Whether Reporters of Local Papers may be allowed to see the judgment ?
To be referred to the Reporter or not ?
Whether their Lordships wish to see the fair copy of the judgment ?
Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?
Whether it is to be circulated to the civil judge ?
========================================= G B PARMAR Versus STATE OF GUJARAT & ANR ========================================= Appearance :
MR S.R. DIVETIA FOR HN BRAHMBHATT for Petitioners MR N.J. SHAH AGP for Respondents ========================================= CORAM :
HONOURABLE MR.JUSTICE A.J. DESAI Date : 23/01/2012 ORAL COMMON JUDGMENT 1 By way of the present petitions under Article 226 of the Constitution of India, the petitioners have challenged the impugned Order/Communication dated 1.12.2000 passed by the Superintending Engineer, Road & Building Department i.e. the respondent No.2, by which the Executive Engineers, Road & Building Department, Mehsana/ Patan, Palanpur and Bhuj, were informed to take proper action for withdrawing the higher pay scale, if, paid to the employees working under them in accordance with the Notifications/Letters and to recover the same within a period of one week from those employees and report shall be made to the Superintending Engineer.
2 Feeling aggrieved and dissatisfied with the Order dated 1.12.2000, the petitioners have filed the aforesaid writ petitions before this Court for setting aside the said order passed by the respondent No. 2 mainly on the ground that before passing the said order, they were not heard and, therefore, the authorities have committed the breach of principle of natural justice.
3 I have heard learned Advocate Mr. S.R.Divetia appearing for the petitioners and learned AGP Mr. N.J. Desai for the respondents.
4 It is submitted by Mr. Divetia for the petitioners that, though, several contentions were raised in the memo of petitions, the main grievance of the petitioners is that they were not heard before passing the impugned order and therefore authorities have violated the principle of natural justice and, hence, the impugned order deserves to be set aside. In support of his contention, learned Advocate Mr. Divetia has relied upon an unreported decision of this Court dated 4.2.2011 passed in Special Civil Application No. 13410 of 2000. He has submitted that this Court while allowing the said petition, set aside the order and directed the respondents to pass order with regard to pay scale after giving an opportunity of hearing to the petitioner.
5 On the other hand, learned AGP Mr. N.J. Shah has submitted that the impugned order dated 1.12.2000 is of a general nature and no specific order was passed, qua, the petitioners and, therefore, both the petitions are required to be dismissed being a premature one and the interim relief granted earlier is required to be vacated.
6 Looking to the documents annexed with the petitions, it appears that on 1st January, 2011 while issuing the Notice, this Court has granted interim relief staying the operation of the impugned order dated 1.12.2000, that means, the Executive Engineer could not pass any order pursuant to the order passed by the Superintending Engineer. On 5th July, 2001, after hearing the parties, the matters were admitted and the interim relief was confirmed till the final disposal of the petitions. A bare reading of the impugned order, it appears that the respondent No.2 - Superintending Engineer had passed a general order to those employees who were working under the Executive Engineers, Road & Building Department, Mehsana/ Patan, Palanpur and Bhuj and no specific order was passed, qua, the present petitioners withdrawing the benefit of higher pay scale granted in favour of the petitioners prior to the impugned order.
7 Since the matter is pending for more than 11 years and the stay is operating, it would be in the interest of justice to direct the concerned authority to take decision about the steps which were intended to be taken at the time of passing the impugned order/communication dated 1.12.2000. It is not clear either from the petitions or from the affidavit-in-reply filed by the respondents that who is going to take a decision about the implementation of the Notifications/Letters/Policies of the Government about the finalization of the pay scale of the employees.
8 In view of the above said peculiar facts in the present case, both the petitions are allowed. The impugned order/ Communication dated 1.12.2000 passed by the respondent No.2 is quashed and set aside. Rule in each of the petitions is made absolute to the aforesaid extent. There shall be no order as to costs. The Superintending Engineer - Respondent No.2, Road & Building Department or the Executive Engineer of Road & Building Department, Mehsana, who is empowered to pass order about the pay scale of the concerned employees, shall hear the petitioners before passing any order pursuant to the directions issued by the Government and shall take decision as early as possible in accordance with law.
9 It is needless to mention that this Court has decided the petitions only on the ground that the impugned order/ communication dated 1.12.2000 was passed by the respondent No.2 without affording opportunity of hearing to the petitioners and hence there was breach of principle of natural justice and has not gone into the legality and validity of the impugned order/communication.
(A.J.
DESAI, J.) pnnair Top