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2019 DIGILAW 735 (GUJ)

State of Gujarat v. Patel Yagnik Kumar Chimanlal

2019-07-10

A.P.THAKER, S.R.BRAHMBHATT

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ORDER : S.R. BRAHMBHATT, J. 1. Heard learned counsel for the parties. 2. Present Letters Patent Appeal is taken out for seeking appropriate direction and order against the direction issued by this Court in the interim order dated 6.12.2018 passed in Special Civil Application No. 20229 of 2017. The following directions of learned Single Judge set out as under: “4. Rule. ‘5. By way of interim relief, following order is passed, (I) The petitioner shall continue to serve as Administrative Assistant – Clerk under respondent Nos.4 and 5 as if his appointment has been approved by the competent authority. However, this shall be subject to final outcome of the petition. (ii) Respondent Nos.4 and 5 shall continue to pay the salary to the petitioner from their own fund. (iii) After paying the salary, respondent Nos.4 and 5 may claim reimbursement by way of grant from the State Government and if such reimbursement is requested for, the State shall release the amount subject to orders which may be passed in the final hearing of the petition.” 3. The entire controversy in main matter as well as appeal revolves around the factum of original petitioner being continuously serve since 2010 as 'Administrative Assistant' without being given any support in the form of grant by the State. 4. It seems that petitioner has approached this Court by way of Special Civil Application with following prayers : “(A) Your Lordships may be pleased to issue a writ of mandamus, certiorari or any other appropriate writ, order and/or direction quashing and setting aside the judgment and order passed by the learned Tribunal in Application No. 6 of 2014 renumbered as Application No. 1876 of 2014 (Annexure “A”) so also be pleased to hold that in the facts of the case the petitioner is entitled to the approval and salaries from the date of his appointment in the school and direct the D.E.O. to grant approval to the appointment of the petitioner as “Vahivati Sahayak” from the date of his appointment and grant all the consequential benefits flowing there from. (B) Pending hearing admission and final disposal of this petition, be pleased to direct the DEO to go on paying his regular salaries from Government Grant from this month onwards. (B) Pending hearing admission and final disposal of this petition, be pleased to direct the DEO to go on paying his regular salaries from Government Grant from this month onwards. (C) Your Lordships may be pleased to pass such other and/or further orders as may be deemed fit, just and proper in the interest of justice (D) To award the cost of this petition.” 5. The counsel for the petitioner submitted that there was no earthly reason for not according approval to the appointment and the same is withheld only on the ground that non-availability or absence of representative of DEO in the recruitment procedure. The Tribunal, whose order was challenged before the learned Single Judge, has observed that bills of wages of petitioner, would have to be borne by the school management on account of the fact of non-availability of representative of DEO, resulting into non-approval of the appointment. This order of the Tribunal was subject matter of challenge before learned Single Judge, wherein, learned Single Judge has passed this order, which has been assailed in this Letters Patent Appeal. 6. We called upon learned AGP for the appellant to indicate as to any material illegality, which would render the very appointment illegal. The counsel could not show any, except reiterating the fact that the representative of DEO had not been present, when the selection was conducted, pursuant whereof the petitioner got appointment and as the same was not duly approved by the competent authority, the State cannot be fashioned with liability to make good wages by way of grant. 7. The Court has taken into consideration the observation of the learned Single Judge in para-3 of the order, in which, it is clearly observed that the petitioner has been serving since 2010 and process of selection has not been shown to be faulty on account of any illegality except as mentioned herein-above and in this view of the matter, when the wages to be paid to the petitioner, have been said to be reimbursable by way of interim order, the same cannot be said to be suffered from any inference as to call for any interference The interlocutory order of such a nature needs no interference. As a result, appeal fails and is hereby dismissed. As a result, appeal fails and is hereby dismissed. It goes without saying that this observation, which have examined the challenge to learned Single Judge order, it has not crystallized any right and liability, as the order under challenge being an interim order.