion of subsequent term, which was to be over on 30.04.1994.

4.3). The respondent no.1 preferred Application No. 84 of 2004 before the Gujarat Affiliated College Service Tribunal at Ahmedabad and prayed that the services of the respondent no.1 be considered as continuous service from the date of his first appointment i.e. 29.11.1991 and to give all the benefits of salary including pensionary benefits. In the said application before the Tribunal, upon issuance of notice, the present appellants and other respondents appeared and filed their replies and stated that since 11.01.1993, the respondent no.1 was in active and continuous services of the college.

4.4). After hearing the parties, the Tribunal vide its order dated 13.04.2010 allowed the Application No. 84 of 2004 preferred by the present respondent no.1 and directed the present appellant and other respondents in the said application that the services of the present respondent no.1 was required to be considered as continuous service w.e.f. 29.11.1991 and to give all the benefits out of service to the respondent no.1 with immediate effect.

         C/CA/528/2021                           ORDER DATED: 01/09/2021




4.5).            Though the aforesaid directions were issued by the

Tribunal and though the respondent no.1 made representations and applications to the respondents including the present appellants, as nothing was done to comply with the directions issued by the Tribunal, present respondent no.1 preferred Special Civil Application No. 6799 of 2013 before this Court with the following prayers:

"(A) YOUR LORDSHIP may be pleased to admit and allow this petition;

(B) YOUR LORDSHIP may be pleased to direct the respondents to club the services of the petitioner rendered from 29.11.1991 to 19.1.1993 as Lecturer and count the period as continuous service from the date of initial appointment i.e. 29.11.1991 and give confirmation from the date of initiate appointment i.e. 29.11.1991 and grant all the consequential benefits including senior scale, selection grade and pay fixation as per time scale entitlement from 29.11.1991;

(C) Pending admission, hearing and final disposal of this petition, YOUR LORDSHIP may be pleased to direct the respondent authorities to decide the representation dated 30.12.2012 made by the petitioner within stipulated time.

(D) Pending admission, hearing and final disposal of this petition, YOUR LORDSHIP may be pleased to direct the respondent authorities to comply with the order of the Tribunal dated 13.04.2010.

(E) Pass such other and further orders as may deem fit in the interest of justice."

4.6). Though, the petition was preferred in the year

C/CA/528/2021 ORDER DATED: 01/09/2021

2013, till the date on which the matter was taken-up for hearing, the present appellants did not file any reply, and hence, in absence of any reply on record by the present appellants, the learned Single Judge allowed the petition in terms of Prayer-(B) vide order dated 23.10.2019.

4.7). Being aggrieved by the aforesaid order, the appellants have preferred the present Letters Patent Appeal.

5) Heard Ms. Megha Chitaliya, learned Assistant Government Pleader for the Appellants-State.

5.1). Ms. Chitaliya, learned Assistant Government Pleader, submitted before us that the order impugned in this appeal is passed by the learned Single Judge without granting opportunity to the present appellants to file the reply. She submitted that the respondent no.1 herein approached the Tribunal as well as this Court belatedly after a number of years of services in the year 2004, which itself is a sufficient ground to deny any relief in favour of the present respondent no.1. Ms. Chitaliya, learned Assistant Government Pleader also submitted that, though the reply was not filed by the present appellants in the main Special Civil Application, it is an undisputed fact that there was a break in the service of the present respondent no.1 and after the break, the respondent no.1 once again joined the services only on 11.01.1993, and therefore, the services of the respondent no.1 cannot be

C/CA/528/2021 ORDER DATED: 01/09/2021

counted as continuous services from 29.11.1991. To substantiate the aforesaid submission, Ms. Chitaliya, learned Assistant Government Pleader drew our attention to Ground-C of the memo of appeal, which is as under:

"c. It is submitted that the petitioner was appointed on 25.10.1991 for the period of 2 years on probation under the affiliation of the South Gujarat University, Surat. The petitioner was appointed on 29.11.1991 in M.K. College of Commerce, original respondent no.2 - opponent no.2, herein. The petitioner, when reported at the said college it was noticed that the number of students in the said college were comparatively less and therefore, by communication UBK/Surplus/91-92/K-1/8699-700 dated 29.04.1992, the appointment of the petitioner was approved for the year 1991-92 and he was released from the services. Thereafter, in the year 1992-93 again the petitioner came to be appointed after considering the number of students and that appointment was by way of letter dated 15.01.1993. The said appointment was approved by the South Gujarat University, Surat on 11.01.1993 and as mentioned hereinabove, on 15.01.1993 administrative approval was granted. The appointment which was made was subjected to certain conditions and prescriptions stipulated. Therefore, it is undisputed fact that the approval to the appointment of the petitioner was only given on basis of communication dated 05.03.1993. Therefore, the appointment was only required to be considered from 19.01.1993 and any and every benefit would be available to the original petitioner-opponent no.1 herein, from the said date."

5.2). Ms. Chitaliya, learned Assistant Government

C/CA/528/2021 ORDER DATED: 01/09/2021

Pleader, by canvasing the aforesaid grounds submitted before us that the aforesaid facts were not placed before the learned Single Judge, at the time when the matter was heard and decided by the learned Single Judge, and therefore, on the strength of aforesaid submissions prayed for quashing and setting aside the order dated 23.10.2019 passed by the learned Single Judge.

5.3). No other or further submissions were made by Ms. Chitaliya, learned Assistant Government Pleader nor she relied upon any judgment to support her contentions.

6) We have heard Ms. Megha Chitaliya, learned Assistant Government Pleader and we have gone through the judgment dated 23.10.2019 passed by the learned Single Judge, which is impugned in this appeal. We have also perused the entire record of Special Civil Application No. 6799 of 2013.

7) It is true that the learned Single Judge allowed the petition preferred by the present respondent no.1, however, it is an admitted position that no reply was filed by appellants for six years. However, what is required to be seen is the circumstances which led to passing of that order. On perusal of the record, we found that even before the Tribunal in Application No. 84 of 2004, what was canvased before us by Ms. Chitaliya, learned Assistant Government Pleader by taking us to Ground-C in the memo of the appeal, which is already

C/CA/528/2021 ORDER DATED: 01/09/2021

reproduced in foregoing paragraph, was canvased was duly considered by the Tribunal. However, even before the Tribunal, the present appellant no.2 i.e. Commissioner of Higher Education, though submitted the remarks at Exh.10, it was observed by the Tribunal that the respondent no.4 did not make any precise submission, though, the contentions of the present respondent no.1, who was the applicant before the Tribunal, was not admitted by the present appellant no.2 - original respondent no.4 before the Tribunal, but there was only formal denial before the Tribunal, and hence, the Tribunal after considering the merits of the application preferred by the present respondent no.1 as well as by relying upon the orders passed by the Tribunal in some other matters, issued directions upon the present appellants and other respondents to consider the services of the present respondent no.1 w.e.f. 29.11.1991 and to give him all the benefits flowing out of services.

8) Though the aforesaid directions were issued as back as on 13.04.2010 and though the respondent no.1 made representations dated 15.12.2011, 20.03.2012, 27.06.2012, 15.09.2012 and 30.12.2012, since none of the representations were replied by the present appellants, the respondent no.1 was constrained to prefer Special Civil Application No. 6799 of 2013 in the year 2013 i.e. almost after three years, after the Tribunal issued directions in favour of the present respondent no.1.

      C/CA/528/2021                              ORDER DATED: 01/09/2021




9)            Even before the learned Single Judge, though, the

petition was of the year 2013 and the same was heard on 23.10.2019, till the date on which it was heard, the present appellants did not bother to file reply for almost six years, and therefore, considering the conduct of the present appellants, learned Single Judge while allowing the petition preferred by the present respondent no.1 was constrained to observe in para-5 to 7 as under:

"5. Learned Assistant Government Pleader as well as Shri Joshi, learned counsel for the respondent no.2, could not controvert this fact in any manner as there is no reply filed. Learned Assistant Government Pleader, at this stage, seeks time to file reply and submitted that if the Court is not inclined to grant time let there be a direction to the concerned for passing appropriate order.

6. This Court is of the considered view that the fundamental principles of pleadings requires that the respondents when are issued notice and served, if they want to controvert the contentions and averments in the petition appropriate reply has to be filed. In the instant case, no reply is filed by any of the respondents. Therefore, the learned counsel for the petitioner is justified in contending that the contentions of the petitioner may be accepted as not controverted.

7. The matter is that of year 2013 and now at this stage, when the matter is being listed for final disposal, the time for filing reply could not have been requested without there being any cogent reason for not filing the reply. Even otherwise also, it would not be open to the respondents to flout with impunity the order of the Tribunal which is a competent Tribunal under the statute i.e. Gujarat

C/CA/528/2021 ORDER DATED: 01/09/2021

Affiliated Colleges Service Tribunal. The Tribunal's order under which the direction is issued to reckon the probation period has remained unchallenged and thus it has attained finality. Moreover, in absence of any cogent reason to indicate that probation period was not required to be reckoned in absence of any Rule, the probation period and the service rendered as a probationer could not have been declined and therefore even on merits also there exists no challenge either to the proposition of law that the probation period in such a case is required to be reckoned as service and especially when the judicial order passed by the Tribunal has remained unchallenged and when the respondents have permitted the same to attained finality, there exists all the more reasons for allowing the petition. Hence, the petition is allowed in terms of prayer (B). Rule made absolute."

10) Today, when the matter was heard, on a query from us, Ms. Chitaliya, learned Assistant Government Pleader informed us that since this appeal is pending, the benefits of continuous services w.e.f. 29.11.1991 is not given to the present respondent no.1. The undisputed fact is that the Tribunal issued directions in favour of the present respondent no.1 on 13.04.2010. The respondent no.1 made representations after representations seeking implementation of the directions issued by the Tribunal. The present appellants did nothing in respect of those representations. Ultimately, the present respondent no.1 was constrained to file a petition before this Court being Special Civil Application No. 6799 of 2013 seeking implementation of the directions of order of the Tribunal and in that petition also, for six long years, the present appellants

C/CA/528/2021 ORDER DATED: 01/09/2021

who were joined as respondents in that petition did not file reply. Not only that, during all this time, though the directions issued by the Tribunal were starring against the appellants, the order dated 13.04.2010 passed by the Tribunal was never challenged by the present appellants, and therefore, in absence of even challenge to that order coupled with the conduct of the present appellants of not filing even reply in the main petition, the learned Single Judge was justified in allowing the Special Civil Application in terms of Prayer-(B).

11) In view of aforesaid, we are in complete agreement with the view taken by the learned Single Judge and observations made by the learned Single Judge and we do not deem it appropriate to interfere with the judgment dated 23.10.2019 passed by the learned Single Judge in Special Civil Application No. 6799 of 2013. The present Letters Patent Appeal deserves to be dismissed and the same is dismissed, accordingly, with no order as to costs.

(R.M.CHHAYA, J)

(NIRZAR S. DESAI,J) Pradhyuman