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2018 DIGILAW 249 (GUJ)

Ankleshwar Municipality v. State of Gujarat

2018-01-24

BIREN VAISHNAV, M.R.SHAH

body2018
JUDGMENT : M.R. SHAH, J. 1. As common question of law and facts arise in this group of Letters Patent Appeals and as such arise out of the impugned common judgment and order passed by the learned Single Judge in Special Civil Application Nos. 9358/2010 to 9364/2010, all these Letters Patent Appeals are heard, decided and disposed of together by this common judgment and order. 2. All these Letters Patent Appeals are admitted. 2.1 Shri Pushpadatta Vyas, learned Advocate waives service of notice of Admission on behalf of the concerned respondent-original petitioners of respective Special Civil Applications and Shri Mahesh Bhavsar, learned Advocate waives service of notice of Admission on behalf of the Administrative Officer of the concerned school board and Shri Rohan Yagnik, learned Assistant Government Pleader waives service of notice of Admission on behalf of the respondent State Authorities insofar as the respective appeals being Letters Patent Appeal Nos. 5/2017, 6/2017, 7/2017, 9/2017, 10/2017 and 11/2017 preferred by the Ankleshwar Municipality are concerned. 2.2 Shri Rohan Yagnik, learned Assistant Government Pleader waives service of notice of Admission on behalf of the respondent State Authorities, Shri Mahesh Bhavsar, learned Advocate waives service of notice of Admission on behalf of the respondent No. 3 - Administrative Officer of the school board and Shri Dipak Sanchela, learned Advocate waives service of notice of Admission on behalf of the Ankleshwar Municipality insofar as the appeals being Letters Patent Appeal Nos. 28/2017 to 33/2017 preferred by the original petitioners are concerned. 2.3 In the facts and circumstances of the case and with the consent of learned Advocates appearing for respective parties, all Letters Patent Appeals are finally heard, decided and disposed of today by this common judgment and order. 3. Feeling aggrieved and dissatisfied with the impugned common judgment and order passed by the learned Single Judge in Special Civil Application No. 9358/2010 to 9364/2010 by which the learned Single Judge while allowing the aforesaid petitions partly and while quashing and setting aside the order dated 05.08.2010 terminating the services of the original petitioners has directed that the original petitioners to be continued on the set up of Ankleshwar Nagarpalika at the cost of the Nagarpalika, Ankleshwar Nagarpalika (now Municipality) has preferred the present Letters Patent Appeal Nos. 5/2017 to 7/2017, 9/2017 to 11/2017. 5/2017 to 7/2017, 9/2017 to 11/2017. 3.1 Feeling aggrieved and dissatisfied with the impugned common judgment and order passed by the learned Single Judge in Special Civil Application Nos. 9359/2010 to 9364/2010, the original petitioners have also preferred Letters Patent Appeal Nos. 28/2017 to 33/2017 insofar as not allowing the other prayers including quashing and setting aside the order dated 27.07.2010. 4. Facts leading to the present Letters Patent Appeals in nutshell are as under: 4.1 That all the original petitioners were appointed by the Ankleshwar Nagar Prathmik Shikshan Samiti and as such they were the employees of the Nagar Prathmik Shikshan Samiti. That all of them were serving as Primary Teachers. It was the case on behalf of the original petitioners that they were appointed by the School Board after inviting applications and after all of them were called for interview. That all of them came to be appointed vide order dated 27.11.1990. That the allegations were made that the appointments of the original petitioners were illegal. Therefore, the inquiry was handed over to the Vigilance Department of the Government. That in the year 2004 all the petitioners were asked to provide documents and certificates. That thereafter by communication dated 27.07.2010, the State Government through the Under Secretary, Education Department communicated to the Director of Primary Education, State of Gujarat, Gandhinagar to take appropriate action against the original petitioners observing that they were appointed illegally and though they were not having required educational qualifications. At this stage it is required to be noted that at the time of hearing, Administrator of the Ankleshwar Nagarpalika/Municipality communicated that the Municipality/Nagarpalika is ready to absorb all of them on the sanctioned post of the Nagarpalika and at the cost of the Nagarpalika. Therefore, in the communication dated 27.07.2010, it was observed that the concerned Teachers-original petitioners be accommodated in Class-III or Class-IV post of the Nagarpalika and the expenditure to be borne by the Nagarpalika, solely on mercy base. The Under Secretary also observed that before taking any action the original petitioners-concerned Teachers be given an opportunity of being heard. It appears that thereafter vide communication dated 05.08.2010, the services of the original petitioners came to be terminated. In the said communication/order it was also stated that the concerned Teachers may give their option whether they are ready to be accommodated/absorbed in the Nagarpalika on the post of Class-III or Class-IV. It appears that thereafter vide communication dated 05.08.2010, the services of the original petitioners came to be terminated. In the said communication/order it was also stated that the concerned Teachers may give their option whether they are ready to be accommodated/absorbed in the Nagarpalika on the post of Class-III or Class-IV. 4.2 Feeling aggrieved and dissatisfied with the aforesaid two communications/orders dated 27.07.2010 and 05.08.2010, the concerned Teachers of the Nagar Prathmik Shikshan Samiti/School Board approached this Court by way of filing Special Civil Application Nos. 9358/2010 to 9364/2010 except Special Civil Application No. 9358/2010. That the respective petitioners prayed for the following reliefs. “(a) To quash the order/communication dated 27.07.2010 passed by the respondent no. 1 at Annexure-A and any action in pursuance to the same by the respondents. (b) During the pendency, admission and final disposal of the petition, stay the operation and implementation of illegal order/communication dated 27.07.2010 passed by the respondent no. 1 at Annexure-A. (c) To quash and set aside the impugned order dated 05.08.2010 passed by the Administrative Officer, Municipal School Board, Ankleshwar as well as the impugned order dated 05.08.2010 passed by the Chief Officer of Ankleshwar Nagar Palika as per Annexure-J colly and to direct that the petitioner continues in the service of the respondents with all consequential benefits as if the impugned orders were never passed; (d) Pending the hearing and final disposal of this petition, be pleased to stay the operation of the impugned orders and to direct the respondents to allow the petitioner to discharge duties and to draw salaries as she was doing prior to the impugned order.” 4.3 That by impugned common judgment and order the learned Single Judge has partly allowed the aforesaid Special Civil Applications and has quashed and set aside the order dated 05.08.2010 terminating the services of the original petitioners by observing that after a long period of time their services could not have been terminated. On the ground of delay and laches only, the termination order dated 05.08.2010 came to be set aside. However, the learned Single Jude declined to grant the prayer by the petitioners for declaration that they are regularly appointed Teachers and thereby did not set aside the order dated 27.07.2010 of the State Government. On the ground of delay and laches only, the termination order dated 05.08.2010 came to be set aside. However, the learned Single Jude declined to grant the prayer by the petitioners for declaration that they are regularly appointed Teachers and thereby did not set aside the order dated 27.07.2010 of the State Government. However, at the same time the learned Single Judge while quashing and setting aside the order of termination dated 05.08.2010 held and directed that the original petitioners to be continued on the set up of the Ankleshwar Nagarpalika at the cost of the Nagarpalika. 4.4 Feeling aggrieved and dissatisfied with the impugned common judgment and order passed by the learned Single Judge, Ankleshwar Nagarpalika/Municipality as well the original petitioners have preferred the present Letters Patent Appeals. 5. Shri Dipak Sanchela, learned Advocate has appeared on behalf of the Ankleshwar Municipality. Shri K.B. Pujara, learned Advocate has appeared with Shri Pushpadatta Vyas, learned Advocate on behalf of the original petitioners. Shri Mahesh Bhavsar, learned Advocate has appeared on behalf of the Administrative Officer of the Ankleshwar Nagar Prathmik Shikshan Samiti/School Board and Shri Rohan Yagnik, learned Assistant Government Pleader has appeared on behalf of the State Authorities. 6. Now, so far as the appeals preferred by the Ankleshwar Municipality being Letters Patent Appeal Nos. 5/2017 to 7/2017 and 9/2017 to 11/2017 are concerned, it is the case on behalf of the Municipality that as the original petitioners were never the employees of the Ankleshwar Nagarpalika and they were never appointed by the Ankleshwar Nagarpalika, the learned Single Judge has materially erred in directing that the original petitioners to be continued on the set up of the Ankleshwar Nagarpalika at the cost of the Nagarpalika. 6.1 It is vehemently submitted by Shri Sanchela, learned Advocate appearing on behalf of the Ankleshwar Municipality that even it was nobody’s case including the original petitioners that they were the employees of the Ankleshwar Nagarpalika and they be continued on the set up of the Ankleshwar Nagarpalika. Therefore, it is requested to allow the appeals preferred by the Ankleshwar Nagarpalika/Municipality and to quash and set aside that part of the direction in the impugned judgment and order passed by the learned Single Judge by which the learned Single Judge has directed that the original petitioners to be continued on the set up of Ankleshwar Nagarpalika at the cost of the Nagarpalika. 6.2 Shri K.B. Pujara, learned Advocate appearing on behalf of the original petitioners has fairly conceded that as such the original petitioners were never appointed by the Ankleshwar Nagarpalika and/or they were never the employees of the Ankleshwar Nagarpalika. It is submitted that it was never the case on behalf of the original petitioners that they were the employees of the Nagarpalika and/or they were to be continued on the set up of Ankleshwar Nagarpalika. Therefore, he has stated that he has no objection if that part of the direction issued by the learned Single Judge by which it is directed that the original petitioners to be continued on the set up of Ankleshwar Nagarpalika at the cost of Nagarpalika is quashed and set aside and to that extent the appeals being Letters Patent Appeal Nos. 5/2017 to 07/2017 and 09/2017 to 11/2017 preferred by the Ankleshwar Nagarpalika are allowed. 7. In view of the above facts and circumstances more particularly as such it was nobody’s case that the original petitioners were the employees of the Ankleshwar Nagarpalika and/or they are to be continued on the set up of Ankleshwar Nagarpalika at the cost of the Nagarpalika and as such they were appointed by the Nagar Prathmik Shikshan Samiti, Ankleshwar, which is an independent body other than the Ankleshwar Nagarpalika, the appeals preferred by the Ankleshwar Municipality deserve to be allowed and the direction issued by the learned Single Judge in the impugned common judgment and order directing that the original petitioners to be continued on the set up of Ankleshwar Nagarpalika at the cost of the Nagarpalika deserve to be quashed and set aside. 8. Now, so far as the appeals preferred by the original petitioners challenging the impugned common judgment and order passed by the learned Single Judge insofar as not granting the relief of declaration that they are regularly appointed Teachers and not quashing and setting aside the order dated 27.07.2010 is concerned, Shri Pujara, learned Advocate appearing on behalf of the original petitioners has vehemently submitted that as such all the petitioners were having the requisite qualifications and therefore, the order dated 27.07.2010 holding that the appointment of all the original petitioners were illegal inasmuch as they were not holding the requisite qualifications is not sustainable. It is submitted that therefore the order dated 27.07.2010 of the State Government was required to be quashed and set aside by the learned Single Judge. He has also submitted that as such the order dated 27.07.2010 also suffers from vice of principles of natural justice. Making above submissions it is requested to allow the appeals preferred by the original petitioners and also quash and set aside the order dated 27.07.2010 of the State Government. 9. Shri Rohan Yagnik, learned Assistant Government Pleader appearing on behalf of the State Authorities is not in a position to satisfy that before the impugned communication dated 27.07.2010 any opportunity of being heard was given to the original petitioners. 10. Having heard learned Advocates appearing for respective parties, the appeals preferred by the Ankleshwar Municipality insofar as challenging the impugned common judgment and order passed by the learned Single Judge by which the learned Single Judge directed that the original petitioners to be continued on set up of Ankleshwar Nagarpalika at the cost of Nagarpalika are required to be allowed and the impugned common judgment and order passed by the learned Single Judge holding and directing that the original petitioners to be continued on the set up of Ankleshwar Nagarpalika at the cost of Nagarpalika cannot be sustained and the same deserves to be quashed and set aside and is, accordingly, quashed and set aside. 10.1 Now, so far as the appeals preferred by the original petitioners challenging the impugned common judgment and order passed by the learned Single Judge insofar as not granting the other reliefs prayed more particularly the declaration that they are regularly appointed Teachers and not quashing and setting aside the order dated 27.07.2010 of the Education Department, State of Gujarat is concerned, it is required to be noted and that does not appear to be on record that before passing the order/communication dated 27.07.2010, any opportunity of being heard was given to the concerned Teachers. Therefore, the observations/findings recorded in the order/communication dated 27.07.2010 can be said to be in violation of the principles of natural justice and therefore, the matters are required to be remanded to the State Government for passing a fresh order on the appointment of the concerned Primary Teachers/original petitioners after giving an opportunity to the concerned Teachers. To the aforesaid extent, the appeals preferred by the original petitioners are required to be partly allowed. To the aforesaid extent, the appeals preferred by the original petitioners are required to be partly allowed. 11. In view of the above and for the reasons stated above, Letters Patent Appeal Nos. 5/2017 to 7/2017 and 9/2017 to 11/2017 preferred by the Ankleshwar Municipality/ Nagarpalika are hereby allowed. Impugned common judgment and order passed by the learned Single Judge in Special Civil Application Nos. 9358/2010 to 9364/2010 (except Special Civil Application No. 9358/2010) is hereby quashed and set aside insofar as directing that the original petitioners to be continued on set up of Ankleshwar Nagarpalika at the cost of the Nagarpalika. 12. So far as Letters Patent Appeal Nos. 28/2017 to 33/2017 preferred by the original petitioners are concerned, without expressing anything on merits on the appointment of the original petitioners as Primary Teachers and as it is found that the order dated 27.07.2010 is in breach of principles of natural justice, the order dated 27.07.2010 of the Education Department, State of Gujarat is hereby quashed and set aside and the matter is remanded to the Education Department, State of Gujarat for fresh decision in accordance with law and on its own merits and after giving an opportunity of being heard to the original petitioners on the legality and validity of their appointments as Primary Teachers. The impugned order/communication dated 27.07.2010 itself be treated as a show-cause notice. It will be open for the original petitioners to reply to the same within a period of 4 weeks from today and thereafter the State Government/Education Department, State of Gujarat to pass appropriate order in accordance with law and on its own merits and after hearing the original petitioners and/or their representatives. Such exercise shall be completed within a period of 3 months from today. Till then, whatever position as on today is prevailing, the same shall be continued meaning thereby the services of the original petitioners to be continued on the set up of Nagar Prathmik Shikshan Samiti and that they shall be paid the wages by the Nagar Prathmik Shikshan Samiti, however the same shall be subject to the ultimate outcome/decision that may be taken by the State Government after hearing the original petitioners and the Nagar Prathmik Shikshan Samiti. Thereafter, the Nagar Prathmik Shikshan Samiti to pass appropriate consequential order on the basis of the decision that may be taken by the State Government. Thereafter, the Nagar Prathmik Shikshan Samiti to pass appropriate consequential order on the basis of the decision that may be taken by the State Government. It goes without saying that if the decision is adverse to the original petitioners, it shall be open for them to challenge the same before the appropriate Court/Forum. It is also further directed that any order adverse to the original petitioners shall not be implemented for a further period of 4 weeks from such order. Letters Patent Appeal Nos. 28/2017 to 33/2017 preferred by the original petitioners are hereby partly allowed to the aforesaid extent. No costs. 13. In view of disposal of main Letters Patent Appeals, Civil Applications for stay in respective Letters Patent Appeals also stand disposed of.