Gujarat High Court
Dharamshibhai Bachubhai Koli vs State Of Gujarat on 27 January, 2022
Bench: Biren Vaishnav
C/SCA/15546/2019 JUDGMENT DATED: 27/01/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 15546 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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DHARAMSHIBHAI BACHUBHAI KOLI
Versus
STATE OF GUJARAT
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Appearance:
MR NIMIT Y SHUKLA(8338) for the Petitioner(s) No. 1
MR KURVEN DESAI, AGP (1) for the Respondent(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
Date : 27/01/2022
ORAL JUDGMENT
1. Rule returnable forthwith. Mr. Kurven Desai,
learned Assistant Government Pleader waives
service of notice of Rule for respondents.
2. With the consent of the learned counsels for the
respective parties, the petition is taken up for final
hearing today.
3. Heard Mr. Nimit Shukla, learned counsel for the
C/SCA/15546/2019 JUDGMENT DATED: 27/01/2022
petitioner and Mr. Kurven Desai, learned AGP for
the respondent - State through Video Conferencing.
Perused the record.
4. The prayer in this petition is to quash and set aside
the order dated 10.5.2019 passed by the
respondents by which the services of the petitioner
were terminated.
5. The facts in brief are that the petitioner was a
regular employee appointed on 5.3.1984 as Beat
Guard in the pay scale of Rs.210-270. He passed his
Rastrabhasha Examination in the year 2000. The
petitioner's granted regular increments. By an order
dated 19.6.2015, the petitioner was promoted as
Forester. This post he continued to hold till
18.1.2016. On 10.5.2019, the services of the
petitioner were terminated on the ground that the
petitioner had not passed his examination in three
chances in accordance with the Rules of the year
2008.
6. Mr. Nimit Y. Shukla, learned counsel for the
petitioner has placed reliance on CAV Judgment of
this Court dated 3.9.2020 in the case of Sureshsinh
Chabiramsinh Yadav v. Secretary, Forest and
Environment Department passed in SCA
No.10653 of 2019, wherein, this Court considered
C/SCA/15546/2019 JUDGMENT DATED: 27/01/2022
the issue of termination in context of a similar
employee. This Court in that decision held as under:
5. Considering the submissions on hand made by the
parties, it will be relevant to reproduce the Rules of
1969 pursuant to which the petitioner claims to have
been appointed. The Relevant Rules are under:
Rule 6:
To be eligible for Appointment by direct selection to the
post of the Guards in the lower subordinate Forest
Service, candidate must:
(a) be not less than 18 yeArs of Age And not more thAN
25 yeArs of Age.
(b) Have passed the Gujarati IVth standard;
(C) POSSESS THE FOLLOWING MINIMUM ST AN D
ARD OF PHYSIQUE:
(I) Height 5'4" or 1.6256 metres of 183 cms.
(II) Chest : NORMAL 31" or 0.7874 metres or 79
c.m.s. EXPANDED 33" or 0.8382 metres or 84 c.m.s.)
(D) FOR ADIV AS I CANDIDATES:
(I) Height : 5.1" or 1.5494 metres or 155 cms
(II) Chest: NORMAL 30" or 0.7620 metres or
76 cms.
ExpANded 32" or 0.8128 metres (81 Cms.)
MINIMUM EXPANSION 2" or Cms.
Rule 8:
After passing out of the medical examination the
selected candidates shall be required to undergo
practical training in the field for a period of two months.
Thereafter, they shall be sent in the Guards Training
Class for Training of through grounding in the
theoretical and practical aspects of forestry."
6. Similarly since the order of termination is based on
C/SCA/15546/2019 JUDGMENT DATED: 27/01/2022
the Guard's (Training and Examination) Rules, 2008 as
provided vide G.R. No.GUN/2008/70(RCT)/1003/1604/D-
2 dated 24.12.2008, the relevant Rules are reproduced
as under:
"Rule 1(2):
They shall apply to the candidates selected for
appointment to the post of Guards, Class III under the
Guards, Class III (in the Gujarat Subordinate Forest
Service in the Forest Department) Recruitment Rules,
2004.
2(D): "Post training examination" means the
examination held after the training is over for
candidates selected as Guards as per appendix -A;
Rule 3: Every candidate selected for appointment to the
post of Guard shall require to undergo PRE-SERVICE
TRAINING for a period of six months (theoretical and
practical) at the Forestry Training School, Kakrapar.
Rule 4: On successful completion of the training, the
candidate shall require to appear at the post training
examination and shall require to pass the same in
not more than three chances.
Rule 6: If a direct recruit fails to pass the examination as
required under these Rules, his service shall be
terminated.
Rule 7(1): It prescribes the syllabus for training in
Appendix A which contains 9 subject + discipline,
conduct excursion and tours and sports and physical
training + viva voice."
7. It is undisputed that the petitioner was appointed on
the basis of the 1969 Rules. Reading Rule 6 of the 1969
Rules would indicate that the only stipulation in the Rule
was that the petitioner ought to pass his basic training
examination. Reading of the Rules of 1969 would
therefore indicate that nowhere was there a stipulation
that if a candidate fails to pass his basic training
examination, his services will be put to an end.
8. Reading the order of termination dated 30.4.2019
C/SCA/15546/2019 JUDGMENT DATED: 27/01/2022
would indicate that the respondents have proceeded on
the assumption that the 2008 Rules required that the
petitioner ought to have passed his basic training
examination and having failed to do so, his services
ought to be terminated. What is evident on reading the
Rules of 2008 is, it is a specific case in the Rules that
they apply to candidates who were appointed pursuant
to the selection made in accordance with the Rules of
2004. The petitioner was appointed in the year 1981 and
therefore evidently the Rules of 2004 was not the Rule
pursuant to which the petitioner was selected and
appointed. It is a clear case in which the 2008 Rules
which have been pressed into service for putting an end
to the petitioner's tenure of service is completely
misconceived.
9. Even assuming that one was to accept the submission
of learned AGP relying on Rule 13 of the Rules 1969,
which have been reproduced in the affidavit and which
read as under:
"4.2. It may be relevant to note, that amongst other
eligibilities that an aspirant direct recruitee forest guard
was expected to process, there was also a requirement
to undertake the Guards Examination as provided under
Rule 9 of the Rules, 1969. Rule 13 of the Rules, 1969,
further prescribed that, successful completion of the
guards examination alone will entitle a direct recruitee
to be made probationer for 1 year. The relevant excerpt
of Rule 13 is reproduced for the consideration of this
Hon'ble Court:
13. Candidates who successfully pass the Final
Examination of the Guards Training Class, will be on
probation for a period of one year."
What Rule 13 stipulates is that the candidates who
successfully pass the final examination will be on a
probation for a period of one year. This Rule also does
not stipulate that there shall be a termination of service
on failing to pass the basic training examination.
10. Assuming for the sake of argument and accepting
Mr. Antani's submission on Rule 38 of the Gujarat Civil
Services (General Conditions of Service) Rules, 2002 of
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the presumption of knowledge on behalf of the
petitioner, that cannot absolve the state of its
responsibilities of continuing the petitioner in service for
a period of 36 years and then putting it to an end on the
applicability of Rules which, in the opinion of this Court
clearly did not apply to the petitioner, inasmuch as the
recruitment of the petitioner was in accordance with the
1969 Rules and not in accordance with the Rules of
2004.
11. During the course of the submission, Mr.Antani had
cited a decision of the Honorable Supreme Court in the
case of the Chairman and Managing Director, Food
Corporation of India and others v. Jagdish Balaram
Bahira and others reported in 2017 (8) SCC, 670.
He relied on paragraph Nos.56 and 57 which read as
under:
"56. Service under the Union and the States, or for that
matter under the instrumentalities of the State
subserves a public purpose. These services are
instruments of governance. Where the State embarks
upon public employment, it is under the mandate of
Articles 14 and 16 to follow the principle of equal
opportunity. Affirmative action in our Constitution is
part of the quest for substantive equality. Available
resources and the opportunities provided in the form of
public employment are in contemporary times short of
demands and needs. Hence the procedure for selection,
and the prescription of eligibility criteria has a
significant public element in enabling the State to make
a choice amongst competing claims. The selection of
ineligible persons is a manifestation of a systemic failure
and has a deleterious effect on good governance. Firstly,
selection of a person who is not eligible allows someone
who is ineligible to gain access to scarce public
resources. Secondly, the rights of eligible persons are
violated since a person who is not eligible for the post is
selected. Thirdly, an illegality is perpetrated by
bestowing benefits upon an imposter undeservingly.
These effects upon good governance find a similar echo
when a person who does not belong to a reserved
category passes of as a member of that category and
obtains admission to an educational institution. Those
for whom the Constitution has made special provisions
are as a result ousted when an imposter who does not
C/SCA/15546/2019 JUDGMENT DATED: 27/01/2022
belong to a reserved category is selected. The fraud on
the constitution precisely lies in this. Such a
consequence must be avoided and stringent steps be
taken by the Court to ensure that unjust claims of
imposters are not protected in the exercise of the
jurisdiction under Article 142. The nation cannot live on
a lie. Courts play a vital institutional role in preserving
the Rule of law. The judicial process should not be
allowed to be utilised to protect the unscrupulous and to
preserve the benefits which have accrued to an imposter
on the specious plea of equity. Once the legislature has
stepped in, by enacting Maharashtra Act XXIII of 2001,
the power under Article 142 should not be exercised to
defeat legislative prescription. The Constitution Bench
in Milind spoke on 28 November 2000. The state law has
been enforced from 18 October 2001. Judicial directions
must be consistent with law. Several decisions of two
judge benches noticed earlier, failed to take note of
Maharashtra Act XXIII of 2001. The directions which
were issued under Article 142 were on the erroneous
inarticulate premise that the area was unregulated by
statute. Shalini noted the statute but misconstrued it.
57. Cooley's Treatise on Constitutional Limitations 38
places the matter succinctly in the following terms :
"An officer de jure is one who, possessing the legal
qualifications, has been lawfully chosen to the office in
question, and has fulfilled any conditions precedent to
the performance of its duties. By being thus chosen and
observing the precedent conditions, such a person
becomes of right entitled to the possession and
enjoyment of the office, and the public, in whose interest
the office is created, is entitled of right to have him
perform its duties. If he is excluded from it, the
exclusion is both a public offence and a private injury."
12. There is no dispute on the fact that in public
employment, selection of ineligible persons is a
manifestation of a systematic failure and has a
deleterious effect on the good governance. However,
what the respondents have lost sight of is a fact that
apart from pressing into service of Rules and
terminating the services of the petitioner after 36 years
of service, what is also evident is that the Rule of 2008 is
pressed into service, when in fact I would agree with
C/SCA/15546/2019 JUDGMENT DATED: 27/01/2022
Mr.Shukla's submission that the Rule of 2008 had no
application inasmuch as, the recruitment Rules of 1969
were the Rules, pursuant to which the petitioner was
recruited. The Rules of 2008 were only in context of the
recruitment made in accordance with 2004 Rules.
13. Accordingly the petition is allowed. The impugned
order of termination dated 30.4.2019 is hereby quashed
and set aside. It is evident from the service record that
the petitioner's date of birth is 15.8.1962. The petitioner
therefore would have retired on superannuation in
August, 2020. Having quashed the order of termination
dated 30.4.2019, all consequential benefits shall be
made available to the petitioner as if the petitioner was
in service. Needless to say that the same would also
include terminal benefits and the petitioner would be
entitled to pension and pensionary benefits as per the
service condition rules as if the order of termination
dated 30.4.2019 was never passed. Since the order of
termination is quashed and set aside, the petitioner is
deemed to be in service as if the order of termination
was not passed and he shall be entitled to all benefits
from the date of the order of termination till the date of
superannuation and all superannuation benefits will be
paid to the petitioner including the pay for the period as
aforesaid within a period of 8 weeks from the date of
receipt of the order.
14. Rule is made absolute accordingly with no order as
to costs."
7. It is not in dispute that the petitioner is governed by
the question of law decided by this Court.
8. Mr. Nimit Shukla, learned counsel for the petitioner
has pointed out that the petitioner has retired on
superannuation with effect from 30.6.2019.
9. Accordingly, the petition is allowed. The order of
termination dated 10.5.2019 is quashed and set
C/SCA/15546/2019 JUDGMENT DATED: 27/01/2022
aside. Needless to say that the same would also
include terminal benefits and the petitioner would
be entitled to pension and pensionary benefits as per
the service condition rules as if the order of
termination dated 10.5.2019 was never passed.
Since the order of termination is quashed and set
aside, the petitioner is deemed to be in service as if
the order of termination was not passed and he shall
be entitled to all benefits from the date of the order
of termination till the date of superannuation and all
superannuation benefits will be paid to the
petitioner including the pay for the period as
aforesaid within a period of eight weeks from the
date of receipt of the order.
10. Rule is made absolute accordingly with no order as
to costs.
Direct Service is permitted.
[ BIREN VAISHNAV, J. ]
VATSAL S. KOTECHA
