Gujarat High Court
Malji Suhel Suleman vs State Of Gujarat on 12 September, 2023
Bench: Nikhil S. Kariel
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C/SCA/7791/2019 JUDGMENT DATED: 12/09/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 7791 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE NIKHIL S. KARIEL Sd/-
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ? NO
2 To be referred to the Reporter or not ?
NO
3 Whether their Lordships wish to see the fair copy
of the judgment ? NO
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution NO
of India or any order made thereunder ?
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MALJI SUHEL SULEMAN
Versus
STATE OF GUJARAT
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Appearance:
MS SANDHYA D NATANI(3678) for the Petitioner(s) No. 1
ADVANCE COPY SERVED TO GOVERNMENT PLEADER/PP for the
Respondent(s) No. 1
MR ADIYTA PATHAK, AGP for the Respondent(s) No. 2,3
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CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
Date : 12/09/2023
ORAL JUDGMENT
1. Rule returnable forthwith. Learned AGP Mr.Aditya Pathak waives
service of notice of Rule for the respondent State. With the consent of
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the learned Advocates for the parties, the matter is taken up for final
hearing.
2. By way of this petition, the petitioner has sought for the following
prayers:-
"7(a) Your Lordships be pleased to admit this petition;
(b) Your Lordships be pleased to quash and set aside the
impugned order dated 25.3.2019 at Annexure-A declaring the order
to be perverse, illegal and bad in law and thereby be pleased to
direct the respondents to grant the benefit of continuity in service to
the petitioner from the date of his original appointment 2.3.2009
along with his regular pay scale as applicable;
(c) Your Lordships be pleased to hold and declare that the
"CCC" exam cleared by the petitioner vide result at Annexure
declared by DOEACC, Ministry of Communication and Information
Technology, Government of India as valid;
(d) Your Lordships be pleased to direct the respondent authorities
that the seniority of the petitioner shall be maintained from the date
of his original appointment i.e. 2.3.2009;
(e) Your Lordships be pleased to stay the implementation and
operation of the impugned dated 23.3.2019 at Ann. A the final
disposal of this petition and further be pleased to direct the
respondent authorities to not to disturb maintain the service
condition of the petitioner as it was prior to the impugned order;
(f) Your Lordships be pleased to grant ad-interim relief in
terms of Para 7(e) till the final disposal of the petition."
3. Brief facts leading to filing of this petition being that the petitioner had
applied, pursuant to an advertisement issued by the Gujarat Subordinate
Selection Board for selection to the post of Clerk, and whereas upon
being successful in the examination, vide an order dated 2.3.2009, the
petitioner had been appointed in the office of the Collector, Bharuch,
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more particularly subject to fulfillment to certain conditions. The
relevant condition insofar as the issue in the present petition being the
passing of the CCC Examination. It would appear that in order dated
2.3.2009 it was clearly mentioned that the candidate would have to clear
CCC Examination within five years of his appointment as per the GAD
Resolution dated 30.9.2006, more particularly by which the CCC
Examination Rules, 2006 had been notified. It would appear that the
petitioner had passed the CCC Examination on 28.6.2009 from
DOEACC Society, more particularly the Society being an autonomous
body under the Department of Information Technology, Ministry of
Communication and Information Technology, Government of India. It
would appear that the petitioner, upon completion of five years of
service had been confirmed in service, more particularly the petitioner
having originally been appointed on contract basis for a period of five
years on a fixed pay of Rs.2,500/-. The order of confirmation dated
28.1.2016 inter alia does not in any place refer to the certificate of the
petitioner of having passed CCC Examination from DOEACC as either
invalid or incomplete. It would appear that when things stood as such,
vide an order dated 25.3.2019 the respondent No.2 herein i.e. the
District Collector, Bharuch had removed the petitioner from services,
more particularly stating that the petitioner had not passed the CCC
Examination as per the Rules. At this stage, it would be relevant to
mention that a close perusal of the order does not reveal any particular
reason for the present petitioner to have been removed, except stating
that the petitioner though having passed the CCC Examination from
DOEACC on 19.10.2009 but that was not as specified in Government
Resolution dated 17.12.2007. It would further appear that vide an order
dated 28.3.2019 i.e. after three days of the removal order the petitioner
had been reappointed, more particularly on account of the petitioner
showing that the petitioner had passed the CCC Examination on
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24.3.2019 from Gujarat University. It would appear that the petitioner
by way of the said order more particularly relying upon the Resolution
of the Finance Department of the State Government dated 28.3.2016 had
been appointed on basic entry level pay-scale and he was given seniority
w.e.f. 24.3.2019. The petitioner being aggrieved by the order of
removal and subsequent order of appointment without grant of seniority
and other benefits, has preferred the present petition.
4. Heard learned Advocate Ms.Sandhya Natani for the petitioner, who
would submit that the relevant condition as found in the appointment
order was of the requirement of the petitioner passing the CCC
Examination within 5 years of his appointment and whereas while the
date of appointment order was 2.3.2009, the petitioner had passed the
CCC Examination from DOEACC Society on 28.6.2009. Learned
Advocate would submit that from the date when the petitioner had
submitted the certificate of DOEACC somewhere in the month of July/
August 2009, the respondent authorities had never informed the
petitioner that the certificate submitted by the petitioner of having
passed the CCC Examination was either not complete or was invalid.
4.1. Learned Advocate would submit that even the order of
confirmation dated 28.1.2016 also does not refer to the said
certificate as being an invalid certificate. Learned Advocate would
submit that if there was any question about the certificate submitted
by the petitioner of having passed the CCC Examination not being
acceptable to respondent authorities either during the period of five
years or even at the stage of the petitioner being confirmed, it was
incumbent upon the respondent authorities to inform the petitioner to
pass the CCC Examination once again. Learned Advocate would
submit that having not done so it was not open for the respondent
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authorities to question the valid of the CCC Certificate submitted by
the petitioner approximately 10 years after the certificate had been
submitted and approximately more than three years after the
petitioner had been confirmed in service.
4.2. Learned Advocate would further submit that as it is even the
impugned order dated 25.3.2019 does not clearly spell out as to
which part of the Resolution dated 17.12.2007 has been violated by
the present petitioner or which part of the said Resolution has not
been fulfilled and whereas under such circumstances, learned
Advocate would request this Court to quash and set aside the
impugned order whereby the petitioner has been removed from
service and would further request this Court to direct the respondents
to consider the seniority as well as refixation of the salary of the
petitioner as if the impugned order of removal had never been
passed.
5. This petition is vehemently objected to by the learned AGP Mr.Pathak
for the respondent State. Learned AGP would submit that as per the
extant Rules, the petitioner was after entering into the service required to
pass the CCC Examination. Learned AGP would submit that even the
order dated 2.3.2009 whereby the petitioner was appointed clearly stated
that the petitioner would have to pass CCC Examination as per the CCC
Examination Rules 2006, more particularly within a period of five years
from the date of appointment. Learned AGP Mr.Pathak in that regard
would draw the attention of this Court to Government Circular dated
17.12.2007, which has been relied upon by the respondents in order
dated 25.3.2019, whereby the petitioner was removed from service.
Learned AGP would submit that as per the said Circular, CCC
Examinations are to be held in two parts and whereas only after the first
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part is cleared the employee would be entitled to appear in the second
part and whereas learned AGP would submit that the certificate of
passing of the CCC Examination by the petitioner from DOEACC
Society does not state about requirements of the said Resolution having
been fulfilled and whereas the learned AGP would submit that under
such circumstances, the order passed by the respondents, removing the
petitioner from service was absolutely justified.
5.1. Learned AGP would further draw the attention of this Court to
Government Resolution dated 30.9.2006, more particularly to
Clause-5 thereof and would submit that 2006 Resolution being the
original Resolution also inter alia stipulated the CCC Examination to
be taken in two parts and whereas since the CCC Examination
passed by the petitioner not being in the proper format, the
respondents could not be faulted in removing the present petitioner,
which is as per the police of the State Government and later
reinstating the present petitioner without benefit of seniority and
continuity of service, which too, according to the learned AGP, is as
per the extant policy.
5.2. Learned AGP would further submit that as such the petitioner
was not entitled to be confirmed in service, more particularly since
the order of appointment clearly spelt out that the candidate would be
required to pass CCC Examination as per the Government
Resolution dated 30.9.2006. Thus, submitting, learned AGP would
request this Court not to interfere in the impugned order.
6. Heard learned Advocates for the respective parties and perused the
record.
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7. At this stage, before discussing and deliberating upon issues raised
certain facts, which would be un-controverted are required to be
mentioned:-
(a) It would appear that while the petitioner had been given an
order of appointment on 2.3.2009, the said appointment order
mentioned the requirement of the petitioner passing the CCC
Examination within a period of 5 years from the date of appointment.
(b) It would appear that the petitioner had passed the CCC
Examination on 19.10.2009 and whereas a certificate to such effect
had also been submitted to respondent Authorities.
(c) It would appear that from the year 2009 till the year 2016,
more particularly when the petitioner had been confirmed in service
and placed in full pay scale the respondents had never raised any
objection about the certificate of the petitioner of passing CCC
Examination being invalid.
(d) It would also appear that even the order dated 28.1.2006,
whereby the petitioner had been confirmed in service, the petitioner
had not been told that the certificate of the petitioner was invalid and
that the petitioner would have to pass CCC Examination afresh. It
would also be pertinent to mention here that the State Government
had issued Government Resolution dated 23.10.2015, more
particularly whereby employees were deemed to get two more years
after their confirmation i.e. after five years for passing of the CCC
Examination and whereas it would appear that vide a decision of the
Hon'ble Division Bench of this Court in Letters Patent Appeal
No.376 of 2021 dated 20.7.2021 the effect of the said Resolution was
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extended for a period of 2 years from the date of the said Resolution
i.e. till 23.10.2015. It would appear that even during the tenure of
the said Resolution, the petitioner had not been informed about the
petitioner having not passed the CCC Examination in correct format
and the certificate submitted by the petitioner not being accepted.
(e) That the action against the petitioner was taken 10 years
after the petitioner had submitted certificate of passing CCC
Examination i.e. vide the impugned order dated 25.3.2019.
(f) Government Resolution dated 30.9.2006 and Government
Circular dated 17.12.2007, inter alia envisage that CCC Exam is
required to be taken in two parts.
7.1. From the incontrovertible facts as noted herein above, while it
would appear that the petitioner did comply with requirement of
passing CCC Examination within the stipulated time, till the
confirmation order was passed or during the tenure of the later
Resolution dated 23.10.2015, the respondents did not intimate to the
petitioner, in any manner whatsoever about the CCC Certificate
submitted by the petitioner being invalid.
7.2. Furthermore, while it would appear that the learned AGP may be
right in so far as submitting that Government Resolution dated
30.9.2006 as well as the Government Notification dated 17.12.2007
inter alia envisage the examination to be taken in two parts, yet it
would also very clearly appear that the petitioner having submitted a
certificate from an recognized Institute i.e. DOEACC within
approximately six months of his joining had never been informed
that the certificate of passing CCC Examination was invalid or
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incomplete, as the case may be. It would also appear that while the
petitioner had been issued with an order of confirmation
approximately 7 years after his appointment i.e. vide order dated
28.1.2016, which confirmed the petitioner in service w.e.f. 2.3.2014
also did not indicate that the petitioner had not fulfilled the
requirement of passing CCC Examination as per the format
prescribed.
8. In the considered opinion of this Court, the order of confirmation would
clinch the issue in favour of the petitioner inasmuch as, though the order
of appointing a candidate clearly requires that the candidate has to pass
the CCC Examination within the prescribed period of five years and
whereas the said order also states that a person who has not passed the
examination within the stipulated time period, would not be regularized
in service and his service would be brought to an end. As against the
same, vide order dated 28.1.2016 when the respondents had
confirmed/regularized the services of the petitioner, the same could only
be read to mean that even at the relevant point of time the respondents
were also not having any objection with regard to the CCC Certificate
produced/submitted by the present petitioner. It would also appear that
the State Government had issued Resolution dated 23.10.2015 more
particularly whereby employees were given further two years for
passing the CCC Examination i.e. two years further from the date of
completion of five years and whereas even during such period, the
respondents never informed the petitioner as regards his not passing of
CCC Examination and his certificate not being valid. In the considered
opinion of this Court, the respondents having confirmed the present
petitioner vide order dated 28.1.2016 and having not informed the
petitioner about the petitioner lacking in fulfilling the requirement of
passing CCC Examination could only be read to mean as if the
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respondents, as noted herein above, were not having any objection with
regard to the certificate submitted by the present petitioner.
9. Insofar as the impugned order dated 25.3.2019 is concerned, in the
considered opinion of this Court, it would appear that upon the
petitioner submitting certificate from a valid Institute of having passed
the CCC Examination insofar as the petitioner was concerned, the issue
stood closed. If the certificate submitted by the petitioner was,
according to the respondents, not in proper format prescribed or not in
accordance with the Rules, in the considered opinion, it was incumbent
upon the respondents to have intimated to the petitioner during the
tenure of the period when the petitioner was required to pass the CCC
Examination i.e. within five years from the date of entry in service or
within the extended period as per the Resolution dated 23.10.2015. As
noted herein above, since the petitioner was not informed either during
the period of five years from the date of entry in service and more
particularly since even the order of confirmation did not specify about
the petitioner lacking in the requirement of having passed the CCC
Examination and the order of confirmation being subject to the
petitioner passing the CCC Examination within the stipulated time
period, in the considered opinion of this Court, it would now not have
been open for the respondents to have turned around and question the
certificate of the petitioner submitted as far back as in the year 2009,
more particularly vide the impugned order, which was 10 years later.
10. Having regard to the above discussion, in the considered opinion
of this Court, the respondents have gravely erred in removing the
petitioner from service by order dated 25.3.2019 and further gravely
erred by taking back the petitioner in service without granting him the
benefit of continuity in service and placing the petitioner in the
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minimum of pay scale as available to the post. Under such
circumstances, the impugned order dated 25.3.2019 passed by
respondent No.2 is hereby quashed and set aside. Consequentially, the
order dated 28.3.2019 passed by the respondent also stands quashed and
set aside. The respondent No.2 is directed to place the petitioner on the
appropriate pay scale, as if the order dated 25.3.2019 and order dated
28.3.2019 had not been passed at all and whereas even insofar as the
seniority position is concerned, the petitioner shall be given appropriate
placement as if the above two orders had not been passed at all. The
petitioner shall also be entitled to difference of pay i.e. the difference of
salary from the salary which the petitioner was entitled to from
28.3.2019 till date. The exercise as above shall be completed by the
respondents within a period of three months from the date of receipt of
this order.
11. With the above observations and directions, the present petition
stands disposed of as allowed. No order as to costs. Rule is made
absolute to the aforesaid extent.
Sd/-
(NIKHIL S. KARIEL,J)
V.V.P. PODUVAL
