Gujarat High Court
Jitendra Babulal Shah vs State Of Gujarat on 1 July, 2025
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C/SCA/14385/2021 ORDER DATED: 01/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 14385 of 2021
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JITENDRA BABULAL SHAH
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR ANSHIN DESAI, SENIOR ADVOCATE WITH MS NIKITA S
BAROT(7417) for the Petitioner(s) No. 1
SANSKRUTI R SHUKLA(8913) for the Petitioner(s) No. 1
MS SURBHI BHATI, AGP for the Respondent(s) No. 1,2,3,4
NOTICE SERVED BY DS for the Respondent(s) No. 5
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 01/07/2025
ORAL ORDER
1. This petition is filed for the following prayers:
"10(i) That this Hon'ble Court may be pleased to admit and
allow the present Petition;
(ii) That this Hon'ble Court may be pleased to issue a writ
of mandamus or a writ in the nature of mandamus or any
other writ, order or direction quashing and setting aside the
Office order dated 02.09.2021 issued by the Respondent No.1
and the Communication dated 30.07.2021 made the
Respondent No.2 to the Respondent No.1.
(iii) That pending the hearing and disposal of the present
Petition, this Hon'ble Court may be pleased to stay the
operation and implementation of the Office Order dated
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02.9.2021 issued by the Respondent No.1 and the
Communication dated 30.07.2021 made by the Respondent
No.2 to the Respondent No.1 and further direct the
Respondent No.3 to release the amount of Pension to the
Petitioner;
(iv) For ex-parte interim and ad-interim reliefs in terms of
prayer (iii) hereinabove;
(v) xxxx
(vi) xxxxx"
2. Learned senior advocate Mr.Desai, at the outset,
submitted that the Court has considered similar aspects in
Special Civil Application No.13338 of 2021 which is decided
by order dated 9.2.2023. He submitted that the said petition
was filed by the Trustees and the present petition is filed by
the Director, but by challenging the same resolution. He also
submitted that the affidavit-in-reply filed in that petition and
this petition are verbatim same. Therefore, he submitted that
identical order may be passed in this petition also.
3. Learned AGP Ms.Bhati, after verifying the facts of
the matter and the order passed in Special Civil Application
No.13338 of 2021, has conceded to what is stated by learned
senior advocate Mr.Desai and submitted that similar order
may be passed.
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4. The relevant paragraphs of the aforesaid order
dated 9.2.2023 are as under:
"5. The brief facts of the case are as under:-
5.1. The petitioners are the trustees of Lalbhai
Dalpatbhai Bhartiya Vidhyamandir (hereinafter referred
to as "the Trust"), a public trust registered under the
provisions of the Gujarat Public Trusts Act, 1950. The
petitioner Trust has set up a premier research institute
"Lalbhai Dalpatbhai Institute of Indology"(for short"the
Institute") dedicated to the preservation, restoration and
collection of the ancient Indian manuscripts and
artefacts.
5.2.It is the case of the petitioners that one Shri
Jitendra Babulal Shah was appointed as the Director of
the Institute from 08.12.1998 till his date of retirement
on 31.12.2018. There was a complaint filed against
Mr.Shah with regard to his selection for the post of
Director of the Institute.
5.3. The appointment of Shri Shah was made by the
Selection Committee comprising of the representative
appointed by the Gujarat University as well as the
Department of Higher Education as per the circular
dated 20.11.1997 of the Gujarat University.
5.4. On the basis of the complaint made by one
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employee of the Institute against Shri Shah for his
alleged illegal appointment on the ground that he did
not meet with the criteria prescribed by the respondent
no.4-University, inquiry was initiated by the respondent
State Government and the Gujarat University on
multiple occasions. After completion of the inquiry in
the year 2002, it was found that the appointment was
legal and valid.
5.5. The respondent no.4-University initiated another
inquiry on the very issue in the year 2017 which was
stayed by this Court vide order dated 26.04.2017 passed
in Special Civil Application No.8564 of 2017.
Thereafter, on the basis of the statement made on
behalf of the respondent no.4- University that no further
inquiry was
contemplated against Shri Shah, the proceedings came
to an end on 23.06.2021 as this Court disposed of the
said petition in view of the statement made by the
respondent no.4-University.
5.6. Thereafter, it appears that by letter dated
30.07.2021, the respondent no.3 directed the respondent
no.2- Commissioner of Higher Education after
considering the letters of the Gujarat Vigilance
Commission dated 27.09.2006, 27.04.2007, 27.03.2007,
27.04.2007, 23.03.2009 and 31.07.2009, 15.03.2010,
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16.09.2018, 04.06.2011 and part 1 of the letter dated
22.02.2019 to initiate proceedings against Shri Shah and
it was further informed that as Shri Shah was not the
employee of the Government, no departmental inquiry
can be initiated against him, however it was decided by
the respondent Government to initiate criminal
proceedings against the trustees of the petitioner trust
and to recover the amount of the grant paid to the
Institute which was utilized for payment of salary to
Shri Shah.
5.7 On the basis of such letter the respondent no.2
passed the impugned order dated 02.09.2021 to
implement the directions given by the respondent no.3.
6. Being aggrieved, the petitioner is before this Court.
7. This Court passed the following order on 15.09.2021:-
"1. Heard, learned Senior Advocate Mr.Mihir Joshi
assisted by learned AdvocateMr. Parth Contractor
for thepetitioners.
2. Learned Senior Advocate Mr. Joshi submitted
that without giving an opportunity of hearing to
the Petitioners, i.e. the Trust and its Trustees or
representatives, the Respondent No.2 has passed
the impugned order dated 02.09.2021, pursuant to
the letter / order dated 30.07.2021 issued by the
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Under Secretary, Education Department, State of
Gujarat, to take several actions against the
Petitioner- Trust and its Trustees.
2.1 It was further submitted that by the impugned
communication an erstwhile employee of the
Petitioner-Trust, namely one Mr. Shah, who was
not in employment of the Department of Higher
Education as no departmental action could be
initiated against him, in the alternative it is
directed to initiate proceedings under the Indian
Penal Code
against the Management of the Petitioner-Trust.
2.2 It was submitted that the petitioner had no
notice or knowledge of the internal communications
on the basis of which the impugned notice /
communication has been issued by the
Respondents.
3. Considering the above submissions, a prima
facie case is made out to grant ad interim relief.
Moreover, the balance of
convenience is also in favour of the petitioners,
because if any action is initiated against the
Petitioners pursuant to the impugned
communication the same shall be without affording
an opportunity of hearing to the Petitioners and
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serious and irreparable loss harm and injury would
be caused to the Petitioner-Trust and its Trustees.
4. NOTICE, returnable on 6 TH OCTOBER, 2021.
4.1 By way of ad-interim-relief, the operation,
implementation and execution of the impugned
order dated 02.09.2021 passed by Respondent No.2
so also the communication / order dated 30.07.2021
addressed by Respondent No.3 to Respondent No.2
shall remain STAYED qua the present Petitioners.
Direct service is permitted."
8. Learned Senior Advocate Mr.Mihir Joshi submitted
that the appointment of Shri Shah was made by an
independent Selection Committee comprising of the
following persons:-
"1. Shri Arvind Narottam (Chairman of the Governing
Body)
2.Prof. Ujamshi Kapadia (Member of Governing Body)
3.Dr. Raghuvir Chaudhari (Nominee of Vice-chancellor)
4.Dr. Vasant M. Bhatt (Nominee of Vice-chancellor)
5.Prof. R.H.Vyas (Expert)
6.Shri C.N.Gonsai (Joint Director, Higher Education)"
9. It was submitted that the trustees of the petitioner
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trust are not at all involved in the selection of Shri
Shah in the year 1998.
10. It was further submitted that it is not in dispute
that since the year 2002 the selection of Shri Shah is
held to be legal and valid and thereafter no further
proceedings were initiated against either Shri Shah or
the trustees of the petitioner trust or any person. It
was submitted by learned Senior Advocate Mr.Joshi that
the impugned order is passed without any show cause
notice and therefore, the same is in fragrant breach of
principles of natural justice. It was submitted that there
is no provision under any law to hold the trustees of
the petitioner trust liable for criminal action as well as
recovery of the grant as per the provisions of the Grant
in aid code, when there is no report suggesting that the
appointment of Shri Shah was not legal and valid.
11. Learned Senior Advocate Mr.Joshi invited the
attention of the Court that the criminal complaint filed
against Shri Shah is also disposed of on 23.06.2015 by
filing a summary report under Section 173 of the Code
of Criminal Procedure, 1973 which has been accepted by
the competent Court. Learned Senior Advocate Mr.Joshi
submitted that the criminal complaint was filed by one
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Mr.Vinod Pandya, advocate.
12. It is therefore submitted that even on merits there
is no pending proceeding against Shri Shah and
therefore, the impugned orders dated 30.07.2021 and
02.09.2021 are liable to be quashed and set aside.
13. On the other hand learned AGP Mr.Kurven Desai
submitted that the impugned orders are passed on the
basis of the communication received from the Gujarat
Vigilance Commission from the year 2006 onwards as
referred to in the order dated 30.07.2021. He referred to
and relied upon the following averments made in the
affidavit in reply filed on behalf of the respondent no.2:
"6. By way of communication dated 30.07.2021, the
Respondent No. 3 observed that pursuant to
communication dated 27.04.2007 of the Gujarat
Vigilance Commission, three separate committees
investigated the issue of appointment of Dr. J.B. Shah.
Out of the three committees, two committees arrived at
a finding that the appointment of Dr. Shah was on
the basis of forged documents. As Dr.Shah was not an
employee of the state, appropriate departmental
proceedings could not be initiated against him. Hence,
it was recommended that as per the original
recommendation of the Gujarat Vigilance Commission,
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the salary as well as pension paid to Dr. Shah be
recovered from the organization.
7. Thereafter, order dated 02.09.2021 came to be
passed by the Respondent No. 2. The said order dated
02.09.2021 referred to the communication dated
30.07.2021. The operative portion of the order dated
02.09.2021 provides for the following: (1) recovery of
amounts paid to Dr. Shah towards pension and salary
from the Petitioner-Trust (2) keeping the pension paid
to Dr.Shah in abeyance (3) to initiate appropriate
proceedings against Dr.Shah as well as the trustees of
the Petitioner- Trust under the provisions of the
Indian Penal Code. It may be noted that as on date,
neither recovery proceedings nor criminal proceedings
have been initiated in terms of the order dated
02.09.2021.
8. As per the report dated 22.09.2006 issued by Shri
Arvind
Bhandari, Registrar of Gujarat University, Dr. Shah
lacked the experience required in terms of clause 3(c)
of the updated criteria provided for by the circular
dated 20.11.1997. In terms of clause 3(c),Dr. Shah did
not have the requisite experience of Ph.D guide with 5
years administrative experience.
9. As per the report dated 08.12.2015 issued by a
committee of Dr.S.U. Vora, (Principal, M.P. Shah Arts
and Science College) and 3 others, the L.D. Insititue of
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Indology failed to carry out verification of the
certificates dated 01.02.1998, 01.05.1998 and 05.05.1998
submitted by Dr. Shah. It was found that:
a. For the period August, 1991 to April, 1998, Dr.
Shah served as merely an honorary director of
Shardaben Chimanbhai Educational Research Centre.
b. With reference to experience certificate dated
02.05.1998 issued by Shardaben Chimanbhai
Educational Research Centre, it was found that certain
discrepancies in signatures were found.
c. Shardaben Chimanbhai Educational Research Centre
had not provided any verification of the certificates
dated 01.02.1998, 01.05.1998 and 05.05.1998 relied
upon by Dr. Shah. It was concluded that Dr. Shah
was not eligible to be appointed as director.
10. The Education Department addressed letter dated
24.07.2017 to the Director, L.D. Institute of Indology
regarding the appointment of Dr. Shah as well as
regarding the misuse of government funds. A request
was made to the recipient of the letter to remain
present before the department with all documents and
provide an appropriate explanation. However, none
remained present before the department.
11. I state that the averments in the Petition to the
effect that various inquiries concluded that the
appointment of Dr. Shah was legal and valid is not
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correct. I reiterate that as stated hereinabove, two out
of three committees concluded that the appointment of
Dr. Shah was not valid.
12. I submit that in view of the facts of the present
matter and in view of what has been stated
hereinabove, it was the
responsibility of the management of the L.D. Institute
of Indology i.e. the Petitioner-Trust to carry out a
thorough verification of all documents prior to
appointment of Dr. Shah as Director. As the
Petitioner-Trust and its trustees failed to take proper
care while managing the affairs of the L.D. Institute of
Indology, the Trust as well as its trustees would be
liable to repay the expenses that have wrongfully been
incurred by the state exchequer."
14. Learned AGP Mr.Desai has also placed on record
the original file of the respondent no.2 and 3 pursuant
to the order dated 02.02.2023 before this Court. It was
submitted that it is not in dispute that the show cause
notice was not issued to the petitioners or the trustees
of the petitioner trust but on the basis of the
documents available on the original file, a conscious
decision is taken by the State Government to initiate
criminal proceedings against the trustees of the
petitioner trust and to recover the grant-in-aid for
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payment of salary of Shri Shah from the Institute.
15. It was submitted that such decision is taken after
considering the various correspondence with the Gujarat
Vigilance Commission and therefore, no interference is
required to be made while exercising the extraordinary
jurisdiction under Articles 226 and 227 of the
Constitution of India, as the entire proceedings are in
accordance with the findings given by the two inquiry
committees which were constituted pursuant to the
directions received from the Gujarat Vigilance
Commission since 2006 onwards.
16. Having heard the learned advocates for the
respective parties and having considered the material on
record and on perusal of the original records produced
before this Court, it is not in dispute that the Gujarat
Vigilance Commission has directed in the letter dated
02.09.2006 that the inquiry is required to be made in
the appointment of Shri Shah and if upon inquiry, it is
found that the appointment of Shri Shah is not legal
and valid, then the action which are stated in letter
dated 30.07.2021 were proposed of taking criminal action
as well as recovery of the grant.
17. However on basis of the documents which are
available in the original file, it appears that out of
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three inquiry reports submitted by the inquiry officers,
two reports stipulates that the appointment of Shri
Shah is not legal and valid. Thereafter, it appears that
the matter was referred to the Gujarat Vigilance
Commission but there is nothing on record to show that
the Gujarat Vigilance Commission has recommended to
take criminal action against the trustees of the
petitioner trust, except the letter dated 22.02.2019,
wherein it is only stated that pursuant to the
application dated 04.02.2019 received from one Mr.
Vinod Pandya, appropriate action should be taken. As
per the application of Mr. Pandya, grievance was made
before the Commission for not implementing the two
inquiry reports and not recovering the grant from the
Institute. There is nothing on record to point out the
locus standi of Mr. Vinod Pandya who is stated to be
residing at Suparna-2, Shreyash Foundation, Ambawadi.
18. On inquiry, learned AGP Mr. Desai, stated that Mr.
Vinod Pandya is an advocate. It appears that on basis
of such application made by Mr. Vinod Pandya,
advocate, the Vigilance Commission has informed the
Principal Secretary of the Education Department of the
State to take appropriate action and on basis of such
letter, the impugned order appears to have been passed
on 30.07.2021.
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19. Thus, from the chronology of events stated
hereinabove as well as documents available on the
original file there is nothing on record to show the
involvement of the trustees of the petitioner trust.
There is also no material available on record of
involvement of the Institute for appointment of Shri
Shah. In such circumstances, the impugned orders dated
30.07.2021 and 02.09.2021 to initiate criminal
proceedings against the trustees of the Institute and to
recover the grant without there being any authority to
recover such amount paid to Shri Shah is not tenable
in law, as such orders are without any force of any
existing law.
20. Moreover, there is no finding of any adjudicating
authority to hold the appointment of Shri Shah as not
legal and valid. The respondent no.4- University has
also made a statement before this Court in the pending
Special Civil Application No.8564 of 2017, that no
further inquiry is contemplated against Shri Shah and
accordingly, the inquiry initiated against Shri Shah was
dropped. The Revision Application against the closure
report is pending before the competent Court."
5. Considering the submissions, since the coordinate
Bench has taken the view and issue is decided which is
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identical to the facts of the present case, no further
discussion or reasons are required to be assigned by
discussing the facts of the present case in detail as both the
parties have also jointly submitted that the issue is covered
by the aforesaid judgment.
6. In view of the above, the impugned orders are not
sustainable and are accordingly ordered to be quashed and
set aside.
(SANDEEP N. BHATT,J)
SRILATHA
