Gujarat High Court
Manishaben Jyotindrakumar ... vs State Of Gujarat on 13 April, 2022
Bench: Vipul M. Pancholi
C/SCA/7147/2018 JUDGMENT DATED: 13/04/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 7147 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
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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 ?
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MANISHABEN JYOTINDRAKUMAR THAKKAR
Versus
STATE OF GUJARAT & 1 other(s)
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Appearance:
MS MAMTA R VYAS(994) for the Petitioner(s) No. 1
MR HARDIK MEHTA, AGP for the Respondent(s) No. 1
MS HARSHAL N PANDYA(3141) for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
Date : 13/04/2022
ORAL JUDGMENT
1. This petition is filed under Articles 226 and
227 of the constitution of India in which the
petitioner has prayed that the order dated 13.03.2018
passed by the Gujarat Civil Services Tribunal
(hereinafter referred to as the 'Tribunal' for short)
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in Appeal No.99 of 2011 be quashed and set aside. It
is also prayed that the order dated 12.10.2010 passed
by the respondents be quashed and set aside.
2. Looking to the issue involved in present
petition, learned advocates appearing for the parties
jointly submitted that this petition be decided
finally at admission stage. Hence, Rule. Learned AGP
Mr. Hardik Mehta as well as learned advocate Ms.
Harshal Pandya waive service of notice of Rule for
the respondent Nos. 1 and 2 respectively.
3. Learned advocate for the petitioner Ms. Mamta
Vyas mainly submitted that pursuant to the
advertisement and after following the procedure, the
petitioner was appointed as English Typist on
06.05.1989 in Surendranagar District Panchayat,
wherein the petitioner was working at Health Branch.
Petitioner was, thereafter, placed on deputation in
the office of Gujarat Panchayat Service Selection
Board where she worked during the period between
16.08.1991 to 17.02.1992. Once again she was placed
on deputation in the office of Commissioner, Tribal
Development between 18.02.1992 to 18.01.1996. At this
stage, it is pointed out that, thereafter, as per the
Resolution of Health and Welfare Department,
Gandhinagar issued on 23.10.1992, the post in
question was abolished and in the new programme viz.
Child Survival and Safe Motherhood Programme, there
was no post of English Typist. The respondent No.2,
therefore, sought guidance from respondent No.1. The
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respondent No.1 directed to retrench the person
working on the post of English Typist by letter dated
08.07.1993. The retrenchment form was not filled in
by the petitioner. Since the post of typist was
abolished in Surendranagar District, the petitioner
was retrenched by letter dated 03.01.1996 and was
placed under Gujarat Panchayat Service Selection
Board. Thereafter, the petitioner was relieved vide
order dated 18.01.1996.
4. At this stage, it is pointed out that petitioner
filed an Appeal No.185 of 1996 before the Tribunal.
During the pendency of the said appeal, interim order
was passed on 01.12.2000 directing the respondents to
place the petitioner on the post in same cadre within
stipulated time. Pursuant to the said order, a
proposal was made by respondent No.1 to respondent
No.1 and thereafter respondent No.1 submitted remarks
before the Tribunal and declared that the case of the
petitioner for placing her as Talati-cum-Mantri will
be considered. Thereafter, the respondent No.1 passed
an order on 05.10.2001 appointing the petitioner as
Talati-cum-Mantri on certain terms and conditions.
Petitioner thereafter resumed the duty w.e.f.
20.11.2001.
5. At this stage, learned advocate Ms. Vyas would
contend that the petitioner was retrenched on
19.01.1996 and once again she was appointed on
19.11.2001 and therefore there was break in service.
The petitioner, therefore, requested to condone the
C/SCA/7147/2018 JUDGMENT DATED: 13/04/2022
break in service as per the condition of the
appointment. However, the respondent Panchayat
Department, vide order dated 12.10.2010, rejected the
application submitted by the petitioner. Petitioner,
therefore, once again, filed Appeal No.99 of 2011
before the Tribunal. It is submitted that the
Tribunal dismissed the said appeal vide impugned
order dated 13.03.2018. Petitioner has, therefore,
filed the present petition.
6. Learned advocate for the petitioner has assailed
the impugned order by mainly contending that as per
the remarks given by respondent No.1 before the
Tribunal, a proposal was pending before the Finance
Department. However, the Tribunal has, without
awaiting for the decision of the Finance Department,
rejected the appeal filed by the petitioner mainly on
the ground of delay of 10 years in filing the appeal.
Learned advocate has referred to the observations
made by the Tribunal in para 4 of the impugned order
dated 13.03.2018. At this stage, it is pointed out
from the record that the petitioner has challenged
communication dated 12.10.2010 issued by the
concerned respondent, by which the proposal/request
made by the petitioner has been rejected, by filing
an appeal before the Tribunal, and therefore, as
such, there was no delay in filing the appeal.
Learned advocate for the petitioner has further
referred to the order dated 12.11.2001, copy of which
is placed on record at page 22, by which the
petitioner has been reappointed on the post of
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Talati-cum-Mantri. Learned advocate for the
petitioner has, more particularly, referred condition
Nos. 1 and 2 of the said order and thereafter
contended that as per Rule 41A of the Gujarat Civil
Services Rules, the pay of the petitioner was
protected. However, without considering the said
aspect, the Tribunal has dismissed the appeal mainly
on the ground of delay in filing the appeal. Learned
advocate, therefore, urged that the impugned order
passed by the Tribunal be quashed and set aside and
matter be remanded back to the Tribunal for deciding
the issue afresh.
7. On the other hand, learned advocate Ms. Pandya
for the respondent No.2 submitted that respondent
No.2 has passed an order of reappointment of the
petitioner on 12.11.2001. The said order was passed
based on the order of the State Government, copy of
which is placed on record at page 20. It is submitted
that the proposal was sent by the respondent No.2 to
the State Government after the request was received
from the petitioner. However, the State Government
has not accepted the said proposal and therefore the
petitioner was informed about the same vide
communication dated 12.10.2010. Learned advocate has
also referred to the averments made in the affidavit-
in-reply filed by the respondent No.2 and submitted
that respondent No.2 has not committed any error
while rejecting the proposal/request of the
petitioner. Hence, the Tribunal has not committed any
error while rejecting the appeal. Learned advocate,
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therefore, urged that this petition may be dismissed.
8. Learned AGP has submitted that the respondent
no.1 Department has made request to the Finance
Department to consider the request of the petitioner,
however, as per the remarks submitted before the
Tribunal, the Finance Department has not taken any
decision and informed that the case of the petitioner
be placed after the decision of the Tribunal. When
inquired, learned AGP submitted that the Finance
Department has not taken any decision. Learned AGP,
therefore, urged that when no error is committed by
the Tribunal while rejecting the appeal of the
petitioner, this Court may not interfere with the
said decision.
9. Having heard the learned advocates appearing for
the parties and having gone through the material
placed on record, it transpires that the petitioner
was declared as surplus because of the police framed
by the Government vide order dated 03.01.1996. The
petitioner was, thereafter, relieved vide order dated
18.01.1996. Thereafter, she was reappointed on
certain terms and conditions vide order dated
12.11.2001, copy of which is placed on record at page
22. From condition No.2 of the said order, it is
revealed that the pay of the petitioner was protected
as per Rule 41A of the Bombay Civil Service Rules and
the appointment of the petitioner is to be considered
as fresh for the purpose of seniority in the cadre of
Talati-cum-Mantri. It is further revealed that the
request of the petitioner to consider her service as
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continuous service during the period between 1996 to
2001 has been rejected by the respondents vide
communication dated 12.10.2010. The petitioner,
therefore, filed an appeal being Appeal No.99 of 2011
before the Tribunal. If the impugned order of the
Tribunal is carefully seen, it appears that the
Tribunal has rejected the appeal filed by the
petitioner mainly on the ground that the petitioner
was reappointed in the year 2001 and thereafter she
has filed appeal in the year 2011 i.e. after a period
of 10 years and therefore there is delay in filing
the appeal. This Court is of the view that the
aforesaid reasoning recorded by the Tribunal is
factually not correct. The request of the petitioner
was rejected on 12.10.2010 and therefore immediately
the petitioner has preferred appeal in the year 2011.
Thus, there was no delay in filing the appeal, as
observed by the Tribunal. Hence, the impugned order
passed by the Tribunal is required to be quashed and
set aside. Further, it is pertinent to note that as
per the remarks submitted by the respondent No.1
before the Tribunal, the file was sent by the
respondent no.1 to the Finance Department and the
Finance Department has not taken any decision on the
said file. Thus, no decision is taken by the Finance
Department on the request of the petitioner.
10. In view of the aforesaid facts and
circumstances of the present case, order dated
13.03.2018 passed by the Tribunal in Appeal No.99 of
2011 is hereby quashed and set aside. The matter is
C/SCA/7147/2018 JUDGMENT DATED: 13/04/2022
remanded back to the Tribunal for deciding the issue
afresh. The Tribunal shall decide Appeal No.99 of
2011 filed by the petitioner as expeditiously as
possible and preferably within a period of 12 months
from the date of receipt of this order on its own
merits and in accordance with law. In the meanwhile,
Finance Department shall also take a decision with
regard to the request of the petitioner and place the
decision before the Tribunal.
11. With the aforesaid observations and directions,
petition is partly allowed. Rule is made absolute to
the aforesaid extent.
Direct service permitted.
(VIPUL M. PANCHOLI, J)
LAVKUMAR J JANI
