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1993 DIGILAW 294 (GUJ)

N. R. CHAUDHARI v. PRINCIPAL,government INDUSTRIAL TRAINING INSTITUTE,ahmedabad

1993-07-05

S.NAINAR SUNDARAM, SHARAD D.DAVE

body1993
S. NAINAR SUNDARAM, J. ( 1 ) THIS Letters Patent Appeal is directed against the order of the learned Single Judge in Special Civil Application No. 2954 of 1985. The petitioner in the Special Civil Application is the appellant in this Letters Patent Appeal. The respondents in the Special Civil application are the respondents in this Letters Patent Appeal. On 18. 10. 1984 the name of the appellant having been sponsored by the Employment Exchange Ahmedabad he was called for an interview on 9. 11. 1984 for the post of Dresser - Class IV. On 23. 11. 1984 the appellant was given the appointment. On 11. 4. 1985 a communication emanated from the first respondent in and by which the appellant was informed that he produced a certificate of belonging to a Scheduled Caste at the time of the interview; and he was requested to submit the certificate of Scheduled Caste/scheduled Tribe within seven days. On 18. 4 the appellant replied saying in substance that he does not belong to Scheduled Caste/scheduled Tribe; and hence he could not submit any certificate to that effect. The appellant was not called upon to explain any situation to be taken note of as adverse to and militating against his appointment. Straightway on 1. 5 proceedings were issued that the services of the appellant are not required and hence he is being discharged from service from 7. 5. 1985. The appellant put these proceedings in issue in the Special Civil Application. The respondents filed their affidavit- in-reply and as per copy furnished to us they have chosen to say as follows:"i say and submit that the petitioner appeared before the committee and produced the certificate in order to be eligible as a Scheduled Caste candidate to whom the age relaxation is given. I say and submit that in fact otherwise the petitioner would not have been interviewed being age barred but for his producing the caste certificate showing that he is a Scheduled Caste person to whom the age relaxation is given and therefore the petitioner was interviewed by the committee. I say and submit that the members of the selection committee had seen the said certificate and after verifying they had interviewed the petitioner as a scheduled caste candidate and even in the comparative statement of the candidate also he is shown as a Scheduled Caste candidate. I say and submit that the members of the selection committee had seen the said certificate and after verifying they had interviewed the petitioner as a scheduled caste candidate and even in the comparative statement of the candidate also he is shown as a Scheduled Caste candidate. I crave leave to refer to and rely upon the same at the time of hearing. However I say and submit that as a matter of fact when a candidate is called for the interview he has to submit the copies of the documents etc. with the concerned clerk who will first scrutinise it and collect it and thereafter the candidate is sent for the interview before the selection committee and at that time selection committee will verify the original documents and they are returned to the candidates. I say and submit that in the instant case also the petitioner should have submitted the copies of the documents including the caste certificate to the concerned clerk. However as I have stated hereinabove though the original caste certificate was shown to the members of the selection committee when the record was submitted subsequently to the Dy. Director it came to his notice that the caste certificate was not there. Therefore he asked the concerned subordinate to send the certificate and ask for his explanation. I say and submit that the inquiry will be held against the concerned clerk also for the same". ( 2 ) AS we could see from the extract made above the stand of the respondents is that but for the fact that the appellant claimed to have belonged to a Scheduled Caste to whom there could be relaxation of age limit for the post in question he would not have been given appointment and since he did not produce the certificate when called upon to do so the respondents were obliged to oust the appellant from service. The appellant filed a rejoinder-affidavit controverting the allegations in the affidavit-in-reply and would interalia submit that the procedure adopted for ousting him from services violated the principles of natural justice. The appellant filed a rejoinder-affidavit controverting the allegations in the affidavit-in-reply and would interalia submit that the procedure adopted for ousting him from services violated the principles of natural justice. ( 3 ) THE learned Single Judge who took note of the stand of the respective parties put forth in their pleadings opined that the dispute revolves around disputed questions of fact and alternative remedy of a civil suit alone will be appropriate and in this view the learned Single Judge rejected the Special Civil Application. ( 4 ) MR. Mohit S. Shah learned counsel for the appellant would primarily contend that in none of the proceedings which preceded the impugned proceedings in and by which the services of the appellant were terminated a case was put forth that the appellant represented that he belongs to a Scheduled Caste and acting upon that representation only the appellant was appointed relaxing the age limit and since he failed to produce the certificate that he belonged to the Scheduled Caste he was ousted from services. Thus the appellant was denied an opportunity to make his say on these allegations which are getting projected for the first time before this Court by way of the affidavit-in-reply. The learned counsel for the appellant submits that the above features glaringly point out violation of principles of natural justice and the appellant has been condemned and sent out of services without being heard on the question. The learned counsel for the appellant Mr. Mohit S. Shah would further submit that when there is a patent violation of the principles of natural justice as borne out by the facts recapitulated as above it would not be proper for this Court to relegate the appellant to seek the civil remedy assuming that it could prove efficacious. ( 5 ) IT has always been accepted that the existence of an alternative remedy is not a bar for this Court to exercise the powers under Article 226 of the Constitution of India but it is eminently a question of discretion with regard to the exercise of the highly prorogative writ powers. ( 5 ) IT has always been accepted that the existence of an alternative remedy is not a bar for this Court to exercise the powers under Article 226 of the Constitution of India but it is eminently a question of discretion with regard to the exercise of the highly prorogative writ powers. But when this Court finds that the violation of the principles of natural justice is patent the Court may not gloss over that and relegate the party to the alternative remedy and in appropriate cases the Court may hasten to rectify this infirmity which has always been found to be anathema to basic service principles of just and fair play. The present case is one such. Taking note of the above principle we are obliged to interfere in this Letters Patent Appeal. ( 6 ) ACCORDINGLY we allow this Letters Patent Appeal; set aside the order of the learned Single Judge in Special Civil Application No. 2954 of 1985 and that Special Civil Application will stand allowed thereby deleting the impugned order dated 1. 5. 1985 terminating the services of the appellant. We are told that the appellant continues in service having been thus enabled by orders of this Court. Learned counsel for the appellant submits that even if there is an age limit for the post in question in the case of candidates other than those belonging to Scheduled Caste/scheduled Tribe there is a power of relaxation and the appellant must be deemed to have been given the appointment only relaxing the age limit and in any event he could plead for such relaxation. We have no say on this question. As and when the respondents conceive the idea of prosecuting any action which of course they must do adhering to the principles of natural justice the appellant will have ample opportunity to make his say on the relevant aspects to maintain the appointment given to him. We make no order as to costs. Letters Patent appeal Allowed. .