Gujarat High Court
State Of Gujarat vs Paraskumar Rameshbhai Makadiya on 20 April, 2022
Bench: Hemant M. Prachchhak
C/LPA/1528/2019 JUDGMENT DATED: 20/04/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 1528 of 2019
In
R/SPECIAL CIVIL APPLICATION NO. 9530 of 2013
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
In
R/LETTERS PATENT APPEAL NO. 1528 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE R.M.CHHAYA
and
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
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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 ?
================================================================
STATE OF GUJARAT
Versus
PARASKUMAR RAMESHBHAI MAKADIYA
================================================================
Appearance:
MS DHWANI TRIPATHI AGP for the Appellant(s) No. 1,2,3,4
MR GAUTAM JOSHI SR. ADVOCATE FOR MR VISHAL B MEHTA(5319) for
the Respondent(s) No. 1
NOTICE SERVED for the Respondent(s) No. 2,3
================================================================
CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
and
HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
Page 1 of 10
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C/LPA/1528/2019 JUDGMENT DATED: 20/04/2022
Date : 20/04/2022
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK)
1. Being aggrieved and dissatisfied with the impugned
judgment and order dated 23.10.2018 passed by the learned
Single Judge in Special Civil Application No.9530 of 2013, the
appellant - State Authority has preferred the present appeal
under Clause 15 of the Letters Patent Appeal.
2. Facts of the present case are, in nutshell as under:-
2.1 That the School Management, respondent no.3 herein
issued advertisement dated 29.07.2008 in a local daily
newspaper "Kesari Dainik" for the post of Assistant Teacher and
pursuant to the advertisement, the original petitioner -
respondent no.1 herein applied for the said post and was
appointed as Assistant Teacher after following due selection
process.
2.2 That the District Education Officer granted provisional
approval on 29.09.2008 to the appointment of respondent no.1
and he joined the services with the School Management. That
C/LPA/1528/2019 JUDGMENT DATED: 20/04/2022
pursuant to the application made on 23.09.2008 by a local
political person, the approval granted by the District Education
Officer was cancelled and the services of respondent no.1 were
put to an end. That the hearing was scheduled before the District
Education Officer and vide order dated 26.11.2008 the
provisional appointment which was granted was recalled. The
District Education Officer did not approve appointment of
respondent no.1 and imposed 25% cut in maintenance grant on
the institute. That vide order dated 01.12.2008, the services of
respondent no.1 came to be terminated by the School
Management.
2.3 That respondent no.1 approached the Gujarat Secondary
Education Tribunal by filing application being Application No.206
of 2008. The Tribunal granted interim relief to the extent of
continuing respondent no.1 in service without salary and the
main application was kept pending for adjudication.
2.4 That, the School Management challenged the said order by
filing an appeal before the Commissioner of Schools, which came
to be dismissed vide order dated 12.05.2009. Subsequently, the
C/LPA/1528/2019 JUDGMENT DATED: 20/04/2022
School Management approached the Education Department
challenging the said order and, thereafter, the Tribunal vide
order dated 12.08.2010 directed the Education Department to
give decision in accordance with the rules as early as possible.
2.5 That on 15.04.2013, the Education Department rejected
the representation of respondent no.1 confirming the order
passed by the Commissioner of Schools dated 12.05.2009.
2.6 That respondent no.1 preferred Special Civil Application
No.9530 of 2013 with the following prayers.
(A) That the Hon'ble Court may be pleased to issue a writ of
mandamus or any other appropriate writ order or
direction quashing and setting aside the impugned order
dated 15.4.2013 passed by respondent No.1 State
authority as well as order dated 15.5.2009 passed by
respondent No.2 authority and further be pleased to
direct the respondent authority to reinstate the
petitioner with continuity and all consequential benefits
and be further pleased to direct respondent authority to
grant forthwith approval to the appointment of the
petitioner.
(B) Pending admission hearing and final disposal of this
petition, the Hon'ble Court may kindly direct the
respondent authority to grant provisional approval to the
appointment of the petitioner by staying further
operation, implementation and execution of the
impugned order dated 15.4.2013 passed by respondent
No.1 State authority as well as order dated 15.5.2009
passed by respondent No.2 authority and be further
pleased to direct respondent authority to allow the
petitioner to continue to serve on the post with attached
benefits.
C/LPA/1528/2019 JUDGMENT DATED: 20/04/2022
(C) Grant such other and further relief(s) as deemed just and
proper by this Hon'ble Court in the interest of justice.
2.7 The appellant - State Authority has filed an affidavit-in-
reply in the aforesaid Special Civil Application wherein the State
Authority has stated as under:-
1. The original petitioner only appointed on probation basis
and not on permanent basis and, therefore, the petitioner
cannot claim appointment as a matter of right.
2. That the petitioner was appointed with the school which
is run by the trust and the school is a 100% grant-in-aid school.
3. An advertisement for the post of Assistant Teacher was
published by the trust and the appointment was approved by
the District Education Officer after undertaking due process. The
District Education Officer had granted provisional approval and,
therefore, the petitioner was appointed on probation for a period
of five years and he joined services on 20.09.2008.
4. The District Education Officer received a representation
stating that there was discrepancy in the selection process in
lieu of which the District Education Officer gave an opportunity
of hearing to the school management as well as the trust and
cancelled the approval of the petitioner and also cut 25% of
grant of the school for the period 2008-2009.
5. The school management, trust as well as the aggrieved
respondent were given an opportunity of hearing by all the
authorities and only after hearing the concerned parties, an
order was passed.
2.8 After hearing the learned counsel appearing for both the
parties, the learned Single Judge vide judgment and order dated
23.10.2018 allowed the petition and quashed and set aside the
order dated 15.04.2013 passed by the State Government and
C/LPA/1528/2019 JUDGMENT DATED: 20/04/2022
the order dated 15.05.2009 passed by the Commissioner of
School.
3. Heard Ms.Dhwani Tripathi, learned Assistant Government
Pleader for the appellant - State Authority and Mr.Gautam Joshi,
learned senior counsel for Mr.Vishal Mehta, learned counsel for
the respondent - original petitioner.
4. Ms.Dhwani Tripathi, learned Assistant Government Pleader
for the appellant - State Authority has submitted that the school
run by respondent no.2 and 3 is 100% grant-in-aid school and
the appointment of the original petitioner was made on probation
basis and only temporary approval was given and he was not
appointed on permanent basis and, therefore, he cannot claim
his appointment as a matter of right. She has submitted that the
representation alleging irregularities in the recruitment
procedure was considered by the District Education Officer and
the decision to cancel the grant was passed. She has also
submitted that respondent no.1 has not challenged the order
dated 26.08.2011 and the order passed by the Appellate
Authorities is after giving an opportunity to all the concerned
C/LPA/1528/2019 JUDGMENT DATED: 20/04/2022
parties and the representation made by the respondent was also
rejected by the Education Officer. She has further submitted that
the newspaper in which the advertisement for recruitment was
published was not widely circulated. She has submitted that the
appeal be allowed and the impugned judgment and order passed
by the learned Single Judge be quashed and set aside.
Ms.Tripathi, learned Assistant Government Pleader has relied
upon the decisions of the Apex Court in the case of Governing
Body L. P. Shah College, Patna and another Vs. Seema
Mishra and others reported in (2016) 9 SCC 449 and Ashok
Chand Singhvi Vs. University of Jodhpur and others
reported in (1989) 1 SCC 399.
5. Mr.Gautam Joshi, learned senior counsel for Mr.Vishal
Mehta, learned counsel for the respondent - original petitioner
has opposed the appeal and has submitted that the learned
Single Judge has not committed any error in allowing the petition
and quashing and setting aside the order passed by the
concerned authority and no interference is called for. He has
submitted that the appeal is devoid of merits and the same
deserves to be dismissed.
C/LPA/1528/2019 JUDGMENT DATED: 20/04/2022
6. No other contentions, submissions and/or grounds are
raised by learned counsel for the appellant.
7. Upon hearing the learned counsel appearing on behalf of
the respective parties and on perusal of the impugned judgment
and order, we find that the learned Single Judge has taken into
consideration the materials placed on record. It appears from the
record that the School Management has issued advertisement
for the post of a teacher and the respondent - petitioner applied
for the said post and he was appointed as Assistant Teacher after
due selection process. From the minutes of the selection process
recorded by the District Education Officer, it appears that
respondent - petitioner himself was a part of the selection
process and in absence of any fraud alleged against the
respondent - petitioner in having secured appointment, he
cannot be victimized and approval granted by the District
Education Officer cannot be withdrawn. The decisions relied upon
by the learned Assistant Government Pleader are not applicable
to the facts of the present case. The learned Single Judge, after
hearing the learned counsel for both the parties and considering
the materials on record, has observed thus:
C/LPA/1528/2019 JUDGMENT DATED: 20/04/2022
"5. Having heard learned advocates appearing on behalf
of the respective parties, what appears on the record is
that the petitioner was a candidate who innocently applied
pursuant to the advertisement that appeared on
29.07.2008 in the local newspaper. Pursuant to such
selection, his appointment was approved by the District
Education Officer. The District Education Officer in his
minutes on 19.09.2008 and the Rojkam that is annexed to
the petition mentioned that pursuant to such an
advertisement, 16 candidates have applied of which 11
remained present. Of the candidates who competed, the
petitioner was found to be meritorious and was selected.
Pursuant to the interim order granted by the Educational
Tribunal, the petitioner continued to discharge his duties for
a period of more than 4½ years. By the impugned order
dated 05.04.2013, the only ground on which the petitioner
faced the axe was that the authorities namely the District
Education Officer while cancelling the approval on
26.11.2008 and the Commissioner in his order dated
15.05.2009 came to the conclusion that the advertisement
that featured in "Kesari Dainik" was not widely published
and there was a mischief on behalf of the management.
5.1 It is not the case of the respondents that the
petitioner's candidature for selection to the post in question
was as a direct result of the proximity to the management.
There are no allegations in the reply to suggest that the
selection of the petitioner was facilitated by the
advertisement in question. The only allegation is that the
advertisement did not appear in a widely circulated
newspaper and at best had appeared in one volume of
newspaper but not the other. For that 'mischief' of the
management, no fault can be found with the petitioner
particularly when it was found from the Rojkam that it was
not the petitioner who was the sole participant in the
recruitment process. 16 candidates had applied of whom
11 remained present and the petitioner was found to be
meritorious and was accordingly selected.
5.2 From the minutes of the selection process recorded by
the District Education Officer also, it is evident that he was
himself a part of the selection process. In absence of any
fraud alleged against the petitioner in having secured
appointment, the petitioner cannot be victimized and the
approval so granted by the District Education Officer which
is withdrawn by communication dated 26.11.2008 and the
consequential order dated 05.04.2013 passed by the State
Government terminating the services of the petitioner
deserve to be quashed and set aside.
C/LPA/1528/2019 JUDGMENT DATED: 20/04/2022
6. In the premises aforesaid, petition is allowed. The
order dated 15.04.2013 passed by the respondent State
Government and the order of the Commissioner dated
15.05.2009 terminating the services of the petitioner are
quashed and set aside. The consequential orders pursuant
to setting aside the order dated 15.04.2013 shall follow.
The petitioner shall be reinstated in service on the post on
which he applied pursuant to the advertisement dated
29.07.2008 with all consequential benefits in accordance
with law. The entire exercise of reinstating the petitioner
shall be carried out within a period of eight weeks from the
date of receipt of writ of the order. Rule is made absolute
accordingly. Direct service is permitted."
8. We are in total agreement with the observations made by
the learned Single Judge in the impugned judgment and order
and no error is found. The appeal being meritless deserves to be
dismissed. Accordingly, the appeal is dismissed. The impugned
judgment and order passed by the learned Single Judge is hereby
confirmed. Notice is discharged. There shall be no order as to
costs.
9. The connected civil application/s, if any, shall stand
disposed of.
(R.M.CHHAYA,J)
(HEMANT M. PRACHCHHAK,J)
V.R. PANCHAL
