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Gujarat High Court · body

2002 DIGILAW 409 (GUJ)

RASIKLAL RAMNIKLAL BAGTHARIYA v. STATE

2002-05-06

R.M.DOSHIT

body2002
R. M. DOSHIT, J. ( 1 ) HEARD the learned advocates Mr. K. V Shelat and Mr. P. R Abichandani. ( 2 ) THE above Civil Application has been moved by the respondents-Authorities for vacation of interim relief granted in the main matter. At the time of hearing of Civil Application, it is noticed that the very petitioner had filed Special Civil Application No. 434 of 1999 in the subject matter of the present petition. The said Special Civil Application No. 434 of 1999 was dismissed by this Court [i. e. , myself] on 1 8/07/2000. However, it appears that the petitioner, without disclosing the factum of the Special Civil Application No. 434 of 1999 preferred by him, had moved the present petition wherein on 2 2/11/2000, this Court [coram : H. K Rathod, J. ] made the order as under :-rule. To be heard with Special Civil Application No. 8202 of 1998, 5547 of 1998 and 434 of 1999. Meanwhile, it is directed to the respondents that the petitioner shall not be relieved from the post on which he is working at present. Direct service is permitted. ( 3 ) SINCE I find that the present writ petition has been preferred in the same subject matter as Special Civil Application No. 434 of 1999 and that the petitioner has obtained the above order without disclosing that the Special Civil Application No. 434 of 1999 was preferred by the petitioner himself, I propose to dispose of the present writ petition alongwith the Civil Application. ( 4 ) HOWEVER, though the learned advocate Mr. K. V Shelat appearing for the petitioner has objected to the petition being heard without putting the petitioner to notice of final hearing. I do not suppose such a notice is required. ( 5 ) IT appears that the petitioner was appointed as an Armed Police Constable in the State Reserved Police Force. While the petitioner was serving as such, the Additional Director General of Police [computer-cum-State Crime Bureau] issued a Circular calling applications from the armed police constables for giving them training in computer applications. The applications were invited from armed constables who had knowledge of English and who possessed the qualifications mentioned in the said Circular and who were within the age group of 20-30 years. The applications were invited from armed constables who had knowledge of English and who possessed the qualifications mentioned in the said Circular and who were within the age group of 20-30 years. It was stated that such persons would be given training for 1 to 3 months and they would be appointed in Computer Section/department. Thereafter, they would get promotions etc. in the Computer Section/department in the same manner as anywhere else. It is the case of the petitioner that pursuant to the said circular, the petitioner had applied for training as Computer Operator. The petitioner was given due training as Computer Operator and was appointed in the Computer Section/department. The petitioner had thus lost lien in the original cadre in the State Reserved Police Force. However, the respondent-Authorities decided to repatriate the petitioner to his original cadre and to relieve him from his present posting. It further appears that by order dated 2 5/06/1998, some of such Computer Operators were ordered to be repatriated to their parent cadre. Feeling aggrieved, some of them preferred Special Civil Application Nos. 5547 of 1998 and 8202 of 1998. The petitioner preferred Special Civil Application No. 434 of 1999 challenging the said order of 25/06/1998. The said Special Civil Application No. 434 of 1999 came up for hearing before me on 18/07/2000. The claim of permanent absorption made by the petitioner did not find favour with me. It was held that, `the petitioner, therefore, cannot claim permanent absorption as computer operator. Challenge to the order of repatriation to the parent department, therefore, is not sustainable. Further, the impugned order dated 25/06/1998, has already been implemented and the petitioner has been serving as an Armed Police Constable for last two years. In that view of the matter also, the impugned order does not warrant interference. Accordingly, the petition was dismissed. Inspite of the said order, the petitioner moved Civil Applciation No. 10522 of 2000 in Special Civil Application No. 8202 of 1998 for being impleaded as party-petitioner. The said application was rejected by the learned Judge [h. K Rathod, J. ] on 20th November, 2000. The Court made order as under :-the present Civil Application is filed by the applicant herein with a request to be joined as co-petitioner in the main matter. Such prayer cannot be granted. The said application was rejected by the learned Judge [h. K Rathod, J. ] on 20th November, 2000. The Court made order as under :-the present Civil Application is filed by the applicant herein with a request to be joined as co-petitioner in the main matter. Such prayer cannot be granted. However, it is observed that if any grievance of the applicant is against the respondents, then the applicant ought to have filed separate independant petition against the respondent concerned. In view of this fact, present Civil Application is disposed of accordingly. However, learned advocate Mr. Shelat submitted that he will file separate substantive petition on behalf of the applicant on or before 2 2/11/2000 and requests that considering the facts and circumstances of the present case, some protection may be given to the applicant so that the respondents may not relieve the applicant from service. In view of these facts, it is directed to the respondent nos. 4, 5 and 6 to maintain status quo till 23rd November, 2000. In view of the aforesaid observations and directions, present Civil Application stands disposed of. Directions accordingly. Leave to file separate substantive petition. Direct service is permitted today. pursuant to the above order, the petitioner has preferred the present petition for the following substantive reliefs :-[a] this Honble Court be pleased to issue a writ of mandamus or any other appropriate writ, direction or order for quashing and setting aside the decision of the respondent of relieving the petitioner from his services as Computer Operator at DSP Office, kutch at Bhuj and be further pleased to direct the respondent authorities to consider the case of the petitioner on similar basis as that of Nilesh Vrajlal and Krushnakant Vitthalbhai and be further pleased to direct them to regularize the services as permanent Computer Operators at DSP Office, Kutch at Bhuj; ( 6 ) IN the memo of writ petition, the petitioner has made reference to Special Civil Application No. 434 of 1999. However, it is not disclosed that the said Special Civil Application No. 434 of 1999 was preferred by the petitioner himself. Nor it mentioned that the said Special Civil Application No. 434 of 1999 was dismissed by this Court on 1 8/07/2000. However, it is not disclosed that the said Special Civil Application No. 434 of 1999 was preferred by the petitioner himself. Nor it mentioned that the said Special Civil Application No. 434 of 1999 was dismissed by this Court on 1 8/07/2000. Further, the petitioner has stated that, `under a misconception of fact, the Honble High court was of the opinion in Special Civil Application No. 434 of 1999 that the petitioner was already relieved from the post of Computer Operator and since two years i. e. , 1998 onwards he is serving as armed police constable with S. R. P Group, Rajkot. The said order is the subject matter of challenge in Letters Patent Appeal. In fact, the petitioner has also continued at DSPs Office, Kutch at Bhuj as can be seen from the communication dated 29th September, 2000 produced at Annexure-A herein. ( 7 ) THE above averments made by the petitioner establish two things - one that the petitioner has suppressed the fact of his having preferred Special civil Application No. 434 of 1999 in the same subject matter and of dismissal of the said Special Civil Application No. 434 of 1999. Further, a false statement is made that the Letters Patent Appeal is preferred. From the information received from the registry, it appears that no Letters Patent Appeal has been preferred against the order dated 1 8/07/2000 made on Special Civil Application No. 434 of 1999. Thus, the petitioner has successfully obtained order of Rule and interim relief by suppressing the material facts and by misrepresentation. The present petition is also barred by the principle of res judicata. I am of the view that once the Court has noticed the above infirmity, the petition cannot to be kept alive. The petition requires to be dismissed forthwith. ( 8 ) MR. Shelat has submitted that the subject matter of Special Civil Application No. 434 of 1999 was entirely different from the one in the present petition. What was challenged in Special Civil Application No. 434 of 1999 was the order dated 25/06/1998 which is not challenged in the present petition. The present petition is merely against relieving of the petitioner from the post of Computer Operator. He has also submitted that other such Computer Operators who have preferred Special Civil Applications Nos. What was challenged in Special Civil Application No. 434 of 1999 was the order dated 25/06/1998 which is not challenged in the present petition. The present petition is merely against relieving of the petitioner from the post of Computer Operator. He has also submitted that other such Computer Operators who have preferred Special Civil Applications Nos. 5547 of 1998 and 8202 of 1998 have been protected by this Court, the present petitioner also is entitled to such protection. He has relied upon the Circular dated 5/02/1993 referred to hereinabove and has submitted that the petitioner had applied for training as Computer Operator pursuant to the said Circular. The petitioner, therefore, stands absorbed in the Computer Section/department and cannot be repatriated/transferred to his parent cadre. If the petitioner were to be repatriated to their parent cadre, the same would cause heart-burning. ( 9 ) I see no substance in the contentions raised by Mr. Shelat. I have already expressed my opinion as regards the petitioners absorption/appointment in Computer Section/department and his right to continue in the said Section/department as a Computer Operator under my above referred order dated 1 8/07/2000. I, therefore, need not consider the said question again. I, however, do not agree that the present petition is moved in a different subject matter. The present petition is preferred necessarily in the same subject matter. However, the petition is articulated so as to suppress the fact of the earlier petition in the same subject matter. It is nothing but playing smart with the Court. I do agree that the petitioner may have a legitimate grievance against the order dated 1 8/07/2000. However, in that case, the only course open to the petitioner was that of preferring Letters Patent Appeal. The petitioner could not have preferred fresh petition in the same subject matter, as he has done in the present case. The petitioners design to trick the Court becomes more obvious by attempt of the petitioner to join as Co-petitioner in Special Civil Application No. 8202 of 1998. The above order dated 20/11/2000 makes it more than clear that even in that Civil Application, the petitioner did not disclose the factum of Special Civil Application No. 434 of 1999 and its disposal on 18th July, 2000. The said Civil Application has been moved with an intention to obtain order permitting the petitioner to file a substantive petition in the subject matter. The said Civil Application has been moved with an intention to obtain order permitting the petitioner to file a substantive petition in the subject matter. The petitioner has thus resorted to the abuse of process of Court and has also partially succeeded in obtaining the desired relief. The petition, therefore, deserves to be dismissed with exemplary costs. ( 10 ) IF I am at pains to note that here is the writ petitioner who has not come to the Court with clean hands and has obtained favourable orders by suppressing the material facts from the Court, I am at far greater pains to note that the petitioner has succeeded in his design with active participation of the learned advocate Mr. K. V Shelat. True, the earlier petition i. e. , Special Civil Application No. 434 of 1999 was presented through the learned advocate Mr. M. S Trivedi. However, it is apparent that Mr. K. V Shelat was aware of the said writ petition and the order made thereon. The filing of Civil Application No. 10522 of 2000 so as to obtain the order permitting the petitioner to file substantive petition in the subject matter and filing of the present petition without disclosing the order made on Special Civil Application No. 434 of 1999 is nothing but the ingenuity of Mr. K. V Shelat. I am of the view that Mr. Shelat has acted in a manner not befitting to a Court Officer. The conduct of Mr. Shelat calls for condemnation. If the action of the petitioner calls for a sanction, the action of Mr. Shelat calls for a severe sanction. So far as the action of Mr. K. V Shelat is concerned, it is the Bar Council which is empowered to take appropriate action. ( 11 ) IN above view of the matter, the petition is dismissed with costs. The costs is quantified at Rs. 20,000/=. Rule is discharged. Interim relief is vacated. The respondent-Authorities shall be at liberty to recover the amount of costs from the salary of the petitioner in suitable instalments. As far as the learned advocate Mr. K. V Shelat is concerned, the matter be referred to the Bar Council of Gujarat for taking appropriate action against the learned advocate. The registry is directed to forthwith foward a copy of this judgment to the Bar Council of Gujarat. Civil Application stands disposed of. As far as the learned advocate Mr. K. V Shelat is concerned, the matter be referred to the Bar Council of Gujarat for taking appropriate action against the learned advocate. The registry is directed to forthwith foward a copy of this judgment to the Bar Council of Gujarat. Civil Application stands disposed of. ( 12 ) AFTER the above judgment was pronounced in the Court, Mr. K. V Shelat has approached me in the chambers. Mr. Shelat has expressed his regret and has extended sincere apology. He has assured that henceforth he shall ever be very careful and shall not repeat such conduct. I trust, Mr. Shelat will live upto his word. I accept his apology. No further action be taken against Mr. K. V Shelat. .