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2015 DIGILAW 344 (GUJ)

Chhotabhai Hirabhai Makwana v. State of Gujarat

2015-03-26

ABHILASHA KUMARI

body2015
JUDGMENT : Abhilasha Kumari, J. 1. Rule. Mr. D.M. Devnani, learned Assistant Government Pleader waives service of notice of Rule for respondents Nos. 1 and 3. Mr. Hemang M. Shah, learned Advocate waives service of notice of Rule for respondent No. 2. This petition under Art.226 of the Constitution of India has been preferred, inter alia, challenging the show-cause notice dated 16-5-2014, whereby the petitioner has been asked to show-cause why he should not be reverted, as he has not passed the Certified Computer Course (C.C.C.) Examination upon completing fifty five years of service. 2. Briefly stated, the facts of the case are that the petitioner is presently working as Office Superintendent at the Labour Court, Bharuch. He was first appointed as Junior Clerk on 8-5-1984 and later promoted as Senior Clerk on 4-9-1987. The petitioner was further promoted as a Clerk of the Court on 14-9-1989. On promotion to the post of Office Superintendent on 15-3-2012, the petitioner was granted higher pay-scale from 6-1-1999, which was subject to the passing of the C.C.C. Examination. According to the petitioner, after the completion of his training period, he applied for appearance in the C.C.C. Examination by paying fees of Rs. 150/-, but no examination was conducted in the next two years. This aspect was brought to the notice of Industrial Training Centre, Uttarsanda, indicating that the passing of the said examination was required as per the condition of his employment. The petitioner was informed that as and when the examination would be conducted, he would be informed. The petitioner later applied to appear in the examination from the Bharuch centre. He did appear in the said examination on 31-8-2013. However, the petitioner failed in the practical part of the examination. The petitioner requested respondent No. 2 to provide him a second chance to pass the examination, but no reply has been received to his request. In the above background, the petitioner received the impugned show-cause notice dated 16-5-2014, which is the subject-matter of challenge in the present petition. 3. Mr. C.P. Chaniyara, learned Advocate for the petitioner has submitted that respondent No. 2 ought to have granted him a second chance to appear in the C.C.C. Examination. However, no reply has been received from the respondent to his request, therefore, the petitioner is unable to make a second attempt. 3. Mr. C.P. Chaniyara, learned Advocate for the petitioner has submitted that respondent No. 2 ought to have granted him a second chance to appear in the C.C.C. Examination. However, no reply has been received from the respondent to his request, therefore, the petitioner is unable to make a second attempt. It is submitted that though the rules permit a second chance to be given to the candidate, however, due to lack of response and permission from respondent No. 2, the petitioner is unable to do so. 4. Mr. D.M. Devnani, learned Assistant Government Pleader appearing for respondent Nos. 1 and 3 submits that the petition is premature, as only a show-cause notice has been issued to the petitioner and no order has been passed thereupon. It is submitted that this Court may not quash the show-cause notice, at this stage, in view of the principles of law laid down in State of Orissa v. Sangram Keshari Misra, reported in 2010 (13) SCC 311 . 5. Mr. Hemang M. Shah, learned Advocate for respondent No. 2 submits that said respondent has replied to the letter of the petitioner dated 15-2-2014 requesting for a second chance, by a communication dated 5-3-2015. This communication has not been placed on record by the petitioner. It is further submitted that the General Administrative Department of the State Government has not extended the time period for appearing in the examination, therefore, this decision cannot be taken by respondent No. 2 unilaterally. It is contended that the petitioner has also filed his reply to the impugned show-cause notice and has participated in the proceedings. No order has been passed so far, therefore, the petition which is premature, may not be entertained. 6. This Court has heard learned Counsel for the respective parties, perused the averments made in the petition, contents of the affidavit-in-reply filed by respondent No. 2 and other documents on record. 7. The petitioner has challenged the show-cause notice dated 16-5-2014, to which he has already filed a reply before respondent No. 2 on 26-5-2014. No order has been passed by respondent No. 2, so far. In view of the fact that the petitioner has already participated in the proceedings of the show-cause notice and filed a reply, it appears to be incongruous that he is pursuing the remedy of a writ petition at the same time. No order has been passed by respondent No. 2, so far. In view of the fact that the petitioner has already participated in the proceedings of the show-cause notice and filed a reply, it appears to be incongruous that he is pursuing the remedy of a writ petition at the same time. It is a settled position of law that the Court would not normally interfere with a show-cause notice, unless it is proved to be illegal, arbitrary, perverse or without jurisdiction. The impugned show-cause notice is a regular show-cause notice which, prima facie, does not suffer from any such vice. The petitioner is already before respondent No. 2, who is the authority who has issued the show-cause notice. Hence, he cannot be permitted to ride two horses at the same time, by filing a petition in this Court for quashing the said show-cause notice, after filing a reply to the same before the authority. As no order has been passed by respondent No. 2 upon the said show-cause notice, the petition is undoubtedly premature. Thus, this Court is not inclined to entertain the same. 8. The view of this Court is fortified by a judgment in the case of Vavdi Road Seva Sahakari Mandali Ltd. v. District Registrar, reported in 2010 (3) GLH 92 : 2010 (3) GLR 1929 . The relevant extract of which is reproduced hereinbelow: "12. At this juncture, it would be helpful to examine the legal position regarding maintainability of a petition challenging a show-cause notice under Art.226 of the Constitution of India. In Union of India v. Kunisetty Satyanarayana, reported in 2006 (12) SCC 28 , the Apex Court has lucidly summed up the legal position, as under: 14. The reason why ordinarily a writ petition should not be entertained against a mere show-cause notice or charge-sheet is that at that stage the writ petition may be held to be premature. A mere charge-sheet or show-cause notice does not give rise to any cause of action, because it does not amount to an adverse order which affects the rights of any party unless the same has been issued by a person having no jurisdiction to do so. It is quite possible that after considering the reply to the show-cause notice or after holding an enquiry the authority concerned may drop the proceedings and/or hold that the charges are not established. It is quite possible that after considering the reply to the show-cause notice or after holding an enquiry the authority concerned may drop the proceedings and/or hold that the charges are not established. It is well settled that a writ petition lies when some right of any party is infringed. A mere show-cause notice or charge-sheet does not infringe the right of anyone. It is only when a final order imposing some punishment or otherwise adversely affecting a party is passed, that the said party can be said to have any grievance. 15. Writ jurisdiction is discretionary jurisdiction, and hence, such discretion under Article 226 should not ordinarily be exercised by quashing a show-cause notice or charge-sheet. 16. No doubt, in some very rare and exceptional cases the High Court can quash a charge-sheet or show-cause notice if it is found to be wholly without jurisdiction or for some other reason if it is wholly illegal. However, ordinarily the High Court should not interfere in such a matter. (Emphasis supplied)" 9. In view of the above discussion and the principles of law enunciated by the Supreme Court extracted hereinabove, the petition deserves to fail, being devoid of merit. 10. Accordingly, the petition stands rejected. 11. It may be clarified that while passing this order, the Court has not entered into the merits of the case. Rule is discharged. There shall be no orders as to costs.