[Cites 4, Cited by 0]
Gujarat High Court
Girishbhai Chhelshankar Bhatt vs State Of Gujarat on 5 February, 2026
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C/SCA/9642/2017 JUDGMENT DATED: 05/02/2026
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 9642 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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GIRISHBHAI CHHELSHANKAR BHATT
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR GUNVANT R THAKAR(3801) for the Petitioner(s) No. 1
MS NIDHI VYAS, AGP for the Respondent(s) No. 1,2,3,4
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 05/02/2026
ORAL JUDGMENT
1. Heard Mr. Gunvant R. Thakar, learned advocate for the
petitioner and Ms.Nidhi Vyas, learned AGP for the respondent
State. With the consent of the learned advocates for the
parties, the matter is taken up for hearing.
2. The present petition is filed under Article 226 of the
Constitution of India, seeking the following reliefs :
"(a) allow this petition with cost; and / or
(b) quash and set aside the orders dated 30/06/2015 and
05/11/2015 (Annexure-A Colly.) issued by respondent no.3 ; and / or
(c) hold and declare that procedure of departmental inquiry is
vitiated on the ground of delay of more than 32 years; and / or
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(d) hold and declare that petitioner is entitled to all the retiral
benefits in accordance with law as if order dated 30/06/2015 and
order dated 05/11/2015 are never issued against the petitioner
declaring such orders as non-est ; and / or
(e) direct respondent authorities to pay all the retiral benefits with 9
% interest till the actual date of payment ; and / or
(f) pending admission and final hearing of this petition direct
respondent authorities to pay provisional pension to the petitioner
forthwith as per the provisions of Rule 145 of the Gujarat Civil
Services (Pension) Rules, 2002 ; and / or"
BRIEF FACTS OF THE CASE :
3. The short controversy involved in the matter is that the
petitioner was appointed to the post of Peon on 24/12/1982
and suspended on the date of his retirement, i.e., 30/06/2015,
that too after office hours, on the ground that his date of birth
as per the Gujarat Secondary and Higher Secondary
Education Board, Vadodara (hereinafter referred to as "the
Board"), is 02/06/1957 instead of 02/06/1959, as declared by
him. The impugned order dated 30/06/2015, whereby the
petitioner was suspended, a close look of that order would
indicate that he was ordered to be suspended after office
hours on 30/06/2015. Prima facie, the said order could not
have been passed against the petitioner as, after office hours
on 30/06/2015, he retired from service.
3.1 Having come to know about such a defect in the order
and to come out from such defect, it appears that the
respondent vide its impugned order dated 05/11/2015 issued
an amended order whereby, instead of suspension, an order of
relieving the petitioner from service was issued.
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3.2 Both the impugned orders are challenged by the
petitioner in this petition. This Court would like to go further
in the matter but, at the outset, states that the impugned
order dated 30/06/2015 is not sustainable in law, inasmuch as
the petitioner could not have been suspended after office
hours on 30/06/2015 as, by that time, he would retire from
service having reached the age of superannuation, i.e.,
30.06.2015. Likewise, the amended order dated 05/11/2015
impugned in this petition whereby the petitioner was relieved
from service is also not sustainable for the simple reason that,
by that time, the petitioner was already superannuated from
service, as aforesaid.
3.3 Be that as it may, the fact remains that between 1982
and 2011, at no point of time, the respondent had called upon
the petitioner to produce proof of his date of birth. It appears
that in the service book of the petitioner, on the basis of an
affidavit of his mother, whereby she has declared that the
petitioner was born on 02/06/1959, accordingly his date of
birth was recorded. Whereas, as per Government rules, for
exact proof of date of birth, either a birth certificate or a
school leaving certificate is required to be produced by the
employee concerned. So, for the first time, vide its letter
dated 06.12.2011, the respondent had called upon the
petitioner to submit such proof. It further appears that the
petitioner did not submit such proof as, according to him, the
school in which he studied is not keeping such old records and
as such, it is closed down.
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3.4 Nonetheless, the respondent has received the
information about his date of birth from the Board vide its
certificate dated 18/10/2012, wherein it has been mentioned
that the petitioner's date of birth is 02/06/1957. The
respondent appears to have undertaken a preliminary inquiry
and a report appears to have been received on 20/10/2012.
Despite all these materials available, for reasons best known
to the respondent, it has not initiated any departmental
inquiry against the petitioner till he reached the age of
superannuation, i.e., 30/06/2015. The record suggests that the
petitioner was served with the charge-sheet on 01/07/2015,
i.e., post retirement.
3.5 It has come on record that the respondent State, vide its
letter dated 05/10/2018, informed the office of respondent
Nos.2 and 3 that as per Rule 11 of the Gujarat Civil Services
(Discipline and Appeal) Rules, 1971 (hereinafter referred to as
"the Rules, 1971") read with Rule 24 of the Gujarat Civil
Services (Pension) Rules, 2002 (hereinafter referred to as
"the Rules, 2002"), no inquiry can be continued against the
petitioner and as such, the charge sheet would not stand. It is
opined that in view of not continuing the departmental inquiry
against the petitioner, there is no question of any penalty to
be imposed. Yet it has been opined that the appointment of
the petitioner is irregular one and no pensionary benefits can
be granted to him.
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SUBMISSIONS OF THE PETITIONER:
4. Mr. Thakar, learned advocate for the petitioner, would
submit that in the absence of holding a departmental inquiry
against the petitioner, the petitioner could not have been held
guilty and as such, is not guilty for declaring a wrong date of
birth when appointed to the post of Peon in the year 1982.
4.1 Mr. Thakar, learned advocate would further submit that
the respondent cannot be permitted to withheld the
retirement dues, including pension, under the pretext that the
appointment of the petitioner was either illegal or irregular. It
is submitted that without proving the charges leveled against
the petitioner in the charge-sheet served upon him post-
retirement, any adverse decision taken by the respondent not
to release retirement benefits is an arbitrary decision and
violative of Article 14 of the Constitution of India.
4.2 Mr. Thakar, learned advocate would further submit that
at the relevant point of time, when the petitioner was
appointed, on the affidavit of his mother who declared his
date of birth 02/06/1959, the petitioner was not only
appointed but got promoted to the post of Junior Clerk. It is
submitted that there was no reason to disturb the date of
birth in service book of the petitioner after the passage of
more than 30 years. It is further submitted that when
impugned orders and the non-grant of retirement dues to the
petitioner are in violation of the principles of natural justice,
this Court should exercise its discretionary jurisdiction in
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favor of the petitioner.
4.3 To buttress his arguments, Mr.Thaker, learned advocate
for the petitioner, has relied upon the following judgments
which is submitted with rejoinder affidavit of the petitioner.
(i) Order dated 03.07.2019 passed by Division
Bench of this Court in case of Administrative
Officer Vs. Cchandran K., being Letters Patent
Appeal No.1318 of 2019 and allied matters, which
was confirmed by the Honorable Apex Court in
Petition for Special Leave to Appeal (C) No.20430-
20432 of 2019 vide order dated 31/08/2021.
4.4 Making this submission, Mr.Thakar, learned advocate
for the petitioner prays to allow the present petition.
SUBMISSIONS OF THE RESPONDENTS :
5. Per contra, Ms.Vyas, learned AGP would vehemently
oppose this petition on all possible counts. It is submitted that
the petitioner was not eligible to get appointment to the post
of Peon in the year 1982. Had the petitioner declared his
correct date of birth, i.e., 02/06/1957, he was age bar to apply
for the said post. It is submitted that by declaring a false date
of birth, when the petitioner secured appointment, such
appointment would amounts to fraud and be treated as void
ab initio.
5.1 Ms.Vyas, learned AGP would further submit that as per
the settled position of law, when the appointment itself is void
ab initio, no relief can be granted to the petitioner as prayed
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for. It is submitted that the petitioner was called upon by the
respondent authority in the year 2011 itself to submit his
school leaving certificate for verification of his date of birth,
but for reasons best known to him, the petitioner did not
cooperate and never submitted such proof to the respondent.
It is further submitted that the respondent had received such
information from the Board, whereby it has been confirmed
that the correct date of birth of the petitioner is 02/06/1957
and not 02/06/1959.
5.2 Ms.Vyas, learned AGP would further submit that if the
date of birth of the petitioner which is recorded in the Board
examination is taken into account, i.e., 02/06/1957, the
petitioner is definitely an overage as he crosses 25 years,
which is the outer limit - age bar prescribed under the
Recruitment Rules.
5.3 Ms.Vyas, learned AGP would further submit that merely
because no departmental inquiry was concluded by the
respondent due to the provisions of Rule 11 of the Rules, 1971
and Rule 24 of the Rules, 2002, it would not absolve the
petitioner from the fact that he was overage. It is submitted
that there is no error on the part of the respondent in not
releasing the retirement benefits in favor of the petitioner, as
his initial appointment is an illegal one.
5.4 Ms.Vyas, learned AGP further submitted that because of
such misconduct on the part of the petitioner, an FIR is also
registered against the petitioner under Sections 467, 468,
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471, 506, 420 and 120-B of the IPC, which is pending against
the petitioner and due to such reason also, no relief should be
granted in favour of the petitioner.
5.6 To buttress her argument, learned AGP would rely upon
the following judgment :
(i) Ahmedabad Municipal Corporation, Thru
Municipal Commissioner vs. Shaikh Asif Ahmed
Mohammed Hanif - 2025 (0) AIJEL-HC-251136.
ANALYSIS :
6. Having heard the learned advocates for the respective
parties and after perusal of the documents annexed with the
petition, what emerges is as follows:
6.1 The petitioner was appointed to the post of Peon on
24/12/1982 and got promoted to the post of Junior Clerk. After
about 30 years from the date of his initial appointment, one
fine morning, the respondent called upon the petitioner to
submit his school leaving certificate vide its letter dated
16/12/2011 for verification of his date of birth.
6.2 As observed above, the petitioner could not submit such
proof on the ground that the school in which he studied is
closed and no record is available. Nonetheless, the respondent
was able to get the information from the Board vide its letter
dated 18/10/2012. The preliminary inquiry report was also
made available to the respondent authority on 20/10/2012.
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Despite all these materials available with the respondent, no
departmental action was initiated against the petitioner. The
petitioner was served with the impugned suspension order on
30/06/2015, the very day he reached the age of
superannuation. At the outset, it is observed that the order
took effect after office hours. The charge sheet came to be
served upon him on 01/07/2015 and during its pendency, vide
impugned order dated 05/11/2015, the petitioner was relieved
from service.
6.3 There is no cavil that vide letter dated 05/10/2018, the
State has opined that as per Rule 11 of the Rules, 1971 read
with Rule 24 of the Rules, 2002, the charge sheet would not
stand and it is not possible to conduct an inquiry against the
petitioner. Once such is the position, the charges leveled
against the petitioner insofar as giving a false date of birth is
concerned, remain not proved. It is a settled law that if any
serious charge, like a fraud or forgery is leveled against a
regular employee, only after conducting a departmental
inquiry against him, observing the principles of natural justice
and giving an opportunity to the delinquent to prove his
innocence in the inquiry, no decision can be taken by the
State by holding that the delinquent has committed any act of
fraud or forgery.
6.4 It is surprising to note that despite this position of law
and as the State is not in a position to conduct the inquiry
(which in fact was initiated on the next day of retirement of
the petitioner on 01/07/2015 by issuing a charge sheet), it has
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opined in the said letter dated 05/10/2018 that the
appointment of the petitioner is irregular, thereby he would
not be entitled to receive pensionary benefits. This opinion/
observation of the respondent State is in violation of the
principles of natural justice and contrary to the settled
position of law.
6.5 At this stage, it would be apt to refer to the cited
decision of the Division Bench of this Court provided by Mr.
Thakar, learned advocate in the case of Administrative
Officer (supra), wherein it has been held that after a long
period of service and without conducting an inquiry against
the delinquent in regard to the incorrect date of birth
recorded in the service book of the delinquent, the State is not
permitted to change such date of birth which is already
recorded in the service book. The aforesaid decision appears
to have been confirmed by the Honorable Apex Court vide its
order dated 31/08/2021, when dismissing Special Leave to
Appeal (C) No.20430-20432 of 2019.
6.6 So far as the decision pressed into service by the learned
AGP in case of Ahmedabad Municipal Corporation, Thru
Municipal Commissioner (supra), there cannot be a
dispute or second opinion that where any public employment
is secured by a candidate after submitting false or fraudulent
documents, no relief can be granted in favour of such a
candidate. At the same time, this Court is not oblivious to the
facts of the cited case, wherein it was after conducting a
departmental inquiry, the delinquent was found guilty and an
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order of termination was passed. It is not the case on hand.
Thus, the attempt made by the learned AGP to support her
submissions would not achieve any result in her favor.
6.7 True, a criminal complaint might have been lodged
against the petitioner by the respondent authority for forgery
and cheating, but unless the petitioner will be proved guilty at
the end of the trial, at this stage, this Court cannot accept the
submission of the learned AGP that because of the pendency
of such complaint, no retirement benefits should be released
in favor of the petitioner.
CONCLUSION :
7. The upshot of the aforesaid observations, discussion, and
reasons is that the respondent could not have suspended the
petitioner after his retirement from service, effective from the
close of office hours on 30/06/2015. Since the State has
accepted that the charge-sheet served upon the petitioner on
01/07/2015 would not stand and the departmental inquiry
cannot be continued, in that eventuality, the stand of the
respondent-State that the petitioner is not entitled to any
retirement benefits is unsustainable and declared to be
arbitrary, violative of Article 14 of the Constitution of India
and also against the principles of natural justice.
8. Accordingly, the impugned orders dated 30/06/2015 and
05/11/2015 are hereby quashed and set aside. Consequently,
the concerned respondent is directed to calculate and pay all
the consequential retirement benefits to the petitioner on or
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before 31/03/2026, failing which the petitioner is entitled to
receive such benefits at the rate of 6% per annum interest
from 01/04/2026 till its realization.
9. In view of the foregoing conclusion, the present petition
is allowed. Rule is made absolute. There shall be no order as
to costs.
(MAULIK J. SHELAT, J)
GAURAV J THAKER
