Somabhai Remabhai Rathwa vs State Of Gujarat
2022 Latest Caselaw 7433 Guj

     C/SCA/15538/2019                           JUDGMENT DATED: 26/08/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 15538 of 2019

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE BIREN VAISHNAV
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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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                        SOMABHAI REMABHAI RATHWA
                                  Versus
                            STATE OF GUJARAT
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Appearance:
MR HARSHEEL D SHUKLA(6158) for the Petitioner(s) No. 1
MR SOAHAM JOSHI, AGP for the Respondent(s) No. 1
MR HS MUNSHAW(495) for the Respondent(s) No. 2
NOTICE SERVED for the Respondent(s) No. 3
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     CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
                      Date : 26/08/2022
                      ORAL JUDGMENT

1. Rule returnable forthwith. Mr. Soaham Joshi, learned

Assistant Government Pleader waives service of notice

of Rule for the respondent No.1, while Mr. H. S.

Munshaw, learned advocate waives service of notice of

C/SCA/15538/2019 JUDGMENT DATED: 26/08/2022

Rule for the respondent No.2.

2. With the consent of the learned advocates for the

respective parties, the petition is taken up for final

hearing today.

3. The challenge in this petition is to the order of

termination dated 17th November, 2004, by which, the

petitioner who was serving as a Clerk under the

respondent No.2 was removed from service after

holding departmental proceedings on account of

finding arrived at by the departmental authorities that

he had obtained appointment on the basis of a Caste

Certificate which was found to be fraudulent.

4. Mr. Harsheel D. Shukla, learned counsel for the

petitioner would submit that the prayer to set aside the

order of termination dated 17.11.2004 by way of a

petition in the year 2019 is not belated, inasmuch as,

C/SCA/15538/2019 JUDGMENT DATED: 26/08/2022

for a Criminal case that was lodged against the

petitioner, he was acquitted by the competent Court of

the Additional Chief Judicial Magistrate, Halol on

26.04.2018.

4.1. Mr. Shukla would further submit that having been

removed from service, he has not been paid any

benefits which he would otherwise be entitled such as

Provident Fund etc.

5. Mr. H. S. Munshaw, learned counsel appearing for the

respondent No.2 has drawn the attention of the Court

to the affidavit-in-reply and submit that the order of

removal has been passed as the petitioner had

produced a bogus Caste certificate which was

cancelled after due procedure. A departmental inquiry

was held and after following the principles of natural

justice, the order was so passed on 17.11.2004. The

petition is grossly belated as it is filed 15 years after

C/SCA/15538/2019 JUDGMENT DATED: 26/08/2022

the date of his termination. Moreover, this Court, by an

order dated 06.04.2004 had rejected the petitioner's

petition challenging the cancellation of Caste

certificate.

6. Considering the submissions made by the learned

advocates for the respective parties, apparently, the

order of 2004 is a subject matter of this petition, which

otherwise could have been assailed by the petitioner

before the Gujarat Civil Services Tribunal.

7. Be that as it may, only on the ground of delay of 15

years, the Court would not entertain the petition and

merely because the acquittal happened in the year

2018 on a benefit of doubt is not a ground for over

coming the delay in filing the petition.

8. If the petitioner is entitled to any benefits such as

Provident Fund etc. as a result of the operation of the

C/SCA/15538/2019 JUDGMENT DATED: 26/08/2022

order dated 17.11.2004 and if the same is not paid, the

same shall be paid in accordance with law preferably

within a within a period of eight weeks from the date of

receipt of copy of this judgment.

9. The petition stands disposed of in above terms. No

order as to costs. Rule is answered accordingly. Direct

Service is permitted.

[ BIREN VAISHNAV, J. ] VATSAL S. KOTECHA