[Cites 1, Cited by 0]
Gujarat High Court
Amibhai Khumabhai Desai (Diya) vs State Of Gujarat on 28 November, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 17745 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J. SHELAT
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Approved for Reporting Yes No
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AMIBHAI KHUMABHAI DESAI (DIYA) & ORS.
Versus
STATE OF GUJARAT & ORS.
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Appearance:
DECEASED LITIGANT THROUGH LEGAL HEIRS/ REPRESENTATIVES for
the Petitioner(s) No. 6
MR PH PATHAK(665) for the Petitioner(s) No. 1,2,3,4,5,6.1
MS REENA M KAMANI(6007) for the Petitioner(s) No. 6.1
MR PARTH PATEL, ASSISTANT GOVERNMENT PLEADER for the
Respondent(s) No. 1
MR RB THAKOR(6743) for the Respondent(s) No. 2,3,4
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 28/11/2025
ORAL JUDGMENT
1. Rule returnable forthwith. Learned Advocate Mr. R. B.
Rathod waives service of notice on behalf of the respondent
Nos. 2 to 4. Learned Assistant Government Pleader Mr. Parth
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Patel waives service of notice of Rule on behalf of the
respondent No. 1 - State.
2. With consent of learned Advocates appearing for respective
parties, the matter is taken up for hearing.
3. Heard learned Advocate Ms. Reena Kamani for the
petitioners, learned Advocate Mr. R. B. Rathod for the
respondent Nos.2 to 4 and learned Assistant Government
Pleader Mr. Parth Patel for respondent No.1-State.
4. The present Writ Petition is filed under Article 226 of the
Constitution of India, seeking the following reliefs:
"A) YOUR LORDSHIPS may be pleased to admit this petition
B) YOUR LORDSHIPS may be pleased to issue a writ of
mandamus or certiorari or any other appropriate writ order of
directions and be pleased to quash and set aside resolution no 7
dated 15/09/2017 passed by the Diyodar Gram Panchayat to
terminate service of the employee of the Diyodar Gram Panchayat.
8(B-1) The Hon'ble Court be pleased to set aside the action of the
panchayat to discontinue the petitioners from services and be
pleased to direct the panchayat to reinstate the petitioners in
services with all consequential benefits.
8 (B-2) The Hon'ble Court be pleased to direct the respondent
panchayat to pay special cost and compensation to the petitioners
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for mental torcher and for the present litigation.
8 (B-3) pending admission and final disposal of the present petition,
the Hon'ble Court the Hon'ble Court may be pleased to direct the
respondent panchayat take petitioners in services on their original
posts forthwith.
C) YOUR LORDSHIPS may be pleased to issue a writ of
mandamus or certiorari or any other appropriate writ, order of
direction and be please quash and set aside the order/Resolution
no Gapam/102017/311/A dated 3/08/20017 and 9/08/2017 passed
by the state of Gujarat for termination of service of the petitioners.
D) During the pendency of final hearing and disposal of This
Special Civil Application be pleased to stay the resolution no 7
dated 15/09/2017 passed by the Diyodar Gram Panchayat and
reinstate service of the petitioner in Diyodar Gram Panchayat.
E) During the pendency of final hearing and disposal of This
Special Civil Application be pleased to stay termination of the
petitioners in Diyodar Gram Panchayat.
F) Your Lordships be pleased to pass any other and further order
as may be deemed fit in favor of the petitioner."
5. THE SHORT FACTS OF THE CASE APPEAR TO BE
THAT:
5.1. The petitioner No.1 was appointed to the post of clerk in
Diyodar Gram Panchayat on 20th July 1989 and he was
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regularized by the respondent authority on 29th September
1993. His pay scale was fixed as per the G.C.S.C. Revision of
Pay Rules.
5.2. The petitioner No.2 was appointed to the post of peon in
Umarala Gram Panchayat on 12th March 1977 on
compassionate appointment in place of his deceased father and
he was regularized in service by the respondent authority on
12th March 1977.
5.3. The petitioner No.3 was appointed to the post of peon in
Diyodar Gram Panchayat on 6th August 1985 and his pay
fixation was carried out in accordance with the G.C.S.C.
Revision of Pay Rules. He was regularized in service on 29th
September 1993.
5.4. The petitioner No.4 was appointed to the post of clerk in
Diyodar Gram Panchayat on 1st April 1993 and he was
regularized by the respondent authority on 29th September
1993.
5.5. The petitioner No.5 was appointed to the post of clerk in
Diyodar Gram Panchayat on 29th December 2005 and he was
granted the benefits of the 5th Pay Commission with effect
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from 1st January 2011. He was regularized in service on 31st
December 2010.
5.6. The petitioner No.6 was appointed to the post of peon in
Diyodar Gram Panchayat on 31st January 2004 and he was
granted the benefits of the 5th Pay Commission with effect
from 1st January 2011. He was regularized in service on 9th
January 2009.
5.7. On 3rd August 2017 and 9th August 2017, the State
Government, Panchayat, Rural Housing and Rural
Development Department issued Resolution No.
Gapama/102017/311/K dated 3rd August 2017, directing all
D.D.Os. to terminate the services of employees illegally
appointed by various Gram Panchayats.
5.8. It is a case of petitioners that respondent - Diyodar Gram
Panchayat wrongly interpreted the above Government
Resolution dated 9th August 2017 and relying upon such
misinterpretation, passed Resolution No. 7 dated 15th
September 2017, whereby, the services of all employees of
Diyodar Gram Panchayat who had already been regularized
were terminated.
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5.9. Aggrieved by the said action and the impugned resolution, the
petitioners have approached this Court by way of the present
writ petition.
6. SUBMISSIONS OF THE PETITIONERS:
6.1. Learned Advocate Ms. Kamani appearing for the petitioners,
would humbly submit that the order of terminating the services
of the petitioners was in violation of principles of natural
justice, inasmuch as, no procedure has been followed by
respondent Panchayat before terminating their services. So,
such action of the respondent Panchayat requires to be
quashed and set aside; thereby, petitioners require to be
reinstated in service, except Petitioner No. 6, who died during
the pendency of this matter and Petitioner Nos. 2 & 3 already
crossed their age of superannuation.
6.2. Learned Advocate Ms. Kamani would further submit that at
the time of passing of impugned termination order, all the
petitioners were regularized in their services by respondent
Panchayat and Service Book of each petitioner placed before
this Court, not disputed by respondent that it is got prepared.
It is submitted that when petitioners were regular employees of
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Gram Panchayat, their services could not have been terminated
without following due process of law on the ground that their
initial appointment was illegal.
6.3. Learned Advocate Ms. Kamani would further submit that
action of the respondent was in pursuance to the Government
Resolution dated 9th August 2017 issued by Panchayat, Rural
Housing & Rural Development Department, thus, terminated
the services of the petitioners, albeit without following due
process of law. It is respectfully submitted that subsequent to
aforesaid Resolution, the very Department came out with
Circular dated 6th October 2017, whereby, it has been decided
that before terminating the services of employees of Panchayat,
in pursuance to the aforesaid Resolution, Panchayat requires to
follow due process of law. It is respectfully submitted that when
State itself has clarified its Resolution, same shall have to be
given its effect by Panchayat, which in fact not given by
Panchayat, having not reviewed its impugned decision.
6.4. Lastly, learned Advocate Ms. Kamani would respectfully
submit that Petitioner No. 6 having died during pendency of
this matter and as per his service record, he worked for 2004 to
2017, thereby, served for about 13 years with the respondent -
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Gram Panchayat, whatsoever retirement benefits available to
the legal heirs of Petitioner No. 6 be granted by respondent
Panchayat, in accordance with law. Likewise, case of Petitioner
No.2 & 3 may also be considered for granting retiral benefits
by Panchayat.
6.5. Making the above submissions, learned Advocate Ms. Kamani
would request this Court to allow the present writ petition.
7. SUBMISSIONS OF THE RESPONDENT NOS.2 TO 4:
7.1. Per contra, learned Advocate Mr. Rathod, appearing for
respondent Nos. 2 to 4, mainly Panchayat, would respectfully
submit that in pursuance to the aforesaid Resolution dated 9th
August 2017 passed by State, respondent Panchayat has acted
upon it by terminating the services of petitioners, having found
that their initial services were illegal. It is respectfully submitted
that when initial appointment of petitioners was without
following due process of law, there is no reason to observe any
principle of natural justice, inasmuch as, there is no
indefeasible right available with the petitioners to claim any
continuance of service.
7.2. Learned Advocate Mr. Rathod would further respectfully
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submit that in pursuance to the aforesaid Circular dated 6th
October 2017, it was advised to all Panchayat to follow due
process of law before affecting the termination of such
employees, but, in the present case, the order of termination
was already affected before the aforesaid Circular; thereby,
there is no fault can be found with the respondent Panchayat.
7.3. Lastly, learned Advocate Mr. Rathod would submit that even
if this Court arrives at conclusion that termination of services
of petitioners was illegal and without following due process of
law i.e. in violation of principle of natural justice, liberty may
be granted to the respondent Panchayat to follow due process
of law before passing any final order against the petitioners.
7.4. Making the above submissions, learned Advocate Mr. Rathod
would request this Court to dismiss the present Writ Petition.
8. SUBMISSIONS OF RESPONDENT NO.1-STATE:
8.1. Likewise, learned AGP Mr. Patel essentially adopts the
arguments so canvassed by learned Advocate Mr. Rathod
appearing for respondent Nos. 2 to 4. Nonetheless, learned
AGP Mr. Patel would respectfully submit that in pursuance to
the Circular dated 6th October 2017, Panchayat requires to
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follow due process of law before terminating the service of any
employee.
8.2. Making the above submissions, learned AGP Mr. Patel would
request this Court to dismiss the present writ petition.
9. No other and further submissions are being made.
10. Having heard learned Advocates appearing for the respective
parties, following facts emerge:
10.1. The record suggests that all petitioners were appointed in the
service of Panchayat at given point of time and by passage of
time, their services were regularized, inasmuch as, they were
drawing regular pay scale at the time of their termination by
respondent - Panchayat.
10.2. The State thought it fit to issue aforesaid Resolution, thereby,
directed all Panchayats to terminate the services of all illegally
appointed persons on various posts of Panchayat. Nonetheless,
after issuance of such Government Resolution dated 9th
August 2017, immediately a need arises to issue Circular by
State, as it appears that in the aforesaid Resolution, there was
no procedure envisaged for termination of service of respective
employees who alleged to have been illegally appointed in the
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service of Panchayat. Thus, vide above referred Circular dated
6th October 2017, a clarification issued to all Panchayat;
thereby, they were advised to terminate the services of such
illegally appointed employees by following due process of law.
10.3. Undisputedly, before affecting the impugned termination order
upon all the petitioners, no such procedure undertaken by
respondent Panchayat and vide its Resolution dated 15th of
September 2017, services of all petitioners were terminated.
11. Thus, in view of the aforesaid undisputed facts emerges from
the record, would suggest that before affecting the order of
termination upon the petitioners, respondent Panchayat has
not followed and as such not observed any principle of natural
justice, rather not followed due process of law when passed
impugned termination order of petitioners who were regular
employees of Panchayat, may be appointed illegally as per the
case of Panchayat.
12. Having considered the aforesaid aspect and after appreciating
the submissions canvassed by learned Advocates for the
respective parties, I am of the view that decision of termination
of services of petitioners taken by respondent Panchayat,
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requires to be quashed and set aside, solely on the ground that
it is in violation of principle of natural justice and having not
passed without any due process of law qua petitioners.
13. When the decision of respondent Panchayat terminating
services of petitioners found to be illegal and not sustainable in
law, then it requires to be quashed and set aside, thus, it is
hereby quashed and set aside. Consequently, all the petitioners
require to be reinstated in the service of respondent Panchayat.
14. It is informed by learned Ms. Reena Kamani for the petitioners
that by passage of time Petitioner Nos. 2 and 3 crossed the age
of their superannuation and Petitioner No. 6 died during the
pendency of this petition. Thus, in view of the aforesaid, there
is no question/need arise to reinstate them in their respective
services in the Panchayat.
15. At the same time, when decision of respondent Panchayat
interfered with by this Court, and having found that it was in
violation of principle of natural justice and as such without
following due process of law, it is always open for the
respondents, including respondent Panchayat, to follow due
process of law and after giving an opportunity of hearing to
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petitioners concern, appropriate reasoned order may be passed
by the respondent authority in regards to the service conditions
of the petitioners, except Petitioner No. 6, who already died
during the pendency of this petition.
16. As far as Petitioner Nos. 2 & 3 are concern, though they
crossed their age of superannuation, then if permissible in law,
respondent - Panchayat after following due process of law, can
pass appropriate order in regards to their services condition. In
a case where, no such due procedure of law permissible to be
initiated against them having already crossed age of
superannuation, in that eventuality, whatever retiral benefits if
permissible in law and receivable by them, the respondents
shall have to consider it and release it in their favour.
17. So far as the case of Petitioner No. 6 concern being died, it is
open for the legal heirs of Petitioner No. 6 to claim retirement
benefits of deceased Petitioner No. 6 with the respondent
Panchayat. If it is permissible and available in law to grant
such benefit to the legal heirs of deceased employee-Petitioner
No. 6, same shall be considered sympathetically by respondent
Panchayat and accordingly pay to them. This direction issued
on a purely humanitarian ground, considering the peculiar
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facts and circumstances of the present case as petitioner No.6
died during pendency of this petition then, same shall not be
cited as precedent in any other matter.
18. In view of the foregoing reasons, respondent Panchayat is
hereby directed to reinstate the services of the petitioner Nos. 1,
4 and 5 on or before 15th December 2025, failing which they
will entitle to claim salary from 16th December 2025 from
respondents.
19. In view of the aforesaid conclusion, the present Writ Petition is
partly allowed. Rule made absolute, to the aforesaid extent. No
order as to costs.
(MAULIK J.SHELAT,J)
NILESH
